Opinion
Case No. 1:20-cv-12996
2022-06-07
Aric MARTIN, Plaintiff, v. SAGINAW COUNTY ROAD COMMISSION, Defendant.
Barbara Patek, Detroit Mercy Law, Grosse Pointe Farms, MI, for Plaintiff. Jeffrey S. Theuer, Loomis, Ewert, Lansing, MI, Thomas H. Derderian, Wendy S. Hardt, Michael R. Kluck Assoc., Okemos, MI, for Defendant.
Barbara Patek, Detroit Mercy Law, Grosse Pointe Farms, MI, for Plaintiff.
Jeffrey S. Theuer, Loomis, Ewert, Lansing, MI, Thomas H. Derderian, Wendy S. Hardt, Michael R. Kluck Assoc., Okemos, MI, for Defendant.
OPINION AND ORDER (1) SUSTAINING PLAINTIFF'S OBJECTIONS TO MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, (2) ADOPTING AND REJECTING IN PART MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, (3) GRANTING PLAINTIFF'S MOTION TO EXTEND, (4) REFERRING PLAINTIFF'S MOTION TO COMPEL, AND (5) DIRECTING PLAINTIFF TO SHOW CAUSE
THOMAS L. LUDINGTON, United States District Judge
Plaintiff has filed five objections, ECF No. 43, to the Magistrate Judge Patricia T. Morris's Report and Recommendation ("R&R"), ECF No. 39. Under 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b)(3), this Court is to review de novo those portions of the R&R to which Plaintiff has objected.
As explained hereafter, Plaintiff's objections will be sustained, the R&R will be adopted in part and rejected in part, Plaintiff's Motion to Extend will be granted, Plaintiff's Motion to Compel will be referred to the Magistrate Judge, and Plaintiff will be directed to show cause why service of process should not be made on three unnamed Defendants or, alternatively, whether those three Defendants should be dismissed.
I.
Plaintiff Aric Martin sues the Saginaw County Road Commission and three of its employees for employment discrimination and wrongful termination under Title VII of the Civil Rights of 1964.
A.
Plaintiff is a Black, Christian man who identifies as being raised in a Muslim family. ECF No. 39 at PageID.343, 351–52. In January 2009, he began working as a truck driver for the Saginaw County Road Commission (SCRC). ECF Nos. 33 at PageID.233; 35 at PageID.294.
In January 2014, the SCRC transferred him to patch potholes and plow snow in Saginaw County. See ECF No. 33 at PageID.233. The job responsibility required him to maintain a valid and current commercial driver's license (CDL). Id.
According to Plaintiff, since his transfer to the SCRC, he was subjected to "race and religion harassment, denied training[,] and assigned work based on [his] race." ECF No. 1 at PageID.6. According to Plaintiff, "throughout 2016 and 2017" his supervisors only assigned Black workers "to do patching in Buena Vista [Township], a predominantly black area"—often alone—"because the white workers did not want to go into that area." See ECF No. 35 at PageID.277, 279. And due to his Muslim heritage, Plaintiff adds, his coworkers "repeatedly made derogatory remarks and slurs about ‘towelheads’ in [his] presence." ECF No. 35 at PageID.296.
Plaintiff recalls that, "to no avail," he filed at least five internal discrimination complaints to various supervisors "in approximately March of 2017, April of 2017, July of 2017, March 2018, and April of 2019." ECF Nos. 1 at PageID.6; 35 at PageID.295.
After Plaintiff first complained about the discrimination and harassment, he adds, the SCRC reassigned his "truck and route" and "require[d him] to work alone in [Buena Vista Township,] [where] foremans [sic] refused to send white employees." Id. at PageID.6.
B.
