Ewen v. Paula Deen's Family Kitchen

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JOSHUA ALLEN EWEN, Plaintiff, v. PAULA DEEN'S FAMILY KITCHEN, Defendant.

No. 2:23-CV-145

United States District Court, E.D. Tennessee, Greeneville Division

January 9, 2024

REPORT AND RECOMMENDATION

Cynthia Richardson Wyrick United States Magistrate Judge

Plaintiff Joshua Allen Ewen filed a pro se Complaint [Doc. 2] and an accompanying Motion [Doc. 1] in which he asked to proceed in forma pauperis. On November 8, 2023, this Court granted Plaintiff's request to proceed in forma pauperis. [Doc. 4]. The Court then undertook the screening process required when litigants are granted permission to proceed without prepayment of fees. In doing so, the Court noted that Plaintiff did not provide a sufficient factual basis to support any of his claims but observed that Plaintiff could potentially set forth a colorable discrimination claim against the defendants if he provided a more fully developed factual basis.

Given that Plaintiff was representing himself, the Court provided him with an opportunity to file an amended complaint to address the noted deficiencies in his Complaint. [Doc. 4, p 4]. Plaintiff then filed multiple notices including additional facts [Docs. 5-10] and an Amended Complaint [Doc 11]. Though Plaintiff filed the notices before filing his Amended Complaint, it appears that he intended for the notices to be included as part of his allegations against Defendants. Because Plaintiff is proceeding pro se, the Court will consider all of these filings in screening Plaintiff's Amended Complaint. This matter is now ripe for review.

I. FACTUAL ALLEGATIONS

In this action, Plaintiff alleges that he was the victim of racial, gender, and religious discrimination in violation of Title VII of the Civil Rights Act of 1964 and that he was a victim of defamation. Plaintiff's claims arise from his employment with Defendants Paula Deen's Family Kitchen and Hey Ya'll [sic.] LLC. Paula Deen's Family Kitchen (“PDFK”) is a restaurant in Pigeon Forge, Tennessee where Plaintiff worked as a server and trainer. [Doc. 8, p. 3, 5].

Plaintiff contends that he is of African and Native American descent and practices the “Chaos” and “Paganism-Hoodoo” religions. [Doc. 6, p. 1, 3; Doc. 9, p. 2]. As part of his religious practice, he wears facial markings such as tattoos. [Doc. 6, p. 1; Doc. 11, p. 1]. Plaintiff alleges that he was told to remove his facial markings on multiple occasions by his managers^[1] at the restaurant pursuant to a company tattoo policy. On April 25, 2023, Plaintiff alleges that Mark Prior told him he “was not permitted to apply visible tattoos or any [religious] expression or [he] would be prevented from working or remove [his] groomings.” [Doc. 11, p. 1]. Plaintiff contends that he had advised Mr. Prior that he would be wearing facial markings as part of his religious practice. [Doc, 6, p. 1]. On April 27, 2023, Plaintiff alleges that Cathy Nichols asked him to remove a mark from his face or he “would not be permitted to work for the day.” [Doc. 11, p. 1]. On April 28, 2023, Plaintiff alleges that Mr. Prior again told Plaintiff he could not wear visible tattoos but that he could work in a position where he would not face customers if he wore visible tattoos. Id. Plaintiff further alleges that on the same day, Mr. Prior told Plaintiff he must agree not to wear visible tattoos unless they matched the color of his skin. Id.

Then, on May 1, 2023, Plaintiff alleges that he told John Belcastro he felt he was being discriminated against. Id. at 2. On May 2, 2023, Plaintiff states that Marty Ambester and Mr. Prior told him to file for an accommodation in order display tattoos based on his religion, but that on the same day the managers informed Plaintiff that he would be terminated for insubordination and failure to engage. Id. After Plaintiff filed a claim with the Equal Employment Opportunity Commission (“E.E.O.C.”), Defendants filed a response, which Plaintiff argues was defamatory because “[t]he statement, hackled my religion, [labeled] my culture erratic behavior, and [falsely] accused me of being aggressive, while I was in distress of [harassment].” Id.; see also [Docs. 5, 6]. Plaintiff now requests punitive damages to compensate him for these claims.^[2]

