Thompson v. Hendrickson USA, LLC

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

PRISCILLA THOMPSON, )

)

Plaintiff, ) NO. 3:20-cv-00482

) JUDGE RICHARDSON

v. )

)

HENDRICKSON USA, LLC, )

)

Defendant.

MEMORANDUM OPINION

Pending before the Court is Defendant’s Motion to Dismiss.1 (Doc. No. 13, “Motion”).

Plaintiff has filed a response (Doc. No. 19). Defendant has filed a reply (Doc. No. 20). The matter

is ripe for review.

1 Defendant does not specify a rule under which it brings its Motion. In the Motion, Defendant

states that it “respectfully requests that it be granted judgment on the pleadings or alternatively

that the Court dismiss Plaintiff’s Complaint, with prejudice, for failure to state a claim or cause of

action upon which relief may properly be granted.” (Doc. No. 13 at 2). Thus, though styled as a

Motion to Dismiss, the Motion appears effectively intended as a motion for partial judgment on

the pleadings, and in the alternative, a motion to dismiss in part.

The Federal Rules of Civil Procedure provide that after the pleadings are closed, but within

such time as not to delay the trial, any party may move for judgment on the pleadings. Fed. R. Civ.

P.12(c). “Rule 12(c) may be employed as a vehicle for raising several of the defenses enumerated

in Rule 12(b), including the defense of failure to state a claim upon which relief may be granted.”

Amersbach v. City of Cleveland, 598 F.2d 1033, 1038 (6th Cir. 1979); see also Thomason v.

Nachtrieb, 888 F.2d 1202, 1204 (7th Cir. 1989) (citing Amersbach); Becker v. Crounce Corp., 822

F.Supp. 386, 391 n. 4 (W.D. Ky. 1993) (citing Amersbach).

In this case, the Complaint has been filed, but Defendant has not filed an Answer.

Therefore, the appropriate procedural vehicle for Defendant to bring its Motion is a Motion to

Dismiss under 12(b)(6), not a motion for judgment on the pleadings. As the Court discusses below,

although Rule 12(b)(6) is often not the appropriate vehicle to dismiss a claim based on the statute

of limitations (which Defendant is seeking to do in part of its Motion), this Motion was

appropriately brought under Rule 12(b)(6).

For the reasons discussed, the Court will deny Defendant’s Motion.

FACTUAL BACKGROUND2

Plaintiff, an African American woman, was hired by Defendant in September 2010 as an

Assembly Worker. (Doc. No. 1 at ¶ 8). Defendant’s Paint and Assembly Department contains

several different jobs a worker can perform, but workers often consistently perform only one job

within the department at a time. (Id. at ¶¶ 9, 10). For several years prior to 2015, Plaintiff worked

only one station on the assembly line. (Id. at ¶ 11). In July 2015, Plaintiff suffered a work-related

injury in the form of a rotator cuff tear. (Id. at ¶ 13). Plaintiff required surgery, follow-up treatment,

physical therapy, and work conditioning as a result of her injury. (Id. at ¶ 14).

Plaintiff received notes from her doctor reducing her work restrictions as she healed, but

each time she reached out to Defendant, it denied her request to return to work. (Id. at ¶¶ 17, 18).

Defendant refused to allow Plaintiff to return to work in a light duty role, and Defendant did not

However, the Court notes that it would apply the same legal analysis regardless of the

caption of the Motion. When a 12(b) defense is raised via a motion for judgment on the pleadings,

the district court evaluates the motion using the same standard applied to a motion to dismiss for

failure to state a claim under Rule 12(b)(6). See Scheid v. Fanny Farmer Candy Shops, Inc., 859

F.2d 434, 437 n.1 (6th Cir. 1988); Becker, 822 F. Supp. at 391 n.4 (W.D. Ky. 1993) (citing

Amersbach); Kinney v. Mohr, No. 2:13-cv-1229, 2017 WL 1395623, *4 (S.D. Ohio Apr. 19, 2017)

(citing Amersbach); Clemons v. Metro. Gov’t of Nashville & Davidson Cty., Tenn., No. 3-14-1690,

2015 WL 4717398, at *1 (M.D. Tenn. Aug. 7, 2015). “Thus, the same rules which apply to judging

the sufficiency of the pleadings apply to a Rule 12(c) motion as to a motion filed under Rule

12(b)(6)[.]” Lacy v. Ohio Dept. of Job and Family Servs., No. 2:16-cv-912, 2017 WL 1397522, *1

(S.D. Ohio Apr. 19, 2017) (citing Amersbach). Indeed, when a Rule 12(c) motion is based on an

asserted failure to state a claim upon which relief can be granted, “[t]he only difference between

Rule 12(c) and Rule 12(b)(6) is the timing of the motion to dismiss.” Ruppe v. Knox Cty. Bd. Of

Educ., 993 F. Supp. 2d 807, 809 (E.D. Tenn. 2014) (quoting Hunter v. Ohio Veterans Home, 272

F.Supp. 2d 692, 694 (N.D. Ohio 2003)).

2 The facts in this section are taken from the Complaint (Doc. No. 1) and are taken as true for the

purposes of this Motion. Likewise, at times during its analysis, the Court refers to alleged facts—

such as what Plaintiff was requesting of Defendant—without adding the qualifier that they are

merely alleged facts. The Court does so for ease of discussion, and not to imply any belief as to

whether such alleged facts are the actual facts.

engage in an interactive process to determine whether the accommodation of a light duty role could

be granted. (Id. at ¶ 16).

In June 2017, Plaintiff’s doctor notified Defendant that Plaintiff’s restrictions would be

permanent. (Id. at ¶ 21). That month, Plaintiff had a meeting with Defendant’s Human Resources

Manager and offered to do several jobs in the Paint and Assembly Department that she believed

she could fully perform, including among others the brake installation position. (Id. at ¶ 22).

Defendant maintained that Plaintiff must be able to perform all jobs in the Paint and Assembly

Department in order to return to work. (Id. at ¶ 23). Plaintiff was terminated the day after her

meeting with the Human Resources Manager. (Id. at ¶ 28).

At the time of her termination, there were several other employees who were not required

to rotate positions and were not able to perform all positions in the department. (Id. at ¶ 29).

Plaintiff believes that at least one white employee was allowed to return to work with light duty

restrictions in the Paint and Assembly Department. (Id. at ¶ 25). Plaintiff believes that white

employees without a disability were allowed to stay in one position and not rotate throughout the

department. (Id. at ¶¶ 26, 27).

Plaintiff filed a Charge of Discrimination with the EEOC on December 17, 2017, alleging

discrimination and retaliation based on disability. (Id. at ¶ 30). She subsequently amended her

charge to allege discrimination and retaliation based on racial discrimination. (Id. at ¶ 31). In

connection with her EEOC charge, a federal investigator performed a site visit at the facility, where

the investigator observed that several employees did not ever rotate positions and had not been

cross-trained to rotate to other positions. (Id. at ¶¶ 32, 33, 34).

On December 12, 2019, the EEOC issued a determination letter finding that there is

reasonable cause to believe that Respondent failed to provide a reasonable accommodation as to

Plaintiff’s disability. (Id. at ¶ 35). The EEOC issued a Notice of Right to Sue based on both

disability discrimination and race discrimination, and Plaintiff commenced her action in this Court

on June 9, 2020, within 90 days of receipt of the EEOC’s Notice of Right to Sue. (Id. at ¶¶ 7, 36).

In her Complaint, Plaintiff brings the following respective Counts: I) Violation of the

Americans with Disabilities Act Amendments Act (“ADAAA”)3 in the form of disability

discrimination and retaliation, II) race discrimination under Title VII, and III) race discrimination

and retaliation under 42 U.S.C. § 1981 (“Section 1981”). Plaintiff seeks relief in the form of

monetary damages. It is relevant to the discussion below to note that although it is generally

customary to include only a single “claim” in each count of a complaint, Plaintiff’s Counts I and

III each can be viewed as including two counts, one for discrimination and one for retaliation.

LEGAL STANDARD4

For purposes of a motion to dismiss brought under Rule 12(b)(6) of the Federal Rules of

Civil Procedure, the Court must take all the factual allegations in the complaint as true, as it 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

3 The ADAAA was enacted (effective January 1, 2009) to make amendments to the Americans

with Disabilities Act (ADA) to, among other things, ensure “a broad scope of protection to be

available under the ADA.” See Taylor v. Specialty Rest. Corp., No. 2:12-cv-44, 2014 WL 4922942,

at *4 (S.D. Ohio Sept. 30, 2014) (quoting ADAAA).

4 The statute of limitations is an affirmative defense. Fed. R. Civ. P. 8(c). A plaintiff does not need

to plead the lack of an affirmative defense to state a valid claim. Cataldo v. U.S. Steel Corp., 676

F.3d 542, 547 (6th Cir. 2012). “For this reason, a motion under Rule 12(b)(6), which considers

only the allegations in the complaint, is generally an inappropriate vehicle for dismissing a claim

based upon the statute of limitations. But, sometimes the allegations in the complaint affirmatively

show that the claim is time-barred. When that is the case . . . dismissing the claim under Rule

12(b)(6) is appropriate.” Id.; see also Alsbrook v. Concorde Career Colleges, Inc., 469 F. Supp.

