Reed v. Tyson Foods, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

SYMANTHA REED, CHARLES )

GOEZ, JAMES SPAULDING, )

GARY CRAWFORD, WENDY )

WHARTON, MICHELLE )

WHITEHEAD, )

)

Plaintiffs, )

) NO. 21-cv-01155-STA-jay

vs. )

)

TYSON FOODS, INC., )

)

Defendant. )

)

ORDER PARITALLY GRANTING DEFENDANT’S MOTION TO DISMISS

AND

PARTIALLY DENYING MOTION TO DISMISS

Plaintiffs Symantha Reed, Charles Goez, James Spaulding, Gary Crawford, Wendy

Wharton, and Michelle Whitehead filed this action in the Dyer County Chancery Court against

their employer Tyson Foods, Inc. Plaintiffs allege that Defendant Tyson Foods violated their 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 them 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 their jobs. Plaintiffs also allege a state common law claim

of assault. (Amd. Cmplt., No. 21.) Plaintiffs seek 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 15, 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 Plaintiffs’ motion to remand finding that the Court has jurisdiction under

28 U.S.C. § 1442(a)(1). (ECF No. 20.) Plaintiffs filed an amended complaint on November 18,

2021. (ECF No. 21.)

Defendant has now filed a motion to dismiss the amended complaint. (ECF No. 27.)

Plaintiffs have responded to the motion (ECF No. 32), and Defendant has filed a reply to the

response. (ECF No. 37.) 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

Plaintiffs have brought twelve claims in their amended complaint. Many of those claims

are based on the underlying premise that Defendant is a government or state actor,1 specifically

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

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

and Fifth Amendments (claim ten). Plaintiffs rely, in part, on the Court’s previous finding of

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

federal officer jurisdiction in support of their contention that Defendant acted as a government or

state actor during the events giving rise to this lawsuit while Defendant argues that removal under

the federal officer removal statute did not transform it into a government actor. The Court will

address this issue first.

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

officer jurisdiction is informative. In that order (ECF No. 20), 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 its response to the motion to remand, Defendant argued that it 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 Defendant, 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. Defendant reasoned that, because it 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 Defendant is 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 Defendant’s 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 Plaintiffs’ claims satisfied the causal connection required by § 1442(a). Plaintiffs’

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 its motion to dismiss, Defendant argues that removal of this action under the federal

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

claims cannot be brought against it. Plaintiffs have responded that Defendant’s vaccine mandate

constitutes state action based on this Court’s order denying Plaintiffs’ motion to remand. Plaintiffs

acknowledge that Defendant “is a corporation that operates as a worldwide food processing and

marketing company” (Amd. Cmplt. ¶ 15, ECF No. 21) but posit 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 Defendant, the statute merely determines which court hears a case; it does

not transform a private party into a government actor. In denying Plaintiffs’ motion to remand,

the Court held that Defendant “acted under a federal officer” — not that Defendant is a federal

officer or government actor.

Defendant correctly points 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, Plaintiffs’ 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 indicates a presumption — a reasonable and correct one — that a private

denying their motion to remand is unavailing in determining whether Defendant can be considered

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

nexus tests, the Court finds that Plaintiffs have not shown that any of these tests encompass

Defendant’s 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 Plaintiffs allege that Defendant has taken on a public function under this

test, the Court finds that their 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

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).

3 Plaintiffs contend that “the issue of state action attributable to a private party is one

fundamentally unsuited for adjudication 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.”)

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

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

Plaintiffs argue that Defendant’s 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 procession plants to stay

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

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

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

423 (citations omitted).

implement a vaccine requirement.5 Defendant notes that its vaccine policy was guided by 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

5 Plaintiffs acknowledge that there is no governmental order or law requiring Defendant to mandate

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

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.”)

Plaintiffs contend that Defendant 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. 32.) However, no facts are pled

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

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

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

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

poultry plants convert Defendant into a government actor. 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 Plaintiffs have failed to show that Defendant’s action in requiring its 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 eight); the

Nuremberg Code (claim nine); and the Fourth and Fifth Amendments (claim ten). Defendant’s

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

Next, Defendant contends that Plaintiffs have 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 Defendant is

not a state actor.6 Because the Court has determined that Defendant is not a state actor, it will

focus on Defendant’s private right of action argument. In support of its argument, Defendant relies

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)).

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

worship Almighty God according 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.

