Johnson v. Tyson Foods, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

ROBBIE JOHNSON, )

)

Plaintiff, )

) NO. 21-cv-01161-STA-jay

vs. )

)

TYSON FOODS, INC. and )

RHONDA GOOCH, )

)

Defendants. )

)

ORDER PARITALLY GRANTING DEFENDANTS’ MOTION TO DISMISS

AND

PARTIALLY DENYING MOTION TO DISMISS

Plaintiff Robbie Johnson filed this action in the Dyer County Chancery Court against her

employer Tyson Foods, Inc. and a human resources manager at the company Rhonda Gooch.

Plaintiff alleges that Defendants violated her rights under the First, Fourth, and Fifth Amendments

to the United States Constitution; the Tennessee Constitution, Article I, Section 3; the Religious

Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq.; the Americans with Disabilities

Act (“ADA”), 42 U.S.C. § 12010 et seq.; the Nuremberg Code; Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e et seq.; the Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. §

360bbb-3; the Tennessee Human Rights Act (“THRA”), Tenn. Code Ann. § 4–21–101 et seq.; the

Tennessee Disability Act (“TDA”), Tenn. Code Ann. § 8–50–103 et seq.; and Tenn. Code Ann. §

14-1-101 et seq., by requiring her to be vaccinated with the COVID-19 vaccine prior to November

1, 2021, or else go on unpaid leave without the assurance of ever reclaiming her job. Plaintiff also

alleges a state common law claim of assault. (Amd. Cmplt., No. 18.) Plaintiff seeks declaratory

relief that Tyson Foods violated the THRA, TDA, and state tort law, and injunctive relief enjoining

Tyson Foods from discriminating against employees by refusing to grant religious or health

accommodations to its COVID-19 vaccine mandate as well as damages.

Defendant Tyson Foods removed the action on October 20, 2021, asserting that this Court

has jurisdiction over the matter under diversity-of-citizenship jurisdiction pursuant to 28 U.S.C.

§1332 and federal officer jurisdiction under 28 U.S.C. § 1442(a)(1). (ECF No. 1.) On November

3, 2021, the Court denied Plaintiff’s motion to remand finding that the Court has jurisdiction under

28 U.S.C. § 1442(a)(1). (ECF No. 17.) Plaintiff filed an amended complaint on November 18,

2021. (ECF No. 18.)

Defendants have now filed a motion to dismiss the amended complaint. (ECF No. 24.)

Plaintiff has responded to the motion (ECF No. 29), and Defendants have filed a reply to the

response. (ECF No. 34.) For the reasons set forth below, the motion is PARTIALLY GRANTED

and PARTIALLY DENIED.

Standard of Review

The Federal Rules of Civil Procedure require that a complaint contain a “short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A

complaint may be attacked for failure “to state a claim upon which relief can be granted.” Fed. R.

Civ. P. 12(b)(6). When considering a Rule 12(b)(6) motion to dismiss, a Court will presume that

all the factual allegations in the complaint are true and will draw all reasonable inferences in favor

of the nonmoving party. See Total Benefits Planning Agency v. Anthem Blue Cross & Blue Shield,

552 F.3d 430, 434 (6th Cir. 2008) (citing Great Lakes Steel v. Deggendorf, 716 F.2d 1101, 1105

(6th Cir. 1983)). “The court need not, however, accept unwarranted factual inferences.” Id. (citing

Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987)).

Even though a “complaint attacked by a Rule 12(b)(6) motion to dismiss does not need

detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to

relief requires more than labels and conclusions, and a formulaic recitation of the elements of a

cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations

omitted). Instead, the plaintiff’s “[f]actual allegations must be enough to raise a right to relief

above the speculative level on the assumption that all the allegations in the complaint are true

(even if doubtful in fact).” Id. (citations omitted). That is, a complaint must contain enough facts

“to state a claim to relief that is plausible on its face.” Id. at 570. A claim becomes plausible “when

the plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

Twombly, 550 U.S. at 556). If the Court cannot “infer more than the mere possibility of

misconduct, the complaint has alleged — but has not ‘show[n]’ — ‘that the pleader is entitled to

relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). “[O]nly a complaint that states a plausible

claim for relief survives a motion to dismiss.” Id.

Analysis

Plaintiff has brought thirteen claims in her amended complaint. Many of those claims are

based on the underlying premise that Defendants are government or state actors,1 specifically the

claims alleging violations of the Free Exercise Clause of the First Amendment (claim one); the

RFRA (claim five); the FDCA (claim nine); the Nuremberg Code (claim ten); and the Fourth and

Fifth Amendments (claim eleven). Plaintiff relies, in part, on the Court’s previous finding of

federal officer jurisdiction in support of her contention that Defendants acted as government or

state actors during the events giving rise to this lawsuit while Defendants argue that removal under

1 The Court has used “government actor” and “state actor” interchangeably in this order.

the federal officer removal statute did not transform them into government actors. The Court will

address this issue first.

A review of the Court’s order denying Plaintiff’s motion to remand and finding federal

officer jurisdiction is informative. In that order (ECF No. 17), the Court explained that the federal

officer removal statute permits a defendant to remove to federal court a state court action for an

act made while the defendant was acting under an agency or officer of the United States. 28 U.S.C.

§ 1442(a)(1). That is, the removal statute applies to private persons when they “lawfully assist” a

federal officer “in the performance of his official duty,” Watson v. Philip Morris Companies, Inc.,

551 U.S. 142, 150–57 (2007) (quoting Davis v. South Carolina, 107 U.S. 597, 600 (1883)), while

the private party is “authorized to act with or for [the federal officer] in affirmatively executing

duties under . . . federal law.” City of Greenwood v. Peacock, 384 U.S. 808, 824 (1966). A Court

will find federal officer removal to be appropriate when “the defendant (1) is a person within the

meaning of the statute, (2) is acting under the United States, its agencies, or its officers, (3) is

acting under color of federal authority, and (4) has a colorable federal defense.” Betzner v. Boeing

Co., 910 F.3d 1010, 1015 (7th Cir. 2018).

