Wilkins v. Tennessee Department of Children's Services
Filing
29
MEMORANDUM OPINION OF THE COURT. Signed by District Judge Eli J. Richardson on 12/6/2018. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
BRIAN KEITH WILKINS,
Plaintiff,
v.
TENNESSEE DEPARTMENT OF
CHILDREN’S SERVICES,
Defendant.
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NO. 3:18-cv-00102
JUDGE RICHARDSON
MEMORANDUM OPINION
Before the Court is Defendant’s Motion to Dismiss (Doc. No. 5). Plaintiff filed a response
in Opposition (Doc. No. 21), and Defendant replied (Doc. No. 24). For the reasons stated below,
the motion is granted.
FACTUAL BACKGROUND 1
Plaintiff, Brian Keith Wilkins, was an employee of Defendant, Tennessee Department of
Children’s Services (“TDCS”), for twenty-five years. (Doc. No. 1 ¶ 5.) Starting in October 2012,
Plaintiff worked as a team leader at the child abuse hotline. (Id.) Plaintiff was diagnosed in 2014
with Post-Traumatic Stress Disorder (“PTSD”) from his employment in the military. (Id. ¶ 6.)
Plaintiff was on Family Medical Leave Act (“FMLA”) leave from September 30, 2014 to January
20, 2015 due to stress. (Id. ¶ 7.) Plaintiff took an additional leave of absence in February 2015 for
two weeks for his son’s emergency surgery and hospitalization. (Id. ¶ 8.)
In April 2015, Defendant suspended Plaintiff for five days because of low evaluation
scores. (Id. ¶ 9.) Plaintiff was absent from work in May 2015 for two weeks for his medical
1
For purposes of Defendant’s Motion to Dismiss, the Court will assume all of the following
alleged facts to be true.
1
appointments. (Id. ¶ 10.) In June 2015, Plaintiff applied for Americans with Disabilities Act
(“ADA”) accommodations due to his PTSD, memory loss, and bipolar disorder. (Id. ¶ 11.) Plaintiff
specifically requested work accommodations in a less stressful TDCS department. (Id.)
Plaintiff was terminated on July 29, 2016, but his termination was rescinded three days
later. (Id. ¶¶ 12-13.) On August 3, 2015, Defendant informed Plaintiff that he had sixty days to
find a job within TDCS or he would be terminated. (Id. ¶ 14.) On August 4, 2015, Plaintiff was
reassigned to the Special Investigations Unit, where he alleges he was allowed to perform only
menial tasks with no specific job description. (Id. ¶¶ 15-16.) Plaintiff also alleges that Defendant
refused to accommodate Plaintiff with a flexible work schedule or allow him to speak with the
hiring manager about open positions. (Id. ¶¶ 17, 20.)
In September 2015, Plaintiff was told that certain people wanted him to quit or to be fired.
(Id. ¶ 21.) On September 11, 2015, Plaintiff was suspended for his failure to notify his supervisors
about being late after he had previously been reprimanded for not doing so. (Id. ¶¶ 18-19.) In early
October 2015, the Director of TDCS’s Special Investigations Unit was informed of Plaintiff’s
medical issues. (Id. ¶ 22.) Later that month, Plaintiff reported to a new position with Davidson
County Care. (Id. ¶ 23.) On October 23, 2015, Plaintiff was suspended for his failure to notify his
supervisor about being late and complete work assigned to him prior to his transition to the position
at Davidson County Care. (Id. ¶¶ 24.) On November 15, 2015, Defendant terminated Plaintiff’s
employment. (Id. ¶ 25.)
