Opinion
4:23-cv-00074-JAR
08-04-2023
JEANNIE M. URBAN, Plaintiff, v. WALMART, Defendant.
Kimberly A. Ross, #71255MO Daniel P. O'Donnell, Jr., #59970MO Attorneys for Defendant Jeannie M. Urban PLAINTIFF PRO SE
Kimberly A. Ross, #71255MO Daniel P. O'Donnell, Jr., #59970MO Attorneys for Defendant
Jeannie M. Urban PLAINTIFF PRO SE
DEFENDANT WALMART'S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF'S COMPLAINT
Defendant Walmart (“Walmart”), by and through undersigned counsel and pursuant to Federal Rule of Civil Procedure 12(b)(6), hereby submits its Memorandum in Support of Defendant's Motion to Dismiss Plaintiff's Complaint.
I. INTRODUCTION
Pro se Plaintiff Jeannie M. Urban (“Plaintiff”) is a former Walmart associate. Plaintiff filed a Charge of Discrimination with the EEOC against Walmart on February 24, 2022, alleging only disability discrimination. See Exhibit A, Charge of Discrimination. After receiving a Notice of Right to Sue on November 1, 2022, Plaintiff subsequently filed this lawsuit on January 23, 2023.
In her lawsuit, Plaintiff brings a myriad of claims against Walmart for discrimination, including claims under Title VII, the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act of 1973. Among these claims include wrongful termination of employment, failure to accommodate a disability, retaliation, harassment, and other, unspecified conduct. Plaintiff never identifies what this conduct is.
In the particulars of her Complaint, Plaintiff alleges she was terminated by Walmart at an unspecified date prior to June 13, 2022, for failing to return from a leave of absence. See Complaint p. 11. Plaintiff further alleges that she was rehired by Walmart on June 13, 2022 but took various medical absences because she could not perform her job requirements due to her “mental status” and “physical status” and needed “some accommodations.” Id. Plaintiff states Walmart “did not accommodate her disability” and ended up firing her due to attendance points. Id. Plaintiff alleges she made various attempts to contact Walmart after taking these leaves of absences. Id. Plaintiff alleges the manager told her on an unspecified date that he would not rehire her because she is a “very sick woman.” Id. In the Complaint, Plaintiff identifies the relevant dates of discrimination as July 16, 2022 through January 16, 2022. Id. at p. 3. Plaintiff's Charge of Discrimination adds little value to these threadbare allegations, simply noting Plaintiff was terminated on or about January 17, 2022, for exceeding the number of points toward absences under Walmart's attendance policy. See Ex. A.
Walmart assumes Plaintiff intends the initial date of discrimination to be July 16, 2021, based on the information available in the Charge and Complaint.
Plaintiff's lawsuit is grossly deficient. Based on the pleadings, it is unclear what claims are brought under Title VII, the ADA, or the Rehabilitation Act, and what, if any, facts support each claim. Further, several of Plaintiff's claims were not properly exhausted as required by law. For the reasons stated herein, Plaintiff's Complaint must be dismissed in its entirety.
II. LEGAL STANDARD
In ruling on a motion to dismiss, the Court must view the allegations in the Petition in the light most favorable to Plaintiff. Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008). Though the Court “must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party,” the complaint's factual allegations must be sufficient “to raise a right to relief above the speculative level,” and the motion to dismiss must be granted if the complaint does not contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007) (abrogating the “no set of facts” standard for Fed.R.Civ.P. 12(b)(6) found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
Pursuant to Federal Rule of Civil Procedure 12(d): “If, on a motion under Rule 12(b)(6) . . ., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d). However, while courts may not typically consider matters outside of the complaint when deciding a motion under Rule 12(b)(6), the Court may take judicial notice of items in the public record, including documents related to EEOC charges. Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007); Faibisch v. U. of Minn., 304 F.3d 797, 802-03 (8th Cir. 2002) (“[W]e conclude that an EEOC charge is part of the public record, and thus the motion to dismiss was not converted to one for summary judgment by the attachment of a copy of the EEOC charge.”); Strickland v. Sun Country Airlines, 2018 WL 7050675, at *3 (D. Minn. Dec. 21, 2018).
In the event the Court does not take judicial notice of Plaintiff's Charge of Discrimination and chooses to consider matters outside the pleadings which are presented herein, Walmart requests that this Motion be converted to a motion for summary judgment, and be ruled upon as a motion for summary judgment, after all parties are given reasonable opportunity to present any materials relevant under Rule 56.
