Report and Recommendation

Motion for Judgment on the Pleadings/Summary Judgment

1 Childs v. Motor City; Case No. 09-13108

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GLENN CHILDS, Case No. 09-13108

Plaintiff, David M. Lawson

vs. United States District Judge

MOTOR CITY CASINO HOTEL, Michael Hluchaniuk

United States Magistrate Judge

Defendant.

 /

REPORT AND RECOMMENDATION

DEFENDANT’S MOTION TO DISMISS (Dkt. 28)

I. PROCEDURAL HISTORY

Plaintiff filed his complaint on August 6, 2009. (Dkt. 1). District Judge

David M. Lawson referred this matter to the undersigned for all pretrial

proceedings. (Dkt. 4). Defendant filed an answer to the complaint on December

15, 2009. (Dkt. 11). The Court held a scheduling conference, pursuant to notice,

on December 22, 2009. (Dkt. 12). In the Case Management Order, the Court

permitted plaintiff to file an amended complaint. (Dkt. 13). Plaintiff filed an

amended complaint on December 31, 2009. (Dkt. 14). Subsequently, plaintiff

contacted the Court seeking a telephone conference regarding his amended

complaint, which was held, pursuant to notice, on February 4, 2010. (Dkt. 18). 

Plaintiff was then permitted to file a second amended complaint by February 16,
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2010. Plaintiff filed his second amended complaint on February 19, 2010 and an

“errata” to his second amended complaint on February 22, 2010. (Dkt. 22, 23). 

Defendant filed an answer to the amended complaint and the errata on March 5,

2010. (Dkt. 24).

Defendant filed a motion for judgment on the pleadings on May 20, 2010. 

(Dkt. 28). Plaintiff filed a response on June 14, 2010. (Dkt. 30). Defendant filed a

reply on June 24, 2010. (Dkt. 31). On July 13, 2010, defendant filed a joint

statement of resolved and unresolved issues, indicating that the parties had been

unable to resolve any issues pertaining to the motion to dismiss. (Dkt. 32). On

July 22, 2010, the Court held a hearing, pursuant to notice. (Dkt. 29). This matter

is now ready for report and recommendation. 

For the reasons set forth below, the undersigned RECOMMENDS that

defendant’s motion for judgment on the pleadings and for summary judgment be

GRANTED, that plaintiff’s federal claims be DISMISSED with prejudice, and

that plaintiff’s state law claims be DISMISSED without prejudice.

II. FACTUAL BACKGROUND

With the permission of the Court, plaintiff filed his second amended

complaint on February 19, 2010. (Dkt. 22). Plaintiff states that, in this action, he

complains about “Title VII violation age discrimination...(and)... Title VII

violation sex.” Id. Plaintiff also attached a handwritten statement entitled
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“Attachment” containing 3 numbered paragraphs. (Dkt. 22). Paragraph one of the

“Attachment” contains general allegations that one of plaintiff’s supervisors, Jim

Krygowski, verbally abused him, which created a “hostile working environment

& abusive working conditions.” He also alleges in that paragraph that “further

tangible employment action followed....” Plaintiff alleges in paragraph two of the

“Attachment” that he was constructively discharged on August 6, 2008. In support

of this allegation, plaintiff recounts his transfer from an undercover, plain-clothes

assignment as a Security Officer to an “undesirable uniform assignment where the

treatment was miserable, humiliating, harassing & intolerable.” Id. He claims that

another supervisor, Chenine McDowell, threatened to slap him and “verbally

abused” him on August 9, 2008. Plaintiff alleges that in retaliation for that act, he

was assigned to undesirable posts where he “was very closely surveillanced (sic)

with limited ability to move.” Id. He further alleges that he met with Josephine

Avery, the Vice President of Human Resources for Motor City, to complain about

the reassignment from being a plain-clothes officer to being a uniformed officer, as

