Chestnut v. WalMart

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
PARIS CHESTNUT,
Plaintiff,
vs.
WALMART,
Defendant.
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CIVIL ACTION NO. 24-00317-KD-B
REPORT AND RECOMMENDATION
This 	action 	is 	before 	the 	Court 	on 	Defendant 	Walmart’s1
partial motion to dismiss (Doc. 6). 	The motion has been referred
to 	the 	undersigned 	Magistrate 	Judge 	for 	consideration 	and
recommendation 	pursuant 	to 	28 	U.S.C. 	§ 	636(b)(1) 	and 	S.D. 	Ala.
GenLR 	72(a)(2)(S). 	Upon 	consideration 	of 	all 	matters 	presented,
the 	undersigned 	recommends, 	for 	the 	reasons 	stated 	herein, 	that
Defendant’s motion be GRANTED.
I. 	BACKGROUND
On 	September 	1, 	2024, 	Plaintiff 	Paris 	Chestnut 	(“Chestnut”)
commenced 	this 	action 	by 	filing 	a 	complaint 	against 	Defendant
Walmart (“Walmart”) “for violations of her rights under Title VII
of the Civil Rights Act of 1964 . . . and 42 U.S.C. 1981 protecting
1 	Although 	Defendant 	states 	that 	it 	is 	incorrectly 	identified 	as
“Walmart” 	in 	Chestnut’s 	complaint, 	Defendant 	has 	variously
identified 	itself 	as 	both 	“Walmart 	Stores 	East, 	LP” 	and 	“Walmart
Inc.” 	(See 	Doc. 	5 	at 	1, 	15; 	Doc. 	6 	at 	1, 	4; 	Doc. 	14 	at 	1, 	4).
Therefore, 	Defendant’s 	proper 	name 	is 	not 	clear 	to 	the 	Court 	at
this time.
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individuals 	from 	racial 	discrimination 	and 	retaliation 	in 	their
employment” 	and 	“violations 	of 	the 	Americans 	with 	Disabilities
Act.” 	(Doc. 1).
Chestnut, 	who 	“is 	African 	American,” 	alleges 	that 	she 	began
working 	for 	Walmart 	“in 	Supercenter 	#866 	in 	the 	deli 	on 	or 	about
September 15, 2022.”2 	(Id. at 3). 	Chestnut’s team lead was Betty
Gregory 	(“Gregory”). 	(Id.). 	In 	October 	2022, 	Chestnut 	was
approved for and took two days of bereavement leave for the death
of 	her 	brother. 	(Id. 	at 	3-4). 	During 	her 	brother’s 	funeral,
Chestnut learned from a co-worker that Gregory was discussing her
at 	work. 	(Id. 	at 	4). 	“Gregory 	stated 	she 	did 	not 	believe
Chestnut’s 	brother 	died, 	and 	claimed 	she 	did 	not 	know 	where
Chestnut 	was” 	and 	that 	“Chestnut 	did 	not 	call 	in.” 	(Id.).
Although “Chestnut’s time for bereavement leave was paid time off,”
Gregory 	assessed 	Chestnut 	with 	disciplinary 	points.3 	(Id.).
Chestnut complained to the store manager about the “difference in
treatment between” Chestnut and a white employee who “took off for
a 	week 	[for] 	her 	grandfather’s 	funeral” 	but 	was 	not 	given 	points
by 	Gregory. 	(Id.). 	The 	store 	manager 	“ended 	up 	taking
2 	For 	purposes 	of 	resolving 	the 	instant 	motion 	to 	dismiss, 	the
Court accepts as true the facts alleged in Chestnut’s complaint.
3 	Chestnut’s 	complaint 	explains 	that 	when 	a 	Walmart 	“employee 	is
tardy 	or 	has 	unexcused 	absences, 	they 	are 	supposed 	to 	receive
points.” 	(Doc. 	1 	at 	3). 	“When 	an 	employee 	receive[s] 	five 	(5)
points 	they 	can 	be 	terminated.” 	(Id.). 	“Bereavement 	leave 	does
not count toward points.” 	(Id. at 4).
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[Chestnut’s] 	points 	off 	because 	the 	points 	were 	not 	warranted.”
(Id.). 	However, 	after 	Chestnut 	complained 	about 	Gregory’s
treatment of her, “Gregory cut Chestnut’s hours.” 	(Id.).
“If Chestnut had PTO,” Gregory “would change it at the end of
the 	pay 	period 	and 	give 	her 	and 	other 	black 	employees 	points[,]”
while 	white 	employees 	were 	allowed 	to 	call 	out 	without 	receiving
points from Gregory. 	(Id. at 5). 	On November 2, 2022, “Chestnut
formally 	complained 	to 	management 	of 	the 	difference 	in 	treatment
between 	white 	employees 	and 	black 	employees 	and 	she 	was 	asked 	to
write a statement.” 	(Id.). 	However, “[n]othing was done to remedy
the 	difference 	in 	treatment 	after 	the 	formal 	complaint 	of
discrimination[,]” 	and 	“Gregory 	cut 	Chestnut’s 	hours 	again.”
(Id.).
Additionally, Chestnut alleges that she “does not have a gall
bladder” and therefore “has a medical issue that requires frequent
visits 	to 	the 	restroom,” 	for 	which 	she 	is 	prescribed 	medication.
(Id.). 	“Chestnut 	informed 	her 	employer 	of 	this 	condition 	and
requested 	the 	accommodation 	of 	being 	able 	to 	go 	to 	the 	bathroom
regularly.” 	(Id. 	at 	6). 	However, 	when 	Chestnut 	“went 	to 	the
restroom, 	she 	was 	followed 	and 	spied 	on.” 	(Id.). 	“Gregory 	came
into 	the 	restroom 	herself 	to 	determine 	whether 	Chestnut 	was, 	in
fact, using the restroom.” 	(Id.). 	“Chestnut was also watched on
cameras 	to 	see 	how 	many 	times 	she 	went 	to 	the 	restroom 	during 	a
shift and to determine the duration [of] her use of the restroom.”
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(Id.). 	“Chestnut 	was 	counseled 	on 	her 	frequent 	visits 	to 	the
bathroom.” 	(Id.). 	“White 	employees 	without 	disabilities 	were
allowed to go to the bathroom without being followed, watched, or
coached.” 	(Id.). 	Chestnut states that the medication she “takes
for her medical condition dries her mouth[,]” and she “often chews
gum 	to 	help 	with 	the 	dryness.” 	(Id. 	at 	6-7). 	“On 	February 	12,
2023, 	Chestnut 	was 	coached 	on 	chewing 	gum[,]” 	while 	“[w]hite 	and
non-disabled 	employees 	were 	allowed 	to 	chew 	gum 	and 	did 	so
regularly without coaching.” 	(Id. at 7).
On 	February 	10, 	2023, 	Chestnut 	spoke 	with 	the 	store 	manager
and 	“told 	him 	she 	felt 	like 	she 	was 	being 	discriminated 	against
again, 	and 	that 	violations 	of 	the 	ADA 	were 	occurring.” 	(Id. 	at
6). 	Chestnut informed the store manager that “nothing had changed
and that she was still experiencing ongoing issues from her prior
complaint.” 	(Id.). 	Chestnut also explained to the store manager
“that her medication causes her dry mouth, so she chewed gum, but
he 	did 	not 	care.” 	(Id. 	at 	7). 	The 	store 	manager 	told 	Chestnut
that “Gregory was stepping down so she should not worry.” 	(Id.).
On 	February 	12, 	2023, 	“Chestnut 	submitted 	a 	formal 	complaint.”
