Cotuna v. Walmart Stores, Inc.

Filing 26

ORDER Denying In Part and Granting In Part Defendant's Motion to Dismiss 17 . Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
VIOREL COTUNA
Plaintiff,
V.

Case Nos. 14-CV-10420
Honorable Denise Page Hood

WALMART STORES, INC.,
Defendant.
/
ORDER DENYING IN PART AND GRANTING IN PART
DEFENDANT’S MOTION TO DISMISS
I.

INTRODUCTION

This matter comes before the Court pursuant to Defendant Walmart Stores,
Inc.’s Partial Motion to Dismiss Plaintiff’s First Amended Complaint [Docket No.
17, filed October 18, 2014]. Plaintiff filed a Response to the Motion to Dismiss
[Docket No. 18, filed September 1, 2014], and Defendant filed a Reply to the
Response [Docket No. 21, filed September 15, 2014]. For the reasons stated
below, Defendant’s Partial Motion to Dismiss the First Amended Complaint is
GRANTED IN PART and DENIED IN PART.
II.

BACKGROUND
Plaintiff Viorel Cotuna is Romanian and is disabled (Amended Complaint,

¶1). Plaintiff began working at Defendant Walmart Stores, Inc. in 2002 and held
various positions at several of Defendant’s locations (Am. Compl., ¶¶ 2, 5).

Plaintiff requested and obtained reasonable accommodation from 2002 to 2011
(Am. Compl., ¶ 7). In April 2011, Plaintiff’s supervisor, an employee of
Defendant, denied Plaintiff an increase in pay without supporting documentation,
while four of Plaintiff’s female coworkers who were similarly situated received an
increase (Am. Compl., ¶¶ 8-9). Plaintiff alleges that three other similarly situated
male coworkers were also denied the increase (Am. Compl., ¶ 10).
Plaintiff alleges that beginning in May 2011, he experienced intimidation,
was denied reasonable accommodation requests, was assigned non-managerial
tasks, was disciplined, and was told he “move[d] too slow” and “need[ed] to speak
English so [other associates] understand” (Am. Compl., ¶ 12). In August 2011,
Plaintiff requested and was granted medical leave under the Family Medical Leave
Act, 29 U.S.C. § 2601, et seq. (Am. Compl., ¶ 14). Plaintiff subsequently
requested and was granted leave based on Defendant’s Leave of Absence Policy
(Am. Compl., ¶ 15). Defendant’s Human Resources Manager denied Plaintiff’s
final leave request and terminated Plaintiff on January 6, 2011 (Am. Compl., ¶ 18).
Plaintiff alleges that at least one other similarly situated employee was granted a
longer Leave of Absence without termination (Am. Compl., ¶ 20).
On October 30, 2013, Plaintiff filed a charge of discrimination with the
Equal Employment Opportunity Commission (hereinafter “EEOC”) alleging
discrimination on the basis of his national origin, retaliation, and/or disability (Am.

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Compl., Ex. 4, “EEOC Charge of Discrimination”). On the same day, the EEOC
sent Plaintiff a Dismissal and Notice of Rights, notifying Plaintiff that he may file
a lawsuit for claims under Title VII of the Civil Rights Act of 1964 (“Title VII”)
and the Americans with Disability Act (“ADA”) within 90 days of receipt of the
notice (Am. Compl., Ex. 5, “Right to Sue Notice”).
On January 29, 2014, Plaintiff filed a Complaint against Defendant.
Plaintiff brought the following claims against Defendant in his Amended
Complaint: (i) discrimination based on gender in violation of Title VII and
Michigan’s Elliot-Larsen Civil Rights Act (“ELCRA”); (ii) discrimination based
on national origin in violation of Title VII and ELCRA; (iii) discrimination based
on disability in violation of the ADA and Michigan’s Persons with Disabilities
Civil Rights Act; (iv) violation of the Equal Pay Act (“EPA”); and (vii) violation
of the Michigan Compensation Laws §§408.473, 408.474, and 408.475.
Now, before the Court is Defendant’s Partial Motion to Dismiss Plaintiff’s
First Amended Complaint [Docket No. 17, filed October 18, 2014]. In its Motion,
Defendant argues that it is entitled to dismissal of all claims, because Plaintiff’s
ADA and Title VII claims are barred by the statute of limitations. Defendant
argues that Plaintiff was required to file his lawsuit by January 28, 2014, but the
Docket reflects that Plaintiff’s Complaint was filed on January 29, 2014.