well as to advise Ms. Avery of a conversation he had had with William Cummings,

the Director of Security. Plaintiff alleges that he told Mr. Cummings that he

believed he had been reassigned because of his union activity as a bargaining

committee member. Plaintiff, who was born in 1959, also claims in paragraph two

of the “Attachment” that one of his supervisors, Jim Krygowski, said to plaintiff
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“your (sic) late young man” when he arrived late for roll call. Plaintiff also

complained to Ms. Avery that Mr. McDowell, one of his supervisors, stated that he

would slap plaintiff, and, because he never apologized, plaintiff “took it as a

threat.” Plaintiff also alleges that he was “...verbally abused in a degrading way

by the wardrobe manager Joyce in retaliation of me not allowing her employee

Denise to leave with

stockings on 8-9-08 11 P.M. without the proper signature.” Id. Plaintiff also

alleges that he was “forced to resign by threat of termination by Josephine Avery

on Sept 5 2008.” Id. Paragraph three of the “Attachment” to the second amended

Complaint purports to add a claim of common law defamation but does not allege

any allegedly defamatory statement by any person. Id.

On February 22, 2010, plaintiff filed a document entitled “Errata Correction

2nd Amended Complaint.” (Dkt. 23). On the form complaint portion of the

“Errata Correction 2nd Amended Complaint,” plaintiff alleges: “1. Violation of

Title VII (Age Discrimination in Employment Act. 2.Violation of Title VII Gender

Discrimination Constructive Discharge. 3. Violation of Title VII Age

Discrimination in Employment Act Retaliation See Errata Correction see

attachments filed 2-19-2010.” In the hand-written statement, plaintiff entitles

“Errata Correction”, he alleges in pertinent part:

“1.Violation of Title VII Age Discrimination in
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employment act. (while seeking my employment on

8-9-08 manager Jim Krygowski made a remark in

reference of my age while complaining I was late for roll

call. See attachment

2. Violation of Title VII gender discrimination

constructive discharge. On 9-5-08 while (sic) seeking to

report continued harassment of managers/supervisor H &

R Director/Vice President Josephine Avery

constructively discharged my employment see

attachment

3.Violation of Title VII age discrimination on 9-16-08

while employed supervisor/manager John Gradzinski &

Chennie McDowell suspended me for 5 days for no/call

no show in retaliation (sic) for reporting harassment

treatment to H & R Director/Vice President on 8-9-08

See attachment On attachment 10 claim #2 of violation of

Title VII gender discrimination against H & R Director/

Vice President My demand for $750,000 I forgot to add

due to intentional tort and constructive discharge this

should be added to my claim for charge #2. See

attachment filed on 2-19-2010.

III. ANALYSIS AND CONCLUSIONS

A. Standards of Review

1. Rule 12(b)(6)

The standard for a motion for judgment on the pleadings under Rule 12(c) is

the same as that for a motion to dismiss under Rule 12(b). See e.g., Spruill v.

Gillis, 372 F.3d 218, 223 (3d Cir. 2004) (“There is no material difference in the

applicable legal standards.”). To survive a motion for judgment on the pleadings

under Rule 12(c) or to dismiss under Rule 12(b)(6), a plaintiff must first comply
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with Rule 8(a)(2), which requires “‘a short and plain statement of the claim

showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair

notice of what the ... claim is and the grounds upon which it rests.’” Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964 (2007), quoting, Conley v.

Gibson, 355 U.S. 41, 47 (1957). 

The Supreme Court recently raised the bar for pleading requirements beyond

the old “no-set-of-facts” standard of Conley v. Gibson, 355 U.S. 41, 78 (1957), that

had prevailed for the last few decades. Courie v. Alcoa Wheel & Forged Products,

577 F.3d 625, 2009 WL 2497928, *2 (6th Cir. 2009), citing, Ashcroft v. Iqbal, —

U.S. —, 129 S.Ct. 1937, 1949 (2009); see also Twombly, 550 U.S. at 555. In

Iqbal, the Supreme Court explained that a civil complaint only survives a motion to

dismiss if it “contain[s] sufficient factual matter, accepted as true, to state a claim

to relief that is plausible on its face.” Iqbal, 129 S.Ct. at 1949. The Sixth Circuit

observed that this new standard is designed to screen out cases that, while not

utterly impossible, are “implausible.” Courie, at *2. “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.” 

