Opinion
CIVIL ACTION NO. 3:07CV-25-H.
August 2, 2007
MEMORANDUM OPINION
The plaintiff, Rodney Stewart, filed this pro se action against his former employer, Classickle, Inc., alleging numerous federal and state law claims. Since Plaintiff is proceeding in forma pauperis, this Court must review the instant action pursuant to 28 U.S.C. § 1915(e) and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). For the reasons set forth herein, the majority of the plaintiff's claims will be dismissed for failure to state a claim. The Court will also order the plaintiff to show cause why his Americans with Disabilities Act claims should not be dismissed for failure to exhaust available administrative remedies.
I. FACTS
On or about September 6, 2005, the plaintiff sought employment with the defendant after being on "Social Security Disability Insurance" for twelve years. According to the plaintiff, he informed the defendant regarding the nature and extent of his disabilities. The plaintiff was hired, but placed on a two-week probationary period, which the plaintiff claims is not customary. The plaintiff continued working for the defendant until June of 2006, when the plaintiff claims he was terminated because of his disability. Specifically, the plaintiff alleges that a week before his termination, his supervisors stated that the company needed another "computer-aided-draftsman," hired a non-disabled person for the job, and then terminated the plaintiff's employment under false pretenses.
The plaintiff does not describe his alleged disability in his complaint.
The plaintiff is suing the defendant under twenty-eight separate causes of action: 1) the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101; 2) Section 503 Rehabilitation Act of 1973; 3) the Service Contract Act; 4) Davis Bacon Act; 5) the Fair Wages Act; 6) constructive discharge based on plaintiff's known disability; 7) defamation of character; 8) disparate treatment; 9) intentionally failing to provide a reasonable accommodation under the ADA; 10) intentional infliction of emotional distress; 11) injurious falsehood; 12) intentionally disparaging another's property interest to the person's economic detriment; 13) violation of Executive Order 11246; 14) violation of the Civil Rights Act of 1991; 15) pay discrimination; 16) intentional discrimination; 17) breach of implied contract to be terminated only for good cause; 18) breach of the covenant of good faith and fair dealing; 19) deliberate indifference for the Congressional intent of the ADA; 20) ongoing and continuing present adverse effect from past exposure to the defendant's illegal conduct; 21) refusing to approve training opportunities based on disability; 22) due process violation under the Fourteenth Amendment; 23) the Equal Pay Act; 24) the Fair Labor Standards Act; 25) retaliation; 26) unlawfully withholding the plaintiff's property; 27) creating a hostile work environment; and 28) conspiracy to deny civil rights. Each will be discussed below.
II. STANDARD OF REVIEW
Because the plaintiff is proceeding in forma pauperis, this Court must review the instant action. 28 U.S.C. § 1915(e)(2); McGore, 114 F.3d at 604-05. Upon review, this Court must dismiss a case at any time if it determines that the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). A complaint may be dismissed as frivolous if it is premised on a nonexistent legal interest or delusional factual scenario. Neitzke v. Williams, 490 U.S. 319, 329-30 (1989). A complaint, or portion thereof, should be dismissed for failure to state a claim upon which relief may be granted "only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000). In reviewing a complaint under this standard, the Court must accept all factual allegations contained in the complaint as true and must also construe the pleading in the light most favorable to the plaintiff. Bibbo v. Dean Witter Reynolds, Inc., 151 F.3d 559, 561 (6th Cir. 1998).
The Court recognizes that pro se pleadings are to be held to a less stringent standard than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519 (1972). The duty to be less stringent with pro se complaints, however, "does not require [the Court] to conjure up unpled allegations," McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979) (citation omitted), and the Court is not required to create a claim for the pro se Plaintiff. Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975). To command otherwise would require the "courts to explore exhaustively all potential claims of a pro se plaintiff, [and] would also transform the district court from its legitimate advisory role to the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
III. ANALYSIS
A. The Americans with Disabilities Act
Plaintiff listed several "causes of action" that are actually elements of an ADA claim: constructive discharge based on plaintiff's known disability, disparate treatment, intentionally failing to provide a reasonable accommodation under the ADA, intentional discrimination, deliberate indifference for the Congressional intent of the ADA, refusing to approve training opportunities based on disability, and creating a hostile work environment. The Court's analysis of the ADA encompasses these "causes of action" as well.
B. Section 503 Rehabilitation Act of 1973
"The Vocational Rehabilitation Act of 1973, 29 U.S.C. § 793, . . . provides for an administrative remedy through the Department of Labor and does not authorize a private cause of action in the courts." Hoopes v. Equifax, Inc., 611 F.2d 134, 135 (6th Cir. 1979). Accordingly, the plaintiff has failed to state a cognizable claim under section 503 of the Rehabilitation Act of 1973.
C. The Service Contract Act
Plaintiffs also seek relief under the Service Contract Act of 1965 ("SCA"). The SCA, however, does not provide a cause of action to employees working under an SCA-governed contract; such employees are limited to administrative remedies. See District Lodge No. 166 v. TWA Services, Inc., 731 F.2d 711, 715-16 (11th Cir. 1984); Barron v. Reich, 13 F.3d 1370, 1373 (9th Cir. 1994); Danielsen v. Burnside-Ott Aviation Training Ctr., Inc., 291 U.S. App. D.C. 303 (D.C. Cir. 1991). This claim will be dismissed.
