Terrance Edward Bar v. Kalitta Charters II, LLC
| Decision Date | 25 October 2021 |
| Docket Number | 21-cv-11444 |
| Parties | TERRANCE EDWARD BAR, Plaintiff, v. KALITTA CHARTERS II, LLC, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
TERRANCE EDWARD BAR, Plaintiff,
v.
KALITTA CHARTERS II, LLC, Defendant.
No. 21-cv-11444
United States District Court, E.D. Michigan, Southern Division
October 25, 2021
OPINION AND ORDER: (1) GRANTING DEFENDANT KALITTA CHARTERS II, LLC'S MOTION TO DISMISS PURSUANT TO FED.R.CIV.P. 12(B)(6) (ECF NO. 19), AND (2) STRIKING PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANT'S REPLY BRIEF (“SUR-REPLY BRIEF”) (ECF NO. 22)
Paul D. Borman, United States District Judge.
This is an employment discrimination case arising out of Plaintiff Terrance Bar's employment with Defendant Kalitta Charters II, LLC. Plaintiff, proceeding pro se, asserts claims of sexual harassment and retaliation pursuant to Title VII of the Civil Rights Act of 1964 against Defendant. Now before the Court is Defendant's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) (ECF No. 19). The motion has been fully briefed.[1] The Court has determined that oral argument is not necessary
for proper resolution of this motion and will resolve the matter on the parties' written submissions. E.D. Mich. L. R. 7.1(f)(2). For the reasons that follow, the Court GRANTS Defendant's motion to dismiss Plaintiff's First Amended Complaint.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Relevant Facts[2]
Defendant Kalitta Charters II is an “on demand” airline charter company that transports cargo around the world. https://www.kalittacharters.com/about/. According to Plaintiff's First Amended Complaint, Plaintiff was employed by Defendant as a pilot during the relevant time period, until his termination on August 21, 2020. (ECF No. 17, Pl.'s First Amended Complaint (FAC), PageID.106, 110.)
Plaintiff alleges that some time in December of 2019, Greg DeBourge, a Check Airman employed by Defendant, [3] made “disturbing and intimidating comments on [a] social media platform.” (FAC, PageID.107.) The FAC does not otherwise describe or elaborate on those “disturbing and intimidating comments.”
On or around February 20, 2020, Mr. DeBourge “did a disturbing sexual suggestive simulation act in a meeting … at the hotel in Miami, Florida, and two female co-workers were present.” (Id.) Again, the FAC does not further discuss or describe the allege act or specifically identify who was present at the meeting.
Then on February 21, 2020, during a training session, Mr. DeBourge showed Plaintiff and his “Simulator Partner Brandon Kearns … a homosexual pornographic video on his cell phone[.]” (Id.) Plaintiff states that after seeing the video he “was unable to continue and [he] had to leave the simulator training session[.]” (Id.) Plaintiff went outside the training facility and called the Director of Training, Darrell Coleman, to complain, but Mr. Coleman did not answer and Plaintiff “left him a voice message to please return my call.” (Id.) Plaintiff next called “Chief Pilot” Mike Geadtke, and “explained to him what just happened.” (Id.) When Mr. Geadtke, who
had been across the street, arrived at the building shortly thereafter, he “could see how visibly upset [Plaintiff] was” and he gave Plaintiff his car keys so Plaintiff could go back to his hotel room, which he did. (Id.) Plaintiff contends that Defendant then retaliated against him “for reporting this [February 21, 2020] incident involving Check Airman Greg DeBourge.” (Id.) Specifically, Plaintiff states that, since the “harassment event, ” he has been required to report to the Cincinnati Northern Kentucky International Airport, approximately four hours from his house, instead of the Willow Run Airport, which is approximately 45 minutes from his house. (Id. at PageID.110.) He contends that he would then stay in the “crew room and sleep on a reclining chair” between flights, and that he found out the “the company was paying for hotel rooms for some of [its] Captains.” (Id.) “On a couple of occasions, ” he would be scheduled to fly out of Cincinnati, and when he showed up “there was no aircraft or captain for [him], ” and one time he was scheduled to fly out of Phoenix, Arizona for a week, but only flew two times and spent the rest of his time staying at the hotel. (Id.) Plaintiff also contends that he was involved in an incident on June 5, 2020, in which the aircraft he was flying as the First Officer “experienced a[n] aircraft malfunction which caused the aircraft to veer off the runway” in Rochester, New York. (Id. (“I was the First Officer and it was my leg to fly.”).) Plaintiff states that
he and the Captain were both “put through retraining events” as a result of the incident, and while the Captain “failed his Simulator Check ride and was demoted to First Officer and was assigned to fly with a regular line pilot, ” Plaintiff passed his “Check ride a few days later and was put through Recurrent Training with three different Check Airmen.” (Id.) Plaintiff contends that on or about August 21, 2020, “[t]he last Check Airm[a]n Rob No. used pretext on a[n] Instructor comment form, from which [Plaintiff] was called into the Chief Pilots office and was terminated.” (Id.)
