McClinton v. Sams Club 8273
Filing
73
MEMORANDUM ORDER granting 67 Motion to Dismiss for Failure to State a Claim. The Court hereby dismisses without prejudice Mr. McClinton's retaliation claim. Signed by Judge Elizabeth E Foote on 5/24/2013. (crt,Keifer, K)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
JEROME MCCLINTON
CIVIL ACTION NO. 11-cv-2156
VERSUS
JUDGE ELIZABETH ERNY FOOTE
SAM’S EAST, INC., ET AL.
MAGISTRATE JUDGE MARK HORNSBY
MEMORANDUM ORDER
Mr. McClinton, a former employee of Sam’s Club, alleges that he was retaliated
against after he filed a police report and an Equal Employment Opportunity Commission
(EEOC) charge related to allegations of sexual harassment and gender and racial
discrimination in the workplace. Mr. McClinton is proceeding pro se in this matter.
Sam’s East, Inc., Wal-Mart Associates Inc., and Wal-Mart Stores East LP (“Defendants”)
now move to dismiss Mr. McClinton’s retaliation claim [Record Document 67]. For the
reasons given below, the Court GRANTS Defendants’ Motion to Dismiss.
I.
Factual and Procedural Background
The Court, in a previous Memorandum Order [Record Document 65], has
detailed the facts of the case, and the Court hereby references its previous Order for
the complete factual record. Mr. Clinton asserts that while employed at Sam’s Club in
Shreveport, he was subject to sexual harassment and gender and racial discrimination
prior to his termination. Documents relating to Mr. McClinton’s termination indicate that
his employment with Sam’s Club was terminated on the grounds that he harassed and
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intimidated other employees and caused them to fear for their safety.1 Defendants also
terminated Mr. McClinton’s employment for use of a “personal electronic device that
harms Walmart’s legitimate business interests.”2 Mr. McClinton claims his managers
convinced employees to make false statements against him in order to terminate him.3
He also claims that he was terminated because he filed a complaint against the
Defendants with the EEOC.4 It is his final claim that is the basis for this Motion to
Dismiss.
II. Law and Analysis
A.
Standard for Motion to Dismiss under Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of any claim that
fails “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In
order to survive a Rule 12(b)(6) motion to dismiss, a “complaint must allege sufficient
factual matter, accepted as true, to state a claim that is plausible on its face.” Hershey
v. Energy Transfer Partners, L.P, 610 F.3d 239, 245 (5th Cir. 2010). While a complaint
attacked by a Rule 12(b)(6) motion need not contain detailed factual allegations, it must
at least allege plausible grounds from which one could infer that the elements of the
claim can be made out. Bell Atlantic Co. v. Twombly, 550 U.S. 544, 556 (2007), In re
Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007). The complaint
1
Record Document 43-1, p.40.
2
Id.
3
Record Document 43-1, pp. 24-26.
4
Record Document 32, p. 4.
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must allege “enough fact to raise a reasonable expectation that discovery will reveal
evidence of [every element of the claim].” Bell Atlantic Co., 550 U.S. at 556.
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements” will not suffice. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Courts
must not, however, convert this “plausibility” requirement into an analysis of whether
the non-moving party is likely to succeed on the merits. Bell Atlantic Co., 550 U.S. at
556 (“of course, a well-pleaded complaint may proceed even if it strikes a savvy judge
that actual proof of those facts is improbable, and that a recovery is very remote and
unlikely.”) (citations omitted). In order to insure equal access to the courts pleadings
of litigants proceeding pro se are treated liberally. U.S. v. Robinson, 78 F.3d 172, 174
(5th Cir. 1996).
B.
Retaliation Claim
Although his various complaints do not include a heading for a claim of
retaliation, Mr. McClinton makes clear that he intends to pursue a Title VII retaliation
claim for being terminated for filing a complaint with the EEOC. So long as the
complaint alleges facts upon which relief can be granted, it states a claim even if it “fails
to categorize correctly the legal theory giving rise to the claim.” Dussouy v. Gulf Coast,
660 F.2d 594, 604 (5th Cir. 1981). 42 U.S.C. §2000e-3(a) establishes a claim for
retaliation against an employee who files an EEOC complaint:
(a) Discrimination for making charges, testifying, assisting, or participating
in enforcement proceedings: It shall be an unlawful employment practice
for an employer to discriminate against any of his employees or applicants
for employment, for an employment agency, or joint labor-management
committee controlling apprenticeship or other training or retraining,
including on-the-job training programs, to discriminate against any
individual, or for a labor organization to discriminate against any member
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thereof or applicant for membership, because he has opposed any
practice made an unlawful employment practice by this subchapter, or
because he 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).
