Gray v. Walmart Stores Inc.

ELLA L. GRAY, Plaintiff, v. WALMART STORES, INC., Defendant.

No. 7:10-CV-171-BR

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NORTH CAROLINA SOUTHERN DIVISION

Dated: May 12, 2011.

ORDER

This matter is before the court on the 8 December 2010 motion to dismiss filed by defendant Walmart Stores, Inc. ("Walmart").¹ Also before the court are two motions filed by plaintiff Ella L. Gray ("plaintiff). The period to respond and reply to these motions has elapsed, and the matters are now ripe for disposition.

I. BACKGROUND

Plaintiff is a current employee of Walmart Store # 1392 in Wilmington, North Carolina. On 29 April 2010, plaintiff filed a charge of employment discrimination against Walmart with the Equal Employment Opportunity Commission ("EEOC"). (EEOC charge, DE # 4-2, at 36.) On 4 June 2010, the EEOC mailed plaintiff a right-to-sue letter, which concluded that the facts alleged in the charge failed to state a claim under any of the statutes enforced by the EEOC. (Dismissal & Notice of Rights, DE # 4-1, at 1.)

On 2 September 2010, plaintiff commenced this action by filing a motion to proceed in forma pauperis, and she attached her complaint to the motion. The complaint is a fill-in-the-blank typewritten form that the court makes available for use by pro se litigants. The typewritten form has been supplemented with handwritten information by the plaintiff. In her complaint, plaintiff alleges that she has been (1) denied equal pay/work, demoted, and generally harassed; (2) discriminated against because of her age, national origin, race, and disability; and (3) retaliated against for complaining of the alleged discrimination, all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). (Compl., DE # 4, 3-4, 6.)

On 8 December 2010, Walmart filed a motion to dismiss the complaint. (DE # 11.) On 16 December 2010, plaintiff filed a motion to proceed with the complaint, to request 24-hour surveillance of the work operations on the sales floor and the processing areas of Walmart Store # 1392, and to request the North Carolina Department of Labor and the Occupational Safety and Health Administration to conduct an analysis of chemicals in certain areas of the store. (DE # 14.) On 10 January 2011, Walmart filed a response to the 16 December 2010 motion. (DE # 18.) On 4 February 2011, plaintiff filed another motion pursuant to which she made a number of requests to the court. (DE # 21.) Walmart did not file a response to this motion.

II. DISCUSSION

A. Standard of Review

Plaintiff is proceeding pro se. Pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by attorneys. See Haines v. Kerner, 404 U.S. 519, 520 (1972). This court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See id.; Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).

Federal Rule of Civil Procedure 12(b)(6) allows a defendant to challenge the sufficiency of the allegations in the complaint. In order to survive a Rule 12(b)(6) motion to dismiss, a complaint "must contain 'a short and plain statement of the claim showing that the pleader is entitled to relief.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). This standard "does not require 'detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The complaint must contain "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). Although plausibility does not entail probability, the facts in the complaint must establish more than the mere possibility that a defendant acted unlawfully. Id. In considering whether the plaintiff has established a plausible claim for relief, this court is bound to accept the well-pleaded facts of the complaint as true; however, conclusory assertions of law or fact are not entitled to the assumption of truth. Id. at 1949-50; seealso Nemet Chevrolet, Ltd. v. Consumeraffairs.com. Inc., 591 F.3d 250, 255 (4th Cir. 2009). In sum, "[w]hile 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 [plausible] claim for relief." Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (emphasis in original).

B. Plaintiff's Motions

In this case, plaintiff did not file a formal response to Walmart's 8 December 2010 motion to dismiss. Instead, she filed a motion to proceed with the complaint on 16 December 2010. (Pl.'s Mot. Proceed, DE # 14.) However, upon reading plaintiff‘s motion to proceed, it is clear that she intended Section I of her motion to be a response to Walmart's motion to dismiss.(Id. at 1-11.) Because the court has a duty to construe pro se pleadings liberally, seeHaines, 404 U.S. at 520, Section I of plaintiff’s motion to proceed will therefore be construed as a response to the motion to dismiss.

