OUTMemphis v. Lee

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

OUTMEMPHIS, )

)

Plaintiff, )

)

v. ) Nos. 23-cv-2670-SHL-cgc,

) 24-cv-2101-SHL-tmp

BILL LEE, in his official )

capacity as Governor of )

Tennessee, and JONATHAN )

SKRMETTI, in his official )

capacity as Attorney General )

and Reporter of Tennessee, )

)

Defendants. )

________________________________ )

)

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

v. )

)

STATE OF TENNESSEE, and )

TENNESSEE BUREAU OF )

INVESTIGATION, )

)

Defendants. )

ORDER DENYING DEFENDANTS’ MOTION TO COMPEL

Before the court by order of reference is defendants State of

Tennessee’s and Tennessee Bureau of Investigation’s (collectively

“Tennessee”) Motion to Compel. (ECF Nos. 79, 86.) For the reasons

below, the motion is DENIED.

I. BACKGROUND

On February 15, 2024, plaintiff the United States of America

(“USA”) filed its complaint under Title II of the Americans with

Disabilities Act (“Title II”), 42 U.S.C. § 12132, alleging that

Tennessee’s aggravated prostitution statute, Tenn. Code Ann. § 39-

13-156, unlawfully discriminates against people with human

immunodeficiency virus (“HIV”). (ECF No. 1). On April 3, 2024, on

motion of the parties, the case was consolidated with OUTMemphis

v. Lee, 2:23-cv-02670-SHL-cgc. (ECF Nos. 15, 22.) On April 10,

2024, Tennessee filed a motion to dismiss, arguing that Title II

does not authorize the USA to bring enforcement actions; that the

complaint fails to state a claim under Title II; that Tennessee is

not the proper defendant; and that the requested remedy is

improper.1 (ECF No. 28-1.) That motion remains pending before the

district court.

Tennessee filed its motion to compel on October 8, 2024. (ECF

No. 79.) Tennessee asks that the court order the USA to answer

Interrogatory Nos. 8, asking the USA to “[i]dentify and describe

1Tennessee argues in its motion to dismiss that “Title II has

nothing to do with [s]tates’ administration of their criminal

codes,” (ECF No. 28-1 at PageID 157), and the parties stated at

the motion hearing that this case appears to be the first under

Title II challenging a criminal statute that imposes harsher

criminal liability on a person with HIV. For the limited purpose

of deciding the instant motion, the undersigned will assume without

deciding that the USA can sue a state under Title II for a state

criminal statute that discriminates based on disability.

all government purposes served by 18 U.S.C. § 1122,”2 and 9, asking

the USA to “Identify and describe all government purposes served

by Department of Defense Instruction 6130.03 § 6.23(b),

Instruction 6485.01, and any other directive, instruction, or

policy of the Department of Defense or any department of the United

States military which prohibits or restricts the enlistment of

servicemembers based on infection with HIV.”3 (ECF No. 79-1 at

PageID 908.) Tennessee argues that this information is relevant to

the “heart of [its] defense”: Tennessee maintains that it must

offer a legitimate, non-discriminatory reason for the aggravated

prostitution statute under the burden shifting framework outlined

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to rebut

that it has intentionally discriminated against people with HIV.4

(ECF No. 79-1 at PageID 910-11.) Tennessee also argues that the

USA cannot show that responding is unduly burdensome. (Id. at

PageID 912-13.)

2That statute imposes criminal liability against a person with HIV

who “knowingly donates or sells, or knowingly attempts to donate

or sell, blood, semen, tissues, organs, or other bodily fluids for

use by another.” 18 U.S.C. § 1122(a).

3Those policies “prohibit[] individuals with HIV from enlisting”

in the United States military. (ECF No. 79-1 at PageID 907.)

