Melvin v. Walmart Inc.

Decision Date09 November 2021
Docket Number5:20-cv-51-MW/MJF
PartiesCHARITO MELVIN, Plaintiff, v. WALMART INC., Defendant.
CourtU.S. District Court — Northern District of Florida


WALMART INC., Defendant.

No. 5:20-cv-51-MW/MJF

United States District Court, N.D. Florida, Panama City Division

November 9, 2021



In this civil action, Plaintiff Charito Melvin alleges violations of the ADEA, the ADA, and Title VII, as well as a breach of contract under Florida law. Defendant Walmart Inc. moves to dismiss four of Melvin's five claims. Doc. 50. Melvin has responded in opposition. Doc. 53. Because Melvin has failed to state a claim upon which relief can be granted as to Count Two (retaliation), Count Four (hostile-environment harassment), and Count Five (breach of contract), but has stated a claim as to Count Three (failure-to-accommodate disability discrimination), the undersigned recommends that the District Court grant in part and deny in part Walmart's motion to dismiss.[1]


I. Background

In addressing Walmart's motion to dismiss, the undersigned considered three of Melvin's filings: (1) Melvin's August 2, 2019 amended Equal Employment Opportunity Commission (“EEOC”) charge; (2) Melvin's March 31, 2020 EEOC charge; and (3) Melvin's seventh amended complaint. Doc. 47; Doc. 61-1 at 2; Doc. 64 at 3.

A. Melvin's Two EEOC Charges Filed on August 2, 2019

On August 2, 2019, Melvin filed two separate charges of discrimination with the Florida Commission on Human Rights (“FCHR”) and the EEOC. The second EEOC charge that Melvin filed on August 2, 2019, is labeled “Amended” in the top right corner of the charge. Doc. 61-1 at 2. Melvin's amended August 2, 2019 EEOC charge contains all of the allegations in her original August 2, 2019 EEOC charge, as well as additional allegations that support Melvin's ADA claim. Id.; Doc. 64 at 2. Because Melvin's amended EEOC charge of August 2, 2019, includes all of the claims raised in both EEOC charges that Melvin filed on August 2, 2019, the undersigned will refer to both charges collectively as Melvin's “August 2, 2019 EEOC charge.”

In Melvin's August 2, 2019 EEOC charge, Melvin alleged that she is a Pacific-Islander. Melvin further alleged that Walmart eliminated Melvin's position as a certified pharmacy technician, but Walmart retained three younger, non-Pacific


Islander certified pharmacy technicians. Doc. 61-1 at 2. Melvin also alleged that she was reassigned to Walmart's liquor department in violation of her “religious beliefs and physical limitations.” Id. Melvin asserted that Walmart violated: (1) Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2(a); (2) the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq.; and (3) the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621 et seq. Doc. 61-1 at 2.

B. Melvin's EEOC Charge Filed on March 31, 2020

On March 31, 2020, Melvin filed a third charge with the FCHR and EEOC.[2]Doc. 64. In her March 31, 2020 EEOC charge, Melvin alleged that Walmart eliminated her position as a certified pharmacy technician in June 2019. Id. at 3. Although Melvin did not file her first EEOC charge until August 2, 2019, she inexplicably alleges that on July 19, 2019, Walmart assigned her to work in another department[3] after learning that Melvin had filed a charge with the EEOC on August 2, 2019. Id. Melvin does not explain how Walmart knew on July 19 that Melvin would file her EEOC charge on August 2.


Melvin further alleged in her third EEOC charge that on an unspecified date, her supervisor “humiliated [her] because of [Melvin's] use of the English language and stating, ‘Don't send [Melvin] she hardly speaks English!'” Doc. 64 at 3. Melvin also alleged that on October 17, 2019, she “was diagnosed with lower back problems and was restricted from prolonged standing.” Id. After reporting this diagnosis to her supervisor, Melvin received a stool to sit on “whenever needed.” Id. Three days later, on October 22, 2019, the supervisor informed Melvin that she no longer had permission to use the stool because the note Melvin provided “did not suffice.” Id.

Melvin also alleged in her third EEOC charge that Walmart customers occasionally complained about receiving the wrong medication because Walmart dispenses medication without requesting formal identification. Doc. 64 at 3. Melvin alleged that on one occasion, Walmart blamed Melvin for such an error. Id. Walmart did not, however, issue a “reprimand or written warning” because “it is Walmart's policy to cover up such incidents without proper investigation.” Id. Melvin alleged that Walmart accused her of making this mistake because she is a “person of color” and the pharmacy staff believed that Melvin did not speak English well. Id. at 3-4. Melvin again alleged that Walmart violated: (1) the ADEA, (2) the ADA, and (3) Title VII.


