Prean v. First Tennessee Bank et al

Filing 12

ORDER ADOPTING IN PART and REJECTING IN PART DE 7 REPORT AND RECOMMENDATIONS signed by Judge John T. Fowlkes, Jr. on 12/23/13. (Fowlkes, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
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TARA NICOLE PREAN,
Plaintiff,
vs.
FIRST TENNESSEE BANK,
FIRST HORIZON BANK, and
FTN FINANCIAL,
Defendants.

No. 13-2729-JTF-dkv

ORDER ADOPTING IN PART AND REJECTING IN PART THE MAGISTRATE’S
AMENDED REPORT AND RECOMMENDATION, DIRECTING A SUMMONS TO ISSUE
AND TERMINATING PLAINTIFF’S MOTION TO AMEND AS MOOT
Before the Court is the Magistrate Judge’s Amended Report
and Recommendation filed on October 10, 2013 that recommends
dismissal of Plaintiff’s employment discrimination action. (DE
#7). On October 23, 2013, the Court granted Plaintiff additional
time in which to file any objections. (DE #9). On November 12,
2013, Plaintiff filed her objections to the Magistrate Judge’s
Amended Report and Recommendation. (DE #11).
The
Report

Court
and

has

reviewed

de

Report

and

Amended

novo

the

Magistrate

Recommendations,

Judge’s

the

legal

analysis, Plaintiff’s objections and the entire record.

The

Court

and

finds

the

Magistrate

Judge’s

Amended

Report

Recommendation should be Adopted in Part and Rejected in Part, a
Summons

should

issue

and

Plaintiff’s
1

Motion

to

Amend

her

Complaint terminated as Moot.
II.
Plaintiff

LEGAL STANDARD

initiated

this

matter

on

September

18,

2013,

without legal representation. On September 19, 2013, this matter
was

referred

to

determination,

the

or

Magistrate

for

report

Judge
and

for

administration,

recommendation

of

all

preliminary and pretrial matters pursuant to 28 U.S.C. § 636 (b)
and Fed. Rule Civ. P. 1. In screening the complaint to determine
whether a summons should issue under 28 U.S.C. § 1915(e)(2) or
whether the case should be dismissed under Fed. Rule Civ. P.
12(b)(6),

the

Magistrate

Judge

issued

a

report

and

amended

report, recommending that Plaintiff’s complaint be dismissed as
time barred.
The district judge must review the magistrate judge’s
proposed findings of fact and recommendations in dispositive
motions de novo.

See 28 U.S.C. §636 (b)(1)(C);

Baker v.

Peterson, 67 Fed. App’x. 308, 311, (6th Cir. 2003).
III. ANALYSIS
Tara Nicole Prean has filed this case against her employer
First Tennessee Bank, as well as, First Horizon National and FTN
Financial, alleging race discrimination in violation of Title
VII, 42 U.S.C. 2000 (e), et seq.

Plaintiff asserts that while

employed with First Tennessee, she has been denied the right to
take a Series 99 examination while other non-supervisory white
2

employees had been allowed to test.

She filed her charge with

the Equal Employment Opportunity Commission and received a
Notice of Right to Sue on June 19, 2013.
In her report and recommendation, the Magistrate Judge
recommended that the case be dismissed for failure to state a
claim pursuant to Fed. Rule Civ. P. 12(b)(6). The Magistrate
found two issues regarding Prean’s complaint: 1) finding that
Plaintiff had failed to assert any factual basis for her claims
against two of the three named defendants; and 2) for failing to
meet the 90-day filing requirement for Title VII actions. The
Court will examine both issues in turn.
A. Prean’s Claims Against First Horizon and FTN
Prean lists First Tennessee Bank, First Horizon National,
and FTN Financial as defendants in the style of the case.
However, Prean only names First Tennessee Bank as the defendant
in her complaint. Further, Prean fails to reference any factual
allegations in the body of the complaint against either First
Horizon National or FTN Financial. Only in Plaintiff’s
objections to the Magistrate’s report, does she add any
information regarding her employment relationship since 2004
with FTN Financial, a division of First Tennessee Bank.
Regarding FTN Financial, Prean asserts in her objections to
the Magistrate’s report, that she earned her Bachelors and
Masters of Science degrees while working within the Financial
3

