Opinion
C. A. 6:24-cv-01006-JDA-KFM
05-23-2024
Eureka Jackson, Plaintiff, v. Wal-Mart Inc., Mark Willis, Lisa Crumpton, Jerome Mikell, Defendants.
REPORT OF MAGISTRATE JUDGE
KEVIN F. MCDONALD, UNITED STATES MAGISTRATE JUDGE
This is a civil action filed by a pro se and in forma pauperis plaintiff. Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.
The plaintiff's complaint was entered on the docket on February 28, 2024 (doc. 1). On April 23, 2024, the undersigned issued an order informing the plaintiff that her complaint was subject to dismissal as drafted and providing her with time to file an amended complaint to correct the deficiencies noted in the order (doc. 11). The plaintiff was informed that if she failed to file an amended complaint or cure the deficiencies outlined in the order, the undersigned would recommend that her claims be dismissed (id. at 10). The plaintiff came to the Clerk's Office on May 7, 2024, and indicated that she was improperly referred to by the undersigned's use of male pronouns in the order issued April 23, 2024, and the undersigned entered an order taking note that the plaintiff is a female (doc. 15). However, the plaintiff has failed to file an amended complaint and the deadline has expired. Accordingly, the undersigned recommends that the instant matter be dismissed.
ALLEGATIONS
The plaintiff alleges that she worked at Wal-Mart, Inc. (“Wal-Mart”) for several years, but that the defendants terminated her employment, subjected her to unequal terms and conditions of employment, failed to accommodate her disability, and retaliated against her from March 2022 to August 2022 under Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Americans with Disabilities Act (“ADA”) (doc. 1 at 4). She contends that she was discriminated against for being African American and that the defendant failed to accommodate her disability of anxiety/depression (id. at 5). She received her notice of right to sue on November 30, 2023 (id.).
The plaintiff contends that she has suffered from mental health problems for fifteen years and worked for Wal-Mart for a long time with no disciplinary actions, but she was treated differently from Caucasian employees by Ms. Crumpton and Mr. Willis in 2022 (id. at 6). The plaintiff also contends she was denied an accommodation for specific work scheduling, as well as that her intermittent leave under the Family and Medical Leave Act (“FMLA”) was interfered with by the defendants (id.). The plaintiff also alleges retaliation by Mr. Mikell because she reported Mr. Mikell's misconduct to Wal-Mart (id. at 7).
The plaintiff contends she was terminated on August 24, 2022, for violating the attendance policy despite the plaintiff's absences previously being accommodated as part of her disability accommodation for anxiety and depression (id. at 8-9). The plaintiff had her doctor submit medical documentation to Sedgwick Claims in 2022 for her needed accommodation/FMLA intermittent leave so she would only work a specific schedule, but the leave was not approved (id.). The plaintiff submitted an ethics complaint regarding the actions taken against her (including her disability accommodation being ignored/rejected), but was still terminated (id. at 9-10). For relief, the plaintiff seeks money damages (id. at 11, 12).
STANDARD OF REVIEW
The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted,” is “frivolous or malicious,” or “seeks monetary relief against a Defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
DISCUSSION
As noted above, the plaintiff filed the instant action seeking damages from the defendants. However, the plaintiff's complaint is subject to summary dismissal.
Title VII Claims
The plaintiff brings some of her claims pursuant to Title VII (doc. 1). Title VII makes it “an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to her compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin . . . .” 42 U.S.C. § 2000e-2(a)(1). Here, the plaintiff alleges a Title VII race discrimination claim based on unequal terms and conditions of employment and a Title VII retaliation claim. The court addresses each claim in turn.
