CASEY v. BRENNAN

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ANITA SHERELLE CASEY, )

)

Plaintiff, )

)

v. ) 1:19CV1204

)

MEGAN J. BRENNAN,1 Postmaster )

General, United States Postal )

Service, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Presently before this court is Defendant Megan J. Brennan’s

(“Brennan” or “Defendant”) Motion to Dismiss, (Doc. 10), for

failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6).

Plaintiff Anita Sherelle Casey (“Casey” or “Plaintiff”) is

proceeding pro se. Plaintiff alleges discrimination in

employment in her Complaint, (Complaint (“Compl.”) Doc. 2),

including claims of discrimination under Title VII, 42 U.S.C.

§ 2000e et seq., Age Discrimination under 29 U.S.C. § 621, and a

violation of the Americans with Disabilities Act, 42 U.S.C.

§ 12112 et seq. (Id. at 3.) The Clerk issued a Roseboro notice

1 The correct spelling of Defendant’s first name is Megan.

The case caption is hereby amended to reflect the correct

spelling.

to Plaintiff advising of her right to respond and of the fact

that a failure to respond would likely result in dismissal.

(Doc. 12.) In spite of that warning, Plaintiff has not responded

to the motion to dismiss. The motion to dismiss is now ripe.

After careful review, this court finds the motion to

dismiss should be granted.

I. STATEMENT OF THE FACTS

According to the Complaint, Plaintiff is an African

American woman with an alleged disability of “chronic

mentruation [sic] cramps and chronic headaches.” (Compl. (Doc.

2) at 4.)2 The allegations of the Complaint are somewhat

confusing. Although it is not clearly stated, this court finds

Plaintiff was employed by the United States Postal Service.

Plaintiff alleges various forms of discrimination based on her

age, race, color, and sex; as well as retaliation under Title

VII and a failure to accommodate. The complained-of acts are

alleged to have occurred between August 12, 2016 and September

14, 2016. (Id.)

Plaintiff turned in medical documentation from her

neurologist stating Plaintiff should not work third shift “to

2 All citations in this Memorandum Opinion and Order to

documents filed with the court refer to the page numbers located

at the bottom right-hand corner of the documents as they appear

on CM/ECF.

help with” her migraines. (Id. at 7.) Plaintiff contends that on

June 6, 2016, the day she turned in this documentation, she was

advised that she had to proceed with her request through the

District Reasonable Accommodation Committee. (Id.) Plaintiff

contends she was offered a change of hours, but that offer was

“not based on [her] doctor’s time period.” (Id.) Plaintiff

rejected that offer, and on August 25, 2016, “started an EEO

process.” (Id.) Plaintiff alleges she was discriminated against

“because other employees/co-workers were granted their changes

of schedule.” (Id.)

Plaintiff further alleges that on September 14, 2016, she

participated in a disciplinary meeting with an Attendance

Control employee and Plaintiff’s union representative. (Id. at

10.) The purpose of the meeting was to investigate Plaintiff’s

absences and related issues. (Id.) According to Plaintiff, Jeff

Major interrupted the meeting by “blast[ing]” the Attendance

Control employee for allowing the union representative to

attend, upsetting both the union representative and Plaintiff.

(Id.)

This court has also reviewed the Decision of the Equal

Employment Opportunity Commission (“EEOC”) on Request for

Reconsideration (“Reconsideration Order”) attached to the

Complaint in an effort to construe Plaintiff’s allegations.

(Doc. 2-1.) The facts set out in the Reconsideration Order are

consistent with the allegations of the Complaint but do not add

any additional details which might support Plaintiff’s claims.

According to the Reconsideration Order, Plaintiff’s original

complaint to the EEOC alleged that Plaintiff requested a

schedule change in 2016 because of “debilitating conditions” and

a medical recommendation of assignment to another shift. (Id. at

1.) Further, the Reconsideration Order indicates that

Plaintiff’s supervisor referred Plaintiff to the District

Reasonable Accommodation Committee; Plaintiff was then offered a

Tour III shift which she refused. (Id. at 3.) Plaintiff secured

a Tour II shift that she accepted. (Id.)

