Abdalla v. Tennessee Department of Corrections

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

)

KHALED ABDALLA, )

)

Plaintiff, )

)

)

v. ) No. 2:20-cv-02041

)

TENNESSEE DEPARTMENT OF )

CORRECTIONS, )

)

Defendant. )

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS COMPLAINT

Before the Court is Defendant Tennessee Department of

Corrections’ (“Defendant”) April 29, 2020 Motion to Dismiss

Complaint (the “Motion”). (D.E. No. 13.) Plaintiff Khaled

Abdalla (“Plaintiff”) responded on June 2, 2020. (D.E. No. 15.)

Defendant replied on June 17, 2020. (D.E. No. 16.)

For the following reasons, Defendant’s Motion is GRANTED.

I. Background

For purposes of the Motion to Dismiss, the facts are taken

from the Complaint.

Plaintiff brings the following claims: employment

discrimination under the Americans with Disabilities Act (the

“ADA”), 42 U.S.C. §§ 12111, et seq., employment discrimination

under the Age Discrimination in Employment Act (“ADEA”), 29

U.S.C. §§ 621, et seq., employment discrimination and retaliatory

discharge under the Tennessee Human Rights Act, (“THRA”), Tenn.

Code Ann. §§ 4-21-101, et seq., employment discrimination and

retaliatory discharge under Title VII of the Civil Rights Act of

1964 (“Title VII”), 42 U.S.C. §§ 12111, et seq., retaliatory

discharge based on Tennessee Workers’ Compensation Law, Tenn.

Code Ann. §§ 50-6-101, et seq., violation of the laws and public

policy of the State of Tennessee, and violations of common law.

(D.E. No. 1, ¶ 37-41.)

Defendant employed Plaintiff until Plaintiff was terminated

on or about June 15, 2019. (Id. at ¶ 10.) Plaintiff filed an

internal complaint for discrimination in September 2016. (Id.

at ¶¶ 11-12.) In September 2018, Plaintiff broke his back while

working for Defendant. (Id. at ¶ 13.) That injury caused

Plaintiff to become disabled. (Id. at ¶14.) He returned to work

on January 25, 2019, under restrictions imposed by his doctor.

(Id. at ¶ 14-15.) Plaintiff filed for Workers’ Compensation and

settled his case on May 7, 2019. (Id. at ¶ 15.)

Plaintiff alleges that he was terminated because of his

race, national origin, religion, disability, and in retaliation

for his "protected reporting.” (Id. at ¶ 16.) Plaintiff

alleges that he is a Muslim, of Egyptian national origin, and of

the Arab race. (Id. at ¶¶ 24-27.) Plaintiff alleges that

Defendant was aware of his disability, religion, national origin,

and race. (See id. at ¶¶ 19-28.) Plaintiff also alleges that

Defendant discriminated against him because of his age. (Id. at

¶ 32.) Plaintiff is more than 40 years old. (Id. at ¶ 33.)

Plaintiff was replaced by an individual who was younger

than 40 and who was not Muslim, Egyptian, Arab, or disabled.

(Id. at ¶ 34.) Plaintiff alleges that Defendant’s stated

motivation for terminating him is pretextual and that Defendant’s

true motivations were Plaintiff’s disability, religion, national

origin, race, age, and retaliation for his injury restriction,

Workers’ Compensation filing, accommodations, and religious

belief. (Id. at ¶ 35.)

Plaintiff submitted a Charge of Discrimination to the Equal

Employment Opportunity Commission (the “EEOC”) and received a

Right to Sue letter from the EEOC, (D.E. No. 1, ¶ 4.), dated

November 12, 2019. (D.E. No. 1-3.)

Plaintiff filed his Complaint on January 20, 2020. (D.E.

No. 1.)

II. Jurisdiction and Administrative Exhaustion

A. Sovereign Immunity

This Court does not have subject-matter jurisdiction over

Plaintiff’s ADA, ADEA, THRA, retaliatory discharge, or common

law claims because Defendant is protected by state sovereign

immunity. Plaintiff concedes that Defendant has immunity from

claims brought under the THRA, the ADA, and the ADEA. However,

Plaintiff argues that the Court has jurisdiction over his

retaliatory discharge claim based on Tennessee Workers’

Compensation Law.