(Id. 	at 	6). 	“The 	next 	day, 	Chestnut 	received 	notice 	her 	ethics
complaint had been closed because it had been rectified.” 	(Id. at
7).
Gregory 	was 	“moved” 	to 	a 	different 	department, 	but 	“the
remainder 	of 	Chestnut’s 	supervisory 	chain 	continued 	the
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harassment” 	and 	subjected 	Chestnut 	“to 	even 	more 	heightened
scrutiny” 	after 	her 	complaints. 	(Id. 	at 	7, 	9). 	“Chestnut 	heard
from co-workers that her chain of command talk[ed] about her when
she 	[was] 	not 	at 	work.” 	(Id. 	at 	7). 	Gregory 	and 	Chestnut’s
supervisor “‘investigated’ Chestnut for ‘joy riding carts’ around
on her shift when she was moving an inoperable cart.” 	(Id. at 9).
“Chestnut 	had 	to 	defend 	herself 	constantly 	as 	they 	continuously
asked her if she was doing her work.” 	(Id.). 	Despite being moved
to 	a 	different 	department, 	“Gregory 	continued 	to 	talk 	about
Chestnut telling her co-workers the reason she was not in the deli
was 	because 	of 	Chestnut, 	and 	that 	Chestnut 	was 	going 	to 	get 	what
is 	coming 	to 	her, 	she 	can’t 	wait 	until 	Chestnut 	is 	gone, 	and 	she
wanted to get rid of Chestnut.” 	(Id. at 7). 	Gregory gave Chestnut
“a 	mean 	look 	each 	time 	she 	saw 	her.” 	(Id. 	at 	8). 	“Chestnut
experienced anxiety and stress to the point where she took a leave
of 	absence.” 	(Id.). 	While 	Chestnut 	was 	out 	for 	two 	weeks 	on
leave, 	“Gregory 	told 	Chestnut’s 	co-workers 	she 	quit 	which 	was
false.” 	(Id.). 	A 	co-worker 	who 	“spoke 	up 	on 	Chestnut’s 	behalf”
was 	“bullied 	for 	supporting 	Chestnut 	and 	her 	hours 	were 	cut.”
(Id.).
“In October 2023, Chestnut was terminated from her employment
for 	‘chewing 	gum’ 	which 	they 	claimed 	was 	a 	violation 	of 	policy.”
(Id. 	at 	9). 	“White 	employees 	were 	chewing 	gum 	on 	a 	regular
basis[,]” 	and 	employees 	“who 	had 	not 	complained 	of 	race
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discrimination 	and 	disability 	discrimination 	chewed 	gum 	on 	a
regular basis” without repercussion. 	(Id.).
In counts one and two of her complaint, Chestnut alleges that
she was subjected to a discriminatory discharge based on her race
in violation of 42 U.S.C. § 1981.4 	(Id. at 9-10). 	In count three,
Chestnut 	alleges 	that 	she 	was 	subjected 	to 	disparate 	treatment
based 	on 	her 	race 	in 	violation 	of 	Title 	VII 	of 	the 	Civil 	Rights
Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”).
(Id. 	at 	10-11). 	In 	count 	four, 	Chestnut 	alleges 	that 	she 	was
subjected to disparate treatment based on her race in violation of
42 U.S.C. § 1981. 	(Id.).
In 	count 	five, 	Chestnut 	claims 	that 	she 	was 	subjected 	to
retaliation in violation of Title VII. 	(Id. at 11-12). 	In count
six, 	Chestnut 	alleges 	that 	she 	was 	subjected 	to 	retaliation 	in
violation 	of 	42 	U.S.C. 	§ 	1981. 	(Id.). 	Counts 	five 	and 	six 	both
allege:
Chestnut 	has 	established 	a 	convincing 	mosaic 	of 	direct
and circumstantial evidence that she was subjected to a
retaliation.
Chestnut 	engaged 	in 	protected 	activity 	by 	complaining
about racial discrimination and harassment verbally and
in 	writing 	to 	the 	Store 	Manager 	and 	to 	the 	ethics
hotline.
In response to Chestnut’s protected activity, Defendant
subjected her to a retaliation.
4 	It 	is 	not 	clear 	why 	Chestnut 	purports 	to 	assert 	this 	claim 	in
two counts rather than one.
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The retaliation included, but was not limited to:
a. Cutting her hours
b. Heightened scrutiny
c. Watched her on video’s and followed her into the
bathroom 	to 	ensure 	she 	was 	actually 	go[i]ng 	to 	the
bathroom
d. 	Coaching 	her 	for 	a 	long 	lunch 	on 	a 	day 	she 	was
sick, 	coaching 	her 	for 	going 	to 	the 	bathroom, 	and
Coaching her for “chewing gum”
e. Giving her mean looks,
f. Telling people she quit when she didn’t
g. Talking about Chestnut to her co-workers
h. 	Telling 	co-workers 	they 	can’t 	wait 	until 	they
are rid of Chestnut and that Chestnut will get her due
i. 	Cutting 	hours 	of 	co-workers 	who 	stood 	up 	for
Chestnut
j. Terminating Chestnut
This conduct might well dissuade a reasonable person in
the 	Plaintiff’s 	position 	from 	complaining 	of
discrimination.
There 	is 	a 	causal 	connection 	between 	Chestnut’s
protected 	activity 	and 	the 	adverse 	employment 	actions
because 	there 	is 	close 	temporal 	proximity 	to 	each
complaint and her former supervisor whom she complained
about said she was going to get her due and she couldn’t
wait to get rid of her.
As 	a 	result 	of 	Defendant’s 	unlawful 	conduct, 	Chestnut
has suffered damages.
(Id.).
In 	count 	seven, 	Chestnut 	claims 	that 	she 	was 	subjected 	to 	a
discriminatory 	discharge 	based 	on 	her 	disability 	in 	violation 	of
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the Americans with Disabilities Act, as amended, 42 U.S.C. § 12101
et seq. (“ADA”). 	(Id. at 13). 	Count seven alleges:
Chestnut 	has 	established 	a 	convincing 	mosaic 	of 	direct
and 	circumstantial 	evidence 	she 	was 	subjected 	to 	a
discriminatory discharge based on her disability.
Chestnut is disabled as defined by the ADA as she suffers
a 	medical 	condition 	– 	no 	gall 	bladder 	– 	which 	effects
daily life activities such as digestion.
The Defendant was aware of Chestnut’s medical condition
as 	she 	discussed 	accommodations 	of 	regular 	use 	of 	the
restroom with her manager.
Chestnut 	was 	qualified 	for 	the 	position 	and 	could
perform 	the 	essential 	functions 	of 	her 	job 	with 	the
accommodations of regular bathroom use.
Chestnut was terminated.
Chestnut was terminated because she is disabled.
The 	Defendant 	claimed 	she 	was 	terminated 	for 	“chewing
gum”, but non-disabled employees were not terminated for
repeatedly chewing gum.
As 	a 	result 	of 	Defendant’s 	unlawful 	conduct, 	Chestnut
has suffered damages.
(Id.).
In 	count 	eight, 	Chestnut 	alleges 	that 	she 	was 	subjected 	to
disparate 	treatment 	based 	on 	her 	disability 	in 	violation 	of 	the
ADA. 	(Id. at 14-15). 	In count nine, Chestnut claims that she was
subjected to retaliation in violation of the ADA. 	(Id. at 15-16).
Count nine alleges:
Chestnut 	has 	established 	a 	convincing 	mosaic 	of 	direct
and circumstantial evidence that she was subjected to a
retaliation.
