United States District Court, E.D. Kentucky, Northern Division, Covington
LUNNIE WESLEY HARRIS, JR. Plaintiff,
SARA LEE/HILLSHIRE BRANDS CORP. Defendant.
MEMORANDUM OPINION AND ORDER
DAVID L. BUNNING, District Judge.
Plaintiff Lunnie Wesley Harris, Jr. Brings this pro se employment discrimination action against his former employer, Defendant Sara Lee/Hillshire Brands Corporation, alleging that he was fired for calling his former supervisor a racist. Plaintiff asserts that Defendant violated his Fourteenth Amendment rights, as well as Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq, the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq ("the ADEA"), and the Genetic Information Nondisclosure Act of 2008, 42 U.S.C. § 2000ff ("GINA"). Defendant has moved to dismiss Plaintiff's complaint on a number of grounds (Doc. # 9). Defendant's motion has been fully briefed (Docs. # 11, 12) and is now ripe for review. For the following reasons, the Court agrees that Plaintiff's Complaint shall be dismissed.
II. Factual and Procedural Background
According to Plaintiff's complaint, he was employed by Defendant as a floor runner and was responsible for the quality of meats produced by Defendant. Plaintiff became embroiled in a dispute with his new supervisor, Jim Brooks, regarding the proper procedures for maintaining the quality of the meats. During a meeting with Defendant's Human Resources department on August 2, 2012, Plaintiff accused Brooks of being a racist, and complained about an employee's vehicle that had a Confederate flag engraved in its windshield. On August 10, 2012, Defendant terminated Plaintiff's employment despite the fact that Defendant was still investigating Plaintiff's complaint of "racial issues." (Doc. # 1 at 8).
As a result of the foregoing, Plaintiff filed a suit in this Court on December 4, 2012, alleging violations of the Fourteenth Amendment, Title VII, the ADEA, and GINA. ( See 2:12-cv-240-DLB). Upon an initial screening, the undersigned dismissed that suit without prejudice. (Doc. # 6 in 2:12-cv-240-DLB). The Court held that Plaintiff could not proceed on his statutory claims because he failed to attach a right-to-sue letter from the Equal Employment Opportunities Commission ("EEOC") to his Complaint, or otherwise allege that he had received such a letter. Additionally, the Court held that Plaintiff could not pursue a claim against his employer for violations of the Fourteenth Amendment because that Amendment does not apply to private employers. ( Id. at 6).
This is Plaintiff's second suit against his employer based on his allegedly unlawful termination. He has attempted to cure the defects of his first suit by attaching various documents to his Complaint, most notably an EEOC intake questionnaire (Doc. # 1-3) and an EEOC dismissal and right-to-sue letter dated August 31, 2012 (Doc. # 1-4). The EEOC intake questionnaire indicates that Plaintiff complained that he was subject to discrimination based on his race and national origin; he did not check the boxes for discrimination based on sex, age, disability, genetic testing, or family medical history. (Doc. # 1-3 at 2). Moreover, the factual allegations in Plaintiff's intake questionnaire suggest that he was discriminated against based solely on race and national origin; they make no mention of age or genetic information.
Defendant has moved to dismiss Plaintiff's Complaint on four grounds. (Doc. # 9). First, Defendant argues that Plaintiff's Fourteenth Amendment claim fails as a matter of law because the Fourteenth Amendment does not apply to private employers. Second, Defendant contends that Plaintiff's Title VII, ADEA, and GINA claims are untimely because they were filed outside of the ninety-day statute of limitations. Third, Defendant asserts that Plaintiff failed to exhaust his administrative remedies on his ADEA and GINA claims because he did not first bring these claims before the EEOC. Finally, Defendant believes that Defendant has failed to state a claim for violations of the ADEA or GINA because the Complaint is devoid of any facts that suggest he was terminated based on his age or genetic information.
As explained more fully herein, the Court agrees that Plaintiff filed his Title VII, ADEA, and GINA claims outside the applicable statute of limitations, otherwise failed to exhaust his administrative remedies on his ADEA and GINA claims, and cannot assert a claim against his employer for violating his Fourteenth Amendment rights. Each of these findings compel the Court to dismiss this action. Therefore, the Court need not address whether Plaintiff has pled sufficient facts to support a claim under the ADEA or GINA.
A. Pro Se Litigants
Plaintiff argues that the Court must construe his pleadings liberally and not hold his procedural failures against him. There is some truth to the former assertion, not the latter. "A document filed pro se is to be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citations omitted). A pro se complaint "can only be dismissed for failure to state a claim if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Estelle v. Gamble, 429 U.S. 97, 106 (1976). This standard, though, does not require the Court to conjure up facts that were not pled in the complaint. McFadden v. Lucas, 713 F.2d 143, 147, n. 4 (5th Cir. 1983). Furthermore, "federal courts have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel." Branham v. Micro Computer Analysts, 350 F.Appx. 35, 38 (6th Cir. 2009) (internal citations omitted).
B. Fourteenth Amendment Claim
In Plaintiff's previous suit against Defendant on the same set of facts, he alleged that Defendant violated his Fourteenth Amendment rights. The undersigned held that the Fourteenth Amendment claim must be dismissed "because the Fourteenth Amendment does not apply to private employers." (Doc. # 6 at 3 in 2:12-cv-240) (citing Regents of University of California v. Bakke, 438 U.S. 265, 418 n. 20 (1978) (Stevens, J., concurring in the judgment ...