LONG v. WALMART, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

QUANIA DENAY LONG, )

)

Plaintiff, )

)

v. ) 1:21CV215

)

WALMART, INC., )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Presently before the court is a Motion to Dismiss filed by

Defendant Walmart, Inc. (“Defendant” or “Walmart”). (Doc. 7.)

Plaintiff Quania Denay Long (“Plaintiff” or “Long”) responded in

opposition. (Doc. 12.) Defendant replied. (Doc. 13.) For the

reasons set forth herein, this court will grant in part and deny

in part Defendant’s motion to dismiss. This court will decline

to dismiss Plaintiff’s First and Third Claims but will dismiss

Plaintiff’s Second Claim.

I. FACTUAL BACKGROUND

On a motion to dismiss, a court must “accept as true all of

the factual allegations contained in the complaint.” King v.

Rubenstein, 825 F.3d 206, 212 (4th Cir. 2016). The facts, taken

in the light most favorable to Plaintiff, are as follows.

In April 2019, Plaintiff was hired by Walmart’s

Kernersville store as a customer service manager. (Compl. Jury

Trial Demanded (“Compl.”) (Doc. 4) ¶ 4.) Five months later, she

fell ill. (Id. ¶ 5.) A nurse practitioner authorized Plaintiff

to return to work but stated that Long was “not permitted to

work in refrigerator/freezer units” because it may trigger her

asthma attacks. (Id. at 6.) Walmart did not observe this medical

restriction and instead “required [Plaintiff] to continue

working in refrigerator/freezer units.” (Id. ¶ 7.) In

mid-November 2019, Plaintiff was promoted. (Id. ¶ 6.)

In December 2019, Plaintiff “fell ill with respiratory

issues.” (Id. ¶ 8.) When she was out of work due to these

issues, Plaintiff sought accommodation for her asthma in the

form of a formal exemption from her duties in the

refrigerator/freezer units. (Id. ¶¶ 8-9.) She received a letter

from a nurse practitioner to this effect. (Id. at 7.) Plaintiff

“was released to return to work on 24 January 2020.” (Id. ¶ 8.)

Around that time, Plaintiff’s supervisor, Debbie Troy,

“indicated that she planned to write up Long.” (Id. ¶ 10.) “Long

refused to sign any write-up as she had not violated any polices

or instructions.” (Id.)

On February 1, 2020, Plaintiff was scheduled to work a

shift ending at 1:00 p.m. (Id. ¶ 11.) Management “demand[ed]

that she overstay her schedule.” (Id.) However, Plaintiff

received authorization from the store’s Personnel Coordinator to

leave at 1:00 p.m. as originally scheduled. (Id.) The next day,

Troy presented Plaintiff with another write-up. (Id. ¶ 12.)

Plaintiff again refused to sign it. (Id.) On February 3, 2020,

when Plaintiff arrived for work, Troy sent her home. (Id. ¶ 13.)

Two days later, “Walmart responded to Long’s accommodation

request by placing her on leave of absence from 11 January

through 13 December 2020.” (Id. ¶ 14.) On or around February 6,

2020, Troy told Plaintiff that she would be discharged, (id.

¶ 15), but on February 7, 2020, Troy’s supervisor overrode that

decision, (id. ¶ 16).

On February 18, 2020, Plaintiff went to the office of the

Equal Employment Opportunity Commission (“EEOC”) “to submit a

Charge of Discrimination.” (Id. ¶ 17.) While there, Plaintiff

saw the Kernersville Walmart’s “assistant manager, Kiondra

Brown, who was there to submit a charge of discrimination

herself.” (Id.) Plaintiff alleges that “Kiondra Brown reported

to Walmart that Long was at the office of EEOC to file a charge

of discrimination.” (Id. ¶ 18.) That same day, Walmart

discharged Plaintiff, allegedly “in retaliation for her

protected conduct.” (Id. ¶ 19.) Plaintiff stresses that other

than the aforementioned write-ups, she had “no history of

discipline with Walmart.” (Id. ¶ 6.)

