Berry v. Univ. Sch. of Nashville
| Decision Date | 17 June 2020 |
| Docket Number | NO. 3:19-cv-00830,3:19-cv-00830 |
| Parties | COREY BERRY, Plaintiff, v. UNIVERSITY SCHOOL OF NASHVILLE and SAGE DINING SERVICES, LLC, Defendants. |
| Court | U.S. District Court — Middle District of Tennessee |
MEMORANDUM OPINION
Plaintiff Corey Berry brings this action against Defendants University School of Nashville ("USN") and Sage Dining Services ("Sage"). Currently before the Court is USN's Motion to Dismiss (Doc. No. 8, "the Motion"), wherein USN seeks to dismiss all of Plaintiff's claims against it. Plaintiff responded in opposition (Doc. No. 12), and USN in turn replied (Doc. No. 13). As articulated below, USN's Motion will be granted.
Defendant Sage is a for-profit corporation that operates dining facilities located in educational institutions. (Doc. No. 1 at ¶ 2). Defendant USN is a private school in Nashville, Tennessee. (Id. at ¶ 3). Sage employed Plaintiff, Corey Berry, as a cashier at the USN facility from August 7, 2017, until his medical leave on October 18, 2018. (Id. at ¶ 9).
Plaintiff suffers from epilepsy, a disorder of the central nervous system that can cause seizures. (Id. at ¶ 12). Plaintiff occasionally experienced seizures while at work. (Id. at ¶ 13). His supervisor, Kelly Mozzi, informed him that he was scaring the children with his seizures. (Id. at ¶ 14). Ms. Mozzi informed Defendant that he was being reassigned from a cashier position to a position in the dish room, despite a note from Defendant's physician stating that Plaintiff was restricted from working as a dishwasher due to the hot environment. (Id. at ¶¶ 24-25). On October 18 or 24, 2018, Sage sent Defendant a letter stating that he was being placed on a medical leave of absence because he had been unable to report to work since October 9, 2018. (Id. at ¶ 28). Plaintiff never returned to his position with Sage. (Id. at ¶ 29).
On September 19, 2019, Plaintiff filed this action against Defendants alleging violations of the Family Medical Leave Act ("FMLA") (Count One); Tennessee Disability Act ("TDA") (Count Two); and the Americans with Disabilities Act ("ADA") (Count Three). (Doc. No. 1). Plaintiff asserts Counts One and Two against both Defendants, while Plaintiff asserts Count Three against Sage only.
In Count One, Plaintiff alleges "Defendants interfered with Plaintiff's FMLA rights and retaliated against him by denying him FMLA protected leave." (Id. at ¶ 34). In Count Two, Plaintiff alleges that "Plaintiff was discriminated against because his seizure disorder allegedly scared the children at [USN] and therefore Defendants conspired to force Plaintiff to either work in a back room or not return to work at all" in violation of the TDA. (Id. at ¶ 48).
On October 15, 2019, USN filed the instant Motion, seeking dismissal of Counts One and Two (the only counts asserted against USN) pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). USN asserts that this Court lacks subject-matter jurisdiction over Plaintiff's claims against it because (according to USN) Plaintiff lacks standing to bring such claims since the Complaint does not allege that Plaintiff has ever been employed, directly or jointly, by USN. (Doc. No. 9). USN asserts likewise that Plaintiff fails to state a claim upon which relief can be granted because Plaintiff has not alleged sufficient facts to establish that USN was Plaintiff's direct or joint employer. (Id.). Thus, USN asks the Court to dismiss it from this action.
Rule 12(b)(1) "provides for the dismissal of an action for lack of subject matter jurisdiction." Cartwright v. Garner, 751 F.3d 752, 759 (6th Cir. 2014). "Where subject matter jurisdiction is challenged pursuant to Rule 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion." Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990) (citation omitted). There are two types of motions to dismiss for lack of subject-matter jurisdiction: facial and factual attacks. A facial attack on subject-matter jurisdiction, as Defendants have made here, goes to whether the plaintiff has properly alleged a basis for subject matter jurisdiction. See Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). Upon facial attack, "the court must take the material allegations of the petition as true and construed in the light most favorable to the nonmoving party." United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994) (citation omitted). "A factual attack, on the other hand, is not a challenge to the sufficiency of the pleading's allegations, but a challenge to the factual existence of subject-matter jurisdiction." Id.
