HARVEY v. BURLINGTON COAT FACTORY
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MEMORANDUM OPINION AND ORDER signed by JUDGE LORETTA C. BIGGS on 05/12/2015 as set out herein. ORDERED that Defendant's Motion to Dismiss Plaintiff's Failure to Accommodate Claim (ECF No. 17 ) is GRANTED and that Def endant's Motion to File an Amended Answer (ECF No. 24 ) is GRANTED. Plaintiff's failure-to-accommodate claim is DISMISSED WITH PREJUDICE. FURTHER that Defendant's Motion to Dismiss Plaintiff's Complaint (ECF No. 11 ) is DENIED AS MOOT.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CASSANDRA HARVEY,
Plaintiff,
v.
BURLINGTON COAT FACTORY,
Defendant.
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1:13-cv-1107
MEMORANDUM OPINION AND ORDER
LORETTA C. BIGGS, District Judge.
Plaintiff Cassandra Harvey (“Ms. Harvey”) brings this action, pro se, against her
former employer, Burlington Coat Factory of North Carolina, LLC (“Burlington Coat
Factory”), alleging violations of the Americans with Disabilities Act of 1990 (“ADA”), 42
U.S.C. §§ 12101 et seq. (2013). Before the Court are Defendant’s Motion to Dismiss
Plaintiff’s Failure to Accommodate Claim (ECF No. 17) and Defendant’s Motion to File an
Amended Answer (ECF No. 24). For the reasons below, the Court will grant both
motions. 1
I.
BACKGROUND
The facts as alleged by Ms. Harvey are as follows: Ms. Harvey worked part-time at
Burlington Coat Factory for approximately six months, from November 2012 to May 2013.
An additional motion will be denied as moot. Burlington Coat Factory filed two motions
to dismiss in this case: one in response to the original complaint (ECF No. 11) and one in
response to the amended complaint (ECF No. 17). Burlington Coat Factory has informed
the Clerk’s Office that the first motion to dismiss is moot in light of Ms. Harvey’s amended
complaint. Accordingly, the Court will deny that motion as moot.
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Her responsibilities included walking around the store, cleaning, and placing products where
they belonged. These tasks required her to walk, stand, bend, and reach, which caused her
to suffer severe pain in her back and abdomen. 2 Beginning in January 2013, Burlington Coat
Factory drastically reduced Ms. Harvey’s hours. In March 2013, Ms. Harvey requested a
position that required less walking and standing, as an accommodation for the pain in her
back and abdomen. Although she was transferred to a different department, her
responsibilities remained the same, and her pain worsened. This caused her to miss several
days of work. In May 2013, Ms. Harvey’s manager informed her she was no longer
employed, due to her inability to work.
Ms. Harvey filed a charge of discrimination with the Equal Employment Opportunity
Commission (“EEOC”) in July 2013. (ECF No. 20-2.) The charge alleges that Ms. Harvey
suffered from “numerous medical conditions,” that she and other employees with medical
conditions were given reduced hours, and that she was terminated for attendance issues.
(Id.) In September 2013, the EEOC issued a final agency decision of no discrimination and
informed Ms. Harvey of her right to sue in federal court. (ECF No. 2, at 5.) Ms. Harvey
timely commenced suit in this Court in December 2013. Liberally construed, 3 her amended
Ms. Harvey has provided a list of health issues from her online patient profile with Duke
Medicine. (ECF No. 21-1, at 14.) This list reveals that she suffered from abdominal pain at
least two months before she began working at Burlington Coat Factory. Additional painrelated conditions appeared on her chart during her employment, including chronic pain
syndrome, low back pain, abdominal pain, and central pain syndrome. Following her
termination, fibromyalgia also appeared on her chart.
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A court must liberally construe pleadings that are filed pro se, holding them to “less
stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S.
519, 520 (1972) (per curiam); see Butler v. Cooper, 554 F.2d 645, 647 (4th Cir. 1977).
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complaint appears to allege disability discrimination based on reduced hours, actual or
constructive discharge, and failure to accommodate. Of these possible claims, Burlington
Coat Factory moves to dismiss only the failure-to-accommodate claim. It further moves to
amend its answer to add an affirmative defense.
II.
ANALYSIS
A. Motion to Dismiss Failure-to-Accommodate Claim
Burlington Coat Factory seeks to dismiss Ms. Harvey’s failure-to-accommodate claim
for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil
Procedure, arguing that Ms. Harvey failed to exhaust her administrative remedies on that
claim. (ECF No. 20, at 4–6.) Although the Clerk of Court informed Ms. Harvey of her right
to respond (ECF No. 19), Ms. Harvey did not respond to this motion. 4
Subject matter jurisdiction relates to the court’s power to hear a case. Holloway v.
Pagan River Dockside Seafood, Inc., 669 F.3d 448, 453 (4th Cir. 2012) (citing Arbaugh v.
