United States District Court, E.D. Virginia, Richmond Division
DAVID A. CAMPBELL, Plaintiff,
STONEMOR PARTNERS, LP, Defendant.
MEMORANDUM OPINION (DISMISSING AMENDED
E. Hudson Senior United States District Judge.
matter comes before the Court on David A. Campbell's
("Plaintiff) Amended Complaint (ECF No. 12),
filed on February 12, 2018. For the reasons set forth below,
the Court will dismiss Plaintiffs Amended Complaint pursuant
to 28 U.S.C. §§ 1406(a) and 1915(e)(2)(B)(ii) and
Federal Rule of Civil Procedure 12(b)(6).
begin, the Court notes that Plaintiffs Amended Complaint is
difficult to understand due to inconsistencies in his
allegations and a lack of chronological order. The following
is the Court's best attempt to construct a coherent
narrative from Plaintiffs allegations.
was employed by Defendant StoneMor Partners L.P.
("Defendant") as a cemetery manager. (Compl. 8-9.)
In February 2014, Plaintiff returned to work from a five-week
absence due to double pneumonia. (Id. at 8.) On
March 24, 2014, Plaintiff started managing Oaklawn Mausoleum
and Memory Gardens ("Oaklawn") after management
required him to transfer there. (Id.) During his
tenure there, Plaintiffs office consistently received high
ratings. (Id. at 9.) Despite being older and more
experienced, Plaintiff was compensated at a $7.25 hourly
rate, not the $455 weekly rate given to other managers.
(Id.) Plaintiff made inquiries about his
compensation and ultimately sent a letter inquiring about his
job description and title. (Id.) Human Resources
initially told him that he was a family services consultant
but later told him he was an assistant manager.
(Id.) Plaintiff continued to ask about his
compensation and began receiving phone calls before and after
working inquiring about his game plan for the work week.
(Id. at 9-10.) In September 2015, Plaintiffs
administrator informed him that he would be compensated at
the $455 weekly rate. (Id. at 10.)
December 1, 2015, Plaintiff scheduled a telephone call with
Area Manager Anita Deeb, related to a misunderstanding
Plaintiff had with his assistant. (Id. at 2, 10.)
When the call ultimately took place, Regional Vice President
Pamela Harris was on the line with Deeb, which Plaintiff
found to be "very unwelcome" and led him to attempt
to end the conversation by saying that "he had to see
his Doctor in a little while." (Id. at 10.)
Plaintiff alleges that Harris replied: "Dave you always
get sick when you get mad." (Id.) Plaintiff
ended the phone call, and at some point later that evening
sent a text message complaining about the call, because it
was "harassing" and "not called for."
December 2, 2015, Plaintiff was informed by Harris and Human
Resources Compliance Manager Lauren Bailey that he was being
placed on leave pursuant to the Family Medical Leave Act.
(Id. at 2, 10.) Plaintiff alleges that he heard
Harris say that he would have "plenty of time to think
about that text." (Id. at 12.) Plaintiff was
not permitted to return to work the following day.
(Id.) This experience caused Plaintiff to become
very ill, and he obtained notes from his doctor stating that
he could not work until March 31, 2016. (Id. at 13.)
Despite Defendant excusing Plaintiffs absence from work
through that date, it terminated his employment on March 24,
STANDARD OF REVIEW
statute governing IFP filings provides that "the court
shall dismiss the case at any time if the court determines
that the action or appeal is frivolous or ... fails to state
a claim on which relief may be granted." 28 U.S.C.
§ 1915(e)(2)(B)(i)-(ii); see also Michau v.
Charleston Cty, 434 F.3d 725, 728 (4th Cir. 2006)
("28 U.S.C. § 1915(e)... governs IFP filings in
addition to complaints filed by prisoners ....").
Section 1915(e)(2) "is designed largely to discourage
the filing of, and waste of judicial and private resources
upon, baseless lawsuits that paying litigants generally do
not initiate because of the costs of bringing suit."
McLean v. United States, 566 F.3d 391, 399 (4th Cir.
2009) (quoting Neitzke v. Williams, 490 U.S. 319,
327 (1989)). Therefore, the Court must screen all IFP
complaints to ensure judicial economy.
determining whether an action is "frivolous," the
Fourth Circuit has observed that "[t]he word ... is
inherently elastic and 'not susceptible to categorical
definition.'" Nagy v. FMC Butner, 316 F.3d
252, 256 (4th Cir. 2004) (quoting Adams v. Rice, 40
F.3d 72, 74 (4th Cir. 1994)). "It is designed to confer
on district courts the power to sift out claims that Congress
found not to warrant extended judicial treatment under the in
forma pauperis statute." Id. "The
term's capaciousness directs lower courts to conduct a
flexible analysis, in light of the totality of the
circumstances, of all factors bearing upon the frivolity of a
claim." Id. at 257. "[District courts are
at liberty to consider any factors that experience teaches
bear on the question of frivolity." Id.
assessing whether an IFP complaint "fails to state a
claim on which relief may be granted," courts conduct a
similar analysis to that used when considering a motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
"A motion to dismiss under Rule 12(b)(6) tests the
sufficiency of a complaint; importantly, it does not resolve
contests surrounding the facts, the merits of a claim, or the
applicability of defenses." Republican Party of N.C.
v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citation
omitted). When considering an IFP filing, a plaintiff s
well-pleaded allegations are taken as true, and the complaint
is viewed in the light most favorable to the plaintiff.
T.G. Slater & Son, Inc. v. Donald P. & Patricia
A. Brennan LLC, 385 F.3d 836, 841 (4th Cir. 2004)
(citation omitted). Legal conclusions enjoy no such
deference. Ashcroft v. Iqbal, 556 U.S. 662, 678
the Court acknowledges that pro se complaints are
afforded a liberal construction. Laber, 438 F.3d at
413 n.3. The Court, however, need not attempt "to
discern the unexpressed intent of the plaintiff."
Id. Nor does the requirement of liberal construction
excuse a clear failure in the pleading to allege a federally
cognizable claim. See Welter v. Dep't of Soc.
Servs., 901 F.2d 387, 390-91 (4th Cir. 1990). As the
Fourth Circuit explained in Beaudett v. City of
Hampton, while "[pro se] litigants cannot,
of course, be expected to frame legal issues with the clarity
and precision ideally evident in the work of those trained in
law, neither can district courts be required to conjure up
and decide issues never fairly presented to them." 775
F.2d 1274, 1276 (4th Cir. 1985).
identifies retaliation and the termination of his employment
as the discriminatory conduct giving rise to his claims. At
various points in the Complaint, he states the Court's
basis of jurisdiction as Title VII of the Civil Rights Act of
1964 ("Title VII"), 42 U.S.C. § 2000e, et
seq., the Equal Pay Act of 1963 ("EPA"), 29
U.S.C. § 206(d), the Age Discrimination in Employment
Act of 1967 ("ADEA"), 29 U.S.C. § 621, et
seq., and the Americans with Disabilities Act of 1990
("ADA"), 42 U.S.C. § 12101, et seq.
(Compare ECF No. 5 at 3 (citing Title VII and the EPA)
with ECF No. 5 at 7 (citing Title VII, the ADEA, and
ADA)). In line with the latitude given Xopro se
litigants, the Court will interpret the Complaint as broadly
as possible without taking on ...