                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0854n.06

                                      No. 11-6146

                       UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT
                                                                             FILED
RANDALL THOMPSON; FRED BARNES;               )                          Aug 07, 2012
DON MCCOMMON; PETER ALFONZO,                 )                     LEONARD GREEN, Clerk
                                             )
      Plaintiffs-Appellants,                 )
                                             )   ON APPEAL FROM THE UNITED
v.                                           )   STATES DISTRICT COURT FOR THE
                                             )   WESTERN DISTRICT OF TENNESSEE
CITY OF MEMPHIS; LORENE ESSEX;               )
DWAN GILLIAM, in their official capacity,    )
                                             )
      Defendants-Appellees.                  )



Before: ROGERS and STRANCH, Circuit Judges; PEARSON, District Judge.*



      BENITA Y. PEARSON, District Judge. Plaintiffs Randall Thompson, Fred Barnes,

Don McCommon, and Peter Alfonzo (“Plaintiffs”) appeal the district court’s orders granting

Defendant Lorene Essex’s motion to dismiss in her individual capacity, and denying

Plaintiffs’ second motion to sever parties, and granting Defendant City of Memphis’s

motion to dismiss in this action alleging reverse discrimination in municipal employment

under the Tennessee Human Rights Act, T.C.A. § 4–21–101 et seq. (“THRA”) and 42

U.S.C. § 1983.




      *
         The Honorable Benita Y. Pearson, United States District Judge for the Northern
District of Ohio, sitting by designation.
No. 11-6146, Thompson, et al. v. City of Memphis, et al.


       Plaintiffs request that we reverse the district court’s orders and remand this case to

the trial court. Because the motions to dismiss of Defendants Lorene Essex (“Essex”) and

City of Memphis (“the City”) and Plaintiffs’ second motion to sever were correctly decided,

we affirm the district court’s judgment.

                                      I. BACKGROUND

A.     Factual Background

       The allegations in the complaint arise from an investigation that Plaintiffs allege led

to arbitrary discrimination and retaliation by Defendants. Plaintiffs, who are Caucasian, are

employed by the City’s Public Works Division. Compl. at ¶ 9. They held various positions

categorized as management. Plaintiffs alleged they “have been consistently denied

promotions and disciplined by Plaintiff’s (sic) while African American City of Memphis

Public Works employees were promoted and not subjected to such discipline.” Compl. at

¶ 10. They further asserted “Defendant’s (sic) have (i) failed to pay Caucasian employees

on par with the pay of African American employees; (ii) failed to promote Caucasian

employees fairly; (iii) failed to effectively enforce procedures and policies prohibiting race

discrimination; and (iv) retaliated against employees who have protested Defendants’

discriminatory policies, procedures and/or patterns.” Compl. ¶ at 11. Plaintiffs allege they

“and the class of Caucasian employees at the City of Memphis have been treated

differently from similarly situated African American managers” and “[b]ased on their race,

employees such as Plaintiffs have been arbitrarily disciplined and denied promotional

opportunities and other benefits of employment.” Compl. at ¶ 12.


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No. 11-6146, Thompson, et al. v. City of Memphis, et al.


       Plaintiffs asserted “[o]n or about September 18, 2008, Plaintiffs’ (sic) were arbitrarily

disciplined [by Defendants] for alleged discrimination and misconduct” and prior to that

date, “Defendant’s (sic) subjected Plaintiffs to hearings and questioning and denied

Plaintiffs’ counsel present (sic).” Compl. at ¶¶ 13-14. Plaintiffs allegedly “later learned that

this questioning was used against them in order to issue the discipline on September 18,

2008.” Compl. at ¶ 15. Plaintiffs claim “Defendants[’] selection of Plaintiffs for arbitrary

discipline was intentional and based upon Plaintiffs’ race (Caucasian).” Compl. at ¶ 16.