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Chestnut 	engaged 	in 	protected 	activity 	by 	complaining
about disability discrimination and harassment verbally
and 	in 	writing 	to 	the 	Store 	Manager 	and 	to 	the 	ethics
hotline.
In response to Chestnut’s protected activity, Defendant
subjected her to a retaliation.
The retaliation included, but was not limited to:
a. Cutting her hours
b. Heightened scrutiny
c. 	Watched 	her 	on 	video’s 	and 	followed 	her 	into 	the
bathroom 	to 	ensure 	she 	was 	actually 	go[i]ng 	to 	the
bathroom
d. Coaching her for a long lunch on a day she was sick,
coaching her for going to the bathroom, and Coaching her
for “chewing gum”
e. Giving her mean looks,
f. Telling people she quit when she didn’t
g. Talking about Chestnut to her co-workers
h. Telling co-workers they can’t wait until they are rid
of Chestnut and that Chestnut will get her due
i. Cutting hours of co-workers who stood up for Chestnut
j. Terminating Chestnut
This conduct might well dissuade a reasonable person in
the 	Plaintiff’s 	position 	from 	complaining 	of
discrimination.
There 	is 	a 	causal 	connection 	between 	Chestnut’s
protected 	activity 	and 	the 	adverse 	employment 	actions
because 	there 	is 	close 	temporal 	proximity 	to 	each
complaint and her former supervisor whom she complained
about said she was going to get her due and she couldn’t
wait to get rid of her.
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As 	a 	result 	of 	Defendant’s 	unlawful 	conduct, 	Chestnut
has suffered damages.
(Id.).
Chestnut 	seeks 	injunctive 	relief; 	“reinstatement 	to 	the
position 	she 	would 	have 	had, 	had 	she 	not 	been 	terminated;” 	“back
pay 	(with 	prejudgment 	interest), 	with 	employment 	benefits, 	front
pay, 	liquidated 	damages; 	compensatory 	damages, 	special 	damages;
punitive damages nominal damages;” and attorneys’ fees and costs.
(Id. at 16-17).
Chestnut attaches as exhibits to her complaint the charge of
discrimination 	she 	filed 	with 	the 	U.S. 	Equal 	Employment
Opportunity 	Commission 	(“EEOC”) 	on 	April 	3, 	2023, 	and 	the 	right-
to-sue 	notice 	issued 	to 	her 	by 	the 	EEOC 	on 	June 	4, 	2024. 	(Docs.
1-1, 1-2).
On September 30, 2024, Walmart filed an answer to Chestnut’s
complaint, 	along 	with 	the 	instant 	partial 	motion 	to 	dismiss.
(Docs. 5, 6). 	In the instant motion, Walmart “moves this Court to
dismiss 	Count 	VII: 	ADA 	Discriminatory 	Discharge 	– 	Termination,
together with the termination allegations brought in Count V under
Title VII – Retaliation, and Count IX under the ADA – Retaliation”
because 	Chestnut 	“has 	failed 	to 	exhaust 	her 	administrative
remedies as to those allegations.” 	(Doc. 6 at 1). 	Chestnut filed
a response in opposition to Walmart’s motion (Doc. 12), and Walmart
filed a reply in support of its motion. 	(Doc. 14). 	Thus, Walmart’s
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partial 	motion 	to 	dismiss 	has 	been 	fully 	briefed 	and 	is 	ripe 	for
resolution.
II. 	STANDARDS OF REVIEW
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party
may move to dismiss a complaint for failure to state a claim upon
which 	relief 	can 	be 	granted. 	Fed. 	R. 	Civ. 	P. 	12(b)(6). 	“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.’” 	Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) 	(quoting 	Bell 	Atl. 	Corp. 	v. 	Twombly, 	550 	U.S. 	544, 	570
(2007)). 	“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. 	This 	necessarily 	requires 	that 	a 	plaintiff 	include 	factual
allegations 	that 	plausibly 	support 	each 	essential 	element 	of 	her
claim. 	Randall v. Scott, 610 F.3d 701, 708 n.2 (11th Cir. 2010).
“If the complaint contains a claim that is facially subject to an
affirmative 	defense, 	that 	claim 	may 	be 	dismissed 	under 	Rule
12(b)(6).” 	LeFrere 	v. 	Quezada, 	582 	F.3d 	1260, 	1263 	(11th 	Cir.
2009).
When 	evaluating 	a 	motion 	to 	dismiss 	under 	Rule 	12(b)(6), 	a
court 	“must 	accept 	the 	factual 	allegations 	in 	the 	complaint 	as
true 	and 	construe 	them 	in 	the 	light 	most 	favorable 	to 	the
plaintiff.” 	Almanza v. United Airlines, Inc., 851 F.3d 1060, 1066
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(11th Cir. 2017). 	That said, “[l]egal conclusions without adequate
factual 	support 	are 	entitled 	to 	no 	assumption 	of 	truth.” 	Mamani
v. 	Berzain, 	654 	F.3d 	1148, 	1153 	(11th 	Cir. 	2011). 	A 	complaint
does not need detailed factual allegations, but it “requires more
than 	labels 	and 	conclusions, 	and 	a 	formulaic 	recitation 	of 	the
elements of a cause of action will not do.” 	Twombly, 550 U.S. at
555.
A 	court 	reviewing 	a 	motion 	to 	dismiss 	must 	typically 	limit
its 	consideration 	to 	the 	complaint 	and 	any 	exhibits 	attached
thereto. 	Grossman v. NationsBank, N.A., 225 F.3d 1228, 1231 (11th
Cir. 	2000) 	(per 	curiam). 	However, 	a 	“court 	may 	consider 	an
extrinsic document if it is (1) central to the plaintiff’s claim,
and 	(2) 	its 	authenticity 	is 	not 	challenged.” 	SFM 	Holdings, 	Ltd.
v. 	Banc 	of 	Am. 	Secs., 	LLC, 	600 	F.3d 	1334, 	1337 	(11th 	Cir. 	2010);
see 	also 	Harris 	v. 	Ivax 	Corp., 	182 	F.3d 	799, 	802 	n.2 	(11th 	Cir.
1999) (stating that “a document central to the complaint that the
defense 	appends 	to 	its 	motion 	to 	dismiss 	is 	also 	properly
considered, provided that its contents are not in dispute”).
III. DISCUSSION
A. 	The Parties’ Arguments
Walmart 	contends 	that 	Chestnut’s 	claim 	for 	discriminatory
discharge under the ADA, and her claims for retaliatory discharge
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under 	both 	the 	ADA 	and 	Title 	VII,5 	must 	be 	dismissed 	because
Chestnut 	failed 	to 	exhaust 	her 	administrative 	remedies 	with
respect 	to 	those 	claims. 	(Doc. 	6 	at 	1). 	Walmart 	argues 	“that
discrete acts such as termination must be raised to the EEOC as an
administrative 	prerequisite 	to 	filing 	suit,” 	and 	it 	asserts 	that
Chestnut’s 	EEOC 	charge 	“makes 	no 	mention 	of 	her 	termination, 	and
in fact alleges that ‘discrimination’ was a ‘continuing action.’”
