William R. Wiggins v. KIMBERLY-CLARK CORPORATION, KENDRA PRESLEY, and JAMEY GRIZZLE

NOT RECOMMENDED FOR PUBLICATION
File Name: 16a0094n.06
No. 15-5240
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
WILLIAM R. WIGGINS,
Plaintiff-Appellant,
v.
KIMBERLY-CLARK CORPORATION,
KENDRA PRESLEY, and
JAMEY GRIZZLE,
Defendants-Appellees.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF TENNESSEE
BEFORE: BATCHELDER and GRIFFIN, Circuit Judges; CARR, District Judge.*
CARR, District Judge. Plaintiff William Wiggins, an employee of the defendant
Kimberly-Clark Corporation’s Loudon, Tennessee, mill, brought this suit, in which he alleged
contract claims based on alleged violations of the company’s alcohol policy and tort claims
(intentional infliction of emotional distress/negligent infliction of emotional distress, invasion of
privacy, negligence, false imprisonment, and misrepresentation) against Kimberly-Clark. He
also alleged defamation, intentional infliction of emotional distress/negligent infliction of
emotional distress, invasion of privacy and misrepresentation against two co-workers (whom he
initially sued as a single, unidentified “Doe” defendant), Kendra Presley and Jamey Grizzle. He
contended that the company compounded the effects of such distress by refusing to disclose who
had complained about his alleged violation of the alcohol policy.
* The Honorable James G. Carr, Senior United States District Judge for the Northern
District of Ohio, sitting by designation.

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On the company’s motion, the trial court dismissed the contract claims on the basis that
the company’s drug policy created no rights that plaintiff could enforce under state law. On
entering its order of dismissal, the trial court also entered a scheduling order.
Thereafter, nearly two years after filing his original complaint, the plaintiff sought leave
to file an amended complaint naming Presley and Grizzle. A Magistrate Judge, to whom the
District Judge referred the motion, entered an order allowing the amendment. The District Judge
rejected that decision, denied leave to amend, and granted summary judgment as to the
remaining claims.
This appeal from the two orders of dismissal and denial of leave to amend followed.
Background
The events giving rise to this suit began when defendant Presley, seeking, according to
plaintiff, to harass him, falsely reported to defendant Grizzle that she had smelled alcohol on
plaintiff’s breath following a team meeting that routinely began the workday for plaintiff and his
co-workers. This was a serious allegation, as Kimberly-Clark has a stringent no-alcohol policy.
Grizzle’s follow-up to this report resulted in plaintiff’s being transported to a local
hospital. There, after he signed a consent form (fearing loss of his job if he refused to sign the
form), he took a breath test to detect alcohol use. The result was a reading of 0.00.
Next, he had to provide a urine sample to detect drug use (though the original allegation
was based on alleged smelling of alcohol on plaintiff’s breath). That test involved a stranger’s
observation of the plaintiff’s urinating into a cup in the men’s room.
Afterwards plaintiff, despite the 0.00 breathalyzer reading and over his objection, was
driven home. Pending receipt of the results of the urine test, the company placed him on
suspension. Once those results came back negative, he was returned to work, where he was, at

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the time of the decisions below, continuing to work. On his return to work, he sought
unsuccessfully to have the company tell him who had made the original allegation of alcohol use.
Standard of Review
This court reviews a district court’s dismissal under Fed. R. Civ. P. 12(b)(6) on a de novo
basis. E.g., Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). When doing so, this court
applies the standards set forth in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007). Bishop v. Lucent Techs., Inc., 520 F.3d 516, 519
(6th Cir. 2008).
Where, as here, a district court denies a motion for leave to amend a complaint because,
even as amended, the complaint would not withstand a motion to dismiss, 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).
This court reviews a district court’s decision granting summary judgment de novo. Smith
Wholesale Co., Inc. v. R.J. Reynolds Tobacco, Inc., 477 F.3d 854, 861 (6th Cir. 2007).
Discussion
A. Contract Claims
The gravamen of plaintiff’s multiplicitous contract claims was that the company’s
handling of Presley’s complaint short-circuited the steps set forth in its alcohol policy. That
policy, plaintiff alleged, gave him enforceable contract rights.
The trial court did not err when it dismissed plaintiff’s contract claims.
Under Tennessee law, an employer’s policy vests contractual rights in an employee only
if the policy contains specific language that expresses the company’s intent to be bound
contractually. Smith v. Morris, 778 S.W.2d 857, 858 (Tenn. Ct. App. 1988). Though otherwise

