Hooten v. Walmart Inc.
ORDER granting 11 Motion to Dismiss for Failure to State a Claim; granting 17 Motion for Extension of Time to File Response; and denying as moot 19 Motion to Stay. Signed by District Judge Terrence W. Boyle on 4/1/2021. Copy sent via US Mail to Justin P Hooten at P.O. Box 38002, Charlotte, NC 28278. (Stouch, L.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
No . 5:20-CV-697-BO
JUSTIN P. HOOTEN,
This cause comes before the Court on defendant' s motion to dismiss for failure to state a
claim. Also on the docket are plaintiffs motion for extension of time to file response and
defendant's motion to stay discovery. For the following reasons, plaintiffs motion for extension
of time and defendant's motion to dismiss are granted, and defendant's motion to stay is denied as
On November 7, 2019, plaintiff Justin Hooten filed a charge of discrimination with the
U.S. Equal Employment Opportunity Commission (EEOC) against her former employer,
defendant Walmart Inc., in Wake County Superior Court. DE 1-1 , 40. In her charge, plaintiff
alleged that defendant subjected her to transgender-based harassment, constructively discharged
her, and retaliated against her, all in violation of Title VII of the Civil Rights Act of 1964. Id. at
40-41. The EEOC declined to act on plaintiffs charge and informed plaintiff of her right to sue
on August 6, 2020. Id. at 10. Subsequently, plaintiff filed this lawsuit in Wake County Superior
Court on November 3, 2020, seemingly bringing the same claims that she alleged in her EEOC
charge. Defendant timely removed the lawsuit to this Court on December 29, 2020. DE 1.
Plaintiff began working for a Walmart store m August 2018. DE 1-1, 19. After
expenencmg some medical complications following a procedure, she returned to work at a
Walmart store in Charlotte, NC in April 2019. Id. Plaintiff later transferred to a Walmart store in
Raleigh and began experiencing alleged discrimination. Id. Assistant Manager Daniel Whitner
called her "it" and avoided her. Id. at 18-19. Another employee told plaintiff that Mr. Whitner had
a problem with plaintiffs '•situation'' and that Mr. Whitner said that ''he didn't have to respect
[plaintiff]." Id. at 12-13. Manager Soycoya Gregory "rolled her eyes at [plaintiff]." Id. at 18. Ms.
Gregory disciplined plaintiff on September 20, 2019 for allegedly being unproductive. Id. at 13.
On September 20, 2019, plaintiff was directed to speak with Jeremy Studl, the new store manager.
Id. at 18. At Mr. Strudl 's request, plaintiffsubmitted a written complaint about her issues with Mr.
Whitner, and Mr. Strudl told plaintiff that he would take care of the issue. Id. However, plaintiff
never heard back from Mr. Strudl or any manager. Id. When plaintiff followed up on her
complaint with Mr. Strudl, he informed her that he needed more time. Id. Plaintiff claims that she
experienced a hostile work environment that caused her emotional distress, which resulted in her
severing her employment from Walmart. Id. Plaintiff experienced increased anxiety and
depression because of her experience, and she subsequently attended outpatient therapy. Id.
Plaintiff filed a complaint with Walmart Corporate after she severed her employment with the
Motion lo File Re:,,ponse Out of Time
Plaintiff has filed a motion for extension of time to file her response to defendant's
motion to dismiss for failure to state a claim. Where a motion to extend time is filed after the
deadline for filing has expired, the moving party must show excusable neglect. Fed. R. Civ. P.
6(b)(l )(B). In determining if a party's neglect is excusable, courts consider "the danger of
prejudice to the [opposing party], the length of the delay and its potential impact on judicial
proceedings, the reason for the delay, including whether it was within the reasonable control of
the movant, and whether the movant acted in good faith. " Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P 'ship, 507 U.S. 380,395 (1993); Agnew v. United Leasing Corp. , 680 Fed App'x
149, 155 (4th Cir. 2017).