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Defendant also argues that the Title VII gender discrimination claim must be
dismissed for failure to exhaust administrative remedies.
Plaintiff responded to the Motion to Dismiss [Docket No. 18, filed
September 1, 2014]. Plaintiff argues that his inability to secure reliable
representation and his due diligence in having the Complaint delivered to the Court
by January 27, 2014, warrants extending the filing date. Plaintiff further argues
that current regulations make filing a gender discrimination claim with the EEOC
prior to bringing a lawsuit optional, not required.
Defendant filed a Reply Brief in Support the Partial Motion to Dismiss
[Docket No. 21, filed September 15, 2014]. Defendant argues that Plaintiff has
not proved that he mailed the Complaint in time, and that Plaintiff has not shown
that he is entitled to equitable tolling. Defendant argues that Plaintiff has conceded
the fact that he did not exhaust his administrative remedies with respect to the
gender discrimination claim.
III.

STANDARD OF REVIEW

Rule 12(b)(6) of the Rules of Civil Procedure provides for a motion to
dismiss based on failure to state a claim upon which relief can be granted. Fed. R.
Civ. P. 12(b)(6). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the
Supreme Court explained that “a plaintiff’s obligation to provide the ‘grounds’ of
his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a

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formulaic recitation of the elements of a cause of action will not do[.] Factual
allegations must be enough to raise a right to relief above the speculative level…”
Id. at 555 (internal citations omitted). Although not outright overruling the “notice
pleading” requirement under Rule 8(a)(2) entirely, Twombly concluded that the “no
set of facts” standard “is best forgotten as an incomplete negative gloss on an
accepted pleading standard.” Id. at 563.
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.” Id.
at 570. A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.

Id. at 556.

The plausibility standard is not akin to a

“probability requirement,” but it asks for more than a sheer possibility that a
defendant has acted unlawfully. Id. Where a complaint pleads facts that are
“merely consistent with” a defendant’s liability, it “stops short of the line between
possibility and plausibility of ‘entitlement to relief.’” Id. at 557. Such allegations
are not to be discounted because they are “unrealistic or nonsensical,” but rather
because they do nothing more than state a legal conclusion—even if that
conclusion is cast in the form of a factual allegation. Ashcroft v. Iqbal, 556 U.S.
662, 681 (2009).

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In sum, for a complaint to survive a motion to dismiss, the non-conclusory
“factual content” and the reasonable inferences from that content must be
“plausibly suggestive” of a claim entitling a plaintiff to relief. Id. Where the wellpleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged, but it has not shown that the pleader is
entitled to relief. Fed. R. Civ. P. 8(a)(2).
The Court notes that consideration of a motion to dismiss under Rule
12(b)(6) is confined to the pleadings. Jones v. City of Cincinnati, 521 F.3d 555,
562 (6th Cir. 2008). In assessing the facial sufficiency of the complaint, the Court
must ordinarily do so without resort to matters outside the pleadings. Wysocki v.
Int’l Bus. Mach. Corp., 607 F.3d 1102, 1104 (6th Cir .2010).

However,

“documents attached to the pleadings become part of the pleadings and may be
considered on a motion to dismiss.” Commercial Money Ctr., Inc. v. Illinois Union
Ins. Co., 508 F.3d 327, 335-36 (6th Cir. 2007) (citing Fed. R. Civ. P. 10(c)); see
also Koubriti v. Convertino, 593 F.3d 459, 463 n.1 (6th Cir. 2010).
The Court further notes that even if a document is not attached to a
complaint or answer, “when a document is referred to in the pleadings and is
integral to the claims, it may be considered without converting a motion to dismiss
into one for summary judgment.” Commercial Money Ctr., 508 F.3d at 335-36.
Where a plaintiffs does not refer directly to given documents in the pleadings, if

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those documents govern the plaintiff’s’ rights and are necessarily incorporated by
reference, then the motion need not be converted to one for summary judgment.
See Weiner v. Klais & Co., Inc., 108 F.3d 86, 89 (6th Cir. 1997) (holding that plan
documents could be incorporated and assessed without converting a motion to
dismiss to a motion for summary judgment, even though the complaint referred
only to the “plan” and not the accompanying documents). Additionally, “[a] court
may consider matters of public record in deciding a motion to dismiss without
converting the motion to one for summary judgment.”

Northville Downs v.

Granholm, 622 F.3d 579, 586 (6th Cir. 2010) (quoting Commercial Money Ctr.,
Inc., 508 F.3d at 335-36).
IV.

