Turner v. City of Memphis
Filing
43
ORDER denying 18 Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6) and (b)(7). Signed by Judge Samuel H. Mays, Jr on 1/3/2017. (Mays, Samuel) (Main Document 43 replaced on 1/3/2018) (Mays, Samuel).
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
THEYER ANN TURNER,
Plaintiff,
v.
CITY OF MEMPHIS,
Defendant.
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No. 2:17-cv-2447-SHM-dkv
ORDER
Before the Court is Defendant City of Memphis’s Motion to
Dismiss Plaintiff Theyer Ann Turner’s complaint under Federal
Rule of Civil Procedure 12(b)(6) and (b)(7).
16.)
Plaintiff responded on October 6, 2017.
Defendant replied on October 26, 2017.
(ECF Nos. 18, 18(ECF No. 32.)
(ECF No. 37.)
For the following reasons, Defendant’s Motion to Dismiss
is DENIED.
I.
Background
On October 15, 2015, Turner filed a Charge of
Discrimination (the “EEOC Charge”) with the Equal Employment
Opportunity Commission (the “EEOC”).
2.)
(EEOC Charge, ECF No. 1-
The EEOC Charge alleged that Defendant had engaged in
discrimination based on race, disability, and FMLA rights.
(Id.)
It also alleged that Defendant had retaliated by
discharging Turner.
(Id.)
The EEOC sent Turner a Dismissal
and Notice of Rights letter, dated March 30, 2017.
(ECF No. 1-
3.) 1
On June 28, 2017, Turner brought this action against
Defendant raising claims of discrimination based on race,
disability, FMLA rights, and retaliation in violation of Title
VII of the Civil Rights Act of 1964, as amended (“Title VII”),
42 U.S.C. § 2000e-5(f)(1), and the Americans with Disabilities
Act of 1990 (“ADA”), 42 U.S.C. §§ 12101, et seq., as amended by
the ADA Amendment Act of 2008 , Pub.L. No. 110-325, 122 Stat.
3553 (2008).
On August 15, 2017, Defendant filed the Motion to Dismiss.
(ECF No. 18.)
II.
Jurisdiction
Turner brings suit under the ADA and Title VII.
The Court
has federal question jurisdiction under 28 U.S.C § 1331.
Federal courts do not have jurisdiction over claims brought
under the ADA or Title VII “‘unless the claimant explicitly
1
The EEOC Dismissal and Notice of Rights letter states that Turner
has 90 days to file suit. (ECF No. 1-3.) Federal Rule of Civil Procedure
6(a)(1)(A) provides that the Court is to “exclude the day of the event that
triggers the period” of limitation. See Fed. R. Civ. P. 6(a)(1)(A). The
event that would trigger the period of limitation in this instance is the
receipt of the EEOC Dismissal and Notice of Rights letter. Turner does not
state when she received the letter. Even if she received it on March 30,
2017, the 90–day period would have begun on March 31, 2017.
2
files the claim in an EEOC charge or the claim can reasonably
be expected to grow out of the EEOC charge.’”
Jones v. Sumser
Retirement Village, 209 F.3d 851, 853 (6th Cir. 2000) (quoting
Abeita v. Transamerica Mailings, Inc., 159 F.3d 246, 254 (6th
Cir. 1998)).
Turner filed her EEOC Charge on October 15, 2015.
(EEOC Charge, ECF No. 1-2.)
Her EEOC Charge alleges
discrimination based on race in violation of Title VII,
discrimination based on disability in violation of the ADA, and
retaliation.
(Id.)
If the alleged discrimination occurred more than 180 days
before the plaintiff files an EEOC charge, claims based on that
discrimination are barred.
See Carson v. Sim, 778 F.Supp.2d
85, 95 (D.D.C. 2011) (ADA claims); Alexander v. Local 496,
Laborers' Int'l Union of N. Am., 177 F.3d 394, 407 (6th Cir.
1999) (Title VII claims).
“However, if the alleged unlawful
practice occurs in a ‘deferral state’ . . . which has enacted
its own laws prohibiting discrimination in employment, the
plaintiff must file suit within 300 days of the alleged
discriminatory act.”
Alexander, 177 F.3d at 407l; see also
Carson, 778 F. Supp. 2d at 95 (applying that limitations period
to ADA claims).
Tennessee is a deferral state.
Howlett v.
