Opinion
No. 1:05-CV-03.
May 22, 2006
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This action, assigned to Hon. Marcia Crone, United States district judge, is referred to the undersigned for pretrial management pursuant to 28 U.S.C. § 636 and Beaumont General Order 03-16.
Bmt. Gen. Order 03-16 refers all pro se civil cases to magistrate judges for pretrial management.
I. NATURE OF SUIT
Plaintiff, Milton Stephenson, is an inmate at the Jefferson County Correctional Facility in Beaumont, Texas. He proceeds pro se and in forma pauperis.On January 4, 2005, while incarcerated, plaintiff filed this action against his former employer, Larry's French Market, a restaurant located in Groves, Texas, and against two individuals, Larry "U.P.", owner of Larry's French Market, and "U.P." Smith, manager of Larry's French Market. Liberally construed, plaintiff claims he was constructively and wrongfully discharged in May, 2003, after he refused to work in unsafe conditions which were imposed on him and a coworker in retaliation for being five or ten minutes late for work.
According to the complaint, plaintiff was hired as a dishwasher at the restaurant on or about April or May of 2003. Plaintiff alleges that a week later he and a coworker were late to work. Defendant Smith, acting as manager of Larry's French Market, punished them for their tardiness and ordered them to remove boxes of meat from a freezer box. Plaintiff claims that defendants failed to provide him with proper equipment (gloves, jacket, boots) to work in the freezer box. The unsafe working conditions quickly caused his hands to become "red and numb" from lifting cold, "sticky freezing boxes." Pl.'s Comp. at 3 (Docket No. 1). Soon after work commenced, plaintiff refused to continue working in the freezer box, and as a consequence, he was fired.
Plaintiff seeks to recover damages in the amount of $50,000. Although plaintiff does not articulate a specific basis for this court's jurisdiction, liberal construction of the complaint suggests that plaintiff invokes federal question jurisdic-tion under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e — 2000e-17 (Title VII).
Plaintiff's complaint alleges that prior to filing this action, he filed a "discrimination" complaint first with the Texas Workforce Commission and then with the Equal Employment Opportunity Commission. See Pl.'s Compl. at 3; Pl.'s Am. Compl. at 2 (Docket No. 19).
II. JURISDICTION
Although jurisdictional facts are nebulous, the plaintiff carries his initial burden of establishing subject-matter jurisdiction notwithstanding that this court obviously cannot order prospective equitable relief (reinstatement) for an incarcerated plaintiff. An incarcerated plaintiff may bring a Title VII action as long as the plaintiff's relationship with the defendant arises from an employee-employer relationship, not a prison-inmate relationship. See Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991); see, also, Williams v. Leading Edge Aviation, No. 2:04-CV-0156, 2004 WL 1656636 (N.D. Tex. 2004) (noting that a prisoner proceeding pro se and in forma pauperis has standing to file suit under Title VII against a preincarceration employer).Second, plaintiff states under the penalties of perjury and of making a false statement that before filing this action, he first submitted a timely handwritten complaint to the Equal Employment Opportunity Commission on September 23, 2003, and subsequently received correspondence from the Commission informing him that he had a right to file suit. Accepting these verified assertions as true, plaintiff has satisfied jurisdictional prerequisites for bringing a private cause of action to enforce provisions of Title VII.
Aggrieved employees must exhaust administrative remedies under Title VII before filing a claim in federal court. Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir. 2002);Barnes v. Levitt, 118 F.3d 404, 408 (5th Cir. 1997); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798 (1973). Exhaustion occurs when plaintiff files a timely charge with the EEOC and receives a notice of "suit rights." Taylor, 296 F.3d at 379 (citing Dao v. Auchan Hypermarket, 96 F.3d 787, 788-89 (5th Cir. 1996)). Exhaustion of administrative remedies is a jurisdictional prerequisite for a viable private cause of action.McDonnell Douglas Corp., 411 U.S. at 798; see also Randel v. U.S. Dept. Of Navy, 157 F.3d 392, 395 (5th Cir. 1998);Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995); Tolbert v. United States of America, 916 F.2d 245, 247 (5th Cir. 1990).
