Opinion
2:23-cv-02065-SHM-cgc
11-13-2023
VERRINA BEY, Plaintiff, v. RHODES COLLEGE, Defendant.
REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO DISMISS
CHARMIANE G. CLAXTON UNITED STATES MAGISTRATE JUDGE
Before the Court is Defendant Rhodes College's Motion to Dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Docket Entry (“D.E.”) #10). Pursuant to Administrative Order 2013-05, the instant motion has been referred to the United States Magistrate Judge for Report and Recommendation. For the reasons set forth herein, it is RECOMMENDED that Defendant's Motion to Dismiss be GRANTED.
I. Background
On February 9, 2023, Plaintiff Verrina Bey filed a pro se “Complaint for Violation of United States Constitution Amendment I and Amendment XIV and of the Civil Rights Act of 1964 and Violation of Title IX” (“Complaint”). Plaintiff alleges that she was employed by Rhodes, a private college in Memphis, Tennessee. (Compl. ¶¶ 1-2). She alleges that, during her employment tenure, Rhodes began mandating that its employees be vaccinated for COVID-19 and that it did not recognize any religious exemption to the requirement. (Id. ¶ 8). She alleges that vaccination for COVID-19 violates her sincerely held religious beliefs because, upon her information and belief, all available vaccines “employ aborted fetus cell lines in their testing, development, or production.” (Id. ¶¶ 1, 8). She alleges that, ultimately, she was discharged from her employment at Rhodes “without pa[y] and some of her other employment benefits.” (Id. ¶ 14).
Plaintiff explicitly raises three claims: a violation of the First Amendment (“Count I”); a violation of the Fourteenth Amendment (“Count II”); and, discrimination and retaliation pursuant to Title IX. (Compl. ¶¶ 17-48).
Plaintiff states that her Title IX claims are pursuant to Title IX of the Civil Rights Act of 1964; however, those provisions do not relate to any allegations in Plaintiff's Complaint, see 42 U.S.C. § 2000h, et seq. Based upon the nature of Plaintiff's claims arising from the educational context, the Court construes Plaintiff's Title IX claim as being raised pursuant to Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681, et seq. (“Title IX”).
Plaintiff mentions “Title VII” in her Complaint, namely, to allege that Rhodes has more than fifteen employees such that it is “covered by Title VII, which mandates the reasonable accommodation of sincere religious beliefs.” (Compl. ¶1A). Plaintiff does not include a cause of action for violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), (Id. ¶¶ 17-48).
On March 21, 2023, Rhodes filed the instant Motion to Dismiss. (D.E. #10). Rhodes argues that the First and Fourteenth Amendments generally apply only to state actors and do not prohibit any specific private conduct. Rhodes acknowledges that the conduct of a private entity may be “fairly attributable to the state” under certain circumstances but further argues that Plaintiff fails to plead any factual basis that any such conduct occurred here. Rhodes also argues that Plaintiff fails to state a Title IX claim because Title IX governs discrimination on the basis of sex but not on the basis of religion. See 20 U.S.C. § 1681(a). Finally, Rhodes argues that, even under the most liberal pleading standards, Plaintiff has failed to plead a claim pursuant to Title VII.
On April 24, 2023, Plaintiff filed her Responses to Rhodes' Motion to Dismiss. (D.E. #11, #12). Plaintiff argues that this Court must apply the new standard of review for reasonable accommodations of religious exemptions as set forth in April 2023 by the United States Supreme Court in Groff v. DeJoy, 600 U.S. 2279 (2023). Plaintiff further argues that Rhodes filed its Motion to Dismiss when it knew or should have known that the Supreme Court had not yet decided this case. Finally, Plaintiff summarizes a list of other cases that she believes support her claims.
II. Legal Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a claim may be dismissed for failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). In addressing a motion to dismiss under Rule 12(b)(6), the court must construe the complaint in the light most favorable to plaintiff and accept all well-pled factual allegations as true. League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007). A plaintiff can support a claim “by showing any set of facts consistent with the allegations in the complaint.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007). This standard requires more than bare assertions of legal conclusions. Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 361 (6th Cir. 2001). “[A] formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Any claim for relief must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Fed.R.Civ.P. 8(a)(2)). “Specific facts are not necessary; the statement need only ‘give the defendant fair notice of what the ....claim is and the grounds upon which it rests.'” Id. (citing Twombly, 550 U.S. at 555).
Nonetheless, a complaint must contain sufficient facts “state a claim to relief that is plausible on its face'” to survive a motion to dismiss. Twombly, 550 U.S. at 570. “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 US. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). A plaintiff with no facts and “armed with nothing more than conclusions” cannot “unlock the doors of discovery.” Id. at 678-79.
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, 551 U.S. at 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 as true, to state a claim to relief that is plausible on its face.” Barnett v. Luttrell, 414 Fed.Appx. 784, 786 (6th Cir. 2011) (quoting Ashcroft, 556 U.S. at 678) (internal quotations and emphasis omitted). District Courts “have no obligation to act as counsel or paralegal” to pro se litigants. Pliler v. Ford, 542 U.S. 225, 231 (2004). District Courts are also not “required to create” a pro se litigant's claim for him. Payne v. Secretary of Treasury, 73 Fed.Appx. 836, 837 (6th Cir. 2003).
