Thomas v. Werthan Packaging Inc.

Filing 30

REPORT AND RECOMMENDATION: The Magistrate Judge recommends that deft's 17 Motion for Summary Judgment be GRANTED, and that the claims against deft be DISMISSED. Signed by Magistrate Judge John S. Bryant on 10/17/11. (xc:Pro se party by regular and certified mail.)(rd)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DARYL T. THOMAS,
Plaintiff,
v.
WERTHAN PACKAGING, INC.,
Defendant.
To:

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No. 3:10-cv-00876
Judge Sharp/Bryant

The Honorable Kevin H. Sharp, District Judge
REPORT AND RECOMMENDATION
I. Introduction
By order entered October 20, 2010 (Docket Entry No. 3.), this matter was referred to the

undersigned for case management and to recommend ruling on any dispositive motions.
Plaintiff Daryl T. Thomas, of LaVergne, Tennessee, filed this pro se action in forma
pauperis under the Americans with Disabilities Act against defendant Werthan Packaging, Inc.
(“Werthan”).1 (Docket Entry No. 1.) Plaintiff seeks compensatory damages, punitive damages,
and injunctive relief. (Id.) Pursuant to Federal Rule of Civil Procedure 56(c), Werthan filed a
motion for summary judgment on June 6, 2011. (Docket Entry No. 17.) Plaintiff responded on

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In his complaint, Mr. Thomas actually invoked the authority of Title VII of the Civil
Rights Act of 1964 and the Civil Rights Act of 1991 (Docket Entry No. 1.). This appears to have
been a mistake on his part. In its Answer, defendant Werthan denied that plaintiff’s claims were
brought pursuant to these two statutes, but admitted that the Americans with Disabilities Act
(“ADA”) and Americans with Disabilities Act Amendment (“ADAA”) confer jurisdiction on this
court. (Docket Entry No. 10 ¶ 1.) Plaintiff does not dispute this characterization of his claim,
and the undersigned proceeds on the assumption that plaintiff brings his discrimination claim
pursuant to the ADA and ADAA.
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June 16, 2011 (Docket Entry No. 27.), and defendant replied on June 30, 2011. (Docket Entry
No. 28.)
As further explained below, the undersigned recommends that defendant’s motion for
summary judgment be GRANTED and that plaintiff’s action be DISMISSED.
II. Background2
Plaintiff Daryl Thomas began working part time for defendant Werthan Packing, Inc. on
January 4, 2008. (Docket Entry No. 18 at 2.) Werthan is an industrial manufacturer that
produces commercial-grade paper bags used in packaging pet food. (Id. at 1.) Defendant
initially assigned plaintiff to work as a helper on its Rotogravure press (“Gravure”), a large
printing press that defendant uses to print labels and logos onto its paper bags. (Id. at 2.)
Plaintiff’s responsibilities included setting up the Gravure with needed ink and other supplies
each day and supporting the other operators on the machine. (Id.)
On April 18, 2008, defendant hired plaintiff on full-time as an Assistant Gravure
Operator. (Id.) As an Assistant Operator, plaintiff was responsible for helping the Operator
maintain a steady print quality and steady level of output on the machine. (Id). He remained in
this position for approximately four months. (Id.)
Sometime in July, plaintiff switched jobs and began working as an Operator on another
machine, the Dusenberry Slitter (“Slitter”), which defendant used to trim excess scraps from its
larger rolls of printed paper. (Id.) As a Slitter Operator, plaintiff earned less than he had as an