In their response to the motion to remand, Defendants argued that Tyson acted under a

federal officer pursuant to President Donald J. Trump’s April 28, 2020 Executive Order which

expressly invoked the President’s authority under the Defense Production Act of 1950 (“DPA”),

as amended, 50 U.S.C. § 4501 et seq. The Executive Order directed meat and poultry processing

companies, such as Tyson, to stay open and continue operations, subject to the supervision of the

Secretary of Agriculture. See Food Supply Chain Resources, 85 Fed. Reg. at 26,313, 2020 WL

2060381, at *1. Defendants reasoned that, because Tyson is operating under the DPA and

supervision from the Secretary of Agriculture, removal under 28 U.S.C. § 1442(a)(1) was

warranted. That is, removal was proper because each Defendant was a “person” within the

meaning of the statute who “acted under the direction of a federal officer” and its actions were for

or related to acts performed under color of federal office. See Bennett v. MIS Corp., 607 F.3d

1076, 1085 (6th Cir. 2010) (stating that a defendant seeking removal under § 1442(a)(1) must

establish that it is a “person” who “acted under” a federal officer). The Court adopted Defendants’

reasoning, relying in part on Fields v. Brown, 519 F. Supp.3d 388 (E.D. Tex. Feb. 11, 2021), and

Wazelle v. Tyson Foods, Inc., 2021 WL 2637335 (N.D. Tex. June 25, 2021). Wazelle and Fields

concluded that Tyson Foods (also a defendant in those cases) acted under a federal officer because

it worked closely with the government to “guarantee that there was an adequate food supply” for

the country. Wazelle, 2021 WL 2637335, at *4 (explaining that the Department of Agriculture and

the Food Safety and Inspection Service (“FSIS”) “closely monitored Tyson Foods’ meatpacking

plants, staffing some employees onsite during the pandemic,” and that “Congress even allocated

additional funding to FSIS to ensure that they had the resources” to supervise meatpacking plants

during the pandemic); Fields, 519 F. Supp. at 393 (same).

This Court also found persuasive the following reasoning of Wazelle and Fields. “When a

national emergency was declared in response to the COVID-19 pandemic on March 13, 2020,

Tyson Foods, along with other components of the Food and Agriculture Sector, was designated as

critical infrastructure.” Fields, 519 F. Supp. 3d at 392. From that point forward, Tyson Foods

“interacted,” “collaborat[ed],” and “work[ed] directly with” federal officers to assist the U.S.

government to fulfill the government’s responsibility of “guarantee[ing] that there was an adequate

food supply.” Id. at 293. “Accordingly, . . . [Tyson was] ‘acting under’ the directions of federal

officials” from the time of the national emergency declaration. Wazelle, 2021 WL 2637335, at *5.

Section 1442(a)(1) additionally requires that a defendant removing a case demonstrate that

the alleged conduct by the defendant is for, or relates to, an act under color of federal office. A

plaintiff’s claims are removable as long as they are “connected” or “associated” with federal

directions. Latiolais v. Huntington Ingalls, Inc., 951 F. 3d 286, 292 (5th Cir. 2020). This Court

found that Plaintiff’s claims satisfied the causal connection required by § 1442(a). Plaintiff’s

claims related to Tyson Foods’ vaccination policy are connected to the federal directive to

“continue operating and fulfilling orders to ensure a continued supply of protein for Americans,”

Executive Order at *1, and are in compliance with CDC and OSHA workplace safety guidelines.

In their motion to dismiss, Defendants argue that removal of this action under the federal

officer removal did not transform Tyson into a government actor, and, therefore, federal

constitutional claims cannot be brought against Defendants. Plaintiff has responded that Tyson’s

vaccine mandate constitutes state action based on this Court’s order denying Plaintiff’s motion to

remand. Plaintiff acknowledges that Tyson “is a corporation that operates as a worldwide food

processing and marketing company” (Amd. Cmplt. ¶ 11, ECF No. 18) but posits that deciding

whether to attribute state action to a private party is a fact-based inquiry not appropriate at the

pleading state.

It is well-settled that an entity is only liable for claims based on constitutional violations if

the entity is held to be a government actor. Dusenbery v. United States, 534 U.S. 161, 167 (2002);

see also Cochran v. Gilliam, 656 F.3d 300, 306 (6th Cir. 2011) (explaining that a constitutional

claim requires that the “constitutional violation be taken under color of state law either by

government actors or private individuals acting as agents of the state”). “In certain circumstances,

however, the acts of even private parties may be deemed to be state action;” however, “‘the party

charged with the deprivation must be a person who may fairly be said to be a state actor.’” Cox

ex rel. Dermitt v. Liberty Healthcare Corp., 622 F. Supp. 2d 487, 491–92 (E.D. Ky. 2008) (quoting

Revis v. Meldrum, 489 F.3d 273, 289 (6th Cir. 2007), and Lugar v. Edmondson Oil Co., 457 U.S.

922, 937 (1982)).

At the outset, the Court must decide whether its finding of federal officer jurisdiction

equates to a finding of government or state action. It does not. Section 1442(a)(1) enables

defendants who are federal officers or who are acting under a federal officer to have access to a

federal forum when asserting federal defenses against a claim that relates to an act under color of

such office or a claim that is for such an act. See Watson v. Philip Morris Cos., 551 U.S. 142, 150–

51 (2007). As noted by Defendants, the statute merely determines which court hears a case; it

does not transform a private party into a government actor. In denying Plaintiff’s motion to

remand, the Court held that Defendant “acted under a federal officer” — not that either Defendant

was a federal officer or government actor.

