United States District Court, D. South Carolina
REPORT AND RECOMMENDATION (PARTIAL SUMMARY
Kaymani D. West, United States Magistrate Judge.
a civil action filed by a pro se litigant proceeding in
forma pauperis. Pursuant to 28 U.S.C. §636(b)(1),
and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), this magistrate
judge is authorized to review all pretrial matters in such
pro se cases and to submit findings and recommendations to
the district court.
Devon Vandiver (“Plaintiff”) alleges that he was
subjected to wrongful termination and gender discrimination
while working in the pharmacy of a Walmart Store in Anderson,
South Carolina. In addition to his employer, Walmart Stores,
Inc., Plaintiff names several supervisors/co-workers as
Defendants and asserts that each of them played a part in the
circumstances that ultimately led to the termination of his
employment. Plaintiff asserts that his Amended Complaint is
brought under Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e through 2000e-17, and seeks
compensatory and punitive damages.
Standard of Review
established local procedure in this judicial district, a
careful review has been made of the pro se Amended Complaint
pursuant to the procedural provisions of 28 U.S.C. §
1915. The review has been conducted in light of the following
precedents: Neitzke v. Williams, 490 U.S. 319,
324-25 (1989); Estelle v. Gamble, 429 U.S. 97
(1976); Haines v. Kerner, 404 U.S. 519 (1972);
Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).
Amended Complaint in this case was filed under 28 U.S.C.
§ 1915, which permits an indigent litigant to commence
an action in federal court without prepaying the
administrative costs of proceeding with the lawsuit. To
protect against possible abuses of this privilege, the
statute allows a district court to dismiss the case upon a
finding that the action “fails to state a claim on
which relief may be granted” or is “frivolous or
malicious.” 28 U.S.C. §1915(e)(2)(B)(I), (ii).
Hence, under 28 U.S.C. §1915(e)(2)(B), a claim based on
a meritless legal theory may be dismissed sua sponte.
Neitzke v. Williams, 490 U.S. 319 (1989).
court is required to liberally construe pro se pleadings,
Estelle v. Gamble, 429 U.S. at 97, holding them to a
less stringent standard than those drafted by attorneys,
Hughes v. Rowe, 449 U.S. 5 (1980). The mandated
liberal construction afforded pro se pleadings means that if
the court can reasonably read the pleadings to state a valid
claim on which the plaintiff could prevail, it should do so,
but a district court may not rewrite a pleading to
“conjure up questions never squarely presented”
to the court. Beaudett v. City of Hampton, 775 F.2d
1274, 1278 (4th Cir. 1985). The requirement of liberal
construction does not mean that the court can ignore a clear
failure in the pleading to allege facts which set forth a
claim currently cognizable in a federal district court.
Weller v. Dep't of Soc. Servs., 901 F.2d 387,
390-91 (4th Cir. 1990). Even under this less stringent
standard, however, the pro se Amended Complaint under review
in this case is subject to partial summary dismissal.
employment discrimination case should be partially dismissed
insofar as Plaintiff has named individual supervisors and
co-workers as Defendants. Defendants Kristen Swanson,
Quantinisha Grove, Eric Butler, Alvin Berry, Tanya Griggs,
and Joseph Conway were not Plaintiff's employer and there
are no allegations that any of them performed any type of
non-delegable duty in connection with Plaintiff's
employment at Walmart Stores, Inc. or with the termination of
that employment. The federal employment discrimination
statutes, including Title VII of the Civil Rights Act of
1964, generally, do not impose individual liability on
supervisors or co-employees accused of engaging in
discriminatory conduct. See, e.g., Silk v. City of
Chicago, 194 F.3d 788, 797 n.5 (7th Cir. 1999) (ADA, no
individual liability of supervisor for retaliation);
Haynes v. Williams, 88 F.3d 898 (10th Cir. 1996) (no
individual liability under Title VII); Mason v.
Stallings, 82 F.3d 1007, 1009 (11th Cir. 1996) (same;
ADA); Williams v. Banning, 72 F.3d 552 (7th Cir.
1995) (same; Title VII); Tomka v. Seiler Corp., 66
F.3d 1295 (2d Cir. 1995) (same); Gary v. Long, 59
F.3d 1391 (D.C. Cir. 1995) (same).
the Fourth Circuit slightly deviates from the general rule of
no co-worker/supervisor individual liability, it only does so
when the individual co-employee/supervisor wielded
significant control over the plaintiff and his or
her conduct resulted from the performance of a non-delegable
duty. See Birkbeck v. Marvel Lighting Corp., 30 F.3d
507 (4th Cir. 1994); Causey v. Balog, 929 F.Supp.
900 (D. Md. 1996), aff'd, 162 F.3d 795 (4th Cir.
1998); see also McNeal v. Montgomery Cnty., Md., 307
F.Appx. 766, 776 n.6 (4th Cir. 2009); Cortes v.
McDonald's Corp., 955 F.Supp. 531, 536-37 (E.D. N.C.
1996) (holding that supervisors making personnel decisions of
a plainly delegable character are not “employers”
as defined by the ADA); Stephens v. Kay Mgmt. Co.,
Inc., 907 F.Supp. 169, 171 (E.D. Va. 1995) (same and
listing cases applying Birkbeck to ADEA and Title
VII cases). Such circumstances are not present in
Plaintiff's Amended Complaint.
allegations about the involvement of Defendants Swanson,
Butler, Berry, Griggs, and Conway in alleged discrimination
and retaliation in performance evaluations, determination of
conditions required to be met for Plaintiff's continuing
employment, and investigation of Plaintiff's claims of
discrimination only show the performance by these Defendants
of clearly delegable duties generally performed by
supervisory personnel in large organizations such as Walmart
Stores, Inc. See Lissau v. S. Food Serv., Inc., 159
F.3d 177, 181 (4th Cir. 1998) (noting that “supervisors
are not liable in their individual capacities for Title VII
violations”); Norville v. Anne Arundel Cnty. Bd. of
Educ., No. Civ.A. MJG-99-764, 1999 WL 1267696 (D. Md.,
Nov 23, 1999) (“routinely delegated hiring, firing and
discipline decisions are the types of decisions contemplated
by the Fourth Circuit in Birbeck” fall outside
the exception to the general no individual liability rule).
allegations against Defendant Quantinisha Grove show only
that she was a co-worker, not that she performed any type of
non-delegable duty with regard to Plaintiff's employment.
As such, Plaintiff's allegations are clearly insufficient
to come within the limited exception to no-individual
liability in employment discrimination matters generally and