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To date, plaintiff has not provided this court with a concise summary of his version of
the facts in this case. The undersigned therefore relies heavily on the statement of facts from
defendant’s memorandum in support of its motion for summary judgment. (Docket Entry No.
18.) Except where otherwise noted, plaintiff does not appear to dispute these facts or dates.
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Assistant Operator on the Gravure. (Id.) Plaintiff asserts that defendant never told him that the
change in jobs would lead to a pay cut and that he would not have switched jobs if he had
known. (Docket Entry No. 27-1 at 32.)
Defendant did not actually reduce plaintiff’s hourly wage until September. (Docket
Entry No. 18 at 2.) Defendant claims that this was the result of a clerical error. (Id.) Plaintiff
claims that defendant was retaliating against him for asking about back pay that defendant
allegedly owed him. (Docket Entry No. 27-1 at 31.)
On October 8, 2008 plaintiff injured his hand on the Slitter. (Docket Entry No. 18 at 3.)
While reaching for a piece of paper, he caught his hand between two metal rollers, crushing his
index finger and lacerating his skin. (Id.) Defendant took him to the hospital, where doctors
stitched his hand up and put it in a splint. Then, to facilitate the healing process, a worker’s
compensation doctor put plaintiff on a lifting restriction of five pounds. (Id.)
While the restriction was in place, defendant put plaintiff on light-duty work in its
Rework Department. (Id. at 4.) His primary responsibilities were inspecting and repairing
defective bags. (Id.) Defendant claims that its Rework Department is not a permanent
department; when the plant’s operations are running smoothly there are few defective bags and
little need to devote resources to inspection and repair. (Id.) Plaintiff continued on restricted
duty until December 23, 2008, when the workers’ compensation doctor cleared him to return to
his position as Slitter Operator. (Id.)
At some point in October or early November, while the lifting restriction was in place,
plaintiff began experiencing pain in his lower back, prompting a visit to the Vanderbilt
University Medical Center on November 2, 2008. A doctor there diagnosed him with a

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lumbrosacral sprain and recommended that he avoid heavy lifting and bending. (Docket Entry
No. 27-1 at 56-58.)
Plaintiff and defendant appear to disagree about the precise cause or causes of Mr.
Thomas’ back injury. Defendant claims that the injury was not work-related and further claims
that plaintiff admitted as much at the time. (Docket Entry No. 18 at 4.) Plaintiff, in contrast,
claims that a “work related incident” on November 2, 2008 exacerbated a pre-existing condition.
(Docket Entry No. 27-1 at 78.)
On December 16, Plaintiff spoke to a manager regarding his back pain and the possibility
of moving to a less physically demanding job. (Id.) The manager informed him that Werthan
would not put plaintiff on a restricted duty assignment without a doctor’s note and recommended
that plaintiff have his doctor fax over any recommended work restrictions. Plaintiff called his
doctor that same day requesting that the doctor send Werthan a fax. (Id.)
Plaintiff contends that his physician sent the required fax later that afternoon, December
16, 2008. (Id. at 82.) He further contends that defendant intentionally returned him to work on
the Slitter knowing that it would aggravate his back injury, and that defendant’s ultimate goal
was to force plaintiff to quit. (Id.)
Defendant, in contrast, contends that it never received a fax from plaintiff’s doctor and
that managers only received a copy of the recommended work restrictions when plaintiff handdelivered one on January 16, 2009. (Docket Entry No. 18 at 4.)
Both parties agree, however, that managers at Werthan knew of plaintiff’s back-related
work restrictions as of January 16 and that defendant then put plaintiff on unpaid leave pursuant
to the Family Medical Leave Act (“FMLA”). (Id. at 5; Docket Entry No. 27-1 at 82.) Plaintiff

