Garner v. SDH Services East, LLC et al

Filing 26

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 10/21/14. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
CHARLES L. GARNER,

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Plaintiff,
v.
SDH SERVICES EAST, LLC., et al.,
Defendants,

Case No. 3:14-cv-01392
Judge Aleta A. Trauger

MEMORANDUM
After the plaintiff filed this action in Tennessee state court, the defendants removed the
case to this court, notwithstanding a lack of complete diversity. Defendant Mark Patton has filed
a Motion to Dismiss (Docket No. 5), to which the plaintiff has filed a Response in opposition
(Docket No. 9), and Patton filed a Reply (Docket No. 16). The plaintiff has filed a Motion to
Remand (Docket No. 11), to which the defendants have filed a Response in opposition (Docket
No. 17), the plaintiff filed a Reply (Docket No. 19), and the defendants filed a Sur-Reply
(Docket No. 22). For the reasons stated herein, the Motion to Remand will be denied and the
Motion to Dismiss will be granted.
BACKGROUND
I.

Complaint Allegations

Cumberland University is a private university located in Lebanon, Tennessee. The
plaintiff, Charles Garner, worked as a painter at the University from September 1, 1998 until his
termination on May 24, 2013. He worked directly for the University for the first nine years of
this time frame, at which point the University outsourced its painting services to a private

1

company, Sodexo. Garner worked for Sodexo until his termination.1 None of the Sodexo
entities is a Tennessee resident.
Garner suffers from severe and debilitating mental impairments, learning disabilities, and
illiteracy. Notwithstanding these disabilities, Garner performed the essential functions of his job
as a painter, became a valuable employee, and never had disciplinary actions taken against him
prior to the incidents at issue in this lawsuit. Garner alleges that he is substantially impaired in
the major life activities of learning and cognitive thinking, including reading and writing.
Mark Patton, a resident of Lebanon, Tennessee, was Sodexo’s General Manager at the
University during the relevant time frame. During the time period in which Patton supervised
Garner, Patton allegedly began to single out Garner for hostile and discriminatory treatment.
Patton began assigning Garner tasks that were outside of his job as a painter, with the knowledge
that Garner did not know how to perform these tasks and would not be able to learn how to
perform them. Patton yelled at Garner because of his mental impairment, his inability to learn,
and his illiteracy. In front of other people, Patton ridiculed Garner and informed people (in
Garner’s presence) that Garner could not read or write.

1

There are apparently several companies within the “Sodexo” corporate family. The defendants
contend that only one of these entities is a proper defendant, although they do not argue that the
issue impacts the pending motions. For purposes of linguistic simplicity only, the court will
refer to these defendants collectively as “Sodexo” herein. The operative point is that no Sodexo
entity is a “resident” of Tennessee.
On a related note, based on the limited information in the record at this stage, it appears that
Garner’s counsel has named a host of Sodexo entities as defendants only out of an abundance of
precaution. Perhaps the parties will be able to confer and identify the appropriate corporate
employer defendant (and dismiss the remaining defendants) without controversy. If the parties
cannot reach agreement on this issue before the forthcoming initial case management conference,
they should be prepared to explain why the issue cannot be resolved without further proceedings.
2

In approximately summer 2012, Garner reported Patton’s actions to University officials
and filed an internal disability discrimination complaint with Sodexo. Following these
complaints, Patton allegedly increased his hostility towards Garner. Patton wrote up Garner for
pretextual reasons and punished Garner using unreasonable measures. For example, Sodexo
typically provided a company vehicle to employees to travel across campus. On a certain day
following Garner’s complaints about Patton, Patton removed Garner’s vehicle from him based
on an unspecified earlier write-up, forcing Garner to walk outside all day during the middle of
the summer to perform his job.2 Patton also continued to ask Garner to perform non-painting
tasks that Patton knew Garner could not perform. For example, Patton assigned Garner to
perform electrical work, despite knowing that Garner would not be able to do it correctly. When
Garner protested that he was only qualified to paint, Patton told him: “just don’t blow anything
up.” Garner also continued to yell at Garner for various reasons.
On May 24, 2013, Patton fired Garner under allegedly false pretenses. At some point
several weeks prior to that date, Patton asked Garner to clean out an area around a fence at the
University, where trash and some type of scrap materials had been deposited. Specifically,
Patton asked Garner to make the trash and scrap “disappear.” Garner in fact cleaned out the area
and found three metal fittings among the deposited materials. Initially, Garner left the metal
fittings at the site. After several weeks, Garner picked up the metal pieces and placed them in his
truck, as he claims he had done in the past without his employer indicating that it was a problem.
In fact, Patton saw the fittings in Garner’s truck but did not initially say anything to Garner about