Holiday Inns, Inc., 49 F.3d 189, 197 (6th Cir. 1995).
“The
three-hundred-day period begins to run from the date of ‘the
3
alleged unlawful employment practice.’”
Broadway v. United
Parcel Serv., Inc., 499 F.Supp.2d 992, 999 (M.D. Tenn. 2007)
(internal citation omitted).
Turner filed her EEOC Charge 290 days after the alleged
unlawful termination.
Her EEOC Charge was timely.
The Court
has federal question jurisdiction under 28 U.S.C § 1331.
III. Standard of Review
A. Motion to Dismiss for Failure to State a Claim
Rule 12(b)(6) allows dismissal of a complaint that
“fail[s] to state a claim upon which relief can be granted.”
A
Rule 12(b)(6) motion permits the “defendant to test whether, as
a matter of law, the plaintiff is entitled to legal relief even
if everything alleged in the complaint is true.”
Mayer v.
Mylod, 988 F.2d 635, 638 (6th Cir. 1993) (citing Nishiyama v.
Dickson Cnty., 814 F.2d 277, 279 (6th Cir. 1987)).
A motion to
dismiss is designed to test whether the plaintiff has pled a
cognizable claim and allows the court to dismiss meritless
cases that would waste judicial resources and result in
unnecessary discovery.
See Scheid v. Fanny Farmer Candy Shops,
Inc., 859 F.2d 434, 436 (6th Cir. 1988).
When evaluating a motion to dismiss for failure to state a
claim, the Court must determine whether the complaint alleges
4
“sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’”
Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
If a court decides, in light of its
judicial experience and common sense, that the claim is not
plausible, the case may be dismissed at the pleading stage.
Iqbal, 556 U.S. at 679.
The “[f]actual allegations must be
enough to raise a right to relief above [a] speculative level.”
Ass'n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d
545, 548 (6th Cir. 2007) (quoting Twombly, 550 U.S. at 555).
A
claim is plausible on its face if “the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
A
complaint need not contain detailed factual allegations.
However, a plaintiff's “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements,
do not suffice.”
Id.
When deciding a 12(b)(6) motion to
dismiss, the court may look to “matters of public record,
orders, items appearing in the record of the case and exhibits
attached to the complaint” for guidance.
Barany-Snyder v.
Weiner, 539 F.3d 327, 332 (6th Cir. 2008) (quoting Amini v.
Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001)).
5
B. Motion to Dismiss for Failure to Join Necessary Party
“[T]he resolution of the question of joinder under Rule
19, and thus of dismissal for failure to join an indispensable
party under Rule 12(b)(7), involves a three-step process.”
Keweenaw Bay Indian Cmty. v. Michigan, 11 F.3d 1341, 1345 (6th
Cir. 1993).
“First, the court must determine whether the
person or entity is a necessary party under Rule 19(a).”
Glancy v. Taubman Ctrs., Inc., 373 F.3d 656, 666 (6th Cir.
2004).
Under Rule 19(a), a party is “necessary” if:
(A) in that person's absence, the court cannot accord
complete relief among existing parties; or
(B) that person claims an interest relating to the
subject of the action and is so situated that
disposing of the action in the person's absence may:
(i) as a practical matter impair or impede the
person's ability to protect the interest; or
(ii) leave an existing party subject to a
substantial risk of incurring double, multiple,
or otherwise inconsistent obligations because of
the interest.
Fed. R. Civ. P. 19(a).
“Second, if the person or entity is a necessary party, the
court must then decide if joinder of that person or entity will
deprive the court of subject matter jurisdiction.”
Id. “Third,
if joinder is not feasible because it will eliminate the
court's ability to hear the case, the court must analyze the
Rule 19(b) factors to determine whether the court should ‘in
6
equity and good conscience’ dismiss the case because the
absentee is indispensable.”
IV.
Id.
Analysis
A. Motion to Dismiss for Failure to State a Claim
1. Evidentiary Matters
Defendant argues that Plaintiff “fails to allege a
cognizable claim against the City of Memphis because Plaintiff
was employed by the Memphis City Council.”
(ECF No. 18 at 54.)
