Roan v. Ensminger et al

Filing 9

REPORT AND RECOMMENDATION: For the reasons stated above, the Magistrate Judge recommends that the motion to dismiss be granted and that all claims be dismissed with prejudice. Signed by Magistrate Judge Joe Brown on 10/3/2017. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE
PATRICK ROAN,
Plaintiff
v.
DEREK B. ENSMINGER; DEAN MASON,
Defendants

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No. 3:17-1177
Chief Judge Crenshaw/Brown

REPORT AND RECOMMENDATION
For

the

reasons

stated

below

the

Magistrate

Judge

recommends that the Plaintiff’s motion to dismiss (Docket Entry 6)
be granted and this case be dismissed with prejudice for failure to
state a cause of action.
BACKGROUND
The Plaintiff filed a 35-page complaint and paid the
filing fee on August 22, 2017. As an initial matter it is somewhat
difficult to determine who the Plaintiff has suited. He has
captioned the case as against D. Ensminger, Associate General
Counsel, Sonic Restaurants Inc., 300 Johnny Bench Drive, Oklahoma
City, OK 73104, however in paragraph 3 he lists Dean Mason in
Ashland City, as the sole Defendant. He alleges that he was
employed

by

Sonic

Restaurants,

Inc.

(SRI)

at

Ashland

City,

Tennessee, and was discriminated against on or about September 22,
2015. He alleges that he filed a complaint with the Department of
Tennessee

Human

Rights

Commission

and

the

Equal

Employment

Opportunity Commission (EEOC), charging the Defendant with acts of
discrimination and received his right-to-sue letter from the EEOC

on

May

24,

2017

(Docket

Entry

1-1).

He

alleged

that

the

discrimination was based on his race and sex. He also alleges a
defamation of character and breach of contract. He alleged that the
action of discrimination was:
Mr. Dean Mason had the Ashland City Police Department all
over me. It was his friend Johnny Hunter. Afer I was
found not guilty I sat at home for 16 days waiting to
talk to Human Resources for the first time. Then when I
did, Mrs. Nancy didn’t even know that Dean Mason had done
all this. The only black American. Mrs. Nancy Welch never
ever did a report from me. She just asked me to write a
statement on how the story happened to me from Mr. Dean
Mason. She did reply that she had “NO” clue that this
happened or even going on. When Mr. Dean Mason found out
that this deposit was missing on August 7, 2015, the
video should have been pulled then. If I was in the wrong
on anything, I should have been arrested and taken to
jail.
Plaintiff requests damages in the amount of $20 million,
as punitive damages, but does not otherwise claim any damages in
paragraph 11. The Plaintiff attaches some 20 additional pages to
his complaint, including a letter addressed to the Magistrate Judge
noting that he did have lost wages. He gave some additional
explanation that the Defendant Mason called Mr. Holder of the
Ashland City Police Department to complain about a theft, which
apparently he believed Mr. Mason held him responsible for. He
stated that the police department found him not guilty of any theft
by August 19, 2015, and that no charges were ever filed against
him. He stayed at home at the direction of Human Resources for
several days and that no one ever found who took the missing
deposit. His letter goes on to explain that the entire incident

2

began when there was a $1,400 deposit from the restaurant missing
on August 4, 2015.
The Plaintiff denied to all concerned that he had any
responsibility for the missing deposit. He goes on to explain that
on August 17, 2015, Mr. Mason and another individual tore his time
card in two and told him that he was under investigation and that
if he was not found at fault by then he would be given his job back
(Docket Entry 1, pp. 6-15).1
The Plaintiff also attached to his complaint a notice of
suspension pending an internal investigation (Docket Entry 1, p.
16). The suspension notice states,
*

If found to be without fault,
reinstated with pay for lost time;

you

will

be

*

If found to be partially at fault, you may be
reinstated without pay for lost time and may
receive a written counseling; or

*

If found to be in violation of policies or
procedures, we will take appropriate disciplinary
action, up to and including termination of your
employment or partnership.
The Plaintiff, at page 19 of his complaint, attaches page

3 of what appears to be a longer report from Deborah K. Walker. Ms.
Walker appears to be an investigator with the EEOC. This page
refers to a surveillance video that allegedly shows the Plaintiff
opened the safe and removed the cash drawer and the deposit bag was

1

In any future pleadings the Plaintiff should be careful to leave
a one inch margin at the bottom of his pleadings. Otherwise, anything
written on the bottom inch will be overwritten by the ECF date and time
stamps.