2

The Complaint is not precise as to what transpired, but the Complaint gives rise to a reasonable
inference that Patton used an earlier write-up of Garner as a pretext to remove Garner’s vehicle
at some point well after the fact.
3

it. After several days, Patton asked Garner about the materials. Thereafter, Sodexo discharged
Garner for violating a company policy that prohibits the “unauthorized removal of company or
client property or materials, including those that have been or [were] agreed to be discarded.”
Garner alleges that, in the past, Sodexo had never told Garner that his conduct presented an
issue, suggesting that Garner was singled out for special treatment with respect to the purported
grounds for his termination.
Garner allegedly had an emotional breakdown because of treatment at Sodexo. On each
workday before his termination, Garner was afraid of what would happen to him at the job that
day. Initially, Garner was unable to sleep, cried at night, and had severe anxiety. He eventually
had to see a doctor for his problems and now takes prescription medication to treat these issues.
He alleges that his symptoms became even worse when Sodexo terminated him on May 24,
2013.
II.

Procedural History

On May 23, 2014, the plaintiff filed a Complaint against the defendants in Tennessee
state court. The Complaint asserts claims against all defendants (including Patton, an individual)
for (1) discrimination, hostile work environment, and retaliation under the Tennessee Disability
Act (“TDA”), Tenn. Code Ann. § 8-50-103 (Counts 1, 2, and 3, respectively), (2) retaliatory
discharge in violation of the Tennessee Public Protection Act (“TPPA”), Tenn. Code Ann. § 501-304 (Count 4), (3) retaliatory discharge in violation of Tennessee common law (Count 5), and
(4) intention infliction of emotional distress under Tennessee common law (“IIED”) (Count 6).
The Complaint also asserts negligence-based claims against specific Sodexo entities (Counts 7
and 8), neither of which is at issue in the Motion to Remand.

4

Patton is a resident of Tennessee and is the only non-diverse defendant. On June 27,
2014, the defendants removed the case to this court, contending that Garner had fraudulently
joined Patton in an effort to defeat diversity. (Docket No. 1.) Garner has filed a Motion to
Remand, contending that there is a colorable argument that he can maintain at least one of his
claims against Patton. In response, the defendants contend that (1) Tennessee law forecloses any
individual claims against Patton as to Counts 1 to 5, and (2) Garner’s allegations are plainly
insufficient to state an actionable IIED claim.3 Asserting substantially the same arguments as the
defendants assert in opposition to Garner’s Motion to Remand, Patton has also filed a Motion to
Dismiss, which Garner opposes.
FRAUDULENT JOINDER STANDARD
Subject to exceptions not relevant here, federal diversity jurisdiction exists “only when
no plaintiff and no defendant are citizens of the same state.” Jerome-Duncan, Inc. v. Auto-ByTel., L.L.C., 176 F.3d 904 (6th Cir. 1999). Thus, in order for a defendant to remove a case to
federal court under 28 U.S.C. § 1441 based on diversity jurisdiction, there must be complete
diversity of citizenship both at the time the case is commenced and at the time that the notice of
removal is filed. Id. If a federal court determines that it lacks subject matter jurisdiction, it must
remand the case. See 28 U.S.C. § 1447(c).
Fraudulent joinder is a judicially created doctrine that provides a limited exception to the
requirement of complete diversity. Collins v. Bacon, 2005 WL 2429844, at *2 (E.D. Tenn. Sept.
30, 2005) (citing Triggs v. John Crump Toyota, Inc., 154 F.2d 1284, 1287 (11th Cir. 1998)).

