Garey v. Wal-Mart Stores East LP

Filing 14

MEMORANDUM AND ORDER Granting 10 Motion to Dismiss Plaintiff's Amended Complaint; Granting Plaintiff until 9/30/2015 to file a Second Amended Complaint. Signed by Judge Marvin J. Garbis on 8/31/2015. (nd2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SHEILA GAREY

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Plaintiff
vs.

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WAL-MART STORES EAST, LP

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CIVIL ACTION NO. MJG-15-778

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Defendant
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MEMORANDUM AND ORDER RE: MOTION TO DISMISS
The Court has before it Defendant's Motion to Dismiss
Plaintiff's Amended Complaint [ECF No. 10] and the materials
submitted relating thereto.

The Court finds a hearing

unnecessary.

I.

BACKGROUND1
Plaintiff Sheila Garey ("Garey") began working for

Defendant Wal-Mart Stores East, LP ("Walmart") in 1992 as an
associate in the toy department of Walmart's Easton, Maryland
store.

Am. Compl. ¶ 5.

In May, 2006, Garey was promoted to

assistant manager of the Cambridge, Maryland store.
Her employment was terminated on July 9, 2013.

1

Id. ¶ 9.

Id. ¶ 31.

The "facts" herein are as alleged by Plaintiff and are not
necessarily agreed upon by Defendant.

A.

Garey's EEOC Charge

On or about June 6, 2013, Garey – through EEO Advocates LLC
(a nonlawyer representative) – filed a Charge of Discrimination
with the United States Equal Employment Opportunity Commission
("the EEOC Charge").

Id. ¶ 33.

The EEOC Charge2 states that Garey was discriminated against
on the basis of her age and disability in a "continuing action."
[ECF No. 10-2] at 4.
2

Even though the EEOC Charge was attached to the Motion to
Dismiss, the Court may consider the contents of the EEOC Charge.
See CACI Int'l, Inc. v. St. Paul Fire & Marine Ins. Co., 566
F.3d 150, 154 (4th Cir. 2009) ("This circuit has also held that
courts may consider a document that the defendant attaches to
its motion to dismiss if the document 'was integral to and
explicitly relied on in the complaint and if the plaintiffs do
not challenge its authenticity.'" (citation omitted)). As Judge
Hollander of this Court stated recently:
Courts commonly consider EEOC charges as
integral to a plaintiff's Complaint, i.e.,
effectively a part of the pleading, even if
the EEOC charge is not filed with the
Complaint. See, e.g ., Rhodes v. Montgomery
Cnty. Dept. of Corr. & Rehab., AW–12–03172,
2013 WL 791208, at *6 (D.Md. Mar.1, 2013)
(court
may
consider
a
charge
of
discrimination attached to motion to dismiss
where
the
charge
is
integral
to
the
complaint and where its authenticity is
undisputed); Betof v. Suburban Hosp., Inc.,
DKC–11–01452, 2012 WL 2564781, at *3 n. 6
(D.Md. June 29, 2012) (same); White v.
Mortgage Dynamics, Inc., 528 F.Supp.2d 576,
579 (D.Md. 2007) (a court may consider a
charge of discrimination attached to motion
to dismiss where charge was incorporated by
reference, integral to the complaint, and no
party objected).
2

A notation on the first page of the EEOC Charge indicates
that the earliest discrimination occurred in 2007 and that the
latest occurred at some unspecified time in 2013, necessarily
prior to the June 6, 2013 filing date.3

The latest specifically

alleged act of discrimination by Walmart occurred on September
21, 2012.
A document entitled "Particulars" - attached to the EEOC
Charge – states that the basis of the discrimination claim was:


Disability – knee injury, wrist injury,
previous cancer;



Failure to accommodate a disability;



Age – 62; and



Retaliation for engaging in protected
activity.

Id. at 6.
The Particulars document states that Garey "was subject to
harassment, disparate treatment and a hostile work environment
on a weekly basis" and outlines 21 instances of alleged
discrimination that occurred between March 2009 and September
2012.

