United States District Court, M.D. Alabama, Eastern Division
REPORT AND RECOMMENDATION OF THE MAGISTRATE
M. BORDEN UNITED STATES MAGISTRATE JUDGE
to 28 U.S.C. § 636(b)(1) this case was referred to a
United States Magistrate Judge for review and submission of a
report with recommended findings of fact and conclusions of
law. Doc. 6. Pending before the court are two motions to
dismiss filed by Defendant Wal-Mart Stores East, LP
(“Wal-Mart”). The court interprets Plaintiff
Jaleon Kelly's complaint as setting forth claims of
disparate treatment, failure to promote, failure to hire,
lack of reasonable accommodation, and a hostile work
environment under the Americans with Disabilities Act
(“ADA”). Doc. 26. In light of Kelly's
intervening Second Amended Complaint (Doc. 26), the court
RECOMMENDS that the Motion to Dismiss (Doc. 18) directed to
the First Amended Complaint be DENIED as moot. For the
reasons that follow, the undersigned RECOMMENDS that the
Motion to Dismiss (Doc. 27) directed to the Second Amended
Complaint be GRANTED in part and DENIED in part.
JURISDICTION AND VENUE
court has subject matter jurisdiction over the claims in this
lawsuit pursuant to 28 U.S.C. § 1331. The parties do not
contest personal jurisdiction or that venue is proper in the
Middle District of Alabama. The court finds adequate
allegations to support both.
FACTUAL AND PROCEDURAL BACKGROUND
facts alleged in the Second Amended Complaint follow. Kelly
has been diagnosed with (1) mixed receptive-expressive
language disorder, (2) the learning disorder NOS (relating to
slow processing speed), (3) developmental coordination
disorder, (4) attention deficit/hyperactivity disorder, and
(4) the features of anxiety and sadness. Doc. 26 at 3.
Kelly's disabilities significantly affect his ability to
process information, and he needs repetition of instructions
or lists to ensure proper understanding. Doc. 26 at 3. The
disabilities also significantly impact his social
interactions, particularly with those he does not know, by
limiting his ability to initiate conversations, maintain eye
contact, and smile. Doc. 26 at 3. For example, the learning
disorder NOS leaves Kelly “verbally overmatched”
in conversations with individuals who do not have a
disability. Doc. 26 at 3.
February 2017, Wal-Mart hired Kelly in a “Happy to
Help” position to assist customers with finding items
following a remodeling of its store in Alexander City,
Alabama. Doc. 26 at 4-5. Kelly was employed from February 2,
2017 until February 22, 2017. Doc. 25 at 5. Instead of, and
in addition to, his duties to assist customers, Kelly was
assigned other tasks to be completed simultaneously. Doc. 26
at 5. Kelly was tasked with completing as many as five items
at once, which overwhelmed him. Doc. 26 at 5. Though willing
and able to perform all tasks given to him, Kelly needed
reasonable accommodations relating to how and when the tasks
were assigned. Doc. 26 at 5.
Kelly informed Department Manager Michelle Ross and Store
Manager Chad Quick that he was unable to perform all of the
tasks at once. Doc. 26 at 5. He suggested that he be assigned
only two tasks at a time. Doc. 26 at 5. And he specifically
requested that he be allowed to use a scanner to improve his
“zoning” speed in the toy aisle. Doc. 26 at 5.
Quick denied this request without explanation. Doc. 26 at 5.
When Kelly attempted to explain his disabilities to Ross, she
simply threw her hands up as if to say, “I don't
want to hear it, ” or “Don't talk to me,
” and would walk away. Doc. 26 at 4.
February 13, 2017, Ross scolded and berated Kelly for not
finishing his assigned tasks quickly. Doc. 26 at 5-6. She
called Kelly into the back room and verbally scolded him.
Doc. 26 at 6. She also scolded him in front of the customers
and other employees in order to humiliate him. Doc. 26 at 6.
Ross exhibited similar behavior throughout Kelly's time
at Wal-Mart. Doc. 26 at 6.
also verbally harassed Kelly around February 22, 2017. Doc.
26 at 6. He humiliated him for his learning disabilities.
