Opinion

Arteaga v. Cinram-Technicolor

Court: District Court, M.D. Tennessee
Filed: Jan 28, 2020
Cited by: 0 cases
Authority: More cited than 29.6%

articulating pleading standard for discrimination claims under Title VII

How later courts described this case

articulating pleading standard for discrimination claims under Title VII
involving employer’s allegedly retaliatory refusal to transfer plaintiff to a different part of the glass plant where he worked, which occurred before plaintiff filed a charge of discrimination with the EEOC
explaining that “‘offhand comments and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment’” (quoting Faragher, 524 U.S. at 788)
“Title VII is not meant to be a ‘general civility code.’” (quoting Faragher, 524 U.S. at 788)

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

WENDY ARTEAGA,

Plaintiff, Case No. 3:19-cv-00349

v. Judge Eli J. Richardson

Magistrate Judge Alistair E. Newbern

CINRAM-TECHNICOLOR, et al.,

Defendants.

To: The Honorable Eli J. Richardson, District Judge

REPORT AND RECOMMENDATION

This civil rights action stems from pro se and in forma pauperis Plaintiff Wendy Arteaga’s

employment with Defendant Technicolor Home Entertainment Services Southeast, LLC

(Technicolor). 1 (Doc. No. 1.) Arteaga alleges that Technicolor and Defendant Alliance HR, Inc.

(Alliance), the employment agency that placed her with Technicolor, failed to promote her,

subjected her to unequal employment terms and conditions, and ultimately terminated her

employment because of her race and Mexican nationality. (Id.) Arteaga also alleges that she was

terminated for filing a charge of discrimination. (Id.) Arteaga asserts claims against the defendants

under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Id.)

Alliance has answered the complaint (Doc. No. 12). Technicolor has filed a motion to

dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that Arteaga’s complaint fails to

differentiate between the defendants and, regardless, does not sufficiently allege that she was

1 Arteaga’s complaint identifies the defendants as Cinram-Technicolor and Alliance HR

Services. (Doc. No. 1.) The defendants have clarified that they are properly named as Technicolor

Home Entertainment Services Southeast, LLC, and Alliance HR, Inc. (Doc. Nos. 12, 17.)

mistreated because of her race or Mexican nationality or that Technicolor retaliated against her.

(Doc. Nos. 17, 18.) Arteaga filed a response in opposition to Technicolor’s motion to dismiss (Doc.

No. 23), in which she expands significantly on the allegations of her complaint, and Technicolor

filed a reply (Doc. No. 24). Because Arteaga has not adequately linked the mistreatment she claims

to have experienced to her race or national origin, and because she has not plausibly alleged that

her firing was retaliatory, the Magistrate Judge will recommend that Technicolor’s motion to

dismiss be granted. The Magistrate Judge will also recommend, based upon a sua sponte review

of the complaint under 28 U.S.C. § 1915(e)(2), that Arteaga’s claims against Alliance be dismissed

for the same reasons. The dismissal of Arteaga’s claims should be without prejudice to her filing

an amended complaint that remedies the deficiencies discussed below.

I. Background

A. Factual History

The factual context for this action extends across multiple filings, including Arteaga’s

complaint (Doc. No. 1), the charge of discrimination that she filed with the Tennessee Human

Rights Commission (THRC) (Doc. No. 18-1), which was ultimately transferred to the Equal

Employment Opportunity Commission (EEOC), and her response in opposition to Technicolor’s

motion to dismiss (Doc. No. 23). In the interest of clarity, and given Arteaga’s pro se status, the

following factual history draws from those filings to provide a chronological narrative of relevant

events. See Kovac v. Superior Dairy, Inc., 930 F. Supp. 2d 857, 862–63 (N.D. Ohio 2013) (finding

that a charge of employment discrimination filed with the EEOC is a public record of which the

Court can take judicial notice in ruling on a motion to dismiss); see also Simpson v. Baskin, No.

