Turner v. Greyhound Lines, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

GREGORY TURNER, pro se, )

)

Plaintiff, )

v. ) No. 2:19-cv-02840-SHL-atc

)

GREYHOUND LINES, INC., )

)

Defendant.

)

ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING

DEFENDANT’S MOTION TO DISMISS

Before the Court is Magistrate Judge Christoff’s Report and Recommendation on

Defendant’s Motion to Dismiss (R&R), (ECF No. 33), recommending that the Court deny

Defendant’s Motion. Defendant filed Objections to the R&R on November 13, 2020. (ECF No.

34.) The Court considers each portion of the R&R that Defendant specifically objected to de

novo and reviews the remainder for clear error.

BACKGROUND

The following background is taken from Plaintiff’s Amended Complaint, and it is

assumed to be true for the purposes of this Motion. (ECF No. 29.)1

In September of 2018, Plaintiff was enrolled in a training program to become a driver for

Defendant’s bus line. (ECF No. 29.) In this training program, trainees stayed in hotel rooms

with another trainee as a roommate. (ECF No. 29 at PageID 93.) Plaintiff’s roommate

witnessed Plaintiff putting in his hearing aids, and the roommate told other Greyhound

1 Plaintiff included other details about his work environment: he alleged that his co-workers

called him a nickname (“Pop-pe”) and teased him about the fact that he had previously been a

school bus driver. (ECF No. 29.) However, allegations like these, which are not relevant to his

claims, are not included in this section.

employees that Plaintiff had “severe hearing loss.” (ECF No. 29 at PageID 93.) In a later

meeting with two supervisors, Plaintiff, and his roommate, Plaintiff’s hearing loss was discussed

“as though [he couldn’t] hear,” though Plaintiff maintains that he has “never said [he] couldn’t

hear.” (ECF No. 29 at PageID 93.)

On November 1, 2018, still during the training program, Plaintiff was chosen by trainer

Mr. Grey to drive a bus away from the hotel where they had stayed. (ECF No. 29 at PageID 93.)

Plaintiff alleges that he was merging onto the interstate while Grey laughed and talked with other

supervisors. (ECF No. 29 at PageID 93.) Plaintiff asked for further instructions, but he could

not hear the reply due to the noise of the conversation and the plexiglass barrier that surrounded

the driver’s seat. (ECF No. 29 at PageID 93.) Plaintiff thus slowed the bus down, and “almost

came over onto” a car also merging onto the interstate. (ECF No. 29 at PageID 93.) After this

incident, Grey allegedly yelled at Plaintiff and told him he could not hear and should not be

behind the wheel, and that his hearing aids needed new batteries. (ECF No. 29 at PageID 93.)

Plaintiff asked for a new trainer, saying he could not understand Grey or ask Grey to repeat

himself. (ECF No. 29 at PageID 93.)

The next day, November 2, 2018, Plaintiff called supervisor Tim Echoes. (ECF No. 29 at

PageID 94.) Echoes told Plaintiff that Plaintiff had quit the training program the day before,

though Plaintiff alleges he had only requested a different trainer. (ECF No. 29 at PageID 94.)

Despite Plaintiff’s contention that he had not quit the program, he turned in his training materials

to Echoes that evening. (ECF No. 29 at PageID 94.)

A few months later, in March of 2019, Plaintiff applied to be a Greyhound driver again.

(ECF No. 29 at PageID 94.) In June of 2019, after waiting to obtain medical clearance from the

Department of Transportation, Plaintiff was readmitted into Greyhound’s training program.

(ECF No. 29 at PageID 94.) However, Plaintiff alleges that this rehiring was a “ruse,” and he

was “put out” of the program shortly after. (ECF No. 29 at PageID 94 (“The rehire was a ruse. I

was harassed about the setting of mirrors, put out of the training program and given a bus ticket

back to [M]emphis. I didn’t quit the program again.”).)

