Opinion
2:24-cv-02287-MSN-atc
11-25-2024
VICTOR WILLIAMS, Plaintiff, v. NICKEY WAREHOUSES, INC., Defendant.
REPORT AND RECOMMENDATION FOR PARTIAL SUA SPONTE DISMISSAL, ORDER TO ISSUE PROCESS FOR THE DEFENDANT, AND ORDER ON PENDING MOTIONS
ANNIE T. CHRISTOFF UNITED STATES MAGISTRATE JUDGE
On May 1, 2024, Plaintiff Victor Williams filed a pro se Complaint alleging claims against Defendant Nickey Warehouses, Inc. (“Nickey”) under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”); the Family Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”); and the Occupational Health and Safety Act, 29 U.S.C. § 651 et seq. (“OSHA”). (ECF No. 1.) Williams also filed a motion to proceed in forma pauperis, which was subsequently granted. (ECF Nos. 2, 9.) Though Williams moved to amend his Complaint (ECF No. 11) and was granted leave to amend (ECF No. 12), Williams failed to file an amended complaint. As such, his Complaint filed on May 1st remains the operative Complaint in this case. Pursuant to Administrative Order No. 2013-05, this case has been referred to the United States Magistrate Judge for management and for all pretrial matters for determination and/or report and recommendation as appropriate.
For the reasons discussed below, the Court RECOMMENDS that Williams's OSHA claim against Nickey be dismissed sua sponte, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to state a claim upon which relief may be granted. The Court further ORDERS that process be issued to Nickey on the remaining claims. With respect to Williams's pending motions, the “FOIA Request” motion (ECF No. 13) is DENIED, and the motion for extension of time to complete service of process is DENIED WITHOUT PREJUDICE.
REPORT AND RECOMMENDATION
I. PROPOSED FINDINGS OF FACT
In his Complaint, Williams alleges claims against Nickey for violations of Title VII, FMLA, and OSHA. (ECF No. 1.) With respect to his Title VII claims, he alleges that he was discriminated against on the basis of his race (African American) and that he suffered unequal terms and conditions of his employment, unlawful termination of his employment, and retaliation while working for Nickey. (Id. at 2-6.) Specifically, Williams contends that he was treated differently than his non-African American coworkers, that he was subjected to retaliation after filing a Charge of Discrimination with the EEOC, and that he was eventually terminated on May 12, 2023, as a result of the retaliation and racial discrimination. (Id.)
In addition to his Complaint, Williams submitted a Right to Sue Letter from the Equal Employment Opportunity Commission (“EEOC”) and over 230 pages of additional documents, notes, and other exhibits. (ECF Nos. 1-1 to 1-25.) The Court takes judicial notice of these attachments to the Complaint. See Harper v. Shelby Cnty. Gov't, No. 2:15-cv-2502-STA-cgc, 2016 WL 737947, at *4 (W.D. Tenn. Feb. 23, 2016) (citing Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001)) (“When a Court considers whether dismissal for failure to state a claim is appropriate, the Court may consider the complaint and attached exhibits, as well as any public records, so long as they are referred to in the complaint and are central to the claims contained therein.”).
With respect to his FMLA claims, Williams alleges that Nickey failed to properly notify him about his FMLA eligibility, improperly calculated Williams's FMLA eligibility, and terminated his employment, in violation of his FMLA rights. (Id. at 6-10.) Williams further contends that he suffered unlawful termination and other adverse employment action from Nickey in retaliation for requesting FMLA leave. (Id.)
With respect to his OSHA claim, Williams alleges that he made complaints to the Tennessee Occupational Safety and Health Administration (“TOSHA”) beginning in October 2022 about the safety conditions at Nickey. (Id. at 10-11.) Williams contends that he was terminated on May 12, 2023, by Nickey in retaliation for filing complaints with TOSHA. (Id.)
II. PROPOSED CONLUSIONS OF LAW
A. 28 U.S.C. § 1915(e)(2) Screening
Under Local Rule 4.1(b)(2), the Clerk of the Court will only issue summonses in cases with non-prisoner pro se plaintiffs who are proceeding in forma pauperis at the Court's direction after the Court conducts a screening under 28 U.S.C. § 1915(e)(2)(B). Under that provision, the Court shall dismiss the case at any time if it determines that the action “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” This Report and Recommendation constitutes the Court's screening.
