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Myers v. Darden Restaurant Group

United States District Court, Eastern District of Michigan, Southern Division

February 13, 2015

Alan L. Myers, Plaintiff,
v.
Darden Restaurant Group, Defendant.

ORDER REGARDING VARIOUS MOTIONS

Denise Page Hood, United States District Judge

Before the Court is Plaintiff Alan Myer’s Motion requesting appointment of counsel [Docket No. 3, filed August 26, 2014], Motion for leave to amend complaint [Docket No. 12, filed October 7, 2014], and Motion for Summary Judgment [Docket No. 13, filed October 7, 2014]. Also before the Court is Defendant Darden Restaurant Group’s Motion to Compel Arbitration and Dismiss Plaintiff's Complaint [Docket No. 8, filed October 2, 2014].

I. BACKGROUND

Plaintiff alleges in his complaint as follows: While Plaintiff was employed by the Olive Garden as a chef, he was verbally harassed by four employees. The employees were Kyle, Richard, Terry, and Drew. Plaintiff identifies as a bisexual black male. On January 10, 2014, when Plaintiff removed his coat from a rack in the employee coatroom, he found a pair of women’s underpants on the hook beneath where his coat was placed.

Plaintiff filed a grievance with General Manager Seth Petty after being sexually harassed three times. On January 14, 2014, Manager Fredrica Stephen contacted Plaintiff to notify him that he would be permitted to take “stress leave” with pay. Petty investigated the women’s underpants incident for two weeks and determined that the women’s underpants were placed by another employee, but could not determine which employee. Petty gave Plaintiff the option to return to work or to remain on “stress leave” without pay until Plaintiff could find another Olive Garden to transfer to.

Plaintiff did not feel safe working at the same branch. Plaintiff filed a police report and a grievance with the Olive Garden’s Corporate Office. The Corporate Office suggested the same as Petty- Plaintiff could return to work or stay on leave without pay. When Plaintiff filed a complaint with the Equal Employment Opportunity Commission, his pay stopped and he was told he would be transferred to the Livonia branch, but the transfer is still pending.

Plaintiff claims Defendant violated of Title VII of the Civil Rights Act of 1964 by failing to address sexual harassment and race discrimination, creating a hostile work environment, and retaliating.

II. ANALYSIS

a. Plaintiff’s Motion Requesting Appointment of Counsel

This matter comes before the Court on Plaintiff’s Request for Appointment of Counsel, filed August 26, 2014 [Docket No. 3]. 28 U.S.C. § 1915 governs in forma pauperis proceedings. “[A]ppointment of counsel in a civil case is . . . a matter within the discretion of the court. It is a privilege and not a right.” Childs v. Pelligrin, 822 F.2d 1382, 1384 (6th Cir. 1987) (quoting United States v. Madden, 352 F.2d 792, 793 (9th Cir. 1965)). Plaintiff has demonstrated an ability to communicate with the Court. Therefore, the Court will not appoint counsel at this stage of the proceedings.

b. Defendant’s Motion to Compel Arbitration and Dismiss Plaintiff's Complaint

Defendants filed a Motion to Compel Arbitration and Dismiss Plaintiff's Complaint on October 2, 2014 [Docket No. 8]. The Motion was referred to Magistrate Judge R. Steven Whalen. Magistrate Judge Whalen ordered the Plaintiff to respond to the Motion by October 30, 2014. Since then, Plaintiff has failed to respond and this Court rescinded the Order of Reference to Magistrate Judge Whalen on October 9, 2014 [Docket No. 15].

Plaintiff argues in the Motion for Summary Judgment that Defendant’s failure to participate in the EEOC mediation process and Defendant’s silence on the constitutional violations is an admission of guilt. Defendant is not required to participate in mediation. The Defendant has not admitted guilt by remaining silent on the violations. Instead, Defendant properly filed a Motion to Compel Arbitration and Dismiss Plaintiff’s Complaint on October 2, 2014, in lieu of an Answer, which filing was within the allotted time. Fed.R.Civ.P. 12(a)(1)(A)(i).

After filing a Motion to Dismiss, Defendant is not required to file an answer until 14 days after notice of the court’s action. Fed.R.Civ.P. 12(a)(4)(A). In the answer, Defendant may admit ...


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