II. PROCEDURAL BACKGROUND

Plaintiff filed her EEOC charge of discrimination on

March 4, 2020. (Ex. A (“EEOC Charge”) (Doc. 8-1).) Two days

later, the EEOC dismissed the charge and sent Plaintiff a right

to sue notice. (Ex. B (“Right to Sue Notice”) (Doc. 8-2).)1

On February 10, 2021, Plaintiff filed a complaint in

Forsyth County Superior Court against Defendant. (Compl.

(Doc. 4).) The Complaint asserts three claims: (1) wrongful

discharge in violation of public policy, (2) retaliation, and

(3) punitive damages. (Id. ¶¶ 21-33.) On March 17, 2021,

Defendant filed a petition with this court to remove the case

from state to federal court on diversity jurisdiction grounds.

(Doc. 1.) On March 23, 2021, Defendant filed a motion to dismiss

pursuant to Federal Rule of Civil Procedure 12(b)(6), (Doc. 7),

1 Even though Plaintiff’s EEOC charge and right to sue

notice were not attached to her complaint, they may still be

considered in adjudicating Defendant’s motion to dismiss. This

is because “[w]hile a 12(b)(6) motion focuses on the allegations

of the complaint, it is well established that a document

attached to a motion to dismiss may be considered when

evaluating a motion to dismiss if the document was ‘integral to

the complaint and authentic.’” Goines v. Valley Cmty. Servs.

Bd., 822 F.3d 159, 164 (4th Cir. 2016) (quoting Sec’y of State

For Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th

Cir. 2007)). Defendant attached to its motion to dismiss

Plaintiff’s EEOC charge and right to sue notice. (Exs. A—B

(Docs. 8-1, 8-2).) These EEOC documents are integral to

Plaintiff’s short complaint because the complaint claims that

Plaintiff was retaliated against for filing an EEOC charge.

(Compl. (Doc. 4) ¶¶ 17-19, 26-30.) Furthermore, Plaintiff has

not challenged the documents’ authenticity nor objected to their

consideration.

along with an accompanying memorandum, (Doc. 8). Plaintiff

responded in opposition. (Docs. 11, 12.) Defendant replied.

(Doc. 13.) Defendant’s motion to dismiss is now ripe for

adjudication.

III. STANDARD OF REVIEW

“To survive a [Rule 12(b)(6)] motion to dismiss, 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)). A claim

is plausible on its face “when the plaintiff pleads factual

content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged” and

demonstrates “more than a sheer possibility that a defendant has

acted unlawfully.” Id. When ruling on a motion to dismiss, this

court accepts the complaint’s factual allegations as true. Id.

Further, this court liberally construes “the complaint,

including all reasonable inferences therefrom . . . in the

plaintiff’s favor.” Est. of Williams-Moore v. All. One

Receivables Mgmt., Inc., 335 F. Supp. 2d 636, 646 (M.D.N.C.

2004). This court does not, however, accept legal conclusions as

true, and “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not

suffice.” Iqbal, 556 U.S. at 678.

IV. ANALYSIS

A. First Claim: Wrongful Discharge in Violation of Public

Policy

Defendant interprets Plaintiff’s First Claim to be that

Walmart, instead of reasonably accommodating Plaintiff’s asthma,

discharged her in violation of the public policy expressed in

North Carolina’s Equal Employment Practices Act (“NCEEPA”), N.C.

Gen. Stat. § 143-422 et seq. (Def.’s Mem. in Supp. of Mot. to

Dismiss (“Def.’s Br.”) (Doc. 8) at 4.) Defendant understands

this to be the basis for Plaintiff’s First Claim because the

claim quotes NCEEPA and then states that:

[a] substantial factor and but-for cause of Walmart’s

discharge of plaintiff was her request for the

reasonable accommodation for her asthmatic condition

in the form of being exempt from working in the

refrigerator/freezer environment. Walmart refused to

make reasonable accommodation and discharged plaintiff

from employment instead.

(Doc. 13 at 2 (emphasis omitted) (quoting Compl. (Doc. 4)

¶ 23).)

