Powell v. Western Express, Inc.Powell v. Western Express, Inc.
Case Information
*1 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION
JACQLYN POWELL, )
)
Plaintiff, )
)
v. ) NO. 3:24-cv-13 1
)
WESTERN EXPRESS, INC. )
)
Defendant. )
MEMORANDUM OPINION AND ORDER
Jаcqlyn Powell is suing her former employer, Western Express, Inc., asserting violations of Title VII, the Tennessee Human Rights Act, and the Trafficking Victims Protection Act (“TVPA”). (Doc. No. 1). She also asserts several common law violations, including assault, negligent and intentional infliction of emotional distress, and failure to train and supervise. Id. Western Express moves to dismiss Ms. Powell’s tort claims, arguing that the Tennessee Workers’ Compensation Act (“TWCA”) bars those claims. (Doc. Nos. 27, 28). Western Express also moves to dismiss thе TVPA claim, arguing the Complaint does not contain sufficient factual allegations to establish a sex trafficking venture, that Western Express benefited from ك participating in such a venture, or that a commercial sex act occurred or was intended to occur. (Id.). For the reasons that follow, Western Express’s motion to dismiss will denied on the tort claims but granted as to the TVPA claim.
I. BACKGROUND
Ms. Powell worked as a truck driver at Western Express between October 2023 and February 2024. (Doc. No. 1 ¶¶ 6-7). As part of her training program, she was assigned to “ride along” with a more experienced drive named Temer Lynch. (Id. ¶ 8). Mr. Lynch allegedly sexually harassed Ms. Powell, including repeatedly touching her despite her objections. (Id. ¶¶ 9, 11, 18). *2 Ms. Powell rebuked these advances; afterwards, Mr. Lynch gave Ms. Powell fewer opportunities to train and refused to credit her for the time she did spend training. (Id. ¶¶ 21-22).
On one trip where she was allowed to train, Ms. Powell informed Mr. Lynch that she was uncomfortable being alone with him and that she would leave the truck when the other male trainee departed. (Id. ¶ 24). According to Ms. Powell, Mr. Lynch immediately forced her out of the truck and left her stranded in Missouri. (Id. ¶¶ 24-25). Ms. Powell called Western Express, complained about Mr. Lynch’s behavior, and requested a bus ticket back to Tenneessee. (Id. ¶ 28). Western Express allegedly told Ms. Powell that she needed to ride with Mr. Lynch back to Tennessee. (Id. ¶ 29). When Mr. Lynch circled back to pick up Ms. Powell, he recommenced the sexual harassment. (Id. ¶¶ 31-32). He also began driving in the direction of his home in Texas rather than back to Tennessee, which frightened Ms. Powell. (Id.). Ms. Lynch called Western Express again to report her ongoing concerns about Mr. Lynch’s behavior. The company ultimately agreed to pay for a hotel and to find her an alternative means of transportation back to Tennessee. (Id. ¶ 37).
After this incident, Ms. Lynch was reassigned to another trainer and ultimately completed her training program. (Id. ¶ 42). On Novеmber 10, 2023, Ms. Powell filed a written sexual harassment complaint against Mr. Lynch with Western Express’s human resources department. (Id. ¶ 43). Between November 10, 2023 and February 23, 2024, Western Express stopped giving Ms. Powell the same number of routes that were given to her male co-workers. (Id. ¶ 48, 50). Given the limitations on her earning potential, Ms. Powell left Western Express in search of other employment opportunities. (Id. ¶ 43). She asserts she was constructively discharged. (Id. ¶ 50). Mr. Lynch is allegedly still employed by Western Express. (Id. ¶ 46).
II. LEGAL STANDARDS
When assessing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the
Court must accept the Complaint’s factual allegations as true, draw all reasonable inferences in
Plaintiff’s favor, and “take all of those facts and inferences and determine whether they plausibly
give rise to an entitlement to relief.” Doe v. Baum, 903 F.3d 575, 581 (6th Cir. 2018) (citing
Ashcroft v. Iqbal,
III. ANALYSIS
A. Plaintiff’s common law tort claims, which are rooted in sexual harassment, are not subject to the Tennessee Workers’ Compensation Act.
Western Express moves to dismiss Ms. Powell’s assault and battery, negligent and intentional infliction of emotion distress, and negligent training and supervision claims because the TWCA categorically bars these negligence-based and intentional torts. (Doc. No. 28 at 2-7). Ms. Powell responds, asserting that sexual harassment is not the type of workplace incident covered by workers’ compensation. (Doc. No. 33 at 5-10). The question then is whether the TWCA covers an employee who suffers from unwanted sexual advances and physical touchings by a supervisor.