Defendants correctly point out that the standard for removal under § 1442(a)(1) is different

from the test for determining when a private defendant can be deemed a government actor. The

statute permits removal of a civil action brought “for or relating to any act under color of [federal]

office,” 28 U.S.C. § 1442(a)(1), whereas a private party is not considered to be a government actor

unless one of three tests are met. Snodgrass-King Pediatric Dental Assocs., P.C. v. DentaQuest

USA Ins. Co., Inc., 780 F. App’x 197, 198 (6th Cir. 2019), cert. denied, 140 S. Ct. 898 (2020).

Those tests are the “public function test, the state compulsion test, and the nexus test.” Ellison v.

Garbarino, 48 F.3d 192, 195 (6th Cir. 1995).2 Therefore, Plaintiff’s reliance on this Court’s order

2 “The very existence of the three tests to determine whether a private party’s actions can be fairly

attributed to the state indicate s a presumption — a reasonable and correct one — that a private

party has not acted under color of state law.” Hines v. Chandra, 2007 WL 9658631, at *3 n.4

(N.D. Ohio May 17, 2007).

denying her motion to remand is unavailing in determining whether Defendants can be considered

government actors under the Constitution. Turning to the public function, state compulsion, and

nexus tests, the Court finds that Plaintiff has not shown that any of these tests encompass

Defendants’ actions during the events giving rise to this lawsuit.3

Under the public function test, “a private party is deemed a state actor if he or she exercised

powers traditionally reserved exclusively to the state.” Chapman v. Higbee Co., 319 F.3d 825, 833

(6th Cir. 2003). See also Anderson v. United Airlines, Inc., 2021 WL 6337144, at *5 (M.D. Fla.

Dec. 30, 2021) (“[T]he public function test shows state action only when private actors are given

powers (or perform functions) that are traditionally the exclusive prerogative of the State.”

(quoting Harvey v. Harvey, 949 F.2d 1127, 1131 (11th Cir. 1992)) This test is usually interpreted

narrowly and has rarely been used to find state action on the part of a private actor. Chapman, 319

F.3d at 833–34.

To the extent that Plaintiff alleges that Defendants have taken on a public function under

this test, the Court finds that her allegations are not sufficiently plausible. A private business’s

implementation of an employee vaccination policy is not akin to any of “those limited activities –

for example running a city — that have ‘traditionally and exclusively’ been performed by the

government.” United States v. Miller, 982 F.3d 412, 423 (6th Cir. 2020) (emphasis in original)

3 Plaintiff contends that “the issue of state action attributable to a private party is one

fundamentally unsuited for ad judication at the pleading stage of the case.” (Resp. p. 3, ECF No.

32.) However, when a plaintiff has failed to plead facts supporting a finding of government action,

as in the present case, dismissal is warranted. See, e.g., Wilcher v. City of Akron, 498 F.3d 516,

519 (6th Cir. 2007) (affirming grant of defendant’s motion to dismiss “because the complaint failed

to allege facts showing state action”); Rose v. Emergency Med. Training Processionals, 2019 WL

4784607, at *2 (E.D. Ky. Sept. 30, 2019) (“Plaintiff has failed to allege facts that would support a

determination under any of the three tests that [the defendant’s] conduct is ‘fairly attributable’ to

the state.”)

(quoting Durante v. Fairlane Town Ctr., 201 F. App’x 338, 341 (6th Cir. 2006)).4 Although

Plaintiff argues that Defendants’ provision of “a critical infrastructure to exercise the federal

government’s public function of guaranteeing an adequate food supply during the government

declared COVID-19 pandemic” is a public function (Resp. p. 4, ECF No. 32), the Court cannot

find that meat and poultry processing is an activity usually reserved for the government.

Furthermore, private companies often implement vaccination policies for their employees.

The state compulsion test “requires that the state ‘exercise such coercive power or provide

such significant encouragement, either overt or covert, that in law the choice of the private actor

is deemed to be that of the state.’” Wilcher v. City of Akron, 498 F.3d 516, 519 (6th Cir. 2007)

(quoting Wolotsky v. Huhn, 960 F.2d 1131, 1335 (6th Cir. 1992)). Under this test, there must be

more than merely the approval or acquiescence of the state in the decisions or actions of the private

actor. See Blum v. Yaretsky, 457 U.S. 991, 1004 (1982). (“[A]lthough the factual setting of each

case will be significant, our precedents indicate that a State normally can be held responsible for a

private decision only when it has exercised coercive power or has provided such significant

encouragement, either overt or covert, that the choice must in law be deemed to be that of the

State.” (citations omitted)).

Even though then-President Trump instructed meat and poultry processing plants to stay

open and continue operations in his executive order, he did not direct or require Tyson to

implement a vaccine requirement.5 Defendants note that Tyson’s vaccine policy was guided by

4 Miller noted that “[m]ost activities — such as providing electricity, operating a nursing home,

or managing a public-access te levision station — will not qualify” as “public functions.” 982 F.3d

423 (citations omitted).

5 Plaintiff acknowledges that there is no governmental order or law requiring Tyson to mandate

the COVID-19 vaccine for its employees. (Resp. p. 14, ECF No. 32.)

the Government but was not coerced by it. See S.H.A.R.K. v. Metro Parks Serving Summit Cnty.,

499 F.3d 553, 565 (6th Cir. 2007) (finding that a private individual working with park rangers was

not a state actor when he erased security tapes even though the rangers “encouraged” but did not

compel him to do so).

The third “state-action test” is the nexus test. As explained by the Cox Court,

Under this test, “the action of a private party constitutes state action when there is

a sufficiently close nexus between the state and the challenged action of the

regulated entity so that the action of the latter maybe fairly treated as that of the

state itself.” Wolotsky, 960 F.2d 1331, 1335 (6th Cir.1992). As with the public-

function test, the Court's review of case law reveals the application of this nexus

test to be very restrictive. “[T]he Sixth Circuit has made clear that the ties between

the private party and the State must be substantial.” Jackim v. City of Brooklyn,

2007 WL 893868, at *24, 2007 U.S. Dist. LEXIS 20355, at *85 (N.D. Ohio Mar.

22, 2007) (citing Wolotsky, 960 F.2d at 1335); see also Siskaninetz v. Wright State

Univ., 175 F.Supp.2d 1018, 1023 (S.D. Ohio 2001) (same); Marchese v. Weeman,

1993 U.S. Dist. LEXIS 11826, at *7 (E.D. Mich. July 24, 1993) (plaintiff “must

establish a substantial degree of cooperative action” between state and private

actor).