Defendant argues that this claim “is not viable under North

Carolina law, and as such, it must be dismissed.” (Def.’s Br.

(Doc. 8) at 5-6.) Specifically, Defendant maintains that NCEEPA

does not provide for a wrongful discharge in violation of public

policy claim based on the denial of a reasonable accommodation.

(Id. at 4-6.) In support of this position, Defendant references

several “factually similar cases,” (id. at 4-5), most

prominently Simmons v. Chemol Corp., 137 N.C. App. 319, 528

S.E.2d 368 (2000). Defendant cites Simmons for the proposition

that “plaintiff’s concern with the defendant’s alleged failure

to provide reasonable accommodations to the plaintiff is

misplaced . . . since plaintiff’s claim is based on wrongful

discharge in violation of public policy under N.C. Gen. Stat.

§ 143–422.2.” 137 N.C. App. at 323, 528 S.E.2d at 371. Under

that statute, “a discussion of reasonable accommodations . . .

is irrelevant.” Id.

Plaintiff insists that Defendant has misinterpreted the

basis for her wrongful discharge in violation of public policy

claim. (Mem. in Opp’n to Def.’s Mot. to Dismiss (“Pl.’s Resp.”)

(Doc. 12) at 4.) Plaintiff clarifies that this claim is not

grounded upon a failure to accommodate but rather disability

discrimination. (Id. at 4-5.) Plaintiff argues that “[t]o the

extent that Walmart argues that Simmons v. Chemol Corp., 137

N.C. App. 319, 528 S.E.2d 368 (2000) does not recognize this

claim, it is mistaken.” (Id. at 5.) Long explains that the

plaintiff in Simmons alleged he was terminated “because of his

condition, thus violating the public policy set out in N.C. Gen.

Stat. § 143-422.2.” (Id.) While the North Carolina Court of

Appeals ultimately rejected the plaintiff’s claim, it did so

based on the claim’s factual deficiency, “not some deficiency of

law,” (id. at 6), and thus Simmons stands for “the principle

that a claim for wrongful discharge in violation of G.S. 143-

422.2 is recognized for . . . disability [discrimination],” (id.

at 5 n.1).

The parties’ interpretations of Simmons are both correct

and compatible with one another — they simply highlight

different holdings of the case. Defendant emphasizes Simmons’

holding that a failure to accommodate claim is not cognizable

under NCEEPA, (Def.’s Br. (Doc. 8) at 4-6), while Plaintiff

emphasizes Simmons’ holding permitting disability discrimination

claims under NCEEPA, (Pl.’s Resp. (Doc. 12) at 5-6). Therefore,

Defendant’s motion to dismiss Plaintiff’s First Claim hinges on

whether the claim pleads failure to accommodate or disability

discrimination. If the claim pleads the former, as Defendant

argues, then it must be dismissed. But if it pleads the latter,

as Plaintiff argues, then it may survive the motion to dismiss.

While Plaintiff’s First Claim is no model of clarity, this

court finds that when viewed in its totality, it states a claim

for wrongful discharge in violation of public policy based on

disability discrimination. Although language in the First Claim

discusses Defendant’s failure to accommodate Plaintiff’s asthma,

(Compl. (Doc. 4) ¶ 23), the claim’s heading plainly states that

the claim is based on disability discrimination: “FIRST CLAIM

FOR RELIEF WRONGFUL DISCHARGE IN VIOLATION OF PUBLIC POLICY

DISABILITY DISCRIMINATION,” (id. at 3 (emphasis added).)

Moreover, the claim excerpts language from NCEEPA stating “[i]t

is the public policy of this State to protect and safeguard the

right and opportunity of all persons to . . . hold employment

without discrimination or abridgement on account of . . .

handicap.” (Id. ¶ 22 (emphasis added) (quoting N.C. Gen. Stat.