III. ARGUMENT
A. Title VII Claims
In her Employment Discrimination Complaint, Plaintiff alleges an unspecified claim (or claims) under Title VII (she checked the box on her Complaint). However, any claim under Title VII must be dismissed because Plaintiff fails to identify whether she is part of a class protected by Title VII and because Plaintiff failed to exhaust her administrative remedies as to any Title VII claims.
i. Plaintiff's Complaint fails to state any claim under Title VII because she does not identify she is part of a protected class.
To sufficiently state a claim of discrimination under Title VII, Plaintiff must allege she: (1) is a member of a protected class; (2) was meeting his employer's legitimate job expectations; (3) suffered an adverse employment action; and (4) was treated differently than similarly situation employees who were not members of his protected class. Jackman v. Fifth Judicial Dist. Dep't of Corr. Servs., 728 F.3d 800, 804 (8th Cir. 2013).
Despite checking the box for a Title VII claim in the Complaint, Plaintiff does not identify what protected class she is part of - whether it be her race, religion, gender, or any other basis. Nor does Plaintiff allege any facts in the particulars supporting a Title VII claim, either. Notably, in her Complaint, Plaintiff does not indicate that she believes she was discriminated against because of her race, religion, national origin, color, or gender. See Complaint, p. 5. Instead, she only notes disability and “other.” Id. Even in the Charge of Discrimination, Plaintiff fails to identify the basis of a Title VII claim. See, generally, Ex. A. Instead, in both the Complaint and the Charge, Plaintiff only indicates she has an unspecified disability. See, generally, Ex. A; Complaint, pp. 5, 11. Disability discrimination falls outside the protections of Title VII.
Given these pleading deficiencies, Walmart has been provided absolutely no notice as to the basis of Plaintiff's Title VII claim, including how or why she is entitled to relief under the statute. Therefore, Plaintiff's claim(s) under Title VII must be dismissed.
ii. Plaintiff did not exhaust her administrative remedies as to Title VII.
Further, in a discrimination action, a plaintiff's claim is limited by the scope of the charge filed at the administrative level. Simmons v. New Pub. Sch. Dist. No. Eight, 251 F.3d 1210, 1216 (8th Cir. 2001). To determine whether an allegedly discriminatory action falls within the scope of a claim, “the administrative complaint must be construed liberally.” Stuart v. Gen. Motors Corp., 217 F.3d 621, 631 (8th Cir. 2000). A plaintiff may seek relief “for any discrimination that grows out of or is like or reasonably related to the substance of the allegations in the administrative charge.” Id. (internal quotation omitted). Failure to exhaust administrative remedies results in dismissal of claims. See Strickland v. Harris, 2018 WL 4039707, at *3 (W.D. Mo. Aug. 23, 2018) (citing Bommarito v. Vilsack, 2012 WL 786232, *5 (E.D. Mo. Mar. 9, 2012) (determining plaintiff failed to exhaust her administrative remedies and dismissing the complaint because the claims in her federal court complaint were different than those asserted in her EEOC complaint.)).
Here, even if Plaintiff properly plead a prima facie case for discrimination under Title VII in the Complaint, which Walmart contends she did not, Plaintiff still failed to administratively exhaust this claim. Plaintiff did not allege any facts in the Charge regarding discrimination based on a protected class under Title VII. Rather, the Charge solely focuses on disability discrimination - so much so that the only noted basis for discrimination in the charge is “disability.” See, generally, Ex. A. By asserting a Title VII claim now, Plaintiff is not seeking relief for discrimination that is reasonably related to her charge. Any and all claims under Title VII must be dismissed.
B. Plaintiff's ADA Claims
In the Complaint, Plaintiff also alleges various claims under the ADA, including disability discrimination based on termination, failure to accommodate, and harassment; as well as a claim for ADA retaliation. Plaintiff fails to establish a prima facie case for any of these claims and has failed to exhaust nearly all of them. Therefore, Plaintiff's ADA claims must be dismissed.
i. Plaintiff cannot establish a prima facie case for any type of disability discrimination under the ADA because she fails to identify a disability.
In order to establish a prima facie case of disability discrimination under the ADA, a plaintiff must show that (1) she is disabled as defined in 42 U.S.C. § 12102(2); (2) she is qualified to perform the essential functions of the job, with or without reasonable accommodation; and (3) she has suffered an adverse employment action because of her disability. Alexander v. Northland Inn, 321 F.3d 723, 726 (8th Cir. 2003) (citing Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir. 1995)).
