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Kelly v. QVC

United States District Court, D. South Carolina, Florence Division

January 14, 2019

Marcus D. Kelly, Plaintiff,
v.
QVC, Defendant.

          REPORT AND RECOMMENDATION

          Kaymani D. West, United States Magistrate Judge

         Plaintiff Marcus D. Kelly (“Kelly” or “Plaintiff”), proceeding pro se, filed this employment action against his former employer, QVC (“QVC” or “Defendant”), as well as several individuals and another corporation. See Original Compl., ECF No. 1-2.[1] All Defendants other than QVC were summarily dismissed. See ECF No. 34.[2] Upon having been served, QVC filed a Motion to Dismiss, ECF No. 26, in which it sought to dismiss all claims pending against it either for failure to exhaust administrative remedies or for failure to state a claim. In an order dated July 6, 2018, the court dismissed Plaintiff's claims of “retaliation and discrimination based on national origin, religion, and disability (specifically, Plaintiffs claims of (a) retaliation under Title VII [of the Civil Rights Act of 1964], the ADA [Americans with Disabilities Act], and the ADEA [Age Discrimination in Employment Act], (b) national origin and religion discrimination under Title VII, and (c) disability discrimination under the ADA), ” finding Plaintiff had failed to exhaust administrative remedies as to those claims. However, Plaintiff was given 15 days to file an amended complaint that cured deficiencies as to his “Title VII race, color, and gender/sex discrimination claims and his ADEA discrimination claims[.]” July 6, 2018 Order 7, ECF No. 45. The Order continued, “In the event Plaintiff does not file an amended complaint curing the deficiencies as to those claims within fifteen days, those claims shall be dismissed without prejudice. In the event Plaintiff files an amended complaint as to those claims, the matter shall be recommitted to the Magistrate Judge for further pretrial handling.” Id. In response to Plaintiff's request for a six-month extension to file the permitted amended complaint, the court advised Plaintiff he would be permitted until August 9, 2018, to file any amended complaint. The court advised that no further extensions would be given. ECF No. 49.

         Plaintiff filed an Amended Complaint. ECF No. 52. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation (“R&R”) on Defendant's Motion to Dismiss the Amended Complaint. ECF No. 53. Because the motion to dismiss is dispositive, this R&R is entered for the district judge's consideration. Plaintiff opposes the Motion, ECF No. 57; Defendant has submitted a Reply, ECF No. 58. Having considered the filings, argument, and applicable law, the undersigned recommends Defendant's Motion to Dismiss, ECF No. 53, be granted, and that Plaintiff's Amended Complaint be dismissed without further leave to amend.

         I. Standard of review

         A. Rule 12(b)(6)

         Defendant moves to dismiss Plaintiff's Amended Complaint for failure to state a claim for relief. Fed.R.Civ.P. 12(b)(6).[3] “A motion filed under Rule 12(b)(6) challenges the legal sufficiency of a complaint.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). The court measures the legal sufficiency by determining whether the complaint meets the Rule 8 standards for a pleading. Id. The Supreme Court considered the issue of well-pleaded allegations, explaining the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief, ” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, 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. Factual allegations must be enough to raise a right to relief above the speculative level . . .

550 U.S. 544, 555 (2007) (internal citations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” (citing Twombly, 550 U.S. at 556)). When considering a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). The court is also to “‘draw all reasonable inferences in favor of the plaintiff.'” Kolon Indus., 637 F.3d at 440 (quoting Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)). Although a court must accept all facts alleged in the complaint as true, this is inapplicable to legal conclusions, and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). While legal conclusions can provide the framework of a complaint, factual allegations must support the complaint for it to survive a motion to dismiss. Id. at 679. Therefore, a pleading that provides only “labels and conclusions” or “naked assertion[s]” lacking “some further factual enhancement” will not satisfy the requisite pleading standard. Twombly, 550 U.S. at 555, 557. Further, the court “need not accept as true unwarranted inferences, unreasonable conclusions, or arguments.” E. Shore Mkts., Inc. v. J.D. Assocs., Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). At bottom, the court is mindful that a complaint “need only give the defendant fair notice of what the claim is and the grounds upon which it rests.” Coleman v. Md. Ct. of Apps., 626 F.3d 187, 190 (4th Cir. 2010) (internal quotation marks omitted).

