Davis v. Wal-Mart Stores East, LP

Filing 8

ORDER Directing the U.S. Marshal Service to serve a copy of re 1 Complaint filed by Glynn N. Davis on Defendant Wal-Mart Stores East, LP. Signed by Magistrate Judge G. R. Smith on 9/15/17. (jrb) (Additional attachment(s) added on 9/15/2017: # 1 USM-285) (jrb).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
GLYNN N. DAVIS,
Plaintiff,
v.
WAL-MART STORES EAST, LP
Defendant.

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FILED
Scott L. Poff, Clerk
United States District Court

By James Burrell at 12:52 pm, Sep 15, 2017

CV617-101

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ORDER
Pro se plaintiff Glynn Davis alleges that her former employer,
WalMart Stores East, LP, discriminated against her based on her
disabilities, failed to accommodate her disabilities in violation of the
Americans with Disabilities Act (ADA), then retaliated against her when
she complained. See doc. 1 at 3 & 4. The Court now screens Davis’
Complaint pursuant to 28 U.S.C. § 1915.1
Davis alleges that she worked as, and was qualified as, an
“Operator” from December 2007 through October 2014. Doc. 1 at 4-5;

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In cases where the plaintiff is proceeding in forma pauperis, which the Court
granted here on indigency grounds, doc. 3, it is required to screen each case, and
must dismiss it at any time if the Court determines either that the allegation of
poverty is untrue or that the action or appeal is frivolous or malicious, fails to state a
claim upon which relief may be granted, or seeks monetary relief against a defendant
who is immune from such relief. 28 U.S.C. § 1915(e)(2).

see also id. at 16 (plaintiff “was a qualified individual with such disability
(ities), possessing or meeting the legitimate skills, experience, education
or other requirements of the position she occupied for almost 7 years”).
She has several impairments -- some work-related -- to her bilateral
hands and ankles, lower back, and left knee “which have resulted in
decreased mobility, functioning, and pain.” Id. at 15 (“Such conditions
substantially limit or restrict [her] ability to walk, stand, bend, lift,
engage in repetitive manual labor, and or other activities that may be
simply taken for granted.”).
Over several years, she engaged with Workers’ Compensation for
injuries sustained on the job and Walmart worked with her to provide
some accommodations to enable her to perform her job duties. Id. at 1722. She was terminated, and then reinstated, in February 2015, and in
May 2015 “suddenly placed on [an] unpaid, undocumented, unrequested,
[and] unneeded leave of absence.” Id. at 22. From that time through
August 2016, Davis contends that Walmart refused to reconsider her for
any other position because there was “nothing available within her
restrictions or ever expected to be.” Id. at 22-23. She was officially
terminated on August 8, 2016, and was considered a “voluntary

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termination” because she had failed “to return from [her] leave of
absence.” Id. at 23.
Davis’ “[c]laims are brought . . . for disability discrimination and
retaliation with issues of reasonable accommodation, terms and
conditions (benefits), harassment, and discharge along with the failure to
engage in a good faith interactive communication process at the
appropriate time.” Doc. 1 at 16. It appears that her claims are timely
and she has exhausted her administrative remedies. 2

Further, her

individual ADA claims all survive screening.

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Plaintiff filed a charge of discrimination with the United States Equal Employment
Opportunity Commission (EEOC) in July 2015 (Charge 846-2015-28556) and
November 2016 (Charge 415-2017-00116), and was issued a Notice of Right to Sue
letter on April 25, 2017. Doc. 1 at 5; see id. at 9 & 12. She filed her Complaint on
July 23, 2017. It appears, therefore, that her Complaint is timely and that she has
exhausted her administrative remedies.
“For an EEOC charge to be timely[,] . . . [it] must be filed within 180 days of when
the alleged violation occurred. 42 U.S.C. 200e-5(e)(1); Wilkerson [v. Grinnell Corp.]
270 F.3d [1314,] . . . 1317 [(11th Cir. 2001)]. Once the EEOC dismisses the charge
and notifies the plaintiff of her right to sue, the plaintiff has 90 days in which to file
suit on her claims in district court. 42 U.S.C. § 2000e-5(f)(1); Santini v. Cleveland
Clinic Florida, 232 F.3d 823, 825 (11th Cir. 2000).” Abram v. Fulton Cty. Gov’t, 598
F. App’x 672, 674 (11th Cir. 2015). In addition to timely filing, a prospective Title
VII plaintiff must exhaust her available administrative remedies, specifically by filing
a complaint with the EEOC. See, e.g., Burnett v. City of Jacksonville, Fla., 376 F.
App’x 905, 906 (11th Cir. 2010) (discussing exhaustion requirement and its purpose
to give the EEOC “‘the first opportunity to investigate the alleged discriminatory
practices to permit it to perform its role in obtaining compliance and promoting
conciliation efforts.’” (quoting Gregory v. Ga. Dep’t of Human Res., 355 F.3d 1277,
1279 (11th Cir. 2004)). This Court has noted that there is disagreement among
jurists about whether timeliness and exhaustion are pleading requirements. See
Dawkins v. J.C. Lewis Primary Health Care, 2015 WL 1607989 at * 2 (S.D. Ga. April
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To establish a prima facie case of disability discrimination under
the ADA, a plaintiff must demonstrate that she (1) is disabled, (2) is a
qualified individual, and (3) was discriminated against on account of her
disability. 42 U.S.C. §§ 12112(a); Frazier-White v. Gee, 818 F.3d 1249,
1255 (11th Cir. 2016); Wood v. Green, 323 F.3d 1309, 1312 (11th Cir.
2003). A “disability” is defined as, among other things, a “physical or
mental impairment that substantially limits one or more of the major life
activities of an individual.” 42 U.S.C. § 12102(2). A “qualified individual
with a disability” is defined as an “individual with a disability 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. § 23222(8).

