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Vandiver v. Swanson

United States District Court, D. South Carolina

February 13, 2018

Denzel Devon Vandiver, Plaintiff,
v.
Kristen Swanson; Quantinisha Grove; Eric Butler; Alvin Berry; Walmart Stores Inc.; Tanya Griggs, and Joseph Conway, Defendants.

          REPORT AND RECOMMENDATION (PARTIAL SUMMARY DISMISSAL)

          Kaymani D. West, United States Magistrate Judge.

         This is 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.

         I. Factual Background

         Denzel 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.

         II. Standard of Review

         Under 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).

         The 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).

         This 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.

         III. Discussion

         This 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).

         Although 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.

         Plaintiff's 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).

         Plaintiff's 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 ...


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