Shepherd v. Tennessee, State of
MEMORANDUM signed by Chief Judge Waverly D. Crenshaw, Jr on 10/5/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
STATE OF TENNESSEE,
CHIEF JUDGE CRENSHAW
Gay Shepherd filed this employment law action against the State of Tennessee
(“Tennessee”), alleging violations of federal law arising from her employment with Tennessee
Tech University (“Tennessee Tech”), a “component of the Tennessee Board of Regents.” (Doc.
No. 1.) Both Tennessee Tech and the Tennessee Board of Regents are divisions of Tennessee.
(Doc. No 1 at 2.) Before the Court is Tennessee’s Motion to Dismiss. (Doc. No. 7.) For the
following reasons, the motion is GRANTED IN PART and DENIED IN PART.
Shepherd worked for Tennessee Tech’s police department since 1979, and was its Chief of
Police for eighteen years until Tennessee Tech forced her to resign on June 20, 2014. (Doc No. 1
at 2-3.) At the time of her resignation, Shepherd was (1) the only female police chief at any
Tennessee Board of Regents’ universities; (2) the only openly-gay police chief in the Tennessee
Board of Regents’ universities; and (3) the only female in Tennessee Tech’s police department.
(Doc. No. 1 at 3.) She was also the lowest paid police chief, despite having a longer term of service
than others. (Doc. No. 1 at 3.)
In the mid-1990s, Tennessee Tech transferred the police department from the Student
Affairs Department to the Business and Fiscal Affairs Department. This occurred because
Shepherd’s sexual orientation was offensive to the Vice President of Student Affairs Marc
Burnett’s religious convictions. (Doc. No. 1 at 4.) When Dr. Philip Oldham became Tennessee
Tech’s president in 2013, Oldham decided to return the Police Department to the Department of
Student Affairs and Burnett. (Doc. No. 1 at 4.) “Almost immediately there were problems
originating with [ ] Burnett’s prejudices against [ ] Shepherd’s age, gender, sexual orientation and
her failure to share his same religious beliefs.” (Doc. No. 1 at 4.) For example, Burnett would not
communicate with Shepherd, setting her up for failure in completing certain tasks. (Doc. No. 1 at
5.) Burnett also decided to order new uniforms for all the male police officers, but did not order
one for Shepherd. (Doc. No. 1 at 5.) Shepherd reported Burnett’s harassment to Tennessee Tech’s
Internal Audit officer, which advised Shepherd that there was not enough to warrant a formal
complaint but it was “really close.” (Doc. No. 1 at 5.)
STANDARD OF REVIEW
The United States Court of Appeals for the Sixth Circuit has described the standard of
review on a motion to dismiss as follows:
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must
contain a “short and plain statement of the claim showing that the pleader is entitled
to relief.” Although this standard does not require “detailed factual allegations,” it
does require more than “labels and conclusions” or “a formulaic recitation of the
elements of a cause of action.” Twombly, 550 U.S. at 555. Rather, to survive a
motion to dismiss, the plaintiff must allege facts that, if accepted as true, are
sufficient “to raise a right to relief above the speculative level,” id., and to “state a
claim to relief that is plausible on its fact,” id. at 570; see also Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009). “A claim has facial plausibility where 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. And
although we must accept all well-pleaded factual allegations in the complaint as
true, we need not “accept as true a legal conclusion couched as a factual allegation.”
Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986));
see also Iqbal, 556 U.S. at 678.
Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009).
Shepherd brings three causes of action against Tennessee arising from her low pay and
constructive discharge: (1) age discrimination in violation of the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.; (2) gender discrimination in violation of
Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e; and (3) sexual
orientation discrimination in violation of Title VII. (Doc. No. 1.)
The State of Tennessee is immune from suit under the ADEA. Kimel v. Fl. Bd. of Regents,
528 U.S. 62, 91 (2000); Coger v. Bd. of Regents of State of Tenn., 209 F.3d 485 (6th Cir. 2000);
Hornberger v. Tennessee, 782 F. Supp. 2d 561, 568 (M.D. Tenn. 2011) (Trauger, J.). Shepherd
asks the Court to overrule the Supreme Court’s ruling in Kimel by finding it was wrongly decided.