Cox, 622 F. Supp. 2d at 493–94. Moreover,

[c]ertain factors have been deemed insufficient, in and of themselves, to establish

the required nexus between the private actor’s complained-of conduct and the State.

Extensive state regulation of a private entity’s operations does not establish state

action via the nexus test. See, e.g., Rendell–Baker v. Kohn, 457 U.S. 830, 102 S.

Ct. 2764, 73 L.Ed.2d 418 (1982); Adams v. Vandemark, 855 F.2d 312 (6th Cir.

1988); Crowder v. Conlan, 740 F.2d 447 (6th Cir. 1984). Public funding of nearly

all of the private actor’s activities, as well as the private actor’s use of public

property, are similarly insufficient to establish the required nexus. See, e.g., Blum

v. Yaretsky, 457 U.S. 991, 102 S. Ct. 2777, 73 L.Ed.2d 534 (1982); Wolotsky, 960

F.2d at 1336; Crowder, 740 F.2d at 450, 453. The minority presence of public

officials on the private actor’s decision-making board also does not satisfy the

nexus test for state action. See, e.g., Jackson v. Metropolitan Edison Co., 419 U.S.

345, 95 S. Ct. 449, 42 L.Ed.2d 477 (1974); Lansing [v. City of Memphis], 202 F.3d

[821, 831 (6th Cir. 2000)]; Crowder, 740 F.2d at 447. Also, the utilization of public

services by private actors does not by itself establish the requisite nexus for state

action. See, e.g., Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 119 S. Ct. 977,

143 L.Ed.2d 130 (1999); Ellison v. Garbarino, 48 F.3d 192 (6th Cir. 1995).

Cox, 622 F. Supp. 2d at 494-95 (citing “[n]umerous cases [that] illustrate the restrictive approach

the Sixth Circuit has taken with the nexus test, similar to its interpretation of the public function

test” and stating that “that precedent counsels great caution in finding state action by virtue of a

symbiotic relationship.”)

Plaintiff contends that Defendants acted as an “agent of the government … by imposing

strict worker vaccination rules to (in the estimation of the federal government), in order to preserve

the integrity of the national food supply.” (Resp. p. 7, ECF No. 29.) However, no facts are pled

that would enable the Court to find a sufficient nexus between Tyson’s vaccine policy and the

involvement of the Government. The mere fact that Tyson relied on OSHA and CDC guidance in

formulating its vaccine policy does not make either Defendant an “agent of the government.” Nor

does the fact that Tyson is subject to the federal government’s COVID-19 guidance for meat and

poultry plants convert Defendants into government actors. Government “regulation, even when

extensive, is not sufficient to justify a finding of a close nexus between the state and the regulated

entity.” Lansing, 202 F.3d at 830 (collecting Supreme Court and Sixth Circuit cases holding that

private parties’ actions do not constitute government action despite extensive regulation).

Because Plaintiff has failed to show that Defendants’ actions in requiring employees to be

vaccinated is equivalent to government or state action, the claims requiring state action must be

dismissed. As previously stated, these claims are those alleging violations of the Free Exercise

Clause of the First Amendment (claim one); the RFRA (claim five); the FDCA (claim nine); the

Nuremberg Code (claim ten); and the Fourth and Fifth Amendments (claim eleven). Defendants’

motion as to these claims is granted, and the claims are dismissed with prejudice.

Next, Defendants contend that Plaintiff has failed to state a claim for religious

discrimination under Article I, Section 3, of the Tennessee Constitution (claim two) because the

Tennessee Constitution does not provide for a private right of action and/or because Defendants

are not state actors.6 Because the Court has determined that Defendants are not state actors, it will

focus on Defendants’ private right of action argument. In support of the argument, Defendants rely

on Cline v. Rogers, 87 F.3d 176, 179 (6th Cir. 1996) (“The plaintiff can state no claim of a state

constitutional violation in this case because Tennessee does not recognize a private cause of action

for violations of the Tennessee Constitution.” (citation omitted)); Bowden Bldg. Corp. v.

Tennessee Real Estate Comm’n, 15 S.W.3d 434, 446 (Tenn. Ct. App. 1999) (“Tennessee, however,

has not recognized any such implied cause of action for damages based upon violations of the

Tennessee Constitution”) (citations omitted)); Siler v. Scott, 591 S.W.3d 84, 102 n.2 (Tenn. Ct.

App. 2019) (affirming order granting summary judgment in favor of defendant that dismissed

plaintiff’s claim alleging a violation of the Tennessee Constitution for failure to state a claim); and

Wooley v. Madison County, Tennessee, 209 F. Supp. 2d 836, 844 (W.D. Tenn. 2002) (dismissing

the plaintiff’s “freedom of speech claim under article I, section 19 of the Tennessee Constitution”

since “it is well established that Tennessee does not recognize an implied private cause of action

for damages based upon violation of the Tennessee Constitution.” (citations omitted)).

Plaintiff agrees that there is no private right of action for damages under the Tennessee

Constitution but argues that she may seek injunctive relief. (Resp. p. 13, ECF No. 29.) Even if

Plaintiff is correct that she may seek injunctive relief for a violation of her rights under the

Tennessee Constitution, it is not clear whether Plaintiff would be eligible for an injunction

6 The Tennessee Constitution provides “that all men have a natural and indefeasible right to

worship Almighty God accor ding to the dictates of their own conscience, . . . that no human

authority can, in any case whatever, control or interfere with the rights of conscience; and that no

preference shall ever be given, by law, to any religious establishment or mode of worship.” Tenn.

