United States District Court, W.D. Tennessee, Western Division
H. MAYS, JR. UNITED STATES DISTRICT JUDGE.
the Court are five motions. First, on September 8, 2016,
Defendant Shelby County School System (“SCSS”) filed a
motion to dismiss in part the Complaint filed by Plaintiff
Tammy Rushing (the “Partial Motion to Dismiss”).
(Mot. to Dismiss Pl.'s Title VII Claim and Mem. of Law in
Supp. of Def.'s Partial Mot. to Dismiss, ECF No. 9.) On
December 9, 2016, Rushing filed a response to the Partial
Motion to Dismiss (the “Response to Partial Motion to
Dismiss”). (Pl.'s Resp. to Def.'s Mot. to
Dismiss Pl.'s Title VII Claim, ECF No. 24.) SCSS has not
filed a reply in support of the Partial Motion to Dismiss,
and the time to do so has passed. L.R. 12.1(c).
on April 4, 2017, Rushing filed a motion seeking to reset or
extend all existing case deadlines (the “Deadline-Reset
Motion”). (Pl.'s Mot. to Reset/Extend All
Deadlines, Mem. in Supp., and Certificate of Consultation,
ECF No. 25.) SCSS filed a response to the Deadline-Reset
Motion (the “Deadline-Reset Response”) on April
17, 2017. (Def. Shelby Cty. Bd. of Educ.'s Resp. in
Opp'n to Pl.'s Mot to Reset/Extend All Deadlines, ECF
No. 31.) Rushing filed a reply in support of the
Deadline-Reset Motion (the “Deadline-Reset
Reply”) on May 1, 2017. (Pl.'s Reply to Def.'s
Resp. in Opp'n to Pl.'s Mot. to Reset/Extend All
Deadlines, ECF No. 39.)
on April 13, 2017, Rushing filed a motion requesting a
temporary restraining order (the “TRO Motion”).
(Pl.'s Mot. for TRO, Mem. in Supp., and Cert. of
Consultation, ECF No. 27.) The Court referred the TRO Motion
to Magistrate Judge Charmiane Claxton on April 14, 2017.
(Order of Reference, ECF No. 28 (“TRO Order of
Reference”).) SCSS filed a response to the TRO Motion
(the “TRO Response”) on April 18, 2017. (Def.
Shelby Cty. Bd. of Educ.'s Resp. in Opp'n to
Pl.'s Mot. for TRO, ECF No. 32.) Magistrate Judge Claxton
held a hearing on the TRO Motion on April 18, 2017. (See,
e.g., Minute Entry, ECF No. 34 (“TRO Hr'g
Minutes”).) On May 12, 2017, Magistrate Judge Clax-ton
issued a report and recommendation addressing the TRO Motion
(the “Report”). (R. & R., ECF No. 42.)
Neither party has filed objections to the Report, and the
time to do so has passed. (See, e.g., Id. at 7
(setting deadline for objections).)
on May 11, 2017, Rushing filed a motion for leave to file an
amended complaint. (Pl.'s Mot. for Leave to File Proposed
Am. Compl., ECF No. 40 (“Mot. for Leave”); see
also Pl.'s Proposed Am. Compl., ECF No. 40-1
(“Proposed Am. Compl.”).) On May 17, 2017,
Rushing filed a notice that she was striking the Motion for
Leave. (Notice Striking Mot. for Leave to Amend, ECF No. 43
(“Amendment-Mot. Notice”).) SCSS has not filed a
response to the Motion to Leave, and the time to do so has
passed. L.R. 7.2(a)(2).
on June 9, 2017, Rushing filed a motion (the
“Consolidation Motion”) to consolidate this
action with a second action filed in this Court, Case No.
2:17-cv-02331. (Pl.'s Mot. for Consolidation, Mem. in
Supp., and Certificate of Consultation, ECF No. 48.) SCSS
filed a response to the Consolidation Motion (the
“Consolidation Response”) on June 23, 2017. (Def.
Shelby Cty. Sch. Sys.'s Resp. to Pl.'s Mot. for
Consolidation, ECF No. 54.)
following reasons, the Motion for Leave is STRICKEN, the
Consolidation Motion is GRANTED, the Motion to Dismiss is
DENIED as moot, the Deadline-Reset Motion is DENIED as moot,
the Report is ADOPTED, and the TRO Motion is DENIED.
filed the Complaint on August 12, 2016. The Complaint makes
numerous allegations about Rushing's employment with SCSS
during the 2015-16 school year, when Rushing worked at
Treadwell Middle School in Memphis. (See generally Compl.
¶¶ 9- 41.)
Complaint asserts three causes of action. (Id.
¶¶ 42- 52.) Count One alleges that SCSS
“intentionally[, ] willfully and knowingly
discriminated against [Rushing] . . . based upon unlawful
disability discrimination in violation of the Americans with
Disabilities Act of 1990 [(“ADA”)] . . . and in
violation of Title VII . . . .” (Id. ¶
43.) Count Two asserts that Rushing has a cause of action
pursuant to 42 U.S.C. § 1983 based on a deprivation of
her Fourteenth Amendment due-process rights. (Id.
¶ 47.) Count Three asserts that SCSS is liable
“for retaliatory discharge and intentional employment
discrimination” pursuant to section 50-1-304 of the
Tennessee Code. (Id. ¶ 49.)
filed the Partial Motion to Dismiss on September 8, 2016.