3d 805, 823 (W.D. Tenn. 2020). Defendant is claiming that the Complaint and the documents

referenced in the Complaint affirmatively show that some of the claims (Counts II and III) are

time-barred. Therefore, it is appropriate to consider these arguments on a Rule 12(b)(6) motion.

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 well-pleaded factual allegations, a court should

assume their veracity and then determine whether they plausibly give rise to an entitlement to

relief. Id. at 1950. 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.; Fritz v. Charter Township of Comstock, 592 F.3d 718, 722 (6th Cir. 2010),

cited in Abriq v. Hall, 295 F. Supp. 3d 874, 877 (M.D. Tenn. 2018). 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.

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. This can be crucial, as no such

allegations count toward the plaintiff's goal of reaching plausibility of relief. To reiterate, such

allegations include “bare assertions,” formulaic recitation of the elements, and “conclusory” or

“bald” allegations. Id. at 681. The question is whether the remaining allegations—factual

allegations, i.e., allegations of factual matter—plausibly suggest an entitlement to relief. Id. If not,

the pleading fails to meet the standard of Fed. R. Civ. P. 8 and thus must be dismissed pursuant to

Rule 12(b)(6). Id. at 683.

As a general rule, matters outside the pleadings may not be considered in ruling on a motion

to dismiss under Fed. R. Civ. P. 12(b)(6) unless the motion is converted to one for summary

judgment under Rule 56. Fed. R. Civ. P. 12(d). When a document is referred to in the pleadings

and is integral to the claims, it may be considered without converting a motion to dismiss into one

for summary judgment. Doe v. Ohio State Univ., 219 F. Supp. 3d 645, 652-53 (S.D. Ohio 2016);

Blanch v. Trans Union, LLC, 333 F. Supp. 3d 789, 791-92 (M.D. Tenn. 2018).

Importantly, the familiar burden-shifting framework of McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802-04 (1973), holding modified by Hazen Paper Co. v. Biggins, 507 U.S.

604 (1993), is inapplicable on a Rule 12(b)(6) motion to dismiss.5

A plaintiff need not allege facts specifically indicating that the plaintiff could carry the

burden she might ultimately bear under McDonnell Douglas. This is because McDonnell Douglas

“is an evidentiary standard, not a pleading requirement.” Swierkiewicz v. Sorema N. A., 534 U.S.

506, 510 (2002). A plaintiff is not required to plead what would qualify as a prima facie case for

5 The Sixth Circuit has summarized the applicability and workings of the McDonnell Douglas

framework as follows:

A plaintiff may show discrimination by direct evidence, or a plaintiff

lacking direct evidence of discrimination may succeed on a Title VII claim by

presenting indirect evidence under the framework first set forth in McDonnell

Douglas Corp v. Green, 411 U.S. 792, 802–03, 93 S. Ct. 1817, 36 L.Ed.2d 668

(1973).

To succeed under the McDonnell Douglas framework, the plaintiff must

first make out a prima facie case of discrimination by a preponderance of the

evidence. . . . Once the plaintiff makes out a prima facie case, the burden shifts to

the defendant “to articulate some legitimate, nondiscriminatory reason for” the

adverse employment action. Should the defendant do so, the plaintiff then must

prove by a preponderance of the evidence that the stated reasons were a pretext for

discrimination.

Redlin v. Grosse Pointe Pub. Sch. Sys., 921 F.3d 599, 606–07 (6th Cir. 2019) (citations omitted).

purposes of McDonnell Douglas. See, e.g., Keys v. Humana, Inc., 684 F.3d 605, 609 (6th Cir.

2012) (“The district court’s requirement that [the plaintiff’s] complaint establish a prima facie case

under McDonnell Douglas and its progeny is contrary to Supreme Court and Sixth Circuit

precedent.”); Clough v. State Farm Mut. Auto. Ins. Co., No. 13-2885-STA-tmp, 2014 WL

1330309, at *6 (W.D. Tenn. Mar. 28, 2014) (“In light of Swierkiewicz, the Court concludes that

strictly speaking Plaintiff need not plead all of the elements of the prima facie case in order to

survive a motion to dismiss.”). The Court recently explained this in some detail in resolving a

motion to dismiss a plaintiff’s THRA claims:

But since this is a Motion to Dismiss, and not a motion for summary

judgment, Plaintiff is not required to carry a burden of presenting evidence

establishing a prima facie case under McDonnell Douglas. Keys v. Humana, Inc.,

684 F.3d 605, 609 (6th Cir. 2012). McDonnell Douglas “is an evidentiary standard,

not a pleading requirement.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510-11

(2002). “[T]he precise requirements of a prima facie case can vary depending on

the context and before discovery has unearthed the relevant facts and evidence, it

may be difficult to define the appropriate formulation. Significantly, the Supreme

Court identified the possibility that discovery may produce direct evidence of

discrimination, rendering the McDonnell Douglas burden-shifting framework

inapplicable to a plaintiff's claims.” Keys, 684 F.3d at 609 (discussing

Swierkiewicz) (internal citation omitted).

This only stands to reason. After all, the McDonnell Douglas framework

contemplates that a defendant can, if necessary, attempt to prevail by setting forth

its position on a factual issue (i.e., as to the existence of a legitimate, non-

discriminatory reason for its challenged employment actions). 411 U.S. at 802. But

except perhaps in a very limited sense (as for example when a district court will

consider, if uncontradicted in a plaintiff's reply brief, a defendant’s factual

assertions as to the content in a document referred to in the plaintiff's complaint) a

defendant’s position regarding the facts simply is not be considered on a Rule

12(b)(6) motion to dismiss. See Burns v. United States, 542 F. App’x 461, 466-67

(6th Cir. 2013). Therefore, the McDonnell Douglas framework does not apply on

this Motion, and Plaintiff is not required here to make out a prima facie case as

required by McDonnell Douglas on a motion for summary judgment; instead

Plaintiff must satisfy the plausibility requirement for a motion to dismiss.

Jodry v. Fire Door Sols., LLC, No. 3:20-cv-00243, 2020 WL 7769924, at *3–4 (M.D. Tenn. Dec.

30, 2020) (Richardson, J.). So as noted in Keys, McDonnell Douglas ultimately may not apply at

all in a particular case; in particular it would not apply if the plaintiff can rely on direct evidence

of discrimination, rather than indirect evidence of discrimination (which is what McDonnell

Douglas deals with). And even if McDonnell Douglas would apply at later stages of the case, it

cannot sensibly be applied at the pleading stage, and so its requirement of a showing of a prima

facie case must not be applied at the pleadings stage.

DISCUSSION

Defendant argues that all counts of the Complaint should be dismissed for the following

respective reasons:6 1) Count II because (according to Defendant) Plaintiff did not timely file a

Title VII race discrimination charge in regards to her termination and pre-termination events, and

she did not file suit within 90 days of the determination letter;7 2) Count III because (according to

Defendant) Plaintiff’s Section 1981 race discrimination claim is time-barred pursuant to a one-

year statute of limitations in the state of Tennessee; 3) Count I because (according to Defendant)

Plaintiff’s ADAAA claim does not state a claim upon which relief may be granted inasmuch as

(according to Defendant) Plaintiff was not a qualified individual and did not request a reasonable

accommodation. Defendant also asserts, relevant to Counts II and III, that Plaintiff’s argument

6 To the extent indicated below, these arguments fall short of providing grounds for dismissing all

claims in their entirety, because Defendant’s argument did not address Count I to the extent it set

forth retaliation claims.

7 Defendant refers to the determination letter as conveying the “rejection of her charge.” (Doc. No.

14 at 1). This characterization is not accurate in that it seems to refer to the determination letter,

which stated that Plaintiff’s claims had merit and that the claim would proceed to the conciliation

phase. (Doc. No. 1). Perhaps Defendant, in characterizing the EEOC’s disposition of the charge as

one of “rejection,” felt bolstered by the fact that the Notice of Right to Sue (a separate document

that followed the determination letter) reflected both “dismissal” of her charge and the EEOC’s

decision not to bring suit against Defendant. However, this Notice of Right to Sue was not really

a “rejection” of the charge; it certainly was not a rejection on the merits. Instead, it marked the

closing of the EEOC’s file and allowed Plaintiff to proceed in a federal civil action.

regarding an alleged similarly situated employee (a white coworker) fails as a matter of law.8 (Doc.

No. 14).

Plaintiff notes in her response that although Defendant did not style its Motion as a partial

motion, Defendant presented no argument that Plaintiff’s retaliation claims under the ADAAA9

should be dismissed, and so Defendant’s Motion is really only a partial Motion to Dismiss. (Doc.

No. 19 at 13). In a footnote in its Reply, Defendant argues, “Plaintiff’s claim that Defendant did

not move to dismiss her retaliation claim is without merit.” (Doc No. 20 at 3). This is confusing

because Plaintiff brings two retaliation claims, not one, and Defendant does not clarify where or

how it addressed such claims. The Court does not see anywhere that Defendant makes a substantive

argument regarding Plaintiff’s ADAAA retaliation claims. However, to the extent that Defendant

intended its arguments to apply to the ADAAA retaliation claim, the Court would find dismissal

to be inappropriate for the same reasons discussed below.

