Hon. Mark S. Norris · U.S. District Court for the Western District of Tennessee
=== View Preferences Here ===
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION Office of the Clerk JUDICIAL PREFERENCES For Judge Mark S. Norris, United States District Judge A. CONTACT INFORMATION 1. 2. 3. 4. 5. Courtroom: Courtroom 4 in the Odell Horton Federal Building, Memphis, Tennessee Judge’s Initials: MSN Chambers’ E-mail Address (also known as the “ECF Inbox”): [email protected] Chambers’ Address: 167 N. Main St. Memphis, TN Odell Horton Federal Building (901) 495-1200 Staff Information: Cindy Migliore, Judicial Assistant, (901) 495-1376 Zandra Frazier, Courtroom Deputy, (901) 495-1277 Erin Connelly, Law Clerk Brock Willis, Law Clerk B. GENERAL PREFERENCES 1. Counsel should become familiar with the Court’s Local Rules. Counsel must comply with all Local Rules unless otherwise directed by the Court. 2. Written (or electronic) correspondence from counsel to the Court should be avoided, except for matters, such as scheduling, advising of a settlement, notifying of emergencies, etc. Counsel should take care that such communications do not address the merits of any motion or pending case. Unless the law permits or the circumstances otherwise require, counsel must copy counsel for all parties on any correspondence with the Court. 3. Calls from counsel to Chambers should be avoided except for the reasons stated above in (2). Counsel should include counsel for all parties in the case on any call to Chambers, where possible. 4. Absent an emergency or extenuating circumstances, a party must file a motion when seeking to (1) reset a hearing, or (2) extend a deadline. The motion should be filed at least three (3) business days prior to the applicable hearing or deadline. The Court will not entertain such requests via e-mail, phone, or other informal means. 5. The Court will consider reasonable requests for extension of deadlines. Absent such requests, deadlines will be enforced. 6. Counsel should include the case number and abbreviated case name in the subject line when submitting proposed orders to the ECF Inbox ([email protected]). 7. Counsel shall comply with the Local Rules regarding pro hac vice admissions. C. SCHEDULING CONFERENCES 1. By default, scheduling conferences, status conferences, or other similar case management conferences will be set to occur via Microsoft Teams as a video/virtual conference. If parties prefer to have such conference(s) in person, they must file a motion at least seven (7) days prior to the conference. 2. Parties must submit their proposed scheduling orders in Word format to the ECF Inbox ([email protected]) at least seven (7) days prior to the scheduling conference. D. DISCOVERY 1. All written discovery requests should be served sufficiently in advance of the discovery deadline so that responses will be due prior to the deadline. 2. Parties may agree to conduct discovery after the deadline is expired, but the Court will not involve itself in discovery disputes that arise following the expiration of the deadline absent exceptional circumstances. 3. Once a scheduling order has been entered, it will be modified only on a showing of good cause. The length of discovery will depend on the complexity of each case. 4. Counsel for all parties should confer regarding any discovery disputes. Such disputes should be brought promptly before the Court only when necessary and must comply with Local Rule 26.1(b). 5. Parties may agree to any reasonable confidentiality terms, but such terms do not automatically merit the filing of those materials “under seal.” To file a document under seal, the parties must move for leave to do so pursuant to the applicable Local Rules. Parties should be mindful of the high value placed on public access to judicial records and should be guided by the provisions of Fed. R. Civ. P. 26(c), the Local Rules, and Proctor & Gamble Co. v. Bankers Trust Co., 78 F.3d 219 (6th Cir. 1996). Such motions will be closely scrutinized. 2 6. Written reports by expert witnesses who are scheduled to testify need not be filed with the Court unless a party files a Daubert motion. Such reports should be filed with the Court at least seven (7) days prior to the Daubert hearing. 7. The Court generally adheres to the Standard Track Scheduling Order contained in Appendix H of the Local Rules and encourages participants in the scheduling conference to become familiar with the form prior to the conference. The Court encourages parties to use the Word format of Judge Norris’s sample Standard Track Scheduling Order, which is available on the Court’s website, when submitting proposed scheduling orders to the Court. E. MOTIONS, BRIEFS, AND HEARINGS 1. Motions are set for hearings or oral arguments at the discretion of the Court. In accordance with Local Rule 7.2(d), requests for hearings or oral arguments must (1) be made in the motion or response, and (2) explain why a hearing or oral argument would be helpful or necessary. If the Court determines that a hearing or oral arguments would be helpful or necessary, the Court will set the date and time for the hearing or argument and enter a setting letter to notify all counsel. 2. If counsel intends to present evidence at a hearing, they must notify the Court at least two (2) business days prior to the hearing. Counsel must also bring courtesy copies of any exhibits and provide those to Judge Norris and opposing counsel at the hearing. 3. Documents related to a hearing or trial should be filed early enough to allow for filing, recording, and review by the Court. If a party must file something last minute, please deliver a hard copy to Chambers and bring a copy to the hearing or trial. Unless otherwise instructed by the Court, courtesy copies should not be mailed or delivered to Chambers. 4. A party who relies on materials in the record—including, depositions, documents, electronically stored information, affidavits, declarations, stipulations, admissions, interrogatory answers, or other materials— to support or oppose a motion for summary judgment must include those materials in an appendix that complies with the requirements set forth below. a. The appendix must be assembled as a self-contained document, separate from the motion and brief or response and brief. b. Each page of the appendix must measure 8½ x 11 inches. Non-documentary materials (e.g., videotapes and other physical materials) and oversized materials (e.g., maps and schematic drawings) that are included in the appendix must be placed in an envelope that measures 9 x 12 inches. c. Each page of the appendix must be numbered legibly in the lower right- hand corner. The first page must be numbered as “1,” and succeeding pages must be numbered sequentially through the last page of the entire appendix (i.e., the numbering system must not re-start with each succeeding document in the appendix). An envelope that contains non-documentary or oversized materials must be numbered as if it were a single page. 3 d. The appendix should include a table of contents listing the materials included and relevant page numbers. 5. The Court will consider reasonable requests to exceed page limits; however, generally, such requests are denied unless good cause exists. 6. Failure to comply with page limits may result in the Court disregarding the noncompliant portion of the brief or summarily denying the underlying motion. 7. Trial briefs are encouraged in all jury trials but not required. The Court may request trial briefs on a case-by-case basis. 8. If a party files a motion for emergency relief, the filing party should also e-mail the Inbox motion ([email protected]), copying counsel for all parties. documents support ECF filed any and the in to 9. If a motion needs to be resolved on an expedited basis, counsel should caption it as an expedited motion and include the reasons for expedited consideration. 10. When a Notice of Settlement is filed in a case, the Court will automatically enter an order denying without prejudice any pending motions as moot. If an issue arises, the parties may refile any such motions. F. PRETRIAL CONFERENCE 1. All attorneys who will try a case are required to attend the pretrial conference in- person. The parties are not required to attend the pretrial conference. 2. If an attorney fails to appear at the pretrial conference or to comply with the directions set forth herein, an ex parte hearing may be held and judgment of dismissal or default or other appropriate sanctions entered. 3. Counsel should be familiar with Judge Norris’s Pretrial Procedures and come to the conference with full authority to accomplish the purpose of the conference, which is to simplify and define the triable issues, expedite the trial, and save time and expense. At the time of conference, counsel will report to the Court the prospects of settlement. 4. After the pretrial conference, the Court will enter a pretrial order that shall govern the conduct of the trial and will constitute the final statement of the issues involved. 5. Prior to the conference, counsel must do the following: a. Complete all discovery. b. Confer and exchange information as to the ultimate issues of law and fact in order to eliminate unnecessary or irrelevant issues that appear in the pleadings or discovery, arrive at all possible stipulations, and exchange documents and exhibits which will be offered in evidence at trial. 4 c. Prepare a single proposed joint pretrial order that covers the items set forth below. If counsel for all parties are unable to agree completely on a joint order, they shall submit a proposed joint pretrial order that identifies which matters are agreed upon and those matters on which they have disagreement. If counsel still cannot agree, the attorney for each party must submit a proposed pretrial order. Plaintiff’s counsel is responsible for initiating the proposed pretrial order. All counsel are responsible for ensuring the proposed pretrial order is timely filed. d. Comply with Fed. R. Civ. P. 26(a)(3)(B) on pretrial disclosures. That rule requires disclosure of witnesses, deposition testimony, and exhibits, (other than impeachment evidence), to the opposing counsel thirty (30) days before trial. Within fourteen (14) days, the opposing party must serve and file a list disclosing any objection, together with the grounds for such objection, to the admissibility of any exhibit, deposition testimony, or witness testimony. e. Furnish to the opposing party, for copying and inspection, all exhibits which are to be offered in evidence. G. JOINT PROPOSED PRETRIAL ORDER The parties’ proposed pretrial order shall contain the following: 1. In the caption, a complete listing of all parties, both plaintiff and defendant, who remain in the case as of the date the joint proposed pretrial order is filed. Do not use “et al.” 2. A statement indicating whether the case is a jury trial or non-jury trial. 3. An estimate of the length of trial. 4. A recitation that the pleadings are amended to conform to the pretrial order and the pretrial order supplants the pleadings. 5. Statement of the Court’s jurisdiction and any remaining jurisdictional issues and suggested proper resolution. 6. A list of pending motions and suggested rulings thereon. 7. A short summary of the case that may be read to the venire at the beginning of voir dire. 8. The respective contentions of the parties, including contentions about the nature and amount of damages and with respect to liability. 9. A comprehensive written statement of uncontested facts that may be stipulated and read to the jury (possible sources of these agreed facts are the pleadings, discovery, or admission of counsel). 5 10. A written statement of the contested issues of fact that will explain to the Court the nature of the parties’ dispute. 11. A written statement of the contested issues of law. This is not to be a restatement of the disputed facts but an itemization of the legal issues such as negligence, contributory negligence, etc. This is the most important part of the joint pretrial order as these issues, not the pleadings, will govern the trial. The Court wants an agreed list, not a separate list for each party. If either party insists on a triable issue, it is to be listed in the joint proposed pretrial order and will be a triable issue unless the Court decides otherwise at the pretrial conference. 12. A list of exhibits (except documents for impeachment only) to be offered in evidence by the parties, and preferably, if possible, a stipulation on their admissibility. If the parties cannot so stipulate, then the objections must be noted in the proposed pretrial order. To the extent possible, objections shall be ruled on at the pretrial conference. 13. A list of witnesses for the parties, indicating those who will be called, in the absence of reasonable notice to opposing counsel to the contrary, and those who only may be called. Any objection to a witness in general must be noted in the proposed joint pretrial order. If any Rule 702 (“expert”) witnesses, including treating physicians who will give expert testimony, are listed, the witness shall be identified as such, along with the subject matter of the expert testimony. Opposing counsel shall specify any objection to the witness’s expertise or testimony in the proposed joint pretrial order. To the extent possible, objections will be ruled on at the pretrial conference. 14. Any deposition testimony that the parties desire to offer into evidence at the trial. The parties shall designate only the relevant portions of the deposition that they wish to read at trial and advise opposing counsel of same. All objections to any such testimony must be noted in the proposed joint pretrial order. To the extent possible, objections will be ruled on at the pretrial conference. 15. A statement of the relief sought and the amount of the ascertainable damages. The listing of the amount of damages shall not constitute an agreement as to the recoverability of same unless so stated. 16. A list of the names of all attorneys of record in the case along with their law firm affiliations, if any; addresses; phone numbers; and email addresses. 17. A list of any special equipment such as overhead projectors, easels, computers, etc. that the parties intend to bring for use at the trial. The court provides a presentation system including monitors, an evidence camera, and a video distribution system for these components. The court does not provide personal computers or laptops to counsel; however, at the Court’s discretion, counsel may access the video distribution system with their own laptops to disseminate computer generated evidence. 6 H. MOTIONS IN LIMINE; JURY INSTRUCTIONS; PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. Any motions in limine must be filed not later than twenty-one (21) days before the trial date. The opposing party must file a response within seven (7) days of the date of service of the motion in limine. Motions submitted after the deadline may be denied solely on that ground. The Court will generally hear argument on pending motions in limine at the final pretrial conference but may reserve ruling until trial. 2. For jury cases, the parties must submit the following in Word format to the ECF Inbox ([email protected]) no later than two (2) weeks prior to the beginning of trial: a. An agreed set of proposed jury instructions. The parties must confer regarding proposed jury instructions to narrow areas of disagreement. The proposed jury instructions should include citations to model instructions or other supporting authority. A party requesting an instruction that cannot be agreed on must submit that instruction to the Court and opposing counsel, setting out the disagreement, by the same deadline. b. c. An agreed proposed verdict form. Any special questions for voir dire examination of the jury venire. 3. For non-jury cases, the parties must submit proposed findings of fact and proposed conclusions of law in place of the proposed jury instructions no later than two (2) weeks prior to the beginning of trial. I. TRIAL 1. The Court will conduct general voir dire and either ask counsel’s proposed special questions at that time or allow counsel to conduct limited voir dire. 2. case-by-case basis. Time limits for opening statements and closing arguments will be determined on a 3. Arguments are not permitted during opening statements. The Court may reduce the time allotted to closing arguments for counsel who violate this rule. 4. Display of printed or electronic visual media during opening statements or closing arguments will be permitted only if such exhibits either (i) have been admitted into evidence, or (ii) are the subject of a stipulation by the parties. Exceptions to this should be sought by motion, filed sufficiently in advance of the proposed use of the exhibit that all parties have a reasonable opportunity to respond. 5. Counsel must stand when addressing the Court or making objections. 6. address a witness. More than one attorney may represent a party at trial, but only one attorney may 7 7. Sidebar will be allowed if deemed necessary by the Court. If a lengthy conference is needed, the jury will be excused. 8. A party wishing to introduce videotaped testimony must notify the courtroom deputy on or before the final pretrial conference. 9. No formal motion to admit exhibits is required. Exhibits should be admitted individually and not collectively. Parties should move to admit each exhibit at or around the time it is presented unless admitted via pretrial stipulation. All objections to exhibits are dealt with at or before the final pretrial conference to the extent possible. 10. No examination beyond redirect and recross except under exceptional circumstances. 11. No written motion is required for a motion for judgment as a matter of law or when such motion is made during trial. 12. 13. case. Notetaking by jurors is permitted. Special verdict forms are utilized when necessitated by the nature of a particular 14. Written jury instructions are provided to the jury. 15. Counsel who leave the vicinity of the courtroom during jury deliberations must notify the courtroom deputy of his or her whereabouts and be able to return to the courtroom within ten minutes of being notified to do so. 16. Judge Norris adheres to the Local Rules regarding the interrogation of jurors after a trial has concluded. If the jury is polled, Judge Norris will conduct the polling. 8
=== 20-2692 ===
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION TIGER LILY, LLC; HUNTER OAKS APARTMENTS UTAH, LLC; NORTH 22ND FLAT, LLC; CHERRY HILL GARDENS, LLC; CHURCHILL TOWNHOMES, LLC; BRITTANY RAILEY; and APPLEWOOD PROPERTY MANAGEMENT, LLC, Plaintiffs, v. No: 2:20-cv-02692-MSN-atc UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT and BENJAMIN S. CARSON, M.D., in his official capacity as United States Secretary of Housing and Urban Development; UNITED STATES DEPARTMENT OF JUSTICE and WILLIAM P. BARR, in his official capacity as United States Attorney General; UNITED STATES CENTER FOR DISEASE CONTROL AND PREVENTION and NINA B. WITKOVSKY, in her official capacity as Acting Chief of Staff of the Center for Disease Control and Prevention; UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES and ALEX AZAR, in his official capacity as United States Secretary of Health and Human Services; VICE ADMIRAL JEROME M. ADAMS, M.D., in his official capacity as United States Surgeon General; and D. MICHAEL DUNAVANT, in his official capacity as United States Attorney General for the Western District of Tennessee, Defendants. ORDER GRANTING PLAINTIFFS’ MOTION FOR JUDGMENT ON THE ADMINISTRATIVE RECORD AND ORDER DENYING DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS This cause comes before the Court on Plaintiffs’ Motion for Judgment on the Administrative Record (ECF No. 84) and Defendants’ Motion for Judgment on the Pleadings. (ECF No. 82). The parties filed their respective responses on January 15, 2021.1 (ECF Nos. 87, 88.) The parties then filed their replies on January 29, 2021. (ECF Nos. 91, 92.) For the reasons below, the Court GRANTS Plaintiffs’ Motion and DENIES Defendants’ Motion. FACTUAL BACKGROUND On March 11, 2020, the World Health Organization declared COVID-19 a global pandemic. The next day, Tennessee Governor Bill Lee issued Executive Order No. 14 declaring a State of Emergency in response to the COVID-19 outbreak. Then-President Trump declared a national emergency for COVID-19 on March 13, 2020. On March 27, 2020, then-President Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”). Coronavirus Aid, Relief, and Economic Security Act, Pub. L. 116-136, 134 Stat. 281 (2020). Sections 4022 and 4023 of the CARES Act protected those with federally backed mortgages from foreclosures until at least August 31, 2020 and allowed for a mortgage forbearance for up to 180 days. Section 4024(b) provided for a 120-day eviction moratorium for rental units in properties that participated in federal assistance programs or had a federally backed mortgage or multifamily loan. Congress did not renew the CARES Act protections for homeowners or renters upon their expiration. On August 8, 2020, then-President Trump issued an executive order directing the Secretary of Health and Human Services and the Director of the Centers for Disease Control and Prevention (the “CDC”) to “consider whether any measures temporarily halting residential evictions for any 1. In conjunction with their Response, Defendants requested for leave to file excess pages. (ECF No. 87.) Plaintiffs do not oppose Defendants’ request. (Id. at PageID 2499.) The Court finds the motion well-taken and hereby GRANTS the motion. 2 tenants for failure to pay rent [were] reasonably necessary to prevent the further spread of COVID- 19 from one State or possession into any other State or possession.” Less than a month later, on September 4, 2020, the CDC issued the “Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19” (the “Halt Order”). 85 Fed. Reg. 55,292 (Sept. 4, 2020). The Halt Order imposes a moratorium on evictions of certain tenants under residential leases, “subject to further extension, modification, or rescission.” Id. at 55,296. To qualify for protection under the Halt Order, a tenant must submit a declaration under penalty of perjury affirming that the tenant: (1) has used best efforts to obtain government assistance to make rental payments; (2) expects to earn less than $99,000 in annual income in 2020, was not required to pay income taxes in 2019, or qualified for a stimulus check under the CARES Act; (3) is unable to pay full rent due to substantial loss of household income, loss of compensable hours of work or wages, lay-offs, or extraordinary out-of-pocket medical expenses; (4) is using best efforts to make partial payments; (5) would likely experience homelessness or need to move into a shared residence if evicted; (6) understands that rent obligations still apply; and (7) understands that the moratorium was to end on December 31, 2020. Id. at 55,297. The Halt Order provides extensive background on COVID-19 and its historic threat to public health. The Halt Order notes that “[t]he virus that causes COVID-19 spreads very easily 3 between people who are in close contact with one another (within about 6 feet), mainly through respiratory droplets produced when an infected person coughs, sneezes, or talks.” Id. at 55,293. In light of this, the Halt Order makes specific findings about the use and effectiveness of eviction moratoria in the context of a pandemic, providing that such moratoria “facilitate self-isolation by people who become ill or who are at risk for severe illness from COVID-19 due to an underlying medical condition.” Id. at 55,294. Further, eviction moratoria “allow State and local authorities to more easily implement stay-at-home and social distancing directives to mitigate the community spread of COVID-19,” while also facilitating “housing stability [that] helps protect public health because homelessness increases the likelihood of individuals moving into close quarters in congregate settings, such as homeless shelters, which then puts individuals at higher risk to COVID-19.” Id. While the Halt Order prohibits evictions at the national level, it contains several exceptions. It provides that it “does not apply in any State, local, territorial, or tribal area with a moratorium on residential evictions that provides the same or greater level of public-health protection” as the Halt Order’s requirements. Id. It does not relieve any individual of the obligation to pay rent, and nothing in the Halt Order prevents landlords from charging or collecting fees, penalties, or interest as a result of a failure to pay rent. Id. The Halt Order also does not preclude evictions based on a tenant, lessee, or resident: (1) engaging in criminal activity while on the premises; (2) threatening the health or safety of other residents; (3) damaging property; (4) violating any applicable building code or other similar regulations as to health and safety; or (5) violating any other contractual obligation other than the timely payment of rent. Id. 4 The Halt Order imposes criminal penalties for those that violate its provisions: Individuals could be subject to a fine of up to $250,000, one year in jail, or both, while organizations could be subject to a fine of up to $500,000. Id. at 55,296. The Halt Order was originally set to expire on December 31, 2020. However, prior to its expiration, Congress passed the Consolidated Appropriations Act, 2021 (the “CAA”), which extended the Halt Order an additional month until January 31, 2021. H.R. 133, 116th Cong., div. N, tit, V, § 502. Additionally, the CAA allocated $25 billion to states to aid individuals behind on rent. H.R. 133, 116th Cong., div. N, tit, V, § 501. On January 20, 2021, Joseph R. Biden Jr. was sworn in as President of the United States. Upon taking office, President Biden asked the CDC to consider extending the Halt Order until March 31, 2021. Fact Sheet: President-elect Biden’s Day One Executive Actions Deliver Relief for Families Across America Amid Converging Crises, THE WHITE HOUSE (Jan. 20, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-president- elect-bidens-day-one-executive-actions-deliver-relief-for-families-across-america-amid- converging-crises/. On January 29, 2021, the Director of the CDC signed an order extending and superseding the original Halt Order. (ECF No. 93-1 at PageID 2590–603.) As it stands, the Halt Order, as extended and superseded by the CDC’s January 29th order, is in place until March 31, 2021, unless further extended, modified, or rescinded. (ECF No. 93-1 at PageID 2603.) PROCEDURAL BACKGROUND Plaintiffs in this matter are a group of business organizations and individuals who own and/or manage residential real property in the form of multi-family apartment complexes, duplexes, townhomes, and single-family residences located within the Western District of Tennessee. (ECF No. 21 at PageID 195, 199–200.) On September 16, 2020, Plaintiffs filed their 5 Complaint for Declaratory Judgment and Injunctive Relief, (ECF No. 1), seeking a declaratory judgment that the Halt Order violates the Constitution and for injunctive relief to prevent Defendants from enforcing the Halt Order. On September 27, 2020, Plaintiffs filed a Motion and Application for Emergency Hearing and Preliminary Injunction. (ECF No. 12.) On October 8, 2020, Plaintiffs filed an Amended Complaint, which presents an additional claim but seeks the same relief set forth in their original Complaint. (See ECF No. 21.) On November 6, 2020, this Court issued an Order denying Plaintiffs’ Motion for Preliminary Injunction. (ECF No. 69.) In the Order, this Court found that it had jurisdiction to hear the matter but held that Plaintiffs were not entitled to a preliminary injunction because they were unable to demonstrate that they would face irreparable harm because Plaintiffs’ harm was reducible to monetary damages. (Id. at PageID 967–71, 975–81.) Defendants filed their Answer to First Amended Complaint (ECF No. 80), as well as the Administrative Record (ECF No. 79), on December 11, 2020. Defendants supplemented the administrative record on December 16, 2020. (ECF No. 81.) On December 18, 2020, Defendants filed a Motion for Judgment on the Pleadings. (ECF No. 82.) In their motion, Defendants argue: 1. the Order does not violate the Administrative Procedure Act (“APA”); 2. Plaintiffs have made no allegation that could overcome the presumption that agency action is valid; 3. the Order is demonstrably not arbitrary or capricious; and 4. Plaintiffs’ due process claims fail because the Halt Order: (1) passes the extremely deferential rational basis test applied to substantive due process challenges to economic 6 regulations; and (2) is the type of broadly applicable governmental action to which procedural due process rights do not attach. (Id. at PageID 2169.) Plaintiffs also filed a Motion for Judgment on the Administrative Record on December 18, 2020. (EFC No. 84.) In their motion, Plaintiffs argue that the Halt Order exceeded the CDC’s authority under the enabling statute, is arbitrary and capricious in violation of the APA, violates the procedural due process requirements of the APA, and is unconstitutional. (ECF No. 84 at PageID 2248.) On January 15, 2021, Plaintiffs responded in opposition to Defendants’ Motion for Judgment on the Pleadings. (ECF No. 88.) In their response, Plaintiffs echo the arguments included in their Motion for Judgment on the Administrative Record. (Id.) On the same day, Defendants filed their response in opposition to Plaintiffs’ Motion for Judgment on the Administrative Record and argued that in light of congressional action, Count 1 of Plaintiffs’ Amended Complaint was now constitutionally moot,2 or, in the alternative, the matter should be dismissed because Congress had ratified the Halt Order. (ECF No. 87-1 at PageID 2513–18.) On January 29, 2021, the parties filed replies to one another. (ECF Nos. 91, 92.) Both replies contained the same arguments made in the past with Plaintiffs alleging the Halt Order was both unlawful and unconstitutional and Defendants contending otherwise. On February 1, 2021, Defendants filed Notice with the Court that the Halt Order has now been extended March 31, 2021. (ECF No. 93.) On February 23, 2021, Defendants filed the supplemental administrative record which contained the information on which the CDC Director based her decision to extend the Halt Order. (ECF No. 94.) On February 25, 2021, Plaintiffs filed Notice that the United States District Court for the Eastern District of Texas had deemed the Halt Order unconstitutional under the 2. Defendants have since withdrawn this argument. (ECF No. 93 at PageID 2587.) 7 Commerce Clause. (ECF No. 95.) In response, Defendants asserted that the holding of this case was irrelevant to the one before the Court because Plaintiffs did not contend that the Halt Order was unconstitutional under the Commerce Clause, and because that case did not extend beyond the parties involved in the case. (ECF No. 96 at PageID 2839.) On March 1, 2021, Plaintiffs replied that the Halt Order cannot be unconstitutional in the Eastern District of Texas but lawful in the Western District of Tennessee. (ECF No. 98 at PageID 2843.) Lastly, Plaintiffs filed Notice of the decision of the United States District Court for the Northern District of Ohio on March 12, 2021. (ECF No. 100.) Defendants responded that same day. (ECF No. 101.) At a status conference today, March 15, 2021, the parties confirmed that the American Rescue Plan Act of 2021, H.R. 1319, 117th Cong. (2021), (the “Rescue Act”) does not extend the Halt Order. STANDARD OF REVIEW As an initial matter, the Court notes what appears to be a discrepancy between the parties. Plaintiffs have titled their Motion “Plaintiffs’ Motion for Judgment on the Administrative Record,” (ECF No. 84) and ask that the Court review the Halt Order under the APA. (ECF No. 84-1 at PageID 2257–59.) Defendants, on the other hand, title their Motion “Defendants’ Motion for Judgement on the Pleadings,” which asks the Court to review the Halt Order under the standard set forth under Federal Rule of Civil Procedure 12(c). (ECF No. 82-1 at PageID 2191–92.) In reality, there is not much daylight between the two sides for the Court’s review: Under either a Rule 56 motion or a Rule 12(c) motion, the standard of review is the same when it comes to agency action. See Marshall Cty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993) (“[T]here is no real distinction in this context between the question presented on a 12(b)(6) motion and a motion for summary judgment.”). When reviewing agency action, the district court “sits as 8 an appellate tribunal,” see Rempfer v. Sharfstein, 583 F.3d 860, 865 (D.C. Cir. 2009), and the question before it “is a question of law, and only a question of law.” Shalala, 988 F.2d at 1226. The Court reviews the propriety of agency action under the Administrative Procedure Act (“APA”). See Freeman v. United States Dep’t of Labor, 653 F. App’x 405, 409 (6th Cir. 2016). [T]he reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall— (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; . . . . 5 U.S.C. § 706(2); see also Bangura v. Hansen, 434 F.3d 487, 502 (6th Cir. 2006) (“The APA directs courts to review agency actions under a deferential standard. A court may not set aside or hold unlawful an agency action unless that action is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.” (internal citations omitted . An agency’s interpretation of a statute “is entitled to deference, but the courts are the final authorities on issues of statutory construction. They must reject administrative constructions of the statute . . . that are inconsistent with the statutory mandate or that frustrate the policy that Congress sought to implement.” Fed. Election Comm’n v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 31–32 (1981) (internal citations omitted). DISCUSSION This is no ordinary case. The task at hand, statutory construction of the Public Health Services Act and scrutiny of the Halt Order under the Administrative Procedure Act, is not unusual per se, but the circumstances precipitating it are rather extraordinary. Prompted by the worst 9 pandemic in more than a century, the Executive and Legislative branches of two different Administrations and two different Congresses have played ping pong, if not “hot potato,” with an eviction moratorium spanning two different years, impacting the lives and property of thousands of souls in ways never before experienced in the history of the United States. The “on-again, off-again” activity between the Legislative and Executive Branches of Government has made adjudication of the Halt Order something of a “greased pig.” No sooner may courts get a grasp than it slips away. From the CARES Act to Executive Order to the Consolidated Appropriations Act, 2021 and back to Executive Order, the Halt Order (or its equivalent) has been embraced at various times as executive action, legislative action, or both. But it has never been made law. One hundred and three years ago this month, in 1918, the last great flu epidemic began. And, just last week, Congress enacted its latest version of pandemic relief, the Rescue Act. American Rescue Plan Act of 2021, H.R. 1319, 117th Cong. (2021). The Rescue Act provides over $20 billion to underwrite rental assistance, but it does not extend the moratorium on evictions. Whereas Defendants previously asserted Congress had ratified the Halt Order under the Consolidated Appropriations Act, 2021 (ECF No. 87-1 at PageID 2516–18), any such ratification was of limited duration, and now the opposite appears true. Either Congress no longer embraces the Halt Order, or Congress feels it has served its purpose. The Halt Order will apparently come to its end, as we hope this pandemic is also finally coming to its end; however, if recent history is any guide, additional executive action might occur or is at least capable of repetition. As the Sixth Circuit has recently said, “[w]hile the law may take periodic naps during the pandemic, we will not let it sleep through one.” Maryville Baptist Church, Inc., et al. v. Beshear, 10 957 F.3d 610, 615 (6th Cir. 2020).3 Therefore, the Court must adjudicate the request for declaratory relief. I. 42 U.S.C. § 264 does not authorize the Halt Order. The question has been presented, and it is thus necessary to decide, whether the Court must declare ultra vires, and set aside, the Halt Order—the original CDC action at issue. “The Administrative Procedure Act . . . prohibits agencies from taking action ‘in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.’” Tenn. Hosp. Ass’n v. Azar, 908 F.3d 1029, 1037 (6th Cir. 2018) (citing 5 U.S.C. § 706(2)(C . It is for the Court to determine and declare whether the Halt Order is: (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege or immunity; [or] (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right . . . . 5 U.S.C. § 706(2)(A)–(C). Though much has recently been made by other litigants in other courts concerning similarly alleged constitutional violations or the absence of same, this Court seeks to avoid constitutional entanglement altogether by construing the statute narrowly at the outset as it was written for the 3. Similarly, in Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S.Ct. 63 (2020), the Supreme Court said, “But even in a pandemic, the Constitution cannot be put away and forgotten.” The per curiam opinion went on to explain that relief was warranted because “[i]t is clear that this matter is not moot” and because the applicants remained under “constant threat” that the local government could again reimpose the challenged action. Id. at 68–69; see also id. at 72 (Gorsuch, J., concurring) (“The parties before us have already shown their entitlement to relief. Saying so now will establish clear legal rules and enable both sides to put their energy to productive use, rather than devoting it to endless emergency litigation. Saying so now will dispel, as well, misconceptions about the role of the Constitution in times of crisis, which have already been permitted to persist for too long.”). 11 limited purpose for which it was designed. “A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.” Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988); United States v. Green, 654 F.3d 637, 646 (6th Cir. 2011). The statute provides: The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary. 42 U.S.C. § 264(a) (emphasis added). The regulation promulgated thereunder provides: Whenever the Director of the Centers for Disease Control and Prevention determines that the measures taken by health authorities of any State or possession (including political subdivisions thereof) are insufficient to prevent the spread of any of the communicable diseases from such State or possession to any other State or possession, he/she may take such measures to prevent such spread of the inspection, diseases as he/she deems reasonably necessary, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection. including 42 C.F.R. § 70.2 (emphasis added). Defendants contend the statute permits the CDC Director to do whatever is necessary to prevent the spread of communicable disease. (ECF No. 82-1 at PageID 2194–97.) That is not the case. The plain meaning of the statute limits the agency’s authority. If it did not do so, it would likely amount to an unconstitutional delegation of authority by Congress in violation of the non- delegation doctrine under Article 1 Section 1. This Court avoids this constitutional conundrum by construing the statute as written under norms of traditional statutory construction for this reason. 12 The statute clearly limits the agency’s authority under the context of “Quarantine” set forth in the enabling language of the Public Health Services Act to those measures enumerated and others like them. See 42 U.S.C. § 264(a). These measures do not include moratoria on evictions. “[The] Court does not revise legislation . . . just because the text as written creates an apparent anomaly[.]” Michigan v. Bay Mills Indian Cmty., 572 U. S. 782, 794 (2014). Here we have an apparent anomaly; not because of the text of the statute as written, but because the CDC has historically confined its actions to those traditionally associated with quarantine as defined by law.4 “[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing, but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover.” Lynch v. Alworth-Stephens Co., 267 U.S. 364, 370 (1925) (citation and internal quotations omitted). The Court does not minimize the gravity of the pandemic nor the exigency of this hard case. It is noteworthy, however, that Congress has neither acted to amend the Public Health Services Act, the CARES Act, nor provided for an ongoing moratorium on evictions as recently as the adoption of the Rescue Act last week. It is not the Court’s role to revise the Public Health Services Act nor any subsequent legislation through its own ingenuity when Congress could do so through legislation instead. Judicial restraint is the order of the day. Alexander Hamilton quoted Montesquieu in Federalist No. 78 for good reason: “There is no liberty if the power of judging be not separated from the legislative and executive powers.” The Federalist No. 78, at 379–80 (Alexander Hamilton) (Dover ed., 2014). This Court respects and maintains that separation. 4. Ironically, the last public health event prompting a response of this magnitude by the CDC was the quarantine imposed during the influenza pandemic of 1918. But the Halt Order is not a quarantine, and it is nothing like anything the CDC has ever undertaken. 13 Fortunately, traditional rules of statutory interpretation make this possible because to read the language otherwise ignores important canons of statutory construction — noscitur a sociis, ejusdem generis, Constitutional avoidance, and absurd results — among others. In the recent case of Donovan v. Firstcredit, Inc., 983 F.3d 246 (6th Cir. 2020), construing the Fair Debt Collection Practices Act, the Sixth Circuit once again makes clear, “[t]he traditional canons of statutory interpretation are useful in determining whether the statutory text is susceptible to more than one reasonable interpretation.” Donovan, 983 F.3d at 256 (emphasis added) (citing United States v. Miller, 734 F.3d 530, 541 (6th Cir. 2013 . “[T]he question whether a statute is ambiguous arises after, not before, a court applies traditional canons of interpretation[.]” OfficeMax, Inc. v. United States, 428 F.3d 583, 592 (6th Cir. 2005); Donovan, 983 F.3d at 256. Plaintiffs contend the CDC Director is limited to the types of measures to be undertaken. (ECF No. 84-1 at PageID 2265–69.) Defendants contend she is not. (ECF No. 82-1 at PageID 2194–201.) Therein lies the rub. Plaintiffs’ interpretation is the more reasonable. If the Director were not limited in his or her authority, why list any specific examples of measures within that authority? Why not simply provide the Director “is authorized to make and enforce such regulations as in [her] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases.”? In other words, Defendants’ theory renders the limitations of the statute—e.g. inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals, or articles to be so infected or contaminated—superfluous or surplusage which must be resisted. See Yates v. United States, 574 U.S. 528, 543 (2015). In Yates v. United States, the Supreme Court was confronted with construction of the term “tangible object;” specifically, whether a small fish was a tangible object within the meaning of the Sarbanes-Oxley Act prohibiting tampering with “any record, document, or tangible object” in 14 an attempt to obstruct a federal investigation. Yates, 574 U.S. at 531–32. Did it refer to “something similar to records or documents” or, alternatively, “colonial farmhouses, crocodiles, or fish” instead? Justice Ginsburg wrote: We resist a reading of §1519 that would render superfluous an entire provision passed in proximity as part of the same Act. The words immediately surrounding “tangible object” in §1519— “falsifies, or makes a false entry in any record [or] document”—also cabin the contextual meaning of that term. As explained in Gustafson v. Alloyd Co., 513 U.S. 561 (1995), we rely on the principle of noscitur a sociis—a word is known by the company it keeps—to “avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words, thus giving unintended breadth to the Acts of Congress.” In Gustafson, we interpreted the word “communication” in §2(10) of the Securities Act of 1933 to refer to a public communication, rather than any communication, because the word appeared in a list with other words, notably “notice, circular, [and] advertisement,” making it “apparent that the list refer[red] to documents of wide dissemination.” And we did so even though the list began with the word “any.” The noscitur a sociis canon operates in a similar manner here. “Tangible object” is the last in a list of terms that begins “any record [or] document.” The term is therefore appropriately read to refer, not to any tangible object, but records and involving specifically documents, i.e., objects used to record or preserve information…. tangible objects the subset of to A canon related to noscitur a sociis, ejusdem generis, counsels: “[W]here general words follow specific words in a statutory enumeration, the general words are [usually] construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” In Begay v. United States, 553 U.S. 137, 142-143 (2008), for example, we relied on this principle to determine what crimes were covered by the statutory phrase “any crime . . . that . . . is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]” The enumeration of specific crimes, we explained, indicates that the “otherwise involves” provision covers “only similar crimes, rather than every crime that ‘presents a serious potential risk of physical injury to another.’” Had Congress intended the latter “all encompassing” meaning, we observed, “it is hard to see why it would have needed to include the examples at all.” Just so here. Had Congress intended “tangible object” in §1519 to be interpreted so generically as to capture physical objects as dissimilar as documents and fish, Congress would have had no reason to refer specifically to “record” or “document.” The Government’s unbounded reading of “tangible object” would render those words misleading surplusage. 15 Id. at 543–46 (internal citations omitted). The statute before this Court sets forth a narrow list of measures which may be undertaken to make and enforce regulations necessary to prevent the spread of disease. The statute authorizes the Director to undertake certain specifically enumerated acts “and other measures, as in [her] judgment may be necessary.” 42 U.S.C. § 264(a). But those “other measures” are limited by the specific examples listed. They provide the intelligible principle without which Congress’ delegation of authority in this instance would be too broad to withstand Constitutional scrutiny.5 To ignore them creates surplusage which is also to be avoided. It would not be reasonable had Congress delegated such broad authority nor could it constitutionally have done so. The CDC was given broad authority to make and enforce regulations, and the statute specifically identifies the measures to be taken. To hold otherwise would be to construe the statute so broadly as to grant this administrative agency unfettered power to prohibit or mandate anything, which would ignore the separation of powers and violate the non- delegation doctrine. The agency could not only prohibit landlords from evicting tenants (whether occupying federally supported property or not) but any “congregate activity”—e.g., in-person voting, interstate and intra-state travel or mass immigration—even though it has not done so. Under Defendants’ theory, the agency could also mandate the nationwide wearing of masks even though it has not done so. Once again from Federalist No. 78: There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can 5. Unfortunately, the regulation does the opposite of what the statute allows. It authorizes the Director to take such measures as she deems reasonably necessary, including those specifically enumerated. 42 C.F.R. § 70.2. This is arguably broader than—or beyond—the statute’s authority. So, too, then is the Halt Order. 16 be valid. To deny this would be to affirm that the deputy is greater than his principle; . . . that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid. The Federalist No. 78, at 380 (Alexander Hamilton) (Dover ed., 2014). The Sixth Circuit recognizes and upholds this fundamental principle. “Just as the executive and judicial branches may not encroach on the power of Congress, Congress may not abdicate its responsibility to either of these two branches.” Green, 654 U.S. at 649. The Supreme Court has emphasized that “the integrity and maintenance of the system of government ordained by the Constitution mandate that Congress generally cannot delegate its legislative power to another Branch.” Mistretta v. United States, 488 U.S. 361, 371–72 (1989) (internal quotation marks and citation omitted). The Supreme Court has recognized that “the separation-of-powers principle, and the nondelegation doctrine in particular, do not prevent Congress from obtaining the assistance of its coordinate Branches.” Id. at 372. “So long as Congress ‘shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.’” Id. (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928 (alteration in original); Green, 654 F.3d at 649. The Court construes 42 U.S.C. § 264 narrowly in order to uphold the Separation of Powers and avoid violation of the non-delegation doctrine. Congress is vested with the sole authority to legislate. See U.S. Const., art. I, §§ 1, 8; see also A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 529 (1935). Under the non-delegation doctrine, “Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested.” A.L.A. Schechter Poultry Corp., 295 U.S. at 529. However, the non-delegation doctrine does not 17 keep “Congress from obtaining the assistance of its coordinate Branches.” Mistretta, 488 U.S. at 372; Green 654 F.3d at 649. In J.W. Hampton, Chief Justice Taft invoked the maxim “delegata potestas non potest delegari”—no delegated powers shall be further delegated: The well-known maxim “Delegata potestas non potest delegari,” applicable to the law of agency in the general and common law, is well understood and has had wider application in the construction of our Federal and State Constitutions than it has in private law. The Federal Constitution and State Constitutions of this country divide the governmental power into three branches. The first is the legislative, the second is the executive, and the third is the judicial, and the rule is that in the actual administration of the government Congress or the Legislature should exercise the legislative power, the President or the State executive, the Governor, the executive power, and the Courts or the judiciary the judicial power, and in carrying out that constitutional division into three branches it is a breach of the National fundamental law if Congress gives up its legislative power and transfers it to the President, or to the Judicial branch, or if by law it attempts to invest itself or its members with either executive power or judicial power. This is not to say that the three branches are not co-ordinate parts of one government and that each in the field of its duties may not invoke the action of the two other branches in so far as the action invoked shall not be an assumption of the constitutional field of action of another branch. In determining what it may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental co-ordination. J.W. Hampton, 276 U.S. at 405–06. Construing the statute in accord with this maxim guards against the devolution of delegation otherwise lawful into a disintegration of the Separation of Powers altogether. Congress may delegate but not abdicate. Upholding the Halt Order under these circumstances, particularly where criminal sanctions are ultimately ordered by the CDC, goes too far. It would amount to an impermissible delegation by Congress authorizing the CDC to make law. As Chief Justice Taft wrote, “[t]he true distinction . . . is [] between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the 18 latter no valid objection can be made.” J.W. Hampton, Jr., 276 U.S. at 407 (quoting Cincinnati, Wilmington & Zanesville R.R. Co. v. Comm’r, 1 Ohio St. 77, 88–89 (Ohio 1852 . II. Congress did not permanently ratify the Halt Order. Defendants argue that, because Congress extended the Halt Order in the Consolidated Appropriations Act, 2021, it ratified the Halt Order. (ECF No. 87-1 at PageID 2516–18.) The Court disagrees. Congress may have done so at one point in time, but not for all time; not to the present. Congress has “the power to ratify the acts which it might have authorized.” United States v. Heinszen & Co., 206 U.S. 370, 384 (1907). This power of authorization extends to executive orders. Muller Optical Co. v. EEOC, 574 F. Supp. 946, 953 (W.D. Tenn. 1983) (“When the President, by executive order, has taken action that he may not have been authorized to take, Congress, in some situations, has the power to ratify the President’s actions and thus legitimize any irregularity.”) In particular, Congress may ratify an executive action where “both Houses of Congress either pass legislation appropriating funds to implement the executive order or make reference to the executive order in subsequently passed legislation.” Id. While the Court makes no determination as to whether Congress could have passed the Halt Order, Defendants’ arguments are moot given the temporal limit that Congress included on the extension at that time. The Consolidated Appropriations Act, 2021 extended the eviction moratorium only through the end of January. H.R. 133, 116th Cong., div. N, tit, V, § 502. Despite the winding history of the Halt Order, it now rests within the Executive Branch, and it would no longer be effective but for executive action. As a result, it makes little sense to find that the Halt Order was permanently ratified by a Congressional extension of limited duration. In addition, a one-month extension of the Halt Order does not remedy the Constitutional infirmities of an open- 19 ended delegation. For these reasons, Defendants’ arguments concerning ratification are unavailing. CONCLUSION The Halt Order exceeds the statutory authority of the Public Health Services Act, 42 U.S.C. § 264. The Halt Order is ultra vires and unenforceable in the Western District of Tennessee. IT IS SO ORDERED, this 15th day of September 2021. s/ Mark S. Norris MARK S. NORRIS UNITED STATES DISTRICT JUDGE 20
=== 20-2172 ===
Case 2:20-cv-02172-MSN-jay Document 20 Filed 07/02/21 Page 1 of 17 PageID 362 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ______________________________________________________________________________ DEREK BOWLES, Plaintiff, v. MAPCO EXPRESS, INC., Defendant. Case No. 2:20-cv-2172-MSN-jay JURY DEMAND ______________________________________________________________________________ ORDER GRANTING DEFENDANT MAPCO EXPRESS INC.’S MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Before the Court is Defendant Mapco Express Inc.’s Motion for Summary Judgment (“Motion”) (ECF No. 15) filed April 9, 2021. In support of its Motion, Defendant has also filed a Memorandum (ECF No. 15-5) and a Statement of Undisputed Material Facts (“Defendant’s SUMF”) (ECF No. 16). Plaintiff filed his response in opposition on May 7, 2021. (ECF No. 17.) Plaintiff has also submitted a Statement of Undisputed Facts in support of his response (“Plaintiff’s SUF”) (ECF No. 17-1). Defendant filed its reply (ECF No. 19), along with a response to Plaintiff’s SUF (ECF No. 18) on May 21, 2021. For the reasons set forth below, Defendant’s Motion is GRANTED. BACKGROUND Plaintiff Derek Bowles sued his former employer, Defendant Mapco Express, Inc., alleging violations of the Americans with Disabilities Act of 1990 (the “ADA”), the Family and Medical Leave Act (the “FMLA”), and the Uniformed Services Employment and Reemployment Rights Act (the “USERRA”). (See ECF No. 1.) However, in response to Defendant’s Motion, Plaintiff Case 2:20-cv-02172-MSN-jay Document 20 Filed 07/02/21 Page 2 of 17 PageID 363 conceded his claims under the FMLA and the USERRA, leaving only his claims under the ADA. (ECF No. 17 at PageID 211.) As an initial matter, Defendant argues that Plaintiff’s SUF was not properly submitted and should be stricken from the record. (ECF No. 18 at PageID 287.) Defendant argues that this District’s Local Rules allow Plaintiff, as the nonmoving party, to submit a statement of additional disputed facts. (Id.) Defendant argues that Plaintiff’s SUF contains facts that he contends are undisputed, with citations supporting the same, and therefore, Plaintiff’s SUF should be stricken for failure to comply with the Local Rules. (Id.) This Court agrees. The Local Rules provide that the nonmovant’s response to a motion for summary judgment may contain a concise statement of any additional facts that the nonmovant contends are material and as to which the non-movant contends there exists a genuine issue to be tried. Each such disputed fact shall be set forth in a separate, numbered paragraph with specific citations to the record supporting the contention that such fact is in dispute. Local Rule 56.1(b) (emphasis added). “District courts have broad discretion in interpreting, applying, and determining the requirements of their own local rules.” Pearce v. Chrysler Grp., L.L.C. Pension Plan, 615 F. App’x 342, 349–50 (6th Cir. 2015) (citing S.S. v. E. Ky. Univ., 532 F.3d 445, 451 (6th Cir. 2008 . “The district court does not have to accept every filing submitted by a party.” Ross, Brovins & Oehmke, P.C. v. Lexis Nexis Grp., a Div. of Reed Elsevier Grp., PLC, 463 F.3d 478, 488 (6th Cir. 2006). A court acts within its discretion when it strikes a filing for, inter alia, untimeliness or a failure to comply with the local rules. See Ordos City Hawtai Autobody Co., Ltd. v. Dimond Rigging Co., LLC, 695 F. App’x 864, 870–72 (6th Cir. 2017) (affirming trial court’s striking of response brief because of failure to comply with local rules); Ross, 463 F.3d at 488–89 (affirming trial court’s striking of reply brief because party failed to request the necessary leave to file); Jones v. Northcoast Behavioral Healthcare Sys., 84 F. App’x 597, 598–99 (6th Cir. 2003) (affirming trial court’s striking of untimely memoranda of law). 2 Case 2:20-cv-02172-MSN-jay Document 20 Filed 07/02/21 Page 3 of 17 PageID 364 Plaintiff’s SUF contains 43 numbered paragraphs with citations to the record that support the veracity of the particular fact stated, while failing to cite anything in the record supporting the contention that such fact is in dispute. In addition to the noncompliance with the Local Rules, the facts set forth in paragraph 36 of Plaintiff’s SUF are not supported by admissible evidence as they are based on hearsay. Further, the facts in paragraph 39 are based on a document that has not been properly authenticated pursuant to Fed. R. Evid. 901(a) and are therefore not supported by admissible evidence. Accordingly, because Plaintiff’s SUF fails to comply with the Local Rules and contains statements of fact based on inadmissible evidence, the Court disregards Plaintiff’s SUF in its entirety. The facts as set forth herein are therefore taken from the Complaint, Defendant’s SUMF, Plaintiff’s response thereto, and related exhibits. Defendant hired Plaintiff in 2017 as a Field Service Technician II. (ECF No. 17-3 at PageID 277.) The job description for a Field Service Technician II states in part that the employee is “regularly required to sit, hear, stand, lift, climb, twist, bend, kneel, speak and use hands to repair, install and maintain equipment.” (Id. at PageID 278.) The job description further states that the employee “[m]ust be capable of working from a ladder and able to lift 50 lbs.” (Id.) As a Field Service Technician II, Plaintiff was responsible for a range of maintenance tasks at Defendant’s stores, including plumbing, electrical, and structural maintenance repairs. (Id. at PageID 277.) Plaintiff performed tasks that required climbing a ladder and performing work while perched on a ladder, as well as lifting objects weighing up to 60 pounds. (Id.) Plaintiff was also responsible for working on fuel pumps, including replacing fuel pump motors weighing 50 pounds. (Id.) Depending on the position of the fuel pump, in order to replace it, Plaintiff would be required 3 Case 2:20-cv-02172-MSN-jay Document 20 Filed 07/02/21 Page 4 of 17 PageID 365 to bend, kneel, crouch, and lie prone on the ground to unbolt the pump so that he could hook a strap to the motor, which was then used to pull the pump up. (Id. at PageID 278.) One potential danger that Field Service Technicians face on the job is fuel leaks. In that event, it is crucial that the Field Service Technician be able to move quickly to shut off the fuel line and also get him or herself out of harm’s way. (Id. at PageID 279.) Prior to his employment with Defendant, Plaintiff was diagnosed with Compartment Syndrome, which causes periodic numbness in Plaintiff’s leg that affects his balance and can cause him to fall. (Id.) Plaintiff does not know what triggers these episodes and he is unable to predict when they might suddenly impair his balance. (Id.) In early 2019, Plaintiff experienced a series of falls in the span of two months, which he attributed to his Compartment Syndrome. (Id.) In at least one of these episodes, Plaintiff blacked out and was unsure how long he was unconscious. (Id.) Because of these episodes, Plaintiff requested a cane from his Veterans’ Affairs (“VA”) physician and received one on March 13, 2019. (Id. at PageID 280.) Shortly after Plaintiff received his cane, he told Maintenance Manager Ray Whitaker (“Mr. Whitaker”) that he needed to use the cane for balance while working. (Id.) In response, Mr. Whitaker told Plaintiff that he needed to submit medical documentation explaining his need for the cane while working. (Id.) Mr. Whitaker also called Maintenance Director Laurie Crowe (“Ms. Crowe”) and told her that he observed Plaintiff using a cane and was worried about Plaintiff’s safety. (Id.) Plaintiff obtained a letter from his VA physician, Dr. Douglas Farst, dated March 26, 2019, which was received by Nancy Harris (“Ms. Harris”), Defendant’s Manager of Team Member Relations, on April 4, 2019. (ECF No. 15-1 at PageID 125; ECF No. 17-3 at PageID 280.) Doctor 4 Case 2:20-cv-02172-MSN-jay Document 20 Filed 07/02/21 Page 5 of 17 PageID 366 Farst’s letter stated, “It is medically indicated for [Plaintiff] to use [a] cane to assist with his chronic medical condition.” (ECF No. 15-1 at PageID 125; ECF No. 17-3 at PageID 280–81.) Ms. Harris spoke with Plaintiff the day after receiving the letter from Dr. Farst. (ECF No. 17-3 at PageID 281.) Ms. Harris alleges that she was concerned about Plaintiff’s ability to perform his job safely given his unpredictable balance issues. (Id.) During Ms. Harris’ conversation with Plaintiff, Plaintiff insisted he was able to perform his job duties with a cane. (Id.) Mr. Harris, however, believed she needed more information before Plaintiff could continue to work, and Plaintiff was placed on leave beginning April 5, 2019. (Id.; ECF No. 15-1 at PageID 139.) Plaintiff and Ms. Harris spoke again by phone on April 16, 2019 and discussed the elements of Plaintiff’s job description. (ECF No. 17-3 at PageID 281.) Plaintiff agreed to take a copy of his job description to his physician so that the physician could determine whether he was fit to perform the essential functions of the position. (Id. at PageID 282.) On May 1, 2019, Plaintiff’s attorney faxed another letter from Dr. Farst dated April 23, 2019. (Id.) The letter from Dr. Farst provided that “[Plaintiff] may return to work without any physical restriction related to his job requirements.” (Id.; ECF No. 15-1 at PageID 130.) Even after this second letter from Dr. Farst, Ms. Harris believed she needed more information before Plaintiff could return to work. (ECF No. 17-3 at PageID 282.) As a result, Ms. Harris requested that Plaintiff provide clarifying information from his physician to explain the nature of Plaintiff’s condition and his need for an accommodation, if any. (Id. at PageID 282–83.) On July 12, 2019, Ms. Harris sent Plaintiff a letter stating, “[t]he medical documentation you have provided thus far is insufficient for [Defendant] to accurately assess your need for an accommodation.” (ECF No. 15-1 at PageID 135.) The letter asked Plaintiff to have his physician do the following: (1) provide information describing the nature of Plaintiff’s impairment; (2) 5 Case 2:20-cv-02172-MSN-jay Document 20 Filed 07/02/21 Page 6 of 17 PageID 367 review the Field Service Technician II job description and identify any restrictions that Plaintiff may have in performing those duties; (3) confirm whether Plaintiff could perform the essential functions of the job safely; (4) identify any accommodations necessary to perform the essential functions of his job; and (5) identify the expected duration of any such accommodations. (Id; ECF No. 17-3 at PageID 283.) Defendant alleges that Plaintiff did not provide any information in response to Ms. Harris’ July 12, 2019 letter. (ECF No. 17-3 at PageID 283.) Plaintiff acknowledges that Dr. Farst declined to fill out and return the paperwork requested by Ms. Harris in her July 12, 2019 letter; however, he asserts that his counsel provided Defendant with Dr. Farst’s reasoning in declining to fill out the paperwork sent by Ms. Harris. (Id.) On September 3, 2019, Ms. Harris sent another letter to Plaintiff again requesting that Plaintiff’s physician provide the information previously requested in Ms. Harris’ letter dated July 12, 2019. (ECF No. 15-1 at PageID 139; ECF No. 17-3 at PageID 284.) Ms. Harris’ letter stated that Plaintiff had until September 20, 2019 to provide the requested information to Defendant. (ECF No. 15-1 at PageID 139; ECF No. 17-3 at PageID 284.) The letter stated that if Defendant did not receive the information prior to that deadline, or Plaintiff did not contact Ms. Harris regarding an extension of the deadline, Defendant would assume Plaintiff did not wish to return to work and voluntarily resigned his position. (ECF No. 15-1 at PageID 139; ECF No. 17-3 at PageID 284.) Plaintiff, through his counsel, requested an extension through October 15, 2019. (ECF No. 17-3 at PageID 284.) However, Plaintiff did not provide the medical form by the extended deadline, nor did he request any further extension. (Id.) 6 Case 2:20-cv-02172-MSN-jay Document 20 Filed 07/02/21 Page 7 of 17 PageID 368 On October 21, 2019, Ms. Harris sent a final letter, explaining that Plaintiff had failed to provide the requested information by the October 15, 2019 extended deadline. (Id.) Plaintiff did not contact Ms. Harris in response to this letter, and his employment was terminated. (Id.) STANDARD OF REVIEW Federal Rule of Civil Procedure 56 permits a party to move for summary judgment — and the Court to grant summary judgment — “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party asserting the presence or absence of genuine issues of material facts must support its position either by “citing to particular parts of materials in the record,” including depositions, documents, affidavits or declarations, stipulations, or other materials, or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Nat'l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence, judge the credibility of witnesses, or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may discharge this burden either by producing evidence that demonstrates the absence of a genuine issue of material fact or simply “by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325. Where the 7 Case 2:20-cv-02172-MSN-jay Document 20 Filed 07/02/21 Page 8 of 17 PageID 369 movant has satisfied this burden, the nonmoving party cannot “rest upon its . . . pleadings, but rather must set forth specific facts showing that there is a genuine issue for trial.” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009) (citing Matsushita, 475 U.S. at 586; Fed. R. Civ. P. 56). The nonmoving party must present sufficient probative evidence supporting its claim that disputes over material facts remain and must be resolved by a judge or jury at trial. Anderson, 477 U.S. at 248–49 (citing First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253 (1968 ; see also White v. Wyndham Vacation Ownership, Inc., 617 F.3d 472, 475–76 (6th Cir. 2010). A mere scintilla of evidence is not enough; there must be evidence from which a jury could reasonably find in favor of the nonmoving party. Anderson, 477 U.S. at 252; Moldowan, 578 F.3d at 374. The Court’s role is limited to determining whether there is a genuine dispute about a material fact, that is, if the evidence in the case “is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. Such a determination requires that the Court “view the evidence presented through the prism of the substantive evidentiary burden” applicable to the case. Id. at 254. Thus, if the plaintiff must ultimately prove its case at trial by a preponderance of the evidence, on a motion for summary judgment the Court must determine whether a jury could reasonably find that the plaintiff’s factual contentions are true by a preponderance of the evidence. See id. at 252–53. Finally, if the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the movant is entitled to summary judgment. Celotex, 477 U.S. at 323. The Court must construe Rule 56 with due regard not only for the rights of those “asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury,” but also for the rights of those “opposing such claims and 8 Case 2:20-cv-02172-MSN-jay Document 20 Filed 07/02/21 Page 9 of 17 PageID 370 defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.” Id. at 327. DISCUSSION The ADA states, “[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Although not entirely clear from the Complaint, it appears Plaintiff pursues two theories of discrimination under the ADA: first, that he was terminated because of his disability; and second, that Defendant failed to offer him the reasonable accommodation he requested.1 (See ECF No. 1 at PageID 4–5.) The Court addresses each theory in turn below. A. Discrimination Claim In the absence of direct evidence of discrimination, the burden shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), is used to evaluate workplace discrimination claims. Thompson v. Fresh Products, LLC, 985 F.3d 509, 522 (6th Cir. 2021). Under this framework, the plaintiff must first establish a prima facie case of discrimination, which 1 Plaintiff’s Complaint also alleges that Defendant’s conduct “constitutes wrongful termination in violation of the laws and public policy of the State of Tennessee” and a “violation of the Common Law.” (ECF No. 1 at PageID 5.) In its Memo, Defendant specifically references and notes that the Tennessee Disability Act (“TDA”), Tenn. Code Ann. § 8-50-103, and ADA are generally analogous with respect to their prohibition on discrimination, but that the TDA does not require employers offer a reasonable accommodation. Plaintiff’s response does not raise any arguments specific to the TDA, or any other Tennessee law, but instead limits his arguments to the ADA. Because Plaintiff has chosen to limit himself to arguments under the ADA, the Court will not include any separate analysis of potential TDA-related issues or other claims under Tennessee law. Additionally, as to any TDA claims, such claims are analyzed under the same principles as those utilized for the ADA. See Cardenas-Meade v. Pfizer, Inc., 510 F. App’x 367, 369 n.2 (6th Cir. 2013). 9 Case 2:20-cv-02172-MSN-jay Document 20 Filed 07/02/21 Page 10 of 17 PageID 371 requires him to show that: “(1) he is a member of a protected group, (2) he was subject to an adverse employment decision, (3) he was qualified for the position, and (4) he was replaced by a person outside of the protected class.” Id. (quoting Carter v. Univ. of Toledo, 349 F.3d 269, 273 (6th Cir. 2003 . Once the plaintiff establishes a prima facie case of discrimination, the burden shifts to the employer to provide a legitimate, non-discriminatory reason for the adverse action. Id. (citing Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1329 (6th Cir. 1994 . If the employer meets its burden, the burden shifts back to the plaintiff to establish that the proffered reason was merely pretext for unlawful discrimination. Id. To establish pretext, a plaintiff may show that the defendant’s reason “(1) has no basis in fact, (2) did not actually motivate the defendant’s challenged conduct, or (3) was insufficient to warrant the challenged conduct.” Id. (quoting Carter, 349 F.3d at 274). At issue here is the third element of Plaintiff’s prima facie case—whether he was qualified for the position. An individual is qualified for a position under the ADA if he or she can perform the essential functions of the position, with or without an accommodation. 42 U.S.C. § 12111(8); 29 C.F.R. § 1630.2(m). However, an individual is not qualified for a position “if he or she poses a ‘direct threat’ to the health or safety of others which cannot be eliminated by a reasonable accommodation.” Michael v. City of Troy Police Dept., 808 F.3d 304, 307 (6th Cir. 2015) (quoting Mauro v. Borgess Med. Ctr., 137 F.3d 398, 402 (6th Cir. 1998 ; 42 U.S.C. § 12111(3). “To determine whether an individual poses a direct threat, an employer must undertake ‘an individualized assessment of the individual’s present ability to safely perform the essential functions of the job.’” Siewertsen v. Worthington Indus., Inc., 783 F. App’x 563, 572 (6th Cir. 2019) (quoting 29 C.F.R. § 1630.2(r . When determining if a direct threat exists, factors to be 10 Case 2:20-cv-02172-MSN-jay Document 20 Filed 07/02/21 Page 11 of 17 PageID 372 considered include: “(1) [t]he duration of the risk; (2) [t]he nature and severity of the potential harm; (3) [t]he likelihood that the potential harm will occur; and (4) [t]he imminence of the potential harm.” 29 C.F.R. § 1630.2(r). “Whether an employer properly determined that a person poses a direct threat, for purposes of the ADA, depends on ‘the objective reasonableness of [the employer’s] actions.’” Michael, 808 F.3d at 307 (quoting Bragdon v. Abbott, 524 U.S. 624, 650 (1998 . “An employer’s determination that a person cannot safely perform his job functions is objectively reasonable when the employer relies upon a medical opinion that is itself objectively reasonable.” Id. (citing Holiday v. City of Chattanooga, 206 F.3d 637, 645–46 (6th Cir. 2000) and Darnell v. Thermafiber, Inc., 417 F.3d 657, 660 (7th Cir. 2005 . Viewing the facts in the record and all inferences therefrom in the light most favorable to Plaintiff, this Court finds that Plaintiff has failed to produce sufficient probative evidence to satisfy the third element of his prima facie case. Plaintiff has submitted two conclusory, and arguably contradictory, one sentence letters from his physician, Dr. Farst. Defendant insists the letters support his claim, particularly the second letter, because he alleges that Dr. Farst drafted the second letter after a therapeutical simulation of Plaintiff’s job duties. (ECF No. 17 at PageID 207.) However, nothing in Dr. Farst’s letter references such simulation, and the simulation is not part of the record in this matter. Thus, this Court concludes that the record evidence herein is not sufficient to allow a jury to reasonably conclude that Plaintiff has satisfied the third element of his prima facie case. The third element of Plaintiff’s prima facie case is further undermined because he has not presented evidence from which a jury could reasonably find that he does not pose a “direct threat” to the health or safety of others. The circumstances here are a bit unusual in that Defendant never made a final decision as to whether Plaintiff could safely perform the functions of a Field Service 11 Case 2:20-cv-02172-MSN-jay Document 20 Filed 07/02/21 Page 12 of 17 PageID 373 Technician II. Rather, Defendant was still attempting to obtain the information necessary to make this determination when Plaintiff ceased responding to its inquiries. Although arguably not directly applicable because no decision had been made, the “objective reasonableness” standard used to evaluate an employer’s determination that a person poses a direct threat is helpful in evaluating Defendant’s actions. It is undisputed that due to his Compartment Syndrome, Plaintiff suffers periodic numbness in his leg that affects his balance and can cause him to fall. It is also undisputed that Plaintiff is unable to predict when these episodes might occur, and that on at least one occasion, Plaintiff blacked out during one of these episodes. And it is undisputed that Plaintiff’s job required him to perform tasks where he had to climb a ladder and perform work while perched on a ladder. Given these facts, Defendant’s concern about whether Plaintiff could safely perform his job was objectively reasonable. Further, Defendant’s request for more information regarding Plaintiff’s condition and his ability to safely perform his job functions was objectively reasonable. Defendant was required to make an “individualized assessment” regarding Plaintiff’s ability to safely perform the essential functions of his job. To do so, Defendant had to rely on a medical opinion that was itself objectively reasonable. Nothing in the letters from Dr. Farst indicates that he wrote the letters upon an individualized assessment of Plaintiff’s medical condition and its effect on his ability to safely perform his job requirements. If Defendant had presented similar letters to substantiate a determination that Plaintiff in fact posed a direct threat, Defendant’s reliance on such letters would not have been objectively reasonable. See Holiday, 206 F.3d at 646. So, too, it seems to this Court, that the inverse is true: a decision by Defendant that Plaintiff did not pose a direct threat 12 Case 2:20-cv-02172-MSN-jay Document 20 Filed 07/02/21 Page 13 of 17 PageID 374 based on Dr. Farst’s perfunctory letters would not have been objectively reasonable in these circumstances. Accordingly, because Plaintiff has failed to present sufficient probative evidence to support a prima facie case of discrimination, Defendant is entitled to summary judgment on this claim. B. Failure to Accommodate Claim An employer’s failure to grant a reasonable accommodation to a disabled employee falls under the ADA’s definition of discrimination. Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 868 (6th Cir. 2007) (quoting 42 U.S.C. § 12112(b)(5)(A . Unlike a disability discrimination claim premised on wrongful termination “because of disability,” the McDonnell Douglas burden-shifting framework does not apply to a failure to accommodate theory. Kleiber, 485 F.3d at 868 (explaining that “claims premised upon an employer’s failure to offer a reasonable accommodation necessarily involve direct evidence (the failure to accommodate) of discrimination” and “consequently are suitable for analysis under the direct-evidence framework”); see also Brumley v. United Parcel Serv., Inc., 909 F.3d 834, 839 (6th Cir. 2018) (“But ADA discrimination ‘claims premised upon an employer’s failure to offer a reasonable accommodation necessarily involve direct evidence (the failure to accommodate) of discrimination’; the familiar McDonnell-Douglas burden-shifting framework . . . therefore does not apply.”) (quoting Kleiber, 485 F.3d at 868–69). To establish a prima facie case of an employer’s failure to accommodate, Plaintiff must prove that (1) he is disabled, (2) he is otherwise qualified for the position, with or without reasonable accommodation, (3) his employer knew or had reason to know about his disability, (4) he requested an accommodation, and (5) the employer failed to provide the necessary accommodation. Melange v. City of Ctr. Line, 482 F. App’x 81, 84 (6th Cir. 2012). A plaintiff must also propose a reasonable accommodation to succeed. Walsh v. United Parcel Serv., 201 F.3d 13 Case 2:20-cv-02172-MSN-jay Document 20 Filed 07/02/21 Page 14 of 17 PageID 375 718, 725–26 (6th Cir. 2000) (“The burden of establishing that the proposed accommodation is reasonable remains with the plaintiff, regardless of whether plaintiff has direct or indirect evidence in support of his or her ADA claim.”). When an employer receives a request for an accommodation, “the employee and employer must engage in ‘an informal, interactive process’ to negotiate an accommodation that allows the disabled employee to work despite his limitations.” Tchankpa v. Ascena Retail Grp., Inc., 951 F.3d 805, 812 (6th Cir. 2020) (citing Banks v. Bosch Rexroth Corp., 610 F. App'x 519, 529 (6th Cir. 2015 ; 29 C.F.R. § 1630.0(o)(3). In the Sixth Circuit, the informal, interactive process is mandatory. Lafata v. Church of Christ Home for the Aged, 325 F. App’x 416, 422 (6th Cir. 2009) (citing Nance v. Goodyear Tire & Rubber Co., 527 F.3d 539, 556 (6th Cir. 2008 ; Kleiber, 485 F.3d at 871. “When a party obstructs the process or otherwise fails to participate in good faith, ‘courts should attempt to isolate the cause of the breakdown and then assign responsibility.’” Kleiber, 485 F.3d at 871 (quoting Bultemeyer v. Fort Wayne Cmty. Sch., 100 F.3d 1281, 1285 (7th Cir. 1996 . If the employer fails to participate in good faith, it faces liability under the ADA if a reasonable accommodation would have been possible. Lafata, 325 F. App’x at 422. When evaluating a request for accommodation, the employer must consider “(1) the particular job involved, its purpose, and its essential functions; (2) the employee’s limitations and how those limitations can be overcome; (3) the effectiveness an accommodation would have in enabling the individual to perform the job; and (4) the preference of the employee.” Tchankpa, 951 F.3d at 812 (quoting Keever v. City of Middletown, 145 F.3d 809, 812 (6th Cir. 1998 . During this informal interactive process, an employer may require documentation supporting an employee’s requested accommodation. Id. (citing Kennedy v. Superior Printing Co., 215 F.3d 14 Case 2:20-cv-02172-MSN-jay Document 20 Filed 07/02/21 Page 15 of 17 PageID 376 650, 656 (6th Cir. 2000 . And “an employee’s failure to provide requested medical documentation supporting an accommodation precludes a failure to accommodate claim.” Id. Here, the record shows that Defendant attempted to engage in the informal, interactive process with Plaintiff. The process began when Plaintiff first informed Mr. Whitaker that he needed to use a cane for balance while working. As allowed by the ADA, Defendant requested that Plaintiff provide medical documentation to support his request to use a cane. In response, Plaintiff submitted a letter from his physician, Dr. Farst, that stated only, “It is medically indicated for [Plaintiff] to use [a] cane to assist with his chronic medical condition.” (ECF No. 15-1 at PageID 125; ECF No. 17-3 at PageID 280–81.) This letter from Dr. Farst makes no mention of any specific limitations on Plaintiff, how a cane would help Plaintiff overcome those limitations, or Plaintiff’s ability to safely perform his job responsibilities with the aid of a cane. Defendant believed it needed more information to assess Plaintiff’s request to use a cane, so Defendant continued to try to engage in the interactive process with Plaintiff by asking him to take a copy of his job description to his physician so that Plaintiff’s physician could determine whether Plaintiff was fit to perform the essential functions of the Field Service Technician II position. Plaintiff then submitted another letter from Dr. Farst that stated, “[Plaintiff] may return to work without any physical restriction related to his job requirements.” (ECF No. 17-3 at PageID 281; ECF No. 15-1 at PageID 130.) Noticeably absent in this second letter from Dr. Farst is any mention of a cane. Given that this second letter from Dr. Farst suffered from the same (and perhaps additional) deficiencies as the first letter, Defendant continued to try to engage in the interactive process by sending Plaintiff a letter that contained specific questions for Dr. Farst to answer, and even provided blank lines underneath the questions where a response could be given. Plaintiff 15 Case 2:20-cv-02172-MSN-jay Document 20 Filed 07/02/21 Page 16 of 17 PageID 377 never returned this paperwork to Defendant, or provided any other documentation to Defendant, despite being given three months to do so. In sum, the record shows that Defendant gave Plaintiff several chances to obtain and provide Defendant with appropriate medical documentation. Defendant never indicated that it would deny Plaintiff’s request to work with a cane, but it merely wished to assess whether Plaintiff could perform his essential job functions, with or without a cane, and whether allowing Plaintiff to work with a cane was safe for Plaintiff and those around him. Defendant attempted to engage in the informal interactive process with Plaintiff regarding his request to use a cane, but this process broke down when Plaintiff failed to provide requested medical documentation. Plaintiff also argues in his response that Defendant is liable for a failure to accommodate because Defendant did not engage in “job restructuring” as a form of reasonable accommodation. However, Plaintiff has not cited anything in the record satisfying the fourth element of his prima facie case—that he requested job restructuring as an accommodation. Melange, 482 F. App’x at 84; see also Lockard v. General Motors Corp., 52 F. App’x 782, 786 (6th Cir. 2002) (finding district court correctly concluded that summary judgment was appropriate on failure to accommodate claim because plaintiff failed to present evidence that she requested an accommodation); Jakubowski v. Christ Hosp., Inc., 627 F.3d 195, 202 (6th Cir. 2010) (“[T]he employee is saddled with the burden of proposing an accommodation and proving that it is reasonable.”). Accordingly, Defendant is entitled to summary judgment on Plaintiff’s failure to accommodate claim. 16 Case 2:20-cv-02172-MSN-jay Document 20 Filed 07/02/21 Page 17 of 17 PageID 378 CONCLUSION For the reasons set forth above, Defendant Mapco Express Inc.’s Motion for Summary Judgment is GRANTED. IT IS SO ORDERED, this 2nd day of July 2021. s/ Mark S. Norris MARK S. NORRIS UNITED STATES DISTRICT JUDGE 17
=== 22-20072 ===
Case 2:22-cr-20072-MSN Document 43 Filed 01/24/23 Page 1 of 18 PageID 131 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ______________________________________________________________________________ UNITED STATES OF AMERICA, Plaintiff, v. ANDRE CAGE, Defendant. Case No. 2:22-cr-20072-MSN ______________________________________________________________________________ ORDER DENYING DEFENDANT’S MOTION TO DISMISS ACCA ALLEGATIONS AND DENYING DEFENDANT’S MOTION TO CERTIFY QUESTIONS OF STATE LAW TO THE TENNESSEE SUPREME COURT ______________________________________________________________________________ Before the Court are the following two motions: (1) Defendant’s Motion to Dismiss ACCA Allegations (ECF No. 32, “Motion to Dismiss”) filed October 24, 2022, to which the Government responded in opposition on November 14, 2022 (ECF No. 38); and (2) Defendant’s Motion to Certify Questions of State Law to the Tennessee Supreme Court (ECF No. 39, “Motion to Certify”) filed November 15, 2022, to which the Government responded in opposition on November 29, 2022 (ECF No. 42). For the reasons set forth below, Defendant’s Motion to Dismiss is DENIED, and Defendant’s Motion to Certify is DENIED. BACKGROUND At the heart of both motions before the Court is the Armed Career Criminal Act (“ACCA”) and its potential application to Defendant if he is convicted of one or more charges in this matter. As many who toil away in federal court know, the ACCA mandates a minimum 15-year sentence for an individual convicted of a violation of 18 U.S.C. § 922(g) when that individual has three or Case 2:22-cr-20072-MSN Document 43 Filed 01/24/23 Page 2 of 18 PageID 132 more prior convictions for “violent felony or . . . serious drug offense[s]” that were “committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). Over the years, disputes over the ACCA’s meaning have often reached the Supreme Court, with the most recent one, Wooden v. United States, 142 S. Ct. 1063 (2022), decided on March 7, 2022. In Wooden, the Supreme Court held that Mr. Wooden’s ten burglary offenses did not occur on different occasions for purposes of the ACCA. 142 S. Ct. at 1074. In his concurring opinion, Justice Gorsuch noted that “[t]he Fifth and Sixth Amendments generally require the government in criminal cases to prove every fact essential to an individual’s punishment to a jury beyond a reasonable doubt,” yet “only judges found the facts relevant to Mr. Wooden’s punishment under the Occasions Clause, and they did so under only a preponderance of the evidence standard.” Id. at 1087 n. 7 (Gorsuch, J., concurring). The Supreme Court, however, did “not consider the propriety of this practice” because Mr. Wooden “did not raise a constitutional challenge to his sentence.” Id. But Justice Gorsuch opined that “there is little doubt” the Supreme Court would have to address the practice soon. Id. This Court understands that, following the Wooden decision, the U.S. Department of Justice (“DOJ”) directed all United States Attorneys to have a jury determine whether a defendant’s prior felonies were “committed on occasions different from one another” for purposes of the ACCA. In this district, the DOJ’s edict resulted in a wave of superseding indictments, including one in this case. Defendant was initially indicted in this matter on April 28, 2022, in a three-count indictment: Counts 1 and 2 charged that Defendant, knowing he was a felon, knowingly possessed a firearm in violation of 18 U.S.C. § 922(g)(1); and Count 3 charged that Defendant, knowing he was a felon, knowingly possessed multiple rounds of two calibers of ammunition (.40 and 9mm), 2 Case 2:22-cr-20072-MSN Document 43 Filed 01/24/23 Page 3 of 18 PageID 133 in violation of 18 U.S.C. § 922(g)(1). (See ECF No. 1 (sealed); ECF No. 2.) The First Superseding Indictment was returned on September 29, 2022 and is identical to the original indictment but added the following allegation to each count (the “ACCA Allegations”): “Before ANDRE CAGE committed the offense charged in this Count, ANDRE CAGE had at least three prior convictions for either serious drug offenses or violent felonies, or both, committed on occasions different from one another, in violation of Title 18, United States Code, Section 924(e).” (ECF No. 22 at PageID 35–37.) According to the Government’s Notice of Bill of Particulars (ECF No. 31), the ACCA Allegations in the First Superseding Indictment are based on Defendant’s convictions set forth in the following chart: Conviction Statute Aggravated Burglary Aggravated Assault Robbery Robbery Tenn. Code Ann. § 39-14-403 Tenn. Code Ann. § 39-13-102 Tenn. Code Ann. § 39-13-401 Tenn. Code Ann. § 39-13-401 (ECF No. 31 at PageID 47.) Conviction Date 7/8/05 Jurisdiction Shelby County, TN 9/8/08 Shelby County, TN 3/11/14 Shelby County, TN 3/11/14 Shelby County, TN In his Motion to Dismiss, Defendant argues that his aggravated assault and robbery convictions do not qualify as violent felonies under the ACCA, and he seeks dismissal of the ACCA Allegations in the First Superseding Indictment.1 In his Motion to Certify, Defendant asks 1 The procedural posture of Defendant’s Motion to Dismiss is a bit unusual in that it requests a pretrial determination on an issue that will be relevant only if Defendant is convicted. Defendant argues that “[t]here is no need for a jury to deliberate on the secondary question of whether prior offenses occurred on separate occasions if the offense[s] do not constitute ACCA ‘violent felonies’ in the first instance.” (ECF No. 32 at PageID 51 (citing United States v. Culbert, 453 F. Supp. 3d 595, 596, 601 (E.D.N.Y. 2020).) Yet, the Court questions whether a jury 3 Case 2:22-cr-20072-MSN Document 43 Filed 01/24/23 Page 4 of 18 PageID 134 this Court to certify two questions related to his robbery convictions to the Tennessee Supreme Court. I. Defendant’s Motion to Dismiss DISCUSSION Relevant here, the ACCA’s definition of a “violent felony” includes “any crime punishable by imprisonment for a term exceeding one year” that either “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another,” or “(ii) is burglary, arson, or extortion, [or] involves use of explosives . . . .” 18 U.S.C. § 924(e)(2)(B)(i) & (ii). The former part of the ACCA’s violent felony definition has been dubbed the “elements clause”2 and the latter portion the “enumerated offenses clause.” See United States v. Patterson, 853 F.3d 298, 302 (6th Cir. 2017); see also Wooden, 142 S. Ct. at 1079 (Gorsuch, J., concurring). District courts use the “categorical approach” to determine whether a prior conviction falls within the ACCA’s definition of “violent felony.” Descamps v. United States, 570 U.S. 254, 260–61 (2013) (citing Taylor v. United States, 495 U.S. 575, 600 (1990 . Under the categorial approach, the district court looks only at the statutory definition of the offense, not the facts underlying the conviction. Patterson, 853 F.3d at 302. Applying the categorial approach is a two-step process. See United States v. Covington, 738 F.3d 759, 763 (6th Cir. 2014); United States v. Mitchell, 743 F.3d 1054, 1064 (6th Cir. 2014). Step one requires the court to decide whether the statute at issue is divisible. Covington, 738 F.3d determination on the “different occasions” issue would prevent Defendant, if convicted on one or more counts, from raising his argument about his prior felony convictions post-trial at sentencing. This is not intended to be a criticism; rather, the Court recognizes that all involved here are plowing new ground, and it seeks to explore options for resolving similar issues moving forward. 2 Or the “use-of-force clause” or “use of physical force clause.” See, e.g., Dunlap v. United States, 784 F. App’x 379, 383 (6th Cir. 2019). 4 Case 2:22-cr-20072-MSN Document 43 Filed 01/24/23 Page 5 of 18 PageID 135 at 763 (citing Descamps, 570 U.S. at 277). A statute is divisible when it lists “potential offense elements in the alternative,” which “renders opaque which element played a part in the defendant’s conviction.” Descamps, 570 U.S. at 260. If the statute is not divisible, the court proceeds directly to step two. However, if the statute is divisible, the court uses a “modified categorical approach” and “examine[s] a limited class of documents,” referred to as Shepard documents, “to determine which of a statute’s alternative elements formed the basis of the defendant’s prior conviction.” Descamps, 570 U.S. at 261–62. “Where the defendant has pled guilty, these so-called Shepard documents may include the ‘charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.’” United States v. Denson, 728 F.3d 603, 608 (6th Cir. 2013) (quoting Shepard v. United States, 544 U.S. 13, 16 (2005 . At step two, “the court must ask whether the offense the statute describes, as a category, is a crime of violence.” Covington, 738 F.3d at 763. This determination turns “on which clauses of the definition[] of violent felony” are at issue. Id. If the elements clause is at issue, the court asks whether the statute of conviction (or a divisible statute’s alternative elements that formed the basis of the defendant’s prior conviction) “requires proving that someone used, attempted, or threatened to use physical force against another . . . .” Patterson, 853 F.3d at 302. If so, then the offense falls within “the elements clause even if the statute does not match the elements clause word for word.” Patterson, 853 F.3d at 302 (citing United States v. Gloss, 661 F.3d 317, 319 (6th Cir. 2011 . If the enumerated offenses clause is at issue, the court compares the elements of the statute of conviction (or a divisible statute’s alternative elements that formed the basis of the defendant’s prior conviction) with “the elements of the ‘generic’ crime—i.e., the offense as commonly understood.” Descamps, 570 U.S. at 257. If the statute of conviction’s “elements are the same, or 5 Case 2:22-cr-20072-MSN Document 43 Filed 01/24/23 Page 6 of 18 PageID 136 narrower than, those of the generic offense,” then it falls within the enumerated offenses clause. Id. The Court applies the categorial approach to each of Defendant’s convictions in turn below. A. Aggravated Burglary—Tenn. Code Ann. § 39-14-403 Defendant’s Motion to Dismiss does not assert that his conviction for aggravated burglary is not a violent felony under the ACCA, so, arguably, the Court need not address it. Out of an abundance of caution, however, the Court will briefly do so. First, Tenn. Code Ann. § 39-14-403 is not divisible. Second, Defendant’s aggravated burglary conviction implicates the ACCA’s enumerated offenses clause. Whether the elements of Tennessee’s aggravated burglary statute are the same as, or narrower than, those of the generic offense of burglary was the subject of the Supreme Court’s decision in United States v. Stitt, 139 S. Ct. 399 (2018). Stitt held that the Tennessee statute was within the scope of the generic definition of burglary, 139 S. Ct. at 406, and the Sixth Circuit has since reaffirmed that conclusion. See Brumbach v. United States, 929 F.3d 791, 794 (6th Cir. 2019). Accordingly, Defendant’s conviction for aggravated burglary is a “violent felony” under the ACCA. B. Aggravated Assault—Tenn. Code Ann. § 39-13-102 At the time of Defendant’s conviction in 2008, Tennessee’s aggravated assault statute provided, in relevant part, as follows: (a) A person commits aggravated assault who: (1) Intentionally or knowingly commits an assault as defined in § 39-13-101 and: (A) Causes serious bodily injury to another; or (B) Uses or displays a deadly weapon; or (2) Recklessly commits an assault as defined in § 39-13-101(a)(1), and: (A) Causes serious bodily injury to another; or 6 Case 2:22-cr-20072-MSN Document 43 Filed 01/24/23 Page 7 of 18 PageID 137 (B) Uses or displays a deadly weapon. (b) A person commits aggravated assault who, being the parent or custodian of a child or the custodian of an adult, intentionally or knowingly fails or refuses to protect the child or adult from an aggravated assault as defined in subdivision (a)(1) or aggravated child abuse as defined in § 39-15-402. (c) A person commits aggravated assault who, after having been enjoined or restrained by an order, diversion or probation agreement of a court of competent jurisdiction from in any way causing or attempting to cause bodily injury or in any way committing or attempting to commit an assault against an individual or individuals, intentionally or knowingly attempts to cause or causes bodily injury or commits or attempts to commit an assault against the individual or individuals. (d)(1) Aggravated assault under subdivision (a)(1) or subsection (b) or (c) is a Class C felony. Aggravated assault under subdivision (a)(2) is a Class D felony. . . . . Tenn. Code Ann. § 39-13-102 (effective to June 8, 2009). Assault does not fall within the enumerated offenses clause, and therefore, Defendant’s conviction for aggravated assault is a violent felony under the ACCA only if it falls within the elements clause. To make this determination, the Court looks first at whether the statute is divisible—it is. See Dunlap, 784 F. App’x at 388 (“The Tennessee aggravated assault statute is divisible; it contains six separate sections setting out different types of aggravated assault.”). The Court thus applies the modified categorial approach and reviews Shepard documents to see if it can ascertain the specific section under which Defendant was convicted. Here, the Court has the following Shepard documents for Defendant’s aggravated assault conviction: (1) the indictment (see ECF No. 38-4 at PageID 101–02); (2) the plea colloquy transcript (see ECF No. 38-3); and (3) the judgment sheet3 (see ECF No. 38-4 at PageID 103). 3 In the Sixth Circuit, the district court may examine state-court judgments since they fall within Shepard’s category of “some comparable judicial record.” United States v. Armstead, 467 F.3d 943, 948 (6th Cir. 2006), abrogated on other grounds by Descamps, 570 U.S. 254; see also United States v. Sosa, 448 F. App’x 605, 609 (6th Cir. 2012) (describing a judgment as “the sort[] of document[] reviewable under Shepard). 7 Case 2:22-cr-20072-MSN Document 43 Filed 01/24/23 Page 8 of 18 PageID 138 These documents reveal that Defendant’s aggravated assault conviction was under subsection (a)(1). First, the plea colloquy and judgment sheet both reflect that Defendant was convicted of a Class C felony. (See ECF No. 38-3 at PageID 97; ECF No. 38-4 at PageID 103.) Because a conviction under subsection (a)(2) was a Class D felony, Defendant could not have been convicted under that subsection. Second, the indictment reflects that Defendant was initially indicted for attempted second- degree murder under Tenn. Code Ann. § 39-13-210 and alleges “that he did unlawfully and knowingly attempt to kill [redacted] . . . .” (ECF No. 38-4 at PageID 101–02). Importantly, the plea colloquy reflects Defendant stipulated that the State would have sought to prove the following facts had the matter gone to trial: [On] November 28, 2007 . . . Ronald Cox was at . . . the Tulane Apartments, where he and the defendant Mr. Cage had an argument over who had fathered a young woman’s child. After the words were exchanged, the defendant left the apartment complex and returned with a chrome-plated semiautomatic handgun. He walked into the kitchen and fired two shots at Mr. Cox, both striking him, one in his arm and leg, the other in the other leg. Mr. Cox identified the defendant Mr. Cage from a photo lineup and identified him as the person responsible for shooting him. (ECF No. 38-3 at PageID 93.) Additionally, in reviewing the plea agreement with Defendant, the following exchange occurred: THE COURT: All right. Now you were charged with criminal attempt murder in the second degree. That carries between 15 and 60 years and up to a $50,000 fine. Is that your understanding? THE DEFENDANT: Yes, sir. THE COURT: Now that’s gonna be broken down or reduced to a lesser offense aggravated assault. Aggravated assaults are what we call C felonies in this state and they carry jail time between three and 15 years and up to a $10,000 fine. Is that your understanding? 8 Case 2:22-cr-20072-MSN Document 43 Filed 01/24/23 Page 9 of 18 PageID 139 THE DEFENDANT: Yes, sir. (ECF No. 38-3 at PageID 97.) The facts recited above do not include allegations that Defendant (1) was a parent or custodian of a child or adult and failed to protect that child or adult from an aggravated assault or aggravated child abuse, as required under subsection (b); or (2) had previously been enjoined or restrained by an order, diversion, or probation agreement from causing or attempting to cause bodily injury or commit an assault against an individual or individuals, as required under subsection (c). Thus, Defendant was convicted under subsection (a)(1), as it is the only subsection for which a factual basis was established during the plea colloquy.4 Having identified the specific subsection under which Defendant was convicted, the Court moves to step two and asks whether that subsection “requires proving that someone used, attempted, or threatened to use physical force against another . . . .” Patterson, 853 F.3d at 302. The Court concludes that it does. In United States v. Cooper, the Sixth Circuit considered whether aggravated assault under Tenn. Code Ann. § 39-13-102 constituted a “crime of violence” for purposes of the Career Offender sentencing guideline. 739 F.3d 873, 880 (6th Cir. 2014). The court applied the modified categorial approach, and after analyzing various Shepard documents, it found that the defendant was convicted under the portion of Tenn. Code Ann. § 39-13-102 for intentionally assaulting someone by using or displaying a deadly weapon. Id. at 880–82. The court then concluded that, because the subsection of the aggravated assault statute under which the defendant pled guilty 4 Defendant entered a guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), (see ECF No. 38-3 at PageID 93), and thus a factual basis for the plea had to be established on the record before the trial court could accept it. See In re Treylynn T., No. W2019-01585-COA-R3- JV, 2020 WL 5416649, at *5 (Tenn. Ct. App. Sept. 9, 2020) (quoting State v. Albright, 564 S.W.3d 809, 817 n.5 (Tenn. 2018 . 9 Case 2:22-cr-20072-MSN Document 43 Filed 01/24/23 Page 10 of 18 PageID 140 matched the generic definition of aggravated assault listed in the enumerated offenses clause, the defendant’s conviction constituted a crime of violence. Id. at 882–83. Having reached that conclusion, the court found it unnecessary to analyze whether the defendant’s conviction satisfied the elements clause. Id. at 882 n.5. Since Cooper, the Sixth Circuit has applied the modified categorial approach to aggravated assault convictions under Tenn. Code Ann. § 39-13-102(a)(1)(A) and (a)(1)(B) and concluded that convictions under both subsections are violent felonies under the ACCA’s elements clause. See Braden v. United States, 817 F.3d 926, 933 (6th Cir. 2016); United States v. Joy, 658 F. App’x 233, 236 (6th Cir. 2016); Neely v. United States, No. 20-5985, 2021 WL 3878715, at *3 (6th Cir. Feb. 24, 2021); Campbell v. United States, No. 16-5288, 2017 WL 4046379, at *2 (6th Cir. Mar. 22, 2017); Crowell v. United States, No. 18-5203, 2018 WL 4190839, at *1 (6th Cir. May 3, 2018). Accordingly, Defendant’s aggravated assault conviction is a “violent felony” as defined in the ACCA. C. Robbery—Tenn. Code Ann. § 39-13-401 As with aggravated assault, robbery is not included in the enumerated offenses clause, which leaves only the elements clause as a potential path for Defendant’s robbery convictions to be violent felonies under the ACCA. The Court looks first at Tennessee’s robbery statute, Tenn. Code Ann. § 39-13-401. The statute provides that “[r]obbery is the intentional or knowing theft of property from the person of another by violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a). The statute is not divisible, so the Court proceeds directly to step two. At step two, the Court asks whether the statute “requires proving that someone used, attempted, or threatened to use physical force against another . . . .” Patterson, 853 F.3d at 302. 10 Case 2:22-cr-20072-MSN Document 43 Filed 01/24/23 Page 11 of 18 PageID 141 Defendant argues that it does not because “the element of ‘fear’ for common law robbery may be satisfied by threatening to accuse a person of having committed sodomy or a crime against nature referred to in 19th century terms as crimen innominatum.” (ECF No. 32 at PageID 61.) At first blush, Defendant’s argument sounds like something from a law school exam, but, in fact, it was the conclusion of the Fourth Circuit in United States v. White, 24 F.4th 378, 381–82 (4th Cir. 2022). In White, the Fourth Circuit certified the following question to the Supreme Court of Virginia: “Under Virginia common law, can an individual be convicted of robbery by means of threatening to accuse the victim of having committed sodomy?” 24 F.4th at 379. The Supreme Court of Virginia responded, “yes if the accusation of ‘sodomy’ involves a crime against nature under extant criminal law.” Id. at 379–80. The Fourth Circuit similarly certified the following question to the Supreme Court of Maryland5: “Under Maryland law, can an individual be convicted of robbery by means of threatening force against property or threatening to accuse the victim of having committed sodomy?” Dickson v. United States, 274 A.3d 366, 367 (Md. Ct. App. 2022). The court concluded that, under Maryland law, an individual could not be convicted of robbery by means of threatening to accuse the victim of having committed sodomy. Id. at 380. The decision in Dickson rests on two alternative bases. First, the court found that the theory of robbery by a threat to accuse the victim of sodomy was not an accepted tenet of English common law until the 1779 case of Rex v. 5 The court was previously the Court of Appeals of Maryland, but the name was changed to the Supreme Court of Maryland via a constitutional amendment that became effective in December 2022. See Md. Const. art. IV, § 14; Md. Code Ann., Cts. & Jud. Proc. § 1-301. This Court uses the current name, Supreme Court of Maryland, even though the name change had not occurred at the time of the Fourth Circuit’s certification or when the court issued its opinion in Dickson. 11 Case 2:22-cr-20072-MSN Document 43 Filed 01/24/23 Page 12 of 18 PageID 142 Donnally.6 Id. at 375 (citing Rex v. Donnally, 168 Eng. Rep. 199 (1779); 1 Leach 193). That date was important because “July 4, 17767 was a fork in the road” and “English common law established on or before that date became part of Maryland’s common law.” Id. at 375. Second, the court explained that when the Maryland General Assembly codified Maryland’s robbery statute in 2000,8 it directed that Maryland robbery “retain[ed] its judicially determined meaning.” Id. at 377. The court thus sought to determine what the “judicially determined meaning” of robbery was at that time. Id. The court concluded that in 2000, the General Assembly understood the judicially determined meaning of robbery to be limited to takings committed through the actual or threatened use of force against the person. Id. at 379–80. The robbery-by-accusation-of-sodomy exception was therefore not part of the common law incorporated into Maryland’s robbery statute. Id. As to Tennessee law, the debate in this case centers around a case “of old vintage from the 19th century,” (ECF No. 32 at PageID 62), Britt v. State, 26 Tenn. 45 (1846). In Britt, the 6 The Supreme Court of Maryland rejected that the robbery-by-accusation-of-sodomy exception was established by the time of the earlier case of Rex v. Jones, 168 Eng. Rep. 171 (1776); 1 Leach 139. Dickson, 274 A.3d at 374–75, 375 n.6. The court acknowledged that the Supreme Court of Virginia had reached a different conclusion regarding the Jones case, but it noted the Supreme Court of Virginia stated that “its interpretation of Jones was not ‘incontestable.’” Id. 375 n.6 (citing White, 863 S.E.2d at 492). The Supreme Court of Maryland also noted that the holding in White was ultimately based on four earlier opinions of the Supreme Court of Virginia that recognized the robbery-by-accusation-of-sodomy exception. Id. (citing White, 863 S.E.2d at 492). Similarly, in United States v. Hubbard, the Sixth Circuit noted that White involved “numerous Virginia decisions [that] had recognized the so-called ‘sodomy exception,’” and the same could not be said for Tennessee. No. 21-6219, 2023 WL 319604, at *3 n.3 (6th Cir. Jan. 19, 2023). 7 White explained that it was unclear whether Virginia adopted English common law as of 1776 or 1792, but the Supreme Court of Virginia found it unnecessary to resolve that issue based on its holding. 863 S.E.2d at 486 n.5. However, in a brief concurrence, Justice Mims, joined by Justice Powell, noted that he believed (1) the correct date for adoption of English common law was 1776, and (2) that the “sodomy exception” was first applied in England after that date. Id. at 492–93. 8 In Virginia, robbery remains a common law crime, and “Virginia’s robbery statute prescribes the degrees of punishment for robbery, but not its elements.” White, 863 S.E.2d at 484. 12 Case 2:22-cr-20072-MSN Document 43 Filed 01/24/23 Page 13 of 18 PageID 143 Tennessee Supreme Court noted that “threatening to prosecute an innocent man for any crime whatever, except only the crimen innominatum, and by the fear arising from such threat to compel the surrender of money or property, does not amount to robbery.” 26 Tenn. at 46. Continuing, the court explained that “it is not the fear, except in the single instance indicated, which connects itself with the legal idea of robbery.” Id. The court recognized “that the courts of England felt that even this exception looked extremely anomalous, and they strive, while permitting it to stand, to place it on ground unapproachable, by any other case of fear of prosecution, as if determined, hereafter, it should have no associate in the offence of robbery.” Id. at 47. In conclusion, the court stated that Tennessee’s “statutes create no change in this respect,” but noted that the definition of the offense was made “with a view to exclude the idea of any apprehension than that of bodily danger or impending peril to the person” without further reference to the crimen innominatum exception. Id. The parties disagree on the effect of Britt: Defendant argues it incorporated the crimen innominatum exception into “Tennessee common law robbery and by extension § 39-13-401,” (ECF No. 32 at PageID 62),9 while the Government contends that Britt not only did not incorporate 9 Defendant correctly notes that courts “are required by the General Assembly to construe the statute by reference to the common law.” (ECF No. 32 at PageID 61 (citing State v. Owens, 20 S.W.3d 634, 640 (Tenn. 2000).) However, as White and Dickson demonstrate, the first step is to determine what specific common law should be referenced. One option is English common law as of 1776 because Tennessee “adopted the common law of England ‘as it stood at (1776) and before the separation of the colonies . . . (it) being derived from North Carolina, out of which state the State of Tennessee was carved.’” State v. Alley, 594 S.W.2d 381, 382 (Tenn. 1980) (quoting Dunn v. Palerma, 522 S.W.2d 679, 682 (Tenn. 1975 . The court would then need to determine whether the robbery-by-accusation-of-sodomy exception was part of the English common law by that date—a topic on which the Supreme Court of Virginia and the Supreme Court of Maryland split. See supra note 6. Another option, as seen in Dickson, is a later year, such as 1989—i.e., the year Tennessee’s current robbery statute under which Defendant was convicted, Tenn. Code Ann. § 39-13-401, was enacted. Tennessee’s current robbery statute was enacted in 1989 as part of a larger modernization of Tennessee’s criminal code, which also included enactment of Tenn. Code Ann. § 39-11-104, which provides that Title 39 “shall be construed according to the fair import of its terms, including reference to the judicial decisions and common law interpretations, to promote justice, and effect the objectives of the criminal code.” Owens, cited by Defendant, cites Tenn. 13 Case 2:22-cr-20072-MSN Document 43 Filed 01/24/23 Page 14 of 18 PageID 144 the crimen innominatum exception, but it “appears to have rejected it . . . .” (ECF No. 38 at PageID 82.) Yet, it is a more recent case, United States v. Mitchell, 743 F.3d 1054 (6th Cir. 2014), that looms large for this Court. In Mitchell, the Sixth Circuit held that robbery under Tenn. Code Ann. § 39-13-401 is categorically a “violent felony” for purposes of the ACCA. 743 F.3d at 1060. The Sixth Circuit has repeatedly reaffirmed the holding of Mitchell in a variety of contexts. See United States v. Kemmerling, 612 F. App’x 373, 376 (6th Cir. 2015) (rejecting argument that Mitchell’s use-of-force clause analysis was undermined by Johnson v. United States, 576 U.S. 591 (2015 ; United States v. Southers, 866 F.3d 364, 367–69 (6th Cir. 2017) (rejecting argument that Mitchell misinterpreted Tennessee law and was undermined by Moncrieffe v. Holder, 569 U.S. 184 (2013 ; United States v. Lester, 719 F. App’x 455, 458–59 (6th Cir. 2017) (rejecting argument that Mitchell was undermined by Mathis v. United States, 579 U.S. 500 (2016 ; United States v. Frazier, 742 F. App’x 81, 83 (6th Cir. 2018) (rejecting argument that Mitchell misinterpreted Tennessee law); United States v. Porter, 765 F. App’x 128, 130 (6th Cir. 2019) (rejecting argument that Mitchell was undermined by Stokeling v. United States, 139 S. Ct. 544 (2019) and that it failed to consider Tennessee law); United States v. White, 768 F. App’x 428, 432 & n.1 (6th Cir. 2019) (rejecting argument that Mitchell was undermined by Mathis or Stokeling); United States v. Belcher, 40 F.4th 430, 431 (6th Cir. 2022) (rejecting argument that Mitchell was undermined by Elonis v. United States, 575 U.S. 723 (2015) and Borden v. United States, 141 S. Ct. 1817 (2021 . In addition, less than a week ago, the Sixth Circuit expressly rejected the same argument Defendant advances here. United States v. Hubbard, No. 21-6219, 2023 WL 319604, at *3 (6th Code Ann. § 39-11-104 for the proposition that courts must construe a statute by reference to the common law. Owens, 20 S.W. 3d at 640. 14 Case 2:22-cr-20072-MSN Document 43 Filed 01/24/23 Page 15 of 18 PageID 145 Cir. Jan. 19, 2023). Hubbard appears to adopt the Government’s interpretation of Britt, opining that its “actual holding is that ‘[t]he fear constituting an element of the crime is a fear of present personal peril from violence offered or impending.’” 2023 WL 319604, at *3. Hubbard also points out that cases citing Britt do so “for the proposition that robbery-by-fear requires ‘fear of bodily danger or impending peril to the person,’” which is why the Sixth Circuit has repeatedly “held that robbery under Tennessee law satisfies the elements clause of the ACCA . . . .” Hubbard, 2023 WL 319604, at *3 (first citing State v. Bowles, 52 S.W.3d 69, 80 (Tenn. 2001), then citing Mitchell, 743 F.3d at 1059 and Belcher, 40 F.4th at 432). Finally, Hubbard notes that Britt’s reasoning about the sodomy exception may have been abrogated by Campbell v. Sundquist, 926 S.W.2d 250 (Tenn. Ct. App. 1996), which found Tennessee’s Homosexual Practices Act unconstitutional. Id. at *3 n.2. Mitchell did not address the specific argument regarding crimen innominatum that Defendant makes here, yet its holding implicitly rejects Defendant’s argument.10 Further, although Hubbard is an unpublished decision, it is directly on point. Defendant recognizes his argument presents this Court with a precedential quandary and “acknowledges that [his] argument may be foreclosed at the district court level by precedent.” (ECF No. 32 at PageID 59.) Indeed, the Court concludes that the better part of valor is to defer to the Sixth Circuit in the first instance. Thus, the Court finds Defendant’s robbery convictions are violent felonies under the ACCA’s elements clause as set forth in Mitchell, 743 F.3d at 1060, and Hubbard, 2023 WL 319604, at *3. 10 The Government asserts that Defendant’s argument was raised before the Sixth Circuit in Belcher, 40 F.4th 430 (2022), reh’g en banc denied, No. 21-5414, 2022 WL 10219852 (6th Cir. Sept. 23, 2022), cert. denied, No. 22-6072, 2023 WL 124246 (Jan. 9, 2023). The argument, however, was raised for the first time in the appellant’s reply brief, (see Belcher, No. 21-5414, Doc. No 42 at PageID 27–33), and it was not specifically addressed by the Sixth Circuit in Belcher. 15 Case 2:22-cr-20072-MSN Document 43 Filed 01/24/23 Page 16 of 18 PageID 146 Accordingly, Defendant’s robbery convictions are “violent felony” offenses under the ACCA. For the reasons explained above, as alleged in the First Superseding Indictment, Defendant has three or more prior convictions for violent felonies under the ACCA, and therefore, Defendant’s Motion to Dismiss ACCA Allegations (ECF No. 32) is DENIED. II. Defendant’s Motion to Certify As set forth in his Motion to Dismiss, Defendant argues Tennessee’s robbery statute is overbroad, and thus his robbery convictions are not for “violent felonies” under the ACCA. In connection with his Motion to Dismiss, Defendant also filed his Motion to Certify, which asks this Court to certify the following questions to the Tennessee Supreme Court: 1. 2. Under Tennessee common law, can an individual commit the offense of robbery by threatening to accuse the victim of having committed sodomy or a crime against nature referred to in 19th century terms as crimen innominatum? If so, can an individual be convicted of statutory robbery under Tenn. Code Ann. § 39-13-401 by threatening to accuse the victim of having committed sodomy or a crime against nature? (ECF No. 39 at PageID 121.) Rule 23 of the Tennessee Supreme Court provides, in part, as follows: The Supreme Court may, at its discretion, answer questions of law certified to it by . . . a District Court of the United States in Tennessee . . . . This rule may be invoked when the certifying court determines that, in a proceeding before it, there are questions of law of this state which will be determinative of the cause and as to which it appears to the certifying court there is no controlling precedent in the decisions of the Supreme Court of Tennessee. Tenn. Sup. Ct. R. 23 § 1. Whether to certify a question to the Tennessee Supreme Court “‘is a matter within the discretion of the court’ and is ‘most appropriate when the question is new and state law is unsettled.’” Devereux v. Knox Cnty., 15 F.4th 388, 397–98 (6th Cir. 2021) (quoting State Auto 16 Case 2:22-cr-20072-MSN Document 43 Filed 01/24/23 Page 17 of 18 PageID 147 Prop. & Cas. Ins. Co. v. Hargis, 785 F.3d 189, 194 (6th Cir. 2015 . “[C]ertification of novel or unsettled questions of state law for authoritative answers by a State’s highest court . . . may save time, energy, and resources and help build a cooperative judicial federalism.” Am. Booksellers Found. for Free Expression v. Strickland, 560 F.3d 443, 446 (6th Cir. 2009) (quoting Arizonans for Official Eng. v. Arizona, 520 U.S. 43, 77 (1997 . However, “[t]he state court need not have addressed the exact question, so long as well-established principles exists to govern a decision.” Devereux, 15 F.4th at 398 (quoting Pennington v. State Farm Mut. Auto. Ins. Co., 553 F.3d 447, 450 (6th Cir. 2009 . The Sixth Circuit has expressed that it “prefer[s] when litigants ask the district court to certify a question before it rules, rather than waiting to receive ‘an unfavorable ruling.’” Stewart v. Knox Cnty., No. 21-5301, 2022 WL 2526666, at *5 (6th Cir. July 7, 2022) (citing Town of Smyrna v. Mun. Gas Auth. of Ga., 723 F.3d 640, 649 (6th Cir. 2013 . The questions Defendant presents for certification are certainly novel in the modern era, or at least, there is no published decision11 in Tennessee addressing them. There are, however, multiple Tennessee Supreme Court decisions defining the “fear” element of robbery as requiring fear of physical injury. See, e.g., State v. Dotson, 254 S.W.3d 378, 395 (Tenn. 2008); State v. Bowles, 52 S.W.3d 69, 80 (Tenn. 2001); State v. Taylor, 771 S.W.2d 387, 398 (Tenn. 1989). Taylor and Bowles have been cited numerous times by the Sixth Circuit when analyzing Tennessee robbery under the categorial approach. See Mitchell, 743 F.3d at 1059 (citing Taylor, 771 S.W.2d at 398); Kemmerling, 612 F. App’x at 375 (same); Southers, 866 F.3d at 367 (same); Frazier, 742 F. App’x at 83 (same); Belcher, 40 F.4th at 431 (same); Hubbard, 2023 WL 319604, at *3 (citing Bowles, 52 S.W.3d at 80). Moreover, the Britt decision, which Defendant’s argument centers on, is not a new decision and does not announce a change in state law. Finally, the Court is bound by 11 Or unpublished, as far as this Court can tell. 17 Case 2:22-cr-20072-MSN Document 43 Filed 01/24/23 Page 18 of 18 PageID 148 Sixth Circuit precedent, and it questions whether granting the Motion to Certify would be an indirect departure from that precedent.12 For these reasons, Defendant’s Motion to Certify Questions of State Law to the Tennessee Supreme Court (ECF No. 39) is DENIED. CONCLUSION For the reasons set forth above, (1) Defendant’s Motion to Dismiss ACCA Allegations (ECF No. 32) is DENIED, and (2) Defendant’s Motion to Certify Questions of State Law to the Tennessee Supreme Court (ECF No. 39) is DENIED. IT IS SO ORDERED, this 24th day of January, 2023. s/ Mark S. Norris MARK S. NORRIS UNITED STATES DISTRICT JUDGE 12 The appellant in Hubbard did not request the district court or the Sixth Circuit to certify the question regarding the existence of the robbery-by-accusation-of-sodomy exception to the Tennessee Supreme Court. 2023 WL 319604, at *3 n.3. 18
=== 12-2664 ===