3:17-cv-01077, 2018 WL 1070897, at *2 (M.D. Tenn. Feb. 26, 2018) (considering allegations

outside of pro se plaintiff’s complaint in ruling on Rule 12(b)(6) motion because plaintiff could

move to amend her complaint to include those allegations), report and recommendation adopted

by 2018 WL 1288908 (M.D. Tenn. Mar. 13, 2018). The allegations of Arteaga’s complaint are

taken as true for the purpose of ruling on Technicolor’s motion to dismiss.

Alliance placed Arteaga in a position with Technicolor sometime in 2015. (Doc. No. 1.)

Although the precise nature of Arteaga’s employment with Technicolor is not clear from any of

her filings, it appears to have involved packing and transporting boxes.2 (Doc. No. 23.) In 2017,

Arteaga began experiencing hostility at work. (Doc. No. 1.) Arteaga was wrongly accused of theft,

called a “rat” and told “to keep quiet” after she overheard “allegations by company employees”

and “witnessed company irregularities . . . .” (Id. at PageID# 4.) Her car was vandalized with the

message “F[**]k stupped [sic][.]” (Id. at PageID# 5.) She was also subjected to “spy[ing],

intimidation, hate[,] false accusation[s,] insinuations[,] constant bullying[,] defamation[,]

harassment[,] and persecution” and overheard unspecified “negative statements about

Mexicans[.]” (Id. at PageID# 4.)

Sometime in 2017, Arteaga went to Manager Leboardo Campos’s office to complain that

she was being asked to carry boxes that were heavier than those given to Technicolor’s male

employees. (Doc. No. 23.) Campos joked that this “was due to women’s liberation.” (Id. at

PageID# 90.) Later that same day, Campos called Arteaga back to his office and falsely accused

her of being absent from work various times. (Doc. No. 23.) Campos further accused her of

“working with a password that was not [hers]” even though another manager named Elida Guerra

had previously informed Arteaga that Technicolor had “made [Arteaga] a new password.” (Id. at

PageID# 90.) Campos also asked Arteaga “if [she] had [p]apers.” (Id.) Arteaga cried after leaving

2 The charge of discrimination that Arteaga filed with the THRC states that her title when

hired was “[p]icker” and that her title as of January 2018 was “driver[.]” (Doc. No. 18-1,

PageID# 81.)

Campos’s office “because of the way he spoke to [her], the way he treated [her,] and . . . everything

he . . . said to [her].” (Id.)

Arteaga was absent from work on August 25, 2017, but returned on Monday, August 28,

2017. (Doc. No. 23.) Arteaga noticed that she was being followed wherever she went. (Id.) After

loading her first group of boxes and going “back for the second group[,]” she discovered that the

boxes “were no longer on the pallet for [her] machine” because “[s]omeone had taken them.” (Id.

at PageID# 91.) When Arteaga asked her coworkers whether they had seen the boxes, they said

they had not and mocked her. (Doc. No. 23.) Arteaga later discovered that someone named

Seomara had taken the boxes. (Id.)

Arteaga complained about the incident to a supervisor named Michael Irwin, who angrily

explained that Seomara was just trying to be helpful. (Id.) Arteaga disagreed, at which point Irwin

took Arteaga to Campos’s office. (Id.) Campos “interrogated [Arteaga] as if [she] were a criminal,”

repeatedly stating that Seomara took the boxes because Arteaga had gone to the bathroom. (Id. at

PageID# 91.) Arteaga told Campos that he had not understood her. (Doc. No. 23.) “Then Campos

raised his voice and said to [her], ‘Don’t talk to me like that. When it’s good, I can be very good

and when it’s bad, I can be a d[**]k (ojete).’” (Id. at PageID# 91.) In Spanish, “the word ojete is a

very strong, gross, offensive and vulgar word to say to a woman or in front of a woman, especially

if it is coming from a superior or a boss.” (Id.) Campos told Arteaga that he could “‘question [her]

as many times as [he] want[ed] to see if [she was] telling [him] the [t]ruth.’” (Id.) Campos then

brought Arteaga to Technicolor’s human resources office, “supposedly for having yelled at him.”

(Id.)

