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French v. Oxygen Plus Corp.

United States District Court, M.D. Tennessee, Nashville Division

February 26, 2015



JULIET GRIFFIN, Magistrate Judge.

TO: Honorable William J. Haynes, Jr. Senior District Judge.

By Order entered October 28, 2014 (Docket Entry No. 38), the Court referred this action to the Magistrate Judge to address any motions or other pretrial matters. Presently pending before the Court are the Defendants' Motion for Summary Judgment (Docket No. 23) and Motion to Dismiss (Docket Entry No. 24). Set out below is the recommendation for disposition of the motions.


This lawsuit arises out of the Plaintiff's termination from employment with Defendant Oxygen Plus Corp. in November 2012. The Plaintiff contends her termination violated both federal and state law and seeks damages.

Oxygen Plus. Corp. ("OPC") is a health care business located in Manchester, Tennessee. T. Cissy White ("White") is the President, CEO, and sole owner of OPC.[1] The Plaintiff, Arlene French ("French"), began working for OPC as a respiratory therapist in April 2008, and worked as an hourly employee. During early 2012, the United States Department of Labor ("DOL") investigated a complaint against OPC for failing to pay overtime to its workers. The Plaintiff did not testify or provide information as part of the DOL investigation, but she and other workers subsequently received payments from OPC for previously unpaid overtime.

The Plaintiff had a co-worker named Orneka Washington ("Washington") with whom she was also a close friend. In the aftermath of the DOL investigation, Washington believed that OPC was targeting her for mistreatment and reducing her work hours. Washington ultimately filed a lawsuit in this District against OPC and White on October 22, 2012, alleging that the Defendants retaliated against her for her participation in the DOL investigation in violation of the anti-retaliation provisions of the Fair Labor Standards Act, 29, U.S.C. § 215(a)(3).[2] Attached as exhibits to Washington's complaint ("the Washington Complaint") were copies of an e-mail dated August 27, 2012, from French to White, and a response e-mail later that day from White to French. In the two e-mails, French and White discussed work related issues concerning the sufficiency of staffing and the cleanliness of the OPC building and also discussed Washington being told to not come in on August 27, and White's displeasure with Washington's work attitude. See Docket Entry No. 1, at 14-15. The Plaintiff asserts that she provided Washington with copies of the e-mails.

The Plaintiff alleges that after the Defendants were served with the Washington Complaint, she was sent home early one day by OPC management employee Michelle Gowen ("Gowen") and told "Cissy does not pay you to sit around the office." She also alleges that her daily work logs were scrutinized more closely than had occurred before. The Plaintiff alleges that when she arrived for work on November 26, 2012, she was advised by Kristi Williams ("Williams"), her supervisor at OPC, that she was being terminated from employment because she had taken the company vehicle she drove for work duties to her home after work without authorization. The Plaintiff admits that she drove the vehicle in question home after the end of her workday on November 21, 2012, but denies that she did so without approval and asserts that she had requested and been given permission by Williams to keep the vehicle overnight. The Plaintiff asserts that it was not uncommon for her to keep the company vehicle overnight and that she had been granted permission to do so on several other prior occasions by both Williams and Gowen.

On June 14, 2013, the Plaintiff filed the instant lawsuit against OPC and White. She alleges a claim for unlawful discharge from employment in violation of the anti-retaliation provision of the Fair Labor Standards Act ("FLSA") which makes it unlawful to:

discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.

29 U.S.C. § 215(a)(3). The Plaintiff contends that the two e-mails she provided to Ms. Washington that were attached to the Washington Complaint "made it obvious" to the Defendants that the Plaintiff would be a witness for Washington in her FLSA lawsuit against the Defendants and, thus, she is covered by the "is about to testify in any such proceeding" language of Section 215(a)(3). See Complaint (Docket Entry No. 1), at ¶¶ 49-55. In addition to her FLSA claim, the Plaintiff brings a claim for retaliatory discharge in violation of Tennessee common law, contending that she was terminated because of her close relationship with Washington and her good faith support of Washington's FLSA claim, id. at ¶¶ 56-64, and a claim that Defendant White tortiously interfered with her employment with OPC in violation of Tennessee statutory and common law. Id. at ¶¶ 65-77.

The Defendants have answered the Complaint, see Docket Entry No. 15, and the parties have engaged in pretrial activity pursuant to a case management order. See Docket Entry No. 17. The jury trial scheduled for November 18, 2014, was continued pending resolution of the Defendants' dispositive motions. See Order entered September 25, 2014 (Docket Entry No. 37). The Defendants' dispositive motions are the only motions currently pending.


By their summary judgment motion, the Defendants move for dismissal on all three of the Plaintiff's claims. The Defendants argue that the mere fact that two e-mails between the Plaintiff and White were attached as exhibits to Washington's Complaint is not sufficient to bring the Plaintiff within the scope of the FLSA's anti-retaliation provision and, in fact, did not indicate to White that the Plaintiff could be a witness in Washington's lawsuit. Defendant White asserts that it did not occur to her that the Plaintiff could be a witness in Washington's lawsuit until she was served with the Plaintiff's lawsuit on August 8, 2013, which was nearly a year after the Plaintiff was terminated from employment with OPC. The Defendants argue that the Plaintiff's common law retaliatory discharge claim is based solely upon the purported FLSA violation and, thus, fails for the same reasons as the FLSA claim fails. With respect to the Plaintiff's third claim, Defendant White acknowledges that interference with at-will employment such as the Plaintiff's employment with OPC can give rise to an actionable claim, but contends that Tennessee law requires that the interference must arise because of the actions of a third party. Defendant White argues that she cannot be deemed a third party and be liable for a claim for tortious interference ...

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