Winchester v. Wal-Mart Stores, Inc. et al

Filing 16

MEMORANDUM OPINION & ORDER granting in part and denying in part 5 Motion to Dismiss for Failure to State a Claim; denying 9 Motion for Default Judgment; granting in part and denying in part [] Motion to Dismiss; Telephone Conference set for 6/29/2015 at 10:30 AM before Senior Judge Thomas B. Russell. Signed by Senior Judge Thomas B. Russell on 6/24/2015. cc: Counsel(KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:15-CV-00025-TBR
WILLIAM T. WINCHESTER,

Plaintiff

v.
WAL-MART STORES INC.,
SAM’S EAST, INC. d/b/a SAM’S CLUB

Defendants

MEMORANDUM OPINION AND ORDER
This matter is before the Court upon Defendants’ motion to dismiss. (Docket #5,
10). Plaintiff has responded. (Docket #11). Defendant has replied. (Docket #10, 14).
Plaintiff has filed a motion for default judgment. (Docket #9). Defendant has responded.
(Docket #12). Plaintiff has replied. (Docket #15). Accordingly, these matters now are
ripe for adjudication. For the following reasons, Defendants’ motion to dismiss (Docket
#5) is GRANTED in part and DENIED in part and Plaintiff’s motion for default
judgment (Docket #9) is DENIED.
PROCEDURAL HISTORY
Currently pending before the Court are two interrelated motions surrounding an
amended complaint. Winchester filed this lawsuit on February 2, 2015. (Docket #1).
Sam’s Club filed a motion for partial dismissal on March 19. (Docket #5). Winchester
did not initially respond to this motion, but instead filed an amended complaint on April
7. (Docket #7). Winchester then filed a motion for default judgment on April 28, arguing
that Sam’s Club did not respond to the amended complaint and that Sam’s Club’s motion
for partial dismissal did not address all of Winchester’s claims. (Docket #9). Sam’s Club
replied to its own motion for partial dismissal and included a request to partially dismiss
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the amended complaint. (Docket #10). Winchester responded to Sam’s Club’s motion
for partial dismissal. (Docket #11). Sam’s Club responded to Winchester’s motion for
default judgment. (Docket #12). The parties timely replied to each other’s respective
motions. (Docket #14, 15).
BACKGROUND
This matter arises out of the employment of Plaintiff William T. Winchester at
Defendant Wal-Mart Stores Inc. and Sam’s East, Inc. (collectively, “Sam’s Club”).
Winchester claims Sam’s Club violated the Age Discrimination in Employment Act
(“ADEA”), discriminated against him on the basis of religion, and retaliated against and
wrongfully discharged Winchester. (Docket #7).
Winchester was hired as a full-time Rotisserie Associate at Sam’s Club in July,
2012.

In October, 2012, Winchester applied for a Team Lead position in the

rotisserie/deli department. Winchester was not selected for this position. In July, 2013,
Winchester applied for a Member Champion position. Winchester was also not selected
for this position.
Winchester filed his first EEOC Charge against Sam’s Club in August, 2013.
Winchester alleged the company discriminated against him in violation of the ADEA.
(Docket #5-2).

Winchester filed his second EEOC Charge against Sam’s Club in

October, 2013, alleging that Sam’s Club retaliated against him for reporting his age
discrimination claim and discriminated against him for not selecting him for the Member
Champion position on the basis of his religion. (Docket #5-3). Winchester left the

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employment of Sam’s Club on July 7, 2014. Among other claims, Winchester alleges he
was constructively discharged due to harassment and threats. (Docket #11).
STANDARD
“When considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, the district court must accept all of the allegations in the
complaint as true, and construe the complaint liberally in favor of the plaintiff.”
Lawrence v. Chancery Court of Tenn., 188 F.3d 687, 691 (6th Cir. 1999) (citing Miller v.
Currie, 50 F.3d 373, 377 (6th Cir. 1995)). Denial of the motion is proper “unless it can
be established beyond a doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief.” Achterhof v. Selvaggio, 886 F.2d 826, 831 (6th
Cir.1989) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Nonetheless,
unwarranted factual inferences or legal conclusions masquerading as fact will not prevent
a motion to dismiss. Blakely v. United States, 276 F.3d 853, 863 (6th Cir. 2002). A
“complaint must contain either direct or inferential allegations respecting all the material
elements to sustain a recovery under some viable legal theory.” Andrews v. Ohio, 104
F.3d 803, 806 (6th Cir. 1997) (citing In re DeLorean Motor Co., 991 F.2d 1236, 1240
(6th Cir. 1993)).
DISCUSSION
The Court will first address (I) Winchester’s motion for default judgment before
turning to (II) Sam’s Club’s motion to partially dismiss Winchester’s complaint.
I.