Defendant has not responded in opposition to this motion, and the time for doing so has
passed. Plaintiff filed this motion, with the attached response, only one day after the deadline for
filing . Plaintiff asks for the extension because she originally mailed her response in opposition to
this Court, but she was later told that the document had not been received. Plaintiff provides a
receipt from UPS showing that an item was delivered on February 22, 2021 , which was before
the deadline to file a response. Upon learning that the document had not been received, plaintiff
filed this motion and her response in opposition by hand . Defendant will suffer no prejudice from
the delayed filing of the answer. For good cause shown, the Court grants plaintiffs motion for
extension of time to file out of time a response in opposition. This Court deems plaintiffs
response timely filed and includes this response in its consideration of defendant' s motion to
Motion to Dismiss
A Rule 12(b)( 6) motion to dismiss tests the legal sufficiency of the complaint. Papas an v.
Allain, 478 U.S. 265,283 (1986). When acting on a motion to dismiss under Rule 12(b)(6), "the
court should accept as true all well-pleaded allegations and should view the complaint in a light
most favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993).
A complaint must allege enough facts to state a claim for relief that is facially plausible. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Facial plausibility means that the facts
pled " allow the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged," and mere recitals of the elements of a cause of action supported by
conclusory statements do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint
must be dismissed if the factual allegations do not nudge the plaintiffs claims "across the line
from conceivable to plausible." Twombly, 550 U.S. at 570. The complaint "must plead sufficient
facts to allow a court, drawing on judicial experience and common sense, to infer more than the
mere possibility of misconduct." Nemet Chevrolet, Ltd. v. Consumerajfairs.com, Inc., 591 F.3d
250, 256 (4th Cir. 2009) (internal quotations omitted). " [T]he court need not accept the
plaintiffs legal conclusions drawn from the facts, nor need it accept as true unwarranted
inferences, umeasonable conclusions, or arguments. " Philips v. Pitt County Mem. Hosp., 572
F.3d 176, 180 (4th Cir. 2009) (internal quotations omitted).
In considering a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider
documents attached to the complaint "so long as they are integral to the complaint and
authentic." Id. Although the Court must construe the complaint of a pro se plaintiff liberally,
such a complaint must still allege "facts sufficient to state all the elements of her claim" in order
to survive a motion to dismiss. Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th
Cir. 2003). Here, even when construed liberally, plaintiffs complaint fai ls to allege facts
sufficient to support any plausible legal claim.
A. Hostile Work Environment
To prove a hostile work environment claim, plaintiff must show " (l) unwelcome conduct;
(2) that is based on the plaintiffs [protected status]; (3) which is sufficiently severe or pervasive
to alter her conditions of employment and to create an abusive work environment; and (4) which
is imputable to the employer." Strothers v. City of Laurel, 895 F.3d 317 (4th Cir. 2018) (citing
Okoli v. City of Baltimore, 648 F.3d 216, 220 (4th Cir. 2011)). Defendant argues that plaintiff fails
to meet prongs two and three of the test for hostile work environment. Even assuming that plaintiff
has shown that defendant's conduct was based on plaintiff's protected status, she fails to show that
defendant's conduct is sufficiently severe or pervasive to alter her conditions of employment and
create a hostile work environment.
To show that defendant' s conduct was sufficiently severe or pervasive, the "objective
severity of harassment should be judged from the perspective of a reasonable person in the
plaintiffs position, considering 'all the circumstances."' Oncale v. Sundowner Offshore Servs.,
Inc,, 523 U.S. 75 , 81 (1998) (internal quotations omitted); Jennings v. Univ. of N. Carolina, 482
F.3d 686, 696 (4th Cir. 2007). These circumstances include "the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's work performance." Harris
v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993) ; Fox v. Gen. Motors Corp., 247 F.3d 169, 178 (4th
Cir. 2001 ). "Title VII does not provide a remedy for every instance of verbal and physical
harassment in the workplace," and it does not guarantee a federal employee a workplace of
refinement and sophistication. Lissau v. Southern Food Serv., Inc. , 159 F.3d 177, 183 (4th Cir
1998); Hartsell v. Duplex Prods. Inc., 123 F.3d 766, 773 (4th Cir. 1997). "[N]ormally petty slights,
minor annoyances, and simple lack of good manners" are not sufficient to support a hostile work
environment claim. Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53, 68 (2006).
