Davis v. Wilson County, Tennessee

Filing 69

REPORT AND RECOMMENDATION: Magistrate Judge Bryant RECOMMENDS that defendant's MOTION to Dismiss 29 be DENIED. Signed by Magistrate Judge John S. Bryant on 3/5/14. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
HAROLD B. DAVIS
v.
WILSON COUNTY, TENNESSEE

To:

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No. 3:13-0238
Judge Campbell/Bryant

The Honorable Todd Campbell, District Judge

REPORT AND RECOMMENDATION
Currently pending in this action is defendant Wilson County’s motion to
dismiss. (Docket Entry No. 29) The motion is fully briefed, and has been referred to the
undersigned for recommendation on disposition. (Docket Entry No. 68) For the reasons
given below, the Magistrate Judge recommends that defendant’s motion to dismiss be
DENIED.

Statement of the Case
In his First Amended Complaint (Docket Entry No. 23), plaintiff Harold B.
Davis generally pleads that, despite its published guidelines for avoiding the appearance of
impropriety when County offices employ relatives of current employees, “in practice Wilson
County government officials routinely violate these policies with no consequences and
otherwise generally practice nepotism and favoritism as a matter of course.” Id. at 2, ¶ 7.
Plaintiff then alleges numerous examples of “this county-wide practice and pattern of
nepotism[.]” Id. at 2-7. Plaintiff further alleges, by reference to particular examples in
recent years, that Wilson County has a history of failing to publish job openings, of

tolerating discriminatory language in the workplace, and of significantly underemploying
African-Americans in the County workforce. In particular, plaintiff details the experiences
of Mr. Karl Tartt in attempting to gain employment with the County and being thwarted by,

inter alia, the County’s failure to keep his application on file.1 Id. at 15-18. Plaintiff then
alleges his own experience of applying for employment in various County offices, only a
fraction of which responded to his application or kept his materials on file, despite the
County’s explicit document retention policies which mandate that such application materials
be retained. Id. at 18-25. The general allegations of plaintiff’s complaint conclude as follows:
Mr. Davis was not given a fair “opportunity” to compete equally with others
for current job openings or future job openings on his particular qualifications
and merit and without regard to the color of his skin if his resumes are not
kept on file and otherwise destroyed or lost. Nor is Mr. Davis afforded an
equal opportunity to compete for jobs when he does not know of any job
openings.
This county-wide practice and pattern of cronyism, nepotism, and favoritism
and word of mouth job referral system by an all-white supervisory pool is
rooted in racial animus, as described in detail above, with the intent of
keeping African Americans out of the Wilson County work force.
Additionally, without regard to intent, this subjective hiring system has a
disparate impact on African Americans by keeping them out of the pool of
individuals who could be considered for available jobs and denying them a fair
and equal opportunity to compete for those jobs based on merit and without
regard to their race or color of skin.
Id. at 25-26, ¶¶ 170-71 (emphasis in original).
The complaint concludes by asserting three counts of unlawful racial

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Mr. Tartt, represented by counsel who also represents plaintiff Davis here, has litigated his
dispute with Wilson County to final judgment in case number 3:09-1179. Mr. Tartt and his coplaintiff, Mr. Jennings, have noticed their appeal of this Court’s judgment to the Sixth Circuit, and the
matter there awaits payment of the appellate filing fee. (Case No. 3:09-1179, Docket Entry No. 126)

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discrimination in the form of disparate treatment (under 42 U.S.C. §§ 1981 and 1983; Title
VII of the Civil Rights Act of 1964 (“Title VII”); and the Tennessee Human Rights Act
(THRA), respectively) and two counts of unlawful racial discrimination in the form of
disparate impact (under Title VII and the THRA, respectively). Plaintiff seeks compensatory
damages, as well as “[i]njunctive relief compelling Defendant to maintain all employment
records in compliance with law and their own record retention policy, to not destroy job
applications, to advertise job openings in a manner that ensures broad messaging to the
entire regional labor pool, including minorities, and to not discriminate on the basis of race
and any other remedies this Court deems fit to correct historic discrimination[.]” Id. at 3031.
By its motion, defendant seeks dismissal of plaintiff’s claims under § 1983,
Title VII, and the THRA on statute of limitations grounds. Beyond the issue of timeliness,
Defendant further seeks dismissal of all claims on grounds of failure to state a claim upon
which relief can be granted.