Iqbal, 129 S.Ct. at 1949. And although the Court must accept all well-pleaded

factual allegations in the complaint as true, it need not “‘accept as true a legal

conclusion couched as a factual allegation.’” Twombly, 550 U.S. at 555, quoting,
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Papasan v. Allain, 478 U.S. 265, 286 (1986); see also Iqbal, 129 S.Ct. at 1949. 

The Sixth Circuit noted that “[e]xactly how implausible is ‘implausible’ remains to

be seen, as such a malleable standard will have to be worked out in practice.” 

Courie, *2.

In Twombly, the Court responded to the plaintiffs’ contention that its

analysis “r[uns] counter to” Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). In

Swierkiewicz, the question presented was “whether a complaint in an employment

discrimination lawsuit must contain specific facts establishing a prima facie case of

discrimination under the framework set forth ... in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973).” Swierkiewicz, 534 U.S. at 508. The Court answered

that question in the negative, holding specifically that “an employment

discrimination complaint need not include such facts and instead must contain only

‘a short and plain statement of the claim showing that the pleader is entitled to

relief.’” Id., quoting Fed.R.Civ.P. 8(a)(2). Based on that conclusion, the Court

found that the appellate court had incorrectly dismissed the complaint at the

pleading stage based on the plaintiff's failure to allege facts that he would have

needed at the trial stage to support his claim, even though the complaint actually

“detailed the events leading to his termination, provided relevant dates, and

included the ages and nationalities of at least some of the relevant persons involved

with his termination.” Id. at 514 (citation omitted). In Twombly, the Court noted
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that “Swierkiewicz did not change the law of pleading, but simply reemphasized ...

that the ... use of a heightened pleading standard for Title VII cases was contrary to

the Federal Rules’ structure of liberal pleading requirements.” Twombly, 550 U.S.

at 570 (citation omitted). Further, in Twombly, the Court expressly denied

adopting a standard that would “require heightened fact pleading of specifics,” id.;

rather, the standard established by Twombly requires that the plaintiff plead “only

enough facts to state a claim to relief that is plausible on its face,” id., rather than a

claim that is merely “conceivable.” Id.

Where a plaintiff is proceeding without the assistance of counsel, the court is

still required to liberally construe the complaint and hold it to a less stringent

standard than a similar pleading drafted by an attorney. See e.g. Simmons v.

Caruso, 2009 WL 2922046 (E.D. Mich. 2009), citing, Haines v. Kerner, 404 U.S.

519, 520 (1972); Hahn v. Star Bank, 190 F.3d 708, 715 (6th Cir. 1999). 

Thus, the Court must still read plaintiff’s pro se complaint indulgently and accept

plaintiff’s allegations as true, unless they are clearly irrational or wholly incredible. 

Denton v. Hernandez, 504 U.S. 25, 33 (1992); Erickson v. Pardus, 551 U.S. 89, 94

(2007) (The Court of Appeals improperly departed “from the liberal pleading

standards set forth by Rule 8(a)(2)” and failed to “liberally construe” the pro se

complaint at issue.).
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2. Rule 56

Defendant filed a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6) based, in part, on the failure to exhaust administrative remedies. Rule

12(d) provides that, if the moving party presents and the Court relies on matters

outside the pleadings, “the motion [under Rule 12(b)(6)] must be treated as one for

summary judgment and disposed of as provided in Rule 56. All parties must be

given a reasonable opportunity to present all the material that is pertinent to the

motion.” Fed.R.Civ.P. 12(d). Thus, the plain language of the rule requires that if

the motion relies on outside materials that the Court considers, then the motion

“must” be converted into a motion for summary judgment pursuant to Rule 56. 