ANALYSIS
a. Statute of Limitations

The Court must now determine the filing deadline for Plaintiff’s Complaint
according to the Federal Rules of Civil Procedure. The EEOC Dismissal and
Notice of Rights letter is dated October 30, 2013, and states Plaintiff has 90 days to
file a lawsuit. According to FRCP Rule 6(a)(1)(A), the Court is to “exclude the
day of the event that triggers the period.” See Fed. R. Civ. P. 6(a)(1)(A). The
event that would trigger the period in this instance is the receipt of the notice as
indicated in the letter. Since Plaintiff states he received the letter on October 30,
2013, the 90-day period begins on October 31, 2013. January 28, 2014, is exactly

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90 days after October 31, 2013. The Plaintiff’s Complaint was docketed January
29, 2014.
The Court may exercise equitable tolling in some cases. See Truitt v. Cnty.
of Wayne, 148 F.3d 644, 648 (6th Cir. 1998). In doing so, the Court should
consider five factors:
1) lack of notice of the filing requirement; 2) lack of
constructive knowledge of the filing requirement; 3) diligence
in pursuing one's rights; 4) absence of prejudice to the
defendant; and 5) the plaintiff's reasonableness is remaining
ignorant of the particular legal requirement.
Id.
As to factors one and two, there is no dispute that Plaintiff had notice of the
filing requirement and had taken action to meet the filing deadline. As to factor
three, diligence in pursuing one’s rights, Plaintiff notes in his affidavit that he
sought counsel. When counsel did not respond, he attempted to have another
person hand-deliver his pleading. When hand-delivery failed, Plaintiff then sought
to use the mail.
Based on the United States Postal Service tracking information, the
Complaint was delivered on January 27, 2014, one day before the filing deadline
(Pl.’s Resp. to Def.’s Mot., Ex. 2, “USPS Delivery Confirmation”). In this
instance, it is appropriate to apply equitable tolling, because the Plaintiff exercised
due diligence by having the Complaint arrive timely at the Court. The clerk did

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not docket the Complaint until January 29, despite the delivery date of January 27.
See Ross v. McKee, 465 F. App'x 469, 476 (6th Cir. 2012).
As to the fourth factor, prejudice to the defendant, Defendant is not
prejudiced by tolling the filing deadline by one day after it was put on notice
regarding the claims through the EEOC Charge of Discrimination. Factor five is
not relevant to this analysis as Plaintiff was not ignorant of the legal requirement.
Applying the factors in Truitt, the Court finds it appropriate to equitably toll
the time for filing Plaintiff’s Complaint. Since the Court deems the Complaint
timely filed, Defendant’s Motion is DENIED in this regard.
b. Failure to Exhaust Administrative Remedies
Plaintiff argues that current regulations permit directly filing a Complaint
under the EPA without exhausting administrative remedy. In its Partial Motion to
Dismiss, Defendant did not address the EPA gender discrimination claim, and
therefore, the Court will not address it at this time. Defendant only addressed the
Title VII gender discrimination claim, and Plaintiff did not argue that he was not
required to exhaust his administrative remedies prior to filing a lawsuit as he did
with the EPA claim.
Even assuming, arguendo, that Plaintiff claimed the regulations do not
require exhausting administrative remedies in Title VII gender discrimination
claims, the claim still fails. “Under Title VII… before filing a complaint in the

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district court, a plaintiff must exhaust his or her administrative remedies by filing a
charge of discrimination with the EEOC… and receiving a Notice of Right to Sue.”
Howard v. DaimlerChrysler Corp., 290 F. Supp. 2d 784, 792 (E.D. Mich. 2003)
(internal citations omitted). The Courts do not differentiate between different types
of discrimination claims brought under Title VII with respect to the requirement to
exhaust administrative remedies.
In Adamov v. U.S. Bank National Association, the Sixth Circuit clarified that
where a party fails to exhaust administrative remedies in a Title VII retaliation
claim, the “district court may not dismiss the claim on jurisdictional grounds.”
Adamov v. U.S. Bank Nat. Ass'n, 726 F.3d 851, 855-56 (6th Cir. 2013). The Court
relied on the fact that Defendant had failed to raise the issue in district court, and
therefore, forfeited the argument. Id. Here, however, Defendant has raised the
issue by moving to dismiss the claim. The Court is not raising the issue sua sponte
as was the case in Adamov. Id.
Plaintiff did not check the box to indicate discrimination based on sex in the
charge of discrimination he filed with the EEOC. Since Plaintiff failed to exhaust
his administrative remedies with regards to the Title VII gender discrimination
claim, Defendant’s Partial Motion to Dismiss is granted as to this claim.
V.

ORDER
Accordingly,

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IT IS ORDERED that Defendant’s Partial Motion to Dismiss Plaintiff’s
First Amended Complaint [Docket No. 17, filed October 18, 2014] is GRANTED
IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that the claim for discrimination based on
gender in violation of Title VII is DISMISSED. Defendant’s Motion as to this
claim is GRANTED. All other counts REMAIN; Defendant’s Motion as to these
claims is DENIED.

S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: March 4, 2015
I hereby certify that a copy of the foregoing document was served upon
counsel of record on March 4, 2015, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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