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Setzer v. First Choice Lending Services, LLC

United States District Court, E.D. Tennessee, Knoxville

February 6, 2018

MARY R. SETZER, Plaintiff,


         Plaintiff, acting pro se, brings this action against her former employer, alleging various claims arising out of her termination by defendants.

         Defendants move to dismiss the complaint for failure to state a claim against any defendant. For the following reasons, defendants' motion to dismiss the complaint is granted, and this action dismissed in its entirety.

         I. Background

         Mary Setzer worked for First Choice Lending Services from June 2011 until her termination on January 5, 2012. Setzer filed her first complaint with the Tennessee Human Rights Commission (THRC) on January 23, 2012, claiming defendants had discriminated against her because of her age and gender, and that defendants had harassed, retaliated against, and wrongfully discharged her.

         The THRC issued a Notice of Determination on October 2, 2012, dismissing Setzer's complaint. The Notice of Determination notified Setzer that she had thirty days to appeal the determination in state court. On January 2, 2012, the Equal Employment Opportunity Commission (EEOC) adopted the THRC's findings and notified Setzer she had ninety days to file suit regarding the claims asserted in her complaint of discrimination. No complaint was filed in either state or federal court.

         Five years later, Setzer filed a second Charge of Discrimination with the EEOC, claiming retaliation and harassment in violation of Title VII. The second Charge of Discrimination did not include allegations of age or gender discrimination. The EEOC issued a Notice of Right to Sue on March 22, 2017, and Setzer acknowledges receiving the notice on March 27, 2017.

         Setzer filed her original complaint on April 3, 2017. Setzer used a “form” complaint alleging claims of retaliation, breach of severance contract, malicious pursuit/harassment, material misrepresentation, violation of labor laws, massive financial harm, irreparable damage to her reputation, gender/sex discrimination, and age discrimination. She states the “facts” of her case as follows:

Continual Retaliation, Breach of Severance Contract to cause financial harm, Violation of Labor Laws, Malicious Pursuit and Harassment, Irreparable Damage to my reputation. Material false representation of facts to influence EEOC decision. First Choice Lending Services Owners and Managing Principle are trying to run me out of the mortgage industry. They have even contacted my current employer. They are trying to take away my right to work. They have intentionally harmed me financially and made it extremely difficult for me to earn a living. I have contacted the TN Dept. of Financial Institution and the Labor Board. The harassment continued. So I contacted Governor Haslam and he advised me to seek legal action.

[R. 14, Amended Complaint].

         After defendants filed a motion to dismiss the original complaint, Setzer filed a motion for leave to amend her complaint [R. 14]. Federal Rule of Civil Procedure 15(a)(1)(B) allows a party to amend its pleading after service of a motion under Rule 12(b). Accordingly, the court will grant Setzer's motion to amend her complaint and will consider defendants' motion to dismiss in light of the amended complaint.

         II. Standard of Review

         Generally, complaints filed by pro se plaintiffs are liberally construed; however, in a motion to dismiss for failure to state a claim, the court must still consider the sufficiency of the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Powell v. Denton, 2010 WL 1491550 at *2 (E.D.Tenn. Apr. 12, 2010). Under the standard articulated by the United States Supreme Court, courts are to engage in a two-step process when considering a motion to dismiss for failure to state a claim. Id.

         First, the court separates the complaint's factual allegations from its legal conclusions. All factual allegations, and only the factual allegations, are taken as true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Second, the court asks whether these factual allegations amount to a plausible claim for relief. Id. at 555. The allegations do not need to be highly detailed, but they must do more than simply recite the elements of the offense. Id. Specifically, the complaint must plead facts permitting a reasonable inference that the defendant is liable for the alleged conduct. Id. If this is not done, the claim will be dismissed. Id. at 570.

         While a pro se plaintiff's complaint is liberally construed in determining whether it fails to state a claim upon which relief can be granted, lenient treatment generally accorded to pro se litigants has limits. Walker v. Corwell, 2017 WL 663093 at *3 (E.D.Tenn. Feb. 15, 2017). The federal courts do not abrogate basic pleading essentials in pro se actions. Id. For instance, federal pleading standards do not permit pro se litigants to proceed on pleadings that are not readily comprehensible. Id. Complaints containing “vague and conclusory ...

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