Standard of Review
In reviewing a motion to dismiss for failure to state a claim upon which relief
can be granted under Fed. R. Civ. P. 12(b)(6), the court must view the complaint in the light
most favorable to the plaintiff, accepting all well-pleaded factual allegations as true.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although FED. R. CIV. P. 8(a)(2) requires merely
“a short and plain statement of the claim,” the plaintiff must allege enough facts to make the
claim plausible. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007). The Plaintiff
must plead well enough to ensure that his or her complaint is more than “a formulaic
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recitation of the elements of a cause of action.” Twombly, 550 U.S at 555. “The factual
allegations, assumed to be true, must do more than create speculation or suspicion of a legally
cognizable cause of action; they must show entitlement to relief.” League of United Latin
American Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007). Nevertheless, this Court
need not accept legal conclusions or unwarranted factual inferences as true, Iqbal, 556 U.S. at
677-78; Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987), and a complaint
containing mere legal conclusions alone will “not unlock the doors of discovery for a
plaintiff.” Iqbal, 556 U.S. at 678.

Conclusions of Law

1. Disparate Treatment
a. Statute of Limitations; Exhaustion of Administrative Remedies
Defendant argues that the disparate treatment counts of plaintiff’s complaint
allege a discriminatory employment action, in the form of a refusal to hire plaintiff, which
the courts have characterized as a “discrete act” of intentional discrimination. See, e.g.,
National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). Such discriminatory acts
must be the subject of an administrative charge of discrimination filed before the Equal
Employment Opportunity Commission (EEOC) within 300 days of the act’s occurrence in
the case of Title VII claims also presented to the state agency,2 or before the Tennessee

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“Tennessee is a ‘deferral state’ for purposes of the federal discrimination statutes. In a
deferral state, when a plaintiff institutes the relevant state proceedings . . . he must file his EEOC
charge within 300 days of the alleged discrimination. While the 300-day bar is not jurisdictional, it
does have the effect of a statute of limitations, and is not to be waived without good cause.” Tartt v.
City of Clarksville, 149 Fed. Appx. 456, 460 (6th Cir. Sept. 13, 2005) (citing, e.g., Weigel v. Baptist
Hosp. of E. Tenn., 302 F.3d 367, 375-76 (6th Cir. 2002)).

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Human Rights Commission within one year in the case of THRA claims. Plaintiff responds
that “he does not allege that the unfair employment action was the ‘failure to hire’ him. . . .
Rather, he complains that he was not given a ‘fair ‘opportunity’ to compete equally with
others for current job openings or future job openings on his particular qualifications and
merit and without regard to the color of his skin [when] his resumes [were] not kept on file
and otherwise destroyed or lost.’” (Docket Entry No. 60 at 7) (emphasis and modifications in
original) Plaintiff further argues generally that motions to dismiss based on alleged
untimeliness of the claims in suit are disfavored, such that dismissal on such grounds are only
appropriate where the running of the statute is apparent on the face of the complaint.
Citing, e.g., Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006), and
Hollander v. Brown, 457 F.3d 688, 691 (7th Cir. 2006). Accordingly, plaintiff contends that
Since the actual date of when his job applications were destroyed by at least 11
separate Wilson County departments is not apparent on the face of the
complaint and, in fact, is unknown, this Court cannot ascertain the exact date
of the alleged unfair labor practice related to the act of destroying his
applications. Therefore, it cannot begin to count the 300 days by which Mr.
Davis needed to file. Nor can the date he filed (or even whether he ever filed)
a charge of discrimination with the EEOC be established because this is not
apparent on the face of the complaint either. . . .
Simply put, Defendant cannot support a statute of limitations defense in a
motion to dismiss where the date of the alleged unlawful employment practice
and the date of filing an EEOC charge are not apparent on the face of the
complaint. . . .
[5 ]. . . Mr. Davis never pled that he filed an EEOC charge in his complaint or
amended complaint nor did he admit that he ever received or failed to receive
a right to sue letter. He clearly is not required to plead this . . . . Whether he
ever filed or whether he ever received a right to sue letter is an open question
of fact that should be resolved in a summary judgment motion, not a motion to
dismiss.
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(Docket Entry No. 60 at 7-8 & n.5)
Defendant’s frustration with plaintiff’s complaint is its revelation that, after
plaintiff inquired about County jobs in person on March 6, 2011, he sent 28 letters with
résumés to various County offices seeking employment, revealing in those letters that he was
an African-American, and as of May 19, 2011, plaintiff had heard back from only 5 of those
offices. In the period following May 19, 2011, plaintiff’s complaint reveals a period of more
than a year in which he neither heard anything from the other 23 County offices to which
he had applied, nor did he make any attempt to recontact said offices. This period of silence
and inaction from all involved extended until August 16, 2012, when plaintiff and his lawyer
finally undertook to obtain records establishing whether or not the various offices had kept
plaintiff’s application materials on file. According to defendant, somewhere in this nearly 15
months of inactivity, the statutory clock must have begun ticking, as plaintiff reasonably
should have known that he had been wronged prior to August 2012.
Plaintiff correctly asserts that Title VII’s timely exhaustion requirement is not
jurisdictional, but instead amounts to a condition precedent to bringing suit in district court.
See, e.g., Allen v. Highlands Hosp. Corp., 545 F.3d 387, 401-02 (6th Cir. 2008). He has crafted
his complaint in such a way as to create ambiguity concerning the timing and even the
existence of any attempt to exhaust his administrative remedies, and so has, in the
undersigned’s view, succeeded in thwarting defendant’s efforts to secure dismissal on a Rule
12(b)(6) motion for untimeliness.3 Moreover, plaintiff’s inability to pinpoint the timeframe