Plaintiff brought this action in December of 2019, alleging discrimination based on his

disability, hearing loss. He alleges four claims under the Americans with Disabilities Act, 42

U.S.C. 126 § 12101: disability discrimination, retaliation, failure to accommodate and hostile

work environment. Defendant filed a Motion to Dismiss, and the Magistrate Judge

recommended denying that Motion, finding that Plaintiff had satisfied the necessary elements for

each of his four claims. Defendant objected to the findings as to each claim. The Court now

considers the portions of the R&R that Defendant objects to de novo, or without deference to the

findings of the Magistrate Judge.

Report and Recommendation

In Defendant’s Motion to Dismiss, (ECF No. 31), it argues that Plaintiff does not

properly allege all of the elements of his four causes of action—disability discrimination, failure

to accommodate, retaliation, and hostile work environment—and thus states no claim for relief.

The Magistrate Judge found that Plaintiff did plead facts sufficient to state all four claims. (ECF

No. 33.)

As to the disability discrimination claim, Defendant argues that Plaintiff had not alleged

an adverse employment action, as it claims that his rehiring was sufficient to cure his alleged

termination. Further, it argues that Plaintiff “did not allege any facts to plausibly suggest that his

employment was terminated because of any actual or perceived disability.” (ECF No. 31-1 at

PageID 102.) The R&R found that Plaintiff sufficiently established a connection between his

termination and his disability since he was allegedly terminated just after his former supervisor

yelled that he could not hear. (ECF No. 33 at PageID 119.)

As to the failure to accommodate claim, Defendant argued that Plaintiff’s request for a

new trainer was not reasonable. The R&R found that, while this was a “close call,” Plaintiff

adequately alleged that his request was reasonable. Further, the R&R noted that it is difficult to

resolve a fact-intensive inquiry like reasonableness on a motion to dismiss, and courts should

thus be reluctant to grant a motion on those grounds.

As for the retaliation claim, Defendant again argued that the request for a new trainer did

not constitute protected action because it was not reasonable. In addition, it argued the lack of a

causal connection between the so-called protected activity (the request for the trainer) and the

adverse action. The R&R found that, because Plaintiff requested a new trainer—again,

immediately after his trainer criticized his hearing ability—and was allegedly terminated the

same day, the temporal proximity was enough to establish a causal connection between the

request and alleged termination.

Finally, as to the harassing or hostile work environment claim, Defendant argued that the

isolated incident of a supervisor yelling at Plaintiff could not rise to the level of a hostile work

environment. However, in denying the Motion as to this claim, the R&R found that Defendant

minimized the other incident in which Plaintiff’s disability was discussed in a meeting and failed

to acknowledge the severity of the yelling incident.

Thus, the R&R recommended denying Defendant’s Motion to Dismiss as to all four

claims. Defendant objected to the Magistrate Judge’s findings as to all four claims. In its

Objections, Defendant renews the arguments in its initial Motion, and it argues that the

Magistrate Judge’s findings were “contrary to applicable law.” (ECF No. 34 at PageID 129.) It

does not argue that the Magistrate Judge applied an incorrect legal standard, only that the facts as

alleged support granting Defendant’s Motion to Dismiss. (ECF No. 34.)

Standard of Review

District courts may designate magistrate judges to submit findings of fact and

recommendations on various pretrial motions. 28 U.S.C. § 636(b)(1)(B). When a party timely

objects to the magistrate judge’s recommendation on a dispositive issue, the Court must make a

de novo determination before ruling on the motion. 28 U.S.C. § 636(b)(1)(C). The Court is then

free to accept, reject or modify the magistrate judge’s recommendation. Id. The Court need not

review de novo those aspects of the recommendation to which no specific objection is made.

Thomas v. Arn, 474 U.S. 140, 150 (1985). If there is no specific objection, the Court reviews the

recommendation for clear error. Id. at 151.

The Motion before the Court is a Motion to Dismiss Plaintiff’s Amended Complaint.

