Opinion
Case No. 3:06-cv-253.
December 6, 2006
DECISION AND ORDER DENYING REQUEST TO RECUSE, WITHDRAWING REPORT AND RECOMMENDATIONS, AND ORDERING DEFENDANT TO FILE A REPLY MEMORANDUM
This case is before the Court on Plaintiff's Objections (Doc. No. 10) to the Magistrate Judge's Report and Recommendations (Doc. No. 9) recommending that this case be dismissed for lack of subject matter jurisdiction. The General Order of Reference for the Dayton location of court permits the Magistrate Judge to reconsider decisions or reports and recommendations when objections are filed.
As part of the Objections, Plaintiff states "I believe that there is a conflict of Magistrate Judge Mertz [sic] hearing this case, since he did not believe any of my testimony in the criminal case. I would like to request another Magistrate Judge to hear this case if possible." (Doc. No. 10 at 2.) The Court treat this as a motion to recuse.
It is correct that the undersigned tried United States v. Woolum, 3:04-po-057, which is the criminal case to which Plaintiff refers and in which he was the Defendant. Mr. Woolum was found not guilty on May 13, 2005. This case is related to the prior criminal case in that Plaintiff charges in this case that he was discriminated against on the basis of race and national origin by Paul Bracci, a management-level employee whom Mr. Woolum alleges made slanderous statements about him in the course of the investigation that led to the criminal charges.
A disqualifying prejudice or bias must ordinarily be personal or extrajudicial. United States v. Sammons, 918 F.2d 592 (6th Cir. 1990); Wheeler v. Southland Corp., 875 F.2d 1246, 1250 (6th Cir. 1989). That is, it "must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case." United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S. Ct. 1698, 1710, 16 L. Ed. 2d 778 (1966); see also Youn v. Track, Inc., 324 F.3d 409 (6th Cir. 2003) ; Bradley v. Milliken, 620 F.2d 1143 (6th Cir. 1980). The Supreme Court has written:
The fact that an opinion held by a judge derives from a source outside judicial proceedings is not a necessary condition for `bias and prejudice' recusal, since predispositions developed during the course of a trial will sometimes (albeit rarely) suffice. Nor is it a sufficient condition for `bias and prejudice' recusal, since some opinions acquired outside the context of judicial proceedings (for example, the judge's view of the law acquired in scholarly reading) will not suffice. . . . [J]udicial rulings alone almost never constitute valid basis for a bias or partiality motion. See United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S. Ct. 1698, 16 L. Ed. 2d 778 (1966). . . . Second, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible."Liteky v. United States, 510 U.S. 540, 127 L. Ed. 2d 474, 114 S. Ct. 1147 (1994). The Court went on to hold:
Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display. A judge's ordinary efforts at courtroom administration — even a stern and short-tempered judge's ordinary efforts at courtroom administration — remain immune.Id. In Liteky the Supreme Court approved the common practice of retrial before the same judge after remand. Thus the fact that I tried the criminal case, which was randomly assigned to me as was this case, is not a basis for disqualification.
Mr. Woolum has filed with this Objections a copy of the EEOC right to sue notice which he was sent by the Commission. Plaintiff had not previously furnished this document to the Court, which resulted in the observation in the Report and Recommendations that "The Court also notes that Plaintiff has not provided the Court with any proof he received a right to sue letter from the EEOC." (R R, Doc. No. 9, at 3, n. 1.)
The Right to Sue Notice substantially changes the analysis which must be applied to Defendant's Motion to Dismiss. The Report and Recommendations treated the Complaint as making a claim under the Federal Tort Claims Act for slander by Mr. Bracci and recommended that it be dismissed for lack of subject matter jurisdiction because Mr. Woolum had not pursued an administrative claim prior to filing suit. That analysis is correct as far as any FTCA claim goes.
However, the Objections make it clear that this is a Title VII case. The Court has jurisdiction over such cases under 28 U.S.C. § 1343 and the United States has waived its sovereign immunity to permit suit against it for violations of Title VII. See Brown v. General Services Administration, 425 U.S. 820 (1976). Therefore the recommendation to dismiss the case entirely for lack of subject matter jurisdiction is WITHDRAWN, although any Federal Tort Claims Act allegations should be dismissed on that basis.