III. DISCUSSION
Although the court's jurisdiction appears intact, this action nevertheless should be dismissed summarily. An in forma pauperis proceeding may be dismissed if it: (1) is frivolous or malicious, (2) fails to state a claim upon which relief may be granted or (3) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B) (2006). A complaint is frivolous where it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989);Hicks v. Garner, 69 F.3d 22, 24-25 (5th Cir. 1995). A complaint fails to state a claim upon which relief can be granted when "it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Lowrey v. Texas AM University System, 117 F.3d 242, 247 (5th Cir. 1997). When a complaint presents an arguable question of law which is correctly resolved against the plaintiff, dismissal for failure to state a claim is appropriate, "but dismissal on the basis of frivolousness is not." Neitzke, 490 U.S. at 320. As discussed below, this case is frivolous in part, and otherwise fails to state a claim upon which relief can be granted.First, Title VII only authorizes private suits against "employers." 42 U.S.C. § 2000e(b) (2003); Indest v. Freeman Decorating, Inc., 164 F.3d 258, 262 (5th Cir. 1999). While Title VII defines the term employer to include "any agent" of an employer, this circuit does not interpret that statute as imposing individual liability. Indest, 164 F.3d at 262; see, also, Grant v. Lone Star, 21 F.3d 649, 652 (5th Cir. 1994). The circuit's rationale is that Congress's intent was to create respondeat superior liability under Title VII and holding otherwise would allow double recovery for the same act.Indest, 164 F.3d at 262. Here, the restaurant manager, "U.P." Smith, is an agent of defendant Larry's French Market, not plaintiff's employer for purposes of Title VII. Thus, plaintiff's suit against defendant Smith has no basis in either law or fact, and should be dismissed as frivolous.
"Employer" under Title VII means "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person." 42 U.S.C. § 2000e(b) (2003).
Second, it is clear that plaintiff fails to allege a cognizable Title VII claim in any event. Title VII does not guarantee employment to everyone, nor did Congress authorize federal courts to address and remedy every conceivable form of unfair, arbitrary, petty or even unlawful action by employers against prospective, existing or former employees. Rather, Title VII was enacted to assure equality of employment opportunities and to eliminate discriminatory practices and devices that foster stratified job environments to the disadvantage of minority citizens. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-01 (1973). Title VII provides a legal remedy only for limited and specific forms of invidious discrimination based on race, color, religion, sex or national origin. Fitzgerald v. Secretary, U.S. Dep't of Veterans Affairs, 121 F.3d 203, 206 (5th Cir. 1997). Therefore, necessary elements of a Title VII claim are that an individual be a member of a protected class and that the individual be treated differently because of his membership in a protected class. Okoye v. The Univ. of Texas Houston Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001).
Neither plaintiff's complaint in this action nor his purported complaint submitted to the Equal Employment Opportunity Commission alleges that he is a member of any protected class. Moreover, neither complaint alleges facts that if proved would show that defendants' employment practices unlawfully discriminated against him based on race, color, religion, sex or national origin. Even when construed liberally, plaintiff's complaint at best alleges that he was subjected to unfair, arbitrary, petty, and even dangerous action while employed. But it does not suggest that such action was the sort declared unlawful in Title VII.
IV. RECOMMENDATION
This action should be dismissed as frivolous and for failure to state a claim upon which relief can be granted pursuant to Title VII and Title 28, United States Code, Section 1915(e)(2)(B).
V. OBJECTIONS
Objections must be (1) specific, (2) in writing, and (3) served and filed within ten days after being served with a copy of this report. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72(b).
A party's failure to object bars that party from (1) entitlement to de novo review by a district judge of proposed findings and recommendations, Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988), and (2) appellate review, except on grounds of plain error, of unobjected-to factual findings and legal conclusions accepted by the district court, Douglass v. United Serv. Auto. Ass'n., 79 F.3d 1415, (5th Cir. 1996) (en banc).