Case 2:12-cv-02664-MSN-tmp Document 170 Filed 08/18/20 Page 1 of 17 PageID 2346 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION DOROTHY MAE JOHNSON, surviving spouse, and LOIS TOWNES, as Next of Kin to J. DEAN JOHNSON, deceased, Plaintiffs, v. CITY OF MEMPHIS, MEMPHIS LIGHT, GAS & WATER DIVISION, Defendant. No. 2:12-cv-02664-MSN-tmp ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT Before the Court is Defendant Memphis Light, Gas & Water Division’s Motion for Partial Summary Judgment, filed April 25, 2018. (ECF No. 150.) After considering Defendant’s motion, Plaintiffs’ Response to Defendant’s Motion for Partial Summary Judgment (ECF No. 158), Defendant’s Reply in Support of its Motion for Partial Summary Judgment (ECF No. 161), and the oral arguments of counsel on March 5, 2019, this Court DENIES Defendant’s motion as to Plaintiffs § 1983 due process claim and GRANTS Defendant’s motion as to Plaintiffs § 1983 equal protection claim. BACKGROUND Plaintiffs’ Complaint was filed in the Circuit Court of Shelby County, Tennessee on June 13, 2012. (ECF No. 1.) Defendant removed the matter to the United States District Court on July 27, 2012, because of Plaintiffs’ § 1983 claims creating federal question jurisdiction. (Id. at PageID 2.) Case 2:12-cv-02664-MSN-tmp Document 170 Filed 08/18/20 Page 2 of 17 PageID 2347 This matter has had two separate issues addressed by the 6th Circuit Court of Appeals. In the 2015 appeal, 777 F.3d 838 (6th Cir. 2015), the appellate court gave the following detailed account of the facts: J. Dean Johnson, a long-term employee of Memphis’s Public Works Division, worked in sanitation, lifting and emptying garbage cans. MLGW denied him public utility services for his new apartment in February 2010 because he could not produce state-issued photo identification. On August 4, 2011, Johnson died of heat stroke in his apartment, where the internal temperature was 93.2 degrees Fahrenheit. He was sixty-five years old at the time of his death and had no electricity, heat, or air conditioning in his home. Plaintiffs allege that his death was caused by MLGW’s denial of services. Johnson, an African American, was born in rural Mississippi and delivered by a midwife. He had no birth certificate and had difficulty acquiring one from the state, in part due to his intellectual disabilities. In sworn affidavits, Johnson’s niece, Lorena Jackson, and a longtime co-worker, Melvin Hunt, testified that although Johnson was able-bodied, he was substantially intellectually impaired. Ms. Jackson described Johnson as having “severe learning disabilities,” such that he was unable to read and write, could not do basic math, had “severe memory problems” and difficulty planning, and was unable to care for himself without help. He had problems communicating with others and often became angry or frustrated as a result. Johnson could apparently write his name but would misspell it and was unsure of his birthdate, he did not drive or keep a bank account, and he was dependent on co-workers to bring him to and from work. In order to pay bills and feed himself, Johnson used cash, but he was often cheated and did not know the meaning of any documents he signed. He is not known to have attended school beyond second grade. Mr. Hunt, who worked with Johnson for over forty years, confirmed that Johnson had to be driven to and from work, needed help filling out forms or legal documents, and that he was “unable to give a complete answer or to carry [on] a conversation, or to understand simple mathematical problems.” Although Johnson lived by himself, he was evidently highly reliant on nearby family, friends, neighbors and co-workers for regular assistance with the routines of everyday life. When Johnson moved to 2931 Park Avenue, # 8, in Memphis, Tennessee, two nieces—Ms. Lois Taylor and Ms. Jackson—accompanied him on two different occasions in February 2010 to MLGW offices to help him obtain services for his new apartment. Johnson apparently had had utility services in past residences, and Ms. Jackson had accompanied him to MLGW offices on several previous occasions and dealt with bill irregularities and service problems on his behalf. Both nieces characterized Johnson as easily confused and frustrated by such encounters. When she accompanied him to MLGW on February 5, 2010, Ms. Taylor had to explain to Johnson that he could not go straight to the billing department but had to inform another employee there that he wanted utilities turned on. Ms. Taylor then waited with him until his name was called. She went back to an office with him and 2 Case 2:12-cv-02664-MSN-tmp Document 170 Filed 08/18/20 Page 3 of 17 PageID 2348 participated in the conversation, during which the MLGW employee told Johnson that he didn’t have the proper identification—he “had to either have a State I.D. or a driver’s license.” Ms. Taylor described Johnson’s attempts to communicate his situation: “He didn't drive, and he was explaining that he couldn’t get a State I.D., and he was asking what was wrong with [his work] I.D., it had a picture on it.” Ms. Taylor showed the MLGW employee Johnson’s work identification card while Johnson showed his social security card. Ms. Taylor then asked if the MLGW employee could call Johnson's job to verify his identity, but she refused. The MLGW employee then gave Ms. Taylor a copy of a slip on which she had written “invalid I.D.” As they left Johnson appeared to be upset or “heated.” Ms. Taylor testified in her deposition that to her knowledge Johnson only contacted MLGW while with her or her sister, as “[h]e wouldn’t have called because he didn’t know how to call, ... he wouldn’t know what to say.” After their encounter with MLGW, Ms. Taylor told Johnson that she would need to take him to Jackson, Mississippi, to see about getting a birth certificate, and he agreed, but she never did so. After MLGW denied Johnson utility services, he spoke with his sister, Lois Townes, who told him that to get a state identification card he had to go to Brownsville, Tennessee, where he had started school, and get his school record. Ms. *842 Jackson testified that “Uncle David” had apparently written away for some information on Johnson’s behalf and then taken Johnson to Brownsville. Johnson was “excited” because he had obtained some papers there and he thought that these would be sufficient for him to obtain utilities. On February 26, 2010, Ms. Jackson accompanied Johnson to an MLGW office for a second time, although she stayed in the waiting area while he went back to speak with an MLGW employee. She testified that she “let him go back there because he knew ... what to say and everything.” A short while later she heard a “commotion” as a woman accompanied Johnson out of the office, apparently trying to get him out quickly “because he was really upset.” She explained to Ms. Jackson that Johnson did not have the proper state-issued identification. As she did so, Johnson was still trying to show her his papers and explain that he worked for the City of Memphis. “[A]t that point he didn’t know what to do,” Ms. Jackson testified. According to Ms. Jackson’s affidavit, Johnson “did not understand how to solve the problem with his identification or his birth certificate nor did he understand whether or not he had any rights with respect to [MLGW] and its denial of utilities.” In 2010 only, MLGW had a policy that required applicants to produce a state-issued photo identification card in order to have utilities connected. However, in the years prior to and following 2010, the forms of identification that Johnson presented—a photo identification issued by his employer, Memphis’s Public Works Division, and a social security card—would have been sufficient to obtain utilities. The 2010 policy also stated that “[e]xceptions will be considered for customers 60 years of age and older,” but the MLGW employees Johnson encountered did not attempt to see if he qualified for an exception. MLGW did not train employees regarding how to advise customers who did not possess the necessary photo identification, nor did it train employees on how to deal with customers who were illiterate. MLGW made no efforts to contact potential customers who were denied utilities as a result of the policy in effect in 2010. 3 Case 2:12-cv-02664-MSN-tmp Document 170 Filed 08/18/20 Page 4 of 17 PageID 2349 After Johnson’s death, Plaintiffs sued MLGW in the Circuit Court of Shelby County, Tennessee, claiming violations pursuant to 42 U.S.C. § 1983, the GTLA, and Tennessee’s wrongful death statute. MLGW removed the case to federal district court and moved for summary judgment. The district court granted summary judgment to MLGW, holding that 1) the pertinent state statute of limitations barred all of Plaintiffs’ claims; 2) the statute of limitations could not be tolled because Plaintiffs did not submit sufficient evidence that Johnson was of unsound mind; and 3) no alternative statutes of limitation applied. The court found that the affidavits by Jackson and Hunt alleging Johnson to be of unsound mind contradicted statements made in Plaintiffs’ complaint and earlier depositions, and noted that Plaintiffs had not claimed Johnson to be of unsound mind prior to their response to MLGW's motion for summary judgment. Plaintiffs timely appealed, arguing that the district court erred 1) in determining that the statute of limitations barred their claims, and 2) in finding that Plaintiffs failed to present a genuine issue of material fact regarding whether Johnson was of unsound mind. 777 F.3d at 840–42. The court reversed the grant of summary judgment to Defendant and remanded the case, finding that “Plaintiffs have presented sufficient evidence of Johnson’s mental disability, and thus the applicability of a prior version of Tennessee’s tolling statute, Tenn. Code Ann. § 28-1-106 (amended 2011), so as to create a genuine issue of material fact as to whether Johnson was of unsound mind when the action accrued.” Id. at 847. After the Sixth Circuit remanded this case back to this Court, Defendant moved to exclude Plaintiffs’ sole expert witness, Dr. Miguel A. Laboy, M.D., pursuant to Fed. R. Evid. 702. (ECF No. 127.) The District Court held that “Dr. Laboy’s testimony should be excluded because it was not expressed to the requisite degree of certainty and was the result of flawed methodology that did not reliably rule in or rule out potential causes of Mr. Johnson’s death.” (ECF No. 150-1 at PageID 2150.) The Sixth Circuit reversed that holding and remanded back to this Court. See Johnson v. Memphis Light Gas & Water Div., 695 Fed. Appx. 131 (6th Cir. 2017); (ECF No. 139). 4 Case 2:12-cv-02664-MSN-tmp Document 170 Filed 08/18/20 Page 5 of 17 PageID 2350 On April 23, 2018, Defendant moved for leave to file a partial summary judgment addressing Plaintiffs’ § 1983 claims. (ECF No. 148.) The Court granted Defendant’s motion “[f]or good cause shown.”1 (ECF No. 150 at PageID 2143.) STANDARD OF REVIEW Federal Rule of Civil Procedure 56 permits a party to move for summary judgment — and the Court to grant summary judgment — “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party asserting the presence or absence of genuine issues of material facts must support its position either by “citing to particular parts of materials in the record,” including depositions, documents, affidavits or declarations, stipulations, or other materials, or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1); see also Celotex Corp. v. Catrett, , 322–23 (1986 ; Asbury v. Teodosio, 412 F. App’x 786, 791 (6th Cir. 2011). Fed. R. Civ. P. 56(c)(1). When ruling on a motion for summary judgment, the Court must view the facts contained in the record and all reasonable inferences that can be drawn therefrom in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., , 587 (1986); Nat’l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence, judge the credibility of 1. Plaintiffs argue that MGLW’s Motion for Partial Summary Judgment should be denied because it is untimely and unduly burdensome. (ECF No. 158-1 at PageID 2230.) “Thus, five years and nine months after the case was removed by MLGW to the district court expired before Defendant for the first time raised the defense that Plaintiffs failed to plead a viable § 1983 claim against MLGW.” (Id.) This argument should have been raised when MLGW requested leave to file another motion for summary judgment. The Court already granted such leave and will not deny MLGW’s motion for that reason. 5 Case 2:12-cv-02664-MSN-tmp Document 170 Filed 08/18/20 Page 6 of 17 PageID 2351 witnesses, or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., , 249 (1986). The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex, 477 U.S. at 323. The moving party may discharge this burden either by producing evidence that demonstrates the absence of a genuine issue of material fact or simply “by ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325. When confronted with a properly supported motion for summary judgment, the nonmoving party must set forth specific facts showing that there is a genuine dispute for trial. See Fed. R. Civ. P. 56(c). “A genuine dispute exists when the plaintiff presents significant probative evidence on which a reasonable jury could return a verdict for her.” EEOC v. Ford Motor Co., 782 F.3d 753, 760 (6th Cir. 2015) (quotation marks omitted). The nonmoving party must do more than simply “‘show that there is some metaphysical doubt as to the material facts.’” Adcor Indus., Inc. v. Bevcorp, LLC, 252 F. App’x 55, 61 (6th Cir. 2007) (quoting Matsushita, 475 U.S. at 586). A party may not oppose a properly supported summary judgment motion by mere reliance on the pleadings. See Beckett v. Ford, 384 F. App’x 435, 443 (6th Cir. 2010) (citing Celotex Corp., 477 U.S. at 324). Instead, the nonmoving party must adduce concrete evidence on which a reasonable juror could return a verdict in her favor. Stalbosky v. Belew, 205 F.3d 890, 895 (6th Cir. 2000); see Fed. R. Civ. P. 56(c)(1). The Court’s role is limited to determining whether there is a genuine dispute about a material fact, that is, if the evidence in the case “is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. To start, the Court does not have the duty to search the record for such evidence. See Fed. R. Civ. P. 56(c)(3); InterRoyal Corp. v. 6 Case 2:12-cv-02664-MSN-tmp Document 170 Filed 08/18/20 Page 7 of 17 PageID 2352 Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). Additionally, the Court must “view the evidence presented through the prism of the substantive evidentiary burden” applicable to the case. Anderson, 477 U.S. at 254. Thus, if the plaintiff’s evidentiary standard of proof at trial is preponderance of the evidence, then on a motion for summary judgment the Court must determine whether a jury could reasonably find that the plaintiff’s factual contentions are true by a preponderance of the evidence. See id. at 252–53. “When the non-moving party fails to make a sufficient showing of an essential element of his case on which he bears the burden of proof, the moving parties are entitled to judgment as a matter of law and summary judgment is proper.” Martinez v. Cracker Barrel Old Country Store, Inc., 703 F.3d 911, 914 (6th Cir. 2013) (quoting Chapman v. UAW Local 1005, 670 F.3d 677, 680 (6th Cir. 2012) (en banc . Courts must analyze a motion for summary judgment with due regard not only for the rights of the party “asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury,” but also for the rights of those “opposing such claims and defenses to demonstrate in the manner provided by [Rule 56], prior to trial, that the claims and defenses have no factual basis.” Celotex, 477 U.S. at 327. ANALYSIS Defendant Memphis Light, Gas & Water Division (“MLGW”) moves for partial summary judgment on Plaintiffs’ claims under 42 U.S.C. § 1983 (“§ 1983”). As an initial matter, a § 1983 claim must embody at least two elements: (1) “a plaintiff must allege that he was deprived of a right guaranteed by the United States Constitution or the laws of the United States,” and (2) “the deprivation was caused by a person while acting under color of state law.” Barney v. Lincoln Elec. Co., 43 F.3d 1471 (6th Cir. 1994). Here, Defendant does not contest that it was acting under color of state law for the purposes of its summary judgment motion; however, MLGW does not concede 7 Case 2:12-cv-02664-MSN-tmp Document 170 Filed 08/18/20 Page 8 of 17 PageID 2353 that it is a state actor and has reserved rights and objections regarding that issue. (ECF No. 150-1 at PageID 2151 n.3.) Therefore, for purposes of this Motion, the Court finds that Defendant was acting under color of state law during its relationship with Mr. Johnson. The case at bar thus turns on whether Plaintiffs have made out the first element of their § 1983 action: deprivation of a constitutionally protected right to due process and equal protection. Defendant argues that Plaintiffs’ § 1983 due process claim fails because Plaintiffs cannot prove that Mr. Johnson was deprived of a constitutionally protected right. Defendant further argues that Plaintiffs’ § 1983 equal protection claim fails because MLGW’s policy requiring a state-issued photo identification card for utility hookups is rationally related to a legitimate governmental interest. The Court will first address Plaintiffs’ due process claim before moving on to equal protection. 1. Due Process Claim The Fourteenth Amendment to the United States Constitution provides that a State shall not “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. Congress has subsequently generated a federal cause of action providing: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 42 U.S.C. § 1983. Here, Plaintiffs claim protection under § 1983 on grounds that Mr. Johnson had a property interest in new utility service hookups, and that MLGW deprived him of this property interest without due process by having a policy that prevented him from being able to obtain new utility service. Defendant counters that Mr. Johnson had no protected constitutional property 8 Case 2:12-cv-02664-MSN-tmp Document 170 Filed 08/18/20 Page 9 of 17 PageID 2354 interest in receiving new utility hookups without complying with MLGW’s reasonable requirements. Actions based on deprivations of due process fall into two categories: violations of procedural due process and violations of substantive due process. Here, Plaintiffs’ due process claim appears to be procedural in nature rather than substantive.2 For procedural due process claims, courts perform a two-part analysis: “first, whether the alleged deprivation involves a protected property interest, and second, whether ‘the procedures attendant upon that deprivation were constitutionally sufficient.’” Mator v. City of Ecrose, 301 Fed. Appx. 476, 479 (6th Cir. 2008) (quoting Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989 . “Only after identifying [a protected property interest] do we continue to consider whether the deprivation of that interest contravened notions of due process.” Thomas v. Cohen, 304 F.3d 563, 576 (6th Cir. 2002). Thus, this Court must first address whether Mr. Johnson had a protected property interest in new utility connections.3 For an individual to have a property interest subject to due process protections, “a person clearly must have more than an abstract need or desire” and “more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). The Supreme Court further explained that such entitlements are, “of course, . . . not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an 2. See Albright v. Oliver, 510 U.S. 266, 272 (1994) (plurality opinion) (holding that substantive due process claims are generally limited to those involving “marriage, family, procreation, and the right to bodily integrity.”). 3. To succeed in a § 1983 due process claim, an individual must have a constitutionally protected property right. Perry v. Sindermann, 408 U.S. 593, 597 (1972) (“[Government] may not deny a benefit to a person on a basis that infringes his constitutionally protected interests . . . .”). 9 Case 2:12-cv-02664-MSN-tmp Document 170 Filed 08/18/20 Page 10 of 17 PageID 2355 independent source such as state law.”4 Paul v. Davis, 424 U.S. 693, 709 (1976) (quoting Roth, 408 U.S. at 577). In explaining the creation of a protected interest, the Supreme Court opined that the most common way a State engages in that undertaking is by “establishing substantive predicates to govern official decision-making, and, further, by mandating the outcome to be reached upon a finding that the relevant criteria have been met.” Kentucky Dep’t of Corrections, 490 U.S. at 462. In other words, “[a] State creates a protected liberty interest by placing substantive limitations on official discretion.” Id. (quoting Olim v. Wakinekona, 461 U.S. 238, 249 (1983 . In this instance, the Tennessee Supreme Court has done just that, holding that public utility companies in Tennessee are “obligated by the law” to provide service “to all inhabitants of the city of its location alike, without discrimination, and without denial, except for good and sufficient cause.”5 Farmer v. Nashville, 156 S.W. 189, 190 (Tenn. 1913 ; see also Tenn. Code Ann. § 7-82-402(b) (regulating procedure within utility companies for the handling of billing disputes). “Although the underlying substantive interest is created by ‘an independent source such as state law,’ federal constitutional law determines whether that interest rises to the level of a ‘legitimate claim of entitlement’ protected by the Due Process Clause.” Memphis Light, Gas and Water Division v. Craft, 436 U.S. 1, 9 (1978) (internal citations omitted). In Craft, a case involving a disputed gas and electric bill, the United States Supreme Court held that the expectation of utility services rises to the level of a “legitimate claim of entitlement” in the category of property interests protected by the Due Process Clause. Id. at 11. 4. “Property rights are created and defined by independent sources such as state law and not by the Constitution.” Braun v. Ann Arbor Charter Tp., 519 F. 3d 564 (6th Cir. 2008); Thomas, 304 F.3d at 576 (“Property interests are not created by the constitution.”). 10 Case 2:12-cv-02664-MSN-tmp Document 170 Filed 08/18/20 Page 11 of 17 PageID 2356 However, this legitimate claim of entitlement to utilities is not unfettered. In Tennessee, public utility customers are also expected to follow reasonable rules promulgated by the utility company, as explained by the Tennessee Supreme Court in Farmer v. Nashville: a water company is charged with the public duty of furnishing water to all of the inhabitants of the city of its location alike, without discrimination, and without denial, except for good and sufficient cause; but that such a company may adopt reasonable rules for the conduct of its business, and the operation of its plant, and such rules, so far as they affect its patrons, are binding on them, and may be enforced, even to the extent of denying water to those who refuse to comply with them. Farmer, 156 S.W. at 190 (emphasis added) (citing Watauga Water Co. v. Wolfe, 41 S.W. 1060, 1061 (Tenn. 1897 . Tennessee courts have also held that a utility may terminate service “for nonpayment of a just service bill.” Trigg v. Middle Tennessee Electric Membership Corp., 533 S.W.2d 730, 733 (Tenn. Ct. App. 1975). Though Tennessee law creates a protected property interest in existing utility services, this Court finds no authorities regarding new utility connections. In Memphis Light, Gas and Water Division v. Craft, another case involving an alleged deprivation of due process at the hands of MLGW, the Supreme Court determined that individuals were entitled to certain protections under the Fourteenth Amendment because there was a property interest in currently existing utility service. 436 U.S. at 22. Namely, the Court made note of the great implications of access to utility service, and that an individual who was deprived of this access, could suffer irreparable harm. Id. at 18 (noting that even a short cessation in essential utility service may threaten an individual’s health and safety). The Court also held that due process required MLGW to make available to a customer, information regarding procedural steps on how to air and settle grievances. Id. at 13– 15. The fact that the instant case involves denial of initial service rather than discontinuance of existing service does not render Craft inapposite. By all accounts, the denial of applications for 11 Case 2:12-cv-02664-MSN-tmp Document 170 Filed 08/18/20 Page 12 of 17 PageID 2357 utility service is equally as dangerous to individuals as the termination of existing utility service. In addition, Mr. Johnson did in fact have utility connections with MLGW prior to seeking utility connection at his new address, 2931 Park Avenue. (ECF No. 158-1 at PageID 2223.) See also Johnson, 777 F.3d at 841 (“[Mr.] Johnson apparently had had utility services in past residences, and Ms. Jackson had accompanied him to MLGW offices on several previous occasions and dealt with bill irregularities and service problems on his behalf.”). Mr. Johnson had previously been a MLGW customer, but MLGW denied utility connection because of a one-year policy requiring a state or federally issued photo identification that could not be issued by an employer, even if that employer was a government entity. (See ECF No. 150-2 at PageID 2163 (providing Mr. Johnson “attempted to use his [City of Memphis] employee identification badge in lieu of the required valid state-issued photo identification in order to connect his utilities.”).) Ironically in this case, Mr. Johnson was and had been an employee of the City of Memphis for forty-two years. (ECF No. 158-2 at PageID 2247.) In its Motion for Summary Judgment, Defendant argues that “Mr. Johnson did not have a constitutionally protected right to have utility services connected to his house without meeting MLGW’s reasonable requirements.” (ECF No. 150-1 at PageID 2155) (emphasis added). In delineating what constitutes reasonableness, Defendant directs the Court’s attention to Coghlan v. Starkey, 845 F. 2d 566 (5th Cir. 1988), wherein the utility company disconnected the plaintiff’s water after she failed to pay her bill and made no effort to pay past due amounts. In Coghlan, the court noted that the plaintiff had never even applied for service; rather, the plaintiff had a “unilateral expectation” of service. 845 F. 2d at 569. Defendant also cites an Eleventh Circuit case, James v. City of St. Petersburg, where the plaintiff refused to comply with the city’s 12 Case 2:12-cv-02664-MSN-tmp Document 170 Filed 08/18/20 Page 13 of 17 PageID 2358 requirements for initiating water service, such as paying a security deposit. 33 F. 3d 1204, 1307 (11th Cir. 1994). These two cases are distinguishable from the case at bar for several reasons. Chiefly, Mr. Johnson made it known that he was willing to pay for utility service, and that the monetary aspect of the service was not at issue. Also, unlike the plaintiff in Coghlan, Mr. Johnson made an effort to apply for utility services. Here the issue is, after establishing a property interest, whether the requirement of different forms of identification is reasonable as a policy, not whether Mr. Johnson’s inability to comply is the reason for denying service, as the two cited cases suggest.6 To this end, MLGW’s policy during the time Plaintiff applied for utility service required applicants to present a state or federal photo identification card in order to have utilities connected. While the policy seems to have facial validity in serving a particular purpose, here a purported attempt to cut down identity theft (ECF No 150-1 at PageID 2149), the policy may have nevertheless created an unconstitutional barrier for certain individuals under certain circumstances. Particularly, as the Court noted in Boddie v. Connecticut, 401 U.S. 371, 379 (1971): [A] statute or a rule may be held constitutionally invalid as applied when it operates to deprive an individual of a protected right although its general validity as a measure enacted in the legitimate exercise of state power is beyond question. Thus, in cases involving religious freedom, free speech or assembly, this Court has often held that a valid statute was unconstitutionally applied in particular circumstances because it interfered with an individual’s exercise of those rights. 6. The Court also finds Defendant’s final argument lacking. Citing Kamal v. City of Toledo, Dept. of Pub. Utilities, Defense points out that the district court rejected the plaintiff’s argument because there was no state law that gave the plaintiff a property interest in service. Kamal v. City of Toledo, Dept. of Pub. Utilities, 3:13-CV-574, 2014 WL 1493136, at *3 (N.D. Ohio Apr. 14, 2014). However, as previously noted, the Supreme Court has stated that public utility companies in Tennessee are “obligated by the law” to provide service “to all inhabitants of the city of its location alike, without discrimination, and without denial, except for good and sufficient cause.” Craft, 436 U.S. at 11 (quoting Farmer, 156 S.W. at 190). Such an obligation, specifically under the facts in this case where MLGW is the only utility provider, creates a property interest. 13 Case 2:12-cv-02664-MSN-tmp Document 170 Filed 08/18/20 Page 14 of 17 PageID 2359 Id. at 379 (emphasis added). The Boddie court further opined that this principle is applicable to disputes over matters beyond such sacred rights given by the First Amendment, explaining instead that “[n]o less than these rights, the right to a meaningful opportunity to be heard within the limits of practicality, must be protected against denial by particular laws that operate to jeopardize it for particular individuals.” Id at 379–80 (emphasis added) (citing Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950 . So, “[j]ust as a generally valid notice procedure may fail to satisfy due process because of the circumstances of the defendant, so too a cost requirement, valid on its face, may offend due process because it operates to foreclose a particular party’s opportunity to be heard.” Boddie, 401 U.S. at 380. Applying these principles, the Court is compelled to find that, due to this Plaintiff’s circumstances, MLGW’s facially valid requirement for different forms of identification foreclosed this particular Plaintiff’s opportunity to “be heard.” See id. This Court further finds that MLGW’s seemingly arbitrary rule changes in consecutive years terminated, in whole, Plaintiff’s access to utility service, as set out by the Tennessee Supreme Court. See Farmer, 156 S.W. 189. The Court also points out that MLGW improperly seeks to benefit from its own failure to adhere to its own policy to consider exceptions for customers 60 years of age and older. According to Defendant, in Tennessee “there is . . . no protected Constitutional property interest in receiving utilities without complying with reasonable rules. And because the rules were not complied with by Mr. Johnson, there was no protectable property right. If there is no Constitutional property right, then due process does not attach.” Transcript of Oral Argument at 9–10, Johnson v. Memphis Light Gas & Water Div., No. 2:12-cv-02664 (W.D. Tenn. argued Mar. 5, 2019). By the same token, the Sixth Circuit Court of Appeals noted that “[t]he 2010 policy . . . stated that ‘[e]xceptions will be considered for customers 60 years of age and older,’ but the MLGW 14 Case 2:12-cv-02664-MSN-tmp Document 170 Filed 08/18/20 Page 15 of 17 PageID 2360 employees Johnson encountered did not attempt to see if he qualified for such an exception.” Johnson, 777 F.3d at 842. Clearly, Mr. Johnson qualified for the exception. Just as clearly, MLGW’s failure to apply the exception is itself unreasonable. MLGW cannot eat its cake and have it too.7 Under the facts of this case, MLGW’s contention that the decedent had no Constitutional property right simply because he did not comply with rules MLGW itself failed to follow is disingenuous at best. Had MLGW followed its own rules for customers 60 years of age and older, Mr. Johnson would likely have had utilities connected. Based upon the foregoing principles concerning property interests8 and due process established by the Supreme Court, this Court finds MLGW’s denial of utility service to Mr. Johnson, without more, constitutes a denial of due process if done without justification. And while it is difficult to conceive of any possible, reasonable justification in this case, there is at least a genuine issue of material fact whether MLGW’s denial was reasonably justified. Accordingly, summary judgment as to Plaintiffs’ due process claim is DENIED. 2. Equal Protection Claim The Fourteenth Amendment provides, in relevant part, that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. “[T]he purpose of the equal protection clause of the Fourteenth Amendment is to secure every 7. The “eat-have” sequence, though less common since the mid-20th century, is the traditional proverb. Garner’s Usage Tip of the Day: You Can’t Eat Your Cake and Have it Too, LAW PROSE, https://www.lawprose.org/garners-usage-tip-of-the-day-you-cant-eat-your-cake-and-have-it-too- you-cant-have-your-cake-and-eat-it-too/ (last visited Aug. 18, 2020). 8. Mr. Johnson had a property interest in electricity. MLGW is the only utility provider in Memphis, Tennessee where Mr. Johnson lived, and MLGW’s actions herein foreclosed his only lawful prospect of access to it. 15 Case 2:12-cv-02664-MSN-tmp Document 170 Filed 08/18/20 Page 16 of 17 PageID 2361 person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (citation and quotations omitted). “Equal protection analysis turns on a threshold question concerning the appropriate level of judicial scrutiny of the distinguishing characteristics.” Dillinger v. Schweiker, 762 F.2d 506, 508 (6th Cir. 1985). “If no suspect class or fundamental right is involved, the court’s job is to determine whether the legislative classification is rationally related to a legitimate government purpose.” Id. In order to successfully assert a claim for violation of the Equal Protection Clause, a plaintiff must show that he was similarly situated in all material respects to others whose treatment he desires, coupled with a discriminatory purpose on the part of the accused state actor(s). Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265–266 (1977); Taylor Acquisitions, L.L.C. v. City of Taylor, 313 Fed. Appx 826, 836 (6th Cir. 2009). In the case at bar, Plaintiffs do not allege the deprivation of a fundamental constitutionally protected right and the policy at issue does not, on its face, single out a suspect class. Thus, Plaintiffs’ equal protection claim is subject to rational basis review—a point Plaintiffs concede in their response to Defendant’s motion for summary judgment. (See ECF No. 158-1 at PageID 2240.) Plaintiffs also agree that MLGW’s ultimate goal of protecting customers from identity theft “was reasonable,” indicating Plaintiffs’ belief in the existence of a legitimate government interest. However, Plaintiffs argue that MLGW’s 2010 policy was not rationally related to said underlying, legitimate interest and had a disparate impact on persons who “for whatever reason (race, age, illiterate, mentally challenged, impoverished) could not obtain a birth certificate, or . . . produce a picture ID issued by the State . . . .” (Id.) 16 Case 2:12-cv-02664-MSN-tmp Document 170 Filed 08/18/20 Page 17 of 17 PageID 2362 Upon reviewing the record, this Court finds Plaintiffs’ equal protection claim fails as a matter of law for several reasons. First, Plaintiffs have not met their burden to affirmatively show Defendants treated Mr. Johnson differently from other, similarly situated individuals as required by federal law. See Arlington Heights, 429 U.S. at 265–266. Second, Plaintiffs have not presented any evidence of discriminatory intent or purpose on the part of MLGW. Instead, Plaintiffs’ discrimination allegations focus largely on disparate impact which, by itself, is insufficient. Although “evidence of a policy’s disparate impact may be probative in determining whether the policymaker harbored a discriminatory intent,” it is not the touchstone of an equal protection claim. Spurlock v. Fox, 716 F.3d 383, 400 (6th Cir. 2013) (citing Arlington Heights., 429 U.S. at 266). Third, even if a showing of disparate impact alone were enough to support a claim of equal protection, Plaintiffs fail to properly cite to anything in the record addressing their claims that Mr. Johnson was mentally handicapped or that poor African Americans were disadvantaged in getting birth certificates in rural north Mississippi. Although this may be true, Plaintiffs’ counsel was specifically asked to point to some expert testimony or some other proper citation in the record to support their disparate impact allegation, but Plaintiffs’ counsel was unable to properly cite to the record. Therefore, summary judgment as to Plaintiffs’ equal protection claim is GRANTED. CONCLUSION For the foregoing reasons, Defendant’s Motion for Partial Summary Judgment is DENIED as to Plaintiffs’ Due Process Claim and GRANTED as to Plaintiffs’ Equal Protection Claim. IT IS SO ORDERED this 18th day of August, 2020. s/ Mark Norris MARK S. NORRIS UNITED STATES DISTRICT JUDGE 17
=== 18-2129 ===
Case 2:18-cv-02129-MSN-tmp Document 51 Filed 04/03/19 Page 1 of 9 PageID 411 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION LISA MORRIS, Plaintiff, v. WRIGHT MEDICAL TECHNOLOGY, INC., Defendant. No. 2:18-cv-02129-MSN-tmp ORDER GRANTING DEFENDANT’S MOTION TO DISMISS Before the Court is Defendant Wright Medical Technology, Inc.’s Motion to Dismiss Plaintiff’s Complaint, filed March 5, 2018. (ECF No. 6.) The Court has reviewed Defendant’s Motion to Dismiss Plaintiff’s Complaint (Id.), Memorandum of Law in Support of Defendant’s Motion to Dismiss Plaintiff’s Complaint (Id.), Plaintiff’s Response in Opposition to Defendant’s Motion to Dismiss Plaintiff’s Complaint (ECF No. 13), and Defendant’s Reply Brief in Support of its Motion to Dismiss (ECF No. 20). For the reasons shown, Defendant’s motion to dismiss is GRANTED. BACKGROUND Plaintiff filed her Complaint in the Chancery Court of Shelby County on January 18, 2018. (See ECF No. 1 at PageID 15–24.) Defendant removed this action to this Court pursuant to 28 U.S.C. §§ 1441 and 1446 based on federal question jurisdiction arising from ERISA’s preemption.1 (ECF No. 6 at PageID 80; see ECF No. 1.) 1 “If a plaintiff files a state-law complaint that should have been brought as an ERISA enforcement action, a defendant can remove the case because the statute ‘converts an ordinary state common Case 2:18-cv-02129-MSN-tmp Document 51 Filed 04/03/19 Page 2 of 9 PageID 412 Plaintiff worked for Defendant for eleven years as a customer service representative. (ECF No. 13 at PageID 232; ECF No. 1 at PageID 16.) Defendant had several employee benefit plans for full-time employees while Plaintiff was employed. (ECF No. 6 at PageID 81.) While employed by Defendant, Plaintiff was diagnosed with Postural Orthostatic Tachycardia, severe autonomic dysfunction, and Dercum’s Disease. (ECF No. 1 at PageID 16–17.) Dercum’s Disease causes severe pain and physical disability for which there is no known treatment. (Id.) Due to her illness, Plaintiff filed a claim for benefits under Defendant’s Long Term Disability policy. (ECF No. 13 at PageID 232.) Her claim was rejected; however, she was offered $17,000.00 to settle the claim for long term disability benefits. (ECF No. 1 at PageID 17.) Plaintiff alleges that her decision to accept the $17,000.00 settlement offer was based on assurances that she would continue to be covered under Defendant’s health insurance policy (the “Plan”) until she was approved for social security disability. (Id.; ECF No. 13 at PageID 232–33.) Plaintiff received benefits from 2014 to 2016. (ECF No. 1 at PageID 17.) Then, in a letter dated November 22, 2016, Plaintiff was advised by Defendant that her medical benefits would be terminated on June 30, 2018. (Id.) Plaintiff then filed her Complaint seeking a declaratory judgment and claiming breach of settlement agreement, breach of contract, and fraud/misrepresentation. (See Id.) On March 5, 2018, Defendant filed a motion to dismiss Plaintiff’s Complaint (ECF No. 6) and Plaintiff filed a motion to remand this action back to the Shelby County Chancery Court. (ECF No. 7.) The motion to remand was denied because this Court determined that it had subject matter jurisdiction over Plaintiff’s Declaratory Judgment claim, breach of contract claims, and law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.’” Doran v. Joy Global, Inc., 183 F. Supp. 3d 891, 894 n.1 (E.D. Tenn. 2016) (citing Aetna Health Inc. v. Davila, 542 U.S. 200, 209 (2004 . 2 Case 2:18-cv-02129-MSN-tmp Document 51 Filed 04/03/19 Page 3 of 9 PageID 413 fraud/misrepresentation claim, pursuant to 29 U.S.C. § 1132(a)(1)(B). (ECF No. 50.) In its motion to dismiss, Defendant argues that Plaintiff’s state law claims must be dismissed because they are preempted by federal law, because Plaintiff is not entitled to the relief requested under the plan documents, and because she has not exhausted her administrative remedies before suing Defendant.2 (ECF No. 6 at PageID 83–94.) STANDARD OF REVIEW Defendant has moved to dismiss the claims in Plaintiff’s Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. “To survive a motion to dismiss, 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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007 . ANALYSIS The issue at hand is whether Plaintiff’s claims present a federal question that is completely preempted under § 502(a) of the Employee Retirement Income Security Act (“ERISA”) and should be dismissed.3 State law claims that “relate to” employee benefit plans are preempted by ERISA. 2 This Order addresses whether the claims are preempted. During a status conference before this Court, the Court inquired into whether Plaintiff exhausted her administrative remedies before suing Defendant. There is no question that Plaintiff has not exhausted her administrative remedies. (See ECF No. 30 at PageID 290, Response to ¶ 2.) 3 ERISA applies, with some exceptions, to an employee benefit plan that is established or maintained by an employer or an employee organization engaged in commerce or in an industry or activity affecting commerce. 29 U.S.C. § 1003(a). An “employee welfare benefit plan” under ERISA is any plan that was established or maintained by an employer or an employee organization to provide medical or other benefits for its participants through the purchase of insurance or otherwise. 29 U.S.C. § 1002(1). Defendant’s Health and Welfare Benefits Plan states that ERISA governs the plan. (ECF No. 6 at PageID 166–67, 188.) Plaintiff’s Complaint states that her former employer provided the benefits plan at issue in this matter. (ECF No. 1 at PageID 16.) 3 Case 2:18-cv-02129-MSN-tmp Document 51 Filed 04/03/19 Page 4 of 9 PageID 414 Cromwell v. Equicor-Equitable HCA Corp., 944 F.2d 1272, 1275 (6th Cir. 1991). “ERISA preempts state law and state law claims that ‘relate to’ any employee benefit plan as that term is defined therein.” Cromwell, 944 F.2d at 1275 (citing 29 U.S.C. § 1144(a) and Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41 (1987 . “The phrase ‘relate to’ is given broad meaning such that a state law cause of action is preempted if “it has connection with or reference to that plan.’” Id. at 1276 (citing Metropolitan Life Ins. Co. v. Mass., 471 U.S. 724, 730, 732–33 (1985 . “[State law] claims are preempted if they ‘relate to’ an ERISA plan whether or not they were so designed or intended.” Id. (citing Daniel v. Eaton Corp., 839 F.2d 263 (6th Cir. 1988), cert. denied, 488 U.S. 826 (1988 . “[V]irtually all state law claims relating to an employee benefit plan are preempted by ERISA.” Id. “It is not the label placed on a state law claim that determines whether it is preempted, but whether in essence such a claim is for the recovery of an ERISA plan benefit.” Peters v. Lincoln Elec. Co., 285 F.3d 456, 469 (6th Cir. 2002) (citing Cromwell, 944 F.2d at 1275). “It is well-settled that ERISA preempts state law claims that ‘relate to’ an ERISA employee benefit plan.” Shackelford v. Continental Cas. Comp., 96 F. Supp. 2d 738, 741 (W.D. Tenn. 2000). Shackelford is a case similar to the case at bar. Plaintiff asserted claims for breach of contract; violation of Tenn. Code Ann. § 56-7-105 for bad faith refusal to pay benefits due; violation of the Tennessee Consumer Protection Act pursuant to Tenn. Code Ann. § 47-18-101, et seq.; negligent, grossly negligent, reckless, willful, outrageous, and malicious conduct; estoppel and intentional/negligent misrepresentation; conspiracy and breach of common law fiduciary duty; and violation of ERISA for denial of benefits and statutory breach of fiduciary duty. Id. at 740. As in this matter, plaintiff in Shackelford became totally and permanently disabled while employed. Id. Plaintiff was promised that he would receive short-term and long-term disability benefits under 4 Case 2:18-cv-02129-MSN-tmp Document 51 Filed 04/03/19 Page 5 of 9 PageID 415 the employer’s ERISA plan as a result of his disability. Id. He was also promised that he would be retained by his employer as a consultant. Id. Defendants sought dismissal under Rule 12(b)(6) of plaintiff’s state law claims arguing that ERISA preempts such claims. Id. at 741. Plaintiff argued that his state claims were not “related to” the Plan, but rather were based on his supervisors’ promises that he would receive long-term disability benefits under the Plan and would be retained by his former employer as a consultant. Id. The court in Shackelford dismissed the state law claims that were based upon the promise that plaintiff would receive long-term disability benefits because they were preempted by ERISA. Id. The court did not dismiss the state claims that were based upon defendant’s alleged promise that plaintiff would be retained by his former employer as a consultant because those claims did not seek the recovery of the ERISA plan’s benefits. Id. at 742. Plaintiff’s Complaint in this matter seeks a declaratory judgment in Count I; alleges breach of settlement agreement in Count II, breach of contract, including breach of contract, breach of implied-in-fact contract, and breach of implied-in-law contract, in Count III, and fraud/misrepresentation in Count IV. This Court will address each count separately. 1. Declaratory Judgment Claim In her Complaint, Plaintiff seeks a declaratory judgment pursuant to Tenn. Code Ann. §§ 29-14-101 et seq., and “sues the Defendant for a declaration that she is entitled to benefits under the defendant’s Group Medical Plan, a declaration of her benefits under the Plan, and, further, that Wright Medical by its action is prevented from denying benefits under that plan to Plaintiff.” (ECF No. 1 at PageID 19.) This declaration falls within the purview of 29 U.S.C. § 1132(a)(1)(B) which states that a “civil action may be brought by a participant or beneficiary to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his 5 Case 2:18-cv-02129-MSN-tmp Document 51 Filed 04/03/19 Page 6 of 9 PageID 416 rights to future benefits under the terms of the plan.” ERISA preempts this claim because it directly falls within the scope of Section 1132(a)(1)(B) and is, therefore, preempted pursuant to Section 1144(a).4 Because Plaintiff clearly seeks an entitlement to an ERISA plan’s benefits through a declaratory judgment, the claim is preempted and DISMISSED. 2. Breach of Settlement Agreement Claim Plaintiff’s Complaint also seeks damages for a breach of settlement agreement: Plaintiff and Defendant entered into a settlement agreement whereby: in consideration of Plaintiff agreeing to settle her claim under Defendant’s Long Term Disability Plan, Defendant agreed to continue to provide Plaintiff benefits under its Group Medical Plan. Plaintiff settled her disability claim in exchange for and in reliance upon Defendant’s promise to continue to provide benefits under the Group Medical Plan. Defendant has acknowledged in writing the existence of the agreement between the parties and is bound by the terms thereof. (ECF No. 1 at PageID 19–20 (emphasis added).) “The Sixth Circuit has held that state claims based upon an employer’s promise of coverage under an ERISA plan are preempted by ERISA.” Shackelford, 96 F. Supp. 2d at 741 (citing Fisher v. Combustion Eng’g, Inc., 976 F.2d 293, 296– 97 (6th Cir. 1992 ; Cromwell, 944 F.2d at 1276. Unlike plaintiff in Shackelford whose Complaint contained claims seeking enforcement of an oral agreement separate from the continuation of benefits claims, Plaintiff’s claim for breach of settlement agreement in this matter clearly seeks the continuation of the Plan’s benefits. Therefore, this claim relates to benefits under the Plan and is preempted. In other words, this claim is a state law claim based upon a settlement agreement, or promise, made by Defendant employer, regarding continuation of benefits under an ERISA plan, and is, therefore, preempted and DISMISSED. 4 “[T]he provisions of this subchapter . . . shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan . . .” 29 U.S.C. § 1144(a). 6 Case 2:18-cv-02129-MSN-tmp Document 51 Filed 04/03/19 Page 7 of 9 PageID 417 3. Breach of Contract Claims Plaintiff asserts three breach of contract claims: breach of contract, breach of implied-in- fact contract, and breach of implied-in-law contract. (ECF No. 1 at PageID 20–21.) Plaintiff claims: [She] settled her disability claim in exchange for and in reliance upon Defendant’s promise to continue to provide benefits under the Group Medical Plan . . . ; [and] the defendant agreed to provide to Plaintiff continuing benefits under its Group Medical Plan if the Plaintiff settled her long term disability claim . . . ; [and the] defendant has been unjustly enriched . . . [through the] subsequent termination of benefits under both the Group Medical Plan and the Long Term Disability Plan. (Id. at PageID 20–21 (emphasis added).) Clearly, these breach of contract claims relate to benefits under the Plan based upon the very language within each claim in the Complaint. Like the claims in Shackelford that related to the Plan, these breach of contract claims all reference an “employer’s promise of coverage under an ERISA plan,” and must be preempted. Shackelford, 96 F. Supp. 2d at 741; see Fisher, 976 F.2d at 296–97. The claims are, therefore, preempted and DISMISSED.5 4. Fraud/Misrepresentation Claim Plaintiff states in her fraud/misrepresentation claim that she “has been deprived of medical benefits by the following series of wrongful acts committed by Wright Medical . . . [by] cancelling her medical coverage on the grounds that she had become totally disabled. . . . Whether actual or constructive, the fraudulent denial of medical and disability benefits cannot be enforced to Ms. Morris’ detriment.” (ECF No. 1 at PageID 22–23 (emphasis added).) Plaintiff’s fraud claim also “relates to” the Plan through the language contained in the Complaint. “The phrase ‘relate to’ is 5 Plaintiff did not seek leave to amend the Complaint after Defendant filed its motion to dismiss to clarify which claims are seeking benefits under the plan and which claims address the alleged settlement agreement. Plaintiff argues in her response that all her claims, as written, do not relate to ERISA, but rather to the alleged settlement agreement; however, the claims, as written, clearly seek the continuation of benefits under the Plan and are, therefore, preempted under ERISA. 7 Case 2:18-cv-02129-MSN-tmp Document 51 Filed 04/03/19 Page 8 of 9 PageID 418 given broad meaning such that a state law cause of action is preempted if ‘it has connection with or reference to that plan.’” Cromwell, 944 F.2d at 1275 (quoting Metropolitan Life Ins. Co., 471 U.S. at 730, 732–33). Although plaintiff in Shackelford had an intentional/negligent misrepresentation claim that was not dismissed by that court because the claim was rooted in the defendants’ alleged promise to retain the plaintiff as a consultant, Plaintiff’s Complaint in this matter expressly connects the fraud claim to the medical benefits under the Plan. Compare Shackelford, 96 F. Supp. 2d at 742 with ECF No. 1 at PageID 22–23. This claim is intricately connected to and references the employee benefit plan and is therefore preempted by ERISA. This claim is DISMISSED. 5. Prayer for Relief Plaintiff’s Prayer for Relief following the aforementioned claims in the Complaint expressly seeks continuation of benefits under the employee benefit plans.: “Plaintiff prays that . . . [t]he Court enter judgment declaring that Plaintiff shall have all the benefits due her as a member of Defendant’s Group Medical Plan . . .; [t]he Court enter an order requiring Defendant to maintain coverage for Plaintiff under the Group Medical Plan . . .; [t]he Court enter an order permanently enjoining the Defendant from terminating, by any means whatsoever, benefits due Plaintiff under that plan . . . .” (ECF No. 1 at PageID 23.) The Sixth Circuit has determined that “[i]t is not the label placed on the state law claim that determines whether it is preempted, but whether in essence such a claim is for the recovery of an ERISA plan benefit.” Cromwell, 944 F.2d at 1276. If the express language beneath each claim in the Complaint is not enough to show the claims’ relation to the ERISA plans, this language in the Prayer for Relief also shows that the claims are seeking benefits under the Plan. Although Plaintiff labeled such claims as a breach of settlement or as a breach of contract or as fraud/misrepresentation, the essence of each claim and Plaintiff’s requested relief is for the 8 Case 2:18-cv-02129-MSN-tmp Document 51 Filed 04/03/19 Page 9 of 9 PageID 419 continuation or recovery of benefits under the Plan and, therefore, the claims are preempted and must be DISMISSED. CONCLUSION For the foregoing reasons, Defendant’s Motion to Dismiss Plaintiff’s Complaint is GRANTED and all of Plaintiff’s claims shall be DISMISSED WITH PREJUDICE. IT IS SO ORDERED this 3rd day of April, 2019. s/ Mark S. Norris MARK S. NORRIS UNITED STATES DISTRICT JUDGE 9
=== 17-2900 ===
Case 2:17-cv-02900-MSN-cgc Document 42 Filed 04/26/19 Page 1 of 11 PageID 618 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ______________________________________________________________________________ WEI GUO SHI and LI MING YAN, individually and on behalf of all other employees similarly situated, Plaintiffs, v. YUM’S CHINESE RESTAURANT D/B/A YUM’S SUBS and MEI LING LIN A/K/A MEI LING CHEN, Defendants. Case No. 17-cv-2900-MSN-cgc ______________________________________________________________________________ ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PURSUANT TO RULE 56 ______________________________________________________________________________ Before the Court is the Motion of Defendants, Mei Ling Lin a/k/a Mei Ling Chin and Yum’s Chinese Restaurant d/b/a Yum’s Subs, for Summary Judgment Pursuant to Rule 56, filed October 25, 2018 (“Motion”). (ECF No. 27.) Plaintiffs responded on November 20, 2018. (ECF No. 30.) Defendants filed a reply on December 11, 2018. For the following reasons, Defendants’ Motion is GRANTED, except insofar as it requests the Court award Defendants their costs and reasonable attorney’s fees. BACKGROUND Defendant Mei Ling Lin is the owner of Yum’s Chinese Restaurant, which she operates as a sole proprietorship. (ECF No. 30-1 at PageID 249.) Defendant Yum’s Chinese Restaurant is in the business of selling food to consumers at its location in Memphis, TN. (ECF No. 30-1 at PageID 255.) Plaintiffs allege that they were employed by Defendants as cooks from May 2016 to October Case 2:17-cv-02900-MSN-cgc Document 42 Filed 04/26/19 Page 2 of 11 PageID 619 20161 and worked approximately seventy-five and a half (75.5) hours per week during that time. (ECF No. 1 at PageID 2, 4; ECF No. 30-3 at PageID 267; ECF No. 30-4 at PageID 270.) Plaintiffs allege that they were paid a fixed rate of $3,100 per month for their work. (ECF No. 1 at PageID 4.) Defendants deny this and assert that the only time Plaintiffs worked in the restaurant was for less than a full week in 2016 when Plaintiffs visited the Memphis area for the purpose of exploring the possibility of opening their own restaurant. (ECF No. 27-2 at PageID 84.) Defendants allege that during Plaintiffs’ visit to Memphis, Plaintiffs helped Defendant Lin’s husband in the restaurant’s kitchen as cooks, and that Defendant Lin paid them cash as casual labor. (ECF No. 27-2 at PageID 84.) 1 On April 23, 2019, Plaintiffs filed a Motion for Leave to File an Amended Complaint. (ECF No. 37.) The stated purpose of the amendment is to reflect that Plaintiff Yan’s employment with Defendant commenced in September 2016 instead of May 2016. (Id. at PageID 470.) Attached to the motion is a redline of the Proposed First Amended Collective Action Complaint. (ECF No. 37-1.) The redline reflects proposed changes to be made to paragraph 6 of the original Complaint as follows: 6. Plaintiffs Wei Guo Shi and Li Ming Yan worked as restaurant workers for Defendants at its 3141 Perkins Road, Memphis TN 38118 restaurant location. They worked primarily as cooks where they prepared and cooked food from May 2016 to October 2016. Plaintiff Wei Guo Shi was employed as a cook from May 2016 to October 2016. Plaintiff Li Ming Yan was employed as a cook from September 2016 to October 2016. Plaintiffs regularly worked in excess of 40 hours per week without receiving all the compensation they were due under the FLSA. Plaintiffs Wei Guo Shi’s and Li Ming Yan’s consent are attached as Exhibit A. Rule 15(a) declares that leave to amend “shall be freely given when justice so requires.” The Supreme Court has held that leave to amend should normally be granted unless there is some “apparent or declared reason” not to allow the amendment. Foman v. Davis, 371 U.S. 178, 182 (1962). One reason for not allowing an amendment is that the amendment would be futile. Id. This Court finds that Plaintiffs’ proposed amendment would be futile because it would not alter the analysis on the issue of Defendants’ annual gross volume of sales. Even if Plaintiff Yan worked for Defendants for four fewer months, this does not change the year at issue, 2016, or any other part of the analysis herein. Accordingly, Plaintiff’s Motion for Leave to File an Amended Complaint is DENIED. 2 Case 2:17-cv-02900-MSN-cgc Document 42 Filed 04/26/19 Page 3 of 11 PageID 620 On December 14, 2017, Plaintiffs filed an action against Defendants to recover unpaid overtime compensation and liquidated damages. (ECF No. 1 at PageID 1.) Plaintiffs assert that Defendants failed to pay them overtime compensation as required by the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”). Plaintiffs allege that Defendants employ other restaurant workers who also work in excess of forty hours per week without being paid overtime compensation. (ECF No. 1 at PageID 5–6.) In the instant motion before the Court, Defendants assert that Plaintiffs have failed to show Defendants are covered under the FLSA’s enterprise coverage.2 (See ECF Nos. 27-4 & 34.) Defendants assert that they are not engaged in interstate commerce and that they do not have an annual gross volume of sales in excess of $500,000. (ECF No. 27-4 at PageID 158–60; ECF No. 34 at PageID 282, 287–88.) In support, Defendants attached an affidavit along with several tax and business records. (ECF Nos. 27-2, 27-3, 27-5.) In their response in opposition, Plaintiffs contend that Defendants’ submission of tax returns is insufficient for purposes of summary judgment on the issue of annual dollar volume for enterprise coverage under the FLSA. (ECF No. 30 at PageID 244–46.) Plaintiffs also offer their own estimate of Defendants’ gross volume of sales. (ECF No. 30 at PageID 247.) Defendants’ reply brief reasserts its arguments as to each element of enterprise coverage under the FLSA, and Defendants provide under seal a minimally redacted copy of Defendants’ Schedule C from Defendants’ 2016 Federal Income Tax Return in support thereof. (ECF Nos. 34 & 35.) 2 Defendants’ initial motion also asserts there is no individual coverage under FLSA, but Plaintiffs concede in their response that individual coverage does not apply in this case. (ECF No. 30 at PageID 239 n. 1.) 3 Case 2:17-cv-02900-MSN-cgc Document 42 Filed 04/26/19 Page 4 of 11 PageID 621 JURISDICTION The Court has federal-question jurisdiction. Under 28 U.S.C. § 1331, United States district courts have original jurisdiction “of all civil actions arising under the Constitution, laws, or treaties of the United States.” Plaintiffs allege Defendant violated provisions of the FLSA. (ECF No. 1 at PageID 1.) That claim arises under the laws of the United States. See 28 U.S.C. § 1331. STANDARD OF REVIEW Under Federal Rule of Civil Procedure 56, on motion of either party, the court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party “bears the burden of clearly and convincingly establishing the nonexistence of any genuine [dispute] of material fact, and the evidence as well as all inferences drawn therefrom must be read in a light most favorable to the party opposing the motion.” Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir. 1986); see Fed. R. Civ. P. 56(a). “A fact is ‘material’ for purposes of summary judgment if proof of that fact would establish or refute an essential element of the cause of action or defense.” Bruederle v. Louisville Metro Gov’t, 687 F.3d 771, 776 (6th Cir. 2012). When confronted with a properly supported motion for summary judgment, the nonmoving party must set forth specific facts showing that there is a genuine dispute for trial. See Fed. R. Civ. P. 56(c) (emphasis added). A genuine dispute for trial exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., , 248 (1986). The nonmoving party must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., , 586 (1986). It must provide “significant probative evidence” to defeat a proper summary judgment motion. Anderson, 477 U.S. at 249. The district court has no duty to 4 Case 2:17-cv-02900-MSN-cgc Document 42 Filed 04/26/19 Page 5 of 11 PageID 622 search the record for such evidence. See Fed. R. Civ. P. 56(c)(3); InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). The nonmovant has the duty to identify specific evidence in the record that would be sufficient to justify a jury decision in its favor. See Fed. R. Civ. P. 56(c)(1); InterRoyal Corp., 889 F.2d at 111. “When the non-moving party fails to make a sufficient showing of an essential element of his case on which he bears the burden of proof, the moving parties are entitled to judgment as a matter of law and summary judgment is proper.” Martinez v. Cracker Barrel Old Country Store, Inc., 703 F.3d 911, 914 (6th Cir. 2013) (quoting Chapman v. UAW Local 1005, 670 F.3d 677, 680 (6th Cir. 2012) (en banc . “Summary judgment is an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action[,] rather than a disfavored procedural shortcut.” FDIC v. Jeff Miller Stables, 573 F.3d 289, 294 (6th Cir. 2009) (internal quotation marks and citations omitted). DISCUSSION A. Coverage under the FLSA There are two ways in which employees may demonstrate coverage under the FLSA. First, employees may enjoy “enterprise coverage” if they are “employed in an enterprise engaged in commerce or the production of goods for commerce.” Kowalski v. Kowalski Heat Transfer Co., 920 F. Supp. 799, 083 (N.D. Ohio 1996). Alternatively, employees may have “individual coverage” if they are directly “engaged in commerce or in the production of goods for commerce.” Id. In this case, Plaintiffs concede that individual coverage does not apply. (ECF No. 30 at PageID 239 n. 1.) Instead, Plaintiffs assert that there is enterprise coverage. (ECF No. 30 at PageID 239.) 5 Case 2:17-cv-02900-MSN-cgc Document 42 Filed 04/26/19 Page 6 of 11 PageID 623 Relevant to the claim of enterprise coverage here, the FLSA provides that an “[e]nterprise engaged in commerce or in the production of goods for commerce” to be an enterprise that (A)(i) has employees engaged in commerce or in the production of goods for commerce, or that has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person; and (ii) is an enterprise whose annual gross volume of sales made or business done is not less than $500,000 (exclusive of excise taxes at the retail level that are separately stated) . . . . 29 U.S.C. § 203(s)(1)(A)(i) & (ii). In other words, there are two prongs that must be met to establish enterprise coverage: (1) the “commerce” prong, and (2) the “annual gross volume” prong. According to Plaintiffs’ Complaint, Plaintiffs were employed by Defendant for approximately six months in 2016 (ECF No. 1 at PageID 2), so the two prongs for enterprise coverage must be satisfied for 2016. The Court will first address the second prong regarding Defendant’s annual gross volume of sales. Defendants assert that Defendants’ annual gross volume of sales for 2016 was well below the requisite $500,000. (ECF No. 27-4 at PageID 153.) Defendants have provided copies of Schedule C from Defendants’ 2016 Federal Income Tax Return, which reflects gross receipts or sales of $225,637 for 2016. (ECF No. 27-5 at PageID 162; ECF No. 35 at PageID 423.) Defendants have also submitted copies of Defendants’ Tennessee State and Local Sales and Use Tax Return SLS 450 from January 1, 2016 through December 31, 2016. (ECF No. 27-3.) These returns reflect total gross sales of $225,637 for 2016. (Id.) Finally, with their reply, Defendants submitted copies of business records for sales in 2016 along with copies of billing statements from Defendants’ credit/debit card processer. (ECF No. 34-4; ECF No. 34-2 at PageID 296.) These records reflect nearly identical amounts of gross sales as those shown on Defendants’ monthly Tennessee State and Local Sales and Use Tax Returns. (ECF No. 34-4.) Defendants have 6 Case 2:17-cv-02900-MSN-cgc Document 42 Filed 04/26/19 Page 7 of 11 PageID 624 submitted an affidavit verifying the authenticity of the Schedule C and other business records and that they accurately reflect Defendants’ gross sales. (ECF No. 27-2 at PageID 82–83; ECF No. 34-2 at PageID 295–98.) In response to this evidence, Plaintiffs submit their own affidavits in which they assert that they each made approximately 150-200 dishes each day; that each order would consist of two to three dishes on average; and that each order generally cost $20 to $30. (ECF No. 30-3 at PageID 268; ECF No. 30-4 at PageID 271.) Plaintiffs also assert that Defendants took over ten orders of party platters each week and that those party platters cost approximately $100 to $200 per order.3 (ECF No. 30-3 at PageID 268; ECF No. 30-4 at PageID 271.) Based on these numbers, Plaintiffs provide the following formula and estimate annual gross sales to be at least $780,000: “50 orders x $25 x 6 days x 52 weeks x 2 Plaintiffs = $780,000.” (ECF No. 30 at PageID 247 & n. 4.) Considering the evidence in the light most favorable to Plaintiffs, this Court cannot find that there is a genuine issue of material fact as to whether Defendants’ annual gross volume of sales in 2016 was sufficient to meet the FLSA threshold. Plaintiffs’ estimates regarding Defendants’ gross sales are pure speculation. Plaintiffs were employed solely as cooks for Defendant Lin’s restaurant. (ECF No. 30-1 at PageID 259–60.) Plaintiffs never worked as cashiers, and there are no facts in either Plaintiff’s affidavit to support that he had knowledge of amounts paid by customers. (Id; ECF Nos. 30-3 & 30-4.) Plaintiff’s responsibilities in the restaurant were limited to setting up workstations, chopping, peeling, and cutting up vegetables and meat, cooking, checking food while cooking, and “ensuring great presentation before serving dishes.” (ECF Nos. 30-3 & 30-4.) 3 Defendants assert that they do not provide “party platters.” (ECF No. 34-2 at PageID 298.) However, Plaintiffs do not appear to include party platter revenue in their annual gross volume of sales estimates. 7 Case 2:17-cv-02900-MSN-cgc Document 42 Filed 04/26/19 Page 8 of 11 PageID 625 Nevertheless, Plaintiffs contend that Defendants’ tax returns are unreliable and that tax returns are not conclusive evidence of the annual dollar volume amount under the FLSA. (ECF No. 30 at PageID 244.) However, none of the cases Plaintiffs cite in support of their argument are convincing. First, Plaintiffs cite to Amaya v. Superior Tile & Granite Corp., No. 10 Civ. 4525 (PGG), 2012 WL 130425 (S.D.N.Y. Jan. 17, 2012), and argue that, like the defendants in Amaya, the Defendant’s Schedule C contains inconsistencies and is therefore unreliable. (ECF No. 30 at PageID 244–45.) Amaya involved a bench trial, not a motion for summary judgment, and the court found, based upon evidence presented during the bench trial, including the testimony of the defendant’s general manager regarding its sales, that the defendant’s tax returns were “not reliable indicator’s of [the] [defendant’s] income and expenses.” Amaya, 2012 WL 130425, at *5. In contrast, Plaintiffs here have not presented any evidence other than their affidavits to contradict Defendant’s tax returns. Moreover, Plaintiffs’ assertions regarding inconsistencies in Defendants’ tax returns are not substantiated and appear to result from a misunderstanding regarding the extent of redaction in Defendants’ tax returns. Defendants initially submitted the 2016 Schedule C with all amounts in Part I and Part II redacted except for Line 1 in Part I showing gross receipts or sales. (ECF No 27-5 at PageID 162.) Plaintiffs, apparently not realizing these amounts had been redacted, asserted that the lack of normal business expenses on Defendants’ tax return made the return unreliable. (ECF No. 30 at PageID 246.) In response, with their reply, Defendants submitted under seal a copy of Defendants’ 2016 Schedule C in which these amounts are not redacted. (ECF No. 35.) Without revealing the specifics of the information filed under seal, Defendants’ Schedule C contains amounts for insurance expenses, utilities, wages, and other expenses. (Id.) Therefore, 8 Case 2:17-cv-02900-MSN-cgc Document 42 Filed 04/26/19 Page 9 of 11 PageID 626 Plaintiffs’ argument that Defendants’ Schedule C is unreliable because it is missing these amounts is unavailing. Next, Plaintiffs cite to Arilus v. Joseph A. Deimmanuele, Jr., Inc., 895 F. Supp. 2d 1257 (S.D. Fla. 2012). In Arilus, the defendant used tax returns, along with affidavits, to establish that its gross receipts for several years were less than the requisite $500,000. 895 F. Supp. 2d at 1262. For one year, however, the defendant’s tax return showed gross receipts in excess of $500,000, and the defendant sought to present additional evidence that its gross receipts for that year were not in fact in excess of $500,000. Id. at 1264–66. The court noted that “a corporate income tax return provides strong evidence of an employers’ ‘gross volume of sales made or business done,’” but allowed the defendant to nevertheless present evidence to explain why its gross receipts were less than the amount shown on the tax return, saying, “[c]learly, the FLSA does not require a party to prove annual sales only through reliance on a corporate income tax return.” Id. at 1266 (emphasis added). Equally unconvincing is Plaintiffs’ reliance on Lopez v. Pereyra, No. 09-60734-CIV, 2009 WL 3586907 (S.D. Fla. Oct. 27, 2009). In Lopez, the plaintiffs served subpoenas duces tecum seeking production of the defendants’ financial records in order to determine the defendants’ “‘annual gross volume of sales made or business done’ . . . and to challenge the figures on [the] [d]efendants’ tax returns.” 2009 WL 3586907, at *1. The defendants sought to have the subpoenas quashed and argued they had already provided plaintiffs with copies of their tax returns showing that they did not have at least $500,000 in gross revenue during the years at issue. Id. The court refused to quash the subpoenas and noted that “[t]o avoid summary judgment, the non-[moving] party must ‘make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. . . [the] [p]laintiffs, 9 Case 2:17-cv-02900-MSN-cgc Document 42 Filed 04/26/19 Page 10 of 11 PageID 627 therefore, should be permitted to take discovery of [the] [d]efendants’ financial matters to demonstrate, if possible, a genuine issue of material fact as to enterprise coverage.” Id. at *3. Unlike the plaintiffs in Lopez, Plaintiffs here had five months to conduct discovery to demonstrate that there is a genuine issue of material fact as to the annual dollar volume requirement for enterprise coverage, and yet, the only evidence Plaintiffs offer to rebut Defendants’ tax returns and business records is their own affidavits that provide their estimates of the revenue produced by Defendants’ business.4 Simply put, Plaintiffs bare allegations do not amount to the “significant probative evidence” necessary to defeat Defendants’ properly supported motion for summary judgment. See Anderson, 477 U.S. at 249. Because Defendants have shown that there is no genuine issue of material fact that Defendants’ annual gross volume of sales for 2016 was less than the $500,000 threshold amount for enterprise coverage under the FLSA, i.e. that the annual gross volume prong has not been met, the Court need not reach the question of whether Defendant Lin’s restaurant was engaged in interstate commerce in 2016. B. Request for Costs and Fees In the prayer for relief, Defendants request in conclusory fashion “that the [C]ourt, pursuant to 28 U.S.C. §§ 1914, 1919, 1920, and 1927 award . . . costs and reasonable attorney’s fees. (ECF 4 Plaintiffs’ citations to Monterossa v. Martinez Restaurant Corp., No. 11 Civ. 3689 (JMF), 2012 WL 3890212 (S.D.N.Y. Sept. 7, 2012), and Turcios v. Delicias Hispanas Corp., 275 F. App’x 879 (11th Cir. 2008), are also not persuasive. In Monterossa, the court found that there was a genuine issue of material fact regarding whether the defendants met the annual dollar volume requirement because the defendant’s tax returns were inconsistent with the defendant’s own records showing wages and expenses paid in excess of $500,000. 2012 WL 3890212, at *3–4. In Turcios, the Eleventh Circuit found that the district court erred in applying the Rule 12(b)(1) standard to find that the plaintiff had not proved the defendant had at least $500,000 in gross sales during the year is issue. 275 F. App’x at 883–84. Among other things, the Eleventh Circuit noted this finding was in error, especially given that the defendant was operated as a cash-only restaurant with no documentation regarding its gross revenue. Id. Neither case speaks to the reliability of tax returns, or that tax returns are insufficient for purposes of establishing the annual dollar volume requirement for summary judgment. 10 Case 2:17-cv-02900-MSN-cgc Document 42 Filed 04/26/19 Page 11 of 11 PageID 628 No. 27-4 at PageID 160.) Defendants do not provide any factual basis or other support for their request in the Motion. Accordingly, the request for costs and reasonable attorney’s fees is DENIED. CONCLUSION For the foregoing reasons, Defendants are entitled to judgment as a matter of law on the issue of enterprise coverage under the FLSA. Defendants have not, however, provided any support for their request for costs and reasonable attorney’s fees pursuant to 28 U.S.C. §§ 1914, 1919, 1920, and 1927. Defendants’ Motion for Summary Judgment Pursuant to Rule 56 is therefore GRANTED IN PART. All claims in this matter are DISMISSED WITH PREJUDICE. IT IS SO ORDERED, this 26th day of April, 2019. s/ Mark S. Norris MARK S. NORRIS UNITED STATED DISTRICT JUDGE 11
=== 20-2335 ===
Case 2:20-cv-02335-MSN-cgc Document 76 Filed 02/05/22 Page 1 of 3 PageID 1059 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION APRIL HEARD, and as Parent and Next Friend of D.H., a minor, Plaintiffs, vs. MONIQUE THOMAS, Defendant. No. 2:20-cv-2335-MSN-cgc ORDER GRANTING PLAINTIFFS’ UNOPPOSED MOTION TO FILE VIDEO FOOTAGE UNDER SEAL Before the Court is Plaintiffs’ Motion for Leave to File, Under Seal, Unedited Security Footage From [Kirby] High School in the Clerk’s Office, filed January 19, 2022. (ECF No. 72) (“Motion”.) Defendant has not filed a Response and the time to do so has lapsed. Therefore, the Court evaluates the Motion on its face and, finding good cause, as discussed below, GRANTS the Motion. DISCUSSION Plaintiffs’ Motion presents two questions, the latter of which demands greater attention: First, whether Plaintiffs may file video surveillance footage from the school at issue here and, second, whether any such footage is entitled to be filed under seal. The Motion is unopposed, and the Court finds no reason why Plaintiffs should not be permitted to file the proposed video footage on the docket. However, filing the footage under seal requires a much more detailed analysis. The Sixth Circuit has clearly described the “strong presumption in favor of openness” that accompanies court records. Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1179 Case 2:20-cv-02335-MSN-cgc Document 76 Filed 02/05/22 Page 2 of 3 PageID 1060 (6th Cir. 1983). “Only the most compelling reasons can justify non-disclosure of judicial records.” In re Knoxville News-Sentinel Co., 723 F.2d 470, 476 (6th Cir. 1983). Moreover, the seal itself, when appropriate, should be narrowly tailored to the compelling reason articulated by the district court for sealing the filing. See, e.g., Press-Enter. Co. v. Superior Court of California, Riverside Cnty., 464 U.S. 501, 509-11 (1984). When analyzing whether the public interest outweighs justifications to seal a document, “‘the privacy interests of innocent third parties should weigh heavily in a court’s balancing equation.’” Shane Grp., Inc. v. Blue Cross Blue Shield, 825 F.3d 299, 305 (6th Cir. 2016) (quoting United States v. Amodeo, 71 F.3d 1044, 1050 (2d Cir. 1995 ; see, e.g., In re Knoxville News-Sentinel Co., 723 F.2d 470 at 476 (affirming district court’s decision to seal innocent third parties’ bank records). Indeed, a district court that elects to seal court records must make specific findings and conclusions that “justify nondisclosure to the public.” Brown & Williamson Tobacco Corp., 710 F.2d at 1176; see also United States v. Kravetz, 706 F.3d 47, 60 (1st Cir. 2013) (“Appellate courts have . . . emphasized that upon entering orders which inhibit the flow of information between courts and the public, district courts should articulate on the record their reasons for doing so.”). “‘[A] court’s failure to set forth those reasons . . .’ is itself sufficient grounds to vacate the seal.” Rudd Equip. Co. v. John Deere Constr. & Forestry Co., 834 F.3d 589, 594 (6th Cir. 2016) (quoting Shane Grp., 825 F.3d at 306). The obligation to render such findings applies with equal force to situations in which the motion to seal is unopposed. See Shane Grp., Inc., 825 F.3d at 306. Here, Plaintiffs assert that the video surveillance footage should be sealed because it “shows other minors who are not a subject of this” lawsuit. (ECF No. 72 at PageID 549.) To this end, one compelling reason to seal the video footage is that “the Family Educational Rights and Privacy Act (“FERPA”) protects educational records or personally identifiable information from 2 Case 2:20-cv-02335-MSN-cgc Document 76 Filed 02/05/22 Page 3 of 3 PageID 1061 improper disclosure.” Doe v Cnty. Bd. Of Educ., 213 F.3d 921, 926 (6th Cir. 2000). 20 U.S.C. § 1232g(b)(1). “[P]rivacy rights are of particular import when recognized and protected by federal statutory provisions like the FERPA.” United States v. Miami Univ., 294 F.3d 797, 834 n. 24 (6th Cir. 2002). The Court specifically finds that the video surveillance footage should be sealed because: (1) it contains, or likely contains, the personally identifiable information of non-party minors (i.e., their faces captured on film); (2) such information is statutorily protected; and (3) the public interest in viewing the video ought not override Congress’ deliberate statutory protections for the minors’ privacy. See Doe v. Detroit Pub. Schs. Cmty. Dist., Case No. 21-11136, 2021 U.S. Dist. LEXIS 202741 (E.D. Mich. Oct. 21, 2021) (sealing video taken at school because it captured nonparty minors’ personally identifiable information); see also Miami Univ., 294 F.3d at 834; Shane Grp., Inc., 825 F.3d at 306 (explaining privacy interests of nonparties should “weigh heavily” in the Court’s analysis). Consistent with these findings, the Court also references its earlier Protective Order in this matter that ensured the confidentiality of “[a]ll student educational records and information” pursuant to FERPA protections. (See ECF No. 51 at PageID 245–46.) Therefore, the Motion is GRANTED. CONCLUSION For the foregoing reasons, the Court hereby GRANTS Plaintiff’s unopposed Motion as to (a) filing the video surveillance footage and (b) permits them to do so under seal. (ECF No. 9.) IT IS SO ORDERED this 5th day of February 2022. s/ Mark Norris MARK S. NORRIS UNITED STATES DISTRICT JUDGE 3
=== 20-2335 ===
Case 2:20-cv-02335-MSN-cgc Document 105 Filed 05/05/22 Page 1 of 6 PageID 1142 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION APRIL HEARD, and DERRICKIA HEARD, Plaintiffs, vs. MONIQUE THOMAS, Defendant. No. 2:20-cv-2335-MSN-cgc ORDER GRANTING DEFENDANT’S MOTION TO REMOVE APRIL HEARD AS PARENT AND NEXT FRIEND ____________________________________________________________________________ Before the Court is Defendant Monique Thomas’ (“Defendant”) Motion to Remove April Heard as Parent and Next Friend or, in the Alternative, Motion to Dismiss Complaint for Failure to Prosecute Under Name of Real Party in Interest, docketed March 25, 2022. (“Motion”) (ECF No. 90.) Plaintiffs responded in opposition on April 8, 2022. (ECF No. 97.) For the reasons below, Defendant’s Motion is GRANTED. LEGAL STANDARD “Under Rule 17 of the Federal Rules of Civil Procedure, whenever a minor has a representative, such as ‘a general guardian,’ the representative may sue or defend on behalf of the minor.” J.H. v. Williamson Cnty., No. 3:14-2356, 2016 WL 6071892, *3 (M.D. Tenn. 2016); see Fed. R. Civ. P. 17(c). “State law controls the question whether the represented party’s disability has ended during the action . . . .” Kloian v. Simon (In re Kloian), 179 F. App’x 262, 265 (6th Cir. 2006) (quoting 6A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 1570, at 507 (1990) (“Wright & Miller, § 1570” ; see, e.g., Grady v. Madison Case 2:20-cv-02335-MSN-cgc Document 105 Filed 05/05/22 Page 2 of 6 PageID 1143 Cnty., No. 1:19-cv-01153-STA-tmp, 2020 WL 3036891, *15 (W.D. Tenn. 2020) (citing Tennessee law for the proposition that minors cannot bring a lawsuit on their own); Davis v. Panda Express, Inc., No. 3:20-cv-728-RGJ, 2021 WL 2903240, *6 (W.D. Ky. 2021) (applying state law to determine whether a minor may disavow a contract); Williamson Cnty., 2016 WL 6071892 at *3 (“Under Tennessee law, a parent may maintain a civil action as next friend on behalf of her minor child.”); Fed. R. Civ. P. 17(b)(1) (“law of the individual’s domicile” controls that individual’s capacity to be sued). Once a court determines that a minor has reached the age of majority under state law, “the fiduciary loses authority to maintain the suit on behalf of the former infant . . . .” Kloian, 179 F. App’x at 266 (quoting Wright & Miller, § 1570 at 507); see, e.g., M.P.T.C. v. Nelson Cnty. Sch. Dist., 192 F. Supp. 3d 798, 811 (W.D. Ky. 2016) (“To the extent that Plaintiff seeks to amend the case caption to substitute his initials with his full name because he has reached the age of majority, the Court grants the relief.”) One district court has even “held that service upon a former minor’s [guardian ad litem] was ‘no service’ because the minor had reached the age of majority.” Kloian, 179 F. App’x at 266 (citing Mason v. Royal Indem. Co., 35 F. Supp. 477, 480– 81 (N.D. Ga. 1940 . Others have explained, “[t]he decision to appoint a ‘next friend’ . . . rests with the sound discretion of the district court and will be disturbed only for an abuse of discretion.” Scannavino v. Fla. Dep’t of Corr., 242 F.R.D. 662, 666 (M.D. Fla. 2007). DISCUSSION Defendant has moved under Federal Rule of Civil Procedure 17(c) to remove Plaintiff April Heard as Parent and Next Friend of D.H. because Derrickia Heard is a real party in interest who attained the age of majority since this litigation began.1 Specifically, Defendant references the 1 Plaintiffs do not dispute that Derrickia Heard is a real party in interest, (ECF No. 97 at PageID 1118), or that she has in fact reached the age of majority in Tennessee, which is eighteen 2 Case 2:20-cv-02335-MSN-cgc Document 105 Filed 05/05/22 Page 3 of 6 PageID 1144 Sixth Circuit’s decision in Wilson v. Webb, 2000 U.S. App. LEXIS 23585, 2000 WL 1359624 (6th Cir. 2000) as authority for her claim that this litigation should continue in Derrickia Heard’s name.2 (ECF No. 90-1 at PageID 1093.) Defendant further argues that Plaintiff April Heard should no longer appear as Parent and Next Friend of D.H because Derrickia Heard has reached the age of majority in Tennessee. (Id.) Defendant submits in the alternative that the Complaint should be dismissed for failure to prosecute.3 (Id. at PageID 1096.) Plaintiffs respond that April Heard does have a claim against Defendant for Negligent Infliction of Emotional Distress (“NIED”), but that the Court inappropriately denied leave to amend the Complaint to add it. (ECF No. 97 at PageID 1118.) Plaintiffs further argue that “Defendant’s Motion should be denied in its entirety for being brought outside the deadlines provided for in the Court’s Scheduling Order.” (Id. at PageID 1117.) Here, Defendant convincingly argues that the docket should reflect Derrickia Heard as a party plaintiff in her individual capacity. See Walker v. Evans, No. 10-12596, 2011 WL 3593248, years. See Tenn. Code Ann. § 34-1-102(b). Accordingly, the Court concludes for purposes of this litigation that Plaintiff Derrickia Heard has in fact attained eighteen years of age. 2 Plaintiff represents to the Court that Defendant intended to cite “Wilson v. Luttrell” at “230 F.3d 1361,” thus intimating that “Wilson v. Luttrell” is a separate case. (ECF No. 97 at PageID 1117.) However, “Luttrell” was a party in Wilson v. Webb and the parties are referring to the same case; “230 F.3d 1361” references several consolidated matters. The Court notes that it accessed the Wilson v. Webb opinion without difficulty on LexisNexis, where it appears as “Wilson v. Webb” at the citation provided by Defendant, but the same opinion appears on Westlaw under the Wilson v. Luttrell caption—as the Court previously intimated, it is one among several cases that share this citation—at the reference provided by Plaintiffs. While the Court abstains from the (lively) debate on whether LexisNexis or Westlaw is the superior legal research tool, it will (for clarity) refer to the case cited by the parties as: Wilson v. Webb, 2000 U.S. App. LEXIS 23585, 2000 WL 1359624 (6th Cir. 2000) and, subsequently in short form, as Webb, 2000 WL 1359624. 3 The Court cannot discern any authority from the pleadings where a court dismissed a matter for failure to prosecute simply because a party had not been properly substituted. Indeed, Defendant’s case law suggests the opposite conclusion. See, e.g., Webb, 2000 WL 1359624, at * 29 (“Nor does Luttrell appear to have been prejudiced by Price’s failure to remove her next friend when she reached the age of majority. . . .”) Either way, as this Order will explain, the Court need not address these grounds for alternative relief because substitution is appropriate. 3 Case 2:20-cv-02335-MSN-cgc Document 105 Filed 05/05/22 Page 4 of 6 PageID 1145 *2–3 (E.D. Mich. 2011) (substituting minor plaintiffs’ names for next friends because minors reached the age of majority); see, e.g., Erie R. Co. v. Fritsch, 72 F.2d 766, 767 (3d Cir. 1934) (minor plaintiff came of age before entry of judgment and the court properly amended the docket to reflect her name on the judgment); Stephenson v. McClelland, 632 F. App’x 177, 181 (5th Cir. 2015) (holding that parents lose standing to bring claims on their child’s behalf after the child reaches age of majority). The parties do not dispute that Plaintiff Derrickia Heard turned eighteen years old in November 2021, which is the applicable age of majority under Tenn. Code Ann. § 34-1-102(b). Consequently, Plaintiff April Heard no longer has standing to bring a lawsuit on her daughter’s behalf.4 See McClelland, 632 F. App’x at 181. Next, the Court turns to whether Plaintiff April Heard would suffer prejudice if removed as Parent and Next Friend to Derrickia Heard. Specifically, Plaintiff April Heard argues that “she sought to add a claim against Defendant asserting negligent infliction of emotional distress.” (ECF No. 97 at PageID 1119.) Plaintiffs insist that “at the time the Court denied the Motion for Leave to Amend, Defendant had not been served or otherwise filed a responsive pleading,” and therefore Plaintiffs’ motion for leave to amend should have been granted “as of right.” (ECF No. 97 at PageID 1118.) While it is puzzling why Plaintiffs still filed a motion for leave to amend even though they thought themselves entitled to amend the Complaint “as of right,” the previously dismissed Defendant School Board did file a responsive pleading, (ECF No. 6), thirty days before Plaintiffs filed their motion for leave 4 Defendant also cites the Sixth Circuit’s decision in Wilson v. Webb for this proposition. (ECF No. 90-1 at PageID 1093.) However, as Plaintiffs’ counsel aptly points out, Defendant’s citation is inexact because it omits the Kentucky Supreme Court decision to which the Sixth Circuit specifically referred. (ECF No. 97 at PageID 1117 n. 1.) The proper citation for the quotation is: Wilson v. Webb, 2000 U.S. App. LEXIS 23585, 2000 WL 1359624 (6th Cir. 2000) (citing Cozine v. Bonnick, 245 S.W.2d 935, 937–38 (Ky. 1952 . However, inexact citation notwithstanding, the fact that the Sixth Circuit applied this principle in Webb, coupled with persuasive authority from courts in sister circuits, sufficiently shows that an individual who has reached age of majority may be substituted on the docket in lieu of their authorized representative in accordance with Rule 17. 4 Case 2:20-cv-02335-MSN-cgc Document 105 Filed 05/05/22 Page 5 of 6 PageID 1146 to amend. (Id.; ECF No. 8.) As the Court explained in an earlier Order, Plaintiffs’ claims against the School Board failed as a matter of law and were dismissed; consequently, the Court denied Plaintiffs’ motion for leave to amend in its entirety on August 14, 2020.5 (ECF Nos. 8, 13.) Therefore, Defendant’s Motion is GRANTED. The clerk is directed to add Derrickia Heard as a 5 The Court’s Order, issued on August 14, 2020 (“August Order”), unequivocally denied leave to amend the Complaint in all respects because it determined the proposed claims would not survive a motion to dismiss. (ECF No. 13.) See Jenkins v. Foot Locker, Inc., 598 F. App’x 346, 350 (6th Cir. 2015). Plaintiffs did not express a written objection with this Court—though they did file an interlocutory appeal on September 11, 2020 that was voluntarily dismissed (ECF No. 36)—to the August Order until January 19, 2022. (See ECF No. 73 at PageID 553.) To this end, the Court notes that interlocutory review is discouraged where it “would not bring this lawsuit to a close materially sooner than an appeal from final judgment.” In re Nicholas Paul Somberg, No. No. 2:20-cv-11917, ___ F.4th ___ (6th Cir. 2022). Rather than file a motion to reconsider with specific grounds for relief—the standard procedure required by Local Rule 7.3(b)—at any time during the 523 long days between the Court’s August Order and Plaintiffs’ January response to Defendant Thomas’ motion for summary judgment, Plaintiff ominously warned the Court that Plaintiff April Heard “will proceed with her appeal” should the Court decline to set aside its August Order. (ECF No. 73 at PageID 553.) This bald admonition, bereft of any specific objection to the language or analysis in the August Order, or case law to suggest why or how the Court supposedly erred, does not meet the requirements presented in Local Rule 7.3(b). Indeed, beyond their warning, Plaintiffs have not “specifically shown” any “manifest failure by the Court to consider material facts or dispositive legal arguments” that would compel the Court to revise its August Order under Fed. R. Civ. P. 54(b). L.R. 7.3(b)(3). Moreover, noncompliance with the Local Rules must not be lightly taken because they “promote the efficient operation of the district courts . . . .” Sinito v. United States, 750 F.2d 512, 515 (6th Cir. 1984). The principle that “[d]istrict courts have broad discretion in interpreting, applying, and determining the requirements of their own local rules and general orders” is well settled in this Circuit. Pearce v. Chrysler Grp., LLC Pension Plan, 615 F. App’x 342, 349 (6th Cir. 2015); see S.S. v. E. Ky. Univ., 532 F.3d 445, 451 (6th Cir. 2008). Therefore, and because Plaintiffs did not file a motion to reconsider (despite ample time to do so) as is standard practice under the Local Rules, the Court has not been persuaded to set aside its August Order that denied leave to amend the Complaint. 5 Case 2:20-cv-02335-MSN-cgc Document 105 Filed 05/05/22 Page 6 of 6 PageID 1147 Plaintiff in this matter and April Heard shall remain a party Plaintiff.6 April Heard shall no longer be identified as “Parent and Next Friend of D.H.”7 (See ECF No. 64 at PageID 525.) CONCLUSION For the foregoing reasons, Defendant’s Motion, (ECF No. 90), is GRANTED. The clerk is DIRECTED to remove April Heard as Parent and Next Friend of D.H., while retaining April Heard as a party Plaintiff in her individual capacity. Plaintiff “D.H.” should be reflected on the docket as Plaintiff Derrickia Heard, a second Plaintiff, because she has now attained the age of majority in Tennessee. IT IS SO ORDERED this 5th day of April, 2022. s/ Mark Norris MARK S. NORRIS UNITED STATES DISTRICT JUDGE 6 As explained in note five above, Plaintiff April Heard does not have a claim for NIED. However, she does still have a pending claim for Intentional Infliction of Emotional Distress (“IIED”) brought against “both Defendants”—which includes Defendant Thomas. (ECF No. 1-1 at PageID 11–12.) Therefore, going forward, this matter has two Plaintiffs: April Heard and Derrickia Heard, each in her individual capacity. 7 Plaintiffs argue that Defendant’s Motion should be denied as an out of time motion to amend the pleadings. (ECF No. 97 at PageID 1118.) However, as Defendant aptly notes in its Motion, the deadline to amend pleadings expired on June 25, 2021—well before Plaintiff Derrickia Heard’s eighteenth birthday. (See ECF No. 90-1 at PageID 1094; ECF No. 42 at PageID 223.) Plaintiffs’ approach to next friend representation not only seems to presume, without authority, that scheduling orders should contemplate birthdays, but also—contrary to Sixth Circuit precedent—that courts ought to never substitute a representative’s name for that of a minor who attains the age of majority after the deadline to amend pleadings during litigation. See Kloian, 179 F. App’x at 265 (quoting Wright & Miller, § 1570) (“State law controls the question whether the represented party’s disability has ended during the action and once it is determined that this has occurred, the fiduciary loses authority to maintain the suit on behalf of the former infant . . . .”) (emphasis added). The Court cannot divine why, or under what authority, Plaintiffs insist the docket should continue to reflect April Heard as Parent and Next Friend of D.H. after April Heard lost her representative capacity for her daughter on Derrickia Heard’s eighteenth birthday (which occurred sometime during November 2021). Therefore, the fact that the deadline to amend pleadings has expired does not bear on the Court’s decision to remove April Heard as Parent and Next Friend. See Evans, No. 10-12596, 2011 WL 3593248, at *2–3. 6
=== 17-2715 ===
Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 1 of 42 PageID 1980 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION GARRY HAWKINS a/k/a GARY HAWKINS, Petitioner, v. TAMMY FORD, Respondent. No. 2:17-cv-02715-MSN-tmp ORDER OF DISMISSAL; ORDER DENYING CERTIFICATE OF APPEALABILITY; ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH; AND ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL Before the Court is the Petition under 28 U.S.C. § 2254 for a writ of habeas corpus by a person in state custody filed by Petitioner Garry Hawkins a/k/a Gary Hawkins, Tennessee Department of Correction (“TDOC”) register number 375638, who is confined at the Northeast Correctional Complex (“NECX”) in Mountain City, Tennessee, (Petition (“Pet.”), ECF No. 1), and the Answer filed by Respondent (Answer, ECF No. 10). As discussed more fully below, the issues Petitioner raises in the habeas petition fall into three categories: 1) whether the claim presents a violation of federal law; 2) whether the state court identified and applied the correct federal legal principles; and 3) whether the claim is procedurally defaulted. For the reasons discussed below, the petition is DISMISSED. I. STATE COURT PROCEDURAL HISTORY On August 10, 2012, a Shelby County Criminal Court jury convicted Petitioner Hawkins of one count of first-degree murder in the perpetration of aggravated child neglect and one count of aggravated child neglect. (Record (“R.”), Minutes (“Mins.”), ECF No. 9-1 at PageID 64.) Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 2 of 42 PageID 1981 The trial court sentenced Hawkins to life in prison for the murder conviction and twenty-two years in prison for the aggravated child neglect conviction, to be served concurrently. (R., Judgments (“J.”), ECF No. 9-1 at PageID 79–80.) Hawkins appealed. (R., Notice of Appeal, ECF No. 9-1 at PageID 85.) The Tennessee Court of Criminal Appeals (“TCCA”) affirmed. State v. Hawkins, No. W2012-02185-CCA-R3-CD, 2014 WL 1571810 (Tenn. Crim. App. Apr. 17, 2014), perm. app. denied (Tenn. Sept. 24, 2014). On May 21, 2015, Hawkins filed a pro se petition in Shelby County Criminal Court pursuant to the Tennessee Post-Conviction Procedure Act, Tenn. Code Ann. §§ 40-30-101 to 122. (R., Pet. for Post-Conviction Relief, ECF No. 9-17 at PageID 1134–48.) On October 16, 2015, appointed counsel filed an amended petition. (R., Am. Pet., ECF No. 9-17 at PageID 1152–61.) The post-conviction court conducted an evidentiary hearing and denied relief in an order entered on March 4, 2016. (R., Order, ECF No. 9-17 at PageID 1167–74.) Hawkins appealed. (R., Notice of Appeal, ECF No. 9-17 at PageID 1175.) The TCCA affirmed. Hawkins v. State, No. W2016-00723-CCA-R3-PC, 2017 WL 28229755 (Tenn. Crim. App. June 30, 2017). Petitioner Hawkins did not file an application for permission to appeal to the Tennessee Supreme Court. II. FEDERAL COURT PROCEDURAL HISTORY On September 27, 2017, Petitioner Hawkins filed this petition pursuant to 28 U.S.C. § 2254 challenging his state convictions. (Petition (“Pet.”), ECF No. 1 at PageID 1–28.) On December 4, 2017, United States District Judge Sheryl H. Lipman directed Respondent to file a response to the petition. (Order, ECF No. 6.) On January 30, 2018, Respondent filed the state court record and an answer to the petition. (Record (“R.”), ECF No. 9, Answer, ECF No. 10.) On November 20, 2018, the case was reassigned to the undersigned judge. (Order, ECF No. 15.) 2 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 3 of 42 PageID 1982 A. Federal Habeas Issues In the petition, Hawkins raises the following issues1: 1. 2. The evidence was insufficient to support his convictions for first-degree murder and aggravated child neglect (Pet., ECF No. 1 at PageID 5); The trial court erred by admitting evidence of Petitioner’s prior conviction for child abuse (Id. at PageID 7); 3. Petitioner’s trial counsel performed deficiently by: a. b. c. failing to circumstantial evidence (Id. at PageID 25–28); to object jury instruction on the failing to object to the admission of unfairly prejudicial witness testimony (Id. at 8, 25–28); failing to object to the State’s improper closing argument (Id. at 8, 23); and d. committing cumulative errors. (Id. at 10). Issues 1 and 2 were reviewed by the TCCA on direct appeal and are exhausted. (R., Brief (“Br.”) of the Appellant, ECF No. 9-11 at PageID 893.) Issues 3b-3d were presented to the TCCA in the post-conviction appeal and are exhausted. (R., Br. of the Appellant, ECF No. 9-21 at PageID 1841.) Issue 3a has never been reviewed by the Tennessee courts and is procedurally defaulted. III. THE EVIDENCE On direct appeal, the Tennessee Court of Criminal Appeals (“TCCA”) summarized the evidence presented at Hawkins’ trial: 1. Petitioner Hawkins’ reply clarifies that he is incorporating by reference the argument and supporting cases from his appellate brief in the direct appeal. (Reply, ECF No. 12 at PageID 1944.) 3 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 4 of 42 PageID 1983 The victim in this case, S.I., was the 18–month–old daughter of Shamira Ivory, who lived with Defendant at the time of S.I.’s death. Shamira Ivory was pregnant with S.I. when she moved to Memphis from Atlanta in December, 2006. Ms. Ivory testified that while living in Georgia, she gave birth to a son who was removed from her custody at the age of six months due to Ms. Ivory’s lack of stability and mental health issues. Ms. Ivory had “two or three” more children removed from her custody at birth. She testified that she moved to Memphis before S.I.’s birth so that the baby would not be taken by authorities. When Ms. Ivory first moved to Memphis, she lived with her mother, Mary Richardson. She then moved in with a cousin for three months. S.I. was born on February 19, 2007, while Ms. Ivory was living with her cousin. Ms. Ivory later lived with a man named Bobby Torrence for a year. She testified that during that time, S.I. was healthy except for an ear infection and that she received regular “well baby” examinations. Ms. Ivory missed an appointment, however, for Ivory to be examined for “low weight gain.” Ms. Ivory and Torrence separated, and she moved in with Tyrone McNeil, by whom she became pregnant. Ms. Ivory subsequently left McNeil and was homeless until she moved into a home owned by her adoptive mother, Vera Corley. Ms. Ivory and S.I. lived there with Ms. Corley’s son and daughter. Defendant also lived there and slept on the couch. Ms. Corley’s son and daughter moved out of the house in early September. Ms. Ivory and Defendant began a relationship after she moved into the house. Ms. Ivory testified about an incident when she and Defendant were having sex while S.I. was on the bed with them. S.I. touched Defendant and Defendant “said it felt good to him.” Ms. Ivory did not tell police about the incident because she was afraid of losing custody of S.I. Ms. Ivory testified about another incident when Defendant kicked Ms. Ivory in the stomach while she was pregnant because he wanted her to get off the couch. On another occasion, Ms. Ivory came home and Defendant “grabbed [her] and smelled [her] private part” because Defendant “thought [Ivory] had been sleeping with Big Homey [Ralphael Harris].” On September 17, 2008, S.I. was fine when she woke up that morning. Ms. Ivory stayed in the bedroom while Defendant fed S.I. Mexican food. S.I. then went to the bedroom and stayed with Ms. Ivory until 8:00 p.m. When they got up, Ms. Ivory made pancakes and fed S.I. at the dining room table. She testified that S.I. ate well, was playing, and had no bruises on her stomach. At around 9:00 p.m., Ms. Ivory left S.I. with Defendant, while Ms. Ivory went to a store to buy cigarettes. Ms. Ivory’s friend, Ralphael “Big Homey” Harris, drove her to the store. She testified that she was gone for approximately 10 to 15 minutes. Ms. Ivory told police that S.I. was “screaming and hollering” when she left to go to the store. She testified that S.I. was “spoiled” and always cried when Ms. Ivory left her. Ms. Ivory testified that when she returned home from buying cigarettes, she saw S.I. lying on the couch “covered in throw up.” Defendant was sitting on 4 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 5 of 42 PageID 1984 the other couch, and he told her the baby had vomited. Ms. Ivory got a towel to clean S.I. She saw two small bruises on S.I.’s stomach. Ms. Ivory left the house again and walked to Walgreen’s to buy Sprite and Pedialyte. She testified that she “was worried but [S.I.] usually throws up anyway. She has a problem with that anyway.” Ms. Ivory thought S.I. had a stomachache. When she returned from the store, she tried to give S.I. the Pedialyte, but S.I. would not swallow. S.I.’s eyes were rolling back in her head, and her head was moving back and forth. S.I. was unresponsive when Ms. Ivory splashed water on her face and rubbed ice on her forehead. Ms. Ivory called Ms. Corley, who told her to call 911. Ms. Ivory testified that Defendant also told her to call 911, but Defendant did not seem very concerned. Ms. Ivory called 911, and Defendant left when they heard sirens. Ralphael Harris testified that he went to the house where Defendant and Ms. Ivory lived, looking for Ms. Ivory’s adoptive brother. Defendant answered the door and told him that Ms. Ivory was in the bathroom. Harris stayed on the front porch because he and Defendant were “like water and oil.” Harris testified that Defendant was jealous of him. Ms. Ivory offered to buy Harris “loose” cigarettes in exchange for a ride to the store. When Ms. Ivory came to the door, Harris saw S.I. “tagging along at [her] leg.” He testified that the child “wasn’t as cheerful as she always would be” but that she “looked healthy.” Harris drove Ms. Ivory to the store, waited while she made her purchase, and drove her back home. They were gone for approximately 12 minutes. Paramedics responded to a call made at 11:29 p.m. They found S.I. lying on her back on a couch, and she was unresponsive, had no pulse, and was not breathing. They began resuscitation. S.I. remained unresponsive. Paramedic Patrick McDevitt observed that S.I.’s abdomen was distended and bruised. Ms. Ivory told McDevitt that those “spots” had just come up. Paramedics transported S.I. to the hospital. Dr. James Anderson O’Donnell, II, testified that S.I. arrived at the emergency room “in full cardiopulmonary arrest” and was receiving chest compressions and being ventilated. Dr. O’Donnell administered several doses of epinephrine to try to restart S.I.’s heart, but was unsuccessful. Shortly after midnight, Dr. O’Donnell stopped resuscitation efforts. Ms. Ivory told investigators that she went to the store and returned home to find S.I. not feeling well. She stated that she then went to Walgreens to buy Sprite and Pedialyte, and that she left S.I. home with Defendant both times. Ms. Ivory gave investigators her receipt from Walgreens. Investigators also interviewed Ralphael Harris, who stated that he picked up Ms. Ivory at her house and drove her to the store to buy cigarettes. Sergeant Joseph Peel reviewed “about four hours worth of video” from the store, but did not see Ms. Ivory or Harris enter the store. Sergeant Peel also reviewed video from Walgreens that confirmed that Ms. Ivory entered the store at 10:07 p.m. and purchased Pedialyte 5 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 6 of 42 PageID 1985 and Sprite 14 minutes later. The Walgreens store was located a third of a mile from Ms. Ivory’s house. Sergeant William Merritt, of the Memphis Police Department homicide squad, interviewed Defendant on September 18, 2008. Defendant stated that S.I. ate pancakes around 8:00 p.m., and an hour later the child began to vomit. He stated that he told Ms. Ivory to call 911, but Ms. Ivory was afraid of losing custody of S.I. Defendant stated that he, Ms. Ivory, and S.I. were home all day. Sergeant Merritt confronted Defendant about Ms. Ivory’s statement that she had left the house twice to go to the store, and Defendant “became pretty agitated, very angry, very argumentative.” Defendant told Sergeant Merritt that he was never alone with S.I. because he was falsely accused of breaking a child’s leg in 1996 and went to prison for it. Defendant also stated that he did not wait for paramedics to arrive “because the child was not his and was not his problem.” The manager at the McDonald’s where Defendant worked testified that Defendant was scheduled to work at 6:00 a.m. on September 18, 2008. Defendant called between 11:00 p.m. and 12:00 a.m. and said that he would not be able to work “because something happened at home.” She testified that Defendant sounded “normal” and that he “always had a loud . . . excited type voice.” Lieutenant Donald Crow testified that after detectives took Ms. Ivory’s statement, and Ms. Ivory had been released, he answered a phone call from Latasha Frazier, who sounded “frantic,” stating that Ms. Ivory was “trying to leave town,” that police “needed to stop her,” and that Ms. Ivory had admitted to killing S.I. Frazier told Lieutenant Crow that she had seen Ms. Ivory abuse the child and that five other children had been removed from Ms. Ivory’s custody in another state. Lieutenant Crow, of the felony response unit, passed the information to the homicide unit. He testified that homicide detectives did not follow up with an interview of Frazier. testified Latasha Frazier from “the neighborhood,” and she never saw Ms. Ivory abuse S.I. She testified that Ms. Ivory moved away from the neighborhood when S.I. turned one year old. She saw Ms. Ivory with S.I. when Ms. Ivory came back to the neighborhood for visits, and S.I. looked normal and healthy. that she knew Ms. Ivory Ms. Frazier testified that a mutual friend, Kristina Owens, called her around 6:00 a.m. on September 18, and told her that Ms. Ivory was at Ms. Owens’ house and the “baby had got killed.” Frazier and Owens arranged a three-way call with Ms. Ivory, and Ms. Ivory stated that “she was scared and she was trying to get some money so she can go out of town.” Frazier then called the police and reported that Ms. Ivory planned to leave town. Frazier denied telling Lieutenant Crow that she saw Ms. Ivory abuse S.I., but she acknowledged that she told him Ms. Ivory had five other children who were taken from her custody. Frazier also 6 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 7 of 42 PageID 1986 denied telling Lieutenant Crow that Ms. Ivory had admitted killing the baby. About an hour after Frazier called, police picked her up, and she directed them to the house where Ms. Ivory was located. Kristina Owens testified that Ms. Ivory came to her house on the morning of September 18 and told her that Defendant killed S.I. Ms. Ivory said that she left S.I. with Defendant while she went to the store, and when she returned S.I. was throwing up. Dr. Karen Elizabeth Chancellor, Chief Medical Examiner for Shelby County, performed an autopsy on the victim. Dr. Chancellor testified that at the time of her death, S.I. weighed 21 pounds and was 21 inches in length. Dr. Chancellor testified that S.I. was “small for her age” and that she was “in the lower fifth percentile” of children her age for weight and height. Dr. Chancellor observed scars and healing scratches on S.I.’s head, arm, and abdomen. Dr. Chancellor observed multiple bruises on S.I.’s abdomen and chest. There were also bruises on both lungs and blood in her abdominal cavity and chest cavity. There were multiple tears of the small intestine. Dr. Chancellor observed discoloration on the left side of S.I.’s forehead. An internal examination revealed that there was an area of hemorrhaging to the deep scalp tissue, causing the discoloration. Dr. Chancellor found bruises on the internal tissue in S.I.’s thighs that were not visible externally on her skin. Dr. Chancellor determined that S.I.’s injuries were caused by blunt force trauma as a result of multiple impacts. Dr. Chancellor opined that S.I. received “at least ten blows to the abdomen and there were separate blows to the chest[, thighs, wrist, and head.]” Dr. Chancellor testified that the bruises on the victim’s body appeared to be recent. Dr. Chancellor determined that the manner of death was homicide. State v. Hawkins, 2014 WL 1571810, at *1–*4. The TCCA opinion on post-conviction appeal summarized the evidence presented at the post-conviction hearing and the post-conviction trial court’s ruling: At the March 3, 2016 post-conviction hearing, trial counsel testified that he represented the Petitioner during his trial and on appeal. During the Petitioner’s trial, trial counsel remembered that the Petitioner’s co-defendant testified about “some inappropriate contact” between the Petitioner and the victim. Specifically, the co-defendant was asked “What did you and [the Petitioner] fight over,” and her response was that while she and the Petitioner were having sex, the victim touched the Petitioner on his “balls” and the Petitioner said “it felt good to him.” Trial counsel acknowledged that he did not object to this testimony, and he was unaware that the co-defendant would provide this testimony at trial. Trial counsel stated that he had filed a motion in limine to prevent any testimony regarding prior child abuse by the Petitioner, but he was 7 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 8 of 42 PageID 1987 unaware that the co-defendant would testify about this incident. When asked whether it was a strategic decision not to object to the co-defendant’s testimony, trial counsel explained that he believed the co-defendant was not a credible witness and that her testimony was not “bad” for the Petitioner. He explained that his defense theory was that the co-defendant was lying to the police about the Petitioner’s involvement and “made up . . . stories to protect herself” and that she was the person responsible for the victim’s death. Trial counsel testified that his plan was to “come back around and cross-examine her on why she didn’t tell the police this story.” Trial counsel testified that he only had “split second” to decide whether to object and that he made the “choice to see where it went.” He clarified that the co-defendant’s testimony “was a problem,” but he chose to not “draw attention” to her testimony by objecting. Trial counsel believed that he cross-examined the co-defendant about her statement and “attempted to impeach her.” Trial counsel stated that he waived any issues with the co-defendant’s statement on appeal because he did not object to the statement at trial. Next, post-conviction counsel read an excerpt of the State’s closing argument, which included the following remark: “[The Petitioner] is guilty. There is no question about that, we don’t need to argue about that and frankly that is not why we are here.” Post-conviction counsel asked trial counsel if it was “some kind of strategy” not to object to the State characterizing the Petitioner as “guilty.” Trial counsel testified that, at the time, “it was very difficult . . . to make those contemporaneous objections at the trial level” because an objection would not be “supported at either the trial level, or the Court of Criminal Appeals level.” Because he thought an objection would not be successful at trial and that he would not be successful on appeal, he chose not to object to the State’s remarks. However, trial counsel stated that he would treat such comments differently today because there is additional case law to allow defense attorneys to object to such comments during closing argument. On cross-examination, trial counsel reiterated that the co-defendant’s testimony regarding the “inappropriate contact” between the victim and the Petitioner was a complete surprise to trial counsel, and he was not expecting her to provide such testimony. Trial counsel explained that he had to “quickly balance” whether there was some way he could use this statement to his advantage during cross-examination or object to the statement and ultimately decided to cross-examine the co-defendant about this testimony. With regards to the State’s remark during closing argument that the Petitioner was “guilty,” trial counsel stated that this remark was close to being “objectionable” and that it “was discomforting when it was said.” On redirect examination, post-conviction counsel read another portion of the State’s closing argument, which included the following remark: “[The 8 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 9 of 42 PageID 1988 Petitioner] is the . . . same kind of guy that would say, not my baby, not my problem, the same kind of cold blooded guy that would punch a little girl, that’s about this tall and weighs about twenty-one pounds in the abdomen, time and time again.” Post-conviction counsel asked if trial counsel would object to such a remark today, and trial counsel’s response seemed to imply that this court would “not do anything about the argument,” but he did not provide a reason for failing to raise an objection. The Petitioner testified that he had reviewed his petition for post- conviction relief with post-conviction counsel, but the Petitioner stated that he did not want to testify about any of the grounds raised in his petition. The post-conviction court took the matter under advisement, and on March 3, 2016, the court issued a written order denying relief. The post- conviction court concluded that trial counsel made a strategic decision not to object to the co-defendant’s testimony regarding the “inappropriate contact” between the Petitioner and the victim, and the State’s remarks during closing argument.2 The post-conviction court also noted that trial counsel was not asked “why” he failed to object to any portion of the closing argument. The court found that “[t]he decisions of a trial attorney as to whether to object to opposing counsel’s arguments are often primarily tactical decisions.” The post-conviction court determined that the Petitioner failed to established deficient performance or prejudice, and also noted that “since the[se] matters were not properly contested at the time of trial, they would have been deemed ‘waived’ for purposes of appellate review . . . Counsel pursued his strongest issues in the direct appeal.” It is from this order that the Petitioner now timely appeals. Hawkins v. State, 2017 WL 2829755, at *3–*4. IV. LEGAL STANDARDS Federal courts have authority to issue habeas corpus relief for persons in state custody under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). A federal court may grant habeas relief to a state prisoner “only on the 2. The Petitioner raised two additional arguments in his petition for post-conviction relief. However, a footnote in the Petitioner’s brief states, “[b]ased on the record on appeal, including the testimony elicited during the post-conviction evidentiary hearing, Appellant chooses not to address grounds (3) and (4) in this brief.” The post-conviction court addressed all of the Petitioner’s issues in its order denying relief; however, this opinion will focus solely on the two issues addressed in the Petitioner’s brief. 9 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 10 of 42 PageID 1989 ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A. Exhaustion and Procedural Default A federal court may not grant a writ of habeas corpus on behalf of a state prisoner unless, with certain exceptions, the prisoner has exhausted available state remedies by presenting the same claim sought to be redressed in a federal habeas court to the state courts pursuant to 28 U.S.C. § 2254(b) and (c). Cullen v. Pinholster, 563 U.S. 170, 181 (2011). The petitioner must “fairly present”3 each claim to all levels of state court review, up to and including the state’s highest court on discretionary review, Baldwin v. Reese, 541 U.S. 27, 29 (2004), except where the state has explicitly disavowed state supreme court review as an available state remedy, O’Sullivan v. Boerckel, 526 U.S. 838, 847–48 (1999). Tennessee Supreme Court Rule 39 eliminated the need to seek review in the Tennessee Supreme Court to “be deemed to have exhausted all available state remedies.” Adams v. Holland, 330 F.3d 398, 402 (6th Cir. 2003); see Smith v. Morgan, 371 F. App’x 575, 579 (6th Cir. 2010). The procedural default doctrine is ancillary to the exhaustion requirement. See Edwards v. Carpenter, 529 U.S. 446, 452–53 (2000) (noting the interplay between the exhaustion rule and the procedural default doctrine). If the state court decides a claim on an independent and adequate state ground, such as a procedural rule prohibiting the state court from reaching the merits of the constitutional claim, the procedural default doctrine ordinarily bars a petitioner from seeking federal habeas review. Wainwright v. Sykes, 433 U.S. 72, 81–82 (1977); see 3. For a claim to be exhausted, “[i]t is not enough that all the facts necessary to support the federal claim were before the state courts, or that a somewhat similar state-law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (internal citation omitted). Nor is it enough to make a general appeal to a broad constitutional guarantee. Gray v. Netherland, 518 U.S. 152, 163 (1996). 10 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 11 of 42 PageID 1990 Walker v. Martin, 562 U.S. 307, 315 (2011) (“A federal habeas court will not review a claim rejected by a state court if the decision of the state court rests on a state law ground that is independent of the federal question and adequate to support the judgment”) (internal quotation marks and citation omitted .4 In general, a federal court “may only treat a state court order as enforcing the procedural default rule when it unambiguously relied on that rule.” Peoples v. Lafler, 734 F.3d 503, 512 (6th Cir. 2013). If a petitioner’s claim has been procedurally defaulted at the state level, the petitioner must show cause to excuse his failure to present the claim and actual prejudice stemming from the constitutional violation or that a failure to review the claim will result in a fundamental miscarriage of justice. Schlup v. Delo, 513 U.S. 298, 320–21 (1995); Coleman v. Thompson, 501 U.S. 722, 750 (1991). The latter showing requires a petitioner to establish that a constitutional error has probably resulted in the conviction of a person who is actually innocent of the crime. Schlup, 513 U.S. at 321; see also House v. Bell, 547 U.S. 518, 536–39 (2006) (restating the ways to overcome procedural default and further explaining the actual innocence exception). B. Merits Review Pursuant to Section 2254(d), where a claim has been adjudicated in state courts on the merits, a habeas petition should only be granted if the resolution of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 4. The state-law ground may be a substantive rule dispositive of the case, or a procedural barrier to adjudication of the claim on the merits. Walker, 562 U.S. at 315. A state rule is an “adequate” procedural ground if it is “firmly established and regularly followed.” Id. at 316 (quoting Beard v. Kindler, 558 U.S. at 60–61 (2009 . “A discretionary state procedural rule . . . can serve as an adequate ground to bar federal habeas review . . . even if the appropriate exercise of discretion may permit consideration of a federal claim in some cases but not others.” Id. (quoting Kindler, 558 U.S. at 54.) (internal quotation marks and citations omitted). 11 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 12 of 42 PageID 1991 resulted in a decision that was based on an unreasonable determination of (2) the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(1)–(2). Petitioner carries the burden of proof on this “difficult to meet” and “highly deferential [AEDPA] standard,” which “demands that state-court decisions be given the benefit of the doubt.” Cullen, 563 U.S. at 181 (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011), and Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam . Review under § 2254(d)(1) is limited to the record before the state court that adjudicated the claim on the merits. Cullen, 563 U.S. at 182. A state court’s decision is “contrary” to federal law when it “arrives at a conclusion opposite to that reached” by the Supreme Court on a question of law or “decides a case differently than” the Supreme Court has “on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13 (2000). An “unreasonable application” of federal law occurs when the state court “identifies the correct governing legal principle from” the Supreme Court’s decisions “but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 412–13. The state court’s application of clearly established federal law must be “objectively unreasonable” for the writ to issue. Id. at 409. The writ may not issue merely because the habeas court, “in its independent judgment,” determines that the “state court decision applied clearly established federal law erroneously or incorrectly.” Renico v. Lett, 559 U.S. 766, 773 (2010) (citing Williams, 529 U.S. at 411). There is minimal case law addressing whether, under § 2254(d)(2), a decision was based on “an unreasonable determination of the facts.” In Wood v. Allen, 558 U.S. 290, 301 (2010), the Supreme Court stated that a state-court factual determination is not “unreasonable” merely 12 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 13 of 42 PageID 1992 because the federal habeas court would have reached a different conclusion.5 Wood v. Allen, 558 U.S. 290, 301 (2010). In Rice v. Collins, 546 U.S. 333 (2006), the Court explained that “[r]easonable minds reviewing the record might disagree” about the factual finding in question, “but on habeas review that does not suffice to supersede the trial court’s . . . determination.” Rice, 546 U.S. at 341– 42. The Sixth Circuit has described the § 2254(d)(2) standard as “demanding but not insatiable” and has emphasized that, pursuant to § 2254(e)(1), the state court factual determination is presumed to be correct absent clear and convincing evidence to the contrary. Ayers v. Hudson, 623 F.3d 301, 308 (6th Cir. 2010). A state court adjudication will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented during the state court proceeding. Id. (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003 ; see also Hudson v. Lafler, 421 F. App’x 619, 624 (6th Cir. 2011) (same). C. Ineffective Assistance A claim that ineffective assistance of counsel has deprived a defendant of his Sixth Amendment right to counsel is controlled by the standards stated in Strickland v. Washington, 466 U.S. 668, 687 (1984). To succeed on this claim, a movant must demonstrate two elements: 1) “that counsel’s performance was deficient,” and 2) “that the deficient performance prejudiced the defense.” Id. “The benchmark for judging any claim of ineffectiveness must be whether 5. In Wood, the Supreme Court granted certiorari to resolve whether, to satisfy § 2254(d)(2), “a petitioner must establish only that the state-court factual determination on which the decision was based was ‘unreasonable,’ or whether § 2254(e)(1) additionally requires a petitioner to rebut a presumption that the determination was correct with clear and convincing evidence.” Wood, 558 U.S. at 299. The Court found it unnecessary to reach that issue, and left it open “for another day.” Id. at 300–01, 304 (citing Rice v. Collins, 546 U.S. 333, 339 (2006), in which the Court recognized that it is unsettled whether there are some factual disputes to which § 2254(e)(1) is inapplicable). 