Garner v. Lowes RDC 0960

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

STATESVILLE DIVISION

CIVIL ACTION NO. 5:21-CV-00121-KDB-DCK

CESSERNA LAVERNE

GARNER,

Plaintiff,

v. ORDER

LOWES RDC 0960,

Defendant.

THIS MATTER is before the Court on Defendant Lowe’s RDC 0960’s (“Lowe’s”)1

Motion to Dismiss (Doc. No. 9). Plaintiff, who is not represented by an attorney, has not responded

to the motion; however, the Court has still carefully considered the merits of the motion based on

the full record in addition to Lowe’s memorandum of law in support of its motion. For the reasons

discussed below, the Court will GRANT the motion.

I. LEGAL STANDARD

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for “failure to state a

claim upon which relief can be granted” tests whether the complaint is legally and factually

sufficient. See Fed. R. Civ. P. 12(b)(6); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th

Cir. 2010), aff'd, 566 U.S. 30 (2012). A complaint must only contain “sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Id. Thus, a motion to dismiss

1 Lowes RDC 0960 is the regional distribution center where Plaintiff works for Lowe’s Home

Centers, LLC. The Court will simply refer to the Defendant as “Lowe’s” for the purposes of this

Order.

under Rule 12(b)(6) determines only whether a claim is stated; “it does not resolve contests

surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party v.

Martin, 980 F.2d 943, 952 (4th Cir. 1992).

In evaluating whether a claim is sufficiently stated, “[the] court accepts all well-pled facts

as true and construes these facts in the light most favorable to the plaintiff,” but does not consider

“legal conclusions, elements of a cause of action, ... bare assertions devoid of further factual

enhancement[,] ... unwarranted inferences, unreasonable conclusions, or arguments.” Nemet

Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). Further, a court

is not bound to “accept as true allegations that contradict matters properly subject to judicial notice

or by exhibit.” Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002); see also Miller v. Pacific Shore

Funding, 224 F.Supp.2d 977, 984 n.1 (D. Md. 2002) (“When the bare allegations of the complaint

conflict with any exhibits or documents, whether attached or adopted by reference, the exhibits or

documents prevail”) (citing Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462,

1465 (4th Cir. 1991)); Sec'y of State for Defense v. Trimble Navigation Ltd., 484 F.3d 700, 705

(4th Cir. 2007).

Also, in reviewing Defendant's motion, the Court is mindful that pro se filings are held “to

less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S.

519, 520 (1972). However, Plaintiff’s pro se status does not relieve her of the burden of sufficiently

stating a viable legal claim under the circumstances she has alleged.

II. FACTS AND PROCEDURAL HISTORY

Plaintiff Cesserna Garner is an employee of Lowe’s Home Centers, LLC. She began her

employment with Lowe’s in August 2005 as a forklift operator at the Lowe’s Regional

Distribution Center in Statesville, North Carolina. (Doc. No. 1 at 3-4.) She alleges that she was

an excellent worker who was a “7 year Platinum Performer.” In January 2021, Ms. Garner applied

for the Sweeper Machine Operator job, which was an open position in the “utility” department that

had been held for many years by a retiring white male employee. Ms. Garner was selected for the

sweeper machine position because of her seniority, but was disappointed when she was told by

“Brandon” (a white male “Coach over the Utility Department”) that he “was making changes in

the Utility Department” and that the sweeper job was going “in a full rotation.” That is, the

employees responsible for doing the sweeper machine job would also be required to do other tasks

including “to do trash.” Thereafter, sometime prior to February 22, 2021, Ms. Garner alleges that

she suffered a back injury doing the trash portion of her job.

Plaintiff alleges that her back injury was the result of the “Discrimination and Unfair

Treatment [she] was subjected to … by being denied the open Sweeper job.” Liberally construing

the Complaint in the light most favorable to Ms. Garner, the Court interprets this allegation as

contending that even though she was (in part) given the sweeper machine job, she was denied the

opportunity to hold the sweeper machine job as a single assignment as it had been previously

performed by a white male employee. Further, Ms. Garner alleges that she was the first female in

the utility department to be required to work “a full rotation” and that white females in the utility

department were not assigned trash duty. Finally, Ms. Garner asserts that as of January 25, 2021

she had not been trained on the sweeper machine.

Ms. Garner filed an EEOC complaint about these issues on May 20, 2021 and subsequently

received a right to sue letter from the agency. She then timely filed this action asserting a claim

against Lowe’s for violation of Title VII of the Civil Rights Act of 1964, specifically complaining

that Lowe’s subjected her to “unequal terms and conditions of employment” and “discrimination

by race and gender.”