The Eleventh Amendment to the United States Constitution

provides that “the Judicial power of the United States shall not

be construed to extend to any suit in law or equity, commenced

or prosecuted against one of the United States by Citizens of

another State, or by Citizens or Subjects of any Foreign State.”

Federal courts are deprived “of subject-matter jurisdiction when

a citizen sues his own State unless the State waives its immunity

or Congress abrogates that sovereign immunity.” Russell v.

Lundergan-Grimes, 784 F.3d 1037, 1046 (6th Cir. 2015) (citing

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-100

(1984). The Eleventh Amendment applies to state agencies and

departments. Boler v. Earley, 865 F.3d 391, 409-410 (6th Cir.

2017). It presents a jurisdictional question. Russell, 784

F.3d at 1046. The plaintiff “bears the burden of establishing

subject matter jurisdiction of the court over his claim.”

Whittle v. United States, 7 F.3d 1259, 1262 (6th Cir. 1993)

(citing Welsh v. Gibbs, 631 F.2d 436, 438 (6th Cir. 1980)). A

party may assert lack of subject-matter jurisdiction as a defense

by motion under Rule 12(b)(1). Fed.R.Civ.P. 12(b)(1).

Tennessee can waive sovereign immunity. Article I, § 17 of

the Tennessee Constitution provides that “suits may be brought

against the State in such manner and in such courts as the

Legislature may by law direct.” “[N]o suit against the state

may be sustained absent express authorization from the Tennessee

Legislature.” Woosley v. Hunt, 932 F.2d 555, 564 (6th Cir.

1991), (citing Greenhill v. Carpenter, 718 S.W.2d 268, 270 (Tenn.

Ct. App. 1986).

1. THRA

The THRA provides a limited waiver of state sovereign

immunity. Its definition of “employer” includes the state.

Tenn. Code Ann. § 4-21-102(5). The THRA provides that a person

may file a complaint alleging discrimination with the Tennessee

Human Rights Commission. Tenn. Code Ann. § 4-21-302. Tennessee

courts may enforce and review orders of the Commission. Tenn.

Code Ann. § 4-21-307. If the Commission fails to issue an order

or schedule a hearing after 180 days, the aggrieved party may

petition the Chancery or Circuit Court for an order directing

the Commission to act. Tenn. Code Ann. § 4-21-307. The THRA

also provides that a violation of the THRA supports a civil cause

of action in Chancery or Circuit court. Tenn. Code Ann. § 4-21-

311. Nothing in the THRA waives the state’s sovereign immunity

in federal court. See Tenn. Code Ann. §§ 4-21-101, et seq; see

also Miller v. Tennessee Department of Human Services, No. :17-

cv-526; 2019 WL 7283128, at *3 (E.D. Tenn. Jan. 16, 2019)

(“Federal courts in Tennessee have consistently held that suits

against state entities brought by individuals under the THRA in

federal court are disallowed by the Eleventh Amendment.”).

Tennessee is immune from suit in federal court under the THRA.

Plaintiff concedes that Defendant is immune from Plaintiff’s

claims under the THRA. (D.E. No. 15, 7-8.) Plaintiff’s THRA

claims are DISMISSED for lack of subject-matter jurisdiction.

2. Tennessee Law and Public Policy and Common Law:

Workers’ Compensation and Section 9-8-307(h)

Plaintiff argues that the Court has jurisdiction over his

common-law retaliatory discharge claim based on Tennessee

Workers’ Compensation Law. That argument is not well taken.

Plaintiff has pled that Defendant violated Tennessee Workers’

Compensation Law, Tenn. Code Ann. §§ 50-6-101, et seq, by

discharging Plaintiff in retaliation for his filing a Workers’

Compensation claim. A plaintiff may bring a claim for

retaliatory discharge based on Tennessee Workers’ Compensation

Law. Clanton v. Cain-Sloan Co., 677 S.W.2d 441 (Tenn. 1984).

That claim is a common-law claim. Williams v. City of Burns,

465 S.W.3d 96, 108-109 (Tenn. 2015) (opining that the retaliatory

discharge claim recognized by Clanton was an example of a

“common-law claim for retaliatory discharge where an employee is

discharged in contravention of public policy”). Tennessee has

not waived its sovereign immunity for common-law retaliatory

discharge claims based on Workers’ Compensation. Id. at 110

(“the common-law retaliatory discharge claim is available only

to private-sector employees”).

