Van Buren v. Walmart Stores of America

Filing 6

MEMORANDUM OPINION OF THE COURT AND ORDER REFERRING CASE to Magistrate Judge Barbara D. Holmes. For these reasons, the Court concludes that Plaintiff has stated a claim against Defendant Walmart Store of America under Title VII, the ADEA, and the ADA. All other claims and Defendants are DISMISSED. The Clerk is directed to ISSUE PROCESS and ensure service upon Defendant Walmart Stores of America at the address provided by Plaintiff: 3458 Dickerson Pike, Nashville, TN 37207. This action is REFERRED to the Magistrate Judge to enter a scheduling order for the management of the case, to dispose or recommend disposition of any pretrial motions under 28 U.S.C. §§ 636(b)(1)(A) and (B), and to conduct further proceedings, if nece ssary, under Rule 72(b) of the Federal Rules of Civil Procedure and the Local Rules of Court. Rule 26(a)(1) of the Federal Rules of Civil Procedure, regarding required initial discovery disclosures, shall not apply. Signed by Chief Judge Waverly D. Crenshaw, Jr on 12/4/2019. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
KENNITH D.L. VAN BUREN,
Plaintiff,
v.
WALMART STORES OF AMERICA,
Defendant.

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NO. 3:19-cv-00533

MEMORANDUM OPINION AND ORDER
Kennith Van Buren, a Tennessee resident, filed a pro se employment discrimination
complaint against Walmart Stores of America and Scott A. Forman. (Doc. No. 1.) Plaintiff also
filed an application to proceed in this Court without prepaying fees and costs. (Doc. No. 2.) The
Court granted Plaintiff’s application and directed him to file an amended complaint identifying the
factual basis for his claims. (Doc. No. 4.) Plaintiff complied. Both the complaint (Doc. No. 1) and
amended complaint (Doc. No. 5) are now before the Court for an initial review.
I.

Initial Review
The Court must dismiss any action filed in forma pauperis if it is frivolous or malicious,

fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant
who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). In doing so, the Court applies the
same standard as under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Hill v. Lappin, 630
F.3d 468, 470–71 (6th Cir. 2010). The Court therefore accepts “all well-pleaded allegations in the
complaint as true, [and] ‘consider[s] the factual allegations in [the] complaint to determine if they
plausibly suggest an entitlement to relief.’” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009)). An assumption of truth does not, however,

extend to allegations that consist of legal conclusions or “‘naked assertion[s]’ devoid of ‘further
factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
557 (2007)). A pro se pleading must be liberally construed and “held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing
Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
A.

Factual Allegations

Plaintiff alleges that he was employed at a Walmart on Dickerson Pike in Nashville,
Tennessee. (Doc. No. 1 at 3.) On June 1, 2017, Plaintiff alleges that a loss prevention agent was
“accused of possibily [sic] detaining a customer at [his or her] vehicle for possibly shoplifting
items from the store.” (Doc. No. 5 at 4.) Plaintiff alleges that he was “falsely accused of being
involved in” this incident. (Id.) According to Plaintiff, he was “only at a shopping cart” helping
the customer’s grandchild get out of the cart without injury. (Id.) Plaintiff does not explain what,
if anything, happened during this alleged incident. He does allege, however, that he was terminated
as a result of this incident, and that “employees of other races” have not been terminated when
they “actually confronted customers using profanity.” (Id. at 5.)
Plaintiff alleges that he gave a statement regarding this incident some time after it occurred.
While Plaintiff’s allegations regarding this statement are somewhat confusing, he clearly alleges
that his “original statement” was destroyed. (Id.) Indeed, Plaintiff alleges that the “defendant’s
witness” admitted doing so during Plaintiff’s “unemployment hearing.” (Doc. No. 5-1 at 3.) For
this reason, Plaintiff alleges, “the statement submitted as evidence on their behalf as [his] statement
is not [his] statement that was submitted at the time of [his] hearing.” (Id.) Plaintiff alleges that, as
a result of this hearing, he “should be awarded [his] unemployment benefits,” but he “did not
receive all of the benefits [he] was owed.” (Id. at 4.)

