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Fisher v. Frontline National

United States District Court, W.D. North Carolina, Asheville Division

March 5, 2019



          Max O. Cogburn, Jr United States District Judge.

         THIS MATTER is before the Court on defendant's Motion to Dismiss. After this Court entered a Roseboro Order advising her of her right to respond, Order (#7), plaintiff filed a Response, to which defendant has filed a Reply, making the ripe for consideration.


         I. Background

         In this removed action, plaintiff contends that she was discriminated against in violation of the Americans with Disabilities Act when defendant refused to further consider her for employment as a pharmacist once it was discovered that she had entered into a consent order[1] with the North Carolina Board of Pharmacy. She does not, however, contend that she is being discriminated against based on any disability she has or is to perceived to have; rather, she contends that such is “associational discrimination.” The gist of her Complaint and argument is that her mother took narcotic controlled substances from the pharmacy plaintiff owned and that her mother was convicted of that offense. However, because he mother suffered from a disability that caused her to steal the drugs, her mother suffered from a disability. Thus, plaintiff contends and argues that defendant's decision not to further consider her application for employment as at committed by her mother against plaintiff's own pharmacy, to wit, the theft of narcotic controlled substances. She alleges, however, that such criminal acts were occasioned by her mother's disabilities and that defendant's subsequent decision to not consider her for employment as a pharmacist at a United States Army base violated the Americans with Disabilities Act due to associational discrimination. Plaintiff has also asserted pendent state law claims for defamation, negligent and intentional infliction of emotional distress, and tortious interference with prospective advantage (or prospective economic relations).

         II. Applicable Standard

         In determining whether a claim can survive a motion under Rule 12(b)(6), the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) that the “no set of facts” standard only describes the “breadth of opportunity to prove what an adequate complaint claims, not the minimum adequate pleading to govern a complaint's survival.” Id. at 563. The Court specifically rejected use of the “no set of facts” standard because such standard would improperly allow a “wholly conclusory statement of claim” to “survive a motion to dismiss whenever the pleadings left open the possibility that a plaintiff might later establish some ‘set of [undisclosed] facts' to support recovery.” Id. at 561 (alteration in original). Post Twombly, to survive a Rule 12(b)(6) motion to dismiss, a claimant must allege facts in his complaint that “raise a right to relief above the speculative level.” Id., at 555.

[A] plaintiff's obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do . . . .

Id. (second alteration in original; citation omitted). Further, a complaint will not survive Rule 12(b)(6) review where it contains “naked assertion[s] devoid of further factual enhancement.” Id., at 557. Instead, a claimant must plead sufficient facts to state a claim for relief that is “plausible on its face.” Id. at 570 (emphasis added).

         Post-Twombly, the Court revisited the Rule 12(b)(6) pleading standard in Ashcroft v. Iqbal, 556 U.S. 662 (2009). In Iqbal, the Court determined that Rule 8 “demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Id. at 678. The Court explained that, “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.'” Id. (citing Twombly, supra; emphasis added). What is plausible is defined by the Court:

[a] claim has facial plausibility when the plaintiff pleads sufficient factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.

Id. This “plausibility standard” requires “more than a sheer possibility that a defendant has acted unlawfully.” Id. Thus, a complaint falls short of the plausibility standard where a plaintiff pleads “facts that are ‘merely consistent with' a defendant's liability ....” Id. While the court accepts plausible factual allegations made in a claim as true and considers those facts in the light most favorable to plaintiff in ruling on a motion to dismiss, a court “need not accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Eastern Shore Mkt.'s Inc. v. J.D. Assoc.'s, LLP, 213 F.3d 175, 180 (4th Cir. 2000).

