Abdalla v. Tennessee Department of Corrections, No. 2:2020cv02041 - Document 17 (W.D. Tenn. 2021)

Court Description: ORDER granting 13 Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim. Signed by Judge Samuel H. Mays, Jr on 1/4/2021. (Entered: 1/4/2021) (Mays, Samuel)

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Abdalla v. Tennessee Department of Corrections Doc. 17 Case 2:20-cv-02041-SHM-cgc Document 17 Filed 01/04/21 Page 1 of 23 PageID 79 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ) ) ) ) ) ) ) ) ) ) ) ) KHALED ABDALLA, Plaintiff, v. TENNESSEE DEPARTMENT OF CORRECTIONS, Defendant. No. 2:20-cv-02041 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS COMPLAINT Before the Court is Defendant Tennessee Department of Corrections’ (“Defendant”) April 29, 2020 Motion to Dismiss Complaint (the “Motion”). (D.E. No. 13.) Plaintiff Khaled Abdalla (“Plaintiff”) responded on June 2, 2020. Defendant replied on June 17, 2020. (D.E. No. 15.) (D.E. No. 16.) For the following reasons, Defendant’s Motion is GRANTED. I. Background For purposes of the Motion to Dismiss, the facts are taken from the Complaint. Plaintiff brings the following claims: employment discrimination under the Americans with Disabilities Act (the “ADA”), 42 U.S.C. §§ 12111, et seq., employment discrimination Dockets.Justia.com Case 2:20-cv-02041-SHM-cgc Document 17 Filed 01/04/21 Page 2 of 23 PageID 80 under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621, et seq., employment discrimination and retaliatory discharge under the Tennessee Human Rights Act, (“THRA”), Tenn. Code Ann. §§ 4-21-101, et seq., employment discrimination and retaliatory discharge under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 12111, et seq., retaliatory discharge based on Tennessee Workers’ Compensation Law, Tenn. Code Ann. §§ 50-6-101, et seq., violation of the laws and public policy of the State of Tennessee, and violations of common law. (D.E. No. 1, ¶ 37-41.) Defendant employed Plaintiff until Plaintiff was terminated on or about June 15, 2019. (Id. at ¶ 10.) Plaintiff filed an internal complaint for discrimination in September 2016. at ¶¶ 11-12.) (Id. In September 2018, Plaintiff broke his back while working for Defendant. (Id. at ¶ 13.) Plaintiff to become disabled. That injury caused (Id. at ¶14.) He returned to work on January 25, 2019, under restrictions imposed by his doctor. (Id. at ¶ 14-15.) Plaintiff filed for Workers’ Compensation and settled his case on May 7, 2019. (Id. at ¶ 15.) Plaintiff alleges that he was terminated because of his race, national origin, religion, disability, and in retaliation for his "protected reporting.” (Id. at ¶ 16.) Plaintiff alleges that he is a Muslim, of Egyptian national origin, and of the Arab race. (Id. at ¶¶ 24-27.) 2 Plaintiff alleges that Case 2:20-cv-02041-SHM-cgc Document 17 Filed 01/04/21 Page 3 of 23 PageID 81 Defendant was aware of his disability, religion, national origin, and race. (See id. at ¶¶ 19-28.) Plaintiff also alleges that Defendant discriminated against him because of his age. ¶ 32.) Plaintiff is more than 40 years old. (Id. at (Id. at ¶ 33.) Plaintiff was replaced by an individual who was younger than 40 and who was not Muslim, Egyptian, Arab, or disabled. (Id. at ¶ 34.) Plaintiff alleges that Defendant’s stated motivation for terminating him is pretextual and that Defendant’s true motivations were Plaintiff’s disability, religion, national origin, race, age, and retaliation for his injury restriction, Workers’ belief. Compensation filing, accommodations, and religious (Id. at ¶ 35.) Plaintiff submitted a Charge of Discrimination to the Equal Employment Opportunity Commission (the “EEOC”) and received a Right to Sue letter from the EEOC, (D.E. No. 1, ¶ 4.), dated November 12, 2019. (D.E. No. 1-3.) Plaintiff filed his Complaint on January 20, 2020. (D.E. No. 1.) II. Jurisdiction and Administrative Exhaustion A. Sovereign Immunity This Court does not have