Grose v. Lew

ANTHONY T. GROSE, SR., Plaintiff, v. JACOB J. LEW, SECRETARY OF THE TREASURY, Defendant.

Case 2:11-cv-02562-JDT-cgc

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

July 30, 2014

ORDER DENYING PLAINTIFF'S "LEAVE OF COURT—MOTION TO FORWARD UNATTACHED EXHIBITS," PLAINTIFF'S "MOTION FOR A FULL EVIDENTIARY HEARING PRIOR TO GRANTING OF SUMMARY JUDGMENT," DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR ALTERNATIVELY JURY TRIAL, AND PLAINTIFF'S "MOTION LEAVE OF COURT, REQUEST FOR PLAINTIFF TO RESPECTFULLY AMEND AND SUPPLEMENT HIS PLEADINGS, OF PLAINTIFF'S—MOTION FOR SUMMARY JUDGMENT AND/OR ALTERNATIVELY JURY TRIAL"

REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR, ALTERNATIVELY JURY TRIAL AND DEFENDANT'S MOTION TO DISMISS OR, ALTERNATIVELY, MOTION FOR SUMMARY JUDGMENT

Before the Court are the following motions: Plaintiff's "Leave of Court—Motion to Forward Unattached Exhibits" ("Plaintiff's Motion to Forward Exhibits") (Docket Entry "D.E." #74); Plaintiff's "Motion for a Full Evidentiary Hearing Prior to Granting of Summary Judgment" ("Plaintiff's Motion for Evidentiary Hearing") (D.E. #75); Plaintiff's "Motion for Summary Judgment And/Or Alternatively Jury Trial" ("Plaintiff's Motion for Summary Judgment") (D.E. #76); Defendant's Motion to Dismiss or, Alternatively, Motion for Summary Judgment("Defendant's Motion to Dismiss or for Summary Judgment") (D.E. #77); Defendant's Motion to Strike Plaintiff's Motion for Summary Judgment ("Defendant's Motion to Strike") (D.E. #79); and, Plaintiff's "Motion Leave of Court, Request for Plaintiff to Respectfully Amend and Supplement his Pleadings, of Plaintiff's—Motion for Summary Judgment and/or Alternatively Jury Trial" ("Plaintiff's Motion to Amend") (D.E. #82). All pretrial matters in this case within the Magistrate Judge's jurisdiction have been referred for determination pursuant to 28 U.S.C. § 636(b)(1)(A) and all other pretrial matters have been referred for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B)-(C).

For the reasons set forth herein, Plaintiff's Motion to Forward Exhibits (D.E. #74) is DENIED, Plaintiff's Motion for Evidentiary Hearing (D.E. #75) is DENIED, Defendant's Motion to Strike (D.E. #79) is DENIED, and Plaintiff's Motion to Amend (D.E. #82) is DENIED. It is further recommended that Plaintiff's Motion for Summary Judgment (D.E. #76) be DENIED and that Defendant's Motion to Dismiss or for Summary Judgment (D.E. #77) be GRANTED IN PART AND DENIED IN PART.

I. Introduction

On July 5, 2011, Plaintiff Anthony T. Grose, Sr. filed a pro se Complaint alleging claims of employment discrimination in violation of numerous provisions of law against eleven named defendants. (D.E. #1). Plaintiff paid the civil filing fee. (D.E. #2). On December 22, 2011, Plaintiff filed a motion seeking leave to amend his complaint (D.E. #7), which the District Court granted in a January 13, 2012 Order and construed as the Amended Complaint. (D.E. #8). In this same Order, however, the District Court sua sponte dismissed all of Plaintiff's claims in the Amended Complaint with the exception of his Title VII, Age Discrimination in Employment Act("ADEA"), and Rehabilitation Act claims against Defendant Timothy F. Geitner, Secretary of the Treasury, in his official capacity. (D.E. #8).

On February 13, 2012, Plaintiff filed an "Amended Complaint" (D.E. #9) ("Second Amended Complaint"), which the District Court construed as a motion to amend (D.E. #10). As so construed, the District Court granted Plaintiff's motion to amend "[t]o the extent that the complaint merely clarifies and reorganizes the factual allegations and expands the prayer for relief"; however, the District Court denied Plaintiff's motion to amend "to the extent that Plaintiff is attempting to reassert the claims that were dismissed." (D.E. #10). The District Court reiterated that the "only claims in this action are the claims against Defendant Geithner in his official capacity under Title VII, the ADEA, and the Rehabilitation Act." (D.E. #10). The substance of the claims Plaintiff currently seeks to raise arises from allegations made in Equal Employment Opportunity ("EEO") complaints that he was discriminated against on the basis of sex, age, and veteran status as a disabled veteran, and that he was subjected to retaliation for engaging in prior protected activity. (Second Am. Compl. ¶¶ 3, 31).

On October 1, 2013, the District Court entered an Order, inter alia, to modify the docket to substitute Jacob J. Lew, the current Secretary of the Treasury, for Timothy F. Geithner as the sole Defendant pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. Thereafter, the above-mentioned dispositive motions and motions related thereto were filed and are presently before the Court.

II. Proposed Findings of Fact¹

Plaintiff was employed as a contract representative with Defendant. (Def.'s Mot. for Summ. J., Exh. 8 at 201:9-16). Plaintiff and his son, Anthony T. Grose, Jr., both submitted employment applications for what the parties describe as a vacancy opening, although they do not cite evidence thereof. (Pl.'s Mot. for Summ. J., Exhs. 3-4).² On November 8, 2006, Plaintiff filed an EEO complaint under Agency Case Number EEODFS-06-0847-F. (Def.'s Mot. for Summ. J., Exh. 1). On November 30, 2007, Plaintiff's legal counsel withdrew his November 8, 2006 EEO complaint and voluntarily dismissed his cause of action. (Id., Exh. 5).

On August 6, 2007, Plaintiff filed an EEO complaint under Agency Case Number EEODFS-07-1159-M. (Id, Exhs. 2 & 6). On October 7, 2008, Plaintiff's legal counsel withdrew his August 6, 2007 EEO complaint. (Id., Exh. 6).

On January 22, 2008, Plaintiff filed an EEO complaint. (Id., Exh. 3). On March 24, 2011, the Equal Employment Opportunity Commission's ("EEOC") Office of Federal Operations ("OFO") denied reconsideration of its decision in Agency Case Number IRS080166F and advised Plaintiff as follows: "This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriateUnited States District Court within ninety (90) calendar days from the date that you receive this decision." (Id., Exh. 7).³

Plaintiff has additionally filed an EEO complaint under Agency Case Number EEODFS-07-0853; however, he had stated that he does not seek relief in this civil action for allegations made in that EEOC complaint. (Id., Exh. 4 at 5 & Exh. 8 at 29:11-19).

III. Proposed Analysis

A. Defendant's Motion to Dismiss (D.E. #77)

Upon review of all of the motions presently before the Court, it is recommended that Defendant's Motion to Dismiss be considered at the outset, as resolution of this motion may resolve other claims. Specifically, Defendant's Motion to Dismiss asserts that Plaintiff has failed to exhaust his administrative remedies before filing suit in federal court. Plaintiff filed a Response titled "Motions in Opposition Suppression of this Honorable Court to Deny, the Defendant's Document No. [77 AND 77-1]" ("Plaintiff's Response") (D.E. #78) and Defendant filed a Reply to Plaintiff's Response ("Defendant's Reply") (D.E. #80).

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 "byshowing 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 that "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...