       Moreover, Plaintiffs asserted “Defendant City of Memphis, has consistently provided

a racially hostile working environment and has not taken remedial actions to resolve the

racially hostile environment other than to discipline Plaintiffs for false allegations.” Compl.

at ¶ 17. Plaintiffs claim “Defendants, have engaged in a systemic policy of unlawful

practices of discrimination by creating a pervasive hostile environment based upon race,

color, or national origin with respect to arbitrary discipline, grading practices and in the

awarding of raises and promotions to the Plaintiffs and others similarly situated in violation

of the Tennessee Human Rights Act.” Compl. at ¶ 41. Plaintiffs also claim “Defendants

have engaged in conduct designed to deny Plaintiffs and other similarly situated (sic)

benefits to which they are entitled in violation of their rights under the 14th Amendment of

the United States Constitution to due process and equal protection under the law.” Compl.

at ¶ 43. Finally, Plaintiffs asserted “Defendants retaliated against the Plaintiff[s] and others

similarly situated by creating a pervasive hostile environment in retaliation for the Plaintiff’s




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No. 11-6146, Thompson, et al. v. City of Memphis, et al.


(sic) complaints regarding the arbitrary discipline and denial of workplace opportunities

based upon race” in violation of the THRA and 42 U.S.C. § 1983. Compl. at ¶ 46.

       In their proposed individual amended complaints for each plaintiff, Plaintiffs alleged

discrimination with respect to the terms and conditions of employment due to the plaintiff’s

race (Caucasian). Plaintiffs collectively pled that they “[have] been subjected to unfair and

unequal treatment between [them] and members of other races.” Proposed Amd. Compls.

at ¶ 9. Similarly, Plaintiffs alleged that they were “arbitrarily disciplined for alleged

discrimination and misconduct.” Thompson Proposed Amd. Compl. at ¶ 12; Barnes

Proposed Amd. Compl. at ¶ 12; Alfonso Proposed Amd. Compl. at ¶ 10; McCommon

Proposed Amd. Compl. at ¶ 10. Plaintiffs alleged that they were denied pay raises that

were given to other similarly situated, non-Caucasian employees. Thompson Proposed

Amd. Compl. at ¶¶ 10-11; Barnes Proposed Amd. Compl. at ¶¶ 10-11; McCommon

Proposed Amd. Compl. at ¶¶ 19-20.

       Plaintiffs also claimed that the City’s investigation of the Plaintiffs was not “fair and

unbiased” because the City “failed to include all employees including those who had been

transferred to other departments during the period covered in the allegations against the

Plaintiff[s].” Thompson Proposed Amd. Compl. at ¶¶ 14-15; Barnes Proposed Amd. Compl.

at ¶¶ 15-16; Alfonso Proposed Amd. Compl. at ¶¶ 11-12; McCommon Proposed Amd.

Compl. at ¶¶ 11-12. The proposed individual amended complaints also added new

background facts regarding how, after Plaintiffs were suspended by the City, they appealed

their suspension to the Civil Service Commission which ordered reinstatement, the state


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No. 11-6146, Thompson, et al. v. City of Memphis, et al.


court denied the City’s appeal for relief from the Civil Service decision, and Plaintiffs were

reinstated.

B.     Procedural History

       Plaintiffs filed a putative class action complaint1 against the City, Essex (the City’s

former Director of Human Resources), and Dwan Gilliam (the City’s Director of Public

Works) in the Chancery Court of Shelby County, Tennessee (R. 1-1). Defendants then

removed the case to the U.S. District Court for the Western District of Tennessee based

on federal question jurisdiction (R. 1). The complaint alleged (1) discrimination under the

THRA; (2) discrimination under 42 U.S.C. § 1983, claiming a violation of their Fourteenth

Amendment due process and equal protection rights; (3) retaliation under the THRA; and

(4) retaliation under § 1983.

       The case was set for a scheduling conference. Prior to the conference, counsel for

the parties agreed to a schedule that was approved by the district court. The trial court

entered a scheduling order (R. 7) that adopted February 17, 2010 as the date for amending

the pleadings.

       Essex and Gilliam filed separate motions to dismiss. R. 22 and 31. A hearing was

held before the district judge on June 22, 2010. On June 29, 2010 an order dismissing




       1
       On November 10, 2010, the district court granted the City’s unopposed motion
to dismiss Plaintiffs’ class action claims. See Order (R. 37).

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No. 11-6146, Thompson, et al. v. City of Memphis, et al.