3

In his Reply on the Motion to Remand, Garner argues that the court should ignore the
defendants’ opposition brief as untimely. As the defendants argue in their Sur-Reply, Garner’s
argument is demonstrably wrong: the defendants’ brief was timely under the applicable
procedural rules. Even if it were not, Garner suffered no prejudice.
5

Under the doctrine of fraudulent joinder, the citizenship of a defendant who has been
fraudulently joined should be disregarded when determining whether a federal court has diversity
jurisdiction. See Coyne v. Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999). Thus, where a
defendant removes a case despite the existence of a non-diverse party, the removing defendant
may avoid remand by demonstrating that the non-diverse party was fraudulently joined. Id.4 
Under the doctrine of fraudulent joinder, the relevant inquiry is whether the plaintiff had
“at least a colorable cause of action” under state law against the non-diverse defendant. Jerome
Duncan, 176 F.3d at 907. Accordingly, this court must look to Tennessee law to determine
whether Patton is a proper defendant or, in the alternative, whether he was fraudulently joined.
See id. The non-moving party’s actual motive for joining a non-diverse party is immaterial to
the court’s determination regarding fraudulent joinder. Id. The burden of proving fraudulent
joinder is on the removing party or parties – here, the defendants. Id.
“There can be no fraudulent joinder unless it be clear that there can be no recovery under
the law of the state on the cause alleged or on the facts in view of the law . . . . One or the other
at least would be required before it could be said that there was no real intention to get a joint
judgment, and that there was no colorable ground for so claiming.” Alexander v. Elec. Data Sys.
Corp., 13 F.3d 940, 949 (6th Cir. 1994) (quoting Bobby Jones Garden Apartments, Inc. v.
Suleski, 391 F.2d 172, 176 (5th Cir. 1968)); accord Walker v. Phillip Morris, U.S.A., 443 F.
App’x 946, 951 (6th Cir. 2011). “Therefore, the question is whether there is arguably a
reasonable basis for predicting that the state law might impose liability on the facts involved.”
Alexander, 13 F.3d at 949. Stated another way, the question is whether there is any reasonable

4

Under 28 U.S.C. § 1441(b), a defendant may remove a case to federal court based upon
diversity jurisdiction “if none of the parties in interest properly joined and served as defendants
is a citizen of the State in which such action is brought.” (emphasis added).
6

basis for predicting that the plaintiff could prevail. Id. In making its determination, any disputed
questions of fact and ambiguities in the controlling state law must be resolved in favor of the
nonremoving party. Id.; accord Coyne, 183 F.3d at 493. All doubts as to the propriety of
removal are resolved in favor of remand. Id. However, the Sixth Circuit has indicated that, in
the absence of directly applicable state court precedent, a district court may look to analogous
state laws in construing the validity of a claim under the law at issue. See generally Casias v.
Wal-Mart Stores, Inc., 695 F.3d 428 (6th Cir. 2012).
As at least some district courts within this circuit have observed, applying the fraudulent
joinder standard can be a difficult inquiry, because the Sixth Circuit’s “reasonable basis” and
“colorable cause of action” standard leaves room for debate as to how deferential a court should
be in evaluating the sufficiency of the plaintiff’s claims for fraudulent joinder purposes, short of
applying the Rule 12(b)(6) standard. See Little v. Purdue Pharma, L.P., 227 F. Supp. 838, 84546 (S.D. Ohio 2002). At a minimum, it places the court in the position of attempting to evaluate
whether there is a “colorable” cause of action under state law before exercising jurisdiction
(assuming that the non-diverse defendant was fraudulently joined) to reach the merits of the state
law claims.
To add another layer of complexity, it does not appear that the Sixth Circuit has explicitly
stated whether district courts assessing fraudulent joinder should consider the claims in light of
the pleading standard applicable in state court rather than the federal pleading standards (if they
differ). Here, the distinction is important, because Tennessee has rejected the Twombly/Iqbal
standard for analyzing motions to dismiss. Webb v. Nashville Area Habitat for Humanity, Inc.,
346 S.W.3d 422 (Tenn. 2011). Instead of the more stringent federal standard, Tennessee
employs a “liberal notice pleading standard,” the primary purpose of which is merely “to provide
7