(Id. at 2). 	According to Walmart:
Plaintiff’s Charge was filed more than six months before
her employment was terminated. 	The EEOC’s investigation
continued 	for 	another 	eight 	months 	after 	Plaintiff’s
termination before it issued its Right to Sue letter. 	A
charge must be filed (or amended) within 180 days “after
the alleged unlawful employment practice occurred.” 	42
U.S.C.A. 	§ 	2000-e(e)(1). 	Only 	those 	alleged
discriminatory 	practices 	occurring 	within 	180 	days 	of
the 	charge 	may 	form 	the 	basis 	for 	liability 	under 	the
ADA. 	Freeman 	v. 	Koch 	Foods 	of 	Ala., 	777 	F. 	Supp. 	2d
1264, 	1275-76 	(M.D. 	Ala. 	2011). 	More 	than 	180 	days
elapsed 	between 	the 	filing 	of 	Plaintiff 	Chestnut’s
Charge 	(April 	3, 	2023) 	and 	the 	termination 	of 	her
employment (October 7, 2023). 	More than 180 days elapsed
5 	Specifically, 	Walmart 	moves 	for 	dismissal 	of 	Chestnut’s 	ADA
discriminatory discharge claim in count seven and the “termination
allegations” 	brought 	in 	counts 	five 	and 	nine 	(Title 	VII 	and 	ADA
retaliation 	claims). 	The 	Court 	notes 	that 	Chestnut’s 	Title 	VII
and 	ADA 	disparate 	treatment 	claims 	in 	counts 	three 	and 	eight 	are
also partly based on her termination. 	Count three alleges in part
that 	Chestnut 	“was 	subjected 	to 	a 	discriminatory 	discharge 	based
on her race” and was “terminated . . . for ‘chewing gum’ when white
employees repeatedly chew gum without repercussions.” 	(Doc. 1 at
10-11). 	Count 	eight 	alleges 	that 	Chestnut 	“was 	subjected 	to 	a
discriminatory 	discharge 	based 	on 	her 	disability.” 	(Id. 	at 	14).
However, 	despite 	moving 	for 	the 	dismissal 	of 	“the 	termination
allegations” in counts five and nine (Title VII and ADA retaliation
claims), 	Walmart 	does 	not 	similarly 	move 	for 	dismissal 	of 	the
termination-related 	allegations 	in 	counts 	three 	and 	eight 	(Title
VII and ADA disparate treatment claims).
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between 	the 	termination 	of 	Plaintiff’s 	employment 	and
the 	EEOC’s 	Right 	to 	Sue 	(June 	4, 	2024). 	The 	Right 	to
Sue offers no indication that the agency’s investigation
was broad enough to encompass discharge, and there is no
indication that Plaintiff attempted to amend her charge
or 	file 	a 	separate 	charge 	raising 	a 	termination 	claim.
Thus, 	she 	has 	failed 	to 	exhaust 	her 	administrative
remedies as to those claims.
(Id. at 3-4).
Chestnut counters that her ADA discriminatory discharge claim
in 	count 	seven 	should 	not 	be 	dismissed 	for 	failure 	to 	exhaust
administrative 	remedies 	because 	“her 	discriminatory 	discharge
claims 	are 	reasonably 	related 	to, 	and 	within 	the 	scope 	of, 	her
EEOC charge.” 	(Doc. 12 at 10). 	Chestnut argues that her “claims
in this case concern her treatment in the same job position by the
same supervisors, and the same alleged discriminatory conduct was
what 	led 	to 	her 	termination.” 	(Id.). 	Chestnut 	asserts 	that 	the
EEOC “had ample time to uncover the discriminatory discharge, which
occurred in October 2023, in its investigation” because it did not
issue 	her 	right-to-sue 	notice 	until 	June 	4, 	2024. 	(Id. 	at 	9).
Therefore, Chestnut posits that “this judicial claim is allowable
as 	it 	amplies 	and 	clarifies 	Chestnut’s 	discrimination 	claims 	in
her 	charge, 	and 	the 	primary 	purpose 	of 	exhaustion 	has 	been 	met.”
(Id.).
Chestnut 	further 	contends 	that 	even 	if 	her 	discriminatory
discharge 	claims 	are 	barred 	for 	failure 	to 	exhaust 	her
administrative remedies, her retaliatory discharge claims are not.
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(Id. 	at 	11). 	According 	to 	Chestnut: 	“‘[I]t 	is 	unnecessary 	for 	a
plaintiff 	to 	exhaust 	administrative 	remedies 	prior 	to 	raising 	a
judicial claim of retaliation that grows out of an earlier charge.’
The 	court 	has 	ancillary 	jurisdiction 	over 	such 	a 	retaliation
claim.” 	(Id. (internal citations omitted)). 	Chestnut states that
her “discriminatory and retaliation claims are properly before the
court 	because 	they 	were 	presented 	in 	a 	charge 	to 	the 	EEOC,” 	and
her 	“subsequent 	claims 	of 	retaliatory 	discharge 	due 	to 	her
protected 	activity 	before 	the 	EEOC 	are 	thus 	properly 	before 	this
Court as well.” 	(Id. at 12).
B. 	Exhaustion Requirement
Before 	filing 	suit 	under 	the 	ADA 	or 	Title 	VII, 	a 	plaintiff
must 	exhaust 	her 	administrative 	remedies 	by 	filing 	a 	charge 	of
discrimination with the EEOC “within” 180 days “after the alleged
unlawful 	employment 	practice 	occurred[,]” 	and 	by 	filing 	a 	civil
action 	within 	ninety 	days 	after 	receiving 	a 	right-to-sue 	notice
from the EEOC. 	See 42 U.S.C. §§ 2000e-5(e)(1), 2000e-5(f)(1), and
12117(a). 	The purpose of this exhaustion requirement is to afford
the 	EEOC 	“the 	first 	opportunity 	to 	investigate 	the 	alleged
discriminatory 	practices 	to 	permit 	it 	to 	perform 	its 	role 	in
obtaining 	voluntary 	compliance 	and 	promoting 	conciliation
efforts.” 	Evans 	v. 	U.S. 	Pipe 	& 	Foundry 	Co., 	696 	F.2d 	925, 	929
(11th 	Cir. 	1983). 	“Only 	if 	the 	EEOC 	fails 	to 	achieve 	voluntary
compliance 	will 	the 	matter 	ever 	become 	the 	subject 	of 	court
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action.” 	Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th
Cir. 1970).6
“In light of the purpose of the EEOC exhaustion requirement,
. . . a plaintiff’s judicial complaint is limited by the scope of
the 	EEOC 	investigation 	which 	can 	reasonably 	be 	expected 	to 	grow
out 	of 	the 	charge 	of 	discrimination.” 	Gregory 	v. 	Ga. 	Dep’t 	of
Hum. 	Res., 	355 	F.3d 	1277, 	1280 	(11th 	Cir. 	2004) 	(per 	curiam)
(quotation omitted). 	Thus, in determining whether a plaintiff has
exhausted 	her 	administrative 	remedies, 	“the 	‘proper 	inquiry’ 	is
whether the ‘plaintiff’s complaint is like or related to, or grew
out of, the allegations contained in the EEOC charge.’” 	Batson v.
Salvation Army, 897 F.3d 1320, 1328 (11th Cir. 2018) (citation and
alterations omitted).
As 	long 	as 	allegations 	in 	the 	judicial 	complaint 	and
proof 	are 	“reasonably 	related” 	to 	charges 	in 	the
administrative 	filing 	and 	“no 	material 	differences”
between 	them 	exist, 	the 	court 	will 	entertain 	them. 	As
[the Eleventh Circuit has] noted . . . , “the ‘scope’ of
the judicial complaint is limited to the ‘scope’ of the
EEOC 	investigation 	which 	can 	reasonably 	be 	expected 	to
grow out of the charge of discrimination.”
Judicial claims which serve to amplify, clarify, or more
clearly 	focus 	earlier 	EEO 	complaints 	are 	appropriate.