The TWCA is the exclusive remedy for claims by employees against their emplоyer when
the injury “arise[s] out of the work and occur[s] in the course of employment.’” Doe v. Matthew
25, Inc.,
Over two decades ago, the Supreme Court of Tennessee addressed whether tort claims
based on sexual harassment fall within the TWCA’s purview. Anderson v. Save-A-Lot, Ltd., 989
S.W.2d 277 (Tenn. 1999). The Tennessee Supreme Court held, generally, that injuries based on
sexual harassment are not covered by workers’ compensation because those injuries “d[o] not arise
out of [the injured employee’s] employment,” but rather “result[] from conduct that [is] purely
personal.” Id. at 281. This general rule reflects Tennessee public policy that “sexual harassment
[and associated claims] should not and cannot be recognized as a risk inherent in any work
environment.” Vanover v. White,
It naturally follows that an injury “completely outside” the workers’ compensation scheme
is not “covered by the exclusive-remedy provision.” Sims v. Meridian Sr. Living, LLC, 2012 WL
6115593, at *5 (W.D. Tenn. Dec. 10, 2012); see also Jones v. BWAY Corp.,
Because the TWCA does not apply here, Western Express’s motion to dismiss Ms. Powell’s tort claims based on the TWCA’s exclusivity bar must be denied.
B. Plaintiff has not pleaded a sex trafficking claim under 18 U.S.C. § 1595. The TVPA confers criminal and civil liability upon anyone who “entices” a person knowing that “means of force, threats of force, fraud, [or] coercion” will be used to cause that person to “engage in a commerciаl sex act.” Bridges v. Poe, 487 F. Supp. 3d 1250, 1260–62 (N.D. Ala. 2020) (quoting 18 U.S.C. §§ 1591(a), 1595). This is colloquially known as “perpetrator” liability. Ms. Powell does not allege that Western Express “enticed” her into engaging in commercial sex acts by means of force, fraud, or coercion. But she does assert that Mr. Lynch did so, and that Western Express benefited from Mr. Lynch’s actions. (Doc. No. 33 at 12-15) (“Ms. Powell’s job was ostensibly made contingent on her accepting the forced sexual advances, harassment, and assault by her trainer” and Ms. Powell would “provide profits and financial benefit to Western Express,” once she was fully trained.). Therefore, she relies on the TVPA’s “venture liability” provisions when asserting her sex trafficking claim against Western Express.
The TVPA establishes criminal venture liability for those who knowingly benefit from a sex trafficking operation:
Whoever knowingly … benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of [§ 1591(a)(1)], knowing or … in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act . . . .
18 U.S.C. § 1591(a)(2). The TVPA also establishes civil “venture liability” for anyone who
“knowingly benefits, financially or by receiving anything of value from participation in a venture
which that person knew or should have known has engaged in an act in violation of this chapter
....” § 1595(a). Notably, the TVPA’s civil and criminal “venture liability” provisions are worded
nearly identical—with the exception that § 1595(a) adds a constructive knowledge component.
See Geiss v. Weinstein Co. Holdings LLC, 383 F. Supp. 3d 156, 169, n.5 (S.D.N.Y. 2019). A
common principle of statutory construction is that “identical words and phrases within the same
statute should normally be given the same meaning.” Powerex Corp. v. Reliant Energy Servs.,
Inc.,
Courts have struggled with how to apply § 1595(a),
[1]
and several have construed it broadly
given its remedial purpose.
[2]
This Court will construe identical terms used in §§ 1591(a)(2) and
1595(a) the same. Therefore, to state a claim against Western Express based on venture liability,
Ms. Powell must show that: (1) Western Express was part of a “venture,” (2) Western Express
knowingly benefitted from participation in the venture; and (3) Westеrn Express knew or should
have known that the venture would violate § 1591(a)(1). See A.M. v. Wyndham Hotels & Resorts,
Inc.,
i. Venture The Sixth Circuit, albeit in an unpublished opinion, has defined § 1591(a)’s use of the word “venture” as “two or more people who engage in sex trafficking together.” Afyare, 632 F. App’x at 285 (citing the definition of “venture” at § 1591(e)(5), which has since been moved to § 1591(e)(6)). The Sixth Circuit rejected the argument that venture means “any” individuals who are associated in fact:
[W]hen intеrpreting a statute, we ‘consider not only the bare meaning of the critical word or phrase but also its placement and purpose in the statutory scheme.’ Therefore, while § 1591(e)(5) defines ‘venture’ as ‘any group of two or more individuals associated in fact,’ we also consider ‘venture’ in the context of § 1591(a)(2), which specifies ‘a venture which has engaged in an act described in violation of paragraph (1),’ i.e., sex trafficking. That is, its ‘placement and purpose’ in § 1591(a)(2) modify its ‘bare meaning’ in § 1591(e)(5).
