Bellamy v. Walmart, Inc. et al
MEMORANDUM OPINION (c/m to Plaintiff 4/1/21 sat). Signed by Judge Deborah K. Chasanow on 4/1/2021. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Civil Action No. DKC 20-1352
WALMART, INC., et al.
Presently pending and ready for resolution in this employment
discrimination suit is a motion to dismiss. (ECF No. 11).
issues have been briefed, and the court now rules, no hearing being
Local Rule 105.6.
For the following reasons,
the motion to dismiss will be granted.
Unless otherwise noted, the facts outlined here are set forth
in Plaintiff’s administrative and federal complaints and construed
in the light most favorable to Plaintiff.
Bellamy is a Maryland resident and former employee of Defendant
Walmart, Inc. (“Walmart”).
At the time in question, he worked at
Defendant “Walmart Store #1717” and under supervisor Defendant
He asserts that from June 2017 to January 2018
Walmart argues that Walmart Store 1717 is not a corporate
entity and contends that Ms. Wagner was not properly served. In
addition, it argues that neither party is properly joined in this
action, particularly Ms. Wagner as Title VII “limits civil
liability solely to employers” and has “rejected individual
(his “entire time at this store”), he was “mistreated as an
employee for standing up for myself and others.”
In October 2017
altercation” with his “overnight supervisor” Ms. Wagner.
alleges the argument began when she told him to do something
“against store policy,” but he refused.
Ms. Wagner is alleged to
have then told Plaintiff, “You just need to do what you are told,”
among other things, and that “you will never be successful in
anything you do[,] and I will see to it that you will never be
successful in this company.”
He argues this scene unfolded in
front of numerous fellow employees.
reprimanding him and that he was “written up” or sent home for
minor infractions which he claims other fellow employees “were
allowed to partake in or get away with.”
On two occasions, in
fact, he argues he was “wrongfully terminated” and had to “go
liability under . . . federal EEO laws.” (ECF No. 11-1, at 8)
(quoting Moody v. Arc of Howard Cnty., Inc., No. JKB-09-3228, 2011
WL 2671385, at *4 (D.Md. July 7, 2011), aff’d, 474 F. App’x 947
As discussed more fully
(4th Cir. 2012) and collecting cases).
below, Plaintiff has failed to exhaust his administrative remedies
as to any Defendants, so this argument need not be addressed,
although it is well taken.
Plaintiff clarifies in his unsigned opposition that the
statement in the complaint that this event occurred on “October
2018,” was merely a typo. (ECF No. 16, at 3); (see also ECF No.
11-1, at 2 n.3).
Finally, on January 25, 2018, Mr. Bellamy states he
was terminated, and without recourse to the “open door policy,”
two weeks after he “accidentally” broke a sign that he asserts was
He alleges that there was at least one witness to
this incident,4 and that either this or another co-worker told him
that his manager “Andre” said afterward, “I cannot stand him and
I’m going to see to it that he gets out of here.”
manager, Plaintiff asserts, also commented after his termination
that his firing was “for good this time” and that he would ensure
he would be denied unemployment.
(ECF No. 1-1, at 2).
Subsequently, Mr. Bellamy filled out a “Pre-Charge Inquiry”
with the U.S. Equal Employment Opportunity Commission (“EEOC”)
discriminated against because of,” Plaintiff did not check “Race,”
underneath he checked the boxes for “I complained to my employer
about job discrimination” and “I helped or was a witness in someone
It is not clear what this process entails, however, or what
protections it affords Walmart employees.
Plaintiff attaches a handwritten statement to his complaint
that appears to be from this individual who reports that the
breaking of the sign was not intentional. (ECF No. 1-1, at 10).
It is not entirely legible, however.
else’s complaint about job discrimination.”
There is no expanded
Instead where the complaint form asks what happened to him that he
felt was discriminatory, he reported the “verbal altercation” with
(ECF No. 1-1, at 4-5).
His actual “Charge of
Discrimination” (the “EEOC Complaint”), does not check any boxes
(including retaliation) in response to the question “Why you think
you were discriminated against?” He does, however, attach a writeup to the EEOC Complaint that adds more color to the alleged
“altercation” with his supervisor and the other complained of
conduct detailed above.
(ECF No. 1-1, at 2).
After receiving a “Dismissal and Notice of Rights” from the
EEOC (“Right to Sue” letter) in which the EEOC states it was
“unable” to conclude a violation had occurred, Plaintiff brought
a complaint in this court.
It alleges discrimination pursuant to
Title VII of the Civil Rights Act of 1965 (“Title VII”).
asked to explain the “discriminatory conduct” complained of, Mr.
Bellamy checked the boxes for “Termination of my employment,”
generally took place between June 2017 and January 2018, as well
as in particular incidents on August 22, 2017,5 and January 25,
A handwritten note from a “Yolanda Richardson” reports that
on August 22 around 10:45 p.m. she witnessed “Cliff the employee
and Jess the store night asst. manager” get into an argument. She
says Jess was shouting that she “want[ed] all the items done,” but
Mr. Bellamy now contends that Walmart discriminated against
him because of his “race” and “gender/sex.”
His prayer for relief
requests “$1 million dollars for wrongful termination, harassment
(ECF No. 1).
Defendant subsequently filed a motion to dismiss for failure
to state a claim.
(ECF No. 11).
That same day notice was sent to
Mr. Bellamy that a failure adequately to respond might be fatal to
(ECF No. 12).
Twenty days later, Plaintiff filed
an opposition, but it was unsigned.
(ECF No. 16).