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remained on FMLA leave until the statutory leave period expired on April 19, 2009. (Docket
Entry No. 18 at 5.) Defendant claims that the company gave plaintiff an additional month of
personal leave beginning April 20, 2009. (Id.) Plaintiff disputes this assertion and claims that
defendant was simply trying to prevent him from collecting unemployment insurance (Docket
Entry No. 27 at 1.)
On May 13, 2009, plaintiff filed a claim for unemployment insurance with the Tennessee
Department of Labor and Workforce Development. The Department, however, concluded that
plaintiff had not quit or been terminated as of that date, and was not eligible until he returned to
his employer and offered to work again as soon as he was able to work again and perform his
former duties. (Docket Entry No. 27-1 at 5.) The Department’s decision was affirmed on appeal
on July 21, 2009. (Id. at 14-15.)
On May 18, 2009, defendant issued a termination notice to plaintiff. (Docket Entry No.
27-1 at 6.) Defendant asserts that plaintiff quit. (Docket Entry No. 18 at 6.) Plaintiff rejects this
assertion and claims that managers told him over the phone in April that they would not let him
return to his job. (Docket Entry No. 27-1 at 3.)
Plaintiff filed this complaint, alleging violations of the Americans with Disabilities Act,
worker’s compensation law, and retaliation, on September 21, 2010. (Docket Entry No. 1.)

III. Conclusions of Law
A. Standard of Review
To prevail on a motion for summary judgment, the movant must demonstrate that “there
is no genuine dispute as to any material fact and the movant is entitled to summary judgment as a

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matter of law.” FED. R. CIV. P. 56(a). All facts and inferences must be viewed in the light most
favorable to the non-moving party. Matsushita Elec. Indus. Co. Ltd., v. Zenith Radio Corp., 475
U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
While the movant bears the initial burden of proving the absence of any genuine issue of
material fact, the non-moving party cannot simply “rest on its pleadings but must present some
‘specific facts showing that there is a genuine issue for trial.” Moore v. Holbrook, 2 F.3d 697,
699 (6th Cir. 1993) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Factual
disputes are not material unless the resolution of those disputes “might affect the outcome of the
suit.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If a factual dispute is
“irrelevant or unnecessary” to the merits of the suit, it should not be counted. Id.
Because the plaintiff is proceeding pro se, his complaint must be “liberally construed”
and “must be held to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)). However, “basic pleading essentials” must still be met. Wells v. Brown, 891 F.2d 591,
594 (6th Cir. 1989).

B. Analysis of the Motion
Defendant Werthan seeks summary judgment against Plaintiff Thomas, pursuant to
Federal Rule of Civil Procedure 56(a). (Docket Entry No. 17.) Specifically, defendant claims
that (1) plaintiff’s complaint fails to allege that he was a qualified individual with a disability
under the Americans with Disabilities Act; (2) plaintiff’s state law retaliation claim is barred by
the statute of limitations; and (3) plaintiff’s workers’ compensation allegations fail to state a
legally cognizable claim. (Docket Entry No. 18.) For the following reasons, the undersigned
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agrees with defendant and recommends that defendant’s motion for summary judgment be
GRANTED.

a. Plaintiff Thomas fails to make out a prima facie case of disability discrimination
Defendant asserts that plaintiff has failed to make out a prima facie case for
discrimination under the ADA, as he (1) has not demonstrated that he is disabled, (2) is not
“otherwise qualified,” and (3) has received reasonable accommodation from Werthan. (Docket
Entry No. 18 pgs. 7-17.); See also Brenneman v. MedCentral Health Sys., 366 F.3d 412, 417
(6th Cir. 2004) (explaining the required elements of a plaintiff’s prima facie disability
discrimination claim).
The first required element in a disability discrimination claim is the disability itself. Id.
Congress enacted the Americans with Disabilities Act to eliminate discrimination “against
individuals with disabilities,” 42 U.S.C. § 12101(b)(1), but limited the definition of disability to
“a physical or mental impairment that substantially limits one or more major life activities,” or a
record of such impairment, or being regarded as having such an impairment. Id. § 12102(1)(A).
The statute further notes that major life activities include, but are not limited to, “caring for
oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting,
bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and
working.” Id. § 12102(2)(A) (emphasis supplied).
Plaintiff, in his complaint and response to defendant’s motion to dismiss, has not clearly
stated the grounds for his claimed disability. However, based on the facts provided, the most
obvious ground would be “lifting.” Defendant does not dispute the validity of plaintiff’s heavy