Const. Art. I § 3.

prohibiting Defendants from taking an adverse action against her. Plaintiff’s Amended Complaint

alleges that Defendant actually terminated her employment on November 1, 2021. Am. Compl. ¶

9 (“Then, on November 1, 2021, Defendants sent Plaintiff a permanent discharge notice, notifying

her that she was fired.”). In view of this allegation, any claim Plaintiff had for injunctive relief is

now moot. Accordingly, claim two is dismissed with prejudice.

Defendants next contend that Plaintiff has failed to state a claim for religious discrimination

under Title VII (claim three) and the ADA (claim six) or race discrimination under Title VII (claim

eight) because she failed to exhaust her administrative remedies. It is well-settled that exhaustion

of administrative remedies is a prerequisite to filing a district court lawsuit alleging discrimination

under Title VII, see Brown v. General Serv. Admin., 425 U.S. 820, 823-33 (1976), and that a

plaintiff may only bring a Title VII action in district court after he has exhausted the administrative

remedies provided under 42 U.S.C. § 2000e-16. 7 Thus, timely filing a charge with the Equal

Employment Opportunity Commission (“EEOC”) and subsequently filing a complaint in federal

district court in a timely manner are prerequisites to maintaining a Title VII action. See Lomax v.

Sears, Roebuck, & Co., 2000 WL 1888715, at *6 (6th Cir. Dec. 19, 2000) (reiterating that “when

a claim is not first presented to the EEOC, the claim may not be brought in court”).

In order to exhaust the administrative remedies of Title VII and the ADA, a plaintiff must

“trigger the investigatory and conciliatory procedures of the EEOC so that the Commission may

first attempt to obtain voluntary compliance with the law.... These investigatory and conciliatory

procedures notify potential defendants of the nature of plaintiffs’ claims and provide them with

the opportunity to settle the claims before the EEOC rather than litigate them.” Davis v. Sodexho,

7 Section 107(a) of the ADA states that the remedies and procedures used in the event of a Title

VII violation also apply to clai ms brought under the ADA. 42 U.S.C. § 12117(a).

Cumberland College Cafeteria, 157 F.3d 460, 463 (6th Cir. 1998). A plaintiff must exhaust his or

her administrative remedies for each and every claim. Id. In the present case, it is undisputed that

Plaintiff has not filed a charge with the EEOC.

Plaintiff argues that she is only seeking injunctive relief, not monetary damages, which she

claims is a generally accepted exception to the administrative remedy exhaustion requirement. In

support of her argument, she cites Malone v. City of E. Cleveland, 1978 WL 186, at *1 (N.D. Ohio

Oct. 6, 1978) (relying on Drew v. Liberty Mutual Insurance Co., 480 F.2d 69 (5th Cir. 1973),

which held that, when temporary injunctive relief would be appropriate, “filing of the complaint

and request for such relief before exhaustion of EEOC conciliation procedures is not fatal to the

Court’s jurisdiction over the complaint.” However, Plaintiff fails to make the distinction that in

the cases she cites, excluding Costantino v. TRW, Inc., 13 F.3d 969 (6th Cir. 1994), the issue

presented to the court was whether a plaintiff could bring a claim for injunctive relief before receipt

of a notice of right to sue from the EEOC. See, e.g., Drew, 480 F.2d at 72 (“We conclude that in

the limited class of cases, such as the present, in which irreparable injury is shown and likelihood

of ultimate success has been established, (here this has been determined by the trial court), the

individual employee may bring her own suit to maintain the status quo pending the action of the

Commission on the basic charge of discrimination (emphasis added)); Malone, 1978 WL 186, at

*2 (“[I]f a temporary restraining order is otherwise appropriate under Rule 65, Fed. R. Civ. P.,

filing of the complaint and request for such relief before exhaustion of EEOC conciliation

procedures is not fatal to the Court's jurisdiction over the complaint.”); Sughrim v. New York, 503

F.Supp.3d 68, 96 (2020) (When “a person has filed a Title VII charge with the EEOC, the court

has jurisdiction to entertain a motion for temporary injunctive relief against employer retaliation

while the charge is pending before the EEOC and before the EEOC has issued a right to sue letter”

(citations omitted). Costantino concerns ERISA exhaustion. ERISA, unlike Title VII and the

ADA, “does not explicitly require exhaustion of administrative remedies” Id. at 974 (citation

omitted). Instead, unlike Title VII and the ADA’s express administrative exhaustion requirements,

ERISA administrative exhaustion is left to the district court’s discretion. Id. at 974-75.

Here, Plaintiff has not filed charges with the EEOC; a fortiori, the cases cited by Plaintiff

are inapposite to her claims. Plaintiff’s failure to file an EEOC charge is dispositive, and Plaintiff’s

Title VII and ADA claims (claims three, six, and eight) must be dismissed without prejudice for

failure to exhaust her administrative remedies. What is more, Plaintiff alleges that Tyson has

already terminated her employment. Any injunctive relief related to Tyson’s vaccine mandate is

no longer available to Plaintiff. Her argument to excuse her failure to exhaust is not persuasive.

Plaintiff has brought a claim under the THRA for Defendants’ alleged failure to

accommodate her religious beliefs (claim four). Plaintiff alleges that she holds sincere religious

beliefs that preclude her from receiving a COVID19 vaccine and that “Defendant’s

accommodation of one year of unpaid leave, with no guaranteed positions upon potential return,

is no reasonable accommodation at all, but rather a punitive measure taken against employees who

choose to exercise their religious rights.” (Amd. Cmplt. ¶¶ 159, ECF No. 18.)

In their motion to dismiss, Defendants contend that the THRA does not require an employer

to accommodate an employee’s religious beliefs. Plaintiff acknowledges that there is no explicit

language in the Tennessee Human Rights Act imposing a duty to accommodate religious beliefs,

but she argues that the Tennessee Supreme Court has held that THRA claims are analyzed in the

same manner as Title VII claims, and Title VII does prescribe a duty to accommodate an

employee’s religious beliefs. (Resp. p. 16, ECF No. 32.)

