Towns v. Tennessee Department of Agriculture
Filing
55
ORDER granting 42 Defendant's Motion for Summary Judgment; adopting 52 the Magistrate Judge's Report and Recommendation; overruling 53 Plaintiff's objections to the Report; denying as moot 18 Defendant's Motion to Dismiss for Failure to State a Claim; and denying as moot 19 Defendant's Motion to Dismiss for Failure to State a Claim. Signed by Judge Samuel H. Mays, Jr on 3/14/2019.
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
ROY A. TOWNS,
Plaintiff,
v.
TENNESSEE DEPARTMENT OF
AGRICULTURE,
Defendant.
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No. 17-2603
ORDER
Before the Court is the Magistrate Judge’s Report and
Recommendation (the “Report”), dated February 21, 2019.
No. 52.)
(ECF
The Report recommends granting Defendant Tennessee
Department of Agriculture’s (“TDA’s”) December 12, 2018 Motion
for Summary Judgment.
(ECF Nos. 42, 43.)
Plaintiff Roy A. Towns
filed an objection to the Report on March 8, 2019.
53.)
(ECF No.
TDA responded to Towns’s objection on March 13, 2019.
For the following reasons, Towns’s objection is OVERRULED.
The Magistrate Judge’s order is ADOPTED.
TDA’s Motion for
Summary Judgment is GRANTED. 1
1
Because the Court grants TDA’s Motion for Summary Judgment, it need
not address TDA’s March 27, 2018 Motion to Dismiss for Failure to State a
Claim. That Motion is DENIED AS MOOT.
I.
Background
Towns does not object to the Magistrate Judge’s findings of
fact.
Those findings are adopted.
140, 150 (1985).
See Thomas v. Arn, 474 U.S.
The following is a summary of the findings
that are relevant to Towns’s objections.
Towns worked for the Shelby County Health Department as an
environmentalist in its Environmental Health and Food Safety
Division.
for TDA.
(Report, ECF No. 52 at 452.)
Towns has never worked
(Id.; Towns Dep., ECF No. 44-2 at 356.)
Shelby County
has a contract with TDA “to assist in conducting retail food
inspections under the Tennessee Retail Food Safety Act,” and
Towns was one of the environmentalists charged with conducting
inspections.
(See ECF No. 52 at 452–53.)
The TDA-Shelby County
contract requires Shelby County to “conduct regular inspections
of every food establishment . . . within Shelby County” at
intervals set by TDA.
(Id.)
The contract requires Shelby County
to train inspectors according to a TDA curriculum within a
specified time after hiring, dictates the inspectors’ methods,
and gives TDA the right to audit up to ten percent of Shelby
County inspectors a year.
(Id. at 453.)
In October 2015, Towns and a
fellow inspector, Lillie
Roberts, were selected to be audited by TDA.
audit occurred on October 13, 2015.
(Id.)
(Id. at 454.)
The
On October 27, 2015,
Towns received an email containing his and Roberts’s individual
2
audit results.
(Id.)
In a report attached to the email, the
TDA auditor called Roberts a “true asset to the program,” said
Towns failed the audit, and requested an action plan from Shelby
County detailing the remedial training that Shelby County would
give Towns.
(Id.)
On October 28, 2015, Towns was informed
that he could no longer conduct inspections and had to attend
remedial training. (Id. at 455.)
On
November
9,
2015,
Towns
filed
a
discrimination and retaliation with the EEOC.
charge
(Id.)
of
sex
In the
EEOC charge, Towns said “[TDA] indicated that I failed an audit
and a female employee did not. I believe that my employer told
the
State
agency’s
auditor
of
my
previous
complaints
of
discrimination.” (Id.)
On August 18, 2017, Towns filed this pro se complaint
against TDA, which he amended on August 25, 2017.
9.)
(ECF No. 1,
He alleges that he suffered employment discrimination based
on sex and race and that Shelby County retaliated against him
for protected activity under Title VII, 42 U.S.C. § 200e-16.
(See generally id.)
II.
Standard of Review
A. Report and Recommendation
Congress enacted 28 U.S.C. § 636 to relieve the burden on
the federal judiciary by permitting the assignment of districtcourt duties to magistrate judges.