subject-matter jurisdiction over Plaintiff’s ADA, ADEA, THRA, retaliatory discharge, or common law claims because Defendant is protected by state sovereign immunity. Plaintiff concedes that Defendant has immunity from 3 Case 2:20-cv-02041-SHM-cgc Document 17 Filed 01/04/21 Page 4 of 23 claims brought under the THRA, the ADA, and the ADEA. Plaintiff argues retaliatory that discharge the Court claim has based jurisdiction on PageID 82 However, over Tennessee his Workers’ Compensation Law. The Eleventh Amendment to the United States Constitution provides that “the Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Federal courts are deprived “of subject-matter jurisdiction when a citizen sues his own State unless the State waives its immunity or Congress abrogates that sovereign immunity.” Russell v. Lundergan-Grimes, 784 F.3d 1037, 1046 (6th Cir. 2015) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-100 (1984). The Eleventh Amendment applies to state agencies and departments. 2017). Boler v. Earley, 865 F.3d 391, 409-410 (6th Cir. It presents a jurisdictional question. F.3d at 1046. subject matter Russell, 784 The plaintiff “bears the burden of establishing jurisdiction of the court over his claim.” Whittle v. United States, 7 F.3d 1259, 1262 (6th Cir. 1993) (citing Welsh v. Gibbs, 631 F.2d 436, 438 (6th Cir. 1980)). A party may assert lack of subject-matter jurisdiction as a defense by motion under Rule 12(b)(1). Fed.R.Civ.P. 12(b)(1). 4 Case 2:20-cv-02041-SHM-cgc Document 17 Filed 01/04/21 Page 5 of 23 Tennessee can waive sovereign immunity. PageID 83 Article I, § 17 of the Tennessee Constitution provides that “suits may be brought against the State in such manner and in such courts as the Legislature may by law direct.” “[N]o suit against the state may be sustained absent express authorization from the Tennessee Legislature.” Woosley v. Hunt, 932 F.2d 555, 564 (6th Cir. 1991), (citing Greenhill v. Carpenter, 718 S.W.2d 268, 270 (Tenn. Ct. App. 1986). 1. THRA The THRA provides a limited waiver of state sovereign immunity. Its definition of “employer” includes the state. Tenn. Code Ann. § 4-21-102(5). The THRA provides that a person may file a complaint alleging discrimination with the Tennessee Human Rights Commission. Tenn. Code Ann. § 4-21-302. Tennessee courts may enforce and review orders of the Commission. Code Ann. § 4-21-307. Tenn. If the Commission fails to issue an order or schedule a hearing after 180 days, the aggrieved party may petition the Chancery or Circuit Court for an order directing the Commission to act. Tenn. Code Ann. § 4-21-307. The THRA also provides that a violation of the THRA supports a civil cause of action in Chancery or Circuit court. 311. Tenn. Code Ann. § 4-21- Nothing in the THRA waives the state’s sovereign immunity in federal court. See Tenn. Code Ann. §§ 4-21-101, et seq; see also Miller v. Tennessee Department of Human Services, No. :175 Case 2:20-cv-02041-SHM-cgc Document 17 Filed 01/04/21 Page 6 of 23 PageID 84 cv-526; 2019 WL 7283128, at *3 (E.D. Tenn. Jan. 16, 2019) (“Federal courts in Tennessee have consistently held that suits against state entities brought by individuals under the THRA in federal court are disallowed by the Eleventh Amendment.”). Tennessee is immune from suit in federal court under the THRA. Plaintiff concedes that Defendant is immune from Plaintiff’s claims under the THRA. (D.E. No. 15, 7-8.) Plaintiff’s THRA claims are DISMISSED for lack of subject-matter jurisdiction. 2. Tennessee Law and Public Policy and Common Law: Workers’ Compensation and Section 9-8-307(h) Plaintiff argues that the Court has jurisdiction over his common-law retaliatory discharge Workers’ Compensation Law. claim based on Tennessee That argument is not well taken. Plaintiff has pled that Defendant violated Tennessee Workers’ Compensation Law, Tenn. Code Ann. §§ 50-6-101, et seq, by discharging Plaintiff in retaliation for his filing a Workers’ Compensation claim. A plaintiff may bring a claim for retaliatory discharge based on Tennessee Workers’ Compensation Law. Clanton v. Cain-Sloan Co., 677 S.W.2d 441 (Tenn. 1984). That claim is a common-law claim. Williams v. City of Burns, 465 S.W.3d 96, 108-109 (Tenn. 2015) (opining that the retaliatory discharge claim recognized by Clanton was an example of a “common-law claim for retaliatory discharge where an employee is discharged in contravention of public policy”). 