The Court will first address evidentiary issues raised by Plaintiff, before turning to each of

the substantive arguments of Defendant’s Motion in turn.

A. Evidence attached to the Motion and Response

The Court must first determine whether it can properly consider the exhibits attached

respectively to Defendant’s Motion and Plaintiff’s Response. Plaintiff seems to argue that the

8 As the Court will discuss below, it appears that Defendant has misperceived the count to which

the fourth argument should apply. Defendant discusses it in connection with Count I, but the Court

believes this argument is more appropriately aimed at Counts II and III.

9 It seems that Defendant did move to dismiss Plaintiff’s race retaliation claim, in that Defendant’s

arguments regarding the Section 1981 race discrimination claims being untimely, if accepted by

the Court, would entail dismissal of Plaintiff’s Section 1981 retaliation claim as well.

Motion should be converted to a motion for summary judgment because Defendant attached

exhibits to its Motion.10 (Doc. No. 19 at 4). Though not contesting the authenticity of the

documents, Plaintiff claims that the Court cannot consider them because they “lack any foundation

or authentication.” (Id. at 12). Defendant counters that “[e]very document attached to Defendant’s

Motion to Dismiss was cited and referenced in Plaintiff’s Complaint.” (Doc. No. 20 at 2).

Fed. Rule of Civ. P. 12(d) states that “[i]f, on a motion under Rule 12(b)(6) or 12(c), matters

outside the pleadings are presented to and not excluded by the court, the motion must be treated

as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity

to present all the material that is pertinent to the motion.” However, there is an exception to this

Rule: “When a court is presented with a Rule 12(b)(6) motion, it may consider the Complaint and

any exhibits attached thereto, 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.” Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426,

430 (6th Cir. 2008); Doe, 219 F. Supp. 3d at 652-53; Blanch, 333 F. Supp. 3d at 791-92. “It must

also be clear that there exist no material disputed issues of fact regarding the relevance of the

document.” Mediacom Se. LLC v. BellSouth Telecommunications, Inc., 672 F.3d 396, 400 (6th

10 Alternatively, Plaintiff argues that whether a plaintiff fails to comply with a pre-suit

administrative process is sometimes determined on a summary judgment motion, instead of a

motion to dismiss. Even assuming the case cited by Plaintiff (which arose in the context of the

exhaustion of prison remedies under the Prison Litigation Reform Act) is relevant here, it notes

that “[i]n the rare event that a failure to exhaust is clear on the face of the complaint, a defendant

may move for dismissal under Rule 12(b)(6). Otherwise, defendants must produce evidence

proving failure to exhaust in order to carry their burden.” Albino v. Baca, 747 F.3d 1162, 1166

(9th Cir. 2014). Defendant is arguing here that Plaintiff’s failure to take certain actions within the

relevant timeframes is clear from the face of the Complaint and the documents referenced in the

Complaint. The Court therefore is unpersuaded that it should convert the Motion to a motion for

summary judgment on this exhaustion-related theory, even assuming the theory were appropriately

applied to this case.

Cir. 2012) (cleaned up and quotation omitted). “In other words, if the authenticity, validity, or

enforceability of a document is not in dispute, the court may consider it on a motion to dismiss,

but a genuine dispute as to the legal sufficiency of a document requires the court to consider the

issue under a motion for summary judgment standard.” Lewis Lumber & Milling, Inc. v. Mereen-

Johnson, LLC, No. 3:17-CV-00643, 2018 WL 6181356, at *2 (M.D. Tenn. Nov. 27, 2018).

All five of the exhibits attached to Defendant’s Motion are referenced in Plaintiff’s

Complaint and are central to the claims contained therein. Defendant attached five exhibits to its

Motions: (1) the EEOC charge (Doc. No. 13-1), (2) Plaintiff’s job description (Doc. No. 13-2), (3)

Plaintiff’s functional capacity examination (Doc. No. 13-3), (4) Plaintiff’s return to work slip (Doc.

No. 13-4), and (5) Plaintiff’s modified return to work slip (Doc. No. 13-5). The EEOC charge was

a condition precedent to her filing the instant action, and Plaintiff discusses it at length in her

Complaint. (Doc. No. 1 at ¶¶ 7, 30). The job description, functional capacity examination, return

to work slip, and modified return to work slip are all also referenced in the Complaint (though

Plaintiff does not necessarily use the same names for the documents as Defendant does) and are

central to her claim, which alleges essentially that Defendant did not respond appropriately to her

doctor’s notes or offer her an accommodation. (Id. at ¶¶ 9, 15, 21, 18, 19, 21). Despite referencing

these documents in her Complaint, and them being central to her claim that she was improperly

terminated due to her disability, Plaintiff did not attach any documents to her Complaint. In her

Response, Plaintiff notes correctly that none of these documents have been authenticated, but the

Court may consider them as long as there is no dispute as to their authenticity, validity, and

enforceability. Lewis Lumber & Milling, Inc., 2018 WL 6181356, at *2. There does not appear to

be any such dispute. Therefore, the Court finds that it can properly consider the documents attached

to Defendant’s Motion, even absent a formal establishment of their authenticity by Defendant,

without converting the Motion into one for summary judgment.

Additionally, Plaintiff attached to her Response her Notice of Right to Sue (Doc. No. 19-

1). This document was also referenced in and integral to the Complaint. (Doc. No. 1 at ¶ 36). There

appears to be no dispute from Defendant as to the authenticity, validity, or enforceability of this

document. Though attached to Plaintiff’s Response and not to Defendant’s Motion (which would

be the only kind of attaching document expressly contemplated in the above-referenced case law

blessing consideration of certain attachments), the document’s being attached to something other

than the Motion does not seem to preclude the Court from considering the document. See

Mediacom Se. LLC, 672 F.3d at 400 (noting that it would be appropriate to consider a document

attached to a motion to intervene because it appears in the record if it is referred to in the complaint

and central to the claims therein). Therefore, the Court also finds that it can consider this document

as it was referenced in the Complaint and central to the claims therein.

In sum, the Court finds that it can consider the documents attached to Defendant’s Motion

and to Plaintiff’s Response, without converting the instant Motion into one for summary judgment.

B. Title VII Race Discrimination Claim11

11 The undersigned will highlight a few important points regarding the terminology used herein,

by reference to something he wrote years ago:

On the subject of limitations, courts often use language loosely,

interchanging various terms for one another. For maximum clarity, terms must be

defined so that important concepts are distinguishable from one another, then used

consistently in accordance with those definitions. Herein, legal authorities will be

paraphrased in terms of the following definitions to convey the concepts expressed

therein, regardless of the terms used (or misused) by the authority being cited.

Defendant argues that Plaintiff’s Title VII race discrimination claim (Count II) is time

barred. (Doc. No. 14 at 7). Plaintiff counters that 1) her amendment related back to her original

EEOC charge, and 2) Defendant improperly conflates the issuing of a Notice of Right to Sue with

the issuing of a Determination Letter, and as a result Defendant is applying the wrong limitations

period to the facts at hand. (Doc. No. 19 at 5).

Defendant argues that Plaintiff’s Title VII charge of race discrimination was not filed with

the EEOC until the filing of her amended EEOC charge on April 23, 2018. (Doc. No. 14 at 8).

Defendant states that the original EEOC charge, filed on December 13, 2017, did not include

claims of race discrimination and that the box for race discrimination was unchecked. (Id.).

Plaintiff responds that the original EEOC charge checked boxes for both Retaliation and Disability,

that she subsequently amended her charge to allege race discrimination, and that both the original

and amended charges arose out of the same subject matter. (Doc. No. 19 at 5-6). In the amended

EEOC charge, Plaintiff checked the box indicating race discrimination, and added (among other

things) the following information regarding her race discrimination claim: “Black employees at

[Defendant] [] were treated less favorably than Caucasian employees in terms of assignments

As used herein, a “statute of limitations” refers to a legislative enactment,

or codification thereof, that sets forth a limitations period. . . . A “limitations period”

refers to the length of time-the specific number of days, months, or years-in which

a given claim can be commenced, as set forth in a statute of limitations.

“Limitations” [refers] to the legal doctrine whereby a plaintiff is barred from

bringing a claim based upon the lapse of the applicable limitations period. To say

that limitations “applies” is to say that, under limitations law, a claim is time-barred.

“Limitations law” refers to the entire body of rules, both statutory and judge-made,

by which courts determine whether limitations applies in a given case.

Eli J. Richardson, Eliminating the Limitations of Limitations Law, 29 Ariz. St. L.J. 1015, 1017–19

(1997). When using his own words, the undersigned intends to stick generally to this terminology,

with the caveat that the caselaw he quotes may not do so and thus may be less precise or looser in

their terminology.

following injuries. I learned that an employee, Ms. Christy Champlin (Caucasian) had been

allowed to work light duty following surgery on her hand.” (Doc. No. 13-1 at 4-5).

