Bodtker v. Wal-Mart Inc.

• Decision Date: 13 September 2022
• Docket Number: 1:21-cv-00213-MR-WCM
• Parties: MYRON WAYNE BODTKER Plaintiff, v. WAL-MART, INC. Defendant.
• Court: U.S. District Court — Western District of North Carolina

MYRON WAYNE BODTKER Plaintiff, v. WAL-MART, INC. Defendant.

No. 1:21-cv-00213-MR-WCM

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

September 13, 2022

MEMORANDUM AND RECOMMENDATION

W CARLETON METCALF, UNITED STATES MAGISTRATE JUDGE.

This matter is before the Court on Defendant's Partial Motion to Dismiss Plaintiff's Complaint (the “Motion to Dismiss,” Doc. 15), which has been referred to the undersigned pursuant to 28 U.S.C. §636 for the entry of a recommendation.

I. Procedural Background

On August 9, 2021, Myron Wayne Bodtker (“Plaintiff”) filed his complaint against Wal-Mart, Inc. (“Defendant”). Doc. 1.

On March 15, 2022, Defendant filed the instant Motion to Dismiss along with a supporting memorandum and an Answer. Docs. 15, 15-1, 16.

Plaintiff has responded to the Motion to Dismiss and Defendant has replied. Docs. 21, 24.^[1]

II. Plaintiff's Allegations

Plaintiff works at Wal-Mart Store 1242 located in Hendersonville, North Carolina. Doc. 1 at 5.

Governor Roy Cooper signed an executive order, which took effect on July 1, 2020, that required face coverings in retail stores (the “Executive Order”). Id. The day before the Executive Order was scheduled to take effect, Plaintiff submitted a request for a religious exemption to the face covering requirement to the general manager of Defendant's store. Plaintiff also submitted a similar request to the “Wal Mart Ethics Hotline.” Id.

“Wal Mart legal repeatedly denied the plaintiff's claim of religious exemption.” Id.

On or before August 12, 2020, Plaintiff filed a charge of religious discrimination (“Charge #1”) with the Equal Employment Opportunity Commission (“EEOC”). Plaintiff received a dismissal and notice of rights letter for Charge #1 on June 2, 2021. Id.

On or about June 16, 2021, Plaintiff filed another “related” charge with the EEOC (“Charge #2”). Id.

Plaintiff later received a determination and notice of rights letter, dated February 3, 2022, for Charge #2. See Doc. 19.

Plaintiff alleges that Defendant refused to recognize his religious exemption to the face covering mandate and forced Plaintiff “to wear a mask or leave.” Doc. 1 at 6. Plaintiff also alleges that Defendant discriminated against him “for claiming a religious exemption to Covid 19 vaccination under N.C. G.S. 130A-157 by requiring ONLY the unvaccinated to wear face covering[s] and offering vaccinated employees ONLY a $75 bonus.” Id. (emphasis in Complaint).

Plaintiff asserts claims pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000(e) (“Title VII”), North Carolina General Statute § 130A-157 (“ N.C. G.S. § 130A-157”), and the Constitutions of the United States and North Carolina. Doc. 1.

III. Legal Standards

A. Rule 12(b)(6)

When considering a motion made pursuant to Rule 12(b)(6), the court accepts the allegations in the complaint as true and construes them in the light most favorable to the plaintiff. See Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009); Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009).

The court, however, is not required to accept “legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement.” Consumeraffairs.com, 591 F.3d at 255; see Giacomelli, 588 F.3d at 192.

That is, while “detailed factual allegations” are not required, the complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); see Consumeraffairs.com, 591 F.3d at 255. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); accord Consumeraffairs.com, 591 F.3d at 255. In short, the well-pled factual allegations must move a plaintiff's claim from conceivable to plausible. Twombly, 550 U.S. at 570; Consumeraffairs.com, 591 F.3d at 256.

B. Pro Se Filings

“A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (internal citation omitted). At the same time, the court is not required to accept a pro se plaintiff's contentions as true, Denton v. Hernandez, 504 U.S. 25, 32, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992), cannot ignore a clear failure to allege facts which set forth a cognizable claim, and does not act as a pro se plaintiff's advocate or develop claims that a plaintiff fails to raise. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (“The ‘special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate. Only those questions which are squarely presented to a court may properly be addressed.”); Gordon v. Leeke, 574 F.2d 1147, 1152 (4th Cir. 1978) (district courts are not expected to assume the role of advocate for the pro se plaintiff).