The threshold question in any disability discrimination case is whether the plaintiff is “disabled” within the meaning of the ADA. Heisler v. Metropolitan Council, 339 F.3d 622, 627 (8th Cir. 2003). A plaintiff, therefore, “must first make a facial showing that he has an ADA disability.” Fenney v. Dakota, Minnesota & Eastern R. Co., 327 F.3d 707, 712 (8th Cir. 2003); see also Johnson v. McDonald, 2016 WL 3997072, at *4-7 (E.D. Mo. Oct. 7, 2016) (dismissing ADA and Rehabilitation Act claims lacking specific information about disability).
A failure to identify the disability is fatal to claims under the ADA. See Marz v. Presbyterian Homes & Servs., 2011 WL 2912866, at *9 (D. Minn. June 22, 2011) (plaintiff “only alleged that he was disabled, without reference to how he is disabled or how his impairment impacts a major life activity.” While the plaintiff alleged the defendant also failed to accommodate his disability, he did not allege facts suggesting what accommodation he required or how such an accommodation was necessary. The Court found those allegations were “threadbare” and could not survive a 12(b)(6) motion to dismiss.).
Here, Plaintiff has failed to plead the prima facie elements of a claim for disability discrimination. Specifically, Plaintiff does not show she is disabled pursuant to 42 U.S.C. § 12102(2). Plaintiff generally claims she has a disability but does not identify what that disability is, or how it impacts one or more major life activities. See Complaint, p. 11. While detailed factual allegations are not required, Plaintiff is required to plead more than broad conclusions. See Benton v. Merrill Lynch & Co., Inc., 524 F.3d 866, 870 (8th Cir. 2008). General and non-specific allegations fall well short of what is required to plead a qualifying disability under the ADA. Stricklandv. Harris, 2018 U.S. Dist. LEXIS 143409, at *9 (W.D. Mo. Aug. 23, 2018). Plaintiffs general and non-specific allegations fall well short of what is required to plead a qualifying disability under the ADA.
Notably, Plaintiff pleads in her Complaint that she “wasn't able to do the job requirement due to my mental status and physical status and I needed some time off” and “at that time I needed some accommodations and they did not accommodate my disability.” See Complaint, p. 11. This further proves Plaintiff's inability to make a prima facie case of disability discrimination because she herself alleges she could not perform the essential functions of her job with or without a reasonable accommodation. “Indefinite leave is not a reasonable accommodation.” Easter v. Ark. Children's Hosp., 2018 WL 4778045, at *3 (E.D. Ark. Oct. 3, 2018) (citing Dick v. Dickinson State Univ., 826 F.3d 1054, 1061 (8th Cir. 2016), reh'g denied (Aug. 15, 2016); see also 1 Barbara T. Lindemann & Paul Grossman, Employment Discrimination Law 895 (4th ed. 2007) (collecting cases in support of the proposition that “[c]ourts generally hold that indefinite leaves, or leaves with no proposed end date, are not reasonable and need not be granted”)). Plaintiff not only fails to make a prima facie case for ADA discrimination but she has also has plead herself out of court.
Accordingly, Plaintiff's claims for discrimination under the ADA fail because Plaintiff fails to meet the threshold issue of whether she is “disabled” under the meaning of the ADA. Her claims for wrongful termination, hostile work environment (harassment), and failure to accommodate, therefore, must be dismissed.
ii. Plaintiff cannot establish a prima facie case of hostile work environment under the ADA because she fails to plead any facts to show she was subjected to unwelcome harassment severe enough to affect the terms, conditions, or privileges of her employment.
To establish a hostile work environment based on disability, Plaintiff must show that (1) she is a member of the class of people protected by the statute, (2) she was subject to unwelcome harassment, (3) the harassment resulted from her membership in the protected class, and (4) the harassment was severe enough to affect the terms, conditions or privileges of her employment. Sellers v. Deere & Co., 791 F.3d 938, 945 (8th Cir. 2015).
As noted above, because Plaintiff does not allege any facts to show that she is disabled; she cannot state a claim for hostile work environment based on her disability. See Johnson, 2016 WL 3997072, at *6-7. However, even if Plaintiff had shown that she was disabled, the Complaint does not contain any factual allegations to show Plaintiff was subjected to harassment because of her disability. See Wallin v. Minnesota Dep't of Corrs., 153 F.3d 681, 688 (8th Cir. 1998) (although plaintiff identified “numerous incidents of friction between himself and his coworkers,” his hostile work environment claim failed because he provided no evidence that the workplace friction was due to his disabilities).
