United States District Court, D. Maryland, Southern Division
J. HAZEL UNITED STATES DISTRICT JUDGE.
action is brought by Plaintiff Monica Farmer, a former
employee of Defendants Macy's, Inc. and Macy's Retail
Holdings, Inc. (“Macy's”). Farmer alleges
mistreatment by Macy's management on the basis of race,
age, and disability beginning in June 2015 and continuing
until the termination of her employment at Macy's in
November 2015. Plaintiff filed a motion for entry of
default and for default judgment. ECF Nos. 40, 41. Defendants
have filed a Motion to Dismiss. ECF No. 44. No hearing is
necessary. See Loc. R. 105.6 (D. Md. 2016). For the following
reasons, Defendants' Motion to Dismiss, ECF No. 44, is
granted and Plaintiff's Motions for Entry of Default and
for Default Judgment, ECF Nos. 40, 41, are
began working at Macy's in February 2011, and was
promoted to Sales Supervisor in May 2011. ECF No. 39 ¶
2. In June 2014, Macy's hired Sunny Ostrander as
Plaintiff's new store manager. Id. ¶ 16.
Plaintiff alleges that Ostrander immediately promised never
to promote her and pushed her to take a severance package.
Id. ¶¶ 17-19. Plaintiff was so upset by
his behavior that she went to her doctor, who diagnosed her
with “extremely high blood pressure.”
Id. ¶ 20. The doctor advised Plaintiff to stay
home from work, and she did so for six months. Id.
¶¶ 20-21. She returned to work in December 2014,
and alleges that Ostrander continued his mistreatment of her,
including texting her at home while she was off the clock and
attempting to promote her to Sales Manager at another store.
Id. ¶¶ 26, 28. He also required her to
write an Action Plan within two hours of assigning it and
then criticized it as poorly done, after which she drove
herself to the hospital due to chest pain and was told she
had experienced a heart attack. Id. ¶¶
April 2015, she returned from medical leave, and she alleges
that Ostrander's mistreatment continued. Plaintiff
alleged that she was the only
“executive-in-charge” employee who was monitored
with the store's video cameras, and that video of her
work was shared with other managers. Id.
¶¶ 42-46. Plaintiff alleges that sharing this video
was retaliatory and harassing. Id.
2015, Plaintiff became trapped in a Macy's elevator that
began swinging from side to side and going up and down,
causing unspecified injuries. Id. ¶¶ 4-5.
Plaintiff took medical leave until October 19, 2015, when
Macy's informed her that her last medical leave extension
request would not be granted. Id. ¶ 5.
Plaintiff's doctor provided notes on August 26 and
October 5 explaining that Plaintiff remained injured, but on
November 5, 2015, Macy's terminated Plaintiff's
employment. Id. ¶¶ 6-7.
STANDARD OF REVIEW
motion to dismiss for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(6), the Court “must accept the
factual allegations of the complaint as true and construe
them in the light most favorable to the nonmoving
party.” Rockville Cars, LLC v. City of Rockville,
Md., 891 F.3d 141, 145 (4th Cir. 2018). To overcome a
12(b)(6) motion, the “complaint must contain sufficient
factual matter, accepted as true, ‘to state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). Plaintiffs must “provide sufficient
detail” to show “a more-than-conceivable chance
of success on the merits.” Upstate Forever v.
Kinder Morgan Energy Partners, 887 F.3d 637, 645 (4th
Cir. 2018) (citing Owens v. Balt. City State's
Attorneys Ofice, 767 F.3d 379, 396 (4th Cir. 2014)). The
mere recitation of “elements of a cause of action,
supported only by conclusory statements, is not sufficient to
survive a motion made pursuant to Rule 12(b)(6).”
Walters v. McMahen, 684 F.3d 435, 439 (4th Cir.
2012). Nor must the Court accept unsupported legal
allegations. Revene v. Charles Cnty. Commis., 882
F.2d 870, 873 (4th Cir. 1989). A plausibility determination
is a “context-specific inquiry” that relies on
the court's “experience and common sense.”
Iqbal, 556 U.S. at 679-80.
alleges four counts of discrimination under the Americans
with Disabilities Act: discrimination based on actual
disability, perceived disability, failure to accommodate, and
retaliation. ECF No. 39 ¶¶ 62-76. Plaintiff also
alleges age discrimination and retaliation under the Age
Discrimination in Employment Act. Id. ¶¶
77-88. Finally, Plaintiff alleges race discrimination, a
hostile work environment, and retaliation under 42 U.S.C.