Individual Defendants
As an initial matter, to the extent the plaintiff sues Mr. Willis, Ms. Crumpton, or Mr. Mikell for alleged employment discrimination under Title VII, the court lacks subject matter jurisdiction because there is no individual liability under Title VII. Title VII prohibits discrimination by an employer, which is defined as “a person engaged in an industry affecting commerce who has fifteen or more employees . . . and any agent of such a person.” 42 U.S.C. § 2000e(b). It is well-established, however, that Title VII does not impose individual liability on supervisory employees. See Lissau v. S. Food Serv., Inc., 159 F.3d 177, 180-81 (4th Cir. 1998) (holding that supervisors cannot be found liable in their individual capacity under Title VII because they do not fit within the definition of an employer). Here, although the plaintiff indicates that the above individual defendants were involved in discriminating against her, she has not alleged that they were her employer (instead she contends she worked for Wal-Mart) (see doc. 1). As such, she cannot sue these individual defendants for employment discrimination. See Baird ex. rel. Baird v. Rose, 192 F.3d 462, 472 (4th Cir. 1999) (finding that Title VII does not provide a remedy against an entity who does not come within the definition of employer); Singleton v. Greenville Hous. Auth., C/A No. 6:09-cv-2104-JMC-KFM, 2010 WL 6065085, at *4-5 (D.S.C. Sept. 21, 2010) (explaining only an “employer” of an “employee” can be liable for discrimination under Title VII), Report and Recommendation adopted by 2011 WL 883669 (D.S.C. March 11, 2011). Accordingly, the plaintiff may not seek relief against the individual defendants under Title VII.
Discrimination Claim
To state a plausible Title VII discrimination claim based upon race, a plaintiff must allege that her employer treated her differently than coworkers who were not her race. 42 U.S.C. § 2000e-2(a)(1). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Here, the plaintiff's complaint contains only a vague and conclusory allegation that she (an African American) was subject to race discrimination because both she and Caucasian associates violated the same policy, but only she was terminated (doc. 1 at 6). Although the plaintiff's allegations must be liberally construed, the plaintiff must provide more than general and conclusory statements to allege a plausible claim for relief. Adams v. Rice, 40 F.3d 72, 74-75 (4th Cir. 1994), cert. denied, 514 U.S. 1022 (1995).
Further, the plaintiff has not alleged a proper Caucasian comparator. For example, as recently recognized by the Fourth Circuit, a comparator in a Title VII case must be similarly situated in all respects. Cosby v. S.C. Prob., Parole & Pardon Servs, 93 F.4th 707, 714 (4th Cir. 2024). In Cosby, the Fourth Circuit noted that “[t]he similarity between comparators and the seriousness of their respective offenses must be clearly established in order to be meaningful.” Id. (internal quotation marks omitted) (quoting Lightner v. City of Wilmington, 545 F.3d 260, 265 (4th Cir. 2008)). This includes allegations that the plaintiff and the comparator had the same supervisor(s), were subject to the same standards, and engaged in the same conduct without circumstances that would distinguish their conduct or the employer's treatment of them for it. Id. (internal citations omitted). As noted, here, the plaintiff just asserts that other unspecified Caucasian associates were treated differently, but provides no allegations that they were in the same position as the plaintiff, had the same supervisor, or that their intermittent FMLA leave was denied but they were not fired for excessive absenteeism. As such, the plaintiff's complaint fails to state a claim for Title VII race discrimination based upon unequal terms and conditions of employment. See Griffith v. State Farm Fire and Cas. Co., C/A No. 2:12-cv-00239-DCN, 2012 WL 2048200, at *1 (D.S.C. June 6, 2012) (quoting Iqbal, 556 U.S. at 678) (noting that the plausibility pleading standard requires more than “‘an unadorned, the-defendant-unlawfully-harmed-me accusation'”).
Retaliation Claim
Liberally construed, the plaintiff also appears to assert retaliation based on her engagement in protected activity under Title VII (doc. 1 at 4, 7). Under Title VII, an employer is forbidden from taking action that discriminates against an employee because that employee has either “opposed any practice made an unlawful employment practice by this subchapter” or has “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). The purpose of this anti-retaliation provision is to prevent “an employer from interfering (through retaliation) with an employee's efforts to secure or advance enforcement of the Act's most basic guarantees.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63 (2006). To state a plausible retaliation claim under Title VII, “[a] complaint [must] contain[] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face in the sense that the complaint's factual allegations must allow a court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” McCleary-Evans v. Md. Depl of Transp., 780 F.3d 582, 585 (4th Cir. 2015) (citations and internal quotation marks omitted) (some alterations in original). Importantly, a plaintiff must plausibly allege that but for the protected activity, she would not have experienced the alleged adverse act. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013) (noting that a plaintiff making “a retaliation claim under § 2000e-3(a) must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer.”).
