United States District Court, M.D. Tennessee, Nashville Division
JAY S. COHEN, Plaintiff,
THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, Defendant.
MEMORANDUM AND ORDER
A. TRAUGER, United States District Judge
before the court is a Partial Motion to Dismiss (Docket No.
24) filed by the defendant, the Metropolitan Government of
Nashville and Davidson County, Tennessee
(“Metro”), to which the plaintiff, Jay S. Cohen,
has filed a Response in opposition (Docket No. 28). For the
reasons discussed herein, the motion will be denied.
is a 59-year-old Jewish man. He was first employed by the
Nashville Fire Department in 1977, and he currently works
there as a Fire Fighter 2 and EMT trainer. He is also a
paramedic licensed by the State of Tennessee and credentialed
by the Nashville Fire Department. Cohen is subject to civil
service rules regarding promotions. The Fire Department rates
employees' seniority and service, allocating
“points” based on certain criteria. Employees
also obtain points through other means, such as reaching a
certain level of qualification as a result of tests that are
administered by a third-party agency or entity.
2015, Cohen applied for promotions to several Fire Captain
Suppression Operations positions in the Nashville Fire
Department's Suppression unit. He was not promoted. Cohen
alleges that he had all the requisite qualifications for
these positions but was passed over in favor of substantially
younger, non-Jewish candidates who were less qualified than
he. Metro denies that Cohen met the necessary minimum
qualifications for the positions and that the promoted
employees were less qualified than Cohen. Metro claims,
instead, that they promoted applicants of various ages
without knowledge of the applicants' religious
affiliations. Cohen filed an internal grievance with the
Nashville Fire Department, which was denied.
3, 2016, Cohen filed a Charge of Discrimination with the
Equal Employment Opportunity Commission (the “EEOC
Charge”). The narrative portion of the EEOC Charge
reads as follows:
I was hired by the above-named employer on April 16, 1977. I
held the position of EMT Trainer/FFII. The company employs
fifteen or more employees.
The company had several vacant Fire Captain Suppression
Operations Positions. On November 25, 2015 I applied for or
expressed interest in the position Fire Captain Suppression
Operations. I was qualified for the position but not
selected. The employer continues to fill the jobs with
younger, less seniority and lesser qualified person(s) or
continued to seek applications from persons with similar
The company's explanations are in fact a pretext for
discrimination against me.
I believe that I am being discriminated against because of my
religion (Jewish), age (58) and disability in violation of
Title VII of the Civil Rights Act of 1964, as amended, the
American with Disabilities Act of 2008 and the Age
Discrimination in Employment Act of 1967.
later dropped the disability discrimination claim in the EOOC
Charge. The EEOC Charge was denied and, on March 16, 2017,
Cohen initiated this lawsuit, alleging violations under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §2000-e
(“Title VII”) and the Age Discrimination in
Employment Act of 1967, 29 U.S.C. §621
(“ADEA”) (Docket No. 1.) He filed an Amended
Complaint on August 4, 2017 (Docket No. 19.) On August 8,
2017, Metro moved to dismiss Cohen's Title VII claim
under Rule 12(b)(6), arguing that Cohen did not exhaust his
administrative remedies because he did not adequately plead
religious discrimination in the EEOC Charge (Docket No. 24.)
On September 1, 2017, Cohen filed a Response in opposition
(Docket No. 28.)
deciding a motion to dismiss for failure to state a claim
under Rule 12(b)(6), the court will “construe the
complaint in the light most favorable to the plaintiff,
accept its allegations as true, and draw all reasonable
inferences in favor of the plaintiff.” Directv,
Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007);
Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir.
2002). The Federal Rules of Civil Procedure require only that
a plaintiff provide “a short and plain statement of the
claim that will give the defendant fair notice of what the
plaintiff's claim is and the grounds upon which it
rests.” Conley v. Gibson, 355 U.S. 41, 47
(1957). The court must determine only whether “the
claimant is entitled to offer evidence to support the claims,
” not whether the plaintiff can ultimately prove the
facts alleged. Swierkiewicz v. Sorema N.A., 534 U.S.
506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S.
232, 236 (1974)).
complaint's allegations, however, “must be enough
to raise a right to relief above the speculative
level.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007). To establish the “facial
plausibility” required to “unlock the doors of
discovery, ” the plaintiff cannot rely on “legal
conclusions” or “[t]hreadbare recitals of the
elements of a cause of action, ” but, instead, the
plaintiff must plead “factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009). “[O]nly a
complaint that states a plausible claim for relief survives a
motion to dismiss.” Id. at 679;
Twombly, 550 U.S. at 556. According to the Supreme
Court, “plausibility” occupies that wide space