Opinion
4:23-cv-00074-JAR
08-04-2023
JEANNIE M. URBAN, Plaintiff, v. WALMART, Defendant.
FORDHARRISON LLP Kimberly A. Ross, Daniel P. O'Donnell, Jr.,
FORDHARRISON LLP
Kimberly A. Ross,
Daniel P. O'Donnell, Jr.,
DEFENDANT WALMART'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT
Defendant Walmart (“Walmart” or “Defendant”), by and through undersigned counsel, and pursuant to Federal Rule of Civil Procedure 12(b)(6), moves this Court for an Order dismissing Plaintiff's Complaint. In support of the Motion, Defendants state as follows:
1. Plaintiff Jeannie M. Urban (“Plaintiff”) is a former associate of Walmart.
Walmart refers to its employees as “associates.”
2. 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.
3. Plaintiff received a Notice of Right to Sue from the EEOC on November 1, 2022. See Exhibit B, Notice of Right to Sue.
4. Plaintiff subsequently filed this lawsuit pro se on January 23, 2023.
5. In her lawsuit, Plaintiff brings a myriad of claims against Walmart, including claims under Title VII, the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act of 1973. Plaintiff alleges wrongful termination of employment, failure to accommodate a disability, retaliation, harassment, and other, unspecified conduct.
6. Plaintiff's Complaint must be dismissed because it 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 purported claims were not properly exhausted as required by law.
7. 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). However, 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).
8. Any claim under Title VII must be dismissed because Plaintiff fails to assert that she is part of a class protected by Title VII. Jackman v. Fifth Judicial Dist. Dep't of Corr. Servs., 728 F.3d 800, 804 (8th Cir. 2013).
9. Further, any claim under Title VII must be dismissed because Plaintiff failed to exhaust her administrative remedies as to any Title VII claims. See Bommarito v. Vilsack, 2012 WL 786232, *5 (E.D. Mo. Mar. 9, 2012) (determining that 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.)
10. Plaintiff's ADA claims must be dismissed because Plaintiff fails to identify a disability in the Complaint. Fenney v. Dakota, Minnesota & Eastern R. Co., 327 F.3d 707, 712 (8th Cir. 2003); see, e.g., Brunko v. Mercy Hosp., 260 F.3d 939, 942 (8th Cir. 2001).
11. Plaintiff's ADA claims are individually deficient as well.
12. Specifically, Plaintiff's ADA hostile work environment claim must be dismissed because plaintiff fails to plead any facts to show she was subjected to unwelcome harassment severe or pervasive enough to affect the terms, conditions, or privileges of her employment. 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).
13. Plaintiff's ADA retaliation claim must be dismissed because she does not plead sufficient facts to show a causal connection between her termination and any statutorily protected activity. Lors v. Dean, 746 F.3d 857, 867 (8th Cir. 2014); Floyd v. State of Missouri Dept. of Social Services, Div. of Family Services, 188 F.3d 932, 938 (8th Cir. 1999); Oehmke v. Medtronic, Inc., 844 F.3d 748, 758 (8th Cir. 2016) (citing Univ. of Tex. Southwestern Med. Ctr., 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013)).
14. Plaintiff's claims for hostile work environment, failure to accommodate, and retaliation under the ADA must be also dismissed because they were not administratively exhausted. See e.g. Marz v. Presbyterian Homes & Servs., 2011 WL 2912866, at *9; Lara v. Unified School Dist. #501, 350 Fed.Appx. 280, 285 (10th Cir. 2009); Lejeune v. Omni Energy Services Corp., 2010 WL 378305, at *5 (W. D. La. Jan. 29, 2010); Hamar v. Ashland, Inc., 211 Fed.Appx. 309, 310(5th Cir. 2006).
15. Finally, Walmart cannot be sued under the Rehabilitation Act because it is not a federal agency or program or activity receiving federal financial assistance. See 29 U.S.C. §§ 791796.
16. 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); Peebles v. Potter, 354 F.3d 761, 765 (8th Cir. 2004).
17. WHEREFORE, for the reasons stated above, and as stated more fully in Defendant Walmart's Memorandum in Support of its Motion to Dismiss Plaintiff's Complaint, Defendant Walmart respectfully moves this Court to dismiss Plaintiff's Complaint in its entirety, with prejudice, and for all other relief this Court deems just and proper.
(Exhibit A Omitted)
(Exhibit B Omitted)