Beard v. Walmart

Filing 15

ORDER granting 9 Motion to Dismiss and Plaintiffs Complaint, (Doc. No. 1.), is DISMISSED and WITHOUT LEAVE TO AMEND. Signed by District Judge Frank D. Whitney on 11/29/22. (Pro se litigant served by US Mail.)(clc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:21-cv-00495-FDW-DCK
KAREN MARIE BEARD,

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Plaintiff,
vs.
WALMART, INC.
Defendant.

ORDER

THIS MATTER is before the Court on Defendant Walmart, Inc.’s (“Defendant”) Motion
to Dismiss, (Doc. No. 9), filed on May 6, 2022. Karen Marie Beard (“Plaintiff”) responded on
June 21, 2022, (Doc. No. 13), to which Defendant replied on June 28, 2022, (Doc. No. 14). As
such, Defendant’s Motion is fully briefed and ripe for review. For the reasons set forth herein,
Defendant’s Motion is GRANTED and Plaintiff’s Complaint, (Doc. No. 1), is DISMISSED WITH
PREJUDICE and WITHOUT LEAVE TO AMEND.
I.

Background

Plaintiff, who appears pro se, did not complete the “factual background” portion of her
complaint form; however, she attached exhibits to her complaint that provide some indication of
the factual background she contends supports her claims. (Docs. Nos 1, 1-1, pp. 1-8).1

The Court considers the attached exhibits as part of the Plaintiff’s complaint. See Fed. R. Civ. P. 10(c) (“A copy of
a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”); Tate v. Mail Contractors
of Am., Inc., No. 3:10–CV–528, 2011 WL 1380016, at *3 (W.D.N.C. Apr.12, 2011) (“Mindful that the Court should
review the entirety of a pro se plaintiff's record for evidence to support Plaintiff's claims, the Court has examined all
of [Plaintiff's] filings” in ruling on the motion to dismiss.)
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Plaintiff worked as a Cashier and Optician for Defendant: first at Sam’s Club (a Walmart
subsidiary), from October 17, 2008, to November 23, 2011; then at Walmart’s Vision Center from
April 17, 2014, to November 4, 2020. Id. at 6-8. On March 18, 2020, Plaintiff informed her
supervisor Kari Keene that she was experiencing mental health issues, which led Keene to suggest
that she take an approved vacation. Id. at 1, 6. During this vacation, Plaintiff travelled from South
Carolina to visit family in New Orleans, Louisiana. Id. When she returned home and inquired
about returning to work, Keene informed Plaintiff she could not return to work due to the Covid19 pandemic and the fact that she had traveled to a different state. Id. At some point during the
same time period, but after Plaintiff’s trip, Plaintiff contends a fellow Optician R.H. travelled
across state lines and was allowed to immediately return to work. Id. After a week of missed
shifts, Plaintiff called Keene’s manager to request permission to work shifts as a cashier until she
was able to return to the Vision Center. Id.
On an unspecified occasion in March 2020, a customer filed a complaint against Plaintiff
alleging Plaintiff refused to fix the customer’s glasses because they were dirty. Plaintiff, however,
claims that she instructed the customer that she was unable to fix his glasses because the store did
not have the correct nose piece in stock. Id. On June 16, 2020, Keene met with Plaintiff to discuss
the incident, and instructed Plaintiff to “keep [her] voice down [be]cause [Keene] said people
always take black people the wrong way [be]cause we [sic] loud and we [sic] black.” Id. Keene
further instructed Plaintiff that she was going to be changed from a full-time employee to a parttime employee because she had not hit her hour quota for the past 12 weeks. Id. Plaintiff was
subsequently terminated from her position at Walmart on November 4, 2020. Id. at 6. In an email
communication containing a written statement by Plaintiff, Plaintiff alleges that Keene’s decision
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to demote Plaintiff, and subsequently terminate her, was in retaliation for Plaintiff asking Keene’s
supervisor to work shifts as a cashier while she was unable to return to the Vision Center due to
stricter Covid-19 protocols. Id. at 1.
II.

Procedural History

Plaintiff commenced this action on September 21, 2021, seeking monetary damages. (Doc.
No. 1). Defendant filed a Motion to Dismiss Plaintiff’s Claims Pursuant to Rule 12(b)(6) (Doc.
No. 9), and this Court informed Plaintiff of her duty to respond to that motion, (Doc. No. 10). This
matter has been fully briefed by the parties, (Docs. Nos. 13, 14), and is ripe for disposition.
III.