Plaintiffs agree that there is no private right of action for damages under the Tennessee

Constitution but argue that they may seek injunctive relief. (Resp. p. 13, ECF No. 32.)7 A few of

the cases that have addressed the issue of whether a plaintiff has a private right of action for

injunctive relief under the Tennessee Constitution have looked favorably on similar arguments by

Plaintiffs. For example, in Anderson v. Clarksville Montgomery Cty. Sch. Sys., the District Court

for the Middle District of Tennessee found as follows:

Plaintiffs have alleged that Defendants violated Plaintiffs’ rights to freedom of

speech and association and equal protection under the Tennessee Constitution.

Defendants claim there is no private right of action under the Tennessee

Constitution, citing Cline v. Rogers, 87 F.3d 176 (6th Cir. 1996), which held that

Tennessee does not recognize a private cause of action for violations of the

Tennessee Constitution. Id. at 179.

Plaintiffs argue that there is a private right of action under the Tennessee

Constitution where, as here, the remedy sought is injunctive relief rather than

money damages. Plaintiffs cite Planned Parenthood of Middle Tennessee v.

Sundquist, 38 S.W.3d 1 (Tenn. 2000), in which the Tennessee Supreme Court

granted injunctive relief after declaring certain state statutes unconstitutional under

the Tennessee Constitution. Even though there is no authority for the recovery of

damages for a violation of the Tennessee Constitution, Lee v. Ladd, 834 S.W.2d

323, 325 (Tenn. Ct. App.1992), the Court has the inherent power to enjoin

unconstitutional conduct. The plaintiffs in both Cline and Lee sought money

damages, not injunctive relief.

Accordingly, Defendants’ Motion to Dismiss Plaintiffs’ claims under the

Tennessee Constitution is DENIED.

Anderson v. Clarksville Montgomery Cty. Sch. Sys., 2006 WL 1639438, at *2–3 (M.D. Tenn. June

13, 2006). See also Hines v. Town of Vonore, 2011 WL 1532420, at *2 (E.D. Tenn. Apr. 22, 2011)

7 Even if Plaintiffs are correct that they may seek injunctive relief for a violation of their rights

under the Tennessee Constitution, only Plaintiffs Reed, Goetz, Spaulding, and Wharton would be

eligible for an injunction prohibiting Defendant from taking an adverse action against them as they

are the only plaintiffs currently employed by Defendant who declined to be vaccinated and were

placed on unpaid leave. (Amd. Cmplt. ¶¶ 9-11, 13 ECF No. 21.) Plaintiff Crawford left his

employment with Defendant and is employed elsewhere. (Id. at ¶12.) Plaintiff Whitehead received

the vaccination and remains employed by Defendant. (Id. at ¶14.)

(denying the defendant’s motion to dismiss the request for injunctive relief under the state

constitutional based on the reasoning in Anderson).

In Peterson v. Dean, 2009 WL 3517542, at *1 (M.D. Tenn. Oct. 23, 2009), the Court

acknowledged the lack of clarity as to whether “Tennessee courts have either recognized or

proscribed a private right of action for injunctive relief, or whether they would be inclined to do

so in the future.” Peterson rejected the plaintiffs’ reliance on Planned Parenthood and other cases

as finding that there is a private right of action for injunctive relief under the Tennessee

Constitution because “[t]hose cases enjoined the enforcement of facially unconstitutional statutes

as to everyone; they did not concern individual unconstitutional actions.” Id. (citations omitted).

In [those] cases, the statute rather than the official was the underlying target of the

injunction. Given the foregoing analysis, it does not seem clear to this Court that

Tennessee courts have either recognized or proscribed a private right of action for

injunctive relief, or whether they would be inclined to do so in the future. The only

thing clear at this point is that Tennessee does not allow for a private right of action

for damages based on violations of the Tennessee Constitution, which is not at issue

in this case.

Id. Rather than decide the issue, the Court declined to exercise supplemental jurisdiction over the

plaintiffs’ pendent state law claims pursuant to 28 U.S.C. § 1367,8 in part, because “the question

of whether the Tennessee Constitution allows for a private right of action for injunctive relief as

to an individual remains an unsettled issue of state law.” Id. at *2. This Court agrees with the

8 Section 1367 provides in relevant part that a district court may decline to exercise supplemental

jurisdiction over a particular claim when:

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims over which the district court has

original jurisdiction,

(3) the district court has dismissed all claims over which it has original jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

28 U.S.C. § 1367(c).

decision in Peterson and also “declines to exercise supplemental jurisdiction over this novel issue

of state law pursuant to § 1367(c)(1).” Id.

