Free Motion to Dismiss for Failure to State a Claim - District Court of Delaware - Delaware

Case 1:04-cv-01469-SLR Document 17-5 Filed 08/05/2005 Page 1 of 3
,,»»>°"‘°’).
Not Reported in F.Supp.2d Page l
2004 WL 2283560 (D.Del.)
(Cite as: 2004 WL 2283560 (D.Del.))
After receiving the note, Wal-Mart allegedly
Motions, Pleadings and Filings informed Blair that she could sit down for that day,
but that the job of a "people greeter" was performed
Only the Westlaw citation is currently available. while standing. Blair alleges that approximately
fifteen to twenty minutes after she arrived home from
work that same evening, she received a call from
United States District Court, Wal-Mart informing her not to return to work until
D. Delaware. she could perform her job in the "right way." Blair
Rose M. BLAIR, Plaintiff, has not attempted to return to work for Wal-Mart
v. since the telephone conversation. Blair alleges that, at
WAL-MART STORES INC., Defendant. the time she was hired, Wal-Mart employed another
No. Civ.A. 03-717-GMS. "people greeter" who used a cane and sat in a
A wheelchair to perform her duties. Blair further alleges
Sept. 30, 2004. that her friends and family informed her that Wal-
Rose M. Blair, Ellendale, DE, pro se. Mart still employs a "people greeter" who performs
her duties in a wheelchair.
MEMORANDUM
On July 15, 2003 Blair filed a complaint with the
SLEET, J. court, pursuant to Title VII, 42 U.S.C. § 2000(e) et
seq., alleging that Wal-Mart discriminated against her
I. INTRODUCTION when it terminated her position because of her
disability.
*1 The plaintiff, Rose M. Blair ("Blair"), filed the
above captioned suit, pro se, against her former III. STANDARDS OF REVIEW |FN1|
employer, Wal-Mart Stores Inc. ("Wal-Mart"),
alleging that it violated Title VII of the Civil Rights EN; Because the plaintiff is a pro se
Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2, et litigant, the court has a special obligation to
seq., by discriminating against her because of her construe her complaint liberally. Zilch v.
disability. Presently before the court is Wal-Mart's Lucht, 981 F.2d 694, 694 (3d Cir.1992[
motion to dismiss Blair's complaint pursuant to (citing Haines v. Kerner, 404 U.S. 519, 520,
Federal Rules of Civil Procedure 12{b)(6) and 92 S.Ct. 594, 30 L.Ed.2d 652 (1972;).
l2(b)g 1 j. Blair's complaint is sufficient to constitute a
basis for subject matter jurisdiction. Therefore, the A. Rule l2gb)(1) Standard
court will deny Wal-Mart's Rule 12(b)g1) motion.
Blair, however, has filed her disability discrimination A motion to dismiss under Rule l2(b)(1 [ challenges
claim pursuant to the wrong federal statute. Thus, she the jurisdiction of the court to address the merits of a
cannot prove any set of facts which would entitle her plaintiffs complaint. A motion to dismiss under Rule
to relief under Title VII. As a result, the court will l2(bp(l) for lack of subject matter jurisdiction can
grant Wal-Mart's motion to dismiss pursuant to Egg take two forms: it can attack the complaint on its face
l2(b)g6). (facial attack), or it can attack the existence of subject
matter jurisdiction in fact (factual attack). Mortensen
II. BACKGROUND v. First Federal Savings and Loan, 549 F.2d 884, 891
(E Cir.1977). When reviewing a facial attack the
In November 2001, Blair was employed at Wal- court must consider the allegations of the complaint
Mart, in Georgetown, Delaware as a "people greeter." as true, making all reasonable inferences in the
According to Blair, she suffered from a disability and plaintiffs favor. Id. See also Barrister v. Wendy 's
needed to sit down frequently while performing her Int'l, Inc., 1993 WL 293896, *3 (E.D.Pa. July 30,
duties. In response to a request from Wal-Mart, Blair 1993 Q.
alleges that, on November 15, 2001, she brought a
medical note to work from her physician, Dr. Mann, *2 When reviewing a factual attack, however, the
that explained why she needed to sit down frequently. court is free to weigh evidence outside the pleadings
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»‘’ “ Case 1 :04-cv-01469-SLR Document 17-5 Filed 08/05/2005 Page 2 of 3
Not Reported in F.Supp.2d Pagé 2
2004 WL 2283560 (D.Del.)
(Cite as: 2004 WL 2283560 (D.Del.))
to resolve factual issues bearing on jurisdiction and to In its motion, Wal-Mart attacks Blair's complaint on
satisfy itself as to the existence of its power to hear facial grounds. Wal—Mart contends that Blair's
the case. Mortensen, 549 F.2d at 891. Therefore, no complaint fails to aver any basis for jurisdiction
presumptive truthfulness attaches to the plaintiffs because disability discrimination is not a cognizable
allegations, and the existence of disputed material claim under Title VII. While this is true, the court
facts will not preclude the court from evaluating the must construe Blair's complaint liberally because she
merits of jurisdictional claims for itself. Id. The is a pro se plaintiff. Blair's complaint was filed
plaintiff bears the burden to prove that jurisdiction pursuant to Title VII, which creates a right of action
does in fact exist. Id. However, the plaintiffs burden for employment discrimination. However, disability
is relatively light, since "dismissal for lack of is not a basis for a Title VII suit. Rather, the
jurisdiction is not appropriate merely because the Americans with Disabilities Act (the "ADA"), Q
legal theory alleged is probably false, but only U.S.C. § § 12101 et seq., is the proper avenue for a
because the right claimed is 'so insubstantial, plaintiff to seek relief for disability discrimination.
implausible, foreclosed by prior decisions of this
Court, or otherwise completely devoid of merit as to *3 Regardless, Blair's complaint states that the
not involve a federal controversy." ‘Kulick v. Pocono alleged discriminatory acts in her suit concern
Downs Racing Ass’n, 816 F.2d 895, 899 (3d "discrimination against the disabled." (D.I. 2 ‘][ 10).
