Davenport v. Fed. Express Corp.

JOSLYNE DAVENPORT,, PLAINTIFF v. FEDERAL EXPRESS CORPORATION, DEFENDANT

Civil Action No. 3:20-CV-743-DPJ-FKB

United States District Court, S.D. Mississippi, Northern Division

December 22, 2022

ORDER

DANIEL P. JORDAN III, CHIEF UNITED STATES DISTRICT JUDGE

Plaintiff Joslyne Davenport claims that Defendant Federal Express Corporation (FedEx) violated Title I of the Americans with Disabilities Act (ADA) when it fired her because of her disability-injured knee. Davenport is representing herself and the full scope of her claims is somewhat ambiguous. Regardless, FedEx urges the Court to dismiss her Complaint entirely because all potential claims fail to state a claim under Federal Rule of Civil Procedure 12(b)(6); all claims occurring before January 17, 2020, are time-barred; and Davenport failed to administratively exhaust other claims. See Def.'s Mot. to Dismiss [13]. Although the Court will grant FedEx's motion, Davenport may seek leave to amend her Complaint.

I. Background

The following facts are viewed in the light most favorable to Davenport. Davenport worked as a carrier and delivery driver for FedEx. She claims that in 2015, her manager propositioned her in a sexual manner. First EEOC Charge [14-1] at 2. As a result, Davenport filed the first of two charges of discrimination with the Equal Employment Opportunity Commission (EEOC). That charge was filed in 2016 and alleged sexual harassment and retaliation (though the latter charge was ill-defined). Id.; see also Compl. [1] at 5. The record does not indicate what became of that first charge, but Davenport says FedEx “drastically” reduced her hours after she filed it. Compl. [1] at 5.

“A couple of months” after the work-hours reduction Davenport fell at work and injured her knee. Id. Her manager at that time, Wayne Agent, let Davenport go home but initially refused to authorize a doctor's visit. Id. After Agent relented, the doctor informed Davenport that she had a torn meniscus that required surgery. Id. When Davenport returned to work following surgery, FedEx allegedly cut her hours and assigned her delivery route to someone else. Id. The Complaint fails to state when any of this occurred, but records attached to Davenport's response to FedEx's motion indicate that the post-meniscus-surgery events occurred in 2017 and 2018. See Davenport Statement [15-2] at 2.

Other falls and knee injuries followed. Id. As a result, Davenport had knee-replacement surgery on July 8, 2019. Ex. H [1-8] at 8; Davenport Statement [15-2] at 2.^[1] FedEx placed Davenport on a worker's compensation leave of absence on January 2, 2019, for the scheduled knee-replacement surgery. Ex. E [1-5] at 1. On August 22, 2019, Davenport's doctor approved a return to light duty beginning September 9, 2019, followed by full duty on October 7, 2019. In part because FedEx did not allow Davenport to work light duty, she did not return to work until January 6, 2020, though she was previously informed that her leave would expire on January 2, 2020. Ex. G [1-7] at 1; Davenport Statement [15-2] at 3.

Shortly after her return to work, on January 9, 2020, Davenport suffered another knee injury and was again placed on worker's compensation leave. Ex. E [1-5] at 1. On February 28, 2020, Davenport notified FedEx that she would not be able to return to work until she was re- checked by doctors. Ex. H [1-8] at 1. On that same day, FedEx fired Davenport, purportedly for exceeding her maximum allowable leave. Ex. G [1-7] at 1.

That decision prompted Davenport's second EEOC charge, which she filed on July 15, 2020. This one asserted only disability discrimination. Second EEOC Charge [1-9] at 2. About one month later, on August 19, 2020, the EEOC issued a Dismissal and Notice of Rights, indicating that it was closing its file because it was “unable to conclude that the information obtained establishes violations of the statutes.” EEOC Dismissal [1-9] at 1. The notice referenced only EEOC Charge No. 423-2020-01309, the number that corresponds with Davenport's second EEOC charge. Id. at 2. It did not mention Davenport's first EEOC charge, and the record does not indicate what happened to it.

