United States District Court, W.D. Virginia, Roanoke Division
SHIRLEY A. BARNES, Plaintiff,
SAM'S EAST, INC., etal, Defendants.
Hon. Glen E. Conrad, Chief United States District Judge
Shirley Barnes was previously employed by Sam's East, Inc. ("Sam's Club") at its retail warehouse club in Roanoke, Virginia. Barnes commenced this action related to the termination of her employment by filing a pro se complaint on May 6, 2015. The case is presently before the court on the motion to dismiss filed by Sam's Club, Nicholas Salhany, and Rachel House (collectively, "the Sam's Club defendants"). For the reasons that follow, the court will grant the motion.
The following facts, taken from Barnes' amended complaint, are accepted as true for purposes of the defendants' motion to dismiss. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Barnes is 69 years old. She was employed by Sam's Club for approximately 21 years. Her employment was terminated on February 4, 2014. At the time of her termination, Barnes was assigned to work as a member greeter, due to her doctor's opinion that she is "partially handicap[ped]." Am. Compl. ¶ 8.
A few days prior to Barnes' termination, a white man entered Sam's Club and approached Barnes. Because he did not have a membership card, Barnes directed him to the customer service counter. The man subsequently shoplifted two computers. When Barnes was terminated, her supervisor, Nicholas Salhany, and another employee, Rachel House, accused Barnes of being responsible for the theft of the computers.
Following her termination, Barnes retained Terry Grimes to represent her. Grimes filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on Barnes' behalf. On November 17, 2014, Grimes received a right-to-sue letter from the EEOC. Grimes forwarded the letter to Barnes on January 12, 2015, and advised her that he intended to withdraw from representing her. Rather than immediately filing suit in federal court within the time period set forth in the right-to-sue letter, Barnes contacted Thomas E. Bowers, the Commonwealth's Attorney for the City of Salem, and requested a "felony investigation of the shoplifting crime that was committed at [Sam's Club on] January 29, 2014." Id. ¶ 31. Barnes later learned that the retail warehouse club is located in "the jurisdiction of the [Roanoke] police department, " and, thus, that Bowers was not responsible for investigating the incident. Id. ¶ 35.
Barnes, proceeding pro se and in forma pauperis, filed the instant action against Sam's Club, Salhany, House, Grimes, and Bowers on May 6, 2015. With respect to the Sam's Club defendants, Barnes claimed that Sam's Club terminated her employment because of her age, race, and disability, and that Salhany and House defamed her by claiming that she was responsible for the shoplifting incident that preceded her termination.
On June 19, 2015, Barnes filed a motion to amend her complaint, along with a proposed amended complaint. The amended complaint added as defendants Donald Caldwell, the Commonwealth's Attorney for the City of Roanoke, and Darrell Graham, the Director of the Richmond office of the EEOC.
The Sam's Club defendants moved to dismiss the amended complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. On July 16, 2015, the court sua sponte dismissed Barnes' claims against Grimes, Bowers, Caldwell, and Graham, and directed Barnes to respond to the motion to dismiss filed by the Sam's Club defendants. The motion to dismiss has now been fully briefed and is ripe for disposition.
Standards of Review
Rule 12(b)(1) of the Federal Rules of Civil Procedure permits a party to move for dismissal of an action for lack of subject matter jurisdiction. The plaintiff bears the burden of proving that subject matter jurisdiction exists. Evans v. B. F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). Dismissal for lack of subject matter jurisdiction is appropriate "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Id. (internal citation and quotation marks omitted). In deciding a motion to dismiss for lack of subject matter jurisdiction, the court should "regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Id.
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a party to move for dismissal of a complaint for failure to state a claim upon which relief can be granted. To survive dismissal for failure to state a claim, a plaintiff must establish "facial plausibility" by pleading "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). "At bottom, a plaintiff must 'nudge [her] claims across the line from conceivable to plausible' to resist dismissal." Wag More Does. LLC v. Cozart.680 F.3d 359, 364-65 (4th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While a pro se litigant's pleadings are liberally construed, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), a pro se complaint must still contain sufficient facts "to raise a right to relief above the speculative level" and "state a claim to relief that ...