Contextually, the SCRC allowed Plaintiff to undergo alcohol treatment three times. First, the SCRC gave Plaintiff paid leave to go "through rehabilitation" for alcoholism in 2013, after which he "returned to [his] job at the [SCRC] without incident." See ECF No. 35 at PageID.296. The SCRC again gave Plaintiff paid leave for treatment in 2017. See id. But after his second return his coworkers allegedly harassed him. For example, Defendant Todd Ferguson, Plaintiff's then-foreman, "placed a cutout of a Budweiser advertisement in [his] truck." Id. Plaintiff alleges that such incidents often required him "to take a few days off work." See id.
In April 2019, Plaintiff filed his third application for paid medical leave to treat major depression and alcoholism, which the SCRC granted. ECF No. 33 at PageID.233. This third inpatient treatment, Plaintiff contends, was a consequence of the "suicidal ideation" caused by the discrimination and harassment that he suffered at the SCRC. See id. In other words, Plaintiff alleges that he became depressed and relapsed because of his race-based work assignments and the harassment based on his religious affiliation and disabilities.
While on paid leave and undergoing inpatient treatment, Plaintiff filed his most recent "internal harassment complaint with the [SCRC]." Id. at PageID.233; ECF No. 35 at PageID.295. The SCRC claims that it began investigating Plaintiff's discrimination complaint while he was still on leave. ECF No. 33 at PageID.233. Yet Plaintiff pleaded that "[n]o one from the Road Commission ever contacted [him] regarding the investigation they were conducting until after [he] filed this lawsuit." ECF No. 35 at PageID.295. Defendant asserts that it voluntarily ceased investigating Plaintiff's allegations of discrimination and harassment "because Plaintiff did not return from his leave." ECF No. 33 at PageID.233–34.
Plaintiff submitted his discrimination claims to the Equal Employment Opportunity Commission (EEOC) in September 2019, and later amended his charge to include a wrongful-termination claim in March 2020. ECF Nos. 33 at PageID.236; 35 at PageID.270. On August 13, 2020, the EEOC issued Plaintiff a Right to Sue Letter, which stated that "[b]ased upon its investigation, the EEOC [wa]s unable to conclude that the information obtained established a violation of the statutes." ECF No. 33 at PageID.236 (citing ECF No. 33-3 at PageID.255); see also ECF No. 1 at PageID.7.
Plaintiff also submitted his discrimination and harassment complaint to the Michigan Department of Civil Rights, which notified Plaintiff in October 2020 that it would acquiesce to the EEOC investigation. ECF No. 38 at PageID.340.
The SCRC terminated Plaintiff's employment on or around November 2 or 4, 2019. ECF Nos. 1 at PageID.6; 33 at PageID.233, 235; 33-1 at PageID.246. The SCRC claims that it terminated Plaintiff's employment "for failing to return to work after a 7-month period of paid leave of absence." ECF No. 33 at PageID.233. The SCRC adds that Plaintiff could not have returned to work because he did not have a valid commercial drivers’ license (CDL) when he was due to return to work. Id.
C.
On November 5, 2020, Plaintiff filed a complaint in this Court under Title VII of the Civil Rights of 1964, 42 U.S.C. §§ 2000e –e17. In his Complaint, Plaintiff identifies Defendants Saginaw County Road Commission (SCRC), District Two Foreman Joe Pop, Head Director Dennis Borchard, and District Two Foreman Todd Ferguson. ECF No. 1 at PageID.2–3. Plaintiff alleges that Defendants discriminated against him based on his race, religion, disabilities, and whistleblowing activities by not promoting him, not accommodating his disabilities (mental disability and alcoholism), subjecting him to unequal terms and conditions of employment, retaliating against him, and ultimately terminating his employment. Id. at PageID.5.
The Clerk of the Court only listed Defendant Saginaw County Road Commission when it docketed Plaintiff's Complaint. That issue will be rectified later in this Order. See discussion infra Section III.G.
The case was referred to Magistrate Judge Patricia T. Morris, who granted Plaintiff leave to proceed in forma pauperis. ECF Nos 4; 5. In March 2021, Judge Morris established the Scheduling Order for the case, with discovery ending on September 30, 2021. ECF No. 21.