Default Judgment.

If a party “has failed to plead or otherwise defend, and that failure is shown by
affidavit or otherwise, the clerk must enter the party's default.” Fed. R. Civ. P. 55(a).
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After a clerk enters a party’s default, the moving party “must apply to the court for a
default judgment.” Fed. R. Civ. P. 55(b)(2); 1 Shepard Claims Service, Inc. v. William
Darrah & Associates, 796 F.2d 190, 193 (6th Cir. 1986) (“entry of default is just the first
procedural step on the road to obtaining a default judgment”). Our courts have a “policy
of favoring trials on the merits.” Shepard, 796 F.2d at 192 (6th Cir. 1986). Therefore, an
entry of default may be set aside “upon a showing of ‘good cause.’” United States v. $
22,050.00 United States Currency, 595 F.3d 318, 324 (6th Cir. 2010) (citing Fed. R. Civ.
P. 55(c)).
Winchester argues Sam’s Club is in default in two ways. First, Winchester
correctly notes that he amended his complaint within twenty-one days of a Rule 12(b)
motion as permitted by Rule 15(a)(1)(B). See Jackson v. WCM Mortg. Corp., 2013 U.S.
Dist. LEXIS 106972 (W.D. Tenn. 2013). Winchester’s April 7 amended complaint
required Sam’s Club to respond within fourteen days. Fed. R. Civ. P. 15(a)(3).
Winchester argues Sam’s Club’s April 30 reply (which requested dismissal of the
amended complaint) and Sam’s Club’s May 22 answer to the amended complaint were
late. Winchester’s second argument is that Sam’s Club’s motion for partial dismissal
responded only to two of Winchester’s claims and therefore Winchester is entitled to
default judgment on his three remaining claims.
There are several reasons why Winchester’s motion for default judgment is
denied. First, default judgment is inappropriate because Winchester has not completed

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A moving party may apply to the clerk for entry of default judgment “[i]f the plaintiff's
claim is for a sum certain or a sum that can be made certain by computation.” Fed. R.
Civ. P. 55(b)(1).
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the “first step” of obtaining an entry of default. Shepard Claims Service, 796 F.2d at 193.
Second, although Winchester is correct that Sam’s Club was late in responding to
Winchester’s amended complaint, “the court has discretion to grant additional time to a
party to plead or otherwise defend.” Dow v. Jones, 232 F. Supp. 2d 491, 494 (D. Md.
2002) (citation omitted) (citing cases in which a month late motion to dismiss was
permitted). Additional time is warranted because Winchester has not been prejudiced by
the delay. Invst Fin. Group v. Chem-Nuclear Sys., 815 F.2d 391, 398 (6th Cir. 1987) (“it
must be shown that delay will ‘result in the loss of evidence, create increased difficulties
of discovery, or provide greater opportunity for fraud and collusion.’”) (quoting Davis v.
Musler, 713 F.2d 907, 916 (2d Cir. 1983)). Furthermore, Sam’s Club has “otherwise
defend[ed]” this action by filing a motion to dismiss, even if that motion did not address
all of Winchester’s claims. Rashidi v. Albright, 818 F. Supp. 1354, 1356 (D. Nev. 1993).
The Court questions Winchester’s argument that a defendant who moves to
dismiss only a portion of plaintiff’s claims must file an answer on the remaining claims.
There is authority which accepts Winchester’s position. Gerlach v. Michigan Bell Tel.
Co., 448 F. Supp. 1168, 1174 (E.D. Mich. 1978) (“Separate counts are, by definition,
independent bases for a lawsuit and the parties are responsible to proceed with litigation
on those counts which are not challenged by a motion under F.R.C.P. 12(b)”). However,
the majority view is that a party does not need to file an answer while a motion to dismiss
is pending. Finnegan v. Univ. of Rochester Med. Ctr., 180 F.R.D. 247, 250 (W.D.N.Y.
1998) (collecting cases). The “Gerlach [minority] approach has significant
disadvantages. It requires duplicative sets of pleadings in the event that the 12(b) motion
is denied and causes confusion over the proper scope of discovery during the motion's
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pendency.” Brocksopp Engineering, Inc. v. Bach-Simpson, Ltd., 136 F.R.D. 485, 486-87
(E.D. Wisc. 1991).
Given the “policy of favoring trials on the merits,” the lack of an entry of default,
and the lack of prejudice to Winchester, the Court finds that an entry of default judgment
not warranted in this case. Shepard Claims Service, 796 F.2d 190.
II.