notice of the issues presented to the opposing party and the court.” Id. at 426.5 Reasoning that a
federal district court’s role is to determine whether there is “arguably a reasonable basis for
predicting that the state law might impose liability on the facts involved,” many federal courts
have applied the state law standard in determining fraudulent joinder. See Smith v. Baker
Concrete Constr., Inc., 2014 WL 3715125, at *4 (E.D. Tenn. Mar. 28, 2014) (applying
Tennessee pleading standard); Worrix v. Medtronic, Inc., 2013 WL 6834719, at *4 (E.D. Ky.
Dec. 23, 2013) (applying Kentucky pleading standard); In re Regions Morgan Keegan Secs.,
Derivative, & ERISA Litig., 2013 WL 2404063, at *12-*13 (W.D. Tenn. May 31, 2012)
(concluding, after conducting an Erie analysis, that more liberal Texas pleading standard should
apply). By contrast, other federal courts, applying the rule that the federal rules “apply to a civil
action after it is removed from a state court,” see Fed. R. Civ. P. 81(c)(1), have found that the
federal pleading standards apply when assessing fraudulent joinder. See, e.g., Beavers v. DePuy
Ortho., Inc., 2012 WL 1945603, at *3 (N.D. Ohio May 30, 2012); Okenpu v. Allstate Tex.
Lloyd’s, 2012 WL 1038678, at *7 (S.D. Tex. Mar. 27, 2012).
Here, the defendants do not appear to dispute that the court should consider the claims
against Patton in light of the more liberal Tennessee standard. (See Docket No. 17 at p. 13 n.4.)
Moreover, as explained herein, Garner’s claims against Patton are insufficient even under

5

In Webb, the Tennessee Supreme Court was critical of the United States Supreme Court
decisions in Twombly and Iqbal. See Webb, 346 S.W.3d at 432. Among other criticisms, the
court declared that the “the Twombly/Iqbal standard is at odds with the well-established principle
in Tennessee that a Rule 12.02(6) motion [Tennessee’s Rule 12 equivalent] challenges only the
legal sufficiency of the complaint, not the strength of the plaintiff’s proof or evidence. It also
conflicts with the strong preference embodied in the Tennessee Rules of Civil Procedure that
cases stating a valid legal claim brought by Tennessee citizens be decided on their merits.” Id.
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Tennessee’s standard. Therefore, the court will apply the Tennessee procedural standard here,
although its decision to do so is limited to the specific context of this case.6
ANALYSIS
A. Retaliation Claims under the TPPA and Tennessee Common Law
Garner’s retaliation claims against Patton under the TPPA and Tennessee common law
are not colorable. The thrust of Garner’s Complaint is that Patton, in his role as a supervisor for
Sodexo, targeted Garner for discriminatory treatment and retaliatory treatment. Courts have
uniformly held that individual supervisors cannot be named as defendants under the TPPA or
under Tennessee common law. The TPPA authorizes lawsuits against “private employers,” not
individuals. See Baines v. Wilson Cnty., 86 S.W.3d 575, 583 (Tenn. Ct .App. 2002); Smith v.
Harriman Util. Bd., 26 S.W.3d 879, 885 (Tenn. Ct. App. 2000); see also Wooley v. Madison
Cnty., Tenn., 209 F. Supp. 2d 836, 845 (W.D. Tenn. 2002); Cate v. City of Rockwood, 2006 WL
1129382, at *6-*7 (E.D. Tenn. Apr. 27, 2006). Similarly, supervisors cannot be held liable for
common law retaliation. See Baines, 86 S.W.3d at 583; see also Brown v. Delek U.S. Holdings,
Inc., 2009 WL 4884442, at * (M.D. Tenn. Dec. 10, 2009); Rhea v. Dollar Tree Stores, Inc., 2005
WL 2600213, at *8 (W.D. Tenn. Oct. 12, 2005).

6

In In re Regions, the district court determined that claims against a non-diverse defendant
would not satisfy the federal Rule 12 standard but would survive Texas’s liberal pleading
standard. 2013 WL 2404063, at *11. The court conducted an analysis inspired by the Erie
doctrine (as articulated in Miller v. Davis, 507 F.2d 308 (6th Cir. 1974)) and concluded that the
balance of relevant factors favored the application of the Texas pleading standard, rather than the
federal pleading standard. 2013 WL 2404063, at *11-*13. Here, the parties have not engaged in
any in-depth analysis of this issue, in light of Erie or otherwise. Furthermore, Sodexo and Patton
have not directly disputed Garner’s contention that the court should construe his allegations in
light of Tennessee’s more liberal pleading standard. Thus, the court expresses no opinion as to
how it would rule if a party were to argue the issue in light of Erie.
9