Essex and Gilliam was entered by the trial court. R. 34.2 With regard to Essex, the district

court stated:

       “[D]iscrimination is not a plausible conclusion”of Plaintiffs’ factual allegations.
       [Ashcroft v. Iqbal , 556 U.S. 662, 682 (2009)]. Nor is retaliation. Accordingly,
       Plaintiffs have not demonstrated entitlement to relief under the THRA or
       Section 1983. Additionally, . . . Plaintiffs have neglected to allege sufficient
       facts to impose individual liability on Defendant Essex under the THRA or
       Section 1983.

R. 34 at 5-6. In the alternative, the trial court found Essex was entitled to qualified

immunity for Plaintiffs’ discrimination claim under § 1983. R. 34 at 10.

       In the June 29, 2010 order, the trial court also denied Plaintiffs’ request to amend

their complaint3 for three reasons. First, Plaintiffs had not properly moved to amend the

complaint because the request was contained within their motion response and not filed

separately as an appropriately supported motion. Second, the request was untimely.

Third, the proposed amendments would be futile. R. 34 at 11-13.

       On February 18, 2011, the City filed a motion to dismiss (R. 42). In response to the

motion, Plaintiffs requested that the district court sever Plaintiffs’ cases and that they be

allowed to file individual complaints. R. 45. This was, in effect, a request that Plaintiffs be

allowed to file severed amended complaints. On April 7, 2011, the district court entered

an order that provided: “A facial examination of Plaintiffs’ complaint clearly shows that


       2
       Plaintiffs have not appealed the district court’s decision dismissing their claims
against Gilliam. Appellants Br. at 13.
       3
        The request was set forth in Plaintiffs’ response to Essex’s motion to dismiss (R.
26 at 4 and 5). According to the district court, Plaintiffs’ counsel also made a similar
request during oral argument. R. 34 at 11.

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No. 11-6146, Thompson, et al. v. City of Memphis, et al.


Plaintiffs set forth only a series of conclusory allegations that fall short of the Twombly

requirement.” R. 47 at 1. The trial court held the City’s motion in abeyance, and allowed

Plaintiffs 20 days to file a motion to amend and sever accompanied by complaints meeting

the Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) pleading standards. R. 47

at 2.

        On April 27, 2011, Plaintiffs filed a motion to sever parties (R. 48). Plaintiffs

attached copies of their proposed individual complaints. On June 6, 2011, the district court

entered an order (R. 50) denying the motion without prejudice because the proposed

individual complaints added new claims beyond the claims raised in the original complaint.

The order allowed Plaintiffs 10 days to refile their motion to sever with individual complaints

that complied with the April 7, 2011 order. R. 50 at 3.

        On June 16, 2011, Plaintiffs filed a second motion to sever parties to allege

individual claims of discrimination so they could pursue their claims separately. R. 51.

Plaintiffs again attached a copy of their proposed individual amended complaints for each

plaintiff. R. 51-2, 51-3, 51-4, and 51-5.4 A hearing was held before a magistrate judge.

On July 22, 2011, the magistrate judge entered an order denying Plaintiffs’ second motion

to sever parties and a report recommending that the City’s motion to dismiss be granted.

R. 55. The order stated:

        The court finds that while the four proposed Amended Complaints add more
        details about the factual background of the case, the Complaints still do not
        contain sufficient factual allegations to plausibly support claims of racial


        4
            Whether the individual plaintiffs should be severed is not at issue.

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No. 11-6146, Thompson, et al. v. City of Memphis, et al.


       discrimination and retaliation. . . [T]he allegations in the proposed Severed
       Amended Complaints are not materially different from the allegations
       contained in the original Complaint that the district judge opined did not meet
       the Twombly standard. Any additional facts contained in the Severed
       Amended Complaints are, at best, conclusory.

R. 55 at 9-10.5 The magistrate judge found that the motion to sever was really a motion

to amend by restating conclusory allegations which fall short of the Twombly pleading

standards. R. 55 at 3-4; 11. He also found that “Plaintiffs’ amendment would be futile

because the proposed Amended Complaints fail to state a claim under Fed. R. Civ. P.

12(b)(6).” R. 55 at 4.

