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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TENNESSEE
`EASTERN DIVISION
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`SYMANTHA REED, CHARLES GOETZ,
`JAMES SPAULDING, GARY CRAWFORD
`WENDY WHARTON, and MICHELLE
`WHITEHEAD,
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`v.
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`TYSON FOODS, INC.,
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`Plaintiffs,
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`Defendant.
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`) CIVIL ACTION NO. 1:21-cv-01155-STA-jay
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`MEMORANDUM IN SUPPORT OF DEFENDANT’S RENEWED MOTION TO
`DISMISS PLAINTIFFS’ AMENDED VERIFIED COMPLAINT
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`Defendant Tyson Foods, Inc. (“Tyson”) submits this Memorandum of Law in Support of
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`Defendant’s Renewed Motion to Dismiss Plaintiffs’ Amended Verified Complaint pursuant to
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`Rule 12(b)(6) of the Federal Rules of Civil Procedure (“FRCP”) and Local Rules 7.2 and 12.1.
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`INTRODUCTION
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`Plaintiffs are current and former Tyson team members who claim Tyson violated various
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`state and federal laws by requiring its workforce to receive the Covid 19 vaccination as a condition
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`of continued employment. On December 9, 2021, Defendant moved to dismiss Plaintiffs’
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`Amended Verified Complaint (D.E. 27), which the Court granted in part and denied in part on
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`June 14, 2022 (“Order”) (D.E. 38). The Court denied Defendant’s Motion to Dismiss without
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`prejudice as to count four (Tennessee Human Rights Act), Tenn. Code Ann. § 4–21–101 et seq.;
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`count seven, (Tennessee Disability Act), Tenn. Code Ann. § 8–50–103 et seq.; and count eleven,
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`Tenn. Code Ann. § 14-1-101 et seq. Id. at pp. 19 fn. 11, 26.
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`Defendant renews its motion to dismiss counts four, seven, and eleven. Plaintiffs have not
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`alleged a cause of action under the Tennessee Human Rights Act (“THRA”) for religious
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`discrimination because they admit Tyson treated them the same as other employees, and there is
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`no duty to accommodate their religious beliefs. Plaintiffs similarly have failed to allege a cause
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`of action under the Tennessee Disability Act (“TDA”) because Tyson did not discriminate against
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`them because of an actual or perceived disability, and there is no duty to accommodate an
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`employee’s disability. Plaintiffs’ claim under Tenn. Code Ann. § 14-1-101 fails because it does
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`not apply to Tyson.
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`Additionally, all three of Plaintiffs’ state law counts are preempted by President Trump’s
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`April 28, 2020, Executive Order, the Federal Meat Inspection Act (“FMIA”), and the Poultry
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`Products Inspection Act (“PPIA”).
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`For the reasons stated above and more fully set forth below, the Court should dismiss with
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`prejudice the three remaining counts and Plaintiffs’ Amended Complaint in its entirety.
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`I. Legal Standard Governing Motions to Dismiss.
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`LEGAL ANALYSIS
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`Rule 12(b)(6) provides for dismissal of a complaint based on the plaintiff’s “failure to state
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`a claim upon which relief can be granted.” FRCP 12(b)(6). When considering a Rule 12(b)(6)
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`motion, the Court must treat well-pleaded allegations of the pleadings as true and construe
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`allegations in the light most favorable to the non-moving party. Scheuer v. Rhodes, 416 U.S. 232,
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`236 (1974); Saylor v. Parker Seal Co., 975 F.2d 252, 254 (6th Cir. 1992). However, legal
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`conclusions or unwarranted factual inferences need not be treated as true. Morgan v. Church’s
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`Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). “To avoid dismissal under Rule 12(b)(6), a
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`complaint must contain either direct or inferential allegations with respect to all material elements
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`of the claim.” Wittstock v. Mark A. Van Sile, Inc., 330 F.3d 899, 902 (6th Cir. 2003). The factual
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`allegations contained in the complaint must be enough to make a right to relief more than
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`speculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also League of United
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`Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (citing Twombly, 550 U.S. at
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`555 n.3, 558) (“The factual allegations, assumed to be true, must do more than create speculation
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`or suspicion of a legally cognizable cause of action; they must show entitlement to relief.”).
