Medrano v. Mcdr, Inc.

• Decision Date: 31 March 2005
• Docket Number: No. 04-2425-BP.,04-2425-BP.
• Citation: 366 F.Supp.2d 625
• Parties: Brenda MEDRANO, Administratrix of the Estate of Rogelio Galvan aka Agustin Fernado Martinez, Deceased, and as Parent and Next Friend of Flor Carolina Martinez Medrano, a Minor, and Jose Ruben Lara Buendia, Plaintiffs, v. MCDR, INC. and M.A. Mortenson Company, Defendants.
• Court: U.S. District Court — Western District of Tennessee

366 F.Supp.2d 625

Brenda MEDRANO, Administratrix of the Estate of Rogelio Galvan aka Agustin Fernado Martinez, Deceased, and as Parent and Next Friend of Flor Carolina Martinez Medrano, a Minor, and Jose Ruben Lara Buendia, Plaintiffs, v. MCDR, INC. and M.A. Mortenson Company, Defendants.

No. 04-2425-BP.

United States District Court, W.D. Tennessee, Western Division.

March 31, 2005.

COPYRIGHT MATERIAL OMITTED

Jeffrey S. Rosenblum, Kirk A. Caraway, Rosenblum & Reisman, Ralph Noyes, Law Office of Ralph Noyes, Memphis, TN, for Plaintiffs.

Robert B. Hale, Glankler Brown, PLLC, Mark Anthony Lambert, Allen Summers Simpson Lillie & Gresham, PLLC, Memphis, TN, David J. Goldstein, Faegre & Benson LLP, Minneapolis, MN, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS

BREEN, District Judge.

This action involves state tort and federal and state discrimination claims by Plaintiffs Brenda Medrano as the Adminstratrix of the Estate of Rogelio Galvan ("deceased") and as parent and next friend of Flor Carolina Martinez Medrano, a minor, and Jose Ruben Lara Buendia against Defendants MCDR, Inc. ("MCDR") and M.A. Mortenson Company ("Mortenson"). Plaintiffs allege that the Defendants unlawfully discriminated against them on the basis of their race and national origin in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq., as amended, 42 U.S.C. § 1981, and the Tennessee Human Rights Act ("THRA"), Tenn.Code Ann. § 4-21-101 et seq. Additionally, the Plaintiffs assert that Mortenson violated Tennessee safety regulations and committed acts of negligence, negligence per se, misrepresentation, and outrageous conduct under Tennessee common law. The Defendants seek dismissal of the complaint pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure. As the Plaintiffs have filed their responses, the motion is appropriate for disposition.

FACTS

In 2002, Mortenson was selected to perform labor and furnish materials for the construction of the FedEx Forum in Memphis, Tennessee. (Am. Compl. at 4, attached as Ex. A to Mot. Am. Compl. ("Am.Compl."); Mem. Supp. Mot. Dismiss Def., M.A. Mortenson Company at 4 ("Mortenson Mem.").) As the general contractor for the project, Mortenson temporarily relocated some of its long-term managerial employees to Memphis while hiring local short-term employees and entering into subcontracts with other entities. (Mortenson Mem. at 4.) Another company working on the project was MCDR, Inc., a Memphis-based contractor that employed a number of carpenters including the deceased, Rogelio Galvan, a Hispanic. (Am. Compl. at 4.) Plaintiff Buendia, also Hispanic, was hired by Mortenson to perform work on the FedEx Forum. (Am. Compl. at 4.) In their complaint, Plaintiffs allege that the Defendants discriminated against Hispanic workers by paying less compensation than what was paid to Caucasian workers who performed the same jobs. (Am. Compl. at 5-6.) Additionally, according to the Plaintiffs, MCDR and Mortenson required Hispanic employees to perform more dangerous jobs than their Caucasian workers.

On June 5, 2003, a Mortenson supervisor allegedly asked two Caucasian employees to perform a dangerous task which they refused to do. (Am. Compl. at 6.) Plaintiffs allege that the supervisor then threatened them by stating that they would be terminated if they refused to perform the same work. (Am. Compl. at 6.) Plaintiffs assert that the task was not in compliance with the Tennessee Occupational Safety Health Administration ("TOSHA") but agreed to do it for fear of losing their jobs. (Am. Compl. at 6.) Plaintiffs submit that Mortenson represented to them and others that it had a "zero tolerance" safety policy where any employee could refuse to perform a particular job if the employee felt that it posed a threat of danger to that employee. (Am. Compl. at 6-7.)

On June 5, Plaintiffs were building a molding wall, called a "form," made of wood and which was then filled with cement. The form would then be stripped away leaving the concrete wall supported by other means in order to prevent it from collapsing. (Mortenson Mem. at 5.) The deceased and Buendia were attempting to strip the form at a height of approximately forty feet when the wall collapsed thereby causing injury to the Plaintiffs. (Mortenson Mem. at 6-7.) The Plaintiffs claim they were the victims of unlawful discrimination because they were required to perform dangerous work which non-minority employees could refuse without retribution. Plaintiffs also allege that Mortenson was negligent in failing to provide a safe working environment and safety equipment, in failing to follow safety rules, and in failing to supervise employees and supervisors. Additionally, Plaintiffs claim that Mortenson was negligent as a matter of law in not complying with TOSHA regulations. Finally, Plaintiffs seek to recover for Mortenson's misrepresentation regarding its zero tolerance safety policy and its intentional/reckless conduct in asking the Plaintiffs to perform such a dangerous task, constituting outrageous conduct.

