                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                January 5, 2010 Session

  PAM WEBB, v. NASHVILLE AREA HABITAT FOR HUMANITY, INC.

              Appeal from the Third Circuit Court for Davidson County
                 No. 09C-1221      Hon. Barbara N. Haynes, Judge


                 No. M2009-01552-COA-R3-CV - Filed April 16, 2010




In this action charging retaliatory discharge, the Trial Court granted defendant a dismissal
of action based on its Tenn. R. Civ. P. Rule 12 Motion. On appeal, we vacate the Judgment
of the Trial Court and remand.


 Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Vacated and
                                   Remanded.


H ERSCHEL P ICKENS F RANKS, P.J., delivered the opinion of the Court, in which F RANK G.
C LEMENT, J R., J., and A NDY D. B ENNETT, J., joined.


James L. Harris, Nashville, Tennessee, for the appellant, Pam Webb.

R. Eddie Wayland, Nashville, Tennessee, for the appellee, Nashville Area Habitat for
Humanity, Inc.




                                        OPINION


       Plaintiff, Pam Webb, filed a Complaint against the Nashville Area Habitat for
Humanity, Inc., alleging that she was a former employee, and worked as defendant’s vice-
president of family services beginning in August 2007. She alleged that in December 2008,
she filed a written complaint regarding what she perceived as illegal acts on behalf of
defendant’s management. Specifically, plaintiff stated she was told not to allow services to
be given to a 74-year-old person because it would “be a bad decision to loan money to
someone this old.” Plaintiff alleged that Chris McCarthy, a management employee,
implemented policies that were discriminatory and in direct violation of the Equal Credit
Opportunity Act and fair housing statutes, and made statements with regard to age, familial
status, and disability. She alleged that she was terminated two months after she made her
complaint, and that the reason given was budgetary, but that this was pretextual and she was
fired for reporting illegal activity.

       Defendant moved to Dismiss on the grounds that plaintiff failed to state a claim, and
asserted that plaintiff failed to give specifics of her claim or to cite to specific statutory
provisions. Plaintiff then filed a Motion to Amend, and the Amended Complaint stated that
McCarthy implemented policies that were discriminatory and in violation of the Equal Credit
Opportunity Act and the Tennessee Human Rights Act.

       Defendant then filed an Amended Motion to Dismiss, asserting that the Equal Credit
Opportunity Act stated that it was not discriminatory to inquire of an applicant’s age for the
purpose of determining continuance of income levels or other pertinent elements of
creditworthiness. Defendant also asserted that the THRA did not apply to age discrimination
in housing, and further asserted that plaintiff’s Amended Complaint was still factually
deficient.

        At a hearing before the Trial Court, the Court ordered the case dismissed for failure
to state a claim. The sole issue on appeal is whether the Court erred in dismissing plaintiff's
cause of action.

      This case involves the grant of a Tenn. R. Civ. P. 12 motion to dismiss. As we have
previously explained:

       The purpose of a Tenn. R. Civ. P. 12.02(6) motion to dismiss is to determine whether
       the pleadings state a claim upon which relief can be granted. A Rule 12 motion only
       challenges the legal sufficiency of the complaint. It does not challenge the strength
       of the plaintiff’s proof. In reviewing a motion to dismiss, we must liberally construe
       the complaint, presuming all factual allegations to be true and giving the plaintiff the
       benefit of all reasonable inferences. Thus, a complaint should not be dismissed for
       failure to state a claim unless it appears that the plaintiff can prove no set of facts in
       support of his or her claim that would warrant relief. Our review of a trial court’s
       determinations on issues of law is de novo, with no presumption of correctness.

Deja Vu of Nashville, Inc., et al. v. The Metropolitan Gov’t of Nashville and Davison Co.,

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et al., 2009 WL 3270195 (Tenn. Ct. App. Oct. 12, 2009).

