Case: 14-3454

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

No. 14-3454
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

VERLEAN E. MACON,
Plaintiff-Appellant,
v.
J.C. PENNEY COMPANY,
Defendant-Appellee.

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FILED
Dec 29, 2014
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF
OHIO

ORDER

Before: KEITH, GILMAN, and GRIFFIN, Circuit Judges.

Verlean E. Macon, an Ohio resident proceeding pro se, appeals the district courts
judgment dismissing her complaint filed pursuant to Title VII of the Civil Rights Act of 1964
(Title VII) and the Employee Retirement Income Security Act of 1974 (ERISA). This case
has been referred to a panel of the court pursuant to Federal Rule of Appellate
Procedure 34(a)(2)(C). Upon examination, we unanimously agree that oral argument is not
needed. Fed. R. App. P. 34(a).
Macon filed an amended complaint against J.C. Penney Company (J.C. Penney),
setting forth three claims for relief. In her first claim, Macon alleged that J.C. Penney refused to
accommodate her Christian religious beliefs and terminated her employment on the basis of her
religion, in violation of Title VII. Specifically, Macon alleged that she was fired because she
refused to sign two formsa Statement of Business Ethics (SBE) and a document entitled
Our Integrity Promise (OIP). Macon alleged that all employees were required to sign the
forms, but doing so would have violated her Christian beliefs. She attached to her complaint a

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-2letter from J.C. Penney Human Resources employee Lisa Scott, which stated that Macon refused
to sign the SBE because the Bible prohibited her from taking oaths or making promises, and
because signing the SBE could prevent her from writing an autobiography that included things
that she experienced during the course of her work at J.C. Penney. Macon further alleged that
she was denied unemployment benefits and was not given a discount card following the
termination of her employment. In her second claim, Macon alleged that J.C. Penney Salon
Manager Esther Diaz forged Macons electronic signature on the SBE and OIP documents in
2010, in violation of 10 U.S.C. 923. In her third claim, Macon alleged that J.C. Penney
violated ERISA by ignoring her requests for information about her pension benefits.
J.C. Penney moved to dismiss the complaint under Federal Rule of Civil
Procedure 12(b)(6).

The district court granted the motion, finding that Macons amended

complaint did not allege facts sufficient to state a religious-discrimination or religiousaccommodation claim under Title VII, a forgery claim under 923 or Ohio law, or an ERISA
claim.
On appeal, Macon argues that the district judge was biased against her, as evidenced by
the courts appointment of an attorney who was unfamiliar with employment-discrimination
cases, and who encouraged her to accept a settlement offer. She also generally argues that her
claims of religious discrimination, forgery, and violation of ERISA were meritorious and should
not have been dismissed.
We review de novo a district courts dismissal of a complaint for failure to state a claim
upon which relief may be granted pursuant to Rule 12(b)(6). Casias v. Wal-Mart Stores, Inc.,
695 F.3d 428, 435 (6th Cir. 2012). To survive dismissal under Rule 12(b)(6), a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
To support her claim of judicial bias, Macon relies solely on the judges appointment of
counsel. The appointment of counsel was in no way detrimental to Macons interestscounsel
was dismissed upon Macons motionand was likely intended to assist Macon in presenting her

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-3case.

In any event, the appointment of counsel does not constitute extrajudicial conduct

indicative of a personal bias against Macon. See Ullmo ex rel. Ullmo v. Gilmour Acad., 273 F.3d
671, 681 (6th Cir. 2001).
As for her religious-discrimination claims, Title VII authorizes two separate types of
claims based on religion: religious-accommodation claims and religious-discrimination claims.
See Tepper v. Potter, 505 F.3d 508, 513-16 (6th Cir. 2007). The district court determined that
Macons complaint failed to state a claim for relief under either theory.
To succeed on a religious-accommodation claim under Title VII, a plaintiff must show
that (1) [s]he holds a sincere religious belief that conflicts with an employment requirement; (2)
[s]he has informed the employer about the conflicts; and (3) [s]he was discharged or disciplined
for failing to comply with the conflicting employment requirement.

Id. at 514 (internal

quotation marks omitted).

In her amended complaint, Macon did not allege any specific facts to support her
conclusory allegation that signing the SBE and OIP would have conflicted with her Christian
beliefs.

Scotts letter, which was attached to the amended complaint and, thus, could be

considered in the context of a Rule 12(b)(6) dismissal, see Bassett v. Natl Collegiate Athletic
Assn, 528 F.3d 426, 430 (6th Cir. 2008), stated that Macon refused to sign the SBE and OIP
because: (1) the Bible says that she cannot make oaths or promises; and (2) signing the
documents would prevent her from writing an autobiography that would include incidents that
occurred at J.C. Penney.

