concluding that parent and subsidiary companies are “two distinct entities with different business operations”
How later courts described this case
- concluding that parent and subsidiary companies are “two distinct entities with different business operations”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
TARA DEARBONE,
Plaintiff,
v. Case 2:23-02427-JTF-cgc
UNITED GROUND EXPRESS, INC.
Defendant.
REPORT AND RECOMMENDATION ON
UNITED GROUND EXPRESS, INC.’s MOTION TO DISMISS
Before the Court is United Ground Express, Incorporated’s (“United Ground Express”)
Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Docket
Entry (“D.E.”) #35). Pursuant to Administrative Order 2013-05, the instant motion has been
referred to the United States Magistrate Judge for Report and Recommendation. For the reasons
set forth herein, it is RECOMMENDED that United Ground Express’s Motion to Dismiss be
GRANTED.
I. Background
On July 13, 2023, Plaintiff Tara Dearbone filed a pro se Complaint against United Airlines
(“United Airlines”) pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 621 et
seq. (D.E. #1). Therein, Plaintiff alleged that she was employed by United Airlines as a Customer
Service Representative at the Memphis International Airport in Memphis, Tennessee. (Compl. ¶
5 & Exh. 1). She alleges that she was discriminated against and retaliated against on the basis of
her disability, which she identifies as an on-the-job injury. (Compl. ¶¶ 6, 9 & Exh. 1). She
identifies the decision-maker of the allegedly unlawful discrimination and retaliation as General
Manager Kesnell Clark (“Clark”). (Compl. at Exh. 1). As an additional exhibit to her Complaint,
Plaintiff filed U.S. Equal Employment Opportunity Commission (“EEOC”) Determination and
Notice of Rights Letter (“Right to Sue Letter”) regarding Charge Number 490-2023-00004, which
is identified therein as a charge against United Airlines. (Compl. at Exh. 2).
On November 7, 2023, United Airlines filed a Motion for Summary Judgment asserting
that it never employed either Plaintiff or Clark. (D.E. #20). After United Airlines filed its Motion
for Summary Judgment, Plaintiff filed a Motion to Amend her Complaint to name “United Ground
Express” in place of United Airlines as the correct defendant. (D.E. #24). On February 14, 2024,
the District Court granted Plaintiff’s Motion to Amend, denied United Airlines Motion for
Summary Judgment as moot, and deemed all claims against United Airlines as voluntarily
dismissed upon the filing of the Amended Complaint. (D.E. #25).
On April 15, 2024, Plaintiff filed her pro se Amended Complaint against United Ground
Express pursuant to the ADA. (D.E. #24). Therein, Plaintiff raises the same allegations in her
initial Complaint but against Defendant United Ground Express. Plaintiff also specifies that she
was employed by United Ground Express. (Am. Compl. ¶ 5).
On May 30, 2024, United Ground Express filed the instant Motion to Dismiss pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure. (D.E. #35). United Ground Express asserts
that Plaintiff did not name it as the respondent in her EEOC Charge and, thus, has failed to exhaust
her administrative remedies against it. In the alternative, United Ground Express argues that, even
if the Court determined that Plaintiff had exhausted her administrative remedies against it by filing
an EEOC Charge against United Airlines, the Amended Complaint is untimely because Plaintiff
failed to file a complaint against United Ground Express until more than ninety days from her
receipt of the Right to Sue Letter. As an exhibit to its Motion to Dismiss, United Ground Express
filed Plaintiff’s EEOC Charge 490-2023-00004, which names her employer as United Airlines.
(See D.E. #35-2).
Local Rule 12.1 provides that a “party opposing a motion to dismiss must file a response
within 28 days after the motion is served.” Plaintiff failed to do so. Accordingly, on July 8, 2024,
the Court issued an Order to Show Cause directing Plaintiff to respond to United Ground Express’s
Motion to Dismiss “within fourteen (14) days of the entry of this Order.” (D.E. #37). The
Court warned that “FAILURE TO RESPOND TO THIS ORDER WILL RESULT IN A
RECOMMENDATION FOR DISMISSAL OF THIS CASE FOR FAILURE TO
PROSECUTE.”