IV. Discussion

A. Title VII Claim

When Plaintiff filed his Complaint, he had not yet received a right to sue letter for Charge #2. See Doc. 1-1. Defendant, therefore, moved to dismiss Plaintiff's Title VII claim for failure to exhaust the administrative remedies, to the extent the Title VII claim was based on the allegations in Charge #2. Doc. 15-1.^[2]

Plaintiff subsequently received a right to sue letter for Charge #2, and filed a copy with the clerk. Doc. 19.

In its reply, Defendant states that it “therefore withdraws its Motion to dismiss Plaintiff's Title VII claim to the extent it is premised on his second EEOC Charge.” Doc. 24 at 1.

B. Claims under the United States Constitution

Plaintiff has alleged claims under the 9^th Amendment and the 13^thAmendment to the United States Constitution.

Defendant argues that these claims fail as a matter of law because the United States Constitution does not provide for a private cause of action. Doc. 15-1 at 5. Plaintiff responds that he did not specify how Defendant violated the Constitution because he “considered it to be self-evident from the fact that he is suing under Title VII for religious discrimination.” Doc. 21 at 1. Further, “Plaintiff asserts that the 1964 Civil Rights Act provides the Plaintiff a private cause of action before the court on constitutional grounds, because Title VII concerns self-evidently and uniquely, personal attributes that are also protected....” Doc. 21 at 2.

The undersigned agrees with Defendant that Plaintiff's federal constitutional claims should be dismissed.

Plaintiff has provided no authorities indicating that alleged violations of the 9^th and 13^th amendments support a civil rights claim. See Wohlford v. U.S. Dep't of Agriculture, 842 F.2d 1293, 1293 (4th Cir. 1988) (“[T]he Ninth

Amendment creates no constitutional rights.”); Wesley v. Charlotte-Mecklenburg Cty. Police Dep't., 3:19-cv-425-FDW-DCK, 2021 WL 1971499, at *5 (W.D. N.C. May 17, 2021) (“[T]he ninth amendment has never been recognized as independently securing any constitutional right, for purposes of pursuing a civil rights claim.”) (quoting Strandberg v. City of Helena, 791 F.2d 744, 748 (9th Cir. 1986)); Brown v. Winman, No. 5:15-CV-59-BO, 2015 WL 5837471, at *3 (E.D. N.C. Oct. 6, 2015) (“The Thirteenth Amendment . . . does not create a private right of action upon which recovery may be obtained. See, e.g. Nattah v. Bush, 770 F.Supp.2d 193, 204-05 (D.D.C.2011). It instead reserves to Congress the task of enforcing the prohibition on slavery through appropriate legislation. U.S. Const. amend. XIII, § 2.”).

Further, to the extent Plaintiff is attempting to seek redress for the alleged constitutional violations pursuant to Section 1983, Plaintiff has not adequately identified any state action.

To state a claim under Section 1983, plaintiffs “must establish that they were deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law.” American Manufacturers Mutual Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999). The “under color of state law” element cannot be satisfied by “merely private conduct, no matter how discriminatory or wrongful.” Id. (internal quotation omitted). Further, “private activity will generally not be deemed ‘state action' unless the state has so dominated such activity as to convert it to state action.” Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 616 (4th Cir. 2009).

Here, Plaintiff argues that “[r]egardless of quoted legal precedents,” the government's “Covid 19 actions” were so “all pervading, so over-reaching that the state so dominated such activity as to convert private actions regarding Covid 19 into state action.” Doc. 21 at 2.

However courts that have considered claims against private actors in relation to mask mandates have rejected similar arguments. See Anderson v. United Airlines, Inc., 577 F.Supp.3d 1324, 1334 (M.D. Fla. 2021) (finding plaintiff failed to demonstrate a likelihood of success on his Section 1983 claim because he did not plausibly allege United Airlines was a state actor); Moore v. Volume Services, Inc., No. 21-00493 SOM-KJM, 2022 WL 2307739, at *5 (D. Haw. June 27, 2022) (“VSI's compliance with Hawaii's face covering requirements does not mean that VSI somehow became a state actor by complying with those requirements”);,Celauro v. Federal Express Ground, 548 F.Supp.3d 1034, 1039 (D. Colo. 2021) (commenting that “Plaintiff has not brought a claim against a government actor” when plaintiff sued his employer for violating his right to make his own...