Danes v. Associated Wholesale Grocers, Inc.
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFEDANT'S PARTIAL MOTION TO DISMISS 9 AND GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO AMEND 13 signed by Judge Judith E. Levy on 8/25/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ab)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
Michael Franklin Danes,
Civil Action No. 17-CV-182
Hon. Judith E. Levy
Associated Wholesale Grocers,
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT’S PARTIAL MOTION TO DISMISS  AND
GRANTING IN PART AND DENYING IN PART PLAINTIFF’S
MOTION TO AMEND 
Before the Court is defendant Associated Wholesale Grocers, Inc.’s
partial motion to dismiss the claim for retaliatory discharge under
Tennessee common law and claim under the Tennessee Public Protection
Act, TENN. CODE ANN. § 50-10-304. (Dkt. 9.) In the response brief to the
motion to dismiss, plaintiff included a motion for leave to amend the
complaint, which the Court will also consider in this opinion and order.
For the reasons set forth below, defendant’s motion is granted in
part and denied in part. Plaintiff’s motion to amend is granted in part
and denied in part.
Plaintiff Michael Franklin Danes was employed by defendant
Associated Wholesale Grocers, Inc. (“AWG”) from 1992 to September 27,
2016, beginning with the company as a Produce Specialist and ending as
a Senior Vice-President, Division Manager in Nashville. (Dkt. 1 at 2, 5.)
AWG is a grocery cooperative distributor that distributes goods to grocery
stores in several states in the Midwest and South. (Id. at 1.)
The events giving rise to plaintiff’s complaint allegedly began in
January 2016 when the company obtained new management and
plaintiff “got a new supervisor.” (Dkt. 1 at 3.)
In the initial complaint, plaintiff alleges that the new management
engaged in “unethical practices,” including “restricting competition
among stores by providing incentives in the form of freight reductions,
preferential loan treatment and confidential price files.” (Dkt. 1 at 4.)
Further, management may have “made payments to owners to keep the
owners’ business.” (Id.) And after CEO David Smith sold a store that he
knew was prone to flooding, the buyer pulled its business from defendant,
and plaintiff “spoke up and said it was because of the ill feelings the
owner had toward Smith.” (Id.)
After plaintiff spoke up about these alleged practices, his
immediate supervisor, Jeff Pederson, “requested that Plaintiff attend a
breakfast meeting with him,” where plaintiff was met by Pederson and
Human Resources Senior Vice-President, Patrick Reeves. (Dkt. 1 at 5.)
He was then informed that he was being “let go” because “sales have
declined in Nashville.” (Id.)
On January 27, 2017, plaintiff filed this complaint, alleging that his
termination was not due to poor performance, but was in retaliation for
his complaints about the new management.
Plaintiff alleges his
termination violated the Age Discrimination in Employment Act
(“ADEA”) because he was over forty at the time of termination and
therefore a member of a protected class. (Dkt. 1 at 5–6.) He also alleges
that his termination violated the Employment Retirement Income
Security Act (“ERISA”), 29 U.S.C. § 1001 et seq., by illegally interfering
with his pension and retirement benefits. (Id. at 7.) Finally, plaintiff
alleges that his termination violated the Tennessee common law cause of
action against retaliation and the Tennessee Public Protection Act
(“TPPA”), TENN. CODE ANN. § 50-10-304. (Id. at 6.)
Defendant has now filed a partial motion to dismiss, arguing that
plaintiff failed to state a claim for a TPPA violation, and that it cannot
be pleaded alongside an ADEA and ERISA claim. (Dkt. 9 at 1.) Further,
defendant argues that the common law claim cannot survive because the
cause of action has been abrogated and superseded by the TPPA. (Id.)
In a response brief, plaintiff has included a contemporaneously filed
motion to amend, and on this basis argues that the motion to dismiss
must be denied.
First, the common law retaliation claim has been
removed from the proposed amended complaint. Second, the TPPA claim
has been repleaded to meet the elements. (See generally Dkt. 13.)
Under Fed. R. Civ. P. 12(b)(6), “[a] complaint must state a claim
that is plausible on its face.” Johnson v. Moseley, 790 F.3d 649, 652 (6th
A plausible claim need not contain “detailed factual
allegations,” but it must contain more than “labels and conclusions” or “a
formulaic recitation of the elements of a cause of action.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). In other words, a plaintiff must
plead facts sufficient to “allow the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ctr.
for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 369 (6th Cir.
2011). And a court considering a motion to dismiss must “construe the
complaint in the light most favorable to the plaintiff and accept all
allegations as true.” Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir.
Defendant argues that the common law retaliation and TPPA
claims must be dismissed because (1) the TPPA abrogated the common
law claim, (2) plaintiff has failed to state a claim under the TPPA, and
(3) plaintiff cannot assert a TPPA claim alongside ERISA and ADEA
claims. (See generally Dkt. 10.)
Common Law Retaliation
Defendant argues that plaintiff may not bring a common law
retaliation claim because that cause of action has been abrogated or
superseded by the TPPA. (Dkt. 10 at 5–6.) Plaintiff argues that because
it has included a contemporaneously filed motion to amend with the
response brief to the motion to dismiss, and the attached proposed
amended complaint “contains no allegations of violations of Tennessee
Common Law,” defendant’s motion should be denied as moot. (Dkt. 13 at
In general, the Sixth Circuit has advised that “an informal request
contained in a brief in opposition to a motion to dismiss is not deemed a
Rule 15 motion to amend.” Gonzalez v. Kovacs, Case No. 16-4001, 2017
WL 1437283, at *3 (6th Cir. Apr. 24, 2017) (citing Begala v. PNC Bank,
214 F.3d 776, 784 (6th Cir. 2000)). The rationale for a district court not
to consider the informal request is that the request has failed to “state
the grounds [for amendment] with particularity.”