Based on these allegations, Plaintiff claims Defendant violated: (1) Title VII of the Civil
Rights Act of 1964; (2) Title I of the Civil Rights Act of 1991; (3) the ADA; (4) the FMLA; (5)
the Tennessee Human Rights Act (“THRA”); and (6) the Tennessee Public Protection Act
(“TPPA”). (Id. ¶ 27.) Plaintiff also alleges causes of action entitled, “Wrongful Discharge,
2
Retaliatory Discharge, and Hostile Work Environment.” (Id.) 2 Defendant now moves to dismiss
all claims against it. 3
LEGAL STANDARD
For purposes of a motion to dismiss, the Court must take the factual allegations in the
complaint as true, as the Court has done above. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To
survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face. Id. A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. Id. Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice. Id. When there are wellpleaded factual allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief. Id. at 679. A legal conclusion, including one couched
as a factual allegation, need not be accepted as true on a motion to dismiss, nor are mere recitations
of the elements of a cause of action sufficient. Id. at 678; Fritz v. Charter Township of Comstock,
592 F.3d 718, 722 (6th Cir. 2010). Moreover, factual allegations that are merely consistent with
the defendant’s liability do not satisfy the claimant’s burden, as mere consistency does not
establish plausibility of entitlement to relief even if it supports the possibility of relief. Iqbal, 556
U.S. at 678.
2
Defendant interprets these claims as brought pursuant to Title VII. (See Doc. No 6 at 8.) Plaintiff
does not appear to contest this interpretation. (See Doc. No. 21 at 5.) Accordingly, the Court
construes the wrongful and retaliatory discharge and hostile work environment claims as Title VII
violations.
3
The Court notes that Plaintiff previously filed the same action in Wilkins v. Tenn. Dep’t Of
Children’s Servs., No. 3:16-cv-00948 on May 24, 2016. However, Plaintiff requested a consent
order dismissing the action without prejudice, which the Court granted.
3
In determining whether a complaint is sufficient under the standards of Iqbal and its
predecessor and complementary case, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), it may
be appropriate to “begin [the] analysis by identifying the allegations in the complaint that are not
entitled to the assumption of truth.” Iqbal, 556 U.S. at 680. Identifying and setting aside such
allegations is crucial because they simply do not count toward the plaintiff’s goal of showing
plausibility of entitlement to relief. As suggested above, such allegations include “bare assertions,”
formulaic recitation of the elements, and “conclusory” or “bald” allegations. Id. at 681. The
question is whether the remaining factual allegations plausibly suggest an entitlement to relief. Id.
If not, the pleading fails to meet the standard of Rule 8 and thus must be dismissed pursuant to
Rule 12(b)(6). Id. at 683.
DISCUSSION
I.
Title VII and ADA Claims
Defendant argues that Plaintiff’s Title VII and ADA claims should be dismissed because
Plaintiff has failed to allege that he has satisfied two prerequisites for filing a lawsuit under Title
VII and the ADA—that he timely filed a charge of employment discrimination with the Equal
Employment Opportunity Commission (“EEOC”) and received and acted upon the EEOC’s
statutory notice of right to sue (“right-to-sue letter”). The Sixth Circuit has recognized that
“[f]ailure to timely exhaust administrative remedies is an appropriate basis for dismissal of a Title
VII or ADA action.” Williams v. Nw. Airlines, Inc., 53 F. App’x 350, 351 (6th Cir. 2002).
Administrative exhaustion, the two measures Defendant claims Plaintiff has failed to allege,
involves: (1) timely filing a charge of employment discrimination with the EEOC; and (2)
receiving and timely acting upon the EEOC’s statutory right-to-sue letter. Granderson v. Univ. of
Mich., 211 F. App’x 398, 400 (6th Cir. 2006) (citing Puckett v. Tenn. Eastman Co., 889 F.2d 1481,
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1486 (6th Cir. 1989)). Importantly, administrative exhaustion must not only be ultimately proved
by the plaintiff but must also be alleged in the complaint to avoid dismissal. See McGhee v. Disney
Store, 53 F. App’x 751, 752 (6th Cir. 2002). Plaintiff fails to allege that he ever filed a charge that
would serve to exhaust his administrative remedies, much less when it was filed, what he alleged,
whether he received a right-to-sue letter, or when he received it. Accordingly, dismissal of
Plaintiff’s Title VII and ADA claims is warranted on this basis alone. 4
Although Plaintiff attaches to his opposition brief two right-to-sue letters dated February
25, 2016 and July 28, 2017 (see Doc. No. 21-1) to show that he has satisfied the administrative
prerequisites to filing suit under Title VII and the ADA, these documents fail to save his claims. 5
There is no indication from these right-to-sue letters or from Plaintiff directly that the letters are
associated with Plaintiff’s claims in the instant lawsuit. In addition, even if these right-to-sue letters
relate to the alleged claims here, the right-to-sue letters demonstrate that Plaintiff’s Title VII and
ADA claims are time-barred. An employee seeking relief under Title VII or the ADA must file a
civil action within ninety days of the receipt of the notice of right to sue from the EEOC. See 42
U.S.C. § 2000e–5(f)(1); 42 U.S.C. § 12117(a); see also McGhee , 53 F. App’x at 752 (approving
4
A dismissal based on failure to allege administrative exhaustion is a dismissal under Rule
12(b)(6). McGhee, 53 F. App’x at 752.
