Jeffries v. Walmart Stores Inc.

Filing 30

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 7/11/2016. (c/m 07/11/2016 jf3s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division

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MONICA JEFFRIES,

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Plaintiff,

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Case No.: GJH-t5-473

v.

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WAL-MART

STORES EAST, LP

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Defendant.

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MEMORANDUM

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OPINION

Presently pending before the Court is a motion to dismiss the Amended Complaint
by Plaintiff Monica Jeffries against her former employer,
("Wal-M311,,).1 ECF No. 23. Plaintiff: proceeding
accommodate.
purported

retaliation,

violations

Defendant

pro se, brings claims of failure-to-

with Disabilities

Act ("'ADA"), 42

The Court has reviewed the record and deems a hearing unnecessary.
2016). For the reasons stated herein, Wal-Mart's
I.

employment

to the Amended

for

* 12112

el seq.

See Loc. R. 105.6 (D. Md.

motion to dismiss is granted.

Complaint.

Wal-Mart terminated

Plaintiff fi'om her

in 2013. during which time she was suffering ti'om Stage 111breast cancer. the side

effects of chemotherapy

Plaintiffs

U.s.c.

Wal-Mart.

BACKGROUND
According

I

filed

Wal-Mart Stores East. LP

and wrongful discharge against her former employer,

of the Americans

*

initial Complaint

treatment.

was dismissed

and a work-related

without prejudice

blunt-force

injury to the foreti'ont of her

on February 3.2016.

ECF Nos. 20 and 21.

leg.2 ECF No. 22 at 2.3 Plaintiff alleges that Wal-Mart was aware of Plaintiffs

breast cancer

prior to hiring her and during her tenure as an employee. Id. at 13. Plainti 1'1'
took a medical leave
of absence from January 2013 to August 2013 related to her breast cancer, chemotherapy
effects, treatment for the leg injury, depression,
contacted

and pneumonia.

side

Id. at 4. Plaintiff alleges that she

Wal-Mart at "all relevant times" to inform the company of her health status from the

time of her leave until her termination.
the "required

interactive

"for absolutely
defendants"

Id. at 4. She claims that Wal-Mart refused to enter into

process" to accommodate

discharged her

no reason. except in retaliation because. plaintiff filed a grievance against the

for worker's

compensation

("EEOC'),

benefits. Id. at 3-4.

and unemployment

Plaintiff filed a charge of discrimination
Commission

her disability, and wrongfully

with the Equal Employment

alleging disability discrimination

and retaliation.4

Opportunity
ECF

o. 1-4. She

received a right to sue notice from the EEOC on January 29, 20 IS. which instructed her that she
had ninety days to file a lawsuit in federal court. ECF No. 1-5. Plaintiff filed her initial
Complaint

in this Court on February 18,20 IS, and Wal-Mart moved to dismiss the Complaint on

May 27. 2015. ECF Nos. 1& 8. On June 16,2015,
Support of her Motion to Dismiss Defendants
the Court construed as a response in opposition

Plaintiff filed a "Memorandum

of Law in

Motion to Dismiss Plaintiffs Complaint:'
toWal-Marl's

which

Motion to Dismiss. ECF No. 10.

Wal-Mart filed its reply on June 26, 2015. ECF No. 15. PlaintifTthen

filed a Motion for Leave to

File a Surreply, ECF No. 17, which Wal-Mart opposed. ECF No. 18. On February 3, 2016. the

As it did in moving to dismiss Plaintiffs original Complaint, Wal-Mart again contends that its employment records
indicate that Plaintiffwas
terminated in September 2014 and ..[tJhus. Walmart does not dispute the timeliness of
Plaintiffs filing of her underlying administrative
charge or this action:' ECr No. 23-\ at 2 n.2.
3 All pin cites to documents
filed on the COUl1"s electronic filing system (CM/ECr) refer to the page numbers
generated by that system.

2

Plaintiff dated the EEOC charge of discrimination
incorrect in light of the fact that Plaintiff subsequently
2015. ECr No. I.

4

form "rebruary
15, 2015:" ECF No. I. This appears to be
received a right to sue notice from the EEOC on January 29,

2

COUl1 denied Plaintiffs
dismiss without

Motion for Leave to File a Surreply and granted Wal-Marfs

prejudice,

factual allegations

allowing

Plaintiff to amend her initial Complaint

motion to

in order to add

for pleading a claim under the ADA. See ECF

to satisfy the requirements

o.

