Steele-El v. Valvoline Instant Oil Change

          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 ...