5
Although the Court generally cannot consider documents outside the pleadings in ruling on a
motion to dismiss without converting the motion to dismiss into one for summary judgment, it can
consider the right-to-sue letters because they are matters of public record of which the Court may
take judicial notice. See Kovac v. Superior Dairy, Inc., 930 F. Supp. 2d 857, 862–63 (N.D. Ohio
2013) (“EEOC charges and related documents, including right to sue letters, are public records of
which the Court may take judicial notice in ruling on a motion to dismiss without having to convert
the motion into one for summary judgment.”). This is especially true where, as here, neither side
contests the authenticity of the right-to-sue letter submitted by Plaintiff. In any event, these claims
must be dismissed if the right-to-sue letters are considered (because they affirmatively show failure
to meet the 90 day deadline) or if they are not considered (because then there would be nothing
that could be considered allegations relating to administrative exhaustion).
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the district court’s dismissal of plaintiff’s disability discrimination complaint under the ADA
as time-barred for failure to file the complaint within ninety days of receipt of the right-to-sue
letter); Truitt v. Cty. of Wayne, 148 F.3d 644, 647-49 (6th Cir. 1998) (affirming dismissal of Title
VII complaint under Rule 12(b)(6) for failure to file complaint within ninety days of receipt
of right-to-sue letter). The ninety-day requirement is similar to a statute of limitations and serves
as a bar to the plaintiff’s lawsuit when the complaint is not timely filed. See Truitt, 148 F.3d at
646-47. Because Plaintiff has not detailed when he received the right-to-sue letter, the Court
presumes that he received it five days after it was mailed. See Banks v. Rockwell Int’l N. Am.
Aircraft Operations, 855 F.2d 324, 326 (6th Cir. 1988) (noting that there is a presumption that
mail is received by the plaintiff and the ninety-day time period begins to run five days after the
EEOC mails the notice of right to sue). The Court, therefore, assumes that Defendant received the
most recent right-to-sue letter on August 2, 2017. Plaintiff filed his Complaint in this case on
February 1, 2018—almost six months after he received the most recent right-to-sue letter.
Therefore, to the extent the right-to-sue letters Plaintiff attaches to his opposition brief are
associated with his Title VII and ADA claims in this lawsuit, those claims are time-barred.
Accordingly, Plaintiff’s Title VII and ADA claims will be dismissed with prejudice pursuant to
Rule 12(b)(6). 6
II.
Title I of the Civil Rights Act of 1991 Claim
Defendant argues that Plaintiff’s claim under Title I of the Civil Rights Act of 1991 should
be dismissed because the statute governs damages for claims of employment discrimination and
does not create a cause of action. In response, Plaintiff acknowledges that the Title I claim “does
6
Because the Court dismisses the Title VII and ADA claims on the aforementioned basis, it
declines to address Defendant’s additional arguments for dismissing these claims.
6
not provide a separate cause of action” and that “Title I of the Civil Rights Act may not create a
cause of action and may not be applicable.” (Doc. No. 21 at 3, 6.) Title I of the Civil Rights Act
of 1991 “provides a prevailing plaintiff in an intentional employment discrimination case the
ability to recover compensatory and punitive damages from the defendant.” Sears v. Jo-Ann Stores,
Inc., No. 3:12-1322, 2014 WL 1665048, at *7 (M.D. Tenn. Apr. 25, 2014), report and
recommendation adopted, No. 3:12-1322, 2014 WL 3672113 (M.D. Tenn. July 23, 2014) (citing
42 U.S.C. § 1981a(a)). However, “this statute does not create a new substantive right or an
independent cause of action; rather, it enhances the remedies otherwise available for intentional
employment discrimination.” Id. Thus, because Plaintiff cannot plausibly allege an independent
cause of action under Title I of the Civil Rights Act of 1991 as none exists, Plaintiff’s Title I of
the Civil Rights Act of 1991 claim will be dismissed with prejudice under Rule 12(b)(6).
