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Burse v. Nashville Community Care at Bordeaux

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

June 4, 2018





         Pending before the Court is Defendant motion to dismiss (Docket Entry No. 11), to which Plaintiff has failed to respond and is unopposed. The Magistrate Judge RECOMMENDS that this motion be GRANTED and that this action be DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         Plaintiff, William Burse, filed this pro se action against Defendant, Nashville Community Care at Bordeaux, on August 7, 2017. (Docket Entry No. 1). Plaintiff asserts a claim for “discrimination.” Id. at 1. The District Judge referred the case to the Magistrate Judge for decision on all pretrial, nondispositive motions, and a report and recommendation on any dispositive motions. (Docket Entry No. 5).

         On January 8, 2018, Defendant filed a motion to dismiss. (Docket Entry No. 11). On January 23, 2018, the Magistrate Judge entered and Order (Docket Entry No. 14), giving Plaintiff until February 12, 2018, to file a response. The Magistrate Judge cautioned Plaintiff that a failure to respond could result in the motion being granted as unopposed. Id. After receiving a letter from Plaintiff that the Magistrate Judge construed as a request for more time to respond to the motion to dismiss, the Magistrate Judge gave Plaintiff until February 26, 2018 to file a response. (Docket Entry No. 16). The Magistrate Judge again cautioned Plaintiff that failing to file a response may cause the Magistrate Judge to recommend that Defendant's motion to dismiss be granted. Id. The Magistrate Judge also noted that although, under Rule 15 of the Federal Rules of Civil Procedure, Plaintiff could file a motion to amend his complaint to provide more details, he had failed to do so at that point and advised Plaintiff to read Rules 15 and 56 under the Federal Rules of Civil Procedure. Id. at 1 n.1. The Magistrate Judge set the matter for a March 7, 2018 telephone conference to discuss the status of the case and the possibility of ADR. Id. at 1. Following the telephone conference, the Magistrate Judge granted Plaintiff until March 29, 2018 to respond to Defendant's motion to dismiss and warned Plaintiff that failure to respond could result in a recommendation that Defendant's motion be granted. (Docket Entry No. 17). The Magistrate Judge noted that Plaintiff had not filed an amended complaint and that any request to amend his complaint at the present time would require a motion under Rule 15(a)(2). Id. As of the date of this Report and Recommendation (“R&R”), Plaintiff has not responded to Defendant's motion to dismiss or moved to amend his complaint.[1]

         In his complaint, Plaintiff only alleges “discrimination” as the grounds for filing his action in federal court. (Docket Entry No. 1). Plaintiff does not allege any facts in his complaint. However, Plaintiff attached to his complaint the EEOC's Notice of Right to Sue, Plaintiff's EEOC charge of discrimination, and a copy of the EEOC investigative report. (Docket Entry No. 1-1). The EEOC charge of discrimination reflects that Plaintiff's allegations are that he was discriminated on the basis of his sex and age and that he was retaliated against for opposing unlawful employment practices. (Docket Entry No. 1-1, at 4). According to the EEOC charge, in May 2013, Defendant hired Plaintiff as a housekeeper/janitor. Id. On or about February 22, 2016, Plaintiff filed a complaint with his employer's human resource director, “regarding the treatment [Plaintiff] was subjected to by Lead Housekeeper/Janitor Phyllisa Evans, ”[2] and that “[o]n or about February 26, 2016, [Plaintiff] was discharged by Chief Executive Officer Anthony Mason.” Id. Plaintiff was told by Mason that he “was discharged for threatening behavior and interference in an investigation.” Id.

         In a letter dated March 23, 2017 from the EEOC to Plaintiff informing Plaintiff as to the status of the investigation, the EEOC investigator states, in part:

In your charge you alleged you were discriminated and retaliated against because of your gender (male), and your age (56), in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended and the Age Discrimination in Employment Act of 1967 (ADEA), as amended. You allege you were harassed by Ms. Evans when she refused to tell you who it was that falsely accused you of smoking and hiding in a closet, and when she gave you more work than you could handle. You assert you immediately reported Ms. Evans to Human Resources and after you complained you were discharged. You state that the reason given to you for your discharge was for acting in an intimidating manner. You allege other female employees have acted in the same manner, yet were not discharged.

Id. at 9.

         On September 13, 2017, Plaintiff filed a notice of additional information (Docket Entry No. 6), asserting, essentially, the same allegations. Plaintiff alleges that he was “terminated due to accusation that have no evidence.” Id. at 3. Plaintiff alleges that “head person” Phyllisa Evans was informed that Plaintiff was taking long smoke breaks and hiding in a closet, but that Evans refused to tell him who told her this information. Id. According to Plaintiff, after Evans went down a elevator, he followed her downstairs to “continue the conversation, ” but that she refused to tell him who told her. Id. at 4. Plaintiff alleges that he told her that he “felt that she was harassing [him] with false allegations and adding more to [his] work assignment.” Id. at 4. Plaintiff then went to the human resource department to file a complaint “for harassment” against Evans. Id. at 5. Plaintiff alleges that he was not counseled for any confrontation or threatening behavior towards Evans, that he did not have any “active coaching or counseling in [his] files, ” and that he had not received any written warnings since his employment began in May 2013. Id.

         Additionally, Plaintiff alleges that he is a union steward for SEIU Local Union 205 and has sat in a hearing for a particular female employee who had “verbal conversations, ”--one of which Plaintiff describes as being a “verbal confrontation and intimidating conversation, ”--on three occasions with other employees. Id. at 5-6. According to Plaintiff, that woman was afforded coaching and counseling and is still working for Signature Health Care Madison facility. Id. at 6. Allegedly, another woman who was involved in one of these conversations was also afforded coaching and counseling. Id.; Docket Entry No. 8, at 6-7.

         Before the Court is Defendant's motion to dismiss (Docket Entry No. 11), contending that Plaintiff's discrimination claim is time-barred because he failed to serve Defendant within ninety days of filing his complaint in federal court as required by Fed.R.Civ.P. 4(m) and the statute of limitations expired by the time he finally perfected service. Defendant also contends that Plaintiff's complaint fails to allege sufficiently a discrimination claim under the federal pleading standards as it does not: (a) identify the type of discrimination to which Plaintiff alleges he was subjected; (b) identify the factual basis for any discrimination claim; and (c) set out the essential elements of a discrimination claim.

         II. ...

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