United States District Court, M.D. Tennessee, Nashville Division
REPORT AND RECOMMENDATION
Honorable Aleta A. Trauger, District Judge
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.
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
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.
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
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.
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).
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.
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).
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 ...