Tirone v. Am. Lebanese Syrian Associated Charities, Inc.

THOMAS G. TIRONE, Plaintiff, v. AMERICAN LEBANESE SYRIAN ASSOCIATED CHARITIES, INC., Defendant.

No. 20-cv-02807-SHM

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

March 30, 2021

ORDER DENYING ALSAC'S MOTION TO STRIKE AND GRANTING IN PART AND DENYING IN PART TIRONE'S MOTION TO DISMISS

Before the Court is Defendant American Lebanese Syrian Associated Charities, Inc.'s ("ALSAC") January 22, 2020 Motion to Strike. (D.E. No. 18.) Plaintiff Thomas G. Tirone ("Tirone") responded on March 6, 2020. (D.E. No. 26.) ALSAC replied on March 20, 2020. (D.E. No. 30.) Also before the Court is Tirone's March 6, 2020 Motion to Dismiss ALSAC's Counterclaims For Failure to State a Claim and to Dismiss ALSAC's Counterclaims for Lack of Jurisdiction or in the Alternative for a More Definite Statement (the "Motion to Dismiss".) (D.E. No. 25.) ALSAC responded on April 3, 2020. (D.E. No. 34.) Tirone replied on April 17, 2020.) (D.E. No. 35.) For the following reasons, the Motion to Strike is DENIED, and the Motion to Dismiss is GRANTED in part and DENIED in part.

I. Background

On November 21, 2019, Tirone filed his Complaint in the United States District Court for the Southern District of Ohio. (D.E. No. 1.) Tirone brings five claims. (Id. at ¶¶ 108-160.) The first is a claim of race discrimination and retaliation under 42 U.S.C. § 1981 because ALSAC terminated Tirone's employment based on his race and in retaliation for his protected reporting. (Id. at ¶¶ 108-117.) The second is a claim of race discrimination and retaliation under Title VII, 42 U.S.C. § 20000e-5(f), because ALSAC terminated Tirone based on his race and in retaliation for his protected reporting. (Id. at ¶¶ 118-127.) The third is a claim of retaliation under the Americans with Disabilities Act (the "ADA"), 42 U.S.C. §§ 12117, et seq., for disability discrimination and retaliation for protected reporting. (Id. at ¶¶ 128-136.) The fourth is a claim under the Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C. §§ 621, et seq., for age discrimination and retaliation for protected reporting. (Id. at ¶¶ 137-147.) The fifth is a claim under the Family Medical Leave Act (the "FMLA"), 29 U.S.C. §§ 2601, et seq., because ALSAC terminated Tirone based on his failure to perform work while on FMLA leave. (Id. at ¶¶ 148-160.)

ALSAC brings five Counterclaims. (D.E. No. 20, "Counterclaims", ¶¶ 46-76.) The first seeks a declaration that Tirone entered into an enforceable Non-Disclosure Agreement (the"NDA") with ALSAC. (Id. at ¶¶ 46-53.) The second is for breach of the NDA because Tirone disclosed protected information online. (Id. at ¶¶ 54-58.) The third is for defamation because Tirone made false statements about ALSAC's fundraising practices. (Id. at ¶¶ 59-63.) The fourth is for false light invasion of privacy because Tirone made false statements about ALSAC. (Id. at ¶¶ 64-71.) The fifth is for conversion because Tirone converted ALSAC's property. (Id. at ¶¶ 72-76.)

On December 23, 2019, ALSAC filed a Motion to Change Venue. (D.E. No. 8.) On March 6, 2020, Tirone responded in opposition. (D.E. No. 26.) On November 9, 2020, the District Court for the Southern District of Ohio granted ALSAC's Motion and transferred the case to this Court. (D.E. No. 36.)

The following facts are taken from the Complaint and the Counterclaims.

ALSAC is a non-profit corporation that raises funds for St. Jude Children's Research Hospital. (D.E. No. 20, ¶ 10.) ALSAC employed Tirone from April 15, 2013, until May 23, 2017. (D.E. No. 1, ¶ 9, 15.) Tirone was hired as the Senior Director for the Center of Excellence in Analytics (the "COEA"). (Id. at ¶ 15.) In January 2015, he was promoted to Executive Director of the COEA. (Id. at ¶ 22.) Tirone signed the NDA when he began his employment with ALSAC. (Counterclaims, ¶ 13.) "ALSAC's Assets and Proprietary Information policy prohibits the exchangeor transfer of data to non-ALSAC devices or accounts." (Id. at ¶ 15.)

Tirone alleges that he is White, disabled, and 63 years old. (D.E. No. 1, ¶ 11.) He alleges that ALSAC removed, demoted, or fired various managers and replaced them with African Americans. (Id. at ¶¶ 59-60.) He alleges that ALSAC admitted that Tirone was being asked to volunteer for a demotion to make room for an African American employee. (Id. at ¶ 61.) Tirone's immediate supervisor "spent two hours in an afternoon meeting with Tirone trying to convince Tirone to accept a demotion" so that another employee could have Tirone's job. (Id. at ¶ 48.) That employee was African American, younger than Tirone, and not disabled. (Id. at ¶ 19.)