Finally, on November 17, 2020, exactly 90 days after receiving the dismissal and right-to-sue notice, Davenport filed her Complaint using a court-provided form for pro se litigants. In it, she checked the box for “Americans with Disabilities Act of 1990” and no other statutory basis for jurisdiction. Compl. [1] at 3. She then checked the boxes for “[t]ermination of employment,” “[f]ailure to accommodate my disability,” [u]nequal terms and conditions of employment,” and “retaliation.” Id. at 4. FedEx's motion to dismiss [13] has been fully briefed; the Court finds that it has both subject-matter and personal jurisdiction.

II. Standard

“A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “Rule 8 . . . demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

Rather, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.

When, as here, a litigant is pro se, her filings “are to be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Tucker v. Gaddis, 40 F.4th 289, 292 (5th Cir. 2022) (internal quotations and citation omitted). “That being said, such liberal construction ‘does not exempt a party from compliance with relevant rules of procedural and substantive law.'” Gaitan v. Saenz, No. 21-40042, 2022 WL 1981047, at *2 (5th Cir. June 6, 2022) (quoting Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981)).

In considering a Rule 12(b)(6) motion, the “court accepts ‘all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'” Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004) (quoting Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999) (per curiam)). But “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555)).

Thus, to overcome a Rule 12(b)(6) motion, the plaintiff must plead “[f]actual allegations . . . rais[ing] a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555 (citations and footnote omitted). “This standard ‘simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of' the necessary claims or elements.” In re S. Scrap Material Co., LLC, 541 F.3d 584, 587 (5th Cir. 2008) (quoting Twombly, 550 U.S. at 556). In addition, dismissal under Rule 12(b)(6) on the basis of an affirmative defense-like a statute of limitations-is appropriate only if “it is evident from the plaintiff's pleadings that the action is barred and the pleadings fail to raise some basis for tolling or the like.” Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003).

A court considering these issues must make its rulings based on what is stated in the pleadings (unless the court converts the motion to dismiss to a summary-judgment motion). Fed.R.Civ.P. 12(d). There are exceptions. For example, “[d]ocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to her claim.” Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004) (citation omitted). Here, Davenport offers facts in her response to FedEx's motion that were not part of her pleadings (i.e., her Complaint), so those facts may not be considered with respect to FedEx's motion.

Finally, even if a complaint fails to meet the pleading requirements, that “should not automatically or inflexib[ly] result in dismissal of the complaint with prejudice to re-filing.” Hart v. Bayer Corp., 199 F.3d 239, 248 n.6 (5th Cir. 2000). “[D]istrict courts often afford plaintiffs at least one opportunity to cure pleading deficiencies before dismissing a case....” Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002). “This Court believes that the rule is especially true with pro se plaintiffs” like Davenport. Okeke v. Am. Express Co., No. 3:15-CV-455-DPJ-FKB, 2015 WL 7078784, at *3 (S.D.Miss. Nov. 13, 2015). But leave may be denied if “the defect is simply incurable or the plaintiff has failed to plead with particularity after being afforded repeated opportunities to do so.” Hart, 199 F.3d at 248 n.6.

III. Analysis

As discussed above, Davenport lists four claims, all under the ADA. FedEx says the claims must be dismissed because (1) the retaliation claim is procedurally barred and meritless; (2) the failure-to-accommodate claim is procedurally barred, or, in any event, Davenport fails to establish a prima facie case because she is not a qualified individual with a disability; and (3) Davenport fails to state a claim for discriminatory termination and unequal terms and conditions of employment. The Court will address these alleged deficiencies in turn.

A. Retaliation Claims

Davenport alleges that after returning to work from her meniscus surgery, FedEx cut her hours and took her route away. Compl [1] at 5. She claims that this constituted retaliation. Id. She also states that “[t]...