On the discovery deadline, Plaintiff filed a motion to extend discovery, ECF No. 25, and a motion to compel Defendants to produce evidence related to his claims, ECF No. 26. Defendants opposed both motions, ECF Nos. 27; 29, and Plaintiff replied, ECF Nos. 31; 32.
Before Plaintiff's Motions were addressed, Defendants filed a motion for summary judgment. ECF No. 33. Defendants’ Motion for Summary Judgment argues (1) that Plaintiff's Title VII claims are time-barred, (2) that Plaintiff did not suffer an adverse action, and (3) that Plaintiff was nondiscriminatorily terminated for not returning to work after a seven-month paid medical leave. See generally ECF No. 33.
On February 15, 2022, Judge Morris issued an R&R, recommending that this Court (1) grant Defendant's Motion for Summary Judgment; (2) deny Plaintiff's Motion to Extend Discovery, and (3) deny Plaintiff's Motion to Compel. See ECF No. 39.
On March 18, 2022, Plaintiff filed five objections to the R&R, contending that Judge Morris erred in all her findings. See ECF No. 43. Two weeks later, Defendant responded to Plaintiff's objections. See ECF No. 44.
Having reviewed the R&R and the parties’ briefing, this Court finds that a hearing is unnecessary, and the objections and motions will be addressed on the papers. See E.D. Mich. LR 7.1(f)(2).
II.
"A document filed pro se is to be liberally construed," so "a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citations omitted).
A.
Plaintiff's Complaint is a fill-in-the-blank questionnaire for pro se litigants. See ECF No. 1. On that form, he checked the boxes for "[t]ermination of my employment," "[f]ailure to promote me," "[f]ailure to accommodate my disability," "[u]nequal terms of my employment," "[r]etaliation," and as "[o]ther acts" he wrote "[d]iscrimination of race, color[,] and religion." Id. at PageID.5.
Although confounding and confusing, the factual bases of Plaintiff's claims reads:
I would like to file a Federal Supreme Court case for discrimination against Saginaw County Road Commission. Beginning in 2014, with my transfer to the department, I have been subjected to race and religion harassment, denied training and assigned work based on my race. I complained to the above-named employer, to no avail. I also filed a Discrimination Harrassment case of which I was never contacted / interviewed by the third party representive or by my place of work and was told the case was thrown out without resolution or care. However, because I complained, my truck and route were re-assigned, and I was required to work alone in a dangerous area which foremans refused to send white employees due to it being a dangerous area. On or about November 2, 2019, I was discharged. I believe I've been subjected to different terms and conditions of employment, subjected to harassment, subjected to harrassment of my mental disability and alcolhism, subjected to race based assignments and discharged, due to my race (black), my association with Muslims, my disability and in retaliation for engaging in protected activities, in violation of Title VII of the Civil Rights Act of 1964, as amended.
Id. at PageID.6. See LeVay v. Morken , No. 21-1257, 2021 WL 7451691, at *3 (6th Cir. Nov. 15, 2021) (holding that a complaint alleging "confounding" and "confusing" facts can state a claim under a statute that might not create a private right of action if it "lays out" the facts in "fairly elaborate" detail).
Liberally construed, Plaintiff's Complaint alleges 11 claims: (1) racially motivated failure to train, (2) failure to promote, (3) reassignment, and (4) termination; (5) religiously motivated failure to train, (6) failure to promote, (7) reassignment, and (8) termination; (9) religious harassment; (10) disability harassment; and (11) that his employment was terminated in retaliation for protected conduct.
Title VII has been interpreted to reach all the conduct that Plaintiff has, liberally construed, alleged in his Complaint.
But see Sandra F. Sperino, Harassment: A Separate Claim? , 6 Belmont L. Rev. 121, 122 (2019) (arguing "that viewing harassment as a separate, standalone claim likely misinterprets Title VII and the Supreme Court's jurisprudence surrounding harassment").