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`Rules 8(a) and 12(b)(6) work together. Rule 8(a) requires that a complaint contain “a short
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`and plain statement of the claim showing that the pleader is entitled to relief.” FRCP 8(a). Although
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`this standard does not require “detailed factual allegations,” it does require more than “labels and
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`conclusions” or “a formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556
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`U.S. 662, 681 (2009); Twombly, 550 U.S. at 555; see also Reilly v. Vadlamudi, 680 F.3d 617, 622
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`(6th Cir. 2012) (quoting Twombly, 550 U.S. at 555). This requires the plaintiff to plead more than
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`“a formulaic recitation” of the elements of their causes of action, more than simple legal
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`conclusions which are not entitled to an assumption of truth, and more than the possibility the
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`defendant is liable. Iqbal, 556 U.S. at 678–80. Rather, a plaintiff’s complaint must contain well-
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`pleaded factual allegations that move his claim “across the line from conceivable to plausible.” Id.
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`(quoting Twombly, 550 U.S. at 570).
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`All of Plaintiffs’ counts fall short of these standards for the reasons set forth below.
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`Plaintiffs’ factual assertions do not demonstrate they are entitled to relief against Defendant. The
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`Court should dismiss Plaintiffs’ Amended Complaint in its entirety.
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`II.
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`Plaintiffs Fail to State a Claim Under the THRA Because Defendant Has Not
`Discriminated Against Them Because of Their Religious Beliefs and Defendant Has
`No Duty to Accommodate Their Religious Beliefs (Count Four).
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`A. Plaintiffs were treated the same as other employees.
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` Under the THRA it is a “discriminatory practice for an employer to:”
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`(1) Fail or refuse to hire or discharge any person or otherwise to discriminate against
`an individual with respect to compensation, terms, conditions or privileges of
`employment because of such individual's race, creed, color, religion, sex, age or
`national origin; or
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`(2) Limit, segregate or classify an employee or applicants for employment in any way
`that would deprive or tend to deprive an individual of employment opportunities or
`otherwise adversely affect the status of an employee, because of race, creed, color,
`religion, sex, age or national origin.
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`Tenn. Code Ann. §4-21-401(a)(1)&(2).
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` By definition, religious discrimination cannot occur when all employees are treated
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`equally. Id. Cf Phillips v. Interstate Hotels Corporation, 974 S.W.2d 680 (Tenn. 1998)(in public
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`accommodation case under the THRA, Tennessee Supreme Court found no discrimination on the
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`basis of race where “all patrons were affected equally by the music selection policy, as every
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`patron, regardless of race, was subjected to the same music selections.”).
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` Therefore, Plaintiffs’ claims of religious discrimination under the THRA should be
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`dismissed.
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` B. No Duty to Accommodate.
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`The THRA does not require an employer to accommodate an employee’s religious beliefs.
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`Unlike Title VII, which imposes an express accommodation requirement within its definition of
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`religion,1 the THRA does not define “religion”, nor does it include any reference to
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`accommodation of religious practices that conflict with an employee’s job functions or an
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`employer’s policy. Tenn. Code Ann. §§ 4-21-101-1004.2
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`Where the language of the THRA differs from Title VII, Tennessee courts must conduct
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`their own analysis on whether to follow federal law when interpreting the THRA. See Booker v.
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`The Boeing Co., 188 S.W.3d 639, 647 (Tenn. 2006) (“[W]e will not apply the reasoning and
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`conclusions of federal civil rights decisions where doing so would conflict with the THRA.”).
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`Courts should also “resist reading words or elements into a statute that do not appear on its face.”
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`Bates v. United States, 522 U.S. 23, 29 (1997). Consequently, although the THRA includes similar
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`protections as Title VII, it does not impose on any employer the duty to accommodate an
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`employee’s religious beliefs and practices.
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`Furthermore, no state or federal court in Tennessee have held that an employer’s alleged
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`failure to accommodate an employee’s religious beliefs and practices under the THRA must be
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`analyzed under the same standards as Title VII. Waverly D. Crenshaw, Jr., and Brian A. Pierce, 1
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`Belmont L. Rev. 1, 9 (2014) (citing Dobbs-Weinstein v. Vanderbilt Univ., 1 F. Supp. 2d 783, 791
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`(M.D. Tenn. 1998), aff'd, 185 F.3d 542 (6th Cir. 1999)). The conclusion that the THRA does not
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`impose a duty to accommodate an employee’s religious beliefs is consistent with the well-
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`established canon of statutory construction that a legislature purposefully chooses its words and
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`1 The term “religion” includes all aspects of religious observance and practice, as well as belief,
`unless an employer demonstrates that it is unable to reasonably accommodate an employee's or
`prospective employee's religious observance or practice without undue hardship on the conduct of
`the employer's business. 42 U.S.C. § 2000e(j).
