Evans v. Sam's East, Inc. et al

Filing 13

ORDER granting in part and denying in part 10 Motion to Dismiss. Signed by Chief Judge Frank D. Whitney on 1/5/17. (Pro se litigant served by US Mail.)(clc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO: 3:16-CV-00671-FDW-DCK
RICKY EVANS, JR.,
Plaintiff,
vs.
SAM’S EAST, INC., JOHN FULERTON,
MIKELA MACK, and MICHAEL CAM,
Defendants.

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ORDER

THIS MATTER is before the Court on Defendants’ Sam’s East, Inc., John Fulerton, and
Mikela Mack (collectively “Defendants’”) Motion to Dismiss (Doc. No. 10) Plaintiff’s Amended
Complaint (Doc. No. 8) pursuant to Fed. R. Civ. P. 12(b)(1) and (6) for lack of subject matter
jurisdiction and failure to state a claim. Because Plaintiff appears pro se, the Court issued a
Roseboro notice (Doc. No. 11) advising Plaintiff of his right to respond to Defendants’ Motion.
Plaintiff filed a timely response. (Doc. No. 12). Defendants did not reply and the time for doing
so has expired. The matter is now ripe for review. For the reasons stated below, the Court
GRANTS Defendants’ Motion in part and DENIES the Motion in part.
I.

BACKGROUND

Plaintiff filed his initial Complaint with the Mecklenburg County Superior Court on August
16, 2016. (Doc. No. 1). Defendants timely removed the action to this Court on September 16,
2016 (Doc. No. 1) and filed a Motion for More Definite Statement on September 22, 2016 (Doc.
No. 4). This Court granted Defendants’ Motion (Doc. No. 7), and Plaintiff filed his Amended
Complaint (Doc. No. 8) on November 1, 2016. In his Amended Complaint, Plaintiff asserts three

claims for alleged violations of the Americans with Disabilities Act (“ADA”):

failure to

accommodate, harassment, and retaliation. Plaintiff’s claims allegedly arise from his employment
and later resignation from Defendant Sam’s East or “Sam’s Club.”
Reciting the facts as alleged and in the light most favorable to Plaintiff, 1 Sam’s East
employees denied “multiple requests . . . about limiting [Plaintiff’s] hours to 5 hours per day and
three days off per week.” (Doc. No. 8, p. 4). Plaintiff goes on to allege that Defendant Fulerton
“subjected Plaintiff to verbal abuse on a daily basis and encouraged fellow associates to do so as
well.” (Doc. No. 8, p. 4). Plaintiff then filed an EEOC Charge on March 19, 2015. (Doc. No. 61). Plaintiff filed a second Charge on September 10, 2015, (Doc. No. 6-1), after he was “verbally
coached,” and “denied bereavement pay” in retaliation for filing his first Charge (Doc. No. 8).
Plaintiff received his right to sue letter for both charges on May 19, 2016. (Doc. No. 8, p. 10).
II.

DISCUSSION

Defendants argue that (1) the individual defendants should be summarily dismissed from
the action; (2) the “verbal coaching” alleged in the Amended Complaint cannot be grounds for
retaliation because it was absent from Plaintiff’s September 10th charge; (3) the facts alleged do
not rise to the level of ‘severe and pervasive’ to support a hostile work environment; (4) Plaintiff
failed to plead the causation and ‘adverse employment action’ elements required for a retaliation
claim; and (5) Defendant cannot be liable for failure to accommodate because Plaintiff “caused
the interactive process [between employer and employee] to breakdown.” (Doc. No. 10). The
Court agrees with Defendants’ first argument but rejects the remaining. Accordingly, Defendants’
Motion is GRANTED in part and DENIED in part.

