Dickson v. NPSG GLOBAL LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

)

MARLO DICKSON, )

)

Plaintiff, )

)

v. ) No. 2:20-cv-2814-SHM-tmp

)

NPSG GLOBAL, LLC, AMAZON.COM )

SERVICES, LLC, and TRUEBLUE, )

INC. dba “PEOPLE READY,” )

)

Defendants. )

ORDER GRANTING PLAINTIFF’S MOTION TO AMEND AND DENYING AS MOOT

DEFENDANTS’ MOTIONS TO DISMISS

Marlo Dickson (“Plaintiff”) brings this action against NPSG

Global, LLC (“NPSG”), Amazon.com Services, LLC (“Amazon”), and

TrueBlue, Inc. (“TrueBlue”) (collectively, “Defendants”)

alleging violations of Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000e, et seq. (“Title VII”) and the Tennessee Human

Rights Act, T.C.A. §§ 4-21-101, et seq. (the “THRA”). Before

the Court are three motions. The first is Amazon’s Motion to

Dismiss for Failure to State a Claim. (D.E. No. 15.) The second

is TrueBlue’s Partial Motion to Dismiss for Failure to State a

Claim. (D.E. No. 25.) The third is Plaintiff’s Motion to Amend

her Complaint. (D.E. No. 31.) The motions are ripe for

consideration. (D.E. Nos. 15, 25, 31-32.) The Motion to Amend

is GRANTED. Amazon’s Motion to Dismiss is DENIED AS MOOT.

TrueBlue’s Partial Motion to Dismiss is DENIED AS MOOT.

I. Background

Unless otherwise noted, the facts are taken from the

Complaint. (D.E. No. 1.) In April 2018, Plaintiff was hired by

TrueBlue to work for NPSG in Amazon facilities on a traveling

basis. (Id. at ¶ 10.) Plaintiff’s first assignment was in

Michigan. In September 2018, she was reassigned to an Amazon

facility in Memphis, Tennessee. (Id. at ¶¶ 10-11.) While

working at the Memphis Amazon facility, Plaintiff began receiving

threats and unwanted sexual remarks and advances from Stacey

Holliday (“Holliday”), who worked at the same facility. (Id. at

¶¶ 12, 16-20.) Plaintiff complained to her supervisors, NPSG

employees Shawn Salimeno (“Salimeno”) and Anthony King. (Id. at

¶¶ 21, 23.) The unwanted contact with Holliday continued after

Plaintiff’s reports, prompting Plaintiff to report the contact

again by a handwritten letter to Salimeno. (Id. at ¶¶ 24-25.)

Salimeno attempted to bring Plaintiff and Holliday together

to discuss the unwanted contact, but Plaintiff refused because

she felt unsafe. (Id. at ¶¶ 26-27.) Plaintiff intended to call

9-1-1, but Salimeno suggested Plaintiff talk with NPSG’s Regional

Manager Shane Wixon (“Wixon”) instead. (Id. at ¶¶ 29-30.)

Plaintiff agreed but was dissatisfied with her conversation with

Wixon. (Id. at ¶ 32.)

An NPSG Human Resources Manager had Salimeno place Holliday

on “Do No Return” (“DNR”) status. (Id. at ¶¶ 33, 36.) Because

Holliday was to be placed on DNR status, Plaintiff chose to

return to work. (Id. at ¶ 34.) Salimeno notified Holliday of

the decision to place her on DNR status. (Id. at ¶ 36.)

Immediately after receiving that notice, Holliday ran toward

Plaintiff. (Id.) Security personnel onsite saw Holliday running

toward Plaintiff and instructed Plaintiff to run away. (Id. at

¶¶ 38-39.) Holliday caught up to Plaintiff, grabbed her, and

punched her in the face and head multiple times. (Id. at ¶ 40.)

Plaintiff passed out and was transferred to a hospital by

Salimeno when Plaintiff regained consciousness. (Id. at ¶¶ 41-

42.) Plaintiff reported the incident on Amazon’s complaint

telephone line. (Id. at ¶ 44.) The incident was also reported

to Bob Steiger, an Amazon supervisor at the Memphis facility.