Capital Markets division of First Tennessee National. She seems
to imply that her superiors overlooked her requests for
information regarding opportunities as well as denied her
promotional opportunities. The objections also contain
allegations of other racially discriminatory incidences that
occurred during her employment with FTN Financial. Ultimately,
Prean’s complaint and her objections make no reference at all to
her relationship with First Horizon or any perceived
discriminatory practices.
As such, the Magistrate determined that Prean’s complaint
was devoid of any definitive claims of employment discrimination
against either FTN Financial or FTN Financial Capital. The Court
finds the Magistrate’s determination in this regard absolutely
correct. The Court adopts this portion of the Magistrate’s
report and recommendation and finds that Prean’s Title VII
action against First Horizon National and FTN Financial should
be dismissed.
B. Prean’s Title VII Claims Against First Tennessee
As stated, Prean lists First Tennessee Bank as a Defendant
in the style and body of the complaint in paragraph three. Prean
alleges First Tennessee denied her the ability to test for a
possible promotion unlike other non-supervisory white employees.
Based on these allegations, the Magistrate concluded that Prean
had made a sparse, yet sufficient, claim of employment
4

discrimination based on race against First Tennessee. The Court
agrees with the Magistrate’s determination, that the complaint
against First Tennessee should not be dismissed for failure to
state a claim pursuant to Fed. Rule Civ. P. 12(b)(6).
C. Did Prean Satisfy the Ninety-Day Filing Requirement
Although the Magistrate concluded that Prean had made a
sufficient claim of employment discrimination against First
Tennessee, she determined that Prean’s case should be dismissed
as time-barred. Specifically, the Magistrate’s report provided
that Plaintiff filed her case on September 18, 2013, ninety-one
(91) days after receiving her Notice of Right to Sue and one-day
too late.1

Finally, the Magistrate concluded that equitable

tolling was inapplicable in this case, rendering Plaintiff’s
case time-barred.
Plaintiff

objected

to

the

Magistrate’s

report

that

her

complaint was untimely filed based on the conclusion that she
did not file her action by September 17, 2013, within ninety
days from June 19, 2013. In support of her objections, Plaintiff
states that it is illogical that she would have received the
Notice of her Right to Sue on June 19, 2013, the same date it
1

The Magistrate’s report addresses the presumption in Sixth Circuit case law that
a party-addressee receives a Notice of Right to Sue within five days of the
date it was mailed. Banks v. Rockwell Int’l N. Am. Aircraft Operations, 855
F.2d 324, 326 (6th Cir. 1988) and Vinson v. The Kroger Co., No. 3-06-1158,
2007 WL 1623851, at *2 (M.D. Tenn. June 1, 2007). However, the Magistrate’s
report calculates the ninety-day period from June 24, 2013 as September 22,
2013, a Sunday. As such, the Magistrate concluded Prean had until September
23, 2013, to file her suit, rendering her complaint timely.

5

was mailed.
actually
filed.2

She now asserts the Notice of her Right to Sue was

received

on

June

21,

2013,

making

her

case

timely

In Plaintiff’s objections, she explains that since 2004,

she had been employed with FTN Financial, a division of First
Tennessee Bank. Upon a de novo review of Plaintiff’s objections
and her complaint, the Court concludes the Magistrate’s report
on this issue should be adopted.
In employment discrimination cases filed under Title VII,
the failure to file within the ninety-day statutory time frame
is treated in the same manner as a failure to file within the
statute of limitations. Truitt v. County of Wayne, 148 F.3d 644,
646-47 (6th Cir. 1998). Therefore, the ninety-day requirement is
subject

to

waiver,

estoppel

and

equitable

tolling.

Id.

Equitable tolling generally applies when the litigant fails to
meet certain deadlines because of circumstances beyond his or
her control.