The Court notes that “[a]lthough Plaintiff’s Complaint is not entirely clear, due to his pro se status, it must be read
generously.” Keene v. Thompson, 232 F. Supp. 2d 574, 578 (M.D.N.C. 2002); see also Erickson v. Pardus, 551
U.S. 89, 94 (2007).
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Plaintiff’s ADA claims against the individual Defendants cannot survive because only an
employer may be held liable under the ADA. Jones v. Sternheimer, 387 F. App’x 366, 368 (4th
Cir. 2010); see also McNeal v. Montgomery Cnty., Md., 307 F. App’x 766, 775 (4th Cir. 2009).
Accordingly, Defendants Fulerton and Mack are DISMISSED from this action. Furthermore, the
Court sua sponte DISMISSES Defendant Cam. In its Motion, Sam’s East, Inc. notes they “did not
employ any workers named ‘Michael Cam’ during the relevant time period.” (Doc. No. 10, n. 1).
Since no other appearance has been made, and even if an appearance was made an ADA claim
cannot survive against an individual, Defendant Cam is DISMISSED.
The Court, however, disagrees with Defendants’ Rule 12(b)(1) challenge. A plaintiff
alleging violations of the ADA must exhaust his administrative remedies by filing a charge with
the EEOC before filing suit because the scope of the court’s subject matter jurisdiction is limited
by the contents of the charge. Mercer v. PHH Corp., 641 F. App’x 233, 238 (4th Cir. 2016); see
also Syndor v. Fairfax Cnty., 681 F.3d 591 (4th Cir. 2012). A defendant can challenge a plaintiff’s
obligation to exhaust using a motion to dismiss for lack of subject matter jurisdiction, FED. R. CIV.
P. R. 12(b)(1), and said motion should be granted “only if the material jurisdictional facts are not
in dispute and the moving party is entitled to prevail as a matter of law.” Evans. V. B.F. Perkins
Co., 166 F.3d 642, 647 (4th Cir. 1999) (citations omitted); see also Demetres v. East West
Construction, Inc., 776 F.3d 271 (4th Cir. 2015). When a court reviews a plaintiff’s EEOC charge
and complaint for exhaustion purposes, “the touchstone . . . is whether plaintiff’s administrative
and judicial claims are ‘reasonably related,’ not precisely the same . . . .” Sydnor, 681 F.3d at 595.
Plaintiff’s second charge alleges he was retaliated against when he was denied bereavement
pay, and when he “informed [his] supervisor that [he] could not longer work for Sam’s Club
because how [he has] been treated since filing an EEOC Charge.” (Doc. No. 6-1). At this time,

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the facts remain in dispute as to whether the “verbal coaching” alleged in Plaintiff’s Amended
Complaint is “reasonably related” to Plaintiff’s March 2015 EEOC Charge. Thus, the Court finds
material jurisdictional facts are in dispute and DENIES Defendant’s 12(b)(1) Motion. Defendant
may re-raise the argument at summary judgment.
Defendant’s remaining three arguments attack factual disputes within the retaliation,
failure to accommodate, and harassment causes of action, and therefore are also proper for
summary judgment. Plaintiff is not required to prove his case at this stage, but only to state a
plausible set of facts that “raise [his] right of relief above the speculative level.” Coleman v. Md.
Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010). Accordingly, the Court finds Plaintiff has
alleged facts sufficient to state a plausible claim.
III.

CONCLUSION

For the aforementioned reasons, Defendant’s Motion to Dismiss (Doc. No. 10) is
GRANTED in part and DENIED in part. Individual Defendants John Fulerton, Makela Mack, and
Michael Cam are DISMISSED from the case. The Clerk is respectfully directed to TERMINATE
Defendants Fulerton, Mack, and Cam.
Furthermore, the Court’s Initial Scheduling Order (“ISO”) entered on September 16, 2016,
requires the parties to conduct an Initial Attorneys’ Conference (“IAC”) “[w]ithin fourteen (14)
calendar days following joinder of the issues” and to “file a Certification of Initial Attorneys’
Conference (“CIAC”)” “[w]ithin five (5) calendar days after the IAC.” As of the date of the entry
of this Order, no CIAC has been filed and the time for doing so has expired. Therefore, the parties
are hereby ORDERED to file a CIAC no later than Monday, January 18, 2017.
SO ORDERED.
Signed: January 4, 2017

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