II. ANALYSIS

Under the Local Rules of the Middle District of North

Carolina, if a party fails respond to a motion “within the time

required by this rule, the motion will be considered and decided

as an uncontested motion, and ordinarily will be granted without

further notice.” LR 7.3(k). Plaintiff’s failure to respond to

the motion to dismiss after a letter warning of potential

consequences, (see Doc. 12), merits the granting of Defendant’s

motion.

Nevertheless, even though Plaintiff has failed to respond,

this court “has an obligation to review the motions to ensure

that dismissal is proper.” Stevenson v. City of Seat Pleasant,

743 F.3d 411, 416 n.3 (4th Cir. 2014) (citing Pomerleau v. W.

Springfield Pub. Schs., 362 F.3d 143, 145 (1st Cir. 2004)).

When deciding a 12(b)(6) motion, the mere fact that a

motion to dismiss is unopposed does not relieve the

district court of the obligation to examine the

complaint itself to see whether it is formally

sufficient to state a claim. This obligation means

that a court may not automatically treat a failure to

respond to a 12(b)(6) motion as a procedural default.

Pomerleau, 362 F.3d at 145 (internal quotation marks omitted).

“To survive a 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 facially plausible if the

plaintiff provides enough factual content to allow the court to

reasonably infer that the defendant is liable for the alleged

misconduct. Id. The pleading setting forth the claim must be

“liberally construed” in the light most favorable to the

nonmoving party, and allegations made therein are taken as true.

Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, the

“requirement of liberal construction does not mean that the

court can ignore a clear failure in the pleadings to allege any

facts [that] set forth a claim.” Estate of Williams-Moore v.

Alliance One Receivables Mgmt., Inc., 335 F. Supp. 2d 636, 646

(M.D.N.C. 2004). The court must separate out allegations not

entitled to the assumption of truth, including conclusory

allegations and bare assertions amounting to a “formulaic

recitation of the elements[,]” to determine whether the factual

allegations, taken as true, “plausibly suggest an entitlement to

relief.” Iqbal, 556 U.S. at 680-81.

“A document filed pro se is ‘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.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(citations omitted). Nevertheless, liberal construction of a

pro se complaint does not “undermine Twombly’s requirement that

a pleading contain ‘more than labels and conclusions[.]’”

Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008)

(citation omitted).

A. Title VII and Age Discrimination Claims

Employment discrimination complaints must meet the

plausibility standard; however, the plaintiff is not required to

make out a prima facie case of discrimination or satisfy any

heightened pleading requirements at the motion to dismiss stage.

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002); McCleary-

Evans v. Md. Dep’t of Transp., 780 F.3d 582, 584–85 (4th Cir.

2015). The plaintiff need only plead facts that permit the court

to reasonably infer each element of the prima facie case under

Title VII. McCleary-Evans, 780 F.3d at 585; see also Coleman v.

Md. Ct. Appeals, 626 F.3d 187, 191 (4th Cir. 2010) (stating that

a complaint must “assert facts establishing the plausibility”

that plaintiff was terminated based on race). If a plaintiff

makes such a showing, the claim will usually survive a motion to

dismiss, and the burden then shifts to the defendant to provide

a legitimate, nondiscriminatory reason for the disparate

treatment. See McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802 (1973).

1. Legal Standard

Plaintiff alleges discrimination based on race, color, and

sex, as well as retaliation, all under Title VII. (Doc. 2 at 4.)

Plaintiff does not allege direct evidence of discrimination.

See, e.g., Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 249

(4th Cir. 2015) (“Plaintiffs may prove these violations either

through direct and indirect evidence . . . or through the

burden-shifting framework of McDonnell Douglas . . . .”). In the

absence of direct evidence,

“a plaintiff may prove unlawful discrimination under

the burden-shifting framework established in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817,

36 L.Ed.2d 668 (1973).” Lee [v. Wade, No. 3:15CV37],

2015 WL 5147067, at *3 [E.D. Va. Aug. 31, 2015]. “To

establish a prima facie case of race discrimination

under McDonnell Douglas, a plaintiff must demonstrate

‘(1) membership in a protected class; (2) satisfactory

job performance; (3) adverse employment action; and

(4) different treatment from similarly situated

employees outside the protected class.’” Goode v.

Cent. Virginia Legal Aid Soc'y, Inc., 807 F.3d 619,

626 (4th Cir. 2015) (quoting Coleman v. Maryland Court

of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd

sub nom. Coleman v. Court of Appeals of Maryland, 566

U.S. 30, 132 S. Ct. 1327, 182 L.Ed.2d 296 (2012)).