Federal Rule of Civil Procedure 8(a)(2) requires a complaint to contain “a short and plain

statement of the claim showing that the pleader is entitled to relief.” The purpose of the rule is to

“give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41,

47 (1957)). A pleading must contain more than an unadorned, the-defendant-unlawfully-

harmed-me accusation,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and should “nudge[] [a

plaintiff’s] claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.

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

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

In ruling on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court

must “construe the complaint in the light most favorable to the plaintiff, accept its allegations as

true, and draw all reasonable inferences in favor of the plaintiff.” DirecTV, Inc. v. Treesh, 487

F.3d 471, 476 (6th Cir. 2007). Even so, the complaint “must contain either direct or inferential

allegations respecting all the material elements [of the claim] to sustain a recovery under some

viable legal theory.” First Am. Title Co. v. Devaugh, 480 F.3d 438, 444 (6th Cir. 2007).

While pro se complaints are to be liberally construed, Williams v. Curtin, 631 F.3d 380,

383 (6th Cir. 2011), a court cannot create a claim that is not present in a pleading. See Brown v.

Matauszak, 415 F. App’x 608, 613 (6th Cir. 2011); cf. Pliler v. Ford, 542 U.S. 225, 231 (2004)

(“District judges have no obligation to act as counsel or paralegal to pro se litigants.”). Under 28

U.S.C. 1915(e)(2)(B)(ii), a court must dismiss a pro se complaint if it fails to state a claim.

Analysis

Magistrate Judge Christoff recommends denying Defendant’s Motion to Dismiss,

concluding that Plaintiff states a colorable claim for relief in his Amended Complaint as to each

claim he alleged: disability discrimination, retaliation, failure to accommodate, and hostile work

environment. Defendant objected to this conclusion, arguing that Turner failed to allege

necessary elements of each of his claims based on the facts alleged. Because three claims—

disability discrimination, retaliation, and failure to accommodate—have similar elements and

factual bases, the Court will discuss them together before addressing the hostile work

environment claim. Because the Court concludes that there are sufficient facts to prove each

contested element, the Motion is DENIED.

I. Disability Discrimination, Retaliation and Failure to Accommodate Claims

Defendant argues that Plaintiff has not properly alleged several elements of his disability

discrimination, retaliation, and failure to accommodate claims. For clarity’s sake, the challenged

elements common to these causes of actions are addressed together, such that this Order analyzes

by element, rather than by claim.

As to his disability discrimination claim, the contested elements are whether Plaintiff is

disabled, whether he suffered an adverse action, and whether the employer knew or had reason to

know of his disability. See Yarberry v. Gregg Appliances, Inc., 625 F. App’x 729, 735 (6th Cir.

2015) (quoting Rosebrough v. Buckeye Valley High Sch., 690 F.3d 427, 431 (6th Cir. 2012)).

As to the failure to accommodate claim, the additional contested elements are whether Plaintiff

requested a reasonable accommodation and whether Defendant failed to provide the

accommodation. Hunt v. Monro Muffler Brake, Inc., 769 F. App’x 253, 258 (6th Cir. 2019)

(quoting Brumley v. United Parcel Serv., Inc., 909 F.3d 834, 839 (6th Cir. 2018)). Finally, as to

the retaliation claim, Defendant also contests whether Plaintiff engaged in protected activity,

whether Defendant knew of the protected activity, and whether there was a causal connection

between that activity and an adverse action. See Rorrer v. City of Stow, 743 F.3d 1025, 1046

(6th Cir. 2014). Based on Plaintiff’s allegations, the elements of protected activity and request

for accommodations are one and the same—Plaintiff’s alleged protected activity was his

requesting accommodations for his disability.

