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Bakra v. RST Marketing

United States District Court, W.D. Virginia, Lynchburg Division

July 31, 2019

Al-Qahira Bakra, Plaintiff,
v.
RST Marketing, et al., Defendants.

          MEMORANDUM OPINION

          NORMAN K. MOON, SENIOR UNITED STATES DISTRICT JUDGE

         Al-Qahira Bakra, proceeding pro se, commenced this action by filing a form complaint for employment discrimination against “RST Marketing/Et. Al” and “Nick/Workforce Solutions Et. Al.” (Dkt. 2 (Compl.)). The Plaintiff has not paid the filing fee but will be granted leave to proceed in forma pauperis. (See Dkt. 1). For the following reasons, the Court concludes that the complaint must be dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim on which relief may be granted. The Plaintiff will, however, be granted leave to amend his complaint.

         I. BACKGROUND

         The following is taken from the complaint and the exhibits attached to the complaint. See Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016) (noting that the court may consider exhibits to a complaint in assessing its sufficiency). Plaintiff alleges discrimination in employment pursuant to (1) the Americans with Disabilities Act of 1990, for an unspecified disability, and (2) Title VII of the Civil Rights Act of 1964, based on his religion. (Dkt. at 1-4). He claims discriminatory conduct of (1) termination of his employment, (2) failure to accommodate his disability, and (3) unequal terms and conditions of his employment. (Id. at 4).

         In his recitation of the facts of his case, Plaintiff alleges that his only transportation to and from work was by bicycle and that he had to travel for weeks until receiving a day off and could not travel during severe weather conditions and due to transportation problems. He further alleges that Defendant Workforce Solutions improperly denied that Plaintiff called in or texted for his no-shows. He alleges that the day he was terminated he received notice only during the final two hours of his workday. (Dkt. 2 at 4-5).

         In the form complaint space for stating relief requested and any basis for the claimed amount, Plaintiff states that he risked his life for employment (apparently referring to his travel to and from work by bicycle). Plaintiff further states: “Also once I told supervisors I was [M]uslim they acted different toward me.” He also alleges that he was told one individual was saying that Plaintiff had “said nasty conversations.” (Dkt. 2 at 5-6).

         Plaintiff alleges he filed a charge with the Equal Employment Opportunity Commission (“EEOC”) regarding the alleged discriminatory conduct in October or November 2018. (Dkt. 2 at 5). The complaint further states that the EEOC issued a Notice of Right to Sue Letter. (Id.). Plaintiff subsequently filed an EEOC “Dismissal and Notice of Rights” dated February 4, 2019. The EEOC copied RST Marketing, Inc. on the Notice. The Notice informed Plaintiff of his right to file a lawsuit within 90 days of his receipt of the Notice. (Dkt. 3). The scope of Plaintiff's charge filed with the EEOC, however, is unclear at this time.

         II. STANDARD OF REVIEW

         Under 28 U.S.C. § 1915(e)(2), which governs in forma pauperis proceedings, the court has a duty to screen initial filings. Eriline Co. S.A. v. Johnson, 440 F.3d 648, 656-57 (4th Cir. 2006). The court must dismiss a case at any time if the court determines that the action “fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). The standards for dismissal under § 1915(e)(2)(B)(ii) are the same as those for dismissal under Federal Rule of Civil Procedure 12(b)(6). See De'Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003). Thus, to survive dismissal for failure to state a claim, a complaint must contain sufficient factual allegations “to raise a right to relief above the speculative level” and “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). Further, “a judge must accept as true all of the factual allegations contained in the complaint” and accord a liberal construction to a pro se litigant's pleadings. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).

         III. DISCUSSION

         Plaintiff checked the form complaint boxes for employment discrimination based on (1) disability or perceived disability under the Americans with Disabilities Act (“ADA”), and (2) religion under Title VII of the Civil Rights Act of 1964. (Dkt. 2 at 4). Each claim will be considered separately.

         A. Americans with Disabilities Act Employment Discrimination Claim

         Title I of the ADA makes it unlawful for qualifying employers to “discriminate against a qualified individual” on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a). The term “disability” means (1) a physical or mental impairment that substantially limits one or more major life activities of an individual, (2) a record of such impairment, or (3) being regarded as having such an impairment. Id. § 12102(1). The term “qualified individual” means an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. 42 U.S.C. § 12111(e).

         To establish a claim for disability discrimination under the ADA, a plaintiff must prove that (1) he or she has a disability within the meaning of the ADA, (2) he or she is a “qualified individual” for the employment in question, and (3) that the employer discharged the plaintiff or took other adverse employment action because of the disability. Campbell v. StoneMor Partners, LP, No. 3:17-cv-407, 2018 WL 3451390, at *4 (E.D. Va. July 17, 2018), aff'd, 752 Fed.Appx. 166 (4th Cir. 2019) (unpublished) (per curiam). Specifically, a plaintiff's disability must ...


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