3
See United States v. Curtis,
237 F.3d 598, 602 (6th Cir. 2001) (citing Gomez v. United States,
490 U.S. 858, 869-70 (1989)); see also Baker v. Peterson, 67 F.
App’x 308, 310 (6th Cir. 2003).
For
dispositive
matters,
“[t]he
district
judge
must
determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.”
72(b)(3); 28 U.S.C. § 636(b)(1).
See Fed. R. Civ. P.
After reviewing the evidence,
the court is free to accept, reject, or modify the magistrate
judge’s
proposed
§ 636(b)(1).
findings
or
recommendations.
28
U.S.C.
The district court is not required to review --
under a de novo or any other standard -- those aspects of the
report and recommendation to which no objection is made.
Arn, 474 U.S. at 150.
See
The district court should adopt the
magistrate judge’s findings and rulings to which no specific
objection is filed.
See id. at 151.
B. Summary Judgment
Under Federal Rule of Civil Procedure 56, on motion of
either party, the court “shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
nonmoving
party,
having
The moving party must show that the
had
sufficient
opportunity
for
discovery, lacks evidence to support an essential element of his
4
case.
See Fed. R. Civ. P. 56(c)(1); Peeples v. City of Detroit,
891 F.3d 622, 630 (6th Cir. 2018).
When confronted with a properly supported motion for summary
judgment, the nonmoving party must set forth specific facts
showing that there is a genuine dispute for trial.
Civ. P. 56(c).
See Fed. R.
“A ‘genuine’ dispute exists when the plaintiff
presents ‘significant probative evidence’ ‘on which a reasonable
jury could return a verdict for her.’”
EEOC v. Ford Motor Co.,
782 F.3d 753, 760 (6th Cir. 2015) (en banc) (quoting Chappell
v. City of Cleveland, 585 F.3d 901, 913 (6th Cir. 2009)).
The
nonmoving party must do more than simply “show that there is
some metaphysical doubt as to the material facts.”
Lossia
v. Flagstar Bancorp, Inc., 895 F.3d 423, 428 (6th Cir. 2018)
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986)).
The nonmovant must identify specific
evidence in the record that would be sufficient to justify a
trier of fact’s decision in the nonmovant’s favor.
See Fed. R.
Civ. P. 56(c)(1); Hanson v. Madison Cty. Det. Ctr., 736 F. App'x
521, 527 (6th Cir. 2018).
Although summary judgment must be used carefully, it “is an
integral part of the Federal Rules as a whole, which are designed
to secure the just, speedy, and inexpensive determination of
every action[,] rather than a disfavored procedural shortcut.”
5
FDIC v. Jeff Miller Stables, 573 F.3d 289, 294 (6th Cir. 2009)
(internal quotation marks and citations omitted).
III.
Analysis
A. Timeliness
TDA argues that the Court should not consider Towns’s
objections because they are untimely.
(See ECF No. 54 at 477.)
The Report was docketed on February 21, 2019.
(ECF No. 52.)
The time to object expired fourteen days later on March 7, 2019.
Towns filed his objection on March 8, 2019.
(ECF No. 53.)
Ordinarily, the failure to timely object waives the right to de
novo review by the district court.
See United States v. Walters,
638 F.2d 947, 949-50 (6th Cir. 1981); Arn, 474 U.S. at 149-50.
At its discretion, a district court may nonetheless consider
a late-filed objection to a report and recommendation.
See,
e.g., Cross v. Comm'r of Soc. Sec., No. 1:07-cv-1260, 2008 WL
5071714, at *2 (W.D. Mich. Nov. 24, 2008).
The waiver rule “is
non-jurisdictional and may be excused ‘in the interests of
justice.’”
Barnes v. Mich. Dep't of Corr., No. 18-1410, 2018 WL
4899100, at *1 (6th Cir. July 17, 2018) (quoting Arn, 474 U.S.
at 155).
Given Towns’s pro se status and the delay of only one
day, the Court will excuse Towns’s failure to timely object.
6
B. Proper Standard Under Title VII
Towns argues that the Report mistakenly applies the “jointemployer” test to determine his employment status.
at 472–73.)
