Houston v. Memphis Light Gas & Water Division

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

)

KIMBERLY HOUSTON, )

)

Plaintiff, )

)

)

)

v. ) No. 2:21-cv-2393

)

MEMPHIS LIGHT, GAS AND WATER )

DIVISION, INTERNATIONAL )

BROTHERHOOD OF ELECTRICAL )

WORKERS, INTERNATIONAL )

BROTHERHOOD OF ELECTRICAL )

WORKERS LOCAL UNION 1288, AND

WILLIAM “RICK” THOMPSON,

Defendants.

ORDER

This is a workplace harassment and discrimination case.

Plaintiff Kimberly Houston brings the action under Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e (“Title VII.”)

Before the Court are five motions: Defendant International

Brotherhood of Electrical Workers Local Union 1288’s (“Local

Union 1288”) Motion to Dismiss (ECF No. 23), Defendant

International Brotherhood of Electrical Workers’ (“IBEW”) Motion

to Dismiss (ECF No. 24), Defendant William Thompson’s Motion to

Dismiss (ECF No. 31), Defendant IBEW’s Motion to Dismiss

Defendant Memphis Light, Gas and Water Division’s (“MLGW”)

crossclaims (ECF No. 52), and Defendant Local Union 1288’s Motion

to Dismiss MLGW’s crossclaims (ECF No. 54.) For the following

reasons, IBEW and Local Union 1288’s Motions to Dismiss are

DENIED. Thompson’s Motion to Dismiss is GRANTED in part and

DENIED in part. IBEW and Local Union 1288’s Motions to Dismiss

MLGW’s crossclaims are GRANTED in part and DENIED in part.

I. Background

The facts are taken from Houston’s Second Amended Complaint.

(ECF No. 22.)

Houston started working at MLGW in 2002. (Id. ¶ 13.) In

February 2018, she accepted a position as the Assistant Business

Manager for Local Union 1288, a chapter of IBEW that represents

MLGW employees. (Id. ¶¶ 9, 14.) As Assistant Business Manager,

Houston reported to Thompson, Local Union 1288’s Business

Manager. (Id. ¶ 14.) Houston and Thompson retained their status

as MLGW employees while working for Local Union 1288. (Id. ¶

15.) Thompson reported directly to IBEW Vice President Brent

Hall. (Id. ¶ 20.)

Thompson and Houston had a consensual romantic relationship

while working for Local Union 1288. (Id. ¶ 24.) Houston ended

the relationship in May 2020. (Id. ¶ 25.) Thereafter, Thompson

began sexually harassing Houston. He “aggressively

communicated” his anger with Houston for ending the relationship

and repeatedly asked Houston for sex. (Id. ¶ 26.) Houston

rejected Thompson’s requests. (Id.) Thompson threatened adverse

employment actions against Houston if she did not submit to his

sexual advances. (Id. ¶ 27.) He began assigning Houston tasks

not usually assigned to an Assistant Business Manager and became

overtly and unjustly critical of her work. (Id. ¶ 29.)

Around September 2020, MLGW investigated Thompson for

sexual harassment. (Id. ¶¶ 32-33.) MLGW notified Thompson and

Brent Hall that it had initiated an investigation, but IBEW and

Local Union 1288 did not join MLGW’s investigation or separately

investigate Thompson’s behavior. (Id. ¶¶ 34-38.) Houston did

not submit a sexual harassment complaint against Thompson and

did not want to participate in the investigation. (Id. ¶¶ 40,

42.) MLGW told Houston that she was obligated to participate,

and she eventually agreed to give an interview. (Id. ¶ 42.)