Standard of Review

Complaints must contain, among other things, “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To survive a motion to
dismiss [for failing to state a claim upon which relief can be granted], a complaint must 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 Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). Courts will ignore all “legal conclusions” alleged in the complaint and assume all
factual allegations are true. Id. at 678–79. Then, courts will consider all the factual allegations to
determine if the claim is “plausible”—i.e., whether “the plaintiff plead[ed] sufficient factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 678; see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-15 (2002)
(noting that a Plaintiff in a Title VII claim need not plead facts that constitute a prima facie case
to survive a motion to dismiss). “Determining whether a complaint states a plausible claim . . .

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requires the reviewing court to draw on its judicial experience and common sense.” Ashcroft, 556
U.S. at 679.
Complaints written by pro se plaintiffs are construed liberally in favor of the plaintiff, so
courts will hold plaintiffs’ documents “to a less stringent standard than those drafted by attorneys.”
See Smith v. Greenville Cnty. Sch. Dist., No. 6:10-2478, 2010 WL 4484099 at *1 (D.S.C. Oct. 5,
2010) (citing Erickson v. Pardus, 551 U.S. 89 (2007); Estelle v. Gamble, 429 U.S. 97 (1976)).
However, even under this less stringent standard, “the pro se complaint is subject to summary
dismissal” if the court is unable to “reasonably read the pleadings to state a valid claim on which
Plaintiff could prevail” without “construct[ing] Plaintiff’s legal arguments for her.” Smith, 2010
WL 4484099 at *1 (citing Small v. Endicott, 988 F.2d 411, 417-18 (7th Cir. 1993)). To survive a
Rule 12(b)(6) motion, a pro se complaint must allege sufficient facts to support all of the legal
elements of the claim. Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761 (4th Cir. 2003)
(“While a plaintiff is not charged with pleading facts sufficient to prove her case, as an evidentiary
matter, in her complaint, a plaintiff is required to allege facts that support a claim for relief.”
(emphasis in original)); see also Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.”).
IV.

Analysis

Plaintiff asserts claims of employment discrimination, including termination of her
employment and retaliation, on the basis of color and disability or perceived disability, in violation
of Title VII and the Americans with Disabilities Act (“ADA”). (Doc. No. 1, p. 4). Defendant has
moved to dismiss all claims.
A. Title VII Claim
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1. Failure to Exhaust Administrative Remedies
Title VII prohibits an employer from taking adverse employment action against an
employee because of the individual’s race, color, religion, sex, or national origin. See 42 U.S.C.
§ 2000-e-2(a)(1). Plaintiff first filed a charge with the EEOC for discrimination and retaliation
based on race.

(Doc. No. 1-1, p. 3).