Finally, Plaintiff contends that Defendant denied his unemployment benefits “due to Gross Misconduct, ” but that the State of Michigan Unemployment Office awarded [him] unemployment benefits due to lack of evidence after three months.” (Id. at PageID.107.)
According to Plaintiff's FAC, he filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) on November 12, 2020, and he received a Notice of Right to Sue letter on April 29, 2021. (Id. at PageID.108.)
B. Procedural History
On June 16, 2021, Plaintiff filed his original employment discrimination Complaint in this matter against Defendant, asserting claims for sexual harassment
and retaliation under Title VII. (ECF No. 1, Complaint.) Defendant filed a motion to dismiss this Complaint on July 30, 2021. (ECF No. 14.)
On August 16, 2021, Plaintiff filed his First Amended Complaint in lieu of a response to the motion to dismiss, again asserting claims against Defendant for sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964. (ECF No. 17, FAC.) Defendant filed a Motion to Dismiss the FAC Pursuant to Fed.R.Civ.P. 12(b)(6) on August 30, 2021. (ECF No. 19, Def.'s Mot.) Defendant argues that Plaintiff fails to plead sufficient facts to establish a claim of sexual harassment, and he fails to state a claim of retaliation under Title VII.
On September 8, 2021, Plaintiff filed a Response in opposition to Defendant's motion. (ECF No. 20, Pl.'s Resp.) Plaintiff contends that his amended complaint sufficiently pleads his claims of harassment and retaliation, and that it satisfies Fed.R.Civ.P. 8's requirement to state “a short and plain statement of the claim showing that the pleader is entitled to relief.”
On September 22, 2021, Defendant filed a reply brief in support of its motion to dismiss. (ECF No. 21, Def.'s Reply.) Defendant asserts that Plaintiff's response brief fails to address the deficiencies in his Amended Complaint, and reasserts that
Plaintiff failed to plead enough facts as to each element of his claims for sexual harassment or retaliation.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) allows for the dismissal of a case where the complaint fails to state a claim upon which relief can be granted. To state a claim, a complaint must provide a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “[T]he complaint ‘does not need detailed factual allegations' but should identify ‘more than labels and conclusions.'” Casias v. Wal-Mart Stores, Inc., 695 F.3d 428, 435 (6th Cir. 2012) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
When reviewing a motion to dismiss under Rule 12(b)(6), a court must “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Handy-Clay v. City of Memphis, 695 F.3d 531, 538 (6th Cir. 2012). The court “need not accept as true a legal conclusion couched as a factual allegation, or an unwarranted factual inference.” Id. at 539 (internal citations and quotation marks omitted); see also Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citing Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987)). In other words, a plaintiff must provide more than
a “formulaic recitation of the elements of a cause of action” and his or her “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555-56. The Sixth Circuit has explained that “[t]o survive a motion to dismiss, a litigant must allege enough facts to make it plausible that the defendant bears legal liability. The facts cannot make it merely possible that the defendant is liable; they must make it plausible.” Agema v. City of Allegan, 826 F.3d 326, 331 (6th Cir. 2016) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). It is the defendant who “has the burden of showing that the plaintiff has failed to state a claim for relief.” Wesley v. Campbell, 779 F.3d 421, 428 (6th Cir. 2015).
Pleadings and documents filed by pro se litigants are to be “liberally construed, ” and a “pro se complaint, however inartfully pleaded, must be held to a less stringent standard than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However, “the lenient treatment generally accorded to pro se litigants has limits.” Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996) (citing Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991)). The basic pleading essentials are not abrogated in pro se cases. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). A pro se complaint must still “contain sufficient factual matter, accepted...
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