ALSAC alleges that it offered to transfer Tirone to a non-management role within the organization, with no reduction in pay, because ALSAC employees "repeatedly made complaints concerning [Tirone]'s unprofessional and inappropriate conduct" and he had been coached and warned about his issues. (Counterclaims, ¶ 19.) Tirone alleges that in his first performance review he received a "Far Exceeds Expectations" review, and that in his next two he received "Exceeds Expectations" reviews. (D.E. No. 1, ¶¶ 21, 36-42.) On May 10, 2017, Tirone declined to accept a demotion and told ALSAC thathe believed its request was the result of unlawful discrimination. (Id. at ¶ 68.)

On May 17, 2017, at 9:19 AM, Tirone received an email from ALSAC stating that there was no basis for his complaints of discrimination and harassment. (Id. at ¶ 72a.) Around 10:00 AM, Tirone's back was injured "by an x-ray tech." (Id. at ¶ 72b.) Tirone took medication and continued to work. (Id. at ¶ 72c.)

At 1:30 PM, ALSAC summoned Tirone to a meeting and asked him about emails he had sent containing ALSAC's information. (Id. at ¶¶ 72d-72e.) ALSAC asked Tirone to provide a list of all ALSAC documents he had sent to his personal email by 10:00 AM the next day. (Id. at ¶¶ 72g-72h.) Tirone told ALSAC that he was in "severe pain and that it was not fair" to assume he could perform the task overnight. (Id. at ¶ 72i.) Tirone believed that he was singled out for an email audit in retaliation for his complaints about unlawful discrimination. (Id. at ¶ 73.) ALSAC alleges that it had previously warned Tirone not to copy information onto thumb drives, and that its IT department had discovered that Tirone had sent more than 50 emails with attachments of confidential information to his personal email account. (Counterclaims at ¶¶ 22-23.) Tirone admitted he had emailed ALSAC data to his personal email and had worked on ALSAC documents on his personal laptop. (Id. at ¶28.) Tirone said that he could only remember sending himself a few emails with attachments of work documents and that such emails were "infrequent." (Id. at ¶ 29.) Tirone signed a written agreement to return confidential information to ALSAC. (Id. at ¶ 32.)

Tirone used his pre-approved FMLA leave from May 18 through May 21, 2017. (Id. at ¶ 75.) On Monday, May 22, 2017, Tirone returned to work. (Id. at ¶ 78.) He did not provide the requested information or contact ALSAC on Monday or Tuesday to ask for more time to do so. (Counterclaims, ¶ 35-36.) On Tuesday, May 23, 2017, ALSAC terminated Tirone's employment based on the complaints against him and his refusal to return confidential information. (Id. at ¶ 36.)

Tirone and ALSAC engaged in settlement negotiations addressing Tirone's discrimination claim. (D.E. No. 1, ¶¶ 86-96.) The parties dispute what happened next. ALSAC alleges that, after terminating Tirone, it discovered he was disclosing ALSAC's confidential information in violation of the NDA. (Counterclaims, ¶ 37.) ALSAC alleges that it discovered Tirone was making false statements to the public using a website called "truthtopower.re" to damage and defame ALSAC. (Id. at ¶¶ 38-39.) Tirone's website accused ALSAC of operating a scam to enrich itself. (Id. at ¶¶ 40.) ALSAC alleges that "some of the information included in this website is false, some of theinformation is misleading and/or grossly out of context and some of the information was confidential and/or proprietary and/or would only be known by Plaintiff and [a] few individuals." (Id. at ¶ 41.) ALSAC alleges that Tirone made additional statements on social media to harm ALSAC. (Id. at ¶ 43.) ALSAC alleges that Tirone wanted to discourage potential and current donors from donating money to ALSAC. (Id. at ¶ 45.)

Tirone alleges that the Federal Bureau of Investigation (the "FBI") searched his home and confiscated his computers and telephones. (D.E. No. 1, ¶¶ 97-98.) Tirone "learned later that the FBI raided his house because, on November 1, 2017, ALSAC falsely alleged to the FBI that Tirone set up a fake website to divert donor money from ALSAC to Tirone." (Id. at ¶ 99.) Tirone denies that he set up the website. (Id. at ¶ 100.) He alleges that ALSAC had no credible evidence that he did so. (Id.) Tirone alleges that ALSAC "used the to FBI to intimidate, to silence, and to discredit Tirone in retaliation for his threats of pursuing civil litigation." (Id. at ¶ 104.)

II. Jurisdiction and Choice of Law

A. Jurisdiction Over the Claims

The Court has federal question jurisdiction over Tirone's claims. Under 28 U.S.C. § 1331, district courts have original jurisdiction "of all civil actions arising under the Constitution, laws, or treaties of the United States." Tironebrings his claims under the laws of the United States. (D.E. No. 1, ¶¶ 108-160.)

B. Jurisdiction Over the Counterclaims

ALSAC brings five Counterclaims. All are premised on state substantive law. One seeks declaratory judgment under the Declaratory Judgment Act, 28 U.S.C. §§ 2201, et seq. The Declaratory Judgment Act does not provide the Court with subject-matter jurisdiction. Heydon v. MediaOne of Se. Michigan, Inc., 327 F.3d 466, 470 (6th Cir. 2003). The Court must have independent jurisdiction to grant relief under the Act. Id.

ALSAC asserts that the Court has supplemental jurisdiction under 28 U.S.C. 1367. The Sixth Circuit formerly relied on the distinction...