In total, Defendant argues that Plaintiff has failed to allege seven elements, some shared

between these three claims. Defendant objects to the Magistrate Judge’s finding that Plaintiff

has adequately pled the following elements: (1) disability, (2) protected action/request for

accommodation, (3) employer’s knowledge of disability, (4) employer knowledge of protected

activity/request for accommodation, (5) adverse action, (6) employer’s failure to provide

accommodation, and (7) causal connection between protected activity and adverse action. Each

of Defendant’s objections is addressed below, beginning with the disability element.

A. Disability

Defendant argues that Turner cannot satisfy the disability element because, according to

Turner’s own position, he is only “regarded as disabled” and does not have a disability that

interferes with his ability to perform work tasks. (See ECF No. 29 (Plaintiff describing himself

as such).) However, the Court must construe pro se complaints broadly, and Plaintiff later

alleges that his hearing loss caused him to almost collide with a car. (ECF No. 29.) This

statement may be interpreted as an allegation that his disability does interfere with an essential

function of his work, driving a bus. Thus, the Court will construe his Amended Complaint

broadly to argue that he has a disability that interferes with his work and, in the alternative, is

“regarded as disabled” under the ADA. The disability element is thus satisfied for the purposes

of the Motion to Dismiss.

B. Protected Activity and Request for Accommodations

Turner alleged sufficient facts to show that he engaged in protected activity by requesting

a new trainer. While it is true that requesting a new supervisor is a disfavored accommodation

under the ADA, a Plaintiff may justify the request by showing that he could only perform his

duties if he were granted the transfer. See Cardenas-Meade v. Pfizer, Inc., 510 F. App’x 367,

372 (6th Cir. 2013). Defendant first argues that Turner cannot meet this standard because, he is

only “regarded as disabled” and there is no duty to accommodate an employee who is only

regarded as disabled. See Baker v. Windsor Republic Doors, 414 F. App’x 764, 774 (6th Cir.

2011). However, the Court dismisses this argument supra.

Defendant further argues that Plaintiff does not say how the transfer would enable him to

perform his work duties. However, Plaintiff alleges that he requested a transfer because he could

not understand Mr. Grey and felt that he could not ask him to repeat himself. (ECF No. 29 at

PageID 93.) Reading the complaint in the light most favorable to Plaintiff, as the Court must,

Plaintiff alleges that a new trainer would speak more clearly or agree to repeat himself, thus

enabling Plaintiff to perform his job duties. While the facts, once developed, may prove

otherwise, at this stage Plaintiff has alleged that he engaged in a protected activity by requesting

a reasonable accommodation.

C. Employer Knowledge of Disability; Employer Knowledge of Protected Action

Reading the Complaint in the light most favorable to Plaintiff and assuming his

allegations to be true, Defendant was aware of Plaintiff’s disability and the request was tied to

that disability. First, Defendant’s awareness of the disability is alleged—according to Plaintiff,

Defendant’s employees discussed it at a staff meeting. Second, as discussed supra, Plaintiff tied

his request to his disability when he said he could not hear his supervisor.

D. Adverse Employment Action and Failure to Provide Accommodation

Defendant argues in its Objection that Plaintiff has not alleged an adverse employment

action because he was rehired. However, as the R&R notes, the circumstances around Turner’s

termination and his readmission into the training program are unclear. (ECF No. 33 at PageID

119.) Turner alleges that his readmission was pretextual and that he was quickly terminated

again afterward. (ECF No. 29 at PageID 94.) Taking this allegation as true, the pretextual

readmission to the training program cannot cure the alleged initial termination, which would be

an adverse employment action. See Bryson v. Regis Corp., 498 F.3d 561, 571 (6th Cir. 2007)

(holding termination is an adverse employment action). Again, at this stage of litigation,

Plaintiff’s allegations are assumed to be true. For the purposes of a Motion to Dismiss, Plaintiff

has adequately alleged the adverse action element.

Defendant further argues that the rehiring shows that Defendant did provide Plaintiff with

an accommodation because, on his rehiring, Plaintiff was assigned a different supervisor. For

the same reasons that the allegedly pretextual rehiring and prompt termination cannot cure the

initial termination, they cannot cure Defendant’s alleged failure to provide reasonable

accommodations to Plaintiff. Thus, Plaintiff has also sufficiently alleged that Defendant denied

his reasonable request for accommodation.