STANDARD OF REVIEW

In ruling on a Rule 12(b)(6) motion, a court must "construe the complaint in the light most favorable to the plaintiff, accept all of the complaint's factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of the claims that would entitle relief." Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir.1998). However, the court is not required to "accept as true legal conclusions or unwarranted factual inferences." Id. In order to avoid dismissal under Rule 12(b)(6), a complaint must contain either direct or inferential allegations with respect to all the material elements of the claim to sustain recovery under some viable legal theory. Wittstock v. Mark A. Van Sile, Inc., 330 F.3d 899, 902 (6th Cir.2003); Lewis v. ACB Bus. Services, Inc., 135 F.3d 389, 406 (6th Cir.1998). The court's narrow inquiry on a motion to dismiss under Rule 12(b)(6) "is based upon whether `the claimant is entitled to offer evidence to support the claims,' not whether the plaintiff can ultimately prove the facts alleged." Osborne v. Bank of Am., Nat'l Ass'n, 234 F.Supp.2d 804, 807 (M.D.Tenn.2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974)).

ANALYSIS

Mortenson argues that dismissal of the Plaintiffs' complaint is appropriate under Rule 12(b)(6) for the following reasons: (1) Medrano lacks standing to sue; (2) Mortenson was the statutory employer of the deceased; (3) Plaintiffs' tort claims are barred by the exclusivity rule under the Tennessee Workers' Compensation Law ("TWCL"); (4) Plaintiffs' discrimination causes of action are also barred by the TWCL; (5) the deceased's discrimination claims do not survive his death; and (6) Buendia's wage discrimination claim fails to state a claim for relief. The Court will consider all of the Defendants' arguments in turn.

I. Medrano's Standing to Sue

Along with damages sought in her representative capacity, Medrano seeks, individually, damages for loss of consortium based on the death of her common-law husband. Although Mortenson does not dispute that Medrano has standing to assert claims on behalf of the estate of Galvan as its administratrix and as a parent of the deceased's child, Flor Carolina Martinez Medrano, it maintains that the Plaintiff lacks standing to sue in her individual capacity. The Plaintiff insists that she was the deceased's common-law wife while they lived in Mexico. Both parties agree that if the law of the state in Mexico where Medrano and Galvan lived recognized common-law marriages, then this Court should recognize the marriage as valid in Tennessee. See Morgan v. McGhee, 24 Tenn. (5 Hum.) 13 (1844) (stating that all marriages consummated pursuant to the usage of a foreign country are recognized as valid by the laws of Tennessee). Defendant points to cases interpreting the law of two states in Mexico in support of its position. See Rosales v. Battle, 113 Cal.App.4th 1178, 7 Cal.Rptr.3d 13 (2003); Nevarez v. Bailon, 287 S.W.2d 521 (Tex.Civ.App.1956). However, Medrano insists that these decisions are not applicable to the present case because they do not interpret the law of the state in which Medrano or Galvan resided. In Nevarez, the court was interpreting the law of the State of Chihuahua as it existed in 1956. See at 522. In Rosales, the court considered the law of the State of Baja California in Mexico. In the present case, Medrano and the deceased lived in the Mexican State of Tamaulipas. (Pl.'s Resp. Def. M.A. Mortenson Company's Mot. Dismiss ("Pl.'s Resp.") at 17.)

A challenge to a plaintiff's standing to sue is appropriately analyzed under Rule 12(b)(1) as a challenge to the court's jurisdiction. See Catalyst & Chemical Servs., Inc. v. Global Ground Support, 350 F.Supp.2d 1, 7 (D.D.C.2004). Under Rule 12(b)(1), the court must accept all factual allegations contained in the complaint as true. Id. "At the same time, the plaintiff bears the burden of [alleging facts] establishing the court's jurisdiction." Id. "Because standing is fundamental to the ability to maintain a suit, and because the [c]ourt has saddled the complainant with the burden of clearly alleging facts sufficient to ground standing, we are of the opinion that, where standing is at issue, heightened specificity is obligatory at the pleading stage." United States v. AVX Corp., 962 F.2d 108, 116 (1st Cir.1992); Catalyst & Chemical Servs., Inc., 350 F.Supp.2d at 7 (stating that "[a] motion to dismiss ... for lack of standing ... involves an examination of the face of the complaint ... and the plaintiff's allegations therein require closer scrutiny than they would under the Rule 12(b)(6) motion to dismiss standard") (internal quotations and citations omitted). "The complaint must set forth reasonably definite factual allegations, either direct or...