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lifting restriction (Docket Entry No. 18, pg. 8.), but argues instead that this restriction is not
“substantial” enough to constitute a disability under the ADA (Id.) The undersigned disagrees.
The Sixth Circuit addressed lifting restrictions in Scott v. G & J Pepsi-Cola Bottlers, Inc.,
391 Fed. App’x 475 (6th Cir. Aug. 13, 2010), concluding that such restrictions do not of
themselves constitute a disability. In that case, an employee claimed that his employer had
violated the ADA by firing him for a wrist injury and resulting twenty-pound lifting restriction.
Id. at 476. Upholding the lower court’s grant of summary judgment to the defendant, the court
of appeals emphasized that “evidence of [plaintiff’s] lifting restrictions, standing alone, is
insufficient to qualify as a ‘disability’ for the purposes of this claim.” Id. at 480. Other courts
addressing the issue have come to similar conclusions. See Snow v. Ridgeview Med. Ctr., 128
F.3d 1201, 1207 (8th Cir. 1997), abrogated on other grounds in Togerson v. City of Rochester,
643 F.3d 1031 (8th Cir. 2011) (“[A] general lifting restriction imposed by a physician, without
more, is insufficient to constitute a disability within the meaning of the ADA.”); Williams v.
Avnet, Inc., 910 F. Supp. 1124, 1132 (E.D.N.C. 1995) (plaintiff with a twenty-five pound lifting
restriction not disabled for purposes of ADA).
These cases, however, all addressed the ADA as it existed prior to Congress’ 2008
Amendments. In those amendments, Congress provided explicit rules of construction and
required courts to apply the term “disability” expansively, in favor of broad coverage. 42 U.S.C.
§ 12102(4)(A). The 2008 amendments also added “lifting” as a major life activity. Id. §
12102(1)(A); See also Zahurance v. Valley Packing Indus., Inc., 397 Fed. App’x 246, 248 (7th
Cir. Oct. 21, 2010) (“It is true the ADA has been amended to expand the definition of ‘major life
activity’ to include lifting.”). It is therefore unclear whether and to what extent Scott and similar

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lifting-restriction cases still reflect the governing law.
It is similarly unclear, in light of the 2008 amendments, whether plaintiff’s lifting
restriction is a “substantial” one. Defendant draws the undersigned’s attention to two cases
holding that a lifting restriction of fifteen to twenty pounds is not substantial enough to constitute
a disability. (Docket Entry No. 18 at 8-9.) (citing Halperin v. Abacus Tech. Corp., 128 F.3d 191
(4th Cir. 1997); Piascyk v. City of New Haven, 64 F. Supp. 2d 19 (D. Conn. 1999)). However,
both of these decisions came down before Congress amended the ADA. Halperin addressed the
question of whether a plaintiff was “substantially limited” in his ability to work, not his ability to
lift. 128 F.3d at 199. Piascyk, in contrast, did discuss lifting as a major life activity. 64 F.
Supp. 2d at 29-30. However, in rejecting plaintiff’s assertion that a fifteen pound lifting
restriction was “substantial,” the court based its finding on that fact that plaintiff’s lifting
restriction did not appear to be permanent. Id. As a result, these two cases are inapposite and
their persuasive authority minimal.
At the summary judgment stage, the moving party bears the burden of proving the
absence of any “genuine dispute as to any material fact.” FED R. CIV. P. 56(a). Plaintiff has
provided evidence that he suffers from a degenerative disk disease and osteoarthritis and that his
condition is progressive. (Docket Entry No. 27-1 at 82.) Defendant does not dispute this
diagnosis but suggests that Mr. Thomas’ own deposition testimony shows how modest and
insubstantial his lifting restriction is. (Docket Entry No. 18-1.) In particular, when defendant’s
counsel asked plaintiff whether he believed he could lift more than twenty pounds without
difficulty, he replied “I might can lift 20 pounds, but I don’t know how long, you know.” (Id. at
2). While Plaintiff’s evidence of disability may or may not be enough to prevail at trial, the