`2 The THRA not only does not contain an accommodation requirement, but its definition of
`“discriminatory practices” prohibits preferences in treatment based on a protected trait including
`religion: “(4) ‘Discriminatory practices’ means any direct or indirect act or practice of exclusion .
`. . or any other act or practice of differentiation or preference in the treatment of a person or persons
`because of race, creed, color, religion, sex, age or national origin.” Tenn. Code Ann. §4-21-102(4).
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`means different things when it uses different words. Id. Plaintiffs’ count under the THRA fails as
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`a matter of law because there is no duty to accommodate an employee’s religious beliefs.
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`III.
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`Plaintiffs Fail to State a Claim Under the TDA (Count Seven) Because Defendant Did
`Not Discriminate Against Them Because of a Disability and There is No Duty to
`Accommodate under the TDA.
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`Plaintiffs claim, among other things, that Tyson violated the TDA by discriminating against
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`them based on a disability and by failing to accommodate their alleged disabilities. Doc. 21 ¶¶
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`210-214; 222-228. Plaintiffs, however, have not plead any facts that Defendant discriminated
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`against them based on a disability. Moreover, the TDA does not require Tyson to reasonably
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`accommodate Plaintiffs.
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`A.
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`Plaintiffs were not discriminated against because of a disability.
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`An individual alleging discrimination under the TDA must demonstrate: (1) that they were
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`qualified for the position; (2) that they were disabled; and (3) that they suffered an adverse
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`employment action because of that disability. Cardenas-Meade v. Pfizer, Inc., 510 F. Appx 367,
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`369 (6th Cir. 2013). Here, aside from generalized allegations of discrimination, Plaintiffs’
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`Amended Complaint fails to set forth any factual assertions to support their discrimination claim,
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`let alone that they were treated differently than any other Tyson employee. Plaintiffs admit that
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`Tyson’s Policy required that all team members be fully vaccinated. Doc. 21, ¶3. Consequently,
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`Plaintiffs have not asserted any facts that Tyson treated them differently under the Policy because
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`of an actual or perceived disability. As a result, Plaintiffs have failed to state a claim under the
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`TDA.
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`B. The TDA does not require Tyson to reasonably accommodate Plaintiff Reed and
`Whitehead.
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`Plaintiffs assert that they sought accommodation from Tyson’s Policy but Tyson “refused
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`to engage in the interactive process” and failed to “provide medical accommodations.” Doc. 21
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`¶¶211, 214, 227. The TDA, however, does not require employers to reasonably accommodate
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`employees’ disabilities. Russo v. Moore Ingram Johnson & Steele, LLP, Case No. 3:21-cv-00535,
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`2022 WL 1787102 at *17 (M.D. Tenn. 2022); Jones v. Sharp Elecs. Corp., No. W2013-01817-
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`COA-R3CV, 2014 WL 806131, at *3 (Tenn. Ct. App. Feb. 28, 2014); Sasser v. ABF Freight Sys.
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`Inc., 219 F. Supp. 2d 701, 708 (M.D. Tenn. 2016). Consequently, Plaintiffs have failed to state a
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`claim under the TDA as a matter of law. Therefore, the Court should dismiss Count Seven.
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`IV.
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`Plaintiffs Fail to State a Claim Under Tenn. Code Ann. §14-1-101 et al. Because Title
`14 Is Inapplicable to Tyson (Count Eleven).
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`A. Tyson Is Not Prohibited from Imposing a Vaccine Policy or Mandate.
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` Title 14 prohibits a “Government Entity” from imposing a vaccine mandate.3 See Tenn.
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`Code Ann. § 14-2-101. Tyson falls squarely within Title 14’s definition of a Private Business:
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`“(15) ‘Private business’ means a corporation, . . . or any other legal or non-governmental entity
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`whether formed as a for-profit or not-for-profit entity engaged in business or commerce in this
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`state . . ..” Tenn. Code Ann. § 14-1-101(15). Title 14 does not prohibit a private business such as
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`Tyson from imposing its vaccine policy. Consequently, the Court should dismiss Count Eleven for
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`failure to state a claim4.