At the office, a human resources employee identified Arteaga as the Wendy “that no one

likes, that they make feel real bad, [and] that everyone hates” and then began to laugh. (Id. at

PageID# 92.) “Police officials interrogated [Arteaga], wanting to get [her] to accept what they said,

what they were accusing [her] of—that [she had gone] to the bathroom, . . . got[ten] mad, [and]

yelled at manager . . . Campos.” (Id.) Arteaga informed them that “they didn’t know the complete

story,” to which the officials responded that she could “write a letter to the agency.” (Id.) Before

leaving, Arteaga signed a paper that she thinks “was a type of warning[;]” she did not receive a

copy. (Id.)

Two days later, a woman named Maria “from the Alliance HR Office” approached Arteaga

at work to have Arteaga “sign a paper where they accused [her] of bribery[ ] [and] unsatisfactory

work . . . .” (Id.) Arteaga asked what bribery was, but Maria “did not explain it to [her].” (Id.)

Arteaga repeatedly asked for a copy of the document containing the accusations, but Maria said

that it was against Alliance and Technicolor policy to provide a copy. (Doc. No. 23.) Arteaga

signed the document after Maria stated that Technicolor could make Arteaga leave if she refused

to do so. (Id.) Arteaga ultimately received a copy of the document. (Id.)

On January 24, 2018, Arteaga filed a charge of discrimination against Technicolor with the

THRC, accusing Technicolor of harassment, intimidation, and failure to promote her based on her

Mexican nationality. (Doc. Nos. 1, 18-1.) The charge, which Arteaga originally completed in

Spanish, includes the following English translation of Arteaga’s summary of Technicolor’s

discriminatory actions:

I want to file a complaint with the Cinram-Technicolor Company for workplace

harassment. They foster, permit, encourage, promote, and support the harassment,

intimidation, bullying, and hate at their installations. They have given their

permission and the right to all persons and individuals to harass me frequently and

persistently. I have been the target of ridicule, their insinuations, and their

defamatory expressions, which have put my integrity, honesty, and reputation in

doubt and in danger. They have been treating me as if I were a criminal, they circle

around me, they spy on me, they follow me as if they were hunting an animal. I

hold responsible the Cinram-Technicolor Company and the supervisory personnel

in charge, whether they be called Bosses, Managers, Supervisors, Leaders and

Employees of any kind, and at all levels of the different departments, who have

participated in the harassing, bullying, intimidation, and hate. They have had me

under psychological and social torture, impeding me from doing my job in a healthy

manner. As an employee of this company, I have every right to be treated with

respect and dignity, free of all advantageous abuses.

(Doc. No. 18-1, PageID# 82.) The THRC notified Technicolor’s human resources administrator

of the charge in a June 14, 2018 letter (Doc. No. 18-1) and transferred Arteaga’s case to the EEOC

in October 2018 (Doc. No. 1). The EEOC issued Arteaga a right-to-sue letter on March 20, 2019.

(Doc. No. 1-1.) Arteaga was fired from her job on April 29, 2019. (Doc. No. 1.)

B. Procedural History

Arteaga initiated this action on the day that she was fired by filing a form complaint for

employment discrimination naming Technicolor and Alliance as defendants (id.), an application

to proceed in forma pauperis (Doc. No. 2), and a motion to appoint counsel (Doc. No. 3). Arteaga

checked the boxes on the form complaint associated with termination of employment, failure to

promote, unequal terms and conditions of employment, and retaliation. (Doc. No. 1.) Arteaga seeks

an investigation into the defendants’ conduct as well as damages. (Id.)

The Court granted Arteaga’s application to proceed in forma pauperis and reviewed the

complaint under 28 U.S.C. § 1915(e)(2). (Doc. No. 6.) The Court found that, “[a]lthough the

factual allegations in support of [Arteaga’s] claims are somewhat conclusory,” and although it was

not clear “whether she has fully exhausted all her claims” or even “which [defendant] actually

functioned as [her] employer[,]” the complaint states colorable claims for discrimination and

retaliation under Title VII. (Id. at PageID# 21.) However, the Court reached that conclusion only

for purposes of screening under 28 U.S.C. § 1915(e)(2), emphasizing that it could later dismiss

Arteaga’s claims for any of the reasons set forth in § 1915(e)(2) or upon the filing of a motion to

dismiss. (Doc. No. 6.) The Court also denied Arteaga’s motion to appoint counsel without

prejudice. (Id.)