On August 2, 2024, Plaintiff filed her Response to the Order to Show Cause. (D.E. #39).
Plaintiff asserts that her EEOC Charge against United Airlines suffices to exhaust her
administrative remedies against United Ground Express. She further alleges that United Ground
Express is a wholly-owned subsidiary of United Airlines and that discovery may reveal a sufficient
identity of interested between the named and unnamed entities by virtue of corporate parentage or
other joint involvement in the employment situation.
On August 14, 2024, United Ground Express filed its Reply in support of its Motion to
Dismiss. (D.E. #40). First, United Ground Express notes that Plaintiff’s Response to the Court’s
Order to Show Cause was not filed within fourteen days. Thus, United Ground Express argues
that it should not be considered and that the Court should recommend dismissal of this case for
failure to prosecute. Second, United Ground Express argues that Plaintiff’s legal arguments
regarding exhaustion of remedies are either incorrect or inapplicable to this case.
II. Legal Standard
a. Rule 12(b)(6)
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a claim may be
dismissed for failure to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6).
In addressing a motion to dismiss under Rule 12(b)(6), the court must construe the complaint in
the light most favorable to plaintiff and accept all well-pled factual allegations as true. League of
United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007). A plaintiff can support
a claim “by showing any set of facts consistent with the allegations in the complaint.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 563 (2007). This standard requires more than bare assertions of
legal conclusions. Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 361 (6th Cir. 2001). “[A]
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
Any claim for relief must contain “a short and plain statement of the claim showing that the pleader
is entitled to relief.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Fed. R. Civ. P. 8(a)(2)).
“Specific facts are not necessary; the statement need only ‘give the defendant fair notice of what
the . . . .claim is and the grounds upon which it rests.” Id. (citing Twombly, 550 U.S. at 555).
Nonetheless, a complaint must contain sufficient facts “state a claim to relief that is
plausible on its face’” to survive a motion to dismiss. Twombly, 550 U.S. at 570. “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that
defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 US. 662, 678 (2009) (citing Twombly, 550
U.S. at 556). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). A plaintiff with no
facts and “armed with nothing more than conclusions” cannot “unlock the doors of discovery.” Id.
at 678-79.
Pleadings and documents filed by pro se litigants are to be “liberally construed,” and a “pro
se complaint, however inartfully pleaded, must be held to a less stringent standard than formal
pleadings drafted by lawyers.” Erickson, 551 U.S. at 94 (2007) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)). However, “the lenient treatment generally accorded to pro se litigants has
limits.” Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996) (citing Jourdan v. Jabe, 951 F.2d
108, 110 (6th Cir. 1991)). The basic pleading essentials are not abrogated in pro se cases. Wells
v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). A pro se complaint must still “contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Barnett v.
Luttrell, 414 Fed. Appx. 784, 786 (6th Cir. 2011) (quoting Ashcroft, 556 U.S. at 678) (internal
quotations and emphasis omitted). District Courts “have no obligation to act as counsel or
paralegal” to pro se litigants. Pliler v. Ford, 542 U.S. 225, 231 (2004). District Courts are also
not “required to create” a pro se litigant’s claim for him. Payne v. Secretary of Treasury, 73 Fed.
Appx. 836, 837 (6th Cir. 2003).
b. ADA Exhaustion-of-Remedies Requirement
Before a claimant may pursue a lawsuit under the ADA in federal court, she must file a
charge of discrimination with the EEOC or the appropriate state or local agency. 42 U.S.C. §
12117(a) (citing 42 U.S.C. § 2000e-5); see also Fort Bend Cty., Texas v. Lois M. Davis, 139 S.Ct.
