CHAMBERS v. WALMART STORES, INC.
Filing
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MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 07/22/2015; that Defendants' Partial Motion to Dismiss [Doc. # 17 ] be granted in part to the extent that all claims against D efendants Calvin Martin, Julie Begines, and Kimberly Murawski be dismissed, and that the Motion to Dismiss be otherwise denied, without prejudice to further consideration of these issues on dispositive motions after a period of discovery. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MARCUS L. CHAMBERS,
Plaintiff,
v.
WALMART STORES, INC., CALVIN MARTIN,
JULIE BEGINES, KIMBERLY MURAWSKI,
Defendants.
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1:14CV996
MEMORANDUM OPINION AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on a Partial Motion to Dismiss filed by Defendants
Walmart Stores, Inc. (“Walmart”), Calvin Martin, Julie C. Begines, and Kimberly Murawski.
[Doc. #17]. Plaintiff Marcus L. Chambers, proceeding pro se, has responded in opposition to
the motion [Doc. #23]. For the reasons set out below, the Court recommends that Defendants’
Partial Motion to Dismiss be granted in part and denied in part, as set out below.
I.
FACTS, CLAIMS, AND PROCEDURAL HISTORY
Plaintiff filed his Complaint alleging violations of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e, et seq., against his former employer, Walmart, and three individual
managers. The managers now move under Federal Rule of Civil Procedure 12(b)(6) to dismiss
all claims against them because individual liability as an “employer” does not exist under Title
VII. Defendants also move to dismiss Plaintiff’s claim of a racially hostile work environment,
arguing that Plaintiff has not pled sufficient facts to state a claim upon which relief may be
granted.
Plaintiff alleges that while working at Walmart he was “sexually harassed, verbally
harassed, discriminated against training and promotion, retaliation, wrongful termination, two
mental illnesses while working for Walmart with lack of accommodation, back pay and pain and
suffering.” (Compl. [Doc. #3], at 3.)
He alleges that Assistant Store Manager Julie Begines sexually harassed him on several
occasions. (Id.) Plaintiff accuses Defendant Begines of repeated unwanted sexual flirtation and
advances, massaging Plaintiff’s arm, using her hips to bump his hips and other bodily areas,
blocking his movement at times, and touching his hand when it was in his pocket. (Id.)
Plaintiff alleges that Assistant Store Manager Kimberly Murawski “verbally harassed
[him] on several occasions using racial slurs, negative stereotyping, verbal kidding, teasing,
joking, intimidating acts of bullying, continuously showed hostility towards [him], disrespected
[him], as well as degraded [him].” (Compl. at 3.) Plaintiff further alleges that during a staff
meeting Defendant Murawski said (referring to herself), “look at me I’m all ghetto,” and also
once “used the word ghetto to describe the appearance of the store.” (Id.) Plaintiff says that
once Defendant Murawski yelled at him and warned him not to walk away from her when she
was talking to him. (Id.) Defendant Murawski told Plaintiff one time that she did not trust
“associate Donnie and that he looks like the type to steal,” according to Plaintiff. (Id.) Plaintiff
further alleges that on one occasion when they were touring the freezer, Defendant Murawski
saw Plaintiff patting his head and remarked, “I’m glad I’m white and don’t have to wear weave
cause all the black girls I’ve worked with were always beating their heads and I’m glad I don’t
have that problem.” (Id.)
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Plaintiff alleges that Store Manager Calvin Martin transferred him to day shift on
November 10, 2013, for training but that during the two and half months he was on day shift
he “didn’t receive any training instead [he] was placed in the freezer and backroom.” (Compl.
at 4.) Plaintiff also claims that Defendant Martin “saw to it that [he] was written up three times
back to back,” “admitted he replaced [Plaintiff] on third,” and stated that he thought Plaintiff
was quitting. (Id.) Plaintiff alleges that on April 9, 2014, he was “wrongfully terminated with
no reason given by [Defendant Martin] and reinstated two days later” by one of Defendant
Martin’s superiors. (Id.) Finally, Plaintiff says that he was “repeatedly turned down by
[Defendant Martin] for scheduling accommodation.” (Id.)
II.
DISCUSSION
1.
Standard
A plaintiff fails to state a claim on which relief may be granted under Fed. R. Civ. P.