B. TDA Claims
Garner’s claims against Patton under the TDA may only proceed if there is a “colorable”
argument that the TDA permits lawsuits against individual supervisors. Under the TDA, “there
shall be no discrimination in the hiring, firing and other terms and conditions of employment of
the state of Tennessee or any department, agency, institution, or political subdivision of the state,
or of any private employer, against any applicant for employment based solely upon any
physical, mental, or visual disability of the applicant . . . .” Tenn. Code Ann. § 8-50-103(b).
Notably, the list of actors who may be found to have engaged in a discriminatory practice does
not include individuals.
The TDA states that, upon receipt of a discrimination complaint by an aggrieved
individual, the Tennessee Human Rights Commission (“THRC”) must “follow the procedure and
exercise the powers and duties provided in §§ 4-21-302 – 4-21-311, and the person shall have all
rights provided therein.” The TDA’s cross reference is to certain provisions of the Tennessee
Human Rights Act (“THRA”), § 4-2-101 et seq. Under the unambiguous language of the statute,
the THRA incorporates by reference only §§ 4-21-302 through 4-21-312 of the THRA, not the
other provisions in the statute (of which there are many).
Section 4-21-301 of the THRA is the only part of the THRA that authorizes suits against
individuals in specific instances. The version of § 4-21-301 in effect through June 30, 2014
provided that it was a “discriminatory practice” for a “person” to engage in one of five
enumerated categories of conduct, only two of which are relevant here: (1) retaliating or
discriminating in any manner against a person because that person opposed a discriminatory
practice under the THRA or otherwise participated in an investigation of a potential THRA
violation; and (2) aiding, abetting, inciting, compelling, or commanding a person to engage in a
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violation of the THRA (collectively, “aiding or abetting” a THRA violation). See id. at § 4-21301(1) and (2) (version effective through June 30, 2014).7 Here, Garner argues that he may
pursue individual claims against Patton (for aiding and abetting discrimination and for
retaliation) based on this provision of the THRA. By the plain terms of the TDA, which does not
incorporate § 4-21-301, there is no legitimate basis for this argument.
In Satterfield v. Bluhm, 2004 WL 833291, at *3-*4 (Tenn. Ct. App. Apr. 16, 2014), the
Tennessee Court of Appeals squarely addressed this issue and held that the TDA, by its own
terms, did not incorporate § 301 and the associated “aiding and abetting” basis for individual
liability. Garner does not offer any competing plausible interpretation of the statute – nor could
there be one. Instead, he relies on a generic statement in Barnes v. Goodyear Tire & Rubber Co.,
48 S.W.3d 698, 705 (Tenn. 2000), in which Tennessee Supreme Court stated that the Tennessee
Handicap Act (later renamed the TDA) “embodies the definitions and remedies provided by the
[THRA].” Id. The case concerned the plaintiff’s claim against his employer (not an individual)
for disability discrimination but involved no question related to the incorporation (or lack
thereof) of Tenn. Code Ann. § 4-21-301 into the TDA. In discussing the relevant legal standards
for a traditional disability discrimination claim under the TDA, the Barnes court stated that the
TDA incorporated definitions and remedies under the THRA, which itself was intended to be

7

The Tennessee General Assembly recently amended the THRA, which amendments are
effective July 1, 2014 and are applicable to “all actions accruing on or after the effective date of
this act.” See 2014 Tenn. Laws Pub. Ch. 995, TN LEGIS 995, §§ 7 and 8. In most relevant part,
the new version of § 301 removes the “aiding or abetting” basis for individual liability under the
THRA. Here, Garner’s cause of action accrued well before the effective date of this amended
version of the statute; thus, only the previous version of the THRA, which includes an aiding or
abetting provision, applies to Garner’s claims in this case. However, for THRA causes of action
that accrue after July 1, 2014, future plaintiffs appear to be precluded from pursuing individuals
for aiding or abetting a THRA violation.
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construed in light of federal civil rights laws. Barnes, 48 S.W.3d at 705. The court was simply
attempting to explain why it could “look to federal law for guidance in enforcing our own antidiscrimination laws” in the context of evaluating the TDA claims at issue in the case. Id. The
court was not purporting to rule that the TDA had, without exception, incorporated the THRA
wholesale.
In Satterfield, which actually involved the issue of whether § 301 of the THRA had been
incorporated into the TDA, the court distinguished the Tennessee Supreme Court’s general
statement in Barnes, which cannot be read as directing courts to ignore the plain language of the
TDA on questions not at issue in Barnes. This court agrees with Satterfield’s reasoning.
Although the Satterfield opinion is unpublished, it is appropriate for federal courts to look
to on-point state appellate court cases as persuasive authority, regardless of whether those cases
are published. See Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 517 (6th Cir. 2011). More
importantly, because Satterfield is directly on point and its logic is unassailable, the court finds it
to be persuasive on the issue presented here. Indeed, another judge within this district has
reached the same conclusion concerning the scope of the TDA, based on both that court’s
independent reading of the TDA and the Tennessee Court of Appeals’ reasoning in Satterfield.
Powell v. Winn, 2010 WL 2036212, at *2-*3 (M.D. Tenn. May 20, 2010).
Also, as the defendants point out, Tennessee courts have construed analogous language in
the TPPA in the same manner as Satterfield and Powell. Similar to the TDA, the TPPA specifies
that it applies only to “[t]he state or municipality, county, department, board, commission,
agency, instrumentality, political subdivision or any other entity of the state” or a “private
employer.” Tenn. Code Ann. § 5-1-304(a)(2). Tennessee courts have uniformly held that this
language does not authorize lawsuits against individuals, who are not among the enumerated
12