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`3 In the Court’s June 14, 2022 Order, the Court rejected Plaintiffs’ assertion that Defendant is a
`government actor and dismissed Plaintiffs’ counts that require state action (D.E. 38 at p.
`11)(“Because Plaintiffs have failed to show that Defendant’s actions in requiring employees to
`be vaccinated is equivalent to government or state action, the claims requiring state action must
`be dismissed”).
`4 Tyson lifted its vaccine requirement on October 31, 2022.
`https://www.reuters.com/business/healthcare-pharmaceuticals/tyson-foods-ends-covid-19-
`vaccine-mandate-employees-2022-11-16/
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`B. The Court Should Dismiss Plaintiffs’ Claim Under Title 14 Because the Alleged
`Violations Occurred Before Title 14’s Enactment and Effective Date.
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`Plaintiffs filed their original Complaint on October 7, 2021. Doc. 1, Ex. 1. Plaintiffs allege
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`that Tyson imposed a “vaccine mandate on August 3, 2021, and that unvaccinated employees were
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`placed on unpaid leave if they requested an exemption as of November 1, 2021. Doc. 21, ¶¶ 3-4.
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`The complained of actions occurred before November 12, 2021, the effective date of Title 14. See
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`Tenn. Code Ann. § 14-1-101(2021 Pub. Acts (3rd Ex. Sess.), c. 6, § 1, eff. Nov. 12, 2021). In Nutt
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`v. Champion International Corporation, 980 S.W.2d 365, 368 (Tenn. 1998), the Tennessee
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`Supreme Court stated that new laws are applied prospectively unless the legislature clearly states
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`otherwise:
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`The Tennessee Constitution states, “That no retrospective law, or law
`impairing the obligations of contracts, shall be made.” Tenn. Const. art. 1, §
`20. Statutes are presumed to operate prospectively unless the legislature
`clearly indicates otherwise. Shell v. State, 893 S.W.2d 416, 419 (Tenn.
`1995); Kee v. Shelter Ins., 852 S.W.2d 226, 228 (Tenn. 1993); State v.
`Defriece, 937 S.W.2d 954, 957 (Tenn.Ct.App.1996), per. app. denied (Tenn.
`1997).
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`Id. The only provision of Title 14 the General Assembly made retroactive is Tenn. Code Ann. §14-
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`3-101(c). It states “[t]his section entitles an otherwise eligible claimant to a retroactive payment
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`of unemployment benefits if the claimant was denied benefits on grounds that the claimant's
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`separation from employment for failing or refusing to receive a COVID-19 vaccine was
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`insufficient for benefits.” (emphasis added). The other provisions of Title 14, including the
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`provisions Plaintiffs cite in Count Eleven, apply only prospectively and thus do not provide
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`Plaintiffs with a cause of action for an alleged violation of Title 14.5 Therefore, the Court should
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`dismiss Count Eleven for failure to state a claim.
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`V.
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`Plaintiffs’ State Claims are Preempted by President Trump’s April 28, 2020,
`Executive Order, the Federal Meat Inspection Act, and the Poultry Production
`Inspection Act.
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`In addition to the foregoing, Plaintiffs’ state law claims under the TDA, THRA, and Tenn.
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`Code Ann. § 14-1-101(8), are preempted by federal law based on (1) President Trump’s Executive
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`Order, (2) the Federal Meat Inspection Act (“FMIA”), and (3) the Poultry Production Inspection
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`Act (“PPIA”).
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`A. President Trump’s April 28, 2020, Executive Order Preempts Plaintiffs’ Claims.
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`On April 28, 2020, President Trump issued an Executive Order invoking his authority
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`under the Defense Production Act (“DPA”) and instructing meat and poultry processing companies
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`to stay open and continue operations, subject to the Secretary of Agriculture’s supervision. Food
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`Supply Chain Resources, 85 Fed. Reg. at 26,313, 2020 WL 2060381, at *1. The same day, the
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`Secretary of Agriculture declared that guidance from the Centers for Disease Control and
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`Prevention (“CDC”) and the Occupational Safety & Health Administration (“OSHA”) would “help
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`ensure employee safety to reopen plants or to continue to operate those still open” and “ensure
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`that these plants are allowed to operate to produce the meat protein that Americans need.”6 As
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`the pandemic progressed, the CDC and OSHA continued to update their guidance as new
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`5 Title 14 “affect[s] the vested rights or liabilities of the parties” as it “create[d] a new right of
`recovery” [Tenn. Code Ann. § 14-6-103] and cannot be considered as a remedial or procedural
`statute which might be given retroactive effect. Nutt, 980 S.W.2d at 368.
