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Danes v. Associated Wholesale Grocers, Inc.

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

August 25, 2017

Michael Franklin Danes, Plaintiff,
Associated Wholesale Grocers, Inc., Defendant.


          JUDITH E. LEVY United States District Judge Sitting By Special Designation

         Before the Court is defendant Associated Wholesale Grocers, Inc.'s partial motion to dismiss the claim for retaliatory discharge under Tennessee common law and claim under the Tennessee Public Protection Act, Tenn. Code Ann. § 50-10-304. (Dkt. 9.) In the response brief to the motion to dismiss, plaintiff included a motion for leave to amend the complaint, which the Court will also consider in this opinion and order. (Dkt. 13.)

         For the reasons set forth below, defendant's motion is granted in part and denied in part. Plaintiff's motion to amend is granted in part and denied in part.

         I. Background

         Plaintiff Michael Franklin Danes was employed by defendant Associated Wholesale Grocers, Inc. (“AWG”) from 1992 to September 27, 2016, beginning with the company as a Produce Specialist and ending as a Senior Vice-President, Division Manager in Nashville. (Dkt. 1 at 2, 5.) AWG is a grocery cooperative distributor that distributes goods to grocery stores in several states in the Midwest and South. (Id. at 1.)

         The events giving rise to plaintiff's complaint allegedly began in January 2016 when the company obtained new management and plaintiff “got a new supervisor.” (Dkt. 1 at 3.)

         In the initial complaint, plaintiff alleges that the new management engaged in “unethical practices, ” including “restricting competition among stores by providing incentives in the form of freight reductions, preferential loan treatment and confidential price files.” (Dkt. 1 at 4.) Further, management may have “made payments to owners to keep the owners' business.” (Id.) And after CEO David Smith sold a store that he knew was prone to flooding, the buyer pulled its business from defendant, and plaintiff “spoke up and said it was because of the ill feelings the owner had toward Smith.” (Id.)

         After plaintiff spoke up about these alleged practices, his immediate supervisor, Jeff Pederson, “requested that Plaintiff attend a breakfast meeting with him, ” where plaintiff was met by Pederson and Human Resources Senior Vice-President, Patrick Reeves. (Dkt. 1 at 5.) He was then informed that he was being “let go” because “sales have declined in Nashville.” (Id.)

         On January 27, 2017, plaintiff filed this complaint, alleging that his termination was not due to poor performance, but was in retaliation for his complaints about the new management. Plaintiff alleges his termination violated the Age Discrimination in Employment Act (“ADEA”) because he was over forty at the time of termination and therefore a member of a protected class. (Dkt. 1 at 5-6.) He also alleges that his termination violated the Employment Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq., by illegally interfering with his pension and retirement benefits. (Id. at 7.) Finally, plaintiff alleges that his termination violated the Tennessee common law cause of action against retaliation and the Tennessee Public Protection Act (“TPPA”), Tenn. Code Ann. § 50-10-304. (Id. at 6.)

         Defendant has now filed a partial motion to dismiss, arguing that plaintiff failed to state a claim for a TPPA violation, and that it cannot be pleaded alongside an ADEA and ERISA claim. (Dkt. 9 at 1.) Further, defendant argues that the common law claim cannot survive because the cause of action has been abrogated and superseded by the TPPA. (Id.)

         In a response brief, plaintiff has included a contemporaneously filed motion to amend, and on this basis argues that the motion to dismiss must be denied. First, the common law retaliation claim has been removed from the proposed amended complaint. Second, the TPPA claim has been repleaded to meet the elements. (See generally Dkt. 13.)

         II. Legal Standard

         Under Fed.R.Civ.P. 12(b)(6), “[a] complaint must state a claim that is plausible on its face.” Johnson v. Moseley, 790 F.3d 649, 652 (6th Cir. 2015). A plausible claim need not contain “detailed factual allegations, ” but it must contain more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In other words, a plaintiff must plead facts sufficient to “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 369 (6th Cir. 2011). And a court considering a motion to dismiss must “construe the complaint in the light most favorable to the plaintiff and accept all allegations as true.” Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012).

         III. ...

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