In his response, Plaintiff argues that he has a claim under

Tenn. Code Ann. § 9-8-307(h), which governs the Tennessee Claims

Commission. Plaintiff did not plead a specific cause of action

under § 9-8-307(h) in his Complaint. Section 9-8-307(h) provides

that, “State officers and employees are absolutely immune from

liability for acts or omissions within the scope of the officer's

or employee's office or employment, except for willful,

malicious, or criminal acts or omissions or for acts or omissions

done for personal gain.” “[S]tate employee” and “state officer”

are defined by Tenn. Code Ann. §8-42-101(3), which provides

various definitions of a state employee. All of those

definitions speak to individuals, not departments or

organizations. Section 9-8-307(h) “does not extinguish a

claimant's right of action but merely immunizes state employees

from individual monetary liability.” Shelburne v. Frontier

Health, 126 S.W.3d 838, 845 (Tenn. 2003).

Even if Plaintiff had properly pled a claim under § 9-8-

307(h), that section would provide no relief. Section 9-8-307(h)

does not create or extinguish a cause of action. It waives state

employees’ sovereign immunity for “willful, malicious, or

criminal acts or omissions.” Tenn. Code Ann. § 9-8-307(h). It

applies to individual employees. It does not waive Defendant’s

sovereign immunity. Plaintiff sues Defendant, a department of

Tennessee government. (D.E. No. 15, ¶¶ 1-2.) The Complaint

names no individual defendants. (See id.) The Court does not

have subject-matter jurisdiction over Plaintiff’s claim under §

9-307(h).

Plaintiff makes no argument that Tennessee has waived

Defendant’s sovereign immunity from Plaintiff’s common-law and

public policy claims other than Plaintiff’s common-law claim

based on Tennessee Workers’ Compensation Law. Plaintiff bears

the burden of showing that the Court has subject-matter

jurisdiction. Whittle, 7 F.3d at 1262 (citing Welsh, 631 F.2d

at 438).

Plaintiff’s claims that Defendant violated Tennessee law

and public policy and common law, and specifically Plaintiff’s

claims based on Tennessee Workers’ Compensation Law and Tenn.

Code Ann. § 9-8-307(h), are DISMISSED for lack of subject-matter

jurisdiction.

3. ADA and ADEA

Plaintiff’s ADA and ADEA claims against Defendant are barred

by sovereign immunity. Congress did not abrogate the states’

Eleventh Amendment sovereign immunity when it enacted the ADA or

the ADEA. Kimel v. Florida Bd. Of Regents, 528 U.S. 62, 92

(2000) (“Because the ADEA does not validly abrogate the States’

sovereign immunity, however, the present suits must be

dismissed.”); Bd. Of Trustees of University of Alabama v.

Garrett, 531 U.S. 356, 374 (2001) (holding that Congress could

not use the Fourteenth Amendment to abrogate state sovereign

immunity under the ADA because there was no pattern of

discrimination and the remedy was not congruent and proportional

to the targeted violation).

Plaintiff concedes that Defendant is immune from

Plaintiff’s ADA and ADEA claims. (D.E. No. 15, 7-8.) Plaintiff

has brought claims of ADA and ADEA violations against a state

department in federal court. (D.E. No. 1.) Plaintiff’s ADA and

ADEA claims are DISMISSED for lack of subject-matter

jurisdiction.

B. Title VII

The Court has subject-matter jurisdiction over Plaintiff’s

Title VII claims. Under 28 U.S.C. § 1331, district courts have

original jurisdiction “of all civil actions arising under the

Constitution, laws, or treaties of the United States.” Plaintiff

asserts a right to relief against Defendant under Title VII for

employment discrimination and retaliatory discharge. (D.E. No.

1, ¶¶ 38-39.)

When Congress enacted Title VII, it validly abrogated state

sovereign immunity pursuant to the Fourteenth Amendment.

Fitzpatrick v. Bitzer, 427 U.S. 445, 456-457 (1976) (holding

Congress could provide for private suits against states under

the Fourteenth Amendment); Cox v. Shelby State Community College,

38 Fed. App’x. 500, 505 (6th Cir. 2002) (sovereign immunity for

Title VII claims “has been abrogated by Congress”). Under Title

VII, “[e]ach United States district court and each United States

court of a place subject to the jurisdiction of the United States

shall have jurisdiction of actions brought under this

subchapter.” 42 U.S.C. § 2000e-5 (3).