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undersigned finds that there remains a genuine dispute as to whether plaintiff was substantially
limited in the major life activity of lifting.
The second prong of a prima facie case of disability discrimination is whether the
plaintiff is “otherwise qualified” for his position. Brenneman, 366 F.3d at 417. An individual is
otherwise qualified if he “with or without reasonable accommodation, can perform the essential
functions” of his job. 42 U.S.C. § 12111(8). Here, defendant argues that lifting weights of over
twenty pounds on a regular basis is an essential function of a Slitter operator. (Docket Entry No.
18 at 11.) The Sixth Circuit has emphasized that the employer has the burden of proving that a
challenged job requirement is an essential function, Kleiber v. Honda of Am. Mfg., Inc., 485
F.3d 862, 869 (6th Cir. 2007), and that the test for whether a function is essential is whether its
removal would “fundamentally alter” the position. Kiphart v. Saturn Corp., 251 F.3d 573, 584
(6th Cir. 2001) (quoting 29 C.F.R. § 1630.2(n)).
Federal Regulations provide a non-exhaustive list of factors for courts to consider when
determining whether a challenged job function is essential. 29 C.F.R. § 1630.2(n)(3). These
factors include: (i) the employer’s judgment as to which functions are essential; (ii) written job
descriptions prepared before advertising or interviewing applicants; (iii) the amount of time
spent on the job performing the function; (iv) consequences of not requiring the incumbent to
perform the function; (v) the terms of a collective bargaining agreement; (vi) the work
experience of past incumbents in the job; and (vii) the current work experience of incumbents in
similar jobs. Id.; see also Hoskins v. Oakland County Sheriff’s Dept., 227 F.3d 719, 726 (6th
Cir. 2000) (explicitly adopting these factors).
Defendant draws the undersigned’s attention to two Sixth Circuit cases that, according to

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defendant, recommend deferring to an employer’s assessment of which functions are essential
for a given job. (Docket Entry No. 18 at 10.) (citing Smith v. Leggett Wire Co., 220 F.3d 752,
763 (6th Cir. 2000); Lee v. City of Columbus, Ohio, 636 F.3d 245 (6th Cir. 2011)). Leggett
Wire, however, is inapposite, as the case arose from a racial discrimination claim and addressed
an employer’s discretion in disciplining an employee for making threats to a manager. 220 F.3d
at 757, 763. Lee is similarly off target, as the employer discretion at issue was a city police
department’s policy of making employees provide doctor’s notes to their immediate supervisors,
rather than to the human resources department. Lee, 636 F.3d at 257-58. Neither of these cases
supports the proposition that courts should defer to an employer in deciding what functions are
essential to particular jobs. Employer judgment is merely one of seven factors for the court to
consider, and Congress has explicitly noted that the purpose of the ADA is to “ensure that the
Federal Government plays a central role in enforcing” its protections for disabled individuals.
42 U.S.C. § 12101(b)(3). Therefore, defendant’s recommendation that this court simply “defer
to the employer’s formulation” is not well-taken.
While the undersigned refuses to give undue weight to defendant Werthan’s assessment
in this matter, the available evidence nonetheless supports its contention that lifting twentypounds on a regular basis is an essential function of both the Slitter and Gravure operator
positions.
Pursuant to factor two, written job descriptions, defendant has produced a document
called “Essential Functions,” listing functions that all hourly associates must be able to perform.
(Docket Entry No. 19-20.) In particular, the document states that hourly associates “[m]ust be
able to lift twenty-five (25) pounds frequently; fifty (50) pounds occasionally.” (Id.) Plaintiff

