The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
THELMA GRAY, )
)
Plaintiff, )
)
v. ) No. 23-cv-02100-TMP
)
MEMPHIS SHELBY COUNTY )
EDUCATION ASSOCIATION, )
)
Defendant. )
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
Before the court is defendant Memphis Shelby County Education
Association’s (“MSCEA”) Motion to Dismiss filed, on August 22,
2023. (ECF No. 31.)1 For the reasons below, this motion is GRANTED.
I. BACKGROUND
On June 26, 2022, Thelma Gray filed a charge of discrimination
against MSCEA alleging discrimination and retaliation. Gray filed
a pro se complaint on February 24, 2023, alleging that the
discriminatory conduct was “lack of representation.” (ECF No. 1 at
1The parties consented to having the undersigned conduct all
proceedings in this case including the trial, the entry of final
judgment, and all post-trial proceedings. (ECF No. 24.) Gray filed
a motion attempting to revoke the consent based upon
unsubstantiated allegations of misconduct by counsel for MSCEA
that were unrelated to her consenting to magistrate judge
jurisdiction. (ECF Nos. 34, 36, 38, 39.) The undersigned denied
Gray’s motion finding that there was no evidence of misconduct.
(ECF No. 40.)
PageID 3.) On August 22, 2023, MSCEA moved for dismissal pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No.
31.) Gray originally filed a “response,” which simply asserted
that she had until September 7, 2023, to file an amended complaint.
(ECF No. 33.) On September 26, 2023, the court entered an Order to
Show Cause requiring Gray to substantively respond to MSCEA’s
motion, and if she failed to respond, the court would consider
MSCEA’s motion solely on the arguments contained therein. (ECF No.
41.) Gray filed a response to the motion on October 5, 2023. (ECF
No. 42.) Gray’s complaint included the following factual
statement:
I reported ADA discrimination and fraud by filing an
official complaint with Shelby County Schools. One week
after filing to complaint, the chief of HR (Yolanda
Martin) abruptly removed me from my current school at
that time and sent me to an undesirable position. This
happened March 2022 in the middle of the school year. I
reached out to the Memphis Shelby County Education
Association, where I had paid dues, for assistance to
help me get back to my students. The Association refused
to help me file a grievance to get back to my students.
(ECF No. 1 at PageID 4.) In her charge of discrimination, she made
the following allegations:
I’ve made complaints to Keith Williams, Director
informing him that I have been denied a reasonable
accommodation and transferred to [sic] from Bellevue
Middle School to Cordova Middle in the terms/conditions
of employment and in retaliation due to my medical
condition. Mr. Williams denied me the opportunity to
file a grievance and failed to respond to any of my calls
and emails. On March 4, 2022, I complained to Ms. Prater,
the school board and Keith Williams, Director of MSCEA.
On March 11, 2022, Ms. Prater informed me that Yolanda
Martin, Chief of Human Resources, made the decision to
move me to another school (Cordova Middle). On March 14,
2022, Mr. Williams contacted Ms. Martin in my present
[sic] via phone, the reason she gave for moving me was
because You reported Malone, you are making these
allegations against National Junior Honor Society, and
you asked for a dehumidifier. On March 22, 2022, I was
forced to relocate from Bellevue Middle to Cordova
Middle, without legitimate reasons. I believe I have
been discriminated against in retaliation for
complaining in violation of Title VII of the Civil Rights
Act of 1964, as amended.
(ECF No. 1-1 at PageID 8.) In this motion, MSCEA asks the court to
dismiss Gray’s claims, arguing that she does not have a plausible
claim of discrimination and that a teacher does not have the right
to being assigned to a particular school as a matter of law. (ECF
No. 31-1 at PageID 74.)
II. ANALYSIS
A. Legal Standard
In deciding a Rule 12(b)(6) motion to dismiss, the court
views the allegations in the light most favorable to the plaintiff
and accepts all well-pleaded factual allegations as true. Ashcroft
v. Iqbal, 556 U.S. 662, 678–79 (2009). Federal Rule of Civil
Procedure 8(a)(2) requires only “a short and plain statement of
the claim.” Fed. R. Civ. P. 8(a)(2). However, “[t]he factual
allegations in the complaint need to be sufficient to give notice
to the defendant as to what claims are alleged, and the plaintiff
must plead ‘sufficient factual matter’ to render the legal claim
plausible, i.e., more than merely possible.” Fritz v. Charter Twp.
of Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (quoting Iqbal, 556
U.S. at 677). “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Iqbal, 556
U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557
(2007)). To satisfy this requirement, plaintiffs must plead more
than “labels and conclusions,” “a formulaic recitation of the
elements of a cause of action,” or “naked assertions devoid of
further factual enhancement.” Id. (alteration omitted)
(quoting Twombly, 550 U.S. at 555, 557). “A claim has facial
plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
Pro se complaints are held to less stringent standards than
formal pleadings drafted by lawyers and are thus liberally
construed. Williams v. Thomas, No. 16-1330, 2019 WL 1905166, at *1
(W.D. Tenn. Apr. 29, 2019); Williams v. Curtin, 631 F.3d 380, 383
(6th Cir. 2011). Even so, pro so litigants must adhere to the
Federal Rules of Civil Procedure, see Wells v. Brown, 891 F.2d
591, 594 (6th Cir. 1989), and the court cannot create a claim that
has not been spelled out in a pleading. See Brown v. Matauszak,
415 F. App’x 608, 613 (6th Cir. 2011); Payne v. Sec’y of Treas.,
73 F. App’x 836, 837 (6th Cir. 2003).
B. Breach of Fair Representation Claim
Gray alleges that MSCEA’s discriminatory conduct was “lack of
representation,” and she explains in her factual summary that MSCEA
refused to help her file a grievance after she complained to Shelby
County Schools and was removed from her current school. (ECF No.