Before bringing a Title VII suit, an employee must exhaust

his administrative remedies. Lockett v. Potter, 259 F. App'x

784, 786 (6th Cir. 2008). The employee may sue within 90 days

of receiving notice of the EEOC’s final decision. Id. That

notice is known as a “right to sue” letter. See Winston v.

Cargill, Inc., No. 08-2059, 2009 WL 539943 at *4 (W.D. Tenn.

March 4, 2009). Exhaustion of administrative remedies is

mandatory, but not jurisdictional. Fort Bend Cty., Texas v.

Davis, 139 S. Ct. 1843, 1852 (2019).

Plaintiff alleges that Defendant violated Title VII. (D.E.

No. 1, ¶¶ 38-39.) Plaintiff received an EEOC “right to sue”

letter dated November 12, 2020. (D.E. No. 1-3.) Plaintiff filed

his Complaint on January 20, 2020. (D.E. No. 1.) Plaintiff has

exhausted his administrative remedies.

III. Standard of Review

Rule 12(b)(6) provides for the dismissal of a complaint

that “fail[s] to state a claim upon which relief can be granted.”

Fed.R.Civ.P. 12(b)(6). “To survive a motion to dismiss, the

plaintiff must allege facts that, if accepted as true, are

sufficient to state a claim to relief that is plausible on its

face.” Cooper Butt ex rel Q.T.R. v. Barr, 954 F.3d 901, 904

(6th Cir. 2020) (citing Bell Atl. Corp. v. Twombly, 550 U.S.

544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). The factual

allegations must be more than speculative. Twombly, 550 U.S. at

555 (“Factual allegations must be enough to raise a right to

relief above the speculative level”). The Court considers the

plaintiff’s complaint in the light most favorable to the

plaintiff. Ryan v. Blackwell, 979 F.3d 519, 525 (6th Cir. 2020)

(quoting Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 512 (6th

Cir. 2001)). The court accepts as true all factual allegations,

but does not accept legal conclusions or unwarranted factual

inferences as true. Theile v. Michigan, 891 F.3d 240, 243 (6th

Cir. 2018). “The plaintiff must present a facially plausible

complaint asserting more than bare legal conclusions.” Id.

(citing Twombly, 550 U.S. at 556; Ashcroft v. Iqbal, 556 U.S.

662, 677-678 (2009).

To survive the defendant’s motion to dismiss, the plaintiff

in a Title VII case is not required to establish the prima facie

case of discrimination. Swierkiewicz v. Sorema N.A., 534 U.S.

506, 510 (2002). Instead, the “complaint must include only ‘a

short and plain statement of the claim showing that the pleader

is entitled to relief.’” Id. at 512, (quoting Fed.R.Civ.P.

8(a)(2)). The Supreme Court’s decisions in Iqbal and Twombly do

not alter the short and plain statement rule. Keys v. Humana,

Inc., 684 F.3d 605, 609 (6th Cir. 2012). The “plausibility”

standard applies to Title VII claims, and “[i]f a reasonable

court can draw the necessary inference from the factual material

stated in the complaint, the plausibility standard has been

satisfied.” Id. at 610.

IV. Analysis

A. Exhibits Attached to Plaintiff’s Response

Rule 12(d) provides 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.” Fed.R.Civ.P. 12(d).

The Sixth Circuit takes “a liberal view of what matters fall

within the pleadings for purposes of Rule 12(b)(6).” Armengau

v. Cline, 7 F. App'x 336, 344 (6th Cir. 2001). “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). The Court may consider those documents

without converting the motion into a motion for summary

judgement. Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673,

681 (6th Cir. 2011).

Plaintiff has attached three exhibits to his response.

Exhibit A is the decision of the Board of Appeals of the State

of Tennessee reversing the decision to terminate Plaintiff.

(D.E. No. 15-1, 1-6.) The Board of Appeals hears appeals by

state employees in the preferred service system who challenge

their dismissal, demotion, or suspension. Tenn. Code Ann. § 8-

30-318. The Board’s decision contains no discussion of

discrimination. (See id.) It concludes that Plaintiff was fired

because he put his hand on the shoulder of another employee, and

the firing was reversed because doing so was not a significant

violation of Defendant’s policies on workplace violence. (Id.

at 2-5.) Plaintiff does not refer to the decision in his

Complaint. (See D.E. No. 1.) The Court will not consider it in

deciding the Motion.