Hinton v. Virginia Union Univ., 185 F. Supp. 3d 807, 817–18

(E.D. Va. 2016). Title VII’s anti-retaliation provision requires

proof of a materially adverse action taken against the employee.

Id. Additionally, Plaintiff must allege facts sufficient to

establish that any such adverse employment action was due to her

age, race, or sex. 42 U.S.C. § 2000e-2(a)(1); McCleary-Evans,

780 F.3d at 586.

Similarly, to state a claim for age discrimination under

the Age Discrimination in Employment Act of 1967 (“ADEA”),

Plaintiff must plausibly allege that “she is a member of the

ADEA’s protected group, that she suffered an adverse employment

action, and that her employer took that action against her

because of her age.” Boney v. Trs. of Cape Fear Cmty. Coll., 366

F. Supp. 3d 756, 762-63 (E.D.N.C. 2019).

Defendant argues that Plaintiff has failed to plausibly

allege an adverse employment action under Title VII. This court

agrees.

“An adverse employment action is a discriminatory

act which adversely affects the terms, conditions, or

benefits of the plaintiff's employment. Conduct short

of ultimate employment decisions can constitute

adverse employment action.” [James v. Booz-Allen &

Hamilton, Inc., 368 F.3d 371] 375–76 [4th Cir. 2004]

(internal citation, footnote, and quotation marks

omitted). “A tangible employment action constitutes a

significant change in employment status, such as

hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a

decision causing a significant change in benefits.”

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761,

118 S. Ct. 2257, 141 L.Ed.2d 633 (1998) (emphasis

added).

Webster v. Rumsfeld, 156 F. App’x 571, 578 (4th Cir. 2005)

(emphasis in original). Plaintiff alleges two adverse employment

actions: (1) the failure to transfer her to the day shift, and

(2) the harsh words spoken during her meeting with the

Attendance Control employee.

The harsh words spoken during Plaintiff’s meeting with her

union representative and Attendance Control do not constitute an

adverse employment action. See Munday v. Waste Mgmt. of N. Am.,

Inc., 126 F.3d 239, 244 (4th Cir. 1997) (holding that an

employer's “yelling at [the plaintiff] during [a] meeting” did

not rise to the level of an adverse employment action for Title

VII purposes). It is well-established that “complaints premised

on nothing more than rude treatment by coworkers . . . are not

actionable under Title VII.” EEOC v. Sunbelt Rentals, Inc., 521

F.3d 306, 315-16 (4th Cir. 2008). While the statements may have

made Plaintiff uncomfortable, they did not result in any

significant change in Plaintiff’s employment status. See

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998).

Defendant’s refusal to grant the requested shift change is

also not an adverse employment action. See Edmonson v. Potter,

118 F. App’x 726, 729 (4th Cir. 2004). Although Plaintiff makes

conclusory allegations that the shift change request was

necessary to accommodate an alleged disability, and that the

failure to grant the change was discriminatory, the facts

alleged fall short for several reasons. First, Plaintiff has not

plausibly alleged whether Defendant extended a sufficient

accommodation. Plaintiff contends she was offered a change of

hours, but that offer was “not based on [her] doctor’s time

period.” (Compl. (Doc. 2) at 7.) Her doctor’s time period is

described as a recommendation for a shift other than the “third

shift,” but the change in hours provided is not described - nor

is it clear whether the change would adequately meet the

accommodation recommended by her doctor. (Id.) Plaintiff fails

to plausibly plead whether the offered accommodation was

insufficient according to medical advice, or simply according to

her own interpretation of the medical advice. Furthermore,

Plaintiff alleges she was discriminated against “because other

employees/co-workers were granted their changes of schedule.”

(Id.) However, Plaintiff offers no facts to explain why the

treatment of other employees gives rise to some inference of

discrimination or retaliation.