Subsequently, in this complaint, Plaintiff asserted

discrimination and retaliation based on color, but not race. (Doc. No. 1, p. 4). Typically, “a
plaintiff fails to exhaust his administrative remedies where . . . his administrative charges reference
different time frames, actors, and discriminatory conduct than the central factual allegations in his
formal suit.” Sydnor v. Fairfax County, 681 F.3d 591, 593 (4th Cir. 2012) (omission in original)
(quoting Chacko v. Patuxent Inst., 429 F.3d 505, 506 (4th Cir. 2005)). A plaintiff has therefore
failed to exhaust his administrative remedies when the plaintiff’s court complaint alleges “a
broader pattern of misconduct” than “the allegation of a discrete act or acts in [plaintiff’s]
administrative charge.” Chacko, 429 F.3d at 508–10; see also Parker v. Reema Consulting Servs.,
Inc., 915 F.3d 297, 306 (4th Cir. 2019) (holding that plaintiff’s EEOC charge alleging sex-based
discrimination due to a workplace rumor failed to provide adequate notice to defendant of
plaintiff’s subsequent allegation of discriminatory application of defendant employer’s warning
policy). This framework provides some flexibility, however, for “hapless plaintiffs” who might
otherwise fall victim to “overly technical concerns.” Sydnor, 681 F.3d at 594. Thus, “so long as
‘a plaintiff's claims in her judicial complaint are reasonably related to her EEOC charge and can
be expected to follow from a reasonable administrative investigation,’ she ‘may advance such
claims in her subsequent civil suit.’” Id. (quoting Smith v. First Union Nat'l Bank, 202 F.3d 234,
247 (4th Cir. 2000)).
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Under Title VII, race and color, while “not synonymous,” “clearly overlap.” EEOC
Compliance Manual, § 15-III at 15-6 (Apr. 19, 2006). Thus, any reasonable administrative
investigation into the discrete discriminatory acts alleged by Plaintiff would necessarily explore
both race and color discrimination. As such, Plaintiff has sufficiently exhausted her administrative
remedies for defendant’s alleged discriminatory termination and retaliation of her on the basis of
color.
2. Retaliation
To establish a prima facie claim for retaliation under Title VII, a plaintiff must allege: “(1)
that she engaged in a protected activity; (2) that her employer took an adverse employment action
against her; and (3) that there was a causal link between the two events.” E.E.O.C. v. Navy Fed.
Credit Union, 424 F.3d 397, 406 (4th Cir. 2005). It is a protected activity for an individual to
“oppose[] any practice made an unlawful employment practice by [Title VII].” Crawford v. Metro
Gov’t of Nashville & Davidson Cnty., 555 U.S. 271, 276 (2009) (citing 42 U.S.C. § 20003-3(a)).
Specifically, ‘“[w]hen an employee communicates to her employer a belief that the employer has
engaged in . . . a form of employment discrimination, that communication’ virtually always
‘constitutes the employees’ opposition to the activity.”’ Crawford, 555 U.S. at 276 (quoting Brief
for United States as Amicus Curiae 9, Crawford, 555 U.S 271) (cleaned up).
Here, Plaintiff’s uncontroverted demotion from full-time to part-time employee and
subsequent termination plainly satisfy the adverse employment action element of a prima facie
claim for retaliation. Further, Plaintiff’s EEOC charge was clearly a protected action. However,
Plaintiff does not allege that she was retaliated against or terminated because of her EEOC charge.
Instead, she alleges Keene retaliated against her, by demoting her and then firing her, because she
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“went over her head and ask [sic] management to be a cashier” while she was unable to return to
the Vision Center due to their stricter Covid-19 protocols. (Doc. No. 1-1, p. 1). Plaintiff does not
make any allegation that she was withheld from her position in the Vision Center due to her color,
race, or for any other reason protected by Title VII. Furthermore, Plaintiff offers no factual
allegations, beyond conclusory speculation, that there was a causal connection between her nonprotected complaint to management and her subsequent demotion and termination.