Thompson was angry about the investigation and Houston’s

role in it. To get back at Houston, he went on Local Union

1288’s radio station and gave a series of interviews defaming

and harassing her. (Id. ¶ 48.) Every MLGW and Local Union 1288

employee could have listened to the broadcasts. (Id.) Houston

was embarrassed and shunned at work because of Thompson’s

statements, which caused her to suffer from depression. (Id. ¶

49.) She sent recordings of Thompson’s radio interviews to IBEW

and Local Union 1288. (Id. ¶ 51.) Neither party investigated

Thompson’s comments. (Id.) On October 29, 2020, Thompson barred

Houston from attending Local Union 1288 board meetings. (Id. ¶

54.) Houston complained to IBEW and Local Union 1288 about

Thompson’s behavior but received no response. (Id. ¶ 59.)

On December 14, 2020, Thompson terminated Houston after

discussing the decision with MLGW, IBEW, and Local Union 1288’s

Executive Board. (Id. ¶ 60.) Thompson told Houston he

terminated her after considering several factors, including the

need to reduce expenses. (Id. ¶ 65.) Thompson retained the

other Assistant Business Manager, Corey Hester, who was hired as

an Assistant Business Manager after Houston. (Id. ¶¶ 62, 64.)

An investigation revealed that Thompson had fabricated the bases

for terminating Houston, but Defendants took no further action.

(Id. ¶ 67.) 1 IBEW later investigated Thompson for

misappropriation of funds. (Id. ¶ 68.)

On June 2, 2021 Houston filed her Second Amended Complaint

(Id.) She brings claims of retaliation, gender discrimination,

quid pro quo sexual harassment, and hostile work environment

under Title VII and claims of negligent supervision against all

Defendants. She brings a claim of intentional infliction of

emotional distress (“IIED”) under Tennessee law against

Thompson. (Id.)

1 The Second Amended Complaint does not specify which Defendants

conducted the investigation.

On June 16, 2021, Local Union 1288 and IBEW separately

filed Motions to Dismiss. (ECF Nos. 23, 24.) On June 21, 2021,

Thompson filed his Motion to Dismiss. (ECF No. 31.) On September

29, 2021, MLGW filed its answer to Houston’s Second Amended

Complaint and crossclaims against IBEW, Local Union 1288, and

Thompson. (ECF No. 45.) MLGW alleges promissory estoppel and

quantum meruit against IBEW and Local Union 1288, contribution

against IBEW, Local Union 1288, and Thompson, and indemnification

against Local Union 1288. (Id.) On October 27, 2021, IBEW and

Local Union 1288 separately filed Motions to Dismiss MLGW’s

crossclaims. (ECF Nos. 52, 54.)

II. Standard of Review

Federal Rule of Civil Procedure 12(b)(6) allows dismissal

of a complaint that “fail[s] to state a claim upon which relief

can be granted.” Fed. R. Civ. P. 12(b)(6). When evaluating a

motion to dismiss for failure to state a claim, a 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) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). A court must construe the complaint in the light most

favorable to the plaintiff and draw all reasonable inferences in

her favor. Golf Vill. N., LLC v. City of Powell, 14 F.4th 611,

617 (6th Cir. 2021) (citing Cahoo v. SAS Analytics, Inc., 912

F.3d 887, 897 (6th Cir. 2019)).

If a court decides, in light of its judicial experience and

common sense, that the claim is not plausible, the case may be

dismissed at the pleading stage. Iqbal, 556 U.S. at 679. The

“[f]actual allegations must be enough to raise a right to relief

above the speculative level.” Ass’n Cleveland Fire Fighters v.

City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007) (quoting

Twombly, 550 U.S. at 555). 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.” Iqbal, 556 U.S. at 678 (citing Twombly,

550 U.S. at 556).

III. Analysis

A. The Motions to Dismiss Houston’s Claims

Local Union 1288, IBEW, and Thompson have filed Motions to

Dismiss. (ECF Nos. 23, 24, 31.) Houston opposes the Motions.

(ECF Nos. 34,35,36.) MLGW opposes Local Union 1288 and IBEW’s

Motions. (ECF No. 33.)

1. Local Union 1288’s Motion to Dismiss

Local Union 1288 seeks dismissal of Houston’s Title VII

claims because it is not an employer under the Act. (ECF No.

