Tate v. The Home Depot et al

Brief / Memorandum in Support re MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM .

W.D. Va.August 31, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA Danville Division ____________________________________ ) LATOYA TATE, ) ) Plaintiff Pro Se, ) ) v. ) Case No.: 4:16-cv-0022 ) THE HOME DEPOT, INC., et al. ) ) Defendants. ) ____________________________________) DEFENDANT BRETT NEWMAN'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PRO SE COMPLAINT Defendant Brett Newman (“Newman”), by counsel, pursuant to Rules 8(a) and 12(b)(6) of the Federal Rules of Civil Procedure, and Local Rule 11(c)(1), submits this Memorandum of Law in Support of his Motion to Dismiss the Complaint filed by Plaintiff Pro Se LaToya Tate (“Tate”). Factual and Procedural Background Plaintiff is a former employee of Home Depot U.S.A., Inc. (“Home Depot”) who was hired on or about October 28, 2011, as a part-time cashier at Store #8493 in Danville, Virginia (hereinafter, the “Danville Store”). In October 2012, Plaintiff transferred to a full-time Sales Associate position in the Kitchen and Bath Department at the Danville Store. Thereafter, on or about August 12, 2013, Plaintiff requested and was transferred to a Sales Associate position in the store’s Paint Department. Plaintiff’s employment with the Home Depot was terminated on November 6, 2014. See Complaint at 2. The stated reason for Plaintiff’s discharge from employment was her repeated “insubordinate conduct towards management.” Id. at 4. Plaintiff admits to receiving at least three separate disciplinary write-ups between May 26, 2014 and November 6, 2014. Id. at 5. Case 4:16-cv-00022-JLK Document 11 Filed 08/31/16 Page 1 of 9 Pageid#: 50 2 At all times relevant hereto, Defendant Newman was the Store Manager at the Danville Store.1 Defendant Newman signed the Progressive Disciplinary Notices issued to Plaintiff on June 16, 2014 and July 7, 2014. According to Plaintiff’s Complaint, Defendant Newman “subjected [Plaintiff] to do the work of others” and “[s]ingled [Plaintiff] out to clean floors [in] other departments that were already cleaned.” Id. at 4. Plaintiff also asserts that she began receiving the aforementioned disciplinary write-ups only after Defendant Newman learned that she had filed her Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC). Id. Plaintiff filed her first Charge of Discrimination with the EEOC on August 7, 2014 (the “First Charge”), naming the Home Depot as the Respondent. In the First Charge, Plaintiff alleged that she was discriminated against on the basis of her race (African American) with respect to a transfer request when a white (Caucasian) associate was selected for the position, and that Defendant Newman had told her that she was not selected because, “it wouldn’t be a good fit.” The First Charge also includes Plaintiff’s allegation that anytime Defendant Newman would see two or more African American employees conversing or fraternizing in the store, he would put a stop to it by assigning them “chores,” even outside of their normal department(s). Plaintiff filed her second charge with the EEOC on January 15, 2015 (the “Second Charge”), asserting that between June 16, 2014 and November 6, 2014, she was retaliated against for filing the First Charge. In essence, Plaintiff’s Second Charge alleges that she was subjected to disparate treatment, falsely accused of insubordination and disrespectful conduct and, ultimately, unlawfully terminated in retaliation for complaining about alleged racist comments and conduct at the Danville Store. A Dismissal and Notice of Rights as to each Charge was issued to Plaintiff on 1 Mr. Newman was Store Manager at the Danville Store from January 2013 to November 2014, at which time he assumed the Store Manager position at the High Point, North Carolina location (Store #3633). He is still employed with the Home Depot. Case 4:16-cv-00022-JLK Document 11 Filed 08/31/16 Page 2 of 9 Pageid#: 51 3 February 18, 2016. Plaintiff subsequently filed her Complaint in this Court on May 18, 2016, naming the Home Depot, Brett Newman, and Sarah Motley (“Motley”)2 as defendants. Legal Standard Rule 8(a) of the Federal Rules of Civil Procedure requires that a complaint contain “a short and plain statement of the claims” that “will give the defendant fair notice of what the