(Id. at ¶ 45.) Defendants arranged for Plaintiff to seek

treatment and to return to Michigan. (Id. at ¶ 46.)

Plaintiff was instead relocated to an Amazon facility in

New York, where she lost consciousness during work. (Id. at ¶¶

47-48.) Other people working in that facility transported

Plaintiff to the hospital while she was unconscious. (Id. at ¶

49.) Plaintiff’s treating physician at the New York hospital

diagnosed her with a Traumatic Brain Injury and recommended that

she not return to work. (Id. at ¶ 50.) Plaintiff continues to

suffer from her injuries and requires care from a psychologist

and a neurologist. (Id. at ¶ 51.) Defendants terminated

Plaintiff and refuse to allow her to return to work. (Id. at ¶

52.)

As shown in an exhibit submitted by TrueBlue, Plaintiff

filed a Charge of Discrimination with the Equal Employment

Opportunity Commission alleging Title VII and THRA violations on

February 28, 2019. (D.E. No. 25-2.)

On November 11, 2020, Plaintiff filed suit against TrueBlue,

Amazon, and NPSG. (D.E. No. 1.) In her Complaint, Plaintiff

alleges discrimination on the basis of sex, harassment on the

basis of sex, retaliation on the basis of sex, discrimination on

the basis of race, harassment on the basis of race, and

retaliation on the basis of race, all in violation of Title VII.

(Id. at ¶¶ 55-131.) Plaintiff alleges retaliation on the basis

of sex in violation of the THRA. (Id. at ¶¶ 132-145.)

On February 2, 2021, Amazon filed a Motion to Dismiss the

Complaint. (D.E. No. 15.) Amazon argues that the Complaint

should be dismissed because Plaintiff has failed to sufficiently

plead that Amazon was her employer, an essential element of her

claims.

On March 1, 2021, TrueBlue moved to dismiss counts III, IV,

V, VI, and VII of the Complaint with prejudice. (D.E. No. 25.)

TrueBlue argues that Plaintiff’s race discrimination, race

harassment, race retaliation, and sex retaliation claims under

Title VII should be dismissed for failure to exhaust her

administrative remedies. (D.E. No. 25-1, at 85-86, 88-90.)

TrueBlue argues that Plaintiff’s race discrimination and race

harassment claims should be dismissed for failure to plead

sufficient facts. (Id. at 86-87.) TrueBlue argues that

Plaintiff’s THRA sex retaliation claim should be dismissed

because the statute of limitations has run. (Id. at 90-91.)

On March 18, 2021, Plaintiff filed a Corrected Motion to

Amend her Complaint with an accompanying Brief and a proposed

amended complaint attached as an exhibit. (D.E. No. 31.)

Plaintiff requests permission to amend to plead additional facts

and assert alternative theories of liability against TrueBlue

and Amazon. (Id. at 166-168.)

On March 30, 2021, TrueBlue filed a Response in Opposition

to Plaintiff’s Motion to Amend. (D.E. No. 32.) TrueBlue argues

that amendment would be futile, delay the litigation, and

prejudice TrueBlue. (Id. at 191-195.)

II. Jurisdiction

Plaintiff’s Title VII claims are federal questions over

which the Court has jurisdiction under 28 U.S.C. § 1331.

Plaintiff’s THRA claim is one of state law. Where a state

law claim shares a “common nucleus of operative fact” so as to

“form part of the same case or controversy” as the federal law

claim, a federal court has supplemental jurisdiction over the

state law claim under 28 U.S.C. § 1367. Kubala v. Smith, 984

F.3d 1132, 1137 (6th Cir. 2021) (citations omitted). “Where

[courts] ha[ve] found a common nucleus of operative fact, the

factual connection between the state and federal claims most

often involve the same incident.” Id. The Court has

supplemental jurisdiction over Plaintiff’s THRA claim because it

arises from the same incident as, and shares a common nucleus of

operative fact with, the Title VII claims.