See Song v. City of Elyria, Ohio, 985 F.2d 840, 842 (6th Cir. 1993). With respect

to defendant’s argument that plaintiff failed to exhaust his administrative remedies,

the parties submitted, and the undersigned has considered, evidence that is outside

the pleadings. Thus, the Court will treat the motion to dismiss as one for summary

judgment under Rule 56. 

Summary judgment is appropriate when the record reveals that there are no

genuine issues as to any material fact in dispute and the moving party is entitled to

judgment as a matter of law. Fed.R.Civ.P. 56(c); Kocak v. Comty. Health Partners

of Ohio, Inc., 400 F.3d 466, 468 (6th Cir. 2005); Thomas v. City of Chattanooga,

398 F.3d 426, 429 (6th Cir. 2005). The standard for determining whether summary
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judgment is appropriate is “whether the evidence presents a sufficient disagreement

to require submission to a jury or whether it is so one-sided that one party must

prevail as a matter of law.” State Farm Fire & Cas. Co. v. McGowan, 421 F.3d

433, 436 (6th Cir. 2005), quoting, Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

251-52 (1986); see also Tucker v. Union of Needletrades Indus. & Textile

Employees, 407 F.3d 784, 787 (6th Cir. 2005). The court must consider all

pleadings, depositions, affidavits, and admissions on file, and draw all justifiable

inferences in favor of the party opposing the motion. See Matsushita Elec. Indus.

Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Twin City Fire Ins. Co.

v. Adkins, 400 F.3d 293, 296 (6th Cir. 2005).

Rule 56 limits the materials the Court may consider in deciding a motion

under the rule: “pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits.” Copeland v. Machulis, 57 F.3d 476, 478 (6th

Cir. 1995) (citation omitted). Moreover, affidavits must meet certain requirements:

A supporting or opposing affidavit must be made on

personal knowledge, set out facts that would be

admissible in evidence, and show that the affiant is

competent to testify on the matters stated. If a paper or

part of a paper is referred to in an affidavit, a sworn or

certified copy must be attached to or served with the

affidavit. The court may permit an affidavit to be

supplemented or opposed by depositions, answers to

interrogatories, or additional affidavits.

Fed.R.Civ.P. 56(e)(1). In accordance with Rule 56(e), the Sixth Circuit has held
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“that documents submitted in support of a motion for summary judgment must

satisfy the requirements of Rule 56(e); otherwise, they must be disregarded.”

Moore v. Holbrook, 2 F.3d 697, 699 (6th Cir. 1993). Thus, in resolving a Rule 56

motion, the Court should not consider unsworn or uncertified documents, Id.,

unsworn statements, Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 968-969

(6th Cir. 1991), inadmissible expert testimony, North American Specialty Ins. Co.

v. Myers, 111 F.3d 1273, 1280 (6th Cir. 1997), or hearsay evidence, Hartsel v.

Keys, 87 F.3d 795, 799 (6th Cir. 1996); Wiley v. United States, 20 F.3d 222,

225-226 (6th Cir. 1994). Thus, “[a] party opposing a motion for summary

judgment cannot use hearsay or other inadmissible evidence to create a genuine

issue of material fact.” Id., quoting, Sperle v. Michigan Dept. of Corrections, 297

F.3d 483, 495 (6th Cir. 2002) (citation and quotation marks omitted).

B. Exhaustion of Administration Remedies

In its motion, defendant argues that plaintiff did not exhaust his

administrative remedies as required under the ADEA, with respect to his claims of

age discrimination and retaliation. Thus, according to defendant, those claims

should be dismissed. Plaintiff claims that he suspected age discrimination but did

not have any facts to support his claim at the time and also claims that defendant

misled the investigator. Plaintiff also argues that the ADEA does not require a

right to sue letter to be issued before a plaintiff can bring suit, so there is no
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exhaustion requirement. 

Exhaustion is also required under the ADEA. See Oscar Mayer & Co. v.