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The failure to exhaust Title VII administrative remedies is not jurisdictional and therefore
not assailable under Rule 12(b)(1), and consequently plaintiff is not required to prove, in response to
the instant Rule 12(b)(6) motion to dismiss, that he exhausted timely. See Dillon v. Frank, 952 F.2d
403, 1992 WL 5436, at *2 (6th Cir. Jan. 15, 1992) (citing Rogers v. Stratton Indus., 798 F.2d 913 (6th

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for any discrete acts of discrimination in the form of destruction of his application materials
is, at this early stage of the proceedings, sufficient reason to allow his claim of disparate
treatment pursuant to the THRA, which requires that suit be filed within one year after a
discrete act of discrimination ceases. Tenn. Code Ann. § 4-21-311(d); see Booker v. The
Boeing Co., 188 S.W.3d 639, 646-47 (Tenn. 2006).
However, as regards plaintiff’s suggestion that he may have attempted to
exhaust his remedies before the EEOC too late or not at all, his argument that he can
somehow rely upon Mr. Tartt’s 2008 EEOC filing pursuant to the “single-filing rule” is
entirely devoid of merit. The single-filing rule, recognized in 1994 by the Sixth Circuit as an
exception to the EEOC filing requirement, states that “in a multiple-plaintiff, non-class
action suit, if one plaintiff has filed a timely EEOC complaint as to that plaintiff’s individual
claim, then co-plaintiffs with individual claims arising out of similar discriminatory
treatment in the same time frame need not have satisfied the filing requirement.” Equal
Employment Opportunity Comm’n v. Wilson Metal Casket Co., 24 F.3d 836, 839-40 (6th Cir.
1994) (quoting Ezell v. Mobile Hous. Bd., 709 F.2d 1376, 1381 (11th Cir. 1983)). Plaintiff has

Cir. 1986)). However, the Sixth Circuit has taken a dim view of such artful pleading and steadfast
silence in the face of a Rule 12(b)(6) challenge to the viability of a complaint which appears on its
face to be untimely, ruling that the plaintiffs’ refusal to produce information which was in their
possession because “any inquiry into this issue is premature” on a Rule 12 motion justified the adverse
inference that such unproduced information is harmful to the plaintiffs, and affirming the dismissal of
the complaint on that basis. Bishop v. Lucent Technologies, Inc., 520 F.3d 516, 521-22 & n.1 (6th Cir.
2008). While Bishop is distinguishable on its facts from the instant case, the undersigned likewise
dimly views plaintiff’s glib assertion that defendant’s frustration with his silence on the exhaustion
issue is understandable, and plaintiff’s invitation of a motion for partial summary judgment if, in
discovery, it is revealed that he has not properly exhausted his Title VII claims. (Docket Entry No. 67
at 7) Indeed, regardless of any requirement that plaintiff affirmatively plead his exhaustion of
administrative remedies, his obstinate silence in the face of defendant’s motion could readily be
viewed as sanctionable conduct if it turns out that his Title VII claims are not properly exhausted.

