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Turner v. United Parcel Service, Inc.

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

October 15, 2019

STERLING TURNER, Plaintiff,
v.
UNITED PARCEL SERVICE, INC., Defendant.

          MEMORANDUM AND ORDER

          ALETA A. TRAUGER UNITED STATES DISTRICT JUDGE

         United 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.

         I. BACKGROUND [1]

         Turner, 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.”[2] (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. ¶¶ 13-14.)

         Turner 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 ¶¶ 8-10.)

         UPS 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 withdraw.

         II. LEGAL STANDARD

         In 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)).

         The 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.

         III. ANALYSIS

         Because 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.

         UPS 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 conclusory.[3]

         In 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. ...

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