Alliance answered Arteaga’s complaint (Doc. No. 12), and Technicolor filed a motion to

dismiss (Doc. No. 17), to which it attached the charge of discrimination that Arteaga filed with the

THRC (Doc. No. 18-1). Technicolor argues that the allegations in Arteaga’s complaint regarding

discriminatory treatment fail to state a claim under Title VII because they do not identify specific

“instances of . . . alleged discrimination or harassment based on [her] national origin or race . . . .”

(Doc. No. 18, PageID# 63.) With respect to Arteaga’s retaliation claim, Technicolor argues that

Arteaga failed to exhaust it by presenting it to the EEOC. (Doc. No. 18.) Technicolor further argues

that, regardless of whether Arteaga properly exhausted her retaliation claim, she “has provided no

specific facts in her Complaint about the alleged retaliation . . . .” (Id. at PageID# 67.)

Arteaga’s response in opposition to Technicolor’s motion to dismiss consists of several

pages of additional allegations about her employment. (Doc. No. 23.) In its reply, Technicolor first

argues that Arteaga failed to respond to any of the arguments raised in its motion to dismiss and

that the Court should not consider the additional factual allegations in Arteaga’s response in ruling

on that motion. (Doc. No. 24.) Alternatively, Technicolor argues that the “additional allegations

are still unconnected to [Arteaga’s] race and/or national origin and, thus, still do not support her

claims.” (Id. at PageID# 96 n.1.)

II. Legal Standard

In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court

must “construe the complaint in the light most favorable to the plaintiff, accept all well-pleaded

factual allegations in the complaint as true, and draw all reasonable inferences in favor of the

plaintiff.” Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016). Federal Rule of

Civil Procedure 8(a)(2) requires only that a complaint contain “a short and plain statement of the

claim[.]” Fed. R. Civ. P. 8(a)(2). However, “[t]he factual allegations in the complaint need to be

sufficient to give notice to the defendant as to what claims are alleged, and the plaintiff must plead

‘sufficient factual matter’ to render the legal claim plausible, i.e., more than merely possible.” Fritz

v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (quoting Ashcroft v. Iqbal, 556

U.S. 662, 677 (2009)).

“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more

than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). A plaintiff must plead more than “labels

and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertions

devoid of further factual enhancement.” Id. (quoting Twombly, 550 U.S. at 555, 557). “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.

Because Arteaga proceeds pro se, the Court construes her filings “‘liberally’” and holds

her complaint “‘to less stringent standards than formal pleadings drafted by lawyers[.]’” Erickson

v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). There are

limits to liberal construction, however, and “courts are not required to conjure up unpleaded

allegations or guess at the nature of an argument.” Brown v. Cracker Barrel Rest., 22 F. App’x

577, 578 (6th Cir. 2001) (citing Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)).

III. Analysis

To state a claim for discrimination or retaliation under Title VII, Arteaga must allege

sufficient factual content for the Court to reasonably infer that Technicolor discriminated against

her “with respect to [her] compensation, terms, conditions, or privileges of employment, because

of [her] race, color, religion, sex, or national origin[,]” 42 U.S.C. § 2000e-2(a)(1), or discriminated

against her because she “opposed” any such discrimination, id. § 2000e-3(a). See Keys v. Humana,

Inc., 684 F.3d 605, 610 (6th Cir. 2012) (articulating pleading standard for discrimination claims

under Title VII); Trevino v. Austin Peay State Univ., No. 3:11-cv-01139, 2012 WL 951488, at *3–

4 (M.D. Tenn. Mar. 19, 2012) (articulating pleading standards for discrimination and retaliation

claims under Title VII). Arteaga need not plead a prima facie case of discrimination under

