Navarro-Teran v. Embraer Aircraft Maintenance Services, Inc.
Filing
15
MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 4/29/2016. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
ERBIT NAVARRO-TERAN,
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Plaintiff,
v.
EMBRAER AIRCRAFT MAINTENANCE
SERVICES, INC.,
Defendant.
Civil No. 3:15-cv-1157
Judge Aleta A. Trauger
MEMORANDUM
The defendant, Embraer Aircraft Maintenance Services, Inc. (“Embraer”), has filed a
Motion to Dismiss (Docket No. 5), to which the plaintiff, Erbit Navarro-Teran, has filed a
Response in Opposition (Docket No. 9), and Embraer has filed a Reply (Docket No. 12). For the
following reasons, the motion will be granted in part and denied in part.
BACKGROUND1
Mr. Navarro-Teran, a Hispanic man, was employed by Embraer as a mechanic from 2010
until his termination on February 6, 2015. During his five years at Embraer, Mr. Navarro-Teran
alleges that he was subjected to discrimination, harassment, and bullying because of his race,
national origin, and perceived disability. Mr. Navarro-Teran also alleges that his termination in
2015 was based on his perceived disability and in retaliation for reports regarding his treatment
that he made to his supervisors and to the Equal Employment Opportunity Commission
(“EEOC”). In support of his claims, Mr. Navarro-Teran recites a litany of alleged harassing and
1
Unless otherwise noted, the facts recounted in this section are drawn from the
Complaint (Docket No. 1) and are assumed to be true for purposes of evaluating the Motion to
Dismiss.
1
discriminatory language and behavior on the part of his co-workers and supervisors, with the
bulk of the allegedly discriminatory and harassing behavior occurring in 2011 and 2012.
Mr. Navarro-Teran’s allegations begin in February of 2011, when he suffered a deep
laceration to his shin but was discouraged from seeking medical attention. According to
Mr. Navarro-Teran, he developed a staph infection as a result of the wound and was forced to
seek medical attention three days after the accident. Several months later, in May of 2011,
Mr. Navarro-Teran was working light duty – presumably because of the injury to his leg, though
the Complaint does not clarify – when the Hangar Supervisor, Steve Potter, asked him why he
was away from his regular work area. When Mr. Navarro-Teran advised Mr. Potter that he was
on light duty, Mr. Potter called Mr. Navarro-Teran a “slacker.” (Docket No. 1 ¶ 9.)
In June of 2011, Project Manager Dana Hultine requested that Mr. Navarro-Teran work
outside of, and in addition to, his regularly scheduled shift to translate for a “Hispanic airline.”
(Id. ¶ 10.) Mr. Navarro-Teran had to cancel a physical therapy appointment to accommodate the
request – again, presumably related to the injury to his leg – and he claims that he never received
compensation for the additional time that he worked translating for Embraer. Shortly after he
performed this extra work, Mr. Navarro-Teran’s shift was changed, which allegedly required him
to cancel his remaining physical therapy appointments.
In August of 2011, Mr. Navarro-Teran’s shift was changed two more times, and he
performed additional uncompensated work translating for a client of Embraer. At this time,
Mr. Navarro-Teran alleges that his co-workers began to make harassing and discriminatory
comments related to his race and national origin, which Mr. Navarro-Teran reported to his
supervisors to no avail. For example, Mr. Navarro-Teran alleges that an unidentified co-worker
called him a “motherfucker” and, on two separate occasions, brayed like a donkey at him. (Id.
2
¶ 12.) At one point, after braying like a donkey at him, this co-worker allegedly threw a
cardboard box at his head. According to Mr. Navarro-Teran, other non-Hispanic employees
were not subjected to these “obscenities [and] taunts.” (Id.) Mr. Navarro-Teran further alleges
that he reported the incident in which his co-worker threw a box at him to Embraer’s Human
Resources Director, Steve Moldrem, which resulted in Mr. Navarro-Teran’s co-workers referring
to him as a “baby.” (Id. ¶ 13.) Mr. Navarro-Teran also reported the repeated shift changes,
harassment, and discrimination he was experiencing to “Bob Campbell,”2 who allegedly took no
action to investigate or rectify the situation. (Id. ¶ 17.)
Later in August of 2011, Mr. Navarro-Teran alleges that his shift lead, Levi Schmidt,3
began to make “racial comments” and harass Mr. Navarro-Teran about the length of time it took
him to complete tasks. (Id. ¶ 18.) The Complaint then contains the following allegations with
no reference as to their timing:
Mr. Schmidt insulted Mr. Navarro-Teran’s intelligence, criticized work of his that
had already passed inspection, and used profanity over the public address system
when summoning Mr. Navarro-Teran into areas in which he was already present.