1. Filing of the amended charge with the EEOC

Title VII requires an employee to file a charge with the EEOC within either 180 days or

300 days of an allegedly unlawful employment practice, depending on the law of the applicable

state and whether that state is a “deferral state.”12 42 U.S.C. §2000e-5(e)(1); Alexander v. Local

496, Laborers’ Int’l Union of N. Am., 177 F.3d 394, 407 (6th Cir. 1999). “The United States

Supreme Court has held that these time periods operate, essentially, as a form of [limitations

period].” Whitehead v. Grand Home Furnishings, Inc., No. 2:19-CV-00040-DCLC, 2020 WL

1237423, at *4 (E.D. Tenn. Mar. 13, 2020) (citing Nat’l R.R. Pass. Corp. v. Morgan, 536 U.S.

101, 122 (2002)). Tennessee is a deferral state, and so the 300-day period, instead of the 180-day

period, applies if a plaintiff who has filed with the EEOC filed first or contemporaneously with

the Tennessee Human Rights Commission (“THRC”). Equal Employment Opportunity Comm’n

v. Dolgencorp, LLC, 196 F. Supp. 3d 783, 799 (E.D. Tenn. 2016), aff’d, 899 F.3d 428 (6th Cir.

2018), and aff’d, 899 F.3d 428 (6th Cir. 2018). Plaintiff here filed her charge with the THRC

concurrently with her charge with the EEOC. (Doc. No. 13-1). Therefore, the 300-day limitations

period applies, instead of the 180-day period.

The regulations allow for amendments to relate back to the original charge for purpose of

limitations:

A charge may be amended to cure technical defects or omissions, including failure

to verify the charge, or to clarify and amplify allegations made therein. Such

amendments and amendments alleging additional acts which constitute unlawful

employment practices related to or growing out of the subject matter of the original

12 A “deferral state” is a state that has enacted its own laws prohibiting discriminatory employment.

Alexander v. Local 496, Laborers’ Int’l Union of N. Am., 177 F.3d 394, 406 (6th Cir. 1999).

charge will relate back to the date the charge was first received. A charge that has

been so amended shall not be required to be redeferred.

29 C.F.R. § 1601.12(b). In Zanders v. O’Gara-Hess & Eisenhard Armoring Co., the Sixth Circuit

faced the question of whether a plaintiff’s race discrimination claim in connection with his

termination (“termination claim”) was time barred, when his original EEOC charge contained only

a claim regarding race discrimination in connection with his suspension, and the plaintiff later

amended his EEOC charge to include race discrimination in connection with his termination. 952

F.2d 404, 1992 WL 2906 (6th Cir. 1992). The termination claim would have been time-barred

unless it related back to the original charge. The Sixth Circuit found that the termination claim was

timely because it did relate back to the original filing, which put the EEOC on “reasonable notice”

of the plaintiff’s forthcoming termination claim such that the EEOC’s investigation naturally

should encompass the termination claim. Id. at *3. Interpreting the regulation, the Sixth Circuit

also noted that the termination claim was “facially related” to the first claim, and “they indicate

one continuous action . . . the nexus between the charges is very strong.” Id. at *4.

Defendant argues that Plaintiff’s race discrimination claims do not relate back to her

original EEOC charge (which was solely for discrimination and retaliation based on disability):

Here, Plaintiff’s untimely race discrimination claim in the amended charge raised

an entirely new legal theory based on race supported by allegations distinguishable

from the facts supporting her original disability claim. The new allegation that one

white employee was allowed to work light duty is distinct (and does not “grow

out”) from the original subject matter that Plaintiff was solely discharged due to

permanent work restrictions.

(Doc. No. 14 at 8-9). Despite Defendant’s argument, it appears to the Court that the race

discrimination charge does relate back to the disability discrimination and retaliation charges. The

disability and the race discrimination claims arose out of the same events: refusing to allow

Plaintiff to return to work and subsequently terminating her employment. Because the alleged race

discrimination stems from the same events as the alleged disability discrimination and retaliation,

evidence of the race-related charge would likely have arisen in the EEOC investigation of the

originally filed disability-related charges, and it appears from the Determination Letter issued by

the EEOC that both were investigated concurrently. (Doc. No. 1 at 10-13). Additionally, because

they arose from the same events, the original charges and subsequent charge are “facially related,”

and the “nexus between the charges is very strong.” Zanders, 1992 WL 2906 at *4.

Therefore, the Court finds that Plaintiff’s race discrimination claim related back to her

disability discrimination and retaliation claims, and that it therefore is not barred by the 300-day

limitations period.

2. Timely filing of Complaint

Next, Defendant argues that Plaintiff was required to bring suit within 90 days of being

notified that her charge was dismissed by the EEOC. (Doc. No. 14 at 9). Defendant points to

Plaintiff’s Complaint, which states that on December 12, 2019, the EEOC issued a determination

letter finding reasonable cause to believe that there was a failure to provide a reasonable

accommodation in violation of the ADAAA. (Doc. No. 1 at ¶ 35). Defendant then argues that this

suit was not filed until June 9, 2020 (more than 90 days after the determination letter date) and

thus should be dismissed. (Doc. No. 14 at 9). Plaintiff responds that it is not the date of the

determination letter, but rather the date of receipt of the Notice of Right to Sue, that starts the

running of the 90-day clock. (Doc. No. 19 at 7). Defendant counters primarily by accusing Plaintiff

of trying to add “language to a federal statute that simply does not exist.” (Doc. No. 20 at 1).13

13 Additionally, Defendant cites a case in which the Sixth Circuit described the “ordinary usage”

of the word “notified” as “the completed act of bringing information to the attention of another.”

Detroit Coil Co. v. Int’l Ass’n of Machinists & Aerospace Workers, Lodge No. 82, 594 F.2d 575,

580 (6th Cir. 1979). But this case is unhelpful to Defendant, even if the Court accepts that the

“ordinary usage” of the word “notified” (or its present-tense form “notify,” which is the precise

The applicable statute states that a suit may be brought by the aggrieved person filing the

EEOC charge, but only after the EEOC has either (a) dismissed the charge, or (b) not filed a civil

action within 180 days after the filing of the charge by the aggrieved person. 42 U.S.C. § 2000e-

5(f)(1). The statute requires the Commission to “notify the person aggrieved”14 about either its

dismissal of the charge or non-filing of a civil action (or both, as in the present case)15 and then

states that “within ninety days after the giving of such notice a civil action may be brought against

the respondent named in the charge.” Id. In context, it is clear that the referenced “notify[ing]” is

the same thing as the referenced “giving of such notice”; to make this even clearer, the statute

could have appropriately used the word “notification” instead of “notice” in the latter phrase.

The Sixth Circuit has repeatedly made clear that the “notice” in the statute means,

specifically, the Notice of Right to Sue (also known as a right-to-sue letter or notice, or just a right

to sue), and that the 90-day period begins to run after the plaintiff receives the Notice of Right to

Sue. E.g., Peete v. Am. Standard Graphic, 885 F.2d 331, 331 (6th Cir. 1989) (“2000e–5(f)(1)

statutory word at issue here) governs the interpretation of the word “notify” used in the statute at

issue here. As suggested herein, the word that truly matters here is not “notified” or even “notify,”

but rather “notice.” Even though, as noted herein, the statute equates the giving of “notice” to the

aggrieved person with the providing of “notif[ication]” to the aggrieved person, the word to be

interpreted is “notice” and not “notify” or “notified.” And as for the word “notice,” the Court does

not divine its meaning for present purposes from its “ordinary usage,” but rather from Sixth Circuit

case law and the statutory context in which it found here—which both tell the Court what “notice”

means for current purposes, i.e., notice (as provided in the Notice of Right to Sue) that 180 days

have elapsed without the EEOC filing a civil suit.

14 The statute is not explicit as to what the EEOC is supposed to notify the aggrieved person about,

but in context it could only be the EEOC’s dismissal of the charges due to the EEOC’s non-filing

of a civil action within 180 days.

15 In the present case, the EEOC actually gave notice of both dismissal and non-filing within 180

days. In its Notice of Right to Sue, which was issued more than 180 days after Plaintiff filed her

EEOC charge, the EEOC both notified Plaintiff of its “dismissal” of her charge and advised her

that it would not bring suit against Defendant. (Doc. No. 19-1).

requires that a complaint be filed within ninety days after the right-to-sue notice is actually

received.”); Hopkins v. United Parcel Serv., 221 F.3d 1334 (6th Cir. 2000) (same); Disena v. TS

Employment Inc., No. 16-2269, 2017 WL 4124889, at *2 (6th Cir. May 11, 2017) (same); Keystone

Filler & Mfg. Co. v. Am. Mining Ins. Co., 55 F. App’x 733 (6th Cir. 2003) (same); A’ve v. Serv.