III. DISCUSSION

To state a claim for race or sex discrimination, Plaintiff must allege that: (1) she is a

member of a protected class; (2) she had satisfactory job performance; (3) Lowe’s subjected her

to an adverse employment action; and (4) Lowe’s treated similarly situated employees outside of

her protected class more favorably than Plaintiff was treated. See Coleman v. Md. Court of

Appeals, 626 F.3d 187, 190 (4th Cir. 2010). Lowe’s challenge to the Complaint relates only to the

third requirement. It claims Ms. Garner has failed to establish that she has suffered “an adverse

employment action” as defined under Title VII. While Ms. Garner may well have preferred that

the sweeper machine operator job remain a single assignment, Lowe’s decision to “make changes

in the Utility Department,” including putting the sweeper machine operator job in a rotation with

other jobs, does not constitute an adverse employment action. Therefore, Ms. Garner has failed to

state a viable claim for either race or gender discrimination.

“[An] adverse employment action is ‘an absolute precondition’ to an employment

discrimination suit.” Batten v. Grand Strand Dermatology, LLC, No. 4:18-cv-0616-MGL-TER,

2019 WL 9667692, at *6 (D.S.C. Dec. 20, 2019) (quoting Bristow v. Daily Press, Inc., 770 F.2d

1251, 1255 (4th Cir. 1985)). However, not every personnel decision constitutes

an adverse employment action for purposes of a discrimination claim. Thorn v. Sebelius, 766 F.

Supp. 2d 585, 599 (D. Md. 2011), aff'd, 465 F. App'x 274 (4th Cir. 2012) (“[N]ot everything that

makes an employee unhappy is actionable adverse action.”). Rather, an adverse employment action

is explicitly limited to those actions that affect employment or alter the conditions of the

workplace. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006).

In other words, an alleged discriminatory act must “adversely affect[ ] the terms,

conditions, or benefits of the plaintiff's employment.” Holland v. Washington Homes, Inc., 487

F.3d 208, 219 (4th Cir. 2007) (internal quotation omitted); Wilson v. City of Chesapeake, 290 F.

Supp. 3d 444, 457 (E.D. Va.), aff'd, 738 F. App'x 169 (4th Cir. 2018). In the typical case for

employment discrimination, an adverse employment action comes in the form of “an ultimate

employment decision,” i.e. hiring, firing, demotion, or nonselection for promotion. See Peary v.

Goss, 365 F.Supp.2d 713, 722 (E.D. Va. 2005) (citing Von Gunten v. Maryland, 243 F.3d 858,

865 (4th Cir. 2001), rev'd on other grounds, Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.

53 (2006)). But less severe action may qualify as an adverse employment action if it “adversely

affected ‘the terms, conditions, or benefits’ of the plaintiff's employment.” Von Gunten, 243 F.3d

at 865 (citing Munday v. Waste Mgmt. of North America, Inc., 126 F.3d 239, 242 (4th Cir. 1997)).

Simply because an employee finds a decision by her employer unappealing does not make

that decision a qualifying adverse employment action. For instance, a reassignment to a different

department or to different job duties typically does not amount to an adverse employment action.

See Holland v. Wash. Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007) (“The mere fact that a new

job assignment is less appealing to the employee [] does not constitute adverse employment

action.”) (citation and internal quotations omitted). Further, a delay in training – without any

allegation of how it significantly impacted the employee – similarly would be unlikely to be

considered an adverse employment action. See, e.g., Jensen-Graf v. Chesapeake Emp’rs’ Ins. Co.,

616 F. App’x 596, 598 (4th Cir. 2015) (denial of training course not adverse action when plaintiff

pled no facts indicating whether course was required for her professional development or

showing how she was harmed by denial).

In this action, Ms. Garner has clearly alleged that she was unhappy (and perhaps

understandably so) with Lowe’s decision to make changes in the sweeper operator position that

required her to perform trash duty, which in turn led to a back injury. However, under the well-

established Title VII principles and precedents discussed above, requiring employees who run the

sweeper machine to also perform other tasks in a “rotation” does not, as a matter of law, constitute

an adverse employment action. Similarly, Plaintiffs allegations that her training on the sweeper

machine was delayed does not establish an adverse employment action. Therefore, Ms. Garner has

failed to state a claim under Title VII.”

IV. ORDER

NOW THEREFORE IT IS ORDERED THAT:

1. Defendant’s Motion to Dismiss (Doc. No. 9) is GRANTED; and

2. The Clerk is directed to close this matter in accordance with this Order.

SO ORDERED ADJUDGED AND DECREED.

Signed: March 4, 2022

Kenneth D. Bell Cy,

United States District Judge i f

To be clear, if Plaintiff had alleged, which she has not, that black employees were subjected to

disparate treatment because only black employees were required to perform trash duty or that

Lowe’s changes in the Utility Department only disadvantaged black or female employees then her

claims would require additional scrutiny. However, as plead, Plaintiffs allegations fail to state a

claim for the reasons discussed.