(ECF No. 53
He contends that the common-law agency test is the
correct standard.
(See id.)
In the Report and Recommendation
on TDA’s Motion to Dismiss, the Magistrate Judge determined that
“the common law agency test articulated in [Nationwide Mutual
Insurance Co. v. Darden, 503 U.S. 318 (1992),] . . . is the
appropriate test to apply to determine whether Towns would
qualify as TDA’s employee . . . .”
(ECF No. 24 at 227.)
In the
instant Report, the Magistrate Judge concluded that the jointemployer test should be used.
(Report, ECF No. 52 at 464.)
Title VII prohibits employers from discriminating against
“any
individual
conditions,
or
with
respect
privileges
to
of
his
compensation,
employment,
because
terms,
of
such
individual's race, color, religion, sex, or national origin[.]”
42 U.S.C. § 2000e–2(a)(1).
from
retaliating
against
Title VII also prohibits employers
their
employees
or
applicants
for
employment “because [they] ha[ve] opposed any practice made an
unlawful employment practice by [Title VII], or because [they]
made a charge, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing under [Title VII].”
Id. § 2000e–3(a).
The existence of an employment relationship
between Towns and TDA is a necessary element of Towns’s Title
7
VII claims.
See id. § 2000e-2(a); Morris v. Oldham Cty. Fiscal
Ct., 201 F.3d 784, 795 (6th Cir. 2000).
The Sixth Circuit has applied both the common-law agency
test and the joint-employer test to determine whether a plaintiff
is an employee within the meaning of Title VII.
v. Deaconess
Hosp.,
355
F.3d
496,
499–500
(6th
See Shah
Cir.
2004)
(common-law agency test); Bryson v. Middlefield Volunteer Fire
Dep’t, Inc., 656 F.3d 348, 353 (6th Cir. 2011) (common-law agency
test); Sanford v. Main Street Baptist Church Manor, Inc., 449
Fed. App'x 488, 491 (6th Cir. 2011) (assuming in dicta that the
Sixth
Circuit
recognizes
a
joint-employer
theory);
E.E.O.C.
v. Skanska USA Bldg., Inc., 550 F. App'x 253, 255 (6th Cir. 2013)
(joint-employer test).
The joint-employer test has a narrower application than the
common-law test.
The joint-employer test applies when two
independent entities simultaneously employ certain workers to
carry out the entities’ interrelated business activities.
Elkin v. McHugh, 993 F. Supp. 2d 800, 806 (M.D. Tenn. 2014).
See
If
an entity is not a plaintiff’s direct employer, it may still be
liable “under Title VII pursuant to a joint-employer theory.”
Skanska, 550 F. App'x at 256.
Entities are joint employers if
they “‘share or co-determine those matters governing essential
terms and conditions of employment.’” Id. (quoting Carrier Corp.
v. NLRB, 768 F.2d 778, 781 (6th Cir. 1985)).
8
The major factors
in this determination are the ability to hire, fire, discipline,
affect compensation and benefits, and direct and supervise work.
See id.; Sanford v. Main St. Baptist Church Manor, Inc., 449 F.
App’x 488, 495 (6th Cir. 2011).
TDA and the Shelby County Health Department cooperate to
carry out food safety inspections in Shelby County. (See Report,
ECF No. 52 at 453.)
It is undisputed, however, that Towns is
directly employed by Shelby County, not TDA.
(Id. at 464.)
TDA’s liability under Title VII depends on whether it meets the
definition of a joint-employer.
The
Magistrate
Judge
applied
the
determine Towns’s employment status.
correct
standard
to
Towns’s objection to the
standard applied in the Report is OVERRULED.
C. Towns’s Remaining Objections
The
Court
understands
the
second
section
of
Towns’s
objection memorandum to make three arguments: (1) TDA has failed
to produce sufficient evidence to warrant summary judgment in
its
favor;
(2)
the
Magistrate
Judge’s
recommended
legal
conclusions on TDA’s earlier Motion to Dismiss conflict with the
Report; and (3) the caselaw addressing employment status under
Title VII is unsettled and thereby constitutes a genuine dispute
of material fact precluding summary judgment.
at 473–74.)