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formally stated and adopted, if the policy lacks “such guarantees or binding commitments, [it]
will not constitute an employment contract.” Adcox v. SCT Prods., No. 01A01–9703–CV–
00123, 1997 WL 638275, at *2 (Tenn. Ct. App. Oct. 17, 1997) (citing Whittaker v. Care-More,
Inc., 621 S.W.2d 395, 397 (Tenn. Ct. App. 1981)).
The trial court found support for its correct conclusion that the company’s protocol for
enforcing its no-alcohol policy did not create contractual rights in Kimberly-Clark’s Code of
Conduct, of which the policy was a part. The Code expressly disavowed any intent to create a
contract:
The information in this Code of Conduct has been prepared as a
guide to give a better understanding of Kimberly-Clark and its
expectations for ethical conduct. However, the statements in this
Code of Conduct are statements of principle and do not constitute a
contract of any kind or an inflexible set of rules. Management
reserves the right, at all times, to take any action deemed by it to be
in the best interests of Kimberly-Clark.
(Pl.’s Dep. Ex., RE 59-2, Page ID # 1007.)
Moreover, nothing in the testing protocol suggests any intent on the company’s part to
create a contract. Instead, the protocol states its purpose is “to assist in determining if a For-
Cause test is warranted and how to accomplish it.” As in MacDougal v. Sears, Roebuck & Co.,
624 F. Supp. 756, 759 (E.D. Tenn. 1985), the company’s protocol was simply a “unilateral
expression of company policy” and therefore not a contractual term of employment. At most,
the policy tells the company’s managers when and how to test: it is a guide, not a command,
much less a mutually binding commitment. Such guidelines do not create contractual
obligations. Rose v. Tipton County Public Works Dep’t, 953 S.W.2d 690, 693–94 (Tenn. Ct.
App. 1997) (handbook provision regarding progressive discipline did not constitute employment
contract, where language of provision stated rules were intended to “guide” employee conduct).

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The company’s Code of Conduct was clear: by its own terms nothing in the Code
endowed plaintiff or any other employee with enforceable rights. Tennessee law is just as clear:
in the face of such disclaimer, no rights exist.1
The same is true with regard to plaintiff’s contention that a binding oral agreement
existed between him and the company. He points to no facts indicating that the company
intended, no matter what any employee may have told plaintiff, to extend binding rights to him.
Absent such express intent, oral commitments engender no enforceable rights. See Klosterman
Dev. Corp. v. Outlaw Aircraft Sales, Inc., 102 S.W.3d 621, 635 (Tenn. Ct. App. 2002) (oral
undertaking, to be enforceable, “must result from a meeting of the minds in mutual assent . . .
and must be sufficiently definite to be enforced.”).2
In sum, none of plaintiff’s seven contract claims, no matter how framed or formed,
withstands scrutiny under basic doctrines applicable to employers and employees. The trial
court, applying those doctrines to the factual allegations of the complaint, correctly found that
none of plaintiff’s contract claims stated a cause of action.
1 Plaintiff claims he should have had a chance to conduct discovery relating to his execution of
the consent-to-testing form. To the extent he has not waived his contentions in this regard by
failing to raise them in the trial court, they are without merit. The form on its own did not create
any contract rights (nor, as plaintiff inconsistently argues, was it an unenforceable condition to
his continued employment).
These contentions, in any event, bear no relationship, and certainly no material
relationship, to the issues before the trial court and this court. No amount of discovery of any
sort would have altered the express terms of the Code of Conduct. The trial court’s rejection of
plaintiff’s demand that it hold off on deciding the company’s motion to dismiss while he took
(meaningless) discovery was entirely proper.
2 The district court properly rejected plaintiff’s contentions, not found in his complaint, that
company officials made oral commitments or guarantees regarding the testing, thereby extending
enforceable rights. Even if this court were to consider those contentions on their merits, it must
deem them without binding effect for failing to manifest and express intent to be bound
contractually.