B. Standard of Review for Failure to State a Claim
To determine whether Williams's Complaint states a claim for which relief may be granted, the Court applies the standards under Federal Rule of Civil Procedure 12(b)(6), as articulated in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). “Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (internal citations and quotations omitted). The Court “construes the complaint in a light most favorable to [the] plaintiff” and “accepts all factual allegations as true” to determine whether they plausibly suggest an entitlement to relief. HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 611 (6th Cir. 2012).
Pleadings provide facial plausibility when they present “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. However, “pleadings that . . . are no more than conclusions[] are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679; see also Twombly, 550 U.S. at 555 n.3 (“Rule 8(a)(2) still requires a ‘showing,' rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only ‘fair notice' of the nature of the claim, but also ‘grounds' on which the claim rests.”).
“[A] pleading filed pro se is to be liberally construed and held to less stringent standards than a pleading filed by counsel.” Kondaur Cap. Corp. v. Smith, 802 Fed.Appx. 938, 945 (6th Cir. 2020) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)); see also Vandiver v. Vasbinder, 416 Fed.Appx. 560, 562 (6th Cir. 2011) (finding the less stringent standard applies to pro se complaints, “however inartfully pleaded”). Nevertheless, pro se litigants “are not exempt from the requirements of the Federal Rules of Civil Procedure.” Wright v. Penguin Random House, 783 Fed.Appx. 578, 581 (6th Cir. 2019) (citing Fox v. Mich. State Police Dep't, 173 Fed.Appx. 372, 376 (6th Cir. 2006)); see also Young Bok Song v. Gipson, 423 Fed.Appx. 506, 510 (6th Cir. 2011) (“[W]e decline to affirmatively require courts to ferret out the strongest cause of action on behalf of pro se litigants. Not only would that duty be overly burdensome, but it would also transform the courts from neutral arbiters of disputes into advocates for a particular party. While courts are properly charged with protecting the rights of all who come before it, that responsibility does not encompass advising litigants as to what legal theories they should pursue.”); Brown v. Matauszak, 415 Fed.Appx. 608, 613 (6th Cir. 2011) (“[A] court cannot ‘create a claim which a plaintiff has not spelled out in his pleading.'”) (quoting Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975)). “A pro se complaint must still ‘contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'” Shelby v. Greystar Mgmt. Servs., L.P., No. 2:17-cv-02650-SHM-cgc, 2018 WL 386647, at *2 (W.D. Tenn. Jan. 11, 2018) (quoting Barnett v. Luttrell, 414 F. App'x. 784, 786 (6th Cir. 2011)).
C. Williams's OSHA Claim
Williams's OSHA claim for retaliation based on filing complaints with TOSHA should be dismissed with prejudice for failure to state a claim. “[T]here exists no private cause of action for an alleged OSHA violation.” McCarthy v. G.UB.MK Constructors, No. 3:14-cv-472-TAV-hbg, 2017 WL 1031980, at *6 (E.D. Tenn. Mar. 15, 2017) (quoting Madigan v. Nabisco Brands, Inc., 46 Fed.Appx. 329, 330 (6th Cir. 2002)). “In addition, if plaintiff is attempting to sustain a cause of action for retaliatory discharge under OSHA, the Court finds that such a claim would fail as a matter of law.” Id. (citing Taylor v. Brighton Corp., 616 F.2d 256, 263 (6th Cir. 1980), for the proposition that “there is no private right of action under OSHA whistleblower-protection provisions”); see also Garner v. Fuyao Glass Am., No. 3:21-cv-051, 2023 WL 7018791, at *9 (S.D. Ohio Oct. 25, 2023) (“The anti-retaliation provisions in OSHA are set forth in OSHA § 11(c), 29 U.S.C. § 660(c). Section 11(c) requires that such complaints be filed with OSHA within 30 days of an alleged adverse action. If OSHA finds merit and the case cannot be settled, the Secretary of Labor may file a civil action in federal court against the person who committed the violation. There is no private right of action under Section 11(c) ....”); Wittman v. Durham Sch. Servs/Nat'l Express Corp., No. 20-1888, 2021 WL 4239645, at *2 (6th Cir. Apr. 21, 2021) (“To the extent that [the plaintiff] attempts to base his claims on OSHA, they similarly fail. First, OSHA does not create a private civil remedy. And to the extent that [the plaintiff] wished to assert a retaliation claim under § 660(c), his remedy was to file a complaint with the Secretary of Labor ....”). Because there is no private right of action under OSHA's anti-retaliation provision, Williams's OSHA claim against Nickey should be dismissed with prejudice.