1.
First, Title VII prohibits adverse actions motivated by a protected characteristic: "race, color, religion, sex, or national origin." 42 U.S.C. §§ 2000e–2(a), (m). These two provisions proscribe overt discrimination (i.e., disparate treatment) based in whole or in part on a protected characteristic. Wards Cove Packing Co. v. Atonio , 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989). These two provisions also proscribe employment practices that are fair in form but discriminatory in operation (i.e., disparate impacts). Id.
a.
Disparate treatment occurs when members of a protected group have been denied the same employment opportunities available to other employees. 42 U.S.C. § 2000e–2(a)(1) ; 29 C.F.R. § 1607.11. To prevail on a disparate-treatment claim, plaintiffs must demonstrate by a preponderance of the evidence that the employer intentionally discriminated against them based on a protected characteristic. See Ricci v. DeStefano , 557 U.S. 557, 577, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009).
A plaintiff can prove disparate-treatment discrimination with direct or circumstantial evidence of the employer's discriminatory motive.
"Direct evidence is that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions." White v. Columbus Metro. Hous. Auth. , 429 F.3d 232, 238 (6th Cir. 2005) (quoting Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp. , 176 F.3d 921, 926 (6th Cir. 1999) ). Examples of direct evidence include "[a] facially discriminatory employment policy or a ... decision maker's express statement" of discriminatory intent. EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. , 884 F.3d 560, 571 (6th Cir. 2018), aff'd on other grounds sub nom. Bostock v. Clayton Cnty. , ––– U.S. ––––, 140 S. Ct. 1731, 207 L.Ed.2d 218 (2020). "Once the plaintiff has produced credible direct evidence, the burden shifts to the employer to show that it would have taken the employment action of which the plaintiff complains even in the absence of discrimination." Columbus Metro. , 429 F.3d at 238.
"Circumstantial evidence ... is proof that does not on its face establish discriminatory animus, but does allow a factfinder to draw a reasonable inference that discrimination occurred." White v. Baxter Healthcare Corp. , 533 F.3d 381, 391 n.5 (6th Cir. 2008) (quoting Wexler v. White's Fine Furniture, Inc. , 317 F.3d 564, 570 (6th Cir. 2003) ). Proving discrimination based on race, color, or religion through circumstantial evidence requires applying the McDonnell Douglas burden-shifting analysis. Columbus Metro. , 429 F.3d at 238 (citing McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ).
Under the McDonnell Douglas framework, to establish a prima facie case of disparate-treatment discrimination, plaintiffs must first demonstrate that
(1) they are a member of a protected class;
(2) they applied for and were qualified for some opportunity;
(3) they were considered for and were denied the opportunity; and
(4) similarly situated employees outside the protected class received the opportunity.
Provenzano v. LCI Holdings, Inc. , 663 F.3d 806, 812–13 (6th Cir. 2011) ; see also Mitchell v. Vanderbilt Univ. , 389 F.3d 177, 181 (6th Cir. 2004).
If the plaintiff establishes a prima facie claim, then "the burden shifts to the defendant to proffer a legitimate, non-discriminatory reason for the employment decision at issue." Columbus Metro. , 429 F.3d at 238 ; accord In re Rodriguez , 487 F.3d 1001, 1008 (6th Cir. 2007).
If the employer proffers a legitimate, nondiscriminatory reason for the adverse action, then "the burden shifts back to the plaintiff to demonstrate that the articulated reason is a mere pretext for discrimination." Id. To this end, plaintiffs must "identify evidence from which a reasonable jury could conclude [by a preponderance] that the proffered reason is actually a pretext for unlawful discrimination." Tennial v. United Parcel Serv., Inc. , 840 F.3d 292, 303 (6th Cir. 2016). Plaintiffs can establish pretext by demonstrating that "the proffered [nondiscriminatory] reason (1) has no basis in fact; (2) did not actually motivate the adverse employment action; or (3) was insufficient to warrant the adverse action." Sybrandt v. Home Depot, Inc. , 560 F.3d 553, 558 (6th Cir. 2009) (emphasis added); accord Dews v. A.B. Dick Co. , 231 F.3d 1016, 1021 (6th Cir. 2000).
b.
