Opinion
CIVIL ACTION NO. 1:18-CV-0806
12-16-2019
JENNIFER WALSTRUM., Plaintiff v. WAL-MART STORES EAST, LP, Defendant
(CONNER, C.J.) ()
REPORT & RECOMMENDATION
I. INTRODUCTION
Plaintiff Jennifer Walstrum ("Plaintiff"), now a pro se litigant, brought suit seeking damages for alleged violations of the Americans with Disabilities Act ("ADA") and the Family Medical Leave Act ("FMLA") by her employer, Wal-Mart Stores East, LP ("Defendant"). Presently before the court is Defendant's Motion to Dismiss for Lack of Prosecution (Doc. 36). For the reasons below, I RECOMMEND that Defendant's Motion be GRANTED. II. FACTUAL AND PROCEDURAL HISTORY
Plaintiff was represented by counsel when the complaint was filed. However, Counsel filed a Motion to Withdraw for "good cause" on October 9, 2018, (Doc. 17) which was granted (Docs. 19, 22, & 23).
According to her Complaint, Plaintiff began her employment with Defendant on or about September 6, 2016. (Doc. 1, ¶ 19). At that time, she informed her managers that she had a prescription for methadone. Id. On October 6, 2016, Plaintiff was cleaning her assigned cash register when she bent down to grab paper towels and felt a sharp prick on her hand. Id. at ¶¶ 21-22. Plaintiff's hand began to swell, a severe rash appeared, and her hand began to itch. Id. at ¶¶ 23-24. Plaintiff immediately informed her manager of the injury. Id. at ¶¶ 25-26. Plaintiff's manager directed Plaintiff to file an employee incident report. Id.
Plaintiff was taken to a doctor assigned for Wal-Mart associate incidents. Id. at ¶ 27. At the doctor's office, staff administered a drug test on Plaintiff. Id. at ¶ 30. Plaintiff explained to the doctor's staff that she had a prescription for methadone. Id. at ¶ 31. Plaintiff was informed that she would need to provide paperwork proving she was prescribed methadone at her next appointment and that she would be paid for her shift that day. Id. at ¶ 32. On October 12, 2016, Plaintiff attended her follow-up appointment and was told she could return to work. Id. at ¶¶ 37-39. Plaintiff sent papers proving her methadone prescription to Defendant via fax. Id. at ¶ 40. Plaintiff was never notified that her paperwork was not received. Id. at ¶ 41.
On October 21, 2016, Plaintiff was asked to sign out an hour before her shift was supposed to end and report to the office. Id. at ¶¶ 44-46. Plaintiff was informed by store managers that she was being terminated for failing a drug test that showed methadone in her system. Id. at ¶¶ 47-48. Plaintiff was informed that they never received any paper work showing that she was prescribed methadone and denied Plaintiff the opportunity to provide the paperwork. Id. at ¶¶ 49-53.
On April 13, 2018, Plaintiff filed her Complaint (Doc. 1), alleging Defendant violated the ADA and the FMLA. As relief, Plaintiff seeks injunctive relief and monetary damages—including compensatory and punitive damages. On July 24, 2019, Defendant filed a Motion to Dismiss for Failure to Prosecute (Doc. 36) and a Brief in Support (Doc. 37). The matter was referred to me, and I ordered Plaintiff to file a brief in opposition on or before October 28, 2019. (Doc. 39). At this time, Plaintiff has not filed a brief in opposition. III. LEGAL STANDARD
Rule 41(b) of the Federal Rules of Civil Procedure authorizes a court to dismiss a civil action for failure to prosecute, stating that: "If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it." Fed. R. Civ. P. 41(b). Decisions regarding dismissal of actions for failure to prosecute rest in the sound discretion of the Court and will not be disturbed absent an abuse of that discretion. Emerson v. Thiel College, 296 F. 3d 184, 190 (3d Cir. 2002) (citations omitted). That discretion, while broad, is governed by certain factors, commonly referred to as Poulis factors.
As the United States Court of Appeals for the Third Circuit has noted:
To determine whether the District Court abused its discretion [in dismissing a case for failure to prosecute], we evaluate its balancing of the following factors: (1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984).Emerson, 296 F.3d at 190.