Second, when Plaintiff originally advised Defendant of the

need for a shift change on June 6, 2016, Plaintiff alleges that

she was advised that she had to proceed through the District

Reasonable Accommodation Committee. (Id.) Plaintiff does not

suggest this process was unreasonable, nor does she suggest this

was not applicable to all employees requesting a reasonable

accommodation for a disability. Plaintiff never alleges that she

proceeded through the committee as directed. Although Plaintiff

“need not plead a prima facie case of discrimination . . . to

survive [a] motion to dismiss,” Swierkiewicz, 534 U.S. at 515,

the Complaint must allege facts which plausibly establish an

adverse employment action. Beyond a conclusory allegation that

the modification to Plaintiff’s schedule was not “based” on the

doctor’s request, Plaintiff’s allegations require speculation to

“fill the gaps in her complaint.” McCleary-Evans, 780 F.3d at

586.

Finally, even if Plaintiff has alleged an adverse

employment action, Plaintiff has failed to plausibly allege such

an action was taken based on her age, race, color, or sex. The

allegations in the complaint must support a reasonable inference

that the decisionmakers were motivated by an unlawful bias. Id.

Plaintiff’s allegations are devoid of facts which might suggest

an adverse employment action was motivated by race, age, color,

or sex. Plaintiff alleges simply that “I feel I was

discriminated against because other employees/co-workers were

granted their changes of schedule.” (Compl. (Doc. 2) at 7.) The

actions alleged by Plaintiff may be consistent with

discrimination, but those allegations do “not alone support a

reasonable inference that the decisionmakers were motivated by

bias.” McCleary Evans, 780 F.3d at 586.

This court is therefore unable to find Plaintiff has

plausibly alleged facts which state, or permit a reasonable

inference of, an adverse employment action by Defendant.

Moreover, Plaintiff has failed to plausibly allege facts giving

rise to any reasonable inference that decisionmakers were

motivated by a discriminatory intent. Nor do the facts alleged

establish Defendant retaliated against Plaintiff as a result of

any protected activity.

B. Americans with Disabilities Act (“ADA”) Claim

Plaintiff also brings a claim under the Americans with

Disabilities Act, 42 U.S.C. §§ 12112, alleging Defendant failed

to accommodate her disability. (Compl. (Doc. 2) at 3-4.)

The ADA provides a cause of action to a qualified

individual with a disability whose employer fails to

make a reasonable accommodation to a known physical or

mental limitation unless the employer can demonstrate

that the requested accommodation would impose an undue

hardship. 42 U.S.C. § 12112(b)(5)(A).

EEOC v. Advanced Home Care, Inc., 305 F. Supp. 3d 672, 675

(M.D.N.C. 2018). A disability is “a physical or mental

impairment that substantially limits one or more major life

activities.” 42 U.S.C. § 12102. Although Plaintiff alleges her

impairments are “chronic mentruation [sic] cramps and chronic

headaches,” undoubtedly difficult medical conditions, (Compl.

(Doc. 2) at 4), the fact of those conditions alone is not

sufficient to plausibly allege that the conditions

“substantially limit one or more major life activities.”

Plaintiff alleges that the letter from her doctor stated that

Plaintiff should not work third shift to help with her

migraines. (Id. at 7) (emphasis added)). Plaintiff’s assertion,

without supporting facts, that she experiences chronic migraines

which would be “assist[ed]” by a different work schedule falls

far short of establishing a “physical . . . impairment that

substantially limits one or more major life activities.”

Crucially, “[i]t is not enough that an impairment affect a major

life activity; the plaintiff must proffer evidence from which a

reasonable inference can be drawn that such an activity is

substantially or materially limited.” Snow v. Ridgeview Med.

Ctr., 128 F.3d 1201, 1207 (8th Cir. 1997). This court finds

Plaintiff has failed to plausibly allege she was disabled as a

result of a “physical . . . impairment that substantially limits

one or more major life activities.”

Iv. CONCLUSION

For the reasons set forth herein, this court finds

Defendant’s Motion to Dismiss, (Doc. 10), should be granted and

Plaintiff’s Complaint, (Doc. 2), be dismissed.®

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

(Doc. 10), is GRANTED and this matter is DISMISSED WITH

PREJUDICE.

A judgment reflecting this Memorandum Opinion and Order

will be entered contemporaneously herewith.

This the 29th day of March, 2021.

LA; fir

LS Wi un L. S A ~

United States District Judg¢

3 This court agrees with the arguments of Defendant and, to

the extent those arguments are not addressed in this Memorandum

Opinion and Order, they are adopted as alternate grounds for

dismissal.

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