`6Available
`at
`https://www.usda.gov/media/press-releases/2020/04/28/usda-implement-
`presidenttrumps-executive-order-meat-and-poultry (emphasis added).
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`information about COVID-19 came to light, including guidance on employee vaccination.7 On
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`May 18, 2020, the Food and Drug Administration and the Department of Agriculture (“USDA”)
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`entered a Memorandum of Understanding setting their respective roles in using the DPA to
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`regulate food producers during the COVID-19 pandemic, which reiterated that “actions by States
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`or localities could lead to the closure of food resource facilities;” such closures “could threaten the
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`continued functioning of the national food supply chain, undermining critical infrastructure during
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`the national emergency;” and the USDA retained “exclusive delegated authority” under the DPA
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`to issue orders regarding domestic food producers.8
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`The Executive Order, implemented by the USDA, stated that Tyson should continue
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`operating its processing facilities consistent with CDC and OSHA guidance. That Order, issued
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`pursuant to the President’s powers under the DPA, preempts any attempt by the states to strike a
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`different policy balance between securing the national food supply and stemming the spread of
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`COVID-19. Indeed, as this Court concluded, “[t]he Court agrees with Defendant that [the Trump
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`Executive Order and Secretary of Agriculture] directives, issued after the President invoked the
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`7 See, e.g., CDC, Meat and Poultry Processing Workers and Employers: Interim Guidance from
`CDC and the Occupational Safety and Health Administration (OSHA). Available at
`https://stacks.cdc.gov/view/cdc/90395. The CDC COVID-19 Workplace Guidance states that
`vaccination keeps the workforce healthy by preventing employees from getting COVID-19,
`reduces absences due to illness, improves productivity and improves morale. The CDC also states
`that vaccination is the best way to maximize protection from the Delta variant, illness,
`hospitalization,
`and
`death. Available
`at
`https://www.cdc.gov/coronavirus/2019-
`ncov/vaccines/recommendations/essentialworker/workplace-vaccination-program.html. OSHA’s
`Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace stated that
`“vaccination is the key element in a multi-layered approach to protect workers,” and that vaccines
`authorized by the U.S. Food and Drug Administration are highly effective at protecting vaccinated
`people against symptomatic and severe COVID-19 illness and death. According to the CDC, a
`growing body of evidence suggests that fully vaccinated people are less likely to have symptomatic
`infection
`or
`transmit
`the
`virus
`to
`others.”
`Available
`at
`https://www.osha.gov/coronavirus/safework.
`8 Available at https://www.usda.gov/sites/default/files/documents/mou-between-fda-usdadpa.pdf
`(emphasis added).
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`DPA, preempt any attempt to challenge the policy balance between securing the food supply for
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`the country and reducing the spread of COVID-19.” Doc. 20 at 10; Johnson, 2021 WL 5107723,
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`at *6 (denying motion to remand).
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`It is “simply implausible that Congress would have gone to such lengths to empower the
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`President if it had been willing to compromise his effectiveness by deference to every provision
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`of state [law] that might, if enforced, blunt the consequences of discretionary Presidential action.”
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`Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 376 (2000). The President’s decisions
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`“represent[] a national response to a specific problem of ‘truly national’ concern.” Rancho Viejo,
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`LLC v. Norton, 323 F.3d 1062, 1078-79 (D.C. Cir. 2003). Because “the purpose of the [DPA]
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`cannot otherwise be accomplished” while allowing states to implement their own, potentially
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`inconsistent policy decisions for meat and poultry processor operations during the COVID-19
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`pandemic, “the state law must yield.” See Savage v. Jones, 225 U.S. 501, 533 (1912).
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`B. The FMIA Preempts Plaintiffs’ Claims.
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`The FMIA expressly preempts any attempt by the states to impose regulations that are “in
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`addition to, or different than” those prescribed under the Act:
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`Requirements within the scope of this [Act] with respect to premises, facilities and
`operations of any establishment at which inspection is provided under subchapter
`I of this chapter, which are in addition to, or different than those made under [the
`Act] may not be imposed by any State. . . .
