United States District Court, E.D. Michigan, Southern Division
ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION TO DISMISS
DENISE PAGE HOOD, District Judge.
This matter comes before the Court pursuant to Defendant Walmart Stores, Inc.'s Partial Motion to Dismiss Plaintiff's First Amended Complaint [Docket No. 17, filed October 18, 2014]. Plaintiff filed a Response to the Motion to Dismiss [Docket No. 18, filed September 1, 2014], and Defendant filed a Reply to the Response [Docket No. 21, filed September 15, 2014]. For the reasons stated below, Defendant's Partial Motion to Dismiss the First Amended Complaint is GRANTED IN PART and DENIED IN PART.
Plaintiff Viorel Cotuna is Romanian and is disabled (Amended Complaint, ¶1). Plaintiff began working at Defendant Walmart Stores, Inc. in 2002 and held various positions at several of Defendant's locations (Am. Compl., ¶¶ 2, 5). Plaintiff requested and obtained reasonable accommodation from 2002 to 2011 (Am. Compl., ¶ 7). In April 2011, Plaintiff's supervisor, an employee of Defendant, denied Plaintiff an increase in pay without supporting documentation, while four of Plaintiff's female coworkers who were similarly situated received an increase (Am. Compl., ¶¶ 8-9). Plaintiff alleges that three other similarly situated male coworkers were also denied the increase (Am. Compl., ¶ 10).
Plaintiff alleges that beginning in May 2011, he experienced intimidation, was denied reasonable accommodation requests, was assigned non-managerial tasks, was disciplined, and was told he "move[d] too slow" and "need[ed] to speak English so [other associates] understand" (Am. Compl., ¶ 12). In August 2011, Plaintiff requested and was granted medical leave under the Family Medical Leave Act, 29 U.S.C. § 2601, et seq. (Am. Compl., ¶ 14). Plaintiff subsequently requested and was granted leave based on Defendant's Leave of Absence Policy (Am. Compl., ¶ 15). Defendant's Human Resources Manager denied Plaintiff's final leave request and terminated Plaintiff on January 6, 2011 (Am. Compl., ¶ 18). Plaintiff alleges that at least one other similarly situated employee was granted a longer Leave of Absence without termination (Am. Compl., ¶ 20).
On October 30, 2013, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (hereinafter "EEOC") alleging discrimination on the basis of his national origin, retaliation, and/or disability (Am. Compl., Ex. 4, "EEOC Charge of Discrimination"). On the same day, the EEOC sent Plaintiff a Dismissal and Notice of Rights, notifying Plaintiff that he may file a lawsuit for claims under Title VII of the Civil Rights Act of 1964 ("Title VII") and the Americans with Disability Act ("ADA") within 90 days of receipt of the notice (Am. Compl., Ex. 5, "Right to Sue Notice").
On January 29, 2014, Plaintiff filed a Complaint against Defendant. Plaintiff brought the following claims against Defendant in his Amended Complaint: (i) discrimination based on gender in violation of Title VII and Michigan's Elliot-Larsen Civil Rights Act ("ELCRA"); (ii) discrimination based on national origin in violation of Title VII and ELCRA; (iii) discrimination based on disability in violation of the ADA and Michigan's Persons with Disabilities Civil Rights Act; (iv) violation of the Equal Pay Act ("EPA"); and (vii) violation of the Michigan Compensation Laws §§408.473, 408.474, and 408.475.
Now, before the Court is Defendant's Partial Motion to Dismiss Plaintiff's First Amended Complaint [Docket No. 17, filed October 18, 2014]. In its Motion, Defendant argues that it is entitled to dismissal of all claims, because Plaintiff's ADA and Title VII claims are barred by the statute of limitations. Defendant argues that Plaintiff was required to file his lawsuit by January 28, 2014, but the Docket reflects that Plaintiff's Complaint was filed on January 29, 2014. Defendant also argues that the Title VII gender discrimination claim must be dismissed for failure to exhaust administrative remedies.
Plaintiff responded to the Motion to Dismiss [Docket No. 18, filed September 1, 2014]. Plaintiff argues that his inability to secure reliable representation and his due diligence in having the Complaint delivered to the Court by January 27, 2014, warrants extending the filing date. Plaintiff further argues that current regulations make filing a gender discrimination claim with the EEOC prior to bringing a lawsuit optional, not required.
Defendant filed a Reply Brief in Support the Partial Motion to Dismiss [Docket No. 21, filed September 15, 2014]. Defendant argues that Plaintiff has not proved that he mailed the Complaint in time, and that Plaintiff has not shown that he is entitled to equitable tolling. Defendant argues that Plaintiff has conceded the fact that he did not exhaust his administrative remedies with respect to the gender discrimination claim.
III. STANDARD OF REVIEW
Rule 12(b)(6) of the Rules of Civil Procedure provides for a motion to dismiss based on failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court explained that "a plaintiff's obligation to provide the grounds' of his entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.] Factual allegations must be enough to raise a right to relief above the speculative level..." Id. at 555 (internal citations omitted). Although not outright overruling the "notice pleading" requirement under Rule 8(a)(2) entirely, Twombly concluded that the "no set of facts" standard "is best forgotten as an incomplete negative gloss on an accepted pleading standard." Id. at 563.
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." Id. at 570. A claim has facial plausibility 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. at 556. The plausibility standard is not akin to a "probability requirement, " but it asks for more than a sheer possibility that a defendant has acted unlawfully. Id. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of entitlement to relief.'" Id. at 557. Such allegations are not to be discounted because they are "unrealistic ...