(Id. ¶ 21.)
Mr. Schmidt attempted to “reassign” Mr. Navarro-Teran by claiming that other
mechanics would not work with him because he was too slow – comments
Mr. Navarro-Teran’s coworkers denied having made – and assigned Mr. NavarroTeran to jobs requiring cleaning, to which non-Hispanic workers were not
assigned. (Id. ¶ 19.)
Mr. Navarro-Teran again complained to Mr. Moldrem, who told Mr. NavarroTeran that he would “follow [up on] the problem and get back” to him. (Id. ¶ 22.)
Mr. Navarro-Teran was “accosted” by several co-workers while on break and
studying for the U.S. citizenship test. According to Mr. Navarro-Teran, these co-
2
The Complaint does not identify the position that Mr. Campbell held at Embraer.
3
Mr. Schmidt is intermittently referred to as both “Schmidt” and “Schmitt” in the
Complaint. (See, e.g., Docket No. 1 ¶¶ 18, 26.) For consistency, and assuming that these names
do not refer to two different supervisors, the court will refer to him as Mr. Schmidt.
3
workers told him that his English was bad and that he should probably return to
school. When Mr. Navarro-Teran reported this incident to shift lead Bobby
Whitener, Mr. Whitener defended the co-workers and said that Mr. NavarroTeran should know English if he was taking the citizenship test. (Id. ¶ 23.)
Mr. Schmidt instructed Mr. Navarro-Teran, and only Mr. Navarro-Teran, to
minutely track his activities during the day. (Id. ¶ 24.)
Mr. Schmidt instructed Mr. Navarro-Teran to clean a section of an airplane that
contained human waste, advising him that measures had been taken to minimize
exposure to hazardous material. The required measures had not, however, been
taken, and Mr. Navarro-Teran and a co-worker were covered in human waste
while performing their duties. Mr. Schmidt laughed at Mr. Navarro-Teran and
assigned him to reclean the same section of the plane despite the fact that it had
already passed inspection. (Id. ¶ 25.)
Mr. Navarro-Teran went to “Human Resources” to complain about being
repeatedly assigned hazardous jobs because he is Hispanic. (Id. ¶ 27.)
As best the court can discern, the allegations in the Complaint proceed in chronological order
and, therefore, these incidents likely occurred between August of 2011 and December 31, 2012,
the next date to be identified in the Complaint. (See id. ¶¶ 17–29 (detailing the allegations
outlined above after allegations relating to August 2011 but before allegations relating to
December of 2012).)
The Complaint then jumps ahead in time to a series of incidents that occurred in 2013 and
2014. Mr. Navarro-Teran alleges that, on June 25, 2013, he was required to make a public
explanation to his co-workers regarding an accident in which he had damaged a plane he was
repairing. According to Mr. Navarro-Teran, other employees had not been required to speak
publicly regarding their mistakes in the past, but Mr. Navarro-Teran was told that these public
explanations would become standard procedure after accidents. Six months later, however, a
non-Hispanic employee set a plane on fire and was not required to speak publicly regarding his
mistake. Similarly, on January 10, 2014, Mr. Schmidt caused a collision between the wing of
one plane and the tail of another, but Mr. Schmidt was not required to speak to his co-workers
4
regarding the accident.
On January 14, 2014, shortly after Mr. Schmidt’s accident, Mr. Navarro-Teran alleges
that he was wrongly accused of stealing from another employee’s toolbox. When Mr. NavarroTeran attempted to defend himself, the other employee told him to “[s]hut the fuck up, Mexican
motherfucker.” (Docket No. 1 ¶ 32.) Mr. Navarro-Teran does not allege that he informed
anyone at Embraer of this incident, but he does allege that, in March of 2014, three months later,
he filed his first Charge of Discrimination with the EEOC (the “March 2014 Charge”). The
Complaint does not describe the contents of the March 2014 Charge, state the date that
Mr. Navarro-Teran received notice of his right to sue, or describe any comment made to him
regarding the March 2014 Charge by anyone at Embraer.
Mr. Navarro-Teran makes no further allegations regarding his treatment after his filing of
the March 2014 Charge until “late 2014,” when he suffered an ankle injury at work. (Id. ¶ 34.)
This injury required surgery, and Mr. Navarro-Teran had to take leave from work for several
months as a result of the injury. Mr. Navarro-Teran alleges that, on January 2, 2015, a
representative from Embraer’s human resources department contacted him to inquire about his
return to work. When Mr. Navarro-Teran advised her that he could return to light duty, he
claims that she “sarcastically quipped, ‘Well, that sure was a quick recovery from a month ago
‘til today!’” (Id. ¶ 35.) Mr. Navarro-Teran returned to work at Embraer less than two weeks
later, and he alleges that, on his return, a co-worker named Brent told him: “You didn’t have
surgery on your ankle, it was on your brain! They can’t fix stupid! You will be stupid forever!”