In Section II of the 16 December 2010 motion to proceed, plaintiff requests 24-hour surveillance of the work operations on the sales floor and the back room processing area of Walmart Store # 1392. (Pl.'s Mot. Proceed, DE # 14, at 11-13.) In addition, in Section III of the motion, plaintiff asks the court to order the North Carolina Department of Labor and the Occupational Safety and Health Administration to conduct a chemical analysis of the same areas of the store mentioned in her request for surveillance. (Id. at 13-15.) Plaintiff does not cite to any authority which would allow the court to grant her the relief she seeks. The court also notes that the request made in Section III of the motion relates to entities that are not parties to this case. Assuming for the sake of argument that the court does have the authority to grant plaintiff's requests, such authority would be discretionary. The court concludes that it would be inappropriate to order the relief that plaintiff seeks. As a result, the requests contained in Sections II and III of her 16 December 2010 motion will be denied.

Plaintiff filed another motion in this case on 4 February 2011. (DE # 21.) In this motion, plaintiff requests that the court (1) compel the EEOC to respond to and investigate plaintiff's second charge of discrimination; (2) grant plaintiff an extension of time to seek legal representation; (3) compel Walmart to cease retaliation and harassment or provide immediate unemployment benefits to plaintiff; (4) order Walmart to compel Merrill Lynch to release company-contributed 401(k) benefits to plaintiff immediately; and (5) ask the Social Security Administration to disclose all actions taken with respect to plaintiffs application for disabilitybenefits. As with the 16 December 2010 motion, plaintiff cites no authority in support of her motion, and several of plaintiff‘s requests relate to entities who are not parties to this case. All of plaintiffs requests are inappropriate and will be denied. Furthermore, to the extent that both of plaintiffs motions seek injunctive relief, the motions lack merit and are denied. See Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 374 (2008); Real Truth About Obama, Inc. v. FEC, 575 F.3d 342, 345-46 (4th Cir. 2009), vacated on other grounds, 130 S. Ct. 2371 (2010), reinstated in relevant part on remand, 607 F.3d 355 (4th Cir. 2010) (per curiam).

C. Walmart's Motion to Dismiss

This case presents many of the problems that are typical with pro se litigants. Plaintiff struggles to set forth "a short and plain statement" of her claims showing that she is entitled to some form of relief. Fed. R. Civ. P. 8(a)(2). Her complaint and the attached exhibits are difficult to comprehend. Even after reviewing the numerous documents submitted by plaintiff, her claims and her allegations remain unclear.

In testing the sufficiency of plaintiffs pro se complaint under Federal Rule of Civil Procedure 12(b)(6), the court has considered all of the allegations in the complaint, plaintiffs response to Walmart's motion to dismiss as contained in Section I of her motion to proceed with the complaint, and the attachments to those pleadings. 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."); Pratt v. Corr. Corp. of Am., 124 Fed. Appx. 465, 466 (8th Cir. 2005) (explaining that the district court "was required to consider the allegations not only in [the plaintiffs] pro se complaint, but also in his motion to amend, his response to defendants' motion to dismiss, and the attachments to those pleadings"); Tate v. Mail Contractors of Am., Inc., No. 3:10-CV-528, 2011 WL1380016, 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 Plaintiffs claims, the Court has examined all of [Plaintiffs] filings" in ruling on the motion to dismiss.); Rush v. Am. Home Mortg., Inc., No. WMN-07-CV-0854, 2009 WL 4728971, at *3 (D. Md. Dec. 3, 2009) (the court can consider additional facts alleged in a pro se litigant's response brief due to the court's obligation to construe liberally a pro se complaint); Donahue v. U.S. Dep't of Justice, 751 F. Supp. 45, 49 (S.D.N.Y. 1990), abrogated on other grounds, Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (concluding that, due to "[t]he Court's duty to adopt a generous attitude when evaluating a pro se complaint," it would consider the allegations in the plaintiffs opposition to the motion to dismiss where they were consistent with the allegations in the complaint).

1. National Origin and Age Discrimination Claims

In her complaint, plaintiff asserts a national origin claim pursuant to ...