entities subject to suit. See, e.g., Baines, 86 S.W.3d at 582; Smith, 26 S.W.3d at 885; see also
Wooley, 209 F. Supp. 2d at 845. As the Sixth Circuit did in Casias relative to Michigan law in
the context of assessing fraudulent joinder, it is appropriate for federal district courts to look to
analogous state laws in assessing the potential viability of a claim asserted under a particular
statute. Id. at 433-34.
Because the TDA does not permit lawsuits against individual supervisors, the court
concludes that there is no reasonable basis to believe that Garner could prevail on his TDA
claims against Patton in Tennessee state court.8
C. Intentional Infliction of Emotional Distress
The plaintiffs’ IIED claim presents a slightly different issue. In contrast to the plaintiffs’
other claims, which are not actionable under any circumstances, there is no statutory or caselaw
authority showing that an IIED claim cannot proceed against an individual supervisor. An IIED
claim requires the following elements: (1) the conduct complained of must be intentional or
reckless; (2) the conduct must be so outrageous that it is not tolerated by civilized society; and
(3) the conduct complained of must result in serious mental injury. Bain v. Wells, 936 S.W.2d
618 (1997). Tennessee has adopted a “high threshold standard” for tortious conduct that is
actionable as an IIED claim. Id.
The cases thus far decided have found liability only where the defendant’s
conduct has been extreme and outrageous. It has not been enough that the
defendant has acted with an intent which is tortious or even criminal, or that he
has intended to inflict emotional distress, or even that his conduct has been
characterized by “malice,” or a degree of aggravation which would entitle the

8

The defendants also argue that Garner has not sufficiently pleaded the elements of an aiding an
abetting theory, even under Tennessee’s liberal notice pleading standard. Because Garner cannot
assert a cause of action under the TDA against Patton in the first place, the court need not
address this alternative argument.
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plaintiff to punitive damages for another tort. Liability has been found only
where the conduct has been so outrageous in character, and so extreme in degree,
as to go beyond all bounds of decency, and to be regarded as atrocious and utterly
intolerable in a civilized community. Generally, the case is one in which the
recitation of the facts to an average member of the community would arouse his
resentment against the actor, and lead him to exclaim, “outrageous.”
Id. at 623 (quoting Medlin v. Allied Inv. Co., 398 S.W.2d 270, 274 (1966)); accord Arnett v.
Domino’s Pizza I, L.L.C., 124 S.W.3d 529, 540 (Tenn. Ct. App. 2003). The court must apply
this standard to determine whether a defendant’s conduct may reasonably be regarded as so
extreme and outrageous as to permit recovery. Bain, 936 S.W.2d at 623. Thus, a plaintiff
seeking damages for IIED must meet an exacting standard. Arnett, 124 S.W.3d at 540 (citing
Miller v. Willbanks, 8 S.W.3d 607, 614 (Tenn. 1999)). Cases in which IIED claims were viable
have involved truly shocking conduct. See, e.g., Johnson v. Woman’s Hosp., 527 S.W.2d 133,
140 (Tenn. Ct. App. 1975) (affirming jury verdict, where defendant had preserved the body of a
premature stillborn infant in a jar of formaldehyde and displayed the jar to the mother); Dunn v.
Motor Photo, Inc., 828 S.W.2d 747, 751 (Tenn. Ct. App. 1991) (defendants committed “gross,
inexcusable and outrageous breach of contract,” where they accepted plaintiff’s film for
developing, told the plaintiff that her film, which included naked images of her, could not be
developed, and defendants in fact developed the film and circulated the naked images to friends
who desired to see a “wild picture”).
In applying this standard, Tennessee courts have indicated that trial courts should be wary
of permitting IIED claims to move forward in employment discrimination cases, absent
exceptional allegations. See, e.g., Arnett, 124 S.W.2d at 540 (“[D]iscriminatory conduct does
not automatically give rise to the imposition of liability for intentional infliction of emotional
distress. If it did, virtually every action brought under these statutes would include an intentional
14