Exhibit B consists of three letters Plaintiff wrote and an

email he received about his 2016 internal discrimination

complaint. (D.E. 15-2, 1-4.) The three letters are not

mentioned in the Complaint or central to Plaintiff’s claims. In

the first letter, Plaintiff said he felt disrespected because

another employee used a non-racial epithet in response to a

question Plaintiff asked. (Id. at 1.) In the second letter,

Plaintiff said he believed there was corruption in the Tennessee

Department of Corrections and that one person he tried to talk

to about it responded rudely. (Id. at 2.) The third letter

describes an issue Plaintiff had with the assignment of crew

members to a project. (Id. at 3.) Plaintiff said a fellow

employee was trying to find something to get Plaintiff in

trouble. (Id.) None of the letters is referenced in the

Complaint and none is central to the claim of Title VII

discrimination based on race, national origin, or religion. The

Court will not consider them.

The email included in Exhibit B is dated August 29, 2016,

and says a co-worker has discriminated against Plaintiff based

on religion and culture. (Id. at 4.) Plaintiff’s Complaint

refers to this incident. (D.E. No. 1, ¶¶ 11-12.) Discrimination

based on race, religion, and national origin forms the basis of

Plaintiff’s Complaint. The email in Exhibit B is properly before

the Court.

Exhibit C consists of two letters from Plaintiff’s fellow

employees praising Plaintiff and his contributions at work, and

a 2016 letter from Defendant to Plaintiff awarding him “the

Commissioner’s Coin of Excellence in recognition of [his]

outstanding level of service and consistently demonstrating the

department’s core values.” (D.E. No. 15-3, 1-3.) None of the

information in Exhibit C is discussed in the Complaint or

relevant to the central claim of Title VII discrimination based

on of race, religion, or national origin.

The Court will consider only the email attached as Exhibit

B to Plaintiff’s response.

B. Rule 12(b)(6) Failure to State a Claim

Title VII requires equal opportunity in employment. 42

U.S.C. §§ 2000, et seq. An employer is prohibited from

“discriminat[ing] against any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual's race, color, religion, sex, or

national origin.” 42 U.S.C. §2000-e2. The plaintiff has the

initial burden of proving a prima facie case of discrimination.

Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-

253(1981). The plaintiff is not required to plead the prima facie

case of discrimination in his complaint to survive a motion to

dismiss. Swierkiewicz, 534 U.S. at 510. Retaliation claims

under Title VII require the plaintiff to show that the

plaintiff’s protected activity was the but-for cause of the

alleged adverse action by the employer. Univ. of Texas Sw. Med.

Ctr. v. Nassar, 570 U.S. 338, 362 (2013). A plaintiff must plead

a plausible short and plain statement of facts to survive a

motion to dismiss. See Keys, 684 F.3d at 609-610.

A complaint “must allege sufficient ‘factual content’ from

which a court, informed by its ‘judicial experience and common

sense,’ could ‘draw the reasonable inference’” that the employer

discriminated against the plaintiff with respect to plaintiff’s

compensation, terms, conditions, or privileges of employment,

because of the plaintiff’s race, religion, or national origin.

Id., at 610, (quoting Iqbal, 556 U.S. at 678). The Court need

not credit “threadbare recitals” of an element necessary to state

the claim. See White v. Coventry Health & Life Ins. Co., 680 F.

App'x 410, 415 (6th Cir. 2017). “This Court is not required to

accept inferences drawn by Plaintiff if those inferences are

unsupported by the facts alleged in the complaint.” Sam Han v.

Univ. of Dayton, 541 F. App'x 622, 627 (6th Cir. 2013).

The plaintiff must allege specific facts that can lead to

a reasonable inference that discrimination occurred. The Sixth

Circuit has held that a plaintiff’s allegation that she suffered

harassment because she was “constantly berated” and a supervisor

“degraded and humiliated her” were “naked assertions” that added

“noting to the complaint’s sufficiency.” White, 680 F. App'x at

416. Conclusory allegations of discrimination are not sufficient

to survive a motion to dismiss. Han, 541 F. App'x at 626-627.