Evans, 441 U.S. 750, 753 (1979); Allen v. Highlands Hosp. Corp., 545 F.3d 387,

401 (6th Cir.2008) (administrative exhaustion is a statutory prerequisite to

maintaining claims brought under the ADEA). To exhaust, some notice of the

claim to the EEOC must be evident. In Jones v. City of Franklin, 309 Fed.Appx.

938, 943 (6th Cir. 2009), the Court rejected the plaintiffs’ claim that they had

exhausted their claim of a racially hostile work environment, despite the claim that

they “verbally” notified EEOC officials of this claim:

The plaintiffs argue that they provided sufficient notice

to the EEOC to satisfy the administrative-exhaustion

requirement. But each of the plaintiffs’ written filings

with the EEOC focused on discrete acts of

discrimination, such as the reduction of evaluation scores

and the failure of the City to award promotions to the

plaintiffs. Only one racist comment was mentioned-the

“rug head” remark-and that comment was directly tied to

the failure to promote one of the plaintiffs’ black

colleagues. The plaintiffs claim to have verbally notified

EEOC officials about other facts that support their

hostile-work-environment claim, but the record contains

no evidence beyond bald, nonspecific assertions that they

did so.

In rejecting the plaintiffs’ claimed exhaustion, the Court pointed out that “[n]o

decision in [the Sixth Circuit] has held that EEOC charges regarding discrete acts

of discrimination are alone sufficient to put the EEOC on notice of a
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hostile-work-environment claim. Several unpublished decisions of this court have

in fact held to the contrary.” Id. at 943, citing, Brown v. City of Cleveland, 294

Fed.Appx. 226, 234-35 (6th Cir. 2008); Scott v. Eastman Chem. Co., 275

Fed.Appx. 466, 475 (6th Cir. 2008); see also Clark v. Hoops, LP, — F.Supp.2d —,

2010 WL 1417744, *4-5 (W.D. Tenn. 2010) (“The Court finds that Plaintiff's

administrative filings would not have prompted the EEOC to investigate a racially

hostile work environment at Hoops. Plaintiff has therefore not exhausted his

administrative remedies as to his hostile work environment claim.”). This same

analysis applies to ADEA claims. See e.g., Reddy v. JPMorgan Chase Bank, N.A.,

2010 WL 3447629, *7 (S.D. Ohio 2010) (The plaintiff’s failure to allege a

violation of ADEA in either the EEOC charge required a dismissal of the ADEA

charge for failure to exhaust administrative remedies.).

In this case, plaintiff checked the boxes for sex discrimination and retaliation

on his EEOC Charge of Discrimination. (Dkt. 28, Ex. 1). He did not check the

box indicating he had an age discrimination and retaliation claim under the ADEA. 

Plaintiff’s charge of discrimination reads as follows:

I began my employment with the above named employer

on August 23, 1999 as a Security Manager and currently

I work in the capacity of a Security Officer. During the

month of August 2008, I was removed from my

assignment as a Plain Clothes Officer back to the position

of a Uniform Officer. I asked for any and all reasons for

this reassignment and was offered no reasoning for the
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change. Although, this was not a demotion, the position

of Plain Clothes Officer was one which allows an

employee to move to the next higher position. I

complained about discriminatory practices and was

threatened in a room surrounded by supervisors and

managers. My complaint was never addressed. On

September 3, 2008 I was given a two day suspension for

attendance issues and following this suspension I was

constructively discharged my employment. Other female

officers are not treated in the same manner. I believe I

have been discriminated against by being removed from

my assignment, harassed, demoted, and disciplined in

retaliation for complaining of discriminatory practices of

my employer in violation of Title VII of the Civil Rights

Act of 1964, as amended.

(Dkt. 28, Ex. 1). The EEOC issued plaintiff a right to sue letter and dismissed the

charge. (Dkt. 28, Ex. 2). The EEOC investigator also sent plaintiff a letter

outlining the reasons why the agency concluded that neither gender nor retaliation

was a factor in employment decisions Motor City made about plaintiff. (Dkt. 28,

Ex. 7). The EEOC’s letter contains no reference to any facts or allegations

uncovered in its investigation suggesting that plaintiff was pursuing a claim under

the ADEA, under either a discrimination or retaliation theory. Id. The

undersigned is not persuaded by plaintiff’s unsupported allegation that defendant

“misled” the investigators, particularly in light of plaintiff’s admission that he was

aware of the facts supporting his ADEA claim before he filed his EEOC charge. 