13 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 14 of 42 PageID 1993 counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686. Recently, the Sixth Circuit opined that this standard is “even more difficult to meet in habeas cases, where the review that applies to Strickland claims is ‘doubly deferential.’” Tackett v. Trierweiler, 956 F.3d 358, 373 (6th Cir. 2020) (citing Knowles v. Mirzayance, 556 U.S. 111, 123 (2009 . “The question is not whether a federal court believes the state court’s determination under the Strickland standard was incorrect but whether that determination was unreasonable—a substantially higher threshold.” Id. (internal quotation marks and citation omitted). To establish deficient performance, a person challenging a conviction “must show that counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. A court considering a claim of ineffective assistance must apply a “strong presumption” that counsel’s representation was within the “wide range of reasonable professional assistance.” Id. at 689. The challenger’s burden is to show “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687. To demonstrate prejudice, a petitioner must establish “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.6 “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. “It is not enough “to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. “Counsel’s errors must be ‘so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’” Harrington v. Richter, 562 U.S. 86, 6. If a reviewing court finds a lack of prejudice, it need not determine whether, in fact, counsel’s performance was deficient. Strickland, 466 U.S. at 697. 14 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 15 of 42 PageID 1994 104 (2011) (quoting Strickland, 466 U.S. at 687); see also Wong v. Belmontes, 558 U.S. 15, 27 (2009) (per curiam) (“But Strickland does not require the State to ‘rule out’ [a more favorable outcome] to prevail. Rather, Strickland places the burden on the defendant, not the State, to show a ‘reasonable probability’ that the result would have been different.”). The deference accorded a state-court decision under 28 U.S.C. § 2254(d) is magnified when reviewing an ineffective assistance claim: Establishing that a state court’s application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both “highly deferential,” id., at 689; Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and when the two apply in tandem, review is “doubly” so, Knowles [v. Mirzayance], 556 U.S., at 123, 129 S. Ct. at 1420 [(2009)]. The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U.S., at 123, 129 S. Ct. at 1420. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel’s actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard. Harrington, 562 U.S. at 105. A criminal defendant is entitled to the effective assistance of counsel on direct appeal. Evitts v. Lucey, 469 U.S. 387, 396 (1985). The failure to raise a nonfrivolous issue on appeal does not constitute per se ineffective assistance of counsel, as “[t]his process of winnowing out weaker arguments on appeal and focusing on those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986) (internal quotation marks and citation omitted). Claims of ineffective assistance of appellate counsel are evaluated using the Strickland standards. Smith v. Robbins, 528 U.S. 259, 285–86 (2000) (applying Strickland to claim that appellate counsel rendered ineffective assistance by failing to file a merits brief); Smith v. Murray, 477 U.S. at 535–36 (failure to raise issue on appeal). To establish that appellate counsel was ineffective, a prisoner 15 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 16 of 42 PageID 1995 must first show that his counsel was objectively unreasonable in failing to find arguable issues to appeal - that is, that counsel unreasonably failed to discover nonfrivolous issues and to file a merits brief raising them. If [the prisoner] succeeds in such a showing, he then has the burden of demonstrating prejudice. That is, he must show a reasonable probability that, but for his counsel’s unreasonable failure to file a merits brief, he would have prevailed on his appeal. Smith v. Robbins, 528 U.S. at 285 (citation omitted).7 An appellate counsel’s ability to choose those arguments that are more likely to succeed is “the hallmark of effective appellate advocacy.” Matthews v. Parker, 651 F.3d 489, 523 (6th Cir. 2011) (quoting Caver v. Straub, 349 F.3d 340, 348 (6th Cir. 2003 . It is difficult to show that appellate counsel was deficient for raising one issue, rather than another, on appeal. See id. at 523–24. “In such cases, the petitioner must demonstrate that the issue not presented was clearly stronger than issues that counsel did present.” Id. Defendant must show that “there is a reasonable probability that inclusion of the issue would have changed the result of the appeal.” McFarland v. Yukins, 356 F.3d 688, 699 (6th Cir. 2004). 7. The Sixth Circuit has identified a nonexclusive list of factors to consider when assessing claims of ineffective assistance of appellate counsel: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. Were the omitted issues “significant and obvious?” Was there arguably contrary authority on the omitted issues? Were the omitted issues clearly stronger than those presented? Were the omitted issues objected to at trial? Were the trial court’s rulings subject to deference on appeal? Did appellate counsel testify in a collateral proceeding as to his appeal strategy and, if so, were the justifications reasonable? What was the appellate counsel’s level of experience and expertise? Did the petitioner and appellate counsel meet and go over possible issues? Is there evidence that counsel reviewed all the facts? Were the omitted issues dealt with in other assignments of error? Was the decision to omit an issue an unreasonable one which only an incompetent attorney would adopt? Franklin v. Anderson, 434 F.3d 412, 429 (6th Cir. 2006) (citation omitted). 16 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 17 of 42 PageID 1996 “There is no constitutional right to an attorney in state post-conviction proceedings. Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.” Coleman v. Thompson, 501 U.S. 722, 752 (1991) (internal citations omitted). Attorney error cannot constitute “cause” for a procedural default “because the attorney is the petitioner’s agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must bear the risk of attorney error.” Id. at 753 (internal quotation marks omitted). Where the State has no constitutional obligation to ensure that a prisoner is represented by competent counsel, the petitioner bears the risk of attorney error. Id. at 754. In 2012, the Supreme Court decided Martinez v. Ryan, 566 U.S. 1 (2012), which recognized a narrow exception to the rule in Coleman, “[w]here, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding . . . .” Martinez, 566 U.S. at 17. In such cases, “a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance [of counsel] at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” Id. The Supreme Court also emphasized that [t]he rule of Coleman governs in all but the limited circumstances recognized here. . . . It does not extend to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial, even though that initial-review collateral proceeding may be deficient for other reasons. Id. at 16. The requirements that must be satisfied to excuse a procedural default under Martinez are: (1) the claim of “ineffective assistance of trial counsel” was a “substantial” claim; (2) the “cause” consisted of there being “no counsel” or only “ineffective” counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the “initial” review proceeding in respect to the “ineffective-assistance-of-trial-counsel claim”; and (4) state law requires that an 17 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 18 of 42 PageID 1997 “ineffective assistance of trial counsel [claim] . . . be raised in an initial-review collateral proceeding.” Trevino v. Thaler, 569 U.S. 413, 423 (2013) (emphasis and alterations in original). Martinez considered an Arizona law that did not permit ineffective assistance claims to be raised on direct appeal. Martinez, 566 U.S. at 4. In the Supreme Court’s subsequent decision in Trevino, the Court extended its holding in Martinez to states in which a “state procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal . . . .” 569 U.S. at 429. Trevino modified the fourth Martinez requirement for overcoming a procedural default. Martinez and Trevino apply to Tennessee prisoners. Sutton v. Carpenter, 745 F.3d 787, 790 (6th Cir. 2014). V. ANALYSIS OF PETITIONER’S CLAIMS A. Sufficiency of the Evidence The evidence was to support 1. Hawkins’ convictions for first-degree murder and aggravated child neglect. (Pet., ECF No. 1 at PageID 5.) insufficient Hawkins alleges that the evidence presented at trial was legally and factually insufficient to support the jury verdict. (Id.) He incorporates by reference his argument and the supporting cases presented to the TCCA in the direct appeal. (Reply, ECF No. 12 at PageID 1944.) On direct appeal, counsel argued that 1) the uncorroborated accomplice testimony was insufficient to sustain his convictions; 2) no trial testimony established that Petitioner directly caused the victim’s death or neglected the victim; 3) no evidence was presented demonstrating that Petitioner was criminally responsible for the conduct of another, that he delayed in seeking medical for the victim, or that he owed a duty of care to the victim; 4) the State failed to prove 18 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 19 of 42 PageID 1998 that Petitioner caused the victim’s death; and 5) Petitioner did not owe a duty of care to the victim. (R., Br. of Appellant, ECF No. 9-11 at PageID 900–09.) Respondent replies that first and fifth arguments are noncognizable, and the state court’s resolution of the second, third, and fourth arguments are not contrary to or an unreasonable application of clearly established Supreme Court precedent. (Answer, ECF No. 10 at PageID 1914.) After reviewing the evidence presented at trial, the TCCA considered Hawkins’ arguments and opined: The jury found Defendant guilty of first-degree murder in the perpetration of aggravated child neglect. See Tenn. Code Ann. § 39–13–202(a)(2) (2012). As applicable to the facts of this case, aggravated child neglect is child neglect that results in serious bodily injury to the child. Tenn. Code Ann. § 39–15–402(a)(1). A person commits child neglect who “knowingly abuses or neglects a child under eighteen (18) years of age, so as to adversely affect the child’s health and welfare.” Tenn. Code Ann. § 39–15–401(b). “A person acts knowingly with respect to a result of the person’s conduct when the person is aware that the conduct is reasonably certain to cause the result.” Tenn. Code Ann. § 39–11– 302(b). Defendant asserts that no evidence was presented “to corroborate the allegations that Defendant was involved in any way in the death of the child.” Ms. Ivory was an accomplice because she was indicted for the same offenses as Defendant. She testified against Defendant at trial. The State responds that evidence was presented to corroborate Ms. Ivory’s testimony that the victim became ill after she was left alone in the care of Defendant. It is true that convictions may not be based solely upon the uncorroborated testimony of accomplices. See State v. Robinson, 971 S.W.2d 30, 42 (Tenn. Crim. App. 1997). However, Tennessee law requires only a modicum of evidence in order to sufficiently corroborate such testimony. See State v. Copeland, 677 S.W.2d 471, 475 (Tenn. Crim. App. 1984). More specifically, precedent provides that: The rule of corroboration as applied and used in this State is that there must be some evidence independent of the testimony of the accomplice. The corroborating evidence must connect, or tend to connect the defendant with the commission of the crime charged; and, furthermore, the tendency of the corroborative evidence to connect the defendant must be independent of any 19 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 20 of 42 PageID 1999 testimony of the accomplice. The corroborative evidence must[,] of its own force, independently of the accomplice’s testimony, tend to connect the defendant with the commission of the crime. State v. Griffis, 964 S.W.2d 577, 588–89 (Tenn. Crim. App. 1997) (quoting Sherrill v. State, 204 Tenn. 427, 321 S.W.2d 811, 815 (Tenn. 1959), overruled on other grounds by State v. Collier, 411 S.W.3d 886 (Tenn. 2013 . In addition, our courts have stated that: The evidence corroborating the testimony of an accomplice may consist of direct evidence, circumstantial evidence, or a combination of direct and circumstantial evidence. The quantum of evidence necessary to corroborate an accomplice’s testimony is not required to be sufficient enough to support the accused’s conviction independent of the accomplice’s testimony nor is it required to extend to every portion of the accomplice’s testimony. To the contrary, only slight circumstances are required to corroborate an accomplice’s The corroborating evidence is sufficient if it connects the accused with the crime in question. testimony. Id. at 589 (footnotes omitted). Furthermore, we note that the question of whether an accomplice’s testimony has been sufficiently corroborated is for the jury to determine. See id. at 588; State v. Maddox, 957 S.W.2d 547, 554 (Tenn. Crim. App. 1997). We conclude that Ms. Ivory’s testimony was sufficiently corroborated. Defendant’s statement to Sergeant Merritt corroborated Ms. Ivory’s testimony that Defendant, S.I., and she were home all day, that no one else was present at the house on that day, and that S.I. began vomiting about an hour after eating pancakes that night. Defendant also confirmed Ms. Ivory’s testimony that he left the house before the ambulance arrived. Ralphael Harris corroborated Ms. Ivory’s testimony that he drove her to the store to buy cigarettes and a drink around 9:00 p.m., that Defendant was jealous of Harris, that S.I. was upset that Ivory was leaving, and that S.I. appeared healthy before they left. Sergeant Peel’s review of store surveillance video from Walgreen’s also corroborated Ms. Ivory’s testimony that she left Defendant alone with the victim. The proof establishing Defendant’s opportunity to commit the crime was sufficient to corroborate Ms. Ivory’s testimony. Defendant also asserts that “there was no trial testimony that defendant directly caused the death of the child or neglected the child.” It is well- established that a defendant may be convicted based upon direct evidence, circumstantial evidence or a combination of both. State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003); see also State v. Pendergrass, 13 S.W.3d 389, 20 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 21 of 42 PageID 2000 392–93 (Tenn. Crim. App. 1999). Both direct and circumstantial evidence are treated the same when weighing the sufficiency of such evidence. State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011). Even though different forms of evidence may establish convictions, the standard of review for the sufficiency of that evidence is the same whether the conviction is based upon direct or circumstantial evidence. Id. at 379. As such, all reasonable inferences from the evidence are to be drawn in favor of the State. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); see Tuggle, 639 S.W.2d at 914. Here, viewed in a light most favorable to the State, the evidence established that Defendant was alone with the victim for about 15 to 20 minutes when Ms. Ivory left with Harris. The victim was crying when Ms. Ivory left the house, but appeared otherwise healthy. Defendant was jealous of Harris and had previously accused Ms. Ivory of having sex with Harris. When Ms. Ivory returned from the store, the victim was lying in her own vomit and appeared very ill. Ms. Ivory left the victim alone with Defendant again when she went to Walgreen’s to buy Pedialyte for the victim. After Ms. Ivory returned from the store, the victim became unresponsive, and Ivory called 911. Defendant left the house before paramedics arrived. The medical proof established that the victim suffered multiple blunt force trauma injuries to her abdomen, chest, and head, causing internal bleeding, which resulted in her death, and that the victim’s injuries were recently inflicted. From the evidence presented, the jury could reasonably infer that Defendant abused the victim and that his actions caused serious bodily injury to the child and resulted in her death. See Tenn. Code Ann. §§ 39–13–202(a)(2); 39–15–401(b); 39–15–402(a)(1). Defendant also contends that the evidence was insufficient to prove that he was criminally responsible for the conduct of another, that Defendant delayed in seeking medical care for the child, or that he owed a duty of care to the victim. Defendant’s argument is based upon the premise that he was convicted under a theory of criminal responsibility for the acts of another. The State responds, however, that Defendant was directly responsible for S.I.’s injuries, and the evidence was sufficient to sustain his convictions. In Tennessee, “criminal responsibility is not a separate, distinct crime. It is solely a theory by which the State may prove the defendant’s guilt of the alleged offense . . . based upon the conduct of another person.” State v. Lemacks, 996 S.W.2d 166, 170 (Tenn. 1999). A defendant convicted under a criminal responsibility theory “is guilty in the same degree as the principal who committed the crime” and “is considered to be a principal offender of the crime for the purposes of due process and our criminal law.” Id. at 171. Generally, “[a] person is criminally responsible as a party to an offense, if the offense is committed by the person’s own conduct, by the conduct of another for which the person is criminally responsible, or by both.” Tenn. Code Ann. § 21 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 22 of 42 PageID 2001 39–11–401(a). Tennessee Code Annotated section 39–11–402(2) provides that a person is criminally responsible for the actions of another when, “[a]cting with intent to promote or assist the commission of the offense, or to benefit in the proceeds or results of the offense, the person solicits, directs, aids, or attempts to aid another person to commit the offense.” In order to be found criminally responsible, “[n]o particular act need be shown, and the defendant need not have taken a physical part in the crime.” State v. Caldwell, 80 S.W.3d 31, 38 (Tenn. Crim. App. 2002). Although the trial court instructed the jury as to criminal responsibility, Defendant was charged as the principal actor in this case. The State’s theory at trial, as evidenced by the State’s opening statement, closing argument, and the proof presented by the State, was that Defendant’s actions caused the victim’s death. Defendant’s argument on appeal is premised upon the belief that he was convicted under a theory of criminal responsibility. However, that is not the case here. The trial court correctly instructed the jury as follows: “A defendant is criminally responsible as a party to a criminal offense if the offense was committed by the defendant’s own conduct, by the conduct of another for which the defendant is criminally responsible or by both.” (Emphasis added). It is clear from the record that Defendant was charged with felony murder for the death of the victim while perpetrating aggravated child neglect, which is defined earlier in this analysis. Defendant’s argument that the evidence is insufficient to prove that he “‘solicit[ed], direct[ed], aid[ed], or attempt[ed] to aid another person to commit the offense’ of aggravated child neglect” is misplaced. Defendant also argues that the State failed to prove that Defendant caused the victim’s death by delaying medical care for her. Defendant cites State v. John Barlow, No. W2008–01128–CCA–R3–CD, 2010 WL 1687772 (Tenn. Crim. App., Apr.26, 2010). In Barlow, the defendant was convicted of aggravated child abuse and aggravated child neglect. A panel of this court reversed the defendant’s conviction for aggravated child neglect after finding that the State failed to prove its theory that Barlow’s delay in seeking medical attention for the victim constituted aggravated child neglect because it worsened the victim’s brain injury, which was the basis for the aggravated child abuse conviction. Id. at *11. The State, in this case, pursued a conviction based on two alternative theories of culpability, murder in the perpetration of aggravated child neglect and murder in the perpetration of aggravated child abuse. However, both offenses were based on the same criminal behavior, Defendant’s beating of the victim which resulted in the victim’s death. The jury convicted Defendant of the former, murder in the perpetration of aggravated child neglect, which we have already concluded is supported by the evidence. The State did not present any proof or argument demonstrating that the harm to the victim resulted from Defendant’s delay in seeking medical treatment for her. Defendant’s argument is again misplaced. 22 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 23 of 42 PageID 2002 Likewise, Defendant’s assertion that the State failed to prove that Defendant owed a legal duty of care to the victim is also misplaced. Defendant relies upon State v. Larry E. Rathbone and Veronda Gean Fleeman, No. E2007– 00602–CCA–R3–CD, 2008 WL 1744581 (Tenn. Crim. App., Apr.16, 2008), in which a panel of this court reversed defendant Fleeman’s convictions for criminal responsibility for child rape, attempted child rape, and aggravated sexual battery because the State failed to establish that Fleeman had a legal duty to protect the victim from the harm caused by her co-defendant Rathbone. In that case, unlike this case, Fleeman was charged and convicted under the theory of criminal responsibility, specifically that she had a duty to prevent the commission of the offense. See Tenn. Code Ann. § 39–11–402(3). In that case, evidence was presented that Fleeman, Rathbone’s girlfriend, was present when Rathbone committed offenses against the victim, but Fleeman did not say anything or otherwise try to prevent the offenses from occurring. As we have already stated, the State’s theory in this case was that Defendant directly caused the victim’s injuries, and the evidence presented at trial was sufficient to support his convictions. State v. Hawkins, 2014 WL 1571810, at *5–*8. In Jackson v. Virginia, the Supreme Court held that, “ in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254—if the settled procedural prerequisites for such a claim have otherwise been satisfied—the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” 443 U.S. 307, 324 (1979). This standard requires a federal district court to examine the evidence in the light most favorable to the State. Id. at 326 (“a federal habeas corpus court faced with a record of conflicting facts that supports conflicting inferences must presume—even if it does not affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.”). The TCCA began the analysis of Petitioner’s five arguments by citing state cases applying the Jackson standard. State v. Hawkins, 2014 WL 1571810, at *4. Hawkins does not articulate how the TCCA’s decision was contrary to Jackson v. Virginia. (Pet., ECF No. 1 at 23 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 24 of 42 PageID 2003 PageID 5.) Petitioner incorporates and reasserts the argument that was unsuccessful on direct appeal. (Reply, ECF No. 12 at PageID 1944.) Hawkins’ legal conclusions do not satisfy his burden of demonstrating that the state court’s resolution of his issues was based on an unreasonable determination of the facts. Hawkins’ arguments establish, at most, that the jury was required to determine whether Shamira Ivory’s testimony was sufficiently corroborated. The jury concluded that the testimonies of Sergeants Merritt and Peel, and Ralphael Harris were sufficient to corroborate Ivory’s testimony that she left Petitioner Hawkins alone with the victim, giving Hawkins the opportunity to commit the crime. The jury was also required to determine whether the evidence, whether direct or circumstantial or a combination of both, was sufficient to establish Hawkins’ guilt of abusing the victim and causing serious bodily injury resulting in her death. The state court determined that the evidence presented at trial supported a reasonable inference that Hawkins caused the serious bodily injuries that resulted in the victim’s death. Petitioner’s second, fourth, and fifth arguments were rejected by the TCCA because Hawkins was not convicted under a theory of criminal responsibility and was not convicted of delaying medical treatment. He was convicted as the principal actor who knowingly abused the victim and who caused serious bodily harm resulting in the victim’s death. Based on this Court’s review of the transcript of Hawkins’ trial (R., Trial Transcript (“Tr.”), ECF Nos. 9-3, 9-4, 9-5, 9-6, and 9-7), the TCCA correctly concluded that the testimony and circumstantial evidence were more than sufficient to permit the jury to find that Hawkins was guilty of first-degree felony murder in the perpetration of aggravated child neglect and aggravated child neglect. Hawkins’ challenge to the sufficiency of the evidence is without merit and is DENIED. 24 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 25 of 42 PageID 2004 B. Trial Court Error 2. The trial court erred by admitting evidence of Petitioner’s prior conviction for child abuse. (Pet., ECF No. 1 at PageID 7.) Petitioner Hawkins argued on direct appeal that the trial court should not have allowed the State to elicit testimony that Petitioner had pled guilty to a misdemeanor child abuse case twelve to thirteen years prior. (R., Br. of Appellant, ECF No. 9-11 at PageID 909–15.) Respondent replies that this claim is noncognizable because it alleges an error of state law. (Answer, ECF No. 10 at PageID 1921.) The TCCA addressed this claim on direct appeal and opined: Defendant next contends that the trial court erred by allowing evidence that Defendant was previously convicted of child abuse. Defendant is specifically referring to testimony that during an interview with Defendant, Defendant told detectives that he was not alone with the victim because he would never be alone with a child since he was “falsely accused of breaking a child’s leg” in 1996, for which he “went to prison.” The State responds that evidence of Defendant’s prior conviction was relevant to establish Defendant’s identity as the perpetrator and to show Defendant’s guilty knowledge. The general rule is that evidence of a defendant’s prior conduct is inadmissible, especially when previous crimes or acts are of the same character as the charged offense, because such evidence is irrelevant and “invites the finder of fact to infer guilt from propensity.” State v. Hallock, 875 S.W.2d 285, 290 (Tenn. Crim. App. 1993). Tennessee Rule of Evidence 404(b) permits the admission of evidence of prior conduct if the evidence of other acts is relevant to a litigated issue such as identity, intent, or rebuttal of accident or mistake, and the probative value outweighs the danger of unfair prejudice. Tenn. R. Evid. 404(b), Advisory Comm’n Cmts.; see State v. Parton, 694 S.W.2d 299, 303 (Tenn. 1985); State v. Hooten, 735 S.W.2d 823, 824 (Tenn. Crim. App. 1987). However, “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity with the character trait.” Tenn. R. Evid. 404(b). Before admitting evidence under Rule 404(b), the rule provides that: (1) upon request, the court must hold a hearing outside the jury’s presence; (2) the court must determine that the evidence is probative on a material issue and must, if requested, state on the record the material issue and the reasons for admitting or excluding the evidence; (3) the court must find proof of the other crime, wrong, or 25 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 26 of 42 PageID 2005 act to be clear and convincing; and (4) the court must exclude the evidence if the danger of unfair prejudice outweighs its probative value. Tenn. R. Evid. 404(b). In a jury-out hearing, the trial court heard argument by the parties regarding the admissibility of the portion of Defendant’ statement to detectives, in which Defendant claimed he was not alone with the victim and that he would never be alone with any child because he was falsely accused of breaking a child’s leg in 1996 and went to prison. In denying Defendant’s motion to exclude the statement, the trial court found that the evidence was “highly relevant,” that the proof of the prior bad act was clear and convincing, and that the probative value of the evidence was not outweighed by any danger of unfair prejudice. On appeal, Defendant argues that the trial court failed to satisfy the second prong of the test by failing to state on the record a material issue to which the evidence was relevant. The State responds that Rule 404(b) requires the trial court to make such a finding only upon request, and Defendant did not make a request. See Tenn. R. Evid. 404, Advisory Comm’n Cmts. (“Then the judge must decide what material issue other than character forms a proper basis for relevancy. If the objecting party requests, the trial judge must state on the record the issue, the ruling, and the reason for ruling the evidence admissible.”). The trial court found the objected to statement to be relevant as to Defendant’s “explanation,” implicitly his explanation for why he was never alone with the victim. The trial court gave the following jury instruction, which addresses the material issue for which the trial court found the evidence to be relevant, after the evidence was presented through Sergeant Merritt’s testimony: If you find from the proof that the defendant has committed a crime other than that for which he is on trial you may not consider this evidence to prove his propensity to commit the crime that he is on trial for. This evidence may only be considered by you for the limited purpose of determining whether it provides the complete story of the crime, and is necessary for a complete account thereof and/or if it tends to establish or relates to the defendant’s denial of his guilt, motivation and explanation of his actions and his denial of his opportunity for or lack of opportunity to commit the crime. We conclude that the trial court substantially complied with the procedural prerequisites of Rule 404(b) in this case. “If the procedures in Rule 404(b) are substantially followed, the trial court’s decision will be given great deference and will be reversed only for an abuse of discretion.” State v. James, 81 S.W.3d 751, 759 (Tenn. 2002). An abuse of discretion only occurs if the trial court “applied an incorrect legal standard, or reached a decision which is against logic or reasoning that caused an injustice to the party complaining.” State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999) (citations omitted). 26 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 27 of 42 PageID 2006 In his statement to detectives, Defendant claimed that he was never alone with the victim and offered a reason for his denial that he was not alone with her. The objected to testimony regarding a portion of Defendant’s statement is as follows: [Sergeant Merritt]: [Defendant] told us that he was never alone with her. I asked him why and he told me that back in 1996 that he was falsely accused of breaking a child’s leg, that he went to prison for that and that after that he made it a point that he was never going to be with anyone else’s child or a child that was not his. He was not going to be alone with a child that was not his. A material issue at trial was whether Defendant was alone with the victim during the time period when the fatal injuries were inflicted upon the victim. In his statement to police, Defendant denied that he was ever alone with the victim during the pertinent time period, and the objected to statement is relevant to support Defendant’s assertion that he was not alone with the victim. In addition, the statement is relevant to show that Defendant left the scene when he heard the sirens because he had been previously “falsely accused.” The fact that these examples of relevancy might under some circumstances usually cause a defendant, rather than the State, to offer the proof is not the determinative factor. If evidence is relevant, its relevancy does not depend upon which party elicits the proof. However, even if relevant to prove some material fact other than “propensity” evidence, in order to be properly admissible the proof must get over the hurdle of Tennessee Rule of Evidence 404(b)(4), which provides that the trial court “must exclude the evidence if its probative value is outweighed by the danger of unfair prejudice.” (Emphasis added). On appeal, the State asserts that the objected to statement was relevant to show Defendant’s identity as the person who committed the murder and the aggravated child neglect of the victim and to show Defendant’s “guilty knowledge” that he had committed the offenses and/or that the offenses had been committed. In its brief the State offers the following argument in support of this theory: The defendant’s statement was relevant on the issue of the defendant’s identity and his guilty knowledge. The defendant claimed that he did not harm the victim; therefore, the State had the burden of proving that the defendant was, in fact, the individual guilty of these crimes. In his statement to the police, the defendant claimed that he was never alone with the victim and put forth a prior “false accusation” and conviction as the foundation for this claim. Whether the defendant was alone with the victim at the time she was injured was a material issue in this case. Therefore, 27 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 28 of 42 PageID 2007 his statement was relevant to the issues of identity and guilty knowledge—material issues other than propensity. The statement was highly probative and the probative value was not outweighed by the danger of unfair prejudice[.] We are not persuaded by the State’s argument. The only way the statement could show Defendant’s identity as the perpetrator and Defendant’s “guilty knowledge” is if the statement is used as propensity evidence, i.e., Defendant has done it before and therefore he did it again. In the trial court, the State’s argument as to the relevancy did not mention identity of Defendant or Defendant’s guilty knowledge as a basis for relevance. The prosecutor stated, I understand the Court has to make a ruling, it’s certainly relevant. The fact that he made the statement in the first place that he was never alone with the child, the fact that when confronted with evidence from the police officers that we know otherwise that he, again, he stuck by that story then became argumentative and attempted to bolster his story with this explanation it’s critical to our case. I mean, just what he said was the reason that he didn’t leave, the fact that he didn’t leave that’s the whole story, that’s the whole picture. It’s prejudicial but not overly prejudicial. He could have said any story, that’s the one he chose in his mind would best serve to convince the police that he was never left alone with the child. He could have said I didn’t like the child, he could have said I don’t babysit children that I didn’t father. That’s his version of the events, and it just seems, you know—I don’t know—to hold that back from the jury the entire reason. So I guess he’s going to take the stand and, you know—if he does—if we don’t get it in then he takes the stand and we don’t know what happened, whether or not he’ll leave the door open but we’ll obviously have to have some ruling from the Court about what is going to be allowed on cross examination because that’s the kind of thing we would normally go into, not the underlying but just being left alone with a child which Shamira Ivory is going to testify he had watched the child on several occasions. And this was not an unusual circumstance, and this is odd that he would say it didn’t happen, hadn’t happened since the 90’s. 28 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 29 of 42 PageID 2008 We conclude that the trial court erred by allowing into evidence that portion of Defendant’s statement which explains why Defendant was never alone with the victim, under the mandate of Tennessee Rule of Evidence 404(b)(4). In balancing the risk of unfair prejudice against the minimal probative value, we conclude that the danger of unfair prejudice outweighed the probative value of the evidence. However, we further conclude that the trial court’s error was harmless. When undertaking a harmless error analysis, this court must consider whether “an error more probably than not had a substantial and injurious impact on the jury’s decision-making.” State v. Rodriguez, 254 S.W.3d 361, 372 (Tenn. 2008). “The line between harmless and prejudicial error is in direct proportion to the degree of the margin by which the proof exceeds the standard required to convict beyond a reasonable doubt.” State v. Carter, 714 S.W.2d 241, 248 (Tenn. 1986). Here, there was sufficient proof that Defendant was alone with the victim and that the victim’s injuries were sustained during that time period. Ms. Ivory testified that she left Defendant alone with the child. Her testimony was corroborated by Mr. Harris’ testimony as well as the store surveillance video. Medical proof established that the victim’s injuries were inflicted shortly before her death. The evidence established that Defendant refused to render aid to the victim and that he left the house before police and paramedics could arrive. Although this is a very close issue, we conclude that the trial court’s error in admitting prior bad act evidence was harmless. State v. Hawkins, 2014 WL 1571810, at *8–*12. Claims that the state courts misapplied Tennessee evidentiary rules during the trial are not cognizable in a federal habeas petition. See 28 U.S.C. § 2254(a) (a federal court may grant habeas relief to a state prisoner “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States”); Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“it is not the province of a federal habeas court to reexamine state-court determinations on state- law questions”); Wilson v. Parker, 515 F.3d 682, 705 (6th Cir. 2008) (“[a] federal court cannot issue a writ of habeas corpus ‘on the basis of a perceived error of state law.’” (quoting Pulley v. Harris, 465 U.S. 37, 41 (1984 . This claim was not addressed as a violation of Hawkins’ federal constitutional rights on direct appeal. (R., Br. of the Appellant, ECF No. 9-11 at PageID 909–15.) Hawkins has failed to properly exhaust any federal constitutional claim in 29 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 30 of 42 PageID 2009 state court. Because no further avenue exists for exhausting the claim as a federal constitutional claim, it is barred by procedural default. The TCCA resolved the claim by reference to Tennessee rules governing the admissibility of evidence. As exhausted in the Tennessee courts, Issue Two is noncognizable and is DENIED. C. Ineffective Assistance 3(a) Petitioner’s trial counsel performed deficiently by failing to object to the jury instruction on circumstantial evidence. (Pet., ECF No. 1 at PageID 25- 28.) Petitioner Hawkins contends that trial counsel provided ineffective assistance by failing to object to the trial court’s instruction on circumstantial evidence. (Pet., ECF No. 1 at PageID 25.) Hawkins alleges that the jury instruction was not based on the law in effect at the time of his crimes. (Id. at 25–27.) Respondent replies that this claim is procedurally defaulted because Hawkins failed to raise it in state court. (Answer, ECF No. 10 at PageID 1924.) Petitioner contends the default should be excused under Martinez because “[p]ost conviction counsel should have included the issue as a claim of ineffective assistance of trial counsel.” (Pet., ECF No. 1 at PageID 28.) Respondent responds that Martinez cannot excuse the default because the claim is not substantial. (Answer, ECF No. 10 at PageID 1925.) Ineffective assistance of state post-conviction counsel can establish cause to excuse a Tennessee prisoner’s procedural default of a substantial federal habeas claim that his trial counsel was constitutionally ineffective. Sutton v. Carpenter, 745 F.3d 787, 791 (6th Cir. 2014). To qualify as “substantial” under Martinez, a claim must have “some merit” based on the controlling standard for ineffective assistance of counsel. Martinez v. Ryan, 566 U.S. 1, 14 (2012). 30 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 31 of 42 PageID 2010 In 2011, the Tennessee Supreme Court adopted the standard for circumstantial evidence established by the United States Supreme Court in Holland v. United States, 348 U.S. 121, 140 (1954): “Circumstantial evidence . . . is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more.” State v. Dorantes, 331 S.W.3d 370, 380–81 (Tenn. 2011) (quoting Holland). The adoption of the Holland standard resulted in the rejection of previous Tennessee case law that “purportedly required the State to prove facts and circumstances ‘so strong and cogent as to exclude every other reasonable hypothesis save the guilty of the defendant, and that beyond a reasonable doubt.’” Id. at 380 (quoting State v. Crawford, 270 S.W.2d 610, 612 (Tenn. 1971 . The Tennessee Supreme Court determined that, “[i]n practice, the distinction between the federal standard and the ‘reasonable hypothesis’ language used in our state has rarely made a difference; therefore, there has been little reason to refine out standard of review by voicing disapproval of much of the terminology used in Crawford.” Id. at 381. Hawkins was tried in 2012, after Dorantes was decided. His crime, however, was committed on September 17, 2008. The trial court instructed the jury: One type of evidence is called direct evidence and the other type is called circumstantial evidence. Direct evidence is those parts of the testimony admitted in court which referred to what happened and was testified to by witnesses who saw or heard what happened first hand. If witnesses testified about what themselves [sic] saw or heard they presented direct evidence. Circumstantial evidence is all the testimony and exhibits which give you clues about what happened in an indirect way. It consists of all the evidence which is not direct evidence. Do not assume that direct 31 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 32 of 42 PageID 2011 evidence is always better than circumstantial evidence. According to our laws direct evidence is not necessarily better than circumstantial evidence. Either type of evidence can prove a fact if it is convincing enough. A defendant may be convicted on direct evidence, circumstantial evidence or both. (R., Trial Tr., ECF No. 9-7 at PageID 666.) Hawkins contends that “the State of Tennessee failed to place Petitioner on ‘Notice’ that direct and circumstantial evidence were equivalents,” resulting in prejudice and “violating the prohibition against ex post facto laws under both the Tennessee and United States’ constitutions.” (Pet., ECF No. 1 at PageID 26.) Respondent replies that the trial court correctly used the standard adopted in Dorantes. (Answer, ECF No. 10 at PageID 1925.) The Tennessee Supreme Court and the TCCA began utilizing the same standard for direct and circumstantial evidence shortly after Dorantes was decided for cases where the crimes occurred before January 2011. See State v. Sisk, 343 S.W.3d 60, 62 (Tenn. 2011) (crimes committed in 2006); State v. Parker, 350 S.W.3d 883, 888, 903 (Tenn. 2011) (crimes committed in 2003); State v. Martinez, 372 S.W.3d 598, 601, 604–05 (Tenn. Crim. App. 2011) (crimes committed in 2008). Hawkins’ argument is unavailing because the Ex Post Facto Clause of neither constitution applies to judicial decisions. See generally U.S. Const. art. 1 §§ 9, 10; Tenn. Const. art. 1, § 11; Rogers v. Tennessee, 532 U.S. 451, 456 (2001). The Supreme Court has held that challenges to retroactive applications of judicial decisions must proceed under due process, not the Ex Post Facto Clause. See Rogers, 532 U.S. at 460–62. Trial counsel does not perform deficiently by failing to raise meritless objections. Post- conviction counsel does not perform deficiently by failing to raise meritless issues. This claim is not substantial, therefore, Petitioner cannot not satisfy the requirements to overcome the procedural default of this issue. Issue 3(a) is barred by procedural default and is DENIED. 32 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 33 of 42 PageID 2012 3(b) Petitioner’s trial counsel performed deficiently by failing to object to the admission of unfairly prejudicial testimony. (Pet., ECF No. 1 at 8, 25, 28.) Hawkins alleges that trial counsel provided ineffective assistance by failing to object to the admission of unfairly prejudicial witness testimony. (Id. at 8, 25, 28.) On post-conviction appeal, Hawkins argued that trial counsel allowed the co-defendant to testify about an alleged incident where the victim touched the Petitioner’s “balls,” and he said “it felt good to him.” (R., Br. of Appellant, ECF No. 9-21 at PageID 1847.) Hawkins contended that the testimony was irrelevant, inadmissible, and unfairly prejudicial. (Id. at PageID 1850–52.) Respondent replies that the decision of the TCCA was not objectively unreasonable. (Answer, ECF No. 10 at PageID 1927.) The TCCA identified the proper standard for analyzing the claims, Strickland v. Washington, 466 U.S. 688 (1984). Hawkins v. State, 2017 WL 2829755, at *5. As stated previously, the Strickland court set out a two-prong test for determining when a counsel’s assistance is so deficient that it requires a conviction to be set aside: First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 687. Recently, the Sixth Circuit opined that this standard is “even more difficult to meet in habeas cases, where the review that applies to Strickland claims is ‘doubly deferential.’” Tackett v. Trierweiler, 956 F.3d 358, 373 (6th Cir. 2020) (citing Knowles v. Mirzayance, 556 U.S. 111, 123 (2009 . “The question is not whether a federal court believes the state court’s determination 33 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 34 of 42 PageID 2013 under the Strickland standard was incorrect but whether that determination was unreasonable—a substantially higher threshold.” Id. (internal quotation marks and citation omitted). With this framework in mind, the Court turns to the TCCA’s findings of fact and conclusions law. The TCCA addressed Petitioner’s claim, stating: The Petitioner argues that trial counsel was ineffective for failing to object to inadmissible testimony from his co-defendant, the victim’s mother. He asserts that trial counsel allowed the co-defendant to testify about an alleged incident where the victim touched the Petitioner’s “balls”, and he said “it felt good to him.” The Petitioner further contends that this evidence was “both wholly irrelevant and highly prejudicial to [the] Petitioner,” and trial counsel’s failure to object “contributed to the State’s ability to impugn [the] Petitioner’s character in a manner not allowed by Tennessee [l]aw.” The State responds that trial counsel’s decision was strategic and that trial counsel provided effective assistance of counsel. We agree with the State. At the post-conviction hearing, trial counsel testified that he decided not to object to this testimony and instead cross-examined the co-defendant about this incident. He further testified that he did not want to “draw attention” to the statement by objecting and decided that a thorough cross-examination was the appropriate decision. It is well established that this court will not “‘second guess’ tactical and strategic choices pertaining to defense matters or to measure a defense attorney’s representation by ‘20–20 hindsight.’” Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997) (quoting Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982 . The post-conviction court concluded that trial counsel’s decision was strategic and that trial counsel’s performance was not deficient. We agree, and conclude that the record shows that trial counsel made a well-informed and reasoned decision under the circumstances not to object to the testimony at issue. The Petitioner has failed to establish either deficient performance or prejudice resulting therefrom. He is not entitled to relief. Hawkins v. State, 2017 WL 2829755, at *6. Hawkins does not explain how the TCCA’s determination of this claim was an improper application of Strickland. Trial counsel testified that “[t]he co-defendant was represented by counsel, so there was no chance for us to conduct any interviews pre-trial with her.” (R., Post- conviction Tr., ECF No. 9-18 at PageID 1186.) Counsel explained that he had no knowledge that she would give that answer to the State’s question. (Id. at PageID 1187.) Counsel testified 34 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 35 of 42 PageID 2014 that he did not believe the co-defendant was a very credible witness and “it appeared that she was piling on [Hawkins] and making stuff up, because if that had been something that had happened and the reason for her anger at him, it would have been in her statement to the police.” (Id. at PageID 1187–88.) Counsel made the strategic decision to “cross-examine her on why she didn’t tell police this story. Because that was the basis of our defense, she was the one that was lying to the police about [Hawkins’] involvement in hurting the child, when, in fact, she was the one and now she has made up these stories to protect herself.” (Id. at PageID 1188.) Counsel’s decision was a reasonable strategic choice based on his observations of the co- defendant during her courtroom testimony. Based on this Court’s review of the post-conviction testimony (R., Post-conviction Tr., ECF No. 9-18), Hawkins has failed to establish that his trial counsel’s strategic decision was deficient or that he suffered any prejudice from counsel’s performance. Deference to the state court decision on this issue is appropriate. Petitioner Hawkins also contends that counsel should have objected to the co-defendant’s testimony that Hawkins tried “to harm or kill Ms. Ivory’s unborn child.” (Pet., ECF No. 1 at PageID 28.) Respondent replies that this aspect of Issue 3(b) is procedurally defaulted because it was not presented to the state courts. (Answer, ECF No. 10 at PageID 1930.) Petitioner contends that the default should be excused under Martinez. (Pet., ECF No. 1 at PageID 28.) Respondent replies that the claim is not substantial. (Answer, ECF No. 10 at PageID 1930.) After eliciting the co-defendant’s testimony about the touching incident, the prosecutor asked the co-defendant about any other “unpleasant” incidents with Petitioner. (R. Trial Tr., ECF No. 9-6 at PageID 493.) The co-defendant testified that Hawkins kicked her in the stomach because he wanted her to get up off the couch. (Id.) 35 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 36 of 42 PageID 2015 Hawkins’ trial attorney had no opportunity to interview the co-defendant before trial and the testimony about the incident was brief. Had counsel objected the only remedy was a curative instruction. Counsel agreed with the post-conviction court during the evidentiary hearing that a curative instruction “is a legal fiction” “like un-ringing a bell.” (Id. at PageID 1189–90.) Petitioner Hawkins cannot establish that there is a reasonable probability that, but for this testimony, the outcome of the trial would have been different. The procedural default of this portion of Issue 3(b) is not excused under Martinez because the claim is insubstantial. Issue 3(b) is DENIED. 3(c) Petitioner’s trial counsel performed deficiently by failing to object to the State’s improper closing. (Pet., ECF No. 1 at 8, 23.) In the post-conviction appeal, Petitioner Hawkins contended: Only a few lines into its opening statement, the State had already begun to mislead the jury with an incorrect statement of law and procedure: “He’s guilty. There’s no question about that. We don’t need to argue about that, and frankly that’s not why we’re here. This statement indicated that the jury did not need to consider Hawkins’ guilty or innocence. Next, when commenting on Petitioner’s character, the prosecutor asserted that Hawkins was “the same kind of cold blooded guy that would punch a little girl that’s about this tall and weighs about twenty-one pounds, in the abdomen time and time again. This comment was an improper disparagement of Petitioner’s character. During rebuttal, the State argued that the jury should disregard impeaching evidence of a critical witness and “write a letter complaining because this is your city, that is your Police Department. But don’t let him [Petitioner] get away with it because of a screw-up by police.” Finally, the State asked the jury to return a guilty verdict because they were good community members: “. . . you write up the verdict and then you come back out there and you look at him and be proud that you’re able to tell him that we, . . . the jury, find you guilty of murder in the perpetration of aggravated child abuse.” 36 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 37 of 42 PageID 2016 (R., Br. of Appellant, ECF No. 9-21 at PageID 1853–54 (citations omitted).) Respondent replies that the decision of the TCCA was neither objectively unreasonable nor based on an unreasonable determination of the facts. (Answer, ECF No. 10 at PageID 1933.) The TCCA addressed this issue, stating: Next, the Petitioner argues that trial counsel was ineffective for failing to object to the State’s remarks during closing argument. The Petitioner contends that trial counsel should have objected to the following remarks: (1) “[The Petitioner’s] guilty. There’s no question about that. We don’t need to argue about that, and frankly that’s not why we’re here. . . .” and (2) “[The Petitioner] is the same kind of guy, the same kind of guy that would say, not my baby, not my problem, the same kind of cold blooded guy that would punch a little girl, that’s about this tall and weighs about twenty-one pounds in the abdomen, time and time again.” Later, during its rebuttal, the Petitioner claims the State argued that the jury “should disregard impeaching evidence of a critical witness,” and the jury should return a guilty verdict because they were “good community members.” The Petitioner asserts that the “collective impact of these statements prejudicially undermined the fundamental fairness of [the Petitioner’s] trial.” The State contends that trial counsel reasonably decided not to object during the State’s closing argument and that the Petitioner failed to establish that trial counsel was ineffective. We agree with the State. The Tennessee Supreme Court has stated that closing argument is a “valuable privilege that should not be unduly restricted.” Terry v. State, 46 S.W.3d 147, 156 (Tenn. 2001) (citing State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978) (citation omitted . As a result, attorneys have considerable leeway in arguing their positions during closing argument. Id. The closing argument, however, “must be temperate, must be predicated on evidence introduced during the trial of the case, and must be pertinent to the issues being tried.” Russell v. State, 532 S.W.2d 268, 271 (Tenn. 1976). Furthermore, “the reviewing court must indulge a strong presumption that the [counsel’s] conduct falls within the range of reasonable professional assistance and may not second-guess the tactical and strategic choices made by counsel unless those choices were uninformed by inadequate preparation.” Gregory Paul Lance v. State, No. M2005–01765–CCA– R3–PC, 2006 WL 2380619, at *6 (Tenn. Crim. App. Aug. 16, 2006) (internal citations omitted). In denying relief, the post-conviction court concluded that trial counsel made a strategic decision not to object and that the Petitioner offered no evidence as to “why” trial counsel failed to object. See Robby Lynn Davidson v. State, No. M2005–02270–CCA–R3–PC, 2006 WL 3497997, at *7 (Tenn. Crim. App. Dec. 4, 2006) (concluding that “[t]he decisions of a trial attorney as to whether to 37 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 38 of 42 PageID 2017 object to opposing counsel’s arguments are often primarily tactical decisions.”). Citing State v. Sexton, 386 S.W.3d 371, 429 (Tenn. 2012), the post-conviction court found that “without testimony from trial counsel as to ‘why’ he chose not to object to a statement, the court must assume it was a valid tactical decision.” The Petitioner raised several issues with the State’s closing argument, but during the post-conviction hearing, trial counsel was only questioned about one specific portion of the State’s closing argument. Post-conviction counsel asked trial counsel if it was “part of some kind of strategy to let [the State] say that [the Petitioner] is guilty,” and trial counsel responded that the State was typically allowed to make such comments during closing, and an objection would have been unsuccessful. Moreover, trial counsel testified that this remark was “close” to being “objectionable,” but ultimately decided not to object. The post- conviction court concluded, and we agree, that trial counsel made a strategic decision not to object. See Henley, 960 S.W.2d at 579 (quoting Hellard, 629 S.W.2d at 9). The Petitioner is not entitled to relief. The Petitioner also argues that trial counsel should have objected when the State referred to the Petitioner as a “cold blooded guy that would punch a little girl, that’s about this tall and weighs about twenty-one pounds in the abdomen, time and time again.” The Petitioner also claims that the State’s remarks on rebuttal were improper and trial counsel was ineffective for failing to object. The Petitioner argues that this statement was an “improper disparagement of [the] Petitioner’s character.” However, at the post-conviction hearing, trial counsel’s response was vague and did not provide a clear explanation for his decision not to object. Moreover, there is no testimony from trial counsel explaining why he did not object to the State’s remarks during its rebuttal. Based on the record before us, we cannot conclude that trial counsel was deficient. See State v. Sexton, No. M2004–03076–CCA–R3–CD, 2007 WL 92352, at *5 (Tenn. Crim. App. Jan. 12, 2007). The burden was on the Petitioner to establish trial counsel’s deficient performance, and the Petitioner failed to meet that burden. We agree with the post-conviction court’s conclusion that “without testimony from trial counsel as to ‘why’ he chose not to object to a statement, the court must assume it was a valid tactical decision.” Accordingly, he is not entitled to relief. Hawkins v. State, 2017 WL 2829755, at *6–*7. Hawkins does not explain how the TCCA’s determination of these claims was an improper application of Strickland. Counsel testified during the post-conviction hearing as follows: And you were asking about a quote from the prosecutor and the reason why I didn’t object. I think this trial was around 2012. We didn’t start getting 38 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 39 of 42 PageID 2018 any decent support from the Court of Criminal Appeals on the unprofessional closings out of the D.A.’s office until that time. I had recently come back from the Court of Criminal Appeals, prior to this trial, a few years before this one . . . where I watched the Criminal Appeals completely take apart and destroy Ross Dyer for about thirty minutes on the closing arguments of the Shelby County District Attorney’s office and threaten him with – if he didn’t go back and tell them to stop doing it they would overturn the case. When the opinion came out it was almost entirely silent, as to that. And it was the most – to the point it was so bad to the point where I was embarrassed for them. I really – I don’t even think I said two words the entire oral argument. The law at the time and the support from the Court of Criminal Appeals being non-existent, the habit, if you will, of the defense attorneys, at that time, was one in which – and I am sure, wrong – was that the State was going to get away with just about anything they wanted to say and I think we objected to it, all we were doing was drawing attention and we are not going to be supported either at the trial level, or the Court of Criminal Appeals level. I personally witnessed it and personally watched the Court of Criminal Appeals completely destroy the A.G.’s Office and then do nothing about it in the opinion. So it was very difficult for us at that time to make those contemporaneous objections at the trial level, with any hopes, at all, with having beneficial outcome to our client and to our case. (R., Post-conviction Tr., ECF No. 9-18 at PageID 1192–93.) Counsel’s failure to object during the prosecutor’s closing argument was a strategic decision based on his past experiences with such objections in the Shelby County Criminal Courts and the TCCA. Counsel’s decision was a reasonable strategic choice. Hawkins has failed to establish any prejudice from counsel’s decision. Deference to the state court decision on this issue is appropriate. Issue 3(c) is DENIED. 3(d) Petitioner’s trial counsel performed deficiently by committing cumulative errors. (Pet., ECF No. 1 at 10.) Petitioner Hawkins contends that trial counsel’s cumulative errors entitle him to relief. (Pet., ECF No. 1 at PageID 10.) Respondent replies that the TCCA’s determination of this issue 39 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 40 of 42 PageID 2019 was correct and the claim is not cognizable on habeas corpus review. (Answer, ECF No. 10 at PageID 1934.) The TCCA opined: Finally, the Petitioner argues that the cumulative effect of trial counsel’s errors entitles him to relief because it is “reasonably probable that [the] Petitioner’s trial and direct appeal could have had a significantly different outcome.” The cumulative error doctrine recognizes that in some cases there may be multiple errors committed during the trial proceedings, which standing alone constitute harmless error; however, considered in the aggregate, these errors undermined the fairness of the trial and require a reversal. State v. Hester, 324 S.W.3d 1, 76 (Tenn. 2010). However, the cumulative error doctrine properly applies only where there has been more than one actual error. Id.; See also, Tracy F. Leonard v. State, No. M2006–00654–CCA–R3–PC, 2007 WL 1946662, at *21 (Tenn. Crim. App. Sept. 13, 2007) (“[A] Petitioner who has failed to show that he received constitutionally deficient representation on any single issue may not successfully claim that his constitutional right to counsel was violated by the cumulative effect of such counsel’s errors.”). Because the Petitioner has failed to prove deficient representation on any issue, he cannot successfully claim that the cumulative effect of counsel’s performance violated his constitutional rights. The Petitioner is not entitled to relief. Hawkins v. State, 2017 WL 2829755, at *8. Cumulative error is not a viable constitutional claim under 28 U.S.C. § 2254. Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir. 2002) (“The Supreme Court has not held that distinct constitutional claims can be cumulated to grant habeas relief.”), amended on other grounds, 377 F.3d 459 (6th Cir. 2002); see also Gillard v. Mitchell, 445 F.3d 883, 898 (6th Cir. 2006) (same); Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005) (same). Additionally, the Court has rejected the substantive claims on the merits or as barred by procedural default. This claim is DENIED. The issues raised in this petition are noncognizable, without merit, and barred by procedural default. The petition is DISMISSED WITH PREJUDICE. Judgment shall be entered for Respondent. VI. APPELLATE ISSUES 40 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 41 of 42 PageID 2020 There is no absolute entitlement to appeal a district court’s denial of a § 2254 petition. Miller-El v. Cockrell, 537 U.S. 322, 335 (2003). The Court must issue or deny a certificate of appealability (“COA”) when it enters a final order adverse to a § 2254 petitioner. Rule 11, Rules Governing Section 2254 Cases in the United States District Courts. A petitioner may not take an appeal unless a circuit or district judge issues a COA. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1). A COA may issue only if the petitioner has made a substantial showing of the denial of a constitutional right, and the COA must indicate the specific issue or issues that satisfy the required showing. 28 U.S.C. §§ 2253(c)(2)–(3). A “substantial showing” is made when the petitioner demonstrates that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’” Miller-El, 537 U.S. at 336 (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000 ; Henley v. Bell, 308 F. App’x 989, 990 (6th Cir. 2009) (per curiam) (holding a prisoner must demonstrate that reasonable jurists could disagree with the district court’s resolution of his constitutional claims or that the issues presented warrant encouragement to proceed further). A COA does not require a showing that the appeal will succeed. Miller-El, 537 U.S. at 337; Caldwell v. Lewis, 414 F. App’x 809, 814–15 (6th Cir. 2011) (same). Courts should not issue a COA as a matter of course. Bradley v. Birkett, 156 F. App’x 771, 773 (6th Cir. 2005) (quoting Slack, 537 U.S. at 337). In this case, there can be no question that the claims in this petition are noncognizable, without merit, and barred by procedural default. Because any appeal by Petitioner on the issues raised in this petition does not deserve attention, the Court DENIES a certificate of appealability. 41 Case 2:17-cv-02715-MSN-tmp Document 18 Filed 02/05/21 Page 42 of 42 PageID 2021 In this case for the same reasons the Court denies a certificate of appealability, the Court determines that any appeal would not be taken in good faith. It is therefore CERTIFIED, pursuant to Fed. R. App. P. 24(a), that any appeal in this matter would not be taken in good faith and leave to appeal in forma pauperis is DENIED.8 IT IS SO ORDERED, this 5th day of February, 2021. s/ Mark Norris MARK S. NORRIS UNITED STATES DISTRICT JUDGE 8. If Petitioner files a notice of appeal, he must pay the full $505 appellate filing fee or file a motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court of Appeals within thirty (30) days of the date of entry of this order. See Fed. R. App. P. 24(a)(5). 42
=== 19-20293 ===
Case 2:19-cr-20293-MSN Document 23 Filed 03/02/21 Page 1 of 3 PageID 51 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ______________________________________________________________________________ UNITED STATES OF AMERICA, Plaintiff, v. JAMES BANK, Defendant. Case No. 2:19-cr-20293-MSN ______________________________________________________________________________ ORDER DENYING DEFENDANT’S PRO SE MOTION FOR CONFINEMENT CREDIT NUNC PRO TUNC AND ORDER DIRECTING CLERK OF COURT TO MAIL DEFENDANT § 2241 FORM ______________________________________________________________________________ This cause comes before the Court on Defendant James Bank’s Motion for Confinement Credit Nunc Pro Tunc. (ECF No. 22.) For the reasons below, Defendant’s Motion is DENIED. Background On October 29, 2019, this matter was transferred to the undersigned from the United States District Court for the Middle District of Pennsylvania pursuant to 18 U.S.C. § 3605. (ECF No. 1.) At the time, Defendant was out on supervised release. (Id. at PageID 1.) On November 6, 2019, Defendant was arrested for an alleged supervised release violation. (ECF No. 9.) Defendant was released on bail while he awaited a hearing. (ECF No. 16.) The terms of the release confined Defendant to his home and required him to submit to radio frequency monitoring. (Id. at PageID 41.) On January 7, 2020, the Court held a hearing to determine if Defendant violated his supervised release. (ECF Nos. 18, 19.) The Court found that he did and sentenced him to twenty- 1 Case 2:19-cr-20293-MSN Document 23 Filed 03/02/21 Page 2 of 3 PageID 52 two (22) months incarceration to run concurrently with the sentence in 2:06-cr-20361-MSN. (ECF No. 21 at PageID 47.) Defendant was allowed to self-surrender at a time to be set by the United States Marshal. (Id.) Defendant reports that he surrendered to the custody of the Bureau of Prisons on February 25, 2020. (ECF No. 22 at PageID 48.) Defendant’s pending motion, filed on February 1, 2021, requests that he be credited for the time he spent confined to his home before being incarcerated. (ECF No. 22 at PageID 48–49.) Defendant remained on home confinement from the time of his release on bail, (ECF No. 16), to his self-surrender on February 25, 2020. (ECF No. 22 at PageID 48.) In total, Defendant requests that the Court credit him ninety-three (93) days to be applied toward his sentence. (Id. at PageID 49.) Analysis Defendant does not attack the validity of his sentence, but its execution. (ECF No. 22 at PageID 49.) Motions such as this must be brought under a petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. See Wright v. United States Bd. of Parole, 557 F.2d 74, 77 (6th Cir. 1977); Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998) (citing United States v. Jalili, 925 F.2d 889, 893 (6th Cir. 1991 (“In general, a petition for a writ of habeas corpus under § 2241 is reserved for a challenge to the manner in which a sentence is executed, rather than the validity of the sentence itself.”). Calculation of a federal prisoner’s sentence, including its commencement date and any credit for custody before sentencing, is governed by 18 U.S.C. § 3585, which provides as follows: (a) Commencement of sentence.—A sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served. 2 Case 2:19-cr-20293-MSN Document 23 Filed 03/02/21 Page 3 of 3 PageID 53 (b) Credit for prior custody.—A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences— (1) as a result of the offense for which the sentence was imposed; or (2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed; that has not been credited against another sentence. Id. This Court cannot compute sentence credits under 18 U.S.C. § 3585(b). That task is reserved for the Attorney General. United States v. Wilson, 503 U.S. 329, 334 (1992); United States v. Westmoreland, 974 F. 2d 736, 737–38 (6th Cir. 1992) (district court cannot consider habeas petition asserting right to sentence credits under 18 U.S.C. § 3585(b) until Attorney General has computed credit and petitioner has exhausted administrative remedies). Exhaustion of administrative remedies within the BOP is a jurisdictional prerequisite to seeking court review of the BOP’s sentence credit calculation. Westmoreland, 974 F.2d at 737– 38. As it stands, Defendant’s motion is the improper procedural vehicle for the relief he seeks. Defendant must make this request under § 2241 after exhaustion of administrative remedies with the Bureau of Prisons. For this reason, Defendant’s motion is DENIED. The Clerk of Court is hereby DIRECTED to mail Defendant the proper 28 U.S.C. § 2241 form. IT IS SO ORDERED, this 2nd of March, 2021. s/ Mark Norris MARK S. NORRIS UNITED STATES DISTRICT JUDGE 3
=== 22-2253 ===
Case 2:22-cv-02253-MSN-cgc Document 24 Filed 05/12/22 Page 1 of 19 PageID 167 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION STINSON’S INDUSTRIAL MAINTENANCE, INC., Plaintiff, v. PMC GROUP N.A., INC., JOHN FAVRE, JR., Defendants. Case No. 2:22-cv-2253-MSN-tmp ORDER DENYING EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION Before the Court is Plaintiff Stinson’s Industrial Maintenance, Inc.’s (“Plaintiff”) Emergency Motion for Temporary Restraining Order and Preliminary Injunction, docketed April 21, 2022. (“Motion”) (ECF No. 2.) The Court held an emergency hearing on April 26, 2022 to address the Motion, whereupon the Court heard oral argument, orally granted expedited discovery, requested additional briefing, and took the matter under advisement pending submission of the parties’ supplemental briefs. (See ECF No. 15.) Plaintiff filed a Supplemental Memorandum in Support of its Motion and Defendant PMC Group N.A., Inc. (“PMC Group N.A.” or “Defendant”) filed its Response in Opposition, both on April 29, 2022.1 (ECF Nos. 17, 18.) For the following reasons, Plaintiff’s Motion is DENIED. 1 For purposes of this Order, “Defendant” refers only to Defendant PMC Group N.A. because counsel for Defendant John Favre, Jr. (“Defendant Favre”) filed his Notice of Appearance on May 11, 2022, (ECF No. 23), and has not yet had an opportunity to file a response to the Motion. Case 2:22-cv-02253-MSN-cgc Document 24 Filed 05/12/22 Page 2 of 19 PageID 168 BACKGROUND Plaintiff, a Tennessee corporation, “provides industrial maintenance services to clients in Memphis and northern Mississippi.” (ECF No. 2-1 at PageID 38.) Defendant, a Delaware corporation, provides many of the same services through one of its legal subsidiaries, PMC Biogenix Inc. (“PMC Biogenix”), a Tennessee corporation, and had been one of Plaintiff’s clients before Plaintiff effectively discontinued their relationship on November 3, 2021.2 (ECF No. 1-6 at PageID 28.) Defendant vigorously contends that the proper defendant in this matter should have been nonparty PMC Biogenix, not PMC Group N.A., because it is the separate legal entity with which Plaintiff had a business relationship. (ECF No. 18 at PageID 114.) Notwithstanding such protestations, Plaintiff has sued Defendant PMC Group N.A. for breach of contract arising from an alleged decision to hire John Favre, Jr., through nonparty Aerotek, Inc. (“Aerotek”), in violation of his Agreement Not to Compete (“Noncompete Agreement”). (ECF No. 1 at PageID 2–4.) Specifically, Plaintiff identifies this hiring decision as just one among many similar abuses by Defendant, which has allegedly engaged in an ongoing employee-poaching “campaign” that threatens to irreparably harm Plaintiff’s operations. (ECF No. 2-1 at PageID 39.) Defendant denies these allegations, contending instead that Plaintiff’s voluntary decision to terminate its relationship with PMC Biogenix on November 3, 2021 released Defendant Farve from the Noncompete Agreement as to PMC Biogenix because Plaintiff no longer “conducts business” with it. (ECF No. 18 at PageID 115; ECF No. 1-4 at PageID 20.) Consequently, according to Defendant, Defendant Favre clearly did not breach his Noncompete Agreement when he resigned his employment with Plaintiff on February 24, 2022 and assumed employment with Aerotek, which may have assigned him to work at PMC Biogenix. (See ECF 2 Plaintiff indicates in its Supplemental Brief that it terminated its services to PMC Biogenix “at least temporarily.” (ECF No. 17 at PageID 105; ECF No. 1-6 at PageID 27) 2 Case 2:22-cv-02253-MSN-cgc Document 24 Filed 05/12/22 Page 3 of 19 PageID 169 No. 1 at PageID 3; ECF No. 18 at PageID 125.) Plaintiff responds that it decided to cut ties with PMC Biogenix under duress because Defendant — the alleged parent entity of PMC Biogenix — has (a) attempted to poach Plaintiff’s employees and (b) unreasonably asks the Court to read Plaintiff’s Noncompete Agreement in an “overly technical” manner that offends “the spirit of” the document. (ECF No. 17 at PageID 106.) Defendant counters that PMC Biogenix had an independent basis to end its relationship with Plaintiff, citing “performance issues” with Plaintiff’s workers assigned to work at PMC Biogenix. (ECF No. 116–17.) It further contends that “no offers of direct employment with PMC Biogenix have been made to Mr. Favre and there are no plans to do so. Further, PMC Biogenix has no plans to make any offers of employment with PMC Biogenix to any of the industrial maintenance contractors of Plaintiff or of any other contractor used on site. (Id.; ECF No. 18-1 at PageID 135.) Plaintiff filed the instant opposed Motion for a temporary restraining order (“TRO”) or preliminary injunctive relief to enjoin Defendant (and, specifically, its subsidiary PMC Biogenix) from allegedly poaching its employees. (ECF No. 2.) LEGAL STANDARD “A temporary restraining order . . . , like a preliminary injunction, ‘is an extraordinary remedy reserved only for cases where it is necessary to preserve the status quo until trial.’” Detroit Will Breathe v. City of Detroit, 484 F. Supp. 3d 511, 515–16 (E.D. Mich. 2020) (citing Enchant Christmas Light Maze & Mkt. Ltd. v. Glowco, LLC, 958 F.3d 532, 535 (6th Cir. 2020); S. Glazer’s Distributors of Ohio, LLC v. Great Lakes Brewing Co., 860 F.3d 844, 849 (6th Cir. 2017). A TRO may be issued without notice under Fed. R. Civ. P. 65(b)(1) only when: (1) “specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition”; and (2) the 3 Case 2:22-cv-02253-MSN-cgc Document 24 Filed 05/12/22 Page 4 of 19 PageID 170 plaintiffs’ “attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.” Detroit Will Breathe, 484 F. Supp. 3d at 515. Like a preliminary injunction, a TRO “is an extraordinary remedy which should be granted only if the movant carries his or her burden of proving that the circumstances clearly demand it.” Overstreet v. Lexington-Fayette Urban Cty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002) (citing Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000). Courts consider four factors to determine whether such injunctive relief should be issued: (1) whether the movant has shown a strong likelihood of success on the merits; (2) whether the movant will suffer irreparable harm if the injunction is not issued; (3) whether the issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuing the injunction. Id. at 573. Notably, these are “factors to be balanced, not prerequisites that must be met,” which means the weight assigned to one factor “may depend on the strength of the other factors.” In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985); see Coal. to Defend Affirmative Action v. Granholm, 473 F.3d 237, 244 (6th Cir. 2006) (“All four factors are not prerequisites but are interconnected considerations that must be balanced together.”) “When one factor is dispositive, a district court need not consider the others.” D.T. v. Sumner Cnty. Sch., 942 F.3d 324, 327 (6th Cir. 2019). The movant carries the burden of persuasion, and the proof required to obtain a preliminary injunction exceeds that required to survive a summary judgment motion. Leary, 228 F.3d at 739 (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990 ; Detroit Will Breathe, 484 F. Supp. 3d at 515–16. DISCUSSION Plaintiff argues that the Court should issue a TRO on its breach of contract and tortious interference claims because both claims succeed after a balance of the factors sketched above. (ECF No. 2-1 at PageID 41.) Defendant responds that “Plaintiff has sued the wrong PMC entity 4 Case 2:22-cv-02253-MSN-cgc Document 24 Filed 05/12/22 Page 5 of 19 PageID 171 and, further, has failed to name an indispensable party . . . .” (ECF No. 18 at PageID 117.) Defendant also avers that Plaintiff’s two claims fail under the balance of factors. (Id. at PageID 121–31.) The Court assesses these arguments in turn under each factor. A. Whether Plaintiff Has a Strong Likelihood of Success on the Merits 1. Applicable Law “In order to establish a likelihood of success on the merits of a claim, a plaintiff must show more than a mere possibility of success.” Six Clinics Holding Corp., II v. Cafcomp Sys., 119 F.3d 393, 402 (6th Cir. 1997); see Mason County Med. Ass’n v. Knebel, 563 F.2d 256, 261 n.4 (6th Cir. 1977). “[T]he Sixth Circuit permits a district court, in its discretion, to grant a preliminary injunction or temporary restraining order ‘even where the plaintiff fails to show a strong or substantial probability of ultimate success on the merits of his claim, but where he at least shows serious questions going to the merits and irreparable harm which decidedly outweighs any potential harm to the defendant if an injunction is issued.” Ever-Seal, Inc. v. Halferty, No. 3:22- cv-00082, 2022 WL 418692, at *10–11 (M.D. Tenn. 2022) (quoting Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 105 (6th Cir. 1982) (emphasis added). Nevertheless, “the movant is always required to demonstrate more than the mere ‘possibility’ of success on the merits,” Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991) (quoting Knebel, 563 F.2d at 261 n. 4), and a district court must make “specific findings of irreparable injury[.]” Halferty, 2022 WL 418692, at *11–12 (quoting Friendship Materials, 679 F.2d at 105) (emphasis added). 2. Breach of Contract and Tortious Interference Claims Courts in Tennessee have clearly articulated the elements required to state a claim for breach of contract under state law. “To establish a [claim for] breach of contract, a plaintiff must 5 Case 2:22-cv-02253-MSN-cgc Document 24 Filed 05/12/22 Page 6 of 19 PageID 172 show (1) the existence of an enforceable contract, (2) non-performance amounting to a breach of the contract, and (3) damages caused by the breached contract.” Great Am. Opportunities, Inc. v. Cherry Bros., LLC, No. 3:17-CV-01022, 2019 WL 632670, at *8 (M.D. Tenn. 2019); Bridgestone Am.’s Inc. v. Int’l Bus. Machines Corp., 172 F. Supp. 3d 1007, 1019 (M.D. Tenn. 2016); see Halferty, 2022 WL 418692, at *12. To prevail on a tortious interference claim, a plaintiff must show the following elements: “(1) an existing business relationship with specific third parties or a prospective relationship with an identifiable class of third persons; (2) the defendant’s knowledge of that relationship and not a mere awareness of the plaintiff’s business dealings with others in general; (3) the defendant’s intent to cause the breach or termination of the business relationship; (4) the defendant’s improper motive or improper means; and finally, (5) damages resulting from the tortious interference.” Moore-Pennoyer v. State, 515 S.W.3d 271 (Tenn. 2017) (quoting Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 701 (Tenn. 2002 . Turning first to the breach of contract claim, Plaintiff asserts that Defendant breached the Noncompete Agreement by hiring, and continuing to employ, Defendant Favre. (ECF No. 2-1 at PageID 42.) It also argues that the Noncompete Agreement safeguards protectable business interests, which concern: (a) “customer relationships and related information”; (b) “employment and client relationships”; and (c) opportunistic disintermediation.3 (ECF No. 2-1 at PageID 43– 44.) Finally, Plaintiff maintains that the Noncompete Agreement is reasonable in scope under Tennessee law and that Defendant Favre “continues to be in breach” of that Agreement “to this day,” all of which demonstrates a high likelihood of success on the merits. (Id. at PageID 48–50.) 3 Opportunistic disintermediation has been defined by Tennessee courts as “either the improper elimination of the staffing agency as the ‘middle man’ or the appropriation of the staffing agency’s services without proper compensation.” Columbus Med. Servs., LLC v. David Thomas & Liberty Healthcare Corp., 308 S.W.3d 368, 386 (Tenn. Ct. App. 2009). 6 Case 2:22-cv-02253-MSN-cgc Document 24 Filed 05/12/22 Page 7 of 19 PageID 173 Defendant responds with an Affidavit from Davorise Allen (“Mr. Allen”), Maintenance and Facility Manager for PMC Biogenix, that explains to the extent Plaintiff had a servicer relationship with a PMC entity before November 3, 2021, it worked with PMC Biogenix and not PMC Group N.A. (ECF No. 18-1 at PageID 134–36.) Mr. Allen further submits that he did not offer to employ Defendant Favre at PMC Biogenix, does not intend to extend one, and is unaware of any PMC Biogenix employee who has made such an offer. (Id. at PageID 135.) Additionally, Defendant argues that Plaintiff’s breach of contract claim cannot succeed on the merits because “the unambiguous language of the noncompete agreement demonstrates that it does not apply,” and Plaintiff has not actively conducted business with PMC Biogenix since before November 3, 2021. (ECF No. 18 at PageID 121, 123.) Next, Defendant avers that Plaintiff does not have a legitimate protectable business interest because Defendant Favre received general — rather than unique — occupational training from Plaintiff and was hired as a “lead industrial maintenance technician,” which implies he had a reservoir of knowledge before Plaintiff began to train him. (Id. at PageID 127.) Finally, Defendant maintains that Plaintiff did not suffer opportunistic disintermediation because there has “been no appropriation of Plaintiff’s services without proper compensation” since “none of Plaintiff’s employees have left Plaintiff to work for PMC Biogenix.” (Id. at PageID 129.) Here, and initially, Plaintiff has not proved that it sued the correct PMC entity. Leary, 228 F.3d at 739 (burden on the movant to show why it is entitled to injunctive relief.) Although Plaintiff submits in its Verified Complaint that PMC Biogenix is a “wholly owned subsidiary” of the named Defendant, PMC Group N.A., the record is at best unclear as to this relationship.4 (ECF 4 Plaintiff mentions that it “originally sent its cease and desist letters to PMC Biogenix, Inc. The only response Stinson’s received to those letters was from in-house counsel at PMC Group, N.A.” (ECF No. 17 at PageID 110.) Accordingly, the Court surmises, Plaintiff acted on its good-faith assumption that PMC Biogenix is a legal subsidiary of PMC Group N.A.; indeed, 7 Case 2:22-cv-02253-MSN-cgc Document 24 Filed 05/12/22 Page 8 of 19 PageID 174 No. 1 at PageID 2; ECF No. 17 at PageID 110.) In fact, the documents suggest the opposite conclusion because: (a) all invoices were billed to PMC Biogenix without mentioning PMC Group N.A., (ECF No. 1-7); (b) Plaintiff’s email correspondence from Mr. Matthew Moore (“Mr. Moore”) discusses “Stinson Industrial’s perspective on our relationship with PMC Biogenix,” also without mentioning PMC Group N.A., (ECF No. 1-6 at PageID 27); (c) Mr. Moore texted Mr. Allen, who confirmed via affidavit that he is “not an employee of PMC Group N.A. [and lacks] authority to bind PMC Group, N.A. in any way,” (ECF No. 18-1 at PageID 133), to discontinue Plaintiff’s relationship with PMC Biogenix5; and, of less significance than the foregoing, (d) PMC Biogenix has a Memphis, Tennessee business address, (ECF No. 1-7 at PageID 30), distinguishable from the Mt. Laurel, New Jersey address Plaintiff assigns to PMC Group N.A. Plaintiff sued PMC Group, N.A. “based upon” this information. (Id.) While the Court recognizes that allegations presented in a Verified Complaint deserve equal weight to assertions in an affidavit under Fed. R. Civ. P. 65(b), here, and contrary to the Verified Complaint, Mr. Allen’s affidavit pointedly disputes that PMC Group, N.A. influences hiring decisions at PMC Biogenix. (ECF No. 18-1 at PageID 134.) Consequently, the Court does not accept either assertion at face value and looks elsewhere in the record to discern information that corroborates one portrayal over the other. Upon review, the Court notes that Plaintiff did not file the letters and responses referenced in the Verified Complaint as exhibits; thus, the Court cannot independently validate Plaintiff’s position that PMC Group N.A. is actually “directing Aerotek to hire Stinson’s employees” and reassigning them to PMC Biogenix. (ECF No. 17 at PageID 109.) Without access to the “information known to Stinson’s at the time of filing the Verified Complaint and Emergency Motion,” the Court is unclear on the specific facts that underlie Plaintiff’s Verified Complaint, as required by Rule 65(b). (Id. at PageID 110.) Plaintiff bears the burden to show why it is entitled to injunctive relief — an extraordinary remedy. See Detroit Will Breathe, 484 F. Supp. 3d at 515; Overstreet, 305 F.3d at 573. Therefore, whether PMC Group N.A. and PMC Biogenix are in fact “substantively legally related” for purposes of personal jurisdiction remains unclear at this juncture and the Court will not draw conclusions based on correspondences it has not reviewed. See Hardaway v, Quince Nursing & Rehab. Ctr., LLC, No. 2:19-cv-2464, 2020 WL 4106440, at *7 (W.D. Tenn. July 2020), reconsideration denied, 2020 WL 4507327 (W.D. Tenn. Aug. 2020). 5 If PMC Group N.A. truly controls PMC Biogenix, and Plaintiff’s relationship was — as alleged — with PMC Group N.A., the Court finds it at least peculiar that Mr. Moore contacted Mr. Allen (twice) when Mr. Allen lacks any authority to bind PMC Group N.A. and all invoices billed by Plaintiff were paid in full by PMC Biogenix. (See ECF No. 18-1 at PageID 133.) 8 Case 2:22-cv-02253-MSN-cgc Document 24 Filed 05/12/22 Page 9 of 19 PageID 175 (ECF No. 1 at PageID 1.) These facts taken together, combined with Mr. Allen’s affidavit denying any affiliation with PMC Group N.A., undermine Plaintiff’s yet uncorroborated assumption that PMC Group N.A. directs employment practices at PMC Biogenix.6 Therefore, the Court concludes that Plaintiff has not shown a likelihood of success on the merits against the named Defendant PMC Group N.A. sufficient to warrant a TRO as to its breach of contract claim.7 However, even if the Court could be certain that Plaintiff sued the proper PMC entity, Plaintiff’s breach of contract claim does not have a high likelihood of success on the merits. Initially, the plain language of the Noncompete Agreement provides that Defendant Farve “shall not . . . accept employment from another business that is in any manner similar to, or in competition with, Stinson’s . . . and which operates in a facility in which Stinson’s already 6 Defendant’s position is, as it has always been, that “PMC Group has no relationship with Plaintiff.” (ECF No. 18 at PageID 114) (emphasis in original). Plaintiff argues that “Stinson’s has a basis to believe that PMC is actually directing Aerotek to hire Stinson’s employees and assign them to Stinson’s.” (ECF No. 17 at PageID 109.) This statement is “based on numerous conversations Stinson’s representatives had with PMC representatives where PMC representatives were entirely dismissive of Stinson’s concerns of PMC’s poaching . . . .” (Id.) However, whether Plaintiff here refers to PMC Biogenix or PMC Group N.A. as “PMC” remains unclear from the supplemental brief, (id.); moreover, the context for the conversations, the identities of these representatives, their positions at PMC and Stinson’s — let alone sworn affidavits by them — have not been tendered by Plaintiff. While the Court notes that Plaintiff need only present “serious questions going to the merits” at this stage, it cannot ignore ambiguities that render what any such questions could be asking indeterminable. Halferty, 2022 WL 418692, at *11–12. For example, the Court cannot determine with any certainty from the pleadings which PMC entity — the Defendant or a nonparty — Plaintiff refers to as “PMC” in its brief because PMC Biogenix is listed on all invoices and correspondences but PMC Group N.A. is the named Defendant. 7 The parties also dispute whether Plaintiff neglected to join Aerotek as an indispensable party. (ECF No. 18 at PageID 119–20; ECF No. 17 at PageID 109–110.) Plaintiff attempts to walk a fine line because the Verified Complaint submits its employees have been “approached by PMC’s staffing agency for placement at PMC,” (ECF No. 1 at PageID 5), and Mr. Moore identifies this agency as Aerotek in his email. (ECF No. 1-6 at PageID 27.) Defendant argues that this information indicates Aerotek employs Defendant Favre and that an injunction against PMC Group N.A. would therefore not enjoin any breach of the Noncompete Agreement. (ECF No. 18 at PageID 119–20.) 9 Case 2:22-cv-02253-MSN-cgc Document 24 Filed 05/12/22 Page 10 of 19 PageID 176 conducts business for a period of one (1) year.”8 (ECF No. 1-4 at PageID 20) (emphasis added). As Defendant aptly points out, this present-tense language reappears in the subsequent paragraph: “. . . the Employee shall be regarded as engaging in a ‘business in any manner similar to or in competition with Stinson’s if . . . [he] engages in any functions typically involved in facility maintenance . . . within a facility in which Stinson’s already conducts business.”9 (Id.) In Tennessee, where “the contractual language is clear and unambiguous, the literal meaning controls; however, if the words are ambiguous, i.e., susceptible to more than one reasonable interpretation, the parties’ intent cannot be determined by a literal interpretation of the language.” Allmand v. Pavletic, 292 S.W.3d 618, 630 (Tenn. 2009) (citing Allstate Ins. Co. v. Watson, 195 S.W.3d 609, 611 (Tenn. 2006 (emphasis added). Here, the Noncompete Agreement has been drafted in present tense to preclude Plaintiff’s employees from accepting employment with entities that presently conduct business with Plaintiff. The Court adopts this reading, as proffered by Defendant, for two reasons. First, to construe this language as preventing Plaintiff’s employees from engaging in facilities maintenance for businesses where Plaintiff does not presently conduct business expands the scope of the provision beyond reasonable limits. Whereas interpreting the clause by its plain meaning to include only those enterprises already conducting business with Plaintiff limits the clause to contemplate certain 8 The Court accepts Plaintiff’s legal assertion that Tennessee courts have found one-year noncompetition timeframes reasonable. See Dearborn v. Chem. Co. v. Rhodes, 1985 Tenn. App. LEXIS 2809, at *7 (Tenn. Ct. App. 1985) (“The time limitation as we construe it is one year and this limitation appears reasonable under the circumstances.”); Crain v. Kesterson Food Co., No. 02A01-9302-CH-00041, 1994 Tenn. App. LEXIS 65 (Tenn. Ct. App. 1994). 9 The repetition of this phrase militates in favor of reading the contract narrowly because, under Tennessee law, “courts must construe all contractual terms harmoniously” and each “individual provision ‘must be interpreted in the context of the entire contract.’” Beijing Fito Med. Co. v. Wright Med. Tech., Inc., 763 F. App’x 388, 392 (6th Cir. 2019) (quoting D&E Constr. Co., Inc. v. Robert J. Denley Co., 38 S.W.3d 513, 518–19 (Tenn. 2001). 10 Case 2:22-cv-02253-MSN-cgc Document 24 Filed 05/12/22 Page 11 of 19 PageID 177 ascertainable facilities, a broader interpretation would expand its scope to include an indefinite number of maintenance companies that are not presently conducting business with Plaintiff. Put differently, such a sweeping interpretation renders the geographic scope of the clause unknown despite that, “[t]o be enforceable, the restriction must not be overly broad in its territorial scope . . . .” Baker v. Hooper, No. 03A01-9707-CV-00280, 1998 WL 608285, at *15 (Tenn. Ct. App. 1998); Dabora, Inc. v. Kline, 884 S.W.2d 475, 478 (Tenn. Ct. App. 1994). Thus, anything broader than what Plaintiff repeatedly describes as an “overly technical” interpretation of the Noncompete Agreement would extend the provision’s territorial scope to an unascertainable number of entities — a sphere far “greater than necessary to protect the business interest of the employer.”10 Murfreesboro Med. Clinic, P.A. v. Udom, 166 S.W.3d 674, 678 (Tenn. 2005) (citing Allright Auto Parts v. Berry, 409 S.W.2d 361, 363 (Tenn. 1966 ; (ECF No. 17 at PageID 106.) The second reason the Court prefers to read the Noncompete Agreement narrowly relates to Plaintiff’s proposed reading of the same.11 Plaintiff argues that its decision to cut ties with 10 That “Stinson’s offered to assist Favre with finding employment at a plant other than PMC, so that he would not violate his Noncompete Agreement” introduces a fresh wrinkle to the interpretive analysis because it presumes new employment at certain maintenance plants falls outside the scope of the Agreement whereas new employment at PMC falls within it. (ECF No. 1 at PageID 5.) However, the Court cannot discern from the clause at issue any limitation besides the one that prohibits an employee from accepting employment at a “facility in which Stinson’s already conducts business” within one-year after departure from Stinson’s. (ECF No. 1-4 at PageID 20.) Should the Court reject this limitation as “overly technical,” as Plaintiff requests, without a clear alternative, it would risk endorsing a noncompete provision with “overbroad” territorial limits not limited to a specific and well-defined group of persons or entities. Hooper, 1998 WL 608285, at *15; (ECF No. 17 at PageID 106.) Absent greater specificity, and mindful that, “[i]n Tennessee, one of the most significant factors to be considered when determining the reasonableness of a covenant not to compete is ‘whether the territorial limitations in the covenant are reasonable,’” the Court cannot accept Plaintiff’s argument. J.T. Shannon Lumber Co. v. Barrett, No. 2:07-cv-2847-JPM-cgc, 2010 WL 3069818, at *30 (W.D. Tenn. 2010) (quoting Columbus Med. Servs, 308 S.W.3d 368 at 383–84 (emphasis added). 11 Plaintiff’s citation to the Tennessee Supreme Court’s decision in Columbus Med. Servs. for the proposition that a noncompete agreement may be enforceable despite defendants’ inability to harm the plaintiff any longer misses the mark for several reasons. 308 S.W.3d 368. First, the 11 Case 2:22-cv-02253-MSN-cgc Document 24 Filed 05/12/22 Page 12 of 19 PageID 178 “PMC”12 on November 3, 2021 was made under duress “because of PMC’s efforts to poach Stinson’s employees . . .” and “[t]o read the Noncompete Agreement otherwise would allow PMC . . . to knowingly violate the spirit of Stinson’s Noncompete Agreement with its employees by severing ties and raiding their employees the very next day.” (ECF No. 17 at PageID 105–07.) However, assuming for the moment that this statement is true, nothing prevented Plaintiff from seeking a TRO before or immediately after it was allegedly “induce[d]” to suspend its relationship with PMC Biogenix on November 3, 2021. (Id.) Instead, Plaintiff waited until April 21, 2022 — in effect, allowing the alleged poaching to continue for nearly six months — to seek emergency relief for an alleged violation of the “spirit” of its Noncompete Agreement after Defendant Favre quit in February 2022. (Id.) Tu quoque aside,13 Plaintiff has not offered any concrete alternative portion of the decision cited addresses whether the plaintiff had a protectable business interest under a noncompete agreement, but here the Court is deciding a threshold question: whether the Noncompete Agreement extends to companies with which Plaintiff no longer “conducts” business. Second, the specific language of the Noncompete Agreement at issue here — Defendant Favre “shall not engage in . . . employment with another business that . . . operates in a facility in which Stinson’s already conducts business,” (ECF No. 1-4 at PageID 20) — varies in tense and scope from the agreement in Columbus Med. Servs., which provided only that the “employee shall not directly or indirectly solicit business from, or agree to provide services to facility.” 308 S.W.3d at 373. In sum, Columbus Med. Servs. is inapposite because the immediate issue is not whether Plaintiff has a protectable business interest under its Noncompete Agreement, but whether the Noncompete Agreement applied to the named Defendant at all at the time of the alleged breach. 12 Based on Mr. Moore’s email and text message, the Court understands “PMC” in this context to mean PMC Biogenix. (ECF No. 1-6.) 13 Rather than directly address Defendant’s argument about the repeated present tense language (“already conducts”) in the Noncompete Agreement, (ECF No. 1-4 at PageID 20), Plaintiff attempts to divert the Court’s attention away from the interpretive question before it and towards the alleged misconduct that presumably forced it to cut ties with PMC Biogenix. (ECF No. 17 at PageID 107.) Plaintiff maintains that Defendant’s alleged misconduct, coupled with a textual reading of the Noncompete Agreement, offends the spirit of the document. (Id.) But the Court may adjudicate only cases and controversies in law. To pontificate about or, worse, draw legal conclusions that favor, a contract provision’s “spirit” at the expense of its uncontested written language would constitute a yet groundbreaking nadir in judicial activism. Beijing Fito, 763 F. App’x at 394 (quoting Lamar Advert. Co. v. By-Pass Partners, 313 S.W.3d 779, 791 (Tenn. Ct. App. 2009 (“When interpreting the contract, the court must ‘look to the language of the 12 Case 2:22-cv-02253-MSN-cgc Document 24 Filed 05/12/22 Page 13 of 19 PageID 179 interpretation of the Noncompete Agreement’s plain language for the Court to compare to Defendant’s position.14 Therefore, the Court adopts Defendant’s interpretation of the clause at issue, rendering any argument by Plaintiff that Defendant or PMC Biogenix breached the Noncompete Agreement unlikely to succeed on the merits because Plaintiff and PMC Biogenix were not conducting business when Mr. Favre allegedly accepted employment with Defendant.15 Turning to the tortious interference claim, the first element strongly suggests Plaintiff has a low chance of success on the merits. This conclusion is appropriate for two reasons. First, the foregoing analysis precludes the Court from finding “an existing business relationship” between Plaintiff and Defendant PMC Group N.A., as opposed to PMC Biogenix as suggested by Plaintiff’s docketed invoices. Trau-Med of Am., Inc., 71 S.W.3d at 701. (See ECF No. 1-7.) Second, even if such a relationship did at some point exist, nothing suggests that PMC Biogenix, assuming for instrument and to the intention of the parties, and impose a construction which is fair and reasonable.’”) 14 Notably, Mr. Allen denies that he or anyone he knows at PMC Biogenix offered Defendant Farve a job with that entity. (ECF No. 18-1 at PageID 135.) Plaintiff has merely alleged in its Verified Complaint that Defendant Favre accepted employment with a PMC entity but has not provided an affidavit from anyone familiar with such employment to corroborate the same — which would be helpful here, notwithstanding the verified nature of the complaint, because Mr. Allen’s affidavit pointedly contradicts Plaintiff’s assertion. Moreover, Plaintiff has the burden to show that the specific “words” cited by Defendant in the Noncompete Agreement at issue are “susceptible to more than one reasonable interpretation.” Allmand, 292 S.W.3d at 630. Here, no alternative reading has been argued. 15 The Court need not explore whether Plaintiff has a protectable business interest under the Noncompete Agreement because it has found Plaintiff unlikely to succeed on the merits that the Agreement applied at the time of the alleged breach in February 2022. Since the “literal meaning” of the Noncompete Agreement’s terms reveals that it is unlikely that the Agreement was in effect at the time Defendant Favre allegedly violated it, the nature of any business interests protected thereunder is immaterial to the success of the claim. Allmand, 292 S.W.3d at 630 (emphasis added). Put differently, Plaintiff’s chance of success on the merits does not increase with protectable business interests under the Noncompete Agreement when it is unlikely that the Agreement was operative at the time the alleged breach occurred. 13 Case 2:22-cv-02253-MSN-cgc Document 24 Filed 05/12/22 Page 14 of 19 PageID 180 the moment that it is a legally cognizable subsidiary of PMC Group N.A., was “a facility with which Stinson’s already conducts business”16 after November 3, 2021 when Plaintiff cut ties with PMC Biogenix. (ECF No. 1-4 at PageID 20; ECF No. 1-6 at PageID 27–28.) (emphasis added.) Therefore, the first element does not favor Plaintiff’s chances of success on the merits of this claim. The remaining factors do not counteract the conclusion reached on the first one because nothing suggests that named Defendant PMC Group N.A. “intended to cause the breach or termination of the business relationship” by “improper motive or improper means” when it allegedly hired Plaintiff’s employees after Plaintiff severed its relationship with PMC Biogenix. Trau-Med of Am., Inc., 71 S.W.3d at 701. Still, Plaintiff submits that it is likely to succeed on its tortious interference claim because “at least four other employees of Stinson’s, including but not limited to, Jarvis Smith, Anthony “Buddy” Aswell, Ospicio Linares, and Hugo Abundis, have been approached by PMC and/or PMC’s staffing agency to resign their employment with Stinson’s and accept placement at PMC.” (ECF No. 2-1 at PageID 51.) However, this argument falls short for a few reasons. Initially, and as previously discussed, the documents in the record indicate that if these individuals were approached by a PMC entity at all, that entity was PMC Biogenix or Aerotek and not the named Defendant PMC Group N.A. (See ECF Nos. 1-4, 1-6, 1-7.) Next, and relatedly, Plaintiff only halfheartedly commits to its claim that a PMC entity in fact employs Defendant Favre in its supplemental brief.17 (ECF No. 17 at PageID 109.) Plaintiff’s assumption 16 Had the language instead been “already conducted,” this result may have been different. 17 Time and again, Plaintiff all but explicitly concedes that Defendant Favre works for Aerotek and not a PMC entity. For example, Plaintiff writes: “Even if Aerotek is the technical employer of Favre, Aerotek has assigned Favre to work at PMC, and that is likely because PMC requested that he be assigned there”; “PMC should not be permitted to hide behind the actions of Aerotek and mere technicalities in its clear attempt to induce the breach . . . while Favre may be an employee of Aerotek, PMC may be a joint employer.” (ECF No. 17 at PageID 109–10) (emphasis added). The Court notes a few important observations regarding this argument: first, nothing in the record except the Verified Complaint suggests Defendant Favre works for a PMC 14 Case 2:22-cv-02253-MSN-cgc Document 24 Filed 05/12/22 Page 15 of 19 PageID 181 is a bridge too far. Without more “specific facts” in the Verified Complaint, it is unclear to the Court at this time which entity, of those mentioned or otherwise, technically employs Defendant Favre and could be enjoined.18 Detroit Will Breathe, 484 F. Supp. 3d at 515. Therefore, the Court cannot find Plaintiff has a high chance of success on the merits with its tortious interference claim. B. Whether Plaintiff Will Suffer Irreparable Harm Absent Injunctive Relief 1. Applicable Law The Sixth Circuit has described the irreparable harm factor as “indispensable” because “if entity; second, Mr. Allen testified to this Court that Defendant Favre does not work for PMC Biogenix; third, a TRO that enjoins PMC Group N.A. would be ineffectual if Aerotek is in fact Defendant Favre’s employer because the Court cannot, for hopefully obvious reasons, enjoin a nonparty absent a special finding. In re NAACP, Special Contribution Fund, 849 F.2d 1473, (6th Cir. 1988) (“a non-party is not bound by an injunction pursuant to Rule 65 until a finding is made in a proceeding in which it is a party that the requisites are indeed present. As no such proceeding occurred here, Rule 65 cannot be used as a vehicle for asserting jurisdiction in the present case.”); see Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110 (1969); Regal Knitwear Co. v. NLRB, 324 U.S. 9 (1945). Should this Court act without clear personal jurisdiction, any judgment or order it renders is void. See Stoll v. Gottlieb, 305 U.S. 165, 176 (1938). Moreover, nothing in the record suggests PMC and Aerotek “joint[ly]” employ Defendant Favre. (ECF No. 17 at PageID 109–10.) 18 Plaintiff’s perennial argument that, absent a TRO, PMC Group N.A. would be permitted to “hide behind . . . mere technicalities” is not well taken. (ECF No. 17 at PageID 109.) “Technicalities,” so to speak, justify litigants’ decisions to hire counsel—they are the bread and butter of the legal profession. While counsel certainly need not pick the proverbial fly poop from the pepper to prevail on the merits, see Foman v. Davis, 371 U.S. 178, 181 (1962), nuanced questions of law and fact argued with reasonable diligence often drive the analysis and, in many situations, the outcome itself. Smith v. Holston Med. Group, P.C., 595 F. App’x. 474, 480 (6th Cir. 2014) (“failure to exercise reasonable diligence is no mere technicality”). So too here. First, joinder of Defendant Favre’s technical employer is essential to ensure that any injunctive relief effectively prohibits any further harm to the movant. Second, although Plaintiff assumes “PMC is in the best position to stop Aerotek from doing engaging [sic] in such behavior because PMC is the entity with the business relationship with Stinson’s,” the Court remains unclear on: (a) whether Plaintiff refers to PMC Group N.A. or PMC Biogenix, (b) whether PMC Group N.A., that Plaintiff seeks to enjoin, has a relationship with Aerotek at all, and (c) whether the nature of the purported business relationship between whichever PMC entity and Aerotek is one that actually puts PMC Group N.A. in the “best position” to ensure compliance with a Court order. Finally, it seems to the Court that an injunction binding Aerotek would be more effective than one issued to bind either or both PMC entities in hopes that said entity would direct Aerotek to comply. Therefore, the Court soundly rejects Plaintiff’s argument on this point. 15 Case 2:22-cv-02253-MSN-cgc Document 24 Filed 05/12/22 Page 16 of 19 PageID 182 the plaintiff isn’t facing imminent and irreparable injury, there’s no need to grant relief now as opposed to at the end of the lawsuit.” See Sumner Cty. Schs., 942 F.3d at 327; see also Friendship Materials, 679 F.2d at 102–04. Indeed, “the existence of an irreparable injury is mandatory for a TRO to be issued.” Halferty, 2022 WL 418692, at *11 (citing Id. at 326–27.) “[A] district court is ‘well within its province’ when it denies a preliminary injunction based solely on the lack of an irreparable injury.” Sumner Cty. Schs., 942 F.3d at 327 (citing S. Milk Sales, Inc. v. Martin, 924 F.2d 98, 103 (6th Cir. 1991 . “To merit a preliminary injunction, an injury ‘must be both certain and immediate,’ not ‘speculative or theoretical.’” Id. at 327 (citing Griepentrog, 945 F.2d at 154). “A party seeking an injunction from a federal court must invariably show that it does not have an adequate remedy at law.” N. Cal. Power Agency v. Grace Geothermal Corp., 469 U.S. 1306, 1306 (1984) (citing Hillborough v. Cromwell, 326 U.S. 620, 622 (1946 . “A plaintiff’s harm from the denial of a preliminary injunction is irreparable if it is not fully compensable by monetary damages.” Overstreet, 305 F.3d at 578. “However, an injury is not fully compensable by money damages if the nature of the plaintiff's loss would make the damages difficult to calculate.” Basicomputer Corp. v. Scott, 973 F.2d 507, 511 (6th Cir. 1992) (citing Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 386 (7th Cir. 1984 . Nevertheless, “[m]ere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough” to show irreparable harm. Sampson v. Murray, 415 U.S. 61, 90 (1974). The Court addresses Plaintiff’s breach of contract and tortious interference claims together because the alleged harm derives equally from both claims. Plaintiff alleges that it suffers, and will continue to suffer absent injunctive relief, harm from (a) lost customer goodwill, (b) lost revenue, and (c) potential loss of additional employees. (ECF No. 2-1 at PageID 52–53.) Defendant responds that the record includes no evidence that (a) Defendant poached, or continues 16 Case 2:22-cv-02253-MSN-cgc Document 24 Filed 05/12/22 Page 17 of 19 PageID 183 to poach, Plaintiff’s employees, (b) Plaintiff suffered economic losses, and (c) Plaintiff refuses to join necessary parties and brought this lawsuit approximately two years after the alleged harm began. (ECF No. 18 at PageID 130.) Here, the Court accepts that “[t]he loss of customer goodwill often amounts to irreparable injury because the damages flowing from such losses are difficult to compute.” Basicomputor Corp., 973 F.3d at 512. However, Plaintiff has not identified any facts in the record that indicate a loss of customer goodwill. Plaintiff’s burden to allege facts that indicate this type of loss is not onerous, and the Sixth Circuit has recognized it can be met where a plaintiff can show “[t]he loss of a product which is unique.” Tri-Cty. Wholesale Distrib., Inc. v. Wine Grp., Inc., 565 F. App’x 477, 483 (6th Cir. 2012); Southern Glazer’s Distribs. of Ohio, LLC v. Great Lakes Brewing Co., 860 F.3d 844, 852 (6th Cir. 2017) (loss of customer goodwill where distributor “loses a unique product like Great Lakes’ craft beers.”) Applying this standard, Plaintiff has not shown that it provides unique training to its employees that would trigger a loss of customer goodwill under the law it cites.19 However, even if such a showing had been made, this lawsuit’s timing weighs decidedly against a finding of irreparable harm. First, Plaintiff, by its own admission, waited over two years to seek injunctive relief despite its allegation that it suffered irreparable harm from Defendant’s alleged employee- poaching efforts. (ECF No. 1 at PageID 5.) Although, “[a]n unreasonable delay in filing for injunctive relief will weigh against a finding of irreparable harm,” Huron Mountain Club v. U.S. Army Corps of Eng’rs, 545 F. App’x 390, 397 (6th Cir. 2013) (quoting Allied Erecting & 19 Defendant aptly points out that Mr. Moore argues Plaintiff has “too many other opportunities to pursue where Stinson’s Industrial is valued for their partnerships.” (ECF No. 1-6 at PageID 28; ECF No. 18 at PageID 130.) That Plaintiff claims to have suffered harm since “PMC began its [poaching] efforts . . . approximately two years ago” and yet still has “too many opportunities to pursue” proves puzzling and weighs against a finding of irreparable harm. (Id.; ECF No. 1 at PageID 5.) 17 Case 2:22-cv-02253-MSN-cgc Document 24 Filed 05/12/22 Page 18 of 19 PageID 184 Dismantling Co. v. Genesis Equip. & Mfg., Inc., 511 F. App’x 398, 405 (6th Cir. 2013), “[a]ll delays in seeking injunctive relief are not unreasonable” and the reasonableness determination is a “factual determination made by the district court.” York Risk Servs. Grp. v. Couture, 787 F. App’x 301, 309 (6th Cir. 2019). It is important to remember that Plaintiff seeks a TRO in an emergency motion. Yet, nothing can explain why the emergency was triggered in April 2022 and not when the alleged poaching scheme commenced two years ago—particularly when the alleged irreparable harm would have started then. The Court finds a two-year delay unreasonable under these circumstances because Plaintiff has (a) not shown any employees that it definitively lost in the past two years to Defendant’s alleged poaching efforts,20 (b) any lost revenue from cutting ties from PMC Biogenix that are not directly attributable to Plaintiff’s decision to cut ties with that entity on November 3, 2022, and (c) for reasons unknown has elected not to join Aerotek as a party to this lawsuit despite recognizing it as the staffing agency PMC Biogenix uses to hire maintenance employees.21 (ECF No. 1-6 at PageID 27.) Were the harm in fact as grave as Plaintiff intimates, the Court cannot divine why Plaintiff chose to wait so long to move for a TRO. Therefore, the Court finds that the irreparable harm factor weighs decidedly against Plaintiff as to both claims at this stage in the litigation. 20 Plaintiff expresses fears that it will lose certain employees to Defendant, however it does not provide any reason why these employees, or others like them, have not already left Plaintiff for a PMC entity during the last two years. (ECF No. 2-1 at PageID 53.) The Court has not had the opportunity to review any affidavits from Plaintiff’s employees that corroborate the assertion that a PMC entity approached them—a stark omission considering Mr. Allen’s affidavit provides that PMC Biogenix representatives never approached a Stinson’s employee for hire. (ECF No. 18-1 at PageID 136.) 21 Interestingly, and as a simple observation without more, the Court understands from the pleadings that “PMC Biogenix is a separate legal entity, with its principal place of business being 1231 Pope Street in Memphis, Tennessee.” (ECF No. 18 at PageID 114.) Thus, if true, joining PMC Biogenix as a party defendant would destroy complete diversity, which would impact this Court’s jurisdiction. See 28 U.S.C. § 1332(a)(1). Aerotek’s citizenship remains unknown at this time and could, at least conceivably, present a similar issue. 18 Case 2:22-cv-02253-MSN-cgc Document 24 Filed 05/12/22 Page 19 of 19 PageID 185 C. Whether a TRO Causes Substantial Harm to Others and Serves the Public Interest Under the circumstances of this case, these two factors weigh the least in the Court’s analysis because the first two factors preclude injunctive relief on their own. See Halferty, 2022 WL 418692, at *11 (“the existence of an irreparable injury is mandatory for a TRO to be issued.”) Nevertheless, it is worth noting that injunctive relief in this instance could harm third parties not yet joined to this lawsuit, namely Aerotek and PMC Biogenix, because they would be compelled to comply with an order that never contemplated their interests (if any) at all; the Court will not speculate about what their interests might be (or assume they are uninterested). Finally, the public interest would not be served should the Court decide to enjoin the activities of nonparties and, contrary to Tennessee law, enforce the “spirit” — rather than the letter — of the Noncompete Agreement, particularly when such agreements are generally disfavored in Tennessee. See Columbus Med. Servs., 308 S.W.3d at 384; Great Am. Opportunities, Inc. v. Cherry Bros., LLC, No. 3:17-cv-1022, 2018 WL 418567, at *18 (M.D. Tenn. 2018) (quoting Murfreesboro Med. Clinic, P.A., 166 S.W.3d at 678) (“In general, covenants not to compete are disfavored in Tennessee.”) Therefore, without more, the Court concludes that preliminary injunctive relief in this matter is inappropriate. CONCLUSION For the foregoing reasons, and having fully considered the applicable discretionary factors and governing law, the Court declines to issue the preliminary injunctive relief requested. Therefore, Plaintiff’s Motion is DENIED. (ECF No. 2.) IT IS SO ORDERED this 12th day of May, 2022. s/ Mark Norris MARK S. NORRIS UNITED STATES DISTRICT JUDGE 19
=== 20-2692 ===