II. ANALYSIS

a. Leniency afforded to pro se litigants

When a Plaintiff is proceeding in forma pauperis, applicable law directs the district court to dismiss the complaint if it is frivolous or fails to state a claim upon which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(i) and (ii); see also Neitzke, 490 U.S. 319. In undertaking the present review, the Court will liberally construe Plaintiff's claims because he is proceeding pro se. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Still, even under this lenient standard, a claim will be dismissed if it is frivolous, meaning it lacks “‘an arguable basis either in law or fact.'” Brand v. Motley, 526 F.3d 921, 923 (6th Cir. 2008) (quoting Neitzke, 490 U.S. at 325). For a complaint to survive the §1915 screening process, it “must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.” Zelesnik v. GE Healthcare, No. 1:18CV2443, 2018 WL 5808749, at *1 (N.D. Ohio Nov. 6, 2018) (quoting Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010)). The Court is not permitted to “conjure allegations on a litigant's behalf” to help a pro se litigant survive the §1915 screening process. Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004). This limitation helps courts avoid “‘transform[ing] . . . from their legitimate advisory role to the improper role of an advocate seeking out the strongest arguments and most successful strategies....'” Profitt v. Divine Sol., No. 3:10-CV-311-S, 2010 WL 2203310, at *1 (W.D. Ky. May 27, 2010) (quoting Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985)).

b. Racial Discrimination Claim

Plaintiff contends that Defendants discriminated against him on the basis of his race, but he does not provide facts to support the claim. “To establish a prima facie claim of racial discrimination under Title VII, a plaintiff must show that: 1) he is a member of a protected class; 2) was qualified for the job; 3) he suffered an adverse employment decision; and 4) was replaced by a person outside the protected class or treated differently than similarly situated non-protected employees.” Newman v. Fed. Exp. Corp., 266 F.3d 401, 406 (6th Cir. 2001) (citing Talley v. Bravo Pitino Restaurant, 61 F.3d 1241, 1246 (6th Cir. 1995)). In this case, Plaintiff alleges that he is of African and Native American descent and that his employer required him to wear facial markings that matched the color of his skin tone but nothing more. It appears that the allegations regarding the facial marking are related to his religious discrimination claim and not his race. These bare bones allegations fail to meet the requirements set forth above. Given that Plaintiff has not provided a sufficient factual basis for his claim of racial discrimination, the Court must recommend dismissal of Plaintiff's racial discrimination claim.

c. Gender Discrimination Claim

Plaintiff further alleges that he has been the victim of gender discrimination, but again he offers no facts to support this claim. “To establish a prima facie case of sex discrimination under Title VII, a plaintiff must show that (1) he is a member of a protected class; (2) he was qualified for the job; (3) he experienced an adverse employment action; and (4) he was replaced by someone outside of the protected class.” Watts v. Lyon Cnty. Ambulance Serv., 23 F.Supp.3d 792, 807 (W.D. Ky. 2014), aff'd, 597 Fed.Appx. 858 (6th Cir. 2015) (internal citations omitted). When the plaintiff is a male, a “reverse-sex discrimination” scheme applies whereby the plaintiff must show discrimination against the majority. Id. While Plaintiff does not allege his gender, a document authored by his employer indicates that he is a male. See [Doc. 8]. However, Plaintiff provides no facts whatsoever to indicate that his gender factored into Defendant's decision to terminate his employment or take any other employment-related action against him. Given the lack of a factual basis for Plaintiff's gender discrimination claim, the Court must recommend that it be dismissed.

d. Religious Discrimination Claim

The primary focus of Plaintiff's allegations against Defendant in this case is that the company discriminated against him based on his religious beliefs. To establish a prima facie case of religious discrimination, Plaintiff must show that “(1) he holds a sincere religious belief that conflicts with an employment requirement; (2) he has informed the employer about the conflict; and (3) he was discharged or disciplined for failing to comply with the conflicting employment requirement.” Reed v. Int'l Union, United Auto., Aerospace & Agr. Implement Workers of Am., 569 F.3d 576 (6th Cir. 2009) (quoting Tepper v. Potter, 505 F.3d 508, 514 (6th Cir. 2007)).

In this case, the Court finds that after considering his filings collectively, Plaintiff has met the first element. While in his Amended Complaint Plaintiff does not allege that he holds a sincere religious belief that conflicts with Defendant's policy against tattoos, he filed multiple documents in addition to the Amended Complaint which state that he was wearing the tattoos as part of the “Chaos” religion, which appears to be a part of a tribal religion, and as part of the “Paganism- Hoodoo” religion. [Doc. 6, p. 1; Doc. 9, p. 2]. The Court is not permitted to question the sincerity of Plaintiff's stated beliefs at this juncture. Yaacov v. Mohr, No. 16-4361, 2018 WL 6333604 (6th Cir. June 5, 2018) (finding that the district court erred in rejecting plaintiff's allegations as to his...