1 at PageID 3–4.) In her response, she argues that she “believes
that [MSCEA] discriminated against [her] when it failed to
adequately represent or advocate for the interest of all its
members (specifically [Gray]).” (ECF No. 42 at PageID 162.) The
court construes this claim as alleging that MSCEA breached its
duty of fair representation under the ADA.
“The ADA prohibits discrimination by a covered entity
‘against a qualified individual with a disability because of the
disability of such individual in regard to job application
procedures, the hiring, advancement, or discharge of employees,
employee compensation job training, and other terms, conditions,
and privileges of employment.’” Turner v. Nat’l Assoc. of Letter
Carriers Branch No. 27, No. 2:20-cv-02025-SHL-atc, 2022 WL 807378,
at *10 (W.D. Tenn. Feb. 11, 2022) (quoting Daugherty v. Sajar
Plastics, Inc., 544 F.3d 696, 702–03 (6th Cir. 2008)). “Because
labor unions are ‘covered entities’ under the ADA, union members
can bring claims against labor unions under Title I of the ADA.”
Id. (quoting 42 U.S.C. § 12111(2)). A plaintiff is not required to
establish a prima facie case under McDonnell Douglas to survive a
motion to dismiss; she “need only allege facts that ‘plausibly
suggest an entitlement to relief.’” Beard v. Hickman Cty. Gov’t,
No. 1:22-cv-00019, 2023 WL 5498056, at *1 (M.D. Tenn. Aug. 24,
2023) (quoting Ashcroft, 556 U.S. at 682). “[D]etailed factual
allegations are not necessary; a plaintiff need only allege
sufficient factual content from which a court, informed by its
judicial experience and common sense, could draw the reasonable
inference that [the labor union] violated the respective
statutes.” Id. (quoting Keys v. Humana, Inc., 684 F.3d 605, 610
(6th Cir. 2012) (internal quotation marks omitted)).
Gray alleges that, after being told that she would be
transferred from Bellevue Middle School to Cordova Middle School
— and after requesting an accommodation and complaining about the
failure of Shelby County Schools to accommodate her — “I reached
out to the [MSCEA], where I had paid dues, for assistance to help
me get back to my students. The Association refused to help me
file a grievance to get back to my students.” (ECF No. 1 at PageID
4.) These facts, accepted as true for the purposes of this motion,
plausibly allege that Gray was wrongfully transferred from
Bellevue Middle School because of her disability and in retaliation
for her filing a complaint, and that MSCEA refused to file a
grievance on her behalf. However, Gray has alleged no facts that
suggest that MSCEA refused to file a grievance because of her
having a disability. Without any factual allegations that MSCEA
failed to file a grievance because of a discriminatory animus
towards her being disabled, she has failed to state a claim under
the ADA. Therefore, the undersigned finds that Gray has not stated
a claim for breach of the duty of fair representation under the
ADA.
C. Transfer from Bellevue Middle School to Cordova Middle School
In the pro se form, Gray checked that she was subject to
discrimination based upon her disability. (ECF No. 1 at PageID 4.)
Although she includes retaliation in her charge of discrimination,
she does not allege in her complaint that MSCEA retaliated against
her in violation of the ADA. (ECF No. 1 at PageID 3, 8.) However,
in its motion, MSCEA addresses the allegation included in the
charge of discrimination that Gray’s transfer from Bellevue Middle
School to Cordova Middle School constituted unlawful
discrimination and retaliation. The undersigned will consider
Gray’s claim for discrimination and retaliation as alleged in the
charge of discrimination and complaint.
MSCEA cites a section of the Teacher Tenure Act that provides
as follows:
The director of schools, when necessary to the efficient
operation of the school system, may transfer a teacher
from one location to another within the school system,
or from one type of work to another for which the teacher
is qualified and licensed; provided, that transfers
shall be acted upon in accordance with board policy.
Tenn. Code Ann. § 49-5-510. Gray argues in her response that Shelby
County Schools retaliated against her for filing a complaint of
discrimination by transferring her to another location. (ECF No.
42 at PageID 163.) But MSCEA rightly points out that Gray fails to
allege what role it had in the transfer. Gray alleges facts that,
if true, could constitute discrimination or retaliation, but those
allegations would not be against MSCEA because the director of
schools is responsible for the transfer of teachers from one
location to another under the Teacher Tenure Act. Gray’s arguments
regarding MSCEA’s culpability for the allegedly discriminatory and
retaliatory transfer is limited to its failure “to execute its
terms of agreement as outlined in its Memorandum of Understanding
Article 3 Grievance Procedure. [Gray] believes that [MSCEA]
discriminated against [her] when it failed to adequately represent
or advocate for the interest of all its members (specifically
[Gray]).” (Id.) Gray includes no allegations that MSCEA was
responsible for the allegedly discriminatory and retaliatory
transfer. To the extent that Gray’s complaint includes claims for
discrimination or retaliation against MSCEA, the undersigned finds
that she has failed to state a claim.
III. CONCLUSION
Based on the foregoing, MSCEA’s Motion to Dismiss is GRANTED.
IT IS SO ORDERED.
s/Tu M. Pham
TU M. PHAM
Chief United States Magistrate Judge
December 14, 2023
Date