Y & H Corp., 546 U.S. 500, 514 (2006)). A motion under Rule 12(b)(1), which governs
dismissal for lack of subject matter jurisdiction, raises the question of “whether [the plaintiff]
has a right to be in the district court at all and whether the court has the power to hear and
dispose of [the] claim.” Id. at 452. The burden of establishing subject matter jurisdiction is
Five days after Burlington Coat Factory filed its second motion to dismiss, Ms. Harvey
responded to the first motion to dismiss. (ECF No. 21.) It is unclear whether Ms. Harvey
was aware she was responding to the first motion or if she intended to respond to the
second motion. Nevertheless, no facts or evidence demonstrating administrative exhaustion
appear in her response in opposition. Ms. Harvey mentions administrative exhaustion only
in asserting that “Plaintiff Failure to Accommodate Claim must not be dismissed in this
Matter” and “Plaintiff has been able to exhaust and provided administrative remedies in her
complaint against the Defendant.” (Id. at 3.)
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on the plaintiff. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). When
evaluating a Rule 12(b)(1) motion to dismiss, the court may consider evidence outside the
pleadings and should grant the motion “only if the material jurisdictional facts are not in
dispute and the moving party is entitled to prevail as a matter of law.” Id. (quoting
Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.
1991)). Once the court determines it lacks subject matter jurisdiction over a claim, it must
dismiss that claim. See Jones v. Calvert Grp., Ltd., 551 F.3d 297, 301 (4th Cir. 2009).
Before a plaintiff can file a claim under the ADA in federal court, she must first
exhaust administrative remedies by filing a charge with the EEOC. Sydnor v. Fairfax Cnty.,
Va., 681 F.3d 591, 593 (4th Cir. 2012). Failure to exhaust administrative remedies deprives
the court of subject matter jurisdiction. See Jones, 551 F.3d at 300. The exhaustion
requirement gives the employer notice of the alleged violations and an opportunity to
address the situation prior to litigation. Sydnor, 681 F.3d at 593. It also “respects
Congress’s intent ‘to use administrative conciliation as the primary means of handling claims,
thereby encouraging quicker, less formal, and less expensive resolution of disputes.’” Id.
(quoting Chris v. Tenet, 221 F.3d 648, 653 (4th Cir. 2000)). Consistent with these goals, the
“scope of the plaintiff’s right to file a federal lawsuit is determined by the charge’s contents.”
Id. (quoting Jones, 551 F.3d at 300). Thus, when the central factual allegations of a claim in
the lawsuit involve “different time frames, actors, and discriminatory conduct” than those
referenced in the EEOC charge, the plaintiff has failed to exhaust administrative remedies.
Id. However, as long as the plaintiff’s claims “are reasonably related to her EEOC charge
and can be expected to follow from a reasonable administrative investigation,” she may
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advance those claims in federal court. Id. at 594 (quoting Smith v. First Union Nat’l Bank,
202 F.3d 234, 247 (4th Cir. 2000)). “[T]o the extent consistent with permissible rules of
interpretation,” the court should construe an EEOC charge “to protect the employee’s
rights and statutory remedies.” Id. (quoting Fed. Express Corp. v. Holowecki, 552 U.S. 389,
406 (2008)).
Here, the Court concludes that even with the benefit of liberal construction of the
Amended Complaint, Ms. Harvey has failed to exhaust her administrative remedies on her
failure-to-accommodate claim. Nowhere in the EEOC charge does Ms. Harvey describe her
medical conditions or mention that she required, requested, or was refused accommodation.
See Mayers v. Wash. Adventist Hosp, 131 F. Supp. 2d 743, 747 (D. Md. 2001) (finding “no
factual predicate in the EEOC charge to support a reasonable accommodation claim” when
the charge was “completely devoid of any reference to [the plaintiff’s] alleged request for
accommodation”), aff’d, 22 F. App’x 158 (4th Cir. 2001). Rather, the EEOC charge focuses
solely on her reduced hours and termination, which are not reasonably related to the failureto-accommodate claim asserted in this lawsuit. See Johnson v. SecTek, Inc., No. ELH-133798, 2015 WL 502963, at *6 (D. Md. Feb. 4, 2015) (finding that a failure-to-accommodate
claim was not reasonably related to an EEOC charge of discriminatory discharge); Bennett v.
Kaiser Permanente, 931 F. Supp. 2d 697, 704 (D. Md. 2013) (finding that a reasonable
accommodation claim was not reasonably related to an EEOC charge of discriminatory
discipline and discharge). Further, Ms. Harvey’s reduced hours and termination involve
different managers and discriminatory conduct than her failure-to-accommodate claim. See
Jones v. Sumser Ret. Vill., 209 F.3d 851, 854 (6th Cir. 2000) (holding that an
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accommodation claim would not grow out of an investigation of the plaintiff’s termination
claim because the relevant facts are “far different”); Johnson, 2015 WL 502963, at *6
(finding no exhaustion partly because the plaintiff’s judicial claim may have involved
different actors and time frames than those referenced in the EEOC charge). First, although
the EEOC charge mentions two managers, Ms. Harvey’s response in opposition indicates
that a third manager was responsible for handling her accommodation request. (See ECF
No. 25, at 6–7, 9.) Second, the discriminatory conduct necessary to support her failure-toaccommodate claim is and would be different from the conduct that supports her reduced
hours and termination claim. See Green v. Nat’l Steel Corp., 197 F.3d 894, 898 (7th Cir.
