Miller v. Wal-Mart

Filing 33

ORDER accepting 29 Memorandum and Recommendations; granting in part and denying in part 16 Motion to Dismiss for Lack of Jurisdiction and for Failure to State a Claim. IT IS FURTHER ORDERED that The Clerk of Court shall send the pro se Plaintiff a Notice of Availability of the Settlement Assistance Program. Signed by District Judge Martin Reidinger on 01/10/2014. (Pro se litigant served by US Mail.)(thh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:13-cv-00046-MR-DLH

MARK KEVIN MILLER,

)
)
Plaintiff,
)
)
vs.
)
)
)
WAL-MART,
)
)
Defendant.
)
__________________________ )

MEMORANDUM OF
DECISION AND ORDER

THIS MATTER is before the Court on the Defendant’s Motion to
Dismiss

[Doc.

16];

the

Magistrate

Judge’s

Memorandum

and

Recommendation [Doc. 29] regarding the disposition of said motion; the
pro se Plaintiff’s Response, which the Court construes as Objections to the
Memorandum and Recommendation [Doc. 31]; and the Defendant’s
Response to Plaintiff’s Objections to the Magistrate Judge’s Memorandum
and Recommendation [Doc. 32].

I.

PROCEDURAL BACKGROUND
On February 22, 2013, the Plaintiff, proceeding pro se, brought this

action against his former employer1, alleging six causes of action under
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e,
et seq. (“Title VII”). [Doc. 1]. Specifically, the Plaintiff asserted claims for:
(1) “Gender Stereotypes & Denied Equal Work;” (2) failure to promote; (3)
racial discrimination; (4) harassment; (5) retaliation; and (6) “termination of
employment.” [Id.]. The Complaint also asserts that Plaintiff's claims arise
from “race” and “color” discrimination. [Id. at 3].
On April 2, 2013, the Defendant moved to dismiss the Complaint
pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil
Procedure. [Doc. 16]. The Plaintiff filed a timely Response [Doc. 19],
which he subsequently supplemented [Doc. 20].
Pursuant to 28 U.S.C. § 636(b) and the Standing Orders of
Designation of this Court, the Honorable Dennis L. Howell, United States
Magistrate Judge, was designated to consider the Defendant’s Motion to
Dismiss and to submit a recommendation for its disposition. On November
8,

2013,

the

Magistrate

Judge

1

issued

a

Memorandum

and

The Plaintiff named “Wal-Mart” as the defendant in this action. The Defendant asserts
that the Plaintiff actually was employed by Wal-Mart Stores East, L.P., the operating
entity for Distribution Center #6070.
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Recommendation, which recommended that the Defendant’s motion to
dismiss be granted as to Counts One (gender discrimination), Two (failure
to promote) and Four (harassment), as well as to the extent the Complaint
asserts claims based on sex, age or color discrimination, on the grounds
that such claims are procedurally barred. [Doc. 29]. Judge Howell also
recommended that Defendant’s motion to dismiss be denied as to Counts
Three (discrimination) and Five (retaliation) to the extent that such claims
assert racial discrimination and retaliation claims. [Id.]. Judge Howell did
not make a specific recommendation regarding the disposition of Count Six
(“termination of employment”).
On November 15, 2013, the Plaintiff filed a pleading entitled “Plaintiff
Respond [sic] to Defendant Memorandum and Recommendation Document
29” [Doc. 31], which the Court construes as Objections to the Memorandum
and Recommendation.
Objections,

urging

The Defendant has responded to the Plaintiff’s

the

Court

to

adopt

the

Magistrate

Judge’s

Recommendation. [Doc. 32]. Notably, the Defendant in its Response does
not object to the Magistrate Judge’s recommendation that the Motion to
Dismiss be denied as to Counts Three and Five. Rather, the Defendant

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requests only that the Court “confirm” that Count Six should be dismissed
along with Counts One, Two, and Four. [Id.].
Having been fully briefed, this matter is now ripe for disposition.
II.