In her complaint, plaintiff alleges that Ms . Gregory rolled her eyes at her, and plaintiff also
seems to imply that Ms. Gregory was overly critical of plaintiff's work. However, this behavior is
not sufficiently severe or pervasive to constitute a hostile work environment claim. See Threat v.
Potter, No. 3 :05-CV-116-DCK, 2008 U.S. Dist. LEXIS 51153, at *7, * 10 (W.D.N.C. July 2, 2008)
(finding that plaintiffs allegation that she was subjected eye rolling, micromanagement, and
criticism by her supervisor did "not meet the standard articulated by the Supreme Court for a
hostile work environment and [were] not likely to be found hostile or pervasive by a reasonable
person"); Buchhagen v. ICG Int '! Inc., 545 Fed. App'x 217,219 (4th Cir. 2013) (per curiam)
(finding that allegations of a supervisor mockingly yelling at plaintiff in a meeting, repeatedly
harping on a mistake made by plaintiff, and unfairly scrutinizing and criticizing plaintiffs failure
to follow directives fell "far short or being severe or pervasive enough to establish an abusive
Plaintiff further alleges that Mr. Whitner avoided her and called her " it," apparently instead
of using her preferred pronoun. This behavior is also not severe or pervasive enough to support a
hostile work environment claim. See Daugherty v. Food Lion, LLC, No. 1:04CV278, 2006 U.S.
Dist. LEXIS 43042, at *43-44 (W.D.N.C. June 13 , 2006) (finding that plaintiffs allegations that
his supervisor would ignore him and "refuse to make eye contact with him" behavior that was
unfriendly and rude but insufficient to sustain a hostile work environment claim); Milo v.
Cybercore Techs., LLC, No. RDB-18-3145 , 20 19 U.S. Dist. LEXIS 160386, at *17 (D. Md. Sept.
17, 2019) (dismissing plaintiffs trans gender-based harassment claim because, although plaintiff
was offended by references to "him" or "he" rather than "her" or "she," the alleged incidents were
sporadic and none were extremely serious); Tims v. Carolina Healthcare Sys., 983 F. Supp. 2d
675, 681 (W.D.N.C. 2013) (granting motion to dismiss where plaintiff alleged her supervisor
referred to her as "you people" and "y'all blacks").
Plaintiff fails to allege sufficient facts to constitute a hostile work environment claim. Title
VII is not meant to become a general civility code. Perkins v. Int 'l Paper Co., 936 F.3d 196, 208
(4th Cir. 2019) (citations omitted). While plaintiff alleges conduct that may be unprofessional or
rude, rude treatment, even by a supervisor, is not enough to sustain a hostile work environment
claim. See Baqir v. Principi, 434 F.3d 733, 747 (4th Cir. 2006). Plaintiffs allegations in no way
rise to behavior that was "hostile or deeply repugnant." See Hopkins v. Baltimore Gas & Elec. Co.,
77 F.3d 745, 753 ( 4th Cir. 1996) (finding that a working environment must be "hostile or deeply
repugnant," not '"merely unpleasant," to be actionable).
B. Constructive Discharge
In addition to bringing a claim for hostile work environment, plaintiff alleges that she was
constructively discharged. Constructive discharge can amount to adverse employment action. See
James v. Boaz-Allen & Hamilton Inc., 368 F.3d 371, 378 (4th Cir. 2004). Constructive discharge
occurs when "an employer deliberately makes the working conditions intolerable in an effort to
induce the employee to quit." Honor v. Boaz-Allen & Hamilton, Inc., 383 F.3d 180, 186-87 (4th
Cir. 2004) (quoting Martin v. Cavalier Hotel Corp., 548 F.3d 1343, 1353-54 (4th Cir. 1995)).