D. Williams's Remaining Claims Against Nickey
When construing the Complaint in a light most favorable to Williams and accepting his allegations as true, the Court finds that he has satisfied the low threshold of alleging facially plausible Title VII and FMLA claims against Nickey for purposes of screening under 28 U.S.C. § 1915(e)(2)(B)(ii). As such, issuance and service of process is ordered, as discussed below.
III. RECOMMENDATION
For the reasons set forth above, it is recommended that Williams's OSHA claim against Nickey be dismissed with prejudice.
ORDER TO ISSUE AND EFFECT SERVICE OF PROCESS
Having found that Williams has sufficiently stated claims under Title VII and FMLA against Nickey for purposes of screening the Complaint, the Court finds that issuance of a summons is appropriate. The Clerk is directed to issue process for Nickey and deliver that process to the U.S. Marshal for service along with a copy of the Complaint and this Report and Recommendation/Order. Service shall be made on Nickey pursuant to Federal Rule of Civil Procedure 4(h). All costs of service shall be advanced by the United States.
Williams shall serve a copy of every document filed in this case on the attorneys for Nickey. Williams shall include a certificate of service with every document filed. He shall familiarize himself with the Federal Rules of Civil Procedure and this Court's Local Rules. Williams shall promptly notify the Clerk of any change of address or extended absence. Failure to comply with these requirements, or any other order of the Court, may result in the dismissal of this case without further notice.
ORDER ON PENDING MOTIONS
On August 12, 2024, Williams filed a motion entitled “FOIA Request” in which he appears to ask seven questions concerning the undersigned. (ECF No. 13.) The Freedom of Information Act (“FOIA”) “obligates agencies of the United States government to make their records ‘promptly available to any person,' except those records specifically exempt from disclosure.” English v. Neil, No. 1:20-cv-884, 2022 WL 159547, at *1 (S.D. Ohio Jan. 18, 2022) (quoting 5 U.S.C. § 552(a)(3)). “The FOIA vests jurisdiction in the district court to enjoin an ‘agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.'” Id. (quoting Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 139 (1980)). However,
the courts of the United States are not agencies for purposes of [FOIA]. Thus, the judicial branch is exempt from FOIA, which also does not apply to court records. Because FOIA exempts the federal courts from its disclosure requirements, it is clear that FOIA was not intended to restrict the federal courts-either by mandating disclosure or by requiring nondisclosure under the FOIA exemptions.15 Tracey Bateman, et al., Federal Procedure, Lawyer's Edition § 38:6 (Nov. 2024 update) (citations omitted); see also Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1177 (6th Cir. 1983) (citing 5 U.S.C. § 551(1)(B)) (“[FOIA] specifically exempts the federal courts from its disclosure requirements.”). As such, Williams's “FOIA Request” motion is DENIED.
On October 21, 2024, Williams filed a motion for extension of time to complete service of process. (ECF No. 15.) Because the Court is ordering service of process by the U.S. Marshal as discussed above, the motion for extension of time to complete service is DENIED WITHOUT PREJUDICE as moot.
SO ORDERED
NOTICE
Within fourteen (14) days after being served with a copy of this report and recommendation disposition, a party may serve and file written objections to the proposed findings and recommendations. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Failure to file objections within fourteen (14) days may constitute forfeiture/waiver of objections, exceptions, and further appeal.