White v. The Home Depot et al

Filing 13

MEMORANDUM OPINION (c/m to Plaintiff 8/21/13 sat). Signed by Chief Judge Deborah K. Chasanow on 8/21/13. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
WILLIAM WHITE
:
v.

:

Civil Action No. DKC 13-0624

:
THE HOME DEPOT, U.S.A., INC.,
et al.

:

MEMORANDUM OPINION
Presently

pending

and

ready

for

resolution

in

this

employment discrimination action is a motion to dismiss filed by
Defendant, The Home Depot, U.S.A., Inc.
relevant

issues

have

been

briefed

and

(ECF No. 8).1
the

court

now

The
rules

pursuant to Local Rule 105.6, no hearing being deemed necessary.
For the reasons that follow, the motion will be granted.2

1

Defendant was incorrectly named in the complaint as “The
Home Depot.” The docket will be corrected to reflect its proper
name.
2

The complaint also names two individual defendants, Jason
Alexander and Marthe Theus, but does not contain any substantive
allegations against them. In response to the motion to dismiss,
Plaintiff concedes that his only potentially viable claim is one
for
disability
discrimination
under
the
Americans
with
Disabilities
Act
(“ADA”),
and
“individuals
who
do
not
independently meet the ADA’s definition of ‘employer’ cannot be
held liable under the ADA.”
Stephens v. Kay Management Co.,
Inc., 907 F.Supp. 169, 174 (E.D.Va. 1995).
Accordingly, the
individual defendants will be dismissed pursuant to 28 U.S.C. §
1915(e)(2)(ii), and their motion to quash service (ECF No. 11)
will be denied as moot.

I.

Background
Plaintiff,

proceeding

pro

se,

commenced

this

action

on

February 27, 2013, by filing a complaint alleging violations of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. (“Title VII”); the Americans with Disabilities Act of 1990,
42

U.S.C.

§

12131

et

seq.

(“ADA”);

the

Genetic

Information

Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff-1(a) et seq.
(“GINA”); and the Age Discrimination in Employment Act of 1967,
29 U.S.C. § 621 et seq. (“ADEA”).
with

the

complaint,

Plaintiff

(ECF No. 1).

filed

a

motion

Concomitantly
for

leave

to

proceed in forma pauperis (ECF No. 2), which was subsequently
granted (ECF No. 3).
The complaint, which is inartfully drafted, recites that,
during the course of Plaintiff’s employment with The Home Depot,
he suffered injuries in “three accidents on the job.”
1, at 2).

(ECF No.

Following one of those accidents, his doctor informed

his employer “to remove [him] from the job [he] was in before
another

accident

happened,”

but

“the

[and] an[other] accident happen[ed].”

request

went

unanswered

(Id.).

On December 12,

2012, Plaintiff’s employment was terminated “because it was said
that [he] was rude to a customer.”
is

still

“receiving

treatment

(Id.).

from

[exacerbated] by the three accident[s].”

2

[]

He asserts that he
injuries

(Id.).

that

were

Defendant responded, on April 12, by filing a motion to
dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1)
and 12(b)(6), arguing that the court lacked jurisdiction over
any

claims

under

Title

VII,

GINA,

and

the

ADEA

due

to

Plaintiff’s failure to exhaust administrative remedies and that
Plaintiff had failed to state a claim for relief under the ADA.
(ECF

No.

8).

“concede[d]

that

In

opposition

[he

had]

papers

not

filed

exhausted

May

[his]

1,

Plaintiff

administrative

remedies with regard to [his] Title VII, ADEA, and GINA claims,”
and that those claims “should be dismissed.”
2).

(ECF No. 10, at

He opposed dismissal of his ADA claim, however, providing

significantly more detail of the factual basis for such a claim
in the process.

On May 22, Defendant filed reply papers urging

the court to “confine its consideration to the four corners” of
the pleading and to “dismiss the [c]omplaint for failure to
state a claim upon which relief can be granted.”

(ECF No. 12,

at 2).
II.

Standard of Review
The purpose of a motion to dismiss under Rule 12(b)(6) is

to test the sufficiency of the complaint.
of

Charlottesville,

464

F.3d

480,

483

See Presley v. City
(4th

Cir.