Allegations 	of 	new 	acts 	of 	discrimination, 	offered 	as
the 	essential 	basis 	for 	the 	requested 	judicial 	review
are not appropriate.
6 	In 	Bonner 	v. 	City 	of 	Prichard, 	661 	F.2d 	1206, 	1209 	(11th 	Cir.
1981) (en banc), the Eleventh Circuit adopted as binding precedent
the decisions of the former Fifth Circuit handed down prior to the
close of business on September 30, 1981.
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Wu v. Thomas, 863 F.2d 1543, 1547 (11th Cir. 1989) (quoting Ray v.
Freeman, 626 F.2d 439, 443 (5th Cir. 1980)).
C. 	Chestnut’s EEOC Charge
Chestnut filed her charge of discrimination with the EEOC on
April 	3, 	2023, 	while 	she 	was 	still 	employed 	with 	Walmart.7 	(See
Doc. 	1-1). 	In 	the 	“discrimination 	based 	on” 	section 	of 	her 	EEOC
charge, 	Chestnut 	checked 	the 	“race,” 	“color,” 	and 	“retaliation”
boxes. 	(Id. at 1). 	In the “particulars” section, Chestnut stated:
I began working for the employer on September 15, 2022,
in 	the 	deli. 	Betty 	Gregory 	was 	my 	team 	lead. 	Over 	my
team lead was Coach Maraud. 	Amanda (last name unknown)
is 	the 	Assistant 	Store 	Manager. 	When 	we 	are 	tardy 	or
have 	unexcused 	absences, 	we 	receive 	points. 	When 	you
receive 5 points you can be terminated.
In October, 2022, my brother died. 	When they placed my
brother 	on 	life 	support, 	I 	notified 	my 	team 	lead 	Betty
Gregory. 	She 	explained 	to 	me 	the 	procedure 	for 	taking
bereavement 	leave. 	I 	sought 	bereavement 	leave 	and 	was
approved. 	We 	are 	supposed 	to 	get 	3 	days 	bereavement
leave. 	This leave does not count toward points. 	I took
two 	days 	of 	bereavement 	leave. 	While 	I 	was 	at 	the
funeral, I received a phone call from a co-worker, Tomeka
Timmons. 	She told me that Betty Gregory was discussing
me 	at 	work. 	She 	said 	she 	did 	not 	believe 	my 	brother
died 	and 	claimed 	she 	did 	not 	know 	where 	I 	was. 	She
claimed 	I 	did 	not 	call 	in. 	The 	Store 	Manager 	ended 	up
taking 	this 	point 	off 	because 	the 	point 	was 	not
warranted. 	After this informal complaint, Betty Gregory
cut 	my 	hours. 	If 	I 	put 	in 	PTO, 	at 	the 	end 	of 	the 	pay
7 	It 	appears 	that 	Chestnut’s 	EEOC 	charge 	was 	prepared 	by 	or 	with
the assistance of counsel. 	(See Doc. 1-1); see also McWhorter v.
Nucor Steel Birmingham Inc., 304 F. Supp. 3d 1185, 1192 (N.D. Ala.
2018) 	(noting 	that 	courts 	“have 	broadly 	interpreted 	the 	scope 	of
administrative 	charges 	filed 	by 	unrepresented 	parties,” 	but
finding 	that 	“Plaintiff 	is 	not 	entitled 	to 	such 	a 	liberal
construction because he was represented by counsel at the time he
filed the charge”).
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period, 	Betty 	Gregory 	would 	change 	it 	and 	give 	me 	and
other 	black 	employees 	points. 	This 	did 	not 	happen 	to
white 	employees. 	Kylie 	and 	Jennifer 	will 	call 	in 	sick
and 	they 	will 	not 	get 	a 	point. 	A 	white 	female 	named
Amanda (last name unknown) told Betty Gregory her mother
was 	sick 	she 	she 	needed 	to 	be 	off. 	Betty 	Gregory 	told
her 	not 	to 	worry 	about 	points 	and 	did 	not 	give 	her
points. 	On 	November 	2, 	2022, 	I 	formally 	complained 	to
management of this difference in treatment between white
employees 	and 	black 	employees. 	They 	asked 	me 	to 	write
a 	statement 	of 	what 	is 	going 	on. 	Nothing 	was 	done 	to
remedy 	the 	differential 	treatment. 	After 	my 	complaint
of discrimination, my hours were cut again.
I also have a medical issue that requires frequent visits
to 	the 	restroom. 	I 	am 	prescribed 	medication 	for 	this
medical 	condition. 	I 	do 	not 	have 	a 	gall 	bladder. 	The
gall bladder is part of the billary system which is made
up of your liver, gallbladder and associated ducts. 	This
system is needed for production, storage, and secretion
of 	bile. 	Bile 	is 	used 	to 	help 	in 	digestion. 	I 	have
informed my employer of said condition and requested an
accommodation 	of 	being 	able 	to 	go 	to 	the 	bathroom
regularly. 	On 	or 	about 	February 	10, 	2023, 	I 	spoke 	Mr.
Tyson informing him nothing has changed, it was still an
ongoing situation from the last complaint. 	It will get
better a little while, but then it will get back to the
harassment 	and 	differential 	treatment. 	I 	explained 	to
him 	I 	felt 	I 	was 	being 	discriminated 	against 	and
violations of the ADA were occurring. 	I explained that
I 	had 	been 	followed 	to 	the 	bathroom 	and 	others 	white
employees could use the bathroom regularly.
On 	February 	12, 	2023, 	after 	I 	submitted 	my 	formal
complaint, 	I 	was 	coached 	on 	my 	frequent 	visits 	to 	the
bathroom. 	I have been watched on the cameras to see how
many 	times 	I 	go 	to 	the 	bathroom 	during 	a 	shift 	and 	how
long I am in the bathroom. 	Betty Gregory has come into
the bathroom while I was using the bathroom to make sure
that 	I 	am, 	in 	fact, 	going 	to 	the 	bathroom. 	I 	consider
this 	a 	huge 	invasion 	of 	my 	privacy. 	I 	have 	an
expectation of privacy in the bathroom. 	White and non-
disabled 	employees 	are 	allowed 	to 	use 	the 	bathroom
freely 	without 	intrusion 	or 	coaching. 	My 	medication
that I take makes my mouth dry so I chew gum. 	On February
12, 2023, I was coached on chewing gum. 	White and non-
disabled 	employees 	are 	allowed 	to 	chew 	gum, 	and 	do 	so
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regularly 	without 	coaching. 	I 	explained 	all 	of 	this
again during the counseling, but Mr. Tyson did not care.
Mr. Tyson said Betty Gregory was stepping down, and not
to worry about it. 	The next day I got notice the ethics
complaint, 	was 	closed 	because 	it 	had 	been 	rectified.
But, 	Betty 	Gregory 	was 	simply 	placed 	in 	the 	online
grocery 	department 	which 	is 	not 	in 	my 	chain 	of
supervision.
After February 12, 2023, the harassment from the rest of
my chain of command got worse. 	Co-workers tell me they
talk 	about 	me 	when 	I 	am 	not 	at 	work. 	Ms. 	Gregory 	told
other 	associates 	part 	of 	the 	reason 	she 	is 	not 	in 	the
deli was me, I’m going to get what is coming to me, she
can’t 	wait 	until 	I 	am 	gone, 	she 	want 	to 	get 	rid 	of 	me.
She 	would 	mean-mug 	me. 	I 	began 	to 	suffer 	anxiety 	and
stress to the point I took a leave of absence. 	While I
was 	on 	my 	leave 	of 	absence, 	Ms. 	Gregory 	was 	telling
people I quit. 	I was out for 2 weeks. 	I did not quit.
