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Wells v. Gourmet Services Inc.

United States District Court, M.D. Alabama, Northern Division

September 28, 2018

LAWRENCE WELLS, Plaintiff,
v.
GOURMET SERVICES, INC., et al. Defendants.

          REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

          GRAY M. BORDEN, UNITED STATES MAGISTRATE JUDGE

         Pursuant to 28 U.S.C. § 636(b)(1) this case was referred to the undersigned United States Magistrate Judge for consideration and disposition or recommendation on all pretrial matters as may be appropriate. Doc. 3. Pending before the court is the Motion to Dismiss Plaintiff's Complaint filed by Gourmet Services, Inc.; Al Baker; Gil Jones; Tia Benton; Charles Jones; and Jasper Manuel. Doc. 17. Also pending before the court are Plaintiff Lawrence Wells' Motion for Judgment on the Pleadings (Doc. 23) and Motion for Rule 55 Default and Default Judgment. Doc. 27.

         The case has been stayed pending the appeal of a decision in a related case. Doc. 30. The appeal in that decision now has been decided, Wells v. Gourmet Services, et al., No. 18-10149, slip op. (11th Cir. Aug. 31, 2018), and the stay is due to be lifted. For the reasons stated herein, the Magistrate Judge RECOMMENDS that the motion to dismiss (Doc. 17) be GRANTED and that the motions for judgment on the pleadings and for default judgment (Docs. 23 & 27) be DENIED.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Wells has been the plaintiff in two relevant lawsuits: Lawrence Wells v. Gourmet Services Inc., Al Baker, Gil Jones, Tia Benton, Charles Jones, and Jasper Manuel, 2:13cv516-WKW-CSC (“Wells I”), and the instant case, Lawrence Wells v. Gourmet Services Inc., Al Baker, Gil Jones, Tia Benton, Charles Jones, and Jasper Manuel, 2:18cv135-MHT-GMB (“Wells II”).

         Before the first of these cases was filed, Wells filed a charge of discrimination with the Employment Opportunity Commission (“EEOC”) on April 9, 2013. Wells I, 13cv515, Doc. 1-1 at 4.[1] The EEOC issued a Notice of Right to Sue on May 7, 2013. Wells I, 13cv515, Doc. 1-1 at 1.

         On June 12, 2013, Wells filed a second charge of discrimination with the EEOC. Wells I, 13cv516, Doc. 47-2 at 4. The second charge includes this statement: “On June 8, 2013, I filed two complaints with the City of Montgomery Police Department and the Alabama State University Campus Police, about Mr. Jones harassing me and threatening to shoot me.” Wells I, 13cv516, Doc. 47-2 at 4.

         Wells I was filed on July 19, 2013 before Wells received a Notice of Right to Sue on the second EEOC Charge. Wells II, 18cv135, Doc. 1 at 3.

         Wells filed an amended complaint in Wells I on March 20, 2014. 13cv516, Doc. 47. In it, Wells brought a claim of retaliation, stating that he was terminated from employment on June 10, 2013 because he reported his problems with Alabama State University to the EEOC and to the police. 13cv516, Doc. 47 at 26-27.

         On July 21, 2014, the magistrate judge in Wells I entered a recommendation, stating that the following claims were stated in the amended complaint: a hostile work environment claim and deprivation of pay claim on the basis of race in violation of Title VII; a claim of discharge in retaliation for complaints; an FLSA claim; and various state-law claims. 13cv516, Doc. 64 at 8. On July 21, 2014, the Magistrate Judge recommended that all of the federal claims except an FLSA claim be dismissed with prejudice and the state law claims be dismissed for lack of jurisdiction. 13cv516, Doc. 64 at 24-25. That recommendation was adopted and all of the claims except the FLSA claim were dismissed on September 9, 2014. 13cv516, Doc. 68.

         On December 6, 2017, Wells received a right to sue letter from the EEOC on his June 12, 2013 charge of discrimination. Wells II, 18cv135, Doc. 1 at 3.

         Wells I proceeded on the FLSA claim, but ultimately that claim also was dismissed with prejudice, and final judgment was entered in the case on January 5, 2018. 13cv516, Doc. 197 at 1. Wells appealed the dismissal of his FLSA claim on January 12, 2018. 13cv516, Doc. 199.

         Wells filed his second case, Wells II, on February 27, 2018, bringing claims against Gourmet Services, Inc.; Al Baker; Tia Benton; Charles Jones; and Jasper Manuel. Wells alleges in his complaint that he suffered discrimination on June 10, 2013. 18cv135 at Doc. 1 at 2. He states that his claim relates to his termination. 18cv135, Doc. 1 at 2. The factual basis of his complaint is that “Charles Jones stated if he had a gun I would be the first one he would shoot.” 18cv135, Doc. 1 at 2. He also claimed in his charge filed with the EEOC that Gourmet Services, Inc. retaliated against him. Wells II, 18cv135, Doc. 1-1 at 2.

         The appeal of Wells I was decided on August 31, 2018. Wells v. Gourmet Services, et al., Slip Op., 18-10149 (11th Cir. Aug. 31, 2018). In the opinion, the Eleventh Circuit noted that the Notice of Appeal did not encompass the earlier 2014 dismissal order, and the brief did not challenge that order, so the Eleventh Circuit did not address the dismissal of Wells' Title VII and ...


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