9
(See ECF No. 53
Towns’s primary argument appears to be that TDA failed to
cite sufficient evidence warranting summary judgment in its
favor.
(See ECF No. 53 at 473.)
Towns contends that TDA “failed
to provide evidence disputing [Towns’s] allegations . . . .”
(Id. at 473–74.)
judgment.
Towns misunderstands the standard for summary
To succeed at this juncture, TDA must show that there
“is no genuine dispute as to any material fact” and that it “is
entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
A party asserting that a fact cannot be genuinely disputed must
support that assertion by: “(A) citing to particular parts of
material in the record . . .; or (B) showing . . . that an
adverse party cannot produce admissible evidence to support the
fact.”
Fed.
R.
Civ.
P.
56(c)(1)(A),
(B).
affirmatively disprove Towns’s allegations.
TDA-Shelby
County
contract,
Towns’s
TDA
need
not
TDA cited to the
deposition,
and
other
materials to show that no employment relationship existed between
Towns and TDA.
(See ECF No. 43 at 298–99.)
TDA argued that the
absence of an employment relationship entitles it to a judgment
as a matter of law.
(Id.)
The Magistrate Judge determined that
TDA had met its burden as the party moving for summary judgment.
The Court agrees.
Once TDA had met its burden to show that there were no
issues precluding summary judgment, the burden shifted to Towns
to show that there was a genuine issue of fact remaining for
10
trial.
The party opposing summary judgment must set forth
specific facts showing that there is a genuine issue for trial.
See Fed. R. Civ. P. 56(c).
The Magistrate Judge concluded
that Towns had failed to carry his burden in opposing summary
judgment.
Towns’s objection to the Report on the grounds that
TDA failed to produce evidence rebutting Towns’s allegations is
OVERRULED.
Towns argues that summary judgment for TDA is improper
because of an alleged conflict between the Magistrate Judge’s
earlier Report and Recommendation on TDA’s Motion to Dismiss and
the instant Report.
The earlier Report recommended that, based
on Towns’s Amended Complaint and the documents attached to it,
Towns had plausibly pled he was an employee of TDA.
No. 24 at 223–29.)
(See ECF
The instant Report, however, recommends that
summary judgment is appropriate because Towns has never been an
employee of TDA.
(See ECF No. 52 at 464–68.)
Towns argues that
the different outcomes are inconsistent because the Magistrate
Judge considered the TDA-Shelby County contract at both stages.
He contends that it is illogical to conclude that the provisions
of the contract are sufficient to state a claim for Title VII
liability against TDA, but that the same contractual provisions
are insufficient to raise a genuine issue of material fact.
Although Towns alleged sufficient facts to withstand a
motion to dismiss, it does not follow that his claims will
11
survive a motion for summary judgment.
As the Magistrate Judge
explained, “[a]t the summary judgment stage, Towns may no longer
rely on the allegations in his complaint and must instead point
to specific evidence supporting these allegations.”
at 468 n.6.)
(ECF No. 52
The Magistrate Judge concluded that the TDA-Shelby
County contract and the other evidence submitted by Towns did
not raise a genuine dispute of fact about whether Towns was an
employee
of
TDA.
There
is
Magistrate Judge’s Reports.
no
inconsistency
between
the
Towns’s objection on that basis is
OVERRULED.
Towns argues that TDA’s Motion for Summary Judgment should
be
denied
because
indecisiveness”
in
under Title VII.
well-taken.
there
the
is
caselaw
“increasing
addressing
(ECF No. 53 at 474.)
dispute
employment
and
status
Towns’s argument is not
Assuming uncertainty exists in this area of the
law, it is appropriate for the Court to determine the applicable
law
at
the
summary
judgment
stage.
The
question
of
what
constitutes the applicable law in this case is a purely legal
matter, not a genuine issue of material fact for trial.
Towns’s
objection on that ground is OVERRULED.
IV.
Conclusion
For the foregoing reasons, Towns’s objection is OVERRULED.
The Report is ADOPTED.
TDA’s Motion for Summary Judgment is
GRANTED.
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So ordered this 14th day of March, 2019.
/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE
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