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Attached to the amended complaint is a Walmart “Voluntary Statement Form” apparently
completed and signed by Plaintiff on September 25, 2017. 1 (Doc. No. 5-1 at 2.) On this form,
Plaintiff states that another employee told him to “pay attention to two white females with two
small kids in a shopping cart” because the employee noticed that “the ladies had some clothing
items under a case of water inside the basket.” (Id.) The employee followed “the young lady
outside,” and Plaintiff “thought she was going to bring the items to the young lady’s attention.”
(Id.) Plaintiff “knew that it was wrong to follow the lady to her car” based on his previous training.
(Id.) Nonetheless, the employee told Plaintiff that she was approaching [the lady] at her car”
because she “knew the lady from being a regular customer.” (Id.) Plaintiff went with the employee
“just as a witness” and “for safety reasons . . . in case the young lady became belligerent.” (Id.)
The employee requested to see the customer’s receipt after telling “the young lady she had some
clothes . . . in her basket not in bags.” (Id.) “The lady said she may have forgotten to ring them up
because of the kids.” (Id.)
There is an EEOC right-to-sue notice attached to the original complaint, dated March 27,
2019. (Doc. No. 1-1 at 1.) The notice seems to reflect that Plaintiff brought an EEOC charge
against Walmart based, at least, on race, age, and disability. (Id.) The EEOC dismissed Plaintiff’s
charge. (Id.)
B.

Employment Law Claims

The original complaint reflects that Plaintiff intends to bring several federal employment
law claims against the Defendants. Before addressing the merits of those claims, however, the
Court first addresses the timeliness of the complaint. A plaintiff must file a civil lawsuit within 90

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Also attached is a one-page excerpt from an unknown document, apparently completed by a “Senior Federal
Investigator” with the EEOC and dated January 29, 2018. (Doc. No. 5-1 at 1.) Because this document was not
completed by Plaintiff, and it is unclear whether Plaintiff intended to incorporate it into the complaint, the Court will
not consider the substance of this one-page excerpt in the course of conducting an initial review.

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days of receiving a right-to-sue notice from the EEOC. See Fuller v. Mich. Dep’t of Transp., 580
F. App’x 416, 424 (6th Cir. 2014) (citing 42 U.S.C. § 2000e-5(f)(1)) (discussing the 90-day
requirement in the context of Title VII). There is a presumption that a plaintiff “receives the
EEOC’s [right-to-sue] letter by the fifth day after the indicated mailing date.” Id. (citing GrahamHumphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 557 (6th Cir. 2000)). Here,
the EEOC right-to-sue notice is dated March 27, 2019, so the Court presumes Plaintiff received it
on April 1. The Court received the original complaint on June 27, 2019 (Doc. No. 1 at 1), 87 days
later. Accordingly, the Court considers Plaintiff’s federal employment law claims to be timely for
the purpose of initial review.
Turning to the merits, Plaintiff checked boxes reflecting that he intends to bring this action
under Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination Act of 1967
(“ADEA”), and the Americans with Disabilities Act of 1990 (“ADA”). (Doc. No. 1 at 3.) He also
checked the boxes reflecting that the “discriminatory conduct of which [he] complain[s]” includes
termination of his employment, failure to promote, unequal terms and conditions of employment,
and retaliation. (Id. at 4.) Finally, Plaintiff checked boxes reflecting that the Defendants
discriminated against him based on his race, gender/sex, age, and disability, while identifying his
disabilities as congestive heart failure and “dislocated disc in back.” (Id.)
Liberally construing the factual allegations set forth above and taking them as true, as
required at this stage in the proceedings, the Court concludes that Plaintiff has stated claims under
Title VII, the ADEA, and the ADA against Defendant Walmart Store of America.
As to Defendant Scott Forman, however, Plaintiff fails to state an employment
discrimination claim. Plaintiff includes Forman on the list of Defendants, but does not include any
information about Forman’s alleged job or title. (Doc. No. 1 at 2; Doc. No. 5 at 2.) Indeed, Plaintiff

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does not even reference Forman again. A defendant “who does not otherwise qualify as an
‘employer’ cannot be held individually liable under Title VII and similar statutory schemes.”
Wathen v. Gen. Elec. Co., 115 F.3d 400, 404 (6th Cir. 1997) (footnote omitted) (collecting cases).
Here, the Court has no basis to conclude that Defendant Forman qualifies as an employer under
the relevant statutes, and so Plaintiff’s employment discrimination claims against Forman will be
dismissed.
C.