Defendant attaches fifteen exhibits to its Motion to Dismiss:
four ordinances (ECF Nos. 18-1 – 18-4), the Memphis City
Council Rules of Procedure (ECF No. 18-5), six letters about
Plaintiff’s application and dismissal (ECF Nos. 18-6 – 18-9,
18-13 – 18-14), two forms about Plaintiff’s employment (ECF
Nos. 18-10 – 18-11), a portion of the City of Memphis’s
Personnel Manual Policy (ECF No. 18-12), and the Memphis City
Council Operating Budget – Division Summary (ECF No. 18-15).
Defendant attaches to its reply an Affidavit by the Staff
Administrator for the Memphis City Council, Jauness Keplinger,
and an additional portion of what appears to be a Personnel
Manual.
(ECF Nos. 37-1 – 37-2.)
Plaintiff contends that Defendant’s reference to materials
outside the pleadings should be disregarded or that the Motion
should be converted to a motion for summary judgment.
7
(ECF No.
32-1 at 206-07.)
Defendant contends that the additional
materials can be considered under Rule 12(b)(7), although not
Rule 12(b)(6), without conversion.
86.) 2
(See ECF No. 37 at 284-
Defendant therefore advocates for the Court to make its
Rule 12(b)(7) determination before making its Rule 12(b)(6)
determination.
(Id. at 284.)
For the reasons discussed below,
the order of analysis has no effect on the Court’s
determination.
Ordinarily, a court may not consider matters outside the
pleadings in deciding a Rule 12(b)(6) motion to dismiss unless
the motion is treated as a motion for summary judgment under
Rule 56.
Gavitt v. Born, 835 F.3d 623, 640 (6th Cir. 2016).
However, “a court may consider exhibits attached to the
complaint, public records, items appearing in the record of the
case, and exhibits attached to defendant's motion to dismiss,
so long as they are referred to in the complaint and are
central to the claims contained therein, without converting the
motion to one for summary judgment.”
Id.
It is “improper for
a court to consider hearsay statements when ruling on a motion
to dismiss.”
Beydoun v. Wataniya Restaurants Holding, Q.S.C.,
768 F.3d 499, 506 (6th Cir. 2014).
2
Unless otherwise noted, all citations to the record refer to the
“PageID” number.
8
There is no need to convert the Motion to Dismiss to a
motion for summary judgment.
The six letters about Plaintiff’s
application and dismissal (ECF Nos. 18-6 – 18-9, 18-13 – 1814), the two forms about Plaintiff’s employment (ECF Nos. 18-10
– 18-11), the Memphis City Council Operating Budget – Division
Summary (ECF No. 18-15), the Personnel Manual excerpts (ECF
Nos. 18-12 & 37-2), and the affidavit cannot be considered
because they are inadmissible hearsay or are not referred to in
the complaint.
F.3d at 506. 3
Stein, 2017 WL 4543697, at *3; Beydoun, 768
They are not part of the record for purposes of
Defendant’s Motion to Dismiss under Rule 12(b)(6).
The four ordinances are not referred to in the complaint
or central to the claims in the complaint, but can be
judicially noticed if they fall under Federal Rule of Evidence
201.
Rule 201 provides that “[a] judicially noticed fact must
be one not subject to reasonable dispute in that it is either
(1) generally known within the territorial jurisdiction of the
trial court or (2) capable of accurate and ready determination
by resort to sources whose accuracy cannot reasonably be
3
Defendant attaches a letter, on the letterhead “City of Memphis,”
signed by Mayor A C Wharton, Jr., informing Plaintiff that she will not be
re-appointed. (ECF No. 18-13.) That letter is not referred to in
Plaintiff’s complaint. Plaintiff’s complaint refers instead to a December
30, 2014 letter from Lisa Geater, Council Administrator, terminating
Plaintiff’s employment. (ECF No. 1 ¶ 22 (“[A] letter from Geater was
delivered to Plaintiff. . . .”).) At the motion to dismiss phase, the
Court takes the allegations in the complaint as true and cannot consider
the Wharton letter.
9
questioned.”
Fed. R. Evid. 201(b).
Defendant attaches an
ordinance to amend, labeled “Ordinance No. 5219,” which states,
“the Memphis City Council has broad legislative authority that
provides for the creation, appointment and regulation of its
own staff . . . .”
(ECF No. 18-3 at 78.)
That Ordinance is
not generally known within the Court’s territorial
jurisdictional and is not capable of accurate and ready
determination by resort to sources whose accuracy cannot
reasonably be questioned.
