Jennings v. University of Tennessee - Knoxville et al

Filing 41

ORDER granting in part and denying in part 13 Defendant Dave Hart's Motion to Dismiss. The motion is granted to the extent Defendant Hart requests that the aiding and abetting claim against him be dismissed, and that claim is DISMISSED. The motion is otherwise DENIED. Signed by District Judge Karen K Caldwell on September 26, 2013. (AYB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
KNOXVILLE DIVISION
CIVIL ACTION NO. 12-507-KKC
DEBORAH K. JENNINGS,
V.

PLAINTIFF,

MEMORANDUM OPINION & ORDER

UNIVERSITY OF TENNESSEE-KNOXVILLE, et al.

DEFENDANTS.

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This matter is before the court on Defendant Dave Hart’s partial motion to dismiss (DE
13) in which he requests that the Court dismiss two claims asserted against him: an aiding and
abetting claim under Tenn. Code Ann. § 4-21-301(2) and a retaliation claim under Tenn. Code
Ann. § 4-21-301(1). For the following reasons, the Court will grant in part and deny in part the
defendant’s motion.
BACKGROUND
This case stems from a discrimination suit against the University of Tennessee-Knoxville
and Athletic Director Dave Hart brought by a number of employees and former employees. It is
related to 12-CV-534, Schlosser, et al. v. University of Tennessee. Deborah K. Jennings filed
suit against the University of Tennessee-Knoxville and Dave Hart following her retirement from
the university’s athletic department. In her complaint, Jennings alleges that she was forced to
retire, and was therefore wrongfully terminated from her employment not only because of her
age and gender, but also in retaliation for her complaints regarding discrimination in the
workplace. Her claims arise under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000,
et. seq., the Americans with Disabilities Act, 42 U.S.C. § 12101, et. seq., and various state law
claims under the Tennessee Human Rights Act (THRA), Tenn. Code Ann. § 4-21-101, et seq.

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Hart moves for dismissal under Rule 12(b)(6) for failure to state a claim for relief
regarding the claim of individual aiding and abetting under Tenn. Code Ann. § 4-21-301(2)
arguing that his actions were within the scope of his supervisory duties and that the Complaint
fails to allege conduct by Hart that aids or abets discrimination by the University. Second, Hart
moves to dismiss the retaliation claim under Tenn. Code Ann. § 4-21-301(1) on the ground that
he cannot be individually liable under the THRA for any actions that are within the scope of his
employment.
STANDARD OF REVIEW
To avoid a 12(b)(6) dismissal for failure to state a claim, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550 U.S. at 556). The court must view the allegations in the
complaint in the light most favorable to the plaintiffs, treating all well-pleaded facts as true, but
need not accept bare legal conclusions as definitive. See Tackett v. M & G Polymers, USA, LLC,
561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir.
2009)).

Based on this standard, the Court addresses Defendant Hart’s challenge that the

Complaint fails to state a claim for relief under the Tennessee Human Rights Act.
DISCUSSION
The crux of Defendant’s argument is that at all times he was acting as the University’s
agent and within the scope of his supervisory duties, and therefore cannot be held individually

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liable under the THRA. As a general rule, the THRA does not allow for the imposition of
personal liability because an individual is not an employer. Hajizadeh v. Vanderbilt Univ., 879
F. Supp. 2d 910, 928 (M.D. Tenn. 2012). Exceptions exist, however, under § 4-21-301, which
permit imposing personal liability in cases such as this where a plaintiff alleges that the
defendant engaged in retaliatory acts or aided and abetted discrimination. See Emerson v. Oak
Ridge Research, Inc., 187 S.W.3d 364, 377 (Tenn. Ct. App. 2005).
Plaintiff’s allegations as set forth in the amended complaint fail to state a claim against
Hart for aiding and abetting discrimination. In order to prevail on a theory of aiding and abetting
under the THRA, a plaintiff must allege “affirmative conduct” that is “separate and distinct from
acting as a supervisor.” Pigott v. Battle Ground Academy, 909 F. Supp. 2d 949, 968 (M.D. Tenn.
2012); Dobson v. City of Gallatin, 2006 WL 3805659, at *15 (M.D. Tenn. Dec. 22, 2006). A
plaintiff cannot prevail on a theory of aiding and abetting liability under the THRA “based on the
individual defendant’s own discriminatory acts.” Pigott, 909 F. Supp. 2d at 968 (quoting Jenkins
v. Nashville Pub. Radio, 2005 WL 3358871, at *7 (M.D. Tenn. Dec. 9 2005)). See also
Crutchfield v. Aerospace Ctr. Support, 1999 WL 1252899, at *2 (6th Cir. Dec. 14, 1999)
(unpublished). Nor is it sufficient to allege that an individual aided and abetted discrimination
through “a failure to act or mere presence during the employer’s discrimination.” McNeailTunstall v. Marsh USA, 307 F. Supp. 2d 955, 974 (W.D. Tenn. 2004). Rather, the THRA
requires an affirmative act such as “thwart[ing] an investigation into discriminatory conduct.”
Pigot, 909 F. Supp. 2d at 968. In this way, liability for aiding and abetting under the THRA
mirrors civil law accomplice liability. See Pigott, 909 F. Supp. 2d at 968; McNeail-Tunstall, 307
F. Supp. 2d at 974.