Alternatively, plaintiffs can avoid summary judgment under a mixed-motive theory by showing that race, color, or religion "was a motivating factor for the defendant's adverse employment action." Griffin v. Finkbeiner , 689 F.3d 584, 595 (6th Cir. 2012) (emphasis in original); see also Baxter Healthcare , 533 F.3d at 400 (holding "that the McDonnell Douglas /Burdine burden-shifting framework does not apply to our summary judgment analysis of Title VII mixed-motive claims"). Evidence establishing a mixed motive may be circumstantial. See Griffin , 689 F.3d at 595.
c.
Disparate-impact discrimination, by contrast, occurs when an employment practice causes a disparate impact based on the plaintiff's race, color, or religion and the employer fails to demonstrate that the challenged practice is job-related and consistent with business necessity. 42 U.S.C. § 2000e–2(k)(1)(A). A disparate-impact claim merely targets an employment practice that has an actual, though not necessarily deliberate, adverse impact on protected groups. Ricci v. DeStefano , 557 U.S. 557, 577, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009). Demonstrating a disparate impact "does not require proof of discriminatory intent." EEOC v. Catastrophe Mgmt. Sols. , 852 F.3d 1018, 1024 (11th Cir. 2016).
2.
Second, Title VII has been interpreted to prohibit harassment (i.e., hostile work environments) based on employees’ race, color, religion, or disability. See Hafford v. Seidner , 183 F.3d 506, 512 (6th Cir. 1999). In order to establish a prima facie case of harassment, Plaintiff must establish five elements:
1. He was a member of a protected class;
2. He was subjected to inappropriate or unwelcome verbal or physical harassment;
3. The harassment was based on race, color, religion, or disability;
4. The harassment was sufficiently severe or pervasive to interfere unreasonably with Plaintiff's work performance or to create an intimidating, hostile, or offensive work environment; and
5. The existence of employer liability in that a supervisor was the harasser, or that the employer knew or should have known of coworker harassment yet failed to act.
See Risinger v. Ohio Bureau of Workers’ Comp. , 883 F.2d 475, 484 (6th Cir. 1989). In determining whether an environment is one that a reasonable person would find hostile or abusive and that the plaintiff perceived it to be so, courts look at all the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris v. Forklift Sys., Inc. , 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) ; Abeita v. TransAmerica Mailings, Inc. , 159 F.3d 246, 251 (6th Cir. 1998).
"A recurring point" in the Supreme Court's opinions is that " ‘simple teasing,’ offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment,’ " and that "conduct must be extreme to amount to a change in the terms and conditions of employment." Faragher v. City of Boca Raton , 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (citations omitted).
3.
Third, Title VII has also been interpreted to prohibit employers from retaliating against current or former employees for their opposition to or participation in the investigation of any unlawful, discriminatory employment practices. 42 U.S.C. § 2000e–3(a).
In University of Texas Southwestern Medical Center v. Nassar , 570 U.S. 338, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013), the Supreme Court held that Title VII retaliation claims must be proved under traditional principles of but-for causation, not the lessened causation test stated in § 2000e–2(m). In this way, Title VII retaliation claims require proof that the desire to retaliate was the "but-for cause" of the challenged employment action. This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action(s) of the employer. Id. at 360, 133 S.Ct. 2517.
A prima facie case of retaliation is established when plaintiffs demonstrate that:
1. they engaged in protected activity;
2. the employer knew about that activity;
3. the employer thereafter took an adverse employment action; and
4. there was a causal connection between the protected activity and the adverse action.