23.) Title VII defines an employer as a “person engaged in an

industry affecting commerce who has fifteen or more employees

for each working day in each of twenty or more calendar weeks in

the current or preceding calendar year, and any agent of such a

person[.]” 42 U.S.C. § 2000e(a). Local Union 1288 does not

have 15 or more employees. (ECF No. 23-1.) Local Union 1288

may still be considered an employer for purposes of Title VII

under the single or joint employer doctrines. See Swallows v.

Barnes & Noble Book Stores, Inc., 128 F.3d 990, 993 (6th Cir.

1997).

Houston and MLGW argue that the Second Amended Complaint

alleges sufficient facts to plausibly state that Local Union

1288 and MLGW were Houston’s single employer. Under the single

employer doctrine, two nominally independent companies may be

considered so interrelated that they constitute a single employer

subject to liability. Id. With a single employer, all employees

are aggregated to determine whether the numerosity requirement

for Title VII has been met. Sanford v. Main St. Baptist Church

Manor, Inc., 449 F. App’x 488, 491 (6th Cir. 2011).

To determine whether to treat two entities as a single

employer, courts consider: (1) interrelation of operations,

i.e., common offices, common record keeping, shared bank accounts

and equipment; (2) common management, common directors and

boards; (3) centralized control of labor relations and

personnel; and (4) common ownership and financial control.

Swallows, 128 F.3d at 993-94 (citing York v. Tenn. Crushed Stone

Ass’n, 684 F.2d 360, 362 (6th Cir. 1982)). “None of these

factors is conclusive, and all four need not be met in every

case.” Id. at 994. However, “control over labor relations is

a central concern.” Id.

The Second Amended Complaint does not allege facts

supporting interrelation of operations. Houston has not claimed

that MLGW and Local Union 1288 share records, bank accounts, or

offices. See Swallows, 128 F.3d at 994; Armbruster v. Quinn,

711 F.2d 1332, 1338 (6th Cir. 1983) (interrelation of operations

where parent company handled subsidiary’s accounts receivable

and its payroll and cash accounting). There are no allegations

of common management. MLGW and Local Union 1288 do not share

board members or common officers. See Swallows, 128 F.3d at

994; Armbruster, 711 F.2d at 1339 (finding common management

where president of one company was officer of the other).

Houston has alleged evidence of centralized control of labor

relations and personnel between MLGW and Local Union 1288. When

evaluating centralized control, “the critical question is

‘[w]hat entity made the final decisions regarding employment

matters related to the person claiming discrimination?’” Frank

v. U.S. West, Inc., 3 F.3d 1357, 1363 (10th Cir. 1993) (quoting

Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir. 1983));

see Swallows, 128 F.3d at 995 (“So far as discrimination in

hiring and firing on the basis of . . . forbidden characteristics

is concerned, the key powers are, naturally, those of hiring and

firing.”) (quoting EEOC v. Illinois, 69 F.3d 167, 171 (7th Cir.

1995)). Courts look for evidence that “there is an amount of

‘participation that is sufficient and necessary to the total

employment process,’ even absent ‘total control or ultimate

authority over hiring decisions.’” Armbruster, 711 F.2d at 1338

(quoting Rivas v. St. Bd. Cmty. Colls. & Occupational Educ., 517

F.Supp. 467, 470 (D. Colo. 1981)).

Local Union 1288 employees retain all “rights, privileges,

obligations, and responsibilities” of MLGW employees. MLGW

and Local Union 1288 paid the salaries of Local Union 1288

employees, including Houston and Thompson. MLGW had the power

to conduct a labor relations investigation into Thompson’s

conduct at Local Union 1288. MLGW told Houston she was required

to participate in its investigation into Thompson and represented

that it would not allow Local Union 1288 or Thompson to retaliate

against her for participating. Thompson terminated Houston after

discussing the decision with MLGW. MLGW could have prevented

Thompson from terminating Houston from her role at Local Union

1288.