The next day,
on September 25, 2020, an order went out directing the Clerk to
mail Mr. Bellamy a copy of his unsigned response and granting him
fourteen days to re-file it signed.
(ECF No. 17).
not done so, and Defendant’s subsequent reply urges that Mr.
(ECF No. 18).
Because the complaint will be
dismissed because Plaintiff failed to exhaust his administrative
remedies, even when the contents of the unsigned opposition are
considered, such a step is unnecessary.
Mr. Bellamy responded that if his shift did not finish, the next
one would. According to this account, this is what prompted Ms.
Wagner to say “That’s why you will never be nothing in life. You
will never amount to nothing.”
If this is the same incident
highlighted in the EEOC complaint, this contradicts his assertion
that this confrontation took place in October.
III. Standard of Review
Defendant invokes Fed.R.Civ.P. 12(b)(1) and argues that a
failure to exhaust “deprives the federal courts of subject matter
administrative remedies are more properly claims that Plaintiff
failed to allege the “essential ingredients of a federal claim of
relief,” and thus do not challenge subject matter jurisdiction.6
A motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the
sufficiency of the complaint.
Presley v. City of Charlottesville,
464 F.3d 480, 483 (4th Cir. 2006).
In evaluating the complaint,
unsupported legal allegations need not be accepted.
Charles Cty. Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), as are conclusory
factual allegations devoid of any reference to actual events.
United Black Firefighters of Norfolk v. Hirst, 604 F.2d 844, 847
(4th Cir. 1979); see also Francis v. Giacomelli, 588 F.3d 186, 193
(4th Cir. 2009).
“[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
See Johnson v. Md. Dep’t of Labor, Licensing, and Regul.,
386 F.Supp.3d 608, 613 n.1, (D.Md. 2019); see also Fort Bend Cty.,
Tx. V. Davis, 139 S.Ct. 1843, 1846 (2019) (abrogating Jones v.
Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009) (insofar as
Title VII’s “charge-filing instruction is not jurisdictional”)).
pleader is entitled to relief.’”
Iqbal, 556 U.S. at 679 (quoting
Thus, “[d]etermining whether a complaint
states a plausible claim for relief will . . . be a contextspecific task that requires the reviewing court to draw on its
judicial experience and common sense.”
administrative remedies for at least two reasons.
First, Mr. Bellamy’s original complaint with the EEOC alleges
his January 25, 2018, termination was the culmination of the
purported discrimination against him.
In order to be timely, Mr.
Bellamy had 300 days from this “last alleged discriminatory act”
to file a timely EEOC Charge.
(ECF No. 11-1, at 6) (citing 42
U.S.C. § 2000e-5(e)(1) and EEOC v Randstad, 765 F. Supp. 2d 734,
739 & n.1 (D. Md. 2011), rev’d on other grounds by 685 F.3d 433
(4th Cir. 2012)).
Nor can the retaliation claim be based on or
revived by framing the EEOC complaint itself as a protected
activity, as this complaint was made well after his termination.
This makes November 21, 2018, the last day on which Plaintiff could
file with the EEOC regarding this or any earlier conduct by
The “Charge of Discrimination” appended by Plaintiff,
however, shows that Mr. Bellamy’s complaint with the EEOC was
signed on December 10, and he reports filing it on the 11th. (See
ECF No. 1, at 6).
Thus, the EEOC Charge was nearly three weeks
late, and Walmart argues that the entire complaint is time-barred.
(ECF No. 11-1, at 6-7).
Second, Defendant argues that even if Plaintiff filed a timely
complaint with the EEOC, he was required to bring his federal suit
within ninety days of receipt of the Right to Sue letter.
argues this is a hard-and-fast requirement that is not easily
(Id. at 11-1, at 7) (citing 42 U.S.C. § 2000e-5(f)
and Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984)).
Mr. Bellamy states in his complaint that he received the Right to
Sue letter on February 16, 2020.
(ECF No. 1, at 6).
concedes, however, that there is a handwritten note on the actual,
appended Right to Sue letter, that it was received on March 1.
(ECF No. 1-1, at 6).
Even accepting this date as triggering this
exhaustion requirement, Walmart argues, ninety days from this date
is May 30, and Plaintiff did not file his federal complaint until
June 1, a day later.
(ECF No. 11-1, at 7).
The secondary alleged delay is ephemeral.
March 1 was a
Sunday and not likely the day of receipt.
If it was, however, 90
days later was May 30, 2020, a Saturday.
When the last day falls
on a weekend, a party may file on the next business day, or June
complaint on May 28 and it was delivered to the court on June 1.
The suit was filed timely, if receipt of the Notice of Right to
Sue was on March 1.
Plaintiff does not specifically address the timing of his
actions, either with the EEOC or with this court. He does complain
that he was forced to file his complaint pro se because of the
costs associated with hiring an attorney and because COVID-19
adversely affected his ability to pay such a cost.
(ECF No. 16,
These realities fail to excuse his late filing with the
EEOC back in November or December of 2018, well before the COVID19 pandemic began.
Having failed to complain of his ultimate
termination in a timely fashion, Mr. Bellamy is also barred from
the inclusion of any earlier, alleged misconduct by Walmart.
additional arguments — 1) that Mr. Bellamy did not exhaust his
discrimination and harassment claims, and 2) that all his claims
have otherwise failed to state a valid Title VII cause of action
— need not be addressed.
(See ECF No. 11-1, at 8-17).
defect is not curable, and so Plaintiff is not granted leave to
For the foregoing reasons, the motion to dismiss filed by
Defendant Walmart will be granted.
A separate order will follow.
DEBORAH K. CHASANOW
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?