E. Causal Connection

Finally, Defendant argues that, even if the request was a protected action and the

termination was an adverse employment action, there is no causal connection between the two.

However, “proximity in time between the protected activity and the adverse employment action

may constitute evidence of a causal connection.” Bryson v. Regis Corp., 498 F.3d 561, 571 (6th

Cir. 2007). Here, the adverse employment action (termination) allegedly occurred within one

day of the protected activity (the request for a new trainer). Thus, Plaintiff has alleged sufficient

facts as to this element as well.

II. Hostile Work Environment

Defendant argues that Turner did not state a hostile work environment or harassment

claim. To maintain an action for a hostile work environment under the ADA, the employee must

demonstrate that: “(1) he was disabled; (2) he was subject to unwelcome harassment; (3) the

harassment was based on his disability; (4) the harassment unreasonably interfered with his work

performance; and (5) the defendant either knew or should have known about the harassment and

failed to take corrective measures.” Trepka v. Bd. of Educ., 28 F. App’x 455, 461 (6th Cir.

2002). “To prevail, the employee must show conduct that is ‘sufficiently severe or pervasive to

alter the conditions of the victim’s employment and [to] create an abusive working

environment.’” Id. (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)).

The R&R found that Turner did allege sufficient facts to prove each element. Turner

alleges two discrete incidences of discriminatory harassment. First, his roommate noticed his

hearing loss and brought it up at a staff meeting, discussing it as if Turner could not hear, when

he has only partial hearing loss. Second, when Turner could not understand a driving instruction

and thus almost caused a collision, his trainer, Mr. Grey, yelled that Turner cannot hear, that he

should not be behind the wheel, and that he needed to put new batteries in his hearing aids.

(ECF No. 29 at PageID 93.)

Defendant argues that Turner has not stated a hostile work environment claim because

the comments did not interfere with his work performance and one “isolated” incident cannot

rise to the level of hostile work environment. (ECF No. 34 at PageID 137.) However, one of the

incidents, when Mr. Grey allegedly berated Plaintiff, occurred while Plaintiff was driving a bus

as part of his employment. This allegation makes it plausible that the harassment did interfere

with Plaintiff’s employment duties. Further, Defendant seems to ignore the discussion of

Plaintiff’s disability in a staff meeting, not mentioning the incident at all in its argument

regarding hostile work environment. Plaintiff had alleged more than a single incident of

harassment. Thus, Defendant’s argument that this was a mere “isolated” event cannot succeed.

Taking all of Plaintiff’s allegations as true, these two incidents could plausibly rise to the

level of a hostile work environment. Plaintiff has done more than give a “formulaic recitation”

of the elements of a hostile work environment, so his claim will survive a motion to dismiss.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Again, while the proof as developed may

show otherwise, the allegations and the overall context do allow a reasonable inference that the

workplace was permeated with discrimination so as to create a hostile or harassing work

environment. See, e.g., Harris-Bethea v. Babcock & Wilcox Tech. Servs. Y-12, LLC, No. 3:13-

CV-669-TAV-HBG, 2015 WL 1458042, at *12 (E.D. Tenn. Mar. 30, 2015). Thus, Defendant’s

Motion to Dismiss Plaintiff’s hostile work environment claim is DENIED.

Conclusion

The Court reviewed all recommendations objected to de novo, and it reaches the same

conclusion as the Magistrate Judge. The remainder of the R&R was reviewed for clear error, but

none was found. Therefore, the Report and Recommendation is ADOPTED, and Defendant’s

Motion to Dismiss is DENIED.

IT IS SO ORDERED, this 19th day of March, 2021.

s/ Sheryl H. Lipman

SHERYL H. LIPMAN

UNITED STATES DISTRICT JUDGE