Thus,

Plaintiff’s complaint that she was retaliated against on the basis of her color in violation of Title
VII is dismissed.
3. Termination
To support a claim for discriminatory termination based on race or color under Title VII, a
plaintiff must allege: “(1) membership in a protected class; (2) satisfactory job performance; (3)
adverse employment action; and (4) different treatment from similarly situated employees outside
the protected class.” Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010);
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A plaintiff’s conclusory allegation that
she was terminated because of her race is insufficient to establish a prima facie case for
discriminatory termination—even for a motion to dismiss under Rule 12(b)(6). See Coleman, 626
F.3d at 190-91. The complaint must establish a plausible basis for the court to conclude plaintiff’s
complaint of discrimination rises above speculation. Id.
Here, Plaintiff’s complaint alleges that three of her coworkers were treated differently than
her. Specifically, she alleges that these coworkers were treated differently than her in a points
system utilized by Defendant, and that one coworker had taken medication that caused her to fall
asleep while speaking to a customer. (Doc. No. 1-1, p 1). In a separate incident, Plaintiff alleges
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that her coworker “Tina” was not required to observe the quarantine period that she was required
to observe, despite having also traveled across state lines. Id. However, Plaintiff does not allege
at any point in her complaint or the exhibits that these three coworkers are not a member of the
protected class. Thus, no reasonable inference enables this Court to find that Plaintiff’s complaint
satisfies the fourth element.
Further, at no point does Plaintiff allege that her job performance was satisfactory at the
time of her termination. The only positive mention of Plaintiff’s work performance is Plaintiff’s
statement that she “gave this company 12 year of my life.” (Doc. No. 1, ¶ V). Thus, there is no
reasonable inference by which this Court can find that Plaintiff’s complaint satisfies the second
element.
For the reasons stated above, Plaintiff’s complaint of discriminatory termination on the
basis of her color shall be dismissed.
B. ADA Claim
The ADA prohibits discrimination “in regard to the job application process, the hiring,
advancement, or discharge of employees, employee compensation, job training, and other terms,
conditions, and privileges of employment” on the basis of disability. See 42 U.S.C. § 12112(a).
Plaintiff first filed a charge with the EEOC for discrimination and retaliation based on race. (Doc.
No. 1, p 4). The ADA, which is modeled after Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e, requires “a plaintiff [to] exhaust his administrative remedies by filing a charge with the
EEOC before pursuing a suit in federal court.” Sydnor v. Fairfax Cnty., 681 F.3d 591, 593 (4th
Cir. 2012) (citing 42 U.S.C. § 2000e–5(b), (f)(1)). Plaintiffs are required to exhaust their
administrative remedies to put employers on notice of the alleged violations and enable them to
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attempt to resolve the matter out of court. Miles v. Dell, 429 F.3d 480, 491 (4th Cir. 2005) (citing
EEOC v. American Nat'l Bank, 652 F.2d 1176, 1186 (4th Cir. 1981)). In the case of an ADA
lawsuit, “[o]nly those discrimination claims stated in the initial charge, those reasonably related to
the original complaint, and those developed by reasonable investigation of the original complaint
may be maintained in a later suit.” Downie v. Revco Discount Drug Centers, Inc., 448 F. Supp.
2d 724, 728 (W.D. Va. 2006) (citing Chacko v. Patuxent Inst., 429 F.3d 505, 506 (4th Cir. 2005)
(discussing Title VII)).
Plaintiff did not allege discrimination or retaliation on the basis of a disability in her EEOC
charge. (Doc. No. 1-1, p. 3). No reasonable administrative investigation of a race discrimination
charge could be expected to explore a claim of disability discrimination. Unlike race and color,
there is no clear overlap between race and disability. Thus, Plaintiff has not exhausted her
administrative remedies in regards to an ADA claim for discrimination or retaliation based on
disability. Because Plaintiff has not exhausted her administrative remedies by filing an ADA claim
with the EEOC, her ADA claim shall be dismissed.
Furthermore, regardless of Plaintiff’s failure to exhaust her administrative remedies with
regards to her ADA claim, this claim cannot survive Defendant’s Motion to Dismiss pursuant to
Rule 12(b)(6). For an individual to be “disabled” as defined by the ADA, the individual must: (1)
have “a physical or mental impairment that substantially limits one or more major life activities of
such individual,” (2) have “a record of such an impairment,” or (3) be “regarded as having such
an impairment.” 42 USC § 12102(1); Coons v. Sec’y of U.S. Dep’t of Treasury, 383 F.3d 879,
884 (9th Cir. 2004). A plaintiff need only prove one of these three prongs to be “disabled” as
defined by the ADA, so dismissal per Rule 12(b)(6) is only appropriate if it is not plausible, from
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the allegations contained in a plaintiff’s complaint, for the Court to find that plaintiff is “disabled”
as defined by the ADA. See 42 U.S.C. § 12102(1); Iqbal, 556 U.S. at 678. Here, Plaintiff neither
identifies any specific disability nor alleges any facts to support a finding of disability other than
checking the box to indicate that she believes she was discriminated against due to her alleged
disability. (See Docs. Nos. 1; 1-1). Thus, Plaintiff’s claims under the ADA shall be dismissed.
V.

Conclusion

IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss per Rule 12(b)(6),
(Doc. No. 9), is GRANTED, and Plaintiff’s Complaint, (Doc. No. 1.), is DISMISSED and
WITHOUT LEAVE TO AMEND.2
IT IS SO ORDERED.3

Signed: November 29, 2022

The Court notes that Plaintiff’s response to the instant motion indicates additional “allegations” that arguably
supplement her form Complaint and exhibits. Nevertheless, the Court finds that even if Plaintiff were allowed to
amend her complaint to supplement the allegations as argued in her response, such amendment would be futile and
does not save the instant pleading from failing to state a claim.
3
See Britt v. DeJoy, 45 F.4th 790 (4th Cir., 2022) (“When a district court dismisses a complaint or all claims without
providing leave to amend, the complaint . . . the order dismissing the complaint is final and appealable.”); Johnson v.
Yeckley, No. 21-6810, 2022 WL 5240611 at n.* (Oct. 6, 2022) (per curiam) (unpublished) (“Although the district
court dismissed the complaint in part without prejudice, we conclude that the dismissal order is final and appealable.”
(citing Britt, 45 F.4th at 791)).
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