Employees Int’l Union, 24 F. App’x 326, 330 (6th Cir. 2001) (same); Brown v. Hyperion Seating

Corp., 194 F.3d 1311 (6th Cir. 1999) (same). In fact, “[a] plaintiff must possess a right-to-sue letter

from the EEOC in order to file suit and pursue an action under Title VII.” Hollowell v. Michigan

Consol. Gas Co., 18 F. App’x 332, 337 (6th Cir. 2001). Defendant cites the Court to, and the Court

is aware of, no authority that receipt of a determination letter, instead of a (subsequent) Notice of

Right to Sue, starts the 90-day clock. In fact, some of the authority cited to by Defendant clearly

states that the start of the 90-day period is tied to the Notice of Right to Sue, and Defendant itself

states the correct rule in its own Memorandum in support of its Motion in one place. Rembisz v.

Lew, 830 F.3d 681, 682 (6th Cir. 2016); (Doc. No. 14 at 9).

Plaintiff’s Notice of Right to Sue was mailed on March 26, 2020, and Plaintiff filed this

lawsuit 75 days after the Notice of Right to Sue was issued. (Doc. No. 19-1; Doc. No. 19 at 7).

The Complaint specifically alleges that this was the case, stating that “the EEOC issued Plaintiff

a Notice of Right to Sue and this action was commenced within 90 days of receipt of the EEOC’s

Notice of Right to Sue.” (Doc. No. 1 at ¶ 7).

For the reasons discussed, Defendant’s sole, limitations-based argument for dismissal of

Count II is without merit. Thus, the Court will not grant Defendant’s Motion in regards to

Plaintiff’s Title VII claims, and Plaintiff’s Title VII race discrimination claim survives the Motion.

C. Section 1981 Race Discrimination Claim

Defendant claims that Plaintiff’s race discrimination claim under Section 1981 is time-

barred for a different reason than the one Defendant claimed time-barred Plaintiff’s Title VII racial

discrimination claim. That is, whereas with respect to Title VII Defendant invoked a time bar that

was akin to and essentially a statute of limitation, with respect to Section 1981 Defendant invokes

an actual statute of limitations.

There is no question, as discussed below, that Plaintiff’s race discrimination claim under

Section 1981 (part of Count III) is subject to one or the other of two statutes of limitations.

Defendant argues that the applicable statute of limitations is a Tennessee statute prescribing a one-

year limitations period. (Doc. No. 14 at 11). Plaintiff responds that the applicable statute of

limitations is a federal one that prescribes a four-year limitations period. (Doc. No. 19 at 8). The

dispute arises from the fact that by statute, as explained below, one category of claims under

Section 1981 falls under a federal statute prescribing a four-year limitations period, while the other

category of claims falls instead under the applicable state statute of limitations (in this case, a

Tennessee statute prescribing a one-year limitations period).

The two categories of claims are distinguished from one another by the timing of the

legislation that made possible various kinds of claims. A claim falls into either one category or the

other depending on when the claim was made legally viable by federal civil rights legislation. As

the Sixth Circuit has explained:

Congress enacted a four-year statute of limitations, 28 U.S.C. § 1658(a), for

causes of action arising under an Act of Congress enacted after December 1, 1990,

and that statute applies “if the plaintiff’s claim . . . was made possible by a post-

1990 enactment.” Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382 (2004).

Congress has not enacted a statute of limitations for claims brought under the pre-

December 1, 1990, versions of §§ 1981, 1983, 1985. Therefore, for all claims raised

under the pre-December 1, 1990, versions of these statutes, federal courts apply the

forum state’s personal-injury statute of limitations. See id. at 378, 383-84.

Mitchell v. Taylor, No. 16-6335, 2018 WL 4162255, at *2 (6th Cir. Apr. 16, 2018). A district court

in this circuit, facing arguments nearly identical to the ones the parties make here, further explained

when a court should apply the one-year limitations period prescribed by Tennessee law (per

personal-injury claims) as opposed to the four-year limitations period prescribed by federal law:

The issue in this case arises because section 1981 does not contain its own

statute of limitations. See 42 U.S.C. 1981. Prior to December 1, 1990, federal courts

applied the “most appropriate or analogous state statute of limitations” to claims

based upon § 1981. Goodman v. Lukens Steel Co., 482 U.S. 656, 660 (1987). The

Sixth Circuit determined that the proper Tennessee statute of limitations to apply

to a § 1981 claim is Tennessee Code Annotated § 28-3-104. Jackson v. Richards

Med. Co., 961 F.2d 575, 578 (6th Cir. 1992). However, on December 1, 1990,

“Congress enacted a catchall [four]-year statute of limitations for actions arising

under federal statutes enacted after December 1, 1990.” Jones, 541 U.S. at 371; see

28 U.S.C. § 1658.3

To determine whether the federal statute of limitations or the state statute of

limitations applies to actions after December 1, 1990, this Court must consider

whether “the plaintiff’s claim against the defendant was made possible by a post-

1990 enactment” to § 1981. Jones v. R. R. Donnelley & Sons Co., 541 U.S. 369,

382 (2004). The Supreme Court discussed the pre- and post-1991 versions of §

1981 as follows:

As first enacted, § 1981 provided in relevant part that “all persons

[within the jurisdiction of the United States] shall have the same

right, in every State and Territory . . . to make and enforce

contracts . . . as enjoyed by white citizens.” We held in Patterson v.

McLean Credit Union, 491 U.S. 164 (1989) . . . that the statutory

right “to make and enforce contracts” did not protect against

harassing conduct that occurred after the formation of the contract.

Under that holding, it is clear that petitioner’s [claims] ... do not state

violations of the original version of § 1981. In 1991, however,

Congress responded to Patterson by adding a new subsection to §

1981 that defines the term “ ‘make and enforce contracts’ ” to

include the “termination of contracts, and the enjoyment of all

benefits, privileges, terms, and conditions of the contractual

relationship.” 42 U.S.C. § 1981(b) . . . . The critical question, then,

is whether [Plaintiff’s] causes of action “ar[ose] under” the 1991

[Amendments] or under § 1981 as originally enacted.

Jones, 541 U.S. at 372-73 (footnotes and citations omitted) (emphasis added).

An important focal point in the analysis of whether the plaintiff’s claims

were actionable under the original version of § 1981 is whether the “failure to

promote rose to the ‘level of an opportunity for a new and distinct relation between

the employee and the employer . . . .’ ” Patterson, 491 U.S. at 185; see, e.g. Hishon

v. King & Spalding, 467 U.S. 69 (1984) (holding that promotion from law firm

associate to partner constituted a new and distinct relationship). If the failure to

promote did meet this criterion, the claim arises from the unamended version of §

1981 and the one-year Tennessee statute of limitations applies. Otherwise, the claim

is deemed to have arisen from the 1991 amendments and the four-year federal

statute of limitations governs.

Lowery v. Fed. Express Corp., No. 02-2056, 2007 WL 9710095, at *4–5 (W.D. Tenn. Sept. 11,

2007); see also Fonteneaux v. Shell Oil Co., 289 F. App’x 695, 698–99 (5th Cir. 2008); Thomas

v. First Tennessee Bank, No. 04-3002 B, 2007 WL 114294, at *3 (W.D. Tenn. Jan. 10, 2007).

Several courts in this circuit have looked at the scenario in which a plaintiff’s cause of

action arises from a dispute over a promotion (or absence thereof) using the “new and distinct

employment relationship” standard. The Court in Lowery summarized the case law in this circuit

as such:

The Sixth Circuit addressed the “new and distinct relationship” test

in Anthony v. BTR Automotive Sealing Sys., Inc., 339 F.3d 506 (6th Cir. 2003).

In Anthony, the Court considered whether the failure to promote an employee from

a lab testing position at one plant to a laboratory supervisor position with

responsibilities at multiple plants constituted the type

of new and distinct relationship anticipated by Patterson and the pre-1991 version

of § 1981. Id. at 508-10. The Sixth Circuit determined that the plaintiff's claim

in Anthony, despite being a well-desired promotion, was not the type of contractual

change that established a “new and distinct relationship.” Id. at 511-12.

Furthermore, this Court has stated that a “ ‘new and distinct relationship’

should not be measured by quantitative terms, such as pay raises, but rather whether

there ‘exists a meaningful, qualitative change in the contractual relationship,’ such

as a change from non-supervisory to supervisory positions or advancements from

hourly to salaried compensation.” Thula Thomas v. First Tennessee Bank, No. 04-

3002 B, 2007 WL 114294, at *7 (W.D. Tenn. Jan. 10, 2007). However, this Court

has stated that when “the promotion[ ] at issue [was] best characterized as a mere

advancement in [the plaintiff's] career path,” the claim was not actionable until after

the 1991 amendments. Aaron Malone v. State of Tenn., No. 03-2869 B, 2005 WL

2671343, at *6 (W.D. Tenn., Oct. 19, 2005). Thus, the clear delineation made by

the courts that have considered this issue is the potential contractual change with

the promotion, not the benefits or expanded roles of the employee . . .

Based upon the facts set forth in the record, the Court determines that

Plaintiff’s desired promotions would not have created a “new and distinct

relationship” between himself and his employer. As this Court noted in Malone, a

“mere advancement” or otherwise minor transfer between one management

position and another is not the type of significant contractual change that the pre-

1991 version of § 1981 anticipated. Instead, Plaintiff is complaining of “post-

formation” conduct that was only actionable after the 1991 amendments to § 1981.