infliction of emotional distress claim.”); see also Godfredson v. Hess & Clark Inc., 173 F.3d 365,
376 (6th Cir. 1999) (“An employee’s termination, even if based on discrimination, does not rise
to the level of extreme and outrageous conduct without proof of something more. If such were
not true, then every discrimination would simultaneously become a cause of action for the
intentional infliction of emotional distress.”). Thus, even where courts permit claims of
harassment or retaliation to proceed under state and federal statutes, courts will not permit IIED
claims to proceed in most employment discrimination cases; this approach applies even where a
defendant or its employees engaged in highly reprehensible conduct or otherwise intended to
cause the plaintiff to suffer emotional distress.9
Here, even evaluating the IIED claim against Patton in light of Tennessee’s liberal
pleading standard, the court finds that there is no reasonable basis to believe that Patton could be
held individually liable for IIED under Tennessee law in light of the facts alleged. If Garner’s
allegations are true, Patton targeted a mentally disabled employee for discriminatory treatment,
belittled the employee in front of co-workers, and retaliated against the employee for
complaining about discrimination. This conduct, if proved, was reprehensible and tends to

9

See, e.g., Stacy v. MVT Servs., LLC, 2012 WL 2281495, at *8 (M.D. Tenn. June 18, 2012)
(dismissing IIED claim but permitting sexual harassment claims to proceed under Title VII,
TPPA, and THRA); Mays v. Int’l Mill Servs., Inc., 2006 WL 208874, at *3-*5 (W.D. Tenn. Jan.
26, 2006) (“Plaintiffs may ultimately prove that [the defendant] wrongfully discharged Randy
Mays and/or that he was subjected to discrimination. However, even when the factual
allegations in the plaintiffs’ complaint are taken as true, those allegations fail to meet the very
high standard required to establish a cause of action for outrageous conduct in Tennessee and
thus fail to state a claim upon which relief may be granted.”); West v. Genuine Parts Co., 2011
WL 4356361, at *2 (E.D. Tenn. Sept. 16, 2011) (dismissing IIED claim associated with allegedly
retaliatory termination and observing that, “[b]eing terminated from his job, even if such
termination is found to be wrongful or discriminatory, does not constitute outrageous conduct for
the purposes of the tort of [IIED]”); Johnson, 2012 WL 899325, at *8 (dismissing IIED claim
and observing that the plaintiff “has provided no authority, and the court has found none, in
which the Tennessee courts have recognized that an employee’s termination satisfies the
requisite elements for outrageous conduct”).
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support Garner’s claims against Sodexo, perhaps convincingly. However, the Complaint does
not allege conduct by Patton that even approaches the types of “outrageous” conduct required to
support an IIED claim. Thus, there is no colorable basis for the IIED claim against Patton.
D. Summary
The court finds that the defendants have demonstrated that Garner “fraudulently” joined
Patton to this lawsuit as a defendant. Accordingly, the court finds that the defendants properly
removed this case, notwithstanding the lack of complete diversity at the time of removal. The
court therefore has subject matter jurisdiction over this lawsuit premised on diversity of
citizenship of the remaining parties.
The court’s findings concerning the Motion to Remand essentially dispose of Garner’s
claims against Patton. Garner cannot assert claims for individual liability against Patton under
the TDA or TPPA, Tennessee does not permit claims for common law retaliatory discharge
against individual supervisors, and the Complaint fails to allege facts that support a viable IIED
claim against Patton under the federal Rule 12(b)(6) standard (which is more stringent than the
Tennessee equivalent). Accordingly, the court will dismiss the claims against Patton and the
case will proceed in this court against the remaining corporate defendants.
CONCLUSION
For the reasons set forth herein, Garner’s Motion to Remand will be denied, and Patton’s
Motion to Dismiss will be granted. The case will proceed against the remaining defendants, who
are diverse from Garner. The court will reset the initial case management conference by separate
order.

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An appropriate order will enter.
_____________________________
ALETA A. TRAUGER
United States District Judge

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