Case 2:20-cv-02692-MSN-atc Document 69 Filed 11/06/20 Page 1 of 23 PageID 960 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION TIGER LILY LLC; HUNTER OAKS APARTMENTS UTAH, LLC; NORTH 22ND FLAT, LLC; CHERRY HILL GARDENS LLC; CHURCHILL TOWNHOMES LLC; BRITTANY RAILEY; and APPLEWOOD PROPERTY MANAGEMENT, LLC, Plaintiffs, v. No: 2:20-cv-2692-MSN-atc UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT and BENJAMIN S. CARSON, M.D. in his official capacity as United States Secretary of Housing and Urban Development; UNITED STATES DEPARTMENT OF JUSTICE and WILLIAM P. BARR, in his official capacity as United States Attorney General; UNITED STATES CENTER FOR DISEASE CONTROL AND PREVENTION and NINA B. WITKOVSKY, in her official capacity as Acting Chief of Staff of the Center for Disease Control and Prevention; UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES and ALEX AZAR, in his official capacity as United States Secretary of Health and Human Services; VICE ADMIRAL JEROME M. ADAMS, M.D., in his official capacity as United States Surgeon General; and D. MICHAEL DUNAVANT, in his official capacity as United States Attorney General for the Western District of Tennessee, Defendants. ORDER DENYING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Before the Court is Plaintiffs’ Motion and Application for Emergency Hearing and Preliminary Injunction (“Preliminary Injunction Motion”) (ECF No. 12) filed September 27, 2020. Defendants responded in opposition on October 14, 2020. (ECF No. 29.) Plaintiffs Case 2:20-cv-02692-MSN-atc Document 69 Filed 11/06/20 Page 2 of 23 PageID 961 filed a reply on October 27, 2020. (ECF No. 49.) The Court held a Skype videoconference hearing on the Preliminary Injunction Motion on October 30, 2020. (ECF No. 67.) For the reasons set forth below, Plaintiffs’ Preliminary Injunction Motion is DENIED. INTRODUCTION Attorney General William Barr recently said, “the Constitution is not suspended in times of crisis. We must therefore be vigilant to ensure its protections are preserved, at the same time the public is protected.” Balancing Public Safety with the Preservation of Civil Rights, Memorandum to the Assistant Attorney General for Civil Rights and All United States Attorneys (April 27, 2020). The process of eviction, already fraught with competing considerations and difficult decisions, is made even more complex and difficult when considered through the kaleidoscopic lens of the COVID-19 pandemic. On the one hand, we must be mindful of potential risks to public health, and on the other, harm to private property rights and the separation of powers. What both concerns have in common is the need to observe and uphold the rule of law and, where implicated, our Constitution. Thus, while this is primarily a case of statutory construction, what remains to be seen is whether, absent appropriate judicial restraint, the Constitution and COVID-19 might clash. As the Sixth Circuit recently said, “[w]hile the law may take periodic naps during a pandemic, we will not let it sleep through one.” Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610, 615 (6th Cir. 2020). 2 Case 2:20-cv-02692-MSN-atc Document 69 Filed 11/06/20 Page 3 of 23 PageID 962 BACKGROUND This litigation occurs in the midst of an unprecedented time in our nation’s history. In December 2019, a novel coronavirus was first detected in Wuhan, Hubei Province, in the People’s Republic of China. Upon sequencing of the virus’s genome, it was discovered that the virus was genetically related to the coronavirus responsible for the SARS outbreak of 2003, and the International Committee for Taxonomy of Viruses then named the virus as severe acute respiratory syndrome coronavirus-2 (SARS-CoV-2). The SARS-CoV-2 virus causes a respiratory disease known as COVID-19. Individuals who contract COVID-19 may suffer from a wide variety of symptoms, including fever or chills, cough, fatigue, muscle or body aches, loss of taste or smell, sore throat, and shortness of breath or difficulty breathing. Older adults and people who have severe underlying medical conditions like heart or lung disease are at a higher risk of developing more serious complications from COVID-19. On March 11, 2020, the World Health Organization declared COVID-19 a global pandemic. On March 12, 2020, Tennessee Governor Bill Lee issued Executive Order No. 14 declaring a State of Emergency in response to the COVID-19 outbreak. On March 13, 2020, President Trump declared a national emergency for COVID-19. On March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”). Sections 4022 and 4023 of the CARES Act provided protection to those with federally-backed mortgages from foreclosures until at least August 31, 2020 and provided a right to request a mortgage forbearance for up to 180 days. 3 Case 2:20-cv-02692-MSN-atc Document 69 Filed 11/06/20 Page 4 of 23 PageID 963 Section 4024(b) of the CARES Act provided for a 120-day moratorium on eviction filings for rental units in properties that participated in federal assistance programs or had a federally backed mortgage or multifamily loan. Congress did not renew the CARES Act protections for homeowners or renters upon their expiration. On August 8, 2020, President Trump issued an executive order directing the Secretary of Health and Human Services and the Director of the Centers for Disease Control and Prevention (“CDC”) to “consider whether any measures temporarily halting residential evictions for any tenants for failure to pay rent [were] reasonably necessary to prevent the further spread of COVID-19 from one State or possession into any other State or possession.” On September 4, 2020, the CDC issued the “Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19” (“Halt Order”). 85 Fed. Reg. 55,292 (Sept. 4, 2020). The Halt Order imposes a mortarium on residential evictions of “covered persons” through December 31, 2020, “subject to further extension, modification, or rescission.” Id. at 55,296. To qualify for protection under the Halt Order as “covered persons,” tenants must submit a declaration to their landlord under penalty of perjury affirming that they meet the following seven criteria: (1) they have used best efforts to obtain government assistance to make rental payments; (2) they expect to earn less than $99,000 in annual income in 2020, were not required to pay income taxes in 2019, or qualified for a stimulus check under the CARES Act; 4 Case 2:20-cv-02692-MSN-atc Document 69 Filed 11/06/20 Page 5 of 23 PageID 964 (3) they are unable to pay full rent due to “substantial loss of household income, loss of compensable hours of work or wages, lay-offs, or extraordinary out-of-pocket medical expenses”; (4) they are using best efforts to make partial payments; (5) they would likely experience homelessness or need to move into a shared residence if evicted; (6) they understand that rent obligations still apply; and (7) they understand that the moratorium ends on December 31, 2020. Id. at 55,297. The Halt Order provides extensive background on COVID-19 and its historic threat to public health. The Halt Order notes that “[t]he virus that causes COVID-19 spreads very easily between people who are in close contact with one another (within about 6 feet), mainly through respiratory droplets produced when an infected person coughs, sneezes, or talks.” Id. at 55,293. Further, “[s]evere illness means that persons with COVID-19 may require hospitalization, intensive care, or a ventilator to help them breathe, and may be fatal.” Id. The Halt Order also makes specific findings about the use and effectiveness of eviction moratoria in the context of a pandemic, providing that such moratoria “facilitate self-isolation by people who become ill or who are at risk for severe illness from COVID-19 due to an underlying medical condition.” Id. at 55,294. Further, that eviction moratoria “allow State and local authorities to more easily implement stay-at-home and social distancing directives to mitigate the community spread of COVID-19,” and that “housing stability helps protect public health because homelessness increases the likelihood of individuals moving into close quarters in congregate settings, such as homeless shelters, which then puts individuals at higher risk to COVID-19.” Id. 5 Case 2:20-cv-02692-MSN-atc Document 69 Filed 11/06/20 Page 6 of 23 PageID 965 The Halt Order specifies that it “does not apply in any State, local, territorial, or tribal area with a moratorium on residential evictions that provides the same or greater level of public-health protection” as the requirements listed in the Halt Order. Id. The Halt Order does not relieve any individual of the obligation to pay rent, and nothing in the Halt Order prevents landlords from charging or collecting fees, penalties, or interest as a result of a failure to pay rent. Id. The Halt Order also does not preclude evictions based on a tenant, lessee, or resident: (1) engaging in criminal activity while on the premises; (2) threatening the health or safety of other residents; (3) damaging property; (4) violating any applicable building code or other similar regulations as to health and safety; or (5) violating any other contractual obligation other than the timely payment of rent. Id. The Halt Order imposes criminal penalties for those individuals and organizations that violate its provisions. Individuals could be subject to a fine of up to $250,000, one year in jail, or both, for violating the Halt Order. Id. at 55,296. Organizations could be subject to a fine of up to $500,000. Id. Plaintiffs in this matter are a group of business organizations and individuals that own and/or manage residential real property in the form of multi-family apartment complexes, duplexes, townhomes, and single-family residences located within the Western District of Tennessee. (ECF No. 21 at PageID 195, 199–200.) On September 16, 2020, Plaintiffs filed their Complaint for Declaratory Judgment and Injunctive Relief (ECF No. 1) seeking a declaratory judgment that the Halt Order violates the Constitution and for injunctive relief to 6 Case 2:20-cv-02692-MSN-atc Document 69 Filed 11/06/20 Page 7 of 23 PageID 966 prevent Defendants from enforcing the Halt Order. On September 27, 2020, Plaintiffs filed a Motion and Application for Emergency Hearing and Preliminary Injunction (ECF No. 12). On October 8, 2020, Plaintiffs filed an Amended Complaint, which presents an additional claim but seeks the same relief set forth in their original Complaint. (See ECF No. 21.) In their Preliminary Injunction Motion, Plaintiffs argue they are likely to prevail on the merits of the following claims: (1) the CDC’s action in promulgating the Halt Order is ultra vires; (2) the Halt Order violates the Takings Clause of the Fifth Amendment; (3) the Halt Order violates Plaintiffs’ rights to Substantive Due Process; (4) the Halt Order violates Plaintiffs’ rights to Procedural Due Process; (5) the Halt Order violates the Tenth Amendment; (6) the Halt Order violates the Anti-Commandeering Doctrine; (7) the Halt Order cannot preempt state law under the Supremacy Clause; (8) the Halt Order is an unlawful suspension of law; and (9) the Halt Order violates Plaintiffs’ right to access the judiciary. In their Preliminary Injunction Motion, Plaintiffs ask this court to “strike down” the Halt Order, or in the alternative, to “grant immediate injunctive relief against the Defendants to enforce any element of the Halt Order and/or to pursue any criminal or civil penalties against Plaintiffs for alleged violations of the Halt Order.” (ECF No. 12 at PageID 123.) At this time, the Court addresses only Plaintiffs’ request for preliminary injunctive relief and reserves ruling on Plaintiffs’ ultimate request for declaratory relief. 7 Case 2:20-cv-02692-MSN-atc Document 69 Filed 11/06/20 Page 8 of 23 PageID 967 DISCUSSION Before turning to the merits of the Preliminary Injunction Motion, the Court first considers two arguments asserted by Defendants that would halt Plaintiffs’ request at the Court’s door. Defendants raise two threshold arguments. The first attacks Plaintiffs’ ability to bring this case by arguing Plaintiffs lack standing. (ECF No. 29 at PageID 397–99.) The second line of attack argues that Plaintiffs have failed to join indispensable parties. (Id. at PageID 399–400.) The Court will address each in turn but finds neither persuasive. I. Plaintiffs have standing “The threshold question in every federal case is whether the court has the judicial power to entertain the suit.” Parsons v. United States Dep’t of Justice, 801 F.3d 701, 709 (6th Cir. 2015). Federal courts derive their judicial power from Article III of the Constitution. Spokeo, Inc. v. Robbins, 136 S.Ct. 1540, 1546 (2016); see also U.S. Const. art. III. This judicial power, though, is not without limit, as Article III confines the exercise of this power to disputes where an actual “case or controversy” exists. See Parsons v. United States Dep’t of Justice, 801 F.3d 701, 709–10 (6th Cir. 2015). As a bulwark in preventing the unlawful exercise of the judicial power, the party bringing suit must satisfy the “irreducible constitutional minimum” known as standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To establish standing, a party must satisfy three elements. See id. First, the party must have suffered an injury in fact. Id. Next, a causal connection must exist between the party’s injury and the alleged unlawful conduct. Id. Finally, a favorable judicial decision must be able to redress the party’s alleged injury. Id. “The party invoking federal jurisdiction bears 8 Case 2:20-cv-02692-MSN-atc Document 69 Filed 11/06/20 Page 9 of 23 PageID 968 the burden of establishing these elements.” Id. Each element of standing must be “supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Id. So, while general allegations might suffice in the beginning of proceedings, as the case progresses, the burden of proof for establishing standing becomes more exacting. Id. Defendants seek to stop Plaintiffs’ request at the door; for if Plaintiffs lack standing, the Court cannot consider their request for preliminary injunctive or declaratory relief. (ECF No. 29 at PageID 397.) See also Lujan, 504 U.S. at 559–60; United States Student Ass’n Found. v. Land, 585 F. Supp. 2d 925, 942 (E.D. Mich. 2008). Defendants seek to undermine Plaintiffs’ Amended Complaint by arguing that Plaintiffs failed to establish a causal connection between their alleged injury and the CDC’s Halt Order. (Id. at PageID 397–98.) According to its explicit terms, the Halt Order applies only to “covered persons,” i.e., those who have submitted a signed declaration. (Id. at PageID 398.) Plaintiffs failed to allege that any of their tenants have invoked the Halt Order’s protections let alone whether a tenant has even submitted a signed declaration. (Id.) Without this showing, nothing links the Halt Order to Plaintiffs’ alleged injury. (Id. at PageID 399.) In rebuttal, Plaintiffs reference allegations concerning the fact that numerous tenants have defaulted on rent and, but for the Halt Order, those tenants would face eviction. (ECF No. 49 at PageID 693–94.) Further, Plaintiffs attached affidavits to their reply brief containing sworn statements from the named Plaintiffs that each has tenants who are behind on rent that have invoked the Halt Order’s protections. (See, e.g., ECF No. 49-1 at PageID 701–05.) 9 Case 2:20-cv-02692-MSN-atc Document 69 Filed 11/06/20 Page 10 of 23 PageID 969 Turning to the merits of this argument, this case’s procedural posture influences the Court’s analysis. Notably, this matter is still in its infancy. See Lujan, 504 U.S. at 561 (stating that the evidence plaintiff must produce to establish standing becomes more stringent as the case progresses). Further, the pending motion is one for injunctive relief; meaning, Plaintiffs must show a “substantial likelihood” of success on the issue of standing. See Waskul v. Washtenaw Cty. Comm. Mental Health, 900 F.3d 250, 256 n.4 (6th Cir. 2018) (“Put simply, a party who fails to show a substantial likelihood of standing is not entitled to a preliminary injunction.”) (internal quotations omitted). The Court determines whether Plaintiffs have made a sufficient showing of standing by “analyzing the material allegations in the complaint.” Henley v. Cleveland Bd. of Educ., No. 1:10 cv 0431, 2010 WL 796835, at *2 (N.D. Ohio Mar. 3, 2010). In reading Plaintiffs’ Amended Complaint, the Court finds that Plaintiffs’ allegations establish that they have standing. Plaintiffs clearly satisfy two of the three standing requirements: the injury in fact requirement and that a favorable judicial decision can redress their harm. The injury in fact requirement ensures that Plaintiffs have a “personal stake” in the proceeding. See Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014). The injuries suffered must be “concrete and particularized” as well as “actual or imminent.” See Spokeo, Inc., 136 S.Ct. at 1548 (quoting Lujan, 504 U.S. at 560). Plaintiffs allege not only past injuries in the form of unpaid rent but an ongoing injury if the Halt Order remains in place. (ECF No. 21 at PageID 213–14.) Thus, Plaintiffs have produced evidence demonstrating injuries that 10 Case 2:20-cv-02692-MSN-atc Document 69 Filed 11/06/20 Page 11 of 23 PageID 970 are “concrete and particularized” as well as “actual or imminent.” Therefore, Plaintiffs have suffered an injury in fact. Next, Plaintiffs have established that a favorable judicial decision here will remedy their alleged injury. See Lujan, 504 U.S. at 560. If the Court enjoins the Halt Order, Plaintiffs can begin to seek evictions for tenants who have defaulted on rental payments. Accordingly, Plaintiffs have established this element of standing as well. Having satisfied two of the three elements, Plaintiffs must establish the remaining element of standing: the causal link. Defendants pinpoint this as the weak link in Plaintiffs’ standing argument. Although Plaintiffs’ pleadings are not a paragon of clarity on this issue, the Court finds that Plaintiffs have made a sufficient showing linking the CDC’s Halt Order to their alleged injury. The causal connection element requires that the injury suffered be “fairly traceable” to the defendant’s alleged unlawful action. See Lujan, 504 U.S. at 560. Plaintiffs’ Amended Complaint states that “all Plaintiffs have tenants in Units who are delinquent in the payment of rent and who would be otherwise lawfully evicted from the Units under the URLTA, but for the Halt Order.” (ECF No. 21 at PageID 213.) Further, “these tenants have not paid rent since March 2020, and now, between the CARES Act eviction moratorium and the Halt Order, will not pay rent for at least ten (10) months – allegedly subject to even further extension.” (Id.)1 Taken together, these statements establish the necessary causal link between the Halt 1. Although not necessary to the Court’s analysis here, the affidavits Plaintiffs attach to their Reply buttress the conclusion that they have standing. 11 Case 2:20-cv-02692-MSN-atc Document 69 Filed 11/06/20 Page 12 of 23 PageID 971 Order and Plaintiffs’ injury. The reasonable inference from these two statements is that Plaintiffs have tenants who have invoked the Halt Order. Moreover, the continuance of the Halt Order’s moratorium on evictions will continue to harm Plaintiffs. In other words, Plaintiffs’ alleged injury can be fairly traced back to the alleged unlawful conduct of the CDC and the Halt Order. While the Court would benefit from additional information, namely whether tenants have submitted signed declarations, the Court is satisfied that, at this stage of proceedings, Plaintiffs have made a requisite showing of standing. See Lujan, 504 U.S. at 561 (stating that plaintiff must sufficiently support standing “with the manner and degree of evidence required at the successive stages of the litigation”). II. Plaintiffs have not failed to join indispensable parties The Court now addresses Defendants’ second threshold argument: that Plaintiffs failed to join indispensable parties. Federal Rule of Civil Procedure 19 governs the required joinder of parties. To resolve this question under Rule 19, the Court undertakes a three-step process. See Keweenaw Bay Indian Cmty. v. Michigan, 11 F.3d 1341, 1345 (6th Cir. 1993). First, the Court analyzes if the omitted party is a necessary party. See Glancy v. Taubman Ctrs., Inc., 373 F.3d 656, 666 (6th Cir. 2004). Rule 19(a) sets out the criteria for when a party is necessary, stating that: A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if: (A) in that person’s absence, the court cannot accord complete relief among existing parties; or (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may: (i) as a practical matter impair or impede the person’s ability to protect the interest; or (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest. 12 Case 2:20-cv-02692-MSN-atc Document 69 Filed 11/06/20 Page 13 of 23 PageID 972 Fed. R. Civ. P. 19(a)(1). A party need satisfy only one of the above criteria to be deemed necessary. Local 670 v. International Union, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, 822 F.2d 613, 618 (6th Cir. 1987). If the omitted party is in fact necessary, the Court then looks to determine if personal jurisdiction can be exercised. Glancy, 373 F.3d at 666. If so, the party shall be joined, see Keweenaw Bay, 11 F.3d at 1345– 46, unless joinder would result in depriving the Court of subject matter jurisdiction. See Glancy, 373 F.3d at 666. If a party cannot feasibly be joined, the Court then analyzes the Rule 19(b) factors to determine if the case should be dismissed in the absence of the omitted party as the final step. Id. The Court’s analysis “is not to be applied in a rigid manner but should instead be governed by the practicalities of the individual case.” Keweenaw Bay, 11 F.3d at 1346. In another attempt to cut off Plaintiffs’ preliminary injunction request at the threshold, Defendants assert that Plaintiffs failed to join the tenants that face potential eviction if the Court were to grant the preliminary injunction. (ECF No. 29 at PageID 399.) Defendants argue that the omitted tenants undoubtedly have an interest in these proceedings, given that they face potential eviction. (Id. at PageID 400.) Further, the purported actions or inactions of these tenants underly this matter; more particularly, whether the omitted tenants submitted a declaration in order to invoke the Halt Order’s protections. (Id.) Plaintiffs push back against Defendants’ notion that the tenants are indispensable parties. (ECF No. 49 at PageID 694.) In support, Plaintiffs direct the Court to look at 13 Case 2:20-cv-02692-MSN-atc Document 69 Filed 11/06/20 Page 14 of 23 PageID 973 Defendants’ response to a third-party’s motion to intervene and the Court’s own Order addressing the third-party’s intervention.2 (Id. at PageID 694–95.) The Court starts its analysis under Rule 19 by answering the question of whether the omitted tenants are necessary parties to this action. See Glancy, 373 F.3d at 666. The Court answers that question in the negative. Therefore, the Court need not go further. See Marshall v. Navistar Int’l. Transp. Corp., 168 F.R.D. 606, 609 (E.D. Mich. 1996) (“Rule 19(a) is more than a rule of convenience and pragmatism; the rule applies only in situations necessitating joinder.”) Under Rule 19, a necessary party can fall into one of two categories. Fed. R. Civ. P. 19(a)(1)(A)–(B). If a party falls into either category, they will be deemed necessary. See Local 670, 822 F.2d at 618. For the first category, a necessary party is one that, in the absence of that party, the Court cannot provide complete relief among the existing parties. Fed. R. Civ. P. 19(a)(1)(A). For the second, the omitted party is necessary if she would be impeded from protecting her interests or subjected to a substantial risk of multiple inconsistent obligations. Fed. R. Civ. P. 19(a)(1)(B). Here, the omitted tenants fail to fall into either category. 2. On October 13, 2020, the Court received a Motion to Intervene from a group known as Neighborhood Preservation, Inc. (ECF No. 25.) Neighborhood Preservation, Inc purported to represent a putative class of individual tenants who faced eviction. (Id. at PageID 324.) Defendants responded to the intervention motion, raising arguments against intervention but at the same time, explicitly stating that Defendants took no position on the matter. (ECF No. 32 at PageID 477.) Defendants concluded that intervention would be inappropriate because the proposed intervenors lacked a substantial interest in this matter, and Defendants adequately represented whatever interest they might have. (Id. at PageID 481–85.) The Court entered an Order denying the motion to intervene, ultimately concluding that Defendants adequately represented the purported interests of the third party. (ECF No. 36 at PageID 591.) 14 Case 2:20-cv-02692-MSN-atc Document 69 Filed 11/06/20 Page 15 of 23 PageID 974 As to the first category, the Court can afford complete relief between the existing parties without joinder of the omitted tenants. It is true that in some sense the omitted tenants have a general interest in this matter; indeed, a result in favor of Plaintiffs will likely cause tenants who have defaulted on rent to face eviction. A general interest does not, however, equate to the kind of legally cognizable interest that Rule 19 seeks to protect. Defendants’ effort to highlight this general interest is nothing but a smokescreen, obscuring what lies at the heart of this matter. At its core, this case turns on the alleged impropriety of the CDC’s Halt Order. As to that issue, the Court can rule without ever implicating the interest of the omitted tenants. Before delving deeper, it is important to note what the Halt Order does and does not do. The Halt Order does delay state court eviction proceedings. Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19, 85 Fed. Reg. 55,292 (Sept. 4, 2020) (“This Order is a temporary eviction moratorium . . . .”). It does not, however, alter the underlying legal rights and obligations that exist between the parties. The Halt Order makes this plain: This Order does not relieve any individual of any obligation to pay rent, make a housing payment, or comply with any other obligation that the individual may have under a tenancy, lease, or similar contract. Nothing in this Order precludes the charging or collecting of fees, penalties, or interest as a result of the failure to pay rent or other housing payment on a timely basis, under the terms of any applicable contract. Id. Thus, these proceedings do not implicate the omitted tenants’ interest in a way that Rule 19 would protect. Second, the omitted tenants’ interests are not so situated that their omission would either “impair or impede [their] ability to protect [their] interest or leave [them] subject to a 15 Case 2:20-cv-02692-MSN-atc Document 69 Filed 11/06/20 Page 16 of 23 PageID 975 substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.” Fed. R. Civ. P. 19(a)(1)(B). Again, all the Halt Order has done is delay state eviction proceedings. See Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19, 85 Fed. Reg. 55,292 (Sept. 4, 2020). Enjoining the Halt Order in no way impairs or impedes the ability of tenants to challenge their evictions in state court proceedings. Indeed, the omitted tenants will still have their day in court. Moreover, the tenants do not face a substantial risk of multiple inconsistent obligations for they can be evicted from a particular residence only once. The omitted tenants here fail to fall into either category laid out in Rule 19. Therefore, they are not necessary to this action. With these threshold arguments resolved, the Court now addresses Plaintiffs’ request for preliminary injunctive relief. III. Plaintiffs are not entitled to a preliminary injunction because they have failed to demonstrate irreparable harm “A preliminary injunction is an extraordinary remedy which should be granted only if the movant carries his or her burden of proving that the circumstances clearly demand it.” Overstreet v. Lexington-Fayette Urban Cty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002) (citing Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000). The Court considers four factors in determining whether to grant an injunction: (1) whether the movant has shown a strong likelihood of success on the merits; (2) whether the movant will suffer irreparable harm if the injunction is not issued; (3) whether the issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuing the injunction. 16 Case 2:20-cv-02692-MSN-atc Document 69 Filed 11/06/20 Page 17 of 23 PageID 976 Id. at 573. The movant carries the burden of persuasion, and the proof required to obtain a preliminary injunction exceeds that required to survive a summary judgment motion. Leary, 228 F.3d at 739 (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990 . Of these factors, this Court focuses first on whether Plaintiffs have made a showing of irreparable harm. The Sixth Circuit has described this factor as “indispensable” for “if the plaintiff isn’t facing imminent and irreparable injury, there’s no need to grant relief now as opposed to at the end of the lawsuit.” See D.T. v. Sumner Cty. Schs., 942 F.3d 324, 327 (6th Cir. 2019); see also Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 102–04 (6th Cir. 1982). “[A] district court is ‘well within its province’ when it denies a preliminary injunction based solely on the lack of an irreparable injury.” Sumner Cty. Schs., 942 F.3d at 327 (citing S. Milk Sales, Inc. v. Martin, 924 F.2d 98, 103 (6th Cir. 1991 . “To merit a preliminary injunction, an injury ‘must be both certain and immediate,’ not ‘speculative or theoretical.’” Sumner Cty. Schs., 942 F.3d at 327 (citing Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 154 (6th Cir. 1991 . “A party seeking an injunction from a federal court must invariably show that it does not have an adequate remedy at law.” N. Cal. Power Agency v. Grace Geothermal Corp., 469 U.S. 1306, 1306 (1984) (citing Hillborough v. Cromwell, 326 U.S. 620, 622 (1946 . An injury that can be cured by an award of monetary damages fails to qualify as irreparable harm at the preliminary injunction stage. See Basicomputer Corp. v. Scott, 973 F.2d 507, 511 (6th Cir. 1992). 17 Case 2:20-cv-02692-MSN-atc Document 69 Filed 11/06/20 Page 18 of 23 PageID 977 Plaintiffs broadly allege that they have suffered and will continue to suffer irreparable harm because “loss of rental income and exclusive use of their [rental properties] have made their businesses commercially impracticable.” (ECF No. 12-1 at PageID 164.) Additionally, Plaintiffs allege that the Halt Order is a clear violation of Plaintiffs’ constitutional rights. (Id.) Plaintiffs cite to Elrod v. Burns, 427 U.S. 347 (1976) and McNeilly v. Land, 684 F.3d 611 (6th Cir. 2012), arguing that because they have alleged potential constitutional violations, a finding of irreparable harm is mandated. (ECF No. 12-1 at PageID 164.) In response, Defendants assert that Plaintiffs’ claims for damages are monetary in nature, and thus do not constitute irreparable harm. (ECF No. 29 at PageID 401–03.) Defendants further argue that Plaintiffs’ reliance on Elrod and McNeilly is misplaced because those cases involved First Amendment freedoms, which necessarily implicate harms that are difficult to quantify and are thus distinguishable from Plaintiffs’ constitutional claims. (Id.) This Court agrees with Defendants’ contentions. First, it is hardly arguable that Plaintiffs’ first alleged harm, “loss of rental income,” is anything other than monetary in nature. Moreover, any loss of rental income is merely temporary because the Halt Order does not relieve tenants of their obligation to pay rent, and the Halt Order allows Plaintiffs to charge and collect fees, penalties, or interest as the result of a tenant failing to pay rent on a timely basis. Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19, 85 Fed. Reg. 55,292 (Sept. 4, 2020). Plaintiffs also fail to show that they do not have an adequate remedy at law for this alleged harm. Specifically, Plaintiffs may sue their tenants for unpaid rent. See Elmsford Apt. Assocs., LLC 18 Case 2:20-cv-02692-MSN-atc Document 69 Filed 11/06/20 Page 19 of 23 PageID 978 v. Cuomo, No. 20-4062, 2020 WL 3498456, at *15 (S.D.N.Y. June 29, 2020). As the Court said in Elmsford, “the fact that [a breach of contract action] is not their preferred remedy is of no moment.” Id. This type of temporary monetary harm is the antithesis of the irreparable harm needed to warrant a preliminary injunction. Second, to the extent Plaintiffs have made an argument that the deprivation of the exclusive use of their rental properties constitutes irreparable harm, this Court disagrees. Plaintiffs make only a passing reference to the interference with their “exclusive use” of their real property, and they do not support their argument with details or case citations explaining why this interference constitutes irreparable harm. Plaintiffs do not allege, nor is there any evidence before the Court, that any of the Plaintiffs actually reside in their properties or that they seek to reside in a property but have been prevented from doing so because it is occupied by a tenant who is a “covered person” under the Halt Order. Nor does any Plaintiff allege that it is in danger of losing its properties. Absent such facts, the temporary interference with Plaintiffs’ real property imposed by the Halt Order does not constitute irreparable harm. See Mount Clemens Inv. Grp., LLC v. Borman’s Inc., No. 10-12679, 2010 WL 3998095, at *5 (E.D. Mich. Oct. 12, 2010) (“Plaintiff’s argument that the Shopping Center’s status as real property automatically means that its loss would result in irreparable harm also fails. Plaintiff’s Shopping Center is commercial real estate used as investment property. Plaintiff can recoup its investment loss through money damages.”); Gordon v. New England Cent. Railroad, Inc., No. 2:17-cv-00154, 2017 WL 6327105, at *12 (D. Vt. Dec. 8, 2017) (interference with real property did not constitute irreparable harm where it did not extinguish 19 Case 2:20-cv-02692-MSN-atc Document 69 Filed 11/06/20 Page 20 of 23 PageID 979 property’s value or prohibit its use entirely); Muck Miami, LLC v. United States, No. 14-24870- Civ-COOKIE/TORRES, 2015 WL 12533140, at *3–4 (S.D. Fla. Feb. 13, 2015) (finding no irreparable harm when property was not owner’s residence but only rental property); Hillyer v. Comm’r, 817 F. Supp. 532, 537–38 (M.D. Penn. 1993) (finding irreparable harm demonstrated only as to parcel where individual’s home was located but not as to two other unimproved parcels). Finally, this Court finds that Plaintiffs’ alleged constitutional claims are insufficient to trigger a finding of irreparable harm. The two cases Plaintiffs primarily cite in support of this proposition, Elrod and McNeilly, specifically address the violation of First Amendment rights. Elrod, 427 U.S. at 373 (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparably injury.”); McNeilly, 684 F.3d at 620 (citing Elrod and finding district court did not err in failing to find irreparable harm because it did not find a probability of success on the plaintiffs’ First Amendment claim). Plaintiffs’ citations to Obama for America v. Husted, 697 F.3d 423, 436 (6th Cir. 2012) and City of Pontiac Retired Emps. Ass’n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014), are equally unavailing. Obama for America dealt with an Equal Protection Clause claim, and it primarily relied on Jones v. Caruso, 569 F.3d 258, 265 (6th Cir. 2009) – another case addressing First Amendment claims – for the proposition that “[w]hen a party seeks a preliminary injunction on the basis of a potential constitution violation, ‘the likelihood of success on the merits often will be the determinative factor.’” Obama for America, 697 F.3d at 436. City of Pontiac merely cites to Obama for America for this same 20 Case 2:20-cv-02692-MSN-atc Document 69 Filed 11/06/20 Page 21 of 23 PageID 980 proposition but provides no further analysis of the application of the case to the facts at issue there. This Court is not convinced that Plaintiffs’ alleged constitutional violations are necessarily equivalent to the unique, individual injury accompanying a violation of the First Amendment such that they constitute irreparable harm. Other courts outside of the Sixth Circuit have expressly limited the types of constitutional claims that may constitute irreparable injury. See Northeastern Florida Chapter of Ass’n of General Contractors of America v. City of Jacksonville, Florida, 896 F.2d 1283, 1285 (11th Cir. 1990) (“The only area of constitutional jurisprudence where we have said that an on-going violation constitutes irreparable injury is the area of First Amendment and right of privacy jurisprudence.”); American Petroleum Inst. v. Jorling, 710 F. Supp. 421, 431–32 (N.D.N.Y. 1989) (Supremacy Clause violation does not constitute irreparable harm); Grand Cent. Sanitation v. City of Bethlehem, No. Civ. 94-5928, 1994 WL 613674, at *2 (E.D. Pa. 1994) (Commerce Clause violation is not “necessarily equivalent to the unique, individual injury accompanying a violation of the First Amendment” and does not constitute per se irreparable injury); Pub. Serv. Co. of New Hampshire v. Town of West Newbury, 835 F.2d 380, 382 (1st Cir. 1987) (“The alleged denial of procedural due process, without more, does not automatically trigger such a finding [of irreparable injury].”); Miller v. Accredited Home Lenders, Inc., No. 2:11-cv-007711 CW, 2011 WL 4964508, at *3 (D. Utah Oct. 19, 2011) (holding that the irreparable injury presumption does not apply to allegations of procedural due process violations). 21 Case 2:20-cv-02692-MSN-atc Document 69 Filed 11/06/20 Page 22 of 23 PageID 981 Most recently, a District Court for the Northern District of Georgia considering a substantially similar challenge to the Halt Order found that Plaintiffs had not shown irreparable harm merely by alleging a constitutional violation. See Brown, et al. v. Azar, et al., No. 1:20- cv-3702, 2020 WL 6364310, at *18 (N.D. Ga. Oct. 29, 2020). The fact is, despite Plaintiffs’ creative framing, at bottom Plaintiffs are likely to suffer monetary damages, not irreparable harm, and their bevy of constitutional claims do not change this conclusion. Therefore, because Plaintiffs have failed to establish the irreparable harm factor, the Court need not consider the remaining preliminary injunction factors. See Sumner Cty. Schs., 942 F.3d at 327. CONCLUSION AND SCHEDULING CONFERENCE It is the Court’s duty to “avoid reaching constitutional questions in advance of the necessity of deciding them.” United States v. Green, 654 F.3d 637, 646 (6th Cir. 2011). Addressed herein is Plaintiffs’ application for preliminary injunctive relief. For now, Plaintiffs have failed to adequately demonstrate that they have suffered or will suffer a loss for which there is no adequate remedy at law, which is fatal to their request for a preliminary injunction. Therefore, for the reasons set forth herein, Plaintiffs’ application for preliminary injunctive relief is DENIED. In the alternative, Plaintiffs seek declaratory relief that the Halt Order is altogether void under the Administrative Procedure Act or violates the Constitution. Whether the Halt Order ultimately stands or falls likely depends upon this Court’s construction of the enabling statute, 22 Case 2:20-cv-02692-MSN-atc Document 69 Filed 11/06/20 Page 23 of 23 PageID 982 42 U.S.C. § 264. Whether Congress exceeded its constitutional authority in the first instance must be the threshold issue for consideration. At the hearing on the Preliminary Injunction Motion, counsel for Plaintiffs and Defendants offered to provide supplemental briefing on various matters if the Court requests it. The Court has decided that such briefing is needed in order to fully consider the Constitutional issues that remain. The Court will confer with counsel to set a scheduling conference to discuss supplemental briefing and any discovery necessary before completing its consideration of the request for declaratory relief. IT IS SO ORDERED, this 6th day of November 2020. s/ Mark S. Norris MARK S. NORRIS UNITED STATES DISTRICT JUDGE 23
=== 19-2581 ===
Case 2:19-cv-02581-MSN-cgc Document 49 Filed 03/28/22 Page 1 of 22 PageID 948 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION OWNERS INSURANCE COMPANY, Plaintiff/Counter-Defendant, v. No. 2:19-cv-02581-MSN-cgc KW REAL ESTATE VENTURES, A DIVISION OF KEMMONS WILSON, INC., Defendant/Counter-Plaintiff, ORDER DENYING PLAINTIFF/COUNTER-DEFENDANT OWNERS INSURANCE COMPANY’S MOTION FOR SUMMARY JUDGMENT Before the Court is Plaintiff/Counter Defendant Owners Insurance Company’s (“Owners” or “Plaintiff”) Motion for Summary Judgment, (ECF No. 33) (“Motion”), filed on December 9, 2020. Defendant/Counter Plaintiff KW Real Estate Ventures (“KW” or “Defendant”) filed its Response on February 22, 2021. (ECF No. 44.) On March 4, 2021, Owners filed its Reply. (ECF No. 47.) For the reasons below, the Court DENIES Owners’ Motion. BACKGROUND This case exemplifies the cautionary tale that one cannot build a great building on a weak foundation.1 In the early 2000s, KW began to build condominium communities in the Memphis area to attract empty nesters. (ECF No. 33-1 at PageID 369; ECF No. 45 at PageID 883.) KW operated like a general contractor for these condominium projects. (ECF No. 45 at PageID 883– 1. The following facts are undisputed unless noted. 1 Case 2:19-cv-02581-MSN-cgc Document 49 Filed 03/28/22 Page 2 of 22 PageID 949 84; ECF No. 48 at PageID 913.) Meaning, KW “hired contractors and subcontractors to perform all work necessary to prepare the site, execute the plans, and construct the finished homes.” (Id.) KW, however, did not perform any actual construction work on these projects. (Id.) Oaks at Parkview is one such project located in Olive Branch, Mississippi. (Id.) KW broke ground on the project around 2005 and planned to construct several four-unit condominiums there. (Id.) During construction, KW contracted with several companies to examine the site’s soil conditions: Hall, Blake and Associates, Inc. (“HBA”), Fisher & Arnold, Inc. (“F&A”), and Acuff Enterprises, Inc. d/b/a Scott Contractors, Inc. (“Scott”).2 (Id. at PageID 913–14.) HBA performed a “geotechnical investigation” into the project site “to define the general subsurface conditions[.]” (Id. at PageID 913; ECF No. 33-5 at PageID 402.) F&A then developed the architectural and engineering plans for the site, considering the work done by HBA.3 (ECF No. 48 at PageID 914; ECF No. 44-16 at PageID 864.) Finally, Scott excavated and graded the site to prepare it for vertical construction. (ECF No. 33-4 at PageID 396; ECF No. 44-16 at PageID 864; ECF No. 45 at PageID 886.) The earthwork for the project was complete by March 2007. (ECF No. 48 at PageID 918.) However, due to the 2008 recession, the condominium construction at issue here (Buildings 27 and 28) did not begin until 2015. (ECF No. 44-16 at PageID 862; ECF No. 45 at PageID 887.) When construction resumed on Buildings 27 and 28, KW contracted with Dave Moore Companies, LLC to complete the job. (ECF No. 44-6 at PageID 765–66; ECF No. 44-14; ECF No. 45 at PageID 887.) Notably, KW “did not redo the work that had previously been completed 2. While the parties dispute the exact functions these subcontractors performed, there is no dispute that they all generally were hired to perform jobs related to the earthwork. 3. Owners disputes to what extent F&A incorporated all of HBA’s work and findings. (ECF No. 48 at PageID 914.) 2 Case 2:19-cv-02581-MSN-cgc Document 49 Filed 03/28/22 Page 3 of 22 PageID 950 (including the earthwork and engineering).” (ECF No. 44 at PageID 633; ECF No. 45 at PageID 887.) Let it not be said that KW did nothing; in fact, KW hired Poe Engineering, Inc. to inspect the building pads where the concrete slabs for Buildings 27 and 28 would be poured. (ECF No. 44 at PageID 633; ECF No. 44-3 at PageID 682.) Poe Engineering, Inc.’s inspection found that “the foundation was supported on soil with sufficient bearing strength to support the design load.” (Id.) Poe Engineering, Inc. “made no subsoil investigation.” (Id.) After nearly a decade, Buildings 27 and 28 were completed in 2016. (ECF No. 45 at PageID 889.) The individual units were then sold to buyers, with the first sale in September 2016 and the last in December 2016. (ECF No. 48 at PageID 919.) Shortly thereafter, the new owners began to complain that their units had “extensive cracks in walls, near windows, and in the floors and ceilings, racked doors, sloped and distorted flooring, separations around the window openings, wall joints, and between floors and baseboards.” (Id. at PageID 920.) It was eventually determined that this damage arose from differential settlement that occurred in the soil beneath the buildings. (Id. at PageID 921.) The parties generally agree that differential settlement caused the damage to Buildings 27 and 28. (Id.) That general agreement ends when it comes to who (or what) deserves blame for the damage. (ECF No. 44 at PageID 636.) Owners asserts that the differential settlement occurred because of “differential settlement of the various foundations and slabs-on-grade. . . [due to] long- term, ongoing consolidation of a relatively thick layer of loosely placed, poorly compacted backfill soils.” (ECF No. 33-10 at PageID 520; ECF No. 34 at PageID 579.) Conversely, KW contends that a subcontractor caused the differential settlement. (ECF No. 44 at PageID 636.) 3 Case 2:19-cv-02581-MSN-cgc Document 49 Filed 03/28/22 Page 4 of 22 PageID 951 Like most businesses, KW purchased insurance to protect itself from potential liability. KW procured two such commercial general liability insurance policies from Owners.4 Policy number 102319-03608596-15 (“2015 Policy”) lasted from October 1, 2015, to October 1, 2016. (ECF No. 45 at PageID 888; ECF No. 48 at PageID 911.) Policy number 102319-03608596-16 (“2016 Policy”) applied from October 1, 2016, through October 1, 2017. (ECF No. 45 at PageID 888–89; ECF No. 48 at PageID 911.) KW filed an insurance claim concerning Buildings 27 and 28 in October 2018. (ECF No. 44-15 at PageID 857.)5 Owners hired an outside firm, GHD, to investigate KW’s claim. (ECF No. 33-10.) GHD’s investigation determined that the damage to Buildings 27 and 28 was caused by “differential settlement of the various foundations and slabs-on-grade” due to “long-term, ongoing consolidation of a relatively thick layer of loosely placed, poorly compacted backfill soils.” (Id. at PageID 520.) In other words, KW’s subcontractors did not cause the settlement. (ECF No. 47 at PageID 908.) Owners filed this suit to request that the Court declare coverage does not exist for the damage to Buildings 27 and 28 that occurred on August 28, 2019. (ECF No. 1 at PageID 4–5.) Owners filed its present Motion on December 9, 2020. (ECF No. 33.) KW filed its Response on February 22, 2021. (ECF No. 44.) Owners then filed its reply on March 4, 2021. (ECF No. 47.) STANDARD OF REVIEW 4. The parties dispute whether two (2) separate insurance policies exist or KW merely renewed the prior policy. (ECF No. 48 at PageID 911.) Important to note, there has been no assertion that the policies contain differing language. In other words, the insurance provisions relevant here share identical language. For purposes of this Order, the Court refers to the 2016 policy. (See ECF No. 33-8.) 5. The claim listed October 1, 2016, as the date of loss. (ECF No. 44-15 at PageID 857.) 4 Case 2:19-cv-02581-MSN-cgc Document 49 Filed 03/28/22 Page 5 of 22 PageID 952 Federal Rule of Civil Procedure 56 permits a party to move for summary judgment — and the Court to grant summary judgment — “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party asserting the presence or absence of a genuine dispute of material fact must support its position either by “citing to particular parts of materials in the record,” including depositions, documents, affidavits or declarations, stipulations, or other materials, or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). To decide a motion for summary judgment, courts must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., 475 U.S. at 587; Nat’l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001). However, to survive summary judgment, a plaintiff “must do more than simply show that there is some metaphysical doubt as to the material facts.” Id. at 586. Courts may not weigh the evidence, judge the credibility of witnesses, or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., , 249 (1986). The moving party bears the initial burden to show that no genuine dispute of material fact exists. See Celotex Corp. v. Catrett, , 323 (1986). The moving party may discharge this burden either by producing evidence that demonstrates the absence of a genuine issue of material fact or simply “by ‘showing’—that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325. Where the movant has satisfied this burden, the nonmoving party cannot “rest upon its . . . pleadings, but rather must set forth specific facts showing that there is a genuine issue for trial.” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009) (citing Matsushita, 475 U.S. at 586); Fed. R. Civ. P. 56. The 5 Case 2:19-cv-02581-MSN-cgc Document 49 Filed 03/28/22 Page 6 of 22 PageID 953 nonmoving party must present sufficient probative evidence to support its claim that disputed material facts remain that must be evaluated by a judge or jury at trial. Anderson, 477 U.S. at 248– 49 (citing First Nat’l Bank of Ariz. v. Cities Serv. Co., (1968 ; see also White v. Wyndham Vacation Ownership, Inc., 617 F.3d 472, 475–76 (6th Cir. 2010). A mere scintilla of evidence does not suffice; there must be evidence from which a jury could reasonably find in favor of the nonmoving party. Anderson, 477 U.S. at 252; Moldowan, 578 F.3d at 374. A court’s limited role is to determine whether there is a genuine dispute about a material fact; that is, if the evidence in the case “is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. This determination requires that the Court “view the evidence presented through the prism of the substantive evidentiary burden.” Id. at 254. “The court need consider only the cited materials, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3). Thus, if the plaintiff must ultimately prove its case at trial by a preponderance of the evidence, on a motion for summary judgment the Court must determine, based on the record, whether a jury could reasonably find the plaintiff’s factual contentions true by a preponderance of the evidence. See Anderson, 477 U.S. at 252–53. Finally, should the nonmoving party fail to make a sufficient showing on an essential element of its case that it has the burden to prove, the movant will be entitled to summary judgment. Celotex, 477 U.S. at 323. The Court construes Rule 56 with due regard not only for the rights of those “asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.” Id. at 327. DISCUSSION 6 Case 2:19-cv-02581-MSN-cgc Document 49 Filed 03/28/22 Page 7 of 22 PageID 954 A. Choice of Law This matter is before the Court on diversity jurisdiction. (ECF No. 1 at PageID 1.) A federal district court sitting in diversity applies the substantive laws of the state in which it sits, including the forum state’s choice of law rules. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); Montgomery v. Wyeth, 580 F.3d 455, 459 (6th Cir. 2009); Philadelphia Indem. Ins. Co. v. FedEx Freight, Inc., 297 F. Supp. 3d 795, 802 (W.D. Tenn. 2017). Here, the parties do not dispute that Tennessee is the forum state. The parties take conflicting positions concerning the application of Tennessee’s choice of law rules. (Compare ECF No. 34 at PageID 580, with ECF No. 44 at PageID 637.) Owners argues that the Restatement (Second) of Conflict of Law’s “most significant relationship” test applies. (ECF No. 34 at PageID 581.) Under this approach, the location of the insured’s risk is the preeminent factor for the Court to consider. (Id.); see also Standard Fire Ins. Co. v. Chester O’Donley & Assocs., Inc., 972 S.W.2d 1, 5 n.1 (Tenn. Ct. App. 1998) (explaining that “with specific regard to insurance contracts, the location of the insured risk is given greater weight than any other factor unless the insurance covers a group of risks scattered throughout two or more states”). This approach dictates that Mississippi law controls because the buildings at issue are in Olive Branch, Mississippi. (ECF No. 34 at PageID 581; ECF No. 48 at PageID 913.) However, KW argues that Tennessee follows the doctrine of lex loci contractus in the insurance coverage context. (ECF No. 44 at PageID 637.) Under this approach, the Court would apply the law of the state where the insurance policy was issued unless contradicted by the parties’ intent. (Id.); see also Nationwide Affinity Ins. Co. of Am. v. Richards, 439 F. Supp. 3d 1026, 1031 (W.D. Tenn. 2020) (“In Tennessee, absent a valid choice of law provision, the rights and obligations under an insurance policy are governed by the law of the state where the insurance 7 Case 2:19-cv-02581-MSN-cgc Document 49 Filed 03/28/22 Page 8 of 22 PageID 955 policy was ‘made and delivered.’” (citation omitted . KW argues Tennessee law applies because the policies at issue were made and delivered in Tennessee. (ECF No. 44 at PageID 637.) KW correctly argues that Tennessee law governs this dispute; a legion of courts in this Circuit have affirmed this conclusion. See Ohio Cas. Ins. Co. v. Travelers Indem. Co., 493 S.W.2d 465, 467 (Tenn. 1973) (“The Tennessee conflict of laws rule provides that rights and obligations under a contract are governed by the law of that state with the view to which it is made. . . .”); Blackwell v. Sky High Sports Nashville Operations, LLC, 523 S.W.3d 624, 632 (Tenn. Ct. App. 2017) (“Tennessee follows the rule of lex loci contractus.”); Nelson v. Nelson, 409 S.W.3d 629, 632 (Tenn. Ct. App. 2013) (“Likewise, numerous federal diversity cases have recognized that Tennessee follows the lex loci contractus doctrine in insurance coverage disputes, such that the substantive law of the state where the insurance policy was issued and delivered will control.”); Nationwide, 439 F. Supp. 3d at 1031 (“In Tennessee, absent a valid choice of law provision, the rights and obligations under an insurance policy are governed by the law of the state where the insurance policy was ‘made and delivered.’”); Philadelphia Indem. Ins. Co., 297 F. Supp. 3d at 802 (“In insurance coverage disputes, Tennessee follows the lex loci contractus doctrine[.]”). The Court finds Owners’ contrary arguments unpersuasive. Take first Owners’ assertion that the Restatement (Second) Conflict of Laws applies to this dispute. Owners relies on Standard Fire Ins. Co. v. Chester O’Donley & Assocs., 972 S.W.2d 1 (Tenn. Ct. App. 1998) for the proposition that the location of the insured’s risk takes analytical primacy. (ECF No. 34 at PageID 581.) While Owners would be correct had this action involved tort claims, the reality is that it does not. See Chester O’Donley, 972 S.W.2d at 5 n.1. As the Chester O’Donley court explained: These decisions embody the traditional “lex loci contractu[s]” choice of law theory. The Tennessee Supreme Court abandoned a similar choice of law theory applicable to tort actions, “lex loci deliciti,” because it was outmoded and 8 Case 2:19-cv-02581-MSN-cgc Document 49 Filed 03/28/22 Page 9 of 22 PageID 956 increasingly irrelevant in today's modern industrial world. See Hataway v. McKinley, 830 S.W.2d 53, 57 (Tenn. 1992). In its place, the court adopted the “most significant relationship” approach found in Restatement (Second) of Conflict of Laws §§ 6, 145, 146, & 175 (1971). The court has yet to adopt the similar approach for contract disputes, although Restatement (Second) of Conflict of Laws § 188 embodies such an approach when the parties have not effectively chosen the law applicable to their contract. With specific regard to insurance contracts, the location of the insured risk is given greater weight than any other factor unless the insurance covers a group of risks scattered throughout two or more states. See Restatement (Second) of Conflict of Laws § 193 cmt. b. Policies insuring multiple risks in two or more specific states may be treated as insuring individual risks in each state. See Restatement (Second) of Conflict of Laws § 193 cmt. f. Were we to apply the approach in Restatement (Second) of Conflict of Laws §§ 6, 186, 187, 188, & 193 to this case we would reach the same result reached using the traditional lex loci contractu[s] rule. Standard Fire’s insurance policy covered liability incurred by Chester–O’Donley anywhere in the United States of America. Since it did not identify particular risks in specific states, the location of the insured risk is not of controlling importance. See Continental Ins. Co. v. Beecham, Inc., 836 F.Supp. 1027, 1035–37 (D.N.J. 1993). Notwithstanding the fact that the project was located in Tennessee, Kentucky remains the state with the most significant relationship with this insurance contract after taking into consideration the factors in Restatement (Second) of Contracts §§ 6 & 188(2). Id. (emphasis added). Indeed, the Chester O’Donley court applied Kentucky law because the insurance contract at issue had been made and delivered in Kentucky. Id. at 5. Owners’ reliance on S. Fifth Towers, LLC v. Aspen Ins. UK, Ltd., 763 F. App’x 401, 407 (6th Cir. 2019) and Gov’t Employees Ins. Co. v. Bloodworth, No. M2003-02986-COA-R10-CV, 2007 WL 1966022 (Tenn. Ct. App. June 29, 2007), is equally misplaced. (ECF No. 47 at PageID 903–05.) For instance, the Sixth Circuit in S. Fifth Towers applied Kentucky’s choice of law rules because Kentucky was the forum state. 763 F. App’x at 407. Further, Bloodworth is easily distinguishable from the case at bar. Bloodworth involved a class action concerning insurance policies that spanned twenty-four (24) states. 2007 WL 1966022, at *1. Had the Bloodworth court applied Tennessee’s traditional rule of lex loci 9 Case 2:19-cv-02581-MSN-cgc Document 49 Filed 03/28/22 Page 10 of 22 PageID 957 contractus, the state court would have had to apply twenty-four (24) state laws. Id. at *26. Naturally, such a result could not be sanctioned, and the Bloodworth court instead opted for the “most significant relationship” test, explaining that, “[a]lthough the case before us is brought as a breach of contract claim, tort law principles will determine many of the primary issues in the case.” 2007 WL 1966022, at *27. The Court does not face similar issues here. Simply put, Owners incorrectly argues that Tennessee applies the “most significant relationship” test to insurance coverage disputes. The default rule in Tennessee is that the law of the state where the insurance contract was made and delivered will control. See Ohio Cas. Ins. Co., 493 S.W.2d at 467. It is undisputed that the policies at issue were procured through an insurance agent based in Tennessee. (ECF No. 33-8 at PageID 470.) Further, the insured, KW, is based in Tennessee. (Id.) And finally, the premiums are calculated based off properties located in Tennessee. (Id. at PageID 471–473.) Therefore, Tennessee law governs. B. Owners’ Summary Judgment Motion The Court now turns to the merits of Owners’ motion under Tennessee law. This case concerns whether coverage exists under insurance policies issued by Owners. The Court applies the same rules of construction to the insurance policies at issue as it would to any other contract. Travelers Indem. Co. of Am. v. Moore & Assoc., Inc., 216 S.W.3d 302, 305–06 (Tenn. 2007) (citing McKimm v. Bell, 790 S.W.2d 526, 527 (Tenn. 1990 . The insurance contract’s terms “must be interpreted fairly and reasonably, giving the language its usual and ordinary meaning.” Naifeh v. Valley Forge Life Ins. Co., 204 S.W.3d 758, 768 (Tenn. 2006). Any ambiguity in the policy’s terms, however, must be construed in the insured’s favor. See Am. Justice Ins. Reciprocal v. Hutchison, 15 S.W. 3d 811, 815 (Tenn. 2000). The Court aims to “determine the intention of the parties and give effect to that intention.” Naifeh, 204 S.W. 3d at 768. 10 Case 2:19-cv-02581-MSN-cgc Document 49 Filed 03/28/22 Page 11 of 22 PageID 958 Generally, “insurance policies should be construed as a whole in a reasonable and logical manner.” Chester O’Donley, 972 S.W. 2d at 7. When coverage issues arise, courts should construe insurance policies in the following manner: (1) the declarations; (2) the insuring agreements and definitions; (3) the exclusions; (4) the conditions; and (5) the endorsements. Id. “The insuring agreement sets the outer limits of an insurer’s contractual liability. If coverage cannot be found in the insuring agreement, it will not be found elsewhere in the policy.” Id. Exclusion provisions aid the Court because they “help define and shape the scope of coverage, but they must be read in terms of the insuring agreement to which they apply.” Id. 1. Whether the subcontractor endorsement applies The Court first turns to the policies’ “Subcontractor Caused Property Damage Coverage” endorsement (“Subcontractor endorsement”). “It is well settled that riders or endorsements qualifying or restricting the liability of the insurer attached to the face of the policy contemporaneously with its issuance to the insured, constitute a part of the policy, where such riders or endorsements themselves provide that they are a part of the policy.” Taylor v. State Farm Ins. Co., 775 S.W.2d 370, 371 (Tenn. Ct. App. 1989) (quoting Brown v. Tenn. Auto Ins. Co., 237 S.W.2d 553, 555 (Tenn. 1951 ; see also Allmerica Fin. Benefit Ins. Co. v. Eagles Sales Co., Inc., No. 2:17-cv-02545, 2021 WL 140810, at *7 (W.D. Tenn. Jan. 14, 2021) (citing Taylor, 775 S.W.2d at 371). The Subcontractor endorsement provides that: We will pay those sums that the insured becomes legally obligated to pay as damages for “subcontractor caused property damage” to “your work” included in the “products-completed operations hazard”. Such damage shall be deemed: a. To have been caused by an “occurrence”; and 11 Case 2:19-cv-02581-MSN-cgc Document 49 Filed 03/28/22 Page 12 of 22 PageID 959 b. Not to have been expected or intended from the standpoint of the insured. (ECF No. 33-8 at PageID 501.) In light of the above language, the parties agree that the Subcontractor endorsement requires KW to establish three things: (1) that the property damage to Buildings 27 and 28 qualifies as “subcontractor caused property damage;” (2) that the damage was to “your work;” and (3) that the damage falls within the “products-completed operations hazard” provision. (ECF No. 34 at PageID 588; ECF No. 44 at PageID 640.) i. “Subcontractor caused property damage” provision The policies define “subcontractor caused property damage” as: a. Physical injury to tangible property caused by your subcontractor, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or b. Loss of use of tangible property that is not physically injured, however, such loss of use must be the result of physical injury to other property arising out of your subcontractor’s work. All such loss shall be deemed to occur at the time of the “occurrence” that caused it. (Id. at PageID 502.) Owners argues that this provision “necessarily requires the insured to prove that its subcontractor’s work was defective.” (ECF No. 34 at PageID 588.) More specifically, Owners asserts that KW has failed to establish this element because it cannot pinpoint exactly which subcontractor caused the damage or how. (Id. at PageID 588–89.) The Court disagrees and finds that a genuine issue of fact exists that precludes judgment in Owners’ favor on this issue. Given that KW entrusted all the earthwork to its subcontractors, a jury could reasonably infer that one of the subcontractors caused the damage to the buildings. This 12 Case 2:19-cv-02581-MSN-cgc Document 49 Filed 03/28/22 Page 13 of 22 PageID 960 possible inference finds some traction in the undisputed fact that KW did not perform any actual construction work on the project.6 (ECF No. 48 at PageID 913.) While true that the firm Owners hired to investigate KW’s insurance claim, GHD, and another third-party firm identified issues with the soil conditions because of an earlier mining operation at the project site, this finding is not dispositive as to whether a KW subcontractor caused the property damage. (ECF No. 34 at PageID 578–79; ECF No. 44 at PageID 635–36.) This conclusion may also be drawn from the GHD report, which suggests that the issue could have been discovered had proper steps been taken. (ECF No. 33-10 at PageID 520–21.) One natural inference from this suggestion could be that one of KW’s subcontractors performed inadequately. Therefore, a genuine dispute of material fact exists that precludes summary judgment on this issue. See Travelers Indem. Co., 216 S.W.3d at 305; GEICO Gen. Ins. Co. v. Howard, 928 S.W.2d 443, 445 (Tenn. Ct. App. 1996) (“Where there is a dispute as to any material fact, or doubt as to the conclusions to be drawn from that fact, a motion for summary judgment is not appropriate.”) (emphasis added). 6. Owners asserts that the Court should disregard the affidavit of Chris Acuff because it is “self-serving” and contradicts prior testimony and evidence in the record. (ECF No. 47 at PageID 908 n. 9.) This argument is not well-taken. First, to the extent that Mr. Acuff’s testimony conflicts with evidence in the record, the Court cannot resolve that conflict on summary judgment. See Anderson v. Liberty Lobby, Inc., , 249 (1986). Second, Mr. Acuff’s affidavit testimony does not contradict his prior deposition testimony. (ECF No. 47 at PageID 908 n. 9.) Mr. Acuff, when testifying as a Rule 30(b)(b) witness for KW, testified that “[KW] didn’t know what caused [the differential settlement].” (ECF No. 44-6 at PageID 771.) Although he also testified that he had no reason to believe that the subcontractors did not do their work properly, Mr. Acuff also stated that “I can’t say whether or not that— they didn’t do their work properly.” (ECF No. 33-7 at PageID 461.) Moreover, the question posed by Owners to Mr. Acuff explicitly stated that it was not asking for Mr. Acuff to render an “expert opinion” as to what caused the differential settlement. (Id. at PageID 460.) Finally, the mere fact that an affidavit is “self-serving” does not undercut its probative value. See Boykin v. Family Dollar Stores of Mich., LLC, 3 F.4th 832, 841 (6th Cir. 2021) (cautioning courts and parties to avoid using the “‘self-serving’ label because it does nothing to undermine the other side's evidence under Rule 56”). 13 Case 2:19-cv-02581-MSN-cgc Document 49 Filed 03/28/22 Page 14 of 22 PageID 961 ii. “Your work” provision Owners does not contest this provision and the Court need not address it in detail. (ECF No. 34 at PageID 588.) The Court briefly notes that “your work” is defined as “work or operations performed by you or on your behalf.” (ECF No. 33-8 at PageID 500.) The work performed by the subcontractors on behalf of KW clearly falls within this definition’s plain meaning. (Id.) iii. “Products-completed operations hazard” provision The policies define “products-completed operations hazard” (“PCOH”) as “all ‘bodily injury’ and ‘property damage’ occurring away from premises you own or rent and arising out of ‘your product’ or ‘your work.’” (ECF No. 33-8 at PageID 499.) Generally, these provisions pertain to “work performed on the premises of others by contractors and subcontractors.” Am. Red Cross v. Travelers Indem. Co. of Rhode Island, 816 F. Supp. 755, 760 (D.D.C. 1993); Pacific Indem. Co. v. Linn, 766 F.2d 754, 764 (3d Cir. 1985) (“Under Pennsylvania law, this clause is intended to cover businesses that perform contracts at premises other than their own.”); Gen. Ins. Co. of Am. v. Crawford, 635 S.W.2d 98, 102–03 (Tenn. 1982) (involving a similar PCOH provision and explaining that “[i]t appears to be designed primarily for businesses that perform services or maintenance, such as contractors or subcontractors”). Owners argues that the property damage to Buildings 27 and 28 fails to qualify as PCOH because KW owned the land on which the buildings sat. (ECF No. 34 at PageID 589.) In other words, the property damage does not fall under the definition of PCOH because it did not occur away from the premises. (Id.) KW responds that its purported ownership of the land is irrelevant because it did not own the buildings at issue. (ECF No. 44 at PageID 642.) As KW argues, “the damage that is the subject of the Claim is to the Buildings, not the dirt beneath them.” (Id.) 14 Case 2:19-cv-02581-MSN-cgc Document 49 Filed 03/28/22 Page 15 of 22 PageID 962 Accordingly, at issue is whether the property damage occurred “away from premises” that KW either owns or rents. (ECF No. 33-8 at PageID 499.) Notably, Owners admits that KW does not own the buildings or the units that comprise them. (ECF No. 34 at PageID 589; ECF No. 48 at PageID 919.) Given this admission, KW’s purported ownership of the land would not resolve the issue.7 Different interpretations of the phrase “away from premises” could render different results on whether coverage exists. The Court, mindful of this ambiguity, construes the language in the insured’s favor. See Am. Justice Ins. Reciprocal v. Hutchison, 15 S.W.3d 811, 815 (Tenn. 2000). Therefore, the Court DENIES Owners’ Motion as to this issue and finds that the alleged property damage arguably falls within the Subcontractor Endorsement. 2. Whether the damage qualifies as an “occurrence” Owners correctly argues that coverage only exists for damages caused by an “occurrence.” (ECF No. 34 at PageID 583.) However, because the Court finds that the Subcontractor Endorsement applies, Owners incorrectly argues that the damage here does not qualify as an occurrence. (Id. at PageID 586.) Under the Subcontractor Endorsement, property damage caused by the work of a subcontractor will be deemed “to have been caused by an occurrence.” (ECF No. 33-8 at PageID 501); see also Taylor, 775 S.W.2d at 371 (“The rider or endorsement, insofar as it qualifies, modifies or restricts the terms of the policy is controlling.”). Thus, the Court DENIES Owners’ Motion as to this issue. 3. Exclusion provisions Owners asserts that, even if KW’s claims triggers coverage, several exclusions apply. (ECF No. 34 at PageID 589–90.) Owners relies on the following exclusion provisions: (1) the “expected or intended injury” exclusion; (2) the “your work” or “damages to property” exclusion; 7. KW disputes Owners’ assertion that it owns the land. (ECF No. 44 at PageID 642.) 15 Case 2:19-cv-02581-MSN-cgc Document 49 Filed 03/28/22 Page 16 of 22 PageID 963 (3) the “impaired property” exclusion; and (4) the “damage to property” exclusion. The Court will address each of these provisions in turn. i. The “expected or intended injury” provision The policies contain an exclusion related to expected or intended injury that states coverage does not extend to “‘[b]odily injury’ or ‘property damage’ expected or intended from the standpoint of the insured.” (ECF No. 33-8 at PageID 484.) The Subcontractor Endorsement, however, provides that subcontractor caused damage “shall be deemed not to have been expected or intended from the standpoint of the insured.” (Id. at PageID 501.) This exclusion provision does not apply because the Court has found that the Subcontractor Endorsement controls. See Taylor, 775 S.W.2d at 371. Therefore, the Court DENIES Owners’ Motion on this issue. ii. The “your work” or “damages to property” exclusion The policies exclude coverage for property damage that “must be restored, repaired or replaced because ‘your work’ was incorrectly performed on it.” (ECF No. 33-8 at PageID 487.) They also state that “this exclusion does not apply to ‘property damage’ included in the ‘products completed operations hazard.’” (Id.) Owners argues that this exclusion applies because the relevant “work”— KW’s development of the condominiums—was ineptly performed. (ECF No. 34 at PageID 591.) KW counters that the exclusion provision exempts damages included within the PCOH provision. (ECF No. 44 at PageID 644–45.) As part of the Court’s finding that the Subcontractor Endorsement applied, the Court determined that the damage to the buildings arguably fell within the PCOH provision. Therefore, the Court DENIES Owners’ Motion as to this issue because the exclusion exempts any property damage that qualifies as PCOH. iii. The “impaired property” exclusion 16 Case 2:19-cv-02581-MSN-cgc Document 49 Filed 03/28/22 Page 17 of 22 PageID 964 The policies include a provision that excludes coverage for property damage to impaired property. (ECF No. 33-8 at PageID 487.) The exclusion provides that: Damage To Impaired Property Or Property Not Physically Injured “Property damage” to “impaired property” or property that has not been physically injured, arising out of: (1) A defect, deficiency, inadequacy or dangerous condition in “your product” or “your work”; or (2) A delay or failure by you or anyone acting on your behalf to perform a contract or agreement in accordance with its terms. This exclusion does not apply to the loss of use of other property arising out of sudden and accidental physical injury to “your product” or “your work” after it has been put to its intended use. (Id. at PageID 487.) The policies define “impaired property” as: [T]angible property, other than “your product” or “your work”, that cannot be used or is less useful because: a. It incorporates “your product” or “your work” that is known or thought to be defective, deficient, inadequate or dangerous; or b. You have failed to fulfill the terms of a contract or agreement if such property can be restored to use by: a. The repair, replacement, adjustment or removal of “your product” or “your work”; or b. Your fulfilling the terms of the contract or agreement. (Id. at PageID 497.) At the outset, the Court notes that this exclusion provision is not a paragon of clarity. Indeed, commentators have remarked that the exclusion is “too complex to receive a uniform interpretation,” “tricky,” and “unintelligible or at least ineffective to overcome the insured’s reasonable expectations of coverage.” Black v. Veatch Corp. v. Aspen Ins. (UK) Ltd., 378 F. Supp. 3d 975, 999 (D. Kan. 2019) (quoting 4 Pt. 2 Philip L. Bruner and Patrick J. O’Connor, Jr., Bruner and O’Connor on Construction Law § 11:264 (2018 17 Case 2:19-cv-02581-MSN-cgc Document 49 Filed 03/28/22 Page 18 of 22 PageID 965 Upon reviewing the pertinent provisions, the Court finds that Owners has failed to show that the exclusion applies. See Chester O’Donley, 972 S.W. at 8. Owners asserts that this exclusion applies because the damage to the buildings arose from KW’s work. (ECF No. 34 at PageID 591; ECF No. 47 at PageID 906.) This assertion alone does not trigger the provision. Returning to the text: “impaired property” is tangible property that “incorporates” KW’s work or product that “can be restored to use by the repair, replacement, adjustment or removal of ‘your product’ or ‘your work.’” (ECF No. 33-8 at PageID 497.) Here, there is no assertion that the damage to the buildings could be “restored to use by the repair, replacement, adjustment, or removal of” KW’s work. See Federated Mut. Ins. Co. v. Grapevine Excavation Inc., 197 F.3d 720, 728 (5th Cir. 1999) (“Similarly here, there has been no suggestion that the damage to the surface of the parking lot can be restored by ‘the repair, replacement, adjustment or removal of’ GEI's underlying work.”). Therefore, the Court DENIES Owners’ Motion as to this issue. iv. The “damage to property” exclusion Finally, Owners contends that the “Damage to Property” provision excludes coverage. (ECF No. 34 at PageID 592.) The “Damage to Property” provision excludes property damage for: (1) Property you own, rent, occupy or use, including any cost or expense incurred by you, or any other person, organization or entity, for repair, replacement, enhancement, restoration or maintenance of such property for any reason, including prevention of injury to a person or damage to another’s property; . . . (3) Premises you sell, give away or abandon, if the “property damage” arises out of any part of those premises; (ECF No. 33-8 at PageID 487.) Concerning subsection (3), the policies also provide that “this exclusion does not apply if the premises are ‘your work’ and were never occupied, rented or held for rental by you.” (Id.) 18 Case 2:19-cv-02581-MSN-cgc Document 49 Filed 03/28/22 Page 19 of 22 PageID 966 Neither provision Owners cites applies. First, subsection (1) does not apply because KW did not own the buildings at issue when the damage occurred. Subsection (1) only applies to property owned, rented, occupied, or used by KW. It is undisputed that KW did not own the buildings or the units inside them when they were damaged. (ECF No. 48 at PageID 919.) Turning to subsection (3), the Court finds this provision equally inapplicable. The policies curb the scope of subsection (3) by providing that it “does not apply if the premises are ‘your work’ and were never occupied, rented or held for rental by you.” (ECF No. 33-8 at PageID 487.) Nothing in the Record suggests that KW held the property open for rent or occupied it. Without more, the Court finds that subsection (3) does not apply. Therefore, the Court DENIES Owners’ Motion as to this issue. 4. Owners’ potential liability The Court now turns to the final issue raised by Owners’ motion: its potential liability under the policies. Should coverage exist (and no exclusion apply), Owners argues that its liability is limited to just $1 million dollars because the damage to the buildings counts as a single occurrence. (ECF No. 34 at PageID 593.) KW argues there could be as many as (8) different occurrences under the policies since each building had four (4) units. (ECF No. 44 at PageID 648.) Before turning to that question, the Court first addresses a threshold disagreement between the parties on whether multiple policies are at issue. Owners argues that there is just one policy; put simply, the 2016 policy is merely a renewal of the 2015 policy. (ECF No. 34 at PageID 592– 93.) KW asserts these are distinct, but overlapping, policies. (ECF No. 44 at PageID 448–49.) The Court finds that there is only one operative policy at play here: the 2016 policy. “Whether a renewal insurance policy is a new and independent contract or whether it is an extension or continuation of the original contract depends primarily upon the intention of the 19 Case 2:19-cv-02581-MSN-cgc Document 49 Filed 03/28/22 Page 20 of 22 PageID 967 parties as ascertained from the instrument itself.” Tenn. Clutch & Supply, Inc. v. Auto-Owners (Mut.) Ins. Co., 556 S.W.3d 203, 208 (Tenn. Ct. App. 2017). Here, three indicators suggest that the 2016 policy renewed the 2015 policy. First, the 2016 policy denotes October 1, 2016 as the “renewal effective” date. (ECF No. 33-8 at PageID 470); see also Tenn. Clutch & Supply, Inc. v. Auto-Owners (Mut.) Ins. Co., 556 S.W.3d 203, 208 (Tenn. Ct. App. 2017); Gieringer v. Cincinnati Ins. Co., No. 3:08-cv-267, 2010 WL 1050201, at *4 (E.D. Tenn. Mar. 22, 2010). Second, the policies feature identical numbering notwithstanding a minor reference to the year each was issued. (ECF No. 45 at PageID 888); see also Gieringer, 2010 WL 1050201, at *4. Third, the policies share nearly identical language. (ECF No. 44 at PageID 641 n.15); see also Gieringer, 2010 WL 1050201, at *4. Moreover, in addition to these indicators, several other references allude to the fact that the 2016 policy effectively renewed the 2015 policy. (ECF No. 44 at PageID 688 and 691). Therefore, the Court recognizes the 2016 policy as the only operative policy. Having identified only one operative policy, the Court next addresses Owners’ argument that its potential liability is capped at $1 million dollars. The Court disagrees and finds that Owners’ maximum potential liability is $2 million dollars because at least two (2) “occurrences” happened. In a similar case, Kuhn’s of Brownsville v. Bituminous Cas. Co., 270 S.W.2d 358 (Tenn. 1954), the Tennessee Supreme Court found that the destruction of two buildings on different dates because of one negligent excavation constituted two occurrences. Id. at 360; see also Brooks v. Memphis & Shelby Cty. Hosp. Auth., 717 S.W.2d 292, 297 (Tenn. Ct. App. 1986) (explaining that the number of occurrences is calculated “from the point of view of the persons injured rather than from the point of view of the proximate cause of the accident”). Similarly, it appears from the record that the damage to Buildings 27 and 28 arose over time but derived from a single source. (ECF No. 44-16 at PageID 862); see also Sears, Roebuck & Co. v. Light, No. 2:13-cv-02600-JTF- 20 Case 2:19-cv-02581-MSN-cgc Document 49 Filed 03/28/22 Page 21 of 22 PageID 968 tmp, 2014 WL 12531101, at *3 (W.D. Tenn. Dec. 9, 2014) (holding that only one occurrence happened because “Plaintiffs have only alleged one negligent act by one party affecting one distribution center on a single date”). At minimum, there are two occurrences here because the damage arose with two different buildings. Therefore, the Court finds at least two occurrences. KW’s argument that there might be eight (8) occurrences is not well-taken because it would not change Owners’ potential liability. (ECF No. 44 at PageID 648.) The 2016 policy obligates Owners to pay “those sums” related to bodily injury or property damage caused by “an occurrence.” (ECF No. 33-8 at PageID 483.) The 2016 policy provides that Owners will cover up to $1 million dollars for each occurrence. (Id. at PageID 471.) That provision does not mean Owners’ potential liability—as KW suggests— is $1 million for each and every occurrence because the 2016 policy also provides that the “General Aggregate Limit” is the most Owners will pay. (Id. at PageID 493.) The “General Aggregate Limit” is $2 million dollars. (Id. at PageID 471.) Even if the Court accepts KW’s premise that there could be up to eight (8) occurrences, that finding would not increase Owners’ liability. Based on the terms of the 2016 policy, Owners’ maximum liability for the damages alleged here is $2 million dollars. The Court finds there are at least two “occurrences” under the 2016 policy and Owners’ potential liability is capped at $2 million dollars per the 2016 policy. Therefore, the Court DENIES Owners’ Motion on this issue. CONCLUSION For the foregoing reasons, the Court DENIES Owners’ Motion. (ECF No. 33.) Consistent with the parties’ desire to proceed under a two-phase discovery process, the parties are hereby ORDERED to meet and confer and submit to the Court within twenty-one (21) days of entry of this Order a proposed-agreed-upon scheduling order setting the pertinent dates for discovery on KW’s counterclaims. (ECF No. 22 at PageID 250.) 21 Case 2:19-cv-02581-MSN-cgc Document 49 Filed 03/28/22 Page 22 of 22 PageID 969 IT IS SO ORDERED, this the 28th day of March, 2022. s/ Mark Norris MARK S. NORRIS UNITED STATES DISTRICT JUDGE 22
=== 19-2715 ===
Case 2:19-cv-02715-MSN-atc Document 28 Filed 02/10/21 Page 1 of 15 PageID 192 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION HOWARD ANTHONY JESMER, Plaintiff, v. ERIE INSURANCE COMPANY, Defendant. No. 2:19-cv-02715-MSN-atc ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT This cause comes before the Court on Defendant Erie Insurance Company’s Motion for Summary Judgment, filed on October 16, 2020. (ECF No. 24.) Plaintiff filed his Response on November 13, 2020. (ECF No. 25.) Defendant filed its Reply on November 24, 2020. (ECF No. 27.) For the reasons below, Defendant’s Motion is GRANTED. Background This matter arises out of Defendant’s denial of Plaintiff’s insurance claim. (ECF No. 1-3 at PageID 17.) Plaintiff originally filed this action seeking to enforce the insurance policy in addition to damages pursuant to Tenn. Code Ann. § 56-7-105 in the Circuit Court of Fayette County. (ECF No. 1.) Defendant then promptly removed this matter. (Id.) A. The denial of Plaintiff’s insurance claim In January 2017, Plaintiff applied for insurance for his home at 310 Fields Drive, Arlington, Tennessee. (ECF No. 24-5 at PageID 147–150.) Defendant agreed to insure Plaintiff based on the information provided in his application. (ECF No. 1-3 at PageID 12; ECF No. 24-1 at PageID 118–119.) The policy protected Plaintiff from damage to his home or its contents. (ECF No. 1-3 1 Case 2:19-cv-02715-MSN-atc Document 28 Filed 02/10/21 Page 2 of 15 PageID 193 at PageID 12–13.) Additionally, the policy covered expenses if Plaintiff was forced to find substitute housing due to uninhabitability of his home. (Id. at PageID 13.) On August 5, 2018, a fire destroyed Plaintiff’s home and all its contents. (Id. at PageID 12.) Plaintiff timely submitted a claim under the policy. (Id.) Defendant denied Plaintiff’s claim. (Id. at PageID 15–16.) Defendant based its denial on purported misrepresentations by Plaintiff in his application related to business activity at the residence. (Id. at PageID 24.) On April 9, 2019, counsel for Plaintiff inquired why Defendant denied Plaintiff’s claim. (ECF No. 1-3 at PageID 16, 21.) In response, Defendant explained that Plaintiff was operating his father’s business, H&M recycling,1 from the residence. (Id. at PageID 16, 24.) Defendant’s continued denial of Plaintiff’s claim prompted the filing of this lawsuit. (Id. at PageID 16–17, 21– 22.) B. The insurance application As part of acquiring insurance with Defendant, Plaintiff completed Defendant’s application. (See ECF No. 24-5.) The application asked Plaintiff several questions. (Id.) In particular, one question asked, “[i]s Applicant conducting any business or occupational pursuits at the premises?” (Id. at PageID 148.) In response, Plaintiff stated that he did not. (Id.) Plaintiff, along with Defendant’s agent, signed the application. (Id. at PageID 150.) By signing the application, Plaintiff certified that he had given “true and complete answers to the questions in this application.” (Id.) Defendant’s Motion attacks the veracity of Plaintiff’s answer to the question concerning 1. H&M Recycling is a towing company owned by Plaintiff’s father, Howard Jesmer, that is currently based in Orange Beach, Alabama. (ECF No. 25-1 at PageID 161.) However, before the August 2018 fire, H&M Recycling primarily operated out of Arlington, Tennessee. (ECF No. 24-2 at PageID 125; ECF No. 24-3 at PageID 130–31.) 2 Case 2:19-cv-02715-MSN-atc Document 28 Filed 02/10/21 Page 3 of 15 PageID 194 any business activity on the premises. (ECF No. 24-1 at PageID 121–22.) Despite Plaintiff’s answer to the contrary, Defendant contends that Plaintiff operated his father’s business, H&M Recycling, out of the residence. (Id. at PageID 121–22.) This misrepresentation by Plaintiff increased Defendant’s risk of loss. (Id. at PageID 122.) In rebuttal, Plaintiff denies making a false statement because his activity at the residence does not constitute a business pursuit. (ECF No. 25 at PageID 158.) Legal Standard Federal Rule of Civil Procedure 56 permits a party to move for summary judgment — and the Court to grant summary judgment — “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party asserting the presence or absence of genuine issues of material facts must support its position either by “citing to particular parts of materials in the record,” including depositions, documents, affidavits or declarations, stipulations, or other materials, or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., , 587 (1986); Nat’l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence, judge the credibility of witnesses, or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., , 249 (1986). The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, , 323 (1986). The moving party may 3 Case 2:19-cv-02715-MSN-atc Document 28 Filed 02/10/21 Page 4 of 15 PageID 195 discharge this burden either by producing evidence that demonstrates the absence of a genuine issue of material fact or simply “by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325. Where the movant has satisfied this burden, the nonmoving party cannot “rest upon its . . . pleadings, but rather must set forth specific facts showing that there is a genuine issue for trial.” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009) (citing Matsushita, 475 U.S. at 586; Fed. R. Civ. P. 56). The nonmoving party must present sufficient probative evidence supporting its claim that disputes over material facts remain and must be resolved by a judge or jury at trial. Anderson, 477 U.S. at 248–49 (citing First Nat’l Bank of Ariz. v. Cities Serv. Co., (1968 ; see also White v. Wyndham Vacation Ownership, Inc., 617 F.3d 472, 475–76 (6th Cir. 2010). A mere scintilla of evidence is not enough; there must be evidence from which a jury could reasonably find in favor of the nonmoving party. Anderson, 477 U.S. at 252; Moldowan, 578 F.3d at 374. The Court’s role is limited to determining whether there is a genuine dispute about a material fact, that is, if the evidence in the case “is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. Such a determination requires that the Court “view the evidence presented through the prism of the substantive evidentiary burden” applicable to the case. Id. at 254. Thus, if the plaintiff must ultimately prove its case at trial by a preponderance of the evidence, on a motion for summary judgment the Court must determine whether a jury could reasonably find that the plaintiff’s factual contentions are true by a preponderance of the evidence. See id. at 252–53. Finally, if the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the movant is entitled to summary judgment. Celotex, 477 U.S. at 323. The Court must construe Rule 56 with due regard not only 4 Case 2:19-cv-02715-MSN-atc Document 28 Filed 02/10/21 Page 5 of 15 PageID 196 for the rights of those “asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury,” but also for the rights of those “opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.” Id. at 327. Discussion This matter is before the Court based on diversity jurisdiction. (ECF No. 1 at PageID 2.) Therefore, the Court applies Tennessee law to resolve this dispute. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). A. Applicable Law Defendant contends that it is entitled to judgment as a matter of law because, if Plaintiff had accurately answered the question concerning his business operations, Defendant would not have issued him a policy due to its increased risk of loss. (ECF No. 24-1 at PageID 122.) As the basis for its argument, Defendant relies on Tenn. Code Ann. § 56-7-103, which provides that: No written or oral misrepresentation or warranty made in the negotiations of a contract or policy of insurance, or in the application for contract or policy of insurance, by the insured or in the insured's behalf, shall be deemed material or defeat or void the policy or prevent its attaching, unless the misrepresentation or warranty is made with actual intent to deceive, or unless the matter represented increases the risk of loss. This provision authorizes an insurer to void the policy when misrepresentations made by the applicant in obtaining the policy increases the insurer’s risk of loss. See Smith v. Tenn. Farmers Life Reassurance Co., 210 S.W.3d 584, 590 (Tenn. Ct. App. 2006); Snead v. Nationwide Prop. and Cas. Ins. Co., 653 F. Supp.2d 823, 826 (W.D. Tenn. 2009). To avoid coverage, the insurer must first show that the applicant’s answer contained a misrepresentation. See Kentucky Cent. Life Ins. Co. v. Jones, 799 F. Supp. 53, 55 (M.D. Tenn. 1992). “Whether an insured’s answer in an application is a misrepresentation is ordinarily an issue 5 Case 2:19-cv-02715-MSN-atc Document 28 Filed 02/10/21 Page 6 of 15 PageID 197 of fact to be determined by the jury at trial.” Acuity Mut. Ins. Co. v. Frye, 699 F.Supp.2d 975, 985 (E.D. Tenn. 2010); see also Womack v. Blue Cross and Blue Shield of Tenn., 593 S.W.2d 294, 295 (Tenn. 1980). However, the Court can decide this issue at the summary judgment stage if “reasonable minds” could only reach one conclusion as to the alleged misrepresentation. See Frye, F. Supp. 2d at 985. If it is determined that the application contains a misrepresentation, “it [then] becomes a question of law, not fact, for the court as to whether the misrepresentations materially increased the risk of loss.” Broyles v. Ford Life Ins. Co., 594 S.W.2d 691, 693 (Tenn. 1980); see also Howell v. Colonial Penn Ins. Co., 842 F.2d 821, 823 (6th Cir. 1987); Vermont Mut. Ins. Co. v. Chiu, 21 S.W.3d 232, 235 (Tenn. Ct. App. 2000). A misrepresentation increases the insured’s risk of loss under Tenn. Code Ann. § 56-7-103 “when it is of such importance that it ‘naturally and reasonably influences the judgment of the insuror in making the contract.’” Vermont Mut. Ins. Co., 21 S.W. 3d at 235 (quoting Sine v. Tennessee Farmers Mut. Ins. Co., 861 S.W.2d 838, 839 (Tenn. Ct. App. 1993 . In other words, “the matter misrepresented must be of that character which the court can say would reasonably affect the insurer's judgment.” Vermont Mut. Ins. Co., 21 S.W. 3d at 325 (quoting Volunteer State Life Ins. Co. v. Richardson, 244 S.W. 44, 49 (Tenn. 1922 . The Court “may use the questions an insurance company asks on its application to determine the types of conditions or circumstances that the insurance company considers relevant to its risk of loss.” Snead, 653 F. Supp. 2d at 827 (citation omitted). In addition, courts also “frequently rely” on the insurer’s representatives to explain how a truthful answer by the applicant would have influenced either the policy’s premium or its issuance. See id. However, the Court must not simply take the insurer’s word that it would have acted differently; the Court must make its own independent assessment that the misrepresented matter “would reasonably affect the 6 Case 2:19-cv-02715-MSN-atc Document 28 Filed 02/10/21 Page 7 of 15 PageID 198 insurer’s judgment.” See Howell, 842 F.2d at 824 (quoting Broyles v. Ford Life Ins. Co., 594 S.W.2d 691, 693 (Tenn. 1980 . “The fact misrepresented need not be with reference to a hazard which actually produced the loss in question.” Loyd v. Farmers Mut. Fire Ins. Co., 838 S.W.2d 542, 545 (Tenn. Ct. App. 1992). At bottom, the insurer must show that it “was denied information which it sought in good faith and which was deemed necessary to an honest appraisal of insurability.” Id. (citing Johnson v. State Farm Life Ins. Co., 633 S.W.2d 484, 488 (Tenn. Ct. App. 1981 . B. Whether Plaintiff made a misrepresentation on the insurance application After reviewing the evidence and the parties’ arguments, the Court finds that Plaintiff clearly misrepresented in his application the existence of business activity at the residence. In response to the question concerning whether the “[a]pplicant [is] conducting any business or occupational pursuits at the premises,” Plaintiff responded that he was not. (ECF No. 24-1 at PageID 119; ECF No. 24-5 at PageID 148.) As proof that this answer was false, Defendant relies on the testimony of Howard Jesmer, Plaintiff’s father and owner of H&M Recycling. Plaintiff works for his father’s business as a tow truck driver. (ECF No. 24-2 at PageID 125; ECF No. 25- 1 at PageID 161.) Mr. Jesmer testified that Plaintiff operated H&M Recycling out of the residence at 310 Fields Drive.2 (ECF No. 24-2 at PageID 126; ECF No. 24-3 at PageID 130–33.) 2. At his deposition, Mr. Jesmer testified to the following: Q. So you moved to Fields Drive your operation in 2015, you believe? A. Somewhere around there. Q. And when did that change? A. It didn’t. I mean, that’s what Anthony was running at this house. He steadily was running that one. Then, you know, of course, you know, I’m opening up the other tow yard in Orange Beach. Q. Is it still H&M Recycling? A. Yeah. . . . Q. How many trucks generally at a time are we talking about? 7 Case 2:19-cv-02715-MSN-atc Document 28 Filed 02/10/21 Page 8 of 15 PageID 199 Mr. Jesmer explained that around 2015, he moved H&M Recycling to the residence at 310 Fields Drive. (ECF No. 24-2 at PageID 125; ECF No. 24-3 at PageID 129.) Since that move, Plaintiff “steadily” operated the business out of the residence until the August 2018 fire. (ECF No. 24-3 at PageID 130–33.) For example, up until the fire, 310 Fields Drive served as the base of operations for eight (8) tow trucks.3 (ECF No. 24-3 at PageID 133–34.) The drivers of these tow trucks would come and go from the residence and would leave their personal vehicles there while out on the job.4 (ECF No. 24-3 at PageID 134.) The reason Mr. Jesmer left the tow trucks at the residence was because Plaintiff could watch over them. (ECF No. 24-3 at PageID 132–33.) It is undisputed that Plaintiff failed to disclose this information on his application. (ECF No. 24- 2 at PageID 126.) Plaintiff denies that his application misrepresented any alleged business activity at the residence. (ECF No. 25 at PageID 158.) First, Plaintiff asserts that his father did not live at the A. Eight trucks that Anthony runs, got eight tow trucks. Q. And those were operating out of 310 Fields Drive until the fire loss? A. Right (ECF No. 24-3 at PageID 130, 133.) 3. At Mr. Jesmer’s deposition, in response to the question “how many trucks generally at a time are we talking about,” he stated “[e]ight trucks that [Plaintiff] runs, got eight tow trucks.” (ECF No. 24-3 at PageID 133.) Further, those trucks operated out of the residence until the fire in August 2018. (Id.) 4. Mr. Jesmer testified to the following: Q. Did your drivers typically when they weren’t driving leave the dump trucks— sorry—the two [sic] trucks at 310 Fields?” A. Yeah, they always were at 310. Q. How many would you guess would be there at any given time? A. Probably four to eight. Q. You said that earlier, I remember, four to eight, and then whatever personal vehicles were there? A. Yeah. (ECF No. 24-3 at PageID 134.) 8 Case 2:19-cv-02715-MSN-atc Document 28 Filed 02/10/21 Page 9 of 15 PageID 200 residence at the time he submitted his application. (ECF No. 25-1 at PageID 160.) More importantly, Plaintiff argues that his activities do not qualify as a “business pursuit,” and thus, he did not misrepresent this matter on the application. (ECF No. 25 at PageID 157–58.) To support his assertion that his activities were not a “business pursuit,” Plaintiff relies on a line of cases addressing exclusion provisions found within insurance policies in addition to explaining his responsibilities as a tow-truck driver.5 (Id. at PageID 156–58.) These responsibilities, when viewed through lens of the cases Plaintiff cites, do not qualify as a “business pursuit.” To the Court’s surprise, entirely absent from Plaintiff’s Response is any reference to the testimony provided by Mr. Jesmer. This failure to address Mr. Jesmer’s testimony bears directly on the viability of Plaintiff’s claims, especially given the content of his testimony. Mr. Jesmer testified that: (1) Plaintiff operated H&M Recycling out of the residence until the August 2018 fire; (2) up to eight (8) tow trucks were housed at the residence; (3) the drivers of these tow trucks would come and go from the residence and would leave their personal vehicles while out on jobs; and (4) the reason trucks were left at the residence was because Plaintiff could watch over them. By not responding to these factual assertions by Mr. Jesmer, Plaintiff leaves this testimony unrebutted.6 5. For example, Plaintiff would travel to locations such as Memphis, Nashville, and even Oklahoma to pick up vehicles. (ECF No. 25-1 at PageID 161.) Once secured, Plaintiff would then take these vehicles back to either H&M recycling or to another pre-selected destination for drop- off. (Id.) Plaintiff asserts that the only time a towed vehicle was brought to the residence is if he could not complete the delivery that day. (Id.) On those occasions, he would complete delivery the next day (Id.) 6. Pursuant to Local Rule 56.1(a), Defendant submitted with his Summary Judgment Motion a Statement of Undisputed Facts. (ECF No. 24-2.) Local Rule 56.1 requires that Plaintiff respond to each fact asserted by Defendant. LR 56.1(b). He did not. Accordingly, the failure to respond leads to the Court to conclude that the facts are admitted. LR 56.1(d); see also Akines v. Shelby Cty. Gov’t, 512 F. Supp. 2d 1138, 1147–48 (W.D. Tenn. 2007). 9 Case 2:19-cv-02715-MSN-atc Document 28 Filed 02/10/21 Page 10 of 15 PageID 201 Putting aside this fact, the Court addresses Plaintiff’s argument that his activities do not constitute a “business pursuit.” (ECF No. 25 at PageID 157–58.) In making this argument, Plaintiff relies on cases interpreting provisions within insurance policies that excluded “business pursuits” from the policy’s ambit. (ECF No. 25 at PageID 156–57); See Mid-Century Ins. Co. v. Williams, 174 S.W.3d 230, 237 (Tenn. Ct. App. 2005) (analyzing whether day care services provided by the defendant fell within the business pursuits exclusion of the insurance policy); State Farm Fire & Cas. Co. v. Sparks, No. W2006-01036-COA-R3-CV, 2007 WL 4277454, at *4 (Tenn. Ct. App. Dec. 7, 2007) (determining whether a business pursuit exclusion applied to parties’ ownership of an oil well); Allstate Ins. v. Godsey, No. 03A01-9107cv243, 1991 WL 261873, at *2 (Tenn. Ct. App. Dec. 13, 1991) (holding that the defendant did not operate a boat sales agency that would fall within the business pursuit exclusion). Plaintiff’s argument on this point fails for three reasons. First, these cases are inapposite. Second, even when applying these cases to these facts, Plaintiff’s claim fares no better. And finally, in light of the application’s clear language, Plaintiff failed to respond accurately to the question at issue. The cases relied on by Plaintiff involve interpretation of exclusion provisions found within an insurance policy. See, e.g., Mid-Century Ins. Co., 174 S.W. at 237. Naturally, the court had to refer to the policy itself to resolve the issue. Defendant, however, does not rely on an exclusion provision.7 Rather, Defendant argues that the policy was void from inception due to misrepresentations in Plaintiff’s application. (ECF No. 27 at PageID 186.) Interpreting a contract is a different matter than determining whether Plaintiff’s application contained misrepresentations. However, assuming arguendo that these cases apply, Plaintiff’s argument still does not prevail. In deciding whether an activity qualifies as a “business pursuit,” the Court looks to see 7. Indeed, neither party relies on any provision of the insurance policy in their briefings. 10 Case 2:19-cv-02715-MSN-atc Document 28 Filed 02/10/21 Page 11 of 15 PageID 202 (1) if a profit motive exists and (2) if the activity is continuous or regular. See Mid-Century Ins. Co., 174 S.W.3d at 240 (citing Godsey, 1991 WL 261873, at *3). Undoubtedly a profit motive exists here because Plaintiff received one thousand dollars ($1,000) a week as tow truck driver. (ECF No. 25-1 at PageID 162.) Expected compensation in return for services suffices as a profit motive. See Mid-Century Ins. Co., 174 S.W.3d at 238–39 (“[W]e believe the AFDC payments, coupled with her expectation of compensation by Ms. Futrell for keeping Petey and Quisha, help to reveal Ms. Williams's motive in performing such services.”). Further, the Court deems that Plaintiff’s activity at the residence was continuous and regular. See Mid-Century Ins. Co, 174 S.W. at 240. Given that Plaintiff has not rebutted his father’s testimony that he “steadily” operated the business out of the residence, this requirement is met. Thus, even if the Court adopts Plaintiff’s desired approach, his claim still fails. Finally, Plaintiff’s argument does not grapple with the insurance application’s text and purpose. In looking at the application, it asked whether Plaintiff “conduct[ed] any business or occupational pursuits at the premises.” (ECF No. 24-5 at PageID 148.) By using “any,” the question intends to have a broad reach that would include even the occasional business pursuit at the residence. See Any, Merriam-Webster, https://www.merriam- webster.com/dictionary/any?src=search-dict-hed, (last visited Feb. 2, 2021) (defining “any” as “one or some indiscriminately of whatever kind” or “one, some, or all indiscriminately of whatever quantity”). Even if the Court only relies on Plaintiff’s admission that he “occasionally” brought vehicles back to the residence as part of his duties, (ECF No. 25 at PageID 158; ECF No. 25-1 at PageID 161), this limited activity still falls under the question’s broad reach. Therefore, it cannot be disputed that Plaintiff was not entirely forthright considering the question’s plain text. 11 Case 2:19-cv-02715-MSN-atc Document 28 Filed 02/10/21 Page 12 of 15 PageID 203 Further, Plaintiff misunderstands the purpose of these applications. Insurance applications, like the one Plaintiff completed, allow insurers to make “an honest appraisal of insurability.” Kentucky Cent. Life Ins. Co. v. Jones, 799 F. Supp. 53, 55 (M.D. Tenn. 1992) (quoting Johnson V. State Farm Life Ins. Co., 633 S.W. 2d 484, 488 (Tenn. Ct. App. 1981 . By not being forthright, Plaintiff deprived Defendant of the opportunity to properly weigh its risk in offering Plaintiff an insurance policy. To accept Plaintiff’s argument would undermine the information seeking purpose of these applications. Considering all the evidence, reasonable minds could only conclude that Plaintiff misrepresented the existence of business activity at the residence. See Acuity Mut. Ins. Co. v. Frye, 699 F.Supp.2d 975, 985 (E.D. Tenn. 2010). Thus, Defendant has carried its burden showing that Plaintiff’s application contained a misrepresentation. C. Whether Plaintiff’s misrepresentation increased Defendant’s risk of loss Having determined that Plaintiff’s application contained a misrepresentation, the Court must now address whether the misrepresented matter increased Defendant’s risk of loss. See Broyles v. Ford Life Ins. Co., 594 S.W.2d 691, 693 (Tenn. 1980); see also Howell v. Colonial Penn Ins. Co., 842 F.2d 821, 823 (6th Cir. 1987); Vermont Mut. Ins. Co. v. Chiu, 21 S.W.3d 232, 235 (Tenn. Ct. App. 2000). This is a question of law for the Court to determine. See Broyles, 594 S.W. 2d at 693. Ultimately, the Court must determine whether the misrepresented information would “reasonably affect the insurer’s judgment.” Vermont Mut. Ins. Co., 21 S.W. 3d at 325 (quoting Volunteer State Life Ins. Co. v. Richardson, 244 S.W. 44, 49 (Tenn. 1922 . Defendant contends that Plaintiff’s misrepresentation increased its risk of loss. (ECF No. 24-1 at PageID 122.) Had Defendant known of Plaintiff’s business activity, it asserts it would not have issued Plaintiff his policy due to the increased risk of loss. (ECF No. 24-2 at PageID 126; 12 Case 2:19-cv-02715-MSN-atc Document 28 Filed 02/10/21 Page 13 of 15 PageID 204 ECF No. 24-6.) On this point, Plaintiff’s Response fails to address this issue entirely. After considering all the evidence, the Court agrees with Defendant. Here, Defendant’s application unambiguously asked if the applicant is “conducting any business or occupational pursuits at the premises.” (ECF No. 24-5 at PageID 148.) In light of that, it appears Defendant considered any potential business activity relevant to its risk analysis. See Snead v. Nationwide Prop. and Cas. Ins. Co., 653 F. Supp.2d 823, 827 (W.D. Tenn. 2009) (explaining that courts can use the insurer’s application to determine what issues it finds relevant to its risk of loss). Further, failure to disclose the existence of business activity can increase the insurer’s risk of loss. See Vermont Mut. Ins. Co., 21 S.W. 3d at 236–37 (“Chiu’s failure to disclose the continuation of her boarding business and the existence of boarders in her home increased the risk of loss.”). In addition to this, Defendant’s agent, Lisa Keller, explained that Plaintiff would not have been issued a policy had Defendant known of his business activity. (ECF No. 24-2 at PageID 126; ECF No. 24-6); see also Snead, 653 F. Supp.2d at 827 (“[C]ourts frequently rely on the testimony of insurance company representatives to establish how truthful answers by the proposed insured would have affected the amount of the premium or the company's decision to issue the policy.”). However, this information alone is not dispositive, for the Court must make its own independent assessment. See Broyles, 594 S.W.2d at 693 (“It is not to be left to the insurance company to say. . . that it would or would not have issued the policy. . . . The matter misrepresented must be of that character which the court can say would reasonably affect the insurer’s judgment.”) (quoting Volunteer State Life Ins. Co. v. Richardson, 244 S.W. 44, 49 (Tenn. 1922 . As an initial matter, it is not dispositive that Defendant “did not offer any specific evidence of facts, figures or examples to show precisely how” Plaintiff’s business operation increased its 13 Case 2:19-cv-02715-MSN-atc Document 28 Filed 02/10/21 Page 14 of 15 PageID 205 risk of loss. See Vermont Mut. Ins. Co., 21 S.W.3d at 237. “It is only necessary to determine that the misrepresentation was sufficient to deny the insurer of information which they, in good faith, sought to discover, and which they must have deemed necessary to an honest appraisal of insurability.” Id. (quoting Johnson v. State Farm Life Ins. Co., 633 S.W.2d 484, 488 (Tenn. Ct. App. 1981 . On this point, it is important to remember the extent of the business activity at the residence. Unrebutted testimony from Mr. Jesmer established that Plaintiff operated H & M recycling out of the residence until the August 2018 fire. (ECF No. 24-3 at PageID 130–33.) This business activity consisted of tow truck drivers coming and going from the residence. (Id. at PageID 134.) These employees would leave their personal vehicles at the residence. (Id.) And finally, when not in use, the tow trucks would remain parked at the residence so that Plaintiff could watch over them. (Id. at PageID 133.) Given this substantial activity, Plaintiff’s misrepresentation denied Defendant of its ability to make an “honest appraisal” of Plaintiff’s insurability. At minimum, Plaintiff’s misrepresentation prevented Defendant from receiving notice of its need to inquire further into Plaintiff’s business activities. See Vermont Mut. Ins. Co., 21 S.W.3d at 237 (“If Chiu had answered the question truthfully, Vermont Mutual could have taken additional measures to make a ‘honest appraisal of insurability.’”) Depending on the result of that inquiry, that could have affected Plaintiff’s monthly premium or whether Plaintiff was issued a policy at all. As possibly the worst result, Plaintiff’s misrepresentation potentially exposed Defendant to hundreds of thousands of dollars in unknown risk. In addition to testifying to the business activity at the residence, Mr. Jesmer disclosed that the trucks left at the residence had an aggregate value of around four-hundred thousand dollars ($400,000) to five-hundred thousand dollars 14 Case 2:19-cv-02715-MSN-atc Document 28 Filed 02/10/21 Page 15 of 15 PageID 206 ($500,000). (ECF No. 24-3 at PageID 133.) Moreover, the Court cannot ignore the risk of having employees of the business coming and going from the residence. Ultimately, it cannot be disputed that this information, had it been disclosed, could have “reasonably influence[d] the judgment of the insurer in making the contract.” Snead, 653 F. Supp.2d at 827. Thus, it appears the Plaintiff’s misrepresentation increased Defendant’s risk of loss within the meaning of Tenn. Code Ann. § 56- 7-103. Accordingly, Defendant is entitled to judgment as a matter of law. Defendant’s Motion is hereby GRANTED. Conclusion For the reasons stated, Defendant’s Motion for Summary Judgment is GRANTED. This matter is hereby DISMISSED WITH PREJUDICE. IT IS SO ORDERED, this 10th day of February, 2021. s/ Mark Norris MARK S. NORRIS UNITED STATES DISTRICT JUDGE 15
=== 18-2631 ===
Case 2:18-cv-02631-MSN-tmp Document 66 Filed 07/30/20 Page 1 of 3 PageID 1407 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ______________________________________________________________________________ QUANNAH HARRIS, Plaintiff, v. JERRY BIDDLE, JOHN McCLAIN, and ROXANNA GUMUCIO, Defendants. No. 2:18-cv-02631-MSN-tmp ______________________________________________________________________________ ORDER DENYING PLAINTIFF’S MOTION TO ALTER OR AMEND JUDGMENT ______________________________________________________________________________ Before the Court is Plaintiff’s Motion Under Rule 59 of the Federal Rules of Civil Procedure (“Motion to Alter or Amend”), filed on April 24, 2020, (ECF No. 64). Defendants filed a Response in opposition to Plaintiff’s Motion on May 7, 2020. (ECF No. 65.) For the reasons set forth below, Plaintiff’s Motion is DENIED. DISCUSSION Relying on Federal Rule of Civil Procedure 59, Plaintiff argues the Court should reopen this case to reconsider its Order Adopting Report and Recommendation entered on April 1, 2020, (ECF No. 62). As grounds, Plaintiff asserts that this Court’s review of the Magistrate Judge’s Report and Recommendation (“the “Report”) under a plain error standard constitutes manifest injustice in light of her pro se status. (ECF No. 64-1 at PageID 1377.) Plaintiff further argues that the Court erred when it ruled Plaintiff’s objections simply reiterated the arguments raised in her response to Defendants’ motion for summary judgment. (Id. at PageID 1380–81.) Case 2:18-cv-02631-MSN-tmp Document 66 Filed 07/30/20 Page 2 of 3 PageID 1408 In response, Defendants argue Plaintiff’s Motion to Alter or Amend must be denied because it offers only old allegations and arguments that have already been considered by the Court. (ECF No. 65 at PageID 1403.) The purpose of Rule 59(e) is to allow a district court to correct its own mistakes in the period immediately following the entry of judgment.1 White v. New Hampshire Dep’t of Emp’t Sec., 455 U.S. 445, 450 (1982). It “is not intended to relitigate matters already decided by the Court.” Windsor v. A Federal Executive Agency, 614 F. Supp. 1255, 1264 (M.D. Tenn. 1983), aff’d, 767 F.2d 923 (6th Cir. 1985). A court may alter or amend its judgment because of an intervening change in the controlling law, newly discovered evidence, or to correct a clear error of law or prevent a manifest injustice. Franklin v. Francis, 36 F. Supp. 2d 1008, 1010 (S.D. Ohio 1999) (citing Petition of U.S. Steel Corp., 479 F.2d 489, 494 (6th Cir. 1973 . “A party may not use a motion for reconsideration under Rule 59(e) ‘to re-argue a case’ or to present issues that could—and should—have been raised before judgment.” A Renewed Mind v. Weatherby, 675 Fed. Appx. 572, 574 (6th Cir. 2017). Here, Plaintiff has failed to make the required showing under Rule 59(e). Plaintiff does not claim the existence of either newly discovered evidence or an intervening change in controlling law. Neither has Plaintiff convinced this Court that its ruling is the product of some clear error of law or that it results in some manifest injustice. Rather, Plaintiff’s Motion raises several substantive arguments which the Court has already addressed (see ECF No. 1377–86) and attempts to raise new factual and legal objections to the Report (see ECF No. 64-1 at PageID 1387–91). 1 Under Fed. R. Civ. P. 59(e), “[a] motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.” 2 Case 2:18-cv-02631-MSN-tmp Document 66 Filed 07/30/20 Page 3 of 3 PageID 1409 The Court cautions that a Rule 59(e) motion is not the appropriate occasion to repeat previously rejected arguments or to make new arguments that previously could have been made. Indeed, each argument raised in Plaintiff’s Motion was or could have been raised either in opposition to Defendants’ motion for summary judgment or in her objection to the Report. To the extent Plaintiff’s “manifest injustice” argument hinges on her assertion that the Court should have reviewed her objections to Report under a more liberal standard, that argument is belied by the fact that the Court did consider her objections in light of her pro se status and found them deficient. CONCLUSION For the reasons stated herein, Plaintiff’s Motion to Alter or Amend (ECF No. 64) is DENIED. IT IS SO ORDERED, this 30th day of July, 2020. s/ Mark Norris MARK S. NORRIS UNITED STATES DISTRICT JUDGE 3
=== 22-2638 ===
Case 2:22-cv-02638-MSN-tmp Document 14 Filed 03/29/24 Page 1 of 7 PageID 58 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ______________________________________________________________________________ CRAIG S. SHADE, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. Case No. 2:22-cv-2638-MSN-tmp JURY DEMAND ______________________________________________________________________________ ORDER GRANTING MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM ______________________________________________________________________________ Before the Court is Defendant’s Motion to Dismiss for Failure to State a Claim (ECF No. 10, “Motion”). Plaintiff responded in opposition (ECF No. 12), and Defendant filed a reply in support of its Motion (ECF No. 13). The matter is ripe for adjudication. For the reasons set forth below, Defendant’s Motion is GRANTED. BACKGROUND Plaintiff alleges that, while he was an inmate at the Federal Correctional Institution in Memphis (“FCI Memphis”), he ruptured his Achilles tendon while playing basketball. (ECF No. 1 at PageID 1–2.) That injury occurred on December 24, 2019, and on that date “he presented to the medical infirmary,” and was diagnosed with “an Achilles tendon injury.” (Id. at PageID 2.) The Complaint, however, does not specifically allege who diagnosed Plaintiff. Plaintiff says that four days later, on December 28, 2019, Dr. J. Benitez gave a verbal order to Nurse Samuel D. Lacey to send Plaintiff to a local hospital. (Id.) Although not entirely clear from the Complaint, it appears that Plaintiff was not taken to a local hospital as ordered because Plaintiff next alleges Case 2:22-cv-02638-MSN-tmp Document 14 Filed 03/29/24 Page 2 of 7 PageID 59 that on January 13, 2020, Dr. Benitez “noted probable left Achilles injury,” and “documented that the Plaintiff should have an urgent orthopedic consult with an MRI.” (Id.) The next day, Plaintiff was taken to Regional One Hospital where he received an x-ray and foot splint and was ordered to see an orthopedic doctor in one week. (Id.) On February 4, 2020, Plaintiff saw Dr. Allison Whittle at the “Orthopedic Clinic.” (Id.) Dr. Whittle told Plaintiff that “delayed presentation may make conservative treatment more difficult,” but she would begin Plaintiff’s treatment by giving him a boot with two heel lifts. (Id.) Dr. Whittle ordered Plaintiff to return in four weeks so that the heel lifts could be gradually removed. (Id.) Dr. Whittle also “concurred with the resident that Plaintiff ha[d] not really been treated appropriately for his Achilles tendon injury.” (Id.) Plaintiff continued to have pain and range of motion issues over the next six months, during which time he received another MRI and was given self-directed exercises to improve his range of motion. (Id. at PageID 2–3.) As of January 20, 2022, Plaintiff was still having decreased strength and pain; he was again seen at Regional One Health and prescribed therapy. (Id. at PageID 3.) Plaintiff contends that “the United States of America, through its agents, servants and employees acting with[in] the scope of their employment,” “negligently and carelessly deviated from the standard of care required and expected” in timely diagnosing and treating Plaintiff’s Achilles tendon injury, and “was negligent in the medical care and attention rendered to the Plaintiff in failing to recognize the injury to his Achilles tendon and in obtaining appropriate evaluation and treatment of his Achilles tendon injury in a timely manner and failing to refer him for appropriate treatment; and these omissions were a failure to exercise the degree of care, skill and diligence used by medical providers in this community and/or a similar community, under the same or similar circumstances presented to the Defendant . . . .” (Id. at PageID 3–4.) Plaintiff alleges that Defendant’s negligence caused him to suffer serious physical injuries, including 2 Case 2:22-cv-02638-MSN-tmp Document 14 Filed 03/29/24 Page 3 of 7 PageID 60 extreme pain, emotional distress, mental anguish, and loss of normal enjoyment of life. (Id. at PageID 4.) Plaintiff filed his Complaint on September 20, 2022, pursuant to the Federal Tort Claims Act (“FTCA”), seeking $350,000 in damages for his injuries. STANDARD OF REVIEW In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court will “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). Using this framework, the court determines whether the complaint alleges “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, , 678 (2009) (citing Bell Atl. Corp. v. Twombly, , 570 (2007 . A claim is plausible on its face if “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). A complaint need not contain detailed factual allegations; however, a plaintiff’s “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). In other words, the “[f]actual allegations must be enough to raise a right to relief above [a] speculative level.” Ass’n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007) (quoting Twombly, 550 U.S. at 555). If a court decides, based on its judicial experience and common sense, that the claim is not plausible, the case may be dismissed at the pleading stage. Iqbal, 556 U.S. at 679. “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679; Twombly, 550 U.S. at 556. 3 Case 2:22-cv-02638-MSN-tmp Document 14 Filed 03/29/24 Page 4 of 7 PageID 61 DISCUSSION Absent a waiver, the United States is immune from suit. See United States v. Mitchell, 445 U.S. 535, 538 (1980) (“It is elementary that the United States, as sovereign, is immune from suit save as it consents to be sued.”). The FTCA waives the United States sovereign immunity for the negligent acts or omissions of its employees that occur when the employees are acting within the scope of their employment and “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). Thus, tort liability under the FTCA is “determined in accordance with the law of the state where the event giving rise to liability occurred.” L. C. v. United States, 83 F.4th 534, 550 (6th Cir. 2023) (citing Milligan v. United States, 670 F.3d 686, 692 (6th Cir. 2012 . Plaintiff alleges that he tore his Achilles tendon and then received negligent medical care while incarcerated at FCI Memphis in Memphis, Tennessee; Tennessee substantive law thus applies to his claims. For a negligence claim, the plaintiff must show “(1) a duty of care owed by the defendant to the plaintiff; (2) conduct by the defendant falling below the standard of care amounting to a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate or legal cause.” Fulghum v. Notestine, No. M202200420COAR3CV, 2023 WL 7151647, at *6 (Tenn. Ct. App. Oct. 31, 2023) (citing Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 355 (Tenn. 2008 . These elements are similar to, and overlap with, those required for “health care liability actions” under the Tennessee Health Care Liability Act (“THCLA”); health care liability actions “are a specialized type of negligence claim created by statute.” Vilas v. Love, No. W202201071COAR3CV, 2023 WL 7040062, at *11 (Tenn. Ct. App. Oct. 26, 2023) (quoting Smith v. Testerman, No. E2014- 4 Case 2:22-cv-02638-MSN-tmp Document 14 Filed 03/29/24 Page 5 of 7 PageID 62 00956-COA-R9-CV, 2015 WL 1118009, *5 (Tenn. Ct. App. Mar. 10, 2015 (cleaned up); see Goyer v. Ashe, No. 21-CV-2059-JTF-ATC, 2023 WL 2776732, at *5 (W.D. Tenn. Apr. 4, 2023). As defined in the THCLA, a “health care liability action” is “any civil action, including claims against the state or a political subdivision thereof, alleging that a health care provider or providers have caused an injury related to the provision of, or failure to provide, health care services to a person, regardless of the theory of liability on which the action is based.” Tenn. Code Ann. § 29-26-101(a)(1). In a health care liability action under the THCLA, a plaintiff must prove the following three elements: (1) “the recognized standards of acceptable professional practice in the profession”; (2) “[t]hat the defendant acted with less than or failed to act with ordinary and reasonable care in accordance with such standard”; and (3) “[a]s a proximate result of the defendant’s negligent act or omission, the plaintiff suffered injures which would not otherwise have occurred.” See Tenn. Code Ann. § 29-26-115(a). Here, Plaintiff’s Complaint falls short of alleging sufficient facts to state a plausible health care liability claim under Tennessee law.1 According to his Complaint, Plaintiff’s injury was diagnosed as an Achilles tendon injury the day it occurred, and four days later, Dr. Benitez ordered Plaintiff to be taken to a local hospital. Plaintiff, however, does not allege that Dr. Benitez, or any other “health care provider,” should have sent him to a local hospital before this date or that any other aspect of Dr. Benitez’s treatment fell below the applicable standard of care. Although it appears that Plaintiff was not taken to the hospital as Dr. Benitez ordered, Plaintiff does not allege that this was due to an act or omission of Dr. Benitez or that this specific delay fell below the 1 Although Plaintiff does not reference the THCLA, or state he is bringing a healthcare liability action in his Complaint, his response to Defendant’s motion clarifies that he’s asserting a “healthcare liability claim” pursuant to the FTCA. (See ECF No. 12 at PageID 46.) 5 Case 2:22-cv-02638-MSN-tmp Document 14 Filed 03/29/24 Page 6 of 7 PageID 63 applicable standard of care.2 That’s true for next alleged event, too, when Dr. Benitez again noted Plaintiff’s Achilles injury and that he should have an urgent orthopedic consult with an MRI, but Plaintiff was taken to a local emergency room instead. Then there was a three-week delay after that until Plaintiff saw an orthopedic doctor. But again, Plaintiff does not allege the applicable standard of care or how any “health care providers” acted with less than ordinary and reasonable care in accordance with that standard. In sum, Plaintiff generally alleges that the care and treatment he received fell below the applicable standard of care, but he does not allege what the applicable standard of care was or how any health care provider’s actions fell below that standard of care.3 Plaintiff has therefore failed to state a plausible health care liability claim under the THCLA. See, e.g., Johnson v. United States, No. 17-5653, 2018 U.S. App. LEXIS 7533, at *5 (6th Cir. Mar. 23, 2 In his response, Plaintiff argues that Defendant breached the standard of care when it failed to diagnose and treat Plaintiff’s Achilles injury “for over a month when Dr. Benitez states that it was an emergency. It is plausible that Dr. Benitez knew or should have known that it was an emergency when he first instructed Nurse to get him to the hospital for outside treatment. Nurse Lacey knew or should have known that when Dr. Benitez gave his order that it should have been followed as soon as reasonably practicable, but no action was taken increasing the unnecessary pain and suffering being experienced by the Plaintiff from an untreated injury to Achilles.” (ECF No. 12 at PageID 49.) Plaintiff thus appears to allege that Nurse Lacey was negligent in failing to follow Dr. Benitez’s order. These facts, however, are absent from Plaintiff’s Complaint, and this Court may not consider them in evaluating Defendant’s Motion. See, e.g., Bates v. Green Farms Condo. Ass’n, 958 F.3d 470, 483 (6th Cir. 2020) (“The court may not take into account additional facts asserted in a memorandum opposing the motion to dismiss, because such memoranda do not constitute pleadings under Rule 7(a).” (cleaned up ; Sorah v. Tipp City Exempted Vill. Sch. Dist. Bd. of Educ., 611 F. Supp. 3d 441, 449 (S.D. Ohio 2020) (“Plaintiffs are not permitted to remedy pleading deficiencies through a response brief.”). If Plaintiff believed he needed to add facts to his Complaint to withstand Defendant’s Motion, he could have moved to amend his Complaint under Rule 15. See, e.g., Bates, 958 F.3d at 483. He did not do so. 3 Other than Dr. Benitez and Nurse Lacey, the only other health care provider named in the Complaint is Dr. Naveed Gill, who Plaintiff alleges saw him on September 14, 2020, when he presented to the prison medical infirmary with pain, numbness, swelling and a limp. (See ECF No. 1 at PageID 3.) According to Plaintiff, Dr. Gill stated she would refer Plaintiff to orthopedic. There are no other allegations about Dr. Gill. Therefore, Plaintiff has similarly failed to allege the applicable standard of care or that Dr. Gill’s action fell below that standard. 6 Case 2:22-cv-02638-MSN-tmp Document 14 Filed 03/29/24 Page 7 of 7 PageID 64 2018) (affirming the district court’s dismissal of health care liability action because the plaintiff did not allege a standard of care, so he could not show the health care provider acted with less than ordinary and reasonable care); Goyer v. Ashe, No. 21-CV-2059-JTF-ATC, 2023 WL 2776732, at *5 (W.D. Tenn. Apr. 4, 2023) (dismissing FTCA claim because the plaintiff failed to “allege facts showing that the USA failed to act in accordance with the applicable standard of professional medical care,” or “allege facts demonstrating but-for cause and proximate cause”); M.S.G.L. v. United States, No. C22-1554RSM, 2023 WL 2401929, at *1–2 (W.D. Wash. Mar. 8, 2023) (dismissing FTCA claim under Rule 12(b)(6) because the plaintiffs “failed to include basic factual information about their negligence claim, including the specific care they claim fell below the standard of care and the identity of the providers whose care allegedly fell below the standard of care”); see also Hawthorne v. Veteran Affairs Med. Ctr., No. 9:18-CV-80508-ROSENBERG, 2018 WL 9686555, at *1 (S.D. Fla. Aug. 2, 2018) (explaining that the plaintiff failed to state a claim for negligence under the FTCA because he failed to allege, inter alia, that the treatment he received fell below the standard of care). CONCLUSION For the reasons set forth above, Defendant’s Motion to Dismiss for Failure to State a Claim (ECF No. 10) is GRANTED. Plaintiff’s Complaint is DISMISSED with prejudice for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). IT IS SO ORDERED, this 29th day of March, 2024. s/ Mark S. Norris MARK S. NORRIS UNITED STATES DISTRICT JUDGE 7
=== 20-2656 ===
