United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM AND ORDER
A. TRAUGER UNITED STATES DISTRICT JUDGE
Parcel Service, Inc. (“UPS”) has filed a Motion
to Dismiss (Docket No. 6), to which Sterling Turner has file
a Response (Docket No. 12), and UPS has filed a Reply (Docket
No. 14). For the reasons set out herein, that motion will be
granted in part and denied in part.
who is African-American, was a “feeder driver”
for UPS in La Vergne, Tennessee, until December 29, 2017,
when he was terminated after having a “roll away
accident.” (Docket No. 1-2 ¶¶ 1, 7-9.)
Prior to the accident, Turner had “satisfactorily
performed his job duties” at all times. (Id.
¶ 8.) According to Turner, “[o]ther similarly
situated individuals of a different race were not terminated
for roll away accidents.” (Id. ¶ 10.) He
also claims that he “was harassed and discriminated
against by [UPS], th[r]ough [its] various officers,
administrators, employees, and agents, during [his]
employment because of [his] race.” He does not describe
that harassment and states that his termination was
retaliatory, although he does not explain what the
retaliation would have been for. (Id. ¶¶
filed a charge with the EEOC, and the EEOC later issued him a
right to sue letter. (Id. ¶¶ 4-5.) On
April 26, 2019, Turner filed a short Complaint against UPS in
Rutherford County Circuit Court. It pleads four counts: Count
I is for wrongful termination and/or retaliation in violation
of the Tennessee Human Rights Act (“THRA”); Count
II is for intentional infliction of emotional distress; Count
III is for negligent infliction of emotional distress; and
Count IV is for discrimination and retaliation in violation
of Title VII of the Civil Rights Act of 1964. (Id.
¶¶ 11- 33.) UPS removed the case to this court,
claiming jurisdiction based on Turner's federal claim and
the diversity of the parties. (Docket No. 1 ¶¶
filed a Motion to Dismiss, arguing that Turner failed to
state a claim with regard to any of his counts and that his
THRA and common law causes of action were time-barred.
(Docket No. 6 at 1.) In his Response and an accompanying
Memorandum, Turner concedes that his THRA and common law
causes of action are time-barred. (Docket No. 12 at 1.)
Although he does not expressly concede his claim for
retaliation, he advances no argument that he has pleaded the
necessary elements of such a claim, mentioning retaliation
only once in his Response Memorandum, when summarizing his
Complaint. (Docket No. 13 at 1.) A few weeks after Turner
filed his Response, his counsel moved to withdraw on the
ground that the Tennessee Supreme Court had issued an Order
of Temporary Suspension forbidding him from the practice of
law. (Docket No. 17 at 1.) The court granted the motion
(Docket No. 18) but will proceed to rule on this motion,
which was fully briefed before plaintiff's counsel had to
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 [his] 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
the 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 Atl. 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.
Turner has conceded Counts I through III, all that remains
for the court to consider is Count IV, his Title VII claim.
Moreover, even if Turner had not effectively conceded his
retaliation claim, that claim would warrant dismissal,
because he has not alleged that he engaged in any protected
activity prior to his termination on which retaliation could
have been premised. See Univ. of Tex. Sw. Med. Ctr. v.
Nassar, 570 U.S. 338, 362 (2013) (“[A] plaintiff
making a retaliation claim under § 2000e-3(a) must
establish that his or her protected activity was a but-for
cause of the alleged adverse action by the employer.”).
The court, therefore, must consider only whether he has
alleged facts sufficient to support a claim for race
discrimination under Title VII.
argues that Turner's allegations regarding the alleged
discrimination are conclusory and insufficient to establish a
plausible basis for relief. Turner has alleged that, prior to
his accident, his job performance was satisfactory, that he
was fired following the accident, and that other,
unidentified non-African-American UPS employees had similar
accidents but were not fired. UPS likens Turner's
allegations to those at issue in two Sixth Circuit cases,
16630 Southfield Ltd. P'ship v. Flagstar Bank,
F.S.B., 727 F.3d 502 (6th Cir. 2013) (“16630
Southfield”), and Han v. Univ. of Dayton,
541 Fed.Appx. 622 (6th Cir. 2013), in which the court
affirmed the dismissal of discrimination claims based on the
fact that their allegations were merely
16630 Southfield, the plaintiffs had filed suit
under the Equal Credit Opportunity Act, 15 U.S.C. §
1691, et seq., alleging that the defendant bank had
discriminated against them on the basis of national origin
(Iraqi) in its handling of their debt. Id. at 503.
The plaintiffs alleged, “upon information and belief,
” that the bank had treated unidentified non-Iraqi
borrowers more favorably in certain specific ways.
Id. at 506. The Sixth Circuit wrote:
These are precisely the kinds of conclusory allegations that
Iqbal and Twombly condemned and thus told
us to ignore when evaluating a complaint's sufficiency.
No. doubt disparate treatment of similarly situated people
may support an inference of discrimination. But the
plaintiffs have not identified any similarly situated
individuals whom Flagstar treated better. They have merely
alleged their “belief” that such people exist.