Cir.1987) (quoting Oneida Indian Nation v. County The pleading standard under the Federal Rules of
of Oneida, 414 U.S. 661, 666, 94 S.Ct. 772, 39 Civil Procedure is generally liberal, and even more so
L.Ed.2d 73 (1974 3). for pro se plaintiffs. Thus, the court finds that it is not
unreasonable to conclude that Blair is attempting to
B. Rule 12(bj(6) Standard assert a disability discrimination claim against Yal-
Mart, even though she has asserted the claim u der
In ruling on a motion to dismiss, the factual the wrong statute. Because Title VII is a federal
allegations of the complaint must be accepted as true. statute, the court has federal question jurisdiction
See Graves v. Lowegy, 117 F.3d 723, 726 (3d over the dispute. For these reasons, the court
Cir.1997j; Nami v. Fauver, 82 F.3d 63, 65 (3d concludes that Wal-Mart's facial attack on the court's
Cir. 1996). Moreover, a court must view all subject matter jurisdiction is without merit. e court
reasonable inferences that may be drawn from the will, therefore, decline to dismiss the omplaint
complaint in the light most favorable to the non- pursuant to Rule 12(b)(1).
moving party. See Jenkins v. McKeithen, 395 U.S.
411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969); B. Rule l2(b)(6)Motion to Dismiss
Schrob v. Catterson, 948 F.2d 1402, 1405 (3d
Cir.1991). A court should dismiss a complaint "on1y The standard governing a Rule 12(b)(6) motion to
if it is clear that no relief could be granted under any dismiss for failure to state a claim is not as
set of facts that could be proved consistent with the constrained as the standard for a Rule 12(bj(1j
allegations." See Graves, 117rF.3d at 726; Nami, 82 motion. Kehr Packages, Inc. v. Fidelcor, Inc., 926
F.3d at 65 (both citing Conley v. Gibson, 355 U.S. F.2d 1406, 1409 (3d Cir.199lj. A federal claim being
41, 45-46, 78 S.Ct. 99, 2L.Ed.2d 80 (1957 j). reviewed under Rule 12(bj(6) does not have to be
"whol1y insubstantial" to be dismissed. Id. Rather, a
IV. DISCUSSION court should dismiss a complaint "only if it is clear
that no relief could be granted under any set of facts
A. Rule 12(b)( 1 ( Motion to Dismiss that could be proved consistent with the allegations."
See Graves, 117 F.3d at 726. Wal-Mart seeks to
"When a motion under Rule 12 is based on more dismiss Blair's complaint for failure to state a claim
than one ground, the court should consider the for the following reasons: (1) Blair's disability
12(b)(1) challenge first because if it must dismiss the discrimination claim is not actionable under Title
complaint for lack of subject matter jurisdiction, all VII; (2) Blair failed to exhaust her administrative
other defenses and objections become moot." [nj; remedies; and (3) Blair's disability discrimination
Corestates Trust Fee Litigation, 837 F.Supp. 104, claim is time-barred. Although Blair's complaint
105 (E.D.Pa.1993l, afd 39 F.3d 61 (3d Cir.1994j. cannot be dismissed for lack of subject matter
Therefore, the court will first turn its attention to the jurisdiction, it fails the 12(b)(6) test.
12(b)(1) motion to dismiss for lack of subject matter
jurisdiction. Title VII prohibits an employer from discriminating
against any individual on the basis of "race, color,
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pg ' Case 1:04-cv-01469-SLR Document 17-5 Filed 08/05/2005 Page 3 of 3
Not Reported in F.Supp.2d “"“ P&g<’t 3
2004 WL 2283560 (D.Del.)
(Cite as: 2004 WL 2283560 (D.Del.))
religion, sex, or national origin." 42 U.S.C. § 2000e-
2(agll. "Disability is not among the enumerated
bases for a Title VII suit, and therefore a claim for
disability discrimination brought under Title VII
cannot survive." Dieg v. Southwark Metal Mfg. C0.,
N0. 00-6136, 2001 WL 283146, at *2 {E.D.Pa.
Mar.19, 2001 Q; see also Brennan v. Nat'l Tel.
— Directory Corp., 881 F.Supp. 986, 997 gE.D.Pa.l995 [
(stating that "while Title VII prohibits discrimination
based upon a person's 'race, color, religion, sex, or
national origin' it does not prohibit disability
discrimination. Thus, such claims are not cognizable
under Title VII."). The proper avenue for a disability
discrimination suit is the ADA, which explicitly ‘
provides a legal remedy for discrimination on the
basis of disability. Dieg, 2001 WL 283146, at *2
(citing U.S.C. § l2l12(a)). Blair, however, has not
tiled a claim pursuant to the ADA. Instead, she has
tiled disability discrimination claim under Title VII.
Because disability discrimination claims are not
actionable under Title VII, Blair has failed to state a
claim for which relief may be granted. The court,
therefore, will grant Wal-Mart's motion to dismiss.
lFN2l
HILL Since the court will grant Wal-Mart's
motion to dismiss based on the ground that
disability discriminations are not actionable
under Title VII, the court need not consider
Wal-Mart's other grounds for dismissal.
2004 WL 2283560 (D.Del.)
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· 1 :03 CV007 17 (Docket)
(Jul. 15, 2003)
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