20.
Plaintiff

filed her Amended

dismiss the Amended

Complaint

Plaintiff tiled her opposition
April 1,2016.
a surreply,

II.

Complaint

on March 10,2016.

to Wal-Mart"s

ECF Nos. 25,26.

on March 7,2016,

and Wal-Mart

moved to

ECF Nos. 22. 23. On March 22. 2016.

motion to dismiss, and Wal-Mart

filed its reply on

On April 27, 2016, Plaintiff again filed a motion for leave to file

ECF No. 28, which Wal-Mart

opposed.

ECF No. 29.

MOTION FOR LEAVE TO FILE SURREPLY
The first issue to be considered

is whether Plaintiffs

motion for leave to file a surreply

should be granted. "As a general rule, this Court will not allow parties to file sur-replies."

Nicholson v. Volkswagen G']J. (~(Am .. Inc., No. ROB-13-3711,
Apr. 7,2015)

(citing Loc. R. 105.2.a (D. Md. 2001»;

Canst. Co., No. RDB-12-2109,

See

2015 WL 1565442. at *3 (D. Md.

MTB Sen's .. Inc. v. TllckllWI1-8arbee

2013 WL 1224484. at *6 (D. Md. Mar. 26. 2013». "A party

moving for leave to tile a surreply must show a need for a surreply."
(D. Md. 2001»). The Court may, however.

Id. (citing Loc. R. 105.2.a

permit a plaintiff to file a surreply if"a defendant

raises new legal issues or new theories in its reply brief." Id. (citing TECH USA.. Inc. v. E\'{(ns.
592 F. Supp. 2d 852, 862 (D. Md. 2009).

"Surreplies

would be unable to contest matters presented
party's

may be permitted

when the moving party

to the court for the first time in the opposing

reply'" MTB Sen's., 2013 WL 1224484. at *6: see also Khoury v. lv/eseI've, 268 F. Supp.

2d 600, 605 (D. Md. 2003).

Here, Wal-Marfs
PlaintitThas

III.

reply does not introduce

any new facts, legal issues, or theories.

shown no need to file a surreply, and Plaintitrs

motion is therefore denied.

MOTION TO DISMISS
A. Standard of Review
Wal-Mart

has moved to dismiss Plaintiff's

Amended

Complaint

for failure to state a

claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure
When deciding

12(b)(6).

a motion to dismiss under Rule 12(b)( 6), a court "must accept as true all of the

factual allegations

contained

in the complaint"

those facts] in favor of the plaintin~"

and must "draw all reasonable

inferences

[from

£.1. du Pont de Nemours & Co. v. Kolon Indus .. Inc.. 637

F.3d 435, 440 (4th Cir. 2011) (citations

and internal quotation

marks omitted). To survive a

motion to dismiss, "a complaint

must contain sufficient

factual matter, accepted

as true, 'to state

a claim to relief that is plausible

on its face.'" Ashcrqfi v. Iqbal. 556 U.S. 662, 678 (2009)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544. 570 (2007)). The factual allegations
be more than "labels and conclusions
the speculative

more ...

than ...

right of action.'').

*

1216,235-36

a statement

(3d ed. 2004) C'[T]he pleading must contain something

of facts that merely creates a suspicion

"A claim has facial plausibility

allows the court to draw the reasonable
alleged."

show(n]-that

[of] a legally cognizable

when the plaintiff pleads factual content that

inference that the defendant

Iqbal, 556 U.S. at 663. "But where the well-pleaded

infer more than the mere possibility

(alterations

[they] must be enough to raise a right to reliefabovc

" Twombly, 550 U.S. at 555: see also 5 C. Wright & A. Miller, Federal

level ....

Practice and Procedure

...

of misconduct,

is liable for the misconduct

facts do not permit the coul1 to

the complaint

has alleged-but

it has not

the pleader is entitled to relief." Id. at 679 (citing Fed. R. Civ. P. 8(a)(2))
in original).

must

Although

pleadings

of self-represented

4

litigants must be liberally

construed,

see Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), liberal construction

not give the court license to ignore a clear failure to allege facts that set forth a cognizable
See Weller v. Dep

'I

does
claim.

(~rSoc. Servs. for Cily of Ballimore. 901 F.2d 387. 391 (4th Cir. 1990).