III. Standard of Review

A. Rule 15(a)(2)

“The [C]ourt should freely give leave [to amend] when

justice so requires.” Fed.R.Civ.P. 15(a)(2). The U.S. Supreme

Court has emphasized that a plaintiff “ought to be afforded an

opportunity to test his claim on the merits.” Foman v. Davis,

371 U.S. 178, 182 (1962). Absent “undue delay, bad faith or

dilatory motive on the part of the movant, repeated failure to

cure deficiencies by amendments previously allowed, undue

prejudice to the opposing party by virtue of allowance of the

amendment, [or] futility of amendment . . . the leave sought

should, as the rules require, be ‘freely given.’” Id.

To deny a motion to amend, a court must find “at least some

significant showing of prejudice to the opponent.” Moore v.

City of Paducah, 790 F.2d 557, 562 (6th Cir. 1986). An amendment

is prejudicial where it “require[s] the opponent to expend

significant additional resources to conduct discovery and

prepare for trial” or “significantly delay[s] the resolution of

the dispute.” See Phelps v. McClellan, 30 F.3d 658, 662-63 (6th

Cir. 1994). A motion to amend will also be denied when the

amendment is considered futile, that is “when the proposed

amendment would not permit the complaint to survive a motion to

dismiss.” Miller v. Calhoun Cty., 408 F.3d 803, 817 (6th Cir.

2005) (citing Neighborhood Dev. Corp. v. Advisory Council on

Historical Pres., 632 F.2d 21, 23 (6th Cir. 1980)).

B. Rule 12(b)(6)

Rule 12(b)(6) of the Federal Rules of Civil Procedure

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).

A Rule 12(b)(6) motion permits the “defendant to test whether,

as a matter of law, the plaintiff is entitled to legal relief

even if everything alleged in the complaint is true.” Mayer v.

Mylod, 988 F.2d 635, 638 (6th Cir. 1993) (citing Nishiyama v.

Dickson Cty., 814 F.2d 277, 279 (6th Cir. 1987)). If a plaintiff

fails to plead a cognizable claim from the outset of the

litigation, a motion to dismiss permits a court to dismiss the

case as meritless to prevent wasting judicial resources or

conducting unnecessary discovery. See Brown v. City of Memphis,

440 F. Supp. 2d 868, 872 (W.D. Tenn. 2006).

When evaluating a motion to dismiss for failure to state a

claim, the Court must determine whether the complaint alleges

“sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). A claim is plausible on its face if

“the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Id. A complaint need not contain

detailed factual allegations; however, a plaintiff's

“[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Id.

In a Title VII action, a plaintiff is not required to

establish a prima facie case of discrimination to survive a

motion to dismiss. Swierkiewicz v. Sorema N.A., 534 U.S. 506,

515 (2002). Title VII actions apply the Twombly and Iqbal

“plausibility” standard, but “[i]f a reasonable court can draw

the necessary inference from the factual material stated in the

complaint, the plausibility standard has been satisfied.” Keys

v. Humana, Inc., 684 F.3d 605, 610 (6th Cir. 2012) (confirming

that Twombly and Iqbal did not abrogate Swierkiewicz).

IV. Analysis

Plaintiff moves to amend her Complaint to allege additional

facts and assert alternative theories of liability against

TrueBlue and Amazon. Defendant Amazon argues that Plaintiff’s

original Complaint should be dismissed because it fails to allege

sufficient facts to state a claim upon which relief can be

granted. Defendant TrueBlue argues that Counts III, IV, V, VI,

and VII of Plaintiff’s original Complaint should be dismissed

for failure to allege sufficient facts, failure to exhaust

administrative remedies, and failure to file suit within the

applicable statutes of limitations.

A. Plaintiff’s Motion to Amend

Plaintiff moves to amend her Complaint to (1) add factual

allegations to establish Defendant Amazon as her employer during

the relevant time periods and (2) plead alternative theories of

liability against Defendants TrueBlue and Amazon. Only TrueBlue

opposes the Motion to Amend, arguing that it should be denied

because amendment would be futile and would prejudice TrueBlue

and cause undue delay.