Liberally construed, the plaintiff alleges that she engaged in protected activity when she complained about Mr. Mikell (doc. 1 at 7). However, the plaintiff does not allege that Mr. Willis - or any other individuals involved with her termination - were aware of the protected activity. Further, the plaintiff's complaint alleges that she was terminated based on race discrimination and failure to accommodate under the ADA, which appears to undermine her Title VII retaliation claim - because it requires “but for” causation. See Nassar, 570 U.S. at 362. Further, the plaintiff has failed to allege a causal link between her protected activity and her termination, as it is unclear how Mr. Willis (who terminated the plaintiff) was aware of the plaintiff's complaints regarding Mr. Mikell (the plaintiff's alleged protected activity). As such, as set forth above, the plaintiff's complaint does not state a claim for retaliation under Title VII that is plausible on its face. See Ruffin v. Lockheed Martin Corp., 659 Fed.Appx. 744, 745 (4th Cir. 2016) (citing Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277-78 (4th Cir. 2015) (en banc)). Accordingly, the plaintiff's Title VII retaliation claim is also subject to summary dismissal.
ADA Claims
The ADA prohibits employment discrimination “against a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). A qualified individual is “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). Here, the plaintiff asserts a failure to accommodate claim under the ADA.
Individual Liability
As an initial matter, to the extent the plaintiff sues Mr. Willis, Ms. Crumpton, or Mr. Mikell for alleged employment discrimination under the ADA, the court lacks subject matter jurisdiction because there is no individual liability under the ADA. The remedies in Title VII are applicable to ADA actions - and Title VII, as outlined above, does not impose individual liability on supervisory employees. See Baird, 192 F.3d at 472 (recognizing that the ADA does not permit an action against individual defendants). As such, the plaintiff may not seek relief against these defendants under the ADA.
Failure to Accommodate Claim
The plaintiff's failure to accommodate claim is subject to summary dismissal. To plausibly allege a prima facie case against an employer for failure to accommodate, a plaintiff must show: “‘(1) that [s]he was an individual who had a disability within the meaning of the statute; (2) that the [employer] had notice of [her] disability; (3) that with reasonable accommodation [s]he could perform the essential functions of the position . . .; and (4) that the [employer] refused to make such accommodations.'” Rhoads v. Fed. Deposit Ins. Corp., 257 F.3d 373, 387 n.11 (4th Cir.2001) (quoting Mitchellv. Washingtonville Cent. Sch. Dist., 190 F.3d 1,6 (2d Cir.1999)); see also Wilson v. Dollar Gen. Corp., 717 F.3d 337, 345 (4th Cir. 2013). Here, the plaintiff's complaint contains only a vague and passing reference to Wal-Mart failing to accommodate her disability - although her allegations are somewhat conflated with her FMLA allegations - by scheduling her for too many shifts (doc. 2 at 6, 8-9). However, vague and conclusory allegations - such as those proffered by the plaintiff - do not meet the plausibility standard. See Iqbal, 556 U.S. at 678 (noting that “[A] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”) (citing Twombly, 550 U.S. at 556-57). For example, there is no indication that the plaintiff made Mr. Willis or Mr. Mikell aware of her disability or requested an accommodation from them - her complaint instead asserts conclusorily that Mr. Willis and Mr. Mikell denied the plaintiff's needed accommodation of only working certain shifts. The plaintiff asserts that the accommodation needed was working “two shifts a week, still five days a week eighthour shifts” instead of “three different shifts” (doc. 2 at 8). However, the plaintiff also alleges that she was utilizing intermittent FMLA leave to take time off when needed to address her depression/anxiety; thus, she has not alleged that she specifically requested an accommodation of a different schedule or that being so accommodated would allow her to meet the essential functions of her job. As such, the plaintiff's complaint fails to plausibly allege a failure to accommodate claim under the ADA.