*8 Id. at 284–85. In other words, an individual cannot be found guilty of venture liability under § 1591(a)(2) where he participates in a legitimate business venture and a partner in that legitimate venture commits a sex trafficking act that incidentally benefits the legitimate business venture. Id.
Some courts have noted that Afyare addresses the TVPA’s criminal provision and has no
application to § 1595(a). See A.B. v. Marriott Int’l, Inc.,
Section 1591(a)(2) can be proven by showing a person: (1) knowingly benefited; (2) from participation in a group of “ two or more people [having] engage[d] in sex trafficking together ”; *9 (3) knowing that a sex act will occur by means of force, fraud or coercion. Meanwhile, § 1595(a) can be proven by showing a person: (1) knowingly benefited; (2) from participation in a group of “ two or mоre people [having] engage[d] in sex trafficking together ”; (3) based on actual or constructive knowledge that a sex act will occur by means of force, fraud or coercion. In other words, § 1595(a)’s constructive knowledge component only reduces a plaintiff’s burden of showing what the defendant knew about the plan to sex traffic. Section 1595(a)’s statutory text— which uses “venture” the same way as § 1591(a)(2)—does not necessarily lessen a plaintiff’s obligation of proving thе existence of a venture. A defendant can unknowingly be a part of sex trafficking venture while also still being held to account for his constructive knowledge that two or more people with whom he associates were enticing victims into committing commercial sex acts by force, fraud, or coercion. Consider, for example, a large criminal enterprise that traffics in guns, drugs and humans and two or more members of that enterprise agree to engage in sex trafficking together. The boss of that larger criminal enterprise could be found civilly liable under § 1595 if the victim could prove that: (1) the boss knowingly benefited from the larger operation; (2) a sex trafficking venture existed; and (3) the boss knew or should have known that his participation in the larger criminal organization helped facilitate a violation of § 1591(a)(1). By contrast, consider a small law firm where one partner pressures an associate into having sex with him in exchange for largеr bonuses. In that case, the associate could not sue the non-offending partners under § 1595 —even if they knew or should have known about the sex-for-bonuses scheme—because there was no venture ( i.e. , two or more people did not agree to engage in sex trafficking together). [4] Although some may say this is not a desirous policy outcome, it is a result *10 that adheres to Afyare’s definition of “venture” and applies that term consistently across two closely related statutеs.
This reading also accounts for the grammatical structure of § 1595. There are two scienter
requirements in § 1595. The first is that a person must “knowingly benefit.” 18 U.S.C. § 1595(a).
“Knowingly” modifies “benefit.” The second is that a person must actually know or constructively
know that the venture “engaged in an act in violation of this chapter.” Id. “Knew or should have
known” modifies the commission of a sex trafficking act. By contrast, nothing modifies “venture.”
Because § 1595 contains no scienter requirement for “venture,” one is left to assume that plaintiffs
must simply prove the existence of a venture, which the Sixth Circuit defines as ك� two or more
people who engage in sex trafficking together.” Afyare,
Here, Ms. Powell has failed to plead the existence of a venture. Assuming the Complaint establishes any “sex trafficking” activities took place, it only claims that Mr. Lynch engaged in those activities. No one else agreed to engage in sex-trafficking. Mr. Lynch—acting alone and motivated by his personal sexual desires—is not a venture within the meaning of §§ 1591(a)(2) and 1595(a). Therefore, Ms. Powell’s TVPA claim fails.
The Court knows this view is at odds with other courts that have held that a “venture” can
be any association of people and that only one member of that association must engage in a sex
trafficking act. E.g., G.G. v. Salesforce.com, Inc.,
identical statutory terms to be construed the same; and (2) identical words in a statute with criminal and civil applications to both be interpreted considering the rule of lenity. See Powerex Corp., 551 U.S. at 232; Whitman, 574 U.S. 1003. Watering down the elements of § 1595(a) to apply the statute more brоadly may be good public policy, but it disregards important rules of statutory construction and appears inconsistent with the Congressional command that civil liability should only extend to “victim[s] of a violation of this chapter.” 18 U.S.C. § 1595(a).
In sum, although several recent lower court decisions have construed § 1595(a) expansively—and beyond the statute’s stated purpose of allowing the victims of sex trafficking crimes to obtain civil relief—this Court will take a more restrained approach that respects the words used by Congress and use the definition of “venture” set forth in Afyare, 632 F. App’x at 285. Because the Complaint does not establish the existence of a sex trafficking venture, as defined by Afyare, Ms. Powell’s TVPA claim must be dismissed.
ii. Benefit
Ms. Powell also argues that Western Express “benefited” from Mr. Lynch’s sexual
harassment because once she was trained, she could “drive trucks alone” and “directly provide
profits” to Western Express. (Doc. No. 33 at 12-15) (“Ms. Powell’s job was ostensibly made
contingent on her acсepting the forced sexual advances, harassment, and assault by her trainer”
and Ms. Powell would “provide profits and financial benefit to Western Express,” once she was
fully trained.). The Court will set aside the thorny legal issue of whether a benefit must flow
directly from the sex trafficking activity or whether the benefit can flow from any relationship with
a sex trafficker, compare G.G.,
In sum, Ms. Powell was supposed to train and drive trucks; Western Express received no additional benefits from its relationship with Mr. Lynch beyond Ms. Powell performing her required work duties and Mr. Lynch performing his. Therefore, her TVPA claim fails on the benefits element, as well.
iii. No § 1591(a)(1) viоlation took place or was intended to take place.