6 Tennessee has Case 2:20-cv-02041-SHM-cgc Document 17 Filed 01/04/21 Page 7 of 23 PageID 85 not waived its sovereign immunity for common-law retaliatory discharge claims based on Workers’ Compensation. Id. at 110 (“the common-law retaliatory discharge claim is available only to private-sector employees”). In his response, Plaintiff argues that he has a claim under Tenn. Code Ann. § 9-8-307(h), which governs the Tennessee Claims Commission. Plaintiff did not plead a specific cause of action under § 9-8-307(h) in his Complaint. Section 9-8-307(h) provides that, “State officers and employees are absolutely immune from liability for acts or omissions within the scope of the officer's or employee's office or employment, except for willful, malicious, or criminal acts or omissions or for acts or omissions done for personal gain.” “[S]tate employee” and “state officer” are defined by Tenn. Code Ann. §8-42-101(3), which provides various definitions definitions speak organizations. of a to individuals, Section state employee. 9-8-307(h) All not “does of those departments not extinguish or a claimant's right of action but merely immunizes state employees from individual monetary liability.” Shelburne v. Frontier Health, 126 S.W.3d 838, 845 (Tenn. 2003). Even if Plaintiff had properly pled a claim under § 9-8307(h), that section would provide no relief. Section 9-8-307(h) does not create or extinguish a cause of action. employees’ sovereign for immunity 7 “willful, It waives state malicious, or Case 2:20-cv-02041-SHM-cgc Document 17 Filed 01/04/21 Page 8 of 23 criminal acts or omissions.” Tenn. Code Ann. § 9-8-307(h). applies to individual employees. sovereign immunity. PageID 86 It It does not waive Defendant’s Plaintiff sues Defendant, a department of Tennessee government. (D.E. No. 15, ¶¶ 1-2.) names no individual defendants. (See id.) The Complaint The Court does not have subject-matter jurisdiction over Plaintiff’s claim under § 9-307(h). Plaintiff makes no argument that Tennessee has waived Defendant’s sovereign immunity from Plaintiff’s common-law and public policy claims other than Plaintiff’s common-law claim based on Tennessee Workers’ Compensation Law. the burden of jurisdiction. showing that the Court has Plaintiff bears subject-matter Whittle, 7 F.3d at 1262 (citing Welsh, 631 F.2d at 438). Plaintiff’s claims that Defendant violated Tennessee law and public policy and common law, and specifically Plaintiff’s claims based on Tennessee Workers’ Compensation Law and Tenn. Code Ann. § 9-8-307(h), are DISMISSED for lack of subject-matter jurisdiction. 3. ADA and ADEA Plaintiff’s ADA and ADEA claims against Defendant are barred by sovereign immunity. Congress did not abrogate the states’ Eleventh Amendment sovereign immunity when it enacted the ADA or the ADEA. Kimel v. Florida Bd. Of Regents, 528 U.S. 62, 92 8 Case 2:20-cv-02041-SHM-cgc Document 17 Filed 01/04/21 Page 9 of 23 PageID 87 (2000) (“Because the ADEA does not validly abrogate the States’ sovereign immunity, dismissed.”); Bd. however, Of Trustees the present suits of University of must be Alabama v. Garrett, 531 U.S. 356, 374 (2001) (holding that Congress could not use the Fourteenth Amendment to abrogate state sovereign immunity under the ADA because there was no pattern of discrimination and the remedy was not congruent and proportional to the targeted violation). Plaintiff concedes that Defendant Plaintiff’s ADA and ADEA claims. is immune (D.E. No. 15, 7-8.) from Plaintiff has brought claims of ADA