Powers v. Sonoco
Prods. Co., Case No. 11-cv-02061, 2011 WL 6012603, at *4 (W.D. Tenn.
Dec. 1, 2011) (quoting Evans v. Pearson Enters., 434 F.3d 839, 853 (6th
In this case, plaintiff has not failed to state with particularity the
grounds for amendment or made “a bare request” to amend. Gonzalez,
2017 WL 1437283, at *3 (quoting PR Diamonds, Inc. v. Chandler, 364
F.3d 671, 699 (6th Cir. 2004)). Plaintiff has also included a proposed
amended complaint, which satisfies the requirement that the grounds for
amendment be stated with particularity. Accordingly, the Court will
exercise its discretion to consider the proposed amended complaint as a
contemporaneously filed motion to amend.
The proposed amended complaint does not include a common law
retaliation claim. (See Dkt. 13-1.) Accordingly, defendant’s motion to
dismiss the common law retaliation claim is denied as moot.
Defendant next argues that plaintiff has failed to state a TPPA
claim because the complaint does not allege (1) what statute was violated
or (2) that plaintiff reported violations outside of AWG, and a TPPA claim
cannot be brought with ERISA or ADEA claims. (See generally Dkt. 10.)
As with the common law retaliation claim, plaintiff states that he has
stated a claim in the proposed amended complaint.
(Dkt. 13 at 2.)
Plaintiff also states that he may plead the TPPA claim in the alternative
to the ADEA and ERISA claims. (Id.)
For the reasons set forth above, the Court will consider plaintiff’s
attached proposed amended complaint as a contemporaneously filed
motion to amend.
To plead a TPPA claim for retaliation, a plaintiff must show (1) that
he was employed by the defendant, (2) that he was discharged, (3) that
he refused to remain silent about [defendant’s] illegal activities, and (4)
that retaliation was the sole reason for termination. Williams v. City of
Burns, 465 S.W.3d 96, 110 (Tenn. 2015). Further, to satisfy the refusal
to remain silent prong, a plaintiff must allege that he either reported the
illegal conduct externally or internally “to someone other than the person
responsible for the activity.” Haynes v. Formac Stables, Inc., 463 S.W.3d
34, 38 (Tenn. 2015).
Internal reporting does not always satisfy the
reporting requirement, “such as when the wrongdoer is the manager,
owner, or highest authority within the company.” Id. at 40–41.
Here, plaintiff alleges in the proposed amended complaint that
defendant violated the Sherman Act, that he “reported these violations
to upper management within the company,” and that he was informed by
his immediate supervisor that he was being “let go.” (Dkt. 13-1 at 5
(paras. 19, 24), 7 (para. 38).) Plaintiff never specifies who in the company
violated the Sherman Act, but alleges only that defendant violated this
As the Tennessee Supreme Court has made clear, plaintiff cannot
plead a TPPA claim by reporting only to the wrongdoer, and plaintiff has
therefore failed to state a claim. First, assuming the new management
violated the Sherman Act, reporting to the same management is
insufficient because they are the wrongdoers. Second, even assuming it
were permissible to plead that the wrongdoer is the corporate entity
itself, reporting to individuals within that entity would also be
Accordingly, plaintiff has failed to state a claim in the
proposed amended complaint, and his motion to amend as to this issue is
denied as futile. See Riverview Health Inst., LLC v. Med. Mut. of Ohio,
601 F.3d 505, 512 (6th Cir. 2010) (“A proposed amendment is futile if the
amendment could not withstand a Rule 12(b)(6) motion to dismiss.”).
Because the Court has denied leave to amend the TPPA claim, it
will now consider whether plaintiff stated a TPPA claim in the original
complaint. In the original complaint, plaintiff alleged potential statutory
violations by the new management and CEO David Smith. (Dkt. 1 at 4–
5, 7.) And he alleges that he spoke to Richard Kearns, the distribution
Supervisor, about his concern with moving a client to a new warehouse
(Dkt. 1 at 4 (para. 20)), and spoke to other unidentified individuals about
Taking the allegations as true, plaintiff has failed to state a claim.
First, with respect to Mr. Kearns, plaintiff has not alleged that moving a
client to a new warehouse was an illegal activity, which is defined by
statute as “activities that are in violation of the criminal or civil code of
this state or the United States or any regulation intended to protect
health, safety, or welfare.” TENN. CODE. ANN. § 50-1-304(a)(3); Richmond
v. Vanguard Healthcare Servs., LLC, No. M2014-02461-COA-R3-CV,
2016 WL 373279, at *5 (Tenn. Ct. App. Jan. 29, 2016). Next, with respect
to the other acts of the new management and CEO Smith, plaintiff has
failed to plausibly allege “illegal activities” because he does not plead
more than “potential statutory violations.” Further, he has failed to
plead to whom he reported the activities or to whom he spoke. Given that
management and the CEO were allegedly involved in the wrongdoing,
the complaint must contain allegations from which the Court could
reasonably infer plaintiff reported to someone other than a wrongdoer.
And the complaint lacks any such allegations. Accordingly, plaintiff has
failed to state a claim in the original complaint, and defendant’s motion
to dismiss the TPPA claim is granted.
For the reasons set forth above, defendant’s partial motion to
dismiss (Dkt. 9) is GRANTED IN PART and DENIED IN PART.
Plaintiff’s motion to amend (Dkt. 13) is GRANTED IN PART and
DENIED IN PART. Plaintiff is also ORDERED to file the first amended
complaint as a separate document on the docket.
IT IS SO ORDERED.
Dated: August 25, 2017
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
Sitting By Special Designation
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?