For a § 1591(a)(1) violation to occur, the perpetrator must use force, fraud or coercion to entice (or intend to entice) another person into committing a commercial sex act. Ms. Powell fails to allege that a “commercial” sex act occurred or was supposed to occur, which also dooms her venture liability claim against Western Express.
While the statute аttempts to define what a “commercial sex act” is, [5] it does not explain what qualifies as a “sex act.” The plain meaning of sex act can be found in the dictionary: (1) “a sex act is an act performed with another for sexual gratification,” see Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/sexact; and (2) “a sex act is sexual relations, usually involve[ing] the touching of another’s breast, vagina, penis, or anus,” see Sex Act, Black’s Law Dictionary (10th Ed.). Ms. Powell alleges that Mr. Lynch “repeatedly touch[ed] her,” and that on one occasion he “put his hand on Ms. Powell’s leg.” (Doc. No. 1 ¶¶ 11, 18). However, touching someone’s leg against their will—while certainly reprehensible—does not meet the definition of a sex act. Ms. Powell does allege, however, that Mr. Lynch “kept asking if *13 he could come up to her hotel room.” (Id. ¶ 20). At this stage, granting Ms. Powell all reasonable inferences, the Court will infer that Mr. Lynch wanted to go to Ms. Powell’s roоm to engage in “sex acts.”
What is critically missing, however, is any allegation that Mr. Lynch enticed Ms. Powell to
commit sex acts in exchange for anything of value, including promises of career advancement.
Several courts have held that “the TVPA extends to enticement of victims by means of fraudulent
promises of career advancement, for the purposes of engaging them in consensual or ... non-
consensual sexual activity.” Geiss,
Accordingly, the requirement that a commercial sex act occur (or that the perpetrator intended for it to occur) has not been satisfied here, and Ms. Powell’s TVPA claim must be dismissed.
IV. CONCLUSION
Western Express’s argument thаt Ms. Powell’s tort claims are barred by the TWCA is unavailing; however, its argument that Ms. Powell failed to plead a TVPA claim has merit. Accordingly, the Motion to Dismiss (Doc. No. 27) is GRANTED IN PART AND DENIED IN PART. Ms. Powell’s tort claims will proceed; her TVPA claim is DISMISSED.
IT IS SO ORDERED.
____________________________________ WAVERLY D. CRENSHAW, JR.
UNITED STATES DISTRICT JUDGE
Notes
[1] See A.B. v. Marriott Int’l, Inc.,
[2] E.g., Noble v. Weinstein,
[3] The Court is aware of the Eleventh Circuit’s decision in Doe #1 v. Red Roof Inns, Inc., 21 F.4th 714, 724 (11th Cir. 2021). In that case, the Eleventh Circuit held that § 1591(e)(4)’s definition of “participation” could not be imported into § 1595(a). Id. However, that decision did not address § 1591(e)(6)’s definition of “venture,” which was the Sixth Circuit’s focus in Afyare, 632 F. App’x at 285. Because this Court is focused on the Sixth Circuit’s definition of “venture” as opposed to § 1591(e)(4)’s definition of “participatiоn,” it need not fully engage with the Eleventh Circuit’s DOE #1 decision. However, the Court will note, in passing, that § 1591(e)(4)’s definition of “participation,” is not just problematic when imported into § 1595 (which it is). Inserting the statutory definition of “participation in a venture” into § 1591(a)(2) appears similarly problematic because it renders subsequent text redundant. Perhaps Congress was simply inartful when formulating the new definition of “participation in a venture,” which was added to the statute in 2018. See Pub. L. 115– 164, § 5, Apr. 11, 2018, 132 Stat. 1255 (adding § 1591(e)(4)’s definition of “рarticipation in a venture” and moving the definitions of “serious harm” and “venture”).
[4] Afyare’s definition of “venture,” which has support from 18 U.S.C. § 1591(e), is essentially a numerosity requirement. One lone perpetrator cannot be a venture. And a legitimate business venture cannot be converted into a sex trafficking venture simply because of the bad acts of a lone
[5] A “commercial sex act” is any “sex act, on account of which anything of value is given to or received by any person.” 18 U.S.C. § 1591(e)(3). كك