Case 2:20-cv-02656-MSN-tmp Document 32 Filed 03/14/22 Page 1 of 14 PageID 415 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ______________________________________________________________________________ ALAA E. NOEMAN, Plaintiff, v. TOWN OF MASON, EMMIT GOODEN, CHRISTOPHER PATE, MASON BOARD OF ALDERMEN, Defendants. Case No. 2:20-cv-2656-MSN-tmp ______________________________________________________________________________ ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Before the Court is Defendants’ Motion for Summary Judgment (“Motion”) (ECF No. 27) filed November 17, 2021. After the Court granted an extension, Plaintiff filed his Response on January 4, 2022 (ECF No. 30). Defendants filed their Reply in support on January 18, 2022 (ECF No. 31.) For the reasons set forth below, Defendants’ Motion is GRANTED. BACKGROUND In support of their Motion, Defendants filed a Statement of Material Facts Upon Which Defendants Rely in Support of Their Motion for Summary Judgment (“Defendants’ SMF”) (ECF No. 27-30). Consistent with Fed. R. Civ. P. 56,1 Local Rule 56.1(b) of this Court provides, in pertinent part: 1 “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for Case 2:20-cv-02656-MSN-tmp Document 32 Filed 03/14/22 Page 2 of 14 PageID 416 Any party opposing the motion for summary judgment must respond to each fact set forth by the movant by either: (1) agreeing that the fact is undisputed; (2) agreeing that the fact is undisputed for the purpose of ruling on the motion for summary judgment only; or (3) demonstrating that the fact is disputed. Each disputed fact must be supported by specific citation to the record. Such response shall be filed with any memorandum in response to the motion. The response must be made on the document provided by the movant or on another document in which the non-movant has reproduced the facts and citations verbatim as set forth by the movant . . . . A party opposing a motion for summary judgment must file a response within 28 days after the motion is served . . . .” Plaintiff did not respond to Defendants’ SMF. In analogous contexts, this Court has deemed the movants’ facts undisputed for summary judgment purposes. See, e.g., Melton v. Bank of Lexington, No. 02-1152, 2007 WL 9706435, at *1 (W.D. Tenn. June 15, 2007) (internal citations omitted); Blount v. D. Canale Beverages, No. 02-2183, 2003 WL 23412034, at *1 (W.D. Tenn. Nov. 12, 2003). See also Fed. R. Civ. P. 56(e).2 Because Plaintiff has not complied with Fed. R. Civ. P. 56 and Local Rule 56.1, the facts in Defendants’ SMF are deemed admitted and undisputed for summary judgment purposes. Additionally, in support of his Response in opposition to Defendants’ Motion, Plaintiff filed a Statement of Material Facts Upon Which Plaintiff Relies in Support of His Response to Motion for Summary Judgment (“Plaintiff’s SMF”) (ECF No. 30-2). purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). 2 “If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may: . . . (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and supporting materials – including the facts considered undisputed – show that the movant is entitled to it; or (4) issue any other appropriate order.” Fed. R. Civ. P. 56(e). 2 Case 2:20-cv-02656-MSN-tmp Document 32 Filed 03/14/22 Page 3 of 14 PageID 417 Local Rule 56.1(b) provides, in pertinent part as follows: In addition, the non-movant’s response may contain a concise statement of any additional facts that the non-movant contends are material and as to which the non- movant contends there exists a genuine issue to be tried. Each such disputed fact shall be set forth in a separate, numbered paragraph with specific citations to the record supporting the contention that such fact is in dispute. Plaintiff’s statement of additional facts does not contain citations supporting that such facts are disputed. Instead, Plaintiff’s SMF contains citations and materials supporting the veracity of each fact. Neither the Federal Rules of Civil Procedure nor the Local Rules contemplate the nonmovant’s filing of a statement of undisputed facts, such as that submitted by Plaintiff. The Court therefore disregards this filing for purposes of deciding the Motion. Accordingly, the facts set forth below are undisputed for purposes of summary judgment. Plaintiff is a resident citizen of the Defendant Town of Mason, Tennessee (“Defendant Town”) and serves as an alderman and a member of the Board of Mayor and Alderman for Defendant Town. (ECF No. 27-30 at PageID 358.) Defendant Emmit Gooden (“Defendant Gooden”) is Mayor of Defendant Town and is sued in his official capacity. (Id. at PageID 359.) Defendant Christopher Pate was the Planner for Defendant Town at all times relevant to Plaintiff’s claims and is sued in his official capacity. (Id.) This matter centers around a parcel of commercial property located at 578 Highway 70, Mason, Tennessee, which is owned by Plaintiff (“Property”). (Id. at PageID 359.) According to Plaintiff’s Complaint, he sought to open a trucking school at the Property, but his application for a business license to do so was denied. (ECF No. 1-1 at PageID 5–7.) As alleged in the Complaint, Defendant Pate required Plaintiff to obtain a survey of the Property to confirm it was not in a “special flood area.” (Id.) Plaintiff alleges a survey is not necessary for the Property because he does not want to make improvements to the property that equal or exceed 50 percent of the Property’s value. (Id. at PageID 6–7.) Plaintiff alleges the denial of his business license and 3 Case 2:20-cv-02656-MSN-tmp Document 32 Filed 03/14/22 Page 4 of 14 PageID 418 Defendant Pate requiring Plaintiff to obtain a survey were the result of a political quarrel. (Id. at PageID 5 & 7.) Plaintiff further alleges he is “being discriminated against” because “other members of the community are operating businesses without a license in areas not zoned for commercial use.” (Id. at PageID 8.) Based on the foregoing, Plaintiff’s Complaint contains the following four headings for his causes of action: Count I Violation of Constitutional Rights; Count II Economic Losses; Count III Intentional Infliction of Emotional Distress; and Count IV Violations of 42 U.S.C. § 1983. (Id. at PageID 7–10.) During discovery, Plaintiff failed to come forward with the application he submitted in 2019 or 2020 for a business license to operate a trucking school, and Defendant Town has no record that Plaintiff submitted applications for such a business license in that time period. (ECF No. 27-30 at PageID 360.) Instead, what appears to be at issue are applications for a Certificate of Occupancy for the Property submitted by Plaintiff on May 16, 2019 (“2019 COO Application”) and March 6, 2020 (“2020 COO Application”). (Id. at PageID 361–62; see also ECF No. 27-5 at PageID 253–55.) It was in response to the 2019 and 2020 COO Applications that Defendant Pate recommended to the Defendant Town’s Code Compliance Officer, “Building Inspector,” that a survey of the Property be performed to determine if it was located in a “special flood hazard” area. (See ECF No. 27-5 at PageID 253–55; ECF No. 27-8 at PageID 263; ECF No. 27-12 at PageID 277.) Defendant Town’s Building Inspector administers and enforces the provisions of Defendant Town’s zoning ordinances; Defendant Pate does not have authority to make decisions, only to make recommendations. (ECF No. 27-5 at PageID 253.) In a memorandum prepared by Defendant Pate as to the 2020 COO Application, Plaintiff was advised that if the Building Inspector ordered a survey based on Defendant Pate’s recommendation, Plaintiff could appeal that decision to the Board of Zoning Appeals (“BZA”). (ECF No. 27-5 at PageID 254; ECF No. 27- 4 Case 2:20-cv-02656-MSN-tmp Document 32 Filed 03/14/22 Page 5 of 14 PageID 419 12 at PageID 277.) Plaintiff never appealed to the BZA as to either the 2019 COO Application or the 2020 COO Application. (ECF No. 27-30 at PageID 363.) STANDARD OF REVIEW Federal Rule of Civil Procedure 56 permits a party to move for summary judgment — and the Court to grant summary judgment — “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party asserting the presence or absence of genuine issues of material facts must support its position either by “citing to particular parts of materials in the record,” including depositions, documents, affidavits or declarations, stipulations, or other materials, or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., , 587 (1986); Nat’l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence, judge the credibility of witnesses, or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., , 249 (1986). The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, , 323 (1986). The moving party may discharge this burden either by producing evidence that demonstrates the absence of a genuine issue of material fact or simply “by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325. Where the movant has satisfied this burden, the nonmoving party cannot “rest upon its . . . pleadings, but 5 Case 2:20-cv-02656-MSN-tmp Document 32 Filed 03/14/22 Page 6 of 14 PageID 420 rather must set forth specific facts showing that there is a genuine issue for trial.” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009) (citing Matsushita, 475 U.S. at 586; Fed. R. Civ. P. 56). The nonmoving party must present sufficient probative evidence supporting its claim that disputes over material facts remain and must be resolved by a judge or jury at trial. Anderson, 477 U.S. at 248–49 (citing First Nat’l Bank of Ariz. v. Cities Serv. Co., (1968 ; see also White v. Wyndham Vacation Ownership, Inc., 617 F.3d 472, 475–76 (6th Cir. 2010). A mere scintilla of evidence is not enough; there must be evidence from which a jury could reasonably find in favor of the nonmoving party. Anderson, 477 U.S. at 252; Moldowan, 578 F.3d at 374. The Court’s role is limited to determining whether there is a genuine dispute about a material fact, that is, if the evidence in the case “is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. Such a determination requires that the Court “view the evidence presented through the prism of the substantive evidentiary burden” applicable to the case. Id. at 254. Thus, if the plaintiff must ultimately prove its case at trial by a preponderance of the evidence, on a motion for summary judgment the Court must determine whether a jury could reasonably find that the plaintiff’s factual contentions are true by a preponderance of the evidence. See id. at 252–53. Finally, if the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the movant is entitled to summary judgment. Celotex, 477 U.S. at 323. The Court must construe Rule 56 with due regard not only for the rights of those “asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury,” but also for the rights of those “opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.” Id. at 327. 6 Case 2:20-cv-02656-MSN-tmp Document 32 Filed 03/14/22 Page 7 of 14 PageID 421 DISCUSSION To begin, it is a bit difficult to organize the discussion on the Motion due to differences in how Plaintiff’s claims are presented in the Complaint versus Defendants’ Motion.3 As discussed above, Plaintiff’s Complaint uses headings and appears to assert the following four causes of action: (1) Count I Violation of Constitutional Rights; (2) Count II Economic Losses; (3) Count III Intentional Infliction of Emotional Distress; and (4) Count IV Violations of 42 U.S.C. § 1983. Plaintiff’s Complaint asserts these causes against Defendant Town, and Defendant Gooden and Defendant Pate, in their official capacities. In their Motion, Defendants categorize Plaintiff’s claims as follows: (A) official-capacity claims; (B) denial of business license claim; (C) 2019 application for certificate of occupancy; (D) Section 1983 procedural due process claim; (E) “political quarrel” claim; (F) Section 1983 claim for the recommended survey; (G) claim that Plaintiff was singled out in being asked to provide a survey; and (H) Plaintiff’s state law claims. The reason for some of these organizational differences, such as Defendants’ arguments as to the official-capacity claims, are easy to understand. However, Defendants’ separate arguments as to things such as Plaintiff’s “political quarrel” claim and Plaintiff’s claim that he was singled out in being asked to provide a survey, are unusual because it is not clear to the Court that Plaintiff asserted these as separate cognizable causes of action. In any event, Plaintiff’s response to the Motion focuses on a single claim under § 1983 for denial of the right to earn a living. Thus, to the extent that Plaintiff asserted cognizable claims in his Complaint for (B) the denial of a business license, (E) a “political quarrel” and public records request retaliation, or (G) being singled out by being asked to provide a survey, his failure to respond to Defendants’ arguments on those claims 3 The Court recognizes parties may use headings without intending to limit claims or arguments, but they nonetheless serve as useful guideposts. 7 Case 2:20-cv-02656-MSN-tmp Document 32 Filed 03/14/22 Page 8 of 14 PageID 422 means that Plaintiff has abandoned them. See, e.g., Brown v. VHS of Mich., Inc., 545 F. App’x 368, 372 (6th Cir. 2013) (“[A] plaintiff is deemed to have abandoned a claim when a plaintiff fails to address it in response to a motion for summary judgment.”); Clark v. City of Dublin, 178 F. App’x 522, 524–25 (6th Cir. 2006) (recognizing that the failure to respond to arguments in motion for summary judgment constitutes abandonment of claim). When a plaintiff abandons such claims, “district courts in this Circuit grant summary judgment as a matter of course.” Alexander v. Carter for Byrd, 733 F. App’x 256, 261 (6th Cir. 2018). Accordingly, Defendants’ Motion is GRANTED as to Plaintiff’s abandoned claims. The remaining claims are addressed below using Plaintiff’s organizational framework with Defendants’ categorization of the claims cross-referenced in the discussion. A. Plaintiff’s “Count I Violation of Constitutional Rights” In his Complaint, Plaintiff asserts in “Count I Violation of Constitutional Rights” that “his Constitutional Rights have been violated by denying him his Due Process rights and his right to pursue his business resulting from a political quarrel.” (ECF No. 1-1 at PageID 7.) Plaintiff does not reference § 1983 in this count, and he expressly included a separate count as to § 1983 as “Count IV.” To the extent Plaintiff seeks to assert direct constitutional claims against Defendants, those claims fail because § 1983 provides the exclusive remedy for such constitutional violations. See, e.g., Foster v. Mich., 573 F. App’x 377, 391 (6th Cir. 2014) (“To the extent Appellants attempt to assert direct constitutional claims, they fail; we have long held that § 1983 provides the exclusive remedy for constitutional violations.”). Thus, as to any direct constitutional claims against Defendants in the Complaint, Defendants are entitled to summary judgment as a matter of law on those claims. 8 Case 2:20-cv-02656-MSN-tmp Document 32 Filed 03/14/22 Page 9 of 14 PageID 423 B. Plaintiff’s “Count II Economic Losses” In Plaintiff’s “Count II Economic Losses,” Plaintiff alleges that in addition to the violations of his Constitutional Rights, he has “suffered economic losses” because of Defendants’ actions. (ECF No. 1-1 at PageID 9.) “Economic losses” may describe the nature of Plaintiff’s damages, but they are not a separate cause of action. Even though Plaintiff included this as a heading and separate “count,” there is no cognizable legal claim for “economic losses” that is separate and distinct from Plaintiff’s other specified causes of action. C. Plaintiff’s “Count IV Violations of 42 U.S.C. Section 1983”4 Plaintiff alleges Defendants violated his constitutional rights pursuant to 42 U.S.C. § 1983, which provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . Section 1983 is not the source of any substantive right, but merely provides a method for vindicating federal rights elsewhere conferred. Graham v. Connor, 490 U.S. 386, 393–94 (1989). To state a claim under § 1983, a plaintiff must allege two elements: (1) a deprivation of rights secured by the “Constitution and laws” of the United States (2) committed by a defendant acting under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970). 4 The Court addresses Count IV before Count III, as Count IV contains the only federal law claims. 9 Case 2:20-cv-02656-MSN-tmp Document 32 Filed 03/14/22 Page 10 of 14 PageID 424 1. Official-Capacity Claims First, Defendants seek summary judgment on Plaintiff’s official-capacity § 1983 claims. Defendants argue that because Plaintiff has also asserted a claim against Defendant Town, these official-capacity claims are duplicative. This Court agrees. Official-capacity suits “‘generally represent only another way of pleading an action against an entity of which an officer is an agent.’ As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 165 (1985) (quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, n. 55 (1978 . As a result, when a plaintiff asserts a § 1983 claim against a municipal entity and a municipal official in his or her official capacity, federal courts will dismiss the official-capacity claim. Doe v. Claiborne Cnty., Tenn. By & Through Claiborne Cnty. Bd. of Educ., 103 F.3d 495, 509 (6th Cir. 1996) (affirming district court’s dismissal of official-capacity suits). Because Plaintiff has sued Defendant Town in addition to Defendants Gooden and Pate in their official capacities, the claims against Defendants Gooden and Pate in their official capacities are duplicative. Defendants Gooden and Pate are thus entitled to summary judgment on Plaintiff’s official-capacity claims against them, and their Motion is GRANTED as to those claims.5 2. Municipal Liability Plaintiff’s § 1983 claims are based on Defendant Pate’s recommendations to the Building Inspector that Plaintiff obtain a survey of the Property to confirm whether it was in a special flood hazard zone. Defendant Pate made the survey recommendation first as to Plaintiff’s 2019 COO 5 Plaintiff’s Response failed to address Defendants’ arguments as to the official-capacity claims. Plaintiff has therefore abandoned them, and this is another basis for granting summary judgment on these claims. See, e.g., Brown, 545 F. App’x at 372; Alexander, 733 F. App’x at 261. 10 Case 2:20-cv-02656-MSN-tmp Document 32 Filed 03/14/22 Page 11 of 14 PageID 425 Application, and again, after Plaintiff submitted his 2020 COO Application. (See ECF No. 27-5 at PageID 253–55; ECF No. 30-1 at PageID 372.) Plaintiff’s Response claims that he “has presented proof that an agent of [Defendant] Town ([Defendant] Pate) violated his constitutional rights with respect to the use of his property.” (ECF No. 30-1 at PageID 372.) Even assuming this is true, it is not sufficient to impose liability on Defendant Town under § 1983 because a municipality “may not be sued under § 1983 for an injury inflicted solely by its employees or agents.” Monell v. Dep’t of Soc. Servs. of City of New York, , 694 (1978); see McGuire v. City of Sweetwater, Tenn., No. 20-6067, 2021 WL 3620449, at *4 (6th Cir. Aug. 16, 2021). To impose liability on Defendant Town, Plaintiff must show his injuries were sustained pursuant to an illegal custom or policy. See Monell, 436 U.S. at 691–92. “A plaintiff can make a showing of an illegal policy or custom by demonstrating one of the following: (1) the existence of an illegal official policy or legislative enactment; (2) that an official with final decision-making authority ratified illegal actions; (3) the existence of a policy of inadequate training or supervision; or (4) the existence of a custom of tolerance or acquiescence of federal rights violations.” Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013); see Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005); Wallace v. Coffee Cnty., 852 F. App’x 871, 876 (6th Cir. 2021) (citing Doe v. Claiborne Cnty., 103 F.3d 495, 508 (6th Cir. 1996 . Here, nothing in the record of this matter supports that any injury to Plaintiff was the result of an illegal custom or policy. First, Plaintiff does not identify or describe any official policy or legislative enactment that he contends was the moving force behind Defendant Pate’s alleged violation of Plaintiff’s constitutional rights. Second, there is no evidence that Defendant Pate is a policymaking official. “Although it is true that final policymaking authority may be delegated . . . mere authority to exercise discretion while performing particular functions does not make a municipal employee a 11 Case 2:20-cv-02656-MSN-tmp Document 32 Filed 03/14/22 Page 12 of 14 PageID 426 final policymaker unless the official’s decisions are final and unreviewable and are not constrained by the official policies of superior officials.” Miller v. Calhoun Cnty., 408 F.3d 803, 814 (6th Cir. 2005) (internal citations omitted) (citing Feliciano v. City of Cleveland, 988 F.2d 649, 655 (6th Cir. 1993 . Plaintiff has made no allegations, nor offered any testimony or other evidence in the record, to demonstrate that Defendant Pate had final, unreviewable discretion unconstrained by the official policies of superior officials. And Defendants have provided evidence that Defendant Pate’s decisions could be adopted or rejected by the Building Inspector, and further, any decision by the Building Inspector was appealable to the Board of Zoning Appeals. Plaintiff has not come forward with any evidence that a policymaker with final decision-making authority ratified Defendant Pate’s allegedly unconstitutional actions. Plaintiff also fails to make a showing to support his claims under the third or fourth theory of municipal liability. A claim of inadequate training or supervision requires a plaintiff to show “prior instances of unconstitutional conduct demonstrating that the [municipality] ha[d] ignored a history of abuse and was clearly on notice that the training in this particular area was deficient and likely to cause injury.” Burgess, 735 F.3d at 478 (citing Miller v. Sanilac Cnty., 606 F.3d 240, 255 (6th Cir. 2010 . Similarly, for a custom of tolerance or acquiescence claim, a plaintiff must show that there was a persistent pattern of illegal activity of which the defendant had notice or constructive notice. See Wallace, 852 F. App’x at 876. Plaintiff has failed to come forward with evidence of a pattern for either theory. For the reasons set forth above, Plaintiff has failed to make a showing to support any theory of municipal liability for Defendant Town under § 1983 for the alleged constitutional violations. Thus, Defendants’ Motion is GRANTED as to Plaintiff’s § 1983 claims. To clarify, this applies to the § 1983 claim as set forth Count IV of the Complaint and argued as a denial of the right to 12 Case 2:20-cv-02656-MSN-tmp Document 32 Filed 03/14/22 Page 13 of 14 PageID 427 earn a living in Plaintiff’s Response, both as to the 2019 COO Application and the 2020 COO Application, and as organized in Defendant’s Motion: the (C) claim related to the 2019 COO Application, (D) Section 1983 Procedural Due Process Claim, and (F) Section 1983 claim for the recommended survey.6 D. Plaintiff’s “Count III Intentional Infliction of Emotional Distress” Where “all federal claims are dismissed before trial, the balance of considerations usually will point to dismissing the state law claims.” Booker v. City of Beachwood, 451 F. App’x 521, 523 (6th Cir. 2011) (quoting Musson Theatrical, Inc. v. Fed. Express Corp., 89 F.3d 1244, 1254– 55 (6th Cir. 1996 . “[A] federal court that has dismissed a plaintiff’s federal-law claims should not ordinarily reach the plaintiff’s state-law claims.” Moon v. Harrison Piping Supply, 465 F.3d 719, 728 (6th Cir. 2006). The Court has determined that Defendants are entitled to summary judgment for Plaintiff’s federal law claims. Ordinarily, this Court would follow the “usual Sixth Circuit practice” and decline to exercise supplemental jurisdiction over Plaintiff’s state law claim for intentional infliction of emotional distress brought pursuant to the Tennessee Governmental Tort Liability Act, codified as Tenn. Code Ann. § 29-20-101 et seq. See Crehan v. Davis, 713 F. Supp. 2d 688, 701 (W.D. Mich. 2010) (citing Moon v. Harrison Piping Supply, 465 F.3d 719, 728 (6th Cir. 2006 . However, Plaintiff failed to respond to the arguments in Defendants’ Motion as to his state law claim. Plaintiff’s failure to respond to Defendant’s arguments means that Plaintiff has abandoned this claim, and therefore, Defendants’ Motion is GRANTED as to Plaintiff’s claim 6 The Court also notes that Plaintiff’s Response failed to address Defendants’ arguments as to (C) Plaintiff’s claim for the 2019 COO Application being time-barred, and (D) Plaintiff’s procedural due process claim failing because he did not seek review from the Board of Zoning Appeals. Plaintiff has therefore abandoned those claims, and again, this is another basis for granting summary judgment. See, e.g., Brown, 545 F. App’x at 372; Alexander, 733 F. App’x at 261. 13 Case 2:20-cv-02656-MSN-tmp Document 32 Filed 03/14/22 Page 14 of 14 PageID 428 for intentional infliction of emotional distress. See, e.g., Brown, 545 F. App’x at 372; Alexander, 733 F. App’x at 261. CONCLUSION For the reasons set forth above, Defendants’ Motion for Summary Judgment is GRANTED. IT IS SO ORDERED, this 14th day of March, 2022. s/ Mark S. Norris MARK S. NORRIS UNITED STATES DISTRICT JUDGE 14
=== 21-2057 ===
Case 2:21-cv-02057-MSN-tmp Document 5 Filed 01/05/22 Page 1 of 12 PageID 13 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION MARCUS MARTIN, Plaintiff, vs. FLOYD BONNER, JR., ET AL., Defendants. No. 21-2057-MSN-tmp ORDER MODIFYING THE DOCKET; DISMISSING COMPLAINT (ECF 1) WITH PREJUDICE IN PART & DISMISSING IT WITHOUT PREJUDICE IN PART; AND GRANTING LEAVE TO AMEND THE CLAIMS DISMISSED WITHOUT PREJUDICE On January 27, 2021, Plaintiff Marcus Martin, who is incarcerated under booking number 18120272 at the Shelby County Criminal Justice Center (the Jail) in Memphis, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983 and a motion to proceed in forma pauperis. (ECF Nos. 1 & 2.) On January 29, 2021, the Court granted him leave to proceed in forma pauperis. (ECF No. 4.) In connection with criminal charges against Martin during unspecified “1999 and 2005 cases,” his § 1983 complaint alleges claims for: (1) malicious prosecution; (2) wrongful conviction; (3) police harassment; (4) evidence tampering; and (5) “defamation of character.” (ECF No. 1 at PageID 2.) The complaint’s chronology is difficult to comprehend, but Plaintiff seems to suggest that: (1) former Shelby County Assistant District Attorney Josh Corman “declined prosecution” of Martin in 1999; (2) former Shelby County District Attorney James Challen “declined prosecution” of Martin in 2005; (3) criminal charges against Plaintiff were “sent to [the] Assistant District Attorney Office [in] 2015 [and] 2016”; and (4) Shelby County Prosecutor Case 2:21-cv-02057-MSN-tmp Document 5 Filed 01/05/22 Page 2 of 12 PageID 14 Greg Gilbert “now visited [the charges] again [in] 2018.” (Id.) Martin’s complaint lists indictment numbers but does not describe the pertinent criminal charges against him. (Id.) Martin names as Defendants: (1) Deputy Sheriff Floyd Bonner, Jr.; (2) Gavin A. Smith, an Assistant District Attorney (A.D.A.) with the Shelby County District Attorney’s Special Victims Unit; and (3) John Chevalier, of the Memphis Police Department (MPD). (Id.) Plaintiff “would like to be rewarded for all damages financially.” (Id. at PageID 3.) The Clerk shall modify the docket to add these Defendants: (1) Shelby County Prosecutor Greg Gilbert; (2) Shelby County; and (3) the City of Memphis. For the reasons explained below, the Court: (1) dismisses with prejudice Martin’s § 1983 claims that arose prior to January 24, 2020 because such claims are barred by the statute of limitations; (2) dismisses without prejudice Martin’s § 1983 claims that arose on or after January 24, 2020, if any, because such claims fail to state a claim on which relief can be granted; and (3) grants leave to amend the claims that are dismissed without prejudice. I. LEGAL STANDARD The Court is required to screen prisoner complaints and to dismiss any complaint, or any portion thereof, if the complaint — (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B). In assessing whether the complaint in this case states a claim on which relief may be granted, the Court applies the standards of Fed. R. Civ. P. 12(b)(6), as stated in Ashcroft v. Iqbal, , 677-79 (2009) and in Bell Atlantic Corp. v. Twombly, , 555-57 (2007). Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). The Court accepts a plaintiff’s 2 Case 2:21-cv-02057-MSN-tmp Document 5 Filed 01/05/22 Page 3 of 12 PageID 15 “well-pleaded factual allegations as true and then determines whether the allegations “‘plausibly suggest an entitlement to relief.’” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681). Conclusory allegations “are not entitled to the assumption of truth,” and legal conclusions “must be supported by factual allegations.” Iqbal, 556 U.S. at 679. Although a complaint need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), Rule 8 nevertheless requires factual allegations to make a “‘showing,’ rather than a blanket assertion, of entitlement to relief.” Twombly, 550 U.S. at 555 n.3. “Pro se complaints are to be held ‘to less stringent standards than formal pleadings drafted by lawyers,’ and should therefore be liberally construed.” Williams, 631 F.3d at 383 (quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004 . Pro se litigants, however, are not exempt from the requirements of the Federal Rules of Civil Procedure. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, 415 F. App’x 608, 612, 613 (6th Cir. Jan. 31, 2011) (affirming dismissal of pro se complaint for failure to comply with “unique pleading requirements” and stating “a court cannot ‘create a claim which [a plaintiff] has not spelled out in his pleading’” (quoting Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975 . Plaintiff filed his complaint (ECF No. 1) pursuant to 42 U.S.C. § 1983, which provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.... 3 Case 2:21-cv-02057-MSN-tmp Document 5 Filed 01/05/22 Page 4 of 12 PageID 16 To state a claim under § 1983, a plaintiff must allege two elements: (1) a deprivation of rights secured by the “Constitution and laws” of the United States (2) committed by a defendant acting under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970). As explained below, Martin fails to state a claim for which relief may be granted. II. DISCUSSION A. Martin’s Claims That Arose Prior To January 24, 2020 Are Time-Barred Martin’s factual allegations purportedly encompass a vast period of time. (ECF No. 1 at PageID 2 (referring to conduct that spans the period 1999 through 2018). It is unclear from the complaint whether Martin alleges any ongoing constitutional deprivations. However, to the extent the complaint arises from alleged violations of federally protected rights that occurred before January 24, 2020, those claims are untimely. The limitations period for § 1983 actions arising in Tennessee is the one-year limitations provision found in Tenn. Code Ann. § 28-3-104(a)(1)(B). Roberson v. Tennessee, 399 F.3d 792, 794 (6th Cir. 2005). Martin had one year from the time that he knew or had reason to know of his alleged injuries to file suit. See Edison v. Tenn. Dep’t of Children’s Servs., 510 F.3d 631, 635 (6th Cir. 2007). Martin signed his complaint on January 24, 2021. (ECF No. 1 at PageID 3.) The statute of limitations bars his § 1983 claims that arose prior to January 24, 2020. Even if the Court liberally construes Martin’s complaint as alleging claims that arose on or after January 24, 20201, those claims do not survive screening because they fail to state a claim to relief, as described infra. 1 Martin’s complaint affords no reasonable basis upon which to determine whether he alleges any post-January 24, 2020 events. The Court makes no finding at this juncture on that 4 Case 2:21-cv-02057-MSN-tmp Document 5 Filed 01/05/22 Page 5 of 12 PageID 17 B. Martin’s Allegations Arising On Or After January 24, 2020 Fail To State A Claim 1. Official Capacity Claims; Claims Against Shelby County; Claims Against The City Of Memphis Martin does not specify whether he sues Defendants in their official or individual capacities. (See ECF No. 1.) However, the Sixth Circuit requires plaintiffs to “set forth clearly in their pleading that they are suing the state defendants in their individual capacity for damages, not simply in their capacity as state officials.” Wells, 891 F.2d at 592. “Absent a specification of capacity, it is presumed that a state official is sued in his official capacity.” Northcott v. Plunkett, 42 F. App'x 795, 796 (6th Cir. 2002) (citing Wells, 891 F.2d at 593). As such, to the extent Martin asserts official capacity claims against Bonner, Smith, Gilbert, and Chevalier (collectively, the Individual Defendants), Plaintiff’s allegations are construed as claims against the Individual Defendants’ employers. That is, Martin’s official capacity claims against Bonner, Smith, and Gilbert are construed as claims against Shelby County; and Plaintiff’s official capacity claims against Chevalier are construed as claims against the City of Memphis. See Uhles v. Funk, No. 18-1102, 2019 WL 1359494, at *1 (M.D. Tenn. Mar. 26, 2019) (citing Alkire v. Irving, 330 F.3d 802, 810 (6th Cir. 2003) and Kentucky v. Graham, 473 U.S. 159, 165 (1985 . However, Martin does not allege a colorable § 1983 claim against either Shelby County or Memphis. When a plaintiff asserts a § 1983 claim against a municipality or county, the Court must analyze two distinct issues: (1) whether the plaintiff’s harm was caused by a constitutional violation; and (2) if so, whether the municipality or county is responsible for that violation. Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992). A local government such as a municipality or county “cannot be held liable solely because it employs a tortfeasor -- or, in other question. Rather, the Court’s liberal treatment here of Plaintiff’s complaint is for screening purposes only. 5 Case 2:21-cv-02057-MSN-tmp Document 5 Filed 01/05/22 Page 6 of 12 PageID 18 words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell v. Dep’t. of Soc. Serv., , 691 (1978) (emphasis in original); see also Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994). A municipality is not responsible for a constitutional deprivation unless there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation. Monell, 436 U.S. at 691–92; Deaton v. Montgomery Cnty., Ohio, 989 F.2d 885, 889 (6th Cir. 1993). To demonstrate municipal liability, a plaintiff “must (1) identify the municipal policy or custom, (2) connect the policy to the municipality, and (3) show that his particular injury was incurred due to execution of that policy.” Alkire, 330 F.3d at 815 (citing Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993 . “[T]he touchstone of ‘official policy’ is designed ‘to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.’” City of St. Louis v. Praprotnik, 485 U.S. 112, 138 (1988) (Brennan, J. concurring) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479–80 (1986 . Martin does not describe any policy or custom of either Shelby County or the City of Memphis, much less ones that are unconstitutional or pursuant to which any Individual Defendants acted. (See ECF No. 1.) Accordingly, Martin does not plead a claim to relief against Shelby County, the City of Memphis, or against the Individual Defendants in their official capacities. 2. Individual Capacity Claims For Malicious Prosecution & False Arrest Martin alleges that the MPD “lied” concerning Plaintiff’s confession to Chevalier. (ECF No. 1 a PageID 2.) He also says that the Shelby County District Attorney’s Office “tampered [with] and lost evidence.” (Id.) Martin does not describe the contents of his confession, does not identify its date given, and does not catalogue the “lost evidence.” (See id.) The Court construes Martin’s allegations as claims for malicious prosecution and false arrest. 6 Case 2:21-cv-02057-MSN-tmp Document 5 Filed 01/05/22 Page 7 of 12 PageID 19 A claim for malicious prosecution can be brought under either federal or state law. See Voyticky v. Village of Timberlake, 412 F.3d 669, 675 (6th Cir. 2005). Here, it appears that Martin brings this claim under federal law. (See ECF No. 1 at PageID 1-2 (alleging violations of Fifth, Sixth, Eighth and Fourteenth Amendment rights).)2 Such a claim requires a showing “that a criminal prosecution was initiated against the plaintiff and that the defendant ‘ma[d]e, influence[d], or participate[d] in the decision to prosecute,’” and that the proceedings were brought without probable cause. See Sykes v. Anderson, 625 F.3d 294, 308 (6th Cir. 2010); Voyticky, 412 F.3d at 675 (“In order to prove malicious prosecution under federal law, a plaintiff must show, at a minimum, that there is no probable cause to justify an arrest or a prosecution”). Like a claim for malicious prosecution, a claim for false arrest can be brought under either federal or state law. See Voyticky, 412 F.3d at 677. Under federal law, plaintiffs must show that the arresting officer lacked probable cause. Id. An arrest made pursuant to a facially valid warrant usually acts as a complete defense to a false arrest claim. Id. (citing Baker v. McCollan, 443 U.S. 137, 143–44 (1979 . Under state law, the party must show “(1) the detention or restraint of one against his will and (2) the unlawfulness of such detention or restraint.” Brown v. Christian Bros. Univ., 428 S.W.3d 38, 54 (Tenn. Ct. App. 2013) (citing Coffee v. Peterbilt of Nashville, Inc., 795 S.W.2d 656, 659 (Tenn. 1990 . As under federal law, the party must show that the officer acted without probable cause. Id. Here, Martin does not allege any of these elements for a prima facie case of either malicious prosecution or false arrest. For example, Martin’s complaint alleges no facts contending that any Individual Defendant: made, influenced, or participated in the decision to 2 However, the Court also notes that even under state law, Martin’s claims do not survive screening for similar reasons. See discussion infra. 7 Case 2:21-cv-02057-MSN-tmp Document 5 Filed 01/05/22 Page 8 of 12 PageID 20 prosecute Plaintiff at any time, see ECF No. 1 at PageID 2, or that those proceedings were brought against Martin without probable cause. Furthermore, to the extent Plaintiff alleges that Chevalier “lie[d]” under oath during criminal proceedings against Martin, see id., such a claim fails. “[A]ll witnesses — police officers as well as lay witness — are absolutely immune from civil liability based on their testimony in judicial proceedings.” Briscoe v. LaHue, 460 U.S. 325, 328 (1983). A witness is entitled to testimonial immunity “no matter how egregious or perjurious that testimony was alleged to have been.” Spurlock v. Satterfield, 167 F.3d 995, 1001 (6th Cir. 1999). Moreover, Martin cannot sue Smith or Gilbert for money damages arising from their institution of criminal proceedings against Plaintiff. Such claims are barred by absolute prosecutorial immunity. Burns v. Reed, 500 U.S. 478, 490-492 (1991); Grant v. Hollenbach, 870 F.2d 1135, 1137 (6th Cir. 1989); Jones v. Shankland, 800 F.2d 77, 80 (6th Cir. 1986). That is, prosecutors are absolutely immune from suit for actions taken in initiating and pursuing criminal prosecutions because that conduct is “intimately associated with the judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976); see also Howell v. Sanders, 668 F.3d 344, 351 (6th Cir. 2012). Therefore, Martin may not sue Smith and Gilbert for malicious prosecution. Spurlock v. Thompson, 330 F.3d 791, 797 (6th Cir. 2004); Roybal v. State of Tenn. Dist. Attorney’s Office, 84 F. App’x 589 (6th Cir. 2003); O’Neal v. O’Neal, 23 F. App’x 368, 370 (6th Cir. 2001). 3. Individual Capacity Claims For Police Harassment Martin alleges that he was “harassed by Memphis Police Department.” (ECF No. 1 at PageID 2.) He neither describes the allegedly harassing conduct nor identifies who undertook it. 8 Case 2:21-cv-02057-MSN-tmp Document 5 Filed 01/05/22 Page 9 of 12 PageID 21 Allegations of petty harassment do not state constitutional claims under § 1983. See Freeman v. Gay, No. 3:11-0867, 2012 WL 2061557, at *21 (M.D. Tenn. June 7, 2012) (internal citations omitted). “Additionally, the Court is not required to speculate as the nature of potentially viable claims based on the plaintiff’s allegations.” Id. That is precisely what Martin seeks to have the Court do here for him. The Court rejects the invitation to do so. Martin does not allege a cognizable § 1983 claim for harassment by the MPD. 4. Individual Capacity Claims Against Sheriff Bonner Martin’s § 1983 pleading contains no specific factual allegations against Sheriff Bonner. (ECF No. 1.) When a complaint fails to allege any action by a defendant, it necessarily fails to “state a claim for relief that is plausible on its face.” Twombly, 550 U.S. at 570. Therefore, Martin does not sufficiently allege a claim against Bonner in his individual capacity. 5. Individual Capacity Claims For Defamation & Gross Negligence Martin alleges that he suffered “defamation of character” and the MPD committed “gross negligence.” (ECF No. 1 at PageID 2.) He does not: describe the defamation; indicate the date it was made; identify the persons who communicated it; or describe the conduct that was negligent. Aside from their starkly sparse nature, his allegations do not give rise to a colorable § 1983 claim. Defamation and negligence claims arise under state law, and they do not give rise to federal claims under § 1983. See, e.g., Bullard v. Inkster Housing & Re-dev. Comm’n, 126 F. App’x 718, 721 (6th Cir. 2005) (“a showing of gross negligence” did not suffice to prove liability in a § 1983 case); Dickerson v. Robinson, No. 3:12-cv-802, 2012 WL 3472196, at *3 (M.D. Tenn. Aug. 14, 2012) (defamation, without more, does not state a claim under § 1983, because harm or injury to reputation does not result in a deprivation of any “liberty” or “property” protected by the 9 Case 2:21-cv-02057-MSN-tmp Document 5 Filed 01/05/22 Page 10 of 12 PageID 22 Due Process Clause) (citing Paul v. Davis, 424 U.S. 693, 712 (1976).) These principles bear upon the exercise of federal court jurisdiction over Martin’s defamation and negligence claims. Under 28 U.S.C. § 1367(a), “[i]f there is some basis for original jurisdiction, the default assumption is that the court will exercise supplemental jurisdiction over all related claims.” Veneklase v. Bridgewater Condos, L.C., 670 F.3d 705, 716 (6th Cir. 2012) (quoting Campanella v. Commerce Exch. Bank, 137 F.3d 885, 892 (6th Cir. 1998 (internal quotation marks omitted). Section 1367 grants district courts broad discretion on whether to exercise supplemental jurisdiction over related state law claims. See Gamel v. City of Cincinnati, 625 F.3d 949, 951 (6th Cir. 2010). Courts should “weigh several factors, including the ‘values of judicial economy, convenience, fairness, and comity.’” Id. at 951–52 (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988 (internal quotation marks omitted). Because all of Martin’s federal claims are being dismissed, the Court DECLINES to exercise supplemental jurisdiction over any claims arising under state law. Martin’s state law claims for defamation and gross negligence are DISMISSED pursuant to 28 U.S.C. § 1367(c)(3). III. AMENDMENT UNDER THE PLRA The Sixth Circuit has held that a district court may allow a prisoner to amend his complaint to avoid a sua sponte dismissal under the Prison Litigation Reform Act, 28 U.S.C. §§ 1915, et seq. (the “PLRA”). LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013) (“[W]e hold, like every other circuit to have reached the issue, that under Rule 15(a) a district court can allow a plaintiff to amend his complaint even when the complaint is subject to dismissal under the PLRA” ; see also Brown v. R.I., 511 F. App’x 4, 5 (1st Cir. 2013) (per curiam) (“Ordinarily, before dismissal for failure to state a claim is ordered, some form of notice and an opportunity to cure the deficiencies in the complaint must be afforded.”). Leave to amend is not required where a 10 Case 2:21-cv-02057-MSN-tmp Document 5 Filed 01/05/22 Page 11 of 12 PageID 23 deficiency cannot be cured. See Gonzalez-Gonzalez v. United States, 257 F.3d 31, 37 (1st Cir. 2001); Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001). The Court grants Martin leave to amend certain of his claims, as explained below. IV. CONCLUSION For all of the reasons explained above: (1) Plaintiff’s claims that arose prior to January 24, 2020 (ECF No. 1) are DISMISSED WITH PREJUDICE because they are barred by the statute of limitations. See Tenn. Code Ann. § 28-3-104(a)(1)(B). Leave to amend such claims is DENIED; and (2) Plaintiff’s claims that arose on or after January 24, 2020 (ECF No. 1) are DISMISSED WITHOUT PREJUDICE for failure to state a claim on which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii)-(iii) and 1915A(b)(1)-(2). Leave to amend such claims is GRANTED. Any amendment must be filed within twenty-one (21) days after the date of this order. Plaintiff is advised that an amended complaint will supersede the original complaint and must be complete in itself without reference to the prior pleadings. The amended complaint must be signed, and the text of the amended complaint must allege sufficient facts to support each claim without reference to any extraneous document. Any exhibits must be identified by number in the text of the amended complaint and must be attached to the complaint. All claims alleged in an amended complaint must arise from the facts alleged in the original complaint. Each claim for relief must be stated in a separate count and must identify each Defendant sued in that count. If Plaintiff fails to file an amended complaint within the time specified, the Court will dismiss the above-referenced claims and enter judgment. The Court recommends that any such dismissal be treated as a strike pursuant to 28 U.S.C. § 1915(g). See Simons v. Washington, No. 20-1406, 2021 WL 1727619, at *1 (6th Cir. May 3, 2021). 11 Case 2:21-cv-02057-MSN-tmp Document 5 Filed 01/05/22 Page 12 of 12 PageID 24 IT IS SO ORDERED this 5th day of January, 2022. s/ Mark Norris MARK S. NORRIS UNITED STATES DISTRICT JUDGE 12
=== 18-2201 ===
Case 2:18-cv-02201-MSN-tmp Document 189 Filed 03/05/21 Page 1 of 15 PageID 1833 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ______________________________________________________________________________ APRIL MALONE and CELITRIA WATSON, Plaintiffs, v. CITY OF MEMPHIS, OFFICER THERMAN RICHARDSON, Individually and in his Official Capacity and OFFICER JOHNATHAN OVERLY, Individually and in his Official Capacity, No. 18-cv-2201-MSN-tmp Defendants. _____________________________________________________________________________________ ORDER GRANTING DEFENDANT CITY OF MEMPHIS’ MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ This cause is before the Court on Defendant City of Memphis’ (“The City”) Motion for Summary Judgment. (ECF No. 165.) The City filed its motion on June 12, 2020. (Id.) To date, Plaintiffs have not responded. For the reasons below, The City’s Motion is GRANTED. Additionally, Plaintiffs pending Motion to Compel, (ECF No. 180), is DENIED AS MOOT. Background1 Plaintiffs originally filed this action against the City of Memphis, Shelby County, various attorneys with the Shelby County District Attorney’s Office, and several officers in the Memphis 1. The Court refers to both Plaintiffs’ original Complaint, (ECF No.1), and their Amended Complaint, (ECF No. 106), in addition to The City’s Statement of Undisputed Facts for the relevant background. Although an amended complaint normally “supersedes” the prior pleading, see Charles Alan Wright et al., Federal Practice and Procedure § 1476 (3d. ed. Updated Aug. 2019), the Court refers to both due to Plaintiffs pro se status. See Leggett v. W. Express Inc., No. 3:19-cv-00110, 2020 WL 1161974, at *1 n.1 (M.D. Tenn. Jan. 6, 2020). Further, reference to the original Complaint is needed to understand the allegations contained within the Amended Complaint. See id. (citing White v. Demarco, No. ELH-17-1623, 2019 WL 1696563, at *2 (D. Md. Apr. 6, 2018 . Case 2:18-cv-02201-MSN-tmp Document 189 Filed 03/05/21 Page 2 of 15 PageID 1834 Police Department back in March 2018. (ECF No. 1.) Plaintiffs initially proceeded pro se, but counsel has since made an appearance.2 (ECF No. 166.) Plaintiffs raise both federal and state law causes of actions against the various Defendants. (ECF No. 1 at PageID 4–10.) Plaintiffs later filed an Amended Complaint with the Court’s leave. (ECF Nos. 105, 106.) For purposes of this Order, the Court only addresses allegations made against The City. A. Factual Background The gravamen of Plaintiffs’ action is that The City failed to adequately train and supervise its officers in addition to fostering a custom of tolerance towards constitutional violations. (ECF No. 1 at PageID 4–5; ECF No. 106 at PageID 451.) Prior to January 21, 2017, Plaintiffs contend that their cellphones were subjected to a wiretap. (ECF No. 1 at PageID 3.) These wiretaps were allegedly secured, in part, due to fabricated information created by Memphis police officers. (Id.) Plaintiffs allege that Memphis police officers altered or created out of whole cloth text messages that implicated Plaintiffs in criminal activity. (Id.) In turn, these fabricated messages lead to the indictment of Plaintiffs on serious felony charges. (Id. at PageID 4.) These charges, however, were later dismissed. (Id.) Plaintiffs later acquired the original text messages from their cell phone providers, albeit after several court appearances. (Id.) After reviewing these messages, Plaintiffs contend that the messages produced by Memphis police officers in their investigation contained several discrepancies related to what was communicated, dates messages were sent, and the times messages were sent. (Id.) 2. The Court stills afford Plaintiffs pro se status because the relevant pleadings for purposes of this Order occurred before counsel appeared. 2 Case 2:18-cv-02201-MSN-tmp Document 189 Filed 03/05/21 Page 3 of 15 PageID 1835 On August 9, 2019, Plaintiffs filed their Amended Complaint. (ECF No. 106.) Plaintiffs further allege that The City provided officers with a “sting ray device” that enabled officers to listen in on their private phone calls without their knowledge. (Id. at PageID 448.) The City purportedly failed to train officers on how to use this device. (Id. at PageID 449.) Moreover, The City did not maintain a system that monitored how the device was being used or by who. (Id.) I. Procedural Background Plaintiffs’ Original Complaint asserted causes of actions against the City of Memphis and Shelby County in their municipal capacity and against Assistant Attorney General Paul Hagerman, Assistant Attorney General Austin Scholfield,3 Assistant Attorney General Chris Scruggs, Memphis police officer Therman Richardson,4 Memphis police officer Johnathan Overly, and Memphis police officer William Acred in both their individual and official capacities. (ECF No. 1 at PageID 2–3.) As this litigation has progressed, various Defendants have been dismissed from this suit,5 leaving only the claims against The City and Defendants Richardson and Overly left for adjudication. On November 11, 2018, The City moved to have Plaintiffs’ claims dismissed. (ECF No. 50.) The Court granted The City’s motion in part. (ECF No. 105.) The Court’s Order also 3. The correct spelling of Defendant Scholfield’s name is “Scofield.” (ECF No. 77-1 at PageID 264 n.1.) 4. Plaintiffs spelled Defendant Richardson’s name as “Thurmond Richardson” in their Complaint. (ECF No.1 at PageID 2.) However, the correct spelling is “Therman.” (ECF Nos 150 & 151.) 5. On February 21, 2019, the Court entered an Order dismissing Defendant Shelby County for this suit. (ECF No. 73.) On August 8, 2019, the Court entered an Order dismissing all claims against Defendants Mr. Hagerman, Mr. Scofield, and Mr. Scruggs. (ECF No. 102.) On September 18, 2019, the Court dismissed all claims against Defendant Acred in his individual capacity (ECF No. 113.) 3 Case 2:18-cv-02201-MSN-tmp Document 189 Filed 03/05/21 Page 4 of 15 PageID 1836 allowed Plaintiffs to file an Amended Complaint to allege additional facts concerning their § 1983 claim against The City. (ECF No. 105 at PageID 447) (“Plaintiffs shall only be allowed to add facts regarding Defendant City of Memphis and regarding the § 1983 claims. Plaintiffs have not sought to add any additional facts addressing any other Defendants.”). The Order dismissed Plaintiffs’ claims against The City brought under the Tennessee Governmental Tort Liability Act and the Tennessee Human Rights Act with prejudice. (Id. at PageID 447.) On August 9, 2019, Plaintiffs filed their Amended Complaint. (ECF No. 106.) On June 12, 2020, The City filed its motion for summary judgment. (ECF No. 165.) That same day, Defendants Richardson and Overly filed their motion for summary judgment. 6 (ECF No. 165.) To date, Plaintiffs have not submitted a response to either Motion. On June 15, 2020, two years after suit had been filed, counsel appeared on behalf of Plaintiffs. (ECF No. 166.) That same day, Plaintiffs filed their Motion to Stay Summary Judgment and Extend Deadlines, seeking an extension of time to file their own motion for summary judgment. (ECF No. 169.) The Court denied Plaintiffs’ request. (ECF No. 177.) The Court found an extension unwarranted considering that the deadline had previously been extended three (3) times, and Plaintiffs failed to take advantage of those extensions. (Id. at PageID 1589.) In another motion filed on June 15, 2020, Plaintiffs requested that The City’s Motion for Summary Judgment be struck. (ECF No. 168.) As grounds, Plaintiffs correctly argued that The City failed to disclose the identity of Colonel Marcus Worthy, who The City relied on in its Motion, in its discovery as an individual having knowledge relating to this case. (Id. at PageID 1424–25.) The Court agreed that The City failed to disclose the identity of Colonel Worthy but held that striking the Motion for Summary Judgment altogether was unwarranted. (ECF No. 177 at PageID 6. The Court will address the individual officers’ Motion in a separate Order. 4 Case 2:18-cv-02201-MSN-tmp Document 189 Filed 03/05/21 Page 5 of 15 PageID 1837 1588.) Instead, the Court struck Colonel Worthy’s affidavit and explained that the Court would not consider it when ruling on The City’s motion. (Id.) The Order also allowed Plaintiffs the opportunity to depose Colonel Worthy and another late-disclosed witness. (Id.) The Order made clear, though, that “the City’s motion for summary judgment therefore remains pending and is ripe for adjudication.” (Id.) Legal Standard Federal Rule of Civil Procedure 56 permits a party to move for summary judgment — and the Court to grant summary judgment — “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party asserting the presence or absence of genuine issues of material facts must support its position either by “citing to particular parts of materials in the record,” including depositions, documents, affidavits or declarations, stipulations, or other materials, or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., , 587 (1986); Nat’l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence, judge the credibility of witnesses, or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., , 249 (1986). The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, , 323 (1986). The moving party may discharge this burden either by producing evidence that demonstrates the absence of a genuine 5 Case 2:18-cv-02201-MSN-tmp Document 189 Filed 03/05/21 Page 6 of 15 PageID 1838 issue of material fact or simply “by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325. Where the movant has satisfied this burden, the nonmoving party cannot “rest upon its . . . pleadings, but rather must set forth specific facts showing that there is a genuine issue for trial.” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009) (citing Matsushita, 475 U.S. at 586; Fed. R. Civ. P. 56). The nonmoving party must present sufficient probative evidence supporting its claim that disputes over material facts remain and must be resolved by a judge or jury at trial. Anderson, 477 U.S. at 248–49 (citing First Nat’l Bank of Ariz. v. Cities Serv. Co., (1968 ; see also White v. Wyndham Vacation Ownership, Inc., 617 F.3d 472, 475–76 (6th Cir. 2010). A mere scintilla of evidence is not enough; there must be evidence from which a jury could reasonably find in favor of the nonmoving party. Anderson, 477 U.S. at 252; Moldowan, 578 F.3d at 374. The Court’s role is limited to determining whether there is a genuine dispute about a material fact; that is, if the evidence in the case “is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. Such a determination requires that the Court “view the evidence presented through the prism of the substantive evidentiary burden” applicable to the case. Id. at 254. Thus, if the plaintiff must ultimately prove its case at trial by a preponderance of the evidence, on a motion for summary judgment the Court must determine whether a jury could reasonably find that the plaintiff’s factual contentions are true by a preponderance of the evidence. See id. at 252–53. Finally, if the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the movant is entitled to summary judgment. Celotex, 477 U.S. at 323. The Court must construe Rule 56 with due regard not only for the rights of those “asserting claims and defenses that are adequately based in fact to have those 6 Case 2:18-cv-02201-MSN-tmp Document 189 Filed 03/05/21 Page 7 of 15 PageID 1839 claims and defenses tried to a jury,” but also for the rights of those “opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.” Id. at 327. Analysis This case is a federal civil rights lawsuit brought against The City for its alleged failure to properly train its officers and for maintaining a custom of tolerance towards constitutional violations. (ECF No.1 at PageID 4–5, 7–8; ECF No. 106 at PageID 451–52.) Plaintiffs bring this suit pursuant to 42 U.S.C. § 1983, which provides that: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…. 42 U.S.C. § 1983. A prima facie § 1983 claim requires (1) a deprivation of a constitutional right and (2) that the deprivation arose from an individual acting under color of state law. See Wittstock v. Mark A. Van Sile, Inc., 330 F.3d 899, 902 (6th Cir. 2003). Municipalities and other local government entities are subject to suit under 42 U.S.C. § 1983. See Monell v. Dep’t of Soc. Servs. of City of New York, , 690 (1978). However, municipal liability does not simply arise because the municipality employs a tortfeasor; in other words, a municipality does not incur liability simply under a theory of respondeat superior. See Monell, 436 U.S. at 691; Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005). Instead, liability arises “‘when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury’ of a constitutional violation.” David v. City of Bellevue, 706 F. App’x 847, 850 (6th 7 Case 2:18-cv-02201-MSN-tmp Document 189 Filed 03/05/21 Page 8 of 15 PageID 1840 Cir. 2017) (quoting Monell, 436 U.S. at 694); see also Connick v. Thompson, 563 U.S. 51, 60 (2011); Epperson v. City of Humboldt, 140 F. Supp. 3d 676, 684 (W.D. Tenn. 2015). A party can establish municipal liability “by demonstrating one of the following: (1) the existence of an illegal official policy or legislative enactment; (2) that an official with final decision making authority ratified illegal actions; (3) the existence of a policy of inadequate training or supervision; or (4) the existence of a custom of tolerance or acquiescence of federal rights violations.” Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013) (citing Thomas, 398 F.3d at 429). Plaintiffs’ pleadings allege that The City “failed to provide adequate training or supervision” for its officers, and The City “was aware that the officers involved had deficiencies, which would lead to the type of injuries Plaintiff[s] suffered.” (ECF No. 1 at PageID 4–5; ECF No. 106 at PageID 451.) Plaintiffs’ allegations appear to implicate two of the situations in which a municipality can be liable under § 1983: (1) the existence of a policy of inadequate training or supervision and (2) the existence of a custom of tolerance or acquiescence of constitutional violations. The Court will address each in turn but finds that The City is entitled to judgment on each. A. Failure to Train or Supervise Plaintiffs allege that The City “failed to provide adequate training or supervision for the police officers and that their failure to train and supervise their officers has become a custom that has resulted in repeated substantiated excessive abuse claims against the City of Memphis.” (ECF No. 106 at PageID 451.) “A municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train.” Connick, 563 U.S. at 61. Success on this claim requires the party show that: “(1) the training program was inadequate to the task the officer must perform, (2) the inadequacy is a result of the municipality’s deliberate indifference, and (3) the 8 Case 2:18-cv-02201-MSN-tmp Document 189 Filed 03/05/21 Page 9 of 15 PageID 1841 inadequacy is closely related to or actually caused the plaintiff's injury.” Epperson, 104 F. Supp. 3d at 684; see also Burgess, 735 F.3d at 478 Deliberate indifference is a “stringent” standard, “requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Epperson, 140 F. Supp. 3d at 684 (quoting Regents v. City of Plymouth, 568 F. App’x 380, 394 (6th Cir. 2014 . In other words, “a plaintiff ‘must show prior instances of unconstitutional conduct demonstrating that the [municipality] has ignored a history of abuse and was clearly on notice that the training in this particular area was deficient and likely to cause injury.’” Bonner-Turner v. City of Ecorse, 627 F. App’x 400, 414 (6th Cir. 2015) (quoting Plinton v. Cty of Summit, 540 F.3d 459, 464 (6th Cir. 2008 . Normally, “the easiest way for an individual to meet [this] burden is to point to past incidents of similar police conduct that authorities ignored.” Birgs v. City of Memphis, 686 F. Supp. 2d 776, 780 (W.D. Tenn. 2010) (citation omitted). In certain narrow circumstances, however, a municipality may be liable under a theory of a failure to train for a single instance of a constitutional violation for “recurring situations presenting an obvious potential for such a violation[.]” Epperson, 140 F. Supp. 3d at 685 (quoting Bonner-Turner, 627 F. App’x at 414). Under this theory, there must be a “complete failure to train” or training so “reckless or grossly negligent” that future misconduct is “substantially certain to result.” Harvey v. Campbell Cty., 453 F. App’x 557, 567 (6th Cir. 2011) (quoting Hays v. Jefferson Cty., 668 F.2d 689, 874 (6th Cir. 1982 . Put differently, “the need for more or different training” must be obvious. Id. Ultimately, “mere allegations” of insufficient training or that better training could have prevented the injury do not suffice to establish a municipality’s “deliberate indifference.” Id. at 563. 9 Case 2:18-cv-02201-MSN-tmp Document 189 Filed 03/05/21 Page 10 of 15 PageID 1842 The Court first notes that The City appears to only respond to allegations contained with Plaintiffs’ Amended Complaint. (ECF No. 165-7 at PageID 1408.) As noted above, the Court’s Order allowing for Plaintiffs to file an Amended Complaint limited Plaintiffs to add additional facts to support their § 1983 claim against The City. (ECF No. 105 at PageID 446–47.) Plaintiffs did not reallege nor incorporate by reference any of their prior factual allegations. In light of this and the Court’s instructions, the Court will only rule on the allegations contained within Plaintiffs’ Amended Complaint.7 Plaintiffs’ Amended Complaint asserts that The City failed to properly train and supervise its officers regarding their use of a sting ray device. (ECF No. 106 at PageID 448–49.) This device allegedly allowed officers to listen in on Plaintiffs’ communications without their knowledge. (Id. at PageID 449.) As a result, the conversations illegally recorded by officers later served as the basis for criminal charges against Plaintiffs. (Id. at PageID 450.) The City counters Plaintiffs’ allegations on two fronts. First, Plaintiffs cannot produce any evidence demonstrating that a sting ray device was even utilized by officers to listen in on Plaintiffs’ communications. (ECF No. 165-7 at PageID 1409.) Second, Plaintiffs cannot demonstrate that The City had an inadequate training program. (Id.) After review, the Court finds that The City is entitled to judgment in its favor. As a threshold issue, Plaintiffs do not produce any evidence establishing that officers utilized a sting ray device to monitor their phone conversations. Next, Plaintiffs fail to identify which training program is at issue nor do they explain how such program is deficient. Finally, Plaintiffs do not satisfy the “stringent” standard of showing that The City was deliberately indifferent. 7. Even if the Court were to address the allegations within Plaintiffs’ original Complaint, The City would still be entitled to judgment in its favor for similar reasons. Plaintiffs fail to adduce any evidence supporting their claims. 10 Case 2:18-cv-02201-MSN-tmp Document 189 Filed 03/05/21 Page 11 of 15 PageID 1843 As an initial obstacle, Plaintiffs fail to show that officers used a sting ray device. (ECF No. 165-7 at PageID 1409.) Given that Plaintiffs’ claim hinges on the purported misuse of such a device, Plaintiffs must establish that such a device was used. See Harvey v. Campbell Cty., 453 F. App’x 557, 565 (6th Cir. 2011) (“Plaintiffs, in response to a properly supported motion for summary judgment, cannot rely merely on allegations and arguments, but must set out specific facts showing a genuine issue for trial.”) Plaintiffs have failed to do so. Rather, Plaintiff Watson, when asked “[w]hat evidence do you have that [officers] used a Stingray device,” responded with “I’m not sure what — if they used— I mean, not sure, at least have no evidence of it[.]” (ECF No. 165-2 at PageID 1280.) Without establishing that officers utilized such a device, Plaintiffs cannot establish that they suffered any harm from The City’s purported failures to properly train its officers on its proper usage. Further, Plaintiffs have not established that The City’s training of its officers was deficient nor that that The City was deliberately indifferent in the face of a deficient training program. See Epperson, 104 F. Supp. 3d at 684. After review of Plaintiffs’ pleadings, they do not specify which training program is at issue and offer no explanation on how such unidentified training program was deficient. Indeed, as a counter to Plaintiffs’ allegations, The City has put forth evidence demonstrating that officers received adequate training. See Harvey, 453 F. App’x at 564–65. In support that officers receive adequate training, The City submits the affidavit of Lieutenant Colonel Dennis L. McNeil, Sr. (“Lt. Col. McNeil”). (ECF No. 165-5.) Lt. Col. McNeil has worked with the Memphis Police Department (“MPD”) for thirty-one (31) years and serves as the “Commander of Training” at the police academy. (Id. at PageID 1293–94.) Because of this experience, he can attest to the kind of training officers receive. (Id. at PageID 1294.) 11 Case 2:18-cv-02201-MSN-tmp Document 189 Filed 03/05/21 Page 12 of 15 PageID 1844 As an initial matter, all training received by Memphis police academy recruits is approved by a state regulatory body, the Tennessee Peace Officers Standards and Training Commission (“POST”). (Id. at PageID 1294–95.) As part of their approved training, recruits receive four- hundred and eighty (480) hours of instruction over various topics.8 (Id. at PageID 1295.) The curriculum includes coverage of constitutional law, search and seizures, and civil liability. (Id. at PageID 1296.) Most important, there is extensive coverage of the Fourth Amendment, including thirty (30) hours devoted to search and seizures. (Id.) This also includes discussion of searches of persons with or without consent and issues around probable cause. (Id.) POST also mandates that commissioned officers receive forty (40) hours a year of in-service training.9 (Id. at PageID 1295.) Moreover, all officers are trained in the MPD’s policies and procedures. (Id. at PageID 1299.) Officers are taught that they must always comply with these policies and procedures and are instructed to refer to the policy manual throughout their career. (Id.) Finally, the MPD enforces it policies and disciplines officers who violate the policies. (Id. at PageID 1300.) Turning to the officers named in the Complaint, Defendant Richardson and Defendant Overly, it appears they received ample training. Defendant Richardson received over seven hundred (700) hours of training by the time of his commission as a Memphis police officer. (Id. at PageID 1297.) Similarly, Defendant Overly received over seven hundred (700) hours of instructions before his commission as a police officer. (Id. at PageID 1298.) From the record, it appears that MPD officers received adequate training on the Fourth Amendment and more particularly, issues related to searches of persons with or without consent. 8. At the time the officers named in this suit received training, the required number of hours was three-hundred and twenty (320). (ECF No. 165-5 at PageID 1295 n.1.) 9. The courses taught at in-service training vary from year to year and depend on what topics command staff recognize as needing greater instruction. (Id. at PageID 1296.) 12 Case 2:18-cv-02201-MSN-tmp Document 189 Filed 03/05/21 Page 13 of 15 PageID 1845 Plaintiffs do not articulate how this training is “inadequate to the task the officer must perform.” Epperson, 104 F. Supp. 3d at 684. Plaintiffs “rely instead on speculative, unsupported allegations to create metaphysical doubt, which clearly does not amount to a genuine issue of material fact.” Harvey, 453 F. App’x at 565. Plaintiffs also have not shown that The City was deliberately indifferent. See id.; see also Bonner-Turner v. City of Ecorse, 627 F. App’x 400, 414 (6th Cir. 2015) (quoting Plinton v. Cty of Summit, 540 F.3d 459, 464 (6th Cir. 2008 (“[A] plaintiff must show prior instances of unconstitutional conduct demonstrating that the [municipality] has ignored a history of abuse and was clearly on notice that the training in this particular area was deficient and likely to cause injury.”) (internal quotations omitted). Plaintiffs point to no other instances of improper use of a sting ray device nor similar violations that would put The City on notice that additional training was needed. See Connick, 563 U.S. at 62 (“Without notice that a course of training is deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights.’); Birgs, 686 F. Supp. 2d at 780 (“The easiest way for an individual to meet [this] burden is to point to past incidents of similar police conduct that authorities ignored.”).10 Thus, their claim fails for the reasons explained above. B. Custom of Tolerance or Inaction toward constitutional violations Plaintiffs further allege that The City “was aware that the officers involved had deficiencies which would lead to the type of injuries which the Plaintiffs suffered” but failed to take any action 10. The Court notes that deliberate indifference can be satisfied based on a single violation if the municipality failed to properly train its officers concerning “recurring situations presenting an obvious potential for such a violation[.]” Epperson, 140 F. Supp. 3d at 685. However, Plaintiffs do not allege this. Instead, they allege that The City’s failure to train resulted in “a custom that has resulted in repeated substantiated excessive abuse claims against the City of Memphis.” (ECF No. 106 at PageID 451. In other words, Plaintiffs allege “prior instances” of unconstitutional conduct. See Ouza v. City of Dearborn Heights, 969 F.3d 265, 287 (6th Cir. 2020). 13 Case 2:18-cv-02201-MSN-tmp Document 189 Filed 03/05/21 Page 14 of 15 PageID 1846 to remedy the issue. (ECF No. 106 at PageID 451.) Another way Plaintiffs can establish municipal liability is to show “the existence of a custom of tolerance or acquiescence of federal rights violations.” Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013). At bottom, this type of claim requires a party show “a pattern of inadequately investigating similar claims.” Id.; see also Nouri v. Cty. Of Oakland, 615 F. App’x 291, 296 (6th Cir. 2015). When a party alleges that a municipality has a custom of “inaction toward constitutional violations,” the party must show: “(1) a clear and persistent pattern of misconduct, (2) notice or constructive notice on the part of the municipality, (3) the defendant's tacit approval of the misconduct, and (4) a direct causal link to the violations.” Nouri, 615 F. App’x at 296 (citing Powers v. Hamilton Cty. Pub. Defender Comm’n, 501 F.3d 592, 607 (6th Cir. 2007 . The Sixth circuit has “never found notice of a pattern of misconduct (or the pattern itself) solely from the mistreatment of the plaintiff.” Id. “To do so risks ‘collapsing ... the municipal liability standard into a simple respondeat superior standard.’” Id. (quoting Thomas, 398 F.3d 426 at 432–33). “Like a claim based on failure to train employees, one grounded in a custom of tolerance requires a showing of deliberate indifference.” Epperson, 140 F. Supp. 3d at 685–85 (citing Key v. Shelby Cty., 551 F. App’x 262, 267 (6th Cir. 2014 ; see also D’Ambrosio v. Marino, 747 F.3d 378, 388 (6th Cir. 2014). The City is entitled to judgment on this claim because Plaintiffs have failed entirely to support this claim and have not established the existence of a genuine dispute. First, Plaintiffs do not cite to any previous incidents demonstrating a “clear and consistent pattern of misconduct.” Building on that, without this pattern of misconduct, it cannot be said that The City received “notice or constructive notice” of a pattern of constitutional violations being committed by its officers. See Nouri, 615 F. App’x at 296. It appears that Plaintiffs intend to rely on this singular 14 Case 2:18-cv-02201-MSN-tmp Document 189 Filed 03/05/21 Page 15 of 15 PageID 1847 alleged wrong by officers to support their claims. This they cannot do. See id. (explaining that a single instance never suffices to show a pattern of misconduct because to hold otherwise “risks ‘collapsing ... the municipal liability standard into a simple respondeat superior standard’”). Finally, Plaintiffs have not shown the municipality’s “tacit approval” of these purported violations or the requisite causal link. In sum, Plaintiffs custom of tolerance claim lacks any proof creating a genuine dispute to be resolved at trial. The City is entitled to judgment on this claim as well. Accordingly, the Court GRANTS The City’s Motion for Summary Judgment and DISMISSES all claims WITH PREJUDICE. Plaintiffs’ Motion To Compel As mentioned above, on October 23, 2020, Plaintiffs filed their pending Motion to Compel. (ECF No. 180.) Without reaching the merits of the motion, the Court DENIES the motion AS MOOT. Plaintiffs’ Motion does not request that the Court hold off on ruling on The City’s Motion for Summary Judgment. Indeed, the Court made Plaintiffs aware in a prior order that “the City’s motion for summary judgment therefore remains pending and is ripe for adjudication.” (ECF No. 177 at PageID 1588.) Accordingly, because the Court finds that The City is entitled to judgment in its favor, Plaintiffs’ Motion is DENIED AS MOOT. Conclusion For the reasons above, The City’s Motion for Summary Judgment is GRANTED. All claims against The City will be DISMISSED WITH PREJUDICE. IT IS SO ORDERED, this 5th day of March, 2021. s/ Mark Norris MARK S. NORRIS UNITED STATES DISTRICT JUDGE 15
=== 21-1094 ===
Case 2:21-cv-01094-MSN-tmp Document 47 Filed 06/27/22 Page 1 of 10 PageID 168 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ______________________________________________________________________________ TERRELL TOOTEN, Plaintiff, v. CITY OF COVINGTON, COVINGTON POLICE DEPARTMENT, Defendant. Case No. 2:21-cv-1094-MSN-tmp JURY DEMAND ______________________________________________________________________________ ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS AND DISMISSING PLAINTIFF’S REMAINING CLAIM FOR LACK OF STANDING ______________________________________________________________________________ Before the Court is Defendants’ Motion to Dismiss (“Motion”) filed February 25, 2022. (ECF No. 41.) Plaintiff responded in opposition on March 10, 2022 (“Response”). (ECF No. 45.) Defendant filed a reply in support on March 24, 2022. (ECF No. 46.) The matter is ripe for adjudication, and the Court finds a hearing is not necessary. For the reasons set forth below, Defendants’ Motion is GRANTED IN PART and DENIED IN PART, and Plaintiff’s remaining claim is DISMISSED for lack of standing. BACKGROUND This case arises out of a misdemeanor traffic citation, or what is commonly referred to as a “traffic ticket.” Specifically, a ticket for the unlawful use of a wireless telecommunication device in violation of Tennessee Code Annotated § 55-8-199, which an officer with the Covington Police Department issued to Plaintiff on April 20, 2021. (ECF No. 40 at PageID 130–31.) Plaintiff was Case 2:21-cv-01094-MSN-tmp Document 47 Filed 06/27/22 Page 2 of 10 PageID 169 given a court date of May 26, 2021 for the ticket. (Id. at PageID 132.) Plaintiff appeared in the Covington Municipal Court on that date and told the court he believed he did not violate the statute because the device he was holding was a “speaker,” and even if he did violate the statute, he sought to attend driving school to keep the ticket off his driving record. (Id. at PageID 132–33.) The court advised Plaintiff that driving school was not available, and Plaintiff ultimately set the matter for trial on June 16, 2021. (Id. at PageID 133.) At trial, the officer who issued the ticket testified as to various matters, including the device Plaintiff was using. (Id. at PageID 134.) After hearing the officer’s testimony, the court refused to dismiss Plaintiff’s ticket. (Id.) Plaintiff again requested that he be allowed to attend driving school, but the court denied Plaintiff’s request, finding it was within the judge’s discretion whether an offender is allowed to complete driving school in lieu of the fine under Tenn. Code Ann. § 55- 8-199. (Id.) Plaintiff alleges the Covington Municipal Court judge incorrectly interpreted Tenn. Code Ann. § 55-8-199, and that it is the offender, not the court, who has discretion about attending driving school. (Id. at PageID 136.) Further, Plaintiff contends that “Due Process and Equal Protection has [sic] been violated, in that Plaintiff, or anyone else who is charged with a violation of this law, is allowed to utilize the option of Driving School, as required by the statue.” (Id. at PageID 135.) Plaintiff alleges that even if it is within the court’s discretion to allow an offender to attend driving school, the court is still required to consider the “facts and circumstances of the offender, before making that determination.” (Id.) Plaintiff claims that when he appeared in the Covington Municipal Court in May and June, there were multiple other individuals in court for traffic tickets for violation of Tenn. Code Ann. § 55-8-199. (Id. at PageID 132–34.) Plaintiff alleges these individuals all received fines and were 2 Case 2:21-cv-01094-MSN-tmp Document 47 Filed 06/27/22 Page 3 of 10 PageID 170 not given the opportunity to complete driving school. (Id.) Plaintiff also says that none of the individuals were instructed their tickets would result in points being “placed on their license,” or that a violation of the statute was a “criminal offense and a Class C Misdemeanor.” (Id. at PageID 132–35.) Plaintiff also asserts he was “denied Due Process and Fundamental Fairness” because the Covington Municipal Court judge and the Covington City Attorney are “related within the 3rd degree of relationship,” and this relationship was not disclosed to Plaintiff. (Id. at PageID 138– 40.) Plaintiff appealed his traffic ticket to the Circuit Court of Tipton County, Tennessee, which held a de novo trial on the matter on July 16, 2021. (See ECF No. 41-1 at PageID 60.) The Circuit Court found Plaintiff guilty of violating Tenn. Code Ann. § 55-8-199, but it allowed Plaintiff to complete a driver education course (i.e., driving school) pursuant to Tenn. Code Ann. § 55-10-301 in lieu of the statutory fine and costs. (Id. at PageID 61.) On August 16, 2021, Plaintiff appealed the Circuit Court’s judgment to the Tenneessee Court of Appeals. (See ECF No. 24-2 at PageID 62.)1 In terms of relief, Plaintiff seeks compensatory damages of $100,000, attorneys’ fees pursuant to 42 U.S.C. § 1988, as well as a declaration and injunction, which Plaintiff describes as follows: 72. Plaintiff is requesting a declaration from this Court that Defendant is in violation of Tennessee Code Annotated Section 55-8-199 in the way that it treats individuals charged with the violation of the statute. 1 on the Based publicly see information, https://www.tncourts.gov/PublicCaseHistory/CaseDetails.aspx?id=82938&Number=True (last visited June 1, 2022), the matter is still pending before the Tennessee Court of Appeals, with Plaintiff (defendant/appellant in the Tennessee Court of Appeals matter) filing his brief on May 21, 2022, and Defendant (plaintiff/appellee in the Tennessee Court of Appeals matter) yet to file its brief. available docket 3 Case 2:21-cv-01094-MSN-tmp Document 47 Filed 06/27/22 Page 4 of 10 PageID 171 73. Plaintiff is requesting that this Court: enjoin Defendant convicting individuals of this offense without first seeing if they qualify for Driving School; inform individuals charged about their right to Driving School if they are first-time offender[s]; require Defendant to apply the actual facts of the case to the law to determine guilt or innocence; inform individuals charged that they are charged with a criminal offense of a Class C Misdemeanor; and to offer Driving School. (Id. at PageID 138.) STANDARD OF REVIEW Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for dismissal for lack of jurisdiction over the subject matter. Fed. R. Civ. P. 12(b)(1). A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may be premised on a facial or factual attack. See Cartwright v. Garner, 751 F.3d 752, 759 (6th Cir. 2014); Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). A facial attack questions the sufficiency of the pleading without disputing the facts alleged in it. See Gentek Bldg. Prods., Inc., 491 F.3d at 330. A factual attack challenges the factual allegations underlying the assertion of jurisdiction. See United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). When reviewing a facial attack, a district court takes the allegations of the complaint as true. Gentek Bldg. Prods., Inc., 491 F.3d at 330. A factual attack “controvert[s] the accuracy (rather than the sufficiency) of the jurisdictional facts asserted by the plaintiff and proffer[s] materials . . . in support of that position.” Valentin v. Hosp. Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001). DISCUSSION Defendants argue that, pursuant to the Rooker-Feldman doctrine, this Court lacks subject matter jurisdiction over Plaintiff’s claims in this matter. (See ECF Nos. 41; ECF No. 41-1 at PageID 147–49.) This is a facial attack on the Court’s jurisdiction. Plaintiff alleges that Rooker- 4 Case 2:21-cv-01094-MSN-tmp Document 47 Filed 06/27/22 Page 5 of 10 PageID 172 Feldman is inapplicable, but other than disputing that he lost in state court, his exact arguments are not entirely clear. Federal law empowers only the Supreme Court to review “final judgments or decrees rendered by the highest court of a State.” 28 U.S.C. § 1257. The negative implication of § 1257 is that lower federal courts lack jurisdiction to review state court judgments. This is known as the Rooker-Feldman doctrine. The Rooker-Feldman doctrine represents “the general principle that ‘[f]ederal district courts do not stand as appellate courts for decisions of state courts’ . . . .” RLR Invs., LLC v. City of Pigeon Forge, Tenn., 4 F4th. 380, 387 (6th Cir. 2021) (quoting Hall v. Callahan, 727 F.3d 450, 453 (6th Cir. 2013); see Hood v. Keller, 341 F.3d 593, 597 (6th Cir. 2003) (“The purpose of the doctrine is to prevent ‘a party losing in state court . . . from seeking what in substance would be appellate review of the state judgment in a United States district court, based on the losing party’s claim that the state judgment itself violates the loser’s federal rights’”) (citing Tropf v. Fid. Nat’l Title Ins. Co., 289 F.3d 929, 936 (6th Cir. 2002 . To determine whether a plaintiff seeks review of a state court judgment, in which case a district court would lack jurisdiction, a court must look to the “source of the injury the plaintiff alleges in the federal complaint.” McCormick v. Braverman, 451 F.3d 382, 393 (6th Cir. 2006). “If the source of the plaintiff’s injury is the state-court judgment itself, then Rooker-Feldman applies.” VanderKodde v. Mary Jane M. Elliott, P.C., 951 F.3d 397, 402 (6th Cir. 2020) (citing McCormick, 451 F.3d at 393). “If there is some other source of injury, such as a third party’s actions, then the plaintiff asserts an independent claim.” Lawrence v. Welch, 531 F.3d 364, 368– 69 (6th Cir. 2008) (quoting McCormick, 451 F.3d at 394). In other words, where the plaintiff presents “some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party,” a court may still exercise jurisdiction. McCormick, 5 Case 2:21-cv-01094-MSN-tmp Document 47 Filed 06/27/22 Page 6 of 10 PageID 173 451 F.3d at 393 (quoting Exxon Mobile Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 293 (2005 . However, an “important exception” is “that ‘if a third party’s actions are the product of a state court judgment,’ then challenging the acts would be to challenge the judgment itself.” Hancock v. Miller, 852 F. App’x 914, 921 (6th Cir. 2021) (quoting McCormick, 451 F.3d at 394). “A court cannot determine the source of the injury ‘without reference to [the plaintiff’s] request for relief.’” VanderKodde, 951 F.3d at 402 (alteration in original) (quoting Berry v. Schmitt, 688 F.3d 290, 299 (6th Cir. 2012 . The Sixth Circuit has previously explained that “[t]he Rooker–Feldman doctrine ‘does not prohibit federal district courts from exercising jurisdiction where the plaintiff’s claim is merely a general [i.e. facial] challenge to the constitutionality of the state law applied in the state action, rather than a challenge to the law’s application in a particular state case.’” Carter v. Burns, 524 F.3d 796, 798 (6th Cir. 2008) (quoting Hood v. Keller, 341 F.3d 593, 597 (6th Cir. 2003 . Where the plaintiff alleges that a state court interpreted and applied a state statute to his case in an unconstitutional manner, however, his complaint is an as-applied constitutional challenge and is prohibited under the Rooker–Feldman doctrine. Durham v. Haslam, 528 F. App’x 559, 563 (6th Cir. 2013) (citing Carter, 524 F.3d at 799). Rooker-Feldman also “does not bar ‘forward-looking, general challenges to state-court practices.’” Brent v. Wayne Cnty. Dept. of Human Servs., 901 F.3d 656, 674 (6th Cir. 2018) (quoting Shafizadeh v. Bowles, 476 F. App’x 71, 73 (6th Cir. 2012 . Put differently, “the Rooker- Feldman doctrine does not bar a plaintiff from attempting to ‘clear away’ an allegedly unconstitutional state-law policy going forward . . . .” Id. (citing Evans v. Cordray, 424 F. App’x 537, 540 (6th Cir. 2011 . For example, in Hood v. Keller, the plaintiff was arrested for criminal trespass because he failed to obtain a permit before preaching and handing out religious materials 6 Case 2:21-cv-01094-MSN-tmp Document 47 Filed 06/27/22 Page 7 of 10 PageID 174 on the Ohio Statehouse grounds. 341 F.3d at 596. He filed a complaint in federal court challenging the constitutionality of the Ohio administrative code provision that required a permit for use of the Ohio Statehouse grounds. Id. at 595. The Sixth Circuit found that the Rooker-Feldman doctrine did not bar his complaint because the plaintiff asserted “no demand to set aside the verdict or the state court ruling.” Id. at 598. Here, the Rooker-Feldman doctrine bars at least some of Plaintiff’s claims, because the Covington Municipal Court judgment is the source of Plaintiff’s alleged injuries. In its Motion, Defendant states that Plaintiff “asks the Court to declare that the municipal court’s judgment is in violation of § 55-8-199; to award him compensatory damages because of the alleged defects in the municipal court’s judgment against him; and to issue injunctive relief to address the alleged defects in the municipal court’s judgment against him.” (ECF No. 41-1 at PageID 146.) And although Plaintiff does not challenge Defendant’s characterization of his requested relief, this Court does not interpret Plaintiff’s requested relief in the same manner as Defendant. First, to be clear, to the extent Plaintiff is seeking (1) a declaration that the Covington Municipal Court’s judgment is in violation of § 55-8-199, (2) compensatory damages because of alleged defects in that judgment against him, or (3) an injunction to address the alleged defects in the municipal court’s judgment against him, those claims are clearly barred by Rooker-Feldman, and to that extent, Defendant’s Motion is GRANTED. However, Plaintiff appears to seek forward-looking relief in Paragraph 73 of the Amended Complaint: 73. Plaintiff is requesting that this Court: enjoin Defendant convicting individuals of this offense without first seeing if they qualify for Driving School; inform individuals charged about their right to Driving School if they are first- timmer offender[s]; require Defendant to apply the actual facts of the case to the law to determine guilt or innocence; inform individuals charged that they are charged with a criminal offense of a Class C Misdemeanor; and to offer Driving School. 7 Case 2:21-cv-01094-MSN-tmp Document 47 Filed 06/27/22 Page 8 of 10 PageID 175 (ECF No. 40 at PageID 138.) This type of declaratory relief is not barred by the Rooker-Feldman doctrine, and to the extent Defendant’s Motion seeks dismissal of this claim for relief on that basis, it is DENIED. Yet, even though not barred by Rooker-Feldman, Plaintiff’s claim for forward-looking injunctive relief must nevertheless be dismissed for lack of standing. Although not raised in Defendants’ Motion, this Court has an independent duty to examine its jurisdiction. See Glennborough Homeowners Assoc. v. U.S. Postal Serv., 21 F.4th 410, 413 (6th Cir. 2021) (citing Taylor v. Owens, 990 F.3d 493, 496 (6th Cir. 2021 ; Kanuszewski v. Mich. Dep’t of Health & Hum. Servs., 927 F.3d 396, 405 (6th Cir. 2019) (standing is “jurisdictional and must be addressed as a threshold matter”); U.S. v. Ellis, 125 F. App’x 691, 695 (6th Cir. 2005) (holding that it is “incumbent” upon the Court to determine whether a party has “standing to challenge the constitutionality of the officers’ actions[,]” even when the issue of standing is not raised by the parties). “To have standing, a plaintiff must allege (1) an injury in fact (2) that’s traceable to the defendant’s conduct and (3) that the courts can redress.” Gerber v. Herskovitz, 14 F.4th 500, 505 (6th Cir. 2021) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 559–61 (1992 . “If a party does not have standing to bring an action, then the court has no authority to hear the matter and must dismiss the case.” Binno v. Am. Bar Ass’n, 826 F.3d 338, 344 (6th Cir. 2016) (citation omitted). “The party seeking to invoke federal jurisdiction bears the burden to demonstrate standing and he ‘must plead its components with specificity.’” Daubenmire v. City of Columbus, 507 F.3d 383, 388 (6th Cir. 2007) (quoting Coyne v. Am. Tobacco Co., 183 F.3d 488, 494 (6th Cir. 1999) (further citation omitted . A plaintiff’s allegations in support of standing are analyzed for plausibility under the same standard as a motion under Federal Rule of Civil Procedure 12(b)(6). See 8 Case 2:21-cv-01094-MSN-tmp Document 47 Filed 06/27/22 Page 9 of 10 PageID 176 Glennborough Homeowners Assoc., 21 F.4th at 414 (explaining the standard for alleging facts supporting standing aligns with that governing motions to dismiss under Fed. R. Civ. P. 12(b)(6 ; Ass’n of Am. Physicians & Surgeons v. U.S. Food & Drug Admin., 13 F.4th 531, 545 (6th Cir. 2021) (“Should Twombly’s plausibility test apply to a motion to dismiss on standing grounds too? We think so.”). A standing analysis “is not a merits inquiry.” Gerber, 14 F.4th at 505; see Kanuszewski, 927 F.3d at 407 (“standing analysis does not consider the merits of Plaintiffs’ claims”). The plaintiff must have standing throughout every stage of the litigation for each claim and form of relief sought. Uzuegbunam v. Praczewski, 141 S. Ct. 792, 801 (2021); Glennborough, 21 F.4th at 414 (“A plaintiff must demonstrate standing for each claim she seeks to press and for each form of relief she seeks”). In the context of injunctive relief, allegations of past injuries alone are not sufficient to confer standing. See Waskul v. Washtenaw Cnty. Cmty. Mental Health, 900 F.3d 250, 257 (6th Cir. 2018) (citing O’Shea v. Littleton, 414 U.S. 488, 495–96 (1984 . On the other hand, the threat of future harm can provide standing if there is a “‘substantial risk’ that the harm will occur.” Kanuszewski v. Mich. Dep’t of Health & Hum. Servs., 927 F.3d 396, 405 (6th Cir. 2019) (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414 n.5 (2013 . In other words, the plaintiff must allege or “demonstrate actual present harm or a significant possibility of future harm.” Brent, 901 F.3d at 675 (emphasis added) (citing Fieger v. Ferry, 471 F.3d 637, 643 (6th Cir. 2006 ; see also O’Shea, 414 U.S. at 495–96 (explaining that “[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief”); Golden v. Zwickler, 394 U.S. 103, 109–10 (1969) (dismissing suit seeking a declaration that a state statute was unconstitutional and finding that the plaintiff lacked standing because even though the plaintiff was prosecuted under the statute previously, the likelihood of the plaintiff’s repeat exposure to the statute was remote); 9 Case 2:21-cv-01094-MSN-tmp Document 47 Filed 06/27/22 Page 10 of 10 PageID 177 Grendell v. Ohio Sup. Ct., 252 F.3d 828, 832 (6th Cir. 2001) (“[T]he mere fact that [the plaintiff] was previously sanctioned by the Ohio Supreme Court . . . is not an adequate injury in fact to confer standing for declaratory and injunctive relief.”). “‘Allegations of possible future injury’ are not sufficient.” Kanuszewski, 927 F.3d at 405 (emphasis added) (quoting Clapper, 568 U.S. at 409). The “threatened injury must be certainly impending,” and “a highly attenuated chain of possibilities” does not satisfy this requirement. Id. at 405–06 (quoting Clapper, 468 U.S. at 410). Based on his Amended Complaint, Plaintiff has not adequately alleged standing to pursue forward-looking injunctive relief because he does not include allegations of likely future harm. Plaintiff’s allegations relate to a past injury and do not demonstrate a significant possibility that he will again be subject to the alleged harm. Because Plaintiff fails to plausibly plead standing for any forward-looking injunctive relief, that claim is DISMISSED. CONCLUSION For the reasons set forth above, Defendants’ Motion to Dismiss is GRANTED IN PART and DENIED IN PART, and Plaintiff’s remaining claim for forward-looking injunctive relief is DISMISSED for lack of standing. IT IS SO ORDERED, this 27th day of June, 2022. s/ Mark S. Norris MARK S. NORRIS UNITED STATES DISTRICT JUDGE 10
=== 20-2224 ===
Case 2:20-cv-02224-MSN-atc Document 25 Filed 09/30/21 Page 1 of 8 PageID 144 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ______________________________________________________________________________ APOLLON HOLDINGS, LLC, Plaintiff, v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, and DR. BEN CARSON, SECRETARY OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, in his official capacity, Case No. 2:20-cv-2224-MSN-atc JURY DEMAND Defendants. ______________________________________________________________________________ ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION ______________________________________________________________________________ Before the Court is Defendants’ Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim (ECF No. 19) (“Motion”). Plaintiff responded in opposition. (ECF No. 20.) Defendants filed a reply in support. (ECF No. 23.) For the reasons set forth below, Defendants’ Motion is GRANTED. BACKGROUND This matter involves an alleged breach of an oral agreement between Plaintiff and Defendants regarding repairs and improvements to property owned by Plaintiff. Specifically, Plaintiff is the owner of 8.478 acres of real property in Memphis, which is the location of the Sterling Townhomes. (ECF No. 1 at PageID 4–5.) The Sterling Townhomes are a 112-unit multifamily housing project located in an economically depressed area in Memphis, Tennessee. (Id. at PageID 5.) Case 2:20-cv-02224-MSN-atc Document 25 Filed 09/30/21 Page 2 of 8 PageID 145 Plaintiff initially acquired the Sterling Townhomes in 2007. (Id. at PageID 6.) In 2011, Plaintiff sought to refinance the Sterling Townhomes and executed a promissory note (“Promissory Note”) and deed of trust (“Deed of Trust”) in favor of Berkadia Commercial Mortgage, LLC (“Berkadia”). (Id. at PageID 5.) Simultaneously with the execution of the Promissory Note and Deed of Trust, Plaintiff entered into a Regulatory Agreement with the U.S. Department of Housing and Urban Development (“HUD”) dated January 26, 2011. (Id. at PageID 5–6; ECF No. 1-2.) The terms of the Regulatory Agreement are specifically incorporated in and made part of the Deed of Trust. (ECF No. 1-1 at PageID 16.) The Regulatory Agreement provided that in exchange for HUD insuring the Promissory Note for the re-financing of the Sterling Townhomes, Plaintiff promised, among other things, to promptly make all payments due under the Promissory Note and Deed of Trust, maintain the property in good repair and condition, and establish a reserve fund for replacements. (See ECF No. 1-2 at PageID 28–30; ECF No. 1 at PageID 6.) As to the reserve fund for replacements, the Regulatory Agreement provided as follows: (a) Owners shall establish or continue to maintain a reserve fund for replacements by the allocation to such reserve fund in a separate account with the mortgagee or in a safe and responsible depository designated by the mortgagee, concurrently with the beginning of payments towards amortization of the principal of the mortgage insured or held by the Secretary of an amount equal to $4,666.67 per month and an initial deposit of $224,000.00 unless a different date or amount is approved in writing by the Secretary. Such fund, whether in the form of a cash deposit or invested in obligations of, or fully guaranteed as to principal by, the United States of America shall at all times be under the control of the mortgagee. Disbursements from such fund, whether for the purpose of effecting replacement of structural elements and mechanical equipment by the project or for any other purpose, may be made only after receiving the consent in writing of the Secretary. In the event that the owner is unable to make a mortgage note payment on the due date and that payment cannot be made prior to the due day of the next such installment or when the mortgagee has agreed to forgo making an election to assign the mortgage to the Secretary based on the monetary default, or to withdraw an election already made, the Secretary is authorized to instruct the mortgagee to withdraw funds from the reserve fund for 2 Case 2:20-cv-02224-MSN-atc Document 25 Filed 09/30/21 Page 3 of 8 PageID 146 replacements to be applied to the mortgage payment in order to prevent or cure the default. In addition, in the event of a default in the terms of the mortgage, pursuant to which the loan has been accelerated, the Secretary may apply or authorize the application of the balance of such fund to the amount due on the mortgage debt as accelerated. (ECF No. 1-2 at PageID 28–29; see ECF No. 1 at PageID 5–6.) In 2018, HUD sent an inspector to conduct a Real Estate Assessment Center (“REAC”) inspection. (ECF No. 1 at PageID 7.) The Sterling Townhomes scored poorly on the inspection. (Id.) HUD subsequently sent another inspector, and again, the Sterling Townhomes scored poorly. (Id.) As a result of the two inspections, the Sterling Townhomes were placed on the troubled properties list and referred for an enforcement action. (Id.) In April 2019, Plaintiff commissioned a property assessment, rehabilitation plan, and cost estimate for the Sterling Townhomes. (Id.) The plan called for a four-phase rehabilitation at a cost of $332,398. (Id. at PageID 7–8.) Plaintiff alleges that it approached HUD about the rehabilitation plan for the Sterling Townhomes, and HUD orally agreed to work with Plaintiff and release money from the reserve fund to assist with the proposed rehabilitation provided that a mortgage arrearage of approximately $300,000 was cured. (Id. at PageID 8–9.) Plaintiff alleges that based on HUD’s oral promise, Plaintiff’s principal, George Fakiris, used his personal funds to cure the mortgage arrearage, but HUD thereafter refused to release money from the reserve fund as promised. (Id. at PageID 8.) In July 2019, Berkadia advised Plaintiff that it was accelerating the full amount due under the Promissory Note and demanded payment in full be made immediately. (Id.) On October 31, 2019, Berkadia sent a letter to Plaintiff informing it that Berkadia had assigned and transferred the Promissory Note and Deed of Trust to HUD. (Id. at PageID 9.) On March 30, 2020, Plaintiff filed its Complaint in this matter alleging the following causes of action related to the alleged oral agreement with HUD: (1) Breach of Contract; (2) Fraud; (3) 3 Case 2:20-cv-02224-MSN-atc Document 25 Filed 09/30/21 Page 4 of 8 PageID 147 Negligent Misrepresentation; (4) Misrepresentation by Concealment; and (5) Intentional Interference with Business Relationships. (Id. at PageID 9–12.) STANDARD OF REVIEW Defendants’ Motion seeks dismissal under either Rule 12(b)(1) or Rule 12(b)(6). Because this Court finds dismissal is appropriate under Rule 12(b)(1), the Court includes only the standard of review for motions under Rule 12(b)(1). Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for dismissal for lack of jurisdiction over the subject matter. Fed. R. Civ. P. 12(b)(1). A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may be premised on a facial or factual attack. See Cartwright v. Garner, 751 F.3d 752, 759 (6th Cir. 2014); Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). A facial attack questions the sufficiency of the pleading without disputing the facts alleged in it. See Gentek Bldg. Prods., Inc., 491 F.3d at 330. A factual attack challenges the factual allegations underlying the assertion of jurisdiction. See United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). When reviewing a facial attack, a district court takes the allegations of the complaint as true. Gentek Bldg. Prods., Inc., 491 F.3d at 330. A factual attack “controvert[s] the accuracy (rather than the sufficiency) of the jurisdictional facts asserted by the plaintiff and proffer[s] materials . . . in support of that position.” Valentin v. Hosp. Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001). DISCUSSION HUD is an agency of the Federal government, see 42 U.S.C. § 3531 et seq., and therefore, an action against HUD must satisfy all the requirements for actions against the United States. FDIC v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a waiver, sovereign immunity shields the Federal government and its agencies from suit.”). In a suit against the United States, a plaintiff must show 4 Case 2:20-cv-02224-MSN-atc Document 25 Filed 09/30/21 Page 5 of 8 PageID 148 both a waiver of sovereign immunity and a grant of subject matter jurisdiction. See Presidential Gardens Assocs. v. United States, 175 F.3d 132, 139 (2d Cir. 1999); see also V S Ltd. P’ship v. Dep’t of Hous. & Urb. Dev., 235 F.3d 1109, 1112 (8th Cir. 2000). Although the same provision of law may satisfy both requirements, each is “wholly distinct” and must be separately considered. Blatchford v. Native Village of Noatak, 501 U.S. 775, 786–87 n. 4 (1991). The fact that a federal court has jurisdiction to entertain a cause of action does not correspondingly mean that the United States has waived its immunity from being sued on that same cause of action. United States v. Nordic Village, Inc., 503 U.S. 30, 37–38 (1992); see, e.g., Blatchford, 501 U.S. at 786 n. 4 (“The fact that Congress grants jurisdiction to hear a claim does not suffice to show Congress has abrogated all defenses to that claim.”); United States v. Certain Land Situated in the City of Detroit, 361 F.3d 305, 307 (6th Cir. 2004) (concluding 28 U.S.C. § 1367(a), the supplemental-jurisdiction statute, “does not constitute a waiver of sovereign immunity”); Reed v. Reno, 146 F.3d 392, 398 (6th Cir. 1998) (“Section 1331’s general grant of federal question jurisdiction, however, does not by its own terms waive sovereign immunity and vest in district courts plenary jurisdiction over claims for money judgments against the United States.”) (internal citation and quotation marks omitted). It is a plaintiff’s burden to “identify a waiver of sovereign immunity in order to proceed against the United States. If [it] cannot identify a waiver, the claim must be dismissed on jurisdictional grounds.” Reetz v. United States, 224 F.3d 794, 795 (6th Cir. 2000). In its Complaint, Plaintiff pleads that this Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, 28 U.S.C § 1332(a)(1), and 12 U.S.C. § 1702. (See ECF No. 1 at PageID 3–4.) Plaintiff further pleads that this Court has Supplemental Jurisdiction over any claims under Tennessee law pursuant to 28 U.S.C. § 1367. (ECF No. 1 at PageID 4.) Plaintiff does not specifically plead a waiver of sovereign immunity in its Complaint, but based on Plaintiff’s 5 Case 2:20-cv-02224-MSN-atc Document 25 Filed 09/30/21 Page 6 of 8 PageID 149 response in opposition to the Motion, it appears Plaintiff relies on 12 U.S.C. § 1702 of the National Housing Act (“NHA”). That provision provides, in relevant part: The Secretary shall, in carrying out the provision of this subchapter and subchapters II, III, V, VI, VII, VIII, IX–B and X of this chapter, be authorized, in his official capacity to sue and be sued in any court of competent jurisdiction, State or Federal. 12 U.S.C. § 1702. When interpreting the scope of § 1702, courts have declined to extend its sovereign immunity waiver to actions taken under subchapters other than those specified therein, see United Am., Inc. v. N.B.C.-U.S.A. Hous., Inc. Twenty Seven, 400 F. Supp. 2d 59, 62 (D.D.C. 2005), or that were not “carrying out the provisions” of the NHA. V S Ltd. P’ship., 235 F.3d at 1112; Teitelbaum v. U.S. Dep’t of Hous. & Urb. Dev., 953 F. Supp. 326, 330 (D. Nev. 1996). Relevant here, HUD officials’ actions do not “carry out” the provisions of the NHA when those actions are specifically prohibited by the NHA and its implementing regulations. V S Ltd. P’ship., 235 F.3d at 1112; Teitelbaum., 953 F. Supp. at 330. Title 12 U.S.C. § 1715z-4 of the NHA provides: The Secretary shall not consent to any request for an extension of the time for curing a default under any mortgage covering multifamily housing, as defined in the regulations of the Secretary, or for a modification of the terms of such mortgage, except in conformity with regulations prescribed by the Secretary in accordance with the provisions of this section. 12 U.S.C. § 1715z-4 (emphasis added). And under HUD regulations, mortgage modifications must be in writing and approved by the Federal Housing Administration Commissioner. Teitelbaum, 953 F. Supp. at 330–31; V S Ltd. P’ship., 235 F.3d at 1112; 24 C.F.R. § 207.256b. Hence, if the alleged oral agreement here constitutes an oral modification of a mortgage agreement, then the actions of HUD officials in making the alleged oral agreement were not “carrying out” the provisions of the NHA, and there has been no waiver of sovereign immunity. 6 Case 2:20-cv-02224-MSN-atc Document 25 Filed 09/30/21 Page 7 of 8 PageID 150 Plaintiff argues that it has not alleged a breach of a mortgage agreement but rather a breach of the “Regulatory Agreement, which is outside the scope of any mortgage document.” (ECF No. 20 at PageID 102.) Plaintiff’s argument, however, overlooks the language of the Deed of Trust, which specifically incorporates in and makes the Regulatory Agreement part of the Deed of Trust. (See ECF No. 1-1 at PageID 16.) And Plaintiff does not really allege a breach of the Regulatory Agreement, but rather a breach of an oral agreement with terms that contradict those in the Regulatory Agreement. In other words, Plaintiff has alleged a breach of an oral modification of the Deed of Trust, i.e. breach of an oral modification of a mortgage agreement. Thus, Plaintiff cannot rely on the NHA’s sovereign immunity waiver for any of its claims because HUD officials’ actions underlying those claims were not “carrying out” the provisions of the NHA as they are specifically prohibited by the NHA and its implementing regulations. See V S Ltd. P’ship., 235 F.3d at 1112; Teitelbaum., 953 F. Supp. at 330. So, if the NHA does not provide the needed sovereign immunity waiver, is there another waiver of immunity Plaintiff can rely on? Maybe there is, or maybe there’s not, but Plaintiff points to only the NHA in its Complaint and response, and because it is Plaintiff’s burden to identify a waiver of sovereign immunity to proceed against the United States, this Court will not engage in a sua sponte analysis of other potential sources of that waiver.1 1 The Court notes that Defendants’ Motion specifically argues against two other potential sources of sovereign immunity waiver—the Federal Tort Claims Act (“FTCA”), see 28 U.S.C. § 2674, and the Tucker Act, see 28 U.S.C. § 1491. However, Plaintiff specifically argues against application of the FTCA; therefore, this Court does not address Defendants’ arguments. Similarly, Plaintiff does not argue a waiver pursuant to the Tucker Act, so the Court does not address it. However, the Court notes that even if Plaintiff could establish a waiver of immunity under the Tucker Act, the United States Court of Federal Claims has exclusive jurisdiction for Tucker Act claims greater than $10,000. 7 Case 2:20-cv-02224-MSN-atc Document 25 Filed 09/30/21 Page 8 of 8 PageID 151 Therefore, because Plaintiff failed to identify a waiver of sovereign immunity that would allow it to bring its claims against the United States, the Complaint is DISMISSED pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction. CONCLUSION For the reasons set forth above, Defendant’s Motion to Dismiss for Lack of Subject Matter Jurisdiction is GRANTED, and Plaintiff’s Complaint is DISMISSED. IT IS SO ORDERED, this 30th day of September 2021. s/ Mark S. Norris MARK S. NORRIS UNITED STATES DISTRICT JUDGE 8
=== 20-2758 ===
Case 2:20-cv-02758-MSN-tmp Document 61 Filed 01/31/22 Page 1 of 16 PageID 444 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ______________________________________________________________________________ ANDRE SWIFT, as Administrator Ad Litem of the ESTATE OF JANEISHA ROGERS, and as next friend and guardian of A.S., A.S., A.R., and A.R., four minor children, Plaintiff, v. OLD DOMINION FREIGHT LINES, INC. and GEORGE R. ALLISON, JR., Defendants. Case No. 2:20-cv-2758-MSN-tmp JURY DEMAND ______________________________________________________________________________ ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Before the Court is Defendants’ Motion for Summary Judgment1 (“Motion”) (ECF No. 50) filed October 22, 2021. Plaintiff responded in opposition on November 18, 2021 (ECF No. 55). Defendants filed a reply in support on November 30, 2021. For the reasons set forth below, Defendants’ Motion is GRANTED in part and DENIED in part. BACKGROUND This lawsuit arises out of a motor vehicle accident on February 13, 2020 on Shelby Drive in Memphis, Tennessee. (ECF No. 55-1 at PageID 318.) On that day, Janeisha Rogers (“Ms. Rogers”) and her four children were driving westbound on Shelby Drive, approaching the intersection of Shelby Drive and Boeingshire, and Defendant George Allison (“Mr. Allison”) was 1 The Motion is an amended and corrected motion that replaced in its entirety motion initially filed incorrectly (see ECF No. 49). Case 2:20-cv-02758-MSN-tmp Document 61 Filed 01/31/22 Page 2 of 16 PageID 445 driving eastbound on Shelby Drive in a tractor trailer owned by Defendant Old Dominion Freight Line, Inc. (“Old Dominion”). (Id.) As Mr. Allison approached the intersection of Shelby Drive and Boeingshire, the traffic light was green and remained green as he went through the intersection. (ECF No. 55-1 at PageID 319.) As Mr. Allison proceeded through the intersection, two vehicles ahead of him passed Ms. Rogers, after which she began turning left across oncoming traffic towards the driveway of a gas station. (Id.; ECF No. 56-1 at PageID 416.) Three seconds later, Ms. Rogers’ vehicle was hit by the Old Dominion tractor trailer driven by Mr. Allison. (ECF No. 56-1 at PageID 417.) In other words, from the time Ms. Rogers began her left turn to the time of impact was three seconds; Mr. Allison thus had three seconds to perceive, react, and slow to avoid the collision. (ECF No. 56-1 at PageID 417.) Mr. Allison did not apply his brakes until within the last second before the collision. (Id.) An additional one second was needed for Ms. Rogers to complete her turn into the gas station’s driveway. (Id.) In the seconds before the collision, Mr. Allison was driving at 46 miles per hour along Shelby Drive where the posted speed limit was 40 miles per hour. (ECF No. 55-1 at PageID 320.) It is undisputed that a driver with an average perception-reaction time of two seconds, traveling at 40 miles per hour in Mr. Allison’s vehicle would have had sufficient time to avoid the collision. (ECF No. 56-1 at PageID 417.) Because Mr. Allison was traveling at 46 miles per hour, it is undisputed that he needed to have an above-average perception reaction time to avoid the collision. (Id.) According to Defendants, there is no evidence that Ms. Rogers activated her left turn signal before she attempted to make the left turn. (ECF No. 55-1 at PageID 319.) Plaintiff, on the other hand, disputes this and argues the evidence is inconclusive as to whether Ms. Rogers activated her left turn signal. (Id.) Mr. Allison did not see Mr. Rogers begin her turn, as he turned his eyes 2 Case 2:20-cv-02758-MSN-tmp Document 61 Filed 01/31/22 Page 3 of 16 PageID 446 away from his forward view when he was coming through the intersection at Shelby Drive and Boeingshire. (ECF No. 56-1 at PageID 418.) According to Defendants, at the time Ms. Rogers began her left turn, the Old Dominion tractor trailer driven by Mr. Allison was close enough to the entrance of the gas station driveway to constitute an “immediate hazard” to Ms. Rogers. (ECF No. 55-1 at PageID 320; ECF No. 50-3 at PageID 228.) As of the date of the accident, Mr. Allison had more than 40 years of experience as a commercial truck driver, with more than 30 of those years as an employee of Old Dominion. (ECF No. 55-1 at PageID 318.) Mr. Allison had a valid commercial driver’s license from the state of Mississippi on the date of the accident, and there were no mechanical problems with the Old Dominion tractor trailer. (Id. at PageID 319.) Old Dominion holds monthly safety meetings that Mr. Allison attends. (Id. at PageID 319.) There are no allegations or evidence that Mr. Allison was under the influence of drugs or alcohol at the time of the accident. (Id. at PageID 320.) Plaintiff alleges that Ms. Rogers died, and her four children suffered severe personal injuries, because of the collision. (ECF No. 26 at PageID 97.) In support of their Motion, Defendants have submitted a video from a dash camera on the Old Dominion tractor trailer driven by Mr. Allison. (ECF No. 55-1 at PageID 320.) JURISDICTION & CHOICE OF LAW The Court has diversity jurisdiction under 28 U.S.C. § 1332. Federal district courts have original jurisdiction of all civil actions between citizens of different states “where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs.” 28 U.S.C. § 1332(a)(1). Plaintiff is Administrator Ad Litem for the Estate of Janeisha Rogers, who was a citizen of Tennessee. (See ECF No. 58 at PageID 423.) Plaintiff is also the next friend and guardian of 3 Case 2:20-cv-02758-MSN-tmp Document 61 Filed 01/31/22 Page 4 of 16 PageID 447 A.S., A.S., A.R., and A.R., four minor children, all of whom are citizens of Tennessee. (See id.) Defendant George Allison is a citizen of Mississippi (see ECF No. 26 at PageID 96), and Defendant Old Dominion Freight Lines, Inc. is a citizen of Virginia (see ECF No. 26 at PageID 97) and North Carolina (see ECF No. 58 at PageID 424). The parties are completely diverse. State substantive law applies to state law claims brought in federal court. See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). Where there is no dispute that a certain state’s substantive law applies, the Court will not conduct a choice-of-law analysis sua sponte. See GBJ Corp. v. E. Ohio Paving Co., 139 F.3d 1080, 1085 (6th Cir. 1998). The parties assumed in their motion, response, reply, and in their respective memoranda, that Tennessee substantive law applies to Plaintiff’s claims and have made their arguments accordingly. Thus, the Court will apply Tennessee substantive law. In applying Tennessee substantive law, this Court is “bound by controlling decisions” of the Tennessee Supreme Court, “and in the absence of a decision addressing the issue, must predict how that court would rule by looking to ‘all available data.’” Fox v. Amazon.com, Inc., 930 F.3d 415, 422 (6th Cir. 2019) (quoting Berrington v. Wal-Mart Stores, Inc., 696 F.3d 604, 607 (6th Cir. 2012 . STANDARD OF REVIEW Federal Rule of Civil Procedure 56 permits a party to move for summary judgment — and the Court to grant summary judgment — “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party asserting the presence or absence of genuine issues of material facts must support its position either by “citing to particular parts of materials in the record,” including depositions, documents, affidavits or declarations, stipulations, or other materials, or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse 4 Case 2:20-cv-02758-MSN-tmp Document 61 Filed 01/31/22 Page 5 of 16 PageID 448 party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., , 587 (1986); Nat’l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence, judge the credibility of witnesses, or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., , 249 (1986). The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, , 323 (1986). The moving party may discharge this burden either by producing evidence that demonstrates the absence of a genuine issue of material fact or simply “by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325. Where the movant has satisfied this burden, the nonmoving party cannot “rest upon its . . . pleadings, but rather must set forth specific facts showing that there is a genuine issue for trial.” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009) (citing Matsushita, 475 U.S. at 586; Fed. R. Civ. P. 56). The nonmoving party must present sufficient probative evidence supporting its claim that disputes over material facts remain and must be resolved by a judge or jury at trial. Anderson, 477 U.S. at 248–49 (citing First Nat’l Bank of Ariz. v. Cities Serv. Co., (1968 ; see also White v. Wyndham Vacation Ownership, Inc., 617 F.3d 472, 475–76 (6th Cir. 2010). A mere scintilla of evidence is not enough; there must be evidence from which a jury could reasonably find in favor of the nonmoving party. Anderson, 477 U.S. at 252; Moldowan, 578 F.3d at 374. The Court’s role is limited to determining whether there is a genuine dispute about a material fact, that is, if the evidence in the case “is such that a reasonable jury could return a verdict 5 Case 2:20-cv-02758-MSN-tmp Document 61 Filed 01/31/22 Page 6 of 16 PageID 449 for the nonmoving party.” Anderson, 477 U.S. at 248. Such a determination requires that the Court “view the evidence presented through the prism of the substantive evidentiary burden” applicable to the case. Id. at 254. Thus, if the plaintiff must ultimately prove its case at trial by a preponderance of the evidence, on a motion for summary judgment the Court must determine whether a jury could reasonably find that the plaintiff’s factual contentions are true by a preponderance of the evidence. See id. at 252–53. Finally, if the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the movant is entitled to summary judgment. Celotex, 477 U.S. at 323. The Court must construe Rule 56 with due regard not only for the rights of those “asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury,” but also for the rights of those “opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.” Id. at 327. DISCUSSION Defendants’ Motion argues they are entitled to summary judgment on several alternative grounds. First, Defendants argue they are entitled to summary judgment on all Plaintiff’s claims because no reasonable jury could conclude an act or omission on the part of either Defendant was an actual or proximate cause of the collision. (ECF No. 50 at PageID 199; ECF No. 50-1 at PageID 205–09.) Alternatively, Defendants argue they are entitled to summary judgment on Plaintiff’s wrongful death claim because no reasonable jury could find Ms. Rogers was less than 50 percent at fault for the collision that resulted in her death. (ECF No. 50 at PageID 199; ECF No. 50-1 at PageID 209–10.) Next, Defendants argue Plaintiff’s direct, non-vicarious negligence claims against Old Dominion should be dismissed under the preemption rule, or if the Court does not 6 Case 2:20-cv-02758-MSN-tmp Document 61 Filed 01/31/22 Page 7 of 16 PageID 450 apply the preemption rule, then because there are no allegations or proof that Old Dominion knew or should have known Mr. Allison was an unfit employee likely to cause harm to others. (ECF No. 50 at PageID 199; ECF No. 50-1 at PageID 210–18.) Finally, Defendants argue they are entitled to summary judgment as to Plaintiff’s punitive damages claim because there is no evidence of egregious or reckless conduct by Mr. Allison or Old Dominion. (ECF No. 50 at PageID 199; ECF No. 50-1 at PageID 218–21.) The Court addresses each of these arguments in turn. A. Negligence Claims—Actual or Proximate Cause of the Collision Under Tennessee law, a plaintiff must establish the following elements for a claim of negligence: (1) a duty of care owed by the defendant to plaintiff; (2) conduct by the defendant falling below the standard of care amounting to a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate or legal cause. King v. Anderson Cty., 419 S.W.3d 232, 246 (Tenn. 2013) (citing Giggers v. Memphis Hous. Authority, 277 S.W.3d 359, 364 (Tenn. 2009 . Causation in fact and proximate cause are distinct elements of a negligence claim and a plaintiff must prove both by a preponderance of the evidence. Kilpatrick v. Bryant, 868 S.W.2d 594, 598 (Tenn. 1993). “Causation, or cause in fact, means that the injury or harm would not have occurred ‘but for’ the defendants’ negligent conduct.” Kilpatrick, 868 S.W.2d at 598. Once causation in fact is established, proximate cause asks whether the law should “extend responsibility” for negligent conduct “to the consequences that have occurred.” King v. Anderson Cnty., 419 S.W.3d 232, 246 (Tenn. 2013) (quoting Kilpatrick, 868 S.W.2d at 598). The Tennessee Supreme Court has set forth a three-pronged test to be used to determine proximate cause: (1) the tortfeasor’s conduct must have been a “substantial factor” in bringing about the harm being complained of; and (2) there is no rule or policy that should relieve the wrongdoer from liability because of the manner in which the negligence has resulted in the harm; and (3) the harm giving rise to the action 7 Case 2:20-cv-02758-MSN-tmp Document 61 Filed 01/31/22 Page 8 of 16 PageID 451 could have reasonably been foreseen or anticipated by a person of ordinary intelligence and prudence. McClenahan v. Cooley, 806 S.W.2d 767, 775 (Tenn. 1991). Cause in fact and proximate cause are “ordinarily jury questions, unless the uncontroverted facts and inferences to be drawn from them make it so clear that all reasonable persons must agree on the proper outcome.” Haynes v. Hamilton County, 883 S.W.2d 606, 612 (Tenn. 1994) (citing McClenahan, 806 S.W.2d at 775 (Tenn. 1991 . Defendants and Plaintiff both point to Tenn. Code Ann. § 55-8-129, which provides as follows: (a) The driver of a vehicle within an intersection intending to turn to the left shall yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard, but the driver, having so yielded and having given a signal when and as required by this chapter, may make the left turn, and the drivers of all other vehicles approaching the intersection from the opposite direction shall yield the right-of- way to the vehicle making the left turn. (b) As used in this section, “drive” and “intersection” have the same meanings as defined in § 55-8-128. Defendants argue that the Old Dominion tractor trailer driver by Mr. Allison constituted an “immediate hazard,” and Ms. Rogers’ failure to yield the right-of-way to Mr. Allison was the actual and proximate cause of the collision in this matter. They submit that the “video of the accident speaks for itself and supports entry of summary judgment in favor of Defendants.” (ECF No. 50-1 at PageID 206.) The video submitted by Defendants is indeed compelling evidence in this matter. However, the Court cannot find that there is no dispute of material fact as to whether Ms. Rogers’ or Mr. Allison’s actions were a “substantial factor” in causing the collision here. Specifically, there is dispute as to whether Mr. Allison’s speed in the moments before the crash, or his diverting his attention away from his forward view, were substantial factors causing the collision. The Court 8 Case 2:20-cv-02758-MSN-tmp Document 61 Filed 01/31/22 Page 9 of 16 PageID 452 thus cannot find there is no dispute of material fact on the issue of proximate cause—such a finding would require this Court to impermissibly weigh the evidence. To the extent Defendants’ Motion seeks summary judgment on all Plaintiff’s claims based on there being no genuine dispute of fact as to actual or proximate cause, the Motion is DENIED. B. Wrongful Death Claim—Comparative Fault Alternatively, Defendants argue that they are entitled to summary judgment as to the wrongful death claim for Ms. Rogers based on the affirmative defense of comparative negligence because reasonable minds could not differ in finding Ms. Rogers at least 50 percent at fault for the accident that caused her death. (See ECF No. 50-1 at PageID 209.) Tennessee has “adopted a system of modified comparative fault whereby a plaintiff who is less than fifty percent (50%) at fault may recover damages in an amount reduced by the percentage of fault assigned to the plaintiff.” Ali v. Fisher, 145 S.W.3d 557, 561 (Tenn. 2004) (citing McIntyre v. Balentine, 833 S.W.2d 52, 57 (Tenn. 1992 . “[I]n a vast majority of cases, the comparison and allocation of fault is a question of fact to be decided by the finder-of-fact . . . .” Henley v. Amacher, 2002 WL 1000402, *6 (Tenn. Ct. App. Jan. 28, 2002) (citing Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785, 789 (Tenn. 2000 . “The task of comparing and allocating fault may be taken from the jury only when it can be determined beyond question (or alternatively, when reasonable minds cannot differ) that the plaintiff’s fault is equal to or greater than the defendant’s.” Id. (citations omitted). Allocation of fault in this matter would require this Court to resolve factual disputes, for example, whether Ms. Rogers activated her left turn signal, and to impermissibly weigh the evidence. Thus, to the extent Defendants’ Motion seeks summary judgment on the wrongful death claim for Ms. Rogers based on the doctrine of comparative fault, it is DENIED. 9 Case 2:20-cv-02758-MSN-tmp Document 61 Filed 01/31/22 Page 10 of 16 PageID 453 C. Direct Negligence Claims Against Old Dominion Next, Defendants argue the direct negligence claims against Old Dominion should be dismissed either under the preemption rule because Old Dominion has admitted vicarious liability under Plaintiff’s respondeat superior theory, or alternatively, because Plaintiff has not presented evidence of any negligent hiring, training, or supervision by Old Dominion. (See ECF No. 50-1 at PageID 210–18.) Turning to Defendants’ first argument, there is no controlling decision from the Tennessee Supreme Court addressing the preemption rule, and this Court must therefore look at all available data and attempt to predict how that court might rule. Two federal district courts in Tennessee have previously addressed this issue, and both concluded that the Tennessee Supreme Court would adopt the majority view and apply the preemption rule where an employer has admitted respondeat superior liability. See Ryans v. Koch Foods, LLC, No. 1:13-cv-234-SKL, 2015 WL 12942221, at *8–9 (E.D. Tenn. July 8, 2015); Freeman v. Paddack Heavy Transp., Inc., No. 3:20-cv-00505, 2020 WL 7399026, at *1–3 (M.D. Tenn. Dec. 16, 2020). As discussed in Ryans and Freeman, the majority view applies the “preemption rule” to prevent a plaintiff from pursuing direct negligence claims against an employer when the employer has admitted vicarious liability under respondeat superior. Ryans, 2015 WL 12942221, at *8; Freeman, 2020 WL 7399026, at *1. The rationale behind the rule is that when vicarious liability is admitted, allowing the plaintiff to pursue direct negligence claims against the employer does not enlarge the plaintiff’s potential recovery and requires the introduction of proof that may be unduly prejudicial to the defendant. Ryans, 2015 WL 12942221, at *8; Freeman, 2020 WL 7399026, at *1. 10 Case 2:20-cv-02758-MSN-tmp Document 61 Filed 01/31/22 Page 11 of 16 PageID 454 In predicting whether the Tennessee Supreme Court would adopt the preemption rule, the courts in Ryans and Freeman found helpful the Tennessee Supreme Court case, Ali v. Fisher, 145 S.W.3d 557 (Tenn. 2004). In Ali, the Tennessee Supreme Court noted that it had “only rarely departed from the allocation of fault required under the system of comparative fault,” but that one exception would be “where vicarious liability is based on an agency relationship between a principal and the principal’s negligent agent, such as . . . respondeat superior.” 145 S.W.3d at 564. Both Ryans and Freeman found that the Tennessee Supreme Court’s recognition of this exception indicated the court would likely adopt the preemption rule. Ryans, 2015 WL 12942221, at *9; Freeman, 2020 WL 7399026, at *3. Freeman further notes that multiple states with comparative fault systems have also adopted the preemption rule, including California, Missouri, Georgia, Illinois, Texas, and Wyoming. Freeman, 2020 WL 7399026, at *3. This Court finds the analysis set forth in Ryans and Freeman persuasive and similarly concludes that, based on available data, it is likely the Tennessee Supreme Court would adopt the preemption rule. Of course, a prerequisite for application of the preemption rule is that the employer has admitted vicarious liability for the actions of its employee—something that Plaintiff appears to dispute in this matter. (See ECF No. 55-2 at PageID 330.) This Court, however, disagrees with Plaintiff’s interpretation; Defendants admitted in their Answer that Mr. Allison was driving in the course and scope of his employment with Old Dominion and was driving one of Old Dominion’s vehicles at the time of the accident; Defendants have also admitted the agency relationship between Mr. Allison and Old Dominion. (See ECF No. 9 at PageID 19, 23.) Defendants’ admissions on these issues were also restated in their Memorandum in support of their Motion and in their Reply. (See ECF No. 50-1 at PageID 214; ECF No. 56 at PageID 412–13.) 11 Case 2:20-cv-02758-MSN-tmp Document 61 Filed 01/31/22 Page 12 of 16 PageID 455 This Court accepts Old Dominion’s admission of vicarious liability and will enforce this admission as appropriate or necessary. One final issue this Court must address before applying the preemption rule in this matter is Plaintiff’s claim for punitive damages against Mr. Allison, with Old Dominion being vicariously liable for those punitive damages. (See ECF No. 58 at PageID 425–26.) As the court in Freeman noted, several jurisdictions that have adopted the preemption rule provide an exception where the plaintiff is seeking punitive damages from the employer. See Freeman, 2020 WL 7399026, at *2 (collecting cases). However, as explained in Section D below, this Court finds that Defendants are entitled to summary judgment on Plaintiff’s punitive damages claims; as a result, this Court need not predict whether the Tennessee Supreme Court would also adopt the punitive damages exception to the preemption rule. Thus, because Old Dominion has admitted vicarious liability for any negligence attributed to Mr. Allison, summary judgment on Plaintiff’s direct negligence claims is appropriate based on the preemption rule.2 Defendants’ Motion is GRANTED as to Plaintiff’s direct negligence claims, and those claims are DISMISSED. D. Punitive Damages Claims Punitive damages in Tennessee are governed by statute, which provides that in civil actions seeking punitive damages, those damages may be awarded only “if the claimant proves by clear and convincing evidence that the defendant against whom punitive damages are sought acted maliciously, intentionally, fraudulently or recklessly . . . .” Tenn. Code. Ann. § 29-39-104(a)(1). As relevant to Old Dominion, punitive damages based on vicarious liability must be supported by 2 Because this Court is granting Defendants’ Motion on Plaintiff’s direct negligence claims under the application of the preemption rule, the Court need not address Defendants’ alternative argument that Plaintiff has not presented evidence of any negligent hiring, training, or supervision by Old Dominion. 12 Case 2:20-cv-02758-MSN-tmp Document 61 Filed 01/31/22 Page 13 of 16 PageID 456 clear and convincing evidence that the “defendant was reckless in hiring, retaining, supervising or training the agent or employee and that recklessness was the proximate cause of the act or omission that caused the loss or injury . . . .” Id. § 29-39-104(g)(1)(B). The culpability of a defendant who is alleged to be vicariously liable must be determined separately from the agent, employee, or representative. Id. § 29-39-104(a)(9). Defendants argue that Plaintiff has failed to present sufficient probative evidence to support his claim for punitive damages against either Mr. Allison or Old Dominion, and this Court agrees. First, as to Mr. Allison, Plaintiff argues that he acted recklessly by speeding and failing to keep a proper lookout. (See ECF No. 55-2 at PageID 331.) “A person acts recklessly when the person is aware of, but consciously disregards, a substantial and unjustifiable risk of such nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances.” Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn. 1992) (emphasis added). In the context of vehicle accidents, Tennessee case law provides only a few examples of conduct supporting an award of punitive damages. For example, in Sakamoto v. N.A.B. Trucking Co., punitive damages were approved against a truck driver and his employer when the driver, who was a habitual user of amphetamines and had been without sleep for more than 40 hours, attempted to turn his truck around on an interstate highway. The truck driver was attempting to travel in the wrong direction to an interchange he had passed just before his truck broke down, and while the truck driver was making his turn, the plaintiff ran into the driver’s truck. 717 F.2d 1000 (6th Cir. 1983). In Honaker v. Leonard, a punitive damages award was upheld against a defendant who was drag racing on the highway. 325 F. Supp. 212, 214 (E.D. Tenn. 1971). Punitive damages may also be warranted in cases involving an intoxicated driver. See Perry v. Dewey, Appeal No. 02A01-9406-cv-00142, 1995 WL 422660, *3 (Tenn. Ct. App. July 13 Case 2:20-cv-02758-MSN-tmp Document 61 Filed 01/31/22 Page 14 of 16 PageID 457 18, 1995) (accident caused by a drunk driver). However, acts of simple negligence will not support and award of punitive damages. See Leap v. Malone, No. 95-6470, 1996 WL 742306, *1–2 (6th Cir. Dec. 23, 1996) (truck driver was clearly negligent in making sudden left turn in front of an oncoming car but had not engaged in the type of “egregious” conduct for which a jury may consider awarding punitive damages). Looking at the specific conduct here, Mr. Allison was travelling at six miles per hour over the posted speed limit of 40 miles per hour on a 3-lane, non-residential roadway. Mr. Allison also turned his eyes away from his forward view and “glanced right” “watching for traffic that could possibly come out while coming up the road through the intersection.” (ECF No. 55-6 at PageID 399.) The Court finds these acts insufficient as a matter of law to support an award of punitive damages as they are not egregious conduct and do not represent a “gross deviation” from the standard of care. This is consistent with case law from other jurisdictions finding such actions may constitute ordinary negligence but do not warrant punitive damages. See Hay v. Shirey, Case No. 1:19 CV 2645, 2021 WL 2355582, at *2 (N.D. Ohio June 8, 2021) (“unspecified speeding, traveling within 10-12 feet of a vehicle, and an ‘appearance of frustration’ are insufficient as a matter of law to warrant imposition of punitive damages”); Bizzel v. Transp. Corp. of America, Inc., 2017 WL 3381358, at *4 (E.D. Ark. Aug. 4, 2017) (evidence that defendant was travelling three miles per hour over posted speed limit and using “low beams” at night was not sufficiently reckless to justify award of punitive damages); McCullough v. Peeples, No. 14-123, 2015 WL 1000223, at *7 (W.D. Pa. Mar. 5, 2015) (dismissing claims for punitive damages against both the truck driver and employer because the plaintiff’s allegations of excessive speed, lack of control, and careless operation given weather conditions sounded in negligence); Ballard v. Keen Transport, Inc., No. 4:10-cv-54, 2011 WL 203378, at *4 (S.D. Ga. Jan. 19, 2011) (punitive 14 Case 2:20-cv-02758-MSN-tmp Document 61 Filed 01/31/22 Page 15 of 16 PageID 458 damages not warranted where defendant was travelling 11 mph above speed limit, following too closely, and failed to keep a proper lookout); Pancrazio v. Greyhound Lines, Inc., 2008 WL 11509793, at *3 (D.N.J. Apr. 25, 2008) (evidence defendant was speeding on a wet road does not support an award of punitive damages); Kinney v. Butcher, 131 S.W.3d 357, 359 (Ky. App. 2004) (speeding 10 mph over posted speed limit and failing to complete pass before entering a no-passing zone constituted ordinary negligence); see also Ranburger v. Southern Pacific Transp. Co., 157 Ariz. 551, 554 (Ariz. 1988) (“exceeding the speed limit is insufficient by itself to support punitive damages”). Thus, Defendants’ Motion is GRANTED as to Plaintiff’s punitive damages claim against Mr. Allison. As for Old Dominion, Plaintiff argues that it was “aware of [Mr.] Allison’s unfitness for the job, but kept clearing him to drive after every mistake . . . .” (ECF No. 55-2 at PageID 331.) Plaintiff does not provide any citations to the record in support his argument, nor are there any facts in Defendants’ or Plaintiff’s submitted statements of undisputed material fact regarding Mr. Allison’s driving record or alleged history of “mistakes.” Plaintiff included with his response a copy of documents produced by Defendants, including a memo on Old Dominion letterhead to Mr. Allison from Old Dominion’s Vice President of Safety listing Mr. Allison’s accident history. (See ECF No. 55-5 at PageID 383.) This memo lists 11 accidents (not including the one at issue in this matter) over the course of Mr. Allison’s 30-year history with Old Dominion. (Id.) Documents included after this memo appear to be specific reports for some of the accidents listed in the memo. (See id. at PageID 384–96.) Plaintiff has not pointed to anything specific in these documents supporting that Old Dominion was reckless in hiring, retaining, supervising, or training Mr. Allison. In fact, what this Court can glean from these records is that at least two of these incidents were not accidents involving collisions with other vehicles, but instead involved debris from other 15 Case 2:20-cv-02758-MSN-tmp Document 61 Filed 01/31/22 Page 16 of 16 PageID 459 vehicles causing damage to Mr. Allison’s truck (see ECF No. 55-5 at PageID 384, “HIT CHAIR THAT FELL OFF #2”; see id. at PageID 387, “AD#2 hit a manhole and a wrench from the bed of the truck flew out and stuck in . . . the bumper of #1 and #2 did not stop”), one has a notation as a “mechanical failure/defect” (see id. at PageID 396), and three reflect a notation of “hit by vehicle changing lanes” (see id.). Further, it appears only one of the reports reflects an accident resulting in an injury (see id. at PageID 395 listing “back pain”), and there is only a single listing of a speeding violation from 1994 (see id. at PageID 396). In sum, Plaintiff has not set forth specific facts supported by evidence from which a reasonable jury could find that Old Dominion was reckless in hiring, retaining, supervising, or training Mr. Allison. Defendants’ Motion is therefore GRANTED as to Plaintiff’s punitive damages claim against Old Dominion. CONCLUSION For the reasons set forth above, Defendants’ Motion for Summary Judgment is DENIED as to all negligence claims based on a dispute as to actual or proximate cause; DENIED as to Plaintiff’s wrongful death claim based on allocation of comparative fault; GRANTED as to Plaintiff’s direct negligence claims against Old Dominion; and GRANTED as to Plaintiff’s punitive damages claims against Mr. Allison and Old Dominion. Plaintiff’s direct negligence claims against Old Dominion and punitive damages claims against Mr. Allison and Old Dominion are DISMISSED. IT IS SO ORDERED, this 31st day of January 2022. s/ Mark S. Norris MARK S. NORRIS UNITED STATES DISTRICT JUDGE 16
