Gilmore-Bey v. Meltser, 2025 U.S. App. LEXIS 7319 (6th Cir. Mar. 28, 2025) (unpublished):

ORDER

Pro se Michigan plaintiff Nintu Xi Gilmore-Bey appeals the district court's judgment dismissing her employment-discrimination and defamation complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Defendants Henry Meltser and Fidelity Transportation of Michigan, Inc. (FTM) move for frivolous appeal sanctions against Gilmore-Bey under Federal Rule of Appellate Procedure 38. This case has been referred to a panel of the court that, upon examination, unanimously agrees that oral argument is not needed. See Fed. R. Civ. P. 34(a). For the following reasons, we affirm the district court's judgment and deny the defendant's motion for sanctions.

On September 19, 2022, FTM president and owner Meltser hired Gilmore-Bey, a self-described "descendent of the Autochthonous Natives of the Americas," as an office staff worker. Meltser fired Gilmore-Bey five weeks later because she was 20 minutes late [*2]  for work. Gilmore-Bey alleged that staff member "Katia" was often late, but Meltser never disciplined her. Gilmore-Bey suggested that Meltser and Katia were both Russian or of Russian descent because they sometimes spoke Russian to each other. Gilmore-Bey also alleged that another staff member, "Brian," slept at his desk and was prone to angry outbursts in the office, but Meltser did not discipline him, either.

After her termination, Gilmore-Bey filed a national-origin discrimination charge with the Equal Employment Opportunity Commission (EEOC) and received a right-to-sue letter. Gilmore-Bey then filed a complaint against Meltser and FTM in the district court, claiming that they violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the Michigan Elliott-Larsen Civil Rights Act (ELCRA), Mich. Comp. Laws § 37.2101, et seq., by committing national-origin discrimination during her employment and in terminating her. The defendants moved to dismiss Gilmore-Bey's complaint under Rule 12(b)(6). They argued that Meltser was not subject to individual liability under Title VII and that "Autochthonous Natives of the Americas" is not a cognizable protected national origin.

Gilmore-Bey responded by filing an amended complaint. Gilmore-Bey clarified that her national origin is "Autochthonous and Indigenous Native American, descendent [*3]  of the original copper-tone people of the Americas." This group, she explained, consists of "the original and allodial inhabitants of the Americas and the adjoining islands prior to the existence of the United States." Gilmore-Bey repeated the allegations concerning her employment and termination and added that the defendants' actions also violated 42 U.S.C. § 1981 and Articles VII, VIII, and XXVII of the Organization of American States' (OAS) American Declaration on the Rights of Indigenous Peoples. Gilmore-Bey also claimed that Meltser wrote false and defamatory notes about her and included them in her personnel file. Additionally, Gilmore-Bey claimed that the defendants defamed her in their motion to dismiss by calling her a "bully," a "paper terrorist," and "delusional."

The defendants then moved to dismiss the amended complaint. They again argued that Gilmore-Bey had not identified a cognizable national origin. The defendants also argued that Gilmore-Bey failed to state a defamation claim because their allegedly defamatory statements were entitled to absolute immunity under Michigan law.

Over Gilmore-Bey's objections, the district court adopted a magistrate judge's report and recommendation to [*4]  grant the motion to dismiss. The court agreed with the defendants that "Autochthonous and Indigenous Native American" is not a federally protected national origin. Further, the court concluded that absolute immunity shielded the defendants from Gilmore-Bey's defamation claims. Accordingly, the court dismissed the amended complaint with prejudice for failure to state a claim.

On appeal, Gilmore-Bey argues that the district court erred in ruling that she failed to identify a protected national origin under Title VII. But Gilmore-Bey did not develop an argument demonstrating that the district court erred in dismissing her defamation claims. Accordingly, she has forfeited those claims. See Geboy v. Brigano, 489 F.3d 752, 767 (6th Cir. 2007).

We review de novo a district court's judgment granting a Rule 12(b)(6) motion to dismiss. Bickerstaff v. Lucarelli, 830 F.3d 388, 395-96 (6th Cir. 2016). A complaint will be dismissed under Rule 12(b)(6) if it does not plead facts, accepted as true and viewed in the light most favorable to the plaintiff, that state a plausible claim to relief. See id. at 396.

National original discrimination is an unlawful employment practice under Title VII and the ELCRA. 42 U.S.C. § 2000e-2(a)(1); Mich. Comp. Laws § 37.2202(1). '"[N]ational origin' . . . refers to the country where a person was born, or, more broadly, the country from which his or her ancestors came." [*5]  Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88, 94 S. Ct. 334, 38 L. Ed. 2d 287 (1973); see also Mich. Comp. Laws § 37.2103(f) ('"National origin' includes the national origin of an ancestor."). The EEOC "defines national origin discrimination broadly as including, but not limited to, the denial of equal employment opportunity because of an individual's, or his or her ancestor's, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group." 29 C.F.R. § 1606.1. Here, Gilmore-Bey claimed that her national origin is "Autochthonous and Indigenous Native American." "Autochthonous" and "indigenous" are synonyms and refer to the earliest known inhabitants of a place. WEBSTER'S NEW WORLD DICTIONARY, 92, 687 (3d ed. 1988).

We confronted a similar issue in Wilson v. Art Van Furniture, No. 99-2292, 2000 U.S. App. LEXIS 24876, 2000 WL 1434690 (6th Cir. Sept. 19, 2000). There, a Title VII plaintiff claimed that his national origin was "the Washitaw de Dugdahmoundyah Empire." We concluded that the plaintiff was not a member of a protected class because he was born in the United States, and he "presented no credible proof that there is or ever was a country or ethnic group known as the Washitaw de Dugdahmoundyah Empire." Id.

