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Cook v. Garner

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

July 26, 2019

DONNA LEE COOK, Plaintiff,



         This case is before the Court on defendant Maria Garner's second motion to dismiss. Plaintiff Donna Cook had filed an amended complaint against Garner and Tennessee's Department of Human Services (DHS) alleging a variety of claims concerning her employment with that agency. Some of those claims were dismissed by predecessor judges, after which DHS filed a motion for summary judgment and Garner filed a motion to dismiss. On October 23, 2018, the Court filed an opinion granting DHS's motion for summary judgment and granting most of Garner's motion to dismiss, leaving intact a single claim against Garner individually for prospective relief based on allegations of retaliation in violation of the Family and Medical Leave Act (FMLA). The Court dismissed a claim for money damages under that theory. Garner had not challenged the viability of the plaintiff's FMLA retaliation claim, which was found in Count IV of the amended complaint, and although the Court found no evidence in the record of adverse action (thereby dismissing retaliation claims against DHS), Garner had not filed a motion for summary judgment. The Court allowed Garner to file another dispositive motion.

         Inexplicably, Garner chose to file a second motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), asserting some of the same arguments the Court rejected in the earlier opinion. The Court converted that motion to a motion for summary judgment, allowing both sides to submit additional materials for consideration under Rule 56. See Fed. R. Civ. P. 12(d). The new materials Cook has submitted provide no factual support for the idea that her relocation to a different office constituted an adverse employment action, and there is no evidence in the record to support Cook's claim that Garner told hiring personnel at other state agencies to ignore Cook's job application. Because Cook had not offered any evidence to create a genuine fact question on that critical element of her retaliation claim, the Court will grant Garner's motion to dismiss - construed as a motion for summary judgment - and dismiss the remaining count of the amended complaint.


         The facts of the case were covered at length in the Court's earlier opinion and order granting in part Garner's motion to dismiss and granting DHS's motion for summary judgment. See ECF No. 124, PageID.1521-31. Among other things, the Court dismissed with prejudice Cook's FMLA retaliation claim insofar as she sought money damages from Garner but denied Garner's motion as to the request for equitable relief.

         On November 6, 2018, Garner filed a second motion to dismiss the amended complaint arguing, again, that the FMLA retaliation claim fails as a matter of law. In Count IV, Cook alleges that she was criticized and retaliated against by her coworkers and supervisors after applying for and taking qualified FMLA leave. Amend. Compl. ¶¶ 56-57. She alleges that she attempted to raise the issue with Garner, who summarily rejected Cook's concerns. Id. ¶¶ 58-59. Cook refers to an email thread from June 2011 in which she informed Garner that her supervisor inappropriately had questioned another coworker about Cook leaving work early for a doctor's appointment. Cook Email June 2011, ECF No. 11-7, PageID.219. Garner responded that she spoke with both employees and determined that there was “nothing suspect in the inquiry . . . it was asked just to ensure we could cover the phones.” Ibid.

         Cook also alleges in the amended complaint that in retaliation for exercising her rights under the FMLA, (1) Cook was “demoted” to the Davidson County office and (2) Garner interfered with Cook's subsequent job search by badmouthing her to hiring personnel. Amend. Compl. ¶¶ 61-63.

         On May 23, 2019, the Court entered an order converting Garner's second motion to dismiss into a motion for summary judgment, since the question of adverse action was fact-based and the Court had to consider matters outside the pleadings to address it. See ECF No. 133. The order permitted the parties to file additional material they wished to be considered as part of the Court's review. Fed.R.Civ.P. 12(d) (“If, 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. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.”).

         On June 4, 2019, apparently in response to the order, Cook filed a motion for summary judgment and “motion for award.” See ECF No. 134. The disorganized filing recites several incidents - all of which apparently occurred within the last year following her termination from DHS in April 2018 - that Cook believes establish that State of Tennessee agencies have been colluding to deny her a livelihood. Cook accuses the Department of Labor of wrongfully withholding unemployment benefits, and she represents that she has been turned away from “thousands” of jobs, recently by the Department of Transportation, which apparently offered her a position only to rescind the offer days later. She says that “TennCare” fired her after she missed work for a court appearance, even though she was told that her absence would be excused. Cook asserts that she has been harassed about delinquent payments by a Tennessee Employment Credit Union employee who apparently refused to accept Cook's money and instead threatened her with a lawsuit. She also makes incoherent reference to a reinstatement hearing before an appeals board in September 2018 that she believes was conducted unprofessionally and without supporting evidence. In her motion, Cook attempts to state new claims for discrimination based on Cook's disability and retaliation for having pursued this lawsuit.

         On June 13, 2019, Garner responded to the plaintiff's filing, objecting to the relief sought on four grounds: (1) the plaintiff attempts to hold DHS liable even though it is no longer a party to the case; (2) the motion for summary judgment is untimely as the filing deadline passed in September 2017, and the Court did not permit a late filing; (3) the plaintiff has not pointed to any evidence that was produced during discovery to support her claims, all of which postdate the close of discovery; and (4) the plaintiff has failed to comply with the local rules governing motion practice. See ECF No. 136.

         For her own motion, Garner argues first that regardless of the relief sought, Cook's FMLA claim fails as a matter of law because Garner cannot be held liable in her individual capacity. Second, Garner argues that even if she could be held individually liable, Cook's claim falls outside the two-year statute of limitations. Finally, Garner argues that none of the alleged retaliatory conduct constitutes an adverse employment action under the FMLA.


         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). When reviewing the motion record, “[t]he court must view the evidence and draw all reasonable inferences in favor of the non-moving party, and determine ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'” Alexander v. CareSource, 576 F.3d 551, 557-58 (6th Cir. 2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). “The court need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c)(3).

         “The party bringing the summary judgment motion has the initial burden of informing the district court of the basis for its motion and identifying portions of the record that demonstrate the absence of a genuine dispute over material facts.” Id. at 558. (citing Mt. Lebanon Personal Care Home, Inc. v. Hoover Universal, Inc., 276 F.3d 845, 848 (6th Cir. 2002)). “Once that occurs, the party opposing the motion then may not ‘rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact' but must make an affirmative ...

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