United States District Court, W.D. Pennsylvania
REPORT AND RECOMMENDATION
ROBERT C. MITCHELL, District Judge.
It is respectfully recommended that the complaint be dismissed for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(ii).
Plaintiff, Duane Miller, has submitted a civil rights action, and he has been granted leave to proceed in forma pauperis. In the complaint, he alleges that Defendant, the Equal Employment Opportunity Commission (EEOC), Pittsburgh office, failed to properly investigate and/or mishandled charges of racial discrimination and retaliation that he filed against his employer, Keystone Blind Association (KBA). For the reasons that follow, the complaint should be dismissed for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(ii).
Plaintiff is an African American man who is employed by KBA as an Attendant at the Bridgeville Rest Areas on Interstate 79. On August 26, 2010, he filed an EEOC charge, claiming that KBA discriminated against him on the basis of his race by demoting him from Lead Attendant to Attendant in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (Title VII).
Plaintiff alleges that Victoria Rodia was assigned to investigate the charge; that he told her that KBA's position statement was bogus and perjury; that KBA failed to follow its own procedures regarding the chain of command; that Rodia told him the EEOC was short staffed and his case was put on hold for an entire year; and that he asked for his right to sue papers in April 2011. (Compl. ¶¶ 2-3.)
He further alleges that he then filed a retaliation charge against KBA and it contained a 20-minute videotape showing concrete evidence of violation of a government contract and citations from OSHA against white employees who were not demoted; that Rodia started the retaliation investigation and then, after talking to the defense, she stopped the investigation, again citing a staffing problem; that he made several attempts to fax letters to investigate the tape and talked to Rodia on the phone and she said she would investigate, but never did. He contends that Rodia "botch[ed] up the case!" (Compl. ¶¶ 4-5.)
On July 6, 2011, Plaintiff submitted an application to proceed in forma pauperis in a case which was docketed at Civ. A. No. 11-887, Miller v. Keystone Blind Association/TPM. The motion to proceed IFP was granted on July 18, 2011 and the complaint was filed that same day (ECF No. 2). An Amended Complaint was filed on August 4, 2011 (ECF No. 4). The Amended Complaint alleged that KBA illegally demoted him on the basis of his race and also that it promoted a less qualified white employee in violation of Title VII.
On July 31, 2012, KBA filed a motion for summary judgment (ECF No. 40), in which it argued that: 1) Plaintiff could not state a prima facie case of racial discrimination with respect to his demotion because he could not demonstrate that he was qualified for the position of Lead Attendant; and 2) even if he could establish a prima facie case, it proffered legitimate, non-discriminatory reasons for his demotion (his failures to properly submit paperwork, occasions on which he was observed sitting on picnic tables not working and the incidents in which he sexually harassed female employees) and he did not produce evidence from which the trier of fact could conclude that the reasons were a pretext for unlawful racial discrimination. Plaintiff filed a response on August 28, 2012 (ECF No. 44), as well as his own motion for summary judgment (ECF No. 49). KBA filed a reply brief on September 10, 2012 (ECF No. 48), as well as a motion to strike Plaintiff's motion (ECF No. 50). The Court granted KBA's motion in part, concluding that the arguments Plaintiff raised in his filings would be considered in conjunction with his response to KBA's motion (ECF No. 51).
On January 8, 2013, an Order was filed, granting Defendant's motion for summary judgment (ECF No. 53). Plaintiff filed a Notice of Appeal (ECF No. 55), and on June 28, 2013, the Court of Appeals for the Third ...