Doc. 26 at 7. Instead of speaking to Kelly like an adult, he
talked down to him and told him to “smile like Mickey
Mouse.” Doc. 26 at 7. Quick never asked the same of
Kelly's coworkers, and never publicly humiliated them as
he did Kelly. Doc. 26 at 7.
several occasions, Wal-Mart intentionally treated Kelly
differently from his co-workers. Doc. 26 at 7. For example,
he was not allowed to use a handheld scanner to assist in his
zoning of the toy aisle even though other employees were
given scanners. Doc. 26 at 7.
of his learning disabilities, Kelly was passed over for
promotion. Doc. 26 at 6. Citing to his three years of
qualifying experience using a cash register at another job,
Kelly requested a promotion to a cash register position, but
his request was denied. Doc. 26 at 6 & 7-8. He also
applied for other positions at Wal-Mart but was denied due to
his learning disabilities. Doc. 26 at 6. Throughout his
tenure, Kelly asked to be reassigned to a cash register
position, but Wal-Mart refused to consider him for promotion
or reassignment. Doc. 26 at 7-8.
and another store manager acknowledged that they were aware
of Kelly's disabilities. Doc. 26 at 4. They knew that he
had trouble understanding instructions and organizing his
work tasks. Doc. 26 at 4. The other store manager admitted
that his own daughter had similar cognitive and learning
disabilities and that he recognized them in Kelly during the
“Happy to Help” interview process. Doc. 26 at 4.
Kelly returned from his lunch break on or about February 22,
2017, Ross and Quick called him into the office and
terminated his employment. Doc. 26 at 8. Kelly was terminated
without consideration of his learning disabilities and
without regard for his requests for reasonable accommodation.
Doc. 26 at 8. Instead, Ross and Quick purposefully assigned
Kelly tasks that they knew he could not complete and that
were not within his job description, and then terminated him
because he could not complete these tasks. Doc. 26 at 8.
Kelly was willing and able to perform all tasks given to him,
either with or without reasonable accommodation for his
disabilities. Doc. 26 at 8.
subsequently applied for six cashier positions advertised by
Wal-Mart, but Wal-Mart never interviewed him or called him
about those jobs. Doc. 26 at 8. Wal-Mart filled one of the
six advertised positions with a current employee, while the
other five positions remained open. Doc. 26 at 8.
9, 2017, Kelly filed a charge with the EEOC regarding
Wal-Mart's discriminatory conduct. Doc. 26 at 9.
Kelly's charge indicated that the discrimination was
based on disability. Doc. 1-1. His fact statement, in its
entirety, is as follows:
I am an individual with a disability. I was hired by the
above-named employer on or around February 2, 2017 in a
“happy to help” position. On February 13, 2017,
the Department Manager Michelle (LNU), talked to me about not
performing my job right. I spoke with the Store Manager Chad
(LNU) and asked him if I could be placed on a register
because I have three years of previous experience. However,
Chad (LNU) did not reassign me. On February 22, 2017, I was
discharged by Chad (LNU) for not smiling like “mickey
mouse” and for not smiling at every customer.
I believe that I have been discriminated against because of
my disability, in violation of the Americans with
Disabilities Act of 1990, as amended.
asserts claims for failure to promote, failure to hire, and
failure to provide reasonable accommodation (Doc. 26 at 11),
and appears also to claim hostile work environment and
disparate impact. Doc. 26 at 5-6.
STANDARD OF REVIEW
considering a motion to dismiss pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure, the court must
“take the factual allegations in the complaint as true
and construe them in the light most favorable to the
plaintiff.” Pielage v. McConnell, 516 F.3d
1282, 1284 (11th Cir. 2008). To survive a motion to dismiss,
a complaint must include “enough facts to state a claim
to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is
“plausible on its face” if “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). The complaint “requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at 555. Factual allegations need
not be detailed, but “must be enough to raise a right
to relief above the speculative level, ”
Twombly, 550 U.S. at 555, and “unadorned,
the-defendant-unlawfully-harmed-me accusation[s]” will
not suffice. Iqbal, 556 U.S. at 678.