But Macons amended complaint did not identify any specific

provision in the SBE or OIP that would require her to take an oath or make a promise, and
neither the SBE nor the OIP were attached to her amended complaint. Thus, the facts alleged in
Macons amended complaint, even if accepted as true, were insufficient to show that J.C.
Penneys requirement that she sign the SBE and OIP conflicted with her religious belief that she
was prohibited from taking oaths or making promises. The factual allegations set forth in the
amended complaint were also insufficient to tie Macons desire to write an autobiography to a
sincerely held religious belief, and Scotts letter showed that Macon could have completed a
disclosure form if she felt that signing the SBE would conflict with her desire to write an

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-4autobiography. Accordingly, the district court did not err in finding that Macons amended
complaint failed to state a religious-accommodation claim under Title VII.
A Title VII religious-discrimination claim requires a defendant to show that: (1) she
belonged to a protected class; (2) she suffered an adverse employment action; (3) she was
qualified for her position; and (4) [s]he was replaced by a person outside of the protected class
or that [s]he was treated differently than similarly situated employees. Tepper, 505 F.3d at 515.
Macon did not allege that she was replaced by someone outside of the protected class, i.e., a nonChristian individual. See id. She did allege that she was intentionally treated differently from
other employees by the Defendant because of her religion. But this conclusory allegation
merely recites an element of the cause of action and is insufficient to overcome a Rule 12(b)(6)
motion to dismiss. See Iqbal, 556 U.S. at 678.
Macon alleged that she was treated differently than former employee Danny Smith
because she was denied unemployment benefits after her employment was terminated, whereas
Smith was not. She also attached to the amended complaint a declaration of Angie Mulvaney,
stating that Mulvaney received a J.C. Penney discount card after her employment was
terminated. However, neither an employers post-employment decision to challenge a request
for unemployment benefits nor an employers failure to provide a discount to a former employee
constitutes an adverse employment action. See Kuhn v. Washtenaw Cnty., 709 F.3d 612, 625
(6th Cir. 2013); Sanford v. Main St. Baptist Church Manor, Inc., 327 F. Appx 587, 597 (6th Cir.
2009). Accordingly, the district court properly found that Macons amended complaint failed to
state a religious-discrimination claim under Title VII.
Macon stated in her complaint that her forgery claim arose under 10 U.S.C. 923. But
923 is part of the Uniform Code of Military Justice, which applies only to members of the
armed forces. See 10 U.S.C. 802, 923. Under Ohio law, [t]he forgery of the signature of
another is a recognized variant of the tort known generally as invasion of privacy. James v. Bob
Ross Buick, Inc., 855 N.E.2d 119, 122 (Ohio Ct. App. 2006) (internal quotation marks omitted).
However, to be actionable under Ohio law, the plaintiffs name must be published for the
purpose of appropriating to the defendants benefit the commercial or other values associated

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-5with the name or the likeness. Id. at 123 (internal quotation marks omitted). Because Macon
did not allege that J.C. Penney published her name for the purpose of appropriating some benefit
associated with her name or likeness, the district court properly found that Macons amended
complaint did not state a claim for invasion of privacy under Ohio law.
In support of her ERISA claim, Macon alleged that J.C. Penney refused to provide
information that she requested about her pension benefits. ERISA requires administrators of
covered benefit plans to provide participants and beneficiaries with specified documents if a
written request for those documents is made. 29 U.S.C. 1024(b)(4). Because Macon did not
allege that she made a written request for documents, and because she failed to allege that she
requested documents that must be disclosed under 1024(b)(4), the district court properly found
that Macons complaint failed to state a claim for relief under that section.
For the foregoing reasons, the district courts judgment is affirmed.

Fed. R. App.

P. 34(a)(2)(C).
ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

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UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540
POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Deborah S. Hunt
Clerk

Tel. (513) 564-7000

www.ca6.uscourts.gov

Filed: December 29, 2014

Mr. Paul L. Bittner

Ice Miller
250 West Street
Suite 700
Columbus, OH 43215
Verlean E. Macon
2801 Midwood Avenue
Toledo, OH 43606
Ms. Elizabeth Weathers
J.C. Penney Corporation, Inc.
6501 Legacy Drive
Mail Stop 1122
Plano, TX 75024
Re: Case No. 14-3454, Verlean Macon v. J.C. Penney Company
Originating Case No. : 3:12-cv-02826
Dear Ms. Macon and Counsel,
The Court issued the enclosed (Order/Opinion) today in this case.
Sincerely yours,
s/Michelle M. Davis
for Cheryl Borkowski, Case Manager
Direct Dial No. 513-564-7025

Case: 14-3454

cc: Geri M. Smith

Enclosure
Mandate to issue

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