The Second Amended Complaint does not allege common

ownership and financial control. See Swallows, 128 F.3d 995

(“If neither of the entities is a sham then the fourth test is

not met.”) (quoting EEOC v. Wooster Brush Co. Emp. Relief Ass’n,

727 F.2d 566, 572 (6th Cir. 1984)).

Houston has alleged facts that show centralized control of

labor relations between MLGW and Local Union 1288. She has not

alleged facts supporting any of the other factors. Because all

four factors need not be met in every case and centralized

control of labor is a central concern, Houston has plausibly

stated that Local Union 1288 and MLGW constitute a single

employer for purposes of Title VII. Local Union 1288’s Motion

to Dismiss is DENIED.

2. IBEW’s Motion to Dismiss

IBEW contends that all unlawful conduct alleged in the

Second Amended Complaint was attributable to Local Union 1288

and Thompson, and that Houston has not alleged specific facts to

show unlawful conduct attributable to IBEW. Houston and MLGW

argue that Local Union 1288 is an agent of IBEW. In the

alternative, Houston argues that IBEW is her joint employer.

IBEW rejects both arguments.

“Common law agency theories of vicarious liability govern

the liability of international labor organizations for the acts

of their local unions that violate Title VII and § 1981.”

Alexander v. Loc. 496, Laborers’ Int’l Union N. Am., 177 F.3d

394, 409 (6th Cir. 1999) (citing Berger v. Iron Workers

Reinforced Rodmen Loc. 201, 843 F.2d 1395, 1407 (D.C. Cir.

1988)). “Under general principles of agency, a union can be

liable if its officers and agents actively participate in

unlawful conduct.’” Shimman v. Frank, 625 F.2d 80, 94 (6th Cir.

1980); see Alexander, 177 F.3d at 409 (“At common law, a

principal may be held liable for the intentional torts of its

agent if the agent’s conduct is within the scope of his agency

and if, with the knowledge of the conditions, the principal

intends the conduct or its consequences.”). That is, a union

“may only be held responsible for the authorized or ratified

actions of its officers and agents.” Shimman, 625 F.2d at 95

(citing N. Am. Coal Co. v. U.M.W., 497 F.2d 459, 466-67 (6th

Cir. 1974)); see Alexander, 177 F.3d at 409 (“a plaintiff must

adduce specific evidence that the international instigated,

supported, ratified, or encouraged those actions, or that what

was done was done by their agents in accordance with their

fundamental agreement of association.”) (internal quotations

omitted).

In the Second Amended Complaint, Houston alleges that:

Thompson was an employee and Business Manager of Local Union

1288; Thompson reported directly to IBEW’s Vice President; IBEW

had the authority to investigate and discipline Thompson and

remove him from his position if he committed a terminable

offense; Thompson discussed the decision to terminate Houston

with IBEW; and IBEW investigated whether Thompson

misappropriated IBEW’s funds. These allegations plausibly state

a claim that Local Union 1288, through its employee Thompson,

was an agent of IBEW. Defendant IBEW’s Motion to Dismiss is

DENIED.

3. William Thompson’s Motion to Dismiss

Thompson argues that the Court should dismiss the Title VII

and the IIED claims against him. He contends that he is not an

employer under Title VII, and that the IIED claim is not

plausible.

“[A]n individual employee/supervisor, who does not

otherwise qualify as an ‘employer,’ may not be held personally

liable under Title VII.” Wathen v. Gen. Elec. Co., 115 F.3d

400, 405 (6th Cir. 1997). Thompson does not qualify as an

employer under Title VII. See 42 U.S.C. § 2000e(a). Houston

does not challenge Thompson’s Motion to Dismiss the Title VII

claims. (ECF No. 36.) Thompson’s Motion to Dismiss Houston’s

Title VII claims is GRANTED.

Thompson argues that Houston’s IIED claim is not plausible.