Mr. McClinton repeatedly asserts that he was terminated because he filed a
police report and a charge with the EEOC. Under the heading “Gender Discrimination,”
he writes, “Mr. McClinton was terminated for not dropping the E.E.O.C. charge an [sic]
for filing a police report on manage [sic] Amanda.”5 Similarly, in his Opposition to the
Defendant’s first Motion to Dismiss, he claims, “Plaintiff was a former employee of
Sam’s Club located at 7400 Youree Dr. Shreveport, Louisiana, where I was terminated
on December 7, 2011 for not droping [sic] the E.E.O.C. Charge against manager
Amanda an [sic] not dropping the Police report against her.”6
Defendants argue that Mr. McClinton has not exhausted his Title VII
administrative prerequisites because his retaliatory discharge claim remains pending
before the EEOC.7 The record indicates Mr. McClinton has filed three Charges of
Discrimination with the EEOC regarding retaliation claims.8 Charge No. 461-2011-01956
alleges both sex and retaliation discrimination, and the Notice of Charge was issued
September 8, 2011.9 Mr. McClinton received a Dismissal and Notice of Rights for Charge
No. 461-2011-01956 on September 20, 2011, which gave him notice that the EEOC was
5
Record Document 75, pp. 14.
6
Record Document 31-1, p.4, see also Record Document 43-1, p.44.
7
Record Document 67-2, pp.2.
8
Record Document 67-1, Exhibit 1, Exhibit 2, Exhibit 3.
9
Record Document 67-1, Exhibit 1.
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dismissing his claim.10 This dismissal gave Mr. McClinton the right to sue on his
discrimination claims.11 The record indicates that Mr. McClinton has filed two additional
retaliation charges under Title VII, Charge No. 461-2012-00270, which was issued
November 30, 2011, and Charge No. 461-2012-00640, which was was issued April 2,
2012.12 There is no evidence in the record that either one of these Charges has been
dismissed by the EEOC. Mr. McClinton admits that he has additional retaliation charges
pending before the EEOC that he is not asserting in the present matter.13
Defendants argue that the only retaliation claim Mr. McClinton has a right
to sue under is the Charge No. 461-2011-01956, which was issued prior to his
termination from Sam’s Club on or around December 6, 2011. As such, Defendants
argue that Mr. McClinton’s claim of retaliatory discharge must be one of the other
charge numbers that are still pending before the EEOC, and because the EEOC has not
issued a Dismissal and Notice of Rights with respect to the retaliatory discharge claim,
Mr. McClinton has not exhausted his Title VII administrative prerequisites.
“Employment discrimination plaintiffs must exhaust administrative
remedies before pursuing claims in federal court. Exhaustion occurs when the plaintiff
files a timely charge with the EEOC and receives a statutory notice of right to sue.”
Taylor v. Books A Million, Inc., 296 F.3d 376, 378-379 (5th Cir. 2002). Plaintiff’s
retaliation claim is based upon his termination from Sam’s Club on or around December
10
Record Document 70, Exhibit 2.
11
Id.
12
Record Document 67-2, Exhibits 2 and 3.
13
Record Document 69-1, pp. 4.
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6, 2011, which he argues was the result of his refusal to drop an EEOC charge against
the company.
The Court finds that the only retaliation charge which has been properly
dismissed by the EEOC pre-dates Mr. McClinton’s termination from the Sam’s Club, and
accordingly, that particular retaliation charge cannot be premised on the termination of
his employment, which had yet to happen. As Charge No. 461-2011-01956 is the only
discrimination charge in the record that has been administratively exhausted, the Court
finds that Mr. McClinton has not provided evidence he has exhausted his Title VII
administrative prerequisites for the retaliatory discharge claim. For the above reasons,
the Court GRANTS Defendants’ Motion to Dismiss.
III.
Conclusion
For the reasons given above, the Court GRANTS Defendants’ Motion to Dismiss
[Record Document 67] and hereby dismisses without prejudice Mr. McClinton’s
retaliation claim. This matter is now complete and the clerk is instructed to close the
file.
Shreveport, Louisiana, this 24th day of May, 2013.
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