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Thomas signed this document on April 14, 2008, indicating that he was able to perform the
above functions. (Id.) Defendant has also produced specific job descriptions for the positions of
“rotogravure press operator trainee” and “slitter/rewinder operator.” (Docket Entry Nos. 21-2 &
21-7.) Both documents specify lifting thirty pounds regularly and over one hundred pounds
occasionally as requirements for the respective positions. (Id.) Neither document is signed or
dated.
Regarding factor three, the amount of time spent performing the function, defendant has
produced the Declaration of Mike Fuson, Plaintiff’s immediate supervisor at Werthan. (Docket
Entry No. 21.) This declaration provides more detailed descriptions of the job responsibilities
for particular positions. Mr. Fuson asserts, for instance, that employees working on the Gravure
must lift a metal shaft and paper roll roughly every hour and twenty minutes – seven times per
eight-hour shift (Id. ¶¶ 25-26.) Together, the metal shaft and paper roll weigh roughly ninety
pounds, and must be team-lifted by two employees. (Id. ¶¶ 21-22.) The employees must carry
the shaft and roll ten to fifteen feet each time they lift it. (Id. ¶ 23.) Mr. Fuson also asserts that
the Slitter has a comparable metal shaft that must be moved once per hour and twenty minutes,
in addition to large parts, weighing thirty pounds or more, that a Slitter operator must maneuver.
(Id. ¶¶ 30-33.)
Regarding factor four, consequences of not requiring the incumbent to perform the
function, defendant contends that “[p]laintiff’s request to have another employee perform his
heavy lifting for him is akin to him having a full-time helper to aid him in the tasks he cannot
perform.” (Docket Entry No. 18 at 14.)
The record does not show any collective bargaining agreement governing Mr. Thomas’

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employment at Werthan, so factor five is inapplicable.
Regarding factors six and seven, the past work experience of incumbents in the same job
and present work experience of incumbents in similar jobs, defendant’s list of “essential
functions” (Docket Entry No. 19-20.) again appears relevant. Additionally, defendant has
produced the Declaration of Jamie Gillaspie, a Human Resources Generalist at Werthan. (Docket
Entry No. 22.) In her declaration, Ms. Gillaspie asserts that “[t]here are no employees at
Werthan who make other employees do their lifting for them; every employee at Werthan is
required to lift 25 pounds frequently as part of their essential job function.” (Id. ¶ 4.)
Plaintiff disputes Defendant’s assertion that regularly lifting twenty to thirty pounds was
essential to his work at Werthan, but provides no evidence to support his claim. In his response
to Defendant’s Motion to Dismiss, plaintiff reproduces the signed “essential functions” sheet,
adding his own hand-written objection that “[a]s assistant operator, you never have to do any
lifting over 10 pounds.” Compare Docket Entry No. 27-1 at 86 with Docket Entry No. 19-20.
Plaintiff also stated, in his deposition, that he was qualified to work as gravure assistant operator
because “if I’m assistant operator, then I got two other guys that can do the lifting for me.”
(Docket Entry No. 19-1 at 6.) Plaintiff does not appear to directly address his qualifications for
slitter operator, his position at the time his employment at Werthan ended.
From the record, Plaintiff fails to raise a genuine issue of fact regarding his status as a
“otherwise qualified” individual with a disability. While the moving party bears the burden of
proof on summary judgment, the non-moving party cannot “rest on its pleadings but must
present some ‘specific facts showing that there is a genuine issue for trial.’” Moore v. Holbrook,
2 F.3d 697, 699 (6th Cir. 1993) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).