FMLA Claims
For covered employees, the FMLA entitles employees to take “reasonable leave for medical reasons.” 29 U.S.C. § 2601(b)(2). The FMLA provides certain rights and protections, including 12 workweeks of leave during any 12-month period for family-related reasons or an employee's serious health condition that prevents her from doing her job. 29 U.S.C. § 2612(a)(1). Typically, after taking FMLA leave, an employee may return to his/her pre-leave job or an equivalent position. Id. § 2614(a)(1)(A)-(B); Fry v. Rand Constr. Corp., 964 F.3d 239, 244 (4th Cir. 2020). Section 2615 makes it unlawful for an employer to “interfere with, restrain, or deny the exercise of or the attempt to exercise any right” provided for in the FMLA. 29 U.S.C. § 2615(a)(1). As an initial matter, whether the “FMLA imposes liability on employee supervisors in their individual capacities is an open question in this circuit.” Jones v. Sternheimer, 387 Fed.Appx. 366, 368-69 (4th Cir. 2010). However, as outlined in more detail below, the undersigned need not resolve this question at this juncture. As such, the plaintiff's FMLA interference claim will be evaluated as to all of the defendants.
To state a claim for FMLA interference, a plaintiff must allege (1) entitlement to an FMLA benefit; (2) her employer interfered with the provision of that benefit; and (3) that interference caused harm. Adams v. Anne Arundel Cnty. Pub. Sch., 789 F.3d 422, 427 (4th Cir. 2015). Although a plaintiff does not have to specifically plead every element of a prima facie case of FMLA interference in her complaint, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002), she must still plead “enough facts to state a claim to relief that is plausible on its face,” Twombly, 550 U.S. at 570. The plaintiff's allegations involving her FMLA leave are not the model of clarity, although she alleges that she has (at least in the past) regularly participated in intermittent FMLA leave (doc. 1 at 8-10). Nevertheless, the plaintiff has plausibly alleged that she was entitled to benefits under the FMLA. The plaintiff also alleges that she was terminated for excessive absences because her FMLA intermittent leave was denied (doc. 1 at 8-10); thus, she has plausibly alleged the third element that she was harmed. The plaintiff has not, however, plausibly alleged that her employer interfered with her participation in FMLA leave. Here, the plaintiff contends that an FMLA intermittent leave request in March 2022 had been denied based on documentation needed from the plaintiff's doctor, which meant that her absences could not be considered FMLA leave (doc. 1 at 8-9). First, to the extent the plaintiff contends that having to provide documentation from a doctor interfered with her use of FMLA leave, her claim fails because an employer can request recertification of a chronic or long term condition from a medical provider. Howard v. Inova Health care Servs., 302 Fed.Appx. 166, 174 (4th Cir. 2008) (internal citations omitted). Further, the plaintiff alleges that she did not resubmit documents to support her FMLA intermittent leave until after her termination for excessive absences - meaning that her termination could not have been a basis for an FMLA interference claim (see doc. 1 at 9-10). As such, the plaintiff's FMLA interference claim fails to state a claim for relief.
RECOMMENDATION
By order issued April 23, 2024, the undersigned provided the plaintiff an opportunity to correct the defects identified in her complaint and further warned the plaintiff that if she failed to timely file an amended complaint or failed to cure the identified deficiencies, the undersigned would recommend to the district court that the action be dismissed with prejudice and without leave for further amendment (doc. 11). The plaintiff has failed to file an amended complaint within the time provided. As such, in addition to the reasons discussed herein, this action should be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for failure to comply with a court order. Therefore, in light of the plaintiff's failure to respond to this court's order regarding amendment, the undersigned recommends that the district court dismiss this action with prejudice, without further leave to amend, and without issuance and service of process. See Britt v. DeJoy, 45 F.4th 790, 2022 WL 3590436 (4th Cir. Aug. 17, 2022) (mem.) (published) (noting that “when a district court dismisses a complaint or all claims without providing leave to amend . . . the order dismissing the complaint is final and appealable”). The attention of the parties is directed to the important notice on the following page.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committees note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
250 East North Street, Room 2300
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).