(Id. ¶ 36.) Finally, on January 15, 2015, Mr. Navarro-Teran alleges that an inspector named
Russell asked him whether anyone had welcomed him back, and when Mr. Navarro-Teran
replied that they had, Russell responded: “You know it’s a lie, because nobody wanted you to
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come back!” (Id. ¶ 37.) Mr. Navarro-Teran alleges that he continued to suffer “discrimination,
harassment, bullying, and sarcastic comments” until his termination on February 6, 2015.
PROCEDURAL HISTORY
On November 3, 2015, Mr. Navarro-Teran filed the Complaint against Embraer, alleging
that Embraer had violated (1) Title VII of the Civil Rights Act (“Title VII”), 42 U.S.C. § 2000e-2
et seq.; (2) the Tennessee Human Rights Act (“THRA”), Tenn. Code Ann. §4-21-101 et seq.;
(3) the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq.; (4) the Tennessee
Disability Act (“TDA”), Tenn. Code Ann. § 8-50-103; and (5) Tennessee common law
prohibiting retaliation. (Docket No. 1 ¶¶ 39–59.)
On December 3, 2015, Embraer filed a Motion to Dismiss the Complaint. (Docket
No. 5.) In the Memorandum supporting the motion, Embraer argues that (1) Mr. Navarro-Teran
failed to allege sufficient facts to demonstrate that he had exhausted his administrative remedies
and timely filed the Complaint with respect to his Title VII and ADA claims, (2) Mr. NavarroTeran’s state-law claims “prior to November 3, 2014” are barred by the applicable statute of
limitations, and (3) pursuant to Federal Rule of Civil Procedure 12(b)(6), the Complaint fails to
make sufficient factual allegations to state a claim upon which relief can be granted. (Docket
No. 6.) On December 17, 2015, Mr. Navarro-Teran filed a Response in opposition to the motion,
accompanied by a second Charge of Discrimination that Mr. Navarro-Teran had filed with the
EEOC in May of 2015 (the “May 2015 Charge”) and the Notice of Right to Sue that he received
from the EEOC related to the May 2015 Charge. (Docket Nos. 9, 9-3 (May 2015 Charge), 9-4
(August 2015 Right to Sue).)4 In the Response, Mr. Navarro-Teran argues that (1) the May 2015
Charge demonstrates that he did, in fact, properly exhaust the administrative remedies related to
4
Mr. Navarro-Teran did not, however, attach the March 2014 Charge or the Notice of
Right to Sue that he received from the EEOC related to that charge to his Response.
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his federal claims; (2) under the continuing violations theory, his state-law claims are not timebarred; and (3) the Complaint adequately alleges facts that demonstrate that he is entitled to
relief. (Docket No. 9.)
Embraer sought, and obtained, leave to file a Reply in Support of its Motion to Dismiss,
and the Reply was filed with the court on January 8, 2016. (Docket Nos. 11, 12.) In light of the
May 2015 Charge filed with Mr. Navarro-Teran’s Response, Embraer withdrew its argument
regarding Mr. Navarro-Teran’s failure to exhaust his administrative remedies. (Docket No. 12,
p. 1.) Embraer now argues, however, that any of Mr. Navarro-Teran’s federal claims accruing
prior to July 25, 2014 are time-barred, because they accrued more than 300 days prior to the date
that Mr. Navarro-Teran filed the May 2015 Charge. (Id. at p. 2.) In the Reply, Embraer also
continues to argue that Mr. Navarro-Teran’s state law claims that accrued prior to November 3,
2014 are time-barred and that the Complaint fails to plead factual content sufficient to survive a
motion to dismiss. (Id. at pp. 2–5.)
LEGAL STANDARD
In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court
will “construe the complaint in the light most favorable to the plaintiff, accept its allegations as
true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh,
487 F.3d 471, 476 (6th Cir. 2007); accord Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir.
2002). The Federal Rules of Civil Procedure require only that a plaintiff provide “a short and
plain statement of the claim that will give the defendant fair notice of what the plaintiff’s claim is
and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957) (internal
quotation marks omitted). The court must determine only whether “the claimant is entitled to
offer evidence to support the claims,” not whether the plaintiff can ultimately prove the facts
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alleged. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (quoting Scheuer v. Rhodes,
416 U.S. 232, 236 (1974)).
Detailed factual allegations are not required, but a complaint’s allegations “must be
enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). To establish the “facial plausibility” required to “unlock the doors of
discovery,” the plaintiff cannot rely on labels, “legal conclusions” or “[t]hreadbare recitals of the
elements of a cause of action,” but, instead, the plaintiff must plead “factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009); accord Twombly, 550 U.S. at 555.