4Tennessee does not identify the test as such, but the case it

cites outlining the burden-shifting inquiry, Keller v. Chippewa

County, Michigan Board of Commissioners, 860 F. App’x 381, 388

(6th Cir. 2021), specifically applies the McDonnell Douglas

framework, and confirms that McDonnell Douglas is used in Title II

intentional discrimination cases, id.

The USA filed its response in opposition on October 22, 2024.

(ECF No. 85.) The USA argues that the requested information is

irrelevant because the challenged action is facially

discriminatory, and thus the McDonnell Douglas framework does not

apply. (Id.) The USA suggests the “direct threat” exception

codified at 28 C.F.R. § 35.139(a) could be relevant to defending

a facially discriminatory policy, but it argues that this exception

requires a fact-intensive analysis for which generalized

justifications, such as those sought by Tennessee, are

insufficient.5 (Id.) The USA further argues that the information

is irrelevant because the identified statutes and policies are

dissimilar from Tennessee’s aggravated prostitution statute, and

that the interrogatories are disproportionate to the needs of the

case. (Id.) Tennessee filed its reply on October 28, 2024,

reiterating that the McDonnell Douglas framework is applicable;

that the identified statutes and policies are similar; and that

the USA has not shown that responding is unduly burdensome. (ECF

No. 89.)

On November 19, 2024, the undersigned held a hearing on the

motion. (ECF No. 93.) Tennessee agreed that the requested

information would not be relevant if the McDonnell Douglas

5Tennessee confirmed at the motion hearing before the undersigned

on November 19 that it is not defending the statute under the

direct threat exception. (ECF No. 93.)

framework does not apply, and it confirmed that it was not

defending the challenged statute under the direct threat

exception.6 (Id.)

II. ANALYSIS

Under the Federal Rules of Civil Procedure, information is

discoverable if it is “relevant to any party’s claim or defense

and proportional to the needs of the case.” Fed. R. Civ. P.

26(b)(1). The court may limit discovery upon a showing that the

discovery sought is unreasonably cumulative, duplicative, or is

more easily obtainable from another source; that the party seeking

discovery has had ample opportunity to obtain the information

sought; or that the burden or expense of the discovery outweighs

its likely benefit. Fed. R. Civ. P. 26(b)(2). “The party seeking

discovery is obligated to demonstrate relevance.” Myrtil v. Serra

Chevrolet, No. 22-cv-MSN-tmp, 2023 WL 4493717, at *2 (W.D. Tenn.

6Although Tennessee argued in its brief that this information is

also relevant to defending a failure-to-accommodate claim, (ECF

No. 79-1,) it did not make this argument at the hearing. Moreover,

the USA’s complaint does not allege a failure-to-accommodate

claim, (see ECF No. 1), nor does it appear that such an analysis

is appropriate where the statute is facially discriminatory, see

MX Grp., Inc. v. City of Covington, 293 F.3d 326, 345 (6th Cir.

2002) (holding that a plaintiff does not need to request a

reasonable accommodation where the challenged ordinance is

facially discriminatory); see also Bay Area Addiction Rsch. &

Treatment, Inc. v. City of Antioch, 179 F.3d 725, 733 (9th Cir.

1999) (“The reasonable modification test does not apply in this

case because, here, the ordinance in question discriminates on its

face.”). This argument is thus not relevant to resolution of this

motion.

July 12, 2023) (citing Johnson v. CoreCivic, Inc., No. 18-CV-1051-

STA-tmp, 2019 WL 5089086, at *2 (W.D. Tenn. Oct. 10, 2019)). “Upon

a showing of relevance, the burden shifts to the party opposing

discovery to show, with specificity, why the requested discovery

is not proportional to the needs of the case.” Id. (citing William

Powell Co. v. Nat'l Indem. Co., No. 1:14-CV-00807, 2017 WL 1326504,

at *5 (S.D. Ohio Apr. 11, 2017), aff'd sub nom. 2017 WL 3927525

(S.D. Ohio Jun. 21, 2017), and modified on reconsideration, 2017

WL 4315059 (S.D. Ohio Sept. 26, 2017)).