Defendants have raised the issue of preemption. Defendants contend that this claim and

Plaintiff’s other state statutory claims are preempted by (1) President Trump’s Executive Order,

(2) the Federal Meat Inspection Act, 21 U.S.C. §§ 601 et seq., and (3) the Poultry Production

Inspection Act, 21 U.S.C. § 451 et seq.8 The Supremacy Clause provides that the Constitution,

federal statutes, and treaties constitute “the supreme Law of the Land.” Art. VI, cl. 2. If federal

law “imposes restrictions or confers rights on private actors” and “a state law confers rights or

imposes restrictions that conflict with the federal law,” “the federal law takes precedence and the

state law is preempted.” Murphy v. National Collegiate Athletic Assn., 138 S. Ct. 1461, 1480

(2018). See also Torres v. Precision Indus., Inc., 938 F.3d 752, 755 (6th Cir. 2019) (reiterating

that preemption presents the constitutional question whether state and federal law “conflict

(citations omitted)).

When a litigant challenges the constitutionality of a Tennessee statute, the Tennessee

Attorney General must be notified. As explained in In re Adoption of E.N.R., 42 S.W.3d 26 (Tenn.

2001),

[T]he court is required, pursuant to Tenn. R. Civ. P. 24.04, to ensure that notice of

the constitutional challenge has been provided to the Office of the Attorney

General.

This rule makes it clear that the trial court sits as gatekeeper to inquire whether

notice has been provided to the Attorney General by the challenger and to suspend

proceeding on the constitutional challenge until such notice has been provided

and a response from the Attorney General received.

In re Adoption of E.N.R., 42 S.W.3d at 33 (emphasis added).

8 Plaintiff’s state statutory claims are brought under the THRA (claim four), Tenn. Code Ann. §

4–21–101 et seq.; the TDA, T enn. Code Ann. § 8–50–103 et seq. (claim seven); and Tenn. Code

Ann. § 14-1-101 et seq. (claim twelve). Plaintiff has also brought a state constitutional claim

(claim two). Because the Court has declined supplemental jurisdiction over that claim, Defendants

need not notify the Attorney General of claim two. See Torres, 938 F.3d at 755 (pointing out that

“courts should not address a question of preemption if they can resolve the case on other grounds.”)

The Court in Waters v. Farr, 291 S.W.3d 873 (Tenn. 2009), further expounded,

[a] second jurisprudential principle, embodied in Tenn. Code Ann. § 29–14–107(b)

(2000), Tenn. R. Civ. P. 24.04, and Tenn. R. App. P. 32, requires parties

challenging the constitutionality of a statute to notify the Attorney General and

Reporter of the challenge by serving a copy of their papers on the Attorney General.

The purposes for these requirements are two-fold. First, the notice enables the

Office of the Attorney General to discharge its responsibility to defend the

constitutionality of state statutes. Tenn. Code Ann. § 8–6–109(b)(9) (Supp. 2008).

Second, the joinder of the Attorney General assures that the statute will be

vigorously defended. Compliance with this statute and the related rules is

mandatory.

Waters, 291 S.W.3d at 918 (concurrence) (some citations omitted).

Here, there is no indication in the record that the Tennessee Attorney General has been

notified of the constitutional challenge to the state statutory claims. Therefore, the Court will deny

Defendants’ motion to dismiss the state law claims (claims four, seven, twelve) without prejudice.

Defendant will be given twenty-eight days from the entry of this order in which to notify of the

Court of its compliance with Tenn. Code Ann. § 29–14–107(b) and Tenn. R. Civ. P. 24.04.

Defendants have moved to dismiss Plaintiff’s RFRA claim (claim five) on the ground that

RFRA claims may be brought only against a government actor for government conduct. RFRA

provides that the “Government may substantially burden a person’s exercise of religion only if it

demonstrates that application of the burden to the person (1) is in furtherance of a compelling

governmental interest; and (2) is the least restrictive means of furthering that compelling

governmental interest.” 42 U.S.C. § 2000bb-1(b). “The text of the statute makes quite clear that

Congress intended RFRA to apply only to suits in which the government is a party.” Gen. Conf.

Corp. of Seventh-Day Adventists v. McGill, 617 F.3d 402, 410 (6th Cir. 2010).

Plaintiff does not dispute the principle that only government actors may be held liable

under the RFRA (“If Tyson is a federal officer, then it is obligated to follow the limits imposed on

federal officers under the Religious Freedom Restoration Act.” And, “In essence, a federal actor’s

burden on a person’s exercise of religion must satisfy strict scrutiny.” Amd. Cmplt. ¶ ¶ 186, 188,

ECF No. 21.) Instead, she continues to argue that Defendants are government actors for the

purposes of this lawsuit. However, the Court has already decided this issue against Plaintiff.

Therefore, the RFRA claim must be dismissed.

The Court agrees with Defendants that Plaintiff has failed to state a claim for Defendants’

alleged violation of the Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. § 360bbb-3 (claim

nine), because there is no private right of action under that statute. Section 564 of the FDCA, 21

U.S.C. § 360bbb-3, authorizes the Secretary of Health and Human Services to issue an “emergency

use authorization” (“EUA”) of a medical product in certain emergency situations. That section

further provides that “with respect to the emergency use of an unapproved product, the Secretary

. . . shall for a person who carries out any activity for which the authorization is issued, establish

such conditions on an authorization . . . as the Secretary finds necessary or appropriate to protect

the public health, including” that health care professionals administering the product are informed

that the Secretary have authorized emergency use, the significant and potential benefits and risks

of such use, and of the extent to which the benefits and risks are unknown, and of the alternatives

to the product that are available and of their benefits and risks, 21 U.S.C. §360bbbe-(3)(1)(A)(i),

and that individuals on whom the product is administered are provided the same information along

with the option to refuse or accept the administration of the product. 21 U.S.C. §360bbbe-

(3)(1)(A)(ii). Section 564(l) specifically states that “[t]his section only has legal effect on a person

who carries out an activity for which an authorization under this section is issued.” 21 U.S.C.