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failed to cite any authority for the asserted proposition that, as a potential member of a
putative class of plaintiffs in Tartt, he then acquired and now retains, for purposes of his
separate filing of an entirely new lawsuit, the benefit of Tartt’s timely exhaustion of
remedies. The cases support the proposition that if, after the January 2012 denial of the
motion to certify the class in Tartt, plaintiff had been able to intervene in that case as party
plaintiff, then he could have litigated his case against defendant without timely exhausting
his remedies before the EEOC, pursuant to the single-filing rule. However, plaintiff did not
seek to join that litigation, and the undersigned can find no authority for the notion that any
such benefit which plaintiff might have acquired from Tartt’s EEOC filing would carry
forward to the filing of a new lawsuit more than a year after the denial of class action status
in Tartt. To the contrary, the undersigned is persuaded by the Fifth Circuit’s analysis of this
point, as follows:
It is also clear from Bettcher [v. The Brown Schools, Inc., 262 F.3d 492 (5th Cir.
2001)] that this Circuit intended for the single filing rule only to permit a noncharging party to join or intervene in a lawsuit filed by a charging party who
has properly exhausted the administrative requirements. Unlike the situation
in Bettcher, Price has actually filed a suit in which the Cleveland Plaintiffs
could have attempted to join. However, the Cleveland Plaintiffs decided not
to “opt-in” to the Price lawsuit. Instead, the Cleveland Plaintiffs filed their
own separate suit and attempted to piggyback on the Price EEOC charge. The
Cleveland Plaintiffs would now have us read Bettcher as allowing the
extension of the single filing rule to permit the Cleveland Plaintiffs to file an
independent suit on an otherwise unexhausted Title VII claim. Bettcher does
not contemplate such use of the single filing rule. A non-charging party
cannot bring her own independent lawsuit based upon another party’s charge.
To allow otherwise would “threaten to consume the statutory rule, which
clearly requires all [Title VII] plaintiffs to file a charge before filing a lawsuit.”
Price v. Choctaw Glove & Safety Co., Inc., 459 F.3d 595, 599 (5th Cir. 2006). The
undersigned finds this analysis compelling as applied to the instant case, where plaintiff did
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not participate in the Tartt case other than as a putative member of a class that was never
certified, and now would have the Court extend the single-filing exception in a manner that
would swallow the exhaustion rule. The undersigned would decline to do so.

b. Claim for Individual Disparate Treatment vs. “Systemic Disparate
Treatment” vs. “Pattern-or-Practice” of Disparate Treatment
Defendant argues that “Plaintiff has indicated in earlier pleadings that he is
not alleging a claim under an individual disparate treatment theory,” but that even if such a
claim is alleged, it is subject to dismissal for failure to plead sufficient facts in support of the
familiar prima facie elements of such a claim under McDonnell Douglas v. Green, 411 U.S.
792, 802 (1973).4 (Docket Entry No. 13 at 30 & n.3) Specifically, defendant argues that
plaintiff has only generally pled that he was qualified for employment with Wilson County
because he possesses a college degree and County jobs are largely entry-level jobs which
require only a high school diploma; that the alleged destruction of his job applications
despite the County’s published record retention policies does not amount to an adverse
employment action; and, that plaintiff has not alleged that he was treated differently from
similarly situated persons outside of the protected class.
Plaintiff responds to these arguments by denying ever giving any indication
that he is not alleging a claim under an individual disparate treatment theory; by confirming
that he is asserting such a claim based on his alleging “26 pages of facts showing a practice,
pattern, and de facto policy of destroying job applications of black applicants and of failing to

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Defendant recites these elements as including: (1) that plaintiff belongs to a racial minority;
(2) that he applied and was qualified for a job for which the employer was seeking applicants; (3) that,
despite his qualifications, he was rejected; and (4) that he was treated differently from similarly
situated persons who were not within the protected class. (Docket Entry No. 30 at 13)

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advertise job openings and instead using a word-of-mouth referral system that has a
disparate impact on African Americans[;]” and, by noting that he is not required to recite the
prima facie elements in his complaint. (Docket Entry No. 60 at 11) (citing Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 510 (2002)). Plaintiff then proceeds to cite various cases for the
proposition that such allegations and statistical evidence as plaintiff has included in his
amended complaint are sufficient to make a prima facie showing of discrimination for both
disparate treatment and disparate impact claims. He concludes his argument by stating as
follows:
The plaintiff need not show, as asserted by the defendant herein, that a job
was vacant and that the plaintiff was qualified for the job. This is simply an
erroneous statement of law in a practice and pattern case. . . . All Plaintiff
needs to show is that Wilson County has a practice and pattern of destroying
job applications of black applicants while retaining those of white applicants as
its standard operating procedure. . . .
(Docket Entry No. 60 at 16 & n.4) Meanwhile, defendant had argued in its motion that such
a model is employed in cases of “systemic,” not individual disparate treatment, and that
individuals may not bring such a claim except as part of a certified class action, citing
authority from the Fourth, Eighth, and Eleventh Circuits.5 (Docket Entry No. 30 at 18-19)
In fact, our own Sixth Circuit Court of Appeals has held that
[T]he pattern-or-practice method of proving discrimination is not available to
individual plaintiffs. We subscribe to the rationale that a pattern-or-practice
claim is focused on establishing a policy of discrimination; because it does not
address individual hiring decisions, it is inappropriate as a vehicle for proving
discrimination in an individual case. . . . However, pattern-or-practice

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“Systemic” disparate treatment appears to refer to disparate treatment in execution of a
system-wide pattern or practice of discrimination. Thus, a “systemic” discrimination claim and a
“pattern-or-practice” discrimination claim appear to be one and the same.