§ 1981. Id. ¶¶ 89-106. As an initial
matter, Defendant alleges that Plaintiff's Title VII
claims are barred by the statute of limitations. ECF No. 44
at 3-4. Despite Plaintiff's two passing references to
“activities protected by Title VII, ”
see ECF No. 39 ¶¶ 84, 103, the Amended
Complaint does not attempt to state any claims under Title
VII. See generally 42 U.S.C. § 2000e.
Therefore, the Court will only analyze Defendants' Motion
to Dismiss Plaintiff's claims under the Americans with
Americans with Disabilities Act of 1990 (“ADA”)
prohibits discrimination by employers against qualified
individuals with a disability. 42 U.S.C. § 12112. The
ADA bars both “disparate treatment because of an
employee's disability” and “the failure to
make ‘reasonable accommodations to the known physical
or mental limitations of an otherwise qualified individual
with a disability.'” Shin v. Univ. of Md. Med.
Syst. Corp., 369 Fed.Appx. 472, 479 (4th Cir. 2010)
(quoting 42 U.S.C. § 12112(b)(5)(A)). The ADA also
prohibits retaliation against any individual who has opposed
any act of discrimination under the statute, or who has
“made a charge, testified, assisted, or participated in
any manner” in a proceeding under the statute. 42
U.S.C. § 12203.
Counts I, II, and III of her complaint, Plaintiff must
establish, as a threshold matter, that she is qualified for
her job and that she either has an actual disability or is
regarded as having one. See 42 U.S.C. § 12112;
Coursey v. Univ. of Md. E. Shore, 577 Fed.Appx. 167,
174 (4th Cir. 2014). A “qualified individual”
under the ADA is someone “who, with or without
reasonable accommodation, can perform the essential
functions” of the job. Id. § 12111(8). A
disability is defined as “‘a physical or mental
impairment' that ‘substantially limits one or more
of the major life activities of an individual,' and that
includes a record of such an impairment.”
Coursey, 577 Fed.Appx. at 174 (quoting Haulbrook
v. Michelin N. Am., 252 F.3d 696, 702-03 (4th Cir.
2001)). To demonstrate that she was regarded as disabled,
Plaintiff is required to plead that “(1) [Macy's]
mistakenly believed that [she] had a physical or mental
impairment that substantially limited one or more major life
activities, or (2) [Macy's] mistakenly believed that an
actual, nonlimiting impairment substantially limited [her] in
one or more major life activities.” Id.
has not established that she can, with or without reasonable
accommodation, perform the essential functions of the job.
Defendant granted Plaintiff medical leave from July 8, 2015
through November 1, 2015. ECF No. 10-2 at 2. From July 19,
2014 through October 19, 2015, Plaintiff only worked a total
of fifteen weeks. Id. Plaintiff was requesting
further leave “at least through December 15, 2015,
” and could not provide a certain date for her return.
Id. Courts have consistently embraced the
“commonsense conclusion” that, “in general,
employees cannot perform their jobs successfully without
meeting some threshold of both attendance and
regularity.” Gibson v. Henderson, 129
F.Supp.2d 890, 898 (M.D. N.C. 2001) (citations omitted). It
is well established that “[n]othing in the text of the
reasonable accommodation provision requires an employer to
wait an indefinite period for an accommodation to achieve its
intended effect.” Myers v. Hose, 50 F.3d 278,
283 (4th Cir. 1995). “Except in the unusual case where
an employee can effectively perform all work-related duties
at home, an employee who does not come to work cannot perform
any of his job functions, essential or
otherwise.” Tyndall v. Nat'l Educ. Ctrs, Inc.
of Cal., 31 F.3d 209, 213 (4th Cir. 1994) (internal
quotations omitted) (emphasis in original). Because
Plaintiff's alleged disability kept her out of work for
all but fifteen weeks of a fifteen-month period, she has not
plausibly alleged that she is qualified to perform the
essential functions of her job. Counts I, II, and III of the
Amended Complaint are therefore dismissed.
also brings a claim of retaliation under the ADA. To state a
claim for retaliation, “a plaintiff must show that: (1)
she engaged in a protected activity; (2) her employer acted
adversely against her; and (3) her protected activity was
causally connected to her employer's adverse
action.” Rhoads v. F.D.I.C., 257 F.3d 373, 392
(4th Cir. 2001). A request for an accommodation is a
protected activity under the ADA. See Haulbrook, 252
F.3d at 706. But because Defendants were justified in
terminating Plaintiff's employment due to her failure to
come to work for all but fifteen weeks of a fifteen-month