C. Melvin's Seventh Amended Complaint

In her seventh amended complaint, Melvin alleges that she is a sixty-five-year-old woman of Filipino descent. Doc. 47 at 5. She asserts five claims against Walmart:

(1) Unlawful Discrimination by Age on 6/26/2019 1 Plaintiff is 65 years old Filipino and member of
2 protected class. She was removed from her position while
3 white under 40 workers remained in pharmacy workplace
(2) Unlawful Discrimination by Retaliation
1 After filing charge with EEOC accused of mishandling opiod
2 drugs and reported pharmacy staff to FDA.
(3) Unlawful Discrimination by Disability 1 July 2020 1 Produced medical note (Dr. Kasseem) limiting time standing.
2 Allowed occasional seating for 3 days then prohibited.
(4) Unlawful Discrimination by National Origin
1 Plaintiff humilated before customers by supervisor Kelly
2 Nelson for lack of proficiency in English language.
(5) Breach of Contract
“Talking Points contract offered a) choice of alternative employment b) severance pay offered but entitlement to federal package denied c) promise to guarantee works hours would remain same not honored. 8:30 am to 7:30 pm became 4pm until midnight and other erratic hours.

Id. (grammatical, spelling, punctuation, typographical, and formatting errors in original).

II. Standard

Federal Rule of Civil Procedure 12(b)(6) authorizes defendants to move to dismiss actions for failure to state a claim upon which relief can be granted. Fed. R.


Civ. P. 12(b)(6); Worthy v. City of Phenix City, 930 F.3d 1206, 1216-17 (11th Cir. 2019). When reviewing a complaint at the motion-to-dismiss stage, the court accepts all well-pleaded factual allegations of the complaint as true and evaluates all reasonable inferences derived from those facts in the light most favorable to the plaintiff. Hunnings v. Texaco, Inc., 29 F.3d 1480, 1484 (11th Cir. 1994) (per curiam). To survive dismissal, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

“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, ” rather than the mere possibility that the defendant acted unlawfully. Id. (citing Twombly, 550 U.S. at 556). That is, the complaint's factual allegations must be “enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 (reiterating that Federal Rule of Civil Procedure 8 demands “more than an unadorned, the-defendant-unlawfully-harmed-me accusation”). “Factual allegations that are merely consistent with a defendant's liability fall short of being facially plausible.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012) (per curiam) (quotation marks and citations omitted). Additionally, “[m]ere ‘labels and conclusions or a formulaic


recitation of the elements of a cause of action will not do,' and a plaintiff cannot rely on ‘naked assertions devoid of further factual enhancement.'” Franklin v. Curry, 738 F.3d 1246, 1251 (11th Cir. 2013) (internal quotation marks and alteration omitted) (quoting Iqbal, 556 U.S. at 678). Courts, however, “hold the allegations of a pro se complaint to less stringent standards than formal pleadings drafted by lawyers.” Campbell v. Air Jam. Ltd., 760 F.3d 1165, 1168 (11th Cir. 2014).

III. Discussion

Walmart has moved to dismiss four of Melvin's five claims. Doc. 50 at 6-8.

A. Count Two: “Unlawful Discrimination by Retaliation”

In Count Two of her seventh amended complaint, Melvin alleges that after she filed an EEOC charge, Walmart unlawfully retaliated against her by accusing her of mishandling opioids. Doc. 47 at 5. Walmart asserts that Count Two should be dismissed because Melvin has failed to plausibly allege that she suffered an adverse employment action and has failed to allege a causal connection between an adverse employment action and her protected activity. Doc. 50 at 10-13.

Although Melvin's seventh amended complaint fails to specify the basis for her retaliation claim, retaliation claims under the ADEA, Title VII, and the ADA share the same three elements. To state a claim of retaliation, a plaintiff must allege:

(1) he engaged in statutorily-protected expression or action;
(2) he suffered an adverse employment action; and
(3) the adverse employment action was causally related to the plaintiff's protected expression or action.

Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002). At the motion-to-dismiss stage, therefore, a complaint must allege “sufficient facts to allow the court to draw the reasonable inference” that those three elements occurred. Boyle v. City of Pell City, 866 F.3d 1280, 1286 (11th Cir. 2017); McCone v. Pitney Bowes, Inc., 582 Fed.Appx. 798, 801 (11th Cir. 2014) (noting that...

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