There is no evidence of Ordinance
5219 or its adoption on the Memphis, TN Municode website. 4
That Ordinance is not a public record under Federal Rule of
Evidence 201.
It is not part of the record for purposes of
Defendant’s Motion to Dismiss under Rule 12(b)(6).
The
remaining three ordinances are capable of accurate and ready
determination on the Municode website.
They are public records
and can be considered.
2. Merits
Title VII and the ADA make employers liable.
Title VII
prohibits “employer[s]” from engaging in “unlawful employment
practice[s],” including “fail[ing] or refus[ing] to hire or to
discharge any individual, or otherwise to discriminate against
any individual with respect to his compensation, terms,
4
See https://library.municode.com/tn/memphis/code_of_ordinances.
10
conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national origin.”
Id. § 2000e-2(a)(1).
Under the ADA, “[n]o covered entity shall
discriminate against a qualified individual on the basis of
disability in regard to job application procedures, the hiring,
advancement or discharge of employees, employee compensation,
job training, and other terms, conditions, or privileges of
employment.”
42 U.S.C. § 12112(a).
The ADA defines “covered
entity” as an “employer, employment agency, labor organization,
or joint labor-management committee.”
Id. § 12112(a).
Turner
can maintain Title VII and ADA claims against the City of
Memphis if she can establish that the City of Memphis was her
employer.
See Sutherland v. Mich. Dep't of Treasury, 344 F.3d
603, 611 (6th Cir. 2003).
Whether the City of Memphis was
Turner’s employer is a question of federal law.
Armbruster v.
Quinn, 711 F.2d 1332, 1339 (6th Cir. 1983).
Title VII defines “employer” as “a person engaged in an
industry affecting commerce who has fifteen or more employees
for each working day in each of twenty or more calendar weeks
in the current or preceding calendar year, and any agent of
such a person.”
42 U.S.C. § 2000e(a).
Neither party disputes
that Defendant is an employer as defined by Title VII and the
ADA.
11
Title VII defines an employee as “an individual employed
by an employer.”
42 U.S.C. § 2000e(f).
“The circularity of
this definition renders it quite unhelpful in explaining whom
Congress intended to include as an employee in the workplace.”
Marie v. Am. Red Cross, 771 F.3d 344, 352 (6th Cir. 2014)
(citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323
(1992)). 5
When Congress uses the term “employee” without
defining it with precision, courts should presume “‘that
Congress intended to describe the conventional master-servant
relationship as understood by common-law agency doctrine.’”
Id. at 352 (quoting Darden, 503 U.S. at 322–23). 6
Although a direct employment relationship or common-law
agency relationship is a basis for liability under Title VII
and the ADA, “courts have fashioned various doctrines by which
a defendant that does not directly employ a plaintiff may still
be considered an ‘employer.’”
Swallows v. Barnes & Noble Book
Stores, 128 F.3d 990, 993 (6th Cir. 1997); Grace v. USCAR, 521
5
“‘Because Title VII, the ADEA, and the ADA define employer
essentially the same way,’ [the Sixth Circuit relies] on case law developed
under all three statutes.” Swallows v. Barnes & Noble Book Stores, 128
F.3d 990, 993 n.2 (6th Cir. 1997) (quoting Wathen v. Gen. Elec. Co., 115
F.3d 400, 404 n.6 (6th Cir. 1997)).
6
The common-law agency test requires courts to consider and weigh all
aspects of the alleged employment relationship, including: remuneration,
the skills required, location of the work, control of production, duration
of the relationship, provision of benefits, and tax treatment. Darden, 503
U.S. at 323-24; Bryson v. Middlefield Volunteer Fire Dept., Inc., 656 F.3d
348, 352–53 (6th Cir. 2011) (applying Darden test in Title VII context).
No single factor is dispositive. Bryson, 656 F.3d at 355. “The degree of
importance of each factor will vary depending on the occupation and the
factual context in which the services are performed.” Id. at 354.
12
F.3d 655, 665 (6th Cir. 2008); Sanford v. Main St. Baptist
Church Manor, Inc., 449 F. App’x 488, 495 (6th Cir. 2011).
In
the Sixth Circuit, multiple interrelated companies can be
treated as a single or joint employer.
Swallows, 128 F.3d at
993; Grace, 521 F.3d at 665; Sanford, 449 F. App’x at 495.