See, e.g., Kwan v. Andalex Grp. , 737 F.3d 834 (2d Cir. 2013) ; Polk v. Yellow Freight Sys., Inc. , 876 F.2d 527, 531 (6th Cir. 1989).
To establish an adverse employment action, a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means that it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination. Burlington N. & Santa Fe Ry. v. White , 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). Petty slights and trivial annoyances do not normally qualify as actionable retaliation. Id. at 68, 126 S.Ct. 2405.
To rebut the employee's prima facie case, the employer may provide a legitimate, nonretaliatory reason for the adverse action; this is merely a burden of production, not of proof.
If the employer meets its burden of production, then the employee must prove that the employer's reason is a pretext for unlawful retaliation. Davis v. Fort Bend Cnty. , 765 F.3d 480, 490 (5th Cir. 2014).
B.
Defendant has filed a motion for summary judgment, ECF No. 33, which the R&R recommends granting, ECF No. 39.
Summary judgment is proper if, construing the evidence in the light most favorable to the nonmovant and drawing all reasonable inferences in the nonmovant's favor, there "is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). Because Plaintiff is the nonmovant, the Magistrate Judge had to view the evidence in the light most favorable to Plaintiff. M.J. ex rel. S.J. v. Akron City Sch. Dist. Bd. of Educ. , 1 F.4th 436, 445 (6th Cir. 2021).
The movant has the initial burden of "identifying those portions of [the record that] it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmovant, who must set out specific facts showing "a genuine issue for trial." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citation omitted). The nonmovant must show more than "some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Indeed, the "mere existence of a scintilla of evidence" in support of the nonmovant does not establish a genuine issue of material fact. Liberty Lobby , 477 U.S. at 252, 106 S.Ct. 2505.
The court must review the evidence and draw all reasonable inferences in favor of the nonmovant to determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251–52, 106 S.Ct. 2505 ; see Lossia v. Flagstar Bancorp, Inc. , 895 F.3d 423, 428 (6th Cir. 2018).
Summary judgment will be granted if the nonmovant "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. , 477 U.S. at 322, 106 S.Ct. 2548. But summary judgment will be denied "[i]f there are ... ‘genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.’ " Hancock v. Dodson , 958 F.2d 1367, 1374 (6th Cir. 1992) (citation omitted).
C.
Plaintiff has objected to the R&R. See generally ECF No. 43.
Under Federal Rule of Civil Procedure 72, a party may object to and seek review of a magistrate judge's R&R. See FED. R. CIV. P. 72(b)(2). If a party objects, "[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." FED. R. CIV. P. 72(b)(3). The parties must state any objections with specificity within a reasonable time. Thomas v. Arn , 474 U.S. 140, 151, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) (citation omitted).
Parties cannot "raise at the district court stage new arguments or issues that were not presented" before the magistrate judge's final R&R. See Murr v. United States , 200 F.3d 895, 902 n.1 (6th Cir. 2000).
When reviewing an R&R de novo , this Court must review at least the evidence that was before the magistrate judge. See Hill v. Duriron Co. , 656 F.2d 1208, 1215 (6th Cir. 1981). After reviewing the evidence, this Court may accept, reject, or modify the magistrate judge's findings or recommendations. FED. R. CIV. P. 72(b)(3) ; Peek v. Comm'r of Soc. Sec. , No. 1:20-CV-11290, 2021 WL 4145771, at *2 (E.D. Mich. Sept. 13, 2021).
As discussed herein, the R&R did not err in recommending that Plaintiff's claims are not time-barred or that Plaintiff's request to amend his Complaint should be denied. But the merits of Plaintiff's discovery motion should be addressed before the merits of Defendant's Motion for Summary Judgment. Accordingly, Plaintiff's objections will be sustained, the R&R will be adopted in part and rejected in part, Plaintiff's Motion to Extend will be granted, Plaintiff's Motion to Compel will be referred to the Magistrate Judge, and Plaintiff will be directed to show cause why service of process should not be made on Joe Pop, Dennis Borchard, and Todd Ferguson; or, alternatively, whether those three Defendants should be dismissed.