Graham – Humphreys v. Memphis Brook Museum of Art,

Inc., 209 F.3d 552, 560-61 (6th Cir. 2000).
The

Sixth

Circuit

has

adopted

a

five-factor

test

to

determine whether equitable tolling applies: 1) lack of notice
of the filing requirement; 2) lack of constructive knowledge of
the filing requirement; 3) diligence in pursuing one’s rights;
4) absence of prejudice to the defendant; and 5) the plaintiff’s
2

Plaintiff erroneous asserts that she was within the 180 days required to
file when the statute actually permits only 90 days from receipt of the Right
to Sue notice in which to file the matter in district court. 42 U.S.C. §2000
(e).

6

reasonableness

in

remaining

ignorant

of

the

particular

legal

requirement. Truitt, 148 F.3d at 648. Notably, federal courts
sparingly

allow

Veterans

equitable

Affairs,

498

U.S.

tolling.

Irwin

89,

111

96,

v.

S.Ct.

Department
453,

457,

of
112

L.Ed.2d 435 (1990).
Plaintiff’s objections do not request an equitable tolling
of the ninety-day filing requirement. Instead, Plaintiff now
indicates that she actually received her Right to Sue letter on
June 21, 2013, instead of on June 19, 2013.

The Court

acknowledges that the EEOC’s Notice of Right to Sue form is
dated June 19, 2013.3

On September 18, 2013, Plaintiff asserts

that “[t]he Equal Employment Opportunity Commission issued a
Notice of Right to Sue that was received by plaintiff on 19 June
2013.”4 The Magistrate’s conclusion that Prean failed to initiate
the lawsuit within ninety days after receiving the Notice of
Right to Sue appears to be correct.
However, the Court makes reference to Plaintiff’s
contention that she could not have actually received the Right
to Sue Notice by mail on June 19, 2013, the date the form was
filed stamped as mailed. It appears to the Court that Prean
erred when she filled out the complaint form. As such, the Court
finds that because the date of receipt of the EEOC’s Notice of

3
4

DE #1-1.
DE #1, Number 8.

7

Right to Sue is unclear, Plaintiff is allowed five additional
days to the date the EEOC mailed the Right to Sue Notice in
which to file her case. Banks v. Rockwell Int’l N. Am. Aircraft
Operations, 855 F.2d 324, 326 (6th Cir. 1988). Where there are
conflicting interpretations of the facts, they must be construed
in the plaintiff’s favor. Williams v. Sears, Roebuck and Co.,
143 F. Supp. 2d 941, 944 (W.D. Tenn. 2001); Scheuer v. Rhodes,
416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90(1974). The
five-day presumption from the date-of-mailing rule applies in
this case. Banks, 855 F.2d at 326.

Therefore, Plaintiff did not

miss the filing deadline of September 23, 2013, and the Court
rejects the Magistrate’s determination that Prean’s complaint
was untimely filed.
CONCLUSION
For the reasons set forth above, the Court ADOPTS IN PART
and REJECTS IN PART the Magistrate’s Judge’s Amended Report and
Recommendation to Dismiss sua sponte Plaintiff’s complaint
pursuant to 28 U.S.C. §1915 (e)(2)(B)(ii) and Fed. Rule Civ. P.
12(b)(6). As such, the Court DISMISSES without prejudice
Defendants First Horizon National and FTN Financial.

The Court

will deem Plaintiff’s Motion to file an Amended Complaint, DE
#10, filed on November 12, 2013, as a supplemental pleading

8

pursuant to Fed. Rule Civ. P. 15 (d).5

Accordingly,

the Court

Orders the Clerk to issue a summons of the Complaint, DE #1, and
Amended Statement of Complaint, DE #10, for Defendant First
Tennessee Bank pursuant to Fed. Rule Civ. P. 4(c)(3) and 28
U.S.C. § 1915. Based on this ruling, Plaintiff’s Motion to file
an Amended Complaint is rendered MOOT.
IT is SO ORDERED on this 23rd day of December, 2013.

s/John T. Fowlkes, Jr.
JOHN T. FOWLKES, JR.
UNITED STATES DISTRICT JUDGE

5

Fed. Rule Civ. P. 15(d) provides in part that, the Court may, on just terms,
permit a party to serve a supplemental pleading setting out any transaction,
occurrence, or event that happened after the date of the pleading is to be
supplemented. Plaintiff has alleged additional events that occurred after her
filing date of September 18, 2013, in order to support her claims of
employment discrimination. See ¶(g).

9