=== 21-2693 ===
Case 2:21-cv-02693-MSN-cgc Document 16 Filed 03/13/23 Page 1 of 14 PageID 63 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ______________________________________________________________________________ TOMMY BADY, Plaintiff, v. JURY DEMAND Case No. 2:21-cv-2693-MSN-cgc ILLINOIS CENTRAL RAILROAD COMPANY, Defendant. ______________________________________________________________________________ ORDER GRANTING DEFENDANT’S MOTION TO DISMISS ______________________________________________________________________________ Before the Court is Defendant’s Motion to Dismiss, filed November 23, 2021. (ECF No. 8.) Plaintiff filed a timely Response to Defendant’s Motion on December 20, 2021. (ECF No. 12.) Defendant filed a Reply to Plaintiff’s Response on January 3, 2022. (ECF No. 15.) For the reasons set forth below, Defendant’s Motion to Dismiss is GRANTED. BACKGROUND Plaintiff, an African-American male, brought this seven-count action against Defendant arising out of Defendant’s response to the alleged conduct of two of Plaintiff’s coworkers: Tommy Langston and Tracy Owens, both of whom are white males. (ECF No. 1.)1 On June 18, 2018, Defendant hired Plaintiff as a machinist apprentice. (Id. at PageID 2.) According to the Complaint, in September of 2020, Langston and Owens “touched and drew a 1 Plaintiff asserts in the Complaint that he filed a charge of discrimination with the Equal Employment Opportunity Commission and received a Notice of Right to Sue around August 5, 2021. (ECF No. 1 at PageID 2.) Case 2:21-cv-02693-MSN-cgc Document 16 Filed 03/13/23 Page 2 of 14 PageID 64 chalk line down Plaintiff’s buttock” as he was “bent over with his upper torso inside an engine compartment.” (Id. at PageID 2–3.) Plaintiff further alleges that Langston and Owens then posted a photo of the chalk line on Owens’s Facebook page with a caption saying “Never take it easy on your apprentices! Especially if you have a piece of chalk handy!!” (Id. at PageID 3.) Another machinist reported this incident to Defendant, and management “questioned” Owens and Langston about it. (Id.) Plaintiff claims that “[r]ather than correct the behavior,” Defendant gave one of the employees (he does not specify which one) a 15-day record suspension for using a cell phone on company property. (Id.) A little under two weeks after the chalk incident occurred, while Plaintiff and other employees were in the locker room, Owens allegedly said to Plaintiff “Hey, big red, I have two pieces of chalk in my toolbox if you want to sit on them.” (Id.) Following this event, Plaintiff says he went to Defendant’s Mechanical Supervisor Frank Perry and reported both the chalk incident and the locker room incident. (Id.) He also told Perry that “this had been going on since he was hired and he could not deal with Owen’s [sic] and Langston’s unwanted and inappropriate touching and inappropriate comments.” (Id.) Plaintiff contends that Defendant took no further action. (Id.) On October 5, 2020, Plaintiff requested medical leave “due to anxiety and stress” arising out of his work situation and has not returned to work since. (Id.) STANDARD OF REVIEW In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court will “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). Using this framework, the court determines whether the complaint alleges “sufficient factual matter, 2 Case 2:21-cv-02693-MSN-cgc Document 16 Filed 03/13/23 Page 3 of 14 PageID 65 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, , 678 (2009) (citing Bell Atl. Corp. v. Twombly, , 570 (2007 . A claim is plausible on its face if “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). A complaint need not contain detailed factual allegations; however, a plaintiff's “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). In other words, the “[f]actual allegations must be enough to raise a right to relief above [a] speculative level.” Ass'n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007) (quoting Twombly, 550 U.S. at 555). If a court decides in light of its judicial experience and common sense, that the claim is not plausible, the case may be dismissed at the pleading stage. Iqbal, 556 U.S. at 679. “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679; Twombly, 550 U.S. at 556. DISCUSSION Defendant moved to dismiss Plaintiff’s claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Counts I, II, and III) and the Tennessee Human Rights Act (“THRA”) (Counts IV, V, and VI), as well as Plaintiff’s claim for Intentional Infliction of Emotional Distress (“IIED”) (Count VII2). In his response, Plaintiff conceded that his claims under the THRA and his IIED claim should be dismissed. (ECF No. 12 at PageID 45, 47.) Consequently, the Court only considers Plaintiff’s claims under Title VII (Counts I, II, and III). 2 The Complaint lists two of the counts—one for retaliation in violation of the Tennessee Human Rights Act and one for intentional infliction of emotional distress—as “Count VI.” (ECF No. 1 at PageID 7.) For clarity, the Court refers to the IIED claim as Count VII. 3 Case 2:21-cv-02693-MSN-cgc Document 16 Filed 03/13/23 Page 4 of 14 PageID 66 For Title VII claims, a plaintiff is not required to establish a prima facie case to survive a motion to dismiss for failure to state a claim. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (“Given that the prima facie case operates as a flexible evidentiary standard, it should not be transposed into a rigid pleading standard for discrimination cases.”). However, while establishing a prima facie Title VII case is not required at this stage, the Sixth Circuit has made clear that Swierkiewicz and Twombly are consistent with each other such that a plaintiff must still satisfy the “plausibility” standard. See Keys v. Humana, Inc., 684 F.3d 605, 609 (6th Cir. 2012) (quoting Twombly, 550 U.S. at 570) (“Twombly distinguished Swierkiewicz, explaining that the prior case ‘did not change the law of pleading,’ but simply reemphasized that application of the McDonnell Douglas prima facie case at the pleading stage ‘was contrary to the Federal Rules’ structure of liberal pleading requirements.’”); Smith v. Wrigley Mfg. Co., LLC, 749 Fed. App'x 446, 448–49 (6th Cir. 2018) (“Swierkiewicz . . . ‘did not change the law of pleading’. . . [a]s such, it offers no gateway for a plaintiff to side-step the ‘plausibility’ standard laid out in Twombly and Iqbal.”). I. Hostile Work Environment Claims (Counts I and II)3 Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to discriminate against someone because of their race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). This prohibition also forbids “requiring people to work in a discriminatorily hostile or abusive environment.” Bar v. Kalitta Charters II, LLC, No. 21-1739, 3 The Complaint generally describes Counts I and II as “Discrimination in Violation of Title VII.” (ECF No. 1 at PageID 4.) More specifically, these claims appear to be hostile work environment claims based on Plaintiff’s sex (Count I) and race (Count II). Plaintiff’s treatment of these Counts in his response brief similarly indicates that the Court should construe them as hostile work environment claims and apply that analysis. (See, e.g., ECF No. 12 (applying hostile work environment analysis to his “discrimination” claims in Section IV. 4 Case 2:21-cv-02693-MSN-cgc Document 16 Filed 03/13/23 Page 5 of 14 PageID 67 2022 WL 3042844, at *3 (6th Cir. Aug. 2, 2022) (quoting Harris v. Forklift Sys., Inc., 520 U.S. 17, 21 (1993 . To state a claim for hostile work environment under Title VII, the plaintiff must make direct or inferential allegations that: (1) [he] belonged to a protected group, (2) [he] was subject to unwelcome harassment, (3) the harassment was based on [race or sex], (4) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment, and (5) the defendant knew or should have known about the harassment and failed to act. Waldo v. Consumers Energy Co., 726 F.3d 802, 813–14 (6th Cir. 2013) (quoting Williams v. CSX Transp. Co., 643 F.3d 502, 511 (6th Cir. 2011 . A hostile work environment exists when a “workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Smith v. Rock-Tenn Servs., Inc., 813 F.3d 298, 309 (6th Cir. 2016) (quoting Harris, 510 U.S. at 21). As noted, however, while a plaintiff must still meet the “plausibility standard” at this stage, he is not required to establish all of these elements at the pleading stage. Plaintiff has alleged both sex (Count I) and race (Count II) discrimination under Title VII. (ECF No. 1 at PageID 4–5.) Defendant argues that both claims should be dismissed because Plaintiff “fails to allege any facts that would support a gender or race harassment claim under . . . Title VII.” (ECF No. 8-1 at PageID 28.) From Defendant’s view, not only has Plaintiff failed to allege that the two employees’ actions were motivated by Plaintiff’s sex or race, but the conduct alleged also does not rise to the level of offensiveness necessary to support Plaintiff’s claims. (Id. at PageID 29.) From Plaintiff’s standpoint, “behavior that included touching of his buttocks and posting of pictures on the internet showing the inappropriate touching” is offensive enough to create an actionable claim for race and sex discrimination that 5 Case 2:21-cv-02693-MSN-cgc Document 16 Filed 03/13/23 Page 6 of 14 PageID 68 created a hostile work environment. (Id.) Concerning Defendant’s motivations, Plaintiff responds that Defendant would have responded more forcefully were he a female employee. (Id. at PageID 49.) Here, Plaintiff’s discrimination claims must fail because he has not plausibly pled that Defendant is liable for a hostile work environment based on race or sex. 1. Severity and Pervasiveness of the Alleged Harassment First, Plaintiff has not alleged facts supporting a plausible claim that his alleged harassment was sufficiently severe or pervasive to constitute a hostile work environment under Title VII. Whether conduct was sufficiently severe and pervasive is based on the totality of the circumstances. Randolph v. Ohio Dep’t of Youth Servs., 453 F.3d 724, 733 (6th Cir. 2006) (citing Black v. Zaring Homes, Inc., 104 F.3d 822, 826 (6th Cir. 1997 . Some factors courts consider in determining whether a hostile work environment exists include “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Grace v. USCAR, 521 F.3d 655, 678 (6th Cir. 2008) (quoting Harris, 510 U.S. at 23). “[M]erely offensive” conduct is not sufficient to support a hostile work environment claim. Harris, 510 U.S. at 21. “Simple teasing, [] offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment. Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998) (citing Harris, 510 U.S. at 23). This analysis should “include[] all incidents of alleged harassment . . . .” Gen. Motors Corp., 187 F.3d at 563. Drawing a chalk line down Plaintiff’s buttock without his knowledge or consent, posting a photo about it, and making a comment likely to offend Plaintiff is not conduct suitable for the 6 Case 2:21-cv-02693-MSN-cgc Document 16 Filed 03/13/23 Page 7 of 14 PageID 69 workplace. But neither is it indicative of an environment so “permeated with discriminatory intimidation, ridicule, and insult” as to be considered abusive. Rather, these facts demonstrate a situation more akin to the “[s]imple teasing, [] offhand comments, and isolated incidents (unless extremely serious) [that] will not amount to discriminatory changes in the terms and conditions of employment. Faragher, 524 U.S. at 787 (1998) (citing Harris, 510 U.S. at 23). First, the alleged conduct was infrequent. While the Complaint suggests harassment was ongoing,4 it only provides descriptions of two incidents—the chalk incident (including the accompanying post on Facebook) and the locker room incident. (See ECF No. 1.) That Plaintiff suffered two (or three to include the Facebook post) relatively minor incidents over more than two years of employment with Defendant is not the kind of frequency Title VII has in mind.5 Courts have declined to find a hostile work environment when conduct was not even a weekly event. See, e.g., Kelly v. Senior Ctrs., Inc., 169 F. App’x 423 (6th Cir. 2006) (finding that two uses of the “n” word, three racist “jokes,” and other comments about African-Americans did not create an actionable hostile work environment claim partly because “such conduct . . . was not a daily or even a weekly event”). Second, the conduct—while no doubt unwelcome and offensive to Plaintiff—was not severe or physically threatening. The chalk incident, though it involved physical contact, went unnoticed even by Plaintiff for a time, and Plaintiff was unaware of the Facebook post until it 4 See ECF No. 1 at PageID 2 (“From the onset of his employment, Plaintiff was subjected to harassment and unwanted, sexually inappropriate touching by [Defendant’s] employees . . . .”) and PageID 3 (alleging that Plaintiff told his supervisor that “this had been going on since he was hired”). 5 As noted, the Complaint could be read to suggest that other conduct by Owens and Langston occurred during Plaintiff’s employment with Defendant, but it provides no facts to corroborate that insinuation. 7 Case 2:21-cv-02693-MSN-cgc Document 16 Filed 03/13/23 Page 8 of 14 PageID 70 was brought to his attention by another employee. (ECF No. 1 at PageID 3.) These facts belie any contention that the conduct, albeit unwise and inappropriate, was intended to threaten Plaintiff. The locker room incident did not involve inappropriate touching, but rather an inappropriate comment. Other “courts have found that ‘[o]ne or two comments . . . do not result in a work environment that is so intolerable that it would force any reasonable employee to resign.’” Ragland v. F&M Koz, Inc., No. 2:21-cv-02530-TLP-cgc, 2022 U.S. Dist. LEXIS 56653, at *13 (W.D. Tenn. Mar. 29, 2022) (quoting Kaminski v. Hillman Grp., Inc., No 1:19-cv- 1010, 2021 U.S. Dist. LEXIS 31946, at *3 (S.D. Ohio Feb. 22, 2021 . In short, even “conduct that is deplorable, off-color, or offensive to our most basic value of according respect and dignity to every person, is not always legally actionable as a ‘hostile environment,’” Kelly, 169 F. App’x at 429, and what Plaintiff has alleged falls short of that. This principle that conduct must be extreme to be actionable has led courts to reject claims of hostile work environments at the motion to dismiss stage that alleged more offensive or frequent conduct than what Plaintiff alleges here. See, e.g., Middleton v. United Church of Christ Bd., No. 20-4141, 2021 WL 5447040, at *5 (6th Cir. Nov. 22, 2021) (finding that the district court applied the correct Rule 12(b)(6) standard in finding plaintiff’s allegations, which included two offensive comments based on the plaintiff’s race, did not rise to the level of pervasiveness or severity necessary to survive a motion to dismiss). Third, Plaintiff has not provided evidence to support a reasonable inference that these alleged actions of his coworkers affected his ability to perform his job. Plaintiff alleges that he requested a medical leave of absence “due to anxiety and stress due to his work situation.” (ECF No. 1 at PageID 3). But even if this allegation was meant to indicate that he requested the leave because the alleged harassment caused him anxiety and stress, and thus made it more difficult to 8 Case 2:21-cv-02693-MSN-cgc Document 16 Filed 03/13/23 Page 9 of 14 PageID 71 do his job, it would be no more than a conclusory statement void of supporting factual content. Accordingly, there is no evidence from which the Court can draw a connection between the alleged harassment and an interference with Plaintiff’s job performance necessary to support a hostile work environment claim under Title VII. See Keys v. Humana, No. 3:09-cv-00834-CRS, 2013 U.S. Dist. LEXIS 151242 (W.D. Ky. Oct. 13, 2013) (citing Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263, 274 (6th Cir. 2009 (finding that plaintiff’s allegations concerning negative comments from three coworkers, a Vice President of Sales, and a Manager failed to establish a hostile work environment capable of surviving a motion to dismiss when the plaintiff did not provide evidence that the harassment made it harder to perform her job). While Plaintiff is not required to make out a prima facie case at the pleading stage, he is still required to plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). Even assuming the truth of the facts Plaintiff alleges in his Complaint, they do not support a plausible claim Defendant is liable for the hostile work environment Plaintiff alleges. 2. Plaintiff’s Race or Sex as Basis for Alleged Harassment Neither has Plaintiff offered facts that would permit the Court to draw the reasonable inference that the alleged harassment he faced was based on either his sex or his race. Under Title VII, “[m]ere disrespect or antipathy will not be actionable . . . unless a plaintiff can prove that such was motivated by discriminatory animus.” Khalaf v. Ford Motor Co., 973 F.3d 469, 482 (6th Cir. 2020). Conduct “need not be overtly sexual in nature” to support a sexual harassment claim . . . . Any unequal treatment of an employee that would not occur but for the employee’s gender may, if sufficiently severe or pervasive . . . constitute a hostile environment in violation of Title VII.” Williams v. Gen. Motors Corp., 187 F.3d 553, 565 (6th Cir. 1999). 9 Case 2:21-cv-02693-MSN-cgc Document 16 Filed 03/13/23 Page 10 of 14 PageID 72 Plaintiff “may show race-based harassment with either ‘(1) direct evidence of the use of race- specific and derogatory terms or (2) comparative evidence about how the alleged harasser treated members of both races in a mixed-race workplace.’” Wade v. Automation Pers. Servs., 612 F. App’x 291, 298 (quoting CSX Transp. Co., Inc., 643 F.3d at 511). Here, there is scant evidence at best that the actions of either Owens, Langston, or Defendant had as their basis Plaintiff’s sex or race. The closest the Complaint comes to alleging sex discrimination by Defendant is its assertion that “[s]ex was a motivating factor in [Defendant’s] treatment of Plaintiff as [Owens’s comment was] treated as ‘locker room play.’ Had Plaintiff been a female employee, Defendant would have taken severe corrective action to remedy the situation.” (ECF No. 1 at PageID 4.) Plaintiff does not, however, provide any facts indicating that Plaintiff was treated differently than female employees or evidence to support an inference that such treatment would not have occurred but for his sex. Plaintiff provides even less basis for his race discrimination claim, merely stating that “[r]ace was a motivating factor in [Defendant’s] treatment of Plaintiff,” (Id. at PageID 5), but neglecting to furnish proof showing either direct evidence of the use of race-specific terms or evidence demonstrating he was treated differently than co-workers of other races. Notably, Plaintiff did not even respond to Defendant’s arguments concerning Plaintiff’s race discrimination claim in his Response to Defendant’s Motion to Dismiss. (See ECF No. 12.) To survive a motion to dismiss, Plaintiff needed only allege “sufficient ‘factual content’ from which a court, informed by its ‘judicial experience and common sense,’ could ‘draw the reasonable inference’ that an employer violated Title VII.” Keys v. Humana, Inc., 684 F.3d 605, 610 (6th Cir. 2012) (quoting Iqbal, 556 U.S. at 678). He has failed to do so. 10 Case 2:21-cv-02693-MSN-cgc Document 16 Filed 03/13/23 Page 11 of 14 PageID 73 B. Retaliation Claim (Count III) Plaintiff similarly fails to plausibly plead retaliation under Title VII. (ECF No, 1 at PageID 5.) The prima facie elements of a Title VII retaliation claim are: (1) [the plaintiff] engaged in activity protected by Title VII; (2) the exercise of protected rights was known to defendant; (3) defendant thereafter took adverse employment action against the plaintiff, or the plaintiff was subjected to severe or pervasive retaliatory harassment by a supervisor; and (4) there was a causal connection between the protected activity and the adverse employment action or harassment. Hunter v. Sec’y of U.S. Army, 565 F.3d 986, 995–96 (6th Cir. 2009) (quoting Morris v. Oldham Cnty. Fiscal Ct., 201 F.3d 784, 792 (6th Cir. 2000 . To establish an adverse employment action, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, ‘which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’” White, 548 U.S. at 68 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006 (internal citations omitted). “Alternatively, a plaintiff may establish a prima facie case of retaliation by showing that, instead of suffering an adverse employment action, [he] ‘was subjected to severe or pervasive retaliatory harassment by a supervisor.’” Haywood v. DeJoy, No. 21-6030, 2022 WL 16647967, at *3 (6th Cir. Oct. 6, 2022) (quoting Laster v. City of Kalamazoo, 746 F.3d 714, 730 n.5 (6th Cir. 2014 . To satisfy causality, “a plaintiff must proffer evidence sufficient to raise the inference that [the] protected activity was the likely reason for the adverse action.” Lindsey v. Whirlpool Corp., 295 F. App’x 758, 769 (6th Cir. 2008). As discussed above, a Title VII plaintiff need not establish a prima facie case at the pleading stage. Defendant argues that Plaintiff’s retaliation claim should be dismissed because Plaintiff “does not plead that he suffered any adverse employment action whatsoever, much less conduct tied to his alleged protected activity,” and so “fails to state a plausible claim for relief.” (ECF No. 8-1 at PageID 31.) Plaintiff responds that Defendant’s “inaction was retaliation for 11 Case 2:21-cv-02693-MSN-cgc Document 16 Filed 03/13/23 Page 12 of 14 PageID 74 [Plaintiff] trying to put a stop to the pervasive environment in Defendant’s shop.” (ECF No 12 at PageID 50.) Defendant replies that “[r]etaliation contemplates some affirmative action by an employer.” (ECF No. 15 at PageID 61.) Here, Plaintiff’s retaliation claim must fail because the Complaint fails to plausibly plead an adverse employment action. 1. Adverse Employment Action It is not apparent from the Complaint what adverse employment action Plaintiff alleges Defendant took against him.6 Plaintiff merely claims that Defendant’s “actions in retaliating against Plaintiff for complaining about the hostile work environment constitutes retaliation in violation of Title VII . . . .” (ECF No. 1 at PageID 5.) The Complaint does not specify what those actions are, though. When construed in the light most favorable to the Plaintiff, it is possible the Complaint means to allege that Defendant’s retaliatory action was its “fail[ure] to take prompt and corrective action in order to protect the Plaintiff and prevent a hostile working environment from existing.” (Id. at PageID 4.) This alleged failure could take the form of either Defendant’s response to the chalk incident, which Plaintiff believes was insufficient, or Defendant’s response to the locker room incident, which Plaintiff alleges was nonexistent. To the Court’s knowledge, the Sixth Circuit has not directly addressed whether inaction can constitute an adverse employment action. Courts have answered the question differently. Compare Carter v. Toyota Motor Mfg., No. 5:15-373-DCR, 2017 U.S. Dist. LEXIS 73233, at *50 n. 23 (E.D. Ky. May 15, 2017) (Title VII “[r]etaliation requires an adverse action of the employer, or at least employer inaction in the face of employee misconduct”), and Lewis v. D.C., 6 Plaintiff does not allege that he ‘was subjected to severe or pervasive retaliatory harassment by a supervisor,’” Haywood, 2022 WL 16647967, at *3 (quoting Laster, 746 F.3d at 730 n.5), which is the other way a plaintiff can satisfy the third prong of a retaliation claim. 12 Case 2:21-cv-02693-MSN-cgc Document 16 Filed 03/13/23 Page 13 of 14 PageID 75 885 F. Supp. 2d 421, 428 (D. D.C. 2012) (quoting White, 548 U.S. at 68) (finding that plaintiff had “alleged a concrete injury resulting from [her superior’s] alleged inaction and ha[d] thus provided a sufficient basis for concluding that it ‘might have dissuaded a reasonable worker from making or supporting a charge of discrimination’”); with Cooper v. Smithfield Packing Co., No. 7:13-CV-00145-F, 2014 U.S. Dist. LEXIS 25167, at *7 (E.D.N.C. Feb. 27, 2014) (holding that defendant’s failure to respond to plaintiff’s complaints was insufficient to suggest retaliation), Yeager v. UPMC Horizon, 698 F. Supp. 2d 523, 546–47 (W.D. Pa. 2010) (noting that the plaintiff had not pointed to any decision holding that an employer’s failure to take corrective action could serve as an adverse employment action for purposes of retaliation under Title VII), Robinson v. G.E. Aviation, No. 7:10-CV-00240-BR, 2012 WL 607559, at *2 (E.D.N.C. Feb. 24, 2012) (holding that “inaction” does not constitute retaliation for purposes of Title VII), and Payne v. Brennan, No. PX 16-1095, 2018 U.S. Dist. LEXIS 24742, at *16 (D. Md. Feb. 15, 2018) (citing Robinson, 2012 WL 607559, at *2) (“[A] retaliation claim cannot be based on Defendant’s inaction in the wake of a grievance). While the Court can conceive of hypothetical situations in which an employer’s inaction might rise to the level of an adverse employment action for purposes of Title VII, it has little difficulty concluding that such is not the case here. Even assuming Defendant’s responses to both incidents were insufficient, the Court does not find it plausible that a reasonable employee would find the responses under these circumstances “materially adverse” such that he would be dissuaded “from making or supporting a charge of discrimination” because of them. White, 548 U.S. at 68 (quoting Rochon, 438 F.3d at 1219). In fact, Plaintiff says the only action Defendant did take after he reported the locker room incident was to grant Plaintiff’s request for a medical leave of absence, which it did only six days after the locker room incident occurred. While 13 Case 2:21-cv-02693-MSN-cgc Document 16 Filed 03/13/23 Page 14 of 14 PageID 76 perhaps not sufficient to cure a claim of retaliation, this decision, and the short duration of time in which Defendant could have investigated or otherwise responded to the locker room incident before Plaintiff’s request for leave, would not deter a reasonable employee from reporting discrimination. Plaintiff has not plausibly pled an unlawful employment action. The Court GRANTS Defendant’s motion to dismiss Count III. CONCLUSION For the reasons set forth above, Defendant’s Motion to Dismiss Counts I, II, and III is GRANTED. For the reasons outlined in Defendant’s Motion to Dismiss and as conceded by Plaintiff, Defendant’s Motion to Dismiss Counts IV, V, VI, and VII is also GRANTED. IT IS SO ORDERED, this 13th day of March, 2023. s/ Mark S. Norris MARK S. NORRIS UNITED STATES DISTRICT JUDGE 14
=== 19-2525 ===
Case 2:19-cv-02525-MSN-tmp Document 70 Filed 07/01/22 Page 1 of 31 PageID 815 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ______________________________________________________________________________ JUSTIN GREER, Plaintiff, v. CUMMINS, INC., Defendant. Case No. 2:19-cv-02525-MSN-tmp ______________________________________________________________________________ ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Before the Court is Defendant Cummins, Inc.’s (“Cummins”) Motion for Summary Judgment, filed May 21, 2021. (ECF No. 47) (“Motion.”) Defendant accompanied its Motion with a Statement of Undisputed Material Facts, (ECF No. 48); Declaration of Laquesha Thompson, Defendant’s Human Resources Director, (ECF No. 48-1); Declaration of Jeffrey Beck, Defense Counsel, with Plaintiff’s deposition transcript, (ECF No. 48-2), and a Memorandum of Law, (ECF No. 49). After the Court granted two extensions of time, (See ECF Nos. 51, 53), Plaintiff Justin Greer, through counsel, (see ECF Nos. 24, 25), filed his Responses to the Motion and Statement of Undisputed Material Facts on July 9, 2021. (ECF Nos. 56, 57.) Defendant filed its Reply on August 6, 2021. (ECF No. 125 at PageID 767.) For reasons below, the Motion is GRANTED. BACKGROUND Plaintiff, an African American male, sued Defendant, his employer at the time, for race discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 (“Title VII”) and Section 1981 of the Civil Rights Act of 1866, 28 U.S.C. § 1981 (“Section Case 2:19-cv-02525-MSN-tmp Document 70 Filed 07/01/22 Page 2 of 31 PageID 816 1981”).1 (ECF No. 31 at PageID 198.) Defendant employed Plaintiff as a Customer Quality Assurance Specialist at its Memphis Diesel Recon Manufacturing Plant (“RMP”) in 2013. (Id. at PageID 199.) “Plaintiff’s education, background, and experience with Cummins were all in assembly, customer relations, and operations management,” (ECF No. 57 at PageID 705), and Plaintiff reported directly to the supervisor of the Quality Control Department. (Id. at PageID 706.) The Quality Control Department employs a team of technical engineers and non-technical staff, such as Quality Assurance Specialists. (Id.) As a Customer Quality Assurance Specialist, Plaintiff does not dispute that his “primary responsibility was to interface with all of the customers . . . and ensure that [Cummins] received a high satisfaction customer service score based off any complaints. . . .” (Id. at PageID 707.) Nonetheless, some Cummins personnel “referred to him as a Customer Quality Engineer in emails, local and corporate presentations, and conversations.”2 (ECF No. 31 at PageID 199) (emphasis added). “During his employment, Mr. Greer made several complaints to management and human resources alleging” race discrimination cost him promotional and professional opportunities as well as his deserved title and salary classifications at Cummins. (Id. at PageID 200; ECF No. 56 at PageID 695; ECF No. 57 at PageID 707.) To address Plaintiff’s concerns, Defendant’s Human Resources Division, applying company policy, directed Plaintiff’s supervisor, Sidney Joseph, also African American, to “work[] with Plaintiff to complete” a Job Content Questionnaire (“JCQ”) that sketched Plaintiff’s “roles and responsibilities, including a breakdown of how much time he spent on each duty.” (ECF No. 1 The Court has federal question jurisdiction under 28 U.S.C. § 1331 et seq. 2 Plaintiff does not dispute that it is common for Cummins employees to simultaneously hold different titles: the local title, specific to a plant and varies based on what the local job responsibilities may be, and the Global Position Profiles (“GPP”). (ECF No. 57 at PageID 707.) 2 Case 2:19-cv-02525-MSN-tmp Document 70 Filed 07/01/22 Page 3 of 31 PageID 817 57 at PageID 708.) After Defendant’s Human Resources Leader, Brian Small (“Small”), reviewed the JCQ in accordance with an Internal Position Evaluator (“IPE”), Defendant made four offers to address Plaintiff’s concerns.3 First, Defendant offered Plaintiff a position as a Quality Functional Excellence Specialist that Plaintiff voluntarily rejected in February 2017. (Id. at Page ID 709.) Unrelated to this offer and rejection, Defendant “determined that Plaintiff’s role had evolved over time and could be reclassified . . . .” (Id.) Second, in May 2017, and because of a job reclassification, Defendant “offered Plaintiff a seven percent pay increase” that Plaintiff rejected because he believed he would actually earn less “due to the loss of overtime pay he collected as an hourly employee . . . .” (Id. at PageID 710.) Third, and “to find a way” to address this concern, Small offered to “keep Plaintiff hourly . . . which would address Plaintiff’s concerns about his eligibility for overtime,” but “explained that Cummins would need to reduce his responsibilities” if he accepted it. (Id. at 711.) Plaintiff once again rejected Small’s solution. (Id.) Fourth, “at Plaintiff’s request, Small recalculated Plaintiff’s new salary considering his actual earnings, including overtime” and presented another offer, which Plaintiff accepted, and Defendant reclassified Plaintiff under a Customer Quality Assurance Specialist local title and Customer Quality Engineer GPP. (Id.) Plaintiff then trained the new Interim Quality Leader, the very position to which he was allegedly denied promotion. (Id. at PageID 713.) Once this litigation began, Plaintiff avers that he “had no personal knowledge or evidence to suggest any of his supervisors had any racial animus towards him.”4 (Id. at PageID 714.) At 3 IPE is a company-wide tool “standard across Cummins” and utilized by Defendant to verify the appropriate pay grade for its employees. According to Brian Small at his deposition, IPE uses a predetermined “calculator template”, but “there are unique IPEs for every single GPP or global position profile.” (ECF No. 55 at PageID 635.) 4 Plaintiff disputes Defendant’s accusation that he speculatively concluded his termination was racially motivated. (See ECF No. 57 at PageID 714.) To decide a motion for summary judgment, the Court construes all facts in favor of the non-moving party. See Matsushita Elec. 3 Case 2:19-cv-02525-MSN-tmp Document 70 Filed 07/01/22 Page 4 of 31 PageID 818 the end of 2019, Defendant decided to undertake a reduction in force at the RMP facility where Plaintiff worked. (Id. at PageID 714.) Consequently, RMP Manager Alvin Richardson (“Richardson”), an African American employee, “evaluated . . . each employee’s performance rating, criticality of skill set or experience to business, skill or technical knowledge level, teamwork, right environment scores and the needs of the employee’s department” to determine whether the circumstances warranted a termination in accordance with the reduction in force. (Id. at PageID 715.) Richardson, applying these criteria, decided to terminate Plaintiff, along with five others in his chain of command, on January 8, 2020, based on Plaintiff’s “communication issues, attendance issues, and performance issues,” but such issues were not documented in Plaintiff’s personnel file. (Id. at PageID 716, 718–19.) The racial demographics for terminated employees include two Caucasians, three African Americans, and one Hispanic indivdiual. (Id. at PageID 715–16.) In April 2020, Plaintiff obtained new employment with General Electric in a “comparable” role to the one he previously occupied at Cummins’ RMP facility. (Id.) On August 8, 2020, Plaintiff filed his pro se Complaint, later amended, wherein he seeks compensatory and punitive damages. (ECF No. 31 at PageID 203.) STANDARD OF REVIEW Federal Rule of Civil Procedure 56 permits a party to move for summary judgment — and the Court to grant summary judgment — “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. Indus. Co. v. Zenith Radio Corp., , 587 (1986). Therefore, the undisputed fact that Plaintiff lacks personal knowledge of racial animus by his supervisors at Cummins, while certainly relevant, is not dispositive as to whether his termination was racially motivated. 4 Case 2:19-cv-02525-MSN-tmp Document 70 Filed 07/01/22 Page 5 of 31 PageID 819 56(a). A party asserting the presence or absence of a genuine dispute of material fact must support its position either by “citing to particular parts of materials in the record,” including depositions, documents, affidavits or declarations, stipulations, or other materials, or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). To decide a motion for summary judgment, courts must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., 475 U.S. at 587; Nat’l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001). However, to survive summary judgment, a plaintiff “must do more than simply show that there is some metaphysical doubt as to the material facts.” Id. at 586. Courts may not weigh the evidence, judge the credibility of witnesses, or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., , 249 (1986). The moving party bears the initial burden to show that no genuine dispute of material fact exists. See Celotex Corp. v. Catrett, , 323 (1986). The moving party may discharge this burden either by producing evidence that demonstrates the absence of a genuine issue of material fact or simply “by ‘showing’—that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325. Where the movant has satisfied this burden, the nonmoving party cannot “rest upon its . . . pleadings, but rather must set forth specific facts showing that there is a genuine issue for trial.” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009) (citing Matsushita, 475 U.S. at 586); Fed. R. Civ. P. 56. The nonmoving party must present sufficient probative evidence to support its claim that disputed material facts remain that must be evaluated by a judge or jury at trial. Anderson, 477 U.S. at 248– 49 (citing First Nat’l Bank of Ariz. v. Cities Serv. Co., (1968 ; see also White v. 5 Case 2:19-cv-02525-MSN-tmp Document 70 Filed 07/01/22 Page 6 of 31 PageID 820 Wyndham Vacation Ownership, Inc., 617 F.3d 472, 475–76 (6th Cir. 2010). A mere scintilla of evidence does not suffice; there must be evidence from which a jury could reasonably find in favor of the nonmoving party. Anderson, 477 U.S. at 252; Moldowan, 578 F.3d at 374. A court’s limited role is to determine whether there is a genuine dispute about a material fact; that is, if the evidence in the case “is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. This determination requires that the Court “view the evidence presented through the prism of the substantive evidentiary burden.” Id. at 254. “The court need consider only the cited materials, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3). Thus, if the plaintiff must ultimately prove its case at trial by a preponderance of the evidence, on a motion for summary judgment the Court must determine, based on the record, whether a jury could reasonably find the plaintiff’s factual contentions true by a preponderance of the evidence. See Anderson, 477 U.S. at 252–53. Finally, should the nonmoving party fail to make a sufficient showing on an essential element of its case that it has the burden to prove, the movant will be entitled to summary judgment. Celotex, 477 U.S. at 323. The Court construes Rule 56 with due regard not only for the rights of those “asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.” Id. at 327. DISCUSSION The Court must decide whether Plaintiff survives summary judgment on either of his two claims: race discrimination and retaliation. (See ECF No. 31.) For clarity purposes, the Court addresses each claim separately and in accordance with its order of presentation in the pleadings. 6 Case 2:19-cv-02525-MSN-tmp Document 70 Filed 07/01/22 Page 7 of 31 PageID 821 A. Race Discrimination Claims Plaintiff alleges in his Amended Complaint that Defendant violated 42 U.S.C. § 2000e– 2(a) because it intentionally or with reckless indifference: (a) terminated him based on his race and (b) “subject[ed] him to different terms and conditions of employment than similarly situated white employees.” (ECF No. 31 at PageID 201–02.) He asserts his termination caused him to suffer “emotional distress, humiliation, lost wages and benefits, [and] future lost wages . . . .” (Id.) Defendant responds in its Motion that Plaintiff’s race discrimination claim fails as a matter of law for three reasons: (1) the claim is partially time-barred; (2) insufficiently pled; and (3) valid nondiscriminatory reasons warranted Plaintiff’s termination. (ECF No. 49 at PageID 480–88.) The Parties’ positions will be developed further in this section’s analytical paragraphs. While a plaintiff may prove a race discrimination claim under Title VII and Section 1981 with either direct or circumstantial evidence, the same analysis governs both statutory provisions.5 See Evans v. Walgreens Co., 813 F. Supp. 2d 897, 917 (W.D. Tenn. 2011) (citing Barrett v. Whirlpool Corp., 556 F.3d 502, 514 (6th Cir. 2009 . “Direct evidence is that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions.” Ondricko v. MGM Grand Detroit, LLC, 689 F.3d 642, 649 (6th Cir. 2012). “Circumstantial evidence, on the other hand, is proof that does not on its face establish [unlawful] animus, but does allow a factfinder to draw a reasonable inference that [unlawful activity] occurred.” Id. “Where the plaintiff does not base his claim on direct evidence, his 5 Here, Plaintiff has brought claims under both Title VII and Section 1981. The Court reviews Section 1981 claims under the same analytical framework appropriate for Title VII claims. Tennial v. United Parcel Service, Inc., 840 F.3d 292, 302 (6th Cir. 2016); Wade v. Knoxville Utilities Bd., 259 F.3d 452, 464 (6th Cir. 2001); Johnson v. University of Cincinnati, 215 F.3d 561, 573 n.5 (6th Cir. 2000) (“The elements of prima facie case as well as the allocations of the burden of proof are the same for employment claims stemming from Title VII and § 1981.”). 7 Case 2:19-cv-02525-MSN-tmp Document 70 Filed 07/01/22 Page 8 of 31 PageID 822 circumstantial evidence is analyzed under the McDonnell Douglas Corp. v. Green, (1973), burden-shifting framework.” Alsoofi v. Mnuchin, No. 19-1960, 2020 U.S. App. LEXIS 39805, at *7 (6th Cir. 2020) (citing Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 346 (6th Cir. 2012 . This framework provides that if (1) a plaintiff can make a “prima facie case” of race discrimination, then (2) “the burden shifts to the employer to proffer a legitimate, nondiscriminatory reason for its decision.” Upshaw v. Ford Motor Co., 576 F.3d 576, 584 (6th Cir. 2009). “If the employer carries its burden,” then (3) “the plaintiff must then prove by a preponderance of the evidence that the reasons offered by the employer were pretextual.” Id. The plaintiff has the burden throughout this analysis to “persuad[e] the trier of fact that the defendant intentionally discriminated against the plaintiff. . . .” DiCarlo v. Potter, 358 F.3d 408, 414–15 (6th Cir. 2004). “To survive summary judgment, a plaintiff need only produce enough evidence to support a prima facie case and to rebut, but not to disprove, the defendant’s proffered rationale. Bolden v. Lowes Home Ctrs., LLC 783 F. App’x 589, 594 (6th Cir. 2019) (citing Griffin v. Finkbeiner, 689 F.3d 584, 593 (6th Cir. 2012 . 1. Statute of Limitations a. Plaintiff’s September 2016 Ethics Point Complaint is Time-Barred Preliminarily, Defendant argues that Plaintiff’s race discrimination claims are partially time-barred because Title VII “requires a party wishing to contest an allegedly discriminatory act to file a Charge with the EEOC within 300 days ‘after the alleged unlawful employment practice occurred’ . . .”, therefore barring Plaintiff from raising Title VII discrimination claims for conduct that occurred before December 31, 2016—300 days before he filed that Charge on October 27, 8 Case 2:19-cv-02525-MSN-tmp Document 70 Filed 07/01/22 Page 9 of 31 PageID 823 2017.6 Cunningham v. Washington Grp. Int’l, Inc., No. 08-1308, 2009 WL 2971870, at *2 (W.D. Tenn. 2009) (quoting 42 U.S.C. § 2000e–5(e)(1 . (ECF No. 49 at PageID 480.) Finally, Defendant argues that a four-year statute of limitations governs Section 1981 analyses and therefore any claim brought by Plaintiff based on conduct that occurred before May 26, 2016 are also time-barred. Plaintiff disputes this assertion under the continuing-violation doctrine discussed in Block v. Mehary Med. College, 723 F. App’x 273, 279 (6th Cir. 2018) (quoting Cox v. City of Memphis, 230 F.3d 199, 202 (6th Cir. 2000).7 A creature of judicial devise, the continuing-violations doctrine “presents a ‘narrow exception’ to the usual requirement to bring an EEOC complaint within the limitations period.” Id.; see Gandy v. Sullivan Cnty., 24 F.3d 861, 864 (6th Cir. 1994) (“The doctrine of continuing violations is a judicially-created one . . .”). This Circuit recognizes two categories for continuing 6 Defendant argues that Plaintiff’s September 20, 2016 internal Ethics Point complaint should not be considered because it is time-barred; Defendant does not clarify what, if any, other complaints or matters also preceded the December 31, 2016 statutory cutoff and should also be excluded. Instead, it uses the catchall language: “any alleged discrimination [Plaintiff] claims occurred prior to” that date. (ECF No. 49 at PageID 481.) Therefore, to avoid speculation and make a clean record, here the Court will address only whether the September 20, 2016 Ethics Point complaint is time-barred because the Court cannot discern from the filings—nor have the Parties specifically argued—other complaints of discrimination besides the September 20th complaint. 7 Plaintiff also relies on a Tennessee Supreme Court decision that provides, “a discriminatory pay rate is actionable until it ‘ceases’ . . . . [I]t ceases when the employer brings the employee into parity with his or her peers.” Booker v. Boeing Co., 188 S.W.3d 639, 648 (Tenn. 2006). However, the cause of action at issue in Booker arose under state—not, as here, federal— law. See Booker, 188 S.W.3d at 641 (“We accepted a question certified to this Court from the United States District Court for the Eastern District of Tennessee to clarify the operation of the statute of limitations for discriminatory pay claims under the Tennessee Human Rights Act.”) Plaintiff’s § 1981 claims, federal causes of action, are controlled by the statute of limitations authorized by Congress, which provides: “a civil action arising under an Act of Congress . . . may not be commenced later than 4 years after the cause of action accrues.” 28 U.S. Code § 1658(a). Therefore, the Court finds the Booker analysis inapposite and will assess Plaintiff’s argument vis- à-vis the continuing violation doctrine under applicable federal precedent. See Lucas v. Memphis City Sch. Bd. of Educ., No-06-2234 B, 2007 WL 1774947, at *7 (W.D. Tenn. 2007) (finding Booker “has no application” to pay discrimination claims brought under federal and not state law). 9 Case 2:19-cv-02525-MSN-tmp Document 70 Filed 07/01/22 Page 10 of 31 PageID 824 violations. First, and germane here, a plaintiff may show the defendant engaged in “an ongoing, continuous series of discriminatory acts.” Cox, 230 F.3d at 202. Under this theory, “the series of acts may be challenged in their entirety as long as one of those discriminatory acts falls within the limitations period,” but a continuing violation may not be adduced from “continuing effects of past discriminatory acts.” Id. (emphasis added); see Dozier v. Douglas Autotech Grp., No. 5:19-cv-82- TBR-LLK, 2020 WL 1102520, at *8–9 (W.D. Ky. March 2020). “The second category of continuing violations arise[s] where there has occurred ‘a longstanding and demonstrable policy of discrimination.’” Haithcock v. Frank, 958 F.2d 671, 678 (6th Cir. 1992) (quoting Dixon v. Anderson, 928 F.2d 212, 217 (6th Cir. 1991 (emphasis added). Plaintiff alleges his September 2016 internal Ethics Point complaint chronicled an “ongoing, continuous series of discriminatory acts” such as Cummins’ “refusal to align Mr. Greer’s job title and compensation with the job title duties and responsibilities he was performing at the request of the Company.” (ECF No. 56 at PageID 698.) However, this blanket statement does not rescue Plaintiff’s argument—specifically, that the Court consider his September 2016 internal Ethics Point complaint—from the federal limitations clock. See Slorp v. Lerner, Sampson & Rothfuss, 587 F. App’x 249, 259 (6th Cir. 2014). Even if Plaintiff’s Response establishes that Defendant failed to promote Plaintiff to a new job title and compensation rate in accordance with his employment duties, applicable precedent classifies this decision as a “discrete act.”8 See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (easily identifiable discrete acts include: “termination, failure to promote, denial of transfer, or refusal to hire.”) “Unlike a 8 “Although an employee may allege that he suffered from a series of related discriminatory acts over the course of his employment . . . only those acts that occurred 300 days before . . . . the day that [plaintiff] filed his charge, are actionable.’” Kjhatri v. Ohio State Univ., No. 21-3193, 2022 U.S. App. LEXIS 2170, at *13 (6th Cir. 2022) (quoting Morgan, 536 U.S. at 113). 10 Case 2:19-cv-02525-MSN-tmp Document 70 Filed 07/01/22 Page 11 of 31 PageID 825 continuing violation claim, ‘discrete acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.’” EEOC v. Kaplan Higher Ed. Grp., 790 F. Supp. 2d 619, 625 (N.D. Ohio 2011) (quoting Morgan, 536 U.S. at 113); see Ferguson v. Snow, 185 F. App’x 456 (6th Cir. 2006) (“Discrete acts include termination, failure to promote, and denial of transfer.”) (emphasis added). Here, Plaintiff specifically alleges that Cummins failed to promote him and wrongfully assigned his title because it did not hire him as a Customer Quality Engineer (e.g., “Cummins . . . determined that Mr. Greer’s job duties most closely aligned with that of an engineer and still refused to align him with the proper title.”) (ECF No. 56 at PageID 695) (emphasis added). Yet, Plaintiff fails to offer discernable “proof that the alleged acts of discrimination,” specifically those enumerated in his September 2016 internal Ethics Point complaint, “occurring prior to the limitations period are sufficiently related to those occurring within the limitations period.” Sharpe v. Cureton, 319 F.3d 259, 267 (6th Cir. 2003) (ECF No. 56 at PageID 697–98.) Under Sharpe, “discrete acts of which [the plaintiff was] immediately aware when they occurred,” Bell v. Ohio State Univ., 351 F.3d 240, 247 (6th Cir. 2003) (emphasis added), like “termination, failure to promote, denial of transfer, [and] refusal to hire,” are not continuing violations. Morgan, 536 U.S. at 114; see Bowerman v. Int’l Union, 646 F.3d 360, 366 (6th Cir. 2011); Click v. Thompson, 926 F. Supp. 2d 972, 973–74 (E.D. Ky. 2013). Therefore, without more, the Court concludes that the statute of limitations bars Plaintiff’s September 2016 internal Ethics Point complaint, and all allegations therein based on acts that occurred before December 31, 2016, from consideration.9 9 Notably, “the statute of limitations does not bar Plaintiff ‘from using the prior acts as background evidence in support of’ [his] timely retaliation claim.” Bills v. Shelby Cnty. Gov’t, No. 2:17-cv-02634-TLP-cgc, 2018 WL 3398169, at *15 (W.D. Tenn. 2018) (quoting Morgan, 536 U.S. at 113) (emphasis added). 11 Case 2:19-cv-02525-MSN-tmp Document 70 Filed 07/01/22 Page 12 of 31 PageID 826 See Dundee v. Univ. Hosps. Corp, No. 1:19-cv-01141, 2019 WL 7195317, at *17 (N.D. Ohio 2019) (“[T]he continuing violations doctrine may not be used to recover for discrete acts that occurred outside the statutory filing period . . . .”) 2. McDonnell Douglas Analysis a. Legal Standard Turning to the first McDonnell Douglas prong, “[t]o establish a prima facie case of race discrimination, a plaintiff must produce evidence that ‘(1) he was a member of a protected class, (2) he suffered an adverse employment action, (3) he was otherwise qualified for the position, and (4) he was replaced by someone outside the protected class or treated differently than a similarly situated, non-protected employee.’” Collier v. City of Memphis, No. 21-5338, 2021 U.S. App. LEXIS 35865, at *6 (6th Cir. 2021) (quoting Deleon v. Kalamazoo Cnty. Rd. Comm’n, 739 F.3d 914, 918 (6th Cir. 2014 . Once a plaintiff has made this showing, the burden of production shifts to the defendant to provide a legitimate, nondiscriminatory reason for its actions. See Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009). Once the defendant meets its burden of production, the burden shifts back to the plaintiff to establish pretext, that is, that the “employer’s explanation was fabricated to conceal an illegal motive.” Id. The Parties only dispute elements two and four: whether Plaintiff suffered a materially adverse employment action and, specific to the wrongful termination claim, whether Defendant treated him differently than similarly situated employees outside the protected class. (ECF No. 56 at PageID 698; ECF No. 49 at PageID 482, 486.) See Logan v. Denny’s, Inc., 259 F.3d 558, 567 (6th Cir. 2001); Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992). Where a plaintiff fails one element, the claim cannot succeed, and courts need not explore additional elements. See, e.g., Wingo v. Mich. Bell Tel. Co., 815 F. App’x 43, 45 (6th Cir. 2020) (citing Texas Dep’t. of 12 Case 2:19-cv-02525-MSN-tmp Document 70 Filed 07/01/22 Page 13 of 31 PageID 827 Comm. Affairs v. Burdine, 450 U.S. 248, 253 (1981 (explaining that “a plaintiff must present enough evidence sufficient for a jury to find in the plaintiff’s favor on all elements of the claim”) (emphasis added). Thus, the Court will begin its analysis by assessing whether Plaintiff has sufficiently shown he suffered an adverse employment action. Courts in this Circuit have held that, “[a]n adverse employment action ‘constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’ Adverse employment action ‘requires an official act of the enterprise, a company act. The decision in most cases is documented in official company records, and may be subject to review by higher level supervisors.’ In addition, it typically ‘inflicts direct economic harm.’” Laster v. Kalamazoo, 746 F.3d 714, 727 (6th Cir. 2014) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761– 62 (1998 . Yet, a “mere inconvenience or an alteration of job responsibilities” is not an adverse employment action. White v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789, 795 (6th Cir. 2004) (en banc) (citing Kocsis v. Multi-Care Mgmt. Inc., 97 F.3d 876, 885–87 (6th Cir. 1996 . b. Failure to Promote Claim First, the Court considers whether Plaintiff has made a prima facie showing for his failure to promote claim. (ECF No. 31 at PageID 199; ECF No. 56 at PageID 695.) “For the purposes of Title VII, a failure to promote is an adverse employment action.” Nguyen v. City of Cleveland, 229 F.3d 559, 562 (6th Cir. 2000) (citing Hale v. Cuyahoga Cnty. Welfare Dep’t, 891 F.2d 604, 606 (6th Cir. 1989 . Here, Plaintiff argues that Defendant’s failure to promote or appoint him as an Interim Quality Leader constituted an adverse employment action because it instead promoted Tim Parrish, Valerie Clark, and Robin Guzanick, all Caucasian, to that title. (ECF No. 31 at PageID 200; see ECF No. 48-2 at PageID 341–42, 346.) Plaintiff maintains he was denied a 13 Case 2:19-cv-02525-MSN-tmp Document 70 Filed 07/01/22 Page 14 of 31 PageID 828 promotion because of his race. (ECF No. 31 at PageID 200.) Defendant responds that “there was no ‘promotion’ for [Plaintiff] to be denied . . . [because] he was referring to the position of Interim Quality Leader—a temporary, technical position for which he never applied.” (ECF No. 49 at PageID 484.) Defendant further maintains that Plaintiff rejected a promotion offer,10 (Id.), and its selection of Parrish, Clark, and Guzanick11 as Interim Quality Leaders constituted a legitimate business decision rather than a materially adverse employment action. (Id. at PageID 483–84.) Focusing on the pleadings, affording special attention to Plaintiff’s Response to the Motion, the Court finds that Plaintiff has not plead a prima facie case for failure to promote. To begin, the Response altogether omits mention of the Interim Quality Leader position—the title Plaintiff himself specifically identified during his deposition as the basis for his failure to promote claim (see ECF No. 48-2 at PageID 346)—and instead focuses on the “Customer Quality Engineer Global Position Profile.” (ECF No. 56 at PageID 699.) Consequently, the Response is non sequitur as to the failure to promote claim (even if it does hint at the wrongful reassignment claim, discussed infra). (ECF No. 57 at PageID 707.) Next, and critically, Plaintiff has not disputed Defendant’s claim that the Interim Quality Leader position is a “technical, temporary position for which he never applied for or requested.”12 (ECF No. 57 at PageID 712) (emphasis added). “[T]o 10 Plaintiff responds that this promotion offer was not a true promotion because it in fact reduced his pay. (ECF No. 56 at PageID 699.) To the extent the Parties disagree about whether the rejected offer was promotional, the Court will construe the facts in favor of the nonmoving party at the summary judgment stage. See Matsushita, 475 U.S. at 587. 11 Defendant clarified that Guzanick technically holds a different title at Cummins. (ECF No. 57 at PageID 709–10 n. 1.) 12 Some courts have found a prima facie case of race discrimination regarding failure to promote when it has been established that the plaintiff “applied for and was qualified for the position,” but not hired; this did not occur here because Plaintiff did not apply for the Interim Quality Leader position. Hodges v. City of Milford, 918 F. Supp. 2d 721, 736 (S.D. Ohio 2013); see, e.g., Nguyen, 229 F.3d 559 at 564 (summary judgment affirmed because plaintiff did not apply for the position and therefore failed to plead his prima facie discrimination case). 14 Case 2:19-cv-02525-MSN-tmp Document 70 Filed 07/01/22 Page 15 of 31 PageID 829 make a prima facie case based upon a failure to promote, [Plaintiff] must prove that . . . he applied for, and did not receive, a job.” Anthony v. BTR Auto. Sealing Sys., 339 F.3d 506, 515 (6th Cir. 2003). Therefore, the Court concludes Plaintiff has not made a prima facie case for his failure to promote claim because he has not proven a materially adverse employment action as to that claim,13 a necessary element; accordingly, any such claim based on failure to promote is DISMISSED.14 See id. c. Wrongful Reassignment Claim Second, the Court considers whether Plaintiff has made his prima facie showing for a wrongful reassignment claim (e.g., as a Customer Quality Assurance Specialist and not Customer Quality Engineer, or Customer Quality Engineer GPP). (ECF No. 57 at PageID 713.) The U.S. Supreme Court noted that transfer or reassignment “is not automatically actionable” and “whether a particular reassignment qualifies as materially adverse depends upon the circumstances of the particular case, and ‘should be judged from the perspective of a reasonable person in the plaintiff’s position’ . . . .” Burlington, 524 U.S. at 71 (quoting Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81 (1998 . Applying Burlington, the Sixth Circuit explained that, “[a]t a minimum, the employee must be able to show a quantitative or qualitative change in the terms of the conditions of employment.” Deleon, 739 F.3d at 919. Absent a demotion or pay decrease, “an employee’s transfer may constitute a materially adverse employment action . . . so long as the particular circumstances present give rise to some level of objective intolerability.” Id. (emphasis added.) 13 The Court need not engage in a similarly situated analysis because Plaintiff has failed to satisfy one of the four required prongs for a prima facie race discrimination case. See, e.g., Wingo, 815 F. App’x at 45. 14 A failure to appoint Plaintiff to a position for which he did not apply is not adverse. Cf. Seay v. TVA, 339 F.3d 454, 463 (6th Cir. 2003) (prima facie showing properly made in part because the “[p]laintiff applied for the position but was neither selected nor granted an interview.”) 15 Case 2:19-cv-02525-MSN-tmp Document 70 Filed 07/01/22 Page 16 of 31 PageID 830 The Court sharply “emphasize[d] the contextual nature of these inquiries,” Threat v. City of Cleveland, 6 F.4th 672, 679 (6th Cir. 2021), and district courts must evaluate any “indices that might be unique to a particular situation” to distinguish an adverse action that was “more disruptive than a mere inconvenience” from one better classified as a mere “alteration of job responsibilities.” Kocsis, 97 F.3d 876 at 886; Threat, 6 F.4th at 679–80. Here, Plaintiff argues that Defendant’s refusal to classify him under the Customer Quality Engineer GPP “substantially reduced Mr. Greer’s annual pay” and constituted a materially adverse employment action because it “inflicted direct economic harm” on Plaintiff. (ECF No. 56 at PageID 699.) Defendant responds that it based its decision not to assign Plaintiff to an engineer pay grade and GPP on Plaintiff’s non-technical background and not his race; according to Cummins, “Plaintiff was, in fact, not an engineer nor doing the work of one.”15 (ECF No. 49 at PageID 483.) The Court finds Plaintiff has correctly argued that “[r]eassignments and position transfers can constitute adverse employment actions, particularly where they are accompanied by changes in pay.” See Redlin v. Grosse Point Pub. Sch. Sys., 921 F.3d 599, 607 (6th Cir. 2019). In Redlin, the Sixth Circuit held that a public-school assistant principal reassigned from a high school to a middle school, thus resulting in, inter alia, “a lower rate of pay,” made her prima facie showing of race discrimination. Id. at 608. Likewise, here, taking all facts in favor of the nonmoving party, Plaintiff has satisfied the Court that he met his burden to show a prima facie case of race discrimination based on his employment reclassification. 15 The Court notes that Plaintiff disputes Defendant’s assertion that Plaintiff based his September 2016 EthicsPoint Complaint on race discrimination. (ECF No. 57 at PageID 708; see ECF No. 47 at PageID 327.) However, for reasons discussed supra, this September 2016 Complaint will not be considered because it is time-barred. Therefore, indices in that Complaint, if any, that Defendant committed discriminatory acts based on race cannot be considered here. 16 Case 2:19-cv-02525-MSN-tmp Document 70 Filed 07/01/22 Page 17 of 31 PageID 831 But there is more. Plaintiff’s prima facie showing alone does not itself conclude the analysis; at this analytical juncture, “the burden shifts to the employer to proffer a legitimate, nondiscriminatory reason for its decision.” Upshaw, 576 F.3d at 584. Defendant argues that its decision to reassign Plaintiff to salaried exempt status “with a higher base pay” constituted the opposite of an adverse action because Plaintiff received an annual pay raise. (ECF No. 49 at PageID 483.) It also asserts that Plaintiff simply lacked the requisite qualifications for an engineer paygrade and its decision to deprive him of one was “carefully considered, legitimate, and non- discriminatory.” (Id. at 483–84.) Such decisions are, of course, legally permissible, under the case law Defendant cites and Plaintiff has not distinguished. See Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir. 1998). Finally, the third analytical step under McDonnell Douglas must be assessed: Plaintiff has the burden to show pretext. “[A] plaintiff can show pretext in three interrelated ways: (1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate the employer’s action, or (3) that they were insufficient to motivate the employer’s action.” Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009); Demyanovich v. Cadon Plating & Coatings, LLC., 747 F.3d 419, 431 (6th Cir. 2014). “[A] plaintiff may also demonstrate pretext by offering evidence which challenges the reasonableness of the employer’s decision ‘to the extent that such an inquiry sheds light on whether the employer’s proffered reason for the employment action was its actual motivation.’” White v. Baxter Healthcare Corp., 533 F.3d 381, 393 (6th Cir. 2008) (quoting Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 578 (6th Cir. 2003) (en banc . To survive summary judgment, a plaintiff “must produce sufficient evidence from which a jury could reasonably reject [the defendant’s] explanation of why it” took an adverse employment action against the plaintiff. Chen, 580 F.3d at 400. A plaintiff must show that the defendant’s decision 17 Case 2:19-cv-02525-MSN-tmp Document 70 Filed 07/01/22 Page 18 of 31 PageID 832 was “so unreasonable as to be disbelieved.” Sybrandt v. Home Depot, 560 F.3d 553, 561 (6th Cir. 2009) (finding no pretext when the employer conducted a reasonable investigation prior to terminating the plaintiff). “At the summary judgment stage, the issue is whether the plaintiff has produced evidence from which a jury could reasonably doubt the employer’s explanation. If so, [his] case is sufficient to support an inference of discrimination at trial.” Id. at 400 n.4 (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993 . Here, Plaintiff does not dispute that Defendant’s Human Resources Leader Brian Small completed an IPE16 that indicated his appropriate salary grade “was . . . a non-engineering compensation class 1, salary grade 5 . . . consistent with similar positions across the entire company.” (ECF No. 57 at PageID 710–11.) He also does not dispute that Small, at Plaintiff’s request, offered Plaintiff a salary increase of “nearly twenty-five percent—from $52,873 to $66,000—to account for any potential lost overtime earnings” that he in fact accepted.17 (ECF No. 57 at PageID 711.) Rather, Plaintiff only argues that “the failure to provide Mr. Greer with the Customer Quality Engineer[ing] [position] despite Cummin[s’] own findings is an adverse employment action”18 and that “a jury could find this to be pretext for discrimination based on the 16 See Small Dep. Tr., (ECF No. 55 at PageID 635), supra note 3. 17 Notably, Plaintiff does not dispute that “[t]he pay range of an engineer in the corresponding salary grade, CC01/SG23, was between $64,800 and $97,200.” (ECF No. 57 at PageID 712.) Accordingly, as Defendant aptly argues, Plaintiff’s $66,000 salary falls within the engineer salary grade he has requested sans the title “Customer Quality Engineer”. (ECF No. 49 at PageID 487.) To the extent Plaintiff disputes only his occupational title based exclusively on his “subjective impression” of how Cummins’ employees perceived him (e.g., referring to him as an “engineer”), (see ECF No. 56 at PageID 701), his dispute is moot. See Deleon, 739 F.3d at 921; Mitchell v. Vanderbilt Univ., 389 F.3d 177, 183 (6th Cir. 2004) (“[A] plaintiff’s subjective impression concerning the desirability of one position over another generally does not control with respect to the existence of an adverse employment action.”). 18 The Response does not further discuss or cite the “findings” to which this sentence refers, nor does it address Small’s deposition testimony that the IPE resulted in a higher compensation 18 Case 2:19-cv-02525-MSN-tmp Document 70 Filed 07/01/22 Page 19 of 31 PageID 833 fact that his Global Position Profile was most closely aligned with that of a Customer Quality Engineer and from internal Cummins communications that referred to Plaintiff as an engineer . . . .” (ECF No. 56 at PageID 699.) Plaintiff disputes Defendant’s characterization of him as a “non- engineering grade customer engineer” because “Plaintiff was regularly referred to as an engineer within the company based on his job duties and responsibilities.” (ECF No. 57 at PageID 710.) To corroborate his assertion, Plaintiff cites internal communications (e.g., email correspondences) wherein Cummins’ personnel referred to him as an “engineer”. (See e.g., ECF No. 1-2 at PageID 27.) Yet, he does not explain whether his responsibilities were “significantly different”, if at all, upon reassignment. See Laster, 746 F.3d at 727 (“reassignment with significantly different responsibilities” can constitute a materially adverse employment action). The Court finds that Plaintiff has failed to show pretext as to his wrongful reassignment claim for two reasons. First, Plaintiff does not argue or otherwise explain how or why the reference to his “Customer Quality Engineer GPP” specifically correlates with an engineer-level pay grade when he does not dispute that an employee’s local job title commonly differs from the assigned GPP; second, he does not recount what authority, if any, the cited Cummins employees and documents—which referenced him as an “engineer”—had over his actual employment and salary classifications. (ECF No. 57 at PageID 707.) Consequently, Plaintiff’s position is incomplete: although he argues that he is entitled to an engineer’s pay grade at Cummins because he has a Customer Quality Engineer GPP, he has also conceded that GPP and local title commonly differ. (Id.) The Court cannot discern anything in the Record or—more particularly—Plaintiff’s Response, that supports a reasonable inference that a local title of Customer Quality Assurance class. It also does not refute Defendant’s standard pay ranges for non-technical employees and Plaintiff even accepted this offer. (ECF No. 57 at PageID 711.) 19 Case 2:19-cv-02525-MSN-tmp Document 70 Filed 07/01/22 Page 20 of 31 PageID 834 Specialist corresponds with Customer Quality Engineer GPP and entitles a Cummins employee to a technical (engineering) grade salary.19 A jury cannot evaluate this missing link, which would be necessary to conclude that Cummins’ “explanation was fabricated to conceal an illegal motive.” Chen, 580 F.3d at 400. Thus, any dispute is immaterial. See Blankenship v. Superior Controls, Inc., 135 F. Supp. 3d 608, 615 (E.D. Mich. 2015) (quoting Anderson, 477 U.S. at 248) (“A dispute about a material fact is ‘genuine’ only if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’”) Consequently, Plaintiff cannot establish Defendant’s reasons for reassigning him lacked a factual basis, did not actually motivate his reassignment, or were insufficient to motivate it. See Chen, 580 F.3d at 400. He has not shown that Cummins’ decision to reassign him based on Small’s IPE assessment was “so unreasonable as to be disbelieved,” Sybrandt, 560 F.3d at 561, or “that [this] reason was false or discrimination was the real reason” for his reassignment. Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 285 (6th Cir. 2012) (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993 . Through his refusal to challenge Defendant’s stated process for his reassignment determination—e.g., the IPE and JCQ processes— Plaintiff has not provided the Court with any reason to believe that Defendant did not make “a reasonably informed and considered decision before taking an adverse employment action.” Smith, 155 F.3d at 807. Therefore, even if Plaintiff could show that he deserved the Customer Quality Engineer GPP, he cannot—without the missing correlative links and facts to establish that 19 Defendant contends that “the Customer Quality Engineer GPP . . . is not an “engineering position” under the technical sense of that term; it is a nontechnical position.” (ECF No. 62 at PageID 732 n. 1.) Though all facts must be construed in favor of the nonmovant, Plaintiff still has the low burden “to rebut, but not to disprove, the defendant’s proffered rationale.” Griffin, 689 F.3d at 593. Here, Plaintiff presented no specific facts, evidence, or law in his Response to rebut Defendant’s proffered rationale or suggest a correlation between the engineer GPP and local title that supports a reasonable inference that he qualified for an engineer title and salary. Therefore, his arguments cannot defeat summary judgment. See Moldowan, 578 F.3d at 374 (On summary judgment, a plaintiff “must set forth specific facts showing that there is a genuine issue for trial.”) 20 Case 2:19-cv-02525-MSN-tmp Document 70 Filed 07/01/22 Page 21 of 31 PageID 835 discrimination caused the reassignment—establish his eligibility for an engineer’s paygrade; accordingly, the wrongful reassignment claim is DISMISSED. Id. B. Retaliation Claims Plaintiff alleges that Defendant retaliatorily: (1) failed to promote, (2) wrongfully reassigned, and (3) terminated him because he made “complaints of discrimination” and the ultimate decision to file this lawsuit.20 (ECF No. 31 at PageID 200; ECF No. 56 at PageID 700– 03.) Defendant responds that: (1) it “carefully evaluated” Plaintiff’s position and pay and (2) Plaintiff “cannot use reclassification as evidence of retaliation because Greer never actually engaged in protected activity. . . .”21 (ECF No. 56 at PageID 734.) Next, Defendant asserts that (3) it terminated Plaintiff—based on “predetermined criteria” and five months after he filed his pro se Complaint that initiated this litigation—as part of a legitimate reduction in force.22 (Id. at PageID 735.) The Parties’ positions will be developed further in this section’s analytical paragraphs. In much the same way as the analysis for Plaintiff’s race discrimination claims proceeded, a similar framework applies here.23 As the Sixth Circuit has explained: “To make a prima facie case of retaliation, ‘a plaintiff must establish that: (1) he engaged in activity protected by Title VII; (2) the exercise of his civil rights was known to the defendant; (3) thereafter, the defendant took 20 Specifically, “Plaintiff remains firm [in] the position that this justification was a mere pretext for retaliation.” (ECF No. 56 at PageID 701.) 21 Construing facts in favor of the non-movant, the Court finds, for purposes of this analysis, that Plaintiff engaged in protected activity when he filed his 2017 EEOC Complaint. 22 To remind the reader, Plaintiff filed his pro se Complaint on August 12, 2019. (ECF No. 1.) Defendant terminated Plaintiff on January 8, 2020. (ECF No. 56 at PageID 701.) 23 “The elements of a retaliation claim under § 1981 are the same as those under Title VII.” Boxill v. O’Grady, 935 F.3d 510, 520 (6th Cir. 2019). Therefore, the Court will treat Plaintiffs claims under both authorities to the same analysis and they will be addressed together. 21 Case 2:19-cv-02525-MSN-tmp Document 70 Filed 07/01/22 Page 22 of 31 PageID 836 an employment action adverse to the plaintiff; and (4) there was a causal connection between the protected activity and the adverse employment action.’” Block, 723 F. App’x at 283 (quoting Nguyen, 229 F.3d at 563); see Singleton v. PSA Airlines, Inc., No. 21-3423, 2022 U.S. App. LEXIS 7777, at *9 (6th Cir. 2022). “To establish the causal connection required in the fourth prong, a plaintiff must produce sufficient evidence from which an inference could be drawn that the adverse action would not have been taken had the plaintiff not filed a discrimination action.” Sharp v. Aker Plant Servs. Grp., 600 F. App’x 337, 340 (6th Cir. 2015) (quoting Nguyen, 229 F.3d at 563). “[E]vidence that defendant treated the plaintiff differently from similarly situated employees or that the adverse action was taken shortly after the plaintiff’s exercise of protected rights is relevant to causation.” Id. at 563 (citing Moon v. Transport Drivers, Inc., 836 F.2d 226, 230 (6th Cir. 1987 . Should a Plaintiff establish these requirements, “‘the burden of production of evidence shifts to the employer to articulate some legitimate, non-discriminatory reason for its actions.’” Laster, 746 F.3d at 730 (quoting Dixon v. Gonzales, 481 F.3d 324, 333 (6th Cir. 2007 . “If the employer does so, then ‘the burden shifts back to Plaintiff to demonstrate that Defendants’ proffered reason was not the true reason for the employment decision.” Block, 723 F. App’x at 283 (quoting Gonzales, 481 F.3d at 333) (internal citations omitted); Ladd v. Grand Trunk W. R.R., Inc., 552 F.3d 495, 502 (6th Cir. 2009). 1. Retaliation Analysis a. Failure to Promote First, Plaintiff’s decision to file an EEOC Complaint qualifies as Title VII “protected activity” and therefore satisfies the initial analytical step. Imwalle v. Reliance Med. Prods., 515 F.3d 531, 550 (6th Cir. 2008). Second, Defendant knew that Plaintiff filed his EEOC Complaint 22 Case 2:19-cv-02525-MSN-tmp Document 70 Filed 07/01/22 Page 23 of 31 PageID 837 based on the EEOC’s right to sue notice.24 (ECF No. 1-9 at PageID 81.) Third, for reasons outlined in the previous section, Plaintiff did not suffer an adverse employment action because Defendant did not promote him; this matter has been discussed and the same analysis applies here.25 However, assuming nonetheless that Plaintiff did suffer an adverse employment action in the retaliation context, his claim fails under the fourth and final analytical prong announced by the Sixth Circuit in Nguyen. More specifically, Plaintiff must show that “there was a causal connection between the protected activity and the adverse employment action.” Nguyen, 229 F.3d at 563. His claim fails in this respect for three reasons. Initially, although Plaintiff alleges that “Cummins[] dragged its feet for several months before completing its investigation into Mr. Greer’s complaints” about race discrimination at his workplace, this argument relies on the September 2016 internal Complaint that has been time-barred. (ECF No. 56 at PageID 701.) For reasons previously discussed at length in this Order, the Court will not consider the substance of that complaint or this argument. Next, Plaintiff argues that “Cummin[s’] own objective evaluation of 24 This direct evidence sufficiently establishes that Defendant knew about the protected activity here. “But direct evidence of such knowledge or awareness is not required, and . . . a plaintiff may survive summary judgment by producing circumstantial evidence to establish this element of her claim.” Mulhall v. Ashcroft, 287 F.3d 543, 552 (6th Cir. 2002). Indeed, Defendant even admits that, “Cummins was aware of Plaintiff’s complaints and intention to bring a lawsuit for years prior to the January 2020 reduction in force.” (ECF No. 49 at PageID 492.) 25 The Court “cannot simply hold that [Greer’s] failure to provide evidence of an essential element of [his] prima facie case is dispositive here.” Tisdale v. Fed. Express Corp., 415 F.3d 516, 529 (6th Cir. 2005). By no means does the Court consider as dispositive Plaintiff’s failure to establish an adverse employment action at the prima facie stage; it only notes the relevance of this analysis here. See Imwalle, 515 F.3d at 546 (“This is not to say . . . that a plaintiff’s failure to present evidence sufficient to make out a prima facie case is irrelevant . . . .”) (emphasis added); see also Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000) (courts may review “all of the evidence in the record,” including the evidence submitted for a plaintiff’s prima facie case); see Matsushita, 475 U.S. at 587 (courts must review the record “taken as a whole” and draw inferences in favor of the nonmovant). Indeed, and precisely because evidence—or lack thereof— at the prima facie stage is not dispositive as to the retaliation claim, the Court proceeds to conduct its causal connection analysis. 23 Case 2:19-cv-02525-MSN-tmp Document 70 Filed 07/01/22 Page 24 of 31 PageID 838 Mr. Greer’s job responsibilities and duties concluded that his job most closely aligned with that of an engineer.”26 (ECF No. 56 at PageID 701.) As discussed before, and germane here, just because Cummins’ personnel referred to Plaintiff as an “engineer” does not necessarily render him one— particularly when Plaintiff has not disputed that an employee with a non-technical local title may simultaneously hold an engineering GPP at Cummins. (ECF No. 57 at PageID 707.) Finally, Plaintiff asserts that, “[g]iven the temporal proximity between the complaints and the adverse employment action, coupled with other evidence of retaliatory conduct, there is sufficient evidence of the final element, the causal connection.” (ECF No. 57 at PageID 702.) However, Plaintiff cites no case law or facts in the record to corroborate this conclusory assertion. And, as with pro se plaintiffs, let alone counseled ones, “courts have no duty to guess at the nature of the argument or scour the record for supporting evidence” in the Title VII retaliation claims context.27 Hobson v. Austin, Case No. 21-5308, 2022 U.S. App. LEXIS 476, at *14 (6th Cir. 2022); Arendale v. City of Memphis, 519 F.3d 587, 601 (6th Cir. 2008) (“[C]onclusory statements are not sufficient to survive any motion for summary judgment.”). Therefore, without more, Plaintiffs’ claim that Defendant’s failure to promote him to an engineering title constituted retaliation is DISMISSED for lack of causal connection that proves fatal to his ability to plead a prima facie case. b. Wrongful Reassignment 26 That Plaintiff concedes Defendant conducted an “objective” evaluation severely undermines his argument that Defendant based its decision not to promote him on race. Indeed, the race-motivated denial of promotion that Plaintiff alleges occurred would most likely result from an evaluation laced with prejudice, not one approached with objectivity. 27 To the extent Plaintiff argues that the temporal proximity between the complaints and Defendant’s failure to promote him warrants a causal connection, he has failed to provide a scintilla of authority to corroborate his claim. Although Plaintiff’s burden to make a prima facie showing is “not onerous”, indeed it is even “a burden easily met,” nevertheless it does exist. See Griffin, 689 F.3d at 593 (plaintiff has a burden to “rebut, but not to disprove, the defendant’s proffered rationale); Nguyen, 229 F.3d at 565–66; Wingo v. Mich. Bell Tel. Co., 815 F. App’x at 45. 24 Case 2:19-cv-02525-MSN-tmp Document 70 Filed 07/01/22 Page 25 of 31 PageID 839 Second, as with the failure to promote claim, the first two analytical steps have been met because Plaintiff filed his EEOC Complaint, a protected activity, and Defendant knew that he did. The third step—whether Plaintiff’s reassignment at Cummins constituted an “adverse employment action”—also has not been established for the same two reasons the Court provided in the previous section for why Plaintiff failed to show that Defendant pretextually decided to reassign him based on his race.28 But, just as with his failure to promote retaliation claim, even if Plaintiff could establish that his reassignment constituted an adverse employment action, his claim still fails under the fourth Nguyen prong, namely whether “there was a causal connection between the protected activity and the adverse employment action.” Imwalle, 515 F.3d at 544 (citing EEOC v. Avery Dennison Corp., 104 F.3d 858, 860 (6th Cir. 1997 (emphasis added). To this end, Plaintiff “must produce sufficient evidence from which an inference could be drawn that the adverse action would not have been taken had the plaintiff not filed a discrimination action.” Nguyen, 229 F.3d at 563. Here, Plaintiff argues in his Declaration that “Cummins offered [him] a job position that substantially reduced [his] overall compensation because [he] continued to complain[] about being discriminated against.” (ECF No. 57 at PageID 722.) However, he does not dispute that Brian Small, Cummins’ Human Resources Director, “offered Plaintiff an additional salary increase— this time to nearly twenty-five percent—from $52,873.60 to $66,000, to account for any potential lost overtime earnings.” (ECF No. 57 at PageID 711.) Further, Plaintiff does not dispute that Small reevaluated Plaintiff’s new salary “at Plaintiff’s request” and that Plaintiff then accepted Small’s job offer “of Customer Quality Assurance Specialist with a GPP of Customer Quality Engineer and a non-engineering pay grade of CC01/P05.” (Id.) The Court cannot discern, nor has 28 See discussion, supra note 21. 25 Case 2:19-cv-02525-MSN-tmp Document 70 Filed 07/01/22 Page 26 of 31 PageID 840 Plaintiff explained, why an employment reassignment based on an assessment requested by the employee—that was later accepted by him—constitutes a materially adverse employment action. Taking all facts in favor of the nonmovant, Plaintiff has not provided any evidence that a reasonable juror could use to question: (a) the integrity of Small’s assessment,29 (b) the process he used to conclude that Plaintiff should be assigned the local title of Customer Quality Assurance Specialist with a non-engineering pay grade, (3) that he did not voluntarily accept the offer, or (4) whether his supervisors exhibited racial animus toward him. (See ECF No. 57 at 714.) Indeed, perhaps perplexingly in the context of what has been alleged in this lawsuit, Plaintiff accepted Small’s offer when he could have rejected it (as he had done on three previous occasions). Therefore, since Plaintiff has not produced sufficient evidence to support a reasonable inference that his reassignment occurred because he filed an EEOC Complaint, his retaliation claim based on wrongful reassignment is DISMISSED for lack of a causal connection that proves fatal to his ability to plead a prima facie case.30 c. Wrongful Termination 29 Plaintiff does mention that although Cummins’ Human Resources managers usually took notes when they investigate ethics complaints, Small did not take any such notes here. (ECF No. 57 at PageID 717.) However, Small explained that whether he takes notes during an investigation “depends on the scenario” and notes are generally taken once he has “validation that there’s an ethics violation or a concern of an ethics violation.” (Id.) Small distinguished Plaintiff’s complaint as one based on compensation and therefore distinct from an ethics violation complaint where notetaking was a more standard practice. (Id.) Plaintiff does not develop this argument further and nothing in the record suggests this lack of notetaking was determinative. 30 Although Plaintiff, according to his Declaration, (ECF No. 57 at PageID 722–23), does believe his reassignment and subsequent terminated occurred “in retaliation for filing a charge of discrimination with the EEOC and filing the instant lawsuit,” his ipse dixit alone does not immunize his case against summary judgment. See Mitchell v. Toledo Hosp., 964 F.2d 577, 585 (6th Cir. 1992) (“subjective beliefs . . . are wholly insufficient evidence to establish a claim of discrimination as a matter of law”). Defendant cites Mitchell for this proposition in its Motion, and Plaintiff did not distinguish it; thus, the Court finds no reason why it does not apply here. 26 Case 2:19-cv-02525-MSN-tmp Document 70 Filed 07/01/22 Page 27 of 31 PageID 841 Third, and finally, the Court considers whether Plaintiff has made a prima facie showing for his retaliation claim based on wrongful termination. (ECF No. 31 at PageID 201.) “To establish a prima facie claim of Title VII retaliation, [a plaintiff] must show: (1) that he engaged in a protected activity, (2) his exercise of such protected activity was known by [the defendant], (3) thereafter, [the defendant] took an action that was materially adverse to him, and (4) a causal connection existed between the protected activity and the materially adverse action.” Wingo, 815 F. App’x at 46. Here, Plaintiff engaged in a protected activity (filing his EEOC Complaint and this lawsuit) that Defendant knew about, (ECF No. 1-9 at PageID 81), and he suffered an adverse employment action (termination). Thus, the Court must only decide whether Plaintiff has presented sufficient evidence that supports a reasonable inference for a causal connection between his January 2020 termination and the EEOC Complaint that he filed on October 27, 2017 and, if so, whether Defendant’s reason(s) were legitimate or based on pretext rooted in discrimination. Plaintiff makes three arguments to support his allegation that “Defendant’s ultimate act of retaliation . . . was terminating him.” (ECF No. 56 at PageID 701.) First, that Alvin Richardson, the decisionmaker, “knew about Mr. Greer’s protected activity” and, second, that Richardson “based Mr. Greer’s selection for termination . . . on performance issues that are not documented anywhere in Mr. Greer’s personnel file and had no independent substantiation.” (Id.) Third, he alleges that “the temporal proximity between the complaints and the adverse employment action . . . is sufficient evidence of the final element, the causal connection.”31 (Id.) Defendant responds that Richardson32 decided to terminate Plaintiff, as one among several employees he laid off due 31 Plaintiff does not cite case law or to the Record, notwithstanding his own Declaration, to support any of these arguments. (ECF No. 56 at PageID 701–02.) 32 Defendant notes that, like Plaintiff, Richardson is an African American employee. 27 Case 2:19-cv-02525-MSN-tmp Document 70 Filed 07/01/22 Page 28 of 31 PageID 842 to Cummins’ reduction in force,33 based on: (1) a set of predetermined criteria and (2) the two years between the October 2017 EEOC Complaint and January 2020 termination being “too attenuated a connection to suggest [Plaintiff’s termination] was somehow retaliatory.” (ECF No. 62 at PageID 735.) Turning to Plaintiff’s first argument, even accepting as true that Richardson knew about Plaintiff’s EEOC Complaint at the time he authorized the termination does not necessarily mean that he terminated Plaintiff because he filed that Complaint. After all, any allegation that requires the Court to infer—without more specificity from Plaintiff—that Richardson terminated Plaintiff in retaliation for his EEOC Complaint simply because he knew about it is too “vague and generalized” to establish a causal connection. See Allen v. Michigan Dep’t of Corrections, 165 F.3d 405, 413 (6th Cir. 1999) (“conclusory allegations are insufficient to establish causation”). But the Court need not guess the reason why Richardson authorized Greer’s termination because Plaintiff does not dispute that Richardson based his decision on predetermined criteria.34 (ECF No. 57 at PageID 715.) Plaintiff altogether fails to discuss, let alone rebut, these criteria or their application to his termination in his Response. See DiCarlo, 358 F.3d at 414–15 (even on summary judgment, plaintiff retains the burden to “persuade the trier of fact that the defendant intentionally discriminated against the plaintiff.”) Therefore, Plaintiff’s first argument cannot establish a causal connection between the EEOC Complaint and the January 2020 termination and the Court is 33 The Parties do not dispute that the racial demographics for employees terminated in January 2020 from the RMP included two Caucasians, three African Americans (including Plaintiff), and one Hispanic individual. (ECF No. 57 at PageID 715–16.) 34 “The criteria included the employee’s performance rating, criticality of skill set or experience to business, skill or technical knowledge level, teamwork, right environment scores and the needs of the employee’s department.” (ECF No. 57 at PageID 715.) 28 Case 2:19-cv-02525-MSN-tmp Document 70 Filed 07/01/22 Page 29 of 31 PageID 843 convinced that Defendant’s reliance on its unchallenged predetermined criteria was legitimate. See Upshaw, 576 F.3d at 584. Next, Plaintiff argues that Richardson terminated him based on undocumented “performance issues” that lacked “independent substantiation”. (ECF No. 56 at PageID 701.) However, Plaintiff does not cite any basis for this conclusion; specifically, he does not identify the issues to which he refers, discuss why they require “independent substantiation”, or define that term. Nonetheless, a close inspection of Richardson’s deposition transcript reveals the line of questioning where this issue arises. (ECF No. 54 at PageID 533.) Richardson explained that he did not document Plaintiff’s performance issues in part because “it was information that [was] told to [him] previously by [Plaintiff’s] direct manager” and Cummins typically addresses such issues through Human Resources, meaning Richardson “did not have that information.” (Id.) Richardson explained that he terminated Plaintiff “based off the information [he] got from the manager . . . .” (Id.) According to this testimony, filed by Plaintiff, Richardson could not document information about Plaintiff’s performance issues that he did not have but was instead overseen by Plaintiff’s direct manager. It is unclear from the pleadings and the dearth of legal authority in this portion of Plaintiff’s Response why Richardson’s deferential reliance on the manager’s information about Greer’s performance issues constituted an inappropriate basis for termination.35 Therefore, without more, Plaintiff’s second argument also does not create a reasonable inference for a causal connection between the EEOC Complaint and the January 2020 termination and does not show Cummins’ predetermined criteria for reduction-in-force terminations were pretextual. 35 Plaintiff does not argue that anything about this process differed from standard practice at Cummins. If he had, perhaps the argument would have been stronger, however no such argument has been made here and the Court takes no position on a speculative claim. 29 Case 2:19-cv-02525-MSN-tmp Document 70 Filed 07/01/22 Page 30 of 31 PageID 844 Lastly, operative precedent in the Sixth Circuit forecloses Plaintiff’s temporal proximity argument. Defendant cites two cases in its Motion for the proposition that a causal connection exists only when the adverse employment action at issue occurred within a matter of months after the plaintiff engaged in protected activity. See Hafford v. Seidner, 183 F.3d 506, 515 (6th Cir. 1999); Gambill v. Duke Energy Corp., 456 F. App’x 578, 588–89 (6th Cir. 2012). Plaintiff does not attempt to distinguish or rebut these cases in his Response, offering instead only his ipse dixit— a decision fatal to his argument. Here, over two years passed between the time Plaintiff filed his EEOC Complaint (October 27, 2017) and his termination (January 8, 2020). The Sixth Circuit has found far shorter time periods insufficient to show temporal proximity in similar cases. See Hafford, 183 F.3d at 515 (“Absent additional evidence, this loose temporal proximity” of “disciplinary actions occur[ing] two to five months after Hafford filed charges” is “insufficient to create a triable issue.”); Cooper v. City of N. Olmstead, 795 F.2d 1265, 1272 (6th Cir. 1986) (“The mere fact that Cooper was discharged four months after filing a discrimination claim is insufficient to support an [inference] of retaliation.”). Therefore, Plaintiff’s third attempt to create a reasonable inference for causal connection fails as a matter of law, and his retaliation claims are DISMISSED.36 CONCLUSION For the foregoing reasons, Defendant’s Motion is hereby GRANTED. All claims against Defendant are DISMISSED WITH PREJUDICE. 36 It is worth noting that even if Plaintiff could establish temporal proximity, his claims would still fall short of the prima facie case and pretext required to survive summary judgment. “Proximity in time can raise a prima facie case of retaliatory discharge . . . . But proximity alone may not survive summary judgment . . . nor does it necessarily imply causation.” Chandler v. Specialty Tires of Am. (Tenn.), 283 F.3d 818, 826 (6th Cir. 2002) (emphasis added); see Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314 (6th Cir. 2001). 30 Case 2:19-cv-02525-MSN-tmp Document 70 Filed 07/01/22 Page 31 of 31 PageID 845 IT IS SO ORDERED this 1st day of July, 2022. s/ Mark Norris MARK S. NORRIS UNITED STATES DISTRICT JUDGE 31
=== 21-5620 ===
Case: 21-5620 Document: 25-2 Filed: 04/07/2022 Page: 1 NOT RECOMMENDED FOR PUBLICATION File Name: 22a0148n.06 No. 21-5620 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ERIC ANDERSON, Plaintiff-Appellant, v. TARGET STORES, INC., Defendant-Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE BEFORE: BATCHELDER, NALBANDIAN, and READLER, Circuit Judges. ALICE M. BATCHELDER, Circuit Judge. Eric Anderson worked for a Target Stores, Inc. department store in Tennessee. Citing fraudulent time-keeping practices, Target terminated his employment. Anderson sued Target in federal court, claiming gender, race, and age discrimination under Title VII and the ADEA. The district court granted summary judgment to Target. We AFFIRM. I. Eric Anderson is a 62-year-old African American male. In 2004, Anderson began working at a Target store as a Sales Floor Team Lead. In 2008, Anderson earned a promotion to Senior Team Leader. Anderson oversaw the Produce Department and led a team of approximately 15 Target employees. In 2016, Diana Morella, a Caucasian female, was Anderson’s direct supervisor. During that year, as Anderson and another employee tell it, Morella told Anderson of the “horror that she would feel if one of her daughters dated a black male.” In 2017, Morella said that several Case: 21-5620 Document: 25-2 Filed: 04/07/2022 Page: 2 No. 21-5620, Anderson v. Target employees began to complain to her about Anderson’s prolonged lunch and rest breaks, but Morella did not investigate these complaints. Morella supervised Anderson until 2018, when she moved into a position with Target’s Human Resources Department. Anderson never received a corrective action for any reason while under Morella’s supervision. Target replaced Morella with Hilary Jones, another Caucasian female. According to Anderson, he and Jones had a poor working relationship. For example, Anderson said that Jones would “embarrass” him by talking to him as if he were “an idiot” in front of his team. Anderson felt that Jones’s conduct towards him undermined his leadership with his team, causing his team members to underperform on their assignments. And, according to Anderson, things got so bad that he complained about Jones to Cliff Townsend, the Store Director. Morella said that after she assumed her new position with Human Resources, she continued to receive complaints about Anderson’s excessive lunch and rest breaks. These additional complaints, Morella said, prompted her to investigate the complaints against Anderson. Anderson recorded his working hours through use of a time clock. He would “punch in” his employee identification number at the start of the shift, before and after lunch break, and at the end of the shift. Target policy required employees to submit punch corrections if they did not punch in at the correct time or if the time-keeping system was not operating. Morella’s investigation found two punch corrections by Anderson that appeared to violate company policy. Morella asked Gary Alexander, an African American male and Executive Team Lead of Asset Protection, to investigate Anderson’s two punch corrections and review all of Anderson’s time punches for the thirty days prior to the punch corrections at issue. It was part of Alexander’s job to review employee punch corrections and investigate potential punch-correction violations. Alexander reviewed Anderson’s time punches, his punch 2 Case: 21-5620 Document: 25-2 Filed: 04/07/2022 Page: 3 No. 21-5620, Anderson v. Target corrections, and the store’s security video footage. The footage confirmed that during two shifts— February 26, 2018, and March 12, 2018—Anderson took longer breaks than allowed, and then later concealed his prolonged breaks by submitting fraudulent punch corrections. Alexander concluded that Anderson had violated Target’s meal-break policy, falsified company records, and committed time theft by submitting fraudulent punch corrections. On March 21, 2018, Morella and Jones asked Anderson about the punch corrections that appeared to violate company policy. Anderson did not deny the false punch corrections, and he told them that he was confused about the whole matter. On March 23, Townsend, Morella, and Jones met with Anderson and asked him for an explanation of the false punch corrections. Anderson said that he could not remember what happened on those days. On March 26, Anderson’s employment was terminated at a meeting with Townsend, Morella, and Jones present. At the time, Anderson was 60 years old. Following the meeting, Morella said to Anderson: “I bet you wish you had retired now.” Anderson received a separation notice that confirmed his termination of employment and stated that the reasons for his termination were “[v]iolation of company policy” and “falsifying company documentation.” Anderson neither denied the results of Alexander’s investigation nor explained why he submitted false punch corrections. Anderson sued Target in federal court, bringing claims under federal law for gender, race, and age discrimination. The district court granted summary judgment to Target, and Anderson timely appealed. 3 Case: 21-5620 Document: 25-2 Filed: 04/07/2022 Page: 4 No. 21-5620, Anderson v. Target II. A. Standard of Review “We review the district court’s grant of summary judgment de novo.” Romans v. Mich. Dep’t of Hum. Servs., 668 F.3d 826, 835 (6th Cir. 2012). A defendant moving for summary judgment must demonstrate the “absence of a genuine issue of material fact” in all essential elements of the plaintiff’s claims. Celotex Corp. v. Catrett, , 323 (1986). We draw all reasonable inferences in favor of the plaintiff. See Anderson v. Liberty Lobby, Inc., , 255 (1986). And unless the plaintiff “show[s] specific facts that reveal a genuine issue for trial,” Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014), the defendant is entitled to summary judgment, Catrett, 477 U.S. at 322–23. B. Evidentiary Issues We start first with Anderson’s evidentiary challenges. Over Anderson’s objection, the district court deemed several facts as admitted from Target’s statement of undisputed facts. On appeal, Anderson challenges the district court’s rulings on these facts. The district court’s rulings with regard to these facts are evidentiary rulings, and as such, we review them for an abuse of discretion. See Briggs v. Potter, 463 F.3d 507, 511 (6th Cir. 2006). “A district court abuses its discretion when it relies on erroneous findings of fact, applies the wrong legal standard, misapplies the correct legal standard when reaching a conclusion, or makes a clear error of judgment.” Id. (citation omitted). We conclude that the district court did not abuse its discretion by deeming these facts as admitted. Start with Fact 32 and Fact 33. According to these statements of fact, two African American employees complained to Morella about Anderson’s taking prolonged breaks and lunches. Anderson denied both facts, referring to a paragraph from his own affidavit, and asserting 4 Case: 21-5620 Document: 25-2 Filed: 04/07/2022 Page: 5 No. 21-5620, Anderson v. Target that Morella mentioned complaints only from Caucasian employees. The district court deemed these facts as admitted for two reasons. First, Anderson’s denial did not refute Target’s statements of fact that Morella received complaints from other employees. And second, Anderson relied on deposition testimony not in the record. The paragraph that Anderson relies on from his affidavit does not deny, refute, or even address the complaints from African American employees about Anderson’s prolonged breaks and lunches. Rather, it relates to complaints from Caucasian employees that Anderson gave the hardest jobs to them. Furthermore, in violation of the local rules, Anderson does not provide a specific citation to Morella’s deposition. See Local Rule 56.1(b) (“Each such disputed fact shall be set forth in a separate, numbered paragraph with specific citations to the record supporting the contention that such fact is in dispute.”). Therefore, in deeming Fact 32 and Fact 33 as admitted, the district court did not abuse its discretion. We turn next to Fact 35, which asserted that Morella, while not initially confronting Anderson about the complaints regarding his prolonged breaks, decided to address the issue after she received more complaints. Anderson denied this fact, stating that Morella testified that she confronted Anderson about the complaints only after the security video was reviewed. The district court deemed Fact 35 as admitted because Anderson’s response was unresponsive to Target’s assertion of fact, and Anderson relied on deposition testimony not in the record. We find no error in the district court’s ruling. Morella testified that the continued complaints about Anderson’s prolonged breaks and lunches prompted her to address the issue by investigating the complaints, not to confront Anderson about them. Because Anderson’s denial does not refute Morella’s actions in addressing the complaints of Anderson’s prolonged breaks, the district court rightly deemed the fact as admitted. 5 Case: 21-5620 Document: 25-2 Filed: 04/07/2022 Page: 6 No. 21-5620, Anderson v. Target We turn to Fact 40. This statement of fact asserted that because two punch corrections by Anderson appeared to violate company policy, Target’s investigation of Anderson’s prolonged breaks focused on whether he had falsified company documentation. Anderson denied this fact, asserting that “Morella’s intent to discriminatorily terminate the Plaintiff” caused the investigation. The district court deemed this fact as admitted because Anderson’s denial did not refute the assertion and it contained a legal conclusion that made the objection improper. We find no error in the district court’s ruling. Anderson’s denial does not refute the fact of the investigation, but asserts only that Morella’s discriminatory intent caused the investigation. But whether Morella’s discriminatory intent caused the investigation does not refute the fact of the investigation’s occurrence or that the investigation turned to whether Anderson had falsified company documentation. Therefore, the district court did not abuse its discretion by deeming Fact 40 as admitted. That takes us to Fact 57. This statement of fact asserted that Townsend, an African American male, summoned Anderson to his office to question him about his punch corrections. It also asserted that Anderson could not explain the punch corrections because he could not remember. Relying on his own affidavit, Anderson denied this statement of fact, arguing that because Townsend is a Caucasian male, the entire statement of fact is false. The district court deemed this fact as admitted because Anderson’s denial did not attempt to refute any other assertion of fact in the statement. We agree with the district court. Even if Anderson’s denial refuted Target’s assertion that Townsend is an African American male, it does not follow that this denial refuted Target’s description of what occurred during Anderson’s visit to Townsend’s office. Therefore, the district court did not abuse its discretion by deeming Fact 57 as admitted. 6 Case: 21-5620 Document: 25-2 Filed: 04/07/2022 Page: 7 No. 21-5620, Anderson v. Target That leaves Fact 60. This statement of fact asserted that Jones was neither involved in the investigation of Anderson’s prolonged breaks nor in the decision to terminate Anderson’s employment. The district court deemed this fact as admitted because Anderson relied on deposition testimony not before the court. However, even if Anderson’s denial properly refuted Fact 60, it is immaterial because the outcome of this case does not depend on this statement of fact. See 1704 Farmington v. City of Memphis, 437 F. App’x 387, 390 (6th Cir. 2011) (finding that the district court did not abuse its discretion because the challenged statements of fact did not “command a different disposition of the case”). Therefore, the district court did not abuse its discretion by deeming this fact as admitted. In sum, the district court did not abuse its discretion by deeming any of these facts as admitted. C. Gender Discrimination Anderson claims that Target discriminated against him because of his gender in violation of Title VII. Because Anderson’s gender discrimination claim relies on indirect evidence of discrimination, we apply the McDonnell Douglas burden-shifting framework. See Risch v. Royal Oak Police Dep’t, 581 F.3d 383, 390 (6th Cir. 2009); Miles v. S. Cent. Hum. Res. Agency, Inc., 946 F.3d 883, 887 (6th Cir. 2020). The initial burden is on Anderson to establish his prima facie case for gender discrimination. See McDonnell Douglas Corp. v. Green, , 802 (1973). If Anderson establishes his prima facie case, the burden shifts to Target to offer a legitimate, nondiscriminatory reason for Anderson’s termination. See id. If Target offers a legitimate reason, the burden shifts back to Anderson to show that the proffered reason was pretext for discrimination. See id. at 804. 7 Case: 21-5620 Document: 25-2 Filed: 04/07/2022 Page: 8 No. 21-5620, Anderson v. Target To establish his prima facie case of discrimination, Anderson must show that he was “(1) a member of a protected class, (2) subject to an adverse employment action, (3) qualified for the position, and (4) replaced by a person outside the protected class or treated differently than similarly situated . . . employees.” Tennial v. United Parcel Serv., Inc., 840 F.3d 292, 303 (6th Cir. 2016). For the fourth prong, he “must show that the defendant treated minority employees who were similarly situated to the plaintiff more favorably than he was treated.” MacEachern v. Quicken Loans, Inc., No. 17-1005, 2017 WL 5466656, at *3 (6th Cir. Oct. 17, 2017) (citing Sutherland v. Mich. Dep’t of Treasury, 344 F.3d 603, 614 (6th Cir. 2003 . Here, Target contests only the fourth element—that Target treated Anderson differently from a similarly situated female employee. To qualify as similarly situated, the comparator employee “must be similar in all of the relevant aspects.” Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998) (quotation marks omitted). The relevant aspects usually include whether the comparator employees had the same supervisor, worked under the same standards, and engaged in the same conduct as the plaintiff. Id. The district court concluded that Anderson’s proffered comparator female employee, Brenda Holliday-Lewis, was not similarly situated to Anderson because the two did not engage in the “same relevant conduct.” The district court explained that Anderson failed to establish that Holliday-Lewis received complaints similar to those that Anderson received, or that Holliday- Lewis submitted fraudulent punch corrections. “Without this evidence establishing that Ms. Holliday-Lewis engaged in similar conduct yet received different treatment, the Court has no marker by which to gauge [Target’s] conduct.” We agree with the district court. On appeal, Anderson points out that Maria McGhee, a former Target “Human Resources Executive,” said that she saw Holliday-Lewis fixing time punches to comply with Target’s meal- 8 Case: 21-5620 Document: 25-2 Filed: 04/07/2022 Page: 9 No. 21-5620, Anderson v. Target break policy. But Anderson does not explain how Holliday-Lewis’s correcting of time punches shows that she was accused of taking prolonged breaks as Anderson was, or that Target investigated her for prolonged breaks that later turned up evidence of fraudulent punch corrections. Devoid of facts that show similar complaints about Holliday-Lewis and a similar investigation of her, the district court rightly concluded that Anderson “failed to establish that Ms. Holliday-Lewis is an appropriate comparator.” Anderson also points to four other Target employees whom Target terminated for fraudulent punch corrections as similarly situated comparators to Anderson. But these employees cannot be relevant comparators simply because Target terminated their employment for fraudulent punch corrections. For these comparator employees to be relevant, Anderson had to show that Target treated them more favorably than they treated Anderson. But he cannot do so because Target terminated their employment just as Target terminated Anderson’s employment. Therefore, Anderson failed to establish his prima facie case for reverse gender discrimination, and we need not address his claims that Target’s reasons for discharging him were pretextual. D. Racial Discrimination Anderson claims that Target discriminated against him because of his race in violation of Title VII. On appeal, Anderson’s argument claiming racial discrimination relies only on direct evidence. Direct evidence “does not require a factfinder to draw any inferences in order to conclude that the challenged employment action was motivated at least in part by” unlawful discrimination. Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir. 2003). Indeed, the proffered direct evidence must “compel[] the conclusion that unlawful discrimination was at least a 9 Case: 21-5620 Document: 25-2 Filed: 04/07/2022 Page: 10 No. 21-5620, Anderson v. Target motivating factor in the employer’s actions.” Kuhn v. Washtenaw County, 709 F.3d 612, 624 (6th Cir. 2013) (quotation marks omitted). Anderson offers as direct evidence Morella’s comment from 2016, in which she told Anderson that she would be disgusted if her daughters dated African American men. The district court found that the lapse of time between that comment and Anderson’s termination of employment in 2018 cut against its probative value as direct evidence of racial animus. The district court also found that the comment related to “hypothetical social relationships” that required several inferences to establish the comment as direct evidence of unlawful discrimination in the termination of Anderson’s employment. We agree with the district court. “Isolated and ambiguous comments are insufficient to support a finding of direct discrimination.” White v. Columbus Metro. Hous. Auth., 429 F.3d 232, 239 (6th Cir. 2005). Morella’s alleged comment was isolated from the events that led to Anderson’s termination of employment by time and context. Indeed, it would require several inferences over the course of several years and across varying contexts to conclude that it played even a motivating factor in Target’s decision to terminate Anderson’s employment. This the direct evidence standard does not permit. See, e.g., Igwe v. Salvation Army, 790 F. App’x 28, 34 (6th Cir. 2019) (finding that the employer’s comments did not relate to the issues that led to the adverse employment action). Therefore, Morella’s alleged comment does not provide sufficient direct evidence of racial discrimination. On appeal, Anderson argues that the district court’s analysis was too narrow in its examination of Anderson’s proffered evidence. Anderson argues that the district court erred by deeming Morella’s dating comment to have no probative value or relevance. But Anderson misunderstands the district court’s conclusion, which was that Morella’s comment had little 10 Case: 21-5620 Document: 25-2 Filed: 04/07/2022 Page: 11 No. 21-5620, Anderson v. Target probative value as direct evidence of unlawful discrimination, not that it lacked any probative value at all or that it was inadmissible. In fact, the district court considered Morella’s comment and provided sound reasons for its conclusion that the comment did not provide sufficient direct evidence of unlawful discrimination. On appeal, Anderson emphasizes four other facts as direct evidence of unlawful discrimination. First, he says that Morella directed him to assign the hard jobs to African American employees. Second, he points to Morella’s “unsubstantiated” claim that she received complaints about Anderson’s taking prolonged breaks. Third, he points to Morella’s asking him not to address another employee’s complaint against Anderson that he had sexually harassed the employee. Fourth, he offers Jones’s claim that she did not know the race of the employee who replaced Anderson after Target terminated Anderson’s employment. But these facts fail to qualify as direct evidence. The first fact fails for the same reason that Morella’s 2016 comment about her daughters’ dating African American men fails—it was too isolated by time and context. The remaining facts fail because they do not even suggest racial animus on the part of Morella. See Worthy v. Mich. Bell Tel. Co., 472 F. App’x 342, 348 (6th Cir. 2012) (finding that statements “not clearly reflective” of racial bias failed to qualify as direct evidence of racial bias). The district court concluded as much, and Anderson does not provide any reasons that overcome that conclusion. Therefore, Anderson has failed to establish sufficient direct evidence of racial discrimination. E. Age Discrimination Anderson’s final claim is that Target discriminated against him because of his age, in violation of the ADEA. The ADEA prohibits terminating an individual’s employment “because of such individual’s age.” 29 U.S.C. § 623(a)(1). “This requires showing that age was the 11 Case: 21-5620 Document: 25-2 Filed: 04/07/2022 Page: 12 No. 21-5620, Anderson v. Target determinative reason they were terminated . . . .” Pelcha v. MW Bancorp, Inc., 988 F.3d 318, 324 (6th Cir. 2021); see also Gross v FBL Fin. Servs., Inc., 557 U.S. 167, 177–78 (2009) (“A plaintiff must prove by a preponderance of the evidence . . . that age was the ‘but for’ cause of the challenged employer decision.”). The plaintiff can use either direct or indirect evidence for his ADEA claim. See Tennial, 840 F.3d at 305. Anderson raises two arguments on appeal, one that uses direct evidence and the other that uses indirect evidence. Anderson’s direct evidence argument fails because he did not raise it before the district court. Forfeiture is the “failure to make the timely assertion of a right.” United States v. Olano, 507 U.S. 725, 733 (1993). Parties must raise their arguments before the district court to preserve them for appeal. See Greer v. United States, 938 F.3d 766, 770 (6th Cir. 2019). Because Anderson raises his direct evidence argument for the first time on appeal, he forfeited that argument. While it could be argued that a failure to raise a related argument of the same claim with the same factual basis does not necessarily amount to a forfeiture, see, e.g., Roberts v. Coffee County, 826 F. App’x 549, 555 n.4 (6th Cir. 2020), that is not the case here. An ADEA claim using direct evidence requires different elements and a different analysis from an ADEA claim using indirect evidence. See Pelcha, 988 F.3d at 324–25 (contrasting the elements of both types of ADEA claims). Therefore, because the ADEA claim using direct evidence is not merely an “offshoot” of the ADEA claim using indirect evidence, Anderson forfeited the direct evidence argument that he raises now. See Ohio State Univ. v. Redbubble, Inc., 989 F.3d 435, 444–45 (6th Cir. 2021) (deeming an argument as unpreserved and forfeited because, although the claim had the same factual basis as the preserved claims, it involved different elements). Even if Anderson did not forfeit his direct evidence argument, it still fails on the merits. His argument relies on two pieces evidence: First, that Jones, as a decisionmaker involved in 12 Case: 21-5620 Document: 25-2 Filed: 04/07/2022 Page: 13 No. 21-5620, Anderson v. Target terminating Anderson’s employment, told another employee that she planned to replace Anderson with a younger person; and second, that at the termination meeting, Morella, also a decisionmaker involved in terminating Anderson’s employment, told Anderson, “I bet you wish you had retired now.” Neither of these constitutes sufficient direct evidence. We start with Jones’s statement. Even granting Anderson’s contention that Jones involved herself in the decision to terminate Anderson, he fails to show that Jones’s statement related to the “decisional process” that resulted in Anderson’s termination of employment. See Bush v. Dictaphone Corp., 161 F.3d 363, 369 (6th Cir. 1998) (citation omitted). Anderson does not offer any evidence that Jones made this statement during the investigation of Anderson’s punch corrections, the several meetings that Jones and others had with Anderson related to his punch corrections, or during the decisional process that resulted in Anderson’s termination of employment. Therefore, Jones’s statement, wholly disconnected from these events, cannot constitute direct evidence. See Geiger v. Tower Auto., 579 F.3d 614, 621–22 (6th Cir. 2009) (finding no direct evidence in statements by supervisor that were not connected to the decision to terminate the plaintiff’s employment). Morella’s statement fares no better because it alone cannot prove that age was “the determinative reason” that Target terminated Anderson. Pelcha, 988 F.3d at 324. Indeed, several facts cut against a “but-for” causal connection between Anderson’s age and his termination. See Gross, 557 U.S. at 178. First, as the district court pointed out, Alexander, not Morella, conducted the investigation that ultimately found that Anderson submitted fraudulent punch corrections. Second, Townsend, Target’s Store Director, was involved in the termination decision. Notably, Anderson has not set forth any facts that suggest age-bias on either Alexander’s or Townsend’s part. Third and finally, the fact that Anderson committed a fireable offense by submitting 13 Case: 21-5620 Document: 25-2 Filed: 04/07/2022 Page: 14 No. 21-5620, Anderson v. Target fraudulent time corrections—a fact that Anderson neither denies nor rebuts—indicates that Target would have terminated his employment absent Morella’s statement. Morella’s lone statement fails to establish age discrimination as the determinative factor in Anderson’s termination of employment. Therefore, Anderson’s direct evidence argument is without merit. Anderson’s indirect evidence argument is without merit too. We analyze ADEA claims using indirect evidence under the McDonnell Douglas burden-shifting framework. See Pelcha, 988 F.3d at 324–25. Still, the ultimate burden of persuasion in an ADEA claim remains with the plaintiff. See Gross, 557 U.S. at 177. Anderson has established his prima facie case because Target replaced Anderson with an employee who is in his thirties. Yet Target offered legitimate, nondiscriminatory reasons for firing Anderson—namely, that he was fired for “[v]iolation of company policy” and “falsifying company documentation.” That leaves Anderson with the burden to show that Target’s reasons were pretext for age discrimination. To show pretext, the plaintiff must show that the employer’s stated reason “had no basis in fact, did not actually motivate the defendant’s challenged conduct, or was insufficient to motivate the defendant’s challenged conduct.” Schoonmaker v. Spartan Graphics Leasing, LLC, 595 F.3d 261, 268 (6th Cir. 2010). Anderson has failed to show that Target’s stated reason was pretext for age discrimination. As noted, Anderson does not deny or rebut the fact that he submitted fraudulent punch corrections, the very basis for Target’s decision to terminate Anderson’s employment. As to actual motivation, Anderson can rely only on statements by Jones and Morella that are either unrelated to the termination decision, or insufficient to show that age was the determinative reason for Target’s termination decision. Finally, as to insufficient motivation, Target company policy states that Anderson’s conduct can result in termination of employment. And Anderson fails to point to any 14 Case: 21-5620 Document: 25-2 Filed: 04/07/2022 Page: 15 No. 21-5620, Anderson v. Target employee who did what Anderson did but retained his or her employment. In fact, Target terminated the employees whom Anderson offers as comparators because they submitted fraudulent punch corrections. As the district court noted, this argument gets it “backwards.” Therefore, Anderson failed to establish sufficient direct or indirect evidence for his age discrimination claim. III. For the foregoing reasons, we AFFIRM the judgment of the district court. 15