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to survive Technicolor’s motion to

dismiss. (Doc. No. 18.) In Swierkiewicz v. Sorema N.A., the Supreme Court held that “[t]he prima

facie case . . . is an evidentiary standard, not a pleading requirement.” 534 U.S. 506, 510 (2002);

Keys v. Humana, Inc., 684 F.3d 605, 609 (6th Cir. 2012) (same). “Thus, ‘the ordinary rules for

assessing the sufficiency of a complaint apply[,]’” Pedreira v. Ky. Baptist Homes for Children,

Inc., 579 F.3d 722, 728 (6th Cir. 2009) (quoting Swierkiewicz, 534 U.S. at 511), and the Court

considers only whether Arteaga “has sufficiently pled ‘a claim to relief that is plausible on its

face[,]’” id. (quoting Twombly, 550 U.S. at 570). See Navarro-Teran v. Embraer Aircraft Maint.

Servs., Inc., 184 F. Supp. 3d 612, 620 (M.D. Tenn. 2016) (explaining that, for plaintiff to survive

motion to dismiss his Title VII claim, he must “plead plausible facts supporting the material

elements” of that claim).

Arteaga asserts that Technicolor failed to promote her and ultimately terminated her

employment because of her race and Mexican nationality. But, as Technicolor argues (Doc. No.

18), Arteaga pleads no facts to support that conclusion. She does not allege the position for which

she was denied a promotion, when that happened, or who was involved in the promotion decision,

nor does she describe any of the circumstances surrounding her firing on April 29, 2019. Arteaga

has thus failed to state a claim for discriminatory failure-to-promote or termination of her

employment. See Wells v. Steve Madden, Ltd., No. 3-15-0366, 2015 WL 4476597, at *3 (M.D.

Tenn. July 22, 2015) (finding that plaintiff had failed to plead a 42 U.S.C. § 1981 claim based on

discriminatory termination where plaintiff had not alleged, among other things, “when such

termination occurred, by whom she was fired, what reason was given for her firing, [or] how the

firing was connected to her race or her protected activity . . .”); Howse v. Metro Gov’t Police Dep’t,

No. 3:13-01287, 2014 WL 1715449, at *2 (M.D. Tenn. Apr. 30, 2014) (granting motion to dismiss

plaintiff’s failure-to-promote claim where he had alleged neither “that he applied for and was

qualified for these promotions nor that he was considered for and denied the position”).

The gist of Arteaga’s allegations is that she was repeatedly harassed at work. But for such

harassment to be actionable under Title VII as a hostile work environment claim, it must “‘amount

to discriminatory changes in the terms and conditions of employment.’” Navarro-Teran, 184 F.

Supp. 3d at 623 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)); see also

Trotter v. Cargill, Inc., 699 F. Supp. 2d 1043, 1055 (W.D. Tenn. 2010) (“Title VII is not meant to

be a ‘general civility code.’” (quoting Faragher, 524 U.S. at 788)). To state such a claim, Arteaga

must plead that

“(1) she belonged to a protected group, (2) she was subject to unwelcome

harassment, (3) the harassment was based on [her protected status], (4) the

harassment was sufficiently severe or pervasive to alter the conditions of

employment and create an abusive working environment, and (5) the defendant

knew or should have known about the harassment and failed to act.”

Boxill v. O’Grady, 935 F.3d 510, 520 (6th Cir. 2019) (alteration in original) (quoting Waldo v.

Consumers Energy Co., 726 F.3d 802, 813 (6th Cir. 2013)).

Technicolor rightly argues that Arteaga has failed to provide sufficient factual content to

support a hostile work environment claim. Arteaga certainly claims that she was mistreated—

called a rat, mocked, surveilled, interrogated, wrongfully accused of bribery and unsatisfactory job

performance, and subjected to offensive vandalism. But Arteaga fails to provide factual allegations

plausibly linking any of that mistreatment to her race or Mexican nationality. See McDaniel v.