“Hostile work environment claims are limited in nature, requiring a high evidentiary showing that the plaintiff's workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Vajdl v. Mesabi Acad. Of KidsPeace, Inc., 484 F.3d 546, 550 (8th Cir. 2007) (internal quotations omitted); see also Nitsche v. CEO of Osage Valley Elec. Co-op., 446 F.3d 841, 846 (8th Cir. 2006) (requiring hostile work environment plaintiff to “clear a high threshold to demonstrate actionable harm”).
The only allegation Plaintiff makes that could possibly be construed as part of a harassment claim is the allegation that her manager told her she was a “very sick woman” after she was terminated and when the manager refused to rehire her. See Complaint, p. 11. Even taking this allegation as true, a lone comment after Plaintiff's termination does not rise to the level of actionable harassment permeating the workplace with discriminatory intimidation. This comment is not severe and pervasive enough to create an objectively hostile or abusive work environment. Therefore, Plaintiff's hostile work environment (harassment) claim under the ADA must be dismissed.
iii. Plaintiff does not plead sufficient facts to establish a prima facie claim for failure to accommodate under the ADA.
To support a failure to accommodate claim, Plaintiff “must establish both a prima facie case of discrimination based on her disability and a failure to accommodate it.” Schaffhauser v. United Parcel Serv., Inc., 794 F.3d 899, 905 (8th Cir. 2015).
As stated above, Plaintiff fails to establish a prima facie case of disability discrimination. Further, Plaintiff fails to identify what accommodation was requested, when, and whether Walmart engaged in the interactive process with her to determine what accommodation was reasonable. As such, Plaintiff has failed to plead facts to support a failure to accommodate claim, and this claim must be dismissed.
iv. Plaintiff cannot establish a prima facie case for ADA retaliation because she does not plead sufficient facts to show a causal connection between her termination and any statutorily protected activity.
To establish a prima facie case of retaliation under the ADA, Plaintiff must establish (1) that she engaged in statutorily protected activity; (2) an adverse employment action was taken against her; (3) a causal connection exists between the two events. Lors v. Dean, 746 F.3d 857, 867 (8th Cir. 2014) (quoting Green v. Franklin Nat'l Bank of Minneapolis, 459 F.3d 903, 914 (8th Cir. 2006)). A retaliation claim under the ADA requires a but-for causal connection between the employee's assertion of her ADA rights and an adverse action by the employer. Oehmke v. Medtronic, Inc., 844 F.3d 748, 758 (8th Cir. 2016) (citing Univ. of Tex. Southwestern Med. Ctr., 133 S.Ct. 2517(2013)).
Based on the language of the Complaint, it is impossible to tell what statutorily-protected activity Plaintiff engaged in. While Plaintiff alleges she “needed some accommodations,” and states she was fired “due to attendance points,” it is unclear if Plaintiff is alleging a request for accommodations is what resulted in her termination. Plaintiff fails to identify what that request was, who it was made to, or even when it was made. Because Plaintiff has not pleaded sufficient facts to show a causal connection between the alleged adverse action (presumably, her termination) and the protected activity (presumably, a request for accommodations), other than vague, conclusory statements, this claim should be dismissed.
v. Plaintiff did not administratively exhaust her hostile work environment, failure to accommodate, or retaliation claims.
Even if Plaintiff properly plead claims under the ADA for a hostile work environment, a failure to accommodate, or retaliation, she still is barred from bringing these claims because she failed to administratively exhaust them. Before filing a lawsuit under the ADA, a plaintiff must exhaust his or her administrative remedies by filing a charge with the EEOC. Marz, 2011 WL 2912866, at *7. To satisfy the exhaustion requirement, the administrative charge must provide the employer sufficient notice of the plaintiff's claim. Russell v. TG Missouri Corp., 340 F.3d 735, 748 (8th Cir. 2003). The information contained in an EEOC charge must be sufficient to give the employer notice of the subject matter of the charge and identify generally the basis for a claim, but it need not specifically articulate the precise claim or set forth all the evidence an employee may choose to later present in court. Marz, 2011 WL 2912866, at *7.