and ADEA violations against a state department in federal court. ADEA claims (D.E. No. 1.) DISMISSED are for lack Plaintiff’s ADA and of subject-matter jurisdiction. B. Title VII The Court has subject-matter jurisdiction over Plaintiff’s Title VII claims. Under 28 U.S.C. § 1331, district courts have original jurisdiction “of all civil actions arising under the Constitution, laws, or treaties of the United States.” Plaintiff asserts a right to relief against Defendant under Title VII for employment discrimination and retaliatory discharge. (D.E. No. 1, ¶¶ 38-39.) When Congress enacted Title VII, it validly abrogated state sovereign immunity pursuant to 9 the Fourteenth Amendment. Case 2:20-cv-02041-SHM-cgc Document 17 Filed 01/04/21 Page 10 of 23 PageID 88 Fitzpatrick v. Bitzer, 427 U.S. 445, 456-457 (1976) (holding Congress could provide for private suits against states under the Fourteenth Amendment); Cox v. Shelby State Community College, 38 Fed. App’x. 500, 505 (6th Cir. 2002) (sovereign immunity for Title VII claims “has been abrogated by Congress”). Under Title VII, “[e]ach United States district court and each United States court of a place subject to the jurisdiction of the United States shall have subchapter.” jurisdiction of actions brought under this 42 U.S.C. § 2000e-5 (3). Before bringing a Title VII suit, an employee must exhaust his administrative remedies. 784, 786 (6th Cir. 2008). Lockett v. Potter, 259 F. App'x The employee may sue within 90 days of receiving notice of the EEOC’s final decision. notice is known as a “right to sue” letter. Id. That See Winston v. Cargill, Inc., No. 08-2059, 2009 WL 539943 at *4 (W.D. Tenn. March 4, 2009). Exhaustion of administrative mandatory, but not jurisdictional. remedies is Fort Bend Cty., Texas v. Davis, 139 S. Ct. 1843, 1852 (2019). Plaintiff alleges that Defendant violated Title VII. No. 1, ¶¶ 38-39.) (D.E. Plaintiff received an EEOC “right to sue” letter dated November 12, 2020. (D.E. No. 1-3.) his Complaint on January 20, 2020. (D.E. No. 1.) exhausted his administrative remedies. 10 Plaintiff filed Plaintiff has Case 2:20-cv-02041-SHM-cgc Document 17 Filed 01/04/21 Page 11 of 23 PageID 89 III. Standard of Review Rule 12(b)(6) provides for the dismissal of a complaint that “fail[s] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “To survive a motion to dismiss, the plaintiff must allege facts that, if accepted as true, are sufficient to state a claim to relief that is plausible on its face.” Cooper Butt ex rel Q.T.R. v. Barr, 954 F.3d 901, 904 (6th Cir. 2020) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). allegations must be more than speculative. The factual Twombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a right to relief above the speculative level”). The Court considers the plaintiff’s most plaintiff. complaint in the light favorable to the Ryan v. Blackwell, 979 F.3d 519, 525 (6th Cir. 2020) (quoting Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 512 (6th Cir. 2001)). The court accepts as true all factual allegations, but does not accept legal conclusions or unwarranted factual inferences as true. Cir. 2018). Theile v. Michigan, 891 F.3d 240, 243 (6th “The plaintiff must present a facially plausible complaint asserting more than bare legal conclusions.” Id. (citing Twombly, 550 U.S. at 556; Ashcroft v. Iqbal, 556 U.S. 662, 677-678 (2009). To survive the defendant’s motion to dismiss, the plaintiff in a Title VII case is not required to establish the prima facie 11 Case 2:20-cv-02041-SHM-cgc Document 17 Filed 01/04/21 Page 12 of 23 case of discrimination. 