(Doc. No. 9 at 23.) However, the Court is required to “follow the case which directly controls,
leaving to [the Supreme Court] the prerogative of overruling its own decisions.” Rodriguez de
Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989). As a matter of settled law, the Court
is required to dismiss Count I under the ADEA.
B. TITLE VII
The Complaint asserts two violations of Title VII: gender and sexual orientation
discrimination. (Doc. No. 1 at 7.) Shepherd argues that she asserts facts to support additional
claims, such as hostile work environment and religious discrimination claims (Doc. No. 9), but she
does not include a “short and plain statement of the claim” in the Complaint. FED. R. CIV. P.
8(a)(2). Assuming the facts in the Complaint are true, there is no way that Tennessee would have
“fair notice” of Shepherd’s hostile work environment and religious claims “and the grounds upon
which they rest” until her Response to this Motion. Swierkiewicz v. Sorema N.A., 534 U.S. 506,
514 (2002). The Court will, however, grant Shepherd leave to amend her Complaint to add her
hostile work environment and religious discrimination claims, if she wishes to pursue them.
A. SEXUAL ORIENTATION DISCRIMINATION
Tennessee moves to dismiss the sexual orientation discrimination claim as not legally
cognizable in the Sixth Circuit. (Doc. No. 8 at 6.) Shepherd responds that the Supreme Court
signaled in Obergefell v. Hodges, 135 S.Ct 2584 (2015), that it “supports LGBT rights,” and that
view will not be affected with the addition of Justice Neal Gorsuch to the Court. (Doc. No. 9 at 9.)
Shepherd also compiles multiple out-of-circuit cases that recognize sexual orientation
discrimination as cognizable under Title VII. 1 (Doc. No. 9 at 10-19.) The Court is bound by
published Sixth Circuit case law. A.B.C. Beverage Corp. v. United States, 756 F.3d 438, 441 (6th
Cir. 2014). The Sixth Circuit has held, explicitly, that it does not recognize sexual orientation
discrimination under Title VII. Vickers, 453 F.3d at 762. The Court must dismiss the sexual
orientation discrimination claim in Count II.
B. GENDER DISCRIMINATION
Tennessee moves to dismiss Shepherd’s gender discrimination claim because she does not
identify a similarly-situated employee that was treated differently than her. (Doc. No. 8 at 8.) This
is based on the mistaken belief that a plaintiff must establish a prima facie case under McDonnell
Douglas, 411 U.S. 792 (1973), to survive a motion to dismiss. (Doc. No. 8 at 7.) However, “an
Shepherd also cites one case from the United States District Court for the Northern District of Ohio that
recognized gender stereotype discrimination. (Doc. No. 9 at 15 (citing Koren v. Oh. Bell Tel. Co., 894 F. Supp. 2d
1032, 1037 (N.D. Oh. 2012) (Gwin, J.) (citing Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 764 (6th Cir. 2006)). In
the same Sixth Circuit case that recognized gender stereotype discrimination, the Sixth Circuit declined to recognize
sexual orientation discrimination. Vickers, 453 F.3d at 762. At this stage, it does not appear Shepherd is attempting
to bring a sex stereotype discrimination case, and therefore this case does not support Shepherd’s argument that
sexual orientation discrimination is cognizable under Title VII.
employment discrimination complaint need not include such facts and instead must contain only
‘a short and plain statement of the claim showing that the pleader is entitled to relief.’”
Swierkiewicz, 534 U.S. at 508 (2002) (quoting FED. R. CIV. P. 8(a)(2)). The McDonnell Douglas
test is “an evidentiary standard, not a pleading requirement.” Id. “Applying the relevant standard,
[the Complaint] easily satisfies the requirements of Rule 8(a) because it gives [Tennessee] fair
notice of the basis for [Shepherd’s] claims.” Id. at 514. Shepherd alleges that she was paid less
than men in her same position and that she was treated poorly by Burnett until she was
constructively discharged on account of her gender in violation of Title VII. Taking the facts in
the light most favorable to Shepherd, this states a gender discrimination claim in Count II under
Title VII. The Court will not dismiss her claim at this stage.
An appropriate order will enter.
WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE
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