12(b)(6) when the complaint does not “contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Iqbal, 556 U.S. at 678.
2.
Individual Defendants
The individual Defendants, Martin, Begines, and Murawski, move to dismiss all claims
against them because there is no individual liability under Title VII. Title VII prohibits
discrimination by an “employer.” 42 U.S.C. § 2000e-2. The definition of “employer” does not
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include supervisory employees. See 42 U.S.C. § 2000e(b); Lissau v. Southern Food Serv., Inc.,
159 F.3d 177, 181 (4th Cir. 1998) (“We . . . reiterate that supervisors are not liable in their
individual capacities for Title VII violations.”); Cobb v. Dep’t of Veterans Affairs, 1:04CV872,
2006 WL 156876 (M.D.N.C. Jan. 20, 2006) (dismissing for failure to state a claim the plaintiff’s
Title VII claims against individual employees).
The Court notes that Plaintiff has alleged in his Complaint a “lack of accommodation”
for two mental illnesses. (Compl. at 3.) To the extent that this claim is construed as a claim
under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132, et seq., the ADA defines
“employer” in the same manner as Title VII; therefore, the individual defendants are not proper
defendants under the ADA. See Baird ex rel. Baird v. Rose, 192 F.3d 462, 472 (4th Cir. 1999)
(noting that the reasoning of Lissau is applicable to the ADA as to who qualifies as an
employer.).
Plaintiff argues in his Response that the individual defendants should be liable under the
definition of employer set out in the Fair Labor Standards Act (FLSA). (Response [Doc. #23],
at 4.) However, Plaintiff has not alleged a violation of the Fair Labor Standards Act, and the
provisions of the FLSA would not create individual liability under Title VII or the ADA.
Therefore, the individual defendants should be dismissed.
3.
Racially Hostile Work Environment
Defendants also move to dismiss Plaintiff’s claim of racially hostile work environment
because Plaintiff’s allegations fall short of the Twombly/Iqbal plausibility standard. The
essential elements of a claim of racially hostile work environment are: (1) the plaintiff
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experienced unwelcome harassment; (2) the harassment was based on his race; (3) the
harassment was sufficiently severe or pervasive to alter the conditions of employment and create
an abusive atmosphere; and (4) there is some basis for imposing liability on the employer. See
Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015); Bass v. E.I. DuPont
de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003). Defendants argue that Plaintiff’s
allegations fail to establish the third element, that the harassment was sufficiently severe.
The Fourth Circuit has recently provided additional guidance with respect to this issue:
Element three of a hostile work environment claim requires a showing that “the
environment would reasonably be perceived, and is perceived, as hostile or
abusive”; the plaintiff may, but is not required to, establish that the environment
is “psychologically injurious.” See Harris, 510 U.S. at 22, 114 S.Ct. 367. Whether
the environment is objectively hostile or abusive is “judged from the perspective
of a reasonable person in the plaintiff's position.” Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). That
determination is made “by looking at all the circumstances,” which “may 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, 510 U.S.
at 23, 114 S.Ct. 367. It “is not, and by its nature cannot be, a mathematically
precise test.” Id. at 22, 114 S.Ct. 367.
To be sure, viable hostile work environment claims often involve repeated
conduct. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115–17, 122
S.Ct. 2061, 153 L.Ed.2d 106 (2002). That is because, “in direct contrast to
discrete acts, a single act of harassment may not be actionable on its own.” Id. at
115, 122 S.Ct. 2061. For example, “ ‘mere utterance of an ... epithet which
engenders offensive feelings in an employee’ does not sufficiently affect the
conditions of employment to implicate Title VII.” Harris, 510 U.S. at 21, 114
S.Ct. 367 (alteration in original) (quoting Meritor, 477 U.S. at 67, 106 S.Ct. 2399).
The same goes for “simple teasing [and] offhand comments.” See Faragher v.
City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).
Importantly, however, an “isolated incident[ ]” of harassment can “amount to
discriminatory changes in the terms and conditions of employment,” if that
incident is “extremely serious.” Id. (internal quotation marks omitted).
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In measuring the severity of harassing conduct, the status of the harasser may be
a significant factor—e.g., “a supervisor’s use of [a racial epithet] impacts the work
environment far more severely than use by co-equals.” Rodgers v. W.–S. Life Ins.