“[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Iqbal,
556 U.S. at 679 (citing Twombly, 550 U.S. at 556).
ANALYSIS
As a preliminary matter, the court notes that the causes of action outlined in the
Complaint are not a model of clarity, and Mr. Navarro-Teran describes theories of liability in his
Response that are not fully articulated in the Complaint and fails to argue claims in his briefing
that are plainly stated in the Complaint. In light of this confusion, and based on its review of the
pleading and the briefings, the court concludes that the Complaint is appropriately construed as
asserting the following claims: (1) that Mr. Navarro-Teran was unlawfully terminated on the
basis of his perceived disability in violation of the ADA and TDA, and in retaliation for his filing
of the March 2014 Charge with the EEOC and complaints regarding his treatment to others at
Embraer;5 and (2) that Embraer subjected Mr. Navarro-Teran to a hostile work environment on
5
In his Response, Mr. Navarro-Teran also appears to argue that Embraer terminated him
on the basis of his race and national origin in violation of Title VII and the THRA. (Docket No.
9, p. 11 (noting in his argument regarding his Title VII and THRA claims that “Plaintiff averred
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the basis of his race, national origin, and perceived disability, in violation of Title VII, the
THRA, the ADA, and the TDA.6
Mr. Navarro-Teran also alleges that Embraer “did segregate or classify” him on the basis
of his race and national origin and thereby “deprive[d] him of employment opportunities or
otherwise adversely affect[ed] his status as an employee.” (Docket No. 1 ¶¶ 41, 46). This
language is identical to that used in § 2000e-2(a)(2) of Title VII, which provides the cause of
action for “disparate impact” claims. EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct.
2028, 2032 (2015) (noting that § 2000e-2(a)(2) of Title VII provides a “disparate impact” claim
and is the only cause of action under Title VII other than a claim of “intentional discrimination”).
It does not appear, however, that Mr. Navarro-Teran meant to plead a “disparate impact” claim
under Title VII, and the inclusion of this language was likely the result of an oversight or
mistake. Disparate-impact claims under Title VII apply to employment practices that “are not
intended to discriminate but in fact have a disproportionately adverse effect on minorities,” such
that he was terminated on February 6, 2015[,] which satisfies the requirement that he be
subjected to an adverse employment action”).) The Complaint never pleads, however, that the
claims under Title VII arise from Mr. Navarro-Teran’s termination, nor do the factual allegations
relate his termination in any way to his race or national origin. (See Docket No. 1 ¶¶ 39–48
(stating Mr. Navarro-Teran’s Title VII and THRA causes of action but never mentioning his
termination).) The court cannot, therefore, construe Mr. Navarro-Teran’s termination as a basis
for his Title VII and THRA claims of racial and national origin discrimination.
6
Mr. Navarro-Teran never explicitly alleges hostile work environment as a basis for his
claims in the Complaint, and he only cursorily argues the point in his Response. (See Docket
No. 9, pp. 9, 12 (arguing generally that Mr. Navarro-Teran has “more than plead [sic] a work
environment hostile to him,” with no further explanation).) The Complaint does, however, make
repeated allegations regarding “the harassing and discriminatory treatment” to which
Mr. Navarro-Teran was subjected and Embraer’s failure to remedy that harassment and
discrimination. (Docket No. 1 ¶¶ 42, 47, 52.) The court, therefore, concludes that the Complaint
gives Embraer sufficient notice of the nature of Mr. Navarro-Teran’s claims regarding his
treatment while working at Embaer to justify construing them as claims for hostile work
environment under Title VII, the THRA, the ADA, and the TDA.
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as a promotion examination or certain employment prerequisites. Ricci v. DeStefano, 557 U.S.
557, 577 (2009). Mr. Navarro-Teran has not alleged any employment practice of Embraer’s that
has a disproportionately adverse effect on minorities but, rather, the kind of personally
discriminatory treatment that is typically reviewed under a “intentional discrimination” theory,
such as hostile work environment or discriminatory termination. The court, therefore, concludes
that Mr. Navarro-Teran did not intend to assert a disparate-impact claim and will not construe the
Complaint as asserting such a claim.
