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Hollowell v. Postle Extrusion

United States District Court, N.D. Indiana, South Bend Division

July 6, 2017



          Philip P. Simon United States District Court Judge

         Terrance Hollowell worked as a maintenance mechanic for Postle Extrusion, a manufacturer headquartered in Elkhart, Indiana. [DE 4 at ¶¶5, 9.] Hollowell was hired in April 2010, the first African-American mechanic in the Maintenance Department at Postle's plant in Cassopolis, Michigan, and the oldest mechanic in the department. [Id. at ¶¶9, 10.] Hollowell alleges that within six months, racial harassment began on the job, and that Mike Athey, the Maintenance Manager, who is white, created a racially hostile environment. [Id. at ¶11, 12, 13.] The complaint states that Hollowell's employment was terminated on February 28, 2015 for absenteeism, because he was incarcerated for civil contempt for 60 days. [Id. at ¶26, ¶32(a).]

         Hollowell, representing himself, claims that he was subjected to discrimination on the basis of his race and age, invoking a number of legal theories and authorities in his complaint. The document is entitled “Complaint for Racial Discrimination and Wrongful Termination.” [DE 4 at 1.] “Violations” listed in the caption of the complaint are the Civil Rights Act of 1991, the Age Discrimination Act of 1967, Wrongful Termination, and “Hate Crimes” referencing 18 U.S.C. §245(2)(c) and 4(A). [DE 4 at 1.] The first line of the complaint's text invokes 42 U.S.C. §1982 and §1983 as the bases for the court's jurisdiction. [Id.] The complaint's introductory paragraph further alleges that Postle “violated [the] Civil Rights Act of 1964, Age Discrimination Act of 1972, Title VII and Wrongful Termination.” [Id. at 2.] After a fact section of “General Allegations, ” the complaint contains a Count I labeled “Violation of 42 U.S.C. §1983" and claiming discrimination on the basis of Hollowell's race and age. [Id. at 5.] Count II, subtitled “Discrimination Based on Race, ” alleges that Postle discriminated against Hollowell in violation of §1983, the Civil Rights Act of 1964 (Title VII), the Civil Rights Act of 1866 (§1981), the Equal Protection Clause of the Fourteenth Amendment, and the Age Discrimination in Employment Act. [Id. at 5-6.] The case is before me now on the motion to dismiss filed by Postle Extrusion, which carefully addresses each of Hollowell's claims and argues that there are reasons why each claim cannot succeed.

         Pleading Standards under Fed.R.Civ.P. 12(b)(6)

         Postle's motion is made under Fed.R.Civ.P. 12(b)(6) and contends that Hollowell's complaint fails to present any claim upon which relief can be granted. The Supreme Court interpreted the Rule 12(b)(6) pleading standard in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). To survive a motion to dismiss under that standard, a complaint must “state a claim to relief that is plausible on its face, ” which in turn requires factual allegations sufficient to permit a reasonable inference that the defendant is liable for the misconduct alleged. Twombly, 550 U.S, 570, 556. “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Plausibility is “not akin to a ‘probability requirement, '” but the plaintiff must allege “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.

         The Seventh Circuit has interpreted the plausibility standard to mean that “the plaintiff must give enough details about the subject-matter of the case to present a story that holds together.” Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010). I must also take into account that “even after Twombly and Iqbal, pro se complaints...are to be construed liberally.” Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013). Judged on the standards of Rule 12(b)(6), Hollowell's claims will survive dismissal if they “are plausible and his complaint sets out more than conclusory statements.” Id. at 651-52.

         Claims under 42 U.S.C. §1983

         Hollowell has a number of claims under section 1983. But claims under this statute are limited to relief against “state actors.” That means that §1983 can be used to seek relief for constitutional violations by state governments or their representatives, but not private parties unless they have acted in cahoots with the State. “A private citizen may not be liable under §1983 unless the citizen becomes a public officer pro tem or conspires with a public employee to deprive a person of his constitutional rights.” Wilson v. Price, 624 F.3d 389, 394 (7th Cir. 2010).

         Postle Extrusion is a private company. There is no allegation, nor does it seem there could be a credible allegation, that Postle acted in connection with state officials when it treated Hollowell however it did. Hollowell's complaint even acknowledges that Postle is a private business entity, alleging that it “acted under corporate managerial authority” when it discriminated against him on the basis of race and age. [DE 4 at ¶30.] Count I is subject to dismissal for failure to state a claim, because it is based solely on §1983 which does not authorize relief against a private entity like Postle Extrusion. Wilson, 624 F.3d at 395.

         Equal Protection

         Count II of Hollowell's complaint references a number of different legal authorities. To the extent that it again relies on §1983, it can be dismissed for the reasons already discussed. The same lack of state action dooms Hollowell's Equal Protection claim, to the extent that it is asserted independently of §1983 (although §1983 is the statutory vehicle for bringing a constitutional claim of this sort). The Equal Protection Clause of the Fourteenth Amendment is a limitation on the power of the States, not on private persons or entities: “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” A claim of violation of the Equal Protection Clause can only be brought against a State or a state actor, as opposed to a private person or organization not acting on behalf of the State. Rodriguez v. Plymouth Ambulance Service, 577 F.3d 816, 822-24 and n.10 (7th Cir. 2009); Schroeder v. Hamilton School District, 282 F.3d 946, 961 (7th Cir. 2002) (Wood, J., dissenting). The Equal Protection claim will be dismissed for failure to state a claim upon which relief can be granted.

         Exhaustion of Administrative Remedies

         Postle argues that claims under Title VII and the Age Discrimination in Employment Act should be dismissed because Hollowell did not exhaust administrative remedies by the required filings with the Equal Employment Opportunity Commission. Before bringing a lawsuit, both Title VII and the ADEA require a private employee like Hollowell to file a charge with the EEOC and wait to receive a notice from the EEOC that it does not intend to sue but instead gives the complainant the “right to sue.” 42 U.S.C. §2000e-5(e)(1), (f)(1); 29 U.S.C. §626(d)(1), (e). A lawsuit must then be filed within 90 days of receiving the “right to sue” letter. §2000e-5(f)(1); §626(e). Hollowell's complaint contains no information concerning the required EEOC filings.

         What Postle doesn't address is the Seventh Circuit's teaching on this subject. “Since failure to exhaust administrative remedies is an affirmative defense, [the claims] could only be dismissed for failure to state a claim if it was clear from the face of the complaint that the affirmative defense applied...But it was not clear from the face of the [complaint] that the defense applied because [the complaint] did not allege the facts necessary to come to that conclusion.” Bibb v. Sheriff of Cook County, 618 Fed.Appx. 847, 849 (7th Cir. 2015), citing Mosely v. Bd. of Educ. of City of Chicago, 434 F.3d 527, 533 (7th Cir. 2006). Like the pleading in Mosely, Hollowell's complaint makes no reference to exhaustion with the EEOC, and contains no allegations that support a conclusion one way or the other about whether he administratively exhausted. “[Mosely] had no obligation to allege facts negating an ...

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