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Tartt v. Tennessee Health Management Inc.

United States District Court, W.D. Tennessee, Western Division

February 9, 2018

TONIA LASHAW TARTT, Plaintiff,
v.
TENNESSEE HEALTH MANAGEMENT, INC., d.b.a. BEHAVIORAL HEALTHCARE CENTER OF MEMPHIS, Defendant.

          REPORT AND RECOMMENDATION

         Before the Court is defendant Tennessee Health Management, Inc.'s (“THM”) Motion to Dismiss. (ECF No. 12.) Pro se plaintiff Tonia Lashaw Tartt has responded, and THM has replied. (ECF Nos.15 & 16.) Pursuant to Administrative Order No. 2013-05, this case has been referred to the United States magistrate judge for management and for all pretrial matters for determination and/or report and recommendation as appropriate. For the following reasons, the undersigned recommends that THM's motion be granted.

         I. PROPOSED FINDINGS OF FACT

         Tartt filed a pro se amended complaint against THM, which conducts business as Behavioral Healthcare Center of Memphis, on October 20, 2017. (ECF No. 9.) Tartt alleges that she was subjected to unlawful discrimination on the basis of a disability in violation of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., and retaliation for engaging in a protected activity in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-16. (Id. at 1-3.) Specifically, Tartt alleges that she was hired by THA as a Certified Nursing Assistant in February 2015, and later moved to the position of Mental Health Technician in June 2015. (Id. at 3.) Tartt then describes THA's encouragement to contact Corporate Compliance to report ethics violations, and the numerous complaints that she subsequently filed. (Id.) Notably, Tartt complained that two white registered nurses referred to her and other mental health co-workers, who were all African-American, as “you girls” instead of their professional job titles. (Id. at 4-5.) Tartt alleges she was “offended by the racial meaning of girls and gals, ” and that, despite her complaints to Corporate, no action was taken. (Id. at 7.) Tartt further includes two references to her alleged disability of autoimmune deficiency. (Id. at 8.) Tartt also alleges that she informed the management team of her autoimmune deficiency. (Id.) Nowhere else in the complaint does Tartt mention her alleged disability, nor does she directly attribute any discriminatory or retaliatory conduct to her disability or race.

         The balance of Tartt's 33-page complaint lists a series of complaints and encounters with supervisors, Corporate Compliance and Human Resources staff, often relating to a pervasive “foul smell” that Tartt noticed in the facility beginning in July 2015.She initially informed the Director of Nursing of the smell but no action was taken, so Tartt reported the smell to both Corporate Compliance and a Human Resources representative in October 2015. (Id. at 3.) She also contacted the federal Occupational Safety and Health Administration (“OSHA”), and the Tennessee Occupational Safety and Health Administration (“TOSHA”). (Id.) Thereafter, Tartt alleges she was accused of violating the Health Insurance Portability and Accountability Act (“HIPAA”) and suspended for three days. (Id.) In March 2017, Tartt was “written up” for not getting vital signs in a timely manner; she complained to Corporate and filed a grievance, alleging that this constituted retaliation. (Id. at 11.) Tartt also alleges her weekend shifts were split to give other staff overtime and that she barely received 50 hours in a pay period in February 2017. (Id.) She attributes these changes to an ongoing investigation of her alleged HIPAA violations as well as her filing of complaints regarding the smell with OSHA, TOSHA, and Corporate Compliance. On April 28, 2017, Tartt was terminated for the alleged HIPAA violation. (Id.)

         In support of her claims, Tartt includes a Charge of Discrimination she filed with the Equal Employment Opportunity Commission's (“EEOC”) Memphis District Office. (Id. at 36.) The EEOC Charge of Discrimination states, in full:

In June 2016, I began employment with the above-named employer. In March 2017, I informed Terry Brenner, Administrator, I was diagnosis [sic] with Auto Immune Deficiency and about an unusual smell that was coming from the soiled utility room and the patient's shower room. The smell was causing me to feel light headed and dizzy, but nothing was told about it. I called TOSHA, OSHA, and MLGW to file a report. On April 11, 2017, I was accused of violating HIPAA laws, which I deny. I was placed on a 3-day suspension and on April 28, 2017, I was discharged.
I believe I have been discriminated against because of my disability and for retaliation for filing a protected protest in violation of Title VII of the Civil Rights Acts of 1964, as amended and the Americans with Disabilities Act, Amendment Act (ADAAA).

(Id.) The EEOC reviewed the allegation and issued a Right to Sue Notice, which Tartt also attached to her complaint. (Id. at 38.)

         II. PROPOSED CONCLUSIONS OF LAW

         A. Standard of Review

         To avoid dismissal for failure to state a claim, “‘a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'” Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also Fed.R.Civ.P. 12(b)(6). “A claim is plausible on its face if the ‘plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Center for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 369 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 678). Without factual allegations in support, mere legal conclusions are not entitled to the assumption of truth. Iqbal, 556 U.S. at 679.

         Pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers, and are thus liberally construed. Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011). Even so, pro so litigants must adhere to the Federal Rules of Civil Procedure, see Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989), and the court cannot create a claim that has not been spelled out in a pleading. See Brown v. Matauszak, 415 F. App'x 608, 613 (6th Cir. 2011); Payne v. Sec'y of Treas., 73 F. App'x 836, 837 (6th Cir. 2003).

         B. ADA Discrimination

         The undersigned submits that Tartt has failed to state a plausible claim for relief for disability discrimination under the ADA. The ADA prohibits discrimination by a covered entity “against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). To recover on a claim for discrimination under the ADA, a plaintiff must show that she (1) is disabled, (2) otherwise qualified to perform the essential functions of the ...


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