See Jones, 541 U.S. at 372-73. Therefore, Plaintiff’s claim is covered under the

four-year statute of limitations as codified at 28 U.S.C. § 1658.

Lowery, 2007 WL 9710095, at *5.

Defendant encourages the Court to consider a light-duty request to be a “new and distinct

employment relationship.” Defendant cites the out-of-circuit case of Beck v. City of Durham, 129

F. Supp. 2d 844, 852 (M.D.N.C. 2000), for the proposition that “Plaintiff’s pled demand for

permanent ‘light duty’ is the quintessential example of a ‘new and distinct employment

relation[ship].’” (Doc. No. 14 at 11). By using quotation marks around “new and distinct

employment relation[ship],” calling Plaintiff’s situation a “quintessential example,” and not

disavowing the direct applicability of Beck by preceding the citation with the “see” signal,

Defendant represents that Beck stands directly and very strongly for the proposition that a demand

for permanent light duty is a demand for a “new and distinct employment relationship,” such that

the one-year state limitations period would be applicable in light of Plaintiff’s demand for light

duty.

This representation is, regrettably, simply misleading. Beck did involve a Section 1981

claim premised on the denial of a request for light duty. But the Beck opinion neither uses the term

“new and distinct employment relation[ship]” nor engages in any substantive analysis of the “new

and distinct employment relationship” test. Though the Beck court does not say so outright, it

appears that there was no dispute as to which statute of limitations (state or federal) governed, as

the court merely announced with no ado (or explanation) that “North Carolina’s three-year statute

of limitations for personal injury actions governs the Section 1981 claim.” 129 F. Supp. 2d at 852.

Instead, the parties’ dispute was over when the action accrued so as to start the running of the

limitations period. Id. At most, Beck stands for the proposition that (for reasons unstated), the

relevant state statute of limitations might apply to a particular claim based on the denial of a request

for light duty. Despite Defendant’s (mis)representation, Beck is of no value in establishing that the

state statute of limitation is (or is not, for that matter) applicable to Plaintiff’s Section 1981 claim

under the “new and distinct employment relationship” test.

The Court is not aware of any cases in this circuit that examine whether a request for “light

duty” would constitute a new and distinct employment relationship. Additionally, with its

arguments focusing on light duty, Defendant mischaracterizes the allegations in Plaintiff’s

Complaint. In her Complaint, Plaintiff indicates that she informed Defendant that “she was fully

able to perform the job functions of the brake component installation job and several other jobs in

the paint and assembly department, and that she willing [sic] to perform any other position

available within her restrictions.” (Doc. No. 1 at ¶ 22). Instead of seeking only a light-duty role as

Defendant implies, Plaintiff actually was seeking to work in a different job of the Paint and

Assembly Department, be it one of several that she could perform fully or, alternatively, other

ones that she could perform either fully or in a light duty role.

The Court is entirely unpersuaded by Defendant’s reliance not only on Beck, but also on

Defendant’s argument as a whole regarding light duty ushering in a new and distinct employment

relationship. These arguments do not even apply to Plaintiff’s alternative request to be transferred

to a job that she could fully perform. And to the extent Plaintiff’s claim is based on her alternative

request for a light-duty position, the Court is unpersuaded that a shorter limitations period should

apply, because such request in the Court’s view did not portend a new and distinct employment

relationship.

In expressing this view, the undersigned realizes that the concept of “new” and “distinct”

are subjective and somewhat ambiguous. Indeed, the undersigned has in the past made this

observation regarding the terms “same” and “different,” which of course are an antonym and

synonym, respectively, of “distinct.” See Eli J. Richardson, Taking Issue with Issue Preclusion:

Reinventing Collateral Estoppel, 65 Miss. L.J. 41, 70 (1995). The determination of whether

something—in this case, a proposed new employment arrangement—is “new and distinct” is as

much a linguistic one as it is a factual one, since the question is whether the term linguistically

actually describes the circumstances to which it supposedly applies. In many cases reasonable

minds could disagree on the issue. Nevertheless, it falls to the undersigned to make this

determination in his case, calling it like he sees it.

And in the undersigned’s view, what Plaintiff was proposing here on balance is not

properly considered a new and distinct employment relationship with Defendant. Plaintiff was not

seeking a promotion, increased responsibility, pay increase, or anything else the undersigned

would consider a significant change in her relationship with her employer (as opposed to her day-

to-day job responsibilities). Plaintiff merely sought to be reassigned within her current department

(the Paint and Assembly Department) to a different role that she could perform fully (such as brake

component installation) or another position with light duty. There is no indication that Plaintiff

and Defendant’s relationship would have changed as a result of Plaintiff moving within her

existing department. Instead, Plaintiff’s claims of race discrimination and retaliation arise out of

her existing relationship with her employer. Therefore, the Court finds that the appropriate

limitations period to apply is the four-year limitations period prescribed by federal statute, and not

the one-year limitations period that would be applicable under Tennessee state law. This four-year

limitations period will expire no earlier than June 19, 2021, and so Plaintiff has filed her Complaint

within the applicable limitations period.

For the reasons discussed, the Court finds that Plaintiff’s claims under Section 1981 are

timely. Thus, the Court will not grant Defendant’s Motion on limitations grounds.

D. ADAAA Claims

Defendant argues that Plaintiff has not sufficiently stated a claim upon which she may be

granted relief under the ADAAA. (Doc. No. 14 at 12). Defendant argues that Plaintiff was not a

qualified employee and that her reasonable accommodation request was per se unreasonable. (Doc.

No. 14).

The ADAAA prohibits employers from discriminating against a qualified individual on the

basis of disability. 42 U.S.C.A. § 12112. The parties are unclear regarding what, exactly, Plaintiff

must plead in order to survive a motion to dismiss an ADAAA claim. Defendant seems to imply

that Plaintiff must adequately allege a prima facie case under McDonnell Douglas, but in so doing

it cites primarily to cases decided in the summary judgment context, without addressing with

clarity the fact that this case has not reached that stage and is instead at merely the pleading stage.

(Doc. No. 14). Plaintiff correctly notes that she is not required to plead her prima facie case under

McDonnell Douglas in order to survive a motion to dismiss. (Doc. No. 19 at 3). However, neither

party clarifies what Plaintiff is required to plead in order to survive the present motion.

The Sixth Circuit has indicated that, in order to survive a motion to dismiss on an ADAAA

claim, a plaintiff “must plead facts that make plausible the inference that (1) she is disabled, (2)

she is qualified to perform her job requirements with or without reasonable accommodation, and

(3) she would not have been discharged but for the disability.”16 Darby v. Childvine, Inc., 964 F.3d

440, 444 (6th Cir. 2020); Frengler v. Gen. Motors, 482 F. App’x 975, 976 (6th Cir. 2012) (same);

Esparza v. Pierre Foods, 923 F. Supp. 2d 1099, 1105 (S.D. Ohio 2013) (“For purposes of Rule

12(b)(6), the Court need only consider whether the amended complaint provides sufficient factual

content to present plausible claims under the relevant statutes. That said, the interpretive guidelines

for the federal regulations do envision some threshold consideration of whether a person’s medical

condition, as alleged, plausibly states a ‘disability.’” (internal citations omitted)). “At this stage,

we consider whether the complaint states a claim for relief that is plausible, when measured against

the elements of an ADAAA claim. To survive a motion to dismiss, in other words, [Plaintiff] must

make sufficient factual allegations that, taken as true, raise the likelihood of a legal claim that is

more than possible, but indeed plausible.”17 Id. (internal citation omitted).

As noted above, Defendant is attacking Plaintiff’s Complaint on the grounds that 1) she

was not a qualified individual, and 2) her accommodation request was per se unreasonable. The

Court will account for these attacks in determining whether Plaintiff has plausibly alleged facts

that allow her claim to survive under Darby.

1. Qualified Individual

16 Plaintiff argues that since these are questions of fact, the Court should not consider them until

after discovery. (Doc. No. 19 at 9). Though Plaintiff is not required to prove her claims at this

time, she is required to allege facts that make plausible the inference that she can meet the pleading

standard described in Darby. Thus, the Court at this stage does consider the facts at this stage,

albeit only the facts as the Complaint alleges them to be, and asks whether they plausibly suggest

entitlement to relief.

17 By “elements,” the Court believes the Sixth Circuit here meant the previously enumerated three

things needed to survive a motion to dismiss, and not the entire prima facie case that would be

potentially applicable on a motion for summary judgment.

Defendant argues that Plaintiff cannot be qualified, because the weight limitations included

in her doctor’s notes would not allow her to do the essential functions listed in the job description.

(Doc. No. 14 at 13). Plaintiff responds that she has plausibly alleged that she was a qualified

individual. (Doc. No. 19 at 9).18

The statute states that:

The term “qualified individual” means an individual who, with or without

reasonable accommodation, can perform the essential functions of the employment

position that such individual holds or desires. For the purposes of this subchapter,

consideration shall be given to the employer’s judgment as to what functions of a

job are essential, and if an employer has prepared a written description before

advertising or interviewing applicants for the job, this description shall be

considered evidence of the essential functions of the job.