Motion for Partial Dismissal.

Winchester has alleged five claims: disparate treatment, disparate impact,
discrimination based on religion, retaliation, and wrongful discharge. (Docket #7).
Sam’s Club moves to dismiss two of Winchester’s claims: wrongful discharge and
disparate impact. (Docket #5, 10). Sam’s Club argues Winchester has not alleged
sufficient facts or a plausible basis to support his wrongful discharge claim. Sam’s Club
argues Winchester’s disparate impact claim should be barred because he did not raise it in
his EEOC complaint and because Winchester fails to make out a prima facie case of
disparate impact.
A. Wrongful Discharge.
Sam’s Club argues that Winchester has not alleged any plausible basis for his
constructive discharge claim. “To constitute a constructive discharge, the employer must
deliberately create intolerable working conditions, as perceived by a reasonable person,
with the intention of forcing the employee to quit and the employee must actually quit."
Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1080 (6th Cir. 1999). “In
the case of constructive discharge, working conditions would have been so difficult or
unpleasant that a reasonable person in the employee's shoes would have felt compelled to
resign.” Goldmeier v. Allstate Ins. Co., 337 F.3d 629, 635 (6th Cir. 2003) (citation
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omitted). The “constructive discharge issue depends upon the facts of each case and
requires an inquiry into the intent of the employer and the reasonably foreseeable impact
of the employer's conduct upon the employee.” Held v. Gulf Oil Co., 684 F.2d 427, 432
(6th Cir. 1982). Factors courts may consider include “the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee's work
performance.” Goldmeier, 337 F.3d at 635 (quoting Harris v. Forklift Sys., 510 U.S. 17,
23, (1993)).
Winchester alleges several facts 2 which, taken in aggregate, could have caused a
reasonable person to resign. Winchester alleges that his initial evaluation was exemplary,
but after he filed a complaint with the EEOC, his subsequent evaluation was lowered,
affecting his annual pay. (Docket #7, p. 11). Winchester alleges that his supervisor
“would just stand next to Winchester on occasions for several minutes while Winchester
worked without saying anything, and then, just out of the blue, would state that he would
be writing Winchester’s next evaluation.” (Docket #7, p. 5). Winchester alleges that his
supervisor required him to “start rodding two days worth of chickens on the day before
Winchester’s day off, which doubled Winchester’s workload and violated the Sam’s Club
Rotisserie Standard Operating Procedure.” (Docket #7, p. 11). Winchester alleges that a
meat cutting knife was left in several suspicious positions, including in a cooler where
Winchester routinely stuck his hand. (Docket #7, p. 12). Another time, Winchester left
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To the extent Sam’s Club argues Winchester has not clearly stated the legal theories
supporting his constructive discharge claim, this argument is without merit. “Federal
pleading rules call for ‘a short and plain statement of the claim showing that the pleader
is entitled to relief,’ Fed. Rule Civ. Proc. 8(a)(2); they do not countenance dismissal of a
complaint for imperfect statement of the legal theory supporting the claim asserted.”
Johnson v. City of Shelby, 135 S. Ct. 346, 190 L. Ed. 2d 309 (2014).
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the room and when he returned, “a knife was sticking straight out of the breast of a
chicken” that Winchester had marked for disposal. (Docket #7, p. 12). Winchester also
alleges that his hours were reduced, even though he was a full-time employee. (Docket
#7, p. 13). These reduced hours interfered with Winchester’s ability to complete his
required work. (Docket #7, p. 17). These allegations, which include suggestions of
physical threats and interference with Winchester’s ability to perform his job, are
sufficient to state a claim for constructive discharge.
B. Disparate Impact.
Sam’s Club makes two arguments for why Winchester’s disparate impact claim
should be dismissed. First, Sam’s Club argues that Winchester failed to plead facts which
support a disparate impact claim. Second, Sam’s Club argues Winchester did not raise a
disparate impact claim in his EEOC charge and is therefore barred from now raising this
claim.
To state a disparate impact claim, an employee must identify an employer’s
“facially neutral policy” and show that it has an adverse impact on a protected group.