§ 143-422.2).) Given that at the motion to dismiss stage this

court liberally construes “the complaint, including all

reasonable inferences therefrom . . . in the plaintiff’s favor,”

Est. of Williams-Moore, 335 F. Supp. at 646, this court finds

that the claim’s heading and excerpted language from NCEEPA

suffice to state a claim for wrongful discharge in violation of

public policy based on disability discrimination. Because such a

claim is cognizable under NCEEPA, Defendant’s motion to dismiss

Plaintiff’s First Claim will be denied.

B. Second Claim: Retaliation

Plaintiff’s Second Claim alleges that Defendant’s “decision

to discharge plaintiff was based in part by the motivation to

retaliate against her for engaging in the protected activity of

filing a charge of discrimination with the [EEOC].” (Compl.

(Doc. 4) ¶ 28.) The complaint does not specify the exact legal

basis for this retaliation claim, and as a result, the briefing

addresses the claim as being brought under either the Americans

with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., or

alternatively NCEEPA. (Def.’s Br. (Doc. 8) at 6-8; Pl.’s Resp.

(Doc. 12) at 8-11.) This court concludes that regardless of

which statute the claim is brought under, it must be dismissed.

1. ADA

Defendant argues that if the retaliation claim is brought

pursuant to the ADA, then it must be dismissed as untimely.

(Def.’s Br. (Doc. 8) at 6-7.) The process of how and when to

bring an ADA claim is as follows. “The ADA incorporates the

administrative enforcement provisions of Title VII of the Civil

Rights Act of 1964, including the requirement that a person

exhaust her administrative remedies by filing a charge with the

EEOC concerning the alleged discrimination before filing suit in

federal court.” Williams v. N.C. Admin. Off. of the Courts, 364

F. Supp. 3d 596, 601 (E.D.N.C. 2018) (citing 42 U.S.C. §§ 2000e-

5(e)(1), 12117(a)). An aggrieved individual must “file an EEOC

charge within 180 days of each alleged ADA violation.” Id.

(citations omitted). If the EEOC later dismisses the charge and

closes its file, the EEOC will also issue a right to sue notice

apprising the aggrieved individual of his or her right to file a

lawsuit within ninety days. Filing a Lawsuit, https://www.eeoc.

gov/filing-lawsuit (last visited Nov. 30, 2021); Williams, 364

F. Supp. 3d at 604 (“The ADA requires a plaintiff to file suit

within 90 days of receiving a right to sue notice from the

EEOC.” (citing 42 U.S.C. §§ 2000e-5(f)(1), 12117(a))).

Here, Plaintiff filed her EEOC charge — in which she

checked the box for discrimination based on retaliation — on

March 4, 2020. (EEOC Charge (Doc. 8-1).) Plaintiff received her

right to sue notice two days later, triggering the ninety-day

period to file a lawsuit. (Right to Sue Notice (Doc. 8-2).)

Accordingly, Plaintiff’s right to sue lapsed in early June 2020

— well before she filed her complaint on February 10, 2021,

(Compl. (Doc. 4)). Nevertheless, Plaintiff insists that her

retaliation claim should not be dismissed as untimely because of

an exception to the EEOC administrative process. See Nealon v.

Stone, 958 F.2d 584, 590 (4th Cir. 1992). That exception,

established by Nealon, exempts “a plaintiff asserting a Title

VII claim of retaliation for filing a previous EEOC charge

[from] exhaust[ing] administrative remedies before suing in

federal court.” Id.

However, the sequencing in this case renders Plaintiff

unable to avail herself of Nealon. The Nealon “exception does

not apply when, as in the instant case, the alleged retaliation

occurred before the plaintiff filed an [EEOC} administrative

complaint.” Wright v. CarFax, Inc., Civil Action No. 3:13-cv-

451, 2013 WL 6253148, at *5 (E.D. Va. Dec. 3, 2013) (citations

omitted); accord, e.g., Davenport v. Wal-Mart Stores E., L.P.,

Civil Action No. 3:08cv119, 2008 WL 1984259, at *4 (E.D. Va.