Accordingly, claim two seeking injunctive relief on behalf of Plaintiffs Crawford and

Whitehead is dismissed with prejudice, and claim two seeking injunctive relief on behalf of

Plaintiffs Reed, Goetz, Spaulding, and Wharton is remanded to the Dyer County Chancery Court.9

9 The Court is not convinced that Plaintiffs Reed, Goetz, Spaulding, and Wharton have brought a

true claim for injunctive relief because they can be made whole with damages and reinstatement

if they prevail. This issue was discussed in Reese v. Tyson Foods, Inc., 2021 WL 5625411 (W.D.

Mo. Nov. 30, 2021).

Plaintiff’s motion alleges, absent the extraordinary remedy of a temporary

restraining order or preliminary injunction, he is faced with the threat of irreparable

harm in the form of permanent leave without pay and the loss of salary, pay, and

his earned annual bonus. It is well established, however, that this type of harm does

not constitute irreparable harm warranting the entry of a temporary restraining order

or a preliminary injunction. Sampson v. Murray, 415 U.S. 61, 90, 91-92, 92 n.68

(1974) (acknowledging that a discharged employee might be entitled to a

preliminary injunction in a “genuinely extraordinary situation” but that a

satisfactory showing of loss of income coupled with damage to reputation “falls far

short of the type of irreparable injury which is a necessary predicate to the issuance

of a temporary injunction in this type of case.”); CDI Energy Servs. v. W. River

Pumps, Inc., 567 F.3d 398, 403 (8th Cir. 2009); Adam-Mellang v. Apartment

Search, Inc., 96 F.3d 297, 300 (8th Cir. 1996) (finding preliminary injunctive relief

was not warranted where a plaintiff had “an adequate remedy at law, namely, the

damages and other relief to which she will be entitled if she prevails.”).

More to the point, courts recently have consistently rejected claims that vaccine

policies like Defendant’s cause irreparable nonmonetary harms. See Barrington v.

United Airlines, Inc., No. 21-cv-2602, 2021 WL 4840855, at *7 (D. Colo. Oct. 14,

2021) (denying employee’s motion for a temporary restraining order where private

employer’s COVID-19 vaccine policy provided unpaid leave as accommodation,

finding “simple economic loss” does not constitute irreparable harm); Johnson v.

Brown, No. 21-cv-1494, 2021 WL 4846060, at *25 (D. Ore. Oct. 18, 2021) (fears

about paying bills, finding another job, or paying for medical care are “routine,”

not “irreparable,” and are “compensable by money damages”); Beckerich v. St.

Elizabeth Med. Ctr., 2021 WL 4398027, at *6 (E.D. Ky. Sept. 24, 2021) (“broader

implications” of vaccination policies do not support preliminary injunction because

irreparable harm “must be actually suffered by the plaintiffs in question”); Valdez

v. Grisham, 2021 WL 4145746, at *43 (D.N.M. Sept. 13, 2021) (“potential

termination and/or inability to continue to work as a nurse” not irreparable harm);

Defendant contends that Plaintiffs have failed to state a claim for religious discrimination

under Title VII (claim three) and the ADA (claim six) because they failed to exhaust their

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. 10 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,

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

Plaintiffs have not filed a charge with the EEOC.

Norris v. Stanley, 2021 WL 3891615, at *8-9 (W.D. Mich. Aug. 31, 2021) (lost pay

and benefits from termination for refusing COVID-19 vaccine not irreparable harm

warranting injunctive relief).

Reese, 2021 WL 5625411, at *4.

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

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

Plaintiffs argue that they are only seeking injunctive relief, not monetary damages, which

they claim is a generally accepted exception to the administrative remedy exhaustion requirement.

In support of their argument, they cite 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, Plaintiffs fail to make the distinction that in

the cases they cite, 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, Plaintiffs have not filed charges with the EEOC; a fortiori, the cases cited by

Plaintiffs are inapposite to their claims. Plaintiffs’ failure to file an EEOC charge is dispositive,

and Plaintiffs’ Title VII and ADA claims (claims three and six) must be dismissed without

prejudice for failure to exhaust their administrative remedies.