To prove IIED, a plaintiff must show a defendant’s conduct was

(1) intentional or reckless, (2) so outrageous that it is not

tolerated by civilized society, and (3) resulted in serious

mental injury to the plaintiff. Bazemore v. Performance Food

Grp., Inc., 478 S.W.3d 628,638 (Tenn. 2015). It is clear that

Thompson’s actions were intentional.

The bar for outrageous conduct is high. See Miller v.

Willbanks, 8 S.W.3d 607, 614 (Tenn. 1999) (calling the

outrageousness requirement an “exacting standard”). Liability

“does not extend to mere insults, indignities, threats,

annoyances, petty oppression or other trivialities.” Bain v.

Wells, 936 S.W.2d 618, 622 (Tenn. 1997) (quoting Medlin v. Allied

Inv. Co., 398 S.W.2d 270, 274 (Tenn. 1966)). Rather, the conduct

must be “so outrageous in character, and so extreme in degree,

as to go beyond all bounds of decency, and to be regarded as

atrocious and utterly intolerable in a civilized community.” Id.

Sexual harassment can be outrageous conduct. See, e.g., Strong

v. HMA Fentress City. Gen. Hosp., LLC, 194 F.Supp. 3d 685, 690-

91 (M.D. Tenn. 2015) (denying motion to dismiss IIED claim where

defendant allegedly leaned penis into plaintiff’s buttocks,

stared at her breasts, visited a restaurant where plaintiff’s

minor daughter worked, and gyrated his pelvis at her); Nesbitt

v. Wilkins Tipton, P.A., 2011 WL 13244789, at *1-2 (M.D. Tenn.

Nov. 10, 2011); Scarborough v. Brown Grp., Inc., 935 F. Supp.

954, 963 (W.D. Tenn. 1995) (denying motion to dismiss where

defendant allegedly harassed plaintiff with requests for sex,

lewd comments, suggestions, gestures, and verbal abuse and

attempted to get into plaintiff’s home while she was there

alone).

In her Second Amended Complaint, Houston alleges that

Thompson “aggressively communicat[ed]” his displeasure that

Houston ended their relationship and repeatedly asked her for

sex. (Id. ¶ 26.) Despite Houston’s repeated rejections,

Thompson’s sexual “demands grew in intensity and severity” and

were accompanied by threats of adverse employment actions. (Id.

¶ 27.) After MLGW opened a sexual harassment investigation

against Thompson, he defamed and harassed Houston on a radio

station that could be heard by MLGW and Local Union 1288

employees. Thompson then made good on his threats and terminated

Houston.

Thompson’s alleged conduct is outrageous. It rises above

“mere insults, indignities, threats, annoyances, petty

oppression or other trivialities” and goes beyond all bounds of

decency. Bain, 936 S.W.2d at 622.

The Second Amended Complaint alleges that Thompson’s

conduct led Houston to suffer from depression, a serious mental

injury. See Rogers v. Louisville Land Co., 367 S.W.3d 196,

209-10 (Tenn. 2012) (depression a factor in determining whether

plaintiff suffered serious mental injury). It is plausible that

Houston would be “unable to adequately cope with the mental

stress engendered” by Thompson’s behavior. Id. at 201.

Houston has stated a plausible claim for IIED, and the Court

retains supplemental jurisdiction over the claim. Thompson’s

Motion to Dismiss the IIED claim is DENIED.

In his reply brief, Thompson seeks for the first time

dismissal of Houston’s negligent supervision claim. (ECF No.

41.) “Generally speaking, arguments raised for the first time

in reply briefs are waived.” Palazzo v. Harvey, 380 F.Supp. 3d

723, 730 (M.D. Tenn. 2019); see Scottsdale Ins. Co. v. Flowers,

513 F.3d 546, 553 (6th Cir. 2008) (“[R]eply briefs reply to

arguments made in the response brief—they do not provide the

moving party with a new opportunity to present yet another issue

for the court’s consideration.”). Courts in the Sixth Circuit

have applied this principle to reply briefs filed in support of

a motion to dismiss. See, e.g., Select Specialty Hosp. Memphis,

Inc. v. Tr. Langston Co., Inc., 2020 WL 4275264, at *9 (W.D.

