Ragland v. F & M Koz, Inc.
| Docket Number | 2:21-cv-02530-TLP-cgc |
| Decision Date | 29 March 2022 |
| Parties | ERIC RAGLAND, II, Plaintiff, v. F & M KOZ, INC, MARY KOZLOWSKI, and FRANK KOZLOWSKI, Defendants. |
| Court | U.S. District Court — Western District of Tennessee |
ORDER MODIFYING AND ADOPTING IN PART REPORT AND RECOMMENDATION AND GRANTING DEFENDANTS' MOTION TO DISMISS
Defendants F & M Koz, Inc, Mary Kozlowski, and Frank Kozlowski (collectively “Defendants”) move to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 8.) Under Administrative Order 2013-05 the Court referred this case to Magistrate Judge Charmiane G Claxton (“Judge Claxton”) for management of all pretrial matters. (ECF No. 13.) Judge Claxton issued a Report and Recommendation (“R&R”) recommending that the Court grant in part and deny in part Defendants' motion to dismiss. (ECF No. 18.)
Defendants object to the R&R's analysis of Plaintiff's Title VII claim for race discrimination based on constructive discharge. (ECF No. 19 at PageID 631.) Plaintiff responded to Defendants' objections but made no objections of his own. (ECF No. 20.) Because Defendants' objection has merit the Court MODIFIES and ADOPTS IN PART and REJECTS IN PART the R&R. And the Court therefore GRANTS Defendants' motion to dismiss.
Plaintiff Eric Ragland II sued Defendants pro se in Shelby County Circuit Court in March 2021, alleging defamation, negligence, and harassment under Tennessee law. (ECF Nos. 1-4 at PageID 26; 9 at PageID 309.) Plaintiff amended his complaint in July 2021 to add claims for discrimination under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e. (ECF Nos. 1-6 at PageID 193; 9 at PageID 472.) Plaintiff filed a notice of removal in August 2021. (ECF No. 1.) But because only defendants may remove cases from state court, [1] Defendants filed their own notice of removal, along with the state court record, a week later. (ECF Nos. 7 & 9.)
In the amended complaint, Plaintiff alleges that he is an “Afro-American male” with skin that is “dark in color” and “black in tone.” (ECF No. 9 at PageID 474.) According to the amended complaint, Defendant F & M Koz, Inc does business as Jet's Pizza, and an individual named Mike Theobald manages a Jet's Pizza location. (Id.) Plaintiff alleges that Theobald called Plaintiff a “crackhead” in front of “all active management, staff and patrons of Jet's Pizza.” (Id.) Plaintiff also asserts that Theobald then used Plaintiff's “physical characteristics such as [his] race, Color, sex and stature” to compare Plaintiff and a fictional character, Tyrone Biggums, a character depicted as a drug addict on “The Chappelle Show.” (Id.)
The complaint alleges that Theobald asked Plaintiff if he was on drugs and stated that Plaintiff was “like Tyrone Biggums, scratching.” (Id. at PageID 474-75.) Plaintiff asserts that patrons and staff “burst into strong laughter” and began calling him the “crackhead of Jets.” (Id. at PageID 475.) Plaintiff alleges that this “caus[ed] massive damages to [his] name, image and [his] reputation.” (Id.) Plaintiff also claims that he was “subjected to loss of income” and that he “sustained massive financial damages, ” as well as “massive emotional stress and massive mental anguish.” (Id. at PageID 476.)
Plaintiff asserts that by calling him a crackhead and comparing him to the character from The Chappelle Show, Jet's Pizza implied that Plaintiff is a crackhead, that he is uneducated, that he has poor hygiene, and that he “would do anything for money to support the alleged drug addiction, ” including steal. (Id. at PageID 476-77.) Plaintiff also alleges that Theobald tried to reach Plaintiff through phone calls and text messages, “begging for [Plaintiff] to return to the workplace.” (Id. at PageID 478.) Plaintiff does not allege any details about his employment status or any change resulting from the events underlying the complaint. Plaintiff does however attach his EEOC charge to the amended complaint which states that Plaintiff resigned his employment the date of the manager's comments “due to the continued harassment.”[2] (Id. at PageID 493.)