plaintiff’s claim is and the ground upon which it rests.” Fed. R. Civ. P. 8(a). At a minimum, therefore, Plaintiff must state a cognizable claim under applicable law. As discussed below, Plaintiff’s Complaint does not meet even this basic standard. The U.S. Supreme Court has held that “fair notice” under Rule 8(a) requires more than a mere conclusory recitation of the elements of a claim: “[A] plaintiff’s obligation to provide the grounds of [her] entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Instead, to satisfy Rule 8(a) and survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a plaintiff must to “allege enough facts ‘to raise a right to relief above the speculative level’” or “provide ‘enough facts to state a claim to relief that is plausible on its face.’” Columbia Venture, LCC v. Dewberry & Davis, LLC, 604 F.3d 824 (4th Cir. 2010) (quoting Twombly, 550 U.S. at 570); see also Bass v. E.I. Dupont Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (in order for a complaint to survive dismissal for failure to state a claim, a plaintiff “must allege facts sufficient to state all the elements of her claim.”). In considering a motion to dismiss under Rule 12(b)(6), the court “must assume the truth of all facts alleged in the complaint and the existence of any fact that can be proved consistent with the complaint’s allegations.” Eastern Shores Market, Inc. v. J.D. Assoc. Ltd. P'ship, 213 F.3d 175, 2 Ms. Motley was Plaintiff’s Department Supervisor in the Paint Department at the Danville Store, where she is still employed. To date, proper service of process has not been achieved as to Ms. Motley; as such, she is not yet a party in this litigation, and does not join in this motion. Case 4:16-cv-00022-JLK Document 11 Filed 08/31/16 Page 3 of 9 Pageid#: 52 4 180 (4th Cir. 2000). However, the court need not accept the plaintiff’s “unsupported legal conclusions,” Revene v. Charles County Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989), “unwarranted inferences, unreasonable conclusions or arguments” drawn from the facts, Eastern Shores, 213 F.3d at 180 (4th Cir. 2000), or conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979). Plaintiff’s status as a pro se litigant does not preclude this Court from applying the basic principles articulated in Iqbal and Twombly. While the Supreme Court has held that in the context of a motion to dismiss, a district court must construe a pro se complaint liberally, the “principles requiring generous construction of pro se complaints are not . . . without limits.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985), cert. denied, 475 U.S. 1088 (1986). A pro se plaintiff still must allege facts that state a cause of action, id., and the complaint “must at least set forth enough details so as to provide [the] defendant and the court with a fair idea of the basis of the complaint and the legal grounds claimed for recovery.” Karpel v. Inova Health Sys. Servs., 134 F.3d 1222, 1227 (4th Cir. 1998). Thus, while pro se parties cannot “be expected to frame legal issues with the clarity and precision ideally evident in the work of those trained in law, neither can district courts be required to conjure up and decide issues never squarely presented to them.” Beaudett, 775 F.2d at 1276; see also Bracey v. Buchanan, 55 F.Supp.2d 416, 421 (E.D. Va. 1999). ARGUMENT I. Plaintiff Has Failed to State a Legally Cognizable Claim Against Newman A. There is no individual liability for supervisors or managers under Title VII. Plaintiff has named Mr. Newman in his individual capacity as a defendant in this lawsuit. Even assuming for purposes of this motion that Plaintiff’s allegations regarding Defendant Newman’s actions are true, and further, that such actions are prohibited by Title VII of the Civil Rights Act of 1964 (“Title VII”), supervisors are not liable in their individual capacities for Case 4:16-cv-00022-JLK Document 11 Filed 08/31/16 Page 4 of 9 Pageid#: 53 5 violations of Title VII. Lissau v. Southern Food Serv., 159 F.3d 177 (4th Cir. 1995). Plaintiff’s claims against Defendant Newman must be dismissed on that basis alone. In Lissau, a female employee filed suit under Title VII against her former supervisor and the employer, Southern Food Service, for discrimination based on sex. Id. at 180. The trial court granted summary judgment in favor of the