Tenn. July 24, 2020); Malin v. JPMorgan, 860 F.Supp. 2d 574,

577 (E.D. Tenn. 2012); In re FirstEnergy Corp. Secs. Litig.,

316 F.Supp. 2d 581, 599 (N.D. Ohio 2004). Thompson may not seek

dismissal of the negligent supervision claim in his reply brief.

Thompson’s Motion to Dismiss the negligent supervision claim is

DENIED.

B. The Motions to Dismiss MLGW’s Crossclaims

In its answer to Houston’s Second Amended Complaint, MLGW

filed crossclaims under Tennessee law for quantum meruit and

promissory estoppel against Local Union 1288 and IBEW,

contribution against Local Union 1288, IBEW, and Thompson, and

indemnification against Local Union 1288. (ECF No 45.) Local

Union 1288 and IBEW have filed Motions to Dismiss the crossclaims

against them. (ECF Nos. 52, 54.)

1. Quantum Meruit

To state a viable quantum meruit claim, a party must show:

(1) there is no existing, enforceable contract between the

parties covering the same subject matter; (2) the party seeking

recovery has provided valuable goods or services; (3) the party

to be charged received the goods or services; (4) the

circumstances indicate that the parties to the transaction should

have reasonably understood that the person providing the goods

or services expected to be compensated; and (5) the

circumstances demonstrate that it would be unjust for a party to

retain the goods or services without payment. Doe v. HCA Health

Servs. Tenn., Inc., 46 S.W.3d 191, 198 (Tenn. 2001) (citing

Swafford v. Harris, 967 S.W.2d 319, 324 (Tenn. 1998)).

MLGW argues for quantum meruit against Local Union 1288.

MLGW alleges that, under the MOU, MLGW agreed to partially

compensate Local Union 1288’s Business Manager and Assistant

Business Manager. (ECF No. 45 p. 22 ¶ 19.) Local Union 1288,

as a party to the MOU, agreed to comply with the MOU’s Article

6 non-discrimination clause. Local Union 1288 allegedly breached

its duty to comply with Article 6. MLGW contends that it would

be unjust for Local Union 1288 to enjoy the benefit of MLGW’s

compensation after it breached Article 6 of the MOU. (Id. p. 23

¶ 24.)

MLGW has not stated a plausible quantum meruit claim

because the alleged facts show that the MOU is a valid contract

that covers compensation of the Assistant Business Manager and

the Business Manager. “A contract must result from a meeting of

the minds of the parties in mutual assent to the terms, must be

based upon a sufficient consideration, free from fraud or undue

influence, not against public policy and sufficiently definite

to be enforced.” Doe, 46 S.W.3d at 196; see Dark Tobacco

Growers’ Co-op. Ass’n v. Mason, 263 S.W. 60, 67 (Tenn. 1924)

(“It is invariably held that the promise of one party is a valid

consideration for the promise of the other party.”).

MLGW calls the MOU a set of “mutual promises between MLGW

and Local Union 1288” pertaining to “wages, hours, working

conditions, grievances, and other conditions of employment for

employees.” MLGW says that by signing the MOU, Local 1288

“agreed and promised to comply with its terms.” (ECF No. 45 pp.

20 ¶¶ 1, 2, 4.) According to the MOU, MLGW “partially compensates

the Business Manager and the Assistant Business Manager of Local

Union 1288 who act as the bargaining representatives of Local

Union 1288 in negotiations with MLGW.” (ECF No. 45 p. 22 ¶ 19;

see ECF No. 45-1 pp. 50, 56.) MLGW’s crossclaim describes the

MOU as a mutual set of promises with definite terms and

sufficient consideration between MLGW and Local Union 1288. That

is a contract.