III.
Defendant has filed a motion for summary judgment arguing that (1) Plaintiff's claims of racial discrimination and religious discrimination are time-barred, and (2) that there is no genuine issue of material fact regarding Plaintiff's failure-to-promote claims or (3) Plaintiff's retaliation claims. ECF No. 33. In this way, Defendant does not contest Plaintiff's claims for race-based failure to train, race-based reassignment, religion-based failure to train, religion-based reassignment, religion-based harassment, or disability-based harassment.
The R&R rejected Defendant's first argument and affirmed Defendant's second and third arguments. ECF No. 39.
Through five objections, Plaintiff contests the R&R's affirmation of Defendant's second and third arguments. ECF No. 43.
A.
The R&R first recommends that this Court find that Plaintiff's claims are not time-barred. ECF No. 39 at PageID.347–51. This Court agrees with this recommendation, and no party has objected to the recommendation. Accordingly, Plaintiff's claims are not time-barred, and the R&R will be adopted in this regard.
B.
The R&R next recommends that this Court find that Plaintiff has not sufficiently pled a prima facie religious-discrimination claim. ECF No. 39 at PagID.351–53. As to Plaintiff's claims of religiously motivated failure to train, failure to promote, reassignment, and termination, the R&R finds that "Plaintiff has not established that he was treated differently from similarly situated nonprotected individuals [based on religion]." Id. at PageID.353. Although Plaintiff also alleges, though not as a separate count, that he was subject to a hostile work environment based on his religious beliefs, see ECF No. 1 at PageID.6 ("I have been subjected to race and religion harassment.... I also filed a Discrimination Harassment case ..."), the R&R does not address this part of Defendant's claim.
The R&R thirdly recommends that this Court find that Plaintiff has not sufficiently pled a prima facie racial-discrimination claim. ECF No. 39 at PageID.353–56. As to Plaintiff's claims of racially motivated failure to train, failure to promote, reassignment, and termination, the R&R finds a genuine issue of material fact as to all four elements of Plaintiff's racial-discrimination claims. Id. Yet the R&R recommends denying Plaintiff's four racial-discrimination claims because work assignments are not adverse actions, and the record "does not include evidence of any instance where Plaintiff requested or was denied training." Id. at PageID.355–56.
The R&R also recommends that this Court deny Plaintiff's raced-based termination claim because "Plaintiff cannot show, by a preponderance of the evidence, that [Defendant's legitimate non-discriminatory reasons for termination were] a pretext for discrimination." ECF No. 39 at PageID.356 (citing Ang v. Procter & Gamble Co. , 932 F.2d 540, 548 (6th Cir. 1991) ).
The R&R adds that this Court should deny Plaintiff's Motion to Extend and Motion to Compel. ECF No. 39 at PageID.359–60. But the R&R recommended denying those motions as moot and did not engage with the merits. Id. at PageID.360.
Federal Rule of Civil Procedure 37 entitles "a party seeking discovery may move for an order compelling an answer ... [or] production" if "a party fails to produce documents ... as requested under Rule 34." FED. R. CIV. P. 37(a)(3)(B)(iv). A party "may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case." FED. R. CIV. P. 26(b)(1). Diego A. Zambrano, Discovery as Regulation , 119 MICH. L. REV. 71, 132 (2020) noting that, even though Rule 26(b)(1) provides six factors for courts considering discovery requests, "scholars and judges tend to analyze discovery costs relative to the potential award in a particular case"). A party asserting a privilege has the burden of proving that it applies. Carhartt, Inc. v. Innovative Textiles, Inc. , 333 F.R.D. 113, 116 (E.D. Mich. 2019).