And the failure to reasonably

accommodate a disability can be evidence of unlawful discrimination.
Holly v. Clairson Indus., LLC, 492 F.3d 1247, 1262-63 (11th Cir. 2007).
Here, Davis alleges that she suffers from (and Walmart knew about)
various physical impairments that substantially limited her major life
activities, that she was otherwise qualified for her work, and that

8, 2015) (citing Luckey v. Visalia Unified Sch. Dist., 2014 WL 730699 at * 2 (E.D. Cal.
Feb. 24, 2014)). Even assuming that they are, however, Davis has pled sufficient
facts to support both.
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Walmart failed to reasonably accommodate her disabilities.

That is

enough for Davis’ discrimination claim to survive screening.
To establish a claim for failure to reasonably accommodate a
disability, a plaintiff must prove: (1) she has a disability within the
meaning of the statute; (2) defendant had notice of her disability;
(3) with a reasonable accommodation she could perform the essential
functions of her position; and [(4)] the defendant refused to make such
accommodations. An employer must provide reasonable accommodations
for employees with known disabilities unless the accommodations would
cause undue hardship to the employer. Earl v. Mervyns, Inc., 207 F.3d
1361, 1365 (11th Cir. 2000). Here, Davis has alleged she has disabilities
within the meaning of the ADA, Walmart knew about them, with
accommodation she was able to perform several alternative jobs
(including Operator and cashier), and Walmart refused to do so. This
claim too survives the screening stage.
Finally, to establish a prima facie claim for retaliation, a plaintiff
must show that: (1) she engaged in a statutorily protected expression,
(2) she suffered an adverse employment action, and (3) there was a
causal link between the two. Frazier-White, 818 F.3d at 1258. The first

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element may be met by a request for a reasonable accommodation. Id.
The third element requires a showing of but-for causation. Id. (citing
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2533-34 (2013)).
Here, Davis requested reasonable accommodations to perform her work
(both as an Operator and in other positions), was refused any alternative
position, and was told that she would not be reconsidered for
employement

because there was “nothing available within her

restrictions or ever expected to be.” Id. at 22-23. That, too, is enough to
survive screening on this claim and warrant a response from defendant.
Plaintiff has pled enough facts for this Court to greenlight service
of her Complaint for discrimination, failure to accommodate, and
retaliation in violation of the ADA. Since the Court has authorized in
forma

pauperis status,

the United States Marshals Service is

DIRECTED to effectuate service upon the defendant. Fed. R. Civ. P.
4(c)(3) (the court “must” order that service be made by the Marshal “if
the plaintiff is authorized to proceed [IFP]”).3

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Per plaintiff, service on Walmart “may be accomplished by serving Corporation
Process Company, 289 S. Culver Street, Gwinnett, Lawrenceville, GA 30046, the
agent registered with the Secretary of State for the State of Georgia.” Doc. 1 at 17.
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Once plaintiff’s Complaint is served upon the defendant, she must
then serve defendant (through its counsel, if it is represented) with a
copy of every additional pleading or other document which she files with
the Court. See Fed. R. Civ. P. 5. She also shall include with each paper
so filed a certificate stating the date on which she mailed an accurate
copy of that paper to the defendant or its counsel.

This Court will

disregard any papers submitted which have not been properly filed with
the Clerk or which do not include a certificate of service.
Finally, Davis also must keep the Court and any defendant advised
of her current address at all times during the pendency of this action.
Failure to do so may result in dismissal of her Complaint. She also must
litigate this case, conduct and respond to any discovery, and comply with
both the Federal Rules of Civil Procedure and this Court’s Local Rules,
See http://www.uscourts.gov/rules-

both which are available online.

policies/current-rules-practice-procedure/

federal-rules-civil-procedure

and http://www.gasd.uscourts.gov/ lr/lr1.htm.
SO ORDERED, this 15th day of September, 2017.

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