Similarly, in this case, neither of Gilmore-Bey's complaints plausibly demonstrates that there ever was a country known as "Autochthonous and Indigenous [*6]  Native America." Gilmore-Bey alleged that she is "indigenous to the Americas," suggesting that she is a citizen of the United States. See Espinoza, 414 U.S. at 88 . And although she could have also demonstrated her national origin by alleging that she has the "physical, cultural or linguistic characteristics of a national origin group," 29 C.F.R. § 1606.1, she did not allege facts demonstrating that "Autochthonous and Indigenous Native Americans" have any particular "physical, cultural or linguistic characteristics" that make them a protected class. Finally, although a plaintiff can bring a national-origin claim based on membership in a recognized Indian tribe, cf. Dawavendewa v. Salt River Project Agric. Imp. & Power Dist., 154 F.3d 1117, 1120 (9th Cir. 1998), Gilmore-Bey did not allege that she belongs to any particular tribe.¹ Accordingly, the district court correctly concluded that she failed to state a claim for national origin discrimination under Title VII and the ELCRA.²

Lastly, Gilmore-Bey failed to state a claim under § 1981 because that provision does not cover national-origin discrimination. See Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613, 107 S. Ct. 2022, 95 L. Ed. 2d 582 (1987); Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001). HN4[] And the OAS declaration does not provide a private right of action to remedy alleged violations. See Williams v. Trump, 495 F. Supp. 3d 673, 685 (N.D. Ill. 2020), aff'd sub nom. Williams v. Pritzker, No. 20-3231, 2021 U.S. App. LEXIS 32057, 2021 WL 4955683 (7th Cir. Oct. 26, 2021); Van Hope-El v. U.S. Dep't of States, No. 1:18-cv-0441, 2019 U.S. Dist. LEXIS 11052, 2019 WL 295774, at *3 n.2 (E.D. Cal. Jan. 23, 2019), aff'd, No. 19-15311, 2019 U.S. App. LEXIS 19141, 2019 WL 3941181 (9th Cir. June 26, 2019).

Arguing that Gilmore-Bey's appeal is frivolous, the [*7]  defendants move for sanctions under Federal Rule of Appellate Procedure 38. The defendants request an award of $2,900 in attorney's fees that they have incurred defending Gilmore-Bey's appeal.

Rule 38 provides that "[i]f a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee." Fed. R. App. P. 38. Monetary sanctions may be appropriate when an appeal is wholly meritless and the appellant "essentially had no reasonable expectation of altering the district court's judgment." B & H Med., LLC v. ABP Admin., Inc., 526 F.3d 257, 270 (6th Cir. 2008) (quoting Wilton Corp. v. Ashland Castings Corp., 188 F.3d 670, 677 (6th Cir. 1999)); see also Larry E. Parrish, P.C. v. Bennett, 989 F.3d 452, 457-58 (6th Cir. 2021) ("[A]n appeal may also be frivolous if it is filed out of 'sheer obstinacy—when the only issues in the case clearly have been resolved against the appellant.'" (quoting Anderson v. Dickson, 715 F. App'x 481, 489 (6th Cir. 2017))). Bad faith is not required to award sanctions under Rule 38, but we will usually impose sanctions "only where there was some improper purpose, such as harassment or delay, behind the appeal." B & H Med., LLC, 526 F.3d at 270 (quoting Barney v. Holzer Clinic, Ltd., 110 F.3d 1207, 1212 (6th Cir. 1997)). HN7[] We have discretion under Rule 38 to deny sanctions even if the appeal was frivolous. See Burlington N. R.R. Co. v. Woods, 480 U.S. 1, 7, 107 S. Ct. 967, 94 L. Ed. 2d 1 (1987); Shirvell v. Gordon, 602 F. App'x 601, 607-08 (6th Cir. 2015).

In exercising this discretion here, we take into account the fact that Gilmore-Bey is pro se and cannot "be held to the high standards to which [*8]  members of the bar aspire or should aspire." WSM, Inc. v. Tenn. Sales Co., 709 F.2d 1084, 1088 (6th Cir. 1983). Moreover, Gilmore-Bey is indigent, and the financial affidavit we have on file states that she has been unemployed for over two years. HN8[] And we have "decline[d] to assess costs against a pro se appellant with limited financial resources, even if, 'on the basis of legal issues involved it would be appropriate to do so.'" Donkers v. Simon, 173 F. App'x 451, 454 (6th Cir. 2006) (quoting Martin v. Comm'r, 753 F.2d 1358, 1361 (6th Cir. 1985) (cleaned up)). In view of Gilmore-Bey's indigency, we decline to sanction her. However, we caution Gilmore-Bey not to pursue frivolous appeals in the future.

For these reasons, we AFFIRM the district court's judgment and DENY the defendants' motion for sanctions.

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¹ We do not hold that Gilmore-Bey was required to demonstrate membership in a recognized Indian tribe in order to plausibly allege Native American national origin, merely that this is one way in which she could have done so.

² Gilmore-Bey also alleged that she is a descendant of the "copper tone people of the Americas." Consequently, her amended complaint could possibly be construed as raising a race-discrimination claim. See In re Rodriguez, 487 F.3d 1001, 1006 n.1 (6th Cir. 2007) (noting that race and national-origin claims can overlap). But both of Gilmore-Bey's complaints repeatedly and specifically limited her claim to national-origin discrimination. Accordingly, we conclude that she did not intend to bring a race-discrimination claim against the defendants. Cf. Ang v. Procter & Gamble Co., 932 F.2d 540, 545-46 (6th Cir. 1991), abrogated on other grounds by Arbaugh v. Y&H Corp., 546 U.S. 500, 126 S. Ct. 1235, 163 L. Ed. 2d 1097 (2006).