See id. at 8-17.
On September 21, 2012 – according to the EEOC Charge –

Garey she was subjected to hostile treatment:

Bowie, v. Univ. of Maryland Med. Sys., No. CIV.A. ELH-14-03216,
2015 WL 1499465, at *3 n.4 (D. Md. Mar. 31, 2015).
3
The Court is aware that at the time Garey filed the EEOC
Charge, Walmart had not yet terminated her employment.
3



Store Manager Mike Quillen called Garey and told her
"Sheila, I told you I will not allow you to file an
accident claim against my store. I am going to get my
bonus this year and you are not going to mess that up
with an accident report that never happened. . . .
Don't you file that claim, Sheila do you hear me?" and



Mike Quillen spoke to Garey over "the walkie-talkie so
all the people in the store who carry a walkie-talkie
could hear [and] asked her 'Did you leave your brains
at home, because you did not bring them to work with
you today.'"

Id. at 16-17.

B.

The Amended Complaint

Garey filed the Complaint, [ECF No. 1], on March 18, 2015.
On May 20, 2015, Walmart filed a Motion to Dismiss [ECF No. 5].
Garey was granted leave to file an amended complaint [ECF No.
6].

On June 10, 2015, Garey filed the Amended Complaint, [ECF

No. 7], presenting two Counts:
Count One

Violation of the Americans with Disabilities
Act ("ADA"), 42 U.S.C. § 12101, et seq.

Count Two

Violation of Maryland State Government
Article § 20-601, et seq.

III. DISCUSSION
A.

Rule 12(b)(6) Dismissal

A motion to dismiss filed pursuant to Federal Rule4 of Civil
Procedure 12(b)(6) tests the legal sufficiency of a complaint.
A complaint need only contain "'a short and plain statement of
4

All "Rule" references herein are to the Federal Rules of
Civil Procedure.
4

the claim showing that the pleader is entitled to relief,' in
order to 'give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.'"

Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (alteration in original)
(citations omitted).

When evaluating a 12(b)(6) motion to

dismiss, a plaintiff's well-pleaded allegations are accepted as
true and the complaint is viewed in the light most favorable to
the plaintiff.

However, conclusory statements or "a formulaic

recitation of the elements of a cause of action will not
[suffice]."

Id.

A complaint must allege sufficient facts "to

cross 'the line between possibility and plausibility of
entitlement to relief.'"

Francis v. Giacomelli, 588 F.3d 186,

193 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 557).
Inquiry into whether a complaint states a plausible claim
is "'a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.'"

Id.

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).

Thus, if

"the well-pleaded facts [contained within a complaint] do not
permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged – but it has not 'show[n]'
– 'that the pleader is entitled to relief.'"

Id. (alteration in

original)).
Gary states in Count 15 of the Amended Complaint:
5

And repeats in Count 2.
5

38.

At
all
times
relevant
to
this
Complaint, and through and including
the date this Complaint is filed,
Plaintiff is ready, willing and able to
work, yet Defendant has prohibited her
from doing so, in violation of the
Americans with Disabilities Act.

39.

[Blank in the Amended Complaint]

40.

Plaintiff
sought
a
accommodation, light duty.

41.

Defendant has an affirmative obligation
to accommodate Plaintiff's disability.

42.

Defendant
failed
to
Plaintiff's disability.

43.

Defendant has prohibited Plaintiff from
working and has terminated Plaintiff as
a direct result of her disability.

reasonable

accommodate

Presumably, Garey is asserting that Walmart failed to
accommodate her disability by terminating her employment on July
9, 2013.

She does not state, by reference to a date and/or

specific alleged facts, any other claim.
Factual allegations in the Amended Complaint appear to
contradict Garey's statements in the EEOC Charge.

For instance,

the Amended Complaint states that: Garey was on a one-year
medical leave commencing July 25, 2012; sought an extension in
June 2013; and "Defendant did not allow Plaintiff to work at any
time during her medical leave of absence, insisting that
Plaintiff could not have any accommodation and must return to
work without any restrictions." Am Compl. ¶¶ 20, 24, 29.
6

However, as noted above, the EEOC Charge states that Garey was
subjected to hostile treatment on September 21, 2012 with
reference to Garey having been at work on that date.6
Moreover, the Amended Complaint sets forth conclusory
allegations regarding Garey being an individual with an ADAqualifying disability and an otherwise "qualified individual."
See 42 U.S.C. §§ 12102(1)(A), 12112(a).
The Court finds that the Amended Complaint should be
dismissed pursuant to Rule 12(b)(6), but that – in order to
evaluate Walmart's jurisdictional defense – it is appropriate to
give Garey an opportunity to file an adequate Second Amended
Complaint.