supervisor, holding that supervisors are not individually liable under Title VII. Id. The Court of Appeals for the Fourth Circuit affirmed, stating “supervisors are not liable in their individual capacities for Title VII violations,” because “[t]o permit individual liability would improperly expand the remedial scheme crafted by Congress.” Id. at 181. In reaching its decision, the Fourth Circuit followed established precedent from several other federal circuits: [E]very circuit that has confronted this issue since the enactment of the [Civil Rights Act] has rejected claims of individual liability. These circuits have founded this conclusion on the language of Title VII and the fact that its remedial scheme seems so plainly tied to employer, rather than individual, liability. We join these courts and reiterate that supervisors are not liable in their individual capacities for Title VII violations. Id. at 181. The Court’s holding in Lissau on the question of individual liability of supervisors under Title VII remains the law in the Fourth Circuit, and numerous district courts in this Circuit have followed the ruling since it was first issued more than twenty years ago. See, e.g., Cooley v. Goss, 430 F. Supp. 2d 544, 546 (E.D.Va. 2005) (individual supervisors cannot incur liability under Title VII); Johnson v. North Carolina, 905 F. Supp. 2d 712, 720 (W.D.N.C. 2012); Hawkins v. Leggett, 955 F. Supp. 2d 474, 497 (D. Md. 2013); see also Thompson v. Harvester, Inc., 2014 WL 1571968 at *2 (E.D. Va., Apr. 17, 2014) (holding that because supervisors “are not liable in their individual capacities for Title VII violations,” plaintiff “can sue her company under Title VII but not her individual bosses.”) (internal quotations omitted). Case 4:16-cv-00022-JLK Document 11 Filed 08/31/16 Page 5 of 9 Pageid#: 54 6 Given the foregoing, Plaintiff has failed to state a claim against Defendant Newman upon which relief can be granted because supervisors are not individually liable for violations of Title VII according to the settled law of the Fourth Circuit. Thus, her claims against all individually named Defendants should be dismissed. B. Even if supervisors could be individually liable under Title VII, Plaintiff has failed to allege that Defendant Newman violated the Civil Rights Act. A complaint that neither identifies the sections of the law allegedly violated by the defendant nor describes the nature of those violations necessarily fails to satisfy the pleading standards set forth in Rule 8(a). See Sepulveda v. Stiff, 2006 WL 3314530 at *4-5 (E.D. Va., Nov. 14, 2006) (“A complaint is sufficient [under Rule 8(a)] where it states jurisdictional grounds for the claim, identifies sections of the law allegedly violated, describes the nature of the violations, and specifies the time period in which the alleged violations occurred.”). Even affording Plaintiff wide latitude as a pro se litigant, her Complaint in this matter does not contain sufficient factual detail to satisfy Rule 8(a) or the pleading standards established by Iqbal, Twombly, and/or Erickson v. Pardus, 551 U.S. 89 (2007). Page 4 of Plaintiff’s Complaint identifies Defendant Newman as an individual “involved in your discharge or other unlawful practice about which you are complaining[.]” See Complaint at 4. Plaintiff asserts that Defendant Newman forced Plaintiff to do other employees’ work and singled her out to clean floors and other areas of the store that were already cleaned. Id. However, Plaintiff does not allege: a) that Defendant Newman was not entitled or authorized to assign such tasks to Plaintiff; b) that such tasks were not part of Plaintiff’s job duties as a Store Associate; or c) that other employees at the Danville Store were not also “singled out” or assigned similar tasks. Plaintiff also asserts her “belief” that after she “told…the then-Store Manager Brett Newman” that she had filed the First Charge with the EEOC, she “began to receive write-ups that Case 4:16-cv-00022-JLK Document 11 Filed 08/31/16 Page 6 of 9 Pageid#: 55 7 were unfair and untrue.” Id. Plaintiff goes on to provide a cursory description of the three disciplinary notices she received, but fails to allege any facts to support her conclusory allegation that the write-ups were somehow “untrue.”3 Perhaps more importantly, Plaintiff does not include any semblance of an