Much like her Title VII claim(s), here, Plaintiff failed to allege facts in her Charge of Discrimination that would reasonably support claims for hostile work environment, failure to accommodate, or retaliation under the ADA.
Specifically, Plaintiff did not allege any incidents of harassment in her Charge of Discrimination, or any facts that could be construed as supporting a hostile work environment claim. See, generally, Ex A.; see Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117(2002) (“A hostile work environment claim is composed of a series of separate acts[.]”) Instead, her Charge merely alleges her dates of employment and the conclusory statement that she has a disability, as well as that she was later terminated for exceeding her points and that she believed she followed proper procedures for reporting absences for medical leave. Because Plaintiff's Charge is deficient of any such facts, she did not exhaust a hostile work environment claim.
Plaintiff likewise does not allege that she requested an accommodation, or that any such accommodation was denied. See, generally, Ex A. Courts in this circuit and other circuits and districts have concluded that a charge that only mentions discrimination does not exhaust a claim for a reasonable accommodation. See e.g. Marz, 2011 WL 2912866, at *7 (finding that the plaintiff's EEOC charge failed to provide sufficient notice to the defendant and, as a result, the plaintiff's failure to accommodate claim was not exhausted); Lara v. Unified School Dist. #501, 350 Fed.Appx. 280, 285(10th Cir. 2009) (holding employee did not exhaust administrative remedies for failure to accommodate claim where charge only mentioned disability discrimination); Lejeune v. Omni Energy Services Corp., 2010 WL 378305, at *5 (W. D. La. Jan. 29, 2010) (dismissing failure to accommodate claim where EEOC charge was only for disability discrimination); Hamar v. Ashland, Inc., 211 Fed.Appx. 309, 310(5th Cir. 2006) (concluding employee did not exhaust failure to accommodate claim when EEOC charge only alleged disparate treatment discrimination).
Finally, Plaintiff also fails to allege retaliation in her Charge, including any facts to suggest she engaged in a protected activity resulting in her termination. See generally Ex A. She should not be permitted to bring such a claim now. See Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 222-23 (8th Cir. 1994); see, e.g., Russell v. TG Missouri Corp., 340 F.3d 735, 747-48 (8th Cir. 2003) (affirming dismissal of ADA retaliation claim where the plaintiff did not assert retaliation claim or check the retaliation box in his EEOC charge); Ware v. Lumiere Place Casino, 2019 WL 6716371, at *4 (E.D. Mo. Dec. 10, 2019) (dismissing retaliation claim where plaintiff did not assert retaliation claim or check the retaliation box in his EEOC charge).
Therefore, in addition to failing to state a claim for hostile work environment, failure to accommodate, or retaliation in her Complaint, Plaintiff has also failed to administratively exhaust these claims and therefore, this Court should dismiss them.
C. Rehabilitation Act Claims
The Rehabilitation Act, which expressly applies to federal agencies and programs receiving federal financial assistance, protects disabled employees from discrimination and requires that covered employers provide reasonable accommodation to disabled employees. See 29 U.S.C. §§ 791-796. The Rehabilitation Act incorporates the standards of the ADA to determine whether a violation has occurred. 29 U.S.C. § 794(d); Peebles v. Potter, 354 F.3d 761, 765 (8th Cir. 2004). Decisions under the Rehabilitation Act or the ADA “are applicable and ‘interchangeable' to claims under each statute.” Hill v. Walker, 737 F.3d 1209, 1216 (8th Cir. 2013).
As an initial matter, Walmart cannot be sued under the Rehabilitation Act because it is not a federal agency or program or activity receiving federal financial assistance and Plaintiff has failed to plead facts to suggest otherwise. Further, because Plaintiff fails to identify her disability or otherwise allege facts from which the Court can draw the reasonable inference that she was “disabled” within the meaning of the Rehabilitation Act, she fails to state a claim of disability discrimination upon which relief can be granted. See Walz v. Ameriprise Fin., Inc., 779 F.3d 842, 845 (8th Cir. 2015) (ADA case; stating elements of prima facie case of wrongful termination).
IV. PRAYER FOR RELIEF
Based on the foregoing, Walmart respectfully requests this Court dismiss Plaintiff's Complaint in its entirety, with prejudice, and for any further relief this Court deems just and proper.
Respectfully Submitted, FORDHARRISON LLP
CERTIFICATE OF SERVICE
A true and accurate copy of the foregoing was served upon Plaintiff on April 18, 2023 via U.S. Mail to the following:
Kimberly A. Ross