III. Proposed Analysis
A. First and Fourteenth Amendments
“It is undisputed that First and Fourteenth Amendment protections, codified in 42 U.S.C. § 1983, are triggered only in the presence of state action and that a private entity acting on its own cannot deprive a citizen” of these rights. Lansing v. City of Memphis, 202 F.3d 821, 828 (6th Cir. 2000) (citing Flagg Brothers v. Brooks, 436 U.S. 149 (1978); Hudgens v. NLRB, 424 U.S. 507 (1976)). A private entity may only be held to constitutional standards when its actions so approximate state action that they may be fairly attributable to the state. Lansing, 202 F.3d at 828.
The Sixth Circuit recognizes three tests for determining whether a private entity's conduct is so attributable: (1) the public-function test, which requires that the private entity exercise powers that are traditionally exclusively reserved to the state; (2) the state-compulsion test, which requires proof that the state significantly encouraged or coerced the party, either overtly or covertly, to take a particular action so that the choice is really that of the state; and, (3) the nexus test, which requires a sufficiently close relationship between the state and the private entity. Memphis, Tennessee Area Local Amer. Postal Workers Union, AFL-CIO v. City of Memphis, 361 F.3d 898, 905 (6th Cir. 2004) (quoting Wolotsky v. Huhn, 960 F.2d 1331 (6th Cir. 1992)).
With respect to whether Rhodes' vaccine mandate is fairly attributable to the state, Plaintiff cursorily alleges as follows:
• Defendant is an employer who[] has signed off on the laws of being an equal employment opportunity [sic] as required by the 1964 Civil Rights Act and is responsible for the execution of the laws Congress has established governing the Act, the laws of the United States Constitution and Title XI, including the challenged vaccine mandate, and the laws of the land established by the United States Supreme Court and Great State of Tennessee Supreme Court and Tennessee Constitution, and as will [sic] as acting under the color of state laws. (Compl.¶ 2A).
• Defendant's mandatory vaccine policy and/or action or conduct was governing [sic] by the Defendant following the guideline[s] of the CDC. (Id. ¶ 11).
With respect to Plaintiff's general contentions that Rhodes is responsible for complying with federal and state law, this is universally true for all private entities and does not convert Rhodes into a state actor. Ciraci v. v. J.M. Smucker Co., No. 22-3462, 2023 WL 2486075, at *5 (6th Cir. Mar. 14, 2023) (citations omitted). With respect to Plaintiff's more specific contention that Rhodes' implementation of the government-recommended vaccine mandate violates an employee's constitutional rights, the Sixth Circuit has already squarely rejected such a challenge.
In Ciraci, the plaintiff alleged that their employer violated the Free Exercise Clause of the First Amendment by refusing to recognize a religious exemption to the vaccine mandate. The Ciraci court considered each of the three tests for conduct fairly attributable to the state and determined that the employer there did not meet any of these criteria. 2023 WL 2486075 at *3-*5. The same reasoning is applicable here.
Under the public-function test, Plaintiff alleges that Rhodes is a private college, which, by its very nature, is not a government function. Id. at *3. The fact that Rhodes carried out the vaccine mandate in the course of privately educating its enrolled students does not change anything, as it is the employer's underlying service that is considered in this inquiry. Id. Under the state-compulsion test, Plaintiff does not allege that Rhodes is directed by, controlled by, or in partnership with the government such that they are in essence entwined with one another. Id. Under the nexus test, Plaintiff has not alleged that the federal or state government required Rhodes to mandate vaccination. Id. at *4-*5 (citing Blum v. Yaretsky, 457 U.S. 991, 1006-09 (1982)). Accordingly, it is RECOMMENDED that Plaintiff has failed to state a claim for violations of the First and Fourteenth Amendments to the United States Constitution.
B. Title IX
Plaintiff additionally alleges that Rhodes violated Title IX by implementing the vaccine mandate, which resulted in discrimination and retaliation against her. Title IX generally provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or any activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a) (emphasis added). Plaintiff does not allege that she suffered discrimination on the basis of sex; instead, she alleges that she suffered discrimination on the basis of religion, which is not covered by Title IX. Accordingly, it is RECOMMENDED that Plaintiff has failed to state a Title IX claim.
C. Title VII
As set forth above, although Plaintiff mentions Title VII twice in her Complaint, she does not include a Title VII claim. Thus, Plaintiff's reliance on Groff v. DeJoy, 143 S.Ct. 2279 (2023), which pertains to Title VII claims, is misplaced.
IV. Conclusion
For the reasons set forth herein, it is RECOMMENDED that Rhodes' Motion to Dismiss be GRANTED.
ANY OBJECTIONS OR EXCEPTIONS TO THIS REPORT MUST BE FILED WITHIN FOURTEEN (14) DAYS AFTER BEING SERVED WITH A COPY OF THE REPORT. 28 U.S.C. § 636(b)(1)(C). FAILURE TO FILE THEM WITHIN FOURTEEN (14) DAYS MAY CONSTITUTE A WAIVER OF OBJECTIONS, EXCEPTIONS, AND ANY FURTHER APPEAL.