         Further, “courts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). In deciding whether to dismiss a complaint under Rule 12(b)(6), a court may take judicial notice of its own records, as well as documents attached to the complaint and documents attached to the motion to dismiss that “are integral to the complaint and authentic.” Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).

         B. Pro se pleadings

         Pro se complaints are held to a less stringent standard than those drafted by attorneys, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d 62, 72 (4th Cir. 2016). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. De'Lonta v. Angelone, 330 F.3d 630, 630 n.1 (4th Cir. 2003). Nevertheless, the requirement of liberal construction does not mean that this court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990). Further, “a court may not act as [a pro se] litigant's advocate and construct legal arguments that the plaintiff has not made[.]” Warren v. Tri Tech Labs., Inc., 993 F.Supp.2d 609, 613 (W.D. Va.), aff'd, 580 Fed.Appx. 182 (4th Cir. 2014) (citing Brock v. Carroll, 107 F.3d 241, 242-43 (4th Cir. 1997) (Luttig, J., concurring); Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985)).

         II. Analysis

         A. Only claims subject to amendment will be considered

         As an initial matter, Defendant's Motion to Dismiss notes that Plaintiff's Amended Complaint includes some allegations that have already been dismissed for failure to exhaust administrative remedies. See Def. Mem. 1-2, 4-5. In responding to the Motion to Dismiss, Plaintiff does not specifically address this argument. Rather, he reiterates some of his unexhausted claims and baldly submits that he has “exhausted all administrative remedies.” Pl. Mem. 4.

         The court has already definitively ruled that Plaintiff has failed to administratively exhaust certain claims contained in his original Complaint. Those claims, “retaliation and discrimination based on national origin, religion, and disability (specifically, Plaintiffs claims of (a) retaliation under Title VII, the ADA, and the ADEA, (b) national origin and religion discrimination under Title VII, and (c) disability discrimination under the ADA), ” have been dismissed based on detailed legal review of the administrative charge Plaintiff filed with South Carolina Human Affairs Commission (“SHAC”) and Equal Employment Opportunity Commissioner (“EEOC”). See July 6, 2018 Order 3-4, 7, ECF No. 45; R&R 8-12, ECF No. 37; see also Charge of Discrimination, ECF No. 26-1.

         Importantly, those claims have been dismissed without giving Plaintiff an opportunity to amend his pleading to resubmit such claims. July 6, 2018 Order 7. The court found “amendment would be futile as to these administratively unexhausted claims, and therefore leave to amend them is not warranted.” Order 4-5 n.8 (citing several cases for the proposition that amendment as to claims not administratively exhausted would be futile and would not be permitted). This clear ruling notwithstanding, Plaintiff's Amended Complaint purports to include allegations as to “National Origin Discrimination, ” “Religion, ” “Disability Discrimination (ADA), ” and “Retaliation Discrimination.” See generally Am. Compl. To be clear, based upon the court's prior detailed rulings and determination that amendment would not be appropriate as to claims of “retaliation and discrimination based on national origin, religion, and disability (specifically, Plaintiffs claims of (a) retaliation under Title VII, the ADA, and the ADEA, (b) national origin and religion discrimination under Title VII, and (c) disability discrimination under the ADA), ” Order 7, to the extent Plaintiff's Amended Complaint includes any of these nonexhausted claims, no additional analysis is required.

         B. Claims subject to amendment

         As plainly explained in the court's July 6, 2018 Order, the only claims Plaintiff has been given leave to amend are his “Title VII race, color, and gender/sex discrimination claims and his ADEA discrimination claims[.]” July 6, 2018 Order 7, ECF No. 45. As the Order explained, as pleaded in his original Complaint, Plaintiff “alleges in conclusory fashion that he was terminated because of his race, color, gender/sex, and age, but it does not contain sufficient facts making those claims plausible.” Id. at 6 (citing Elliott v. Am. States Ins. Co., 883 F.3d 384, 395 (4th Cir. 2018)). The court permitted amendment as to his Title VII and ADEA discrimination claims, which Defendant did not contend had not been exhausted.

         As noted in considering the prior motion to dismiss, the “Particulars” of Plaintiff's Charge include ...


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