III.
FMLA Claim
The Complaint merely states that Plaintiff brings a claim under the FMLA but does not
specifically detail how Defendant violated the FMLA. Plaintiff alleges that he took FMLA leave
from September 30, 2014 to January 20, 2015 due to stress and that he was absent for two weeks
in May 2015 due to medical appointments. (Doc. No. 1 ¶¶ 7,10.) Plaintiff also alleges that he took
an additional two-week leave of absence to care for his son. (Id. ¶ 8.) Thus, the Complaint can be
construed to allege potential FMLA claims under both the self-care and family-care provisions. 7
7
Under the self-care provision, the FMLA entitles a qualified employee to take up to twelve weeks
of leave during a twelve-month period if the employee’s own serious health condition prevents the
employee from performing the functions of his job. 29 U.S.C. § 2612(a)(1)(D). Under the familycare provision, the FMLA also entitles a qualified employee to take up to twelve weeks of leave
during a twelve-month period to care for a spouse, child, or parent who has a serious health
condition. 29 U.S.C. § 2612(a)(1)(C).
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Defendant moves to dismiss the FMLA claim based on both provisions. The Court discusses each
argument in turn.
A. Whether Defendant is Immune from Suit Under the FMLA’s Self-Care
Provision
Defendant argues that to the extent the Complaint can be construed to assert a claim under
the FMLA’s self-care provision, Defendant is immune from damages and therefore the claim
should be dismissed. In Coleman v. Ct. App. of Md., 566 U.S. 30 (2012), the Supreme Court
determined that “suits against States under [the self-care] provision are barred by the State’s
immunity as sovereigns in our federal system.” Id. at 33. Accordingly, to the extent Plaintiff seeks
money damages for violating the FMLA’s self-care provision, that claim will be dismissed.
Plaintiff argues that although Defendant may be immune from suit for money damages, it
is not immune from equitable relief, such as reinstatement and attorney’s fees. “Under Sixth
Circuit precedent, the Eleventh Amendment does not bar suits for equitable, prospective relief
against state officials in their official capacities.” Miller v. Tenn. Dep’t of Human Servs., No. CV
3-15-1025, 2016 WL 3213641, at *2 (M.D. Tenn. June 10, 2016) (citing Diaz v. Mich. Dep’t of
Corrs., 703 F.3d 956, 958 (6th Cir. 2013)). This exception to state sovereign immunity is known
as the Ex parte Young doctrine. See id. However, the Ex parte Young doctrine does not apply
where, as here, a plaintiff sues a state agency, not a state official. See id. at *3. Therefore, Plaintiff
cannot seek any form of equitable relief against Defendant for violations of the FMLA. In addition,
attorney’s fees are not a form of equitable relief under the FMLA because attorney’s fees can be
awarded only after a money judgment has been entered. See 29 U.S.C. § 2617. Thus, to the extent
Plaintiff’s claim is based on the self-care provision of the FMLA, it will be dismissed with
prejudice.
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B. Whether Plaintiff Fails to State a Claim Upon Which Relief Can Be Granted
Under the FMLA’s Family-Care Provision
Defendant argues that Plaintiff fails to plausibly allege a FMLA entitlement, interference,
discrimination, or retaliation claim based on his leave of absence to care for his son. 8 The Court
agrees. To establish a prima facie case of FMLA entitlement or interference, the plaintiff must
show: (1) he was an eligible employee; (2) the defendant was an employer as defined under
the FMLA; (3) the employee was entitled to leave under the FMLA; (4) the employee gave the
employer notice of his intention to take leave; and (5) the employer denied the
employee FMLA benefits to which he was entitled. Donald v. Sybra, Inc., 667 F.3d 757, 762 (6th
Cir. 2012); Hoge v. Honda of Am. Mfg., Inc., 384 F.3d 238, 244 (6th Cir. 2004). Even if the
Complaint could be construed to allege that Plaintiff’s leave of absence to care for his son was
protected by the FMLA, which it cannot, Plaintiff does not allege that Defendant denied him
FMLA leave, or any of the other elements stated above. Therefore, Plaintiff fails to plausibly allege
a FMLA entitlement and interference claim based on the family-care provision.