§360bbb-3(l).

Plaintiff claims that “as a corporation mandating a vaccine . . ., Defendants failed to follow

the requirements associated with EUA products” by not giving Plaintiff the option to refuse the

vaccine, and by not providing the information specified in 21 U.S.C. §360bbbe-(3)(1)(A)(ii).

(Amd. Cmplt. ¶¶ 227, ECF No. 18.) However, there is no allegation that Defendants actually

administered the vaccine.

It is well-settled that there is no private right of action under the FDCA. See

Buckrnan Co. v. Plaintiffs' Legal Comm., 531 U.S. 341, 349 n. 4, 121 S. Ct. 1012,

148 L.Ed.2d 854 (2001) (there is “no doubt that it is the Federal Government rather

than private litigants who are authorized to file suit for noncompliance” with the

FDCA); Bailey v. Johnson, 48 F.3d 965, 968 (6th Cir.1995) (“Congress did not

intend, either expressly or by implication, to create a private cause of action under

the FDCA”); Griffin v. O'Neal, Jones & Feldman, Inc., 604 F. Supp. 717, 718 (S.D.

Ohio 1985) (“It is clear from the face of the statute that no civil private right of

action exists”).

Edwards v. Warner-Lambert, 2012 WL 2156246, at *4 (S.D. Ohio June 13, 2012)

As explained in Bridges v. Houston Methodist Hosp., 543 F. Supp. 3d 525, 527 (S.D. Tex.

2021),

[the FDCA] confers certain powers and responsibilities to the Secretary of Health

and Human Services in an emergency. It neither expands nor restricts the

responsibilities of private employers; in fact, it does not apply at all to private

employers like the hospital in this case. It does not confer a private opportunity to

sue the government, employer, or worker. Bridges’s claim that the injection

requirement violates 21 U.S.C. § 360bbb-3 fails.

See also Doe v. Franklin Square Union Free Sch. Dist., 2021 WL 4957893, at *20 (E.D.N.Y. Oct.

26, 2021) (“Section 564 does not include a private right of action.”)

Plaintiff’s claims brought under the Nuremberg Code (claim ten) must also be dismissed.

Plaintiff alleges that Defendants have “offended long-held and fundamental principles of

international law,” that Tyson’s “employees are being coerced into unknowingly participating in

a national medical experiment” and that Defendant has “failed to provide sufficient balanced

information to satisfy informed consent” (Amd. Cmplt. ¶¶ 235-236, ECF No. 18), in violation of

the Nuremberg Code which requires the voluntary consent of any human subject in order to

participate in medical experiments. See Abdullahi v. Pfizer, Inc., 562 F.3d 163, 175 (2d Cir. 2009)

(describing the “sources of international law that categorically forbid medical experimentation on

non-consenting human subjects”).

The Court agrees with Defendants that there is no private right of action for a violation of

international law based on the Nuremberg Code. See Washington Univ. v. Catalona, 437 F. Supp.

2d 985, 1000 (E.D. Mo. 2006), aff’d, 490 F.3d 667 (8th Cir. 2007). “Covid-19 vaccine mandates

are simply not equivalent to the forced experimentation on concentration camp victims that led to

the writing of the Nuremberg Code.” Anderson v. United Airlines, Inc., 2021 WL 6337144, at *7

(M.D. Fla. Dec. 30, 2021). See Heinrich ex rel. Heinrich v. Sweet, 49 F. Supp. 2d 27, 42 (D. Mass.

1999) (noting that there is no private right of action under the Nuremberg Code). Furthermore,

the Nuremberg Code does not apply to private employers. See Bridges v. Houston Methodist

Hosp., 2021 WL 2399994, at *2 (S. D. Tex. June 12, 2021) (“Equating the injection requirement

to medical experimentation in concentration camps is reprehensible.”) Plaintiff cites no law in

opposition to this argument and, instead, just makes a policy argument.

As explained in by the Catalona Court,

There is no private right of action for an alleged violation of international law for the

protection of human research subjects based upon the Declaration of Helsinki and the

Nuremberg Code. White v. Paulsen, 997 F. Supp. 1380, 1383 (E.D. Wash. 1998); Hoover

v. West Virginia Dept. of Health and Human Resources, 984 F. Supp. 978, 980

(S.D.W.Va.1997) aff’d 129 F.3d 1259, 1997 WL 705385 (4th Cir.1997); see also,

Abdullahi, et al. v. Pfizer, Inc., 2005 WL 1870811 (S.D.N.Y. 2005). Furthermore, this

Court agrees with the conclusions reached by its fellow district courts in Michigan and

Oklahoma that the standard in the United States for conducting research on human subjects

is contained in the Code of Federal Regulations and therefore United States federal courts

have no need to resort to international law to impute a standard. Ammend v. Bioport, Inc.,

322 F. Supp.2d 848, 872–73 (W.D. Mich. 2004); Robertson v. McGee, 2002 WL 535045

(N.D.Okla.2002).

437 F. Supp. 2d at 1000–01. Accordingly, this claim must be dismissed with prejudice.

Finally, Defendants contend that Plaintiff has failed to state a claim for common law assault

(claim thirteen). Claim thirteen alleges as follows:

262. Defendants have threatened intentional, imminent harmful and offensive

contact upon Plaintiff by way of forced vaccine injection of an experimental,

untested, and ineffective mRNA vaccine, under penalty of being terminated from

their employment. A penalty they in fact exercised.

263. Furthermore, Defendant Rhonda Gooch has continuously harassed and

threatened Plaintiff regarding her choice not to receive the vaccine.

264. Defendant’s coercion, emboldened by tight deadlines, uncompromising

exemption protocols, and a hostile and censored work environment, contributed to

Plaintiff’s stress and fear concerning Defendants’ vaccine mandate.

