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Fisher v. Walgreens

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

March 28, 2019

WALGREENS, Defendant.



         THIS MATTER is before the Court on Remand from the United States Court of Appeals for the Fourth Circuit. Through its Opinion (#21) and by way of its Mandate (#22), the Appellate Court instructs this Court to determine whether plaintiff should be allowed another opportunity to amend her previously Amended Complaint as to the claims over which this Court had jurisdiction. If the Court determines that further amendment would not cure the defects, the Appellate Court instructs this Court to dismiss those claims with prejudice, rendering the order of dismissal a final, appealable order. In conformity with the instructions of the Fourth Circuit in its Opinion, the Court makes the following findings, conclusions, and determination that further amendment would not cure the previously identified defects.


         I. Background

         Inasmuch as the task on remand requires careful consideration of the claims and the facts alleged in support of those claims, the Court will review plaintiff's claims as expressed in her Amended Complaint.

         Prior to opening her own independent pharmacy, plaintiff worked for defendant as a pharmacist between 2004 and 2007.[1] While operating her own pharmacy, plaintiff's mother stole drugs from the business. When the theft was discovered, her mother was prosecuted, convicted, and incarcerated for the offense, and plaintiff, as manager of the pharmacy, received a consent disciplinary order from the North Carolina Board of Pharmacists (“NCBOP”) due to deficiencies in oversight. During this period, the independent pharmacy was sold. Plaintiff remained a licensed pharmacist.

         After her independent pharmacy closed, plaintiff sought and secured employment at Kerr Drugs. In 2013, defendant bought out Kerr Drugs and absorbed its employees. Thereafter, defendant's pharmacy supervisor discovered that plaintiff had worked for defendant in the past and that plaintiff's mother had been convicted of stealing drugs from the plaintiff's pharmacy.

         A meeting was called in December 2014, at which plaintiff, the pharmacy supervisor, and two other managers. According to plaintiff, the two other managers accused her of being an addict and a thief and alleged that she was not following North Carolina law concerning emergency refills. Plaintiff contends that they already knew she was following the law and that, as to personal allegations, they backed off of those when she offered to submit to a drug test and polygraph. Plaintiff contends that defendant's management employees then shifted their criticisms to plaintiff's professional demeanor. One manager told plaintiff she seemed unfriendly while she was working, that she had not been successful working for defendant previously, and that she “would not make it this time.” Am. Compl. at 4. Plaintiff reports that she responded to this line of attack by stating that she might seem unfriendly due to her hearing disability and that the manager had known about her hearing and previously told plaintiff to inform her coworkers at each store she worked at about her hearing. Plaintiff contends that this manager then criticized her for referring to herself as a ‘floater' while working. Plaintiff explained that she worked at various pharmacies owned by Defendant and used the “floater” terminology to make conversation with customers and to explain to them why she did not always know where specific medications were stored. This same manager then criticized plaintiff for not working as a cashier or clerk enough, but plaintiff countered that she was working as a cashier and clerk regularly. Plaintiff admitted that she did not liking working the drive-through window due to her hearing impairment. As a result of the December 2014 meeting, plaintiff contends that this manager would thereafter scrutinize her work, creating what she described as a hostile work environment. Am. Compl. at 4.

         The following year, from March 2015 to May 2015, plaintiff alleges that she was watched for her use of the term ‘floater' while she worked. Management also required her pharmacy manager to verify that plaintiff was following state law concerning emergency refills and when she found out about this oversight, plaintiff again told management that she had been complying with state law.

         Later that year in August, plaintiff was required to attend a second meeting with management. When she asked whether she could bring her lawyer with her, plaintiff contends that management told her that it was against company policy. During that meeting, two member of management asked plaintiff if her mother was still incarcerated, and plaintiff told them no. These managers then again accused plaintiff of not following North Carolina law regarding filling emergency medical prescriptions. Plaintiff responded that she followed the same procedures as two other pharmacists. Plaintiff then contends that the managers accused her of poaching employees the last time she left defendant to start her independent pharmacy, which plaintiff also disputed. She contends that it was at this point that the managers asked her to resign. Plaintiff then asked if they were going to fire her and, after evading that question, they reiterated that it would be better if plaintiff resigned. She contends that the managers wanted her to resign so defendant would not have to pay unemployment. Plaintiff contends that as a result of the August 215 meeting, she felt devastated and “shell shocked.” Am. Compl. at 12.