In Han, the plaintiff alleged that, because of his race and

gender, he was given a negative evaluation by the promotion

committee and was later fired. Id. The court held that, because

the plaintiff alleged no facts beyond a conclusory assertion of

discrimination, he failed to state a claim of Title VII

discrimination. Id. at 627.

In Keys, the plaintiff stated a claim for Title VII

discrimination because she alleged specific instances where she

was treated differently and that other people who shared her

ethnicity were suffering from adverse employment actions despite

their satisfactory performance. Keys, 684 F.3d at 610. The

Sixth Circuit concluded that the plaintiff’s facts “easily state

a plausible claim.” Id.

Plaintiff here alleges that he suffered discrimination when

he was terminated “in retaliation for his religion, race,

national origin, and age,” but he does not allege any specific

instance that would show the action taken against him was based

on his race, religion, or national origin. In his Complaint,

Plaintiff asserts generally that Defendant discriminated against

him because of his race, national origin, and religion, and that

Defendant’s “true motivation” for terminating Plaintiff’s

employment was to discriminate against him based on those

protected categories. (D.E. No. 1, ¶¶ 16-35.) Plaintiff alleges

that Defendant was aware of his race, national origin, and

religion. (Id. at ¶¶ 22, 25, 28.) Plaintiff alleges that he

was replaced by someone who was not Muslim, Egyptian, or Arab.

(Id. at ¶ 33.)

Plaintiff’s allegations are conclusory assertions that do

not state a claim for discrimination under Title VII for

discrimination or retaliation. Plaintiff alleges fewer specific

facts than the plaintiffs in Han or White, whose cases were

dismissed for failure to state a claim. In Han, the plaintiff

alleged that he was given a poor evaluation and fired because of

his race and gender, but did not provide any specific examples

of discrimination. Han, 541 F. App’x at 626-627. In White, the

plaintiff’s allegations that she was harassed by a supervisor

“berating” and “humiliating” her were not sufficiently specific

to state a claim. White, 680 F. App'x at 416.

Plaintiff pleads only the naked assertions that he was

discriminated against because of race, religion, and national

origin. He cites no specific facts supporting his claims of

discrimination or allowing the Court to reasonably infer that he

was discriminated against because of his race, religion, or

national origin. The email from 2016 that Plaintiff has attached

to his response offers no details beyond what Plaintiff has pled

in the Complaint.

Plaintiff alleges that Defendant violated Title VII by

terminating Plaintiff “in retaliation of his Workers’

Compensation filing and settlement. . .” Title VII prohibits an

employer from discriminating against an individual on the basis

“of such individual’s race, color, religion, sex, or national

origin.” 42 U.S.C. § 2000e-2(a)(1). The elements of retaliation

under Title VII require the plaintiff to demonstrate that: “(1)

he engaged in activity protected by Title VII; (2) his exercise

of such protected activity was known by the defendant; (3)

thereafter, the defendant took an action that was ‘materially

adverse’ to the plaintiff; and (4) a causal connection existed

between the protected activity and the materially adverse

action.” Laster v. City of Kalamazoo, 746 F.3d 714, 730 (6th

Cir. 2014) (quoting Jones v. Johanns, 264 F. App’x 463, 466 (6th

Cir. 2007)).

Filing a Workers’ Compensation claim is not a protected

activity under Title VII. Primm v. Dep’t of Human Servs., No.

16-6837, 2017 WL 10646487 (6th Cir. Aug. 17, 2017) (citing Davis

v. Team Elec. Co., 520 F.3d 1080, 1093 fn 8 (9th Cir. 2008)

(“Title VII does not encompass discrimination on the basis of

disability”); Jimenez v. Potter, 211 F. App’x 289 (5th Cir. 2006)

(“Only those activities listed under Title VII are protected

from retaliation, and filing for worker's compensation is not

one”)). Plaintiff fails to state a claim for retaliatory

discharge under Title VII based on his filing a Workers’

Compensation claim because filing a Workers’ Compensation claim

is not a protected activity under Title VII.

Plaintiff also alleges that Defendant violated Title VII by

terminating him in retaliation for filing an internal complaint

for discrimination. Plaintiff fails to state a claim for

retaliatory discharge because he has not demonstrated any causal

connection between the protected activity and his termination.