42 U.S.C.A. § 12111(8); see also E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 761 (6th Cir. 2015).

The EEOC regulations provide further insight regarding what constitutes an “essential function”:

(1) In general. The term essential functions means the fundamental job duties of the

employment position the individual with a disability holds or desires. The term

“essential functions” does not include the marginal functions of the position.

(2) A job function may be considered essential for any of several reasons, including

but not limited to the following:

(i) The function may be essential because the reason the position

exists is to perform that function;

(ii) The function may be essential because of the limited number of

employees available among whom the performance of that job

function can be distributed; and/or

(iii) The function may be highly specialized so that the incumbent

in the position is hired for his or her expertise or ability to perform

the particular function.

(3) Evidence of whether a particular function is essential includes, but is not limited

to:

18 In the part of her Response purporting to rebut Defendant’s claim that she is not qualified,

Plaintiff focuses largely on explaining why she is disabled. (Doc. No. 19 at 9-11); (Doc. No. 20 at

4). But Defendant does not argue that Plaintiff is not disabled; instead, Defendant focuses its

briefing on why Plaintiff is not qualified for a position. The Court therefore does not address

Plaintiff’s arguments regarding why she is disabled.

(i)The employer’s judgment as to which functions are essential;

(ii) Written job descriptions prepared before advertising or

interviewing applicants for the job;

(iii)The amount of time spent on the job performing the function;

(iv)The consequences of not requiring the incumbent to perform the

function;

(v)The terms of a collective bargaining agreement;

(vi)The work experience of past incumbents in the job; and/or

(vii)The current work experience of incumbents in similar jobs.

29 C.F.R. § 1630.2(n).

Defendant cites the Court to no evidence to support Defendant’s implication that a job

description alone determines what constitutes an “essential function.” Instead, Defendant merely

drops a footnote which indicates that the word “shall” (as used in 42 U.S.C. § 12111(8)) means

than an action is mandatory, a point the Court does not dispute. (Doc. No. 14 at 12). But the

relevant use of the word “shall” in 42 U.S.C. § 12111(8) pertains only to the consideration of a

job description as evidence of the job’s essential functions; accordingly, consideration by the Court

of a submitted job description is statutorily mandated, but that is not to say that the job description

by itself is dispositive. While the Court does not deny that a job description may prove to be very

(or even the most) compelling evidence of essential functions in a particular case, nothing in this

statute suggests that the job description is the exclusive type of cognizable evidence of the job’s

essential functions.

In addition, the regulations are clear that a job description is one type of evidence that can

be submitted (for mandatory consideration by the court), and that other evidence also can be

submitted and considered. 29 C.F.R. § 1630.2(n). Likewise, the Sixth Circuit has clearly indicated

repeatedly that a job description should not be taken as dispositive evidence of what the “essential

functions” of a job are. E.g., Henschel v. Clare Cty. Rd. Comm’n, 737 F.3d 1017, 1022–23 (6th

Cir. 2013) (“As the employer, [Defendant’s] opinion that hauling is an essential function carries

weight but is only one factor to be considered. A court also must conduct a fact-specific inquiry

into both the employer’s description of a job and how the job is actually performed in practice.

(internal citation and quotation marks omitted)); Hall v. U.S. Postal Serv., 857 F.2d 1073, 1079

(6th Cir. 1988) (reversing district court that accepted job description as controlling and explaining

the required “highly fact-specific” inquiry and explaining that “[s]uch a determination should be

based upon more than statements in a job description and should reflect the actual functioning and

circumstances of the particular enterprise involved”); Camp v. BI-LO, LLC, 662 F. App’x 357, 364

(6th Cir. 2016) (“We do not ‘require blind deference to the employer’s stated judgment’ that the

ability to lift more than 35 pounds is an essential function when ruling on a motion for summary

judgment. The record contains facts that might allow a reasonable jury to discount [Defendant’s]

reliance on the written job description as it relates to the necessity of the stock clerk lifting more

than 35 pounds. In particular, [Plaintiff’s] actual on-the-job experience, and that of his coworkers,

including his immediate supervisor, provide evidence to rebut [Defendant’s] contention that heavy

lifting is in fact an “essential function” of the stock clerk job.”). In fact, one of the cases cited to

by Defendant states that: “Written job descriptions are . . . not dispositive.” Rorrer v. City of Stow,

743 F.3d 1025, 1039 (6th Cir. 2014).

Defendant argues that Plaintiff was not a qualified individual because her lifting

restrictions left her unable to meet the requirements of the job:

Plaintiff’s Complaint-incorporated job description required her to be able to

“carry up to 75 lbs.” The Complaint-incorporated functional capacity examination

that Plaintiff underwent in January 2017 certified that Plaintiff was only able to “…

occasionally lift up to 20 lbs.”, with a 15 pound “[f]loor to [w]aist” lifting

restriction. Plaintiff’s physician certified trough [sic] the). Complaint-incorporated

light duty return-to-work slip that Plaintiff was restricted to “… no lifting more than

20 pounds from floor to chest.” Finally, Plaintiff’s own physician-modified March

2017 return-to-work slip, as incorporated into the Complaint, confirmed that she

could “ . . . occasionally lift up to 20 pounds.”

Since Plaintiff’s own Complaint pleads that she was not “qualified” under

the ADAAA, she is not entitled to the statute’s protections.

(Doc. No. 14 at 13).

In addition to being wrong about the allegedly dispositive nature of the job description, one

thing to describe what occasionally is involved in a position, and it is another to specify that what

is occasionally involved is required, i.e., is an essential function.

The section of the job description entitled “functional requirements” certainly does sound

a lot like “functional essentials” and thus, in turn, “essential functions.” (Doc. No. 13-2 at 3). The

Court grants that these could be taken to set forth “essential functions,” including, as noted, the

“occasional” task of carrying “wts > 25 lbs.” (Id. at 4). Arguably, this part of the job description

states unambiguously that occasionally lifting of 25 pounds is an essential function of the job

requested by Plaintiff. But even if it does so state, the Court cannot say at this juncture that a jury

would be obligated to conclude that this function (carrying) was truly essential and that there was

no possibility that in reality (as opposed to “on paper”), Defendant would have deemed someone

like Plaintiff19 qualified because her weight restriction was somewhat lower than 25 pounds. That

is, the job description by itself does not mean that Defendant actually required someone filling that

position to lift more than 25 pounds or lift more than whatever Plaintiff could lift; a jury could find

that this actually was not an essential function of the job. This is the precise lesson of case like

Camp.

19 That is, someone who could lift 15 pounds up to her waist and could occasionally lift up to 20

pounds (even if not necessarily all the way up to her waist).

Plaintiff had successfully worked in the Paint and Assembly department for many years,

and she has alleged that she was qualified for a position in the brake assembly line and several

other jobs. See Lynn v. True N. Mgmt., LLC, No. 15-CV-2650, 2016 WL 6995290, at *3 (N.D.

Ohio Nov. 30, 2016) (“The complaints state that Lynn was able to perform the ‘essential functions’

of the job. She had the skills required to complete the tasks of a cashier and customer service

representative for nearly thirteen years prior to the decline in her health. Therefore, she was

arguably ‘qualified’ for the position.”). True, this allegation on its own may be deemed merely

conclusory and thus, under Iqbal, not entitled to the presumption of truth for purposes of a motion

to dismiss. But this allegation is supported by alleged factual matter that, although hardly copious,

is at least minimally adequate. Defendant’s arguments to the contrary rely on the job description,

which the Court finds to have been misconstrued and not dispositive in any event.

Therefore, the Court finds that Plaintiff has adequately plead that she was a qualified

individual. Defendant raises some arguments, and points to apparent facts, that may have their

place later in this litigation, but none convince the Court that the Complaint does not survive the

motion-to-dismiss phase.

2. Reasonable accommodation

Defendant argues that it is not required to create a new position for Plaintiff, and that since

she was requesting a permanent light duty placement (which Defendant deems a “new” position),

her request was per se unreasonable. (Doc. No. 14 at 14).

The statute indicates that a “reasonable accommodation” might include:

job restructuring, part-time or modified work schedules, reassignment to a vacant

position, acquisition or modification of equipment or devices, appropriate

adjustment or modifications of examinations, training materials or policies, the

provision of qualified readers or interpreters, and other similar accommodations for

individuals with disabilities.

42 U.S.C. § 12111(9)(B).

Defendant argues that “[e]mployers covered by the ADAAA have no obligation to create

altogether new positions of employment for protected ‘disabled’ individuals. More importantly,

the ADAAA cannot, as a matter of law, compel an employer to create permanent light duty

positions of employment under the accommodation prong of that federal statute.” (Doc. No. 14 at

14 (internal citation omitted)). Defendant cites authority indicating that an employer has no

obligation to create a new job or create a job that is permanently light duty. The Sixth Circuit has

explained the distinction between an employer’s duty to consider transferring an employee versus

creating a new job for that employee:

[A]n employer has a duty under the ADA to consider transferring a disabled

employee who can no longer perform his old job even with accommodation to a

new position within the Company for which that employee is otherwise qualified.