After outlining the proper legal standard for motions to dismiss under Rule 12(b)(6), Judge Claxton explained that Title VII prohibits employment discrimination based on “race, color, religion, sex, or national origin.” (ECF No. 18 at PageID 623 (quoting 42 U.S.C. § 2000e-2(a)).) And Judge Claxton pointed out that Plaintiff alleges discrimination based on race and color.[3]
i. Hostile Work Environment
As the R&R explains, Defendants construed the amended complaint as asserting a hostile work environment claim under Title VII. (Id.) The R&R states that “[t]he ‘necessary predicate' for such a claim is pleading that a hostile work environment existed.” (Id. at PageID 623-24 (quoting Cooper v. Jackson-Madison County General Hosp. Dist., 742 F.Supp.2d 941, 956-57 (W.D. Tenn. 2010)).) And “[a] hostile work environment is one that is ‘permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'” (Id. at PageID 624 (quoting Kelly v. Senior Centers, Inc., 169 Fed.Appx. 423, 428 (6th Cir. 2006)).) To establish a prima facie claim of a hostile work environment, a plaintiff must show that (1) “he is a member of a protected class”; (2) “he was subjected to unwelcome racial harassment”; (3) “the harassment was based on race”; (4) “the harassment had the effect of unreasonably interfering with his work environment by creating an intimidating, hostile, or offensive work environment”; and (5) “the existence of employer liability.” (Id. (citing Newman v. Federal Exp. Corp., 266 F.3d 401, 405 (6th Cir. 2001)).)
The R&R explains that in Kelly, the Sixth Circuit addressed a hostile work environment claim stemming from allegations that two staff members used a pejorative racial slur, a staff member made derogatory racial comments, and another made racist “jokes” three times. (Id. (citing Kelly, 169 Fed.Appx. at 429).) While the Kelly court condemned this conduct, it found that the plaintiff failed to show a hostile work environment existed because the allegations did not show a “pervasive, aggressive, or constant course of conduct.” (Id. at PageID 625 (quoting Kelly, 169 Fed.Appx. at 429).) The R&R also notes that “[o]ne reported episode of allegedly racially derogatory language is not sufficient to establish that . . . [the] comments were severe and pervasive.” (Id. (quoting Cooper, 742 F.Supp.2d at 956).) The R&R concludes that Theobald's statements were not “severe enough to create an intimidating, hostile, or offensive work environment.” (Id. (citing Carlisle v. Staffing Solutions Southeast, Inc., No. 1:16-CV-00334, 2017 WL 2274995, at *2-3 (E.D. Tenn. May 24, 2017)).) And so Judge Claxton recommended dismissal of Plaintiff's hostile work environment claim under Title VII.
ii. Disparate Treatment
Judge Claxton concluded, however, that the amended complaint could be construed as asserting a disparate treatment claim. (Id.) To state a disparate treatment claim, a plaintiff must allege an “adverse employment action.” (Id. (citing Crane v. Mary Free Bed Rehab. Hosp., 634 Fed.Appx. 518, 522 (6th Cir. 2015)).) The R&R explains that loss of pay is an adverse employment action. (Id. (citing Clay v. United Parcel Srvs., Inc., 501 F.3d 695, 710 n.6 (6th Cir. 2007)).) As is constructive discharge. (Id. (citing Logan v. Denny's, Inc., 259 F.3d 559, 566-67 (6th Cir. 2001)).) The R&R states that the amended complaint “is not precisely clear as to how Theobald's comments resulted in [Plaintiff's] financial losses.” (Id.) But the R&R finds that Plaintiff pleaded one of the factors for proving constructive discharge. (Id.) And so Judge Claxton recommended denying Defendants' motion to dismiss as it relates to Plaintiff's Title VII claim for disparate treatment.
Judge Claxton then turned to Plaintiff's claim under § 1981. (ECF No. 18 at PageID 626.) As the R&R states, under § 1981, “all persons shall have the same right ‘to make and enforce contracts, to sue, be parties, give evidence' and enjoy ‘the full benefit of all laws and proceedings for the security of persons and property.'” (Id. (quoting 42 U.S.C. § 1981).) Judge Claxton observed that “Plaintiff's Complaint does not allege violations of any of these rights.” (Id.) And so Judge Claxton recommended dismissal of Plaintiff's § 1981 claim.
Judge Claxton next analyzed Plaintiff's defamation claim stemming from Theobald's alleged statements. (Id. at PageID 627.) Judge Claxton emphasized that “[a]n action for slanderous words spoken shall be commenced within six (6) months after the words are uttered.” (Id. (quoting Tenn. Code Ann. § 28-3-103).) The amended complaint alleges that Theobald's statements occurred on February 15, 2020. (ECF No. 9 at PageID 474.) And as the R&R points out, Plaintiff did not sue Defendants until March 2021. (Id. at PageID 309.) The R&R therefore concludes that Plaintiff's defamation claim is time-barred. (ECF No. 18 at PageID 627.) And so Judge Claxton recommended dismissal of that claim too.
Lastly Judge Claxton addressed Plaintiff's harassment claim. (Id.) As Judge Claxton observed, the amended complaint alleges that Theobald harassed Plaintiff in violation of Tennessee Code Annotated § 39-17-308. (ECF No. 9 at PageID 478-79.) The R&R states that “[u]nder Tennessee law, the authority to prosecute violations of criminal statutes...
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