allegation (conclusory or otherwise) that her race was the but-for cause of these allegedly retaliatory write-ups. See id. at 4-5. It is well settled that the purpose of a Rule 12(b)(6) motion to dismiss is to test the legal sufficiency of a complaint. See Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). In reviewing a Rule 12(b)(6) motion to dismiss, this Court is not required “to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Veney v. V.T. Wyche, 293 F.3d 726, 730 (4th Cir. 2002). And despite the deference given to pro se plaintiffs and the rather liberal pleading requirements of Rule 8(a), more detail is required “than the bald statement by plaintiff that [she] has a valid claim of some type against defendant.” Migdal v. Rowe-Fleming International Inc., 248 F.3d 321, 326 (4th Cir. 2001); see also Volpone v. Caldera, 190 F.R.D. 177, 180 (E.D.Va. 1999) (while motions to dismiss are generally viewed with disfavor, the court “should not accept as true allegations that are unsupported and conclusory.”). Notably, district courts within the Fourth Circuit have not hesitated to grant motions to dismiss in cases involving pro se plaintiffs who failed to plead adequately their claims. See, e.g., Wright v. SunTrust Bank, 2008 WL 3106884 at *3 (E.D. Va., Aug. 4, 2008) (granting motion to dismiss pro se plaintiff’s complaint where a thorough and liberal reading of the complaint did not reveal any allegations that could violate the statute at issue); Jordan v. Lee, 2008 U.S. Dist. LEXIS 31890, at n.3 (W.D. Va., Apr. 17, 2008) (granting motion to dismiss pro se plaintiff’s complaint 3 At best, Plaintiff alleges that the write-ups did not relate to insubordinate conduct, which she claims is the reason given for her termination in November 2014. Case 4:16-cv-00022-JLK Document 11 Filed 08/31/16 Page 7 of 9 Pageid#: 56 8 where the plaintiff failed to allege facts stating a cause of action). In the case at bar, Plaintiff has not provided the Court with any basis upon which to find that she was unlawfully discriminated against on the basis of her race or retaliated against for engaging in protected activity under the applicable law. Her fragmented assertions fail to rise above the level of speculation to the level of plausibility, and fail to satisfy the various elements of her stated causes of action under Title VII. Accordingly, Plaintiff’s claims against Defendant Newman should be dismissed for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6).4 Conclusion For all the foregoing reasons, Defendant Newman respectfully requests that this Court dismiss Plaintiff’s Complaint with prejudice. Respectfully submitted, BRETT NEWMAN By Counsel ____________/s/_____________________ Jeffrey A. Hord, Esq. (VSB # 77638) PALEY, ROTHMAN, GOLDSTEIN, ROSENBERG, EIG, AND COOPER, CHARTERED. 4800 Hampden Lane, 6th Floor Bethesda, Maryland 20814-2930 (301) 656-7603 | Fax (301) 654-7354 jhord@paleyrothman.com Attorney for Defendants 4 At a minimum, in the event that the Court declines to dismiss Plaintiff’s Complaint and determines that Defendant Newman may be held liable in his individual capacity, Plaintiff should nonetheless be required to file an amended complaint that sets forth a more definite statement of her claims against this Defendant. See Fed. R. Civ. P. 12(e); see also Frederick v. Koziol, 727 F. Supp. 1019, 1021 (E.D. Va. 1990) (finding that a more definite statement by plaintiff is required when the complaint is “so vague and ambiguous that the defendant cannot frame a responsive pleading.”). Case 4:16-cv-00022-JLK Document 11 Filed 08/31/16 Page 8 of 9 Pageid#: 57 9 CERTIFICATE OF SERVICE I hereby certify that on Wednesday, August 31, 2016, I electronically filed the foregoing Motion with the Clerk of the District Court using the CM/ECF system, and then caused a true and correct copy of same to be sent to the following unrepresented party via first-class U.S. mail: LaToya A. Tate 147 White Street Danville, Virginia 24540 (434) 548-3486 Plaintiff Pro Se /s/ Jeffrey Alexander Hord Jeffrey A. Hord, Esq., VSB No. 77638 jhord@paleyrothman.com PALEY, ROTHMAN, GOLDSTEIN, ROSENBERG, EIG & COOPER, CHTD. 4800 Hampden Lane, Sixth Floor Bethesda, Maryland 20814-2930 (301) 656-7603 - Telephone (301) 654-7354 - Facsimile Counsel for Defendants Case 4:16-cv-00022-JLK Document 11 Filed 08/31/16 Page 9 of 9 Pageid#: 58