B. Discussion
Plaintiff s Amended Complaint
accommodate

raises three distinct causes of action: (l) fai Iure-to-

under the ADA; (2) retaliation under the ADA; and (3) wrongful discharge under

the ADA. The Court will consider each in turn.
1. Failurc-to-Accommodatc
In a failure-to-accommodate

case under the ADA. a plaintiff establishes

case by pleading facts demonstrating

a prima facie

"(1) that [s]he was an individual who had a disability

within the meaning of the statute; (2) that the [employer] had notice of [her] disability; (3) that
with reasonable

accommodation

(4) that the [employer]
373,387

n.ll

[s]he could perform the essential functions of the position: and

refused to make such accommodations."

Rhoad\' v. F.D.I. c., 257 F.3d

(4th Cir. 2001) (quoting Milchell v. Washinglonville Cent. Sch. Dis!.. 190 F.3d 1. 6

(2d Cir. 1999».
Although the Amended Complaint

is not a model of clarity, interpreting

the facts in the

light most favorable to Plaintiff, her breast cancer qualifies as a disability under the ADA. An
individual

is within the ADA's protected class if she is "a qualified individual with a disability."

42 V.S.c. ~ 12112. "The ADA defines 'disability'

as a physical or mental impairment

that

substantially

limits one or more of the major life activities of an individual. a record of such an

impairment,

or being regarded as having such an impairment."

252 F.3d 696,702-03

Halllbrook \'. Michelin N. Am ..

(4th Cir. 2001) (citing 42 V.S.c. ~ 12102(2»."A

major life activity []

includes the operation of a major bodily function, including but not limited to. functions of the

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immune

system,

[and] normal cell growth ....

interpretive

guidance

minimum,

substantially

" 42 U.S.c.

~ 12102(2)(8).

specifies cancer as one of the "types of impairments
limit the major life activities

limits nonnal cell growth."

indicated,"

29 C.F.R. ~ 1630.2U)(3)(iii);

The EEOC's
[that) will. at a

because cancer "substantially

see also Ka!z)'. Aelecco USA. Inc., 845

F. Supp. 2d 539, 548 (S.D.N.Y.

2012) ("Cancer

(citations

marks omitted); Angell v. Fair11101l111 ire Pro!. Dis! .. 907 F.
F

and internal quotation

will virtually always be a qualifying

Supp. 2d 1242, 1250 (D. Colo. 2012) (citation and internal quotation
should easily be concluded

that ...

cell growth and accordingly,
became extremely
PlaintitTs

cancer substantially

constitutes

a disability.").

as a disability

Plaintiff alleged that "her immune system

Complaint

Wal-Mart

had notice of her disability.

defendants

liberally and accepting

prior to actual hiring of plaintiff,
and [she] continued

in the form of monthly disability

[Wal-Mart]

to put [Wal-Mart]

Mart, and such notice was verbal and written'"
corroborative
considering

pleads that

slips, phone

that "[a]t all relevant times and

was put on notice of Plaintiffs

[sic]

on notice during her entire tenure with Wal-

lei. at 13. Although these statements

factual support, such as dates or the content of her correspondence.
PlaintifTs

Plaintiffs

Plaintiff alleges that "at all relevant times [she] kept the

abreast of the status of her health ...

condition

claim, construing

all facts as true, PlaintifTsufficiently

calls, and in store visits." ECF No. 22 at 2-3. She also contends
certainly

ECF No. 22 at 5. Thus.

under the ADA.

As to the second element of her failure-to-accommodate
Amended

marks omitted) C'II]t

limits [the major life activity of] normal

fragile which required her to stay off from work'"

breast cancer qualifies

disability.")

pro se status, they suflice to show that Wal-Mart

disability.

6

lack further
particularly

had notice of her

With respect to the third and fourth elements,
requisite

facts necessary

to state a plausible

fails to allege that with reasonable
functions

of her position.

accommodation

she could have performed

The third element of the failure-to-accommodate

accommodation

was provided,

position. Jacobs v. N. C Admin.
reasonable

accommodation

perform the essential

PlaintifT fails to allege the

claim for relief. As to the third element

two prongs: whether the specific accommodation
requested

however,

requested

was reasonable

[a qualified]

accommodations

schedules,"

42 U.S.c. ~ 12111 (9)(8),

may comprise

individual

"job restructuring.

and "permitting
treatment:'

extension

of leave and a change in work schedule to accommodate

functions

of the position.

accommodate

claim is a conclusory

Amended

Complaint

...

to

\\ork

Plaintiff's

obtaining

request for

further treatment

See ECF No. 22 at 7.

communicated

accommodation

Plaintiff's

able to perform the essential

29 C.F.R. ~ 1630.2(0).

accommodations.