Potter, Nos. 1:06 CV 0803, 1:06 CV 1371, 2007 WL 3165807, at *9 (N.D. Ohio Oct. 26, 2007)

(“Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only

at harassment that occurs because of the protected class of the plaintiff.”). Although Arteaga does

allege negative statements were made about Mexicans, she does not provide a single example of

such a statement or any relevant factual context. The only allegation that remotely touches on

Arteaga’s race or national origin is her claim that Campos asked her if she “had papers,”

presumably referring to immigration documents. But that isolated question is not enough, by itself,

to create the “discriminatorily abusive work environment” prohibited by Title VII. Harris v.

Forklift Sys., Inc., 510 U.S. 17, 22, 114 (1993); see also Hudson v. City of Highland Park, 943

F.3d 792, 803 (6th Cir. 2019) (explaining that “‘offhand comments and isolated incidents (unless

extremely serious) will not amount to discriminatory changes in the terms and conditions of

employment’” (quoting Faragher, 524 U.S. at 788)); cf. Navarro-Teran, 184 F. Supp. 3d at 623

(finding that plaintiff had pleaded a hostile work environment claim based on race and national

origin discrimination where he alleged “a series of racially charged insults and taunts over the

years” as well as “physical attacks[ ] and demeaning work assignments”).

With respect to Arteaga’s retaliation claim, Technicolor first argues that it should be

dismissed as not exhausted because Arteaga’s EEOC charge does not mention any form of

retaliation. (Doc. No. 18.) “It is well-settled that before a person who claims to have been

discriminated against in violation of Title VII may seek relief in federal court, the claimant must

first unsuccessfully present his or her claim to the EEOC (or the equivalent state entity that has

authority to grant or seek relief with respect to the alleged unlawful practice[ ])[.]”3 Wrobbel v.

Int’l Bhd. of Elec. Workers, Local 17, 638 F. Supp. 2d 780, 790 (E.D. Mich. 2009). However,

3 Title VII’s exhaustion requirement is non-jurisdictional. Adamov v. U.S. Bank Nat’l Ass’n,

726 F.3d 851, 856 (6th Cir. 2013).

“[r]etaliation claims are typically excepted from the [exhaustion] requirement because they usually

arise after the EEOC charge is filed.” Spengler v. Worthington Cylinders, 615 F.3d 481, 489 n.3

(6th Cir. 2010) (citing Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246, 254 (6th Cir. 1998)).

Exempting retaliation claims based on the filing of an EEOC charge from the exhaustion

requirement “‘promotes efficiency by requiring only one filing[.]’” Ayala v. Summit Constructors,

Inc., 788 F. Supp. 2d 703, 718 (M.D. Tenn. 2011) (quoting Ang v. Procter & Gamble Co., 932

F.2d 540, 547 (6th Cir. 1991)). Importantly, “‘[r]etaliatory conduct occurring prior to the filing of

the EEOC complaint is distinguishable from conduct occurring afterwards as no unnecessary

double filing is required by demanding that plaintiffs allege retaliation in the original complaint.’”

Id.

Although Arteaga could have spelled out the basis of her retaliation claim more clearly,

liberally construed, it is premised on Technicolor’s decision to fire her after she filed a charge of

discrimination with the THRC. Accordingly, Arteaga did not need to separately exhaust that claim.

See Ayala, 788 F. Supp. 2d at 718. The authorities that Technicolor cites to support a contrary

conclusion are not persuasive. (Doc. No. 18.) Those cases involve retaliation claims based on

conduct that occurred before an EEOC charge was filed and could not have been alleged in that

charge4 or do not recognize the rule that a plaintiff need not exhaust a claim of retaliation that

follows an EEOC charge.5

4 See Waggoner v. Carlex Glass Am., LLC, 682 F. App’x 412, 414–17 (6th Cir. 2017)

(involving employer’s allegedly retaliatory refusal to transfer plaintiff to a different part of the

glass plant where he worked, which occurred before plaintiff filed a charge of discrimination with

the EEOC).

5 See Grimes v. Sw. Airlines Co., No. 3:16-2276, 2018 WL 646406 (M.D. Tenn. Jan. 31,

2018), report and recommendation adopted by 2018 WL 1282060 (M.D. Tenn. Mar. 13, 2018);