Tennessee argues that the information sought in Interrogatory

Nos. 8 and 9 is relevant for the purpose of proffering a

legitimate, non-discriminatory reason for the aggravated

prostitution statute under the McDonnell Douglas burden shifting

framework. As stated above, Tennessee concedes that this

information is relevant only if McDonnell Douglas applies. In

opposition, the USA maintains that the McDonnell Douglas framework

does not apply because the statute is facially discriminatory, and

thus is direct evidence of a Title II violation. Accordingly, the

USA argues that Tennessee has not met its burden to show this

request is relevant.

Under Title II, the McDonnell Douglas burden shifting

framework is only applicable in the absence of direct evidence of

discrimination.7 Cf. Bennett v. Hurley Med. Ctr., 86 F.4th 314,

325 (6th Cir. 2023) (“Because the record contains no direct

evidence of discrimination against Plaintiff based on her

disability, Plaintiff must meet the requirements of the familiar

McDonnell Douglas burden shifting framework . . . .”). “Direct

evidence is a ‘smoking gun’ and ‘does not require the fact finder

to draw any inferences to reach the conclusion that unlawful

discrimination was at least a motivating factor.’” Finley v. Huss,

102 F.4th 789, 823 (6th Cir. 2024) (quoting Gohl v. Livonia Pub.

Schs. Sch. Dist., 836 F.3d 672, 683 (6th Cir. 2016)).

Here, Tennessee’s aggravated prostitution statute

specifically targets sex workers who have HIV with harsher

penalties than those who do not have HIV, compare Tenn. Code Ann.

§ 39-13-516 (defining aggravated prostitution as only applying to

people “infected with HIV” and categorizing the crime as a Class

C felony), with Tenn. Code Ann. § 39-13-513 (categorizing

prostitution generally as a Class B misdemeanor), and is thus

direct evidence of discrimination. See Bent-Crumbley v. Brennan,

799 F. App’x 342, 345 (6th Cir. 2020) (citing Nguyen v. City of

7Under this framework, the plaintiff must first make out a prima

facie case of discrimination. Bennett, 86 F. 4th at 325. The burden

then shifts to the defendant to proffer a legitimate, non-

discriminatory reason for its actions. Id. The burden then shifts

back to the plaintiff to show that the proffered reason was merely

pretextual. Id. McDonnell Douglas only applies at the motion for

summary judgment stage.

Cleveland, 229 F.3d 559, 563 (6th Cir. 2000)) (“A plaintiff can

establish a prima facie case under the direct evidence framework

by bringing evidence of discriminatory intent, such as a facially

discriminatory employment policy or express statements of desires

to remove employees.”). Because the McDonnell Douglas framework

only applies in the absence of direct evidence, it does not appear

to be applicable under these circumstances. Thus, it is not

relevant whether Tennessee can proffer a legitimate, non-

discriminatory reason for its statute. Consequently, Tennessee has

not met its burden to show that the requested information is

relevant for purposes of discovery. Myrtil, 2023 WL 4493717, at *4

(denying defendant’s motion to compel in part where it did not

demonstrate relevance). Accordingly, Tennessee’s motion is

DENIED.8

Though Tennessee is not entitled to this information in

discovery, the undersigned notes that the requested information

appears to be a matter of public record. This order does not

prevent Tennessee from using that publicly-available information

as appropriate during the course of this litigation.

8Though Tennessee does not rely on the direct threat exception, it

also appears that the information sought would not be relevant to

that inquiry because it requires an individualized assessment. 28

C.F.R. § 35.139(b).

III. CONCLUSION

For the foregoing reasons, Tennessee’s Motion to Compel is

DENIED.

IT IS SO ORDERED.

s/Tu M. Pham

TU M. PHAM

Chief United States Magistrate Judge

December 4, 2024

Date