The court turns to determining whether the Complaint makes sufficient factual
allegations to allow the court to reasonably infer that Embraer is liable for any of Mr. NavarroTeran’s claims. While Mr. Navarro-Teran is not – as both parties correctly note – required to
prove a prima facie case for his claims of discrimination at this stage, Keys v. Humana, Inc.,
684 F.3d 605, 609 (6th Cir. 2012), he is still required to plead plausible facts supporting the
material elements of his claims. As noted above, the Supreme Court established a “plausibility”
standard in Twombly and Iqbal for assessing whether a complaint’s factual allegations support its
legal conclusions, and that standard applies to discrimination claims. Id. at 610. Thus, although
the Complaint need not present “detailed factual allegations,” it must allege sufficient “factual
content” from which a court, informed by its “judicial experience and common sense,” could
“draw the reasonable inference,” Iqbal, 556 U.S. at 678, 679, that Embraer either discriminated
against Mr. Navarro-Teran with respect to an adverse employment event or a hostile work
environment. Keys, 684 F.3d at 610. According to the Supreme Court, “plausibility” occupies
that wide space between “possibility” and “probability.” Iqbal, 556 U.S. at 678. If the court can
reasonably draw the necessary inference from the factual material stated in the complaint, then
Mr. Navarro-Teran has satisfied the plausibility standard.
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I.
Claims Related to Mr. Navarro-Teran’s Termination
Mr. Navarro-Teran was terminated on February 6, 2015, and, while there are few
allegations in the Complaint concerning the circumstances surrounding his termination,
Mr. Navarro-Teran maintains that he was terminated on the basis of his perceived disability in
violation of the ADA and TDA, and in retaliation for his filing of the March 2014 Charge with
the EEOC and complaints made to others at Embraer regarding his treatment.
A.
Discrimination Under the ADA and TDA
The ADA provides that “[n]o covered entity shall discriminate against a qualified
individual on the basis of disability in regard to . . . discharge . . . and other terms, conditions,
and privileges of employment.” 42 U.S.C. § 12112(a); see also Tenn. Code Ann. § 8-50-103
(prohibiting “discrimination in the hiring, firing and other terms and conditions of employment”
by “any private employer” on the basis of disability). While a close question, the court
concludes that Mr. Navarro-Teran’s claim of discriminatory termination under the ADA and
TDA is supported by more than the “‘naked assertion[s]’ devoid of ‘further factual
enhancement’” that Twombly and Iqbal prohibit. See Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 557). Rather, Mr. Navarro-Teran has pleaded facts from which the court can draw
reasonable inferences supporting the material facts of his discrimination claims under the ADA
and TDA; namely, that (1) he was regarded by Embraer as having a disability, (2) he was
capable of performing his job when he returned to work, and (3) he was terminated because of
his perceived disability. See, e.g., Mahon v. Crowell, 295 F.3d 585, 589 (6th Cir. 2002) (ADA);
see also Sasser v. Quebecor Printing (USA) Corp., 159 S.W.3d 579, 584 (Tenn. Ct. App. 2004)
(“A claim brought under the [TDA] is analyzed under the same principles as those utilized for
the [ADA].”).
Mr. Navarro-Teran has pleaded that, in late 2014, he suffered an injury to his ankle that
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required him to have surgery and to miss several months of work. After being on leave for
several months, during which time he participated in physical therapy, Mr. Navarro-Teran spoke
to a representative from Embraer’s human resources department and requested that he be
allowed to return to work on “light duty.” Mr. Navarro-Teran was allowed to return to work at
Embraer shortly thereafter and, approximately a month after his return, he was terminated.
Though these allegations are admittedly thin, they do allow the court to reasonably draw the
inference that Mr. Navarro-Teran was regarded as being disabled, based on the fact that Embraer
knew that he was on leave for a medical condition for several months and that he had requested
“light duty” when he returned. The court also finds it reasonable to infer that Mr. Navarro-Teran
was capable of performing his job duties based on the very fact that, after his conversation
regarding his status with the human resources representative, Mr. Navarro-Teran was allowed to
return to work. Furthermore, the short period of time – only one month – between Mr. NavarroTeran’s return from leave and his termination provides a reasonable basis for the inference that
Mr. Navarro-Teran’s perceived disability was the reason for his termination. Cf. Mickey v.
Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008) (allowing temporal proximity
between a protected activity and an adverse employment action to constitute sufficient evidence
of a causal connection for a prima facie case of retaliation). Accordingly, the court finds that the
Complaint states plausible content that supports the necessary inferences to find viable claims
and to conclude that the Complaint puts Embraer on sufficient factual and legal notice of Mr.
Navarro-Teran’s disability discrimination claim.
B.
