Viera v. Gen. Auto. Ins. Servs.
| Decision Date | 04 February 2021 |
| Docket Number | NO. 3:19-cv-00901,3:19-cv-00901 |
| Parties | BENE VIERA, Plaintiff, v. THE GENERAL AUTOMOBILE INSURANCE SERVICES and PERMANENT GENERAL ASSURANCE CORPORATION, Defendants. |
| Court | U.S. District Court — Middle District of Tennessee |
MEMORANDUM OPINION
Pending before the Court are two motions.1 Defendants filed a Motion to Dismiss Retaliation Claim (Doc. No. 33, "Defendants' Motion"). Plaintiff responded, (Doc. No. 43), and Defendants replied. (Doc. No. 47). Plaintiff filed a Motion to Dismiss Counterclaims (Doc. No. 41, "Plaintiff's Motion"). Defendants responded (Doc. No. 46) and Plaintiff did not reply. The Motions are ripe for Review.
For the reasons discussed, the Court will deny Defendants' Motion, and the Court will deny Plaintiff's Motion.
Plaintiff is a former employee of Defendants. (Doc. No. 32 at 2). Plaintiff, an African-American woman, was hired in May 2019 to be a Corporate Communications Specialist for Defendants. (Id. at 2). Plaintiff worked under the supervision and direction of the Senior Vice President of Marketing. (Id. at 3).
In June 2019, Plaintiff emailed the Employee Relations manager regarding incidents of racial and gender discrimination. (Id. at 3). In her email, Plaintiff recounted specific incidents that she believed were discriminatory, and also stated that she feared retaliation from the company. (Id.). Defendants informed Plaintiff that there would be an investigation into her complaint. (Id. at 4).
Plaintiff received positive performance reviews prior to the email. (Id. at 2). But after she sent the email, according to Plaintiff, her supervisor and others targeted her with hostility and discrimination. (Id. at 4). Some of the specific conduct alleged includes hostility during daily interactions, criticisms of Plaintiff's tone and demeanor, solicitations of negative feedback related to Plaintiff, and denying Plaintiff a promised office and other privileges. (Id. at 4). Plaintiff followed up regarding her previous complaint in July 2019 and indicated some new issues, and she was informed that an investigation was underway. (Id.). The Senior Vice President of Marketing was included on this email. (Id.). After being included on the email, she showed increased hostility and antagonism towards Plaintiff, informing Plaintiff that since Plaintiff washer "first hire," Plaintiff's complaints cast both the Senior Vice President of Marketing and their division in a negative light. (Id. at 4-5).
At a meeting in August 2019 regarding the investigation, the Senior Vice President of Marketing was in attendance, was hostile to Plaintiff, and stated that she did not think she would be able to work with Plaintiff anymore. (Id. at 5-6). Plaintiff was informed that her complaint was unsubstantiated and that no corrective action would be taken. (Id. at 5). Plaintiff raised additional concerns about discrimination and retaliation at the meeting. (Id. at 6). Plaintiff was fired a week later. (Id. at 6).
During the one-week period after the meeting but before Plaintiff's firing, the Senior Vice President of Marketing solicited negative feedback about Plaintiff and acted in a hostile manner towards her. (Id.). At Plaintiff's termination meeting, the Senior Vice President of Marketing showed hostility towards Plaintiff because of her complaints and indicated that her complaints showed "poor performance." (Id.). On the separation paperwork, Defendants listed "poor performance" as the reason for Plaintiff's termination. (Id.).
Plaintiff filed her original Complaint in October 2019, bringing claims for 1) retaliation in violation of the Tennessee Human Rights Act ("THRA"), and 2) retaliation in violation of 42 U.S.C. § 1981 ("§ 1981"). (Doc. No. 1). In February 2020, Defendants' counsel emailed Plaintiff's counsel and stated that Defendants were considering filing counterclaims against Plaintiff, including for criminal impersonation. (Doc. No. 32 at 7). Defendants' counsel stated that Defendants were willing to sign mutual releases if Plaintiff was willing to drop the lawsuit. (Id.). Plaintiff believes this to have been a threat, and that the threat to file counterclaims was a retaliatory response to her Complaint. (Id.). Defendants then moved to amend and correct the Answer to include counterclaims. (Id.). Plaintiff thereafter filed the First Amended Complaint.
Plaintiff's First Amended Complaint, like her original Complaint, brings claims for 1) retaliation in violation of the THRA, and 2) retaliation in violation of § 1981.3
Defendants own and maintain a LinkedIn account, used to promote Defendants' business and services. (Doc. No. 40 at 9). While Plaintiff worked for Defendants, she acquired credentials that allowed her to access and modify Defendants' LinkedIn page. (Id. at 10). After Defendants terminated Plaintiff on the afternoon of August 16, 2019, she intentionally accessed the LinkedIn page without authorization and using credentials she was not permitted to use after her firing. (Id.). Plaintiff deleted and altered content on the LinkedIn page, including removing Defendants' trademark logo and replacing it with a large image of the "N word" and posting derogatory statements about Defendants' employees and business practices. (Id.). Plaintiff publicly identified two of Defendants' employees by name, accusing each of racist conduct. (Id. at 10-11).
Defendants' two counterclaims are brought, respectively, under 1) the Computer Fraud and Abuse Act ("CFAA"), and 2) the Tennessee Personal and Commercial Computer Act ("TPCCA").5
For purposes of a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court must take all as true of the factual allegations in the complaint.7 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a motion to dismiss, 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 1950. A legal conclusion, including onecouched 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.; Fritz v. Charter Township of Comstock, 592 F.3d 718, 722 (6th Cir. 2010), cited in 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. This can be crucial, as no such allegations count toward the plaintiff's goal of reaching plausibility of relief. To reiterate, such allegations include "bare assertions," formulaic recitation of the elements, and "conclusory" or "bold" 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 Federal Rule of Civil Procedure 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 Rule 12(b)(6) unless the motion is converted to one for summary judgment under Rule 56. Fed. R. Civ. P. 12(d). When a document is referred to in the pleadings and is integral to the claims, it may be considered without converting a motion to 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).
In reviewing a Rule 12(b)(6) motion to dismiss, "[t]he moving party has the burden of proving that no claim exists." Total Benefits Planning Agency, Inc. v. Anthem Blue Cross and Blue Shield, 552 F.3d 430, 433 (6th Cir.2008). That is not to say that the movant has some evidentiary burden; as should be clear from the discussion above, evidence (as opposed to allegations as construed in light of any allowable matters outside the pleadings) is not involved on a Rule 12(b)(6) motion. The movant's burden, rather, is a burden of explanation; since the movant is the one seeking dismissal, it is the one that bears the burden of explaining—with whatever degree of thoroughness is required under the circumstances—why dismissal is appropriate for failure to state a claim.
Importantly, the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), holding modified by Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993),8 is inapplicable on a Rule 12(b)(6) motion to dismiss. That is to say, a plaintiff need not allege facts specifically indicating that the plaintiff could carry the burden she might ultimatelybear under McDonnell Douglas. This is because McDonnell Douglas "is an evidentiary standard, not a pleading requirement." Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510 (2002). Contrary to what Plaintiff seems to assume, (Doc. No. 43 at 9), a plaintiff is not required to...
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