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`21 U.S.C. § 678 (emphasis added). This provision “sweeps widely” and “prevents a State from
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`imposing any additional or different—even if non-conflicting—requirements that fall within the
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`scope of the Act and concern a slaughterhouse’s facilities or operations.” Nat’l Meat Ass’n v.
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`Harris, 565 U.S. 452, 459-60 (2012).
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`Significantly, whether a requirement falls “within the scope of” the FMIA—and is
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`therefore preempted—does not depend on whether the USDA has adopted or rejected the
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`requirement. That is “irrelevant,” the Supreme Court has noted, “because the FMIA’s preemption
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`clause covers not just conflicting but also different or additional state requirements.” Harris, 565
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`U.S. at 461. Instead, the question is whether the USDA could have adopted the requirement: if the
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`USDA “could issue regulations under the FMIA . . . mandating” the requirement at issue, then the
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`state’s requirement is preempted. Id. at 466. In this case, not only could the USDA “issue
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`regulations,” it has in fact already issued regulations addressing “infectious disease” (9 C.F.R. §
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`416.5(c)) and personal protective equipment (9 C.F.R. § 416.2(b) and 9 C.F.R § 416.5(b)) within
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`meat processing facilities. The FSIS has specifically issued regulations under the FMIA pertaining
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`to “[e]mployee hygiene” and “disease control,” requiring that any employee who “has or appears
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`to have an infectious disease ... or any other abnormal source of microbial contamination” be
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`excluded from facility operations. 9 C.F.R. § 416.5(c). The USDA’s regulation of “sanitary
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`conditions” (21 U.S.C. § 608) applies to individuals working at meat-processing facilities, not just
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`the animals they process. Its preemptive scope applies broadly to state laws governing the
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`“premises, facilities and operations” of meat-processing companies. 21 U.S.C. § 678.
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`Preemption applies wherever Plaintiff seeks to impose, as a matter of state law, different
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`requirements for meat-processing employees than those adopted by the USDA. In Wazelle v. Tyson
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`Foods, Inc., the Court stated, “workplace conditions and procedures related to disease prevention
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`implicate food safety, which could bring Plaintiffs’ claims under the ambit of the FMIA,” 2021
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`WL 2637335, at *3 (N.D. Tex. June 25, 2021), vacated and remanded on other grounds, 2022 WL
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`4990424 (5th Cir. Oct. 03, 2022). The FMIA expressly preempts any “[r]equirement” that falls
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`“within the scope of” the FMIA, and the FMIA absolutely controls on these matters. The alleged
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`violations of the TDA, THRA, and alleged assault are “in addition to, or different than” the
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`requirements the USDA has imposed regarding infectious disease. Tyson’s Policy certainly relates
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`to workplace conditions and procedures concerning disease prevention and implicates food safety.
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`Thus, Plaintiff’s remaining counts are preempted under the express terms of 21 U.S.C. § 678.
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`C. The PPIA Preempts Plaintiffs’ Claims.
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`The PPIA expressly preempts any attempt by the states to impose regulations that are “in
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`addition to, or different than” those prescribed under the Act:
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`Requirements within the scope of this [Act] with respect to premises, facilities and
`operations of any official establishment which are in addition to, or different than
`those made under this [Act] may not be imposed by any State....
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`21 U.S.C. § 467e (emphasis added). This provision is “substantially identical” to that in the FMIA,
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`which the Supreme Court have emphasized “sweeps widely” and “prevents a State from imposing
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`any additional or different—even if non-conflicting—requirements that fall within the scope of
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`the Act and concern a slaughterhouse’s facilities or operations.” Harris, 565 U.S. 459-60 (2012);
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`Grocery Mfrs. of Am., Inc. v. Gerace, 755 F.2d 993, 997 (2d Cir. 1985) (PPIA and FMIA
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`preemption substantially identical) (citing 21 U.S.C. § 678)).
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`Given the similarity between the PPIA and the FMIA, FMIA case law is instructive.
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`Significantly, in Harris, the Supreme Court recognized that whether a requirement falls “within
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`the scope of” the Act—and is therefore preempted—does not depend on whether the USDA has
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`adopted or rejected the requirement. 565 U.S. at 461. That is “irrelevant,” the Supreme Court has
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`noted, because the Act’s “preemption clause covers not just conflicting but also different or
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`additional state requirements.” Id. Instead, the question is whether the USDA could have adopted
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`the requirement: if the USDA “could issue regulations under [the Act] . . . mandating” the
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`requirement at issue, then the state’s requirement is preempted. Id. at 466. In this case, not only
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`could the USDA “issue regulations,” it has in fact already issued regulations addressing “infectious
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`disease” (9 C.F.R. § 416.5(c)) and personal protective equipment (9 C.F.R. § 416.2(b) and 9 C.F.R.