In exercising this discretion, "there is no 'magic formula' that we apply to determine whether a District Court has abused its discretion in dismissing for failure to prosecute." Lopez v. Cousins, 435 F. App'x 113, 116 (3d Cir. 2011) (quoting Briscoe v. Klaus, 538 F.3d 252 (3d Cir. 2008)). Therefore, "[i]n balancing the Poulis factors, [courts] do not employ a . . . 'mechanical calculation' to determine whether a District Court abused its discretion in dismissing a plaintiff's case." Briscoe, 538 F.3d at 263 (quoting Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992)). Consistent with this view, it is well-settled that "no single Poulis factor is dispositive," and that "not all of the Poulis factors need be satisfied in order to dismiss a complaint." Briscoe, 538 F.3d at 263 (internal citations and quotations omitted). Moreover, recognizing the broad discretion conferred upon the district court in making judgments weighing these six factors, the court of appeals has frequently sustained such dismissal orders where there has been a pattern of dilatory conduct by a pro se litigant who is not amendable to any lesser sanction. See, e.g., Emerson, 296 F.3d 184; Tillio v. Mendelsohn, 256 F. App'x 509 (3d Cir. 2007); Reshard v, Lankenau Hospital, 256 F. App'x 506 (3d Cir. 2007); Azubuko v. Bell National Organization, 243 F. App'x 728 (3d Cir. 2007). IV. ANALYSIS
In this case, a dispassionate assessment of the Poulis factors weighs in favor of dismissal of Plaintiff's Complaint.
Consideration of the first factor, the extent of the party's personal responsibility, shows that the delays in this case are entirely attributable to Plaintiff. Plaintiff has failed to abide by court orders and neglected to litigate this case. Throughout the litigation of this case, Plaintiff failed to appear for telephone conferences or participate with discovery (Docs. 27, 33 & 34). Plaintiff has been consistently unresponsive. Further, Plaintiff failed to file a brief in opposition to Defendant's Motion to Dismiss or otherwise respond in any fashion to the Court's order. For these reasons, the first Poulis factor, the party's personal responsibility, weighs in favor of dismissal.
The second Poulis factor, the prejudice to the adversary caused by Plaintiff's failure to prosecute, weighs in favor of dismissal in this case. Plaintiff's failure to respond to discovery requests has prevented Defendant from obtaining information regarding Plaintiff's case and preparing its defense against Plaintiff's claims. Further, Plaintiff has failed to comply with the court order directing her to file a response to Defendant's motion to dismiss. Her actions have created an unnecessary stalemate and prevent Defendant from conducting discovery or preparing for trial. Plaintiff's failure to litigate this claim or comply with court orders now wholly frustrates and delays the resolution of this action. Accordingly, the Court finds that the second Poulis factor weighs in favor of dismissal.
The third Poulis factor, the history of dilatoriness on plaintiff's part, cuts in favor of dismissal. Plaintiff has failed to participate in this litigation after filing her Complaint. Plaintiff consistently failed to participate in discovery. Plaintiff provided no response to written discovery requests, after multiple attempts by Defendant. Plaintiff did not appear for her deposition, nor has she provided any dates she would be available to be deposed by Defendant. My chambers successfully contacted Plaintiff to schedule a telephone conference, but Plaintiff was unreachable the day of the call. My chambers contacted Plaintiff, notifying her that she missed the scheduled telephone conference, and attempted to schedule another telephone conference (Doc. 34). We have not received any further communications from Plaintiff. Finally, Plaintiff failed to file a brief in opposition, even after a court order directed her to do so. Plaintiff has a considerable history of dilatoriness. Plaintiff's apparent abandonment of her claim, coupled with her failure to submit a brief in opposition to Defendant's Motion to Dismiss, weighs in favor of dismissal.
The fourth Poulis factor, whether Plaintiff's conduct was willful or in bad faith cuts against Plaintiff. In this setting, the Court must assess whether Plaintiff's failure to prosecute reflects mere inadvertence or willful conduct, in that it involved "strategic," "intentional or self-serving behavior," and not mere negligence. Adams v. Trs. of N.J. Brewery Emps. Pension Trust Fund, 29 F.3d 863, 875 (3d Cir. 1994). At this juncture, when a plaintiff fails to comply with instructions of the Court directing her to take specific actions in this case, the Court is compelled to conclude that the plaintiff's actions are not accidental or inadvertent but instead reflect an intentional disregard for this case and the Court's instructions. I cannot say whether the repeated delays were "strategic," however it appears Plaintiff's behavior was "intentional and self-serving." Therefore, the fourth factor weighs in favor of dismissal.