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evidence may be relevant to proving an otherwise-viable individual claim for
disparate treatment under the McDonnell Douglas framework.
Bacon v. Honda of America Mfg., Inc., 370 F.3d 565, 575 (6th Cir. 2004). See also Serrano v.
Cintas Corp., 699 F.3d 884 (6th Cir. 2012), wherein the court provides a thorough exposition
of the evidentiary frameworks through which intentional discrimination may be proved,
including the distinction between individual claims under McDonnell Douglas and patternor-practice claims under International Brotherhood of Teamsters v. United States, 431 U.S.
324 (1977), as well as reinforcement of the pleading requirements underscored in
Swierkiewicz and Twombly, supra.
In short, this case is not a pattern-or-practice case, as it is not a class action,
nor an action brought by the EEOC or the United States government at large. See also
Herendeen v. Michigan State Police, 39 F.Supp.2d 899, 905-06 (W.D. Mich. 1999) (cited in
Serrano, supra). Plaintiff will indeed have to ultimately prove specific instances in which he
was discriminated against, either by direct evidence or through the circumstantial approach
of McDonnell Douglas. Id. at 906 (quoting Lowery v. Circuit City Stores, Inc., 158 F.3d 742,
760 (4th Cir. 1998), for the proposition that “pattern or practice evidence may be useful in an
individual discrimination claim ‘to prove the fourth element of a prima facie case, that the
individual’s adverse employment action occurred under circumstances giving rise to an
inference of unlawful discrimination...’”). However, the undersigned must conclude that the
allegations of the amended complaint which are particularized to plaintiff’s applications for
employment, his qualifications, the retention policies of defendant, and the failure to retain
his applications despite said policies, combined with the allegations supporting the existence
of an overarching County policy of discriminating against African American applicants
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generally, are sufficient to carry the day for plaintiff at the pleading stage of this action. His
claims of disparate treatment under Title VII, the THRA, and 42 U.S.C. §§ 1981 and 1983 are
sufficiently stated to withstand defendant’s motion to dismiss.

2. Disparate Impact
Although defendant challenges plaintiff’s standing to pursue his disparate
impact claims, the allegations of the amended complaint, taken as true, as well as the
anecdotal evidence cited therein, easily raise the inference that plaintiff’s various job
applications were futile in light of the policies of nepotism and favoritism perpetuated by the
disproportionately white County workforce, which effectively deprived African American
applicants such as plaintiff of opportunities to compete for those jobs. No more is needed to
establish plaintiff’s standing here. See Tartt v. Wilson Co., Case No. 3:09-1179, Docket Entry
No. 78 at 6-7; Cleveland Branch, N.A.A.C.P. v. City of Parma, Ohio, 263 F.3d 513, 526-30 (6th
Cir. 2001).
Moreover, while defendant argues that, in order to state a disparate impact
claim, plaintiff must allege “which specific practice caused what specific disparate impact,”
pursuant to Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 657 (1989), the Wards
Cove decision does not apply this burden at the pleading stage:
As a general matter, a plaintiff must demonstrate that it is the application of a
specific or particular employment practice that has created the disparate
impact under attack. Such a showing is an integral part of the plaintiff’s prima
facie case in a disparate-impact suit under Title VII.
[In addition to the statistics-based allegations of disproportionate numbers of
minority employees due to, e.g., nepotism and subjective hiring practices,]
[plaintiffs] will also have to demonstrate that the disparity they complain of is
the result of one or more of the employment practices that they are attacking
here, specifically showing that each challenged practice has a significantly
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disparate impact on employment opportunities for whites and nonwhites. . . .
Some will complain that this specific causation requirement is unduly
burdensome on Title VII plaintiffs. But liberal civil discovery rules give
plaintiffs broad access to employers’ records in an effort to document their
claims. . . . Plaintiffs as a general matter will have the benefit of these tools to
meet their burden of showing a causal link between challenged employment
practices and racial imbalances in the work force. . . .
Id. at 657-58. Accordingly, the undersigned finds that plaintiff’s disparate impact claims are
also sufficiently pled to withstand defendant’s motion to dismiss.

Recommendation
In light of the foregoing, the Magistrate Judge recommends that defendant’s
motion to dismiss be DENIED.
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 5th day of March, 2014.

s/ John S. Bryant
JOHN S. BRYANT
UNITED STATES MAGISTRATE JUDGE
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