       Over Plaintiffs’ objection, the district court adopted the magistrate judge’s report and

recommendation (R. 57) and dismissed the remainder of the case (R. 58). The trial court

found that “severance would be a nullity and the complaint would be deficient as to viable

claims under applicable law.” R. 57 at 1. Additionally, the trial court found that “Plaintiffs’

complaint is merely a restatement of Plaintiffs’ conclusory allegations coupled with a

formulaic recitation of the statutory elements [,which] is insufficient to meet the threshold

Rule 12(b)6) standard.” R. 57 at 1. Plaintiffs’ timely appeal followed.

                                       II. DISCUSSION

A.     Standards of Review

       We review a district court’s grant of a motion to dismiss de novo. Pedreira v. Ky.

Baptist Homes for Children, Inc., 579 F.3d 722, 727 (6th Cir. 2009). We must construe the


       5
        According to the district court, Plaintiffs’ counsel conceded at the hearing that
the allegations in the proposed individual amended complaints are essentially the same
as the allegations contained in the original complaint. R. 55 at 10.

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No. 11-6146, Thompson, et al. v. City of Memphis, et al.


complaint in the light most favorable to the plaintiff and accept all allegations as true. See

Harbin–Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005). “Specific facts are not necessary;

the statement need only give the defendant fair notice of what the . . . claim is and the

grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal

quotation marks omitted) (quoting Twombly, 550 U.S. at 555).             However, “[f]actual

allegations must be enough to raise a right to relief above the speculative level” and to

“state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 555, 570.

       Generally, we review the denial of a motion to amend under the abuse of discretion

standard, “unless the motion was denied because the amended pleading would not

withstand a motion to dismiss, in which case the standard of review is de novo.” Total

Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 437

(6th Cir. 2008).

B.     The City’s Motion to Dismiss

       Having carefully considered the record, as well as Plaintiffs’ arguments, we conclude

that Plaintiffs have advanced no arguments on appeal that would merit reversing the

district court’s dismissal of the complaint against the City.6

       A cause of action fails to state a claim upon which relief may be granted when it

lacks “plausibility in th[e] complaint.” Twombly, 550 U.S. at 564. A pleading must contain

a “short and plain statement of the claim showing that the pleader is entitled to relief.”



       6
       The record on appeal contains no transcript of the hearing held before the
magistrate judge. See 28 U.S.C. § 753(f); Fed. R. App. P. 10(b).

                                               9
No. 11-6146, Thompson, et al. v. City of Memphis, et al.


Iqbal, 556 U.S. at 677-78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). Plaintiff is not required

to include detailed factual allegations, but must provide more than “an unadorned,

the-defendant-unlawfully-harmed-me accusation.” Id. at 678. A pleading that offers “labels

and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.”

Twombly, 550 U.S. at 555. Nor does a complaint suffice if it tenders “naked assertion[s]”

devoid of “further factual enhancement.” Id. at 557. It must contain sufficient factual

matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id. at 570.

“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.”

Iqbal, 556 U.S. at 678. The plausibility standard is not akin to a “probability requirement,”

but it asks for more than a sheer possibility that a defendant has acted unlawfully.

Twombly, 550 U.S. at 556. Where a complaint pleads facts that are “merely consistent

with” a defendant’s liability, it “stops short of the line between possibility and plausibility of

‘entitlement to relief.’” Id. at 557 (brackets omitted).

       Plaintiffs’ complaint does not satisfy these standards.

C.     Essex’s Motion to Dismiss

       Plaintiffs summarily argue that the district court should have allowed leave to amend

to consider additional facts outside the complaint with regard to the THRA claims against

Essex. Appellants Br. at 13. A careful review of Plaintiffs’ brief on appeal, however,




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No. 11-6146, Thompson, et al. v. City of Memphis, et al.


reveals that they have failed to identify why they are entitled to relief against Essex under

the THRA and 42 U.S.C. § 1983.7

       Upon our own de novo review, we find that Plaintiffs have failed to state a claim

against Essex upon which relief can be granted. The district court stated that Plaintiffs’

counsel admitted at oral argument that Essex’s alleged actions were taken while acting in

her capacity as Director of Human Resources. R. 34 at 7 and 8.8 Therefore, Essex cannot

be individually liable under the THRA under an accomplice liability theory. Welles v.