In its response to the Motion, MLGW describes the MOU not

as a contract but as a “non-binding mutual agreement.” That

statement contradicts the text of the MOU, which says, “The

Agreement, when executed by the parties hereto, shall be binding

upon the Union and the Employer.” (ECF No. 45-1 p. 52); see

Cracker Barrel Old Country Store, Inc. v. Epperson, 284 S.W.3d

303, 309 n. 9 (Tenn. 2009) (“If the language is unambiguous, we

look to the plain meaning of the contract’s terms to ascertain

the parties’ intent.”) (citing Planters Gin Co. v. Fed. Compress

& Warehouse Co., 78 S.W.3d 885, 889-90 (Tenn. 2002)).

The allegations show that the MOU is a contract binding on

MLGW and Local Union 1288. Because there is a contract, MLGW’s

quantum meruit claim against Local Union 1288 fails. Local Union

1288’s Motion to Dismiss the quantum meruit claim is GRANTED.

MLGW’s crossclaim for quantum meruit against IBEW is

premised on agency theory and an initial finding of quantum

meruit against Local Union 1288. (ECF No. 45 p. 24 ¶ 27) (“To

the extent Local 1288 is acting as an agent of IBEW, IBEW is

also liable for this breach of Local 1288’s agreement contained

in the MOU.”). Because MLGW has not stated a plausible quantum

meruit claim against Local Union 1288, its quantum meruit claim

against IBEW also fails. IBEW’s Motion to Dismiss MLGW’s quantum

crossclaim is GRANTED.

2. Promissory Estoppel

“A promise which the promisor should reasonably expect to

induce action or forbearance on the part of the promisee . . .

and which does induce such action or forbearance is binding if

injustice can be avoided only by enforcement of the promise.”

Amacher v. Brown-Forman Corp., 826 S.W.2d 480, 482 (Tenn. Ct.

App. 1991). To state a valid promissory estoppel claim, a

plaintiff must allege that (1) a promise was made; (2) the

promise was unambiguous and not unenforceably vague; and (3)

the plaintiff reasonably relied on the promise to the plaintiff’s

detriment. Chavez v. Broadway Elec. Serv. Corp, 245 S.W.3d 398,

404-05 (Tenn. Ct. App. 2007). Promissory estoppel is reserved

for “exceptional cases” that “verg[e] on actual fraud.” Baliles

v. Cities Srv. Co., 578 S.W.2d 621, 624 (Tenn. 1979). “[A]s a

general matter, the theory of recovery is not viable when a valid

contract exists.” Jones v. BAC Home Loans Servicing, LP, 2017

WL 2972218, at *9 (Tenn. Ct. App. July 12, 2017).

In its claim for promissory estoppel, MLGW alleges that

Article 6 of the MOU is a promise that unambiguously required

Local Union 1288 to abstain from discrimination, coercion,

threats, or intimidation based on sex. (ECF No. 45.) MLGW argues

it reasonably relied on Local 1288 to comply with Article 6 and

not to discriminate against female employees. Local Union 1288’s

failure to comply with Article 6 has been to MLGW’s detriment.

The facts alleged do not state a valid promissory estoppel

claim. MLGW does not explain how the promise in Article 6 has

induced any “action or forbearance.” Amacher, 826 S.W.2d at

482. Promissory estoppel is disfavored under Tennessee law

absent behavior “verging on actual fraud,” Baliles, 578 S.W.2d

at 624, particularly when there is a valid, underlying contract.

Jones, 2017 WL 2972218, at *9. The MOU is a valid contract.

MLGW has not alleged any behavior verging on actual fraud. Local

Union 1288’s Motion to Dismiss MLGW’s promissory estoppel

crossclaim is GRANTED.