D. Davis Bacon Act
The Davis Bacon Act provides that certain federal construction contracts must contain "a provision stating the minimum wages to be paid various classes of laborers and mechanics." 40 U.S.C. § 3142(a). Although the Sixth Circuit has not addressed the issue, the majority of courts that have considered it have concluded that there is not a private right of action under the Davis Bacon Act. See White v. MPW Indus. Servs., No. 1:05-cv-162, 2006 U.S. Dist. LEXIS 12409, at *3-4 (E.D. Tenn. 2006) (collecting cases). This Court agrees that there is no private right of action under the Davis Bacon Act. Furthermore, the plaintiff has not provided any explanation of how the defendant has violated the Davis Bacon Act. This claim will be dismissed.
E. Fair Wages Act
F. Defamation of Character[fn3]
Gilliam v. Pikeville United Methodist Hosp. of Ky., Inc.215 S.W.3d 5660-61New York Times Co. v. Sullivan Id.
G. Intentional Infliction of Emotional Distress
H. Intentionally disparaging another's property interest to the person's economic detriment
prima facie Stringer v. Wal-Mart Stores, Inc.151 S.W.3d 781788See Bednarek v. United Food Commercial Workers Int'l Union, Local Union 227780 S.W.2d 630632
I. Violation of Executive Order 11246
The plaintiff alleges discrimination on the basis of disability. However, "Executive Order 11246 prohibits discrimination on the basis of race, color, religion, sex, or national origin by federal contractors." Volvo GM Heavy Truck Corp. v. United States DOL, 118 F.3d 205, 206 (4th Cir. 1997). Thus, the order does not apply to the plaintiff's claim. Additionally, Executive Order 11246 does not create a private right of action. See, e.g., Utley v. Varian Assocs., Inc., 811 F.2d 1279, 1284-86 (9th Cir. 1987) (holding Executive Order 11246 does not create a private right of action). This claim will be dismissed.
J. Violation of the Civil Rights Act of 1991
The Civil Rights Act of 1991 makes it an unlawful practice "for an employer — to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2. Thus, by its own terms the Act does not apply to discrimination based on disability. The plaintiff's claim for protection from discrimination based on his disabled status arises out of the ADA, not the Civil Rights Act of 1991.
K. Pay Discrimination
L. Breach of Implied Contract to be Terminated Only for Good Cause
M. Breach of the Covenant of Good Faith and Fair Dealing
The plaintiff has failed to allege any facts to support this claim, and it will be dismissed.
N. Ongoing and Continuing Present Adverse Effect from Past Exposure to the Defendant's Illegal Conduct
This would be an element of the plaintiff's damages, not an independent cause of action. Therefore, this "claim" will be dismissed.
O. Due Process Violation Under 14th Amendment
P. The Equal Pay Act
42 U.S.C. § 198342 U.S.C. § 1983 see also Adickes v. S.H. Kress Co.398 U.S. 144150Rendell-Baker v. Kohn457 U.S. 830838Bell v. Mgmt. Training Corp.122 Fed. Appx. 219223 Wolotsky v. Huhn960 F.2d 13311335 Grant v. Gen. Motors Corp.908 F.2d 1303131129 U.S.C. § 206
Q. Violation of the Fair Labor Standards Act
The plaintiff has failed to allege any facts to support this claim, and it will be dismissed.
R. Retaliation
The plaintiff has failed to allege any facts to support this claim, and it will be dismissed.
S. Unlawfully Withholding the Plaintiff's Property
Although not entirely clear, it appears as though the plaintiff is alleging that the defendant improperly withheld wages that accrued prior to his termination. This cause of action is based on state law. While it appears that the plaintiff has alleged enough facts pertaining to this claim to proceed past initial screening, the Court will reserve a determination regarding whether to exercise supplemental jurisdiction over the claim until the plaintiff has responded to the Court's show cause order. See Musson Theatrical, Inc. v. Fed. Express Corp., 89 F.3d 1244, 1254-55 (6th Cir. 1998) ("When all federal claims are dismissed before trial, the balance of considerations usually will point to dismissing the state law claims, or remanding them to state court if the action was removed.").
T. Conspiracy to Deny Civil Rights
Section 42 U.S.C. § 1985(3) provides:
Depriving persons of rights or privileges. If two or more persons in any State or Territory conspire, or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws, or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice-President, or as a member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.
To prove a conspiracy under § 1985(3), a plaintiff is required to show: "(1) that some racial, or perhaps otherwise class-based, invidiously discriminatory animus [lay] behind the conspirators' action, and (2) that the conspiracy aimed at interfering with rights that are protected against private, as well as official, encroachment." Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 268 (1993). The Sixth Circuit has adopted the general rule that in cases brought under § 1985(3), a corporation cannot conspire with its own agents or employees. Hull v. Cuyahoga Valley Joint Vocational Sch. Dist. Bd. of Educ., 926 F.2d 505, 509 (6th Cir. 1991) (citing Doherty v. Am. Motors Corp., 728 F.2d 334, 339 (6th Cir. 1984)). In this case, the plaintiff has sued only one defendant, Classickle, Inc. Because a corporation cannot conspire with itself or its own employees, this claim is barred.
The Court will enter an Order consistent with this Memorandum Opinion.