3

visible on top of the drawer. It further states that when he
returned into camera view the deposit bag was no longer on top of
the cash drawer. It concludes that a few minutes later two other
employees found the deposit bag underneath the tray and gave the
deposit bag to the Plaintiff. Apparently, he has written in that
this is not true.
The report goes on to conclude that the restaurant
terminated

the

Plaintiff

since

the

evidence

overwhelmingly

indicated that (1) he was in possession of the deposit bag the
morning of August 4, 2015, and (2) because he was unable to provide
a plausible explanation, he was subsequently terminated.
The Plaintiff then attaches at pages 20 through 23 of his
complaint notes in which he lists certain questions he was asked
during the polygraph and states that the police department told him
he passed.
At page 26 of the complaint the Plaintiff attaches a
notarized statement in which he gives his explanation of what he
knew about the missing $1,400. He continued to deny that he was
responsible for the $1,400 and noted that he felt blessed by God
that he was not shot or killed by the police department “when
you’re a black American male being talked to and I felt harassed.”
At page 28 of his complaint he attached what appears to
be a police report concerning polygraph test (VSA) and various
other VSA tests administered to other individuals. This portion of

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the police report does not indicate the results of the Plaintiff’s
test.
Page 31 of the complaint contains the first page of the
incident

investigated

by

Detective

Johnny

Hunter.

The

report

indicates that there was a discrepancy between the employee,
Tarpley, who stated she found a cash deposit on August 4th around
6:00 a.m. below a cash register and turned it over to the Plaintiff
and the Plaintiff who denied that he saw a deposit on the 4th and
told the detective that Ms. Tarpley found a deposit under a
register on the 3rd, rather than the 4th. It was also reported that
the security monitor and records for that time period were stolen
from the store during the night of August 12th and no forcible entry
was discovered.
The Defendants’ motion to dismiss (Docket Entry 6) is
based on the entire complaint submitted by the Plaintiff. Although
they spent a good bit of ink concerning insufficient service of
process, they have nevertheless filed a motion to dismiss, which in
the interest of judicial efficiency, should be addressed since it
has merit.
The Plaintiff filed a response to the motion (Docket
Entry 8). The Plaintiff did not file or seek to file an amended
complaint. It appears that the matter is ready for decision.

5

LEGAL DISCUSSION
The Defendants have corrected stated the legal standard
for review of a motion to dismiss under Rule 12(b)(6). A complaint
must contain sufficient factual matters, which when accepted as
true, state a claim for relief that is plausible on its face.
However, legal conclusions must be supported by factual allegations
to state a plausible claim for relief. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). In evaluating a motion to
dismiss the Court may consider the complaint and the exhibits
attached. Bassett v. National Collegiate Athletic Association, 528
F.3d 426, 430 (6th Cir. 2008). While pro se litigants are given
considerable leeway in evaluating their complaints they are not
exempt

from

the

requirements

of

the

Federal

Rules

of

Civil

Procedure and the Court is not required to conjure up questions not
squarely presented to them or to conjure up claims not fairly
eluded to. Watkins v. Kajima International Corporation, 2010 WL
3808293 at *2 (M.D. Tenn. Aug. 5, 2010).
Turning now to the specific legal arguments, given the
Magistrate Judge’s recommendation on the substantive matters, the
Magistrate Judge will not address any claim of insufficient service
of process. In the event the report and recommendation as to
dismissal is not accepted, it would appear that the Plaintiff
should be given a reasonable amount of time to properly serve any
remaining Defendant.
6

TITLE VII
As an initial matter, the Magistrate Judge believes that
any claims against Mr. Ensminger must be dismissed. Other than
being named in the caption he is not further mentioned and is not
named as a specific Defendant. The only Defendant the Plaintiff
names in the complaint as a Defendant is Mr. Dean Mason. It may
well be that the Plaintiff intended his complaint to be against
SRI, his employer, and used Mr. Ensminger as the individual to be
served on behalf of the corporation. However, the Plaintiff does
not specifically name the restaurant itself as a defendant in
paragraph 3 of his complaint.
The Plaintiff’s complaint under Title VII (42 U.S.C. §
2000e(b)) must fail. The law is clear that a supervisor such as
Mason or Ensminger is not the employer for Title VII purposes and
cannot be held individually liable under the statute. The claim
must be against the actual employer, who in this case appears to be
SRI. Watham v. General Electric Co., 115 F.3d 400 (6TH Cir. 1997).
TENNESSEE COMMON LAW CLAIMS
The Defendants argue that any claims under Tennessee
common law are barred by the statute of limitations. The Plaintiff
in his response did not address the statute of limitations issue.
The Magistrate Judge, having reviewed the complaint and the motion,
believes that the Defendants are correct and that the Plaintiff’s
wrongful termination and defamation claims are time-barred. A
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wrongful termination claim under Tennessee common law must be filed
within one year of termination. Clark v. Hoops, L.P., 709 F.
Supp.2d 657, 669 (W.D. Tenn. 2010).
Likewise, defamation by slander must be filed within six
months after the words are spoken. When suing for liable, it must
be filed within one year after the cause of action occurred. A
cause of action in this case would clearly have occurred when the
Plaintiff was discharged September 22, 2015. Thus, a claim for
slander would be barred if not filed within six months (T.C.A. 283-103) and an action for liable would be barred if not filed within
one year of the injury and its known source. Tenn. Code Ann. § 283-104(a)(1)(A); Red Wing v. Catholic Bishop for Diocese of Memphis,
363 S.W.3d 436, 458 (Tenn. 2012). The Plaintiff has not provided
any information that could justify equitable estoppel.
It does appear that the Plaintiff filed a charge with the
EEOC about his termination, although the date of the filing is not
set forth in his pleadings. Nevertheless, the filing of an EEOC
charge does not toll the one-year statute of limitations governing
Tennessee torts. Carolyn Conner-Clement v. Trinity Industries,
Inc., 2009 WL 211141 at *6 (M.D. Tenn. Jan. 28, 2009).
Given what appears to be a clear bar by the statute of
limitations the Magistrate Judge will not address the argument that
the claims would be insufficient even if the statute of limitations
was not a bar.
8