1999) (recognizing that “a failure to accommodate claim is separate and distinct from a claim
of discriminatory treatment under the ADA”). Because the EEOC charge is devoid of any
express reference to or factual predicate for a failure-to-accommodate claim, a reasonable
investigation of Ms. Harvey’s EEOC charge would not likely reveal this claim or provide
Burlington Coat Factory with “ample notice of the allegations against it.” See Sydnor, 681
F.3d at 595.
Ms. Harvey’s failure to exhaust her administrative remedies regarding her failure-toaccommodate claim deprives the Court of subject matter jurisdiction over that claim. Ms.
Harvey has not presented facts or evidence to support a contrary conclusion. Since the
material jurisdictional facts are not in dispute, Burlington Coat Factory is entitled to prevail
as a matter of law on its Rule 12(b)(1) motion to dismiss the failure-to-accommodate claim
for lack of subject matter jurisdiction.
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B. Motion to Amend Answer
Burlington Coat Factory seeks to amend its Answer to add an affirmative defense:
that the exclusivity provision of North Carolina’s Workers’ Compensation Act bars any
attempt by Ms. Harvey to recover workers’ compensation through this lawsuit. (See ECF
No. 24, at 1.) In opposing this motion, Ms. Harvey asserts that her claims should not be
barred but provides no supporting argument or explanation. (See ECF No. 25, at 1.)
Rather, her response in opposition reiterates and expands on the facts and argues the merits
of her claims.
Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, a party may amend a
pleading by obtaining consent of the opposing party or leave of the court. Although the
court has discretion to grant or deny leave to amend a pleading, Foman v. Davis, 371 U.S.
178, 182 (1962), “[t]he court should freely give leave when justice so requires,” Fed. R. Civ.
P. 15(a)(2). “[L]eave to amend a pleading should be denied only when the amendment
would be prejudicial to the opposing party, there has been bad faith on the part of the
moving party, or the amendment would be futile.” Johnson v. Oroweat Foods Co., 785
F.2d 503, 509 (4th Cir. 1986) (citing Foman, 371 U.S. at 182). Undue delay is also a relevant
factor, though delay alone is not a sufficient reason to deny leave. Id.
None of the circumstances that would support a denial of leave to amend is present
with respect to Burlington Coat Factory’s motion to amend its answer. Although the
Amended Complaint does not explicitly assert a claim for workers’ compensation, it alleges
that Ms. Harvey’s medical conditions arose during her employment and that these conditions
prevented her from working. (ECF No. 16, ¶¶ 3, 18–19.) These facts, which Ms. Harvey
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reiterates throughout her response in opposition (see ECF No. 25, at 3, 6, 8–9, 11) are
relevant to a workers’ compensation claim. See Frost v. Salter Path Fire & Rescue, 639
S.E.2d 429, 432 (N.C. 2007) (“[T]he injury must spring from the employment in order to be
compensable under the Act.”). Because the facts indicate some basis for Burlington Coat
Factory to anticipate a potential workers’ compensation claim as part of this lawsuit, its
proposed amendment would not be futile. See Johnson, 785 F.2d at 510 (stating that a court
should deny leave on the ground of futility only “when the proposed amendment is clearly
insufficient or frivolous on its face”). Further, as Burlington Coat Factory points out, this
case is in the early stages of litigation. Discovery has not yet begun, and the Court has not
set a date for trial. Allowing Burlington Coat Factory to amend its answer would not result
in undue delay or prejudice to Ms. Harvey. Finally, no bad faith is apparent in Burlington
Coat Factory’s request to amend its answer. Because the Court finds no reason to deny the
motion to amend—and Ms. Harvey has not presented any reasons for the Court to do so—
the Court will grant Defendant’s Motion to File an Amended Answer.
For the reasons above, the Court enters the following:
ORDER
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss Plaintiff’s
Failure to Accommodate Claim (ECF No. 17) is GRANTED and that Defendant’s Motion
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to File an Amended Answer (ECF No. 24) is GRANTED. Plaintiff’s failure-toaccommodate claim is DISMISSED WITH PREJUDICE. 5
IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss Plaintiff’s
Complaint (ECF No. 11) is DENIED AS MOOT.
This, the 12th day of May, 2015.
/s/ Loretta C. Biggs
United States District Judge
An EEOC charge must generally be filed within 180 days of the allegedly discriminatory
conduct. 42 U.S.C. § 2000e-5(e)(1); see § 12117(a) (stating that the procedures set forth in
§ 2000e-5 apply to allegations of disability discrimination). Although amendments relate
back to the date of the original EEOC charge, any amendments alleging additional acts of
discrimination must “relate[] to or grow[] out of the subject matter of the original charge.”
29 C.F.R. § 1601.12(b) (2015). The time has expired for Ms. Harvey to file a new EEOC
charge alleging her failure-to-accommodate claim, which does not relate to or grow out of
her claims for reduced hours and termination. Ms. Harvey’s failure-to-accommodate claim is
therefore time-barred and can no longer be exhausted. Accordingly, the Court dismisses this
claim with prejudice.
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