1843, 1850-52 (2019) (holding that the filing of an EEOC charge is a mandatory prerequisite to a
federal lawsuit). If the dispute giving rise to the EEOC charge is not administratively resolved and
results in a subsequent lawsuit, the case may only be filed against either (1) the named respondent
of the underlying EEOC charge or (2) a “unnamed party in the EEOC charge [that] has a ‘clear
identity of interest’ with the party actually sued.” See Szoke v. United Parcel Serv. of Am., Inc.,
398 F. App’x 145, 153-54 (6th Cir. 2010) (citing Knafel v. Pepsi-Cola Bottlers of Akron, Inc., 899
F.2d 1473, 1480-81 (6th Cir. 1990)). The Sixth Circuit considers entities to have a clear identity
of interest only when the named and unnamed party are “virtual alter egos.” Alexander v. Local
496, Laborers’ Int’l Union, 177 F.3d 394, 411-412 (6th Cir. 1999) (citing Knafel, 899 F.2d at
1481)). “Merely showing that they are parent and subsidiary is not sufficient.” Knafel, 899 F.2d
at 1481 (concluding that parent and subsidiary companies are “two distinct entities with different
business operations”).
III. Proposed Analysis & Conclusions of Law
Here, Plaintiff brought her EEOC Charge solely against United Airlines and subsequently
amended her Complaint to only name United Ground Express as a defendant. There is no dispute
that these are distinct entities; thus, Plaintiff may only pursue her claims if United Airlines and
United Ground Express may be said to be “virtual alter egos” of one another. The Sixth Circuit
has explicitly held, however, that parent and subsidiary corporations are not alter egos of one
another.
Even so, Plaintiff argues that she should be permitted discovery regarding whether a clear
identity of interest could be shown by virtue of corporate parentage1 or other joint involvement in
the employment situation. Plaintiff cites Gambrell v. General Motors LLC, No. 21-11846, 2022
WL 274108 (E.D. Mich. Jan. 27, 2022) as support for her proposition that she should be permitted
to pursue discovery on the issue of whether United Ground Express has a clear identity of interest
with United Airlines. However, in Gambrell, the claimant’s EEOC charge alleged that he was
jointly employed by three entities, who he did not name in his EEOC charge but referred to as “the
defendants” and the “joint employers.” The claimant’s EEOC charge also referenced information
throughout that demonstrated the relationship between the unnamed joint employers.
1 Plaintiff’s Response refers to “corporate percentage”; however, as it is a verbatim quote from the Gambrell case, it
appears that she intends to refer to “corporate parentage.” See Gambrell, 2022 WL 274108 at *7.
Here, neither the EEOC Charge nor Plaintiff’s Amended Complaint allege any such joint-
employment relationship. To the contrary, Plaintiff’s Motion to Amend sought to name United
Ground Express as the proper defendant because she claimed that it was “responsible for the
actions that have led to this legal matter.” Plaintiff further stated that United Airlines was named
“erroneously” and is “not the correct entity to be named in this lawsuit.”
Accordingly, as Plaintiff’s EEOC Charge neither named United Ground Express or a party
with a clear identity of interest with it as a respondent, it is RECOMMENDED that Plaintiff failed
to exhaust its administrative remedies against United Ground Express. Because exhaustion of
remedies is a condition precedent to a federal lawsuit under the ADA, it is RECOMMENDED that
United Ground Express’s Motion to Dismiss pursuant to Rule 12(b)(6) be GRANTED.
IV. Conclusion
For the reasons set forth herein, it is RECOMMENDED that United Ground Express’s
Motion to Dismiss (D.E. #35) be GRANTED.
SIGNED this 20th day of November, 2024.
s/ Charmiane G. Claxton
CHARMIANE G. CLAXTON
UNITED STATES MAGISTRATE JUDGE
ANY OBJECTIONS OR EXCEPTIONS TO THIS REPORT MUST BE FILED WITHIN
FOURTEEN (14) DAYS AFTER BEING SERVED WITH A COPY OF THE REPORT. 28
U.S.C. § 636(b)(1)(C). FAILURE TO FILE SAID OBJECTIONS OR EXCEPTIONS
WITHIN FOURTEEN (14) DAYS MAY CONSTITUTE A WAIVER AND/OR
FORFEITURE OF THE OPPORTUNITY TO RAISE OBJECTIONS, EXCEPTIONS,
AND ANY FURTHER APPEAL.