Based on the foregoing, defendant should be granted summary judgment on

plaintiff’s ADEA claim, and any retaliation claim related to his ADEA claim
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because plaintiff has failed to create a genuine issue of material fact that he failed

to exhaust these claims.

C. Failure to State a Claim Under Rule 12(b)(6)

1. Title VII gender discrimination

Plaintiff’s complaints are remarkably similar to the complaint dismissed in

Williams v. United Steelworks of America, AFL-CIO, 2010 WL 909883 (S.D. Ohio

2010), which contained the following facts relevant to the Title VII claim:

Williams alleges that he was fifty-five years old when he

was terminated and that he is “Black.” Williams alleges

that Local 7697 made an initial determination to arbitrate

his grievance as meritorious, but then withdrew his

grievance as non-meritorious more than two years later

on April 13, 2009. Williams also alleges that Local 7697

did not respond to numerous requests for information

about the status of his grievance nor to his request for a

written notification of the withdrawal of the grievance.

The only other allegation in the Amended Complaint

concerning the grievance and arbitration is Williams’

assertion that the processes “appear[ ] to be a vain act

since [Steelcraft] and [Local 7697] only hear

approximately two (2) Arbitrations per year and as of the

date of his [unemployment compensation] hearing of

December 19, 2006, there was [sic ] over 150 grievances

pending.” (Internal docket citations omitted).

The Williams court found that these factual allegations were not “enough to raise a

right to relief” for race or age discrimination against the defendant “above the

speculative level.” Id. at *5, quoting, Twombly, 550 U.S. at 555. The court found

it particularly significant that the plaintiff pleaded “no facts from which the Court
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can infer that [the defendant’s] conduct was motivated by race- or age-animus.” 

Id. For example, the plaintiff did not allege that the defendant treated

similarly-situated non-Black employees who had pending grievances more

favorably than the plaintiff was treated and he did not allege that any of the union

officials made discriminatory statements. Id. Rather, much like plaintiff’s

complaint in this case, the Williams plaintiff merely asserted in conclusory fashion

that “younger workers are treated more favorably...” Id. 

The undersigned agrees with the Williams court’s analysis that such an

allegation is an insufficient “formulaic recitation of the element[ ] of a cause of

action.” Twombly, 550 U.S. at 555. Remarkably absent from plaintiff’s rather

detailed recitation of the facts underpinning his complaint, are any allegations

connecting the event he complains about to any sex discrimination, the differential

treatment of similarly situated women in the workplace by defendant, or any

gender-based discriminatory comments made by defendant’s employees. Like the

plaintiff in Williams, the plaintiff here simply “did not plead any facts to support

this conclusory allegation or explain in what manner [female] workers were treated

more favorably.” Id., citing, Campbell v. PMI Food Equip. Group, Inc., 509 F.3d

776, 785-86 (6th Cir. 2007) (affirming a district court decision that “the Workers

failed to state a claim because, ‘although they allege that they were replaced, [they]

do not allege facts necessary to support the factual allegation that they were
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replaced with younger workers.’”). Poor, or even unfair, treatment by an employer

does not necessarily equate to discriminatory treatment that violates Title VII. 

Without sufficient factual allegations that tie the events described in plaintiff’s

complaint to discrimination based on sex, he has failed to state a claim on which

relief can be granted under Title VII. Thus, the undersigned concludes that

plaintiff’s Title VII claim for sex discrimination should be dismissed.

2. Title VII retaliation

Title VII prohibits retaliation against an employee for engaging in protected

activity, which consists of opposing a discriminatory practice, making a charge of

discrimination or assisting in an investigation of wrongful activity. Thompson v.

