United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING DEFENDANT RACHEL ELMORE’S MOTION
TO DISMISS [DKT. NO.13] AND RESOLVING
VARIOUS OTHER MOTIONS [DKT. NOS. 20, 26, 27, 28]
DENISE
PAGE HOOD UNITED STATES DISTRICT JUDGE.
I.
INTRODUCTION
On July
20, 2018, pro se Plaintiff filed this cause of
action, and his application to proceed in forma pauperis was
granted. Plaintiff alleges that he was employed by Defendant
Valvoline Instant Oil Change (“Valvoline) from August
16, 2017 until being terminated on or about January 4, 2018.
Plaintiff has filed claims against Valvoline and the other
Defendants (Ronald Smith, Rachel Elmore, and Alexis
Kasacavage) for: (1) Breach of Contract - Federal
Laws/Constitution; (2) Fraud; (3) Defamation; (4) Intentional
Infliction of Emotional Distress; and (5) Harassment. [Dkt.
No. 1] Plaintiff’s Complaint also contains a paragraph
alleging that he was discriminated against in his employment
pursuant to: (a) Title VII of the Civil Rights Act, (b) Title
18, Part 1, Chapter 13 §§ 241, 242, and 245 of the
United States Codes of Law; (c) Executive Order No. 13798
§ 4 and 82 Fed. Reg. 21675; (d) the Universal
Declaration of Human Rights Articles 1 and 2; (e) the
Declaration of the Rights of Indigenous Peoples Articles 2
and 3; and (f) the Treaty of Peace and Friendship of 1787 and
1836. Id. at ¶7.
On
September 13, 2018, Defendant Rachel Elmore
(“Elmore”) filed a Motion to Dismiss [Dkt. No.
13], which has been fully briefed. On September 18, 2018,
Clerk’s Entries of Default were entered against Alexis
Kasacavage (“Kasacavage”) and Valvoline. [Dkt.
Nos. 16, 17] On September 27, 2018, Kasacavage and Valvoline
filed a Motion to Set Aside Clerk’s Entries of Default
[Dkt. No. 20], which has been fully briefed. On October 12,
2018, Plaintiff filed “Plaintiff’s Motion to
Strike Defendant Rachel Elmore’s Motion to
Dismiss.” [Dkt. No. 26] and a Motion for Alternate
Service on Defendant Ronald Smith (“Smith”). On
October 18, 2018, Plaintiff filed a Motion to Sanction
Kasacavage and Defendants’ attorney, Andrey Tomkiw, for
filing the Motion to Set Aside Clerk’s Entries of
Default [Dkt. No. 28], to which Kasacavage and Tomkiw filed a
response.
II.
BACKGROUND
Plaintiff
was hired by Valvoline as a Technician-In-Training on August
16, 2017. He was promoted to a Certified Technician on
October 16, 2017. On November 7, 2017, Plaintiff made a
Religious Accommodation Request, seeking to have Fridays and
Sundays off for religious purposes (because he is a
“Hebrew Moslem”). Elmore responded to Plaintiff
by offering to give him Fridays off and have him work on
Sundays only when asked. Plaintiff indicates that, after
being subjected to repeated problems and attacks from Smith
(Plaintiff’s site supervisor), Plaintiff submitted a
written complaint to Elmore on December 19, 2017, asserting
that Smith had created a hostile work environment for
Plaintiff. On December 20, 2017, Plaintiff and Elmore had a
telephone conversation regarding the problems and attacks
involving Smith. Plaintiff states that Elmore was supposed to
follow up with Plaintiff by the end of the business day on
December 20, 2017, but she did not contact Plaintiff until
January 4, 2018 (even though he had called her on December
28, 2017 and January 3, 2018). When Elmore called Plaintiff
on January 4, 2018, Elmore terminated Plaintiff for
misconduct and mentioned a suspension about which Plaintiff
was unaware.
Plaintiff
claims he also asked Elmore for his employee file and other
materials related to his employment by Valvoline, including
by written request on December 20, 2017, and by fax and
certified mail on January 8, 2018. Plaintiff contends he has
not received any of the requested materials. In his
Complaint, Plaintiff asserted claims against Elmore for: (a)
Breach of Contract - Federal Laws/Constitution; (b) Fraud;
and (c) Intentional Infliction of Emotional Distress.
III.
APPLICABLE LAW
A.
Rule 12(b)(6)
A Rule
12(b)(6) motion to dismiss tests the legal sufficiency of the
plaintiff’s complaint. Accepting all factual
allegations as true, the court will review the complaint in
the light most favorable to the plaintiff. Eidson v.
Tennessee Dep’t of Children’s Servs., 510
F.3d 631, 634 (6th Cir. 2007). As a general rule, to survive
a motion to dismiss, the complaint must state sufficient
“facts to state a claim to relief that is plausible on
its face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). The complaint must demonstrate more
than a sheer possibility that the defendant’s conduct
was unlawful. Id. at 556. Claims comprised of
“labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.”