May 6, 2008) (“[T]his exception to the exhaustion requirement

does not apply when the alleged retaliation occurred before the

plaintiff filed his or her administrative complaint.” (citations

omitted)); Byers v. Napolitano, Civil No. 3:09CV25-V, 2010 WL

4818099, at *3-4 (W.D.N.C. Nov. 19, 2010) (same). In other

words, in cases where “the alleged acts of retaliation did not

occur as a result of [the plaintiff] filing the EEOC charge, but

instead, occurred prior to the filing of the charge . . . the

facts . . . fail to trigger the Fourth Circuit’s rule in

Nealon.” Coles v. Carilion Clinic, 894 F. Supp. 2d 783, 793

(W.D. Va. 2012).

Here, the alleged retaliation occurred prior to Plaintiff

filing her EEOC charge, and thus the Nealon exception is not

triggered. Plaintiff’s complaint asserts that “[o]n 18 February

2020, Long visited the office of the [EEOC] to submit a Charge

of Discrimination.” (Compl. (Doc. 4) ¶ 17.) The complaint

alleges that she was terminated that same day in retaliation

“for engaging in the protected activity of filing a charge of

discrimination with the [EEOC].” (Id. ¶¶ 19, 28.) However, while

Plaintiff evidently visited the EEOC on February 18, 2020,

intending to file a charge of discrimination, it appears the

charge itself was not actually filed until March 4, 2020, over

two weeks later. (EEOC Charge (Doc. 8-1).) Because the alleged

retaliation — Plaintiff’s February 18 termination — occurred

before Plaintiff filed her March 4 EEOC charge, the Nealon

exception is inapplicable. See, e.g., Wright, 2013 WL 6253148,

at *5; Davenport, 2008 WL 1984259, at *4; Byers, 2010

WL 4818099, at *3; Coles, 894 F. Supp. 2d at 793.

Therefore, Plaintiff’s retaliation claim is subject to the

ADA’s administrative process. As discussed, that process

requires that before filing a lawsuit, an aggrieved individual

must first file an EEOC charge within 180 days of the

discriminatory conduct. Williams, 364 F. Supp. 3d at 601. If the

EEOC subsequently issues a right to sue notice, the aggrieved

individual must sue within ninety days. Id. at 604. Plaintiff

has not complied with this process. More than 180 days have

passed since the alleged retaliation occurred on February 18,

2020, and likewise, more than ninety days have passed since the

EEOC issued Plaintiff her right to sue notice on March 6, 2020.

Thus, Plaintiff’s retaliation claim, insofar as it is based on

the ADA, is untimely and must therefore be dismissed as a matter

of law.

2. NCEEPA

Defendant argues that if Plaintiff’s retaliation claim is

based on NCEEPA, then it must be dismissed because “courts have

found that the statute does not, as a matter of law, ‘create a

private right of action for retaliation or provide a source of

public policy concerning retaliation.’” (Def.’s Br. (Doc. 8) at

7 (emphasis omitted) (quoting Swann v. Source One Staffing

Sols., 778 F. Supp. 2d 611, 622 (E.D.N.C. 2011)).) Plaintiff

acknowledges this adverse precedent but claims that it is merely

federal courts “forecasting North Carolina law, not published

decisions of the North Carolina appellate courts.” (Pl.’s Resp.

(Doc. 12) at 9.) Plaintiff maintains that the federal courts

have forecasted North Carolina law incorrectly because the

“North Carolina courts, if faced with this question directly”

“would recognize a claim of retaliatory discharge in violation

of the federally-protected activity of filing a charge of

discrimination with the EEOC.” (Id. at 10.)

Because federal courts’ interpretation of North Carolina

law on this issue has been repeated, unequivocal, and well-

reasoned, this court is unwilling to find that NCEEPA provides a

cause of action to pursue a retaliation claim. “Such extension

should come, if at all, from the North Carolina courts.” Wray v.

