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Kelly v. Fourth Avenue Super Market Inc.

United States District Court, N.D. Alabama, Southern Division

June 26, 2019




         Michael 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.


         Under 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).

         Federal 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.


         Kelly, 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. Id.

         Shortly 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.

         The 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 letter.


         A 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. Id.

         A. Applying the Virgo Factors

         In 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).

         As explained below, because the court accepts Kelly's factual pleadings at this juncture, Fourth ...

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