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`§ 416.5(b)) within poultry processing facilities. The USDA’s regulation of sanitary conditions (21
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`U.S.C. § 456) applies to individuals working in poultry processing facilities, not just the animals
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`they process. The PPIA’s preemptive scope applies broadly to state laws “with respect to premises,
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`facilities, and operations” of poultry producers. 21 U.S.C. § 467e. Tyson’s Policy relates to the
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`premises, facilities, and operations by protecting employees from COVID-19.
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`Preemption applies wherever Plaintiffs seek to impose, as a matter of state law, different
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`requirements for poultry processing employees than those adopted by the USDA. In Wazelle v.
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`Tyson Foods, Inc., the court stated, “workplace conditions and procedures related to disease
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`prevention implicate food safety, which could bring Plaintiffs’ claims under the ambit of [the
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`Act],” 2021 WL 2637335, at *5 (N.D. Tex. June 25, 2021) (FMIA case), vacated and remanded
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`on other grounds, 2022 WL 4990424 (5th Cir. Oct. 03, 2022). The PPIA expressly preempts any
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`“[r]equirement” that falls “within the scope of” the PPIA, and the PPIA absolutely controls on
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`these matters. The alleged violations of the TDA, THRA, and Title 14 stemming from Tyson’s
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`Policy are “in addition to, or different than” the requirements the USDA has imposed regarding
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`infectious disease. Tyson’s Policy certainly relates to workplace conditions and procedures on
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`disease prevention and implicates food safety. Thus, as this Court held, Plaintiffs’ claims fall under
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`the express terms of 21 U.S.C. § 467e. (Doc. 20 at p. 12); Johnson, 2021 WL 5107723, at *6
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`(Tyson’s Policy “relates to its premises, facilities, and operations by ensuring that its employees
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`are protected from COVID-19 infection; accordingly, Plaintiffs’ counts fall within the scope of the
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`PPIA.”) (denying motion to remand). The PPIA therefore preempts the remaining counts.
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`CONCLUSION
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`For the reasons discussed herein, Defendant requests that this Court grant its motion and
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`dismiss with prejudice Plaintiffs’ Amended Verified Complaint in its entirety.
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`Case 1:21-cv-01155-STA-jay Document 55 Filed 12/02/22 Page 15 of 16 PageID 876
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`Submitted this the 2nd day of December 2022.
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`Respectfully submitted,
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`FISHER & PHILLIPS LLP
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`/s J. Gregory Grisham
`J. Gregory Grisham (TN BPR#013810)
`1715 Aaron Brenner Drive Suite 312
`Memphis, Tennessee 38120
`(901) 526-0431 – telephone
`(901) 526-8183 – facsimile
`ggrisham@fisherphillips.com
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`Attorneys for Defendant
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`By:
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`Case 1:21-cv-01155-STA-jay Document 55 Filed 12/02/22 Page 16 of 16 PageID 877
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this date, the foregoing Memorandum in Support of Defendants’
`Renewed Motion to Dismiss was electronically filed with the Clerk of Court using the CM/ECF
`system and served on the followings persons:
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`B. Tyler Brooks
`Law Office of B. Tyler Brooks, PLLC
`P.O. Box 728
`Cary, North Carolina 27512
`btb@btylerbrookslawyer.com
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`Robert E. Barnes
`Barnes Law
`700 South Flower Street, Suite 1000
`Los Angeles, CA 90017
`robertbarnes@barneslawllp.com
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`Attorneys for Plaintiffs
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`Robert W. Wilson
`Office of the Tennessee Attorney General and Reporter
`40 South Main Street, Suite 1014
`Memphis, TN 38103-1877
`Robert.wilson@ag.tn.gov
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`Shanell Lanette Tyler
`Tennessee Attorney General’s Office
`315 Deadrick Street
`Nashville, TN 38119
`Shanell.tyler@ag.tn.gov
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`Attorneys for Intervenor State of Tennessee
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`This the 2nd day of December 2022.
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`/s J. Gregory Grisham
`J. Gregory Grisham
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`FP 45743521.2
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