N. Telecom, Inc., No. CIV. 1:93CV00120, 1995 WL 945825, at *7

(M.D.N.C. Jan. 27, 1995). The Fourth Circuit has repeatedly

concluded as much. Jones v. Duke Energy Corp., 43 F. App’x 599,

600 (4th Cir. 2002) (“North Carolina courts and federal courts

applying North Carolina law have . . . f[ound] repeatedly that

no private cause of action exists for retaliation . . . in

violation of public policy. We decline to expand the provisions

of the NCEEPA[.]”); McLean v. Patten Cmtys., Inc., 332 F.3d 714,

719 (4th Cir. 2003) (“[T]here is no private right of action

under North Carolina law for retaliation under § 143–422.2.”).

So too have our peer courts in the other two North Carolina

federal districts. E.g., Sempowich v. Tactile Sys. Tech., Inc.,

No. 5:18-CV-488-D, 2020 WL 6265076, at *24 (E.D.N.C. Oct. 23,

2020) (“Section 143-422.2 does not create a private right of

action for retaliation or provide a source of public policy

concerning retaliation.” (citations omitted)), appeal docketed,

No. 20-2245 (4th Cir. Nov. 20, 2020); Safari v. Cooper Wiring

Devises, Inc., No. 3:11-CV-12-RJC-DSC, 2012 WL 1247149, at *4

(W.D.N.C. Apr. 13, 2012) (same). Courts in this district are in

accord. E.g., Wray, 1995 WL 945825, at *7 (“[T]o the extent that

Plaintiff seeks to pursue a state-law claim for retaliation,

that claim will be dismissed because section 143–422.2 does not

express any public policy concerning retaliation for opposition

to discriminatory practices. No North Carolina court has

extended the public-policy exception to include a claim for

discharge in retaliation for complaining about discriminatory

employment practices.” (internal citation omitted)). Indeed,

Wray explains why reading a retaliation claim into NCEEPA is

inappropriate:

The North Carolina General Assembly recently

demonstrated awareness of its ability to address

retaliatory employment actions by enacting Article 21

of Chapter 95 of the North Carolina General Statutes.

N.C. Gen. Stat. §§ 95-240 to -244 (Supp. 1992),

provides a cause of action for employees retaliated

against for taking various actions related to . . .

the Occupational Safety and Health Act . . . . If the

General Assembly had desired to state a public policy

to provide employees with a cause of action for

retaliatory discharge in relation to discriminatory

employment practices, it could have easily done so.

Id. at *7 n.1. Moreover, this court, as recently as last year,

concluded that “[d]espite Plaintiff’s arguments to the contrary,

North Carolina courts and federal courts applying North Carolina

law have repeatedly found that ‘no private cause of action

exists for retaliation . . . in violation of public policy.’”

Schmitz v. Alamance-Burlington Bd. of Educ., No. 1:18CV910, 2020

WL 924545, at *14 (M.D.N.C. Feb. 26, 2020) (quoting Jones, 43

F. App’x at 600). In light of this overwhelming authority, this

court declines to “expand the provisions of the NCEEPA,” Jones,

43 F. App’x at 600, to provide a source of public policy

concerning retaliation and thus will dismiss Plaintiff’s

retaliation claim insofar as it is based on that statute.

C. Third Claim: Punitive Damages

Defendant argues that because Plaintiff “has failed to

state a plausible claim for relief under the two underlying

claims, Plaintiff’s punitive damages claim must likewise be

dismissed.” (Def.’s Br. (Doc. 8) at 9.) However, this court has

found that Plaintiff sufficiently stated a wrongful discharge

disability discrimination claim. Supra Part IV.A. Therefore, at

this time, Plaintiff’s request for punitive damages will not be

dismissed.

Vv. CONCLUSION

For the foregoing reasons,

IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss,

(Doc. 7), 1s GRANTED IN PART and DENIED IN PART. The Motion is

GRANTED with regard to Plaintiff’s Second Claim for retaliation.

IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss,

(Doc. 7), is DENIED with regard to Plaintiff’s First Claim for

wrongful discharge in violation of public policy based on

disability discrimination and Plaintiff’s Third Claim for

punitive damages.

This the 3rd day of December, 2021.

*

LS Wi un L. Mabe. □

‘United States District Ju

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