North American Stainless, LP, 567 F.3d 804 (6th Cir. 2009). The undersigned

concludes that plaintiff’s complaints do not allege any facts to establish that he

opposed conduct that violated Title VII, made a charge of discrimination, or

assisted in an investigation. Rather, plaintiff alleges in the second amended

complaint that he complained to the Vice President of Human Resources at Motor

City about his belief that he had been assigned from plain clothes duty to

uniformed duty because of his union activity. (Dkt. 28, Ex. 5). This is not

protected activity under Title VII. He also claims that he was “verbally abused in a

degrading way by the wardrobe manager Joyce in retaliation of me not allowing

her employee Denise to leave with stockings that belong (sic) to the casino on
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8-9-08 11 P.M. without the proper manager signature.” Id. Nothing in these

allegations suggests, however, that plaintiff engaged in protected activity under

Title VII. 

Moreover, the filing of the EEOC charge under the circumstances of this

case, could not constitute protected activity because plaintiff filed the charge on

December 22, 2008, after he resigned in September, 2008. Thus, it is impossible

for plaintiff to demonstrate a causal connection between his filing of the charge

and any adverse employment action. Finally, while plaintiff complains about the

two-day suspension he received in September, 2008, he does not allege any facts to

link the suspension to any protected activity. Based on the foregoing, plaintiff’s

Title VII retaliation claim should likewise be dismissed.

4. State law claims

Plaintiff has also raised the state law claims of breach of contract and

defamation. The undersigned suggests that this Court decline to exercise

supplemental jurisdiction over such state law claims given the recommendation

that all federal claims against defendant should be dismissed. See United Mine

Workers v. Gibbs, 383 U.S. 715, 726 (1966) ( “[I]f the federal claims are dismissed

before trial, ... the state claims should be dismissed as well.”); Experimental

Holdings, Inc. v. Farris, 503 F.3d 514, 521 (6th Cir. 2007) (“Generally, once a

federal court has dismissed a plaintiff's federal law claim, it should not reach state
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law claims.”).

Given the foregoing conclusions, the other arguments raised by defendant

need not be addressed.

IV. RECOMMENDATION

Based on the foregoing, the undersigned RECOMMENDS that defendant’s

motion for judgment on the pleadings and for summary judgment be GRANTED,

that plaintiff’s federal claims be DISMISSED with prejudice, and that plaintiff’s

state law claims be DISMISSED without prejudice.

The parties to this action may object to and seek review of this Report and

Recommendation, but are required to file any objections within 14 days of service,

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule

72.1(d). Failure to file specific objections constitutes a waiver of any further right

of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health and

Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some

issues but fail to raise others with specificity will not preserve all the objections a

party might have to this Report and Recommendation. Willis v. Sec’y of Health

and Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of

Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to Local Rule

72.1(d)(2), any objections must be served on this Magistrate Judge.

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,”
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20 Childs v. Motor City; Case No. 09-13108

etc. Any objection must recite precisely the provision of this Report and

Recommendation to which it pertains. Not later than 14 days after service of an

objection, the opposing party may file a concise response proportionate to the

objections in length and complexity. Fed.R.Civ.P. 72(b)(2), Local Rule 72.1(d). 

The response must specifically address each issue raised in the objections, in the

same order, and labeled as “Response to Objection No. 1,” “Response to Objection

No. 2,” etc. If the Court determines that any objections are without merit, it may

rule without awaiting the response.

s/Michael Hluchaniuk 

Date: October 5, 2010 Michael Hluchaniuk

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on October 5, 2010 I electronically filed the foregoing paper

with the Clerk of the Court using the ECF system, which will send electronic

notification to the following: Anne Bagno Widlak, and I certify that I have mailed

by United States Postal Service the paper to the following non-ECF participant(s):

Glenn Childs, 16044 Liberal, Detroit, MI 48205.

s/Tammy Hallwood 

Case Manager

(810) 341-7887

tammy_hallwood@mied.uscourts.gov