United States District Court, W.D. Arkansas, Texarkana Division
PHALANZA S. FRANCISCO PLAINTIFF
COOPER TIRE & RUBBER COMPANY DEFENDANT
O. Hickey Chief United States District Judge.
the Court is the Report and Recommendation filed July 30,
2019, by the Honorable Barry A. Bryant, United States
Magistrate Judge for the Western District of Arkansas. (ECF
No. 12). Judge Bryant recommends that the Court grant
Defendant Cooper Tire & Rubber Company's motion for
partial judgment on the pleadings and dismiss Plaintiff
Phalanza S. Francisco's retaliation claim. Plaintiff has
filed timely objections to the Report and Recommendation.
(ECF No. 13). The Court finds the matter ripe for
case arises from allegations of discrimination, in violation
of Title VII of the Civil Rights Act of 1964 (“Title
VII”). Plaintiff is an African American who was
formerly employed by Defendant. He alleges that on September
6, 2018, he got into an online argument with a white
supervisor regarding the act of kneeling during the national
anthem and the police's treatment of African Americans.
Plaintiff alleges further that on September 19, 2018,
Defendant terminated his employment based on another
co-worker's false statement that Plaintiff threatened him
with a gun and made sexually explicit remarks to him.
alleges that he filed a charge of racial discrimination with
the Equal Employment Opportunity Commission
(“EEOC”) in February 2019, and that he received a
right to sue letter from the EEOC on March 15,
2019. On May 29, 2019, Plaintiff filed this
Title VII case pro se, asserting claims of racial
discrimination and retaliation.
2, 2019, Defendant filed a motion for partial judgment on the
pleadings. (ECF No. 10). Defendant contends that Plaintiff
failed to exhaust his administrative remedies with respect to
his retaliation claim because he did not check the
“retaliation” box on his EEOC administrative
charge and because the information Plaintiff provided on the
charge form does not otherwise give notice of a retaliation
claim. From this, Defendant argues that the Court lacks
subject matter jurisdiction to hear Plaintiff's
retaliation claim and, thus, the Court should dismiss the
claim pursuant to Federal Rule of Civil Procedure 12(b)(1).
to 28 U.S.C. § 636(b)(1), the Court referred
Defendant's motion to Judge Bryant for consideration and
to prepare a Report and Recommendation thereon. On July 30,
2019, Judge Bryant issued the instant Report and
Recommendation. Judge Bryant finds that Plaintiff's EEOC
charge fails to give Defendant notice of a retaliation claim
and, thus, Plaintiff failed to exhaust his administrative
remedies as to that claim. Accordingly, Judge Bryant
recommends that the Court dismiss Plaintiff's retaliation
claim pursuant to Rule 12(b)(1) for lack of subject matter
August 12, 2019, Plaintiff filed objections to the Report and
Recommendation.Plaintiff does not appear to dispute that
he failed to check the “retaliation” box on his
EEOC charge. Rather, Plaintiff states that this is because,
at the time of his termination, he did not fully understand
why he had been fired and, thus, an EEOC charge officer
advised him to only check the “race
discrimination” box on the charge form. Plaintiff also
states that he feels he has fully exhausted his
administrative remedies because he received no help from his
union representatives and does not have legal counsel.
Accordingly, Plaintiff asks the Court to deny Defendant's
motion and allow him to proceed further on his retaliation
reviewing a magistrate judge's Report and Recommendation,
“the specific standard of review depends, in the first
instance, upon whether or not a party has objected to
portions of the report and recommendation.”
Anderson v. Evangelical Lutheran Good Samaritan
Soc'y, 308 F.Supp.3d 1011, 1015 (N.D. Iowa 2018).
Generally, “objections must be timely and
specific” to trigger de novo review.
Thompson v. Nix, 897 F.2d 356, 358-59 (8th Cir.
1990). The Court must apply a liberal construction when
determining whether pro se objections are specific.
Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995).
Moreover, even if objections are non-specific, “full
de novo review” may still be appropriate if
the record is concise. Belk v. Purkett, 15 F.3d 803,
815 (8th Cir. 1994) (requiring de novo review when
the record was “strikingly brief” and magistrate
judge did not conduct a hearing). Giving Plaintiff's
timely objections a liberal construction, the Court finds
that they are specific enough to warrant de novo
review, particularly considering the sparse record in this
de novo review and for the reasons set forth below,
the Court reaches the same conclusion as Judge Bryant-that
Plaintiff's retaliation claim should be dismissed-but
does so for different reasons than those articulated in the
Report and Recommendation. To explain, the Court will first
address Defendant's argument that the Court lacks subject
matter jurisdiction over Plaintiff's retaliation claim.
The Court will then discuss why Plaintiff's retaliation
claim should be dismissed.
Subject Matter Jurisdiction
VII establishes an administrative procedure that a
complaining employee must follow before filing a lawsuit in
federal court. Alexander v. Gardner-Denver Co., 415
U.S. 36, 47 (1974). “In other words, an employee cannot
bring a discrimination claim without first exhausting his or
her administrative remedies.” Briley v.
Carlin, 172 F.3d 567, 571 (8th Cir. 1999).
of administrative remedies is central to Title VII's
statutory scheme because it provides the EEOC the first
opportunity to investigate discriminatory practices and
enables it to perform its roles of obtaining voluntary
compliance and promoting conciliatory efforts. Patterson
v. McLean Credit Union, 491 U.S. 164, 180-81 (1989). To
exhaust administrative remedies, an individual must: (1)
timely file a charge of discrimination with the EEOC, setting
forth the facts and nature of the charge, and (2) receive
notice of the right to sue from the EEOC. 42 U.S.C.