Employers are not required to create new jobs, displace existing employees from

their positions, or violate other employees’ rights under a collective bargaining

agreement or other non-discriminatory policy in order to accommodate a disabled

individual.

Burns v. Coca-Cola Enterprises, Inc., 222 F.3d 247, 257 (6th Cir. 2000). “[W]e have applied this

rule to hold that an employer need not create a permanent light-duty position.” Meade v. AT&T

Corp., 657 F. App’x 391, 396 (6th Cir. 2016); see also Thompson v. Henderson, 226 F. App’x

466, 474 (6th Cir. 2007) (“Defendant is simply not required to engage Lee in temporary light-duty

assignment in perpetuity.”).

As the Court has previously discussed, Plaintiff specifically informed Defendant of several

jobs she was able to fully perform, and alternatively requested permanent light duty. Therefore,

she was requesting a reassignment to a position which she could fully perform, and “reassignment

to a vacant position” is specifically listed in 42 U.S.C. § 12111(9)(B) as a form of reasonable

accommodation. The Court has already expressed (in connection with the limitations question) the

view that Plaintiff was requesting assignment to a position she could fully perform, or, in the

alternative, a permanent light duty position. Defendant’s only response to this is to claim that

Plaintiff has not alleged that she was able to perform the essential functions of—and thus was not

qualified for—the brake installation job, a claim the Court has already rejected for the reasons

discussed herein. (Doc. No. 20 at 5).

The Court finds that Plaintiff has pled facts that make plausible the inference that she was

denied a reasonable accommodation and was thereafter terminated. The Court therefore will not

grant Defendant’s Motion on this ground.

E. Similarly situated employee

Taking a different tack in attacking Plaintiff’s claim of a lack of reasonable accommodation

under the ADAAA, Defendant argues that Plaintiff’s allegation of a white employee being treated

better than her is insufficient because she does not allege that the employee was permanently

impaired, and that employers are not legally required to offer identical accommodations to

different employees under the ADAAA. (Doc. No. 14 at 15). However, Plaintiff’s Complaint

appears to make this allegation in support not of her claim under the ADAAA, but of her race

discrimination claims under Title VII and Section 1981. In Count II and Count III (asserting a race

discrimination claim under Title VII and a race discrimination and retaliation claim under Section

1981, respectively), Plaintiff alleges: “Defendant allowed white employees to remain in one job

function and not rotate functions, or be cross-trained for several jobs, but disproportionately did

not allow black or minority employees this treatment. Defendant allowed white employees to

return to work in a light duty capacity and/or be transferred to positions that fit their restrictions

whereas it did not do that for similarly situated black employees.” (Doc. No. 1 at ¶¶ 48, 49, 53, 54

(identical paragraphs included in each claim)). Neither of these paragraphs, nor anything like them,

were included or incorporated in her ADAAA claim (Count I).

Therefore, it seems that Defendant has misconstrued Plaintiff’s claim of race-based

disparate treatment by calling it a “disparate treatment allegation under the ADAAA.” (Doc. No.

14 at 15). It is true that Plaintiff’s race discrimination claim is related to her ADAAA claim, in that

Plaintiff claims that her race-based disparate treatment was reflected in Defendant’s response to

her request for accommodation due to her disability. But Plaintiff is claiming that she received this

disparate treatment because she was African American rather than white (or Caucasian, a term

she used in her EEOC filing) not because she had a disability. But even construing Defendant’s

attack as being directed against her race claim, and not against her ADAAA claim as to which it

is simply inapplicable, the attack gets Defendant nowhere.

Plaintiff’s burden of showing that another employee is similarly situated, to the extent that

it exists at all at the motion to dismiss stage, is not a heavy one.20 Courts in this Circuit, in assessing

20 At the summary judgment stage, “the plaintiff must show that the ‘comparables’ are similarly

situated in all respects.” Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992). “Thus, to be

deemed ‘similarly-situated’, the individuals with whom the plaintiff seeks to compare his/her

treatment must have dealt with the same supervisor, have been subject to the same standards and

have engaged in the same conduct without such differentiating or mitigating circumstances that

would distinguish their conduct or the employer’s treatment of them for it.” Id.

Though the Court does not need to determine the applicable prima facie case at this stage

(as Plaintiff might meet her prima facie case in various ways, including via direct evidence), the

Court notes that the prima facie case often is stated as such:

a plaintiff must show that 1) he is a member of a protected class; 2) he was qualified

for his job and performed it satisfactorily; 3) despite his qualifications and

performance, he suffered an adverse employment action; and 4) that he was

replaced by a person outside the protected class or was treated less favorably than

a similarly situated individual outside his protected class.

Hughes v. Gen. Motors Corp., 212 F. App’x 497, 502 (6th Cir. 2007) (quoting Johnson v. Univ. of

Cincinnati, 215 F.3d 561, 572–73 (6th Cir.2000)).

the adequacy of a plaintiff’s complaint, have regularly found sufficient allegations that the plaintiff

was treated less favorably than similarly situated coworkers coupled with allegations as to how the

plaintiff was treated less favorably. See e.g., Guinn v. Mount Carmel Health, No. 2:09-CV-226,

2012 WL 628519, at *9 (S.D. Ohio Feb. 27, 2012) (“[Plaintiff] specifically made allegations that

he was treated less favorably than similarly situated coworkers . . . . Moreover, not only does

[Plaintiff] allege that he was treated less favorably than his similarly situated white coworkers, he

states specifically in what way he was treated less favorably.”); Campbell v. Korleski, No. 2:10-

CV-1129, 2011 WL 2748641, at *6 (S.D. Ohio July 14, 2011) (“[Plaintiff] has alleged that he was

treated less favorably than his similarly situated white coworkers . . . . He avers that (unlike his

similarly situated white coworkers) he was placed into positions where his opportunity for

advancement was minimal. A reasonable inference can be drawn from [Plaintiff’s] allegations in

the amended complaint that he was denied promotions or not offered promotions that his white

coworkers were given and/or offered.”). One court has gone so far as to state that, under

Swierkiewicz, a plaintiff’s failure to specifically plead that she was treated less favorably than

someone outside of her class did not merit dismissal. Ndene v. Columbus Acad., No. 2:09-CV-892,

2010 WL 1031864, at *4 (S.D. Ohio Mar. 17, 2010); see also Cummings v. Greater Cleveland

Reg’l Transit Auth., 88 F. Supp. 3d 812, 818 (N.D. Ohio 2015) (“But determining whether

employees are similarly situated is a fact-bound inquiry not proper for a motion to dismiss.”).

Assuming that Plaintiff has to allege some facts showing she was similarly situated to a

relevant comparator, Plaintiff has met this requirement. Plaintiff alleges in her Complaint that she

was treated less favorably than a white employee. Allegedly, she was not allowed to remain in one

job function without rotation, be returned to work in a light duty capacity, or be transferred to a

position that fit her restrictions. (Doc. No. 1 at ¶¶ 48. 49). Plaintiff alleges that she knows of one

white employee who was returned to work with light duty restrictions and was transferred into the

Paint and Assembly department even though she (the white employee) could perform only one of

the positions in the department with an accommodation. (Id. at ¶ 25). Plaintiff also alleges that

there were similarly situated white employees who were allowed to stay in one position without

rotation. (Id. at ¶ 26). The Court finds these allegations in the Complaint to be sufficient to survive

the Motion, especially given that the Motion addresses whether there is a similarly situated

employee as if it pertained to Plaintiff’s ADAAA claim (instead of her race-based claims) and

cites no case law relevant to the Title VII and/or Section 1981 context.

Additionally, the Court notes that it would be inappropriate to dismiss Plaintiff’s claim

based on the purported failure to satisfy a standard that is inapplicable at the pleading stage and

might never even apply in this case. The “similarly situated” standard is implicated only in the

elements of a prima facie case under McDonnell Douglas. But the Court has not yet determined

whether Plaintiff will be required establish a prima facie case later in this litigation under

McDonnell Douglas, or whether instead the McDonnell Douglas framework will prove

inapplicable due to Plaintiff’s future presentation of direct evidence of discrimination. Braun v.

Ultimate Jetcharters, Inc., No. 5:12CV1635, 2013 WL 623495, at *8 (N.D. Ohio Feb. 19, 2013),

aff’d sub nom. Braun v. Ultimate Jetcharters, LLC, 828 F.3d 501 (6th Cir. 2016) (“Plaintiff has

thus alleged a viable gender discrimination claim and is not required, at this stage, to establish an

inference of discrimination based on defendants’ treatment of similarly situated male

employees.”). So even though the Court finds that Plaintiff’s allegations adequately meet this

standard, it finds alternatively that they do not have to. For each of these alternative reasons,

therefore, Defendant’s reliance on the “similarly situated” standard is to no avail on the instant

Motion.

CONCLUSION

For the reasons discussed herein, the Court will deny the Motion to Dismiss.

An appropriate order will be entered.

ELI RICHARDSON

UNITED STATES DISTRICT JUDGE

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