EEOC v. Honda of Am., Mfg., Inc., 2007 U.S. Dist. LEXIS 37584 *15 (S.D. Ohio, 2007)
(“a plaintiff must still identify, at the pleading stage, a specific facially neutral policy or
practice that resulted in disparate impact”) (citing White v. Am. Axle & Mfg., Inc., 2006
U.S. Dist. LEXIS 17462 *15-17 (E.D. Mich. 2006)). “[I]t is not enough to simply allege
that there is a disparate impact on workers, or point to a generalized policy.” Smith v.
City of Jackson, 544 U.S. 228, 241 (2005).
In his complaint, Winchester alleges that “Defendant screens job applicants to
profit from the Work Opportunity Tax Credit,” that “[h]igher pay level non-management
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vacancies have been filled mostly by younger” applicants, and that “[y]ounger job
applicants eligible for Sam's Club receiving the Work Opportunity Tax Credit are started
at higher wages than older persons filling the same pay levels or positions.” (Docket #7).
Winchester’s claims are conclusory and fail to identify any facially neutral policy and
therefore his disparate impact claim must be dismissed. EEOC v. Honda, 2007 U.S. Dist.
LEXIS 37584 at *15; City of Jackson, 544 U.S. at 241 (“employee is responsible for
isolating and identifying the specific employment practices that are allegedly responsible
for any observed statistical disparities”) (emphasis in original).
In addition to failing plead facts supporting a claim of disparate impact,
Winchester has not exhausted his administrative remedies by raising this claim in his
EEOC Charge. “Pursuant to the provisions of the ADEA, an individual must first file a
charge of discrimination with the EEOC” as a prerequisite to filing a civil action. Davis
v. Sodexho, 157 F.3d 460, 463 (6th Cir. 1998); Allen, 545 F.3d at 402. In general, the
civil action is limited to the claims raised in the EEOC charge. Younis v. Pinnacle
Airlines, Inc., 610 F.3d 359, 362 (6th Cir. 2010). “This rule serves the dual purpose of
giving the employer information concerning the conduct about which the employee
complains, as well as affording the EEOC and the employer an opportunity to settle the
dispute through conference, conciliation, and persuasion.” Id. However, courts “may
also consider claims that are reasonably related to or grow out of the factual allegations in
the EEOC charge.” Id; Sodexho, 157 F.3d at 463. This allowance stems from the fact
that an EEOC charge is normally “filed by lay complainants” who are “unschooled in the
technicalities of the law and proceed without counsel.” Tisdale v. Fed. Express Corp.,
415 F.3d 516, 527 (6th Cir. 2005) (citing Haithcock v. Frank, 958 F.2d 671, 675 (6th Cir.
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1992)). This lenient standard is tempered in this case, as Winchester is a disbarred
attorney. Winchester v. City of Hopkinsville, 2015 U.S. Dist. LEXIS 29715 (W.D. Ky.
2015).
It is undisputed that Winchester failed to overtly allege disparate impact in his
EEOC Charge. The issue therefore is whether Winchester alleged sufficient facts to put
Sam’s Club on notice of Winchester’s claim. Winchester’s EEOC Charge primarily
details how he was not hired for a job that went to a younger, less experience applicant.
Winchester also alleged: “During the past year, I observed older persons are hired into
more laborious and lower pay level positions, while younger persons have been hired into
higher pay level positions.” (Docket #5-2). This statement is not enough to support a
disparate impact claim, which is a claim that Sam’s Club had “employment practices that
are facially neutral in their treatment of different groups but that in fact fall more harshly
on one group than another.” Allen, 545 F.3d at 403; see also Haddad v. Wal-Mart Stores
East, L.P., 982 F. Supp. 2d 825, 839 (M.D. Tenn. 2013).
CONCLUSION
IT IS HEREBY ORDERED that, for the foregoing reasons, Plaintiff’s motion for
default judgment (Docket #9) is DENIED. Defendants’ motion to dismiss (Docket #5,
10) Winchester’s wrongful discharge claim is DENIED and motion to dismiss
Winchester’s disparate impact claim is GRANTED.
IT IS FURTHER ORDERED that a teleconference is scheduled for June 29, 2015
at 10:30 am. Central Time. The Court shall place the call. The Court shall contact

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Plaintiff at 270-349-4998. If Plaintiff is to be reached at a different number, then Plaintiff
shall contact the Court (270-415-6430) with the new number.

cc:

counsel of record
June 24, 2015

William T. Winchester
P.O. Box 643
Paducah, KY 42002

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