Retaliatory Discharge Under Tennessee Common Law
Tennessee common law prohibits employers from retaliating against employees by
terminating them “for taking an action that public policy encourages or for refusing to do
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something that is inconsistent with public policy.” Williams v. City of Burns, 465 S.W.3d 96,
109 (Tenn. 2015). A common law retaliatory discharge claim has four elements: (1) the
employment was “at will;” (2) the employee was discharged; (3) the reason for the discharge was
that the employee attempted to exercise a statutory or constitutional right, or for any other reason
that violates a clear public policy; and (4) the employee’s exercise of protected rights was a
substantial factor in the employer’s decision to discharge the employee. Gossett v. Tractor
Supply Co., Inc., 320 S.W.3d 777, 781 (Tenn. 2010).
Mr. Navarro-Teran alleges that Embraer terminated him in retaliation for his filing of the
March 2014 Charge with the EEOC and his complaints to others at Embraer regarding his
treatment.7 Mr. Navarro-Teran has not, however, pleaded any factual content supporting an
inference that the March 2014 Charge or Mr. Navarro-Teran’s reports of discriminatory and
harassing behavior were a factor in Embraer’s decision to terminate him. It is simply not
plausible that Mr. Navarro-Teran’s complaints to the EEOC or to his supervisors at Embraer,
which all occurred in or before March of 2014, caused Mr. Navarro-Teran’s termination in
February of 2015, over one year later. See House v. Rexam Beverage Can Co., 630 F. App’x
461, 462–63 (6th Cir. 2015) (noting that the plausibility standard from Twombly and Iqbal
7
Embraer argues that the Complaint does not identify the “statutory or constitutional
right,” the exercise of which was allegedly a substantial factor in the decision to terminate Mr.
Navarro-Teran. (Docket No. 6, p. 11; Docket No. 12, p. 5.) On the contrary, the allegations in
the Complaint clearly state that Mr. Navarro-Teran was terminated in retaliation for his filing of
the March 2014 Charge (Docket No. 1 ¶¶ 56–57) and, even though the connection is not
explicitly drawn in the Complaint, the allegations do outline multiple instances in which Mr.
Navarro-Teran complained of his treatment to his supervisors and to the human resources
department at Embraer (id. ¶¶ 13, 15, 17, 22, 23, 27). While these allegations do not perfectly
convey the basis for Mr. Navarro-Teran’s retaliation claim, the Complaint does provide
sufficient notice of the factual basis for the claim, and the court construes the retaliation claim to
include retaliation for both the March 2014 Charge and Mr. Navarro-Teran’s complaints to
others at Embraer.
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“applies to the element of causation in discrimination claims”). Absent additional factual
allegations regarding the circumstances of Mr. Navarro-Teran’s termination and his reasons for
believing that he was terminated in retaliation for the complaints that he made, the court cannot
reasonably infer that his complaints were a factor in that termination.
Mr. Navarro-Teran argues that he was not required to plead additional facts supporting
his claim that his termination was the result of retaliatory animus, because – according to
Mr. Navarro-Teran – “temporal proximity may be sufficient to establish causation.” (Docket No.
9, p. 10 (citing Hamilton v. Gen. Elec. Co., 556 F.3d 428, 435 (6th Cir. 2009).) While it is true
that the Sixth Circuit has allowed mere temporal proximity to establish causation for retaliation
claims, it has only allowed that in cases in which the time elapsed between the protected activity
and the retaliation was on the order of days, or at most, a few months. See Hamilton, 556 F.3d at
435 (finding causation based on the combination of the plaintiff being subjected to increased
scrutiny at work and “the temporal proximity of [the] termination occurring less than three
months after [the] EEOC filing”); Mickey, 516 F.3d at 525 (considering a case in which an
employee was terminated on the same day that his employer learned of his filing of a charge with
the EEOC). The court is aware of no case in which a court has inferred causation solely from
allegations that the protected activity and retaliation took place a full year apart, and
Mr. Navarro-Teran has cited no such authority. Accordingly, the court finds that the Complaint
does not state a claim with regards to Mr. Navarro-Teran’s retaliatory discharge claim under
Tennessee common law, and that claim will be dismissed.
II.
Hostile Work Environment Claims
Mr. Navarro-Teran has alleged that Embraer allowed him to be harassed and
discriminated against on the basis of race and national origin in violation of Title VII and the
14
THRA,8 and on the basis of perceived disability in violation of the ADA and TDA. Embraer
moves to dismiss these claims on the basis that they are not timely and because they fail to allege
sufficient factual content to state a claim for relief.
A.
