Kelly v. Wal-Mart Stores East, LP

          REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

          GRAY M. BORDEN, UNITED STATES MAGISTRATE JUDGE.

         Pursuant 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.

         I. JURISDICTION AND VENUE

         The 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.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         The 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.

         In 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.

         Accordingly, 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”^[1] 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 would throw 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.

         Around 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 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.

         Quick 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.

         On 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 allowed to use scanners. Doc. 26 at 7.

         Because 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.

         Quick 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.

         When 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.

         Kelly 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.

         On July 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.

Doc. 1-1.

         Kelly 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.

         III. STANDARD OF REVIEW

         In 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.

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