         In sum, when ruling on a Rule 12(b)(6) motion, “a judge must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citations omitted). A complaint “need only give the defendant fair notice of what the claim is and the grounds upon which it rests.” Id., at 93 (alteration and internal quotation marks omitted). However, to survive a motion to dismiss, the complaint must “state[ ] a plausible claim for relief” that “permit[s] the court to infer more than the mere possibility of misconduct” based upon “its judicial experience and common sense.” Iqbal, 129 S.Ct. at 1950. To survive a motion to dismiss, a plaintiff need not demonstrate that her right to relief is probable or that alternative explanations are less likely; rather, she must merely advance her claim “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. If her explanation is plausible, her complaint survives a motion to dismiss under Rule 12(b)(6), regardless of whether there is a more plausible alternative explanation. “[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007).

         Finally, pro se litigant's complaint must be liberally construed. Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d 62, 72 (4th Cir. 2016) (citing Jehovah v. Clarke, 798 F.3d 169, 176 (4th Cir. 2015)). “Nevertheless, the requirement of liberal construction does not mean that th[e] court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court.” Burns v. Dalton, 2017 WL 3491852, at *1 (D.S.C. July 28, 2017), report and recommendation adopted, 2017 WL 3493130 (D.S.C. Aug. 14, 2017) (citing Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990)). In reviewing a pro se complaint, “[a] court may not rewrite pleadings to include claims that were never presented, construct the plaintiff's legal arguments for her, or ‘conjure up questions never squarely presented.'” Jacobs v. IRS, No. CIV.A. 4:06-599, 2007 WL 895782, at *2 (D.S.C. Mar. 21, 2007), aff'd sub nom. Jacobs v. I.R.S., 234 Fed.Appx. 171 (4th Cir. 2007) (internal citations and quotations omitted). Likewise, the Court is “not obliged to ferret through a complaint, searching for viable claims.” Chitty v. Liberty Univ., 2013 WL 3877664, at *1, n.3 (W.D. Va. July 25, 2013) aff'd, 547 Fed.Appx. 299 (4th Cir. 2013) (citing Holsey v. Collins, 90 F.R.D. 122 (D. Md. 1981)).

         III. Discussion

         A. ADA Claim

         While the ADA does provide protection for those discriminated against based on their association with a person who is disabled or is perceived to be disabled, it does not provide protection for association with persons who simply have criminal records. In her Complaint and Response, plaintiff explains that her mother's crimes while employed at her pharmacy may have been the result of her mother suffering several strokes, which plaintiff believes affected her “both mentally and physically.” Complaint at 5. Plaintiff does not, however, allege that her mother was disabled or, most importantly, that defendant either knew or perceived her mother as disabled.

         Even when the Court construes the plaintiff's allegations liberally under Kerr, the Complaint remains devoid of any plausible contention that defendant either knew or perceived that plaintiff's mother suffered from a disability. Instead, the Complaint makes it clear that defendant decided to not further consider her for employment after it discovered the NCBOP consent order. That order, in turn, makes no mention of any ailments, conditions, or disabilities her mother may have suffered, only criminal misconduct which was aided by plaintiff's failure to implement controls and other mismanagement. There is absolutely no contention that defendant knew, had reason to know, or even perceived that plaintiff's mother was disabled. Indeed, not even an inference of such knowledge by defendant can be discerned because the only indicia of disability is found in plaintiff's own speculation that it may have been mental or physical illness which led to her mother's criminal conduct. There simply is no allegation that she shared such speculation with the defendant prior to defendant deciding to no longer consider plaintiff as a candidate. Thus, plaintiff's claim of discrimination is not supported by any plausible facts and must be dismissed.

         B. State Law Claims

         In addition to her federal ADA claim, plaintiff has alleged a number of supplemental state law claims. As to each state-law cause of action, plaintiff fails to plead sufficient facts to make any supplemental claim that is "plausible on its face," but again relies on her own conclusions or assumptions that she was not hired for discriminatory reasons. Khalik v. United Air Line, 671 F.3d 1188, 1193 (10th Cir. 2012). Conclusions unsupported by plausible ...

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