Plaintiff's Motion to Compel persuasively argues that additional discovery is needed to address Defendant's Motion for Summary Judgment. For example, a question remains as to whether the attorney-client privilege applies to some of the requested evidence. See ECF No. 26 at PageID.114–15 (requesting "non-privilege portions of the digitally recorded statements of Defendant's management employees"). In the interest of adjudicating the case on the merits, Plaintiff's timely discovery motion should be resolved before the merits of Defendant's Motion for Summary Judgment. See FED. R. CIV. P. 56(d) (providing that courts may defer considering a motion "[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition"). Accordingly, an extension for discovery is warranted.
For these reasons, the R&R's recommendation to grant Defendant's Motion for Summary Judgment will be rejected, Plaintiff's Motion to Extend will be granted, and Plaintiff's Motion to Compel will be referred to the Magistrate Judge for consideration on its merits.
C.
The R&R properly recommends that this Court deny Plaintiff's request to amend his Complaint to include additional legal theories and to clarify some facts. ECF No. 39 at PageID.359 (citing ECF No. 35 at PageID.280–81). The R&R correctly finds that Plaintiff did not make his request properly under the Local Rules. Local Rule 15.1 requires that "[a]ny amendment to a pleading, whether filed as a matter of course or upon a motion to amend, must ... reproduce the entire pleading as amended, and may not incorporate any prior pleading by reference." Coles v. Scion Steel, Inc. , No. 20-12606, 2021 WL 3401207, at *1 (E.D. Mich. Aug. 4, 2021) (citing E.D. Mich. LR 15.1).
For these reasons, the R&R will be adopted as to Plaintiff's request to amend his complaint.
D.
Incidentally, Plaintiff's Complaint named three defendants who are not identified as Defendants on the docket: District Two Foreman Joe Pop, Head Director Dennis Borchard, and District Two Foreman Todd Ferguson. See ECF No. 1 at PageID.2–3. Although this Court will not opine on the merits of Plaintiff's claims against these Defendants, the Clerk's Office should have identified these parties as Defendants.
But Plaintiff might not intend to sue those three Defendants, as he has not addressed their relation to his claims. Thus, Plaintiff will be directed to show cause why service of process should not be made on those three Defendants or, alternatively, whether those three Defendants should be dismissed.
IV.
Accordingly, it is ORDERED that Plaintiff's Objections, ECF No. 43, are SUSTAINED .
Further, it is ORDERED that the Magistrate Judge's Report and Recommendation, ECF No. 39, is ADOPTED IN PART and REJECTED IN PART . The R&R is ADOPTED as to its recommendations that Plaintiff's claims are not time-barred and that Plaintiff's request to amend his Complaint should be denied. The R&R is REJECTED in all other regards.
Further, it is ORDERED that Plaintiff's Motion to Extend, ECF No. 25, is GRANTED .
Further, it is ORDERED that Plaintiff's Motion to Compel, ECF No. 26, is REFERRED to the Magistrate Judge.
Further, it is ORDERED that the Scheduling Order, ECF No. 21, is ADJOURNED as follows:
| Plaintiff's Expert Disclosure Served by: | July 11, 2022 ; |
|---|---|
| Defendant's Expert Disclosure Served by: | August 1, 2022; |
| Discovery Deadline: | September 1, 2022 ; |
| Settlement Conference: | September 14, 2022 at 11:00 AM EDT; |
| Motions Challenging Experts Filed by: | September 26, 2022; |
| Dispositive Motion Cutoff: | October 13, 2022. |
| Rule 26 Disclosures: | January 20, 2023; |
| Motions in Limine: | February 7, 2023; |
| Pretrial Submissions: | February 28, 2023; |
| Final Pretrial Conference: | March 7, 2023 at 4:00 PM EDT; |
| Jury Trial: | March 21, 2023 at 8:30 AM EDT. |
Further, it is ORDERED that Plaintiff is DIRECTED to show cause, on or before July 1, 2022 , why service of process should not be made on Joe Pop, Dennis Borchard, and Todd Ferguson or, alternatively, whether they should be dismissed.