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Here, defendant has provided ample evidence to support its claim that lifting twenty or more
pounds on a regular basis is an essential function of all of its hourly positions. In response,
plaintiff has put forth general denials but no specific facts. The undersigned therefore concludes
that lifting twenty or more pounds on a regular basis was an “essential” function of plaintiff’s job
at Werthan.
Furthermore, because plaintiff’s doctor had restricted him from “heavy lifting” (Docket
Entry No. 27-1 at 56-58.), defendant reasonably concluded that plaintiff was no longer qualified
to perform his job. While the term “heavy lifting” is subjective, one of plaintiff’s treating
physicians declared that she understood “heavy” to mean loads of twenty pounds or more.
(Docket Entry No.19-2 at 6-7.) Additionally, plaintiff’s own complaint charges defendant with
forcing him to continue working as a slitter operator “even though I had several injuries.”
(Docket Entry No. 1 ¶ 9.) The record clearly reflects that plaintiff Thomas was not able to
perform the “essential” functions of his job at the time he was terminated. He therefore fails to
make out a prima facie case of disability discrimination under the Americans with Disabilities
Act.
Accordingly, the undersigned recommends that defendant’s motion for summary
judgment be GRANTED with respect to plaintiff’s disability discrimination claim.

b. Plaintiff’s retaliation claim is barred by Tennessee’s statute of limitations
In addition to his disability discrimination claim, plaintiff alleges that defendant
retaliated against him for seeking to vindicate his rights with respect to workers’ compensation.
(Docket Entry No. 27.) In its motion for summary judgment, defendant asserts that plaintiff’s

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retaliation claim is barred as untimely under Tennessee’s statute of limitations. (Docket Entry
No. 18 at 17.) The undersigned agrees.
In Headrick v. Union Carbide Corp., a panel of the Tennessee Court of Appeals
determined that the statute of limitations for workers’ compensation retaliation claims is one
year. 825 S.W. 2d 424, 425-26 (Tenn. App. 1991). This limitations period starts to run when the
employer provides the employee with “unequivocal notice of the employer’s termination
decision.” Fahrner v. SW Mfg., Inc., 48 S.W. 3d 141, 144 (Tenn. 2001). Furthermore, research
has not revealed any Tennessee case law suggesting that filing an EEOC claim, as plaintiff
Thomas did, tolls the statute of limitations. See Jackson v. Falcon Transport Co., No. 3:08-0771,
2011 WL 1627319, at *3 (M.D. Tenn. Apr. 29, 2011) (“Tennessee law makes it clear that the
statute of limitations for bringing a direct court action is not tolled while administrative charges
are pending with the EEOC.”); Jackson v. Burnett v. Tyco Corp., 932 F.Supp. 1039, 1044 (W.D.
Tenn. 1996) (“Plaintiff has cited no Tennessee decisions, and the court has found none,
indicating that the Tennessee courts would allow tolling under these circumstances.”).
Here, plaintiff received his separation notice on May 18, 2009 (Docket Entry No. 25-6 at
17.) Plaintiff then waited until September 20, 2010 to file his initial complaint. (Docket Entry
No. 1.) Plaintiff did not respond to defendant’s statute of limitations argument and has not
advanced any arguments of his own as to why the statute should have been tolled.
Accordingly, the undersigned finds plaintiff’s retaliation claim barred by the Tennessee
statute of limitations and recommends that defendant’s motion for summary judgment be
GRANTED in relation to that claim.

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c. None of plaintiff’s remaining accusations state legally cognizable claims
In his complaint, plaintiff alleges that defendant “violated worker’s comp law” and also
“violated and gave false information to the Tennessee Dept of Workforce and Labor.” (Docket
Entry No. 1.) In his response to defendant’s motion for summary judgment, plaintiff appears to
raise several other claims, such as his claims that defendant underpaid him for a period of time,
(Docket Entry No. 27-1 at 31.), denied him vacation days to which he was entitled (Id.), and
tried to force him to quit by making him work on the slitter while his back was injured. (Id. at
82.) To the extent plaintiff intends these claims as distinct causes of action against defendant,
the undersigned recommends that they be DISMISSED for failure to state any legally cognizable
claims.
The Sixth Circuit has stated that the basic purpose of pleadings under the Federal Rules
of Civil Procedure is “to give adequate notice to the parties of each side’s claims and to allow
cases to be decided on the merits after an adequate development of the facts.” Lewis v. ACB
Business Services, Inc., 135 F.3d 389, 405 (6th Cir. 1998) (quoting Mayer v.Mylod, 998 F.2d
635, 637-38 (6th Cir. 1993)). Courts will hold pro se litigants, such as plaintiff Thomas, to a less
stringent pleading standard, Grinter v. Knight, 532 F.3d 567, 577 (6th Cir. 2008), but this
leniency “has limits.” Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996).
In defendant’s memorandum in support of its motion for summary judgment, defendant
asserts that plaintiff has failed to show how his workers’ compensation claim “arises to any
cognizable cause of action under either state or federal law.” (Docket Entry No. 18 at 22.) The
undersigned agrees.
Plaintiff’s filings with this court have never identified a common law or statutory right of