"Intolerability of working conditions, as the circuits uniformly recognize, is assessed by the
objective standard of whether a 'reasonable person' in the employee's position would have felt
compelled to resign." Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985) (internal
citation omitted), cert. denied, 475 U.S. 1082 (1986). "[D]issatisfaction with work assignments, a
feeling of being unfairly criticized, or difficult or unpleasant working conditions are not so
intolerable as to compel a reasonable person to resign." Carter v. Ball, 33 F.3d 450, 459 (4th Cir.
Here, plaintiff fails to plausibly allege facts sufiicient to meet either prong of the test for
constructive discharge. Although plaintiff allegedly complained to Mr. Strudl, who "took no
action," plaintiff admits that Mr. Strudl expressed a willingness to "take care" of the situation and
started with inviting plaintiff to write a statement. Because plaintiffs employer showed a
willingness to remedy plaintiffs complaints, even though Mr. Strudl was not moving fast enough
for plaintiffs approval, plaintiff cannot show that her employer was deliberately inducing her to
quit. See Revak v. Miller, No 7:18-CV-206-FL, 2020 U.S. Dist. LEXIS 99048, at *31-32
(E.D.N.C. June 5, 2020) (holding that plaintiff failed to establish the deliberateness element where
plaintiff quit even though plaintiff's supervisor agreed, in response to learning about her complaint
of harassment, to fix the situation, if given the opportunity and time to do so).
As to intolerability, plaintiffis unable to show that her working conditions were intolerable
because, as previously discussed, she is unable to show that those conditions were sufficiently
severe or pervasive to create a hostile work environment. See Perkins, 936 F.3d at 212 (holding
that the intolerability element of a constructive discharge claim requires '·a greater severity or
pervasiveness of harassment than the minimum required to prove a hostile work environment").
Plaintiff's working conditions were not intolerable such that she could not have stayed on the job
while seeking relief. See Pennsylvania State Police v. Suders, 542 U.S. 129, 147 (2004) ("[U]nless
conditions are beyond 'ordinary' discrimination, a complaining employee is expected to remain
on the job while seeking redress."). Thus, plaintiff's allegations regarding Mr. Whitner and Ms.
Gregory are insufficient to state a plausible claim of constructive discharge.
Finally, plaintiff asserts a Title VII retaliation claim. To state a claim for retaliation, she
must show that: (1) she engaged in protected activity; (2) defendant took employment action
against her that a reasonable employee would find materially adverse, and (3) defendant took the
materially adverse employment action because of the protected activity. Foster v. Univ. of
Maryland-Eastern Shore, 787 F3d 243, 250 (4th Cir. 2015). A retaliatory adverse action is one
that "well might have dissuaded a reasonable worker from making or supporting a charge of
discrimination. " Burlington N., 548 U .S. at 68 (internal quotations omitted).
The only relevant allegation plaintiff makes to support her claim of retaliation is that she
was constructively discharged. However, as previously discussed, plaintiff does not sufficiently
allege a constructive discharge claim. Therefore, plaintiff cannot base a retaliation claim on an
allegation that defendant constructively discharged her. Furthermore, even if plaintiff did
experience negative treatment after her September 23, 2019 complaint to Mr. Strudl, such
treatment did not dissuade her from making several subsequent complaints to Walmart' s internal
ethics hotline and the EEOC. This shows that defendant's alleged retaliation was not sufficiently
adverse to maintain a viable retaliation claim under Title VII. See Ortiz v. Big Bear Events, LLC,
No. 3:12-CV-341-RJC-DCK, 2012 U.S. Dist. LEXIS 184958, at* 10-11 (W.D.N.C. Nov. 6, 2012)
(dismissing a claim upon finding that the alleged adverse employment actions did " not appear
likely to dissuade a reasonable worker from making or supporting a charge of discrimination")
(citing Burlington N. , 548 U .S. at 68)). Therefore, plaintiff also fails to state a claim for retaliation.
Accordingly, for the foregoing reasons, plaintiffs motion for extension of time to file [DE
17] is GRANTED. Defendant' s motion to dismiss for failure to state a claim [DE 11] is
GRANTED, and its motion to stay discovery [DE 19] is DENIED as MOOT.
SO ORDERED, this
_1 day of April , 2021.
UNITED STATES DISTRICT JUDGE
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