2006).

A

plaintiff’s complaint need only satisfy the standard of Rule
8(a), which requires a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
3

Fed.R.Civ.P.

8(a)(2).

“Rule 8(a)(2) still requires a ‘showing,’ rather than

a blanket assertion, of entitlement to relief.”
v. Twombly, 550 U.S. 544, 555 n. 3 (2007).

Bell Atl. Corp.

That showing must

consist of more than “a formulaic recitation of the elements of
a cause of action” or “naked assertion[s] devoid of further
factual enhancement.”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (internal citations omitted).
At this stage, all well-pleaded allegations in a complaint
must be considered as true, Albright v. Oliver, 510 U.S. 266,
268 (1994), and all factual allegations must be construed in the
light

most

favorable

to

the

plaintiff,

see

Harrison

v.

Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)).

In evaluating the complaint, unsupported legal

allegations need not be accepted.

See Revene v. Charles County

Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).

Legal conclusions

couched as factual allegations are insufficient, Iqbal, 556 U.S.
at 678, as are conclusory factual allegations devoid of any
reference to actual events, United Black Firefighters v. Hirst,
604

F.2d

844,

847

(4th

Cir.

1979);

see

also

Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).

Francis

v.

“[W]here the

well-pleaded facts 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
4

relief.’”

Iqbal,

8(a)(2)).

556

U.S.

at

679

(quoting

Fed.R.Civ.P.

Thus, “[d]etermining whether a complaint states a

plausible claim for relief will . . . be a context-specific task
that

requires

the

reviewing

experience and common sense.”

court

to

draw

on

its

judicial

Id.

III. Analysis
The

ADA

makes

it

unlawful

for

certain

employers

to

discriminate against “a qualified individual on the basis of
disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation,
job training, and other terms, conditions, and privileges of
employment.”

42 U.S.C. § 12112(a).

It also requires employers

to “mak[e] reasonable accommodations to the known physical or
mental limitations of an otherwise qualified individual with a
disability

who

is

an

applicant

or

employee,

unless

[the

employer] can demonstrate that the accommodation would impose an
undue hardship on the operation of the [employer’s] business[.]”
§ 12112(b)(5)(A).
While

it

is

difficult

to

discern

the

contours

of

Plaintiff’s ADA claim from the complaint, he clarifies in his
opposition papers that he intends to allege wrongful discharge
and

failure

to

accommodate.

To

state

a

claim

for

wrongful

discharge under the ADA, in the absence of any direct evidence,
the complaint must set forth facts sufficient to show that “(1)
5

[Plaintiff] is within the ADA’s protected class; (2) he was
discharged; (3) at the time of his discharge, he was performing
the

job

at

a

level

that

met

his

employer’s

legitimate

expectations; and (4) his discharge occurred under circumstances
that raise a reasonable inference of unlawful discrimination.”
Rhoads v. F.D.I.C., 257 F.3d 373, 387 n. 11 (4th Cir. 2001)
(quoting Haulbrook v. Michelin N. Am., Inc., 252 F.3d 696, 702
(4th Cir. 2001) (internal quotation marks omitted)).

To state a

claim for failure to accommodate, Plaintiff must allege facts
supporting: “(1) that he was an individual who had a disability
within the meaning of the statute; (2) that the [employer] had
notice of his disability; (3) that with reasonable accommodation
he could perform the essential functions of the position . . . ;
and

(4)

that

accommodations.”

the

[employer]

Rhoads,

257

refused

F.3d

at

387

to
n.

make
11

such

(quoting

Mitchell v. Washingtonville Cent. School Dist., 190 F.3d 1, 6 (2d
Cir. 1999) (internal quotation marks omitted)).
Plaintiff’s complaint fails to set forth sufficient facts
in support of many of these elements.

Initially, the complaint

does not reflect that Plaintiff suffers from a disability, much
less that such disability is one recognized under the ADA.

The

ADA defines “disability” as including “(A) a physical or mental
impairment

that

activities

of

substantially
such

limits

individual;
6

(B)

one
a

or

more

record

major
of

such

life
an

impairment; or (C) being regarded as having such an impairment.”
42 U.S.C. § 12102(1).