506, 510 (2002). PageID 90 Swierkiewicz v. Sorema N.A., 534 U.S. Instead, the “complaint must include only ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’” 8(a)(2)). Id. at 512, (quoting Fed.R.Civ.P. The Supreme Court’s decisions in Iqbal and Twombly do not alter the short and plain statement rule. Inc., 684 F.3d 605, 609 (6th Cir. 2012). Keys v. Humana, The “plausibility” standard applies to Title VII claims, and “[i]f a reasonable court can draw the necessary inference from the factual material stated in the complaint, the plausibility standard has been satisfied.” IV. Id. at 610. Analysis A. Exhibits Attached to Plaintiff’s Response Rule 12(d) provides that, “[i]f on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d). The Sixth Circuit takes “a liberal view of what matters fall within the pleadings for purposes of Rule 12(b)(6).” v. Cline, 7 F. App'x 336, 344 (6th Cir. 2001). Armengau “When a court is presented with a Rule 12(b)(6) motion, it may consider the Complaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to defendant's motion to dismiss so long as they are referred to 12 Case 2:20-cv-02041-SHM-cgc Document 17 Filed 01/04/21 Page 13 of 23 in the Complaint therein.” and are central to the claims PageID 91 contained Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008). The Court may consider those documents without motion converting judgement. the into a motion for summary Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 681 (6th Cir. 2011). Plaintiff has attached three exhibits to his response. Exhibit A is the decision of the Board of Appeals of the State of Tennessee reversing the decision to terminate Plaintiff. (D.E. No. 15-1, 1-6.) The Board of Appeals hears appeals by state employees in the preferred service system who challenge their dismissal, demotion, or suspension. 30-318. The Board’s decision Tenn. Code Ann. § 8- contains no discussion of discrimination. (See id.) It concludes that Plaintiff was fired because he put his hand on the shoulder of another employee, and the firing was reversed because doing so was not a significant violation of Defendant’s policies on workplace violence. (Id. at 2-5.) Plaintiff does not refer to the decision in his Complaint. (See D.E. No. 1.) The Court will not consider it in deciding the Motion. Exhibit B consists of three letters Plaintiff wrote and an email he complaint. received (D.E. about 15-2, his 1-4.) 13 2016 The internal three discrimination letters are not Case 2:20-cv-02041-SHM-cgc Document 17 Filed 01/04/21 Page 14 of 23 PageID 92 mentioned in the Complaint or central to Plaintiff’s claims. In the first letter, Plaintiff said he felt disrespected because another employee used a non-racial epithet in response to a question Plaintiff asked. (Id. at 1.) In the second letter, Plaintiff said he believed there was corruption in the Tennessee Department of Corrections and that one person he tried to talk to about it responded rudely. (Id. at 2.) The third letter describes an issue Plaintiff had with the assignment of crew members to a project. employee was trying trouble. (Id.) Complaint and (Id. at 3.) to find Plaintiff said a fellow something to get Plaintiff in None of the letters is referenced in the none is central to the claim of Title VII discrimination based on race, national origin, or religion. The Court will not consider them. The email included in Exhibit B is dated August 29, 2016, and says a co-worker has discriminated against Plaintiff based on religion and culture. refers to this incident. (Id. at 4.) Plaintiff’s Complaint (D.E. No. 1, ¶¶ 11-12.) Discrimination based on race, religion, and national origin forms the basis of Plaintiff’s Complaint. The email in Exhibit B is properly before the Court. Exhibit C consists of two letters from Plaintiff’s fellow employees praising Plaintiff and his contributions at work, and 14 Case 2:20-cv-02041-SHM-cgc Document 17 Filed 01/04/21 Page 15 of 23 PageID 93 a 2016 letter from Defendant to Plaintiff awarding him “the Commissioner’s Coin of Excellence in recognition of [his] outstanding level of service and consistently demonstrating the department’s core values.” information in Exhibit C (D.E. No. 15-3, 1-3.) is discussed in the None of the Complaint or relevant to the central claim of Title VII discrimination based on of race, religion, or national origin. The Court will consider only the email attached as Exhibit B to Plaintiff’s response. B. Rule 12(b)(6) Failure to State a Claim Title VII requires equal opportunity in employment. U.S.C. §§ 2000, et seq. An employer is prohibited 42 from “discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. §2000-e2. The plaintiff has the initial burden of proving a prima facie case of discrimination. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252253(1981). The plaintiff is not required to plead the prima facie case of discrimination in his complaint to survive a motion to dismiss. under Swierkiewicz, 534 U.S. at 510. Title VII require the plaintiff Retaliation claims to show that the plaintiff’s protected activity was the but-for cause of the 15 Case 2:20-cv-02041-SHM-cgc Document 17 Filed 01/04/21 Page 16 of 23 alleged adverse action by the employer. Ctr. v. Nassar, 570 U.S. 338, 362 (2013). PageID 94 Univ. of Texas Sw. Med. A plaintiff must plead a plausible short and plain statement of facts to survive a motion to dismiss. See Keys, 684 F.3d at 609-610. A complaint “must allege sufficient ‘factual content’ from which a court, informed by its ‘judicial experience and common sense,’ could ‘draw the reasonable inference’” that the employer discriminated against the plaintiff with respect to plaintiff’s compensation, terms, conditions, or privileges of employment, because of the plaintiff’s race, religion, or national origin. Id., at 610, (quoting Iqbal, 556 U.S. at 678). The Court need not credit “threadbare recitals” of an element necessary to state the claim. See White v. Coventry Health & Life Ins. Co., 680 F. App'x 410, 415 (6th Cir. 2017). “This Court is not required to accept inferences drawn by Plaintiff if those inferences are unsupported by the facts alleged in the complaint.” Sam Han v. Univ. of Dayton, 541 F. App'x 622, 627 (6th Cir. 2013). The plaintiff must allege specific facts that can lead to a reasonable inference that discrimination occurred. The Sixth Circuit has held that a plaintiff’s allegation that she suffered harassment because she was “constantly berated” and a supervisor “degraded and humiliated her” were “naked assertions” that added “noting to the complaint’s sufficiency.” White, 680 F. App'x at 416. Conclusory allegations of discrimination are not sufficient 16 Case 2:20-cv-02041-SHM-cgc Document 17 Filed 01/04/21 Page 17 of 23 to survive a motion to dismiss. PageID 95 Han, 541 F. App'x at 626-627. In Han, the plaintiff alleged that, because of his race and gender, he was given a negative evaluation by the promotion committee and was later fired. Id. The court held that, because the plaintiff alleged no facts beyond a conclusory assertion of discrimination, he discrimination. Id. at 627. In Keys, the failed to plaintiff state stated a a claim claim of Title VII for Title VII discrimination because she alleged specific instances where she was treated differently and that other people who shared her ethnicity were suffering from adverse employment actions despite their satisfactory performance. Keys, 684 F.3d at 610. The Sixth Circuit concluded that the plaintiff’s facts “easily state a plausible claim.” Id. Plaintiff here alleges that he suffered discrimination when he was terminated “in retaliation for his religion, race, national origin, and age,” but he does not allege any specific instance that would show the action taken against him was based on his race, religion, or national origin. In his Complaint, Plaintiff asserts generally that Defendant discriminated against him because of his race, national origin, and religion, and that Defendant’s employment “true was to motivation” for terminating discriminate against him Plaintiff’s based on those protected categories. (D.E. No. 1, ¶¶ 16-35.) Plaintiff alleges 17 Case 2:20-cv-02041-SHM-cgc Document 17 Filed 01/04/21 Page 18 of 23 PageID 96 that Defendant was aware of his race, national