Tamika 	Timmons 	hours 	have 	been 	cut 	and 	she 	has 	been
bullied 	for 	speaking 	up 	on 	my 	behalf. 	They 	are 	trying
to 	get 	rid 	of 	her 	too. 	Ms. 	Sharon 	Owen’s 	hours 	were
cut, because she spoke up about work conditions.
I also suffer from PTSD. 	I have notified my managers of
this 	condition. 	I 	have 	explained 	I 	come 	here 	to 	work,
and 	I 	just 	try 	to 	make 	sure 	everyone 	is 	happy 	at 	work.
I 	don’t 	like 	confrontation. 	They 	are 	aware 	of 	this.
They 	are 	trying 	to 	get 	me 	to 	quit 	through 	this
harassment.
I 	observed 	Ms. 	Gladys 	(black 	employee) 	being 	treated
differently than Kylie (white employee). 	Gladys slipped
and fell and injured herself. 	Mr. Mourad falsified the
incident 	report 	by 	claiming 	she 	lost 	her 	balance 	and
fell. 	She 	told 	him 	that 	was 	not 	true 	and 	he 	snatched
the 	paper 	from 	her. 	He 	did 	not 	get 	her 	medical 	help.
When 	Kylie 	cut 	her 	finger, 	she 	was 	provided 	medical
assistance immediately.
Since 	my 	complaint 	I 	have 	been 	harassed. 	I 	was
investigated 	by 	Betty 	Gregory 	and 	Mr. 	Mourad 	for 	“joy
riding 	carts” 	around 	on 	my 	shift, 	when 	I 	was 	moving 	an
inoperable 	cart. 	They 	discussed 	me 	to 	co-workers. 	I
had to defend myself for these actions. 	They are always
asking me if I am doing my work. 	I am the one who always
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makes 	sure 	things 	get 	done 	on 	time. 	Co-workers 	have
said don’t have to wait if Paris is at work. 	They never
scrutinize 	the 	white 	employees 	to 	ensure 	their 	work 	is
completed on time, and it is often not completed timely.
I believe I have been discriminated against in violation
of the ADAAA and Title VII based on my disability and my
race. 	I 	believe 	there 	is 	a 	hostile 	work 	environment
based 	on 	race. 	Finally, 	I 	believe 	that 	I 	have 	been
retaliated against after my complaints of discrimination
and ADAAA violations.
(Id. 	at 	1-3). 	Chestnut 	listed 	February 	20, 	2023, 	as 	the 	latest
date 	the 	discrimination 	took 	place, 	although 	she 	checked 	the 	box
indicating that the discrimination was a “continuing action.” 	(Id.
at 1).
In 	October 	2023, 	approximately 	six 	months 	after 	Chestnut
filed her EEOC charge, “Chestnut was terminated from her employment
for 	‘chewing 	gum’ 	which 	they 	claimed 	was 	a 	violation 	of 	policy.”
(Doc. 1 at 9). 	The EEOC issued Chestnut a right-to-sue notice on
June 4, 2024, approximately eight months after her employment was
terminated. 	(Doc. 1-2).
D. 	Analysis
To 	summarize, 	Chestnut 	filed 	her 	only 	EEOC 	charge 	in 	April
2023, while she was still a Walmart employee. 	She accused Walmart
of 	racial 	discrimination 	and 	racially 	hostile 	work 	environment
based 	on 	the 	events 	following 	her 	brother’s 	death 	in 	2022, 	the
unwarranted 	assessment 	of 	disciplinary 	points 	to 	Chestnut 	and
other 	black 	employees, 	and 	the 	disparity 	in 	treatment 	between
herself and white employees relating to using the restroom, chewing
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gum, 	and 	scrutinizing 	their 	work. 	She 	also 	accused 	Walmart 	of
disability 	discrimination 	based 	on 	allegations 	that 	she 	was
followed, 	spied 	on, 	and 	coached 	on 	her 	necessary 	visits 	to 	the
restroom 	and 	coached 	on 	chewing 	gum. 	Chestnut 	further 	alleged
that she suffered retaliation, including reduced hours, heightened
scrutiny, 	and 	harassment, 	for 	complaining 	verbally 	about 	racial
and disability discrimination to the store manager and submitting
a 	formal 	ethics 	complaint. 	Walmart 	terminated 	Chestnut’s
employment 	in 	October 	2023, 	approximately 	six 	months 	after 	she
filed 	her 	charge 	of 	discrimination 	with 	the 	EEOC. 	Chestnut 	did
not 	amend 	her 	EEOC 	charge 	or 	file 	a 	separate 	charge 	relating 	to
her October 2023 termination, even though she had ample opportunity
to 	do 	so 	in 	the 	eight 	months 	prior 	to 	the 	EEOC’s 	issuance 	of 	her
right-to-sue notice in June 2024.
1. 	Discriminatory Discharge
As 	noted 	previously, 	an 	EEOC 	charge 	must 	be 	filed 	“within”
180 	days 	“after 	the 	alleged 	unlawful 	employment 	practice
occurred[.]” 	See 	42 	U.S.C. 	§ 	2000e-5(e)(1) 	(stating 	that 	a
plaintiff must file her Title VII charge within 180 days after the
alleged 	unlawful 	employment 	practice); 	42 	U.S.C. 	§ 	12117(a)
(applying 	the 	remedies 	and 	procedures 	of 	Title 	VII 	to 	the 	ADA).
The Supreme Court has “repeatedly interpreted the term ‘practice’
to 	apply 	to 	a 	discrete 	act 	or 	single 	‘occurrence,’ 	even 	when 	it
has 	a 	connection 	to 	other 	acts.” 	Nat’l 	R.R. 	Passenger 	Corp. 	v.
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Morgan, 	536 	U.S. 	101, 	111 	(2002). 	An 	EEOC 	charge, 	“therefore,
must be filed within the 180-[day] time period after the discrete
discriminatory act occurred.” 	Id. at 113. 	“Discrete acts such as
termination, failure to promote, denial of transfer, or refusal to
hire 	are 	easy 	to 	identify. 	Each 	incident 	of 	discrimination 	and
each 	retaliatory 	adverse 	employment 	decision 	constitutes 	a
separate actionable ‘unlawful employment practice.’” 	Id. at 114.
Chestnut’s 	complaint 	does 	not 	allege 	or 	otherwise 	show 	that
the 	alleged 	discriminatory 	act 	of 	termination 	was 	made 	a 	part 	of
any administrative filing with the EEOC. 	As the Eleventh Circuit
has 	recognized, 	termination 	is 	a 	discrete 	act 	of 	discrimination
that must be presented to the EEOC before it may serve as the basis
for 	an 	independent 	judicial 	discrimination 	claim. 	See 	Kelly 	v.
Dun 	& 	Bradstreet, 	Inc., 	557 	F. 	App’x 	896, 	899 	(11th 	Cir. 	2014)
(per 	curiam) 	(“Discrete 	acts 	of 	discrimination, 	such 	as
termination or failure to promote, that occur after the filing of
an 	EEOC 	complaint 	must 	first 	be 	administratively 	reviewed 	before
they may serve as a basis for a judicial finding of discriminatory
conduct.”) (citing Ray, 626 F.2d at 442; Morgan, 536 U.S. at 114);
Basel 	v. 	Sec’y 	of 	Def., 	507 	F. 	App’x 	873, 	876 	(11th 	Cir. 	2013)
(per curiam) (“Discrete acts of discrimination that occur after an
administrative 	filing 	must 	first 	be 	administratively 	reviewed
before a plaintiff may obtain judicial review of those same acts.