STANDARD OF REVIEW
The Federal Magistrate Act requires a district court to “make a de

novo determination of those portions of the report or specific proposed
findings or recommendations to which objection is made.” 28 U.S.C. §
636(b)(1). In order “to preserve for appeal an issue in a magistrate judge’s
report, a party must object to the finding or recommendation on that issue
with sufficient specificity so as reasonably to alert the district court of the
true ground for the objection.” United States v. Midgette, 478 F.3d 616,
622 (4th Cir. 2007). The Court is not required to review, under a de novo or
any other standard, the factual or legal conclusions of the magistrate judge
to which no objections have been raised. Thomas v. Arn, 474 U.S. 140,
150 (1985). Additionally, the Court need not conduct a de novo review
where a party makes only “general and conclusory objections that do not
direct the court to a specific error in the magistrate’s proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).

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III.

DISCUSSION
The Plaintiff has filed what purports to be objections to the Magistrate

Judge’s Memorandum and Recommendation.

The Plaintiff’s filing,

however, does not identify any specific error in the Magistrate Judge’s
proposed conclusions of law. In fact, the Plaintiff’s objections do not refer
to the Memorandum and Recommendation in any way.

Rather, the

Plaintiff simply restates the allegations made in his Complaint and the
arguments asserted in his Response to the Defendant’s Motion to Dismiss.
These type of objections do not warrant a de novo review of the Magistrate
Judge’s reasoning. Aldrich v. Bock, 327 F.Supp.2d 743, 747 (E.D. Mich.
2004) (“A general objection, or one that merely restates the arguments
previously presented is not sufficient to alert the court to alleged errors on
the part of the magistrate judge. An ‘objection’ that does nothing more than
state a disagreement with a magistrate’s suggested resolution, or simply
summarizes what has been presented before, is not an ‘objection’ as that
term is used in this context.”).
After a careful review of the Memorandum and Recommendation, the
Court concludes that the Magistrate Judge’s proposed conclusions of law
are correct and are consistent with current case law.

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Accordingly, the

Court hereby accepts the Magistrate Judge’s recommendation regarding
the dismissal of Counts One, Two, and Four, and these claims are hereby
dismissed.
The

Defendant

points

out

that

the

Memorandum

and

Recommendation does not make a specific recommendation regarding the
unlawful termination claim asserted in Count Six. The Defendant therefore
seeks to “confirm” dismissal of Count Six on the grounds that the Plaintiff’s
Complaint is devoid of factual allegations insufficient to establish a causal
link between the Plaintiff’s race and the Defendant’s decision to terminate
his employment. [Doc. 32 at 6].
While the Magistrate Judge did not make a specific recommendation
regarding the dismissal of Count Six, the body of the Magistrate Judge’s
Memorandum clearly addresses the claim. [See Doc. 29 at 13 (“Although
Defendant Wal-Mart may have disciplined and terminated Plaintiff for a
permissible reason that is unrelated to race, one can reasonably draw the
inference that he was terminated because of race from the factual
allegations alleged in the Complaint.”)].

Based on the well-reasoned

analysis of the Magistrate Judge, the Court will deny the Motion to Dismiss
as to Count Six.

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IV.

CONCLUSION
Having conducted a careful review of the Memorandum and

Recommendation, the Court concludes that the Magistrate Judge’s
proposed conclusions of law are supported by and are consistent with
current case law.
Accordingly, IT IS, THEREFORE, ORDERED that the Plaintiff’s
Objections to the Magistrate Judge’s Memorandum and Recommendation
[Doc. 31] are OVERRULED, and the recommendation of the Magistrate
Judge [Doc. 29] is ACCEPTED.
IT IS FURTHER ORDERED that the Defendant’s Motion to Dismiss
[Doc. 16] is GRANTED IN PART and DENIED IN PART as follows:
(1)

The Motion to Dismiss is GRANTED with respect to
Counts One, Two, and Four of the Complaint, and these
claims are DISMISSED WITHOUT PREJUDICE; and

(2)

The Motion to Dismiss is DENIED with respect to Counts
Three, Five, and Six of the Complaint.

IT IS FURTHER ORDERED that The Clerk of Court shall send the
pro se Plaintiff a Notice of Availability of the Settlement Assistance
Program. The Plaintiff shall have fourteen (14) days (the “Opt in Period”) to

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decide whether to participate in the Pro Se Settlement Assistance Program
and return the completed Notice form to the Clerk of Court in Asheville.
The deadline for conducting an initial attorneys’ conference is tolled during
this Opt in Period.
IT IS SO ORDERED.

Signed: January 10, 2014

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