Defendant also included in his Motion to Dismiss a branch under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted which was not analyzed in the prior Report and Recommendations because, absent the EEOC right to sue notice, there appeared to be a narrower ground of decision. However, given the right to sue notice, the 12(b)(6) branch of the Motion to Dismiss must be addressed.
"The purpose of a motion under Rule 12(b)(6) is to test the formal sufficiency of the statement of the claim for relief; it is not a procedure for resolving a contest about the facts or merits of the case." Wright Miller, FEDERAL PRACTICE AND PROCEDURE: Civil 2d § 1356 at 294 (1990).
The test for dismissal under Fed.R.Civ.P. 12(b)(6) is a stringent one:
[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.Hartford Fire Ins. Co. v. California, 509 U.S. 764, 811, 113 S. Ct. 2891, 125 L. Ed. 2d 612 (1993), quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957); Neitzke v. Williams, 490 U.S. 319, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989); Hishon v. King Spalding, 467 U.S. 69, 104 S. Ct. 229, 81 L. Ed. 2d 59 (1984); Monette v. Electronic Data Systems, Inc., 90 F.3d 1173, 1189 (6th Cir. 1996). For purposes of the motion to dismiss, the complaint must be construed in the light most favorable to the plaintiff and its allegations taken as true. Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); Westlake v. Lucas, 537 F.2d 857 (6th Cir. 1976); Craighead v. E.F. Hutton Co., 899 F.2d 485 (6th Cir. 1990). To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), "a . . . complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988); followed Allard v. Weitzman (In re DeLorean Motor Co.), 991 F.2d 1236 (6th Cir, 1990); Columbia Natural Resources, Inc. v. Tatum, 58 F.3d 1101 (6th Cir. 1995). The Court "need not accept as true legal conclusions or unwarranted factual inferences. " Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). Bare assertions of legal conclusions are not sufficient. Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 726 (6th Cir. 1996); Sogevalor S.A. v. Penn Central Corp., 771 F. Supp. 890, 893 (S.D. Ohio 1991). It is only well-pleaded facts which are construed liberally in favor of the party opposing the motion to dismiss. Id., citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); see also Wright Miller, FEDERAL PRACTICE AND PROCEDURE: Civil 2d § 1357 at 311-318 (1990).
Defendant asserts that Plaintiff has not stated a claim under Title VII:
In this case, Plaintiff cannot make out a prima facie case because he fails to even allege any personal or direct harm he has suffered with respect to a term, condition, or privilege of employment. He never lost his job, was never disciplined, never reassigned, never denied a promotion or suffered a loss of pay. There is simply no employment decision of which he can complain. Plaintiff is unhappy about the contents of a statement given by his supervisor during a criminal investigation and has filed suit because of it.
(Motion, Doc. No. 6, at 6-7.)
In response to this position, Plaintiff stated in his Motion Not to Dismiss:
I have loss [sic] a tremendous a lot (1) I went from a witness to being falsely crimally [sic] charged of a crime that I did not do. (2) I was intimidated and harassed by the investigators. (3) I was arrested, finger printed, mugg [sic] shot taken. (4) I spent money for attorney fees, lost time off of work. (5) Now I have an arrest record which I have to disclose for current and future employment (6) I fell [sic] that I was passed over for a promotion that Paul Bracci currently holds and that I was qualified for.
(Doc. No. 8 at 2.)
Defendant is correct in asserting that an employee must plead and prove an adverse employment action to recover under Title VII. White v. Burlington Northern Santa Fe Ry. Co., 364 F.3d 789 (6th Cir. 2004) (en banc), reaffirming Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 885 (6th Cir. 1996).
Defendant is accordingly ordered to file a reply memorandum in support of its Motion to Dismiss not later than December 20, 2006, setting forth its position and any relevant precedent as to whether the harms alleged by Mr. Woolum constitute an adverse employment action within the meaning of Title VII.