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Readily 	identifiable 	acts, 	such 	as 	termination, 	are 	discrete
employment actions.”) (internal citation omitted).8
Since Chestnut was terminated approximately six months after
she filed her EEOC charge, her charge naturally made no mention of
her 	allegedly 	pretextual 	termination 	for 	“chewing 	gum.”
Termination 	of 	employment 	is 	considered 	a 	discrete 	act 	of
discrimination, 	and 	Chestnut’s 	allegations 	of 	discriminatory
conduct 	long 	predating 	her 	termination 	thus 	cannot 	anchor 	her
claims 	of 	discriminatory 	termination. 	Accordingly, 	the
undersigned 	rejects 	Chestnut’s 	argument 	that 	her 	discriminatory
discharge claim merely amplifies and clarifies the allegations of
discrimination in her EEOC charge. 	See Little v. CSRA, Inc., 834
F. 	App’x 	495, 	498 	(11th 	Cir. 	2020) 	(per 	curiam) 	(affirming
dismissal 	of 	plaintiff’s 	Title 	VII 	claim 	that 	she 	was 	laid 	off
based 	on 	her 	sex 	for 	failure 	to 	exhaust 	administrative 	remedies,
because 	plaintiff 	alleged 	“that 	she 	was 	laid 	off 	. 	. 	. 	after 	she
had filed the EEOC charges[,]” and noting that “[a]lthough [courts]
can 	let 	judicial 	claims 	‘clarify’ 	an 	EEOC 	charge, 	[plaintiff’s]
allegations 	cannot 	clarify 	what 	is 	not 	in 	her 	EEOC 	charge”)
8 Federal Appendix cases are unpublished Eleventh Circuit opinions
and are not considered binding precedent, but they may be cited as
persuasive authority. 	See 11th Cir. R. 36-2 (“Unpublished opinions
are 	not 	considered 	binding 	precedent, 	but 	they 	may 	be 	cited 	as
persuasive 	authority.”); 	Henry 	v. 	Comm’r 	of 	Soc. 	Sec., 	802 	F.3d
1264, 	1267 	n.1 	(11th 	Cir. 	2015) 	(per 	curiam) 	(“Cases 	printed 	in
the Federal Appendix are cited as persuasive authority.”).
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(emphasis 	in 	original). 	Instead, 	the 	Court 	finds 	that 	because
Chestnut 	did 	not 	amend 	her 	EEOC 	charge 	or 	file 	a 	separate 	charge
to 	raise 	a 	termination 	claim 	within 	180 	days 	after 	her 	discharge
from 	employment, 	her 	ADA 	discriminatory 	discharge 	claim 	in 	count
seven 	is 	barred 	based 	on 	her 	failure 	to 	timely 	exhaust 	her
administrative 	remedies 	as 	to 	that 	claim. 	See, 	e.g., 	Basel, 	507
F. App’x at 877 (“[Plaintiff’s] termination constituted a discrete
employment 	act 	of 	which 	he 	received 	notice 	after 	filing 	the
[written complaint with the Navy EEO Commander], and, as a result,
[plaintiff] 	was 	required 	to 	first 	present 	his 	termination 	claims
to the Navy despite his previous filing. 	Since [plaintiff] never
presented either of his termination claims to the Navy, he did not
properly 	raise 	them 	before 	the 	district 	court.”) 	(internal
citations 	omitted); 	Haugabrook 	v. 	Cason, 	518 	F. 	App’x 	803, 	809
(11th Cir. 2013) (per curiam); Edom v. Chronister, 2021 U.S. Dist.
LEXIS 177732, at *38-39, 2021 WL 4244845, at *14 (M.D. Fla. Sept.
17, 	2021) 	(concluding, 	where 	plaintiff 	alleged 	he 	was
constructively 	terminated 	several 	months 	after 	filing 	his 	EEOC
charge 	but 	did 	not 	file 	a 	new 	charge 	with 	the 	EEOC, 	that 	“all
separate 	instances 	of 	discrimination 	after 	[plaintiff] 	filed 	his
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EEOC 	complaint 	. 	. 	. 	— 	including 	his 	constructive 	termination 	—
are barred for failure to exhaust administrative remedies”).9
2. 	Retaliatory Discharge.
Regardless of the fate of her discriminatory discharge claim
in count seven, Chestnut contends that it was unnecessary for her
to 	separately 	exhaust 	administrative 	remedies 	as 	to 	her
retaliatory discharge claims in counts five and nine because those
claims grew out of her earlier EEOC charge. 	(Doc. 12 at 11).
“For 	many 	years 	the 	rule 	in 	the 	Eleventh 	Circuit 	was 	that,
when 	retaliation 	claims 	were 	based 	on 	adverse 	actions 	taken 	in
response to an EEOC charge, a court considered them as growing out
of 	the 	previously 	filed 	charge; 	therefore, 	those 	claims 	were
preserved for a lawsuit without the filing of an additional charge
alleging 	specific 	examples 	of 	further 	retaliation.” 	Baatz 	v.
Mohawk 	ESV, 	Inc., 	2021 	U.S. 	Dist. 	LEXIS 	114425, 	at 	*3-4, 	2021 	WL
2447845, 	at 	*2 	(N.D. 	Ga. 	Mar. 	5, 	2021); 	see 	Baker 	v. 	Buckeye
Cellulose 	Corp., 	856 	F.2d 	167, 	169 	(11th 	Cir. 	1988) 	(“[I]t 	is
unnecessary 	for 	a 	plaintiff 	to 	exhaust 	administrative 	remedies
prior 	to 	urging 	a 	retaliation 	claim 	growing 	out 	of 	an 	earlier
charge; the district court has ancillary jurisdiction to hear such
9 Chestnut maintains that the EEOC “had ample time to uncover the
discriminatory 	discharge” 	in 	its 	investigation, 	but 	she 	does 	not
argue that the scope of the EEOC investigation extended beyond the
specific allegations in her charge to include termination claims,
nor 	does 	she 	present 	allegations 	or 	evidence 	demonstrating 	the
actual scope of the EEOC’s investigation.
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a 	claim 	when 	it 	grows 	out 	of 	an 	administrative 	charge 	that 	is
properly before the court.”) (quoting Gupta v. E. Tex. State Univ.,
654 F.2d 411, 414 (5th Cir. Unit A Aug. 1981)).
However, 	“the 	continued 	viability 	of 	this 	exception 	is 	a
matter of some dispute as both Gupta and Baker were decided before
the 	Supreme 	Court’s 	decision 	in 	Morgan 	where 	the 	Court 	held 	that
discrete acts of employment discrimination and retaliation—such as
[termination]—are 	separate, 	actionable 	incidents 	that 	must 	be
timely exhausted in accordance with Title VII.” 	Smith v. City of
Atl. 	Beach, 	2020 	U.S. 	Dist. 	LEXIS 	24381, 	at 	*34 	n.10, 	2020 	WL
708145, at *11 n.10 (M.D. Fla. Feb. 12, 2020) (citing Morgan, 536
U.S. 	at 	113-14). 	“Following 	Morgan, 	circuit 	courts 	are 	split 	on
whether 	discrete 	acts 	of 	post-charge 	retaliation 	must 	be
separately 	exhausted.” 	Id. 	(citing 	Bennett 	v. 	Chatham 	Cnty.