For purposes of a motion to dismiss brought pursuant to Rule 12(b)(6), the Court must view all the factual allegations in the complaint as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a motion to dismiss brought pursuant to Rule 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Id. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,do not suffice. Id. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Id. at 679. A legal conclusion, including one couched as a factual allegation, need not be accepted as true on a motion to dismiss, nor are mere recitations of the elements of a cause of action sufficient. Id. at 678; Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010); Abriq v. Hall, 295 F. Supp. 3d 874, 877 (M.D. Tenn. 2018). Moreover, factual allegations that are merely consistent with the defendant's liability do not satisfy the claimant's burden, as mere consistency does not establish plausibility of entitlement to relief, even if it supports the possibility of relief. Iqbal, 556 U.S. at 678.
In determining whether a complaint is sufficient under the standards of Iqbal and its predecessor and complementary case, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), it may be appropriate to "begin [the] analysis by identifying the allegations in the complaint that are not entitled to the assumption of truth." Iqbal, 556 U.S. at 680. Identifying and setting aside such allegations is crucial, because the allegations simply do not count toward the plaintiff's goal of showing plausibility of entitlement to relief. As suggested above, such allegations include "bare assertions," formulaic recitation of the elements, and "conclusory" or "bald" allegations. Id. at 681. The question is whether the remaining allegations—factual allegations, i.e., allegations of factual matter—plausibly suggest an entitlement to relief. Id. If not, the pleading fails to meet the standard of Fed. R. Civ. P. 8 and thus must be dismissed pursuant to Rule 12(b)(6). Id. at 683.
As a general rule, matters outside the pleadings may not be considered in ruling on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) unless the motion is converted to one for summary judgment under Rule 56. Fed. R. Civ. P. 12(d). However, when a document is referred to in the pleadings and is integral to the claims, it may be considered without converting a motionto dismiss into one for summary judgment. Doe v. Ohio State Univ., 219 F. Supp. 3d 645, 652-53 (S.D. Ohio 2016); Blanch v. Trans Union, LLC, 333 F. Supp. 3d 789, 791-92 (M.D. Tenn. 2018).
USN argues that Plaintiff lacks standing—a prerequisite to this Court's subject-matter jurisdiction—to bring Counts One and Two against USN because Plaintiff has never been employed, directly or jointly, by USN. (Doc. No. 9). USN also asserts that Plaintiff fails to state a claim upon which relief can be granted because Plaintiff has not alleged sufficient facts to establish that USN was Plaintiff's direct or joint employer, which is required to plead a claim under the FMLA and TDA. (Id.). Thus, USN asks the Court to dismiss Plaintiff's claims against USN.
The FMLA provides eligible employees up to twelve weeks of unpaid leave in any twelve-month period because of the employee's serious medical condition or to care for a family member with a serious medical condition. 29 U.S.C. §§ 2612, 2615 (2009). The FMLA makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under" the Act. 29 U.S.C. § 2615 (2009) (emphasis added). Additionally, it is "unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter." Id. at § 2615(a)(2) (emphasis added). Accordingly, in order to be liable under the FMLA, a plaintiff must show that the defendant was his or her employer within the meaning of the statute. Brock v. Marymount Med. Ctr., Inc., No. CIVA 6:06-CV-285 DCR, 2007 WL 196895, at *8 (E.D. Ky. Jan. 23, 2007); see also Alexander v. Diamond Healthcare Corp., No. 5:12-CV-32, 2012 WL 4049471, at *2 (W.D. Ky. Sept. 13, 2012) (). "'[T]he FMLA itself is silent about the issueof joint employment' . . . But the Department of Labor has instructed that an additional, separate entity may also be considered an 'employer' if a 'joint employment' relationship exists." Stanley v. FCA US, LLC, No. 3:19-CV-640, 2020 WL 2839440, at *3 (N.D. Ohio May 31, 2020) (quoting Grace v. USCAR, 521 F.3d 655, 663 (6th Cir. 2008)).
The regulations provide that "[w]here two or more businesses exercise some control over the...
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