The fifth Poulis factor, the effectiveness of lesser sanctions, weighs in favor of dismissal. Cases construing Poulis agree that in a situation such as this case, where we are confronted by a pro se litigant who will not comply with the rules or court orders, lesser sanctions may not be an effective alternative. See e.g., Briscoe, 538 F.3d at 262-63; Emerson, 296 F.3d at 191. Here, Plaintiff's status as a pro se litigant severely limits the ability of the court to utilize other lesser sanctions to ensure that this litigation progresses in an orderly fashion. We have endeavored to use lesser sanctions by entering our prior orders and counseling Plaintiff on her obligations in the case, to no avail. As such, I find that a lesser sanction would be ineffective.
Finally, under Poulis, the Court is cautioned to consider one other factor: the meritoriousness of Plaintiff's claims or defenses. Generally, in determining whether a plaintiff's claims are meritorious, we use the standard for a Rule 12(b)(6) motion to dismiss. Poulis, 747 F.2d at 869-70. "A claim, or defense, will be deemed meritorious when the allegations of the pleadings, if established at trial, would support recovery by plaintiff or would constitute a complete defense." Id.
Plaintiff alleges that Defendant violated the ADA and the FMLA. I conclude that Plaintiff has pled a plausible ADA claim but her FMLA claim fails on the merits.
Regarding her ADA claim, Plaintiff alleges that she is a "qualified individual with a disability" and that Defendant discriminated against her based on that disability. (Doc. 1, ¶¶ 63-65). Plaintiff also appears to allege a retaliation under the ADA. Id. at ¶ 66.
Under the ADA, in order to establish a prima facie case of disability discrimination, a plaintiff must show that "(1) [s]he is a disabled person within the meaning of the ADA; (2) [s]he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) [s]he has suffered an otherwise adverse employment decision as a result of discrimination." Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999) (quoting Gaul v. Lucent Technologies, 134 F.3d 576, 580 (3d Cir. 1998)).
The "status of being an alcoholic or illegal drug user may merit [ADA] protection." Nielsen v. Moroni Feed Co., 162 F.3d 604, 609 (10th Cir. 1998). Though an individual currently engaging in the illegal use of drugs is not a qualified individual for ADA purposes, there are some exceptions to this rule. See 42 U.S.C. 12114. Section 12114(b) provides three situations where an individual shall be construed as a qualified individual with a disability:
an individual who—42 U.S.C. § 12114(b).
(1) has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use;
(2) is participating in a supervised rehabilitation program and is no longer engaging in such use; or
(3) is erroneously regarded as engaging in such use, but is not is not engaging in such use.
Plaintiff merely alleges that she is an individual with a disability and was discriminated against by Defendant based on that disability. Based on her allegation that she was prescribed methadone, I construe Plaintiff's claim to be that she seeks to qualify as an individual with a disability under Section 12114(b). Based on her Complaint, Plaintiff was terminated from her employment with Defendant. This termination occurred when Defendant discovered that Plaintiff failed a drug test because of her prescribed use of methadone. Liberally construing the minimal facts provided by Claimant, I conclude that Plaintiff has stated a plausible claim under the ADA.
Methadone hydrochloride is defined as "a synthetic opid analgesic, possessing pharmacological actions similar to those of morphine and herion and similar potential for addiction; used as an analgesic and as a narcotic abstinence syndrome suppressant in the treatment of heroin addiction. Methadone hydrochloride, Dorland's Illustrated Medical Dictionary, p. 1146 (32d ed. 2012).
Plaintiff also appears to allege a retaliation claim under the ADA. The elements of a retaliation claim under the ADA are: (1) protected employee activity; (2) adverse action by the employer either after or contemporaneous with the employee's protected activity; and (3) a causal connection between the employee's protected activity and the employer's adverse action. Williams v. Phila. Hous. Auth. Police Dep't, 380 F.3d 751, 759 (3d Cir. 2004) (citations and internal quotation marks omitted). Plaintiff has not alleged that she was engaged in a "protected activity." Thus, Plaintiff has failed to sufficiently allege a retaliation claim under the ADA. --------
As discussed above, the decision of whether to dismiss a complaint rests in the sound discretion of the Court. In exercising this discretion "there is no 'magic formula' that we apply to determine whether a District Court has abused its discretion in dismissing for failure to prosecute." Lopez v. Cousins, 435 F. App'x 113, 116 (3d Cir. 2011) (quoting Briscoe v. Klaus, 538 F.3d 252 (3d Cir. 2008)). Therefore, "[i]n balancing the Poulis factors, [courts] do not [employ] a . . . 'mechanical calculation' to determine whether a District Court abused its discretion in dismissing a plaintiff's case." Briscoe, 538 F.3d at 263 (quoting Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir.1992)). Consistent with this view, it is well-settled that "no single Poulis factor is dispositive," and that "not all of the Poulis factors need be satisfied in order to dismiss a complaint." Briscoe, 538 F.3d at 263 (internal citations and quotations omitted). Moreover, recognizing the broad discretion conferred upon the district court in making judgments weighing these six factors, the court of appeals has frequently sustained such dismissal orders where there has been a pattern of dilatory conduct by a pro se litigant who is not amenable to any lesser sanction. See, e.g., Emerson, 296 F.3d 184; Tillio v. Mendelsohn, 256 F. App'x 509 (3d Cir. 2007); Reshard v. Lankenau Hospital, 256 F. App'x 506 (3d Cir. 2007); Azubuko v. Bell National Organization, 243 F. App'x 728 (3d Cir. 2007). Thus, even though Plaintiff may have alleged a plausible claim under the ADA, her Complaint should be dismissed for failure to prosecute.