       Further, in that same case, this Court recognized that:

       Tennessee Rule of Civil Procedure 8.01 requires that a pleading which sets forth a
       claim for relief “shall contain: (1) a short and plain statement of the claim showing
       that the pleader is entitled to relief; and (2) a demand for judgment for the relief the
       pleader seeks. Relief in the alternative or of several different types may be
       demanded.” Further, as it pertains to statutes, ordinances and regulations, Tenn. R.
       Civ. P. 8.05, which is entitled “Pleading to Be Concise and Direct-Statutes,
       Ordinances and Regulations-Consistency,” requires:

               (1) Each averment of a pleading shall be simple, concise and direct. No
               technical forms of pleading or motions are required. Every pleading stating a
               claim or defense relying upon the violation of a statute shall, in a separate
               count or paragraph, either specifically refer to the statute or state all of the
               facts necessary to constitute such breach so that the other party can be duly
               apprised of the statutory violation charged. The substance of any ordinance or
               regulation relied upon for claim or defense shall be stated in a separate count
               or paragraph and the ordinance or regulation shall be clearly identified. The
               manner in which violation of any statute, ordinance or regulation is claimed
               shall be set forth.

       Tenn. R. Civ. P. 8.05 (emphasis added).

Id. at 5-6 (citations omitted).

       Similarly, in the case of Demers v. Whittenburg, et al., 2004 WL 1196109 (Tenn. Ct.
App. May 27, 2004), we stated that while pleadings are to be liberally construed, “the need
for some degree of coherence has not been totally abandoned. Tenn. R. Civ. P. 8.01 still
requires that the facts upon which a claim for relief is founded must be stated in the
complaint.”

        In this case, the facts alleged in plaintiff’s Amended Complaint were that plaintiff had
filed a written complaint with defendant regarding what she believed were illegal acts,
specifically, that she was instructed by a management employee “not to allow services to be
given to a person 74 years old because it would be a bad decision to loan money to someone
this old.” Plaintiff further alleged that a management employee, Chris McCarthy, “made
statements and asked staff members to implement polices that were and are discriminatory
and in direct violation of the Equal Credit Opportunity Act, regulations promulgated

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thereunder, and the Tennessee Human Rights act in that the policies in question involved
unlawful age discrimination.” She goes on to state that policies also involved familial status
and disability.

       Regarding these claims about “policies”, however, there are no facts provided to show
the basis for the claims. Plaintiff’s complaint merely states conclusory allegations that
discriminatory policies were sought to be implemented by defendant. Thus, the only factual
assertion is that plaintiff was instructed by a management employee “not to allow services
to be given to a person 74 years old because it would be a bad decision to loan money to
someone this old.”

         The only statutes which plaintiff references in her complaint are the Equal Credit
Opportunity Act and the Tennessee Human Rights Act. The Tennessee Human Rights Act
only prohibits discrimination with regard to age as it involves employment and public
accommodations. Tenn. Code Ann. §4-21-101. Thus, it is inapplicable to the facts alleged
in this case. The Equal Credit Opportunity Act, however, specifically states that it is
“unlawful for any creditor to discriminate against any applicant, . . . on the basis of race,
color, religion, national origin, sex or marital status, or age . . .”. 15 U.S.C. §1691. While
it is true that the statute goes on to state that age can be inquired about for the purpose of
determining probable continuance of income levels, etc., it still does prohibit discrimination
solely on the basis of age. Id.

        The factual assertion contained in plaintiff’s complaint is that she was told not to
allow services to be given to 74 year old persons because they were too old. As observed
earlier, we must “presum[e] all factual allegations to be true and giv[e] the plaintiff the
benefit of all reasonable inferences.” See Deja Vu. If this factual assertion is true, as we
must assume at this point, then it could show that defendant discriminated against an
applicant on the basis of age, in violation of this statute. A “complaint should not be
dismissed for failure to state a claim unless it appears that the plaintiff can prove no set of
facts in support of his or her claim that would warrant relief.” Id. Also assuming, as we
must, that plaintiff was discharged for complaining about this violation, then she states her
claim of retaliatory discharge.

       Accordingly, we hold the Trial Court's Judgment should be vacated and remand for
further proceedings consistent with this Opinion. The costs of the appeal are assessed to
Nashville Area Habitat for Humanity, Inc.




                                                    _________________________________
                                                    HERSCHEL PICKENS FRANKS, P.J.

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