B.

Failure to Exhaust Administrative Remedies

Walmart contends that the Amended Complaint should be
dismissed because Garey has failed to exhaust her administrative
remedies on the grounds that "the allegations asserted in [the]
Amended Complaint are distinct from the allegations in [the
EEOC] charge."

[ECF No. 10-1] at 6-9.

Before
a
federal
court
may
assume
jurisdiction over a claim under Title VII, .
.
.
a
claimant
must
exhaust
the
administrative procedures enumerated in 42
U.S.C.
§
2000e-5(b),
which
include
an
6

Garey stated in the EEOC Charge that Mike Quillen said to
her: "Did you leave your brains at home, because you did not
bring them to work with you today." [ECF No. 10-2] at 17
(emphasis added).
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investigation
of
the
complaint
and
a
determination by the EEOC [Equal Employment
Opportunity
Commission]
as
to
whether
'reasonable cause' exists to believe that
the charge of discrimination is true.

Davis v. N.C. Dep't of Correction, 48 F.3d 134, 137 (4th
Cir. 1995).

The Americans with Disabilities Act incorporates

the procedural requirements of Title VII.

See, e.g., 42 U.S.C.

§ 12117(a); Baird ex rel. Baird v. Rose, 192 F.3d 462, 470 (4th
Cir. 1999).

Claims brought under the Maryland Fair Employment

Practices Act, Md. Code Ann., State Gov't § 20-601, et seq.,
also are evaluated under Title VII standards.

See Hawkins v.

Leggett, 955 F. Supp. 2d 474, 497 (D. Md. 2013) aff'd sub nom.
In re Canarte, 558 F. App'x 327 (4th Cir. 2014).
In 2009, the U.S. Court of Appeals for the Fourth Circuit
stated that "a failure by the plaintiff to exhaust
administrative remedies concerning a Title VII claim deprives
the federal courts of subject matter jurisdiction over the
claim."

Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th

Cir. 2009); see also Murphy-Taylor v. Hofmann, 968 F. Supp. 2d
693, 711-12 (D. Md. 2013) ("The jurisdictional issues that must
be resolved under Fed.R.Civ.P. 12(b)(1)[, lack of subject matter
jurisdiction,] are those concerning whether plaintiffs
adequately exhausted their Title VII claims with the EEOC before
filing suit.").

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The EEOC charge defines the scope of the
plaintiff's right to institute a civil suit.
"An administrative charge of discrimination
does not strictly limit a Title VII suit
which may follow; rather, the scope of the
civil action is confined only by the scope
of the administrative investigation that can
reasonably be expected to follow the charge
of discrimination."
Bryant v. Bell Atl. Maryland, Inc., 288 F.3d 124, 132 (4th
Cir. 2002) (citations omitted).

"'Only those discrimination

claims stated in the initial charge, those reasonably related to
the original complaint, and those developed by reasonable
investigation of the original complaint may be maintained in a
subsequent Title VII lawsuit.'"

Chacko v. Patuxent Inst., 429

F.3d 505, 506 (4th Cir. 2005).
Walmart contends that "[t]he allegations in Plaintiff's
Amended Complaint are not 'reasonably related' to the
allegations in her [EEOC] charge."

[ECF No. 10-1] at 8.

Walmart may well be correct – particularly in regard to a claim
based on the July 9, 2013 termination of Garey's employment.
However, as noted above, the Amended Complaint does not clearly
specify the claims that Garey is presenting.

Thus, the Court

cannot definitively rule upon Walmart's jurisdictional
contention.

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IV.

CONCLUSION
Under the circumstances of this case:
1.

Defendant's Motion to Dismiss Plaintiff's Amended
Complaint [ECF No. 10] is GRANTED.

2.

Plaintiff may, by September 30, 2015, file a
Second Amended Complaint that clearly and
adequately sets forth the precise claims that she
is asserting.
a.

Plaintiff cannot expect that she shall be
able to file a Third Amended Complaint.

b.

Every claim asserted must have factual
allegations specifying the discriminatory
action taken and the date upon which the
action was taken.

c.

The Court shall, in light of the Second
Amended Complaint, consider whether Garey
has adequately pleaded any claim and, if so,
whether it has jurisdiction over such claim.  

SO ORDERED, on Monday, August 31, 2015.

/s/__________
Marvin J. Garbis
United States District Judge

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