Section 1983 and/or Bivens Claims

Through the amended complaint, Plaintiff states that he is “suing under both Section 1983
[and] Bivens” because the Defendants violated his due process rights and discriminated against
him. (Doc. No. 5 at 4.) He fails to state a claim on either basis.
As to Defendant Forman, Plaintiff does not make any allegations against him in the original
complaint, amended complaint, or any of the attached documentation. Even under the liberal
construction afforded to pro se plaintiffs, this is insufficient to impose liability under either Section
1983 or Bivens. See Frazier v. Michigan, 41 F. App’x 762, 764 (6th Cir. 2002) (citing Hall v.
United States, 704 F.2d 246, 251 (6th Cir. 1983)) (“[A] complaint must allege that the defendants
were personally involved in the alleged deprivation of federal rights.”). Because Plaintiff does not
assert any other claims against him, Defendant Forman will be dismissed as a party.
As to Defendant Walmart, a private entity, Plaintiff fails to state a Bivens claim because
“it is well established that Bivens actions may not be asserted against . . . private corporations.”
Marie v. Am. Red Cross, 771 F.3d 344, 364 (6th Cir. 2014) (citing Corr. Servs. Corp. v. Malesko,
534 U.S. 61, 70–74 (2001)).
Finally, while there are some circumstances in which private entities may be held liable
under Section 1983, Plaintiff allegations against Walmart do not provide a basis to do so here. To

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state a Section 1983 claim, a plaintiff must allege that a defendant was “acting under color of state
law.” Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir. 2003) (quoting Ellison v. Garbarino, 48 F.3d
192, 194 (6th Cir. 1995)). And “[t]o set forth a cognizable [Section] 1983 claim against a private
party, a plaintiff must show that its actions were ‘fairly attributable to the state.’” Hopson v. WalMart, No. 5:05CV-237-M, 2006 WL 939004, at *2 (quoting Lugar v. Edmondson Oil Co., 457
U.S. 922, 937 (1982)). Here, Plaintiff does not provide any allegations from which the Court could
reasonably infer that Walmart’s challenged conduct is attributable to the state in any way. Plaintiff,
therefore, fails to state a claim against Walmart under Section 1983. See id. at *2–3 (determining
that Walmart’s alleged conduct was not “fairly attributable to the state” under the public function
test, the symbiotic relationship test, or the state compulsion test).
III.

Conclusion and Referral to the Magistrate Judge
For these reasons, the Court concludes that Plaintiff has stated a claim against Defendant

Walmart Store of America under Title VII, the ADEA, and the ADA. All other claims and
Defendants are DISMISSED.
The Court’s determination that the complaint states a colorable claim for purposes of this
initial screening does not preclude the Court from dismissing any claim at any time for the reasons
set forth in 28 U.S.C. § 1915(e)(2), nor does it preclude a defendant from filing a motion to dismiss
any claim under Federal Rule of Civil Procedure 12.
Plaintiff is warned that he must keep the Clerk’s Office informed of his current address at
all times. Failure to do so may result in dismissal of this case for failure to prosecute and failure to
comply with the Court’s Order.
The Clerk is directed to ISSUE PROCESS and ensure service upon Defendant Walmart
Stores of America at the address provided by Plaintiff: 3458 Dickerson Pike, Nashville, TN 37207.

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This action is REFERRED to the Magistrate Judge to enter a scheduling order for the
management of the case, to dispose or recommend disposition of any pretrial motions under 28
U.S.C. §§ 636(b)(1)(A) and (B), and to conduct further proceedings, if necessary, under Rule 72(b)
of the Federal Rules of Civil Procedure and the Local Rules of Court. Rule 26(a)(1) of the Federal
Rules of Civil Procedure, regarding required initial discovery disclosures, shall not apply.
IT IS SO ORDERED.

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WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE

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