With respect to Plaintiff's ADA claim, five out of the six Poulis factors weigh in favor of dismissal. Furthermore, Plaintiff has just barely pleaded enough facts to state a plausible claim. Given the weakness of this claim, as well as Plaintiff's apparent abandonment of this case, I recommend that this claim be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
I next address Plaintiff's FMLA claim. Regarding her FMLA claim, Plaintiff alleges that she was entitled to FMLA leave and Defendant interfered with, restrained, or denied Plaintiff's FMLA rights. (Doc. 1, ¶¶ 70-71).
Regarding the FMLA, this Court has explained:
The twin purposes of the FMLA are to "balance the demands of the workplace with the needs of families" and to entitle employees to take reasonable leave for medical reasons." 29 U.S.C. § 2601(b)(1), (2); Conoshenti v. Pub. Serv. Elec. Gas Co., 364 F.3d 135, 140-41 (3d Cir.2004). The FMLA contains two distinct types of rights, which together seek to meet the needs of families and employees while accommodating the legitimate interests of employers. E.g., Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 763 (5th Cir. 2001); Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 159-60 (1st Cir. 1998); Campetti v. Career Educ. Corp., No. 02-CV-1349, 2003 WL 21961438, at *12-14 (E.D. Pa. 2004). First, the statute provides a series of prescriptive or substantive rights, often referred to as the "entitlement" or "interference" provisions, which serve to "set substantive floors for conduct by employers, and creat[e] entitlements for employees." Hodgens, 144 F.3d at 159 (internal quotation and citation omitted); accord Callison v. City of Philadelphia, 430 F.3d 117, 119 (3d Cir.2005). Primarily, the prescriptive provisions of the FMLA relate to a qualified employee's ability to take up to twelve weeks of unpaid leave and be returned to an equivalent position upon the expiration of that leave. Callison, 430 F.3d at 119; see 29 U.S.C. §§ 2612-2614, 2615(a)(1). The second type of rights contained in the FMLA are "proscriptive" rights. Hodgens, 144 F.3d at 159-60. These relate to the protection that is afforded to an employee in the event that he experiences discrimination or retaliation in response to the exercise of his prescriptive rights under the FMLA. Id.; see 29 U.S.C. § 2615(a)(2), (b); Callison, 430 F.3d at 119.Rigel v. Wilks, 1:03-CV-971, 2006 WL 3831384, at *10 (M.D. Pa. December 28, 2006).
Plaintiff argues that she was an "eligible employee" under the FMLA but fails to allege any other facts. Plaintiff does not allege that she had exercised, or even attempted to exercise, FMLA rights. Plaintiff has not provided enough facts to determine whether a claim exists under the FMLA. Plaintiff fails to state a claim upon which relief can be granted. Thus, regarding Plaintiff's FMLA claim, the final factor is in favor of dismissal. Regarding Plaintiff's FMLA claim, as in the analysis of the FDA claim, the six Poulis factors are in favor of dismissal. Therefore, I recommend that this claim be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
Based on my analysis of the Poulis factors, I recommend that both Plaintiff's ADA claim and FMLA claim be dismissed for failure to prosecute.
[The following page contains the recommendation.]
V. RECOMMENDATION IT IS RECOMMENDED THAT:
(1) Defendant Wal-Mart Stores East, LP's Motion to Dismiss for Lack of Prosecution (Doc. 36) be GRANTED;Date: December 16, 2019
(2) The Complaint (Doc. 1) be DISMISSED for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure; and
(3) The Clerk of Court should CLOSE this case.
BY THE COURT
s/William I . Arbuckle
William I. Arbuckle
U.S. Magistrate Judge
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.Date: December 16, 2019
BY THE COURT
s/William I . Arbuckle
William I. Arbuckle
U.S. Magistrate Judge