Id. at 555. Rather, “[a] claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
B.
Rule 55
Pursuant
to Federal Rules of Civil Procedure 55(c), an entry of
default may be set aside only upon the showing of: (1)
mistake, inadvertence, or excusable neglect; (2) newly
discovered evidence; (3) fraud, misrepresentation or other
misconduct of the adverse party; (4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged;
or (6) any other reason justifying relief from judgment.
See also Burrell v. Henderson, 434 F.3d 826 (6th
Cir. 2006); United Coin Meter Co. v. Seaboard Coastline
R.R., 705 F.2d 839 (6th Cir. 1983).
IV.
ANALYSIS
A.
Elmore’s Motion to Dismiss
Plaintiff’s
first claim against Elmore is rooted in the protections
afforded by Title VII. As Elmore argues, the Sixth Circuit
has unambiguously held that “an individual
employee/supervisor, who does not otherwise qualify as an
‘employer, ’ may not be held personally liable
under Title VII.” Wathen v. Gen. Elec. Co.,
115 F.3d 400, 404-05 (6th Cir. 1997) (citations omitted),
abrogated in part on other grounds by Burlington Indus.
v. Ellerth, 524 U.S. 742 (1998), and Faragher v.
City of Boca Raton, 524 U.S. 775 (1998). See also
Cotton v. Beaumont Health, No. 12232, 2017 U.S. Dist.
LEXIS 140571, at *13 (E.D. Mich. Aug. 31, 2017) (citing
Wathen, 115 F.3d at 404-06); Pettinato v. Prof.
Parent Care, No. 16-14419, 2017 U.S. Dist. LEXIS 105606,
at **9-10 (E.D. Mich. July 10, 2017) (citing Wathen,
115 F.3d at 405-06) (“the legislative history and the
case law support the conclusion that Congress did not intend
individuals to face liability under the definition of
‘employer’ it selected for Title VII” and
that “an individual is not liable under Title
VII” and “Wathen is a published opinion
and thus our Court is bound to its decision.”).
Plaintiff
does not address the Wathen holding but argues that
Elmore is an agent of Valvoline. Plaintiff relies on several
cases from other Circuits, all of which were decided prior to
Wathen. See Sauers v. Salt Lake Cnty., 1
F.3d 1122, 1125 (10th Cir. 1993); Paroline v. Unisys
Corp. 89 F.2d 100, 104 (4th Cir. 1989); Hamilton v.
Rodgers, 791 F.2d 439, 443 (5th Cir. 1986); York v.
Tennessee Crushed Stone Ass’n, 684 F.2d 360, 362
(6th Cir. 1982) (dicta); Goodman v. Bd. of Trustees of
Comm. Coll. Distr. 524, 498 F.Supp. 1329, 1332 (N.D.
Ill. 1980).
Plaintiff
has not alleged that Elmore was anything more than an
employee of Valvoline who worked in the company’s
Employee Relations Department. As such, Elmore does not meet
the Title VII definition of “employer, ” which is
“a person engaged in an industry affecting commerce who
has fifteen or more employees for each working day in each of
twenty or more calendar weeks in the current or preceding
calendar year, and any agent of such person . . .”
Plaintiff’s reliance on Elmore being an
“agent” of Valvoline is not supported by case law
in the Sixth Circuit, as reflected in the recent decision in
Pettinato, where the court relied on Wathen
in rejecting the proposition that an employer’s agent
is a “statutory employer” for purposes of
liability under Title VII. Pettinato, 2017 U.S.
Dist. LEXIS 105606, at *8 (quoting Wathen, 115 F.3d
at 405).
Plaintiff
also has not alleged that Elmore is the alter ego of
Valvoline. See Little v. BP Exploration & Oil
Co., 265 F.3d 357, 362 n.2 (6 th Cir. 2001) (in order to
hold an individual liable in his or her official capacity
under Title VII, a plaintiff must make a showing that the
individual is the alter ego of the employer); Ankofski v.
M&O Mktg. 218 F.Supp.3d 547, 553 (E.D. Mich. Nov. 4,
2016) (“when an employee has already sued a corporate
employer under Title VII, an official capacity suit against a
supervisor adds nothing to the litigation. That is because
the employer and only the employer can be responsible for any
relief the employee obtains, even if under the official
capacity theory.”).
The
Court dismisses Plaintiff’s Title VII claim against
Elmore.
2.
Fraud
As
Plaintiff has alleged fraud, he must satisfy the requirements
of Fed.R.Civ.P. 9(b), which provide that: “[i]n
alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or
mistake.” F e d . R . C i v . P . 9 (b) . T o satisfy
this standard, a claimant must “(1) specify the
statements the plaintiff contends were fraudulent; (2)
identify the speaker; (3) state where and when the statements
were made; and (4) explain why the statements were
fraudulent.” Louisiana School Employees’ Ret.