Co., 12 F.3d 668, 675 (7th Cir.1993). Simply put, “a supervisor’s power and
authority invests his or her harassing conduct with a particular threatening
character.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 763, 118 S.Ct. 2257,
141 L.Ed.2d 633 (1998).
Boyer-Liberto, 786 F.3d at 277-78.
In the present case, Plaintiff complains that Assistant Store Manager Kimberly Murawski
“verbally harassed [him] on several occasions using racial slurs, negative stereotyping, verbal
kidding, teasing, joking, intimidating acts of bullying, continuously showed hostility towards
[him], disrespected [him], as well as degraded [him].” (Compl. at 3.) Plaintiff describes some
of those incidents in the Complaint, as set out above. In addition, in his Response to
Defendant’s Motion to Dismiss, Plaintiff also submitted a verified “Statement of Declaration”
further describing the alleged racial slurs. Specifically, Plaintiff alleges that Manager Murawski’s
verbal harassment included “racial slurs,” including “the use of the word ‘Blackie’ used to
discribe [sic] African American people” (Resp. [Doc. #23], at 3.) Plaintiff further contends that
Manager Murawski admitted to using the word “ghetto” as alleged by Plaintiff, and Plaintiff
states that “I had witnesses to all instances but the ‘Blackie’ situations.” (Id. at 4.)
In Reply, Defendant correctly notes that pleadings may not be amended in briefing.
However, Plaintiff here submitted the Statement of Declaration, verified under penalty of
perjury, adding the specific contentions to further explain his general allegations of “racial slurs”
used by Manager Murawski. It would be an inefficient use of the Court’s and the parties’
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resources to proceed without considering that additional information, given that Plaintiff could
move to amend to add that information to the Complaint in any event.1
Therefore, the Court will accept the contentions in the Statement of Declaration as an
amendment to the Complaint to the extent Plaintiff sets out more specifically the racial slurs
alleged in the Complaint. As such, Plaintiff’s allegations reflect that Assistant Store Manager
Murawski used the word “ghetto” as a descriptor on multiple occasions in Plaintiff’s presence
and used the word “Blackie” to describe African Americans on multiple occasions in Plaintiff’s
presence. Manager Murawski’s alleged use of the word “Blackie,” in particular, occurred when
Plaintiff was alone with Manager Murawski, based on Plaintiff’s contention that there were no
other witnesses to these interactions. Taking these contentions as true, the Court cannot say that
Plaintiff could not plausibly state a claim based on a racially hostile work environment. Cf.
Boyer-Liberto, 786 F.3d at 280 (“As we and several of our sister courts of appeals have
recognized, perhaps no single act can more quickly alter the conditions of employment and
create an abusive working environment than the use of an unambiguously racial epithet . . . by
a supervisor in the presence of his subordinates.” (internal quotations omitted)).
Moreover, to the extent there are issues regarding the nature and frequency of the alleged
harassment and the particular statements alleged, those matters are best addressed on an
evidentiary record at summary judgment.2 Accordingly, Defendants’ Motion to Dismiss
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Indeed, the submission, which was mailed within the extended time period allowed by the Court to
respond to the Motion to Dismiss, could arguably be construed as an Amendment as of right under Federal Rule
of Civil Procedure 15(a)(1)(B). The Court need not resolve that issue, since the limited amendment noted above
would be allowed under Rule 15(a)(2).
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In this regard, the Court notes that Defendants have filed only a Partial Motion to Dismiss, and
Plaintiff’s remaining claims are proceeding to discovery in any event. In the circumstances, it appears that this
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Plaintiff’s claims of racially hostile work environment should be denied, without prejudice to
further consideration of these issues on the record on dispositive motions after a period for
discovery.
III.
CONCLUSION
IT IS THEREFORE RECOMMENDED that Defendants’ Partial Motion to Dismiss
[Doc. #17] be granted in part to the extent that all claims against Defendants Calvin Martin, Julie
Begines, and Kimberly Murawski be dismissed, and that the Motion to Dismiss be otherwise
denied, without prejudice to further consideration of these issues on dispositive motions after
a period of discovery.
This, the 22nd day of July, 2015.
/s/ Joi Elizabeth Peake
United States Magistrate Judge
issue is best addressed at summary judgment, rather than requiring further amendment of the pleadings and
litigation at the pleadings stage.
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