265. Tyson’s COVID-19 vaccine mandate caused Mrs. Johnson to reasonably fear

imminent bodily injury from being forced to inject an experimental, untested, and

potentially unsafe substance into her body, under penalty of termination from

employment for failure to comply. A penalty that was in fact exercised by

Defendants.

266. Plaintiff did not consent to Defendants’ conduct, nor did she consent to

receiving the COVID-19 vaccine. Defendant’s unlawful requirement of

employment was an

unwelcome invasion of Plaintiff’s privacy and bodily integrity.

267. Tyson’s COVID-19 vaccine mandate has and continues to cause Plaintiff

harm, including but not limited to by way of fear, anxiety, fright over being

threatened with the injection of an untested and potentially unsafe substance into

the body, and the imminent and subsequent loss of her income and livelihood.

(Amd. Cmplt., ECF No. 18.) Defendants assert that Plaintiff has failed to plead sufficient facts to

support a common law claim of assault because she had not alleged an overt act or a physical

movement sufficient to set forth a plausible assault claim for which relief may be granted under

Tennessee law. Defendants posit that the threat of the loss of income cannot sustain a claim for

assault. The Court finds Defendants’ argument to be meritorious.

Under Tennessee common law, assault is defined as “any act tending to do corporal injury

to another, accompanied with such circumstances as denote at the time an intention, coupled with

the present ability, of using actual violence against that person.” Vafaie v. Owens, 1996 WL

502133, at *3 (Tenn. Ct. App. 1996) (citing Huffman v. State, 292 S.W.2d 738, 742 (Tenn. 1956),

overruled on other grounds by State v. Irvin, 603 S.W.2d 121 (Tenn. 1980)). In Vafaie, the

Tennessee Court of Appeals affirmed the grant of summary judgment to the defendant on the

plaintiff’s assault claim because “the alleged threats were always threats of future harm, and were

not threats of immediate or imminent harm. In no instance, were the threats ‘coupled with the

present ability to act,’ or, to borrow the words of the criminal statute, there was never a threat of

‘imminent bodily injury.’” 1996 WL 502133, at *4.

In Tennessee, assault is defined as “any act tending to do corporal injury to another,

accompanied with such circumstances as denote at the time an intention, coupled

with the present ability, of using actual violence against the person.” Thompson v.

Williamson Cnty., 965 F. Supp. 1026, 1037 (M.D. Tenn. 1997). A defendant is not

liable for assault unless he or she commits an “intentional act creating a reasonable

apprehension of imminent physical harm on the part of the plaintiff.” Baker v.

Moreland, 1989 WL 89758, at *5 (Tenn. Ct. App. Aug. 9, 1989).

A civil action for assault cannot be sustained upon the basis of words alone. Id.

Rather, there must be an overt act or physical movement causing the plaintiff to

believe he was in imminent physical harm or danger. Id. “An overt act is an

essential element of an assault, and mere preparation or a threat to commit an

assault unaccompanied by physical effort to do so, does not amount to an assault.”

Id. In other words, the defendant must make a physical movement “which might be

reasonably interpreted as the beginning of a physical attack upon the plaintiff.” Id.,

at *6.

Dillingham v. Millsaps, 809 F. Supp. 2d 820, 855 (E.D. Tenn. 2011).

In the present case, Defendants do not administer the vaccine, and Plaintiff may choose not

to take the vaccine - albeit at the risk of losing her job. C.f., Reese v. Tyson Foods, Inc., 2021 WL

5625411, at *3 (W.D. Mo. Nov. 30, 2021) (denying the employee plaintiff’s motion for a

temporary restraining order and preliminary injunction to be able to keep his job during the

pendency of the litigation and not have to receive the vaccine and pointing out that “Plaintiff

admitted he had not been forced to get the COVID-19 vaccine and that no one had tried to or

physically made him get it” even though he had alleged in his complaint that he believed that the

defendant employer would “force” him to be vaccinated).

The court in McCutcheon v. Enlivant ES, LLC, 2021 WL 5234787, at *3 (S.D.W. Va. Nov.

9, 2021), explained,

Ms. McCutcheon’s claims are similar to those offered in Bridges v. Houston

Methodist Hosp., ––– F. Supp. 3d ––––, Case No. H-21-1774, 2012 WL 2399994

(S.D. Tex. June 12, 2021). Among other good observations, Judge Hughes correctly

noted that vaccine mandates by public employers do not coerce employees. Id. at

*7. The same might be said of private employers -- particularly those in the medical

and assisted living industries -- which impose vaccination policies to protect their

residents, patients, and staff members. Ms. McCutcheon is free to accept or refuse

the COVID-19 vaccine. If she refuses, she need only to pursue employment

elsewhere.

C.f., Jacobson v. Massachusetts, 197 U.S. 11 (1905) (rejecting substantive due process claim that

“a compulsory vaccination law is ... hostile to the inherent right of every freeman to care for his

own body” and “nothing short of an assault upon his person”). Here, there has been no assault

upon Plaintiff because she is “free to accept or refuse the COVID-19 vaccine,” and, if she refuses,

she “need only to pursue employment elsewhere.” For this reason, claim thirteen is dismissed with

prejudice.

In summary, Defendants’ motion to dismiss is PARTIALLY GRANTED and

PARTIALLY DENIED. The motion is granted with prejudice as to claims one, two, five, nine,

ten, eleven, and thirteen. The motion is granted without prejudice as to claims three, six, and eight.

The motion is denied without prejudice as to claims four, seven, and twelve. As previously

stated, Defendants will be given twenty-eight days from the entry of this order in which to notify

the Court of its compliance with Tenn. Code Ann. § 29–14–107(b) and Tenn. R. Civ. P. 24.04.

IT IS SO ORDERED.

s/ S. Thomas Anderson

S. THOMAS ANDERSON

CHIEF UNITED STATES DISTRICT JUDGE

Date: June 15, 2022