Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nesmith v. Hospice Compassus

United States District Court, M.D. Tennessee, Nashville Division

February 26, 2018

LEVI NESMITH
v.
HOSPICE COMPASSUS

          REPORT AND RECOMMENDATION

          Honorable Aleta A. Trauger, District Judge

         By Order entered October 25, 2017 (Docket Entry No. 4), this pro se case was referred to the Magistrate Judge for pretrial proceedings under 28 U.S.C. §§ 636(b)(1)(A) and (B), Rule 72 (b) of the Federal Rules of Civil Procedure, and the Local Rules of Court.

         Pending before the Court is Defendant's motion to dismiss (Docket Entry No. 7), to which Plaintiff has responded in opposition. See Docket Entry No. 10. For the reasons set out below, the undersigned Magistrate Judge respectfully recommends that the motion be granted and this action be dismissed.

         I. BACKGROUND

         Levi Nesmith (“Plaintiff”) is a former employee of Hospice Compassus (“Defendant”), a business located in Brentwood, Tennessee. On October 13, 2017, he filed this pro se and in forma pauperis lawsuit against Defendant seeking relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”). Plaintiff asserts that he was terminated from his employment on September 3, 2015, and brings claims for wrongful termination due to his race, color, and sex. He also brings a claim for unlawful retaliation for having filed a charge of discrimination. See Complaint (Docket Entry No. 1) at 2-3.

         The complaint itself contains essentially no supporting factual allegations. However, attached to the complaint is a Charge of Discrimination (“EEOC Charge”) filed by Plaintiff with the Tennessee Human Rights Commission on May 26, 2016, in which he complains of racial discrimination and retaliation. The EEOC Charge states:

I was hired by [Hospice Compassus] on February 28, 2015, as an Accounts Receivable Representative. On or about September 3, 2015, I was discharged. My attendance was better than my peers, who were not discharged. On or about September 10, 2015, I communicated to Manager Pam Tribby that I had missed work in the past in order to discuss discrimination with the EEOC regarding my previous employers. I requested confidentiality regarding our conversation. Several weeks later I was contacted by Human Resources Director Lamar Wade, who informed me that he had conducted an investigation and that the decision to discharge me was being upheld. Due to the breach of confidentiality by conducting an investigation, I am certain that I am now receiving and will continue to receive unfavorable references as I search for future employment.
I believe that I was discriminated against because of my race (African American) and in retaliation for opposing unlawful employment practices, in violation of Title VII of the Civil Rights Act of 1964, as amended.

See Complaint at 6. Because of the absence of factual allegations in the complaint, the Court construes the allegations contained in the EEOC Charge to be the underlying factual allegations for Plaintiff's claims.

         In lieu of an answer, Defendant filed the pending motion to dismiss the Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendant argues that, even if the EEOC Charge is viewed as providing supporting factual allegations, these allegations fail to state claims upon which relief can be granted. Defendant raises three grounds for dismissal: (1) with respect to his wrongful termination claims, Plaintiff fails to set forth factual allegations showing that he was treated differently than similarly situated employees who were outside the protected classes or that he was replaced by someone outside of the protected classes; (2) Plaintiff's claims for color and sex discrimination were not included in Plaintiff's EEOC Charge and, thus, have not been administratively exhausted; and (3) with respect to his retaliation clam, Plaintiff fails to set forth any factual allegations showing that he suffered an adverse employment action because of his alleged protected activity. See Memorandum in Support (Docket Entry No. 8).

         Plaintiff filed a response in opposition to the motion to dismiss, but the response does not set out any actual arguments and does not address the specific grounds for dismissal raised by Defendant. See Docket Entry No. 10. Instead, Plaintiff merely attaches to his response: (1) three documents from a Charge of Discrimination he filed on August 31, 2015, about alleged discrimination and retaliation at one of his prior employers, see Docket Entry No. 10 at 5-7; (2) a page from what appears to be Defendant's employee handbook, id. at 8; and (3) a page from what appears to be Defendant's response to the EEOC Charge Plaintiff filed regarding his employment with Defendant. Id. at 9. Plaintiff also attaches a new prayer for relief that amends his original prayer for relief to include specific amounts of monetary damages and a request for an “apology and admission of wrongful termination.” Id. at 3. Although unexplained by Plaintiff, the attachments appear to be an attempt by Plaintiff to prove the underlying merits of his claims.

         In a reply to the response, Defendant points out that Plaintiff fails to respond to its actual arguments for dismissal. Defendant also argues that none of the attachments offered by Plaintiff cure the deficiency in his complaint concerning the lack of supporting factual allegations for Title VII claims. See Reply (Docket Entry No. 13).

         II. ANALYSIS

         A motion to dismiss filed under Rule 12(b)(6) is reviewed under the standard that the Court must accept as true all of the well-pleaded allegations contained in the complaint and construe the complaint in the light most favorable to Plaintiff. Morgan v. Church's Fried Chicken, 829 F.2d 10, 11-12 (6th Cir. 1987). Because Plaintiff is a pro se litigant, the Court is also required to view his complaint with some measure of a liberal construction. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991). Although the complaint need not contain detailed factual allegations, the factual allegations supplied must be enough to show a plausible right to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-61, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). See also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In reviewing the sufficiency of the complaint, the Court need not accept as true legal conclusions or unwarranted factual inferences. See ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.