Washington v. Levy Food Service

• Court: District Court, District of Columbia
• Decided: January 18, 2019
• Docket: Civil Action No. 2018-2742
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ___________________________________ ) THOMASINE WASHINGTON, ) ) Plaintiff, ) ) v. ) Civil Action No. 18-2742 (ABJ) ) LEVY FOOD SERVICE, ) ) 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.

1 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. 1 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

2 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