Chattanooga Police Dep’t., No. 1:07-CV-71, 2007 WL 3120823, at *4 (E.D. Tenn. Oct. 23,

2007) (finding that there is no individual liability under the THRA for the alleged actions of

a former chief of police where there is no indication his actions were outside the scope of

his employment as chief); Rhea v. Dollar Tree Stores, Inc., 395 F. Supp. 2d 696, 706 (W.D.

Tenn. 2005) (granting motion to dismiss claim for individual liability under THRA against

regional manager where employees did not allege that regional manager either aided,

abetted, incited, compelled or commanded an employer to engage in a discriminatory act

or practice).


       7
        Plaintiffs have waived appeal of the decision of the district court with regard to
the § 1983 claims against Essex because they have failed to raise arguments in
opposition on appeal. See Radvansky v. City of Olmsted Falls, 395 F.3d 291, 311 (6th
Cir. 2005) (‘‘[A party’s] failure to raise an argument in his appellate brief constitutes a
waiver of the argument on appeal.’’). The same can be said for the claim against the
City for discrimination under 42 U.S.C. § 1983, claiming a violation of Plaintiffs’
Fourteenth Amendment equal protection rights.
       8
        However, there is no transcript in the record on appeal of the hearing
culminating in the June 29, 2010 court order granting Essex’s motion to dismiss in her
individual capacity.

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No. 11-6146, Thompson, et al. v. City of Memphis, et al.


D.     Plaintiffs’ Requests for Leave to Amend and Second Motion to Sever Parties

       Plaintiffs have not established that the district court should have granted them leave

to amend the complaint. Plaintiffs did not properly seek leave to amend to consider

additional facts outside the complaint with regard to the THRA claims against Essex. We

disfavor such bare requests and they are not a substitute for a properly filed motion for

leave to file an amended complaint. Begala v. PNC Bank, Ohio, N.A., 214 F.3d 776, 784

(6th Cir. 2000); see also Louisiana Sch. Emp. Ret. Sys. v. Ernst & Young, LLP, 622 F.3d

471, 486 (6th Cir. 2010).

       The request to amend the complaint with regard to the THRA claims against Essex

was also untimely. The district court entered a scheduling order (R. 7) that adopted

February 17, 2010 as the date for amending the pleadings. Plaintiffs’ request regarding

Essex was not made until April 19, 2010, at the earliest. According to Fed. R. Civ. P.

16(b)(4), where the Court has entered a scheduling order that limits the time to amend the

pleadings, the schedule “may be modified only for good cause and with the judge’s

consent.” See Commerce Benefits Grp., Inc. v. McKesson Corp., 326 F. App’x. 369, 376

(6th Cir. 2009) (holding the district court did not abuse its discretion in denying motions to

amend).

       Finally, the proposed amendments would be futile.           Plaintiffs stated in their

Response to Essex’s Motion to Dismiss (R. 26) that they wished to amend the complaint

to include allegations that “Essex encouraged the City of Memphis to terminated (sic) their

employment or discipline Plaintiffs and/or prevent City of Memphis from taking action to


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No. 11-6146, Thompson, et al. v. City of Memphis, et al.


prevent discrimination in the workplace.” R. 26 at 4. We agree with the district court that

these allegations are merely conclusions not supported by well-pled factual allegations and

they would not withstand a Rule 12(b)(6) motion to dismiss. See Rose v. Hartford

Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000) (holding that a proposed

amendment is futile if the complaint, as amended, would not withstand a motion to dismiss

for failure to state a claim). The district court thus did not err in denying Plaintiffs' request

to amend the complaint with regard to the THRA claims against Essex.

       The district court also did not err in denying Plaintiffs' second motion to sever parties

with regard to the claims against the City. Contrary to Plaintiffs’ argument (Appellants Br.

at 10), the allegations of Plaintiffs’ proposed severed amended complaints fail to meet the

pleading requirements of Twombly. “When a proposed amended complaint does not state

a cause of action, a motion to amend is properly denied.” Matthews v. Jones, 35 F.3d

1046, 1050 (6th Cir. 1994) (citing Neighborhood Dev. Corp. v. Advisory Council on Historic

Preservation, 632 F.2d 21, 23 (6th Cir. 1980)). Therefore, amendment of the complaint

would have been futile.

                                      III. CONCLUSION

       For these reasons, we affirm the judgment of the district court.




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