Butler v. Proman Staffing

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

_____________________________________________________________________________

SHEILA BUTLER,

Plaintiff,

v. Case 2:24-cv-02121-TLP-cgc

PROMAN STAFFING,

Defendant.

_____________________________________________________________________________

REPORT AND RECOMMENDATION ON

DEFENDANT’S MOTION TO DISMISS

_____________________________________________________________________________

Before the Court is Defendant Proman Staffing’s (“Proman”) Motion to Dismiss (Docket

Entry (“D.E.”) #12). Pursuant to Administrative Order 2013-05, the instant motion has been

referred to the United States Magistrate Judge for Report and Recommendation. For the reasons

set forth herein, it is RECOMMENDED that Defendant’s Motion to Dismiss be GRANTED.

I. Background

This case arises from allegations of discrimination and retaliation in the hiring process for

a temporary staffing position. On March 13, 2023, Plaintiff filed a Charge of Discrimination

(“Charge”) with the Equal Employment Opportunity Commission (“EEOC”) detailing the alleged

violations, which Plaintiff states occurred from September 15 to September 19 of 2022. (D.E.

#12-1). Specifically, Plaintiff alleges that she applied through Proman for temporary staffing work

at a company named “Flex Ltd.” (“Flex”) but that Flex declined to offer her employment because

of her age (56) and her request for a reasonable accommodation based upon a disability (Lupus).

(Id.)

On February 23, 2024, Plaintiff filed a pro se Complaint with this Court alleging violations

of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621, et seq. and the

Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12112, et seq. (D.E. #1).1 Plaintiff’s

Complaint contains similar allegations regarding her attempt to be hired at Flex in mid-September

2022. (Compl. at PageID 4-8). Specifically, it states that she requested for Proman to assign her

to “first shift warehouse” work and that Proman assigned her to interview with Flex. (Id. at PageID

4). However, Plaintiff alleges that, when she interviewed there, an employee at Flex commented

that she wanted someone younger for the runner position and refused to hire her to work in another

area because she requested to be able to have chair in case she needed it. (Id. at PageID 4-6).

Plaintiff alleges that Proman did nothing further to assist her in gaining employment with Flex.

(Id. at PageID 6).

Plaintiff’s Complaint further states that she received the a Determination and Notice of

Rights letter (“Notice of Right to Sue”) in response to her EEOC Charge on November 24, 2023.

(D.E. #1 at PageID 12-13). The Notice of Right to Sue states as follows: “If you choose to file a

lawsuit against the respondent(s) on this charge under federal law in federal or state court, your

lawsuit must be filed WITHIN 90 DAYS of your receipt of this notice. Receipt generally

occurs on the date that you (or your representative) view this document. You should keep a record

of the date you received this notice. Your right to sue based on this charge will be lost if you do

not file a lawsuit in court within 90 days.” (Id. at PageID 12).

On February 11, 2025, Proman filed the instant Motion to Dismiss. (D.E. #11, #12). First,

Proman argues that Plaintiff’s Complaint should be dismissed as time-barred because it was filed

ninety-one days after Plaintiff stated she received the Notice of Right to Sue. Second, Proman

1 Although Plaintiff alleges violations of the ADEA, she does not check the box alleging age discrimination

on the Complaint. (Compl. ¶ 9 at PageID 9).

argues that Plaintiff’s Complaint fails to state a claim upon which relief may be granted under

either the ADEA or ADA.

Local Rule 12.1(b) required Plaintiff to respond to Proman’s Motion to Dismiss within

twenty-eight days after the motion was served. Plaintiff failed to do so. Accordingly, on April 24,

2025, this Court issued an Order to Show Cause directing her to do so. (D.E. #13). On May 8,

2025, Plaintiff filed her Response, but the Response fails to address the legal arguments raised in

Proman’s Motion to Dismiss. (D.E. #14).

II. Legal Standard

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a claim may be

dismissed for failure to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6).

In addressing a motion to dismiss under Rule 12(b)(6), the court must construe the complaint in

the light most favorable to plaintiff and accept all well-pled factual allegations as true. League of

United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007). A plaintiff can support

a claim “by showing any set of facts consistent with the allegations in the complaint.” Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 563 (2007). This standard requires more than bare assertions of

legal conclusions. Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 361 (6th Cir. 2001). “[A]

formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.

Any claim for relief must contain “a short and plain statement of the claim showing that the pleader

is entitled to relief.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Fed. R. Civ. P. 8(a)(2)).

“Specific facts are not necessary; the statement need only ‘give the defendant fair notice of what

the . . . .claim is and the grounds upon which it rests.” Id. (citing Twombly, 550 U.S. at 555).