Plaintiff filed his internal complaint for discrimination in

September 2016. (D.E. No. 1, ¶ 12.) Defendant terminated

Plaintiff on June 15, 2019. (D.E. No. 1, ¶ 10.) Plaintiff

alleges no other facts to support his allegation that Defendant

terminated him in retaliation for filing his discrimination

complaint. Courts require close temporal proximity when

proximity is the only evidence of the causal connection necessary

to establish a plausible claim of retaliatory discharge under

Title VII. Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-

274 (2001) (holding plaintiff’s termination by defendant 20

months after protected action “suggest[s], by itself, no

causality at all.”); see also Evans v. Prospect Airport Servs.,

Inc., 286 F. App’x 889, 895-896 (6th Cir. 2008) (holding that

there was not a reasonable inference of retaliation when almost

a year had passed between the plaintiff’s final EEOC filing and

his termination); Terry v. Memphis Hous. Auth., 422 F. Supp. 2d

917, 923-924 (W.D. Tenn. 2006) (dismissing claim of retaliatory

discharge because one-and-a-half years had passed between the

alleged harassment and the alleged retaliatory act); Navarro-

Teran v. Embraer Aircraft Maint. Servs., Inc., 184 F. Supp. 3d

612, 622 (M.D. Tenn. 2016) (dismissing claim for retaliatory

discharge because the protected activity and the alleged

retaliation took place “a full year apart”). In this case, the

33 months separating Plaintiff’s internal complaint from the

alleged retaliation does not support the reasonable inference of

a causal connection between his protected action and his

termination.

Plaintiff’s claims under Title VII are DISMISSED.

C. Amending the Complaint

In his response, Plaintiff conditionally asks to amend his

Complaint. Plaintiff’s request is not well taken.

Under Rule 15(a)(1)(B), after a motion to dismiss has been

filed, a complaint may be amended only by leave of court.

Fed.R.Civ.P. 15(a)(1)(B). Courts should “freely give leave when

justice requires.” Fed.R.Civ.P. 15(a)(2). The request to amend

a complaint in response to a motion to dismiss, without stating

the grounds on which it is sought, is not a motion for leave to

amend under Rule 15(a) because the request does not comply with

the Rule. PR Diamonds, Inc. v. Chandler, 364 F.3d 671, 699 (6th

Cir. 2004) (quotation and citation omitted), abrogated on other

grounds by Doshi v. Gen. Cable Corp., 823 F.3d 1032 (6th Cir.

2016). A court must have the substance of the proposed amendment

before it to determine whether “justice requires” an amendment.

Roskam Baking Co. v. Lanham Mach. Co., 288 F.3d 895 (6th Cir.

2002). The Sixth Circuit has held that a district court did not

abuse its discretion when it denied the plaintiff’s attempt to

amend the complaint at a hearing when the plaintiff failed to

inform the district court of the facts the plaintiff would use

to support the claim. Beydoun v. Sessions, 871 F.3d 459 (6th

Cir. 2017).

Plaintiff’s conditional request to amend the Complaint in

his response is not a proper motion to amend under Rule 15(a).

Plaintiff seeks leave to amend “should the Honorable Court find

that the complaint does lack sufficient pleading.” (D.E. No.

15, 11.) Plaintiff also asks that the Court allow Plaintiff to

conduct discovery to assist Plaintiff in responding to the

Motion. (Id.) A conditional request is not an appropriate

motion to amend. Plaintiff has not submitted any amendments he

seeks to make or informed the Court of the facts on which he

seeks to rely. (See id.) The Court does not have the substance

of any proposed amendments. Discovery is not appropriate in

deciding a motion to dismiss, which is based on the pleadings.

The conditional request to amend the Complaint in Plaintiff’s

response does not comply with Rule 15(a). It is DENIED.

V. Conclusion

Defendant’s Motion is GRANTED. Plaintiff’s ADA, ADEA,

THRA, Workers’ Compensation, Tennessee law and public policy,

and common law claims are DISMISSED under Rule 12(b)(1).

Plaintiff’s Title VII discrimination and retaliatory discharge

claims are DISMISSED under Rule 12(b)(6). The conditional

request to amend the Complaint in Plaintiff’s response is DENIED.

All of Plaintiff’s claims against Defendant are DISMISSED WITH

PREJUDICE.

So ORDERED this 4th day of January, 2021.

/s/

SAMUEL H. MAYS, JR.

UNITED STATES DISTRICT JUDGE