As the United States Court of Appeals for

the Fourth Circuit explained in Pollard v. High’s of Baltimore,
Inc., 281 F.3d 462, 467-68 (4th Cir. 2002):
In
order
to
demonstrate
that
an
impairment is substantially limiting, an
individual
must
show
that
she
is
significantly restricted in a major life
activity. See, e.g., Halperin v. Abacus
Tech. Corp., 128 F.3d 191, 199 (4th Cir.
1997); 29 C.F.R. § 1630.2(j)(1). And in
determining
whether
an
impairment
is
substantially limiting, courts may consider
the “nature and severity of the impairment,”
the “duration or expected duration of the
impairment,” and the “permanent or long term
impact” of the impairment. 29 C.F.R. §
1630.2(j)(2). These factors indicate that a
temporary impairment, such as recuperation
from surgery, will generally not qualify as
a disability under the ADA. See, e.g., 29
C.F.R.
§
1630.2(j),
app.
at
353.
An
impairment simply cannot be a substantial
limitation on a major life activity if it is
expected to improve in a relatively short
period of time.
(Internal

footnote

omitted).

While

the

facts

asserted

in

Plaintiff’s opposition papers are closer to the mark, they do
not support that the injuries Plaintiff suffered in job-related
accidents were long-term, rather than temporary, impairments.
Moreover, the operative facts must be alleged in the complaint.
Neither the complaint nor the opposition papers address the
third

element

of

a

wrongful

termination

claim

–

i.e.,

that

Plaintiff was meeting his employer’s reasonable expectations in

7

terms of job performance at the time he was discharged – and the
opposition papers merely allege in conclusory fashion that he
was “falsely accused, disciplined, and terminated on the basis
of [his] disability” (ECF No. 10, at 2), rather than providing
factual detail in support of that conclusion.

The third and

fourth elements of a failure to accommodate claim are likely set
forth with sufficient detail in the opposition papers.
Plaintiff

asserts

sustaining

injuries

that,
in

when

an

he

accident

returned
on

August

to

There,

work

12,

after

2008,

his

“doctor requested that [he] be put on light duty, limited heavy
lifting, bending, repetitive movement, and stooping”; that he
“was

qualified

to

perform

the

job

with

the

reasonable

accommodations prescribed by [his] doctor”; and that Home Depot
“failed to provide accommodations that [he] needed to perform
the job.”

(Id. at 1-2).

Again, however, these allegations must

be set forth in a pleading.

Because they are not, the complaint

is subject to dismissal.
While Plaintiff has not specifically sought leave to amend
in the event that the motion to dismiss were to be granted, in
light of his pro se status, the court will consider whether such
relief

is

Procedure

appropriate.
15(a)(2),

Pursuant

courts

are

to

to

Federal

grant

Rule

leave

pleading “freely . . . when justice so requires.”

to

of

Civil

amend

a

Leave should

be denied, however, where “the amendment would be prejudicial to
8

the opposing party, there has been bad faith on the part of the
moving party, or the amendment would be futile.”

HCMF Corp. v.

Allen, 238 F.3d 273, 276 (4th Cir. 2001) (quoting Edwards v. City
of Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999) (internal marks
omitted)).
Here, there is no indication that prejudice would inure to
Defendant

if

complaint.

Plaintiff
Moreover,

were
as

permitted

Defendant

to

file

implicitly

an

amended

concedes,

if

Plaintiff were to include (and expand upon) the factual detail
asserted in his opposition papers in an amended complaint, he
may be able to state a viable claim of wrongful termination
and/or

failure

to

accommodate

under

the

ADA.

Accordingly,

Plaintiff will be permitted to file an amended complaint within
thirty days.
claims

or

He will not, however, be permitted to assert new

allege

facts

outside

the

scope

of

the

claims

he

attempted to raise initially.
IV.

Conclusion
For the foregoing reasons, the motion to dismiss will be

granted

without

prejudice

to

Plaintiff’s

amended complaint within thirty days.

right

to

file

an

A separate order will

follow.

________/s/_________________
DEBORAH K. CHASANOW
United States District Judge
9