United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
K. KALLON UNITED STATES DISTRICT JUDGE
Kelly filed this lawsuit against Fourth Avenue Supermarket,
Inc., Food Giant, Inc., and Mitchell Grocery, Corp., alleging
a failure to accommodate, discriminatory discharge, and
failure to hire under the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §12111, et seq.
Doc. 1. Fourth Avenue has filed a Motion to Dismiss, doc. 6,
based on Kelly's purported failure to administratively
exhaust his claims against it. For the reasons stated more
fully below, Fourth Avenue's motion is due to be denied.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a)(2), a pleading must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations,' but it
demands more than an unadorned, the-defendant-unlawfully-
harmed-me accusation.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). Mere “labels
and conclusions” or “a formulaic recitation of
the elements of a cause of action” are insufficient.
Iqbal, 556 U.S. at 678 (citations and internal
quotation marks omitted). “Nor does a complaint suffice
if it tenders ‘naked assertion[s]' devoid of
‘further factual enhancement.'” Id.
(citing Twombly, 550 U.S. at 557).
Rule of Civil Procedure 12(b)(6) permits dismissal when a
complaint fails to state a claim upon which relief can be
granted. “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.”
Iqbal, 556 U.S. at 678 (citations omitted) (internal
quotation marks omitted). A complaint states a facially
plausible claim for relief “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citation omitted). The
complaint must establish “more than a sheer possibility
that a defendant has acted unlawfully.” Id.;
see also Twombly, 550 U.S. at 555 (“Factual
allegations must be enough to raise a right to relief above
the speculative level.”). Ultimately, this inquiry is a
“context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679.
FACTUAL BACKGROUND 
who is legally blind, joined Food Giant as a grocery stocker
in 2000. Doc. 1 at 3-4. In July 2017, Fourth Avenue purchased
the Food Giant location where Kelly worked. Id.
Fourth Avenue required Food Giant employees who wanted to
stay on and join its staff to meet with the new management
team. Id. at 4. Consistent with this practice,
shortly after the purchase announcement, Fourth Avenue's
management team approached Kelly at work, and one of the
managers extended his hand to greet Kelly. Id. at
4-5. However, Kelly was unable to recognize the hand to
accept the gesture due to his vision. Id. Despite
this mishap, the Fourth Avenue manager interviewed Kelly on
the spot, and Kelly expressed his interest in continuing his
employment, citing his seventeen years of experience.
after the encounter, a Fourth Avenue supervisor asked Kelly
why he declined to shake the manager's hand. Id.
at 5. After Kelly informed the supervisor of his disability,
the supervisor purportedly stated that Kelly's continued
employment could create a liability for Fourth Avenue.
Id. Kelly disagreed, and cited to his work record
and ability to adapt to potential store layout changes in
support of his desire to stay on with Fourth Avenue.
Id. A few days later, Kelly received notice that
Fourth Avenue would not offer him a position and Food Giant
discharged him. Id.
following day, Kelly filed a charge of discrimination with
the Equal Employment Opportunity Commission
(“EEOC”), listing only “Food Giant”
as the named party who discriminated against him. Doc. 13-1.
However, Kelly explained in the body of the charge that
“[Food Giant] has been bought by new personnel, . . .
[Kelly] interview[ed] with the new CEO, . . . [and] the
company could not extend [his] employment because of [his]
blindness.” Id. As part of the investigation
of the charge, an EEOC investigator visited the old Food
Giant location and spoke with Chuck Steadham, a store manager
at Fresh Value, the new name of the grocery store. Doc. 13-2.
Steadham informed the investigator that Fresh Value received
the letters the EEOC had sent regarding the charge and that
he forwarded them to the corporate office, i.e. Fourth
Avenue. Steadham added also that he would relay to the
corporate office that they needed to respond to Kelly's
EEOC charge. Id. Fourth Avenue never responded, and
Kelly filed this lawsuit after receiving his right to sue
plaintiff may pursue a civil action under Title I of the ADA
only against entities he names as the discriminating party in
the underlying EEOC charge. Olmsted v. Defosset, 205
F.Supp.2d 1316 (M.D. Fla. 2002). And, “[o]rdinarily, a
party not named in the EEOC charge cannot be sued in a
subsequent civil action.” Virgo v. Riviera Beach
Assocs., Ltd., 30 F.3d 1350, 1358 (11th Cir. 1994). The
naming requirement “serves to notify the charged party
of the allegations and allows the party an opportunity to
participate in conciliation and voluntarily comply with the
requirements of [the ADA].” Id. However, the
“naming precondition . . . must be liberally
construed” and “[s]ometimes a party not named in
the EEOC charge may still be sued in a later civil action but
only if doing so fulfills the purposes of the
[anti-discrimination law].” Lewis v. Asplundh Tree
Expert Co., 402 Fed.Appx. 454, 456 (11th Cir. 2010).
Indeed, “[i]t's more important that pleading rules
be relaxed in the decidedly informal atmosphere of [EEOC
charges]” since the process “involves a
layinitiated proceeding.” Sanchez v. Standard
Brands, Inc., 431 F.2d 455, 465 (5th Cir. 1970). As
such, courts must keep in mind the challenges plaintiffs face
when filing EEOC charges without the guidance of a lawyer.
Applying the Virgo Factors
addressing Fourth Avenue's motion, the court examines
several factors, including: “(1) the similarity of
interest between the named party and the unnamed party; (2)
whether the plaintiff could have ascertained the identity of
the unnamed party at the time the EEOC charge was filed; (3)
whether the unnamed parties received adequate notice of the
charges; (4) whether the unnamed parties had an adequate
opportunity to participate in the reconciliation process; and
(5) whether the unnamed party actually was prejudiced by its
exclusion from the EEOC proceedings.” Virgo,
30 F.3d at 1359. No. single factor is dispositive, and
“courts do not apply a rigid test.” Id.
Also, the court may consider “whether an investigation
of the unnamed party could have reasonably grown out of [the
EEOC] charge” and “[t]hat factor weighs in favor
of inclusion of an unnamed party if the party's identity
or participation in the alleged discrimination . . . is
likely to be uncovered during the EEOC's reasonable
investigation.” Lewis, 402 Fed.Appx. at 456-57
(internal citations omitted).
explained below, because the court accepts Kelly's
factual pleadings at this juncture, Fourth ...