Sufficiency of Allegations
For a hostile work environment claim, a plaintiff must plead conduct that was sufficiently
severe or pervasive to create an environment that a reasonable person would find hostile or
abusive, and that the plaintiff regarded it as such. Harris v. Forklift Sys, Inc., 510 U.S. 17, 21
(1993). The “mere utterance of an . . . epithet which engenders offensive feelings in an
employee” does not sufficiently affect the conditions of employment to implicate antidiscrimination laws such as Title VII and the ADA. Id.; Coulson v. Goodyear Tire & Rubber
Co., 31 F. App’x 851, 858 (6th Cir. 2002) (applying the Harris standard to a hostile work
environment claim under the ADA and noting that “name-calling, alone” does not demonstrate
an abusive environment). Rather, anti-discrimination laws come into play when there is a
“discriminatorily abusive work environment” that can detract from employees’ job performance
or keep them from advancing in their careers. Harris, 510 U.S. at 21 (citations omitted). The
Supreme Court has held that “simple teasing, offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in the terms and conditions of
employment.” See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1988) (internal citation
omitted).
Mr. Navarro-Teran has pleaded sufficient factual content to allow the court to draw the
necessary inferences regarding his claim of a hostile work environment on the basis of race and
8
Just as ADA and TDA claims follow similar analyses, “[a]nalysis of the THRA claim
tracks the analysis of the Title VII claim.” Culver v. CCL Label, Inc., 455 F. App’x 625, 626 n.1
(6th Cir. 2012).
15
national origin. The Complaint details not only a series of racially charged insults and taunts
over the years that Mr. Navarro-Teran was employed at Embraer, but also an incident in which
another employee physically assaulted Mr. Navarro-Teran by throwing a box at his head after
braying like a donkey at him. The Complaint also alleges that Mr. Navarro-Teran was given less
desirable tasks because he was Hispanic, stating that he was assigned menial cleaning tasks that
other, non-Hispanic employees were not assigned and that his shift lead, Mr. Schmidt, assigned
him hazardous jobs, including tasks involving unnecessary exposure to human waste. Finally,
Mr. Navarro-Teran has alleged that he reported this discriminatory and harassing behavior to
members of the human resources department and to others within Embraer, but no one took any
action to correct the behavior. These allegations demonstrate conduct that surpasses mere namecalling. Rather, the allegations in the Complaint – insults, physical attacks, and demeaning work
assignments – allow the court to draw the inference that the abusive environment was severe and
pervasive, such that a reasonable person would find it to be hostile. Accordingly, the court will
not grant Embraer’s motion to dismiss with regard to Mr. Navarro-Teran’s claim of hostile work
environment on the basis of race and national origin.9
Mr. Navarro-Teran has not, however, pleaded sufficient factual content to support his
claim of a hostile work environment on the basis of a perceived disability. As support for this
claim, Mr. Navarro-Teran points to his allegations that, in 2011, he was discouraged from
seeking medical attention for a shin injury and he was called a “slacker” after being placed on
9
Embraer maintains that Mr. Navarro-Teran has “not alleged what his national origin is,”
and that his claims of discrimination on the basis of national origin must, therefore, be dismissed.
(Docket No. 12, p. 4.) The court can plausibly infer, however, from the allegations that Mr.
Navarro-Teran was not an American citizen, that other employees were mocking his English,
and that many of the comments were directed at him because he was of Hispanic origin, that Mr.
Navarro-Teran was born outside of the United States.
16
light duty. (Docket No. 9, p. 9.) Furthermore, Mr. Navarro-Teran alleges that, after the 2014
surgery on his ankle, he “experienced sarcasm from the HR department” when he returned to
work, and a co-worker remarked that the surgery must have been on his brain because he is
stupid. (Id.) These allegations, which occur three years apart, do not demonstrate a work
environment so permeated with discriminatory intimidation, ridicule, or insult as to be
considered abusive or hostile. Rather, the limited allegations made by Mr. Navarro-Teran
regarding his perceived disability – which are isolated in occurrence and mild in their expression
– demonstrate the kind of simple teasing and isolated incident that do not amount to
discriminatory changes in the terms and conditions of his employment. As such, the court
concludes that the Complaint fails to state a claim of hostile work environment on the basis of a
perceived disability.