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B. Denial of Motion for Leave to Amend
The district court, in ruling on the defendants’ objection to the Magistrate Judge’s order
granting leave to amend, properly rejected that order and did not allow the amendment.3
As listed above, plaintiff’s original complaint included several tort causes of action
against Kimberly-Clark and the “John Doe” defendant. The motion to amend sought to name
Presley and Grizzle in place of the “Doe” defendant and reformulate the tort claims as
defamation, intentional infliction of emotional distress/negligent infliction of emotional distress,
invasion of privacy, and misrepresentation.
Leave to amend a complaint is only appropriate “[i]n the absence of . . . undue delay,
bad faith or dilatory motive on the part of the movant . . . [or] futility of the amendment.”
Foman v. Davis, 371 U.S. 178, 182 (1962) (emphasis supplied). An amendment would be futile
“when the proposed amendment would not permit the complaint to survive a motion to dismiss.”
Miller v. Calhoun County, 408 F.3d 803, 817 (6th Cir. 2005).
The Sixth Circuit treats naming a specific individual in place of a John Doe as joinder of
a new party. See Cox v. Treadway, 75 F.3d 230, 240 (6th Cir. 1996) (“Substituting a named
defendant for a ‘John Doe’ defendant is considered a change in parties, not a mere substitution of
parties.”).
Plaintiff’s motion to amend came after expiration of the statutes of limitation applicable
to all those claims except plaintiff’s claim of misrepresentation. To avoid the limitations bar on
all but that one claim, the plaintiff had to satisfy the requirements of Fed. R. Civ. P. 15(c)(1)(C).
Brown v. Cuyahoga County., 517 F. App’x 431, 433 (6th Cir. 2013) (citing Smith v. City of
Akron, 476 F. App’x. 67, 69 (6th Cir. 2012)). To do so under that Rule, so that the claims
3 We agree with the District Judge that the Magistrate Judge’s order was dispositive in nature and
thus de novo review, rather than review for an abuse of discretion, was proper.

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against Presley and Grizzle relate back to the original filing date (and thus come within the
statute of limitations), requires showing that the newly named defendants: (1) “received such
notice of the action that [they] will not be prejudiced in defending on the merits”; and (2) “knew
or should have known that the action would have been brought against [them], but for a mistake
concerning the proper party’s identity.” Fed. R. Civ. P. 15(c)(1)(C)(i), (ii) (emphasis supplied).
Plaintiff failed to satisfy these requirements. Even if he had established that Presley and
Grizzle “knew or should have known” that he would bring the claims against them, he failed to
establish that his lack of knowledge of their identities was due to a “mistake” as the Rule
requires. See Brown, 517 F. App’x at 433–34; Smith, 476 F. App’x at 69 (noting relation back
for “mistake” not allowable where newly named defendants was among John Doe defendants).
Here, as in Smith, the plaintiff “did not make a mistake about the identity of the parties he
intended to sue; he did not know who they were and . . . did not find out within the . . .
limitations period.” Id. In reaching this conclusion, Smith followed longstanding precedent.
See, e.g., Treadway, 75 F.3d at 240 (“Sixth Circuit precedent clearly holds that new parties may
not be added after the statute of limitations has run, and that such amendments do not satisfy the
‘mistaken identity’ requirement of Rule 15.”).
Plaintiff complains about the company’s refusal to identify Presley as the informant. As
long as the dispute was internal, the company could have and did assert a policy of
nondisclosure. Such policy helps uphold the no-alcohol policy by giving fellow workers
confidence that, if they observe a violation, or what they believe is a violation of the policy, they
can, to protect their own safety and that of others, notify the company without jeopardizing their
relationships with their co-workers.