SCSS filed its answer to the Complaint the same day. (Answer
and Affirmative Defenses, ECF No. 8.)
December 7, 2016, the Court held a scheduling conference and
entered a scheduling order after consulting with the parties.
(See, e.g., Scheduling Order, ECF No. 23 (“December
2016 Scheduling Order”).) In relevant part, the
scheduling order set a deadline of January 31, 2017, for the
parties to amend their pleadings and join parties; a deadline
of April 1, 2017, for Rushing to disclose her expert
witnesses; a deadline of June 14, 2017, to complete
discovery; a deadline of August 17, 2017, to file any
dispositive motions; and a trial date of January 16, 2018.
(Id. at 1-2.) On December 9, 2016, Rushing filed the
Response to Partial Motion to Dismiss.
filed the Deadline-Reset Motion on April 4, 2017. In relevant
part, Rushing says that she has “just received a right
to sue on [a] second EEOC charge, ” that she needs to
amend the Complaint, and that amendment would “require
a new Scheduling Order” altering the remaining case
deadlines. (Deadline-Reset Mot. ¶¶ 7-8.)
April 13, 2017, Rushing filed the TRO Motion. The TRO Motion
makes various allegations about SCSS conduct. (TRO Mot.
¶¶ 6-29; see also Rep. 2-4 (summarizing
allegations).) The TRO Motion seeks “a temporary
restraining order, restraining and enjoining [SCSS] and any
of [SCSS's] employees from contacting [Rushing] in any
way . . . until . . . [Rushing's] treatment provider
finds she has sufficiently recovered to return from FMLA
leave to her place of employment.” (TRO Mot. 9.) The
Court referred the TRO Motion to Magistrate Judge Claxton on
April 14, 2017. (TRO Order of Reference.)
April 17, 2017, SCSS filed the Deadline-Reset Response. On
April 18, 2017, SCSS filed the TRO Response. The same day,
Magistrate Judge Claxton held a hearing on the TRO Motion.
(TRO Hr'g Minutes.) On May 1, 2017, Rushing filed the
11, 2017, Rushing filed the Motion for Leave. The Motion for
Leave represents that Rushing filed a (second) EEOC charge on
December 14, 2016, and that she received a right-to-sue
letter addressing that charge on February 13, 2017. (Mot. for
Leave ¶ 2.) The Motion states that Rushing
“desires to amend her original Complaint to include the
second charge and other related causes of action.”
(Id. ¶ 3.)
Proposed Amended Complaint is attached to the Motion for
Leave. Paragraphs 12 through 78 of the Proposed Amended
Complaint contain allegations about the 2015-16 school year.
(Proposed Am. Compl. ¶¶ 12-78.) Those paragraphs
repeat many of the factual allegations made in the Complaint,
but they include additional allegations about the 2015-16
school year. (Compare Id. with Compl. ¶¶
9-41.) The Proposed Amended Complaint also contains more than
three hundred paragraphs of allegations about the 2016-17
school year (Proposed Am. Compl. ¶¶ 79-419), during
which Rushing worked at the A.B. Hill Elementary School in
Memphis (id. ¶ 79). The Proposed Amended Complaint names
an addi- tional defendant: Dr. Angela Brown, the principal at
A.B. Hill Elementary School during the 2016-17 school year.
(Id. ¶ 3.)
Proposed Amended Complaint asserts twelve causes of action.
(See generally Id. ¶¶ 429-64.) Counts One,
Two, and Three in the Proposed Amended Complaint restate
Counts One, Two, and Three in the Complaint. (Compare
Id. ¶¶ 429-39 with Compl. ¶¶
42-52.) Count Four alleges a claim under Title VII based on a
second charge of discrimination that Rushing filed with the
Equal Employment Opportunity Commission (“EEOC”)
in December 2016. Rushing alleges that SCSS “has
intentionally interfered” with her rights under the
Family Medical Leave Act (“FMLA”), “has
intentionally discriminated against [her] . . . based on
disability discrimination, ” has retaliated against her
for engaging in protected activities, and has
“subjected [her] to a hostile environment on a daily
basis.” (Proposed Am. Compl. ¶¶ 441-43.)
Five asserts that Rushing has a cause of action pursuant to
42 U.S.C. § 1983 based on SCSS's allegedly depriving
her of “constitutionally guaranteed rights to due
process under the Fourteenth Amendment.” (Id.
¶ 445.) Count Six asserts that SCSS violated the
Individuals with Disabilities Act of 1975
(“IDEA”). (Id. ¶ 447.) Count Seven
asserts that SCSS violated Section 504 of the Rehabilitation
Act of 1983. (Id. ¶ 448.) Count Eight asserts
that SCSS violated the FMLA. (Id. ¶¶ 451-
53.) Counts Nine and Ten assert that SCSS is liable to
Rushing under sections 49-2-301(b)(1)(H) and
49-2-301(b)(1)(BB) of the Tennessee Code. (Id.
¶¶ 455, 457.) Count Eleven asserts that SCSS
violated section 50-1-304 of the Tennessee Code, a part of
the Tennessee Public Protection Act. (Id.
¶¶ 459-60.) Count Twelve asserts a claim against
SCSS and Brown for intentional and negligent infliction of
emotional distress. (Id. ¶¶ 462- 64.)
12, 2017, Magistrate Judge Claxton entered the Report
addressing the TRO Motion. She recommended that ...