Sys. v. Ernst & Young, L.L.P., 662 F.3d 471, 478
(6th Cir. 2010). As one court has explained, “[i]n
order to satisfy Rule 9(b), plaintiffs must allege: (1) the
time, place and content of the alleged misrepresentation; (2)
the fraudulent scheme; (3) the fraudulent intent of the
defendants; and (4) the injury resulting from the
fraud.” Picard Chem. Profit Sharing Plan v. Perrigo
Co., 940 F.Supp. 1101, 1114 (W.D. Mich. July 25, 1996)
(citing Michaels Bldg. Co. v. Ameritrust Co., N.A.,
848 F.2d 674, 679 (6th Cir. 1988)).
Elmore
argues that Plaintiff’s Complaint fails to: (a) allege
that Elmore made any material representations to him that she
knew to be false or that were made recklessly without any
knowledge of the truth; (b) identify any material
representation by her that she intended Plaintiff to act upon
and that he relied upon that material representation when
acing upon it; or (c) any fraudulent scheme or intent by her.
Elmore contends that Plaintiff’s conclusory allegations
tracking Rule 9(b) are not sufficient to establish a viable
fraud claim. Citing United States v. Quicken Loans,
Inc., 239 F.Supp.3d 1014, 1025 (E.D. Mich. 2017)
(citations omitted) (fraud cannot be based on
“speculation and conclusory allegations. An ample
factual basis must be supplied to support the
charges.”).
Plaintiff’s
response does not adequately rebuke Elmore’s argument.
Plaintiff argues that Elmore’s “silence [in
response] to Plaintiff’s many requests for [his]
employee file, [the] employee handbook, Valvoline
disciplinary procedures, and write-ups is equated with Fraud
because there was a legal and moral duty to speak.”
Citing United States v. Horton R. Prudden, 424 F.2d
1021 (5th Cir. 1970). First, the Prudden case is not
applicable to the present case as it involved a criminal tax
fraud prosecution. Second, even if Elmore refused to respond
to Plaintiff’s requests for materials, such silence
does not constitute a representation or an affirmative
misrepresentation. Id. at 1033 (“the record
here must disclose some affirmative misrepresentation to
establish the existence of fraud, and this showing must be
clear and convincing”).
Plaintiff
argues that Elmore knowingly made a false representation by
telling him Valvoline followed federal laws by giving him a
partial accommodation. Plaintiff contends that Elmore’s
representation was misleading because it made him think it
was wrong to exercise his religious rights and intended to
place him at a disadvantage when he relied on it. Plaintiff
has not alleged, however, that Elmore made any statement that
Elmore knew to be false or made the statement recklessly
without any knowledge of its truth, nor has he alleged that
Elmore intended that Plaintiff act on it or that Plaintiff
did act on it. The statement by Elmore that Valvoline
followed federal laws is simply her opinion, and it does not
evidence a fraudulent scheme or intent.
Plaintiff’s
fraud claim against Elmore is dismissed.
3.
Intentional Infliction of Emotional Distress
Plaintiff
argues that Elmore’s statement that Plaintiff was being
terminated for “misconduct” was extreme and
outrageous because the statement was defamatory, belittling,
and suggested criminal intent, such that it caused severe
emotional distress. The elements of an intentional infliction
of emotional distress (“IIED”) claim are: (1)
extreme and outrageous conduct; (2) intent or recklessness;
(3) causation; and (4) severe emotional distress. See,
e.g., Hilden v. Hurley Med. Ctr., 831 F.Supp.2d 1024,
1046 (E.D. Mich. 2011). Liability for IIED has been found
only where the conduct in question has been so outrageous and
extreme that it goes beyond every form of decency and is
“regarded as atrocious and utterly intolerable in a
civilized community.” Graham v. Ford, 237
Mich.App. 670, 674 (1999). The test has been described as
whether “the recitation of the facts to an average
member of the community would arouse his resentment against
the actor, and lead him to exclaim,
‘Outrageous!’” Roberts v. Auto-Owners
Ins. Co., 422 Mich. 594, 603 (1985).
Plaintiff
indicates that his IIED claim is based on a number of
paragraphs in the Complaint, but those paragraphs allege
actions by Smith and Kasacavage. None of those paragraphs
involve Elmore. See Dkt. No. 1, ¶¶ 45,
47-50, 64-70, 98, 99. Plaintiff does not identify any
allegedly “outrageous, ” “atrocious,
” or “intolerable” conduct committed by
Elmore. Accordingly, Plaintiff’s IIED claim is
dismissed as it pertains to Elmore.
4.
Miscellaneous ...