         Later that month, one of the managers asked plaintiff to meet with him at his office. On August 25, 2015, the manager terminated plaintiff's employment with defendant. The reason given for that employment action was that she was not following North Carolina law. Plaintiff contends that the manager did not want to terminate plaintiff over the phone or by mail. She further contends that driving to Lenoir was an inconvenience and she would have preferred being terminated another way. Plaintiff alleges that in response to the firing, she told the manager that she would be filing a lawsuit.

         Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on February 2, 2016.

         II. Discussion

         A. Dismissal Under Rule 12(b)(1): Lack of Subject Matter Jurisdiction

         Rule 12(b)(1) provides for dismissal where the Court lacks jurisdiction over the subject matter of the lawsuit or claim. Lack of subject-matter jurisdiction may be raised at any time either by a litigant or the court. Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884). The ability of the court to independently address subject-matter jurisdiction is important to finality inasmuch as a litigant, even one who remains silent on the issue of jurisdiction, may wait until they receive an adverse judgment from a district court and raise the issue of subject-matter jurisdiction for the first time on appeal, thereby voiding the judgment. Capron v. Van Noorden, 2 Cranch 126, 127, 2 L.Ed. 229 (1804). The Federal Rules of Civil Procedure anticipate this issue and provide that “[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” Fed.R.Civ.P. 12(h)(3). When a court considers its subject-matter jurisdiction, the burden of proof is on the plaintiff. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). While the Memorandum and Recommendation of the Honorable Dennis L. Howell, United States Magistrate Judge (now retired), does not mention Rule 12(b)(1), [2] and only briefly discusses plaintiff's failure to exhaust at page eight of his opinion, it is clear that this Court lacks subject-matter jurisdiction over plaintiff's claims asserted under Title VII in Counts I through VI.

         In Counts I, II, III, IV, V, and VI of the Amended Complaint, plaintiff alleges that defendant violated Title VII with respect to her employment.[3] Before bringing a civil suit under Title VII, a litigant must first file an administrative charge with the EEOC. Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009) (citing 42 U.S.C.A. § 2000e-5(f)(1)). “Before a plaintiff has standing to file suit under Title VII, he must exhaust his administrative remedies by filing a charge with the EEOC.” Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132 (4th Cir. 2002). The scope of the EEOC charge defines the scope of any ensuing lawsuit. Id. The Fourth Circuit has held that “[o]nly those discrimination claims stated in the initial charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint may be maintained in a subsequent Title VII lawsuit.” Evans v. Technologies Applications & Service, Co., 80 F.3d 954, 963 (4th Cir. 1994).

         In the Charge, plaintiff checked the boxes for “retaliation” and “disability.” See Def. Ex. 1. She did not check any boxes for characteristics protected under Title VII. Id. In the “particulars” section of the Charge, plaintiff alleged that she was subjected to a “hostile work environment” because of her “association with a disabled family member” and “regarded as disabled.” Id. Plaintiff's Charge concluded by stating: “I believe I have been discriminated against because of a disability and for opposing practices in violation of Title I of the Americans with Disabilities Act of 1990.” Id. Plaintiff failed to make allegations in the “particulars” section of the Charge relating to any type of discrimination protected by Title VII. Id. As a result, plaintiff failed to exhaust her administrative remedies under Title VII. In making that determination, the Court looked to the factual allegations and the narrative to determine whether the charges raised in this Court have been fairly presented in the administrative process. Howell v. N. Carolina Cent. Univ., No. 1:16CV576, 2017 WL 2861133, at *6 (M.D. N.C. July 5, 2017). Finding that they were not fairly presented, this Court dismissed those claims as it had no subject-matter jurisdiction over the Title VII claims in Counts I through VI.

         B. Dismissal Under Rule 12(b)(6): Failure to State a Claim

         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 plausib ...

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