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Jennings’s Amended Complaint does not allege any kind of conduct distinct from Hart’s
role as a supervisor. The Amended Complaint includes a history of the Lady Vols and details
Jennings’s long career in the athletic department.

Yet, only one paragraph in the entire

complaint even references the aiding and abetting claim. In that singular paragraph, Jennings
summarily alleges that Hart “aided, abetted, intended compelled or commanded UT-K in
engaging in discriminatory and retaliatory conduct herein alleged . . . and his actions prevented
the employer from taking corrective action.” (DE 35, Second Am. Complt. ¶ 217). Jennings
does not, however, allege that Defendant Hart aided and abetted the University in discrimination
through acts that are distinct from those taken in his supervisory role, which included hiring and
firing athletic department employees. In forcing Jennings to retire, as she alleges, Hart cannot be
said to have aided and abetted his own discriminatory conduct. See Pigott, 909 F. Supp. 2d at
968.
Plaintiff further contends that Defendant’s refusal to listen to her complaints about
discriminatory behavior constitutes aiding and abetting insofar as it “prevented the employer
from taking corrective action.” (DE 22 p. 21-22). Mere silence or a failure to act, however, is
insufficient to establish aiding and abetting liability under the THRA. See McNeail-Tunstall,
307 F. Supp. 2d at 974 (noting that “a failure to act” is insufficient to establish aiding and
abetting liability). Just as with civil accomplice liability, Plaintiff must allege affirmative acts by
the Defendant, and a failure to respond to her complaints does not suffice.
This Court, however, does not agree with the defendant that he cannot be held
individually liable for a retaliation claim. Jennings has stated a claim for retaliation under the
THRA. The Complaint alleges that in retaliation for her prior complaints about workplace
discrimination, Hart “forced her to retire.” (DE 35, Second Am. Complt. ¶ 217). As noted

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above, an individual can be held liable for retaliation under the THRA. See Emerson, 187
S.W.3d at 377 (“In this case the allegation is retaliation rather than aiding and abetting, both of
which practices fall under Tenn. Code Ann. § 4-21-301, so individual liability may be had for
either violation.”). This is true even when the retaliatory act is within the delegated duties of the
supervisor. See, for example, Emerson, 187 S.W.3d at 376-77 (allowing a claim for retaliatory
discharge).
Plaintiff alleges that she sent an email to Hart referencing her complaints about the
consolidation of the athletic departments and what she perceived to be the unfair treatment of
Coach Pat Summit. She further alleges she was subsequently marginalized and told she did not
need to attend staff meetings. She states she was not informed she was “insubordinate” until
after her retirement. Construing the facts in the light most favorable to Plaintiff, Defendant Hart
can be held individually liable for retaliation. A jury could conclude that he decided Plaintiff
should be terminated because of her complaints about discrimination.
Accordingly,
IT IS ORDERED that Defendant Dave Hart’s motion to dismiss (DE 13) is GRANTED
IN PART and DENIED IN PART as follows:
1. The motion is granted to the extent Defendant Hart requests that the aiding and
abetting claim against him be dismissed, and that claim is DISMISSED.
2. The motion is otherwise DENIED.
Dated this 26th day of September, 2013.

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