Nonetheless, a complaint must contain sufficient facts “state a claim to relief that is

plausible on its face’” to survive a motion to dismiss. Twombly, 550 U.S. at 570. “The plausibility

standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that

defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 US. 662, 678 (2009) (citing Twombly, 550

U.S. at 556). “Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). A plaintiff with no

facts and “armed with nothing more than conclusions” cannot “unlock the doors of discovery.” Id.

at 678-79.

Pleadings and documents filed by pro se litigants are to be “liberally construed,” and a “pro

se complaint, however inartfully pleaded, must be held to a less stringent standard than formal

pleadings drafted by lawyers.” Erickson, 551 U.S. at 94 (2007) (quoting Estelle v. Gamble, 429

U.S. 97, 106 (1976)). However, “the lenient treatment generally accorded to pro se litigants has

limits.” Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996) (citing Jourdan v. Jabe, 951 F.2d

108, 110 (6th Cir. 1991)). The basic pleading essentials are not abrogated in pro se cases. Wells

v. Brown, 891 F.2d 591, 594 (6th Cir. 1989) A pro se complaint must still “contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Barnett v.

Luttrell, 414 Fed. Appx. 784, 786 (6th Cir. 2011) (quoting Ashcroft, 556 U.S. at 678) (internal

quotations and emphasis omitted). District Courts “have no obligation to act as counsel or

paralegal” to pro se litigants. Pliler v. Ford, 542 U.S. 225, 231 (2004). District Courts are also

not “required to create” a pro se litigant’s claim for him. Payne v. Secretary of Treasury, 73 Fed.

Appx. 836, 837 (6th Cir. 2003).

III. Proposed Analysis and Conclusions of Law

As a threshold question, Proman argues that Plaintiff’s Complaint is untimely because it

was not filed within ninety days of the date that Plaintiff states she received the Notice of Right to

Sue. See 42 U.S.C. § 2000e-5(f)(1). When a plaintiff files a complaint outside of this ninety-day

period, it must be deemed as time-barred and dismissed pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure. Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d

552, 558 (6th Cir. 2000). This limitation period is “strictly enforced,” and, even in the case of pro

se plaintiffs, “even one day’s delay is fatal to a claim.” Williams v. Sears, Roebuck & Co., 143 F.

Supp. 2d 941, 944-45 (W.D. Tenn. 2001); see also Peete v. Am. Standard Graphic, 885 F.2d 331,

331-32 (6th Cir. 1989) (affirming the dismissal of the complaint filed ninety-one days after receipt

of the notice of right to sue); Jeff Vernon v. Amazon Logistics, Inc., No. 2:20-cv-2949-JTF-cgc,

2023 WL 3981276, at *2 (W.D. Tenn. May 8, 2023), report and recommendation adopted, 2023

WL 3736280 (W.D. Tenn. May 31, 2023) (dismissing the complaint because the pro se plaintiff

indicated that he received the notice of right to sue ninety-one days before he filed suit). Here,

Plaintiff’s Complaint was filed ninety-one days following the date she alleges that she received

the Notice of Right to Sue. Accordingly, it is RECOMMENDED that Plaintiff’s Complaint be

dismissed pursuant to Rule 12(b)(6) as untimely.

Even if Plaintiff’s Complaint had been timely filed, it fails to allege that Proman made any

hiring decision or otherwise discriminated against or retaliated against her, as is required under

both the ADA and the ADEA. Instead, her allegations are that Flex did so, and it is not a defendant

in this case. Accordingly, it is RECOMMENDED that, even if Plaintiff’s claim were not time-

barred, it fails to state a claim upon which relief may be granted under either the ADA or ADEA.

IV. Conclusion

For the reasons set forth herein, it is RECOMMENDED that Proman’s Motion to Dismiss

be GRANTED.

DATED this 12th day of September, 2025.

s/ Charmiane G. Claxton

CHARMIANE G. CLAXTON

UNITED STATES MAGISTRATE JUDGE

ANY OBJECTIONS OR EXCEPTIONS TO THIS REPORT MUST BE FILED WITHIN

FOURTEEN (14) DAYS AFTER BEING SERVED WITH A COPY OF THE REPORT. 28

U.S.C. § 636(b)(1)(C). FAILURE TO FILE SAID OBJECTIONS OR EXCEPTIONS

WITHIN FOURTEEN (14) DAYS MAY CONSTITUTE A WAIVER AND/OR

FORFEITURE OF THE OPPORTUNITY TO RAISE OBJECTIONS, EXCEPTIONS,

AND ANY FURTHER APPEAL.