Mr. Navarro-Teran will, however, be allowed to proceed with his allegations of
harassment on the basis of perceived disability to the extent that they augment his claim of a
hostile work environment on the basis of race and national origin. Incidents of harassment on
the basis of a protected status which are, on their own, insufficient to support a hostile work
environment claim “can be combined with incidents of [harassment on the basis of another
protected status] to prove a pervasive pattern of discriminatory harassment.” Hafford v. Seidner,
183 F.3d 506, 515 (6th Cir. 1999) (quoting Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415–17
(10th Cir. 1987)). After all, “[t]he theory of a hostile-environment claim is that the cumulative
effect of ongoing harassment is abusive,” Hafford, 183 F.3d at 515, and, when a plaintiff alleges
multiple hostile work environment claims based on different protected classifications, his claims
should not be allowed to “fall between two stools” and thereby fail, Shazor v. Prof’l Transit
Mgmt., 744 F.3d 948, 958 (6th Cir. 2014). The court will, therefore, allow Mr. Navarro-Teran to
17
proceed on his allegations of discriminatory and harassing conduct on the basis of his perceived
disability, to the extent that they show that the racial animus of his supervisors and co-workers
was augmented by their bias against his perceived disability.
B.
Timeliness of the Claims
Embraer argues that many of the allegedly discriminatory acts that support Mr. NavarroTeran’s hostile work environment claims under Title VII, the ADA, the THRA, and the TDA –
many of which occured in 2011 and 2012 – are time-barred. (Docket No. 6, pp. 4–5; Docket No.
12, pp. 2–3.) First, Embraer argues that all of the allegations that support Mr. Navarro-Teran’s
state-law claims under the THRA and TDA that took place prior to November 3, 2014 are barred
by Tennessee’s one-year statute of limitations for such claims. (Docket No. 6, pp. 4–5); see
Tenn. Code Ann. § 4-21-311(d) (THRA); id. § 8-50-103(c)(2) (incorporating the THRA’s oneyear limitations period into the TDA). Second, Embraer argues that the allegations that support
Mr. Navarro-Teran’s Title VII and ADA claims that occurred prior to July 25, 2014 are barred
because they occurred more than 300 days before Mr. Navarro-Teran filed the May 2015 Charge
with the EEOC. (Docket No. 12, pp. 2–3.)
Mr. Navarro-Teran acknowledges that certain acts that support his claims occurred
outside of the limitation periods, but he argues that the claims themselves are not time-barred
under the continuing violation theory (Docket No. 9, pp. 4–6), which “allows a plaintiff to bring
a claim for discriminatory conduct that occurs outside the limitations period if the discriminatory
conduct is sufficiently related to conduct occurring within the limitations period.” Booker v.
Boeing Co., 188 S.W.3d 639, 643 (Tenn. 2006); accord Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 110–15 (2002) (allowing an employee to recover for acts occurring more than 300
days before a charge was filed with the EEOC on a continuing violation theory). Because he
18
alleges that he was subjected to a pattern of harassment and discrimination that continued from
his hire to his termination in February 2015 (well within the limitations period), Mr. NavarroTeran argues that neither dismissal of his claims nor exclusion of alleged events that occurred
prior to November of 2014 is merited. (Docket No. 9, p. 6.)
Dismissal of a claim under Rule 12(b)(6) on grounds that it is barred by a limitations
period is warranted only if “the allegations in the complaint affirmatively show that the claim is
time-barred.” Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547 (6th Cir. 2012) (emphasis added).
It is true that, with the exception of a few comments related to the surgery on Mr. NavarroTeran’s ankle in early 2015, the vast majority of discriminatory incidents alleged in the
Complaint occurred prior to March of 2014, which is months before the cut-off for the applicable
limitation periods. (Docket No. 1 ¶¶ 35–37.) The Complaint does allege, however, that Mr.
Navarro-Teran “continued to suffer discrimination, harassment, bullying, and sarcastic
comments until his termination.” (Id. ¶ 38.) Although this allegation is woefully general and
fails to relate any specific incidents of discriminatory or harassing behavior in the one-year span
between January of 2014 and January of 2015, it also does not affirmatively demonstrate that Mr.
Navarro-Teran’s claims are time-barred. Based on the allegations in the Complaint, the court
cannot find, as would be necessary to dismiss Mr. Navarro-Teran’s claims for being untimely
under Rule 12(b)(6), that no act that was part of Mr. Navarro-Teran’s hostile work environment
claims took place within the applicable periods of limitation. See Nat’l R.R. Passenger Corp.,
536 U.S. at 117–18 (“In order for the charge to be timely, the employee need only file a charge
within 180 or 300 days of any act that is part of the hostile work environment.”) The court,
therefore, cannot (at this stage) dismiss any of Mr. Navarro-Teran’s claims as untimely.
19
CONCLUSION
For the reasons discussed herein, Embraer’s Motion to Dismiss will be granted with
respect to Mr. Navarro-Teran’s claim of retaliatory discharge under Tennessee common law, but
the motion will be denied with respect to Mr. Navarro-Teran’s claims for discriminatory
termination under the ADA and TDA and for hostile work environment.
An appropriate order will enter.
______________________________
ALETA A. TRAUGER
United States District Judge
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