Yet even ifPlaintifTproperly

with a disability

the use of accrued paid leave or providing

unpaid leave for necessary

if the requested

functions of the

part-timc or modilicd

additional

allege whether,

and whether, i I' the

Id. (quoting 29 C.F.R. ~ 1630.2(0)( I )(ii».

of [a] position."

reasonable

analysis consists of

Office (~f'the CIs., 780 F.3d 562. 579-80 (4th Cir. 2015). A

Reasonable

would be considered

the essential

the plainti ff could perform the essential

is one that "enables

functions

Plaintiff

these requests to Wal-Mart.

was provided,

PlaintilTfails

to

she could perform the essential

only attempt to meet this aspect of the failure-tostatement

functions

in which she asserts that she "would have been

of her job:'

what the essential

would help her meet them, and Plaintiff's

functions

Id. at 5. Plaintiff never identifies in the
of her job entailed or how the accommodation

unsubstantiated

assertion cannot suffice to plead her

claim. Courts in this district have made clear that "[ wlithout

even a cursory description

of what

kind of work the Plaintiff does, [s]he has simply recited the elements of the cause of action," and

7

"failed to meet the plausibility

standard announced

in Twombly and Iqba/."' Rubino v. New Ac/on

lv/obile Indus .. LLC, 44 F. Supp. 3d 616, 623 (D. Md. 2014): see also Young v. Giant Food
Stores. LLC, 108 F. Supp. 3d 301, 318 (D. Md. 2015). Thus. Plaintiff has not pled that with
reasonable

accommodation

she could perform the essential functions of her position.

Lastly, Plaintiff fails to show that Wal-Mart refused to make such accommodations.
Although Plaintiff alleges that "Walmart
accommodation
treatment,"
'required

refused to extend any leave as an [sic] reasonable

... [and] to change plaintiffs [sic] shift hours so that she could obtain

ECF No. 22 at 9, Plaintiff later admits that "Walmart never entered into the
interactive

process'

to even see what['] if any reasonable accommodations

needed." Id. at 14. Without any additional facts to show that Wal-Mart considered
suggested

accommodations

Plaintiffs

but refused to implement them, Plaintiff cannot meet the fourth

element of her claim. See Rubino, 44 F. Supp. 3d at 623. Thus, Plaintiffs
accommodate

were

ADA failure-to-

claim must be dismissed.
2. Retaliation

The ADA's retaliation

provision specifies that "[n]o person shall discriminate

any individual because such individual

against

... made a charge ... under this chapter." 42 U.S.c. ~

12203(a). "To establish a prima facie retaliation claim under the ADA, a plaintilf must prove (1)
[s]he engaged in protected conduct. (2) [s]he suffered an adverse action. and (3) a causal link
exists between the protected conduct and the adverse action." Reynolds \'. Am. Na/. Red Cross,
701 F.3d 143, 154 (4th Cir. 2012). Although Plaintiff alleges that she suffered an adverse
action-termination-she

has failed to allege any other element of a retaliation claim. The exact

timeline of events is unclear, but Plaintiff appears to allege that her filing a worker's
compensation

claim constitutes

protected conduct, and that the filing of that claim was the

8

retaliatory impetus for her termination. See ECF No. 22 at 3 C'[Wal-Mart] 'wrongfully
terminated' plaintiff for absolutely no reason, except in retaliation because, plaintiff filed a
grievance against the defendants, and eventually won both her Workers Compensation case []
and Unemployment Benefits."). Elsewhere. Plaintiff also contends that "Defendant after plaintiff
filed for 'workers compensation and unemployment benefits' decided to terminate plaintiffs
employment." ECF No. 25 at 9. However, "[t]he ADA's retaliation provision only prohibits
retaliation against a person because the person ... 'made a charge, testified. assisted or
participated in any manner in an investigation. proceeding. or hearing under [the ADA] ....
Reynolds, 701 F.3d at 154 (citing 42 U.S.c.