origin, and religion. (Id. at ¶¶ 22, 25, 28.) Plaintiff alleges that he was replaced by someone who was not Muslim, Egyptian, or Arab. (Id. at ¶ 33.) Plaintiff’s allegations are conclusory assertions that do not state a claim for discrimination discrimination or retaliation. under Title VII for Plaintiff alleges fewer specific facts than the plaintiffs in Han or White, whose cases were dismissed for failure to state a claim. In Han, the plaintiff alleged that he was given a poor evaluation and fired because of his race and gender, but did not provide any specific examples of discrimination. Han, 541 F. App’x at 626-627. In White, the plaintiff’s allegations that she was harassed by a supervisor “berating” and “humiliating” her were not sufficiently specific to state a claim. White, 680 F. App'x at 416. Plaintiff pleads only the naked assertions that he was discriminated against because of race, religion, and national origin. He cites no specific facts supporting his claims of discrimination or allowing the Court to reasonably infer that he was discriminated against because of his race, religion, or national origin. The email from 2016 that Plaintiff has attached to his response offers no details beyond what Plaintiff has pled in the Complaint. 18 Case 2:20-cv-02041-SHM-cgc Document 17 Filed 01/04/21 Page 19 of 23 PageID 97 Plaintiff alleges that Defendant violated Title VII by terminating “in Plaintiff retaliation Compensation filing and settlement. . .” of his Workers’ Title VII prohibits an employer from discriminating against an individual on the basis “of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The elements of retaliation under Title VII require the plaintiff to demonstrate that: “(1) he engaged in activity protected by Title VII; (2) his exercise of such protected activity was known by the defendant; (3) thereafter, the defendant took an action that was ‘materially adverse’ to the plaintiff; and (4) a causal connection existed between action.” the protected activity and the materially adverse Laster v. City of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014) (quoting Jones v. Johanns, 264 F. App’x 463, 466 (6th Cir. 2007)). Filing a Workers’ Compensation claim is not a protected activity under Title VII. Primm v. Dep’t of Human Servs., No. 16-6837, 2017 WL 10646487 (6th Cir. Aug. 17, 2017) (citing Davis v. Team Elec. Co., 520 F.3d 1080, 1093 fn 8 (9th Cir. 2008) (“Title VII does not encompass discrimination on the basis of disability”); Jimenez v. Potter, 211 F. App’x 289 (5th Cir. 2006) (“Only those activities listed under Title VII are protected from retaliation, and filing for worker's compensation is not one”)). Plaintiff fails to state 19 a claim for retaliatory Case 2:20-cv-02041-SHM-cgc Document 17 Filed 01/04/21 Page 20 of 23 discharge under Title VII based on his filing a PageID 98 Workers’ Compensation claim because filing a Workers’ Compensation claim is not a protected activity under Title VII. Plaintiff also alleges that Defendant violated Title VII by terminating him in retaliation for filing an internal complaint for discrimination. Plaintiff fails to state a claim for retaliatory discharge because he has not demonstrated any causal connection between the protected activity and his termination. Plaintiff filed his internal complaint for discrimination in September 2016. (D.E. No. 1, ¶ 12.) Plaintiff on June 15, 2019. Defendant terminated (D.E. No. 1, ¶ 10.) Plaintiff alleges no other facts to support his allegation that Defendant terminated him in retaliation for filing his discrimination complaint. Courts require close temporal proximity when proximity is the only evidence of the causal connection necessary to establish a plausible claim of retaliatory discharge under Title VII. Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273- 274 (2001) (holding plaintiff’s termination by defendant 20 months after protected action “suggest[s], by itself, no causality at all.”); see also Evans v. Prospect Airport Servs., Inc., 286 F. App’x 889, 895-896 (6th Cir. 2008) (holding that there was not a reasonable inference of retaliation when almost a year had passed between the plaintiff’s final EEOC filing and his termination); Terry v. Memphis Hous. Auth., 422 F. Supp. 2d 20 Case 2:20-cv-02041-SHM-cgc Document 17 Filed 01/04/21 Page 21 of 23 PageID 99 917, 923-924 (W.D. Tenn. 2006) (dismissing claim of retaliatory discharge because one-and-a-half years had passed between the alleged harassment and the alleged retaliatory act); NavarroTeran v. Embraer Aircraft Maint. Servs., Inc., 184 F. Supp. 3d 612, 622 (M.D. Tenn. 2016) (dismissing claim for retaliatory discharge because the protected activity and the alleged retaliation took place “a full year apart”). In this case, the 33 months separating Plaintiff’s internal complaint from the alleged retaliation does not support the reasonable inference of a causal connection between his protected action and his termination. Plaintiff’s claims under Title VII are DISMISSED. C. Amending the Complaint In his response, Plaintiff conditionally asks to amend his Complaint. Plaintiff’s request is not well taken. Under Rule 15(a)(1)(B), after a motion to dismiss has been filed, a complaint may be amended only by leave of court. Fed.R.Civ.P. 15(a)(1)(B). Courts should “freely give leave when justice requires.” Fed.R.Civ.P. 15(a)(2). The request to amend a complaint in response to a motion to dismiss, without stating the grounds on which it is sought, is not a motion for leave to amend under Rule 15(a) because the request does not comply with the Rule. PR Diamonds, Inc. v. Chandler, 364 F.3d 671, 699 (6th Cir. 2004) (quotation and citation omitted), abrogated on other 21 Case 2:20-cv-02041-SHM-cgc Document 17 Filed 01/04/21 Page 22 of 23 PageID 100 grounds by Doshi v. Gen. Cable Corp., 823 F.3d 1032 (6th Cir. 2016). A court must have the substance of the proposed amendment before it to determine whether “justice requires” an amendment. Roskam Baking Co. v. Lanham Mach. Co., 288 F.3d 895 (6th Cir. 2002). The Sixth Circuit has held that a district court did not abuse its discretion when it denied the plaintiff’s attempt to amend the complaint at a hearing when the plaintiff failed to inform the district court of the facts the plaintiff would use to support the claim. Beydoun v. Sessions, 871 F.3d 459 (6th Cir. 2017). Plaintiff’s conditional request to amend the Complaint in his response is not a proper motion to amend under Rule 15(a). Plaintiff seeks leave to amend “should the Honorable Court find that the complaint does lack sufficient pleading.” 15, 11.) (D.E. No. Plaintiff also asks that the Court allow Plaintiff to conduct discovery to assist Plaintiff in responding to the Motion. (Id.) A conditional request is not an appropriate motion to amend. Plaintiff has not submitted any amendments he seeks to make or informed the Court of the facts on which he seeks to rely. (See id.) The Court does not have the substance of any proposed amendments. Discovery is not appropriate in deciding a motion to dismiss, which is based on the pleadings. 22 Case 2:20-cv-02041-SHM-cgc Document 17 Filed 01/04/21 Page 23 of 23 PageID 101 The conditional request to amend the Complaint in Plaintiff’s response does not comply with Rule 15(a). V. It is DENIED. Conclusion Defendant’s Motion is GRANTED. Plaintiff’s ADA, ADEA, THRA, Workers’ Compensation, Tennessee law and public policy, and common law claims are DISMISSED under Rule 12(b)(1). Plaintiff’s Title VII discrimination and retaliatory discharge claims are DISMISSED under Rule 12(b)(6). The conditional request to amend the Complaint in Plaintiff’s response is DENIED. All of Plaintiff’s claims against Defendant are DISMISSED WITH PREJUDICE. So ORDERED this 4th day of January, 2021. /s/ Samuel H. Mays, Jr. SAMUEL H. MAYS, JR. UNITED STATES DISTRICT JUDGE 23

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