Gamble v. Sitel Operating Corp. et al

Filing 19

ORDER Adopting 17 Magistrate's Report and Recommendation. Signed by Judge Sheryl H. Lipman on 08/22/16. (Lipman, Sheryl)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
STEPHANIE GAMBLE,
Plaintiff,
v.
SITEL OPERATING CORPORATION,
Defendant.

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No. 15-cv-2789-SHL-dkv

ORDER ADOPTING MAGISTRATE’S REPORT AND RECOMMENDATION
Before the Court is the Magistrate’s Report and Recommendation for Partial Sua Sponte
Dismissal of Plaintiff’s Amended Complaint and to Issue and Effect Service of Process (the
“Report and Recommendation”). (ECF No. 17.) For the following reasons, the Court ADOPTS
the Report and Recommendation in its entirety, resulting in the dismissal of pro se Plaintiff
Stephanie Gamble’s (“Ms. Gamble”) claims for breach of contract, negligence, Title VII gender
discrimination and ADA disability discrimination against Defendant Sitel Operating Corporation
(“Sitel”), as well as all claims against Meredith Ashleigh Farmer (“Ms. Farmer”). As a matter of
preliminary screening, however, the Court finds that Ms. Gamble may move forward with the
claims in her Amended Complaint against Sitel for failure to accommodate and for retaliation
under the ADA.
PROCEDURAL POSTURE
Ms. Gamble filed her pro se Complaint on December 8, 2015, alleging gender
discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
(“Title VII”), and failure to accommodate, retaliation and disability discrimination in violation of
the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112 (“ADA”). (ECF No. 1.) After

conducting a preliminary review of Ms. Gamble’s Complaint, the Magistrate issued a Report and
Recommendation on December 17, 2015. (ECF No. 9.) The Court adopted the Report and
Recommendation on April 19, 2016. (ECF No. 11.) In the Order Adopting the Report and
Recommendation, the Court found that Ms. Gamble had only stated a cognizable claim against
Sitel for failure to accommodate under the ADA. (ECF No. 11 at 16.) The Court permitted Ms.
Gamble to file an amended complaint to recite only the factual allegations supporting her failure
to accommodate claim. (Id.)
On May 19, 2016, Ms. Gamble failed to follow the Court’s Order and filed an Amended
Complaint that included all of the claims that were dismissed from the Complaint, a slew of new
claims, and again named Ms. Farmer as a co-defendant. (ECF No. 14.) The Magistrate
conducted a preliminary screening of the Amended Complaint, and issued a Report and
Recommendation on July 6, 2016, recommending dismissal of Ms. Farmer, again, dismissal of
Ms. Gamble’s Title VII gender discrimination claim and ADA disability discrimination claim,
again, and dismissal of Ms. Gamble’s newly included claims for breach of contract and
negligence, leaving only Ms. Gamble’s ADA failure to accommodate and retaliation claims
against Sitel. Ms. Gamble filed a timely Objection to the Report and Recommendation, which
included two specific objections: first, Ms. Gamble argues that she had an “implied employment
contract” with Sitel supporting her breach of contract claim; and, second, she contends that she
can provide a similarly situated comparator for her disability discrimination claim. For the
following reasons, the Court finds that Ms. Gamble has failed to demonstrate through her
objections that she stated a claim upon which relief may be granted for breach of contract or for
disability discrimination.

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ANALYSIS
I.

Standard of Review
A magistrate judge may submit to a judge of the court proposed findings of fact and

recommendations for dismissal of a complaint for failure to state a claim upon which relief can
be granted. 28 U.S.C. § 636(b)(1)(B). “A judge of the court shall make a de novo determination
of those portions of the report or specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 149 (1985). After
reviewing the evidence, the court may accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1)(C). If no party
objects to the magistrate judge’s factual or legal conclusions, the district court need not review
those findings under a de novo or any other standard. Thomas, 474 U.S. at 150.
When reviewing Ms. Gamble’s two objections, the Court applies the Federal Rule of
Civil Procedure 12(b)(6) standard. Under that standard, a court must determine whether the
plaintiff has stated a claim upon which relief may be granted, but also “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).
“Although for the purposes of a motion to dismiss we must take all of the factual allegations in
the complaint as true, we are not bound to accept as true a legal conclusion couched as a factual
allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation
omitted).

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II.