* I 2203(a)). As the Fourth Circuit noted in

Reynolds, "[tliling a workers' compensation claim is not something that is covered by the ADA,
but rather by retaliation provisions under state law." ld. Thus, Plaintiff's ADA retaliation claim
must be dismissed.
3. Wrongful Discharge
Lastly, Plaintiff alleges wrongful discharge under the ADA, which requires proof that:
"(1) [s]he is within the ADA's protected class; (2) [s]he was discharged; (3) at the time of[her]
discharge, [s]he was performing the job at a level that met [her] employer's legitimate
expectations; and (4) [her] discharge occurred under circumstances that raise a reasonable
inference of unlawful discrimination." Haul bi'ook. 252 F.3d at 702. Plainti ff satisfies the first
two elements ofa wrongful discharge claim because. first. as noted above. Plaintifl's alleged
breast cancer qualities as a disability under the ADA. and, second, she was discharged by WalMart. However. Plaintiff fails to satisfy the last two elements of the claim. Aside 11'omself ..
promoting statements about the quality of her work performance. such as that she "was a team
player, attentive, [and] did her job very well," Plaintiff provides no unbiased factual support for

9

her assertion

that she was meeting Wal-Mart's

legitimate

expectations

22 at 10. Plaintiff fails to plead any facts that show Wal-Mart
employee,

and Plaintiffs

Mart's expectations.

own testimony,

considered

ECF

o.

her to be a satisfactory

of course. cannot establish that she was meeting Wal-

See Rubino, 44 F. Supp. at 623 Colt is the perception

which is relevant, not the self-assessment
Applications

as an employee.

of the plaintiff 00) (quoting

& Servo Co., 80 F.3d 954, 960-61

of the decision maker

Eml1s \'. Technologies

(4th Cir. 1996)); see also King

P.

RlII/I.~feld. 328

F.3d 145, 149 (4th Cir. 2003).
Similarly,
reasonable

as to the fourth element

inference

of unlawful

aspect of the wrongful

discharge

discrimination.

fails to establish
inference

additional

terminated'

single allegation

[] for absolutely

facts about the circumstances

that the discharge

of unlawful

Plaintiff's

occurred

discrimination.

of discrimination,

no reason:'

surrounding

under circumstances

ECF No. 22 at 3.

the discharge.

Plaintiff

that raise a reasonable

(June 9, 1995), as amended

that the Plaintiff must show a direct link between the discharge

(Mar. 14,2008)

and the circumstances

(explaining
that would

and noting that "(t]he building of om: inference upon

another will not create a genuine issue ormaterial
discharge

this

See Ennis v. Nat'! Ass 'n (d'Bus. & Educ. Radio. Il1c., 53

F.3d 55, 62 (4th Cir. 1995), as amended

permit an inference

regarding

claim is that on the day she called to find out when she could

return to work, she was "'wrongfully
Without pleading

Plaintiff fails to plead facts that would allow for a

t~lC1.00). Thus. Plaintiffs

ADA wrongful

claim must be dismissed.5

5 Wal-Mart also responded to possible claims for worker's compensation and unemployment benefits. These claims
are not part of Plaintiffs argument, as she states. "Workers compensation and Unemployment [benefits] has nothing
to do with this motion," ECF No. 25-1 at 10. Regardless, as this Court ruled in dismissing the initial complaint, such
claims are not properly presented to this Court. ECF No. 20 at 7-8.

10

IV.

CONCLUSION
"[D]ismissal with prejudice is proper iI'there is no set of facts the plainti ff could present

to support h[er] claim:' /-links v. Bd. (~lEdllc. (?/'j-/m/ord Oy., No. WDQ-09-1672, 20 I0 WL
5087598, at *2 (D. Md. Dec. 7,2010) (citing Cozzarelli

v. Inspire Phal'II1.. /nc .. 549 F.3d 618.

630 (4th Cir. 2008)). Plaintiff has already received an opportunity from this Court to amend her
Complaint. ECF No. 20. In her second attempt, Plaintiff fails to allege new facts that sufficiently
"state a claim to relief that is plausible on its face:' Iqbal. 556 U.S. at 678 (2009) (internal
citations and quotations omitted). Therefore, Wal-Mart's motion to dismiss, ECF No. 23. is
GRANTED, and this action is DISMISSED with prejudice. A separate Order follows.

Dated: July

I(

.2016
GEORGE .I. HAZEL
United States District Judge

II