BREACH OF CONTRACT
Turning to the next issue, it appears that the Plaintiff
has not submitted a viable claim for breach of contract. The
Plaintiff has attached to his complaint at Docket Entry 1, p. 16,
the document that he claims is a contract. As an initial matter,
the document does not appear to meet the traditional contract
standards of an offer and acceptance based on consideration. The
document simply states the condition of the Plaintiff’s suspension
pending an internal investigation. The internal investigation
referred

to

is

clearly

not

a

police

investigation,

but

an

investigation by the company. The Plaintiff was put on notice that
if he was found in violation of company policies or procedures he
would be subject to appropriate disciplinary action up to and
including termination.
Whether the police department did or did not file charges
would be immaterial to any contract between the Plaintiff and SRI.
It is well established that in Tennessee an at-will
employee, such as the Plaintiff, has no contractual right to
employment and can be terminated “for good cause, bad cause, or no
cause at all.” Clanton v. Cain Sloan Company, 677 S.W.2d 441, 443
(Tenn. 1984). Thus, even if the company was incorrect in its belief
that the Plaintiff was responsible for the loss of the deposit, as
an at-will employee the Plaintiff could be lawfully terminated.

9

The

only

exception

would

be

if

the

Plaintiff

was

terminated for reasons prohibited by some other statute such as
Title VII.
As noted above, the Plaintiff did not sue SRI, who is his
employer.

However,

even

if

the

Plaintiff

had

sued

SRI,

his

complaint is still insufficient. The Plaintiff lists discrimination
in his complaint at page 2 on the basis of race and sex. However,
the Plaintiff gives no actual information in his complaint or in
its various attachments that indicate SRI or Mr. Mason made any
statements or took any action based on either the Plaintiff’s sex
or race. There is nothing in the complaint that indicates other
employees similarly situated to the Plaintiff, but of a different
sex or race, were treated differently. The Plaintiff did not attach
to his complaint the charge he filed with the EEOC. The closest the
Plaintiff comes to alleging anything about race or sex is at page
26 of his complaint where he thanks God that he was not put in jail
for a crime that he did not do and that he felt blessed by God that
he was not shot or killed by the police department “where you are
a black American male being talked to.” These remarks appear to be
directed to the conduct of the police detective questioning him,
not the SRI employee Mr. Mason. In fact, the last two lines on page
26 state: “Mr. Dean Mason never took any time to talk about any
deposits.”

10

While the Plaintiff has alleged discrimination, that is
a bare legal conclusion. The Plaintiff has not come forward with
any factual allegations to state a plausible claim for relief for
discrimination as required by Bell Atlantic Corporation v. Twombly,
550 U.S. 544 (2007).
RECOMMENDATION
For

the

reasons

stated

above,

the

Magistrate

Judge

recommends that the motion to dismiss be granted and that all
claims be dismissed with prejudice.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any

party

has

14

days

from

receipt

of

this

Report

and

Recommendation in which to file any written objections to this
Recommendation with the District Court. Any party opposing said
objections shall have 14 days from receipt of any objections filed
in this Report in which to file any responses to said objections.
Failure to file specific objections within 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. 140 106 S.
Ct. 466, 88 L.Ed.2d 435 (1985), Reh’g denied, 474 U.S. 1111 (1986).
ENTER this 3rd day of October, 2017.
/s/
Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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