Mugaher v. Sodecia Corp

          MEMORANDUM AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS WITHOUT PREJUDICE (DOC. 10) AND DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL WITHOUT PREJUDICE (DOC. 12) ^[1]

          AVERN COHN UNITED STATES DISTRICT JUDGE.

         I. Introduction

         This is an employment case. Plaintiff Mohammed F. Mugaher (Mugaher) is proceeding pro se and without payment of the filing fee. Mugaher has sued defendant Sodecia Corp. (Sodecia) claiming that he was discriminated against him in violation of Title VII by paying him less per hour than his co-workers. He says this discrimination was due to his race and national origin.

         Before the Court is Sodecia's motion to dismiss for lack of jurisdiction, improper service, and failure to state a claim. (Doc. 10). Also before the Court is Mugaher's motion for the appointment of counsel. (Doc. 12). Both motions will be denied without prejudice. The reasons follow.

         II. Background

         On January 24, 2017, Mugaher filed a Complaint of Employment Discrimination, using the Title VII form complaint provided by the Clerk's Office. He states the dates of the alleged discriminatory conduct as February 15, 2015 to July 2015. The short narrative statement of his claim is as follows:

I was working with this employer in Sterling Heights then we had a choice to be laid off or transferred to Roseville facility. I wanted to transfer with 5 other workers also we were being paid $11 an hr. I actually made $18 hr. at Sterling Heights. Everyone was paid their regular pay except me. I was paid only $11 an hour.

         Mugaher marked the boxes for "race" and "national origin" as the alleged basis for the discriminatory treatment. Attached to the complaint is Mugaher's right to sue letter from the EEOC. The notice states that the EEOC closed its file because it was not able to conclude there was a violation but made no definitive finding. Notably, the EEOC did not close the file on the grounds that Mugaher was untimely in filing a charge. The right to sue letter is dated October 26, 2017. Mugaher's complaint was filed within 90 days of the right to sue letter.

         III. Motion to Dismiss

         A. Legal Standard

         Under Rule 12(b)(6) a complaint must be dismissed if it does not "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). The plausibility standard demands more than a "sheer possibility that a defendant has acted unlawfully." Id. Rather, for a claim to be facially plausible, a plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949. Rule 12(b)(6) motion tests the sufficiency of a plaintiffs pleading. Fed.R.Civ.P. 12(b)(6). The Court need not accept as true "legal conclusions or unwarranted factual inferences." In Re Packaged Ice Antitrust Litig., 723 F.Supp.2d 987, 1002 (E.D. Mich. 2010) (quoting Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)).

         The Court must read pro se complaints indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept plaintiff's allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992).

         B. Analysis

         Defendant says that Mugaher's complaint must be dismissed (1) for lack of subject matter jurisdiction, (2) for improper ...