=== 19-2694 ===
Case 2:19-cv-02694-MSN-cgc Document 39 Filed 09/21/21 Page 1 of 24 PageID 647 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ______________________________________________________________________________ KELLY BRUMLEY, Plaintiff, v. CORRECT CARE SOLUTIONS, LLC and BILL KISSEL, Defendants. Case No. 2:19-cv-2694-MSN-cgc JURY DEMAND ______________________________________________________________________________ ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Before the Court is Defendants’ Motion for Summary Judgment (“Motion”) (ECF No. 13) filed April 6, 2020. Plaintiff responded in opposition on May 4, 2020. (ECF No. 15.) Defendants filed a reply in support of their Motion on May 18, 2020. (ECF No. 20.) For the reasons set forth below, Defendants’ Motion is GRANTED. BACKGROUND Before diving into the facts specific to Plaintiff’s claim, a short recitation of the procedural background and identification of the primary individuals involved is necessary. Originally, this matter contained two plaintiffs—Kelly Brumley (“Plaintiff”) and her former coworker, Crystal Tucker (“Ms. Tucker”). Plaintiff and Ms. Tucker are former employees of Defendant Correct Care Solutions, LLC, now named Wellpath, LLC1 (“Defendant Wellpath”). Defendant Wellpath provides medical professionals to jails and prisons across the country to care 1 After Plaintiff’s separation, Defendant Correct Care Solutions, LLC underwent a corporate name change to Wellpath, LLC. (ECF No. 14 at PageID 94 n. 1.) Case 2:19-cv-02694-MSN-cgc Document 39 Filed 09/21/21 Page 2 of 24 PageID 648 for incarcerated individuals. (ECF No. 16 at PageID 285.) At all times relevant to Plaintiff’s lawsuit, Defendant Wellpath contracted with the Shelby County Health Department (“County”) to provide medical services to inmates housed at the Shelby County Division of Corrections on Mullins Station Road in Memphis, TN (“DOC”). (Id.) In the First Amended Complaint, Ms. Tucker alleged claims under Title VII for discrimination based on sex and race and retaliatory discharge and also claims under § 1981 for race discrimination and retaliatory discharge. (ECF No. 3 at PageID 19–22.) Plaintiff’s claims in the First Amended Complaint were for retaliatory discharge under Title VII and retaliatory discharge under § 1981. (Id.) This Court dismissed Ms. Tucker’s and Plaintiff’s Title VII claims as time barred. (See ECF No. 6.) This Court also ordered that Plaintiff’s and Ms. Tucker’s claims be severed into separate actions. (Id.) Therefore, after severance, Plaintiff’s retaliatory discharge claim pursuant to § 1981 is the only claim remaining in this matter. Defendant Wellpath initially hired Plaintiff as the Nurse Educator at the DOC on November 28, 2011. (ECF No. 16 at PageID 287.) As the Nurse Educator, Plaintiff was responsible for conducting orientation for new employees and providing continuing education to Defendant Wellpath’s employees. (Id.) At that time, Plaintiff reported to Director of Nursing (“DON”) Anita Barbee (“Ms. Barbee”). (Id.) Ms. Barbee reported to Health Services Administrator (“HSA”) Gary Soileau (“Mr. Soileau”). (Id.) Later, in April 2015, Janice Staggs- Webb (“Ms. Staggs-Webb”) was hired as the new DON. (Id. at PageID 290.) Mr. Soileau was suspended sometime in May 2015 and was subsequently terminated, and in July 2015, Ms. Staggs- Webb became the HSA at DOC. (Id.) At all relevant times, Bill Kissel (“Defendant Kissel”) was the Regional Vice President, Jail Operations for Defendant Wellpath. (ECF No. 3 at PageID 14.) 2 Case 2:19-cv-02694-MSN-cgc Document 39 Filed 09/21/21 Page 3 of 24 PageID 649 In October 2013, Plaintiff’s Nurse Educator position was eliminated. (ECF No. 16 at PageID 287.) However, at the time Plaintiff’s position was eliminated, a position for a Continuous Quality Improvement (“CQI”) Nurse became available due to realignment of Defendant Wellpath’s contract with the County. (Id.) Mr. Soileau advised Plaintiff she should apply for the CQI Nurse position, and after interviewing Plaintiff, Mr. Soileau offered her the position, which she accepted on November 1, 2013. (Id. at PageID 287–88.) As the CQI Nurse, Plaintiff was responsible for Defendant Wellpath’s infection control program and served as Defendant Wellpath’s liaison to the DOC regarding infection control issues. (Id. at PageID 288.) Plaintiff was also required to “[m]aintain confidentiality with inmate and personnel records” and “[p]romote [an] environment of positive attitude, challenging professionalism, and enthusiasm for daily tasks.” (Id.) At the same time Plaintiff’s Nurse Educator position was eliminated, the Assistant Director of Nursing position held by Plaintiff’s coworker, Ms. Tucker, was also eliminated. (ECF No. 3 at PageID 16.) On July 17, 2014, Ms. Tucker filed a charge with the Equal Employment Opportunity Commission (“EEOC”) alleging discrimination and retaliation. (Id.; ECF No. 20 at PageID 421.) On July 21, 2014, Plaintiff assisted Ms. Tucker with her EEOC charge by providing a statement in support of Ms. Tucker’s EEOC charge. (ECF No. 20 at PageID 422; ECF No. 16 at PageID 296–97.) Plaintiff never provided her written statement to Mr. Soileau or Ms. Barbee. (ECF No. 16 at PageID 297.) However, Plaintiff believes that Mr. Soileau received a copy of Plaintiff’s written statement via email from the Director of DOC, Rod Bowers (“Mr. Bowers”). (Id.) After Mr. Soileau was terminated, Plaintiff accessed Mr. Soileau’s emails and specifically retrieved the email from Mr. Bowers to Mr. Soileau regarding Ms. Tucker’s EEOC charge. (Id.) However, the email contained only Ms. Tucker’s EEOC charge and did not include Plaintiff’s written statement. 3 Case 2:19-cv-02694-MSN-cgc Document 39 Filed 09/21/21 Page 4 of 24 PageID 650 (Id.) Mr. Soileau testified that he could not remember how he became aware that Plaintiff had supported Ms. Tucker’s EEOC charge. (ECF No. 20-2 at PageID 527.) Around August 5, 2014, Plaintiff alleges she was threatened by Mr. Soileau when he came to her office and stated, “If you want to become successful, you surround yourself with good people . . . and if you want to be unsuccessful, you surround yourself with unsuccessful people. So people should always be cautious about the company they keep . . . .” (ECF No. 17-1 at PageID 320.) Mr. Soileau testified that he did not remember this specific conversation with Plaintiff, but that he would talk with Plaintiff frequently about his belief that “successful people surround themselves with successful people.” (ECF No. 20-2 at PageID 528.) Plaintiff also alleges that after she gave her statement supporting Ms. Tucker’s EEOC charge, she was subjected to retaliation in that she was assigned additional tasks that were the responsibility of other employees, she was refused a phone stipend, she was given extra on-call scheduling, she was given inappropriate write-ups, she was excluded from meetings that were important to her job responsibilities, and she was eventually terminated from her job. (ECF No. 3 at PageID 17; ECF No. 16 at PageID 297–98.) As to the extra “on call” scheduling, Ms. Barbee told Plaintiff that her on-call status was extended because Plaintiff had missed her on-call rotation the prior week. (ECF No. 16 at PageID 298.) Ms. Barbee also explained to Plaintiff that her not being included in particular meetings was unintentional. (Id.) Plaintiff also alleges she received a decreased score on her annual performance evaluation as a result of supporting Ms. Tucker’s EEOC charge, and that the decreased score had a “negative impact” on her “ability to obtain future promotions.” (ECF No. 20 at PageID 429, 431.) However, Plaintiff cites to nothing in the record supporting how or if Defendant Wellpath utilized 4 Case 2:19-cv-02694-MSN-cgc Document 39 Filed 09/21/21 Page 5 of 24 PageID 651 performance evaluations in assessing promotions, and Plaintiff testified that she received a two percent raise in connection with the evaluation, which was consistent with raises she received after previous performance evaluations. (ECF No. 20-1 at PageID 467.) Plaintiff also alleges that she was retaliated against by Kathy Duke (“Ms. Duke”), Mr. Soileau’s administrative assistant. (ECF No. 20 at PageID 431.) She alleges that Ms. Duke was acting at Mr. Soileau’s direction. (Id.) Plaintiff alleges that on or around July 13, 2015 during a meeting with Ms. Staggs-Webb and Regional Nurse Manager Lisa Mason (“Ms. Mason”), that Ms. Staggs-Webb and Ms. Mason told her that Ms. Duke “admitted that she was acting in a retaliatory manner at the direction of Mr. Soileau and that she knew [Plaintiff] was being treated unfairly.” (Id. at PageID 435.) In support of her contentions, Plaintiff has submitted an audio recording she made of her meeting with Ms. Staggs-Webb and Ms. Mason. (See Exhibit M-001, ECF No. 17-1 at PageID 381.) However, Plaintiff’s description of the conversation as reflected on the recorded audio is not entirely accurate. In the meeting, Plaintiff is told that Ms. Duke said “Gary (Mr. Soileau) instigated a lot of the stuff,” and Ms. Duke “admitted that [Plaintiff] was not treated fairly.” (Id. at 7:45.) The conversation does not reflect details as to what “stuff” was being referred to, and there is nothing indicating that Ms. Duke said she was acting at the direction of Mr. Soileau, or that any action taken by Ms. Duke was done in “retaliation.” Later in the same conversation, Plaintiff references that her issues with Ms. Duke have being going on for three and a half years. (Id. at 46:57.) Plaintiff can also be heard stating, “Kathy (Ms. Duke) is just Kathy, but one day when I stood up to her in front of Gary (Mr. Soileau), from then on, she just hated me.” (Id. at 47:56.) Throughout Plaintiff’s employment, she received warnings related to her attendance. (ECF No. 16 at PageID 288.) Plaintiff received attendance-related discipline on the following dates: 5 Case 2:19-cv-02694-MSN-cgc Document 39 Filed 09/21/21 Page 6 of 24 PageID 652 September 17, 2012; November 12, 2012; June 24, 2013; July 19, 2013; August 28, 2013; December 9, 2012; January 29, 2015; April 8, 2015; and April 24, 2015. (Id.) Defendant Wellpath also received two calls on its Ethics and Compliance Reporting hotline related to Plaintiff’s conduct, which resulted in Plaintiff receiving a verbal and then written warning. The first call was on November 6, 2014, and the caller stated that Plaintiff had been “constantly belittling him/her,” and that Plaintiff had been “pushing her work” onto the caller, and that the caller believed Plaintiff was “trying to find things to get him/her written up.” (ECF No. 16 at PageID 288–89.) Plaintiff does not dispute that this complaint was made but disputes the contents of the caller’s accusations. (Id.) Plaintiff received a verbal warning as a result of this hotline complaint. (Id. at PageID 289.) The second hotline call was received on March 2, 2015. (Id.) The caller reported that Plaintiff was “always mean and rude” and had “hung up the phone in the caller’s face” when the employee called in to report being absent due to an illness. (Id.) Plaintiff does not dispute that the complaint was made but disputes the contents of the caller’s accusations. Plaintiff received a written warning as a result of this hotline complaint, which noted that Plaintiff had received a verbal warning regarding similar behavior previously. (Id. at PageID 289–90.) On April 28, 2015, another coworker, Licensed Practical Nurse Angela Catron (“Ms. Catron”), also made a complaint against Plaintiff in an email to Mr. Soileau. (Id. at PageID 290.) Ms. Catron’s email described instances where she believed that Plaintiff had violated her confidentiality with respect to medical issues and was attempting to get Ms. Catron terminated. (Id.) Ms. Catron’s email described Plaintiff’s actions as “very unprofessional” and said Plaintiff had created a hostile work environment. (Id.) Plaintiff does not dispute that Ms. Catron sent an email to Mr. Soileau, but Plaintiff asserts that there was an ulterior motive behind Ms. Catron’s 6 Case 2:19-cv-02694-MSN-cgc Document 39 Filed 09/21/21 Page 7 of 24 PageID 653 email. (Id.) Specifically, Plaintiff asserts that she observed Ms. Catron engaged in inappropriate behavior with an inmate and reported Ms. Catron’s behavior several days prior to Ms. Catron’s email. (Id. at PageID 291.) Shortly thereafter, another employee reported to Plaintiff’s supervisor, Ms. Staggs-Webb, that Plaintiff had accessed other employees’ personnel files and was telling employees about other employees’ compensation and salary information. (Id.) It was also reported to Ms. Staggs-Webb that Plaintiff was spreading rumors that Ms. Duke was allegedly having an affair and Plaintiff had attempted to “friend” Ms. Duke’s husband on Facebook to inform him of the affair. (Id. at PageID 291–92.) Plaintiff disputes that she accessed personnel files, and instead claims she learned the information about employees’ compensation through a meeting with Ms. Staggs-Webb in which raises for employees were discussed and because paperwork for another employee was “in plain sight” on Ms. Staggs-Webb’s desk. (ECF No. 16 at PageID 291–92.) Plaintiff also denies that she ever spread any rumors about Ms. Duke. (Id. at PageID 292.) Based on the reports received by Ms. Staggs-Webb, Defendant Wellpath requested that employees submit written statements. (Id.) On July 28, 2015, Ms. Duke submitted a written statement indicating that a coworker had reported to Ms. Duke that Plaintiff had said Ms. Duke was having an affair and that Plaintiff was attempting to friend Ms. Duke’s husband on Facebook to tell him about the alleged affair. (Id. at PageID 292–93.) Ms. Duke’s statement also reported that Plaintiff had repeatedly called Licensed Practical Nurse Christy Jones (“Ms. Jones”) with work-related questions while Ms. Jones was off work. (Id.) Ms. Duke’s statement also stated that many coworkers were concerned about Plaintiff accessing personnel files and personal information. (Id.) 7 Case 2:19-cv-02694-MSN-cgc Document 39 Filed 09/21/21 Page 8 of 24 PageID 654 On July 29, 2015, Ms. Jones submitted a written statement saying that Plaintiff had called her personal cell phone and told her, “you need to ask for more money because I know for a fact that the others are making more money than you.” (Id. at PageID 293.) Ms. Jones’ statement alleged that Plaintiff had specifically told her about the pay of two other coworkers. (Id.) On July 30, 2015, Licensed Practical Nurse Carla Hawkins (“Ms. Hawkins”) provided a written statement saying that Plaintiff had told Ms. Hawkins that Plaintiff had accessed a coworker’s file and that the coworker was making $2.50 more an hour than Ms. Hawkins. (Id. at PageID 293–94.) Registered Nurse DeShannon Williams (“Ms. Williams”) also submitted a written statement accusing Plaintiff of inappropriate behavior and having knowledge of Ms. Williams’ hourly rate and discussing it with others. (Id. at PageID 294.) Plaintiff does not dispute that her coworkers submitted written statements, but she generally denies the allegations contained therein. (Id.at PageID 292–94.) Plaintiff also asserts that she informed her colleagues of the differences in pay because she wished to encourage her female coworkers to demand an increase in pay equal to that of a male colleague. (Id.) On August 5, 2015, Plaintiff was called into an office with Ms. Staggs-Webb and Ms. Mason. (Id. at PageID 295.) Plaintiff was told that Employee Relations Specialist Julie Lindsey was also on the phone. (Id.) Plaintiff was advised that her employment was being suspended pending an investigation. (Id.) Plaintiff alleges that during this meeting, she was advised that she was being suspended for asking employees to support her EEOC claim and for informing female employees that they were not being paid equal to their male colleagues in similar positions. (ECF No. 20 at PageID 441.) In support of this contention, Plaintiff has submitted a small portion of this meeting that she secretly recorded. (See Exhibit M-002, ECF No. 17-1 at PageID 381.) 8 Case 2:19-cv-02694-MSN-cgc Document 39 Filed 09/21/21 Page 9 of 24 PageID 655 However, Plaintiff’s contentions about what was said in the meeting are not entirely accurate. On the recording, the first part of the meeting is cut off, but after Plaintiff asks what the accusations are, an unknown speaker replies, “it’s been reported that there’s phone calls to people at home just about . . . things of a personal nature, personal pay, personal business, and spreading of rumors, we’ve discussed that part, and just causing a disharmony in the facility with the nurses amongst themselves.” (Id.) That same day, Plaintiff was provided a Disciplinary Action Form reflecting a “Summary of the Incident” that provides “Employee created disharmony and discord in the workplace by gossiping and speaking disparagingly about team members to other team members.” (ECF No. 20-1 at PageID 502.) Plaintiff retained legal counsel following her suspension, and after discussions about whether Plaintiff would return to work following her suspension proved unsuccessful, Plaintiff’s employment was terminated effective October 23, 2015. (ECF No. 16 at PageID 296.) Ms. Staggs-Webb recommended termination of Plaintiff’s employment, which was subsequently approved. (Id.) STANDARD OF REVIEW Federal Rule of Civil Procedure 56 permits a party to move for summary judgment — and the Court to grant summary judgment — “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party asserting the presence or absence of genuine issues of material facts must support its position either by “citing to particular parts of materials in the record,” including depositions, documents, affidavits or declarations, stipulations, or other materials, or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). In ruling 9 Case 2:19-cv-02694-MSN-cgc Document 39 Filed 09/21/21 Page 10 of 24 PageID 656 on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., , 587 (1986); Nat’l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence, judge the credibility of witnesses, or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., , 249 (1986). The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, , 323 (1986). The moving party may discharge this burden either by producing evidence that demonstrates the absence of a genuine issue of material fact or simply “by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325. Where the movant has satisfied this burden, the nonmoving party cannot “rest upon its . . . pleadings, but rather must set forth specific facts showing that there is a genuine issue for trial.” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009) (citing Matsushita, 475 U.S. at 586; Fed. R. Civ. P. 56). The nonmoving party must present sufficient probative evidence supporting its claim that disputes over material facts remain and must be resolved by a judge or jury at trial. Anderson, 477 U.S. at 248–49 (citing First Nat’l Bank of Ariz. v. Cities Serv. Co., (1968 ; see also White v. Wyndham Vacation Ownership, Inc., 617 F.3d 472, 475–76 (6th Cir. 2010). A mere scintilla of evidence is not enough; there must be evidence from which a jury could reasonably find in favor of the nonmoving party. Anderson, 477 U.S. at 252; Moldowan, 578 F.3d at 374. The Court’s role is limited to determining whether there is a genuine dispute about a material fact, that is, if the evidence in the case “is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. Such a determination requires that the 10 Case 2:19-cv-02694-MSN-cgc Document 39 Filed 09/21/21 Page 11 of 24 PageID 657 Court “view the evidence presented through the prism of the substantive evidentiary burden” applicable to the case. Id. at 254. Thus, if the plaintiff must ultimately prove its case at trial by a preponderance of the evidence, on a motion for summary judgment the Court must determine whether a jury could reasonably find that the plaintiff’s factual contentions are true by a preponderance of the evidence. See id. at 252–53. Finally, if the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the movant is entitled to summary judgment. Celotex, 477 U.S. at 323. The Court must construe Rule 56 with due regard not only for the rights of those “asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury,” but also for the rights of those “opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.” Id. at 327. DISCUSSION The Court reviews § 1981 claims using the same analytical framework as Title VII claims. Tennial v. United Parcel Service, Inc., 840 F.3d 292, 302 (6th Cir. 2016); Wade v. Knoxville Utilities Bd., 259 F.3d 452, 464 (6th Cir. 2001); Johnson v. Univ. of Cincinnati, 215 F.3d 561, 573 n.5 (6th Cir. 2000) (“The elements of prima facie case as well as the allocations of the burden of proof are the same for employment claims stemming from Title VII and § 1981.”). “A plaintiff in a Title VII . . . action may establish retaliation either by introducing direct evidence of retaliation or by proffering circumstantial evidence that would support an inference of retaliation.” Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 543 (6th Cir. 2008). “Direct evidence is that evidence which, if believed, requires no inferences to conclude that unlawful retaliation was a motivating factor in the employer’s action.” Id. at 543–44. 11 Case 2:19-cv-02694-MSN-cgc Document 39 Filed 09/21/21 Page 12 of 24 PageID 658 “Circumstantial evidence, on the other hand, is proof that does not on its face establish [unlawful] animus, but does allow a factfinder to draw a reasonable inference that [unlawful activity] occurred” Ondricko v. MGM Grand Detroit, LLC, 689 F.3d 642, 649 (6th Cir. 2012). Plaintiff cites no direct evidence of retaliation and instead relies on circumstantial evidence.2 When a plaintiff advances a circumstantial case for retaliation, the McDonnell Douglas evidentiary framework used to assess discrimination claims applies. Imwalle, 515 F.3d at 544. The plaintiff has the initial burden to establish a prima facie case of retaliation by showing that (1) she engaged in protected activity; (2) this exercise of her protected activity was known to the defendant; (3) the defendant thereafter took an employment action adverse to the plaintiff; and (4) there was a causal connection between the protected activity and the adverse employment action. Id. “[W]hen it comes to federal antidiscrimination laws like § 1981 . . . a plaintiff must demonstrate that, but for the defendant’s unlawful conduct, [the] alleged injury would not have occurred.” Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media, 140 S. Ct. 1009, 1014 (2020) (“This ancient and simple ‘but for’ common law causation test, we have held, supplies the ‘default’ or ‘background’ rule against which Congress is normally presumed to have legislated when creating its own new causes of action.”). If plaintiff meets her burden of demonstrating a prima facie case of retaliation, the burden of production shifts to the defendant to provide a legitimate, nondiscriminatory reason for its actions. Imwalle, 515 F.3d at 562. Once the defendant meets its burden of producing a legitimate, nondiscriminatory reason, the burden of production shifts back to the plaintiff to demonstrate pretext. Id. The plaintiff may do so by demonstrating: “(1) the stated reason had no basis in fact; 2 The Court also notes that both parties proceed as if direct evidence of retaliation is lacking in this case. 12 Case 2:19-cv-02694-MSN-cgc Document 39 Filed 09/21/21 Page 13 of 24 PageID 659 (2) the stated reason was not the actual reason; and (3) that the stated reason was insufficient to explain Defendant’s action.” Logan v. Denny’s, Inc., 259 F.3d 558, 567 (6th Cir. 2001). “[A] reason cannot be proved to be ‘a pretext for discrimination’ unless it is shown both that the reason was false, and that discrimination was the real reason.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993) (emphasis in original). “To survive summary judgment a plaintiff need only produce enough evidence to support a prima facie case and to rebut, but not to disprove, the defendant’s proffered rationale.” Griffin v. Finkbeiner, 698 F.3d 584, 593 (6th Cir. 2012) (quoting Blair v. Henry Filters, Inc., 505 F.3d 517, 532 (6th Cir. 2007 . A. Plaintiff’s Prima Facie Case Defendants argue that Plaintiff’s claim of retaliation pursuant to § 1981 fails because Plaintiff cannot establish a prima facie case. This Court agrees because Plaintiff has failed to present evidence of a causal connection between her protected activity and the alleged adverse employment actions. 1. Protected Activity or Conduct As an initial matter, there is some dispute over the breadth of Plaintiff’s protected activity or conduct at issue. In the Amended Complaint, Plaintiff avers that she was discharged in retaliation for submitting a statement in support of Ms. Tucker’s EEOC charge. (See ECF No. 3 at PageID 18.) This is also consistent with Plaintiff’s deposition testimony. (ECF No. 20-1 at PageID 468). Defendants do not dispute that this constitutes protected activity for purposes of Plaintiff’s retaliation claim. However, in her response to Defendant’s Motion, Plaintiff alleges additional acts of protected activity or conduct, including: (1) filing her own EEOC charge; (2) informing Mr. Soileau and Ms. Barbee that she believed Ms. Duke was retaliating against her by falsely stating 13 Case 2:19-cv-02694-MSN-cgc Document 39 Filed 09/21/21 Page 14 of 24 PageID 660 that Plaintiff was not submitting reports in a timely manner; (3) reporting Ms. Duke to Ms. Staggs- Webb and Ms. Mason for other alleged retaliatory acts by Ms. Duke; and (4) informing female coworkers that a male coworker was being compensated at a higher hourly rate. (See ECF No. 15 at PageID 275–76.) For purposes of Plaintiff’s § 1981 retaliation claim, her only protected activity is her submission of a statement of support for Ms. Tucker’s EEOC claim. The remaining activities Plaintiff alleges are not protected under § 1981 because they do not relate to racial discrimination. See Jones v. Continental Corp., 798 F.2d 1225, 1231 (6th Cir. 1986) (“federal law is quite clear that § 1981 prohibits only race discrimination . . . .”). Accordingly, Plaintiff’s only protected activity for purposes of her retaliation claim under § 1981 is her submission of a statement in support of Ms. Tucker’s EEOC charge. This is sufficient to satisfy the first prong of a prima facie case. 2. Exercise of Protected Activity Known to the Defendant The parties make no argument regarding whether Defendant Wellpath had knowledge of Plaintiff’s protected activity. Therefore, for the purposes of deciding the Motion, the Court assumes Defendant Wellpath had knowledge of Plaintiff’s protected activity, and Plaintiff has satisfied the second prong of a prima facie case. 3. Adverse Employment Action In the discrimination context, an adverse employment action is “a materially adverse change in the terms and conditions of [a plaintiff’s] employment” such as “hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Redlin v. Gross Pointe Pub. Sch. Sys., 921 F.3d 599, 607 (6th Cir. 2019) (first quoting Spees v. James Marine, Inc., 617 F.3d 380, 391 (6th Cir. 2010); then quoting 14 Case 2:19-cv-02694-MSN-cgc Document 39 Filed 09/21/21 Page 15 of 24 PageID 661 White v. Baxter Healthcare Corp., 533 F.3d 381, 402 (6th Cir. 2008 . However, an adverse employment action in the retaliation context is broader than in the discrimination context. See Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 345 (6th Cir. 2008). It is “not limited to an employer’s actions that solely affect the terms, conditions or status of employment, or only those acts that occur at the workplace.” Id. An adverse employment action for a retaliation claim is one that “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). The antiretaliation provisions of Title VII, which provide the analytical framework for review of this § 1981 claim, see, e.g., Tennial, 840 F.3d at 302, “protect[ ] an individual not from all retaliation, but from retaliation that produces an injury . . . .” Burlington, 548 U.S. at 67. The type or severity of injury required to dissuade a reasonable worker from making or supporting a charge of discrimination has been described in different terms. In Burlington, the Supreme Court gave an example of an action that could be sufficiently injurious because it impacted “the employee’s professional advancement . . . .” Id. at 69. Some Sixth Circuit cases have followed this example. See Szeinbach v. Ohio State Univ., 493 F. App’x 690, 695 (6th Cir. 2012) (denying summary judgment because there were disputed material facts about whether an investigation “had a significant negative impact on [the plaintiff’s] professional advancement”); Lahar v. Oakland Cty., 304 F. App’x 354, 357 (6th Cir. 2008) (reprimands were not an adverse employment action because there was no evidence that they “affected [plaintiff’s] . . . prospects for advancement”). Some Sixth Circuit cases describe the required action as something more specifically injurious. See Cregget v. Jefferson Cty. Bd. of Educ., 491 F. App’x 561, 566 (6th Cir. 2012) (“A written reprimand, without evidence that it led to a materially adverse consequence such as lowered pay, demotion, suspension, or the like, is not a materially adverse employment action.”). 15 Case 2:19-cv-02694-MSN-cgc Document 39 Filed 09/21/21 Page 16 of 24 PageID 662 Again, there is a dispute between the parties regarding what incidents constitute “adverse employment actions” for purposes of Plaintiff’s retaliation claim. Defendant Wellpath does not dispute that Plaintiff’s termination on October 23, 2015 constitutes an adverse employment action for purposes of her retaliation claim. However, Plaintiff asserts she also suffered the following adverse employment actions, which Defendant Wellpath disputes are adverse actions: (1) threats by her supervisor, Mr. Soileau; (2) Mr. Soileau’s refusal to approve a cell phone allowance; (3) removal from meetings and conference calls that were directly relevant to Plaintiff’s ability to perform her job; (4) assignment of additional job duties meant to inundate Plaintiff with more work than she could finish; (5) manipulation of Plaintiff’s payroll records by Ms. Duke; (6) anonymous complaints about Plaintiff to Defendant Wellpath’s Ethics and Compliance Reporting hotline; (7) increased general disciplinary write-ups; (8) a significant decrease in Plaintiff’s score for her annual performance review; and (9) denied the opportunity to interview for promotions to Health Services Administrator or Director of Nursing. (ECF No. 15 at PageID 277–78.) Plaintiff provides no details regarding most of these alleged adverse actions. Specifically, Plaintiff fails to provide any details as to how she was injured by Mr. Soileau’s alleged threats; her removal from meetings or conference calls; the assignment of additional job duties; manipulation of her payroll records by Ms. Duke; the anonymous complaints to the Ethics and Compliance Reporting hotline about her; the disciplinary write-ups; or the decrease in her performance review score. Plaintiff received a verbal, then a written, warning related to the calls received on Defendant Wellpath’s Ethics and Compliance Reporting hotline. However, verbal warnings are not materially adverse consequences, see Finley v. City of Trotwood, 503 F. App’x 449, 454 (6th Cir. 2012), and Plaintiff has not cited any evidence in the record supporting that the written 16 Case 2:19-cv-02694-MSN-cgc Document 39 Filed 09/21/21 Page 17 of 24 PageID 663 warning injured her. Further, Plaintiff testified that despite the decrease in her performance review score, she received a two percent raise, which was consistent with raises she received after her other performance reviews. (ECF No. 20-1 at PageID 467.) Hence, Plaintiff’s decreased performance review score is not an adverse action. See White v. Baxter Healthcare Corp., 533 F.3d 381, 402 (6th Cir. 2008) (“plaintiff must point to a tangible employment action that she alleges she suffered, or is in jeopardy of suffering, because of the downgraded evaluation”). As to the other alleged adverse actions, Plaintiff provides no context, without which there is no way to discern whether Plaintiff was harmed by any of these incidents. Plaintiff does not point to any evidence that any of these actions affected Plaintiff’s professional advancement, or resulted in lowered pay, demotion, suspension, or the like. The alleged denial of the phone allowance by Mr. Soileau also does not rise to the level of an adverse action. Plaintiff admits that she does not know whether a CQI nurse prior to her ever had a phone allowance (see ECF No. 14-1 at PageID 178), and Plaintiff eventually received the phone allowance (see ECF No. 17-1 at PageID 322). Plaintiff does not allege that the delay in receiving the phone allowance impacted her professional advancement or otherwise injured her. The delay in receiving the phone allowance is a “trivial harm,” and is not the type of action severe enough to “dissuade a reasonable worker from making or supporting a charge of discrimination.” Burlington, 548 U.S. at 57. Finally, as to the opportunity to interview for the Health Services Administrator (“HSA”) and Director of Nursing (“DON”) positions, the Court finds these could be adverse actions because they affected Plaintiff’s professional advancement. However, Plaintiff’s assertion that she was denied an opportunity to interview for the DON position is not supported by the record. Plaintiff’s Declaration cited in support of this assertion merely states that Ms. Mason informed Plaintiff she 17 Case 2:19-cv-02694-MSN-cgc Document 39 Filed 09/21/21 Page 18 of 24 PageID 664 could apply for the DON position, and Plaintiff expressed that she was interested in applying for the position. Plaintiff cites to nothing in the record regarding denial of an interview for the DON position. Therefore, the Court will not consider Plaintiff’s assertion that she was denied an opportunity to interview for the DON position. However, Plaintiff’s termination and the denial of an opportunity to interview for the HSA position satisfy the third prong of a prima facie case because they constitute adverse employment actions. 4. Causal Connection Plaintiff has satisfied the first three prongs of her prima facie case; however, Plaintiff has failed to demonstrate that there is a causal connection between her protected activity and either her termination or the denial of an opportunity to interview for the HSA position. The causal connection between the protected activity and the adverse employment action may be demonstrated in two ways: (1) through direct evidence; or (2) “through knowledge coupled with a closeness in time that creates an inference of causation . . . .” Nguyen v. City of Cleveland, 229 F.3d 559, 566 (6th Cir. 2000) (quoting Parnell v. West, No. 95-2131, 1997 WL 271751, at *2 (6th Cir. 1997 . Where an adverse employment action occurs very close in time after an employer learns of a protected activity, such temporal proximity between the events is significant enough to constitute evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation. But where some time elapses between when the employer learns of a protected activity and the subsequent adverse employment action, the employee must couple temporal proximity with other evidence of retaliatory conduct to establish causality. Mickey v. Zeidler Tool & Tie Co., 516 F.3d 516, 525 (6th Cir. 2008). “To establish a causal connection between the protected activity and the adverse employment action, a plaintiff must present evidence ‘sufficient to raise the inference that [her] protected activity was the likely reason for the adverse action.’” In re Rodriguez, 487 F.3d 1001, 1011 (6th Cir. 2007) (quoting Walcott 18 Case 2:19-cv-02694-MSN-cgc Document 39 Filed 09/21/21 Page 19 of 24 PageID 665 v. City of Cleveland, 123 F. App’x 171, 178 (6th Cir. 2005) (quoting EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997 . As to Plaintiff’s termination, Plaintiff provided her statement in support of Ms. Tucker’s EEOC charge on July 21, 2014. (ECF No. 16 at PageID 296.) Plaintiff was initially suspended pending an investigation into reports of inappropriate behavior on August 5, 2015, and her employment was ultimately terminated on October 23, 2015. (Id. at PageID 295–96.) Thus, the protected activity occurred more than one year before Plaintiff’s termination. This, without more, does not establish sufficient temporal proximity to support a finding of causation. However, Plaintiff alleges she “was subjected to a repeated pattern of retaliation over the span of a year,” and that these incidents coupled with the timing of her termination supply the requisite causal connection. This Court disagrees. As discussed previously, Plaintiff provides no details or context regarding the alleged adverse actions she claims support an inference of a causal connection between her statement in support of Ms. Tucker’s EEOC charge and her termination over a year later. With only vague accusations, this Court cannot infer that Plaintiff’s protected activity was the “but for” cause of any adverse employment actions. To the extent Plaintiff relies on her recorded conversation with Ms. Staggs-Webb and Ms. Mason to show a causal connection between any actions taken by Ms. Duke and Plaintiff’s protected activity, her argument fails. The recording reflects an ongoing personal animus between Plaintiff and Ms. Duke and that Plaintiff believed Ms. Duke was “out to get her” and was attempting to undermine her job performance. However, Plaintiff has not submitted any evidence from which this Court could infer that Ms. Duke’s actions were in retaliation for Plaintiff’s support of Ms. Tucker’s EEOC charge, and nothing in the recording supports this conclusion. In fact, Plaintiff’s own statements on the recording suggest her feud with Ms. Duke predated Plaintiff’s 19 Case 2:19-cv-02694-MSN-cgc Document 39 Filed 09/21/21 Page 20 of 24 PageID 666 support of Ms. Tucker’s EEOC charge and stemmed from her “standing up” to Ms. Duke in front of Mr. Soileau. Therefore, Plaintiff has failed to demonstrate a causal connection between her protected activity and her termination. Plaintiff also fails to establish a causal connection between her protected activity and the denial of an opportunity to interview for the HSA position. Plaintiff does not provide a specific date as to when the denial of the interview opportunity occurred, but it appears likely it was sometime between May 2015, when Mr. Soileau was initially suspended, and July 2015, when Ms. Staggs-Webb became the HSA. (See ECF No. 16 at PageID 290.) Again, this loose temporal proximity of 10 months to a one year is insufficient to support a finding of causation. Additionally, Plaintiff acknowledges she is unable to show who the ultimate decision-maker was regarding interviews for the HSA position, but she believes it was a collaborative effort between the County, DOC, and Defendant Wellpath (see ECF No. 20-1 at PageID 485–86), which also cuts against a finding of a causal connection. In the absence of a causal connection, Plaintiff’s prima facie case for her retaliation claim necessarily fails and Defendant Wellpath is entitled to summary judgment on Plaintiff’s retaliation claim. B. Pretext for Retaliation Further, even if Plaintiff were able to make out a prima facie case of retaliation, Plaintiff cannot demonstrate that Defendant Wellpath’s proffered legitimate, nondiscriminatory reasons for Plaintiff’s termination were pretext for retaliation. Defendant Wellpath asserts that Plaintiff was terminated for causing disharmony in the workplace because she was inappropriately disclosing confidential personnel information about her coworkers and was allegedly attempting to reveal a coworker’s alleged affair to that coworker’s husband. (ECF No. 14-1 at PageID 115–18.) 20 Case 2:19-cv-02694-MSN-cgc Document 39 Filed 09/21/21 Page 21 of 24 PageID 667 Defendant Wellpath has submitted evidence that its actions were based upon statements submitted by Plaintiff’s coworkers. (ECF No. 16 at PageID 292–96.) Although Plaintiff disputes many of the allegations set forth in her coworkers’ statements, she does not dispute that her coworkers in fact submitted such statements. (Id.) Defendant Wellpath asserts that Plaintiff’s behavior in disclosing confidential personnel information about her coworkers was contrary to Plaintiff’s requirement to “[m]aintain confidentiality with inmate and personnel records” as set forth in the job description signed by Plaintiff. (ECF No. 16 at PageID 294.) In response, Plaintiff says she “disputes that it is inappropriate to report instances in which she believes employees are being treated differently because of their gender.” (Id. at PageID 295.) Plaintiff cannot create a question of fact regarding Defendant Wellpath’s stated reason for her termination by asserting her subjective belief that her conduct did not violate the requirements of her job description. The Sixth Circuit has stated that “disputes about the interpretation of company policy do not typically create genuine issues of fact regarding whether a company’s stated reason for an adverse employment action is a pretext designed to mask unlawful discrimination.” Sybrandt v. Home Depot, 560 F.3d 553, 558–59 (6th Cir. 2009). The Sybrandt court relied on the “honest belief rule,” which provides that “as long as an employer has an honest belief in its proffered nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was pretextual simply because it is ultimately shown to be incorrect.” Id. at 559 (quoting Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001 . Nevertheless, a court must “not blindly accept an employer’s alleged business judgment in the face of a claim of discrimination.” Philbrick v. Holder, 583 F. App’x 478, 486–87 (6th Cir. 2014) (citing Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 576 (6th Cir. 2003 . To rely 21 Case 2:19-cv-02694-MSN-cgc Document 39 Filed 09/21/21 Page 22 of 24 PageID 668 on the honest belief rule, the employer must show “that it made a ‘reasonably informed and considered decision.’” Id. (citing Smith v. Chrysler Corp., 155 F.3d 799, 806 (6th Cir. 1998 . There is insufficient evidence from which a jury could find pretext in this case. Based upon Ms. Catron’s email to Mr. Soileau and other reports received by Ms. Staggs-Webb, Defendant Wellpath requested that employees submit written statements regarding Plaintiff’s actions, which resulted in five coworkers submitting statements. Plaintiff was subsequently suspended pending an investigation into her behavior and was ultimately terminated several months later. Accordingly, Defendant Wellpath has shown that its decision to terminate Plaintiff was a “reasonably informed and considered decision.” Plaintiff, on the other hand, has not provided evidence supporting an inference that Defendant Wellpath’s proffered reason “had no basis in fact,” that it “did not actually motivate the employer’s conduct,” or that it was “insufficient to warrant the challenged conduct.” White v. Columbus Metro. Housing Auth., 429 F.3d 232, 245 (6th Cir. 2005). Thus, even if Plaintiff had made out a prima facie case for retaliation, Defendant Wellpath has proffered legitimate, nondiscriminatory reasons for its actions, and Plaintiff has not shown those reasons were pretext for retaliation. Defendant Wellpath is therefore entitled to summary judgment on Plaintiff’s retaliation claim on this basis as well. C. Claims Against Defendant Kissel Intentional race discrimination is prohibited under 42 U.S.C. § 1981 in the “‘making and enforcing of contracts involving both public and private actors,’ including ‘the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.’” Johnson v. Fed. Express Corp., No. 2:14-cv-02511-STA-dkv, 2015 U.S. Dist. LEXIS 139470, at *43 (W.D. Tenn. Oct. 14, 2015) (quoting Amini v. Oberlin, 400 F.3d 350, 358 (6th Cir. 2006 . The analysis and conclusions 22 Case 2:19-cv-02694-MSN-cgc Document 39 Filed 09/21/21 Page 23 of 24 PageID 669 “concerning the Title VII claims apply equally to parallel claims brought under § 1981.” Jackson v. Bd. Of Educ. of Memphis City Sch. Of Memphis, Tenn., 494 F. App’x 539, 543 n. 1 (6th Cir. 2012). A § 1981 claim is “essentially the same as that of a claim under Title VII, [but] the two differ in one particular respect . . . — individual liability.” Wagner v. Merit Distrib., 445 F. Supp. 2d 899, 909 (W.D. Tenn. 2006) (citing Allen v. Ohio Dep’t of Rehab. & Corr., 128 F. Supp. 2d 483, 495 (S.D. Ohio 2001 . To establish individual liability under § 1981, the individual defendant must have been personally involved in the discriminatory action. Wagner, 445 F. Supp. 2d at 909 (citing Allen, 128 F. Supp. 2d at 495). Failure to act may constitute direct involvement for purposes of discrimination under § 1981 if the person failing to act has knowledge of the alleged discriminatory action. Wright v. Memphis Police Ass’n, No. 14-2913-STA-dkv, 2015 U.S. Dist. LEXIS 67507, at *19 (W.D. Tenn. May 26, 2015); see also Wagner, 445 F. Supp. 2d at 909 (explaining the Second Circuit’s decision and adopting the view that, even without direct involvement, gross negligence in the supervision of subordinates and failure to act may constitute personal involvement); Patterson v. County of Oneida, N.Y., 375 F.3d 206, 226 (2d Cir. 2004). First, the Court notes that in her response in opposition to Defendants’ Motion for Summary Judgment, Plaintiff failed to respond to Defendants’ arguments concerning individual liability for Defendant Kissel. The Sixth Circuit’s position on a plaintiff’s abandonment of a claim is well established. “[A] plaintiff is deemed to have abandoned a claim when a plaintiff fails to address it in response to a motion for summary judgment.” Brown v. VHS of Mich., Inc., 545 F. App’x 368, 372 (6th Cir. 2013) (citing Hicks v. Concorde Career Coll., 449 F. App’x 484, 487 (6th Cir. 2011) (holding that a district court properly declines to consider the merits of a claim when a plaintiff fails to 23 Case 2:19-cv-02694-MSN-cgc Document 39 Filed 09/21/21 Page 24 of 24 PageID 670 address it in a response to a motion for summary judgment); Clark v. City of Dublin, 178 F. App’x 522, 524–25 (6th Cir. 2006) (recognizing that the failure to respond properly to motion for summary judgment arguments constitutes abandonment of a claim . As Plaintiff never addresses Defendants’ arguments concerning Defendant Kissel’s personal liability in her response to their Motion for Summary Judgment, she is deemed to have abandoned that claim. Accordingly, Defendant Kissel is entitled to judgment as a matter of law on the § 1981 retaliation claim against him. Nevertheless, even considering the claim, Plaintiff’s response does not contain any facts to support that Defendant Kissel was personally involved in either of the adverse actions here. Nor did Plaintiff put forth evidence to show that Defendant Kissel had knowledge of the adverse actions but failed to act. Accordingly, Plaintiff has failed to establish a prima facie case for retaliation against Defendant Kissel, and he is entitled to summary judgment. CONCLUSION For the reasons set forth above, Defendants’ Motion for Summary Judgment is GRANTED. All claims in this matter against Defendant Wellpath and Defendant Kissel are DISMISSED WITH PREJUDICE. IT IS SO ORDERED, this 21st day of September 2021. s/ Mark S. Norris MARK S. NORRIS UNITED STATES DISTRICT JUDGE 24
=== 19-2889 ===
Case 2:19-cv-02889-MSN-cgc Document 34 Filed 06/25/21 Page 1 of 33 PageID 573 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN SECTION ______________________________________________________________________________ ERIC A. ANDERSON, Plaintiff, v. TARGET STORES, INC., Defendant. No. 2:19-cv-02889-MSN-cgc ______________________________________________________________________________ ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Before the Court is Defendant Target Stores, Inc.’s Motion for Summary Judgment, (ECF No. 27), filed on March 15, 2021.1 Plaintiff submitted his response in opposition on April 12, 2021. (ECF No. 30.) Defendant then filed its reply on April 26, 2021. (ECF No. 31.) For the reasons below, the Court GRANTS Defendant’s motion. Background This case involves allegations of workplace discrimination due to race, age, and gender. (See generally ECF No. 8.) Plaintiff Eric A. Anderson, a 62-year old Black male,2 began working for Defendant Target Stores, Inc. (“Target” or “Defendant”) as a Sales Floor Team Lead in August 2004. (ECF No. 30-1 at PageID 321–22; ECF No. 30-21 at PageID 453.) He was later promoted to Senior Team Leader-Food (“STL-Food”) in November 2008 and continued in that position until 1. Defendant identifies itself as “Target Corporation,” rather than “Target Stores, Inc.” (ECF No. 27 at PageID 74.) The difference has no bearing on the Court’s analysis. 2. Plaintiff was sixty (60) years old at the time of his termination. (ECF No. 31-2 at PageID 545.) Case 2:19-cv-02889-MSN-cgc Document 34 Filed 06/25/21 Page 2 of 33 PageID 574 his termination on March 26, 2018. (Id. at PageID 322.) As the STL-Food, Plaintiff’s primary job responsibilities included overseeing produce, establishing routines, and training employees. (Id.; see also ECF No. 27-6.) It is undisputed that team leads, like Plaintiff, were held to a higher standard than regular team members. (ECF No. 30-1 at PageID 323.) Indeed, along those lines, Plaintiff asserts that he wanted his “work and behavior to exemplify honesty, hard work and trust[.]” (ECF No. 30-21 at PageID 453.) A. Procedural Background Plaintiff commenced this matter alleging discrimination based on his race and gender in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and discrimination based on his age in violation of Age Discrimination in Employment Act (“ADEA”) on December 28, 2019. (ECF No. 6.) Plaintiff then filed his amended complaint on December 30, 2019. (ECF No. 8.) Defendant filed its motion for summary judgment on March 15, 2021. (ECF No. 27.) Plaintiff then filed his response on April 12, 2021. (ECF No. 30.) Defendant filed its reply on April 26, 2021. (ECF No. 31). In conjunction with the filing of its reply, Defendant also filed a motion to strike certain portions of Plaintiff’s affidavit submitted with his response. (ECF No. 32 at PageID 563.) Plaintiff filed his response in opposition to Defendant’s motion to strike on May 3, 2021. (ECF No. 33.) B. Interactions with Ms. Morella and Ms. Jones During his tenure, Plaintiff reported to Diana Morella and Hillary Jones. Starting in either 2014 or 2016,3 Diana Morella, a 59-year old White female, became Plaintiff’s direct supervisor. 3. The parties dispute when Ms. Morella became Plaintiff’s direct supervisor. (ECF No. 30-1 at PageID 322.) Regardless of the timing, it is undisputed that Ms. Morella was one of Plaintiff’s supervisors at the time of his termination and at all relevant times. (See ECF No. ECF No. 27-12 at PageID 255; ECF No. 31-2 at PageID 534.) More important, as part of his objection to Defendant’s Statement of Facts, Plaintiff cites deposition testimony of Ms. Morella (Morella 2 Case 2:19-cv-02889-MSN-cgc Document 34 Filed 06/25/21 Page 3 of 33 PageID 575 (ECF No. 30-1 at PageID 322.) Ms. Morella continued in that role until her transition into a job in Human Resources. (Id.) Ms. Morella did not issue any corrective action against Plaintiff during her stint as his direct supervisor. (Id. at PageID 323.) Defendant asserts that as part of Ms. Morella’s supervisory duties, Ms. Morella would meet with the executive team every Monday to discuss scheduling. (ECF No. 31-2 at PageID 535–36.) Plaintiff further adds that he would meet with Ms. Morella every other Monday. (ECF No. 31-2 at PageID 535–36.) Plaintiff asserts that Ms. Morella would discuss complaints made by White team members at these bi-weekly meetings. (ECF No. 31-2 at PageID 535–36.) It is undisputed that Ms. Morella would relay the concerns from White team members that Plaintiff assigned them the hardest jobs. (ECF No. 31-2 at PageID 535–36.) In turn, Ms. Morella suggested that Plaintiff assign those jobs to Black team members. (ECF No. 31-2 at PageID 536.) Sometime in 2016, Ms. Morella approached Plaintiff and another Target employee, Tyler Cain (a Black male), while they were doing store inventory. (ECF No. 31-2 at PageID 534–35.) The exact content of the conversation that occurred between Ms. Morella, Plaintiff, and Mr. Cain is disputed by the parties. (ECF No. 31-2 at PageID 534–35.) Plaintiff contends that Ms. Morella discussed the “horror that she would feel if one of her daughters dated a black male.” (ECF No. depo. p. 19). (See ECF No. 30-1 at PageID 322.) The Court, however, cannot find the deposition testimony Plaintiff relies on after searching the record. In other words, Plaintiff has not presented that testimony to the Court so the Court cannot confirm whether it supports (or contradicts for that matter) Plaintiff’s assertion. The Court will not deem it a proper objection if either party relies on evidence not properly before the Court. See Fed. R. Civ. P. 56(c), (e); see also Akines v. Shelby Cty. Gov’t, 512 F. Supp. 2d 1138, 1147 (W.D. Tenn. 2007); L.R. 56.1(b). Moreover, Plaintiff also at times failed to provide specific citations to the record when objecting to Defendant’s Statement of Facts. (See, e.g., ECF No. 30-1 at PageID 326.) Again, this is not proper, and the Court will not consider an objection not properly supported. See Fed. R. Civ. P. 56(c); Akines, 512 F. Supp. 2d at 1147 (“The Court is not required to sift through pleadings to determine if the non-moving party has sufficiently responded to the statement of undisputed material facts.”); L.R. 56.1(b), (d). 3 Case 2:19-cv-02889-MSN-cgc Document 34 Filed 06/25/21 Page 4 of 33 PageID 576 31-2 at PageID 535.) Defendant asserts that Plaintiff mischaracterized the content of Ms. Morella’s statement based on the deposition testimony cited. (Id.) Plaintiff also describes in his affidavit an incident in 2018 involving Ms. Morella where Ms. Morella informed Plaintiff of an accusation of sexual harassment made against him by a White employee. (ECF No. 30-21 at PageID 454.) Plaintiff asserts that Ms. Morella told him not to report the incident to corporate and that she would handle it. (Id.) According to Plaintiff, he was never informed that the complaint was ultimately found baseless. (Id.) He questions whether such a complaint was ever actually made. (Id.) Ms. Morella transitioned into a role in HR sometime in 2018. (ECF No. 30-1 at PageID 322; ECF No. 30-21 at PageID 454.) She was then replaced by Hillary Jones, a White female. (ECF No. 30-1 at PageID 323; ECF No. 30-21 at PageID 454.) Plaintiff seemingly had a strained relationship with Ms. Jones. According to Plaintiff, Ms. Jones would belittle him in front of other employees by explaining basic aspects of his job. (ECF No. 30-1 at PageID 337, 30-21 at PageID 455.) In Plaintiff’s view, this caused those working under him to start slacking on assignments and to question Plaintiff’s directives. (ECF No. 30-21 at PageID 455.) This treatment from Ms. Jones purportedly caused Plaintiff to lodge a complaint with Store Director Cliff Townsend. (ECF No. 30-1 at PageID 337.) It is undisputed that Plaintiff received no corrective action from Ms. Jones during his tenure. (ECF No. 31-2 at PageID 535.) C. Clock-in Procedures As with most jobs, Target employees are required to clock in and out of work every day. (ECF No. 30-1 at PageID 323–24.) Further, Target employees are only allowed to clock in or out for themselves. (Id.) 4 Case 2:19-cv-02889-MSN-cgc Document 34 Filed 06/25/21 Page 5 of 33 PageID 577 When a team member forgets to clock in, a human resources team member would have that individual submit a “punch correction” form to identify the time they failed to “punch” in or out. (Id.) If a Target employee wished to confirm on their own whether they missed a punch, they could either: (1) check a list that was printed daily or (2) use a mobile app. (Id. at PageID 324– 25.) A team member submitting a punch correction would sign the form and hand it over to HR. (Id. at PageID 324.) HR would then make the notation in the system. (Id.) It is undisputed that Target had a policy that required employees to clock out for their meal period (“meal-break policy’) before the start of the employee’s fifth or sixth hour of work. (Id. at PageID 325.) These meal periods are unpaid and last thirty (30) minutes. (Id.; ECF No. 31-2 at PageID 540.) Defendant asserts that it is a terminable offense for an HR team member to fix another team member’s punches to have it comply with the meal-break policy. (ECF No. 30-1 at PageID 328.) Plaintiff argues that HR team members regularly assisted other team members in submitting punch corrections to comply with Target’s meal-break policy. (ECF No. 30-1 at PageID 328; ECF No. 30-21 at PageID 456.) Plaintiff specifically asserts that HR team member Valerie Scott would instruct him on submitting punch corrections to ensure his punches complied with the meal-break policy. (Id.) Ms. Scott, however, swears that she never instructed Plaintiff or any other team member to enter a false punch correction nor did she instruct team members as to what time to input when submitting a correction. (ECF No. 27-4 at PageID 120.) D. Investigation into Complaints Concerning Plaintiff 5 Case 2:19-cv-02889-MSN-cgc Document 34 Filed 06/25/21 Page 6 of 33 PageID 578 Starting in 2017, Ms. Morella began receiving complaints from team members concerning Plaintiff taking excessive and prolonged breaks.4 (ECF No. 30-1 at PageID 328–29; ECF No. 31- 2 at PageID 536.) These complaints came from team members Kenneth Washington (a Black male), Randall Logan (a Black male), in addition to other unnamed team members. (ECF No. 30- 1 at PageID 328–29; ECF No. 31-2 at PageID 536.) Mr. Washington made several complaints concerning Plaintiff taking excessive breaks and prolonged lunches. (ECF No. 30-1 at PageID 330.) Mr. Logan made similar complaints as well. (Id.) Ms. Morella did not initially act on these complaints. 5 (ECF No. 30-1 at PageID 330–31.) However, she decided to act after she continued to receive similar complaints. (Id. at PageID 330– 31.) This led Ms. Morella to contact Executive Team Lead- Asset Protection (ETL-AP) Gary Alexander (a Black male). (ECF No. 30-1 at PageID 331–32.) Ms. Morella asked Mr. Alexander to investigate whether Plaintiff was taking excessively long breaks. 6 (Id. at PageID 332.) As the ETL-AP, Mr. Alexander monitors Target employees’ compliance with clock-in and clock-out 4. Plaintiff’s objections to Defendant’s Statement of Facts 31, 32, and 33 fail to refute the assertions contained within. There are two problems with these objections by Plaintiff: (1) his affidavit does not respond to the factual assertion and (2) Plaintiff cites deposition testimony that is not currently before the Court nor elsewhere in the record. Plaintiff states in his affidavit that Ms. Morella would only discuss with him the complaints from White team members. (ECF No. 30-21 at PageID 454.) That assertion by Plaintiff in no way refutes whether Ms. Morella received complaints from other team members, especially these members concerning Plaintiff’s excessive and prolonged breaks. Further, Plaintiff cites deposition testimony that is not in the record before the Court so the Court cannot confirm its contents. Accordingly, Plaintiff has not properly objected to this Statement of Fact and it is deemed ADMITTED by the Court. 5. Plaintiff’s objection to Defendant’s Statement of Fact 35 is nonresponsive to the assertion contained therein. Further, Plaintiff relies on deposition testimony not currently in the record. 6. Plaintiff’s objection to Defendant’s Statement of Fact 40 is without merit. First, it does not refute the assertion contained within Defendant’s statement of fact. Second, it is both conclusory and asserts a legal argument. Therefore, Plaintiff has not lodged a proper objection. 6 Case 2:19-cv-02889-MSN-cgc Document 34 Filed 06/25/21 Page 7 of 33 PageID 579 procedures. (Id. at PageID 332.) Further, as part of his duties, Mr. Alexander will conduct investigations into punch violations. (Id. at PageID 332.) Ms. Morella approached Mr. Alexander about two punch corrections by Plaintiff that appeared to violate Target’s meal-break policy. (ECF No. 30-1 at PageID 332–33.) This prompted Mr. Alexander to begin his “reverse investigation,” where he reviews punches on the dates at issue and thirty (30) days prior. (Id. at PageID 333.) Mr. Alexander’s investigation concluded that Plaintiff submitted false punch corrections on the dates of February 26, 2018, and March 12, 2018, and committed time theft by doing so. (Id. at PageID 333–35.) Records for February 26, 2018, show that Plaintiff made the following punches: 11:30 a.m., 5:15 p.m., 5:46 p.m., and 10:48 p.m. (Id. at PageID 333.) Upon closer inspection, Plaintiff’s punch at 5:15 p.m. was a punch correction that Plaintiff submitted two (2) days after. (Id.) Video footage from that day shows that Plaintiff left the store at 5:59 p.m. and later returned at 6:25 p.m. (Id. at PageID 334.) Thus, from 5:46 p.m., till his return to the store at 6:25 p.m., Plaintiff was not working for thirty-nine (39) minutes. Plaintiff had thirty (30) minutes for his lunch break. (ECF No. 31-2 at PageID 540.) Plaintiff admits that the video footage in conjunction with his punches appear to show him breaking Target’s meal-break policy and committing time theft. (ECF No. 30-1 at PageID 334.) Records for March 12, 2018, show that Plaintiff made the following punches: 12:00 p.m., 6:06 p.m., and 8:39 p.m. (ECF No. 30-1 at PageID 335.) Plaintiff submitted two punch corrections a week later, which included punches for 5:35 p.m. and 6:06 p.m. (Id.) Surveillance footage shows Plaintiff leaving the store at 6:13 p.m. (Id.) He reenters the store at 6:54 p.m. (Id.) Plaintiff again admits that he appears to have violated Target’s policies. (Id.) 7 Case 2:19-cv-02889-MSN-cgc Document 34 Filed 06/25/21 Page 8 of 33 PageID 580 Plaintiff was aware that team members could be subject to corrective action, including termination, for submitting inaccurate time clock information. (Id. at PageID 326.) Further, falsification of company documentation is a terminable offense. (Id. at PageID 328.) Defendant submits that submitting incorrect punch corrections is akin to submitting false documentation. (Id.) E. Plaintiff’s Termination In the aftermath of Mr. Alexander’s investigation, Ms. Morella, along with Ms. Jones, met with Plaintiff on March 21, 2018, to discuss Plaintiff’s actions on the dates at issue. (ECF No. 30- 1 at PageID 335–36.) Ms. Jones and Ms. Morella expressed their confusion concerning Plaintiff’s actions because it appeared that he intentionally violated Target’s policies. (ECF No. 30-1 at PageID 335–36.) Plaintiff shared their confusion and claimed that he does not steal, meaning he does not steal time. (Id. at PageID 336.) Notably, Plaintiff did not offer an explanation concerning his actions. A few days later, on March 23, 2018, Plaintiff was called into the office of Cliff Townsend, Store Director, along with Ms. Jones and Ms. Morella to explain what happened on the dates at issue.7 (Id.) Plaintiff did not offer an explanation at that time either, stating that he could not remember what happened on those dates. (Id.) Just three (3) days later, on March 26, 2018, Plaintiff again was called into Mr. Townsend’s office. (Id.) Ms. Jones and Ms. Morella were also present. (Id.) Plaintiff was then informed that 7. Plaintiff objects to Defendant’s Statement of Fact 57 to the extent that it asserts that Mr. Townsend is Black. (ECF No. 30-1 at PageID 336.) Putting aside the dispute as to Mr. Townsend’s racial identity, Plaintiff’s objection does not refute any other portion of Defendant’s Statement of Fact. Thus, Plaintiff has failed to raise a proper objection to the rest of Statement of Fact 57. 8 Case 2:19-cv-02889-MSN-cgc Document 34 Filed 06/25/21 Page 9 of 33 PageID 581 he was being terminated for falsifying documents. (Id.) It is disputed who exactly informed Plaintiff that he was being terminated. Defendant asserts that Mr. Townsend informed Plaintiff that he was being terminated. (Id.) Plaintiff asserts that Ms. Jones was the one who terminated him. (Id.) Defendant counters by arguing that Ms. Jones’ alleged involvement at Plaintiff’s termination meeting consisted solely of reading off paperwork handed to her by Mr. Townsend. (ECF No. 31-2 at PageID 548.) The parties also dispute the level of involvement by Ms. Jones with Plaintiff’s investigation and termination. Defendant asserts that Ms. Jones was not involved in the decision to terminate Plaintiff nor was she involved in the investigation into Plaintiff’s alleged time theft. (ECF No. 30- 1 at PageID 337.) Plaintiff disputes this but it is not clear to what extent.8 Plaintiff only asserts that Ms. Jones was involved at his termination meeting. (ECF No. 30-21 at PageID 457; ECF No. 31-2 at PageID 548.) It is undisputed that Ms. Morella stated to Plaintiff at this meeting that “I bet you wished you had retired now.” (ECF No. 31-2 at PageID 548.) Plaintiff was eventually given a separation notice confirming that he was discharged for submitting false documents. (Id.) Standard of Review Federal Rule of Civil Procedure 56 permits a party to move for summary judgment — and the Court to grant summary judgment — “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party asserting the presence or absence of genuine issues of material facts must support its position either by “citing to particular parts of materials in the record,” including depositions, 8. In contesting Ms. Jones’ level of involvement, Plaintiff again relies on deposition testimony (Jones depo. 60) that is not before the Court. 9 Case 2:19-cv-02889-MSN-cgc Document 34 Filed 06/25/21 Page 10 of 33 PageID 582 documents, affidavits or declarations, stipulations, or other materials, or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., , 587 (1986); Nat’l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence, judge the credibility of witnesses, or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., , 249 (1986). The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, , 323 (1986). The moving party may discharge this burden either by producing evidence that demonstrates the absence of a genuine issue of material fact or simply “by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325. Where the movant has satisfied this burden, the nonmoving party cannot “rest upon its . . . pleadings, but rather must set forth specific facts showing that there is a genuine issue for trial.” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009) (citing Matsushita, 475 U.S. at 586; Fed. R. Civ. P. 56). The nonmoving party must present sufficient probative evidence supporting its claim that disputes over material facts remain and must be resolved by a judge or jury at trial. Anderson, 477 U.S. at 248–49 (citing First Nat’l Bank of Ariz. v. Cities Serv. Co., (1968 ; see also White v. Wyndham Vacation Ownership, Inc., 617 F.3d 472, 475–76 (6th Cir. 2010). A mere scintilla of evidence is not enough; there must be evidence from which a jury could reasonably find in favor of the nonmoving party. Anderson, 477 U.S. at 252; Moldowan, 578 F.3d at 374. 10 Case 2:19-cv-02889-MSN-cgc Document 34 Filed 06/25/21 Page 11 of 33 PageID 583 The Court’s role is limited to determining whether there is a genuine dispute about a material fact, that is, if the evidence in the case “is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. Such a determination requires that the Court “view the evidence presented through the prism of the substantive evidentiary burden” applicable to the case. Id. at 254. Thus, if the plaintiff must ultimately prove its case at trial by a preponderance of the evidence, on a motion for summary judgment the Court must determine whether a jury could reasonably find that the plaintiff’s factual contentions are true by a preponderance of the evidence. See id. at 252–53. Finally, if the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the movant is entitled to summary judgment. Celotex, 477 U.S. at 323. The Court must construe Rule 56 with due regard not only for the rights of those “asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury,” but also for the rights of those “opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.” Id. at 327. Analysis This is a workplace discrimination case in which Plaintiff alleges that Defendant discriminated against him due to his race, gender, and age. (See ECF No. 8 at PageID 13, 17–18.) Plaintiff brings this action pursuant to Title VII and the ADEA. (Id.) Before the Court turns to the merits of Defendant’s arguments that Plaintiff’s claims fail as a matter of law, the Court first addresses Defendant’s motion to strike. (ECF No. 32.) A. Defendant’s Motion to Strike 11 Case 2:19-cv-02889-MSN-cgc Document 34 Filed 06/25/21 Page 12 of 33 PageID 584 Defendant argues in its motion that portions of Plaintiff’s affidavit should be struck because it contradicts his prior deposition testimony or is inadmissible. To briefly set the stage. For an assertion to be properly supported under Rule 56, a party must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, information, affidavits or declarations, documents, electronically stored stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; Fed. R. Civ. P. 56(c)(1)(A) (emphasis added). Affidavits or declarations “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). With respect to what evidence is admissible for purposes of summary judgment, while “[t]he proffered evidence need not be in admissible form, . . . its content must be admissible.” Bailey v. Floyd Cty. Bd. of Educ., 106 F.3d 135, 145 (6th Cir. 1997). As a result, the usual evidentiary prohibition on hearsay is applicable to summary judgment, absent some recognized exception to the restriction. Wiley v. United States, 20 F.3d 222, 226 (6th Cir. 1994). Where one party argues that the opposing party has submitted evidence which should not be considered, “[s]ubdivision (c)(2) [of Rule 56] provides that a party may object that material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56 advisory committee’s note to 2010 amendment. Because the objection functions much the same as an objection at trial, “[t]here is no need to make a separate motion to strike.” Id.; see also Daucus v. Commercial Marine Servs., No. 2:15-cv-2646-JPM-cgc, 2018 WL 6499375, *2 (W.D. Tenn. Sept. 6, 2018) (“This Court . . . construes motions to strike evidence offered in support of motions for summary judgment as evidentiary objections pursuant to Local Rule 56.1(e).”) The Court will now consider Defendant’s evidentiary objections. I. Whether Plaintiff’s affidavit asserts contradictory testimony 12 Case 2:19-cv-02889-MSN-cgc Document 34 Filed 06/25/21 Page 13 of 33 PageID 585 Defendant’s first objection argues that Plaintiff has submitted testimony in his affidavit that contradicts his prior deposition testimony. (ECF No. 32 at PageID 563.) Defendant argues that Plaintiff has changed his story concerning the number of times Ms. Morella questioned him about his intent to retire. (Id. at PageID 564.) To recap, Plaintiff mentions a single comment by Ms. Morella, “I bet you wish that you had retired,” in his amended complaint. (See ECF No. 8 at PageID 17; ECF No. 32 at PageID 564.) Further, Plaintiff did not disclose any other instances of similar comments by Ms. Morella at his deposition. (Id.) He, however, now submits in his affidavit that Ms. Morella repeatedly asked him when he would retire. (Id.; ECF No. 30-21 at PageID 454.) Plaintiff’s response to Defendant’s objection is not a paragon of clarity. Plaintiff seemingly argues that the testimony in his affidavit does not directly contradict any prior testimony. (ECF No. 33 at PageID 569.) Thus, Defendant’s argument is without merit. (Id.) It is well-accepted that an opposing party cannot create an issue of fact by submitting an affidavit in response to a summary judgment motion that contradicts prior testimony. See Aerel, S.R.L. v. PCC Airfoils, L.L.C., 448 F.3d 899, 906 (6th Cir. 2006) (citing Penny v. United Parcel Service, 128 F.3d 408, 415 (6th Cir. 1997 . In determining the admissibility of a post-deposition affidavit, the Court “must first determine whether the affidavit directly contradicts the nonmoving party’s prior sworn testimony.” Id. at 908 (emphasis added). However, if the proffered affidavit does not directly contradict prior testimony, the Court should only disregard the affidavit if it was submitted in an “attempt to create a sham fact issue.” Id. (citing Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986 . The Court looks to a non-exhaustive list of factors such as whether the affiant was cross-examined when he offered the earlier testimony, whether the 13 Case 2:19-cv-02889-MSN-cgc Document 34 Filed 06/25/21 Page 14 of 33 PageID 586 statement was based on new evidence, or whether the affiant was confused during the earlier testimony to determine whether the affidavit should be disregarded. Id. at 909. In looking at the pertinent testimony, the Court disagrees with Defendant’s assertion that Plaintiff is attempting to create an issue of fact by asserting contradictory testimony in his affidavit. Plaintiff was asked the following questions at his deposition: Q: Okay. In the Complaint, you mention that [Ms. Morella] said something along the lines, “I bet you wished you had retired.” A: Yes. Q: Tell me about that comment. Which meeting was that and— A: That was a meeting on that Friday. Q: Okay. So this was when it was Cliff and Diana? A: Right before Cliff entered the room. Q: Okay. So no one else heard her make that comment? A: No. (ECF No. 31-3 at PageID 556.) That is the entirety of the inquiry into any comments made by Ms. Morella concerning Plaintiff’s retirement based on the record before the Court. Rather than asserting contradictory facts, Plaintiff appears to assert facts that Defendant did not inquire into. This is permissible. See Aerel, S.R.L., 448 F.3d at 907 (explaining that nothing prevents a party “who was not directly questioned about an issue from supplementing incomplete deposition testimony with a sworn affidavit”). Thus, Defendant’s objection is not well- taken. II. Whether Plaintiff’s affidavit contains inadmissible evidence Defendant’s second evidentiary objection argues that Plaintiff’s affidavit contains inadmissible hearsay or asserts speculative facts. (ECF No. 32 at PageID 565.) Specifically, Defendant argues that Plaintiff offers his own speculative and conclusory opinions concerning punch corrections. (Id.) Further, the affidavit contains inadmissible hearsay statements from Randy Logan. (Id.) 14 Case 2:19-cv-02889-MSN-cgc Document 34 Filed 06/25/21 Page 15 of 33 PageID 587 Plaintiff responds by arguing that his opinions concerning punch corrections are based on his personal knowledge and thus are admissible. (ECF No. 33 at PageID 570.) Further, Mr. Logan’s statement constitutes an admission by a party opponent. (Id. at PageID 569–70.) To the extent that Defendant seeks to strike Plaintiff’s statements based on his purported knowledge, the Court will not grant such relief. Defendant is correct that “in order to survive summary judgment, Plaintiff cannot rely on conjecture or conclusory accusations.” Arendale v. City of Memphis, 519 F.3d 587, 605 (6th Cir. 2008) (citing Lewis v. Philip Morris Inc., 355 F.3d 515, 533 (6th Cir. 2004 ; Gooden v. City of Memphis Police Dep’t, 67 F. App’x 893, 895 (6th Cir. 2003) Plaintiff, however, can testify to matters based on his personal knowledge, which he purports to do here. See Fed. R. Civ. P. 56(c)(4); F.R.E. 602, 701; see also Bailey, 106 F.3d at 145 (“The proffered evidence need not be in admissible form, but its content must be admissible.” (emphasis in original . It is just that his testimony alone is not sufficient to defeat a well-supported summary judgment motion. See Gooden, 67 F. App’x at 895. Accordingly, Defendant’s request to strike this testimony is unwarranted. Instead, the Court will keep the above principle in mind when examining Defendant’s motion. The Court next turns to the statements by Mr. Logan. According to Plaintiff, Mr. Logan informed him that he never complained to Ms. Morella and that he was promised a senior management position once Plaintiff left. (ECF No. 30-21 at PageID 454.) Defendant argues that this statement is inadmissible hearsay. (ECF No. 32 at PageID 565.) Plaintiff asserts that this statement qualifies as an admission by a party opponent under Federal Rule of Evidence 801(d)(2)(C). (ECF No. 33 at PageID 569–70.) The Court finds the statement by Mr. Logan inadmissible. Federal Rule of Evidence 801(d)(2)(C) provides that a party opponent’s statement is non-hearsay if it “was made by a person 15 Case 2:19-cv-02889-MSN-cgc Document 34 Filed 06/25/21 Page 16 of 33 PageID 588 whom the party authorized to make a statement on the subject.” Plaintiff’s argues that, because Mr. Morella referenced complaints from Mr. Logan at her deposition, Mr. Logan was then authorized to speak to Plaintiff. (ECF No. 33 at PageID 570.) Plaintiff misunderstands the rule. See Precision Piping & Innstruments, Inc. v. E.I. du Pont de Nemours and Co., 951 F.2d 613, 619 (4th Cir. 1991) (“[A]uthority in the context of 801(d)(2)(C) means ‘authority to speak’ on a particular subject on behalf of someone else.”); Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure Evidence, § 6775 (2021 ed.) (“In all such cases, there must be a showing, either general or specific, that the party authorized the declarant to speak on the subject to satisfy the rule.”). Simply, there is no evidence that Mr. Logan was authorized by Defendant to speak on the subject.9 The viability of this argument becomes more dubious when the Court considers the factual circumstances surrounding the statement: Mr. Logan purportedly made this statement while away from work at a barber shop. Accordingly, the Court finds that Plaintiff has not introduced evidence demonstrating the admissibility of Mr. Logan’s statement at this juncture. B. Defendant’s Motion for Summary Judgment Having dealt with these evidentiary objections, the Court now addresses the merits of Defendant’s motion. As previously stated, Plaintiff alleges unlawful discrimination due to his race, age, and gender. The Court will take up his gender discrimination claim first before moving onto to the claim based on race discrimination. The Court will then address Plaintiff’s age discrimination claim last. I. Plaintiff’s Gender Discrimination Claim 9. The Court is similarly skeptical that this statement by Mr. Logan would qualify under Federal Rule of Evidence 801(d)(2)(D). 16 Case 2:19-cv-02889-MSN-cgc Document 34 Filed 06/25/21 Page 17 of 33 PageID 589 Title VII prohibits employers from discriminating against their employees on the basis of “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). A claim of discrimination can be supported either through direct or circumstantial evidence. See Ondricko v. MGM Grand Detroit, LLC, 689 F.3d 642, 648–49 (6th Cir. 2012) (citing DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir. 2012 . “Direct evidence is that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions.” Id. On the other hand, indirect or circumstantial evidence allows for a reasonable factfinder to infer that discrimination occurred. Id. Here, Plaintiff has not asserted that direct evidence exists demonstrating gender discrimination; thus, he instead must rely on circumstantial evidence to prove his claim. See Johnson v. Metro. Gov’t of Nashville & Davidson Cty., 502 F. App’x 523, 535 (6th Cir. 2012). Under this approach, the Court applies the “the familiar McDonnell Douglas framework.” Arendale, 519 F.3d at 603; Tennial v. United Parcel Serv., Inc., 840 F.3d 292, 303 (6th Cir. 2016). Normally, a prima facie case alleging gender discrimination requires that the plaintiff show that: “1) he is a member of a protected class; 2) was qualified for the job; 3) he suffered an adverse employment decision; and 4) was replaced by a person outside the protected class or treated differently than similarly situated non-protected employees.” See Arendale, 519 F.3d at 603 (quoting Newman v. Fed. Express Corp., 266 F.3d 401, 406 (6th Cir. 2001 . However, because Plaintiff is male, “that is, he is a member of the majority claiming employment discrimination,” id., he must instead show that Defendant “is that unusual employer who discriminates against the majority.” Johnson, 502 F. App’x at 536. 17 Case 2:19-cv-02889-MSN-cgc Document 34 Filed 06/25/21 Page 18 of 33 PageID 590 Once Plaintiff makes this prima facie showing, the burden shifts to Defendant to articulate a legitimate, nondiscriminatory reason justifying its action. Id. In turn, if Defendant meets this burden, Plaintiff then must prove that the stated reason was pretext. Id. Defendant first argues that Plaintiff’s gender discrimination claim fails because he has not identified an appropriate female comparator. (ECF No. 27-1 at PageID 86.) Next, Defendant asserts that it had a legitimate, nondiscriminatory reason to terminate Plaintiff. (Id.) Finally, Defendant contends that Plaintiff cannot establish pretext because of the “honest belief rule.” (Id. at PageID 86, 91–93.) It appears that Defendant does not contest any other elements of Plaintiff’s prima facie case. Thus, the Court will not discuss those elements. In response, Plaintiff first argues that he has identified an appropriate female comparator. (ECF No. 30 at PageID 308.) Next, he attempts to undercut the legitimacy of Defendant’s asserted reason for his termination. (Id. at PageID 313–14.) Finally, Plaintiff asserts that, regardless of the asserted reason, that reason was pretext. The Court starts (and ends) its analysis at whether Plaintiff has identified an appropriate female comparator. As part of his prima facie case, Plaintiff must establish that he was either replaced by an individual outside of his protected class or that he was treated differently from a similarly situated female employee. See Arendale, 519 F.3d at 603. Plaintiff cannot show that he was replaced by a member outside of the protected class because it is undisputed that Plaintiff was replaced by a male. (ECF No. 31-2 at PageID 550.) Thus, Plaintiff must prove that he was treated differently than a similarly situated female employee. See Arendale, 519 F.3d at 603; Kinch v. Pinnacle Foods Grp., LLC, 758 F. App’x 473, 478 (6th Cir. 2018). “To establish that an employee is similarly situated to a plaintiff, ‘the plaintiff [must] demonstrate that he or she is similarly situated to the [claimed comparator] in 18 Case 2:19-cv-02889-MSN-cgc Document 34 Filed 06/25/21 Page 19 of 33 PageID 591 all relevant respects.’” Perkins v. Harvey, 368 F. App’x 640, 644 (6th Cir. 2010) (alterations and emphasis in original) (quoting Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 353 (6th Cir. 1998 ; see also McMillan v. Castro, 405 F.3d 405, 413–414 (6th Cir. 2005). “In the disciplinary context, employees are similarly situated if they deal with the same supervisor, are held to the same standards, and engage in the same conduct such that no differentiating or mitigating circumstance distinguishes their conduct or the employer's treatment of them for it.” Kinch, 758 F. App’x at 479 (citing Ercegovich, 154 F.3d at 352.) Here, Plaintiff’s chosen comparator, Brenda Holliday-Lewis (a Black female), is not an appropriate comparator because Plaintiff cannot establish that the two engaged in similar conduct. It is true that Ms. Holliday-Lewis and Plaintiff have several things in common that, at first blush, would indicate she is an appropriate comparator. Both Plaintiff and Ms. Holliday Lewis were supervised by Ms. Morella and Ms. Jones. (ECF No. 31-2 at PageID 545.) Next, both were Senior Team Leads at Target. (Id.) Finally, Ms. Holliday-Lewis asserts that—despite working in different departments—she shared similar job responsibilities with Plaintiff as Senior Team Leads. (ECF No. 30-10 at PageID 426.) Even so, Plaintiff’s claim fails because he failed to demonstrate that the two engaged in the same relevant conduct. See Kinch, 758 F. App’x at 479. As Defendant correctly points out in its motion, Plaintiff has not established that Ms. Holliday-Lewis received similar complaints about taking excessive and prolonged break nor that she submitted similar incorrect punches. (ECF No. 27-1 at PageID 87; ECF No. 31 at PageID 516–517.) Without this evidence establishing that Ms. Holliday-Lewis engaged in similar conduct yet received different treatment, the Court has no marker by which to gauge Defendant’s conduct. 19 Case 2:19-cv-02889-MSN-cgc Document 34 Filed 06/25/21 Page 20 of 33 PageID 592 Plaintiff arguments to the contrary are unavailing. In addition to the facts stated above, Plaintiff also argues that Ms. Holliday-Lewis submitted punch corrections like Plaintiff to comply with Target’s meal-break policy. (ECF No. 30 at PageID 311.) Plaintiff, however, offers no specifics concerning Ms. Holliday-Lewis’s punch corrections nor does he explain if she was investigated for similar violations like the ones Plaintiff admitted he committed. Without more, Plaintiff has failed to establish that Ms. Holliday-Lewis is an appropriate comparator. See Kinch, 758 F. App’x at 479 (“[E]mployees are similarly situated if. . . [they] engage in the same conduct such that no differentiating or mitigating circumstance distinguishes their conduct or the employer's treatment of them for it.”).10 Plaintiff needed to show that Ms. Holliday-Lewis engaged in similar conduct yet received a different result. See Leadbetter v. Gilley, 385 F.3d 683, 691 (6th Cir. 2004); see also Campbell v. Hamilton Cty., 23 F. App’x 318, 325 (6th Cir. 2001). He did not. Accordingly, his claim for gender discrimination fails. The Court, therefore, GRANTS Defendant’s motion as to Plaintiff’s gender discrimination claim. II. Plaintiff’s race discrimination claim Title VII also protects against discrimination on the basis of race. See 42 U.S.C. § 2000e- 2(a)(1). Like a claim for gender discrimination, a Title VII plaintiff claiming race discrimination can rely on either direct or circumstantial evidence. See Tennial v. United Parcel Serv., Inc., 840 F.3d 292, 302 (6th Cir. 2016.) a) Direct evidence 10. To the extent that Plaintiff and Ms. Holliday-Lewis received different treatment, those differences are immaterial to the Court’s analysis. (See ECF No. 30 at PageID 311–12.) As a threshold requirement, Plaintiff needed to identify a comparator who was “similarly situated. . .in all relevant respects” before the Court even broaches the issue of different treatment. Perkins, 368 F. App’x at 644. The Court finds that he did not. 20 Case 2:19-cv-02889-MSN-cgc Document 34 Filed 06/25/21 Page 21 of 33 PageID 593 Plaintiff asserts that he has put forth direct evidence establishing that Defendant discriminated against him due to his race. (ECF No. 30 at PageID 316.) Plaintiff points to the following facts: (1) Ms. Morella’s alleged comment to Plaintiff and Mr. Cain about the “ horror that she would feel if one of her daughters dated a black male;” (2) Ms. Morella’s directive to Plaintiff to assign hard jobs to Black workers; (3) Ms. Morella’s statement that she only received complaints from Black workers concerning Plaintiff’s excessive and prolonged breaks; (4) the fact that Ms. Morella informed Plaintiff about a sexual harassment complaint levied against him but asked him not to act on it; (5) the fact that Ms. Jones claimed not to know Plaintiff’s race; (6) the fact that Ms. Jones claimed not to know the race of Plaintiff’s replacement despite having worked with him before; and (7) Ms. Jones’ inconsistent testimony. (ECF No. 30 at PageID 316–17.) As noted earlier, direct evidence “if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions.” Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir. 2003). Here, the proffered evidence by Plaintiff fails to warrant this result. Take first the alleged comment by Ms. Morella. (See ECF No. 30 at PageID 316; see also ECF No. 31-2 at PageID 535.) Plaintiff states that this comment occurred in late 2016. (ECF 31- 2 at PageID 535.) Plaintiff, however, was not terminated until March 2018. (Id. at PageID 535, 550.) This lapse of time between this disputed comment and the alleged unlawful employment action undercuts its probative value. See Clack v. Rock-Tenn Co., 304 F. App’x 399, 405 (6th Cir. 2008) (“The timing of any remarks, specifically how remote in time they were to the employment action at issue, also has bearing on their relevance.”) (citing Bush v. Dictaphone Corp., 161 F.3d 363, 369 (6th Cir. 1998 . Further, given that this statement did not directly relate to Plaintiff but instead dealt with hypothetical social relationships, an inference is needed to establish that Ms. Morella’s alleged feelings influenced the decision to terminate Plaintiff. 21 Case 2:19-cv-02889-MSN-cgc Document 34 Filed 06/25/21 Page 22 of 33 PageID 594 Turning to the remaining comments or actions by Ms. Morella, these also fail to qualify as direct evidence of racial animus. (ECF No. 30 at PageID 316.) First, these comments did not occur in the context of Plaintiff’s termination. See Tennial, 840 F.3d at 302 (citing Ash v. Tyson Foods, Inc., 546 U.S. 454, 464 and Worthy v. Mich. Bell Tel. Co., 472 F. App’x 342, 347 (6th Cir. 2012 . Second, these comments either did not directly relate to Plaintiff or do not denote racial animus at face value. Id. The Court reaches the same conclusion concerning the facts related to Ms. Jones. (See ECF No. 30 at PageID 316–17.) First, Plaintiff conflates direct evidence with circumstantial evidence. Plaintiff states that his proffered evidence concerning Ms. Jones “permits the inference of racial discrimination.” (Id. at PageID 317.) But with direct evidence, “no inferences are needed in order to conclude that racial discrimination is afoot.” Tennial, 840 F.3d at 302 (citation omitted). Second, a reasonable factfinder would still have to make a chain of inferences to conclude that this proffered evidence demonstrates Ms. Jones’ animus toward Plaintiff. Accordingly, Plaintiff has failed to put forth direct evidence. b) Indirect evidence To determine whether Plaintiff has set forth a prima facie case for racial discrimination using indirect evidence, the Court applies the McDonnell Douglass framework. See Tennial, 840 F.3d at 303. The Court recounted this standard previously when addressing Plaintiff’s gender discrimination claim. Again, Defendant appears to only contest whether Plaintiff can establish pretext. (ECF No. 27-1 at PageID 93.) Defendant asserts that Plaintiff cannot prove pretext due to the “honest belief rule” and that Plaintiff failed to identify other employees outside his protected class that were not terminated for similar conduct. (Id. at PageID 94.) Accordingly, the Court will focus its analysis there. 22 Case 2:19-cv-02889-MSN-cgc Document 34 Filed 06/25/21 Page 23 of 33 PageID 595 Plaintiff responds by arguing that Defendant’s “articulated reason to justify Anderson’s termination is simply not worthy of belief and has absolutely no basis in fact.” (ECF No. 30 at PageID 317.) Notably, Plaintiff does not address Defendant’s invocation of the honest belief rule nor does he tackle Defendant’s assertion that Plaintiff failed to identify members outside of Plaintiff’s protected class who received better treatment for similar conduct. i. Defendant’s reason for terminating Plaintiff The Court first turns to Defendant’s proffered reason for terminating Plaintiff—that he submitted false documentation concerning his punches. (See ECF No. 27-1 at PageID 90, 94.) It is undisputed that on February 26, 2018, Plaintiff made the following time punches: 11:30 a.m., 5:15 p.m., 5:46 p.m. and 10:48 p.m. (ECF No. 30-1 at PageID 333.) It is also undisputed that Plaintiff left the store on February 26, 2018, at 5:59 p.m. and did not return until 6:25 p.m. (Id.) Plaintiff admits that it appears that he violated Target’s meal-break policy by taking a break longer than the thirty (30) minutes allowed. (Id.) Similarly, Plaintiff admits that it appears that he violated that same policy concerning his punches on March 12, 2018. (Id. at PageID 335.) Plaintiff made the following punches on that day: 12:00 p.m., 5:35 p.m., 6:06 p.m., and 8:39 p.m. (Id.) Plaintiff admits that surveillance footage shows him leaving the store at 6:13 p.m. and not returning until 6:54 p.m. (Id.) The investigation into these two dates conducted by Mr. Alexander concluded that Plaintiff committed time theft. (Id. at PageID 333–34.) Plaintiff has not challenged Mr. Alexander’s findings. Further, it is undisputed that it is a terminable offense to submit falsified documentation. (ECF No. 30-1 at PageID 328); see also Parson v. FedEx Corp., 360 F. App’x 642, 648 (6th Cir. 2010) (concerning a plaintiff who had been terminated for submitting falsified company documents). Building on that, courts in this circuit have found that terminating an employee for 23 Case 2:19-cv-02889-MSN-cgc Document 34 Filed 06/25/21 Page 24 of 33 PageID 596 time theft is a legitimate, nondiscriminatory reason. See Williams v. PVACC, LLC, 369 F. App’x 667, 671 (6th Cir. 2010); Mugno v. Wal-Mart Stores, Inc., No. 2:07-CV-199, 2009 WL 737107, at *4 (E.D. Tenn. Mar. 20, 2009). Similarly, this Court finds that Defendant has asserted a legitimate non-discriminatory reason for Plaintiff’s termination. ii. Pretext Now that Defendant has set forth a legitimate, nondiscriminatory reason for Plaintiff’s termination, the burden falls on Plaintiff to “identify evidence from which a reasonable jury could conclude that the proffered reason is actually a pretext for unlawful discrimination.” Jackson v. VHS Detroit Receiving Hosp., Inc., 814 F.3d 769, 779 (6th Cir. 2016) (quoting Provenzano v. LCI holdings, Inc., 663 F.3d 806, 812 (6th Cir. 2011 ; see also Tennial, 840 F.3d at 303 (6th Cir. 2016). A plaintiff can prove that a defendant’s reason was pretext “by showing that the proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant’s challenged conduct, or (3) was insufficient to warrant the challenged conduct.” Provenzano, 663 F.3d at 815 (quoting Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 576 (6th Cir. 2003 . “The three-part test need not be applied rigidly. Rather, ‘[p]retext is a commonsense inquiry: did the employer fire the employee for the stated reason or not?’” Blizzard v. Marion Tech. Coll., 698 F.3d 275, 285 (6th Cir. 2012) (quoting Chen v. Dow Chem. Co., 580 F.3d 394, 400 n.4 (6th Cir. 2009 . Plaintiff asserts that Defendant’s proffered reason is “simply not worthy of belief and has absolutely no basis in fact.” (ECF No. 30 at PageID 317.) It appears that Plaintiff invokes just one of three ways in which he can prove pretext— that Defendant’s reason has no basis in fact. 24 Case 2:19-cv-02889-MSN-cgc Document 34 Filed 06/25/21 Page 25 of 33 PageID 597 However, for the sake of thoroughness, the Court will briefly address the other two ways in which Plaintiff can prove pretext. Ultimately, Plaintiff cannot prove pretext under these routes either.11 In addition to the evidence discussed above concerning direct evidence of racial discrimination, Plaintiff also points to examples involving Target employees who were terminated for committing time theft. (Id. at PageID 313.) According to Plaintiff, these examples demonstrate that Defendant treated meal violations differently from time theft. (Id.) Plaintiff also points out that Defendant did not provide an example of an employee being terminated for committing a meal violation. (Id.) Further, Plaintiff argues that the punches he submitted to comply with the meal- break policy were a common occurrence at Target and that team members, like Ms. Holliday- Lewis, submitted similar corrections. (Id. at PageID 314.) All in all, Plaintiff asserts that Defendant “conflated its long-standing practice of correcting meal violations to comply with the six-hour policy with the terminable offense of falsifying documents” to discriminate against him. (Id. at PageID 314.) The Court first turns to Plaintiff’s argument that Defendant’s decision had no basis in fact. (ECF No. 30 at PageID 314.) This line of attack by Plaintiff is “essentially an attack on the credibility of the employer's proffered reason ... [and] consists of showing that the employer did not actually have cause to take adverse action against the employee based on its proffered reason, and thus, that the proffered reason is pretextual.” Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 285 (6th Cir. 2012) (alterations in original) (quoting Joostberns v. United Parcel Servs., Inc., 166 F. App’x 787, 791 (6th Cir. 2006 . This argument fails for two reasons. One, 11. In arguing that Defendant’s reason was pretext as part of his race discrimination claim, Plaintiff does not reassert the same arguments that he made concerning pretext that he made for his gender discrimination claim. (See ECF No. 30 at PageID 313, 317.) 25 Case 2:19-cv-02889-MSN-cgc Document 34 Filed 06/25/21 Page 26 of 33 PageID 598 Defendant’s had a basis in fact. Second, Plaintiff has not overcome Defendant’s invocation of the honest belief rule. After review of the record before the Court, it appears that Plaintiff’s punches did not accurately correspond to his time spent working. In other words, Plaintiff’s punches do not reflect his time away from the store. It is undisputed that falsifying company documents is a terminable offense. (ECF No. 30-1 at PageID 328.) The Court also draws attention to the fact that Plaintiff admitted that it appeared that he violated Target’s policies. (ECF No. 30-1 at PageID 333–35.) Accordingly, Defendant’s had a basis in fact to conclude Plaintiff submitted false time punches. Moreover, Defendant has properly invoked the honest belief rule. (See ECF No. 27-1 at PageID 91.) The honest belief rule stands for the principle that “where the employer can demonstrate an honest belief in its proffered reason . . . the inference of pretext is not warranted.” Seeger, 681 F.3d at 285 (citation omitted). To properly invoke this rule, Defendant must “establish its reasonable reliance on the particularized facts that were before it at the time the decision was made.” Blizzard, 698 F.3d at 286 (citations omitted). In turn, Plaintiff must “allege more than a dispute over the facts upon which his discharge was based. He must put forth evidence which demonstrates that the employer did not ‘honestly believe’ in the proffered non- discriminatory reason for its adverse employment action.” Braithwaite v. Timken Co., 258 F.3d 488, 494 (6th Cir. 2001) (quoting Smith v. Chrysler, 155 F.3d 799, 906–07 (6th Cir. 1998 . Here, Plaintiff has not introduced evidence which negates the application of the honest belief rule. The Court points to the fact that it is undisputed that Plaintiff met with management at his store on three (3) different occasions concerning the dates at issue. (ECF No.30-1 at PageID 336–337.) Further, on each of these occasions, Plaintiff was asked to explain his actions, and he did not offer an explanation at any of these meetings. (Id.) 26 Case 2:19-cv-02889-MSN-cgc Document 34 Filed 06/25/21 Page 27 of 33 PageID 599 Based on these facts, Defendant has introduced evidence that it made its decision to terminate Plaintiff based on the “particularized facts that were before it at the time the decision was made.” Blizzard, 698 F.3d at 286 (citations omitted). In response, Plaintiff has offered no probative evidence that those involved in his termination did not “honestly believe” in the proffered reason. Braithwaite, 258 F.3d at 494. The Court will briefly address the remaining ways in which Plaintiff could prove pretext. A plaintiff can prove a party’s asserted reason was pretext by arguing that the reason was “insufficient motivation for the employment action.” Joostberns, 166 F. App’x at 791. This argument normally “consists of evidence that other employees, particularly employees not in the protected class, were not fired even though they engaged in substantially identical conduct to that which the employer contends motivated its discharge of the plaintiff.” Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078, 1084 (6th Cir. 1994 . Here, the only examples that Plaintiff can seemingly rely on involve team members who were terminated for their purported violations. (ECF No. 30 at PageID 313.) To rely on these team members as examples, however, gets the analysis backwards. The pertinent question is whether other employees engaged in similar conduct as Plaintiff but were not terminated. See Joostberns, 166 F. App’x at 791. Notably, these employees did not engage in similar conduct as Plaintiff. C.f. Blizzard, 698 F.3d at 286–87 (“Thomas’s mistakes were not substantially identical to those made by Blizzard.”). Moreover, the employees who were terminated were not senior team leads like Plaintiff. It is undisputed that Plaintiff as a senior team lead was held to a higher standard than just a regular team member. (ECF No. 30-1 at PageID 323); see also Pelcha v. MW Bancorp, Inc., 988 F.3d 318, 329 (6th Cir. 2021) (“[E]mployees who are in higher positions can be held to higher standards.”). And as one last point, the Court notes that both Black and White 27 Case 2:19-cv-02889-MSN-cgc Document 34 Filed 06/25/21 Page 28 of 33 PageID 600 employees were terminated for committing time theft. (ECF No. 27-16 at PageID 286.) Accordingly, Plaintiff cannot prove pretext via this route. As the last route, a plaintiff can prove pretext by showing that the asserted reason did not actually motivate the defendant. See Manzer, 29 F.3d at 1084. This line of attack “admits that the [proffered] reason could motivate the employer but argues that the illegal reason is more likely than the proffered reason to have motivated the employer.” Joostberns, 166 F. App’x at 791 (citing Manzer, 29 F.3d at 1084). “In other words, . . . the sheer weight of the circumstantial evidence of discrimination makes it ‘more likely than not’ that the employer's explanation is a pretext, or coverup.” Id. Plaintiff has not introduced sufficient evidence demonstrating that it is “more likely than not” that Defendant’s proffered reason is pretextual. First, the Court draws attention to the fact that the investigation into Plaintiff’s punches was conducted by ETL-AP Gary Alexander (a Black male). (ECF No. 30-1 at PageID 332.) Second, although Plaintiff asserts that Ms. Jones was the individual who terminated him, he offers no evidence that Ms. Jones was involved in the investigation nor the decision to terminate him.12 (ECF No. 30-1 at PageID 337.) Also, the presence of Cliff Townsend, the Store Director, at two of the three meetings supports the conclusion that a discriminatory animus did not play a role in Plaintiff’s termination. Plaintiff has made no aspersions concerning Mr. Townsend’s motives or feelings. And finally, this argument might fare better had Plaintiff actually explained his actions. 12. As with other objections, Plaintiff did not properly support his objection to Defendant’s Statement of Fact 61. First, Plaintiff cites deposition testimony from Ms. Jones that is not in the record. Second, Plaintiff’s affidavit does not speak to whether Ms. Jones participated in the investigation into Plaintiff’s time punches. And finally, the testimony cited by Plaintiff of Ms. Morella explicitly states that Ms. Jones was not with Ms. Morella when she approached Mr. Alexander. Accordingly, the Court treats this statement of fact as admitted. 28 Case 2:19-cv-02889-MSN-cgc Document 34 Filed 06/25/21 Page 29 of 33 PageID 601 After review of the evidence, Plaintiff fails to establish that Defendant’s proffered reason was pretext. Thus, he has not presented a prima facie claim concerning racial discrimination. As such, the Court GRANTS Defendant’s motion as to this claim. III. Plaintiff’s age discrimination claim As his final claim, Plaintiff alleges that Defendant discriminated against him due to his age. The ADEA prohibits discrimination based on age. See Tennial v. United Parcel Serv., Inc., 840 F.3d 292, 305 (6th Cir. 2016). An ADEA plaintiff can support her claim with either direct or circumstantial evidence. See Pelcha v. MW Bancorp, Inc., 988 F.3d 318, 324 (6th Cir. 2021). If direct evidence is not available, the Court analyzes the plaintiff’s claim under the McDonnel Douglas framework. Id. at 326. Notably, unlike in the Title VII context, Plaintiff must show that his age was the “but for” cause for his termination. See Provenzano, 663 F.3d at 811. Meaning, Plaintiff’s age must be the reason Defendant decided to act. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009). Here, Defendant again focuses its attack on whether Plaintiff can establish pretext. (ECF No. 27-1 at PageID 95–96.) Thus, the Court will devote its energy in addressing whether Plaintiff can establish pretext.13 In arguing that Plaintiff cannot establish pretext, Defendant reasserts its prior argument that the honest belief rule applies. Defendant further asserts that it has set forth evidence of employees under forty (40) who were terminated for submitting false documentation like Plaintiff. (Id. at PageID 95–96.) 13. As explained earlier, the Court finds that Defendant has articulated a legitimate, nondiscriminatory reason for Plaintiff’s termination. 29 Case 2:19-cv-02889-MSN-cgc Document 34 Filed 06/25/21 Page 30 of 33 PageID 602 Plaintiff does not address Defendant’s pretext argument; instead, he devotes his briefing to argue that “but for” causation exists. (ECF No. 30 at PageID 318–319.) In making this argument, Plaintiff points to repeated inquires by Ms. Morella during 2017 about when Plaintiff would retire. (Id. at PageID 318.) He also points to the statement by Ms. Morella that “I bet you wish you had retired now” made at his termination meeting. (Id. at PageID 319.) Further, Plaintiff relies on an alleged statement by Ms. Jones that she planned to replace Plaintiff with a younger individual.14 (Id. at PageID 318–19.) As stated above, Plaintiff can prove pretext “by showing that the proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant’s challenged conduct, or (3) was insufficient to warrant the challenged conduct.” Provenzano, 663 F.3d at 815. First, the Court has already found that Defendant’s decision to terminate Plaintiff had a basis in fact. Further, Defendant properly invoked the honest belief rule. Thus, the Court will not repeat its analysis here. Next, the Court finds that Plaintiff has not put forth evidence showing that Defendant’s reason did not actually motivate its decision to terminate Plaintiff. Take first Ms. Jones’ alleged comment. It is true that “discriminatory remarks may serve as evidence of pretext because they indicate the presence of animus toward a protected group.” Vincent v. Brewer Co., 514 F.3d 489, 498 (6th Cir. 2007) (citing Tuttle v. Metro. Gov’t of Nashville, 474 F.3d 307, 320 (6th Cir. 2007 . However, the probative value of Ms. Jones’ alleged comment is undercut by the fact that Plaintiff has failed to adduce evidence that she played any role in the decision to terminate Plaintiff or in the decision to investigate him. See Geiger v. Tower Auto., 579 F.3d 614, 621 (6th Cir. 2009) 14. It is undisputed that Plaintiff was indeed replaced by a White male under forty (40). (ECF No. 30-1 at PageID 339.) 30 Case 2:19-cv-02889-MSN-cgc Document 34 Filed 06/25/21 Page 31 of 33 PageID 603 (“Statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself [cannot] suffice to satisfy the plaintiff's burden ... of demonstrating animus.”) (alteration in original) (quoting Bush v. Dictaphone Corp., 161 F.3d 363, 369 (6th Cir. 1998 ; Blizzard, 698 F.3d at 287. Second, the comments by Ms. Morella do not push Plaintiff over the threshold either. As an initial matter, Plaintiff fails to identify with any particularity any other comments by Ms. Morella outside of her comment at Plaintiff’s termination meeting. Instead, his affidavit contains a blanket assertion that Ms. Morella “repeatedly asked me when I was going to retire.” (ECF No. 30-21 at PageID 454.) “In determining the materiality of allegedly discriminatory statements, [courts] consider four factors, none of which are dispositive: (1) whether the statements were made by a decision-maker . . .; (2) whether the statements were related to the decision-making process; (3) whether the statements were more than merely vague, ambiguous or isolated remarks; and (4) whether they were made proximate in time to the act of termination.” Pelcha, 988 F.3d at 325 (internal quotations omitted) (quoting Diebel v. L & H Res., LLC, 492 F. App’x 523, 527 (6th Cir. 2012 ; see also Ercegovich, 154 F.3d at 355–56. Plaintiff’s failure to elucidate his claims proves critical here. Without more, there is no way to determine the probative value of these comments because questions about retirement alone are not probative on whether discriminatory animus exists. See Woythal v. Tex-Tenn Corp., 112 F.3d 243, 247 (6th Cir. 1997) (“However, as the district court noted, these questions about his plans for the future do not amount to evidence that Woythal’s age was the reason for his departure[.]”); see also Metz v. Titanium Metals Corp., 475 F. App’x 33, 35 (6th Cir. 2012); Mastellone v. Publix Super Mkt., Inc., 179 F. Supp. 3d 784, 797 (E.D. Tenn. 2016). The Court cannot gather from the record the context in which these comments occurred, the tone of these 31 Case 2:19-cv-02889-MSN-cgc Document 34 Filed 06/25/21 Page 32 of 33 PageID 604 comments, if these comments ceased, or if these comments bear any connection to the decision to terminate Plaintiff. See Geiger, 579 F.3d at 621; see also Blizzard, 698 F.3d at 285 (“[T]he plaintiff has the burden to produce ‘sufficient evidence from which a jury could reasonably reject [the employer's] explanation of why it fired her.’”) (citation omitted). This leaves the comment by Ms. Morella to Plaintiff that “I bet you wish you had retired now” as Plaintiff’s only concrete example of any potential age-discrimination. This is not sufficient evidence. Several facts support this conclusion. First, the investigation that eventually led to Plaintiff’s termination was conducted by ETL-AP Gary Alexander, a Black male. Plaintiff has made no aspersions questioning Mr. Alexander’s motives or the results of his investigation. Next, Plaintiff had three (3) opportunities to explain his actions. He did not. Further, the presence and involvement of the Store Director Mr. Townsend in Plaintiff’s termination makes it less likely that Defendant relied on a discriminatory reason. Plaintiff has made no suggestions that Mr. Townsend harbored any discriminatory animus against him. Further, outside of this comment by Ms. Morella, Plaintiff points to no other probative evidence calling into question Defendant’s proffered reason. Thus, Plaintiff has failed to meet his burden. Finally, the Court finds that Defendant’s proffered reason was not insufficient to justify Plaintiff’s termination. To make this argument, a plaintiff usually points to “other employees, particularly employees not in the protected class, were not fired even though they were engaged in substantially identical conduct” which resulted in the plaintiff’s termination. Blizzard, 698 F.3d at 286–87. Here, Plaintiff has not pointed to any other employee who engaged in similar conduct but was not terminated. Indeed, all the examples Plaintiff could cite were employees who were terminated. As mentioned above, this argument is backwards. 32 Case 2:19-cv-02889-MSN-cgc Document 34 Filed 06/25/21 Page 33 of 33 PageID 605 After review, Plaintiff cannot marshal sufficient, probative evidence showing that Defendant’s proffered reason was pretextual. In the ADEA context, Plaintiff needed to show that his age was the “but-for” cause of his termination. See Provenzano, 663 F.3d at 818. He did not. The only relevant evidence is Plaintiff’s general reference to comments made by Ms. Morella concerning his plans to retire and her comment at his termination meeting. This is not enough to meet the ADEA’s “but-for” standard. Accordingly, Defendant’s motion is GRANTED as to this claim. Conclusion For the reasons stated herein, Defendant’s Motion for Summary Judgment, (ECF No. 27), is GRANTED. Judgment will be entered in favor of Defendant and this matter will be DISMISSED WITH PREJUDICE IT IS SO ORDERED, this the 25th day of June, 2021. s/ Mark Norris MARK S. NORRIS UNITED STATES DISTRICT JUDGE 33
=== 18-2591 ===