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Once he filed suit, plaintiff had ample means at hand to learn who the responsible
individuals were and join them before the statutes ran.
Plaintiff tries to avoid this result by arguing that he was unable to learn the identities due
to their being fraudulently concealed, which requires tolling of the limitations periods. But he
makes his tolling argument for the first time on appeal, and thus this court must disregard that
contention as waived. See, e.g., U.S. v. Universal Management Services, Inc., 191 F.3d 750,
758–59 (6th Cir. 1999).
In any event, to have the statute of limitations tolled, the plaintiff would have to show
that he diligently sought to ascertain the defendants’ identities. He simply cannot do so, given
the fact that his effort to seek discovery and obtain leave to amend came on the eve of the
expiration of the court’s scheduled pretrial period. Redwing v. Catholic Bishop for Diocese of
Memphis, 363 S.W.3d 436, 462–63 (Tenn. 2012).
Here, the record shows that plaintiff had ample time before the statute of limitations ran
to learn the individual defendants’ identities. As already noted with regard to his complaints
about not being able to learn who they were, he had the tools at hand, once he filed suit, to pry
that information out of the company. He neglected even to try to pick up those tools until the last
minute.
Finally, with regard to plaintiff’s non-barred claim – for misrepresentation – dismissal
was also appropriate. Plaintiff bases this claim on the proposition that the protocol contained
statements about its implementation on which plaintiff relied. Among the problems with this
claim is that Kimberly-Clark, not the individual defendants, created the policy and its contents.
Moreover, there is only a conclusory assertion relating to that element of the tort in Tennessee.
See generally Hodge v. Craig, 382 S.W.3d 325, 343 (Tenn. 2012) (stating elements of

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misrepresentation). Though plaintiff asserted this claim within the applicable statute of
limitations, allowing it to proceed, in light of the flawed manner in which it was pleaded, would
have been futile.
In sum, the lower court acted properly when it refused to allow the plaintiff to amend his
complaint, as any such amendment would have been futile.
3. Remaining Claim
Once the district court had dismissed the contract claims against Kimberly-Clark and
thereafter denied leave to amend, all that remained were state tort claims against the individual
defendants, namely: (1) defamation; (2) intentional infliction of emotional distress/negligent
infliction of emotional distress; (3) invasion of privacy; (4) negligence; (5) false imprisonment;
and (6) misrepresentation.
Tennessee law views all of these as personal injury claims. In that state, pursuant to
Tenn. Code Ann. § 50-6-108(a), the workers compensation fund (except in cases of employer
intentional torts)4 provides the exclusive remedy for workplace injuries: “The rights and
remedies granted to an employee subject to this chapter, on account of personal injury . . . shall
exclude all other rights and remedies of the employee.”
In light of this provision, the trial court properly held that plaintiff could not seek to
recover via state law tort claims. As the court stated in Valencia v. Freeland & Lemm Constr.
Co., 108 S.W.3d 239, 242 (Tenn. 2003), reciting black-letter Tennessee law, the workers’
4 Despite plaintiff’s efforts to puff up the events, his claims are garden-variety tort claims, rather
than rising to the rarified level of intentional torts. To reach that level, a plaintiff must allege
actual intent (and do so with plausible specificity under Twombly/Iqbal) to survive dismissal.
Mere assertion of that degree of desire to injure is not enough: plaintiffs “cannot avoid the
exclusive remedy provisions of the workers’ compensation act simply by labeling their causes of
action” as intentional torts. Rodgers v. GCA Services Group, Inc., No. W2012-01173-COA-R3-
CV, 2013 WL 543828, at *9 (Tenn. Ct. App.). This requires “alleged facts constituting an actual
intent to bring about the injury.” Id., at *7 (emphasis supplied).

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compensation statute “provides the exclusive remedy for an employee who is injured during the
course and scope of his employment, meaning the employee is precluded from seeking tort
damages for the injury.”
We agree that the undisputed facts justified the grant of summary judgment in favor the
defendants.
Conclusion
For the foregoing reasons, we find no error whatsoever in the trial court’s decisions in
this case; accordingly, we AFFIRM the judgments of the district court.

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