Objections
A. First Objection
Ms. Gamble first objects to the Magistrate’s recommendation to dismiss her breach of

contract claim for failure to state a claim. The Magistrate found that, although Ms. Gamble had
an employment contract with Sitel, she failed to plead any facts or provide any contract language
that would overcome the presumption in Tennessee that all employment contracts are for at-will
employment. See Brown v. City of Niota, Tenn., 214 F.3d 718, 721 (6th Cir. 2000) (“Under
Tennessee law, what would otherwise be an at-will contract may be modified by specific
language which evidences an intent to modify the existent employment contract.”); Wright v.
Wacker-Chemie AG, 2014 WL 3810584, at *14 (E.D. Tenn. Aug. 1, 2014) (discussing
Tennessee presumption of at-will employment).
In her objection, Ms. Gamble states that she was not employed at will; however, she
again fails to allege any facts or produce any contract language that would nudge her conclusion
from the realm of conceivability to plausibility. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007) (“Because the plaintiffs here have not nudged their claims across the line from
conceivable to plausible, their complaint must be dismissed.”). Ms. Gamble states that she was
not at-will because she had “expectations for the opportunity to grow professionally at Sitel,”
and that “Sitel recognized [her] knowledge, skills, and abilities to grow within the company.”
(ECF No. 18 at 5.) This language was taken from Ms. Gamble’s employment contract, but is
more akin to puffery than it is to explicit language that would alter Ms. Gamble’s status as an atwill employee. Sudberry v. Royal & Sun All., 344 S.W.3d 904, 914 (Tenn. Ct. App. 2008)
(“Tennessee has long recognized that statements by an employer about the prospect of long-term
employment are not contractually binding, nor do same alter the at-will employment
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presumption.”); id. at 915 (stating that, to defeat the presumption of at-will employment in
Tennessee, the employment contract must include “binding and unequivocal language” to that
effect). Because Ms. Gamble has not overcome the presumption that she entered into an at-will
employment contract, and at-will employment contracts “can be terminated by either party at any
time without cause,” Graves v. Anchor Wire Corp. of Tennessee, 692 S.W.2d 420, 422 (Tenn.
Ct. App. 1985), Ms. Gamble has failed to plead a breach of contract claim against Sitel.
B. Second Objection
Ms. Gamble also appears to object to the Magistrate’s recommendation to dismiss her
disability discrimination claim. 1 When the Court adopted the Magistrate’s recommendations as
to Ms. Gamble’s Complaint, it dismissed her claim for disability discrimination because Ms.
Gamble had failed to allege any facts that supported causation. (ECF No. 11 at 12-13.) In the
current Report and Recommendation, the Magistrate recommends that the Court again dismiss
Ms. Gamble’s disability discrimination claim for the same reason. (ECF No. 17 at 25.) To
establish causation, the plaintiff must show that “either she was replaced by a nondisabled person
or her position remained open while the employer sought other applicants.” Daugherty v. Sajar
Plastics, Inc., 544 F.3d 696, 703 (6th Cir. 2008). Causation “may also be satisfied by showing
that similarly situated non-protected employees were treated more favorably.” Jones v. Potter,
488 F.3d 397 (6th Cir. 2007) (citing Tally v. Bravo Pitino Rest., Ltd., 61 F.3d 1241, 1246 (6th
Cir. 1995)).

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The Court states that Ms. Gamble “appears” to make this objection because nowhere in her
filing has she included a clear, concise, or pointed objection. Therefore, applying the most
liberal standard of review to Ms. Gamble’s pro se objection, the Court construes her running
narrative regarding Ms. Rene Jackson as an objection to the Magistrate’s recommendation to
dismiss her disability discrimination claim.
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In her objection, Ms. Gamble alleges that another employee, Rene Jackson, suffered
“difficult and unpleasant” working conditions, just as Ms. Gamble had. According to Ms.
Gamble, Rene Jackson is “non-disabled.” Although she is not disabled, Ms. Jackson is not a
proper comparator because she, too, was allegedly treated poorly by Sitel. To establish causation
at this stage of the litigation, Ms. Gamble must plead that a non-disabled employee was treated
better than she was, despite having similar job performance issues. Ms. Jackson’s experience
cuts against Ms. Gamble’s claim, not in favor of it, leaving the Court to conclude that Ms.
Gamble claims that Sitel treats all employees poorly. While such behavior by an employer, if
true, would be unfortunate, there is no cause of action based on poor management practices
alone. The Court finds that Ms. Gamble has still failed to allege any facts demonstrating
causation for her disability discrimination claim.
CONCLUSION
For the foregoing reasons and following full review of the Magistrate Judge’s Report and
Recommendation, the Court ADOPTS the Report and Recommendation in its entirety, resulting
in the dismissal of Ms. Gamble’s claims for breach of contract, negligence, Title VII gender
discrimination and ADA disability discrimination against Sitel, as well as all claims against Ms.
Farmer. The only claims that Ms. Gamble has sufficiently pled in her Amended Complaint are
against Sitel for failure-to-accommodate and for retaliation under the ADA. The Clerk of Court
is DIRECTED to issue process for Sitel and to deliver that process to the marshal for service
along with a copy of the Amended Complaint (ECF No. 14), the Report and Recommendation
(ECF No. 17) and this Order.

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IT IS SO ORDERED, this 22nd day of August, 2016.
s/ Sheryl H. Lipman
SHERYL H. LIPMAN
UNITED STATES DISTRICT JUDGE

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