Case 2:18-cv-02591-MSN-cgc Document 73 Filed 08/28/20 Page 1 of 23 PageID 1007 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION VALORIE JACOBS, Plaintiff, v. PEABODY HOTEL GROUP, INC., and PEABODY MANAGEMENT, INC., Defendants. No. 2:18-cv-02591-MSN-cgc ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Plaintiff, Valorie Jacobs, brought this action against Defendants, Peabody Hotel Group, Inc. (“PHGI”) and Peabody Management, Inc. (“PMI”), alleging discrimination on the basis of race, retaliatory discharge, and hostile work environment in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2, -3. (ECF No. 22.) Before the Court is Defendants’ Motion for Summary Judgment, filed on August 8, 2019. (ECF No. 40.) Plaintiff responded to Defendants’ Motion on September 5, 2019. (ECF No. 43.) Defendants filed their Reply on September 19, 2019. (ECF No. 45.) The issue before the Court is whether Plaintiff has presented sufficient evidence of race- based retaliation and hostile work environment to warrant presentation of her claims to a jury. For the reasons set forth below, Defendants’ Motion for Summary Judgment is DENIED as to Plaintiff’s retaliatory discharge claim and GRANTED as to Plaintiff’s hostile work environment and punitive damages claims. I. BACKGROUND Case 2:18-cv-02591-MSN-cgc Document 73 Filed 08/28/20 Page 2 of 23 PageID 1008 The following facts are undisputed unless noted. The Peabody Memphis Hotel is a renowned luxury hotel located in downtown Memphis, Tennessee. While Defendant PHGI owns the property upon which the Peabody Memphis Hotel sits, it does not have any employees. (ECF No. 44 at PageID 557.) Instead, Defendant PMI employs individuals working at the Peabody Memphis Hotel. (Id.) On October 2, 2015, PMI hired Plaintiff, who is African American, to work as a nail technician in the Feathers Spa at the Peabody Memphis Hotel. (ECF No. 44 at PageID 558.) Doug Browne (“Mr. Browne”) is the General Manager of PHGI. (See ECF No. 40-1 at PageID 477.) Donna Golden (“Ms. Golden”) is the Director of Human Resources for the Peabody Memphis; she has been in that position since January 2015. (ECF No. 44 at PageID 558.) Karen Foley (“Ms. Foley”) is the Assistant Director of Human Resources and reports to Ms. Golden. (Id. at PageID 558–59.) Scott Boucher (“Mr. Boucher”) is the Hotel Manager at the Peabody Memphis. (ECF No. 40-1 at PageID 479.) Lisa Rafferty (“Ms. Rafferty”), a white female, was Plaintiff’s direct supervisor at the Feathers Spa at all times relevant to Plaintiff’s complaint and reported to Mr. Boucher. (ECF No. 44 at PageID 559; ECF No. 39-1 at PageID 143.) In March 2016, Ms. Rafferty promoted Plaintiff to the position of lead technician, with an increase in pay. (ECF No. 44 at PageID 559.) In 2017, Plaintiff received another pay raise. (Id.) In her amended complaint, Plaintiff alleges she was subjected to hostile work environment and racial discrimination by Ms. Rafferty during her employment at PMI. (ECF No. 22 at PageID 71.) In particular, Plaintiff alleges Ms. Rafferty used racial epithets such as “monkey” and “pretty black girl” in reference to Plaintiff and other African American employees at work. (ECF No. 43 at PageID 550.) The affidavit of PMI’s former employee, Ginger Watkins, also provides that Ms. Rafferty made several offensive comments referencing African American employees such as, “we 2 Case 2:18-cv-02591-MSN-cgc Document 73 Filed 08/28/20 Page 3 of 23 PageID 1009 have too many monkeys around here,” and called African American employees “bottom feeders.” (ECF No. 43-1 at PageID 555.) Plaintiff also maintains Ms. Rafferty routinely gave preferential treatment to white employees over African American employees in instances “including, but not limited to, booking clients, going home early, and use of the company spa and gym.” (ECF No. 22 at PageID 71.) Plaintiff alleges she complained to Mr. Boucher about additional incidents where she was inappropriately called “bitch” and “black bitch” by other employees at work. (ECF No. 43 at PageID 546.) Plaintiff further avers in February of 2017, a white coworker yelled at her, cursed at her, and advised her he was “sick of black people.” (ECF No. 22 at PageID 71.) Plaintiff purports she reported the pattern of racial hostility to Ms. Golden and Mr. Browne, but no action was taken to address the discriminatory behavior. (Id.) On August 10, 2017, Plaintiff wrote an anonymous letter to Ronald Belz, the president of PHGI, complaining of Ms. Rafferty’s alleged discriminatory behavior toward African American employees and unprofessional management practices. (ECF No. 40-8.) Plaintiff avers Defendants were able to identify her as the author of the letter due to her past complaints of discrimination to upper management. (ECF No. 44 at PageID 567.) Defendants, however, disagree and maintain that the managers who terminated Plaintiff had no knowledge that Plaintiff authored the anonymous letter sent to Mr. Belz. (ECF No. 40-1 at PageID 477.) In any event, Ms. Golden informed Ms. Rafferty that a complaint had been made about the spa and that Human Resources would be conducting an investigation. (ECF No. 39-1 at PageID 255-56.) Ms. Golden and Ms. Foley conducted an investigation into the allegations stated in the letter to Mr. Belz by interviewing all spa employees, with the exception of Ms. Rafferty, from August 17, 2017 to August 21, 2017. (See Id. at PageID 258.) During the investigation, 3 Case 2:18-cv-02591-MSN-cgc Document 73 Filed 08/28/20 Page 4 of 23 PageID 1010 Defendants did not disclose to Ms. Rafferty, or any spa employees, the existence of the letter to Mr. Belz or the precise nature of the allegations contained therein. (Id. at PageID 258–59.) The results of the investigation, including questions asked to spa employees and their responses, reveal that spa employees as a whole were concerned about favoritism in booking clients, employee grooming standards, arguing in front of customers, and need for additional supplies. See ECF No. 46-3. A few days later, on August 25, 2017, Ms. Rafferty reported Plaintiff to upper management for allegedly accessing prohibited areas in the Peabody’s computer management system, Book4Time—Book4Time was used to order supplies and book appointments at the Feathers Spa and contained personal and financial information of other employees. (See ECF No. 44 at PageID 562; ECF No. 40-1 at PageID 474.) According to Ms. Rafferty, the breach occurred on August 24, 2017. (ECF No. 44 at PageID 561). On August 25, 2017, Ms. Golden and Ms. Foley met with Plaintiff to discuss whether she accessed unauthorized administrative areas of Book4Time. (Id. at PageID 562.) Plaintiff denied any wrongdoing and argued that Ms. Rafferty knew her login credentials. (Id.) At the conclusion of the meeting, Plaintiff was placed on suspension pending further investigation. (Id. at PageID 563.) On the night of August 25, 2017, after Plaintiff’s suspension meeting, Plaintiff sent a text message to Ms. Rafferty stating, “you nor Scott will get away with what you did to me..I will see all of you in court..Lisa Marie Fry Perkins Rafferty you are a liar and I will not sit back and take what you have done..I’ll see you soon.” (ECF No. 40-3 at PageID 505.) Defendants argue said text message was “threatening”; Plaintiff maintains the text was an “organic reaction to someone who was treated poorly.” (ECF No. 44 at PageID 564.) 4 Case 2:18-cv-02591-MSN-cgc Document 73 Filed 08/28/20 Page 5 of 23 PageID 1011 During their investigation, Ms. Golden and Ms. Foley discovered that Plaintiff’s password had been used to access unauthorized areas of Book4Time on several occasions prior to the August 24, 2017 breach reported by Ms. Rafferty. (Id.) Ms. Golden and Ms. Foley also found that on at least one occasion, Plaintiff’s login information was used to alter time records in the system to Plaintiff’s advantage. (ECF No. 40-1 at PageID 480.) Ms. Golden and Ms. Foley ruled out the spa’s receptionist as the perpetrator because “video surveillance . . . showed the receptionist had left the spa on errands at the time the system was being accessed with Plaintiff’s credentials, and the receptionist would not have had remote access to the system.” (ECF No. 44 at PageID 563– 64.) On August 30, 2017, after completing their investigation, Ms. Golden and Ms. Foley met with Plaintiff and terminated her for violating multiple company policies. (Id. at PageID 565.) According to Defendants, Plaintiff, prior to being fired, claimed she had information that would exonerate her from having accessed Book4Time but refused to provide such information to Ms. Golden or Ms. Foley. (ECF No. 44 at PageID 566; ECF No. 39-1 at PageID 268–69.) Plaintiff disputes this and avers that during the termination meeting, Plaintiff continued to allege Ms. Rafferty used her login information to access restricted areas of Book4Time and altered her time records. (ECF No. 44 at PageID 566.) Ms. Golden ultimately concluded that “Plaintiff was responsible for her password” and that “she was the only person in the spa at the time of the usage and, therefore, responsible for accessing the inappropriate areas of the computer.” (ECF No. 39- 1 at PageID 267.) Mr. Browne approved the termination decision “based on his confidence in the investigation conducted by PMI’s human resources department.” (Id.) After her termination, Plaintiff filed a charge with the Equal Employment Opportunity Commission and subsequently obtained a notice of right to sue on August 8, 2018. (ECF No. 3.) 5 Case 2:18-cv-02591-MSN-cgc Document 73 Filed 08/28/20 Page 6 of 23 PageID 1012 On August 30, 2018, Plaintiff filed a complaint against PHGI alleging retaliatory discharge and hostile work environment based on race in violation of Title VII; Plaintiff also states a claim for punitive damages under Title VII. (ECF No. 1.) Plaintiff maintains she did not alter her time records or access any unauthorized areas of Book4Time and further avers Ms. Rafferty had her login information, used it to access Book4Time, “and then reported [said] access to management in an ultimately successful effort to get [her] fired.” (Id. at PageID 562.) Plaintiff further alleges Ms. Golden and Ms. Foley did not adequately investigate whether Ms. Rafferty was responsible for the breach or changing Plaintiff’s time records. (Id. at PageID 565.) On October 25, 2018, PHGI filed an answer. (ECF No. 20.) On October 25, 2018, Plaintiff amended her complaint to add PMI as a defendant. (ECF No. 22.) On August 8, 2019, Defendants filed the instant Motion for Summary Judgment. (ECF No. 40.) II. STANDARD OF REVIEW Under Federal Rule of Civil Procedure 56, a court shall grant a party’s motion for summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party asserting the presence or absence of genuine issues of material facts must support its position either by “citing to particular parts of materials in the record,” including depositions, documents, affidavits or declarations, stipulations, or other materials, or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1); see also Celotex Corp. v. Catrett, , 322–23 (1986 ; Asbury v. Teodosio, 412 F. App’x 786, 791 (6th Cir. 2011). Fed. R. Civ. P. 56(c)(1). When ruling on a motion for summary judgment, the Court must view the facts contained in the record and all reasonable inferences that can be drawn therefrom 6 Case 2:18-cv-02591-MSN-cgc Document 73 Filed 08/28/20 Page 7 of 23 PageID 1013 in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., , 587 (1986); Nat’l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence, judge the credibility of witnesses, or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., , 249 (1986). The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex, 477 U.S. at 323. The moving party may discharge this burden either by producing evidence that demonstrates the absence of a genuine issue of material fact or simply “by ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325. When confronted with a properly supported motion for summary judgment, the nonmoving party must set forth specific facts showing that there is a genuine dispute for trial. See Fed. R. Civ. P. 56(c). “A genuine dispute exists when the plaintiff presents significant probative evidence on which a reasonable jury could return a verdict for her.” EEOC v. Ford Motor Co., 782 F.3d 753, 760 (6th Cir. 2015) (quotation marks omitted). The nonmoving party must do more than simply “‘show that there is some metaphysical doubt as to the material facts.’” Adcor Indus., Inc. v. Bevcorp, LLC, 252 F. App’x 55, 61 (6th Cir. 2007) (quoting Matsushita, 475 U.S. at 586). A party may not oppose a properly supported summary judgment motion by mere reliance on the pleadings. See Beckett v. Ford, 384 F. App’x 435, 443 (6th Cir. 2010) (citing Celotex Corp., 477 U.S. at 324). Instead, the nonmoving party must adduce concrete evidence on which a reasonable juror could return a verdict in her favor. Stalbosky v. Belew, 205 F.3d 890, 895 (6th Cir. 2000); see Fed. R. Civ. P. 56(c)(1). 7 Case 2:18-cv-02591-MSN-cgc Document 73 Filed 08/28/20 Page 8 of 23 PageID 1014 The Court’s role is limited to determining whether there is a genuine dispute about a material fact, that is, if the evidence in the case “is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. To start, the Court does not have the duty to search the record for such evidence. See Fed. R. Civ. P. 56(c)(3); InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). Additionally, the Court must “view the evidence presented through the prism of the substantive evidentiary burden” applicable to the case. Anderson, 477 U.S. at 254. Thus, if the plaintiff’s evidentiary standard of proof at trial is preponderance of the evidence, then on a motion for summary judgment the Court must determine whether a jury could reasonably find that the plaintiff’s factual contentions are true by a preponderance of the evidence. See id. at 252–53. “When the non-moving party fails to make a sufficient showing of an essential element of his case on which he bears the burden of proof, the moving parties are entitled to judgment as a matter of law and summary judgment is proper.” Chapman v. UAW Local 1005, 670 F.3d 677, 680 (6th Cir. 2012) (en banc). Courts must analyze a motion for summary judgment with due regard not only for the rights of the party “asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury,” but also for the rights of those “opposing such claims and defenses to demonstrate in the manner provided by [Rule 56], prior to trial, that the claims and defenses have no factual basis.” Celotex, 477 U.S. at 327. III. DISCUSSION As an initial matter, both parties agree that PHGI is not a proper party to this suit because PHGI did not employ Plaintiff. (See ECF No. 40-1 at PageID 475; ECF No. 43 at PageID 545.) Accordingly, Defendant PHGI is hereby DISMISSED from this lawsuit WITH PREJUDICE. 8 Case 2:18-cv-02591-MSN-cgc Document 73 Filed 08/28/20 Page 9 of 23 PageID 1015 Plaintiff’s amended complaint advances three causes of action under Title VII: (1) retaliation, (2) hostile work environment, and (3) punitive damages. Defendants contend Plaintiff has failed to show any genuine dispute as to material fact on any of these claims, and therefore judgment as a matter of law in favor of Defendants is appropriate. The Court will first address Plaintiff’s retaliation claim before moving onto her claims for hostile work environment and punitive damages. A. Retaliation To establish a prima facie case of retaliation under Title VII, a plaintiff must show by a preponderance of the evidence that (1) she engaged in an activity protected by Title VII; (2) this exercise of her protected rights was known to the defendant; (3) defendant thereafter took an employment action adverse to the plaintiff; and (4) there was a causal connection between the protected activity and the adverse employment action. Arban v. West Pub. Corp., 345 F.3d 390, 404 (6th Cir. 2003). If the plaintiff establishes a prima facie case, then the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the plaintiff’s discharge. Morris v. Oldham County Fiscal Court, 201 F.3d 784, 792 (6th Cir. 2000) (citing McDonnell Douglas Corp. v. Green, , 802 (1973 . The plaintiff must then demonstrate that the proffered reason was not the true reason for the adverse employment action—i.e., that the reason was a mere pretext for discrimination. Id. (citations omitted). Here, Defendants concede the first and third prong of Plaintiff’s prima facie case. However, the parties dispute whether upper management at PMI had knowledge of Plaintiff’s protected activities—i.e., Plaintiff’s letter to Mr. Belz and Plaintiff’s previous complaints to upper management about racial harassment—and whether there was a causal connection between said protected activities and Plaintiff’s termination. 9 Case 2:18-cv-02591-MSN-cgc Document 73 Filed 08/28/20 Page 10 of 23 PageID 1016 1. Defendants’ Knowledge The decisionmaker’s knowledge of the protected activity is an essential element of the prima facie case of unlawful retaliation. See Mulhall v. Ashcroft, 287 F.3d 543, 551 (6th Cir. 2002). Defendants contend that “the management personnel charged with the decision to terminate Plaintiff (Ms. Golden and Karen Foley, with approval from General Manager Doug Browne) had no knowledge that Plaintiff was the author of the anonymous letter sent to Mr. Belz.” (ECF No. 40-1 at PageID 477.) It is undisputed that when Ms. Golden and Ms. Foley received a copy of the letter, they suspected it had been written by former employee, Ginger Watkins; however, they did not investigate the identity of the author at the time they received the letter. (ECF No. 44 at PageID 567.) Plaintiff did not inform Ms. Rafferty or anyone in human resources that she was the author of the letter prior to filing the instant lawsuit. (Id. at PageID 566.) Nonetheless, Plaintiff argues that a logical explanation for her termination is that Defendants made the adverse decision based upon her letter to Mr. Belz. This, according to Plaintiff, is one way to reconcile Defendants’ abrupt decision to terminate her. However, Plaintiff has failed to produce any evidence, direct or circumstantial, to support her contention that Ms. Golden, Ms. Foley, or Mr. Browne, were aware Plaintiff authored the August 10, 2017 letter to Mr. Belz. To survive a summary judgment motion, a plaintiff must put forward more than speculations or intuitions. Mulhall, 287 F.3d at 552 (holding that the plaintiff failed to establish knowledge on the part of the decisionmaker where plaintiff did not adduce any evidence, direct or circumstantial, to rebut evidence that decisionmaker had no knowledge and plaintiff offered “only conspiratorial theories, not the specific facts required under the Federal Rule of Civil Procedure 56.”) (citing Visser v. Packer Eng’g Assocs., Inc., 924 F.2d 655, 659 (7th Cir. 1991) (en banc) (holding that summary judgment was appropriate where the inferences plaintiff sought to draw 10 Case 2:18-cv-02591-MSN-cgc Document 73 Filed 08/28/20 Page 11 of 23 PageID 1017 from evidence were akin to “flights of fancy, speculations, hunches, intuitions, or rumors about matters remote from [personal] experience” rather than opinions grounded in fact, direct observation, or other first-hand personal experience). Accordingly, Plaintiff has failed to establish the “knowledge prong” of the prima facie case with respect to her August 10, 2017 letter to Mr. Belz. Next, the Court must analyze whether Defendants had knowledge of Plaintiff’s other protected activities—i.e., various reports of racial discrimination to upper management preceding her letter to Mr. Belz. According to the record, a meeting took place between Plaintiff and Ms. Golden sometime in 2016 or 2017, though the parties dispute the purpose of the meeting and the topics that were discussed. (ECF No. 44 at PageID 559–60.) Plaintiff avers she met with Ms. Golden to “complain of racial discrimination” by Ms. Rafferty and other PMI employees. Defendants on the other hand aver said meeting was held to discuss issues regarding scheduling appointments in the spa. (ECF No. 44 at PageID 559–60.) Notwithstanding, both parties agree that after said meeting, Ms. Rafferty did not make any additional derogatory comments toward Plaintiff. (Id. at PageID 560.) Considering this outcome, and all reasonable inferences therefrom in the light most favorable to Plaintiff, the Court finds there is a genuine issue of material fact as to whether Defendants had knowledge of at least one instance of Plaintiff reporting workplace discrimination and harassment to upper management. Plaintiff also avers that in February 2017 she complained to Mr. Boucher about an instance where a coworker, Tony Schubert, called her a “black bitch.” (Id.); (ECF No. 44-1 at PageID 623.) Defendants aver that human resources “was not aware of that allegation until after Plaintiff filed her lawsuit” and that “Plaintiff brought the matter to the attention of [Ms.] Rafferty, and [Ms.] Rafferty addressed it.” (ECF No. 44 at PageID 559–60.) Notably, neither Defendants nor Plaintiff 11 Case 2:18-cv-02591-MSN-cgc Document 73 Filed 08/28/20 Page 12 of 23 PageID 1018 submit direct proof supporting their views as to who knew what and when. The parties’ conflicting deposition testimony and lack of record evidence as to this claim leaves the Court in the position of weighing the credibility of Defendants’ testimony and Plaintiff’s testimony, which it cannot do at the summary judgment stage. Therefore, construing the facts in the light most favorable to Plaintiff, the Court finds there is a genuine issue of material fact as to whether Defendants, via Mr. Boucher, knew about Plaintiff’s complaint about Tony Schubert. 2. Causal Connection “The text, structure, and history of Title VII demonstrate that a plaintiff making a retaliation claim under [42 U.S.C.] § 2000e-3(a) must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer.” Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013). To establish the requisite causal connection, a plaintiff must “‘proffer evidence sufficient to raise the inference that [his or] her protected activity was the likely reason for the adverse action.’” EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997) (quoting Zanders v. National R.R. Passenger Corp., 898 F.2d 1127, 1135 (6th Cir. 1990) (internal quotations and citations omitted). The burden of proof at the prima facie stage is minimal; all the plaintiff must do is put forth some credible evidence that enables the court to deduce that there is a causal connection between the retaliatory action and the protected activity. Avery, 104 F.3d at 861. Stated differently, the plaintiff must put forth credible evidence demonstrating that “the desire to retaliate was the but-for cause of the challenged adverse employment action.” Nassar, 570 U.S. at 352 (citing Gross v. FBL Fin. Servs., 557 U.S. 167, 176 (2009 . Plaintiff argues that the temporal proximity between her termination and her complaints of race discrimination and hostile work environment, taken together, support an inference that her 12 Case 2:18-cv-02591-MSN-cgc Document 73 Filed 08/28/20 Page 13 of 23 PageID 1019 termination would not have occurred had Plaintiff not spoken out. In the Sixth Circuit, “[p]roof of temporal proximity between the protected activity and the adverse employment action, ‘coupled with other indicia of retaliatory conduct,’ may give rise to a finding of a causal connection.” Dixon v. Gonzales, 481 F.3d 324, 333 (6th Cir. 2007) (quoting Randolph v. Ohio Dep’t of Youth Servs., 453 F.3d 724, 737 (6th Cir. 2006 . However, the more time that elapses between the protected activity and the adverse employment action, the more the plaintiff must supplement her claim with “other evidence of retaliatory conduct to establish causality.” See Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 524–25 (6th Cir. 2008). In the instant case, the temporal proximity between the date of Plaintiff’s letter to Mr. Belz (August 10, 2017) and Ms. Rafferty’s reporting Plaintiff to human resources management for accessing unauthorized areas of Book4Time (August 25, 2017) forms the foundation of Plaintiff’s retaliatory discharge claim. However, because Ms. Golden, Ms. Foley, and Mr. Browne (the ultimate decision makers) were unaware of the fact that Plaintiff authored the letter to Mr. Belz prior to Plaintiff’s suspension, the Court need not consider whether the letter itself was the but-for cause of Plaintiff’s termination. The Court must instead consider whether Plaintiff’s in-person complaints of racial discrimination and hostile work environment, coupled with other indicia, support the causation element of her retaliation claim. Viewing the facts in the light most favorable to Plaintiff, it appears that Defendants learned of a protected activity as late as February 2017—i.e., Plaintiff’s complaint to Mr. Boucher about Tony Schubert, calling Plaintiff a “black bitch” and complaining he was “sick of black people.” (See ECF No. 22 at PageID 71; ECF No. 44-1 at PageID 623.) And while the passage of time between Plaintiff’s in-person complaint and her suspension— 13 Case 2:18-cv-02591-MSN-cgc Document 73 Filed 08/28/20 Page 14 of 23 PageID 1020 roughly six months—is not short enough in itself to establish prima facie causal connection,1 Plaintiff has submitted sufficient proof to create a genuine issue of fact that Ms. Rafferty harbored animosity toward Plaintiff and reported her to upper management in retaliation for Plaintiff’s complaints about the spa. The fact that Ms. Rafferty reported the Book4Time breach shortly after Ms. Golden and Ms. Foley’s investigation of what Ms. Rafferty knew as an anonymous employee “complaint” about the spa (i.e., the letter sent to Mr. Belz), coupled with Plaintiff’s past complaints about Ms. Rafferty, could lead a reasonable jury to conclude that Ms. Rafferty somehow deduced or found out that Plaintiff was the source of the complaint, thus giving Ms. Rafferty motive to retaliate against Plaintiff. In addition to motive, Plaintiff also provides sufficient evidence of Ms. Rafferty’s knowledge of Plaintiff’s Book4Time login information through text messages between her and Ms. Rafferty, (ECF No. 44-1 at PageID 772–76), and the affidavit of Ginger Watkins (ECF No. 43-1). Ginger Watkins’s affidavit provides that Ms. Rafferty “gave out her Book4Time login passwords to employees all the time” and “had other employee’s Book4Time login passwords.” (ECF No. 43-1 at PageID 556.) Text messages between Plaintiff and Ms. Rafferty also reveal at least one occasion where Ms. Rafferty knew of Plaintiff’s login information: Plaintiff texted Ms. Rafferty, “my password is not working, please fix it..its JacobsV-Motherof1,” to which Ms. Rafferty responded, “ok I’ll fix your login and password.” (ECF No. 44-1 at PageID 776.) This evidence of Ms. Rafferty’s ability to carry out the alleged retaliatory act, coupled with the proximity of Plaintiff’s termination to her complaints of race discrimination and hostile work 1. See Lewis-Smith v. W. Ky. Univ., 85 F. Supp. 3d 885, 911 (W.D. Ky. Jan. 8, 2015) (citing Cooper v. City of N. Olmsted, 795 F.2d 1265, 1272 (6th Cir. 1986 (holding that a four-month window between the adverse employment action and the plaintiff’s termination is insufficient to establish causation.) 14 Case 2:18-cv-02591-MSN-cgc Document 73 Filed 08/28/20 Page 15 of 23 PageID 1021 environment to Ms. Raftery and upper management, plausibly supports the inference of the causal connection element of Plaintiff’s prima facie case at the summary judgment stage. In sum, there are several genuine issues of material fact in dispute which preclude the Court from finding that Plaintiff cannot prove causation. Accordingly, the Court finds Plaintiff has made the initial prima facie case for retaliation under Title VII. 3. Employer’s Non-discriminatory Rationale and Pretext Because Plaintiff has established a prima facie case for retaliation, the burden now shifts to Defendants to produce evidence of a legitimate, non-discriminatory reason for firing Plaintiff. See Barrow v. City of Cleveland, 773 Fed. Appx. 254, 261 (6th Cir. 2019). In the instant case, Defendants assert Plaintiff was fired for violating multiple company policies including “accessing of forbidden administrative files, altering her time card, . . . being untruthful during the course of an investigation, [and] swearing at management during the termination meeting.” (ECF No. 40-1 at PageID 481.) Defendants also contend “Plaintiff’s inconsistent and untruthful statements given during the Company’s investigation, compounded with . . . her aggressive and unprofessional conduct, were additional factors leading to the decision to terminate her.” (Id. at PageID 482.) As evidence, Defendants point to an excerpt of the Book4Time log showing that Plaintiff’s login was used to access multiple areas of the system containing information about other employee’s earnings, performance history, employee ID, and other private employer-employee data. (ECF No. 46-2); (See ECF No. 39-1 at PageID 149–68 (explaining the nature of the employee information contained in each unauthorized area . In addition, Defendants contend surveillance footage from the spa revealed that Plaintiff was the only person in the spa at the time of improper usage. (ECF No. 39-1 at PageID 267.) Plaintiff also texted Ms. Rafferty after her suspension 15 Case 2:18-cv-02591-MSN-cgc Document 73 Filed 08/28/20 Page 16 of 23 PageID 1022 meeting making inflammatory comments such as “I’ll see you in court” and calling Ms. Rafferty a “liar.” (ECF No. 40-3 at PageID 505.) Plaintiff responds that Defendants’ grounds are merely pretext for her termination. Plaintiff retains the ultimate burden of producing sufficient evidence from which a reasonable jury could reject Defendants’ proffered reasons for terminating Plaintiff and infer that Defendants intentionally discriminated against her because of her race or protected activity. A Title VII plaintiff can demonstrate pretext by showing “(1) the employer’s stated reason for terminating the employee has no basis in fact, (2) the reason offered for terminating the employee was not the actual reason for the termination, or (3) the reason offered was insufficient to explain the employer’s action.” Imwalle v. Reliance Med. Prods., 515 F.3d 531, 544 (6th Cir. 2008) (citing Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994 . Here, the gravamen of Plaintiff’s pretext argument is that Defendants’ proffered reasons for terminating her were not the actual reasons. Specifically, Plaintiff contends Defendants’ reasons for terminating her are pretextual because Defendants decided to enforce ambiguous rules about Book4Time fifteen days after she sent her letter to Mr. Belz. However, Plaintiff does not rebut Defendants’ argument that, though there were no written rules regarding lead spa employees’2 usage of Book4Time, Plaintiff was nevertheless aware of the areas which she was not allowed to access. Plaintiff also argues that Ms. Rafferty’s knowledge of Plaintiff’s login credentials and ability to log into Book4Time remotely shows pretext. Finally, Plaintiff argues that because Ms. Golden and Ms. Foley knew Ms. Rafferty was the subject of the anonymous letter sent to Mr. Belz, Ms. 2 Plaintiff held the title of Lead Nail Technician and was considered a “spa lead” at the time of her termination. (ECF No. 44 at PageID 559.) 16 Case 2:18-cv-02591-MSN-cgc Document 73 Filed 08/28/20 Page 17 of 23 PageID 1023 Golden and Ms. Foley should not have given credit to Ms. Rafferty’s report of Plaintiff’s unauthorized access to Book4Time. To survive summary judgment, “a plaintiff must show substantial evidence from which a jury could reasonably doubt the employer’s explanation.” Montell v. Diversified Clinical Servs., 757 F.3d 497, 508 (6th Cir. 2014). Here, the Court finds Plaintiff has shown sufficient evidence of potential animus by Ms. Rafferty that—along with evidence of Ms. Rafferty’s knowledge of employees’ login information and the disputed basis for the termination—raises a genuine issue as to whether Defendants’ proffered reasons actually motivated Plaintiff’s termination. The period of time between Ms. Rafferty and Ms. Foley’s investigation of the letter to Mr. Belz and Ms. Rafferty’s report of the Book4Time incident was short—4 days. Despite the close timing, it is undisputed that during their investigation of the Book4Time incident, Ms. Golden and Ms. Foley did not pause to substantially question Ms. Rafferty’s ability to alter Book4Time records covertly or her motivations for reporting Plaintiff. This raises at least a genuine issue of material fact as to whether Defendants’ proffered reasons for terminating Plaintiff were pretextual. Though Defendants’ reasons for terminating Plaintiff may appear justified at first glance, after careful review of the record, the Court finds there is sufficient evidence from which a jury could reasonably reject Defendants’ explanation. See generally Singfield v. Akron Metro. Hous. Auth., 389 F.3d 555, 564 (6th Cir. 2004) (opining courts should be cautious about granting summary judgment in Title VII retaliation cases once plaintiff has established a prima facie case because “the employer’s true motivations are particularly difficult to ascertain” and are “elusive”). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Anderson, 477 U.S. at 255 (1986); Garza v. Lansing Sch. District, No. 19-1645, at 20–21 (6th Cir. Aug. 28, 2020). The Court 17 Case 2:18-cv-02591-MSN-cgc Document 73 Filed 08/28/20 Page 18 of 23 PageID 1024 must consider the evidence presented in the light most favorable to Plaintiff and draws all justifiable inferences in her favor. Accordingly, Defendants’ Motion for Summary Judgment as to Plaintiff’s retaliation claim is DENIED. B. Hostile Work Environment In order to establish a prima facie case of hostile work environment based on race under Title VII, a plaintiff must show that: (1) she is a member of a protected class; (2) she was subject to unwelcome harassment; (3) the harassment was based on race; (4) the harassment affected a term, condition, or privilege of employment; and (5) the defendant knew or should have known about the harassment and failed to take action. Moore v. KUKA Welding Systems & Robot Corp., 171 F.3d 1073, 1078–79 (6th Cir. 1999). The Supreme Court applies a totality of the circumstances approach to determine whether a hostile work environment claim is actionable considering: “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Faragher v. City of Boca Raton, 524 U.S. 775, 787–88 (1998) (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993 (internal quotations omitted). The “conduct must be extreme to amount to a change in the terms and conditions of employment.” Id. at 788. In other words, the harassment must have “adversely affected the employee’s ability to do his or her job.” Moore, 171 F.3d at 1079. “Simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” Faragher, 524 U.S. at 787–88 (internal quotations and citations omitted). 18 Case 2:18-cv-02591-MSN-cgc Document 73 Filed 08/28/20 Page 19 of 23 PageID 1025 Again, the parties do not dispute that Plaintiff is African American and, therefore, a member of a protected class. However, Defendants contend that Plaintiff cannot establish the remaining elements of the prima facie case. Plaintiff points to four instances during her employment at PMI to support her hostile work environment claim. First, Plaintiff alleges Ms. Rafferty used racial epithets such as “monkey” and “pretty black girl” in reference to Plaintiff and other African American employees in the Feathers Spa. (ECF No. 43 at PageID 550); (ECF No. 44-1 at PageID 773) (showing a text message from Ms. Rafferty to Plaintiff stating, “come to my office pretty black girl I have Peabody Bucks for you.”). Second, Plaintiff avers that in February of 2017, a white coworker yelled at her, cursed at her, and advised her he was “sick of black people.” (ECF No. 22 at PageID 71.) Third, Plaintiff avers that in 2017 a co-worker, Tony Schubert, called her a “black bitch.” (ECF No. 44 at PageID 560.) Fourth, Plaintiff argues white spa employees routinely received preferential treatment to African American employees in instances including, but not limited to, booking clients, going home early, taking longer lunch breaks, and use of the company spa and gym. (ECF No. 43 at PageID 549–50.) Plaintiff further alleges that preferential treatment in the booking of clients had consequences for the salaries of African American employees because part of their compensation was based on tips. (Id.) Even viewing the evidence in the light most favorable to Plaintiff, the Court finds that these events, when considered as a whole, do not rise to the level of an actionable hostile work environment claim under Sixth Circuit precedent To start, the alleged racial comments, though offensive and condemnable, were not ongoing, commonplace, and continuous enough to alter the terms and conditions of Plaintiff’s employment. In fact, it is undisputed that after Plaintiff and Ms. Rafferty had a meeting in 2016, “Ms. Rafferty did not make any derogatory comments toward 19 Case 2:18-cv-02591-MSN-cgc Document 73 Filed 08/28/20 Page 20 of 23 PageID 1026 Plaintiff.” (See ECF No. 44 at PageID 560.) Likewise, Plaintiff fails to show how Ms. Rafferty’s alleged preferential treatment of white employees or harassing comments unreasonably interfered with her ability to do her job. There is no evidence suggesting that Plaintiff was not performing her job duties, performing them in substandard fashion, or prevented from doing her job, as a result of the alleged comments and slurs she encountered at work. To the contrary, Plaintiff appears to have been successful at work. In November 2015, Plaintiff received a “Front of the House Award.” (ECF No. 22 at PageID 559.) In March 2016, Ms. Rafferty promoted Plaintiff to the position of lead technician with an increase in pay; and in 2017, Plaintiff received another pay raise. (Id.) Though Plaintiff may have encountered deplorable racial epithets at work, under Sixth Circuit precedent, she fails to sufficiently set forth enough events which, considered as a whole, would permit a reasonable jury to properly conclude that Defendants created a hostile work environment based on race.3 “(W)e continue to apply ‘standards for judging hostility [that] are sufficiently demanding to ensure that Title VII does not become a general civility code.’” Phillips v. UAW Int’l, 854 F.3d 323, 329 n.4 (6th Cir. 2017), cert. denied, 138 S. Ct. 980 (2018) (citing Faragher, 524 U.S. at 788 (1998 (internal quotation marks removed). Accordingly, Defendant’s Motion for Summary Judgment as to Plaintiff’s hostile work environment claim is GRANTED. C. Punitive Damages 3. This Court’s ruling is in line with Sixth Circuit precedent on race-based hostile work environment claims. See Watkins v. Wilkie, No. 19-4045, 2020 U.S. App. LEXIS 24768, at *2 (6th Cir. Aug. 4, 2020) (holding that two separate instances of racist remarks—first “monkey,” and then the “n-word”—over the period of one year did not give rise to a hostile work environment claim); Phillips v. UAW Int’l, 854 F.3d 323, 328 (6th Cir. 2017), cert. denied, 138 S. Ct. 980 (2018) (holding that plaintiff’s identification of seven racial comments over a period of two years “were isolated and not pervasive or severe enough to alter the terms and conditions of [plaintiff’s] employment.”); Reed v. Procter & Gamble Mfg. Co., 556 F. App’x 421, 432 (6th Cir. 2014) (no hostile work environment where plaintiff was subjected to race-based comments and his supervisor stood behind him and made a noose out of a telephone cord); Williams v. CSX Transp. Co., 643 F.3d 502, 513 (6th Cir. 2011) (finding no hostile work environment where defendant “call[ed] Jesse Jackson and Al Sharpton ‘monkeys’ and [said] that black people should ‘go back to where [they] came from’” among other racist comments). 20 Case 2:18-cv-02591-MSN-cgc Document 73 Filed 08/28/20 Page 21 of 23 PageID 1027 Under Title VII, punitive damages are limited “to cases in which the employer has engaged in intentional discrimination and has done so ‘with malice or with reckless indifference to the federally protected rights of an aggrieved individual.’” Kolstad v. Amer. Dental Ass’n, 527 U.S. 526, 529–30 (1999). To establish the prima facie case for punitive damages under Title VII, a plaintiff must prove two things. First, a plaintiff must “demonstrate that the individuals perpetrating the discrimination acted with malice or reckless disregard toward the plaintiff's federally protected rights.” E.E.O.C. v. New Breed Logistics, 783 F.3d 1057, 1072 (6th Cir. 2015). “A plaintiff satisfies this prong by demonstrating that the individual in question acted ‘in the face of a perceived risk that its actions will violate federal law.’” Id. (quoting Kolstad, 527 U.S. at 539–41). Second, a plaintiff must “show the employer is liable by establishing that the discriminatory actor worked in a managerial capacity and acted within the scope of his or her employment.” Id. However, a defendant may avoid punitive damage liability by showing that it engaged in good faith efforts to comply with Title VII. Id. Here, it is undisputed that the alleged discriminatory actors (i.e., Ms. Rafferty, Ms. Golden, Mr. Boucher, and Ms. Foley) worked in a managerial capacity at PMI and acted within the scope of his or her employment. However, the parties dispute whether Defendants acted with malice or reckless disregard in the face of Plaintiff’s Title VII rights and whether Defendants engaged in good faith efforts to comply with Title VII. As previously addressed, there is a genuine issue of material fact as to whether Defendants terminated Plaintiff in retaliation for Plaintiff’s complaints of racial discrimination and hostile work environment to Ms. Rafferty and other hotel management. Defendants argue that Ms. Golden and Ms. Foley “conducted a reasonable investigation into the events giving rise to Plaintiff’s termination and made good faith efforts to comply with Title VII and protect Plaintiff’s rights.” 21 Case 2:18-cv-02591-MSN-cgc Document 73 Filed 08/28/20 Page 22 of 23 PageID 1028 (ECF No. 40-1 PageID 488.) Plaintiff, on the other hand, avers that Ms. Golden testified to not investigating Ms. Rafferty during Plaintiff’s suspension “despite Plaintiff’s repeated pleads that Rafferty has all employees [sic] log-in information, and may be liable for the [Book4Time] violation.” (ECF No. 43 PageID 553.) Even viewing the evidence in the light most favorable to Plaintiff, the Court finds that a reasonable jury could not infer that Defendants acted with “malice or with reckless indifference” to Plaintiff’s rights under Title VII. Contrary to Plaintiff’s assertion, Ms. Foley and Ms. Golden’s failure to investigate Ms. Rafferty’s ability to access Book4Time remotely and knowledge of Plaintiff’s login information, even if true, does not support an inference of malice or reckless indifference to Plaintiff’s complaints of discrimination. See Kolstad, 527 U.S. at 539 (citing 42 U.S.C. § 1981a(b)(1 , (“pointing to evidence of an employer’s egregious behavior [provides] one means of satisfying the plaintiff’s burden to ‘demonstrate’ that the employer acted with the requisite ‘malice or . . . reckless indifference.’”). Here, the behavior of Defendants is far from “egregious” and tends to show Defendants engaged in a good-faith effort to comply with Title VII. To start, Ms. Golden and Ms. Foley conducted an independent investigation into the allegations found in the letter to Mr. Belz. Ms. Golden and Ms. Foley also made a concerted effort to investigate the Book4Time breach by reviewing Book4Time login records and surveillance footage of the spa. During her suspension meeting, Plaintiff submitted no proof of Ms. Rafferty’s ability to access Book4Time remotely and use her login information, (see ECF No. 39-1 at PageID 268–69), and Defendants otherwise had no knowledge that remote access was possible. Given these circumstances, no reasonable jury could conclude that Defendants’ decision to focus on the concrete evidence (i.e., surveillance footage, text messages, and Book4Time records) instead of Plaintiff’s unsupported allegations, 22 Case 2:18-cv-02591-MSN-cgc Document 73 Filed 08/28/20 Page 23 of 23 PageID 1029 was made in the face of a “perceived risk” that said decision “would violate federal law.” See EEOC v. Harbert-Yeargin, Inc., 266 F.3d 498, 513 (6th Cir. 2001) (quoting Kolstad, 527 U.S. at 536). In light of all the facts, no reasonable jury could find Defendants acted with malice or with reckless indifference to Plaintiff’s federally protected rights. Defendants’ Motion for Summary Judgment as to Plaintiff’s claim for punitive damages is therefore GRANTED. IV. CONCLUSION For the foregoing reasons, Defendants’ Motion for Summary Judgment (ECF No. 40) is DENIED as to Plaintiff’s retaliation claim; GRANTED as to Plaintiff’s hostile work environment claim; and GRANTED as to Plaintiff’s claim for punitive damages. IT IS SO ORDERED this 28th day of August, 2020. s/ Mark Norris MARK S. NORRIS UNITED STATES DISTRICT JUDGE 23
=== 18-2032 ===
Case 2:18-cv-02032-MSN-cgc Document 107 Filed 07/16/21 Page 1 of 26 PageID 1137 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ______________________________________________________________________________ JANE DOE, Plaintiff, v. THE UNIVERSITY OF MEMPHIS, Defendant. Case No. 2:18-cv-2032-MSN-cgc JURY DEMAND ______________________________________________________________________________ ORDER GRANTING DEFENDANT UNIVERSITY OF MEMPHIS’ MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Before the Court is Defendant University of Memphis’ Motion for Summary Judgment (“Motion”) (ECF No. 83) filed August 21, 2020. Along with its Motion, Defendant filed a Memorandum in Support (ECF No. 83-1), a Statement of Material Facts (“Defendant’s SMF”) (ECF No. 83-2), and several declarations and exhibits (ECF Nos. 83-3 through 83-11). After receiving three extensions of time, Plaintiff filed her response on November 20, 2020 (ECF No. 96). In support of her response, Plaintiff also filed her affidavit (ECF No. 99 (sealed , along with her response to Defendant’s SMF and her Statement of Additional Facts (“Plaintiff’s SAF”) (ECF No. 100). Defendant filed a reply December 4, 2020 (ECF No. 101). For the reasons set forth below, Defendant’s Motion is GRANTED. BACKGROUND This is an action against the University of Memphis (“Defendant” or “University”) for violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (“Title IX”). Plaintiff, a former student at the University, alleges she was raped twice off campus by two Case 2:18-cv-02032-MSN-cgc Document 107 Filed 07/16/21 Page 2 of 26 PageID 1138 different fellow University students over the course of three weeks. She timely reported both alleged assaults to the University. She alleges that she was subject to harassment and retaliation on campus in the weeks and months subsequent to the alleged off-campus assaults. A. Procedural On January 11, 2018, Plaintiff filed her initial Complaint against Defendant alleging violations of Title IX and state law claims. (ECF No. 1.) On March 5, 2018, Defendant filed its first motion to dismiss. (ECF No. 14.) Thereafter, on March 21, 2018, Plaintiff filed an Amended Complaint, which maintained her Title IX claims while removing her state law claims. (ECF No. 17.) As a result of the filing of the Amended Complaint, the Court denied Defendant’s first motion to dismiss as moot. (ECF No. 48.) On April 9, 2018, Defendant filed its second motion to dismiss. (ECF No. 19.) On February 6, 2019, Defendant filed a motion for summary judgment. (ECF No. 31.) On March 15, 2019, Plaintiff moved to amend her complaint for a second time, which this Court granted on March 18, 2019. (ECF Nos. 43 & 44.) On March 19, 2019, Plaintiff filed her Second Amended Complaint. (ECF No. 45.) As a result of the Second Amended Complaint, the Court denied as moot Defendant’s second motion to dismiss and its motion for summary judgment. (ECF No. 48.) Thereafter, Defendant filed a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment, which the Court heard oral arguments on July 2, 2019. (ECF Nos. 46, 66.) The Court denied that motion on November 27, 2019 (ECF No. 68). On August 21, 2020, Defendant filed its Motion for Summary Judgment now before the Court. 2 Case 2:18-cv-02032-MSN-cgc Document 107 Filed 07/16/21 Page 3 of 26 PageID 1139 B. Factual As an initial matter, the Court must address Plaintiff’s response to Defendant’s SMF and also Defendant’s objections to Plaintiff’s SAF. Local Rule 56.1 provides: [a]ny party opposing the motion for summary judgment must respond to each fact set forth by the movant by either: (1) agreeing that the fact is undisputed; (2) agreeing that the fact is undisputed for the purpose of ruling on the motion for summary judgment only; or (3) demonstrating that the fact is disputed. Local Rule 56.1(b). That rule further states that “[e]ach disputed fact must be supported by a specific citation to the record . . . .” Id. In her response to Defendant’s SMF, Plaintiff alleges that the declarations submitted by Defendant contain “‘factual’ allegations that are hearsay and thus are inadmissible in evidence at trial.” (ECF No. 100 at PageID 1064–65.) Plaintiff does not, however, specify which “factual allegations” she believes are hearsay. Plaintiff admits the facts in the first two paragraphs of Defendant’s SMF, and thereafter responds to Defendant’s 54 other statements of fact saying only, “Plaintiff objects to any assertion(s) in the Declarations relied upon by Defendant as fact.” (See ECF No. 100 at PageID 1066–79.) Not only does Plaintiff not provide specificity or citations to the record in her response to Defendant’s SMF, several of the facts she objects to appear to be the same or substantially similar to factual allegations in her Second Amended Complaint. Compare Defendant’s SMF ¶ 3 with Second Amended Complaint ¶ 19; Defendant’s SMF ¶ 4 with Second Amended Complaint ¶ 47; Defendant’s SMF ¶ 15 with Second Amended Complaint ¶¶ 79–84. “This Court is not required to sift through pleadings to determine if the non-moving party has sufficiently responded to the statement of undisputed material facts.” Akines v. Shelby 3 Case 2:18-cv-02032-MSN-cgc Document 107 Filed 07/16/21 Page 4 of 26 PageID 1140 County Gov’t, 512 F. Supp. 2d 1138, 1147 (W.D. Tenn. 2007) (citing Featherston v. Charms Co., No. 04-2157, 2005 WL 1364621, at *1 n. 1 (W.D. Tenn. May 10, 2005). Plaintiff has failed to respond to Defendant’s SMF as required by the Local Rules, and therefore, this Court will consider Defendant’s SMF as having been admitted by Plaintiff. See id.; see also Baxter Bailey Investments, Inc. v. Mars Petcare US, Inc., No. 11-2860, 2012 WL 1965612, at *2 (W.D. Tenn. May 31, 2012). Turning to Plaintiff’s SAF, Defendant either disputes or objects to all Plaintiff’s proffered additional facts. (See ECF No. 101-1 at PageID 1095–105.) Defendant objects that most of the paragraphs in Plaintiff’s SAF are argumentative, conclusory, speculative, or contain improper lay witness expert opinions. (See id.) This Court agrees, and it will not consider Plaintiff’s SAF to the extent she provides conclusions, arguments, and lay opinions rather than facts. However, Defendant also responds that it disputes the first two paragraphs in Plaintiff’s SAF, citing to paragraph three in its SMF. (See ECF No. 101-1 at PageID 1095.) These two paragraphs (57 and 58) contain excerpts from what Plaintiff says is Defendant’s “Title IX policy.” (See id.) Paragraph three in Defendant’s SMF (cited in response) provides that Defendant has a Sexual Misconduct and Domestic Violence Policy (“Sexual Misconduct Policy”), which Defendant attached as “Exhibit A” to the Declarations of Kenneth Anderson, Darren Wibberding, and Hai Nguyen. (See ECF No. 83-2 at PageID 665.) When comparing the excerpts in Plaintiff’s SAF from the “Title IX policy” to the attachments submitted by Defendant as the “Sexual Misconduct Policy,” Plaintiff appears to have accurately provided the excerpted portions of the document. It is therefore unclear to this Court what exactly Defendant disputes other than the semantics of calling it a “Title IX policy” rather than a “Sexual Misconduct and Domestic Violence Policy.” Similar to Plaintiff “disputing” facts in Defendant’s SMF that were the same or substantially 4 Case 2:18-cv-02032-MSN-cgc Document 107 Filed 07/16/21 Page 5 of 26 PageID 1141 similar to factual allegations in her Second Amended Complaint, this Court is left with the impression that there is no genuine dispute regarding these facts. Instead, Defendant’s objections to these paragraphs appear to be merely nettlesome, ostensibly to Plaintiff, but in reality, to the Court as well. Accordingly, with consideration of the foregoing, the following facts are undisputed for purposes of summary judgment unless otherwise noted. Plaintiff alleged that she was sexually assaulted by a fellow student, Nicholas Wayman (“Mr. Wayman”), in the early morning hours of Saturday, April 1, 2017. (ECF No. 100 at PageID 1065.) The sexual assault by Mr. Wayman occurred at a private residence. (Id.) The following Monday morning, April 3, 2017, Plaintiff first reported the alleged sexual assault in person to Darren Wibberding, the University Assistant Director in the Office of Student Conduct. (Id. at PageID 1066.) In the initial interview, Mr. Wibberding interviewed Plaintiff about the factual circumstances regarding her alleged sexual assault by Mr. Wayman. (Id.) According to Plaintiff, Mr. Wibberding asked her “what kind of panties” she was wearing along with “other degrading questions.” (ECF No. 99 (sealed) at PageID 1061.) For his part, Mr. Wibberding states he did not ask any inappropriate questions of Plaintiff and would have asked the same questions regarding clothing and undergarments if Plaintiff was a male alleging sexual assault by another student. (ECF No. 83-5 at PageID 821.) After he finished interviewing Plaintiff, Mr. Wibberding reported the incident to the Office of Institutional Equity (the “OIE”) as required by Defendant’s Sexual Misconduct Policy. (ECF No. 100 at PageID 1067.) Mr. Wibberding escorted Plaintiff to the OIE at that time. (Id.) Plaintiff then lodged a complaint with the OIE that same day regarding her sexual assault allegations against Mr. Wayman. (Id.) According to Defendant, during the initial discussion 5 Case 2:18-cv-02032-MSN-cgc Document 107 Filed 07/16/21 Page 6 of 26 PageID 1142 with the OIE, Plaintiff requested to the OIE that her Title IX complaint against Mr. Wayman be held in abeyance pending the outcome of a criminal case against him related to the alleged sexual assault. (ECF No. 83-9 at PageID 928.) While not denying that she requested the investigation be held in abeyance, according to Plaintiff, Defendant’s Title IX coordinator told her that, if he investigated the alleged assault by Mr. Wayman, such investigation could imperil any criminal prosecution. (ECF No. 99 (sealed) at PageID 1061.) On April 4, 2017, the day after Plaintiff reported the alleged sexual assault to Defendant, Mr. Wibberding delivered an interim measures letter to Mr. Wayman, which contained provisions for a no-contact directive, class removal and reassignment, restrictions on campus access, and a restriction on activities. (ECF No. 83-5 at PageID 821; ECF No. 83-6; ECF No. 100 at PageID 1067.) To Defendant’s knowledge, Mr. Wayman complied with and never violated the no-contact directive as to Plaintiff in any manner. (ECF No. 100 at PageID 1068.) Mr. Wayman was also prohibited from attending the two classes he and Plaintiff had together and was required to complete those classes via directed studies off campus. (ECF No. 100 at PageID 1068.) Although Defendant has submitted evidence that Mr. Wayman was prohibited from attending the classes he had with Plaintiff, Plaintiff alleges in her affidavit that the “Title IX Coordinator” told her she could “either attend classes with [her] rapist or drop out.” (ECF No. 99 (sealed) at PageID 1061.) The interim measures also restricted Mr. Wayman from accessing Defendant’s campus other than to attend his other three classes in which Plaintiff was not enrolled. (Id.) Mr. Wayman was further instructed to cease attendance and involvement in any co-curricular activities and student organizations pending completion of the OIE’s investigation. (ECF No. 83-6 at PageID 854.) At Plaintiff’s request, Defendant also provided escort services by a female 6 Case 2:18-cv-02032-MSN-cgc Document 107 Filed 07/16/21 Page 7 of 26 PageID 1143 campus police officer for her April 12, 2017 counseling session at University Counseling Services. (ECF No. 100 at PageID 1068.) This was the only time Plaintiff requested escort services. (Id.) In her affidavit, Plaintiff alleges that Defendant denied her accommodations other than a parking pass. (ECF No. 99 (sealed) at PageID 1062.) However, Plaintiff did not specify or submit evidence regarding what other accommodations she wanted or requested. (See id.) On April 21, 2017, approximately three weeks after the alleged assault by Mr. Wayman, Plaintiff alleged she was sexually assaulted by another fellow student, Raymond Tate (“Mr. Tate”). The alleged sexual assault by Mr. Tate occurred at a private residence off campus. (Id.) Plaintiff reported the assault to the Memphis Police Department, which then reported the assault to Derek Myers, the Interim Chief of University Police. (ECF No. 83-9 at PageID 932–33.) Michael Washington (“Mr. Washington”), Director of the OIE, and Hai Phyong Nguyen, a Coordinator in the OIE, contacted Plaintiff that same day, but Plaintiff declined to meet and immediately file an OIE complaint. (ECF No. 83-9 at PageID 933.) Plaintiff verbally requested the matter be held in abeyance and confirmed she felt safe despite Mr. Tate’s alleged assault. (Id.) At that time, Plaintiff indicated to the OIE that it would be nine to 10 months before the results of her rape kit came back for prosecution. (ECF No. 83-9 at PageID 934.) On May 1, 2017, Plaintiff met with the OIE to discuss the allegations related to the alleged sexual assault by Mr. Tate. (ECF No. 100 at PageID 1070.) The OIE sent Mr. Tate notice of Plaintiff’s complaint against him that afternoon. (Id.) Mr. Washington interviewed Mr. Tate via telephone on May 12, 2017 regarding the alleged sexual assault, and Mr. Tate denied Plaintiff’s allegations against him. (Id.) On May 13, 2017, Plaintiff complained that Mr. Wayman had violated the campus access restriction and the restriction on student organization activity by attending a fraternity initiation 7 Case 2:18-cv-02032-MSN-cgc Document 107 Filed 07/16/21 Page 8 of 26 PageID 1144 event on campus on May 12, 2012, and by playing basketball at a fraternity recruitment event at an off-campus location. (ECF No. 100 at PageID 1070.) On May 19, 2017, Mr. Wibberding delivered a letter to Mr. Wayman on behalf of Defendant regarding the potential interim measures violations complained of by Plaintiff. (ECF No. 100 at PageID 1070.) Mr. Wayman admitted the violations of the interim measures, and on June 1, 2017, Defendant issued an interim suspension of Mr. Wayman effective June 1, 2017 through August 27, 2017. (ECF No. 100 at PageID 1070.) During this time period, there was a vandalism incident involving Plaintiff’s car. On May 30, 2017, Plaintiff emailed Ms. Nguyen and mentioned that her car may have been vandalized on May 29, 2017, either in an on-campus parking lot or at an off-campus restaurant. (ECF No. 100 at PageID 1071; ECF No. 83-10 at PageID 996.) Ms. Nguyen responded to Plaintiff’s email asking for a additional details about the car vandalism and asking if Plaintiff could confirm that the vandalism occurred at the on-campus parking lot. (ECF No. 83-10 at PageID 995.) Ms. Nguyen suggested that one option may be for Plaintiff to park in a different on-campus parking lot, and Ms. Nguyen told Plaintiff to let her know if she wished to change parking lots. (ECF No. 83-10 at PageID 995.) Plaintiff responded to Ms. Nguyen indicating she had asked around, but that no one knew any additional information about the vandalism to her car. (ECF No. 83-10 at PageID 994.) Plaintiff stated she had also checked for security cameras, but that there were none at either the on-campus parking lot or the off-campus restaurant. (Id.) Plaintiff indicated she believed that the vandalism “more than likely occurred” at the off-campus restaurant, and indicated she was “okay” continuing to park in her current on-campus parking lot. (Id.) 8 Case 2:18-cv-02032-MSN-cgc Document 107 Filed 07/16/21 Page 9 of 26 PageID 1145 On June 1, 2017, in regards to the incident with Mr. Tate, Plaintiff emailed Ms. Nguyen stating she wanted “to go forward with the second case” since it would be “so long before he is arrested.” (ECF No. 100 at PageID 1072; ECF No. 83-10 at PageID 990.) On June 4, 2017, Plaintiff agreed via email to the issuance of a no-contact directive for Mr. Tate. (ECF No. 100 at PageID 1072; ECF No. 83-9 at PageID 935.) An interim measures letters was then issued to Mr. Tate on June 6, 2017, which included provisions for a no-contact directive. (ECF No. 100 at PageID 1072; ECF No. 83-9 at PageID 935; ECF No. 83-10 at PageID 992.) To Defendant’s knowledge, Mr. Tate complied with and never violated the no-contact directive in any manner. (ECF No. 100 at PageID 1072.) On August 3, 2017, the Shelby County Grand Jury indicted Mr. Wayman on charges of Rape and Sexual Battery. (ECF No. 100 at PageID 1073.) Plaintiff is identified by her real name in the indictment. (ECF No. 100 at PageID 1073.) Defendant was not aware of the indictment until later that month. (ECF No. 100 at PageID 1073.) On August 4, 2017, Plaintiff emailed the OIE to follow up on her complaints and to request a new parking pass prior to the beginning of the 2017 fall semester. (ECF No. 100 at PageID 1073.) Melanie Murry (“Ms. Murry”), General Counsel for Defendant, responded to Plaintiff’s email and told her Defendant was working on getting her a parking pass for the semester and inquired if Plaintiff wanted the pass for the same parking lot as before. (ECF No. 83-4 at PageID 717.) Ms. Murry also asked Plaintiff to send her schedule for the fall semester so that Ms. Murry could make sure Plaintiff was not in any classes with Mr. Wayman or Mr. Tate. (ECF No. 83-4 at PageID 717.) On August 24, 2017, Ms. Murry and new OIE Director Kenneth Anderson (“Mr. Anderson”) met with Plaintiff to follow up on the status of the Title IX investigations, interim 9 Case 2:18-cv-02032-MSN-cgc Document 107 Filed 07/16/21 Page 10 of 26 PageID 1146 measures, and requests for additional accommodations prior to the start of the 2017 fall semester.1 (ECF No. 100 at PageID 1073.) For the 2017 fall semester, Defendant continued to implement the previous no-contact directives it had previously issued at to Mr. Wayman and Mr. Tate. (ECF No. 100 at PageID 1073–74.) Additional restrictions were also implemented as to Mr. Wayman in regards to his access to Clement Hall, where Plaintiff and he both had classes. (ECF No. 100 at PageID 1074.) Mr. Wayman was not allowed to enter Clement Hall except to attend his philosophy class, and he was given specific time, entry, and exiting instruction to avoid contact with Plaintiff. (ECF No. 100 at PageID 1074.) On October 10, 2017, an article with the headline “Student Raped Twice in 20 Days: Alleged Assailants Remain U of M Students,” was published in the student newspaper, The Daily Helmsman. (ECF No. 100 at PageID 1074.) The article identified Plaintiff by use of the pseudonym “Caroline.” (ECF No. 100 at PageID 1074.) Two days later, on October 12, 2017, Defendant became aware of a Twitter account “Free Nick Wayman” published by Twitter user ID “HoesBeLyin_.” (ECF No. 100 at PageID 1075.) The Twitter account did not identify who was responsible for the account or its posts, and at that time, Defendant was unable to discern whether the account could be attributed to a student of Defendant. (ECF No. 100 at PageID 1075.) Nevertheless, Defendant reached out to Mr. Wayman’s former fraternity, Lambda Chi Alpha, regarding the account, and it was deleted that same day. (ECF No. 100 at PageID 1075; ECF No. 83-7 at PageID 886.) Although Defendant was aware of the Twitter account, Plaintiff never complained to Defendant regarding the Twitter account. (ECF No. 100 at PageID 1075.) 1 Defendant’s SMF refers to Mr. Anderson as “Kenneth Washington” in ¶ 33, and also mistakenly uses refers to “OIE Director Washington” later in its SMF when referring to testimony set forth in Mr. Anderson’s declaration (see ¶ 44 of Defendant’s SMF). 10 Case 2:18-cv-02032-MSN-cgc Document 107 Filed 07/16/21 Page 11 of 26 PageID 1147 On October 13, 2017, Defendant received complaints from Plaintiff and Plaintiff’s roommate that another student, Lauren Olson (“Ms. Olson”), had revealed Plaintiff’s real first name on Twitter. (ECF No. 100 at PageID 1076.) Plaintiff and her roommate were concerned that Ms. Olson’s revelation put Plaintiff “at risk.” (ECF No. 100 at PageID 1076.) On October 18, 2017, Mr. Anderson interviewed Plaintiff regarding the sexual assault allegations against Mr. Tate. (ECF No. 100 at PageID 1076.) On December 6, 2017, Mr. Anderson interviewed Plaintiff regarding the sexual assault allegations against Mr. Wayman. (ECF No. 100 at PageID 1077.) On December 14, 2017, Plaintiff reported to Mr. Anderson by email that her car had been vandalized on campus on December 13, 2017. (ECF No. 100 at PageID 1077.) This incident of alleged vandalism involved spaghetti sauce smeared on the rear door panel on the driver’s side of Plaintiff’s vehicle. (ECF No. 83-3 at PageID 684; ECF No. 110 at PageID 1077.) Plaintiff did not notice the vandalism, however, until the next day, and she was unable to identify any alleged perpetrators. (ECF No. 100 at PageID 1077.) Plaintiff washed the spaghetti sauce off her vehicle, and there was no damage to her car. (ECF No. 100 at PageID 1077.) On January 10, 2018, Plaintiff sent Ms. Nguyen with the OIE an email with nine requests for interim measures and other accommodations for the 2018 spring semester. (ECF No. 100 at PageID 1077.) Later in the email correspondence, Plaintiff states that the “criminal process” was moving forward “with both cases,” and she inquired whether an interim suspension would be possible. (ECF No. 83-4 at PageID 764.) Ms. Murry responded to Plaintiff’s email and asked for additional details regarding the criminal case in regards to Mr. Tate, saying that Defendant could use information regarding the prosecution of Mr. Tate to evaluate what action Defendant could take in regards to Mr. Tate. (ECF No. 83-4 at PageID 763.) At that time, Plaintiff was 11 Case 2:18-cv-02032-MSN-cgc Document 107 Filed 07/16/21 Page 12 of 26 PageID 1148 represented by counsel, and Ms. Murry also copied counsel in her response to Plaintiff’s email. (ECF No. 83-4 at PageID 763.) Plaintiff’s counsel responded to Ms. Murry’s email and confirmed the case against Mr. Tate was moving forward to the grand jury. (ECF No. 83-4 at PageID 763.) By letter dated January 11, 2018, Defendant’s Associate Vice President for Student Affairs and Dean of Students, Justin Lawhead (“Mr. Lawhead”), issued an interim suspension of Mr. Tate as an interim measure for the 2018 spring semester. (ECF No. 100 at PageID 1078; ECF No. 83-4 at PageID 768.) Also by letter dated January 11, 2018, Mr. Anderson issued a no- trespass directive to Mr. Wayman as an interim measure for the 2018 spring semester. (ECF No. 100 at PageID 1078; ECF No. 83-4 at PageID 770.) The no-trespass directive for Mr. Wayman meant he was not allowed to “visit the University in any way, without prior express approval from University Police Services.” (ECF No. 83-4 at PageID 770.) On January 12, 2018, Mr. Anderson responded to Plaintiff’s email regarding her nine requests for interim measures. (ECF No. 100 at PageID 1078.) Mr. Anderson responded that Plaintiff’s requests as to certain measures regarding class schedules, access to the gym, and access to the University Center should not be an issue given the no-trespass directive for Mr. Wayman and the interim suspension issued for Mr. Tate for the 2018 spring semester. (ECF No. 83-4 at PageID 775.) Mr. Anderson stated that several of Plaintiff’s other requests, including a police escort and additional time for assignments, were more appropriately directed to other University departments, such as campus police and the disability resources office. (Id.) Mr. Anderson provided Plaintiff the information for these other departments, and specifically offered to assist Plaintiff in connecting with the disability resources office. (Id.) 12 Case 2:18-cv-02032-MSN-cgc Document 107 Filed 07/16/21 Page 13 of 26 PageID 1149 On March 15, 2018, the OIE issued its investigative report as to Plaintiff’s allegations against Mr. Wayman. (ECF No. 100 at PageID 1078.) Mr. Wayman did not appeal the OIE investigator determination. (ECF No. 100 at PageID 1078.) On April 27, 2018, Mr. Lawhead issued a three-year final suspension of Mr. Wayman. (ECF No. 100 at PageID 1078.) On May 10, 2018, the Shelby County Grand Jury indicted Mr. Tate on charges of Rape and Sexual Battery. (ECF No. 100 at PageID 1079.) On December 14, 2018, the OIE issued its investigative report as to Plaintiff’s allegations against Mr. Tate. (ECF No. 100 at PageID 1079.) Mr. Tate did not appeal the OIE investigator determination. (Id.) On February 16, 2019, Mr. Lawhead issued a three-year final suspension of Mr. Tate. (Id.) STANDARD OF REVIEW Federal Rule of Civil Procedure 56 permits a party to move for summary judgment — and the Court to grant summary judgment — “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party asserting the presence or absence of genuine issues of material facts must support its position either by “citing to particular parts of materials in the record,” including depositions, documents, affidavits or declarations, stipulations, or other materials, or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., , 587 (1986); Nat’l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court 13 Case 2:18-cv-02032-MSN-cgc Document 107 Filed 07/16/21 Page 14 of 26 PageID 1150 cannot weigh the evidence, judge the credibility of witnesses, or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., , 249 (1986). The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, , 323 (1986). The moving party may discharge this burden either by producing evidence that demonstrates the absence of a genuine issue of material fact or simply “by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325. Where the movant has satisfied this burden, the nonmoving party cannot “rest upon its . . . pleadings, but rather must set forth specific facts showing that there is a genuine issue for trial.” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009) (citing Matsushita, 475 U.S. at 586; Fed. R. Civ. P. 56). The nonmoving party must present sufficient probative evidence supporting its claim that disputes over material facts remain and must be resolved by a judge or jury at trial. Anderson, 477 U.S. at 248–49 (citing First Nat’l Bank of Ariz. v. Cities Serv. Co., (1968 ; see also White v. Wyndham Vacation Ownership, Inc., 617 F.3d 472, 475–76 (6th Cir. 2010). A mere scintilla of evidence is not enough; there must be evidence from which a jury could reasonably find in favor of the nonmoving party. Anderson, 477 U.S. at 252; Moldowan, 578 F.3d at 374. The Court’s role is limited to determining whether there is a genuine dispute about a material fact, that is, if the evidence in the case “is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. Such a determination requires that the Court “view the evidence presented through the prism of the substantive evidentiary burden” applicable to the case. Id. at 254. Thus, if the plaintiff must ultimately prove its case at trial by a preponderance of the evidence, on a motion for summary judgment the Court must 14 Case 2:18-cv-02032-MSN-cgc Document 107 Filed 07/16/21 Page 15 of 26 PageID 1151 determine whether a jury could reasonably find that the plaintiff’s factual contentions are true by a preponderance of the evidence. See id. at 252–53. Finally, if the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the movant is entitled to summary judgment. Celotex, 477 U.S. at 323. The Court must construe Rule 56 with due regard not only for the rights of those “asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury,” but also for the rights of those “opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.” Id. at 327. I. Title IX Deliberate Indifference Claim DISCUSSION Title IX mandates that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). In Gebser v. Lago Vista Independent School District, the Supreme Court found that institutional liability under Title IX exists in instances of known sexual harassment of a student by faculty or employees of the federally funded institution when the school is “deliberately indifferent” to the harassment. 524 U.S. 274, 292 (1998). A year later, the Court extended the reasoning of Gebser to known student-on-student sexual harassment. See Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 653–54 (1999). “By design and effect, the Davis Court’s Title IX private cause of action against a school for its response to student-on-student sexual harassment is a ‘high standard’ that applies only ‘in certain limited circumstances.’” Kollaritsch v. Mich. State Univ. Bd. of Trs., 944 F.3d 613, 619 (6th Cir. 2019) (citing Davis, 526 U.S. at 643). 15 Case 2:18-cv-02032-MSN-cgc Document 107 Filed 07/16/21 Page 16 of 26 PageID 1152 Institutions may be held liable when a plaintiff demonstrates the following elements: (1) sexual harassment so severe, pervasive, and objectively offensive that it could be said to deprive the plaintiff of access to the educational opportunities or benefits provided by the school, (2) the funding recipient had actual knowledge of the sexual harassment, and (3) the funding recipient was deliberately indifferent to the harassment. Davis, 526 U.S. at 650; Kesterson v. Kent State Univ., 967 F.3d 519, 527 (6th Cir. 2020). As the Sixth Circuit recently clarified, this formulation, “clearly has two separate components, comprising separate-but-related torts by separate-and-unrelated tortfeasors: (1) ‘actionable harassment’ by a student, and (2) a deliberate- indifference intentional tort by the school.” Kollaritsch, 944 F.3d at 619–20 (internal citations omitted) (emphasis in original). Critically, the “Davis formulation requires that the school had actual knowledge of some actionable sexual harassment and that the school’s deliberate indifference to it resulted in further actionable harassment of the student-victim” Id. at 620. In order to be “actionable harassment,” the harassment must be severe, pervasive, and objectively offensive. Kollaritsch, 944 F.3d at 620. For harassment to be severe under this standard, it must be more than “simple acts of teasing and name calling.” Id. Teasing and name calling are not considered “severe” harassment, “even where these comments target differences in gender.” Id. To be pervasive, the harassment must be “systemic” or “widespread,” and importantly, there must “multiple incidents of harassment; one incident of harassment is not enough.” Id. (emphasis in original). As the Sixth Circuit noted, the “Davis Court hypothesized that a single incident could be sufficiently severe that it would result in the articulated injury— and we do not doubt that a sexual assault would be such a severe incident—but the Court held that a single incident would nonetheless fall short of Title IX’s requirement of ‘systemic’ harassment.” Id. To be objectively offensive the behavior must be “offensive to a reasonable 16 Case 2:18-cv-02032-MSN-cgc Document 107 Filed 07/16/21 Page 17 of 26 PageID 1153 person under the circumstances, not merely offensive to the victim, personally or subjectively.” Id. at 621. The Supreme Court also made clear in Davis that Title IX liability is limited to circumstances where the school “exercises substantial control over both the harasser and the context in which the known harassment occurs.” Davis, 526 U.S. at 645. In other words, “[a] recipient cannot be directly liable for its indifference where it lacks the authority to take remedial action.” Id. at 644. After establishing “actionable student-on-student harassment,” the plaintiff must also prove “four elements of a deliberate-indifference-based intentional tort: (1) knowledge, (2) an act, (3) injury, and (4) causation.” Kollaritsch, 944 F.3d at 621. “‘Knowledge’ means that the defendant school had ‘actual knowledge’ of an incident of actionable sexual harassment that prompted or should have prompted a response.” Id. The “act” is the school’s response, which must demonstrate the school was deliberately indifferent “to the foreseeable possibility of further actionable harassment of the victim.” Id. An institution is deliberately indifferent “only where [its] response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances.” Davis, 526 U.S. at 648. Title IX does not require that an institution “remedy” peer harassment, but simply that it “respond to known peer harassment in a manner that is not clearly unreasonable.” Id. at 648–49. However, the Sixth Circuit has cautioned schools against repeatedly relying on certain methods when the school has knowledge that its attempts to address the harassment are ineffective. See Patterson v. Hudson Area Sch., 551 F.3d 438, 449 (6th Cir. 2009); Vance v. Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253, 257 (6th. Cir. 2000). 17 Case 2:18-cv-02032-MSN-cgc Document 107 Filed 07/16/21 Page 18 of 26 PageID 1154 The “injury” means “deprivation of ‘access to the educational opportunities or benefits provided by the school.’” Kollaritsch, 944 F.3d at 622. Finally, “‘Causation’ means the ‘Act’ caused the ‘Injury,’ such that the injury is attributable to the post-actual-knowledge further harassment . . . .” Id. “Davis requires a showing that the school’s deliberate indifference subjected its students to harassment, necessarily meaning further actionable harassment.” Id. (internal quotation marks omitted). In its prior Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (ECF No. 46), Defendant argued that it had no Title IX liability because Plaintiff’s alleged assaults occurred off campus. Plaintiff responded that she was not suing for the off-campus assaults, but for Defendant’s deliberate indifference and the hostile environment on campus after the assaults: This defense is wide of the mark in that Plaintiff has not sued Defendant for her rapes. She has sued Defendant for its deliberate indifference to her harassment and liability to harassment following those rapes, and for fostering a hostile environment on campus that resulted from both the rapes themselves and her reports of the rapes to the police and the University. (ECF No. 60 at PageID 461.) In its Order on Defendant’s motion, this Court rejected Defendant’s attempt to draw a bright-line rule as to off-campus assaults and noted that “Plaintiff’s Second Amended Complaint provide[d] detailed factual allegations of harassment occurring in contexts that Defendant appears to control, even though the alleged sexual assaults did not ultimately occur in a context within Defendant’s control.” (ECF No. 68 at PageID 540.) Now, after consideration of the entire record in this matter, and in the absence of additional facts or proof by Plaintiff, this Court finds that Defendant’s response to Plaintiff’s complaints of harassment was not deliberately indifferent. In addition, Plaintiff cannot show that she was subjected to further “actionable harassment” under Title IX. 18 Case 2:18-cv-02032-MSN-cgc Document 107 Filed 07/16/21 Page 19 of 26 PageID 1155 The standard for deliberate indifference set forth by the Supreme Court in Davis is a “clearly unreasonable response in light of the known circumstances.” Davis, 526 U.S. at 648. No particular response is mandated, and schools are not required to “purge” themselves of all actionable peer harassment. Davis, 526 U.S. at 642. When a school “has knowledge that its remedial action is inadequate and ineffective, it is required to take reasonable action in light of those circumstances to eliminate that behavior.” Vance, 231 F.3d at 261. That a school’s actions are ineffective, however, is not enough; instead, the inquiry is whether the school’s efforts “amounted to ‘an official decision . . . not to remedy the violation.’” Foster v. Bd. Of Regents of Univ. of Mich., 982 F.3d 960, 967 (6th Cir. 2020) (quoting Davis, 526 U.S. at 648). Even though Plaintiff alleges she is not suing Defendant for her alleged rapes,2 Defendant’s response to the alleged assaults is the necessary starting point for an analysis of whether Defendant’s response was deliberately indifferent. In response to Plaintiff’s report of the first alleged assault, Defendant took interim measures against Plaintiff’s alleged rapist, which included putting a no-contact order in place, removing Mr. Wayman from the two classes he and Plaintiff had together, restricting Mr. Wayman’s access to Defendant’s campus, and restricting Mr. Wayman’s ability to participate in social activities. These measures, by and large, appeared to be effective. Plaintiff does not allege that Mr. Wayman ever attempted to harass or contact her after these measures were put in place. Further, when Plaintiff reported that she believed Mr. Wayman had violated certain interim measures, Defendant discussed those matters with Mr. Wayman, and ultimately issued Mr. Wayman a temporary suspension when he admitted he had violated the interim measures. Plaintiff does not allege that Mr. Wayman ever again violated any 2 Moreover, the Sixth Circuit has stated that allegations of rape in the pre-actual knowledge period cannot alone show actionable sexual harassment. Doe v. Univ. of Ky., 959 F.3d 246, 251 (6th Cir. 2020). 19 Case 2:18-cv-02032-MSN-cgc Document 107 Filed 07/16/21 Page 20 of 26 PageID 1156 of the interim measures. Defendant continued to enforce the interim measures against Mr. Wayman during the course of its investigation, eventually issuing Mr. Wayman a no trespass directive, and then finally issuing Mr. Wayman a three-year suspension upon completion of its investigation. Was Defendant’s response to Plaintiff’s alleged assault by Mr. Wayman perfect? No. But did Defendant’s response amount to “an official decision . . . not to remedy the violation”? Also no. The same can be said when it comes to Defendant’s response to Plaintiff’s report of her second alleged assault by Mr. Tate. Interim measures were put in place; Plaintiff does not allege she suffered further harassment by Mr. Tate; and Mr. Tate was eventually issued a three-year suspension upon completion of Defendant’s investigation. As with Plaintiff’s complaint related to the alleged assault by Mr. Wayman, although Defendant’s handling of Plaintiff’s complaint for the alleged assault by Mr. Tate was not perfect, it also does not demonstrate deliberate indifference. Plaintiff seems to suggest that, because Defendant’s response to the two alleged sexual assaults failed to prevent the University newspaper from publishing a story about the assaults and failed to prevent online bullying of Plaintiff on the social media platform Twitter, Defendant’s response was deliberately indifferent. Putting aside for now whether these instances constitute further actionable harassment, Plaintiff’s line of reasoning is akin to strict liability—asking Defendant to predict and prevent harassment by other students not involved in the original incidents and making Defendant liable when it does not do so. The Court is deeply sympathetic to the ordeal that Plaintiff had to endure in the wake of her alleged assaults, but strict liability is simply not the standard for liability under Title IX. 20 Case 2:18-cv-02032-MSN-cgc Document 107 Filed 07/16/21 Page 21 of 26 PageID 1157 Also, specifically as to the online bullying via Twitter, the Court notes that when Defendant learned about the Twitter account, it reached out to Mr. Wayman’s former fraternity about the account, and the account was removed that same day. As discussed below, this Court questions whether harassment on Twitter is within a context controlled by Defendant, but even if it were, Defendant’s actions do not demonstrate deliberate indifference. In fact, just the opposite. Defendant acted immediately, reaching out about the account the day it learned of it. It seems from her response that Plaintiff wanted Defendant to take some remedial action as to the Lambda Chi Alpha fraternity as a whole in response to the two alleged assaults. However, as the Supreme Court explained in Davis, a Title IX plaintiff has no right to insist on “particular disciplinary action[s].” Davis, 526 U.S. at 648. Additionally, Plaintiff does not identify what Defendant should have done differently. Of course, what Defendant could have done differently is not the test, but “it’s still worth asking the question because, if the claimant can’t identify a better approach, it follows that no deliberate indifference occurred.” Foster, 982 F.3d at 968. Accordingly, Defendant is entitled to summary judgment on Plaintiff’s Title IX deliberate indifference claim because Defendant was not deliberately indifferent to Plaintiff’s reports of sexual harassment. Additionally, Defendant is entitled to summary judgment because Plaintiff has not shown that she was subjected to some further incident of actionable sexual harassment. As the Sixth Circuit recently clarified, “Davis requires a showing that the school’s deliberate indifference subject[ed] its students to harassment, necessarily meaning further actionable harassment.” Kollaritsch, 944 F.3d at 622. In her response to Defendant’s Motion, Plaintiff alleges the 21 Case 2:18-cv-02032-MSN-cgc Document 107 Filed 07/16/21 Page 22 of 26 PageID 1158 following acts of further actionable harassment that she says she suffered because of Defendant’s deliberate indifference: (1) The continued presence of both Mr. Wayman and Mr. Tate on campus, which caused “severe exacerbation of her post-traumatic stress disorder and rape trauma syndrome” (ECF No. 96 at PageID 1034); (2) Vandalism of her car (id.); (3) Publication of an article in the school newspaper (id.); (4) Non-specific “harassment” and “hostility” directed towards her online, particularly on Twitter (id. at PageID 1034–35); (5) Revelation of her real name by a fellow student on Twitter (id.); (6) Participation in extracurricular activities by one of her alleged attackers, which forced her to withdraw from those extracurricular activities (id. at PageID 1035). First, although this Court understands why potentially encountering Mr. Wayman or Mr. Tate on campus caused Plaintiff anxiety, this generalized fear or anxiety itself does not constitute further “actionable harassment” under Title IX. See Kollaritsch, 944 F.3d at 624–25; M.D. by and through Deweese v. Bowling Green Indep. Sch. Dist., 709 F. App’x 775, 776–78 (6th Cir. 2017). Second, there is nothing in the record to suggest that either incident of vandalism of Plaintiff’s car could constitute further sexual harassment under Title IX. As to the first incident, Plaintiff provides no details whatsoever about what was done to her car, and hence, there is nothing in the record that would allow this Court to infer that the vandalism to her car was sexual harassment or that it was based on her sex. The second incident of vandalism involved spaghetti sauce being smeared on Plaintiff’s car. Plaintiff was not present when the spaghetti sauce was 22 Case 2:18-cv-02032-MSN-cgc Document 107 Filed 07/16/21 Page 23 of 26 PageID 1159 smeared on her car, but instead discovered it the next morning. Again, nothing about this incident of vandalism suggests is was sexual harassment or that Plaintiff was targeted because of her sex. In fact, there is nothing in the record, other than Plaintiff’s own speculation, to suggest these incidents were anything more than random bad luck. Plaintiff’s allegation regarding the newspaper article is similarly devoid of any facts that would indicate it was actionable sexual harassment. The newspaper article identified Plaintiff by a pseudonym, and Plaintiff provides no other details that would allow this Court to infer that the article was objectively offensive. Moreover, a single article does not rise to the level of pervasiveness necessary to impose liability under Title IX. The allegations regarding harassment and name calling on Twitter suffer dual detriments—they are not severe, and they did not occur in a context controlled by Defendant. Nothing in the record indicates that the harassment on Twitter was more than “simple acts of teasing and name-calling,” which the Supreme Court in Davis expressly stated was not enough to impose liability under Title IX. See Davis, 526 U.S. at 651. Additionally, and likely more problematic, is that Defendant can be liable only for harassment that occurs in contexts it controls. Defendant does not exercise control over postings made on Twitter, and further, Plaintiff has not alleged concrete facts to support that any of the comments made on Twitter were made by students of Defendant (with the exception discussed below). See Nungesser v. Columbia Univ., 244 F. Supp. 3d 345, 368 (S.D.N.Y. 2017). Similarly, the revelation of Plaintiff’s real name by a fellow student on Twitter did not occur in a context Defendant controls, nor could this single action by a fellow student be said to constitute harassment that is pervasive. 23 Case 2:18-cv-02032-MSN-cgc Document 107 Filed 07/16/21 Page 24 of 26 PageID 1160 Finally, Plaintiff’s inability to participate in extracurricular activities is more accurately described as the requisite “injury” in the Title IX context but is not itself additional harassment. See Kollaritsch, 944 F.3d at 622. Therefore, because Plaintiff has also not shown that she suffered further actionable harassment, Defendant is entitled to summary judgment on her Title IX deliberate indifference claim. II. Title IX Hostile Environment Claim A hostile environment claim under Title IX “is analogous to a Title VII hostile environment claim.” Doe v. Miami Univ., 882 F.3d 579, 590 (6th Cir. 2018) (citing Doe v. Claiborne Cty., Tenn. by and through Claiborne Cty. Bd. Of Educ., 103 F.3d 495, 515 (6th Cir. 1996 . The “elements to state a supervisory hostile environment claim under Title VII equally apply under Title IX.” Claiborne Cty., 103 F.3d at 515. In order to establish a coworker hostile environment claim under Title VII, the plaintiff must show that “(1) the employee is a member of a protected class; (2) the employee was subjected to unwelcome sexual harassment; (3) the harassment occurred because of the employee’s gender; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew, or should have known of the harassment and failed to respond with prompt and appropriate corrective action.” Theus v. GlaxoSmithKline, 452 F. App’x 596, 600 (6th Cir. 2011) (citing Campbell v. Florida Steel Corp., 919 S.W.2d 26, 31 (Tenn. 1996 . “When the harassment is by a supervisor, the fifth element of employer liability is vicariously imposed, but the employer has the benefit of an affirmative defense.” Carr v. United Parcel Serv., 955 S.W.2d 832, 838 (Tenn. 1997) (holding elements of a supervisor hostile environment claim are the same as those in a coworker hostile environment claim), overruled in part by Parker v. Warren Cnty. Util. Dist., 2 S.W.3d 170, 176 (Tenn. 1999). 24 Case 2:18-cv-02032-MSN-cgc Document 107 Filed 07/16/21 Page 25 of 26 PageID 1161 In order to state a Title IX hostile environment claim, a plaintiff must allege her educational experience was “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive [so as] to alter the conditions of the victim’s” educational environment. Miami Univ., 882 F.3d at 590 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993 (alteration in original). Applying this to the harassment Plaintiff alleges she endured (as set forth above), this Court finds that Plaintiff has failed to support her claim for a hostile environment under Title IX. As discussed above, Plaintiff’s first and sixth allegations of “harassment” are not harassment in the Title IX, or Title VII, context. The remaining instances of harassment do not support her hostile environment claim either because there is no indication that such instances were sexual harassment or that the harassment occurred because of Plaintiff’s gender. Therefore, for the same reasons Plaintiff failed to show further actionable harassment under her Title IX deliberate indifference claim, Plaintiff’s claim for a hostile environment under Title IX also fails, and Defendant is entitled to summary judgment on Plaintiff’s Title IX hostile environment claim. III. Title IX “Pre-Assault” Claim In her Second Amended Complaint, Plaintiff contends that Defendant’s acts and failures to act “demonstrate a pattern or practice of failing to respond to incidents of sexual harassment that rises to the level of a policy of the University.” (ECF No. 45 at PageID 385.) This is referred to as a “pre-assault” claim under Title IX. Defendant argues this claim must be dismissed because Plaintiff fails to sufficiently allege that Defendant possessed actual knowledge of a heightened risk of sexual assault in a specific context or by a specific perpetrator. (ECF No. 83-1 at PageID 661.) In her response to Defendant’s Motion, Plaintiff wholly failed to address her pre-assault claim. When a party fails to respond to a motion or argument therein, the Sixth 25 Case 2:18-cv-02032-MSN-cgc Document 107 Filed 07/16/21 Page 26 of 26 PageID 1162 Circuit has held that the lack of response is grounds for the district court to assume opposition to the motion is waived and grant the motion. Humphrey v. U.S. Att’y Gen.'s Office, 279 F. App’x 328, 331 (6th Cir. 2008). Accordingly, this Court grants Defendant summary judgment on Plaintiff’s pre-assault claim. CONCLUSION For the reasons set forth above, Defendant University of Memphis’ Motion for Summary Judgment is GRANTED. IT IS SO ORDERED, this 16th day of July 2021. s/ Mark S. Norris MARK S. NORRIS UNITED STATES DISTRICT JUDGE 26
=== 18-2114 ===
Case 2:18-cv-02114-MSN-tmp Document 46 Filed 09/28/20 Page 1 of 17 PageID 910 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ______________________________________________________________________________ CHARLES EVANS, on behalf of himself and all others similarly situated, Plaintiff, v. AVECTUS HEALTHCARE SOLUTIONS, LLC, Defendants. Case No. 2:18-cv-02114-MSN-tmp ______________________________________________________________________________ ORDER DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Before the Court are two motions: First, Plaintiff’s Motion for Partial Summary Judgment filed January 23, 2018 in the Circuit Court for Shelby County (“Plaintiff’s Motion”). (ECF No. 1- 3 at PageID 218.) Defendant responded in opposition to Plaintiff’s Motion on April 30, 2018. (ECF No. 13.) Second, Defendant’s Motion for Summary Judgment filed April 30, 2018 and May 1, 2018 (“Defendant’s Motion”). (ECF Nos. 15 & 17.) Plaintiff responded in opposition on May 26, 2018 and August 6, 2018. (ECF Nos. 22, 23, 24, and 35.) Defendant filed a reply on June 8, 2018 and August 13, 2018. (ECF Nos. 25, 26, & 36.) For the reasons set forth below, Plaintiff’s Motion is DENIED, and Defendant’s Motion is GRANTED. BACKGROUND Defendant is a corporation that assists hospitals in providing claim resolution services. (ECF No. 1-3 at PageID 241; ECF No. 17-1 at PageID 661.) One way in which Defendant provides this service is by filing hospital liens on behalf of hospitals who treat uninsured patients that have 1 Case 2:18-cv-02114-MSN-tmp Document 46 Filed 09/28/20 Page 2 of 17 PageID 911 been injured by a third party. (ECF No. 1-3 at PageID 240; ECF No. 17-1 at PageID 661.) In Tennessee, these liens are filed by an employee of Defendant who completes a standard lien form that has been drafted by a licensed Tennessee attorney. (ECF No. 15-5 at PageID 565; ECF No. 23 at PageID 701.) Filling in the lien form consists of writing in the patient’s name, address, and any additional information that is provided by the hospital. (ECF No. 15-5 at PageID 565; ECF No. 23 at PageID 701.) Beyond filling in the form and filing the hospital lien, Defendant also sends the subject of the lien a document entitled “Explanation of Hospital Lien.” (ECF No. 1-3 at PageID 240; ECF No. 17-1 at PageID 663.) In part, this document states: Many times hospitals are called on to treat injuries without knowledge of the circumstances causing the injuries, or who the liable party may be. Your health insurance may pay only AFTER liability is determined. To help protect their interest, the State of Tennessee recommends Tennessee hospitals file a hospital lien to help recover their charges. A lien is filed only in the event of an injury, not an illness. The lien enclosed affects only funds recovered by the injured party UP TO the amount of hospital charges. This lien does not affect credit ratings, property or any residence that he/she may own. This lien is not a collection or a demand for payment. This lien is only against insurance benefits. . . . If you have any additional information which may help us, please call (662) 286-6949. (ECF No. 1-3 at PageID 240.) In Tennessee, these liens are filed pursuant to the Tennessee Hospital Lien Act, Tenn. Code Ann. § 29-22-101 et seq. (“HLA”). The HLA allows a hospital, or its agent, to place a lien on the proceeds from a settlement or judgment that a patient may receive from a third party that caused the patient’s injury. Id. On September 19, 2016, Saint Francis Hospital Bartlett (“Saint Francis”) provided emergency medical services to Plaintiff, Charles Evans, for injuries he sustained in a car accident. 2 Case 2:18-cv-02114-MSN-tmp Document 46 Filed 09/28/20 Page 3 of 17 PageID 912 (ECF No. 24-5 at PageID 818.) Plaintiff had health insurance at the time of this treatment. (Id. at PageID 816.) Plaintiff was discharged from Saint Francis the following day. (Id. at PageID 820.) Saint Francis charged Plaintiff $4,008.93 for the medical services it provided. (ECF No. 15-5 at PageID 564; ECF No. 23 at PageID 700.) After Saint Francis treated Plaintiff, Saint Francis sent Defendant Plaintiff’s account for purposes of filing a hospital lien, despite the fact that he had health insurance. (ECF No. 15-5 at PageID 563; ECF No. 23 at PageID 699.) The aforementioned hospital lien was filed by Defendant in the Shelby County Circuit Court on October 7, 2016. (ECF No. 1-1 at PageID 37; ECF No. 17-1 at PageID 663.) Saint Francis ultimately received payment from Plaintiff’s insurer, Cigna, on January 13, 2017. (ECF No. 17-1 at PageID 663; ECF No. 23 at PageID 702.) Almost three months later, on March 11, 2017, Defendant mailed the release for Plaintiff’s hospital lien. (ECF No. 1-1 at PageID 36; ECF No. 17-1 at PageID 663.) On March 6, 2017, between the time that Saint Francis received payment from Plaintiff’s insurer and Defendant’s release of the lien, Plaintiff’s attorney mailed a check to Defendant written for the full amount of the lien and made payable to Saint Francis. (ECF No. 17-1 at PageID 663; ECF No. 23 at PageID 702.) Because Plaintiff’s insurer previously paid Saint Francis for the charges,1 Tenet Health, a company affiliated with Saint Francis, wrote a check to Plaintiff for $4,008.93 on November 21, 2017, in effect returning the amount of the check that Plaintiff’s attorney had sent to Defendant on March 6, 2017. (ECF No. 17-1 at PageID 663–64; ECF No. 26 at PageID 862.) Plaintiff has never deposited this check, and the original remains in the possession of Plaintiff’s attorney, Mr. Blount. (ECF No. 26 at PageID 862.) 1 After payment by Plaintiff’s insurance, Plaintiff’s remaining balance due to Saint Francis was his $150 co-pay. (ECF No. 23 at PageID 702.) 3 Case 2:18-cv-02114-MSN-tmp Document 46 Filed 09/28/20 Page 4 of 17 PageID 913 It is Plaintiff’s contention that both the filing of the lien on Saint Francis’ behalf, as well as the document sent out by Defendant regarding the lien, constitute the unauthorized practice of law in Tennessee. (ECF No. 1-1 at PageID 24.) STANDARD OF REVIEW Federal Rule of Civil Procedure 56 permits a party to move for summary judgment — and the Court to grant summary judgment — “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party asserting the presence or absence of genuine issues of material facts must support its position either by “citing to particular parts of materials in the record,” including depositions, documents, affidavits or declarations, stipulations, or other materials, or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., , 587 (1986); Nat’l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence, judge the credibility of witnesses, or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., , 249 (1986). The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, , 323 (1986). The moving party may discharge this burden either by producing evidence that demonstrates the absence of a genuine issue of material fact or simply “by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325. Where the movant has satisfied this burden, the nonmoving party cannot “rest upon its . . . pleadings, but 4 Case 2:18-cv-02114-MSN-tmp Document 46 Filed 09/28/20 Page 5 of 17 PageID 914 rather must set forth specific facts showing that there is a genuine issue for trial.” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009) (citing Matsushita, 475 U.S. at 586; Fed. R. Civ. P. 56). The nonmoving party must present sufficient probative evidence supporting its claim that disputes over material facts remain and must be resolved by a judge or jury at trial. Anderson, 477 U.S. at 248–49 (citing First Nat’l Bank of Ariz. v. Cities Serv. Co., (1968 ; see also White v. Wyndham Vacation Ownership, Inc., 617 F.3d 472, 475–76 (6th Cir. 2010). A mere scintilla of evidence is not enough; there must be evidence from which a jury could reasonably find in favor of the nonmoving party. Anderson, 477 U.S. at 252; Moldowan, 578 F.3d at 374. The Court’s role is limited to determining whether there is a genuine dispute about a material fact, that is, if the evidence in the case “is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. Such a determination requires that the Court “view the evidence presented through the prism of the substantive evidentiary burden” applicable to the case. Id. at 254. Thus, if the plaintiff must ultimately prove its case at trial by a preponderance of the evidence, on a motion for summary judgment the Court must determine whether a jury could reasonably find that the plaintiff’s factual contentions are true by a preponderance of the evidence. See id. at 252–53. Finally, if the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the movant is entitled to summary judgment. Celotex, 477 U.S. at 323. The Court must construe Rule 56 with due regard not only for the rights of those “asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury,” but also for the rights of those “opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.” Id. at 327. 5 Case 2:18-cv-02114-MSN-tmp Document 46 Filed 09/28/20 Page 6 of 17 PageID 915 DISCUSSION The Motions for Summary Judgment involve two issues. First, Plaintiff disputes that Defendant was acting as an agent of Saint Francis2 at the time the hospital lien was filed. (See ECF No. 35 at PageID 886.) Second, Plaintiff alleges that Defendant engaged in the unauthorized practice of law. (ECF No. 1-1 at PageID 24.) A. Whether Defendant Was Acting as Saint Francis’ Agent In Tennessee, an agent is “[o]ne who undertakes to transact some business, or to manage some affair, for another, by the authority and on account of the latter, and to render an account of it.” Miller v. Ins. Co. of N. Am., 211 Tenn. 620, 625 (1963). “Agency is a relationship that results from the manifestation of consent by one person to another that the other shall act on his behalf subject to his control and consent.” Jahn v. McKee Baking Co., 629 S.W.2d 689, 693 n.2 (Tenn. Ct. App. 1981). A written agreement or contract expressly stating that an agency relationship exists is not necessary, rather “[t]he existence of an agency is determined by the actual relationships and deeds of the parties.” Elec. Power Bd. of Metro. Gov’t v. Woods, 558 S.W.2d 821, 824 (Tenn. 1977). “The test is whether the principal has a right to control the conduct of the agent with respect to matters entrusted to the agent. The ‘right of control is the primary or essential test of an agency relationship without which no agency exists.’” Sodexho Mgmt. v. Johnson, 174 S.W.3d 174, 178 (Tenn. Ct. App. 2004) (citing Nidiffer v. Clinchfield R. Co., 600 S.W.2d 242, 245 (Tenn. Ct. App. 1980). 2 The Court notes that Plaintiff appears to dispute that Saint Francis designated Defendant as its agent to file hospital liens because it disputed that Defendant was designated as such for purposes of filing hospital liens on certain patient accounts (see ECF No. 35 at PageID 886), but Plaintiff did not dispute that “[a]fter Saint Francis treated Plaintiff, it sent [Defendant], as its agent, Plaintiff’s account for purposes of filing a hospital lien.” (ECF No. 23 at PageID 699.) Thus, Plaintiff’s position regarding Defendant acting as an agent is unclear. For the sake of clarity, the Court will discuss the relevant case law and its application in this case. 6 Case 2:18-cv-02114-MSN-tmp Document 46 Filed 09/28/20 Page 7 of 17 PageID 916 Defendant was acting as an agent of Saint Francis when Defendant filed the hospital lien on Saint Francis’ behalf under Tennessee law. The record reflects ample evidence of a “manifestation of consent by one person to another that the other shall act on his behalf subject to his control and consent.” Jahn, 629 S.W.2d at 693 n.2. At the time the hospital lien was filed, Saint Francis designated Defendant as its agent for purposes of filing hospital liens. (ECF No. 15- 1 at PageID 480–81.) While Plaintiff originally conceded that this was the case (see ECF No. 23 at PageID 699), Plaintiff now disputes this fact on the basis that an amendment to the contract between Defendant and an affiliate of Saint Francis specifically stated that Defendant was not the agent of Saint Francis. (ECF No. 35 at PageID 886.) As Defendant points out, however, this amendment was not effective until April 7, 2017, nearly six months after the hospital lien in question was filed by Defendant. (ECF No. 36 at PageID 891.) Plaintiff has introduced nothing to contradict Defendant’s evidence that it was acting as Saint Francis’ agent at the time it filed the hospital lien on October 7, 2016, and given the effective date of the amendment, Plaintiff’s basis for later disputing this fact is without merit. In his response to Defendant’s Motion for Summary Judgment, Plaintiff suggests that it would have been permissible for an employee of Saint Francis to file the hospital lien, but not Defendant as an agent of Saint Francis, in effect distinguishing between permissible conduct of an employee versus that of an agent. (ECF No. 22 at PageID 691.) It makes little sense to apply such a distinction here. To place a limit on what sort of acts may be delegated from a principal to an agent would not be in keeping with the concept of agency. See generally 1 Tenn. Juris. Agency § 1 (2020). Additionally, the Hospital Lien Act specifically allows the agent of a hospital to file hospital liens on the principal’s behalf. Tenn. Code Ann. § 29-22-102. If the Court were to adopt 7 Case 2:18-cv-02114-MSN-tmp Document 46 Filed 09/28/20 Page 8 of 17 PageID 917 Plaintiff’s desired distinction, it would have the effect of preventing a hospital from delegating the authority to file a lien to an agent despite specific statutory authorization to do so. B. Whether Defendant Engaged in the Unauthorized Practice of Law The Tennessee General Assembly passed the Hospital Lien Act in 1970. Act of Feb. 20, 1970, ch. 527 Tenn. Pub. Acts 533. The HLA permits a hospital, or its agent, to file a lien on the proceeds of any judgment or settlement for all reasonable and necessary charges that the hospital incurs while treating a patient that was injured by a third party. Tenn. Code Ann. 29-22-101 et seq. “The dual purposes of the HLA were to promote the availability of hospital care and to assure hospitals that they could be compensated for the services they provide . . . [h]owever, a debt owed by a patient to a hospital is the foundation of a lien under the HLA.” West v. Shelby Cty. Healthcare Corp., 459 S.W.3d 33, 43 (Tenn. 2014). To help effectuate the General Assembly’s purposes in passing this statute: [T]he courts must construe lien statutes strictly because the Tennessee General Assembly has created the lien and has defined its scope and operation. The courts do not have the power to waive these statutory requirements or impose new ones . . . . [W]e must avoid interpreting lien statutes so narrowly that we frustrate the General Assembly’s purpose in creating the lien. Id. at 41. Because “a debt owed by a patient to a hospital is the foundation of a lien under the HLA,” West, 459 S.W.3d at 43, the filing of a hospital lien pursuant to the HLA is considered a collection activity. Franks v. Sykes, No. W2018-00654-SC-R11-CV, 2019 Tenn. LEXIS 582 (Tenn. May 1, 2020) (holding that plaintiffs who had a hospital lien filed against them had stated a claim under the Tennessee Consumer Protection Act of 1977 which prohibits, in part, deceptive collection practices). Only licensed attorneys may engage in the practice of law in Tennessee. Tenn. Sup. Ct. R. 7, §1.01; Tenn. Code Ann. § 23-3-103(a). The Tennessee Supreme Court “exercises original 8 Case 2:18-cv-02114-MSN-tmp Document 46 Filed 09/28/20 Page 9 of 17 PageID 918 jurisdiction over issues pertaining to the practice of law.” In re Burson, 909 S.W.2d 768, 773 (Tenn. 1995). It is the Tennessee Supreme Court’s “essential and fundamental right to prescribe and administer rules pertaining to the licensing and admission of attorneys.” Id. Included in this regulatory power is “also the corollary power to prevent the unauthorized practice of law.” Id. The Tennessee General Assembly has defined both “practice of law” as well as “law business.” Tenn. Code Ann. § 23-3-101. However, because the Tennessee Supreme Court exercises original jurisdiction over the practice of law, the court is “not bound by the definitions of ‘practice of law’ and ‘law business.’” In re Burson, 909 S.W.2d at 776. Rather, “the acts enumerated in the definitions of ‘law business’ and ‘practice of law’ contained within Tenn. Code Ann. § 23-3-101 . . . , if performed by a non-attorney constitute the unauthorized practice of law only if the doing of those acts requires the professional judgment of a lawyer.” Id. (internal quotation marks omitted). The state’s interest in regulating the practice of law is to “serve the public right to protection against unlearned and unskilled advice in matters relating to the science of the law.” Id. at 776. The Tennessee Supreme Court defends this principle by “protect[ing] primarily the interest of the public and not . . . hamper[ing] and burden[ing] such interest with impractical technical restraints . . . .” Id. Accordingly, “the question of whether an individual has engaged in the unauthorized practice of law is very fact specific as it concerns whether that individual gave advice or rendered services on matters that require the professional judgment of a lawyer.” State v. 2013 Delinquent Taxpayers, No. M2017-01439-COA-R3-CV, 2018 Tenn. App. LEXIS 255, at * 7 (Tenn. Ct. App. May 11, 2018). Although “[i]t is neither necessary nor desirable to attempt the formulation of a single specific definition of what constitutes the practice of law,” In re Burson, 909 S.W.2d at 775, Tennessee courts have repeatedly identified activities which call for the professional judgment of 9 Case 2:18-cv-02114-MSN-tmp Document 46 Filed 09/28/20 Page 10 of 17 PageID 919 a lawyer. Old Hickory Eng'g & Mach. Co. v. Henry, 937 S.W.2d 782, 786 (Tenn. 1996) (“The preparation and filing of a complaint requires the professional judgment of a lawyer, and is, therefore, the practice of law.”); Fifteenth Judicial Dist. Unified Bar Ass’n v. Glasgow, Appeal No. M1996-00020-COA-R3-CV, 1999 Tenn. App. LEXIS 815 (Tenn. Ct. App. Dec. 10, 1999) (holding that the owner of a “divorce typing service” was engaged in the unauthorized practice of law because her services consisted of (1) preparing marital dissolution agreements, and (2) suggesting where and when the paperwork should be filed); Vandergriff v. Parkridge E. Hosp., 482 S.W.3d 545, 554 (Tenn. Ct. App. 2015) (prohibiting a child’s parent from filing a claim on the child’s behalf pro se) (“Neither Mother nor Father is a licensed attorney. Therefore, they may not file a pro se complaint that asserts claims on [the child’s] behalf or appear in court as a legal advocate for her.”) Tennessee courts have also articulated what activities do not constitute the unauthorized practice of law because they do not require the professional judgment of a lawyer. Broadly, the “professional judgment of a lawyer” is “his educated ability to relate the general body and philosophy of law to a specific legal problem of a client.” In re Burson, 909 S.W.2d at 776. Where the “professional judgment of a lawyer” is not called for, individuals may perform certain activities requiring “special knowledge of law in certain areas.” Id. These activities include filing a claim for debts against a decedent’s estate, In re Estate of Green v. Carthage Gen. Hosp., Inc., 246 S.W.3d 582, 586 (Tenn. Ct. App. 2007) (“[F]iling a claim for debts due from a decedent does not require the exercise of the professional judgment of a lawyer. Such claims are in essence demands for payment.”) and filling in blanks on a form, Haverty Furniture Co. v. Foust, 174 Tenn. 203, 208 (1938) (“[T]he filling in of the blank forms described, without more, was the performance of a merely clerical or ministerial act, calling for the exercise of none of the intellectual, moral or 10 Case 2:18-cv-02114-MSN-tmp Document 46 Filed 09/28/20 Page 11 of 17 PageID 920 professional qualifications required in and for the practice of the law.”); see also Flanary v. Carl Gregory Dodge of Johnson City, L.L.C., No. E2007-01433-COA-R3-CV, 2008 Tenn. App. LEXIS 352, at *10 (Tenn. Ct. App. June 17, 2008) (“The simple act of filling in the blanks on form documents that have been prepared for a business use does not constitute the unauthorized practice of law.”) To review, it is Plaintiff’s contention that Defendant engaged in the unauthorized practice of law by filing hospital liens on behalf of Saint Francis, as well as by Defendant’s mailing of the document “Explanation of a Hospital Lien” to patients of Saint Francis who were subjects of said liens. (See ECF No. 1-1.) Based on the record before the Court, as well as the applicable law regarding the unauthorized practice of law in Tennessee, this Court finds Plaintiff’s arguments unavailing. 1. Filing a Hospital Lien Plaintiff’s argument that Defendant engaged in the unauthorized practice of law fails because Defendant acted within the scope of the HLA, and further, because Defendant’s process for filing the hospital lien did not require the professional judgment of a lawyer. Defendant cites Haverty Furniture Co. as well as In re Estate of Green in arguing that the filing of the hospital lien is akin to filling in blanks on a form. (ECF No. 17-2 at PageID 667–70.) In response, Plaintiff argues that Haverty Furniture Co. and In re Estate of Green are distinguishable because in both cases it was an employee of the business that filed the writ of replevin in the former and the claim against the decedent’s estate in the latter. (ECF No. 22 at PageID 688–91.) As discussed in Part A. supra, the notion that an employee of a hospital, but not the hospital’s agent, is permitted to fill in blanks on a form without committing the unauthorized practice of law is at odds with both the concept of agency and the HLA. Unlike Tenn. Code Ann. 11 Case 2:18-cv-02114-MSN-tmp Document 46 Filed 09/28/20 Page 12 of 17 PageID 921 § 30-2-307, the statute that was interpreted in In re Green, the HLA explicitly permits an agent of a hospital to file a hospital lien. Tenn. Code Ann. § 29-22-101 et seq. In making his argument, Plaintiff asks the Court to effectively read out the word “agent” in the HLA. The Court declines to do so. In support of his Motion for Partial Summary Judgment, Plaintiff cites several Tennessee Attorney General opinions. (ECF No. 1-3 at PageID 227–28.) These opinions, though not binding precedent, are “entitled to considerable deference” where applicable. State v. Black, 897 S.W.2d 680, 683 (Tenn. 1995). The Attorney General opinions cited by Plaintiff address a variety of conduct, but none directly address whether the filing of a hospital lien under the HLA constitutes the unauthorized practice of law. Of the opinions cited by Plaintiff, the one which most closely resembles the facts at hand states that a nonlawyer may not prepare divorce complaints and marital dissolution agreements for a fee. Tenn. Op. Atty. Gen. 94-101 (Sept. 9, 1994). Even this opinion, however, is not factually analogous to Defendant’s conduct and is of greater similarity to the defendant in Glasgow who operated a “divorce typing service.” Glasgow, 1999 Tenn. App. LEXIS 815, at *9 n. 4. Hence, the opinions cited by Plaintiff are not entitled to “considerable deference,” Black, 897 S.W.2d at 683 (Tenn. 1995), given their dissimilarity to the facts at hand. Plaintiff also cites caselaw from North Carolina and Texas in support of his argument that Defendant engaged in the unauthorized practice of law. (ECF No. 1-3 at PageID 230–31.) In both cases the defendants operated lien-filing services and were both found to be engaged in the unauthorized practice of law. State Bar v. Lienguard, Inc., 2014 NCBC 11, 2014 WL 1365418 (N.C. Sup. Ct. Apr. 4, 2014); Crain v. Unauthorized Practice of Law Comm. of Tex., 11 S.W.3d 328 (Tex. Ct. App. 1999). Defendant counters that the liens filed in Lienguard and Crain were 12 Case 2:18-cv-02114-MSN-tmp Document 46 Filed 09/28/20 Page 13 of 17 PageID 922 more complex in their processes for perfection than the hospital liens filed by Defendant pursuant to the HLA. (ECF No. 13 at PageID 309.) While the defendants in Lienguard and Crain may be similarly situated with Defendant given the fact that they are all lien-filing services, they are nonetheless distinguishable. In Crain, Texas law explicitly prohibited nonlawyers from the “preparation of a legal instrument affecting title to real property including a deed, deed of trust, note, mortgage, and transfer or release of lien.” Tex. Gov’t Code § 83.001. Tennessee statutes relating to the unauthorized practice of law do not contain similar language. Tenn. Code. Ann. § 23-3-101. Additionally, in Lienguard, it appears that the defendant engaged in conduct that went far beyond merely filling in the blanks on a form and filing a lien, including providing customers with services ranging from “preliminary notice– $75” to “bond claim with research–$210.” Lienguard, Inc., 2014 WL 1365418, at *3. While the Court does not determine whether the liens at issue in Crain and Lienguard are more complex than a hospital lien as Defendant argues (ECF No. 13 at PageID 308), there are not sufficient similarities between the defendants in Crain and Lienguard to overcome the plain language of the HLA authorizing a hospital or its agent to file a hospital lien. Tenn. Code Ann. § 29-22-101 et seq. Defendant’s process for filing the hospital lien can best be described as filling in the blanks on a form (see ECF No. 23 at PageID 701), which does not constitute the unauthorized practice of law in Tennessee. Haverty Furniture Co. v. Foust, 174 Tenn. 203, 208 (1938). To hold that a hospital or its agent is permitted to file a hospital lien pursuant to the HLA, while simultaneously requiring that it use a lawyer in order to do so would place “impractical technical restraints” on what constitutes the unauthorized practice of law in Tennessee, In re Burson, 909 S.W.2d at 776, while at the same time interpreting the HLA “so narrowly” as to “frustrate the General Assembly’s purpose in creating the lien.” West, 459 S.W.3d at 41. As an aside, the fact that the HLA has been 13 Case 2:18-cv-02114-MSN-tmp Document 46 Filed 09/28/20 Page 14 of 17 PageID 923 law in Tennessee for nearly 50 years without even a scintilla of a suggestion that its use may constitute the unauthorized practice of law is a strong indication that the Tennessee Supreme Court has no desire to exercise its original jurisdiction to restrict the HLA to prevent the unauthorized practice of law. Finally, the filing of a hospital lien has recently and repeatedly been described by Tennessee courts to be akin to a collection practice or demand for payment. See Franks, 2020 Tenn. LEXIS 582, at *16; see also West, 459 S.W.3d at 43. If a hospital lien is a demand for payment, then it stands to reason that filing a hospital lien is merely “filing a claim for debts due” and “does not require the exercise of the professional judgment of a lawyer” because “[s]uch claims are in essence demands for payment.” In re Estate of Green, 246 S.W.3d at 586. 2. “Explanation of Hospital Lien” Letter Plaintiff argues that Defendant’s conduct in sending the “Explanation of Hospital Lien” document is analogous to that of the defendant in In re Rose, 314 B.R. 663, 674 (Bankr. E.D. Tenn. 2004). In In re Rose, the defendant was a paralegal operating a bankruptcy “handholding” business that assisted clients in filing bankruptcy petitions for a fee. Id. The defendant admitted to regularly assisting clients in filling out bankruptcy forms, answering general questions, reviewing the documents, and finalizing the documents for filing. Id. at 692. Most relevant to the matter at hand, the defendant, Ms. Motley, would send a packet of documents to her clients for a fee of $199.00. Id. at 696. This packet included six documents. Id. The first document was entitled “Bankruptcy Document Preparation Agreement” and set out the parameters of the defendant’s relationship with her clients. Id. The second document was the “Customer Information Workbook,” which customers were instructed to fill in themselves and was later transcribed into the customers’ actual bankruptcy statements. Id. at 697. The third document was entitled “Tennessee Step by Step 14 Case 2:18-cv-02114-MSN-tmp Document 46 Filed 09/28/20 Page 15 of 17 PageID 924 Guide to the Bankruptcy Workbook.” Id. This document included a glossary of bankruptcy terms, examples of completed workbook pages, and a list of Tennessee’s real and personal property exemptions with their corresponding section in statute. Id. The fourth document was entitled “Bankruptcy Overview” and contained an overview of everything from what bankruptcy is, to how to rebuild credit afterwards. Id. The fifth document was another copy of the Tennessee Bankruptcy Exemptions Table. Id. The sixth and final document informed customers where they could file their bankruptcy petition in Tennessee. Id. at 698. In finding that that Ms. Motley was engaged in the unauthorized practice of law, the bankruptcy court cited the Tennessee Court of Appeals in Glasgow: “sellers who . . . advise customers on which forms to use and how to fill them out have been found to be engaging in the unauthorized practice of law.” Id. at 705 (citing Glasgow, 1999 Tenn. App. LEXIS 815, at *9 n. 4.) The bankruptcy court also stated that it was most concerned with the Guide and Overview given to customers by Ms. Motley “because [t]he information contained in the[] documents actually inform[ed] potential debtors what to include within their bankruptcy schedules, along with providing answers to what Ms. Motley believe[d] . . . [were] ‘generic’ bankruptcy questions.” In re Rose, 314 B.R. at 699. Defendant sending individuals the Explanation of a Hospital Lien is not analogous to the actions of the defendant in In re Rose. Unlike In re Rose, there was no relationship between Defendant and the patients who were sent the Explanation of a Hospital Lien. Further, no patients paid Defendant for the Explanation of a Hospital Lien. While Defendant’s Explanation of a Hospital Lien does describe the funds that the lien affects (ECF No. 1-1 at PageID 33), it simply does not rise to the level of behavior exhibited by the defendant in In re Rose where Ms. Motley was sending out packets of information detailing the bankruptcy process and walking clients 15 Case 2:18-cv-02114-MSN-tmp Document 46 Filed 09/28/20 Page 16 of 17 PageID 925 through it. In re Rose is much more akin to Glasgow where the defendant operated a “divorce typing service,” prepared marital dissolution agreements, and suggested where they should be filed. See Glasgow, 1999 Tenn. App. LEXIS 815, at *3–4. While Defendant sent out a document giving an overview of the hospital lien that it had filed, the Court does not find that Defendant’s conduct is equal to that of the defendants in Glasgow and In re Rose. Plaintiff correctly points out that Defendant’s “Explanation of a Hospital Lien” document contains a legal inaccuracy regarding the lien acting as a demand for payment. (ECF No. 22 at PageID 694–95.) Indeed, this Court grants Defendant’s Motion for Summary Judgment in part because the hospital lien is a demand for payment. See Franks, 2020 Tenn. LEXIS 582, at *16; see also West, 459 S.W.3d at 43. While this inaccuracy suggests that the practice of law may have occurred in the document’s drafting, much like the drafting of the hospital lien form that Defendant’s employees fill out, the Court distinguishes between the acts of the lawyers who wrote these documents and the company which filled the form out, in the case of the lien, or mailed the form out, in the case of the explanatory document. The practice of law incident to another separate activity does not make the latter also the practice of law. If it did, for example, a non-lawyer ACLU staff member handing out a card to an individual detailing a citizen’s Fourth Amendment rights could be considered to be practicing law just because the cards themselves required the professional judgment of a lawyer in their drafting. This Court is respectful of the Tennessee Supreme Court’s instruction not to interpret statutorily created liens in a manner as to “waive the[] statutory requirements or impose new ones.” West, 459 S.W.3d at 41. Under the facts presented to the Court, Defendant did not engage in the unauthorized practice of law in Tennessee. To hold otherwise would frustrate the purpose of the HLA by burdening its effectuation with “impractical technical restraints,” In re Burson, 909 16 Case 2:18-cv-02114-MSN-tmp Document 46 Filed 09/28/20 Page 17 of 17 PageID 926 S.W.2d at 776, while at the same time interpreting the HLA “so narrowly that we frustrate the General Assembly's purpose in creating the lien.” West, 459 S.W.3d at 41. Accordingly, this Court holds that Defendant’s actions did not constitute the unauthorized practice of law. For the reasons set forth above, Plaintiff’s Motion for Partial Summary Judgment is CONCLUSION DENIED and Defendant’s Motion for Summary Judgment is GRANTED. IT IS SO ORDERED, this 28th day of September 2020. s/ Mark S. Norris MARK S. NORRIS UNITED STATES DISTRICT JUDGE 17
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