MLGW’s crossclaim for promissory estoppel against IBEW is

premised on agency theory and an initial finding of promissory

estoppel against Local Union 1288. (ECF No. 45 p. 22 ¶ 14) (“To

the extent Local Union 1288 is acting as an agent of IBEW, IBEW

is also liable for this breach of its promise contained in the

MOU.”). Because MLGW has not stated a plausible promissory

estoppel claim against Local Union 1288, its promissory estoppel

claim against IBEW also fails. IBEW’s Motion to Dismiss MLGW’s

promissory estoppel crossclaim is GRANTED.

3. Contribution and Indemnification

Under Rule 13(g), a “crossclaim may include a claim that

the coparty is or may be liable to the crossclaimant for all or

part of a claim asserted in the action against the

crossclaimant.” Fed. R. Civ. P. 13(g). MLGW seeks contribution

from IBEW and Local Union 1288 and indemnification from Local

Union 1288 if Houston should be successful on her tort claims.2

Contribution

“[W]here two (2) or more persons are jointly or severally

liable in tort for the same injury to person or property . . .

there is a right to contribution among them even though judgment

has not been recovered against all or any of them.” Tenn. Code

Ann. § 20-11-102 (1999). Houston claims that MLGW, IBEW, and

Local Union 1288 negligently supervised Thompson. She says that

Defendants had knowledge that Thompson was unfit for the position

and that they knew or should have known that Thompson was

sexually harassing Houston yet took no corrective action.

Houston alleges that MLGW, IBEW, and Local Union 1288 are

jointly or severally liable for the same tort of negligent

supervision. MLGW has a right to contribution from IBEW and

Local Union 1288. IBEW and Local Union 1288’s Motions to Dismiss

MLGW’s contribution claim are DENIED.

2 MLGW also seek contribution from Thompson. Thompson has not moved

to dismiss MLGW’s crossclaim.

Indemnification

“The right to indemnity rests upon the principle that

everyone is responsible for the consequences of his own wrong,

and if another person has been compelled to pay the damages which

the wrongdoer should have paid, the latter becomes liable to the

former.” Houseboating Corp. Am. V. Marshall, 553 S.W.2d 588,

589 (Tenn. 1977) (quoting S. Coal & Coke Co. v. Beach Grove

Mining Co., 381 S.W.2d 299, 302 (Tenn. 1963)). Indemnification

can be express, through contract, or it can arise by implication

from the relationship of the parties. Id. Implied indemnity

can be contractual or equitable and is imposed by law without

the consent or agreement of the parties. Winter v. Smith, 914

S.W.2d 527, 541-42 (Tenn. Ct. App. 1995). “Courts will impose

an implied obligation to indemnify when the obligation is a

necessary element of the parties’ relationship, or when justice

and fairness demand that the burden of paying for the loss be

shifted to the party whose fault or responsibility is

qualitatively different from the other parties.” Id. at 542

(internal citations omitted).

Houston’s negligent supervision claim is based on MLGW,

IBEW, and Local Union 1288’s failure to prevent Thompson’s

alleged discriminatory actions against Houston. MLGW argues

that it and Local Union 1288 agreed to refrain from any

discriminatory conduct when they signed the MOU’s Article 6 non-

discrimination clause. MLGW claims that the Article 6 contains

an implied indemnification clause for any damages that arise

from a party’s breach. MLGW maintains that it did not breach

Article 6, and that if Houston is successful on her negligent

supervision claim, it is because Local Union 1288 breached

Article 6.

MLGW has plausibly stated that Article 6 contains an

implied indemnification clause. Local Union 1288’s Motion to

Dismiss MLGW’s indemnification claim is DENIED.

IV. Conclusion

For the foregoing reasons, IBEW and Local Union 1288’s

Motions to Dismiss are DENIED, Thompson’s Motion to Dismiss is

GRANTED in part and DENIED in part, and IBEW and Local Union

1288’s Motions to Dismiss MLGW’s crossclaims are GRANTED in part

and DENIED in part.

SO ORDERED this 28th day of March, 2022.

/s/ Samuel H. Mays, Jr.

SAMUEL H. MAYS, JR.

UNITED STATES DISTRICT JUDGE