Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Holt v. Crossmark/Sam's Club

United States District Court, Second Circuit

June 27, 2013

BILLIE HOLT, Plaintiff,


MICHAEL A. TELESCA, District Judge.


Plaintiff Billie Holt, ("Holt"), proceeding pro se, brings this action pursuant to the Americans with Disabilities Act ("ADA") and the New York Human Rights Law claiming that defendants Crossmark and Sam's Club unlawfully discriminated against her on the basis of a disability. Specifically, plaintiff, who is a former employee of Crossmark, claims that she was retaliated against, not promoted, and ultimately fired from her employment because of a disability. Defendants deny plaintiff's claims and move to dismiss plaintiff's Complaint on grounds that plaintiff has failed to state a cause of action for employment discrimination. Defendant Crossmark contends that plaintiff has failed to allege that she is disabled under the ADA; that Crossmark failed to accommodate any disability; and that plaintiff has failed to exhaust her claims with respect to her claims that she was not promoted or retaliated against. Defendant Sam's Club moves to dismiss plaintiff's complaint on grounds that plaintiff failed to administratively exhaust any claims against Sams's Club, and that Sam's Club may not be held liable for employment discrimination because Sam's Club was not plaintiff's employer. For the reasons set forth below, I grant defendants' motions to dismiss plaintiff's Complaint.


Plaintiff Billie Holt brings this action pro se, and has failed to respond to the defendants' motions to dismiss. The claims set forth in her Complaint are extremely sparse, and fail to include crucial details that would allow the court evaluate her claims in an exhaustive manner. For example, although plaintiff alleges that she was discriminated against on the basis of a disability, plaintiff fails to allege what her alleged disability is, and how any disability may affect her ability to perform her job functions. With respect to her employment, plaintiff fails to allege the dates of her employment, referring only to certain months in which she was employed, but not identifying the year. Additionally, plaintiff fails to identify what she did as an employee of Crossmark

Based on facts set forth in the defendants' motion papers, which plaintiff has failed to rebut, it appears that Holt was hired by Crossmark in June 2010, to conduct in-store demonstrations and promotions at one or more Sam's Club locations. Crossmark, according to an Exhibit attached to defendant Sam's Club Complaint, is a "professional marketing service" that conducts promotional events inside of Sam's Clubs stores, for the purpose of increasing interest and sales of goods sold by Sam's Club. According to Crossmark, plaintiff worked for Crossmark from June 2010 until April 2011.

Plaintiff alleges that in July (presumably of 2010), she was promoted to the position of Assistant Manager. She then states in her Complaint that: "November Manager became unavailable." she repeats the identical allegation for December, January, February, and March, presumably from 2010 to 2011. It is not clear to the Court what plaintiff is attempting to claim with these allegations. Plaintiff then alleges: "April Terminated and told because I was disabled and Alanna Salls did not know." Alanna Salls is not otherwise identified in the Complaint, and the Court presumes that plaintiff alleges that she was fired in April, 2011.[1] Plaintiff goes on to state that:

[d]uring the time I worked for Crossmark inside of Sam's Club, Shelly the Sam's Manager would harass me, as well as other workers. Shelly and her cohorts lied about me and said I steal from Sam's Club which is not true. This is on my record. Wal-mart refused to hire me as store manager in Greece because of Crossmark's referral about Sam's Club.

Shelly is not further identified in the Complaint. Finally, despite not identifying her alleged disability, she claims that the first date on which she asked for an accommodation of her disability was June 8, 2012, two years after she began her employment, and more than one year after she was fired.[2] She claims that the accommodation for her disability provided by Crossmark was that she was allowed to use her own sitting stool for 10 minutes every hour, and later on during her employment, for 10 minutes every two hours.

According to Crossmark, plaintiff was fired in April, 2011 after she was observed stealing items from Sam's Club. Crossmark further alleges that plaintiff failed to run promotional events at Sam's Club stores.


I. Legal Standards for evaluating a Motion to Dismiss

Defendants move to dismiss plaintiff's Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure claiming that plaintiff has failed to state a cause of action, her claims are untimely, and that she has failed to exhaust her administrative remedies. When evaluating a Rule 12(b)(6) motion, the court must ascertain, after presuming all factual allegations in the pleading to be true and viewing them in the light most favorable to the plaintiff, whether or not the plaintiff has stated any valid ground for relief. Ferran v. Town of Nassau , 11 F.3d 21, 22 (2d Cir. 1993), cert. denied 513 U.S. 1014 (1994). The court may grant a Rule 12(b)(6) motion only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Allen v. WestPoint-Pepperell, Inc. , 945 F.2d 40, 44 (2d Cir. 1991) (quoting Conley v. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.