1. Prejudice and Delay

TrueBlue argues it would be prejudiced by amendment because

of undue delay. (D.E. No. 32, at 190-91, 194-95.) Undue delay

alone, without significant prejudice to a defendant, is an

insufficient reason to deny a motion to amend. Moore, 790 F.2d

at 562 (holding it was an abuse of discretion to deny amendment

because of undue delay where there was only “relatively light

prejudice” to defendant); see Wade v. Knoxville Utilities Bd.,

259 F.3d 452, 459 (6th Cir. 2001) (“[D]elay alone was not

sufficient reason to deny the amendment . . . .”).

TrueBlue argues that any amendment would require it to spend

additional time reviewing the amendment and preparing a response.

(D.E. No. 32, at 194-195.) That is not undue prejudice or delay

that warrants denial of a motion amend. See, e.g., Phelps, 30

F.3d at 662-63 (listing possible ways undue prejudice can be

established to include, among others, when the opponent must

expend significant additional resources to conduct discovery and

prepare for trial or when amendment would significantly delay

resolution of the case). TrueBlue has failed to show, nor can

the Court identify, any ascertainable prejudice to TrueBlue or

any undue delay from allowing Plaintiff to amend.

2. Futility

TrueBlue argues that amendment would be futile because

Plaintiff’s amended complaint would fail to withstand TrueBlue’s

arguments in the Partial Motion to Dismiss. (D.E. No. 32, at

192.) Plaintiff brings claims under Title VII and the THRA.

(D.E. Nos. 1, 31-1.) TrueBlue argues that Plaintiff has failed

to exhaust her administrative remedies before the EEOC and that

Counts III, IV, V, VI, and VII are time-barred under their

respective statutes. (D.E. No. 32, at 192).

In considering a motion to dismiss, a court draws all

inferences and resolves all ambiguities in favor of the

Plaintiff. Rembisz v. Lew, 590 F. App’x 501, 504 (6th Cir.

2014); Lutz v. Chesapeake Appalachia, L.L.C., 717 F.3d 459, 464

(6th Cir. 2013). The party defending against a motion to dismiss

does not have to raise a “triable issue of fact on an affirmative

defense.” Rembisz, 590 F. App’x at 504. “[B]oth statute of

limitations and exhaustion of administrative remedies are

affirmative defenses, on which a defendant bears the ultimate

burden of proof.” Id. at 503 (citing Surles v. Andison, 678

F.3d 452, 458 (6th Cir. 2012)).

In Rembisz, the plaintiff filed suit alleging Title VII

employment discrimination, and the defendant moved to dismiss

because the complaint was not timely filed under 42 U.S.C. §

2000e–16(c). Id. at 502. On appeal, the Sixth Circuit held

that the trial court incorrectly relied on the defendant’s

assertions in the motion to dismiss and reversed the dismissal

of the complaint. Id. at 504.

The court reasoned that the trial court should have

“accept[ed] the well-pleaded allegations of [the] complaint as

true,” and any facts raised by the defendant as an affirmative

defense, such as facts to establish the expiration of a statute

of limitations or a failure to exhaust administrative remedies,

were not to be considered in ruling on a motion to dismiss. Id.

at 504. A motion to dismiss can be granted based on a statute

of limitations or exhaustion issue only “if a plaintiff

affirmatively pleads himself out of court.” Id. at 503-504; see

also Lutz, 717 F.3d at 464.

Here, Plaintiff has not affirmatively shown in her Complaint

or her proposed amended complaint that any of her claims are

time-barred or that she has failed to exhaust her administrative

remedies. (D.E. Nos. 1, 31-1.) Plaintiff does not specifically

allege that her Complaint contains facts beyond those reasonably

connected with the facts and allegations in her EEOC Charge.

Plaintiff does not specifically allege when she filed her EEOC

charge. Plaintiff does not specifically allege dates showing

that the statute of limitations has run on her THRA claim. In

fact, Plaintiff alleges in her proposed amended complaint that

retaliation in the form of failure to rehire continues presently,

suggesting the statute of limitations period has not yet begun

to run. (D.E. No. 31-1 ¶ 143.)