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action supporting his workers’ compensation or false information claims. In his complaint,
plaintiff simply alleges that he “was put on F.M.L.A. it should have been file [sic] as worker’
comp injury.” (Docket Entry No. 1 ¶ 9.) The State of Tennessee, however, has made clear that
the right to file for workers’ compensation within the state’s compensation framework “shall
exclude all other rights and remedies of the employee . . . on account of the injury or death.”
TENN. CODE ANN. § 50-6-108(a). On its face, this statutory language appears to preclude rather
than support plaintiff’s claim.
Of course, Title 50, Chapter 6 of the Tennessee Code – governing worker’s compensation
– contains more than one hundred sections and has given rise to voluminous case law. Particular
provisions and judicial decisions within this body of law may well create exceptions to the
general rule and provide plaintiff with a private right of action based on the facts he alleges. But
plaintiff points to no such exception, and it is not the job of this court to find him one.
Similarly, Title 50, Chapter 7, Part 7 of the Tennessee Code – governing the enforcement
of unemployment insurance claims – contains no discernable right of private action. Therefore,
even assuming that defendant lied to the Tennessee Department of Worforce and Labor, plaintiff
has not adequately stated any legal grounds for relief.
In Kafele v. Lerner, Sampson & Rothfuss, L.P.A., an unpublished opinion, the Sixth
Circuit confronted a similar set of circumstances – a pro se plaintiff with vague claims for relief.
161 Fed. App’x 487 (6th Cir. Dec. 22, 2005). The pro se plaintiffs in that case had filed a Fair
Debt Collection Act claim against their mortgage company and its lawyers and further asserted
claims of fraud, defamation, breach of fiduciary duties, and tortious interference. Id. at 489.
Upholding the trial court’s motion to dismiss, the court of appeals determined that plaintiffs had

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failed to plead many of their claims with sufficient specificity. Id. at 491. The court of appeals
explained that “[a]t the very least ‘trial and appellate courts should not have to guess at the
nature of the claim asserted.’” Id. (quoting Moore v. City of Harriman, 272 F.3d 769, 778 n.7
(6th Cir. 2001) (Suhreinrich, J., dissenting)).
Similarly, the undersigned will not simply guess at the nature of Plaintiff Thomas’
remaining claims. Instead, the undersigned recommends that defendant’s motion for summary
judgment be GRANTED with respect to any and all remaining claims, due to their lack of
specificity.
IV. Recommendation
In light of the foregoing, the Magistrate Judge recommends that defendant Werthan
Packaging’s motion for summary judgment be GRANTED, and that the claims against it be
DISMISSED.
Any party has fourteen (14) days from receipt of this Report and Recommendation in
which to file any written objections to it with the District Court. Any party opposing said
objections shall have fourteen (14) days from receipt of any objections filed in which to file any
responses to said objections. Failure to file specific objections within fourteen (14) days of
receipt of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. Thomas v. Arn, 474 U.S. 140 (1985); Cowherd v. Million, 380 F.3d 909, 912
(6th Cir. 2004)(en banc).
ENTERED this 17th day of October, 2011.
____________________________
s/
JOHN S. BRYANT
UNITED STATES MAGISTRATE JUDGE

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