Plaintiffs have brought a claim under the THRA for Defendant’s alleged failure to

accommodate their religious beliefs (claim four). Plaintiffs allege that they hold sincere religious

beliefs that preclude them 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. ¶¶ 176, 180, ECF No. 21.)

In its motion to dismiss, Defendant contends that the THRA does not require an employer

to accommodate an employee’s religious beliefs. Plaintiffs acknowledge that there is no explicit

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

but they argue that the Tennessee Supreme Court has held that THRA claims are analyzed in the

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

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

Defendant has raised the issue of preemption. Defendant contends that this claim and

Plaintiffs’ 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.11 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).

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.

11 Plaintiffs’ state statutory claims are brought under the THRA (claim four), Tenn. Code Ann. §

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

Ann. § 14-1-101 et seq. (claim eleven). Plaintiffs have also brought a state constitutional claim

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

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 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

Defendant’s motion to dismiss the state law claims (claims four, seven, eleven) 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.

Defendant has moved to dismiss Plaintiffs’ 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).

Plaintiffs do 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, they continue to argue that Defendant is a government actor for the purposes of this

lawsuit. However, the Court has already decided this issue against Plaintiffs. Therefore, the RFRA

claim must be dismissed.

The Court agrees with Defendant that Plaintiffs have failed to state a claim for Defendant’s

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

eight), 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).

Plaintiffs claim that “as a corporation mandating a vaccine . . ., Defendants failed to follow

the requirements associated with EUA products” by not giving Plaintiffs 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. ¶¶ 234-238, ECF No. 21.) However, there is no allegation that Defendant 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.”)

Plaintiffs’ claims brought under the Nuremberg Code (claim nine) must also be dismissed.

Plaintiffs allege that Defendant has “offended long-held and fundamental principles of

international law,” that Defendant’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. ¶¶ 245-246, ECF No. 21), 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 Defendant 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.”) Plaintiffs cite no law in

opposition to this argument and, instead, just make 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, Defendant contends that Plaintiffs have failed to state a claim for common law

assault (claim twelve). Claim twelve alleges as follows:

270. Defendant has threatened intentional, imminent harmful and offensive contact

upon Plaintiffs by way of forced vaccine injection of an experimental, untested, and

ineffective mRNA vaccine, under penalty of being terminated from their

employment.

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

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

Plaintiffs’ stress and fear concerning Defendant’s vaccine mandate.

272. Defendant’s COVID-19 vaccine mandate caused Plaintiffs to reasonably

believe that Defendant was about to carry out the threat of harmful and offensive

contact upon them, by way of forcing Plaintiffs to inject an untested and potentially

unsafe substance into their bodies.

273. Plaintiffs did not consent to Tyson’s conduct, nor did they consent to receiving

the COVID-19 vaccine. Defendant’s unlawful requirement of employment was an

unwelcome invasion of Plaintiffs’ privacy and bodily integrity.

274. Tyson’s COVID-19 vaccine mandate has and continues to cause Plaintiffs’

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 resulting loss of their income and livelihoods.

(Amd. Cmplt., ECF No. 21.) Defendant asserts that Plaintiffs have failed to plead sufficient facts

to support a common law claim of assault because they have 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. Defendant posits that the threat of the loss of income cannot sustain a claim for

assault. The Court finds Defendant’s 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, Defendant does not administer the vaccine, and Plaintiffs may choose

not to take the vaccine - albeit at the risk of losing their jobs. 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 Plaintiffs because they are “free to accept or refuse the COVID-19 vaccine,” and, if they

refuse, they “need only to pursue employment elsewhere.” For this reason, claim twelve is

dismissed with prejudice.

In summary, Defendant’s motion to dismiss is PARTIALLY GRANTED and

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

ten, and twelve. The motion is also granted with prejudice on Plaintiffs Crawford and Whitehead’s

claim two. The motion is granted without prejudice as to claims three and six.

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

stated, Defendant 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.

The Court declines to accept supplemental jurisdiction over Plaintiffs Reed, Goetz,

Spaulding, and Wharton’s claim two pursuant to 28 U.S.C. § 1367(c), and this claim is hereby

remanded to the Dyer County Chancery Court.

IT IS SO ORDERED.

s/ S. Thomas Anderson

S. THOMAS ANDERSON

CHIEF UNITED STATES DISTRICT JUDGE

Date: June 14, 2022.