TrueBlue’s arguments are not well taken. Plaintiff has not

affirmatively pled dates to show whether the statutes of

limitations for her Title VII or THRA claims have run. Plaintiff

has not affirmatively pled any facts about her administrative

remedies. Plaintiff is not required to raise a triable issue on

TrueBlue’s affirmative defenses at this stage. See Rembisz, 590

F. App’x at 504. TrueBlue’s arguments require drawing inferences

against Plaintiff, but in considering TrueBlue’s motion, all

inferences must be drawn in Plaintiff’s favor. See id.

Plaintiff has not “affirmatively pled [her]self out of court,”

and she is not required to overcome TrueBlue’s affirmative

defenses in her Complaint or her proposed amended complaint. Id.

Plaintiff’s amendment would not be futile.

The Motion to Amend is neither futile nor unduly

prejudicial. Defendant’s opposition is not well taken.

Plaintiff’s Motion to Amend is GRANTED.

B. Amazon’s Motion to Dismiss

Because the Motion to Amend is GRANTED, Amazon’s Motion to

Dismiss is DENIED AS MOOT. The Motion to Dismiss refers to the

original Complaint, which will no longer be operative once

Plaintiff files her Amended Complaint to comply with this Order.

See Clark v. Johnston, 413 F. App’x 804, 811 (6th Cir. 2011)

(“When a pleading is amended pursuant to Federal Rule of Civil

Procedure 15(a), the amended pleading supersedes the original

pleading, i.e., the original pleading no longer performs any

function in the case and any subsequent motion made by an

opposing party should be directed at the amended pleading . . .

.”) (quotation omitted); see also Durbin v. AmeriCredit Financial

Servs., Inc., 466 F. Supp. 3d 743, 746 n.3 (W.D. Ky. 2020) (“The

filing of the First Amended Complaint rendered moot the many

motions to dismiss the Complaint.”).

C. TrueBlue’s Partial Motion to Dismiss

As noted, an amended pleading supersedes the original

pleading and renders prior motions to dismiss the original

pleading moot. However, where “a defect raised in a motion to

dismiss remains in an amended pleading, a court may consider the

original motion as addressing the new pleading.” Campinha-Bacote

v. Hudson, 627 F. App’x 508, 510 (6th Cir. 2015) (citing 6

Charles Alan Wright, et al., Fed. Prac. and Proc. § 1476 (2d ed.

1990)). Courts typically consider the original motion to dismiss

where a plaintiff who has amended seeks a default on the ground

that defendant has not responded to the amended complaint. See,

e.g., id.; Yates v. Applied Performance Techs., Inc., 205 F.R.D.

497, 499-500 (S.D. Ohio 2002); see also Sony/ATV Music Publ’g,

LLC v. CAVS USA, Inc., No. 3:08-0265, 2009 WL 2177110, at *2 n.2

(M.D. Tenn. July 21, 2009); cf. Clark v. Hoops, LP, No. 07-2367

JPM-TMP, 2008 WL 11320001, at *1 n.1 (W.D. Tenn. July 1, 2008)

(considering the motion to dismiss after amendment where the

grounds for the motion to dismiss remained following the

amendment).

Plaintiff’s proposed amended complaint contains no defects

to resolve at the motion to dismiss stage. Amendment would not

prejudice TrueBlue or unduly delay litigation. Considering the

statute of limitations and exhaustion issues, Plaintiff has not

affirmatively pled herself out of court. TrueBlue’s Partial

Motion to Dismiss is DENIED AS MOOT.

V. Conclusion

The Motion to Amend is GRANTED. Amazon’s Motion to Dismiss

is DENIED AS MOOT. TrueBlue’s Partial Motion to Dismiss is

DENIED AS MOOT. Plaintiff is DIRECTED to file her First Amended

Complaint within fourteen (14) days of the entry of this Order.

SO ORDERED this 12th day of August, 2021.

/s/ Samuel H. Mays, Jr.

SAMUEL H. MAYS, JR.

UNITED STATES DISTRICT JUDGE