To establish a prima facie case of FMLA discrimination or retaliation, the plaintiff must
show: (1) he engaged in an activity protected by the FMLA; (2) his employer knew that he was
exercising his FMLA rights; (3) his employer took an adverse employment action; and (4) there
was a causal connection between the protected FMLA activity and the adverse employment action.
Hall v. Ohio Bell Tel. Co., 529 F. App’x 434, 439 (6th Cir. 2013); Edgar v. JAC Prod., Inc., 443
F.3d 501, 508 (6th Cir. 2006). Plaintiffs fails to state that his leave to care for his son was protected
by the FMLA, his employer knew that he was exercising his FMLA rights, or that he suffered an
8
The Sixth Circuit recognizes two distinct theories for recovery under the FMLA: (1) the
“entitlement” or “interference” theory; and (2) the “retaliation” or “discrimination” theory. Hoge
v. Honda of Am. Mfg., Inc., 384 F.3d 238, 244 (6th Cir. 2004).
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adverse employment action as a result of him taking this leave. Thus, he fails to adequately allege
a FMLA discrimination or retaliation claim based on the family-care provision. Accordingly,
because Defendant is immune from suit under the FMLA’s self-care provision, Plaintiff has failed
to adequately allege a FMLA claim based on the family-care provision, and the Complaint
provides no other potential basis for a FMLA claim, the FMLA claim will be dismissed with
prejudice pursuant to Rule 12(b)(6). 9
IV.
State Law Claims
The only remaining claims are Plaintiff’s THRA and TPPA claims. A district court
“may decline to exercise supplemental jurisdiction” if it “has dismissed all claims over which it
has original jurisdiction.” 28 U.S.C. § 1367(c)(3); see also Ford v. Frame, 3 F. App’x 316, 318
(6th Cir. 2001) (“[D]istrict courts possess broad discretion in determining whether to
retain supplemental jurisdiction over state claims once all federal claims are dismissed.”). The
Supreme Court has noted that “in the usual case in which all federal-law claims are eliminated
before trial, the balance of factors to be considered under the pendent jurisdiction doctrine—
judicial economy, convenience, fairness, and comity—will point toward declining to exercise
jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,
350 n.7 (1988); see Musson Theatrical, Inc. v. Fed. Exp. Corp., 89 F.3d 1244, 1254-55 (6th Cir.
1996). The sole basis for subject matter jurisdiction in the Complaint is federal question
jurisdiction under 28 U.S.C. § 1331. (Doc. No. 1 ¶ 4.) Plaintiff does not assert any factual
allegations giving rise to diversity jurisdiction, and indeed the Complaint is explicit as to the lack
of diversity of citizenship of the parties. Because the only claims over which the Court had original
9
Because the Court dismisses Plaintiff’s FMLA claim on the aforementioned grounds, it declines
to address Defendant’s additional argument regarding the statute of limitations.
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jurisdiction have been dismissed, the parties are non-diverse, and the aforementioned factors weigh
in favor of declining jurisdiction over Plaintiff’s state law claims, the Court declines to exercise
supplemental jurisdiction over Plaintiff’s THRA and TPPA claims and dismisses them without
prejudice. 10 Plaintiff may refile them in a Tennessee state court.
CONCLUSION
For the foregoing reasons, the Court will GRANT Defendant’s Motion to Dismiss. (Doc.
No. 5). Plaintiff’s Title VII, Title I, ADA, and FMLA claims will be DISMISSED WITH
PREJUDICE. Plaintiff’s THRA and TPPA claims will be DISMISSED WITHOUT
PREJUDICE, to be filed, if Plaintiff so chooses, in a Tennessee state court.
An appropriate order will be entered.
____________________________________
ELI RICHARDSON
UNITED STATES DISTRICT JUDGE
10
This is in fact exactly what Plaintiff requested to happen if all of his federal claims were
dismissed. (Doc. No. 21 at 3-4, 6.)
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