United States District Court, E.D. Tennessee, Knoxville
MARY R. SETZER, Plaintiff,
FIRST CHOICE LENDING SERVICES, LLC, CRYSTAL D. SHELTON, STEVE R. SHELTON, and BRANNON T. TAYLOR, Defendants.
acting pro se, brings this action against her former
employer, alleging various claims arising out of her
termination by 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.
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.
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.
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,
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
[R. 14, Amended Complaint].
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
Standard of Review
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.
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.
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 ...