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Muammer Varol v. Pave-Rite

November 29, 2011


The opinion of the court was delivered by: Peter G. Sheridan, U.S.D.J.


This matter comes before the Court on Defendant Pave-Rite, Inc.'s, ("Defendant") motion to dismiss plaintiff's complaint, pursuant to Fed. R. Civ. P. 12(b)(6), ("Defendant's Motion") and Pro Se Plaintiff, Muammer Varol's ("Plaintiff") oral request for appointment of counsel. This action arises from Plaintiff's complaint filed on January 20, 2011, ("Plaintiff's Complaint") alleging that Defendant's failure to rehire Plaintiff for the 2010 season was discriminatory under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. On July 28, 2011, the Court heard oral argument on the motion to dismiss. At that time the motion to dismiss was converted to a motion for summary judgment because Varol, who was homeless and living in his car, was attempting to assert more facts than were set forth in the complaint. As such, the Court adjourned the July 28, 2011 hearing so that additional facts could be submitted. Thereafter, on September 28, 2011, the Court heard the testimony of Mr. Varol and accepted the affidavit of Mr. Stires (principal of Pave-Rite). Since Mr. Varol had few resources, the essential purpose of the hearing was to gather more facts from the testimony of Mr. Varol to augment his complaint to see if he had a cognizable claim. As such, the motion to dismiss for failure to state a claim is the more appropriate issue to consider than the motion for summary judgment. For the reasons set forth below, this Court grants Defendant's motion to dismiss, and denies Plaintiff's request to appoint pro bono counsel.


Plaintiff's complaint consists of a form "EEOC Complaint" with several handwritten pages attached. The EEOC Complaint Form (Complaint Form) consists of a series of questions framed so that the answers will set forth a cause of action. Unfortunately, Plaintiff failed to fill in any facts on the form. For example, paragraph 9 of the Complaint Form states "the acts complained of by you in this suit concern." Under that sentence, Mr. Varol checked off three answers -- (a) failure to employ; (b) termination of employment; and (d), other acts (which Mr. Varol described as "discrimination at work"). Underneath the check-off section, there are five lines to insert an explanation. Mr. Varol left those lines blank. In addition, paragraph 10 of the Complaint Form states "defendant's conduct is discriminatory with respect to which of the following." Immediately below, there are three lines to insert facts. Mr. Varol left these lines blank. In short, within the form Complaint, there are no facts alleged by Mr. Varol which set forth a cause of action for discrimination.

Since the Complaint Form failed to give any basis for the lawsuit, it was necessary to refer to Plaintiff's handwritten pages. Again, Plaintiff failed to allege any specific facts within the handwritten pages to support a claim of discrimination. Throughout the handwritten pages, Mr. Varol alleges that his supervisors, Wolf and Klein, gave him a "hard time". Mr. Varol explained, "didn't matter how perfect I did the job, they were finding something to blame on me," and "they were doing everything in their power [to] make me quit." Moreover, Varol claims the supervisors "almost declared war against me." However, there are no facts alleged upon which a claim of discrimination could be supported.

At oral argument, Mr. Varol was questioned about the factual basis for his complaint.

Mr. Varol testified that he was employed at Pave-Rite from 2004-2006 as a truck driver; and in December, 2006, Varol and his wife were undergoing a divorce proceeding. Due to his personal turmoil during the divorce, Varol asked Stires (owner of Pave-Rite) if he could stop working as he had in other years because the winter months are slow for a paving company. Stires objected because there was more work and demanded that Varol leave the premises immediately. Varol applied for unemployment; but Pave-Rite opposed the application on the basis that Varol quit*fn1 .

In the years of 2007 and 2008, Varol could not find work. He was homeless and living in his car. In the Spring of 2009, Pave-Rite rehired Varol as a truck driver; but Varol contends that Wolfe and Klein (his supervisors) continued to badger him. Varol contends that the badgering was due to his nationality (Turkish) and his religion (Muslim).

At the end of 2009, Varol was terminated, and in March and April of 2010, Varol sought work at Pave-Rite again. Varol was hired for two days in April. On Mr. Varol's first day of work, he injured his knee, and he was absent on the second day due to the injury. After the injury, Mr. Varol submitted his hospital bill to Mr. Stires. Mr. Stires refused to process the bill with the insurance company*fn2 .

Sometime in May 2010, Varol alleges that Pave-Rite may have hired another driver, instead of him. According to Varol, Pave-Rite hired a driver named Mario who Varol "assume[s]" is of "Spanish background," but he is only "guessing." In response to this accusation, Mr. Stires in an affidavit asserts Pave-Rite had four drivers in 2010 -- two were of Costa Rican descent, an Italian-American, and a Portuguese person.

During the hearing, the Court questioned Varol about his alleged differential treatment, and how Varol knew it was related to his origin and religion.

THE COURT: What you're describing is you might have gotten a hard time, but I don't understand how it's related to your country or your origin.

MR. VAROL: Because it was no other reason, your Honor. I was doing same job as other drivers, it is only the different on me, my origin and my religion. Other than that, I am sure if I am not different to ...

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