Courts evaluate four factors in determining interrelatedness:
“(1) interrelation of operations, i.e., common offices, common
record keeping, shared bank accounts and equipment; (2) common
management, common directors and boards; (3) centralized
control of labor relations and personnel; and (4) common
ownership and financial control.”
Swallows, 128 F.3d at 994.
“None of these factors is conclusive, and all four need not be
met in every case.”
Id.
“The joint-employer and single-employer doctrines are
analytically distinct.”
Sanford, 449 F. App’x at 495.
“The
joint-employer doctrine involves a business that maintains
sufficient control over some or all of the formal employees of
another business as to qualify as those employees’ employer;
unlike in the single-employer context, the two businesses are
in fact independent.”
Id. at 491.
The Sixth Circuit has
decided that “[w]hether a joint employer relationship exists
depends upon ‘such factors as the supervision of the employees’
day to day activities, authority to hire or fire employees,
13
promulgation of work rules and conditions of employment, work
assignments, and issuance of operating instructions.’”
N.L.R.B. v. Centra, Inc., 954 F.2d 366, 370 n.2 (6th Cir. 1992)
(quoting W.W. Grainger, Inc. v. NLRB, 860 F.2d 244, 247 (7th
Cir. 1988)).
The Sixth Circuit has also decided that there is
joint employment when “two or more employers exert significant
control over the same employees—where from the evidence it can
be shown that they share or co-determine those matters
governing essential terms and conditions of employment.”
Carrier Corp. v. N.L.R.B., 768 F.2d 778, 782 (6th Cir. 1985);
see Elkin v. McHugh, 993 F. Supp. 2d 800, 806 (M.D. Tenn. 2014)
(citation and internal quotation omitted) (“To be a joint
employer, [Title] VII requires the two entities to share or codetermine those matters governing essential terms and
conditions of employment. . . .
The major factors are the
authority to hire, fire, discipline, affect compensation and
benefits, and direct and supervise performance.”).
Defendant argues that it is not Turner’s employer because
the Memphis City Council is an autonomous, legislative branch
of the City of Memphis.
(See ECF No. 18-16 at 154-57.)
Defendant also represents that Memphis City Council employees
are exempt from civil service.
(Id. at 157.)
14
Turner alleges in her complaint that Defendant is her
employer and that Defendant hired, employed, paid, and provided
benefits to her and other staff “occupying administrative
positions at the Memphis City Council.”
(ECF No. 1 ¶¶ 8, 29.)
Those factual allegations allow the Court to draw the
reasonable inference that Defendant is, at least, a joint
employer potentially liable on Turner’s Title VII and ADA
claims.
See Iqbal, 556 U.S. at 678.
Because Turner has alleged facts supporting her claim that
the City is potentially liable as her joint employer, and
because Defendant has cited no legal authority to the contrary,
Defendant’s Motion to Dismiss Plaintiff’s complaint under Rule
12(b)(6) is DENIED.
B. Motion to Dismiss for Failure to Join Necessary Party
Defendant argues that Turner’s complaint should be
dismissed because the Memphis City Council is a necessary
party.
(ECF No. 37 at 297.)
Defendant contends that the Court
cannot accord injunctive relief in the absence of the Memphis
City Council.
(Id.)
Defendant also contends that the Memphis
City Council does not qualify as an “employer” under Title VII
or the ADA, and would ultimately need to be dismissed.
ECF No. 18 at 54.)
15
(See
Dismissal under Rule 12(b)(7) is appropriate where: (1) a
necessary party has not been joined, (2) joinder of that party
would destroy the court’s subject matter jurisdiction, and (3)
equity and good conscience favor dismissal.
Even if the
Memphis City Council were a necessary party, joining it would
not destroy the Court’s subject matter jurisdiction.
remains a party to this action.
See infra.
Defendant
Turner’s Title VII
and ADA claims against Defendant establish the Court’s federal
question jurisdiction under 28 U.S.C. § 1331.
Joinder of the
Memphis City Council would not deprive the Court of federal
question jurisdiction.
Defendant’s Motion to Dismiss under
Rule 12(b)(7) for failure to join the Memphis City Council is
DENIED.
V.
Conclusion
For the foregoing reasons, Defendant’s Motion to Dismiss
under Rule 12(b)(6) and (b)(7) is DENIED.
So ordered this 3rd day of January, 2018.
/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT COURT JUDGE
16
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