Washington v. Levy Food Service ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
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THOMASINE WASHINGTON, )
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Plaintiff, )
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v. ) Civil Action No. 18-2742 (ABJ)
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LEVY FOOD SERVICE, )
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Defendant. )
___________________________________ )
MEMORANDUM OPINION
On December 3, 2018, defendant Levy Foodservice Limited Partnership (“Levy
Foodservice”) filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).1 (ECF
No. 6.) On December 4, 2018, the Court issued an order (ECF No. 7) advising the pro se plaintiff
of her obligation under the Federal Rules of Civil Procedure and the Local Civil Rules of this Court
to file an opposition to Levy Foodservice’s motion, and of the consequences of her failure to
oppose the motion. The order set a deadline of January 3, 2019 for plaintiff’s response, and the
Clerk of Court sent the order to plaintiff at her address of record. To date, plaintiff has neither
responded nor moved for an extension of time. Because plaintiff has not filed a timely response,
the Court rules on Levy Foodservice’s motion without the benefit of plaintiff’s position.
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For purposes of this Memorandum Opinion, the Court presumes without deciding that service of
process properly has been effected on Levy Foodservice, and denies its motion to dismiss under
Federal Rule of Civil Procedure 12(b)(5). In addition, the Court denies Levy Foodservice’s motion
for a more definite statement under Federal Rule of Civil Procedure 12(e) as moot.
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A plaintiff need only provide a “short and plain statement of [her] claim showing that [she]
is entitled to relief,” Fed. R. Civ. P. 8(a)(2), that “give[s] the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per
curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (internal quotation marks
omitted). To survive a motion to dismiss under Rule 12(b)(6), “a 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 Twombly, 550 U.S. at 570). This plaintiff is proceeding
pro se, and the Court holds her complaint to a less stringent standard than would be applied to a
complaint prepared by a lawyer. See Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam).
Even judged by this relaxed standard, plaintiff’s complaint falls short.
In its entirety, the complaint states:
I was wrongful [sic] Termination [sic] from my job[.] I had medical
excuse I have my paper work from my doctor telling I needed breaks
not to stand on my foot for 6 hr. a day the medical prombles [sic] to
be set down in a chair in the stand but I told I had go down in the
break room.
(Compl. (ECF No. 1-2) at 3 (page number designated by ECF)). The Court construes the complaint
as one raising a claim under the Americans with Disabilities Act (“ADA”), which generally
“prohibits discrimination against qualified individuals on the basis of disability.” U.S. Equal
Employment Opportunity Comm’n v. Wal-Mart Stores, East, LP, No. 18-cv-1314, 2018 WL
5297814, at *2 (D.D.C. Oct. 25, 2018) (citing 42 U.S.C. § 12112(a)).
An employer can discriminate by “not making reasonable accommodations to the known
physical . . . limitations of an otherwise qualified individual with a disability who is an . . .
employee [.]” 42 U.S.C. § 12112(b)(5)(A). A plaintiff adequately states a claim for failure to
accommodate by “alleg[ing] facts sufficient to show that: (1) [she] had a disability within the
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meaning of the ADA; (2) [her] employer had notice of [her] disability; (3) [she] could perform the
essential functions of the position with or without reasonable accommodation; and (4) [her]
employer refused to make such accommodation.” U.S. Equal Employment Opportunity Comm’n
v. Wal-Mart Stores, East, LP, 2018 WL 5297814, at *2 (citing Gordon v. District of Columbia, 480
F. Supp. 2d 112, 115 (D.D.C. 2007)); see Perez v. District of Columbia Dep’t of Employment
Servs., 305 F. Supp. 3d 51, 57 (D.D.C. 2018).
The Court must construe the complaint in favor of the plaintiff and grant her the benefit of
all inferences that can be derived from the facts. See Hettinga v. United States, 677 F.3d 471, 476
(D.C. Cir. 2012). But this complaint alleges so few facts, with such a lack of clarity, that the Court
must conclude that it does not state an ADA claim. Plaintiff does not identify the nature of any
alleged disability, and she fails to point to any accommodation that was sought or denied. Nor
does she indicate what it was that made her termination “wrongful” or even, when it occurred.
Therefore, the unopposed motion to dismiss will be granted.
An Order is issued separately.
/s/
AMY BERMAN JACKSON
United States District Judge
DATE: January 18, 2019
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