Sheriff 	Dep’t, 	315 	F. 	App’x 	152, 	162 	n.7 	(11th 	Cir. 	2008) 	(per
curiam) 	(noting 	that 	circuits 	disagree 	on 	whether, 	after 	Morgan,
discrete acts of retaliation must be exhausted, but not resolving
the issue)). 	“Although the Eleventh Circuit has not had occasion
to 	decide 	the 	issue, 	it 	has 	specifically 	noted 	that 	‘Title 	VII
requires 	a 	charge 	to 	be 	filed 	“after 	the 	alleged 	unlawful
employment practice occurred,” 42 U.S.C. § 2000e-5(e)(1), and that
“[o]ccurred means that the practice took place or happened in the
past.”’” 	Id. 	(quoting 	E.E.O.C. 	v. 	Joe’s 	Stone 	Crabs, 	Inc., 	296
F.3d 1265, 1272 n.5 (11th Cir. 2002))
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Significantly, 	in 	Duble 	v. 	FedEx 	Ground 	Package 	Sys., 	Inc.,
572 	F. 	App’x 	889 	(11th 	Cir. 	2014) 	(per 	curiam), 	the 	Eleventh
Circuit 	interpreted 	the 	Gupta 	and 	Baker 	retaliation 	exception 	to
apply 	only 	in 	narrow 	circumstances. 	See 	Duble, 	572 	F. 	App’x 	at
893. 	The plaintiff in Duble was diagnosed with multiple sclerosis
and, 	as 	a 	result, 	was 	unable 	to 	perform 	certain 	job 	functions
without accommodation. 	Id. at 890. 	The plaintiff ultimately filed
an EEOC charge and claimed discrimination and retaliation because
he said his employer failed to accommodate his disability. 	Id. at
891. 	While 	the 	EEOC 	investigated 	his 	claims, 	the 	plaintiff 	was
fired, 	“ostensibly 	for 	violating 	[his 	employer’s] 	email 	policy.”
Id. 	at 	893. 	After 	the 	EEOC’s 	investigation 	concluded, 	the
plaintiff 	filed 	suit 	and 	alleged, 	among 	other 	claims, 	that 	his
termination 	was 	retaliatory. 	Id. 	at 	892. 	The 	Eleventh 	Circuit
found that Baker and Gupta were inapplicable to the circumstances
in 	Duble 	because 	the 	plaintiffs 	in 	those 	cases 	had 	already
commenced lawsuits on their prior EEOC charges when the retaliation
at 	issue 	allegedly 	occurred. 	Id. 	at 	893 	(citing 	Gupta, 	654 	F.2d
at 	413-14; 	Baker, 	856 	F.2d 	at 	168-69). 	In 	other 	words, 	in 	both
Baker and Gupta, the uncharged retaliatory conduct alleged by the
plaintiffs 	occurred 	after 	the 	plaintiffs 	filed 	suit 	in 	district
court. 	Id. 	In 	contrast, 	the 	plaintiff 	in 	Duble 	“had 	the
opportunity to amend his EEOC charge or file a new charge relating
to his termination” and chose not to do so. 	Id. 	The Duble court
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held 	that 	this 	was 	sufficient 	to 	distinguish 	the 	case 	from 	Baker
and Gupta, and that the plaintiff had therefore “failed to exhaust
his 	administrative 	remedies 	regarding 	his 	termination 	claims.
Id.10
Following 	Duble, 	the 	Eleventh 	Circuit 	again 	addressed 	the
Baker 	and 	Gupta 	exception 	in 	Ellison 	v. 	Postmaster 	Gen., 	United
States 	Postal 	Serv., 	2022 	U.S. 	App. 	LEXIS 	27555, 	2022 	WL 	4726121
(11th Cir. Oct. 3, 2022) (per curiam). 	In Ellison, the court held
that 	it 	was 	not 	necessary 	to 	decide 	the 	effect 	of 	the 	Supreme
Court’s decision in Morgan on the precedential value of Gupta and
Baker because the uncharged retaliation alleged by the plaintiff,
namely a suspension and then termination, occurred while the EEOC
investigation of the plaintiff’s reported claims was pending. 	2022
U.S. App. LEXIS 27555, at *22, 2022 WL 4726121, at *8. 	The Court
held 	that 	consistent 	with 	Duble, 	the 	plaintiff 	failed 	to 	exhaust
his 	administrative 	remedies 	regarding 	his 	suspension 	and
termination 	claims 	because 	he 	had 	time 	to 	amend 	his 	pending 	EEOC
charge 	to 	include 	his 	new 	retaliation 	claims 	while 	the
administrative process remained available to him and failed to do
so. 	Id., 2022 U.S. App. LEXIS 27555, at *24-25, 2022 WL 4726121,
10 Curiously, it was Chestnut who initially cited Duble in support
of 	her 	position 	that 	she 	was 	not 	required 	to 	amend 	or 	file 	a 	new
EEOC 	charge 	based 	on 	the 	alleged 	retaliatory 	termination 	of 	her
employment. 	(See 	Doc. 	12 	at 	12). 	As 	Walmart 	correctly 	notes,
“the 	holding 	in 	Duble 	actually 	stands 	for 	the 	opposite” 	of 	what
Chestnut argues. 	(See Doc. 14 at 3).
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at 	*8. 	See 	also 	Robinson 	v. 	Koch 	Foods 	of 	Ala., 	2014 	U.S. 	Dist.
LEXIS 	127198, 	at 	*7, 	2014 	WL 	4472611, 	at 	*2 	(M.D. 	Ala. 	Sept. 	11,
2014) 	(noting 	that 	“the 	court 	in 	Duble 	held 	that 	Baker 	and 	Gupta
do not apply where the retaliatory action occurs after the filing
of the first EEOC charge but long enough before the filing of the
lawsuit 	to 	give 	the 	plaintiff 	an 	opportunity 	to 	amend 	or 	to 	file
a 	new 	EEOC 	charge 	to 	add 	a 	retaliation 	claim”); 	Baatz, 	2021 	U.S.
Dist. LEXIS 114425, at *4, 2021 WL 2447845, at *2 (noting that in
Duble, 	“the 	Circuit 	limited 	Baker 	to 	those 	cases 	in 	which 	the
plaintiff 	filed 	an 	EEOC 	charge, 	then 	filed 	a 	lawsuit, 	and 	then
experienced 	retaliation 	while 	the 	lawsuit 	was 	pending 	[and 	held
that a] discrete act of retaliation occurring before suit was filed
needed 	another 	charge”); 	Roberts 	v. 	Gulf 	Distrib. 	Holdings, 	LLC,
2022 U.S. Dist. LEXIS 161693, at *29, 2022 WL 16568284, at *9 (S.D.
Ala. Sept. 7, 2022) (where plaintiff’s termination occurred while
his 	EEOC 	charge 	was 	still 	pending 	and 	prior 	to 	the 	filing 	of 	his
lawsuit, 	holding 	that 	“to 	prosecute 	a 	claim 	based 	on 	his 	alleged
discriminatory 	or 	retaliatory 	termination, 	it 	was 	incumbent 	on
[plaintiff] 	to 	first 	exhaust 	his 	administrative 	remedies 	by
amending 	his 	EEOC 	charge 	or 	filing 	a 	new 	charge”), 	report 	and
recommendation 	adopted, 	2022 	U.S. 	Dist. 	LEXIS 	197705, 	2022 	WL
16556797 	(S.D. 	Ala. 	Oct. 	31, 	2022); 	Batley 	v. 	Bishop 	State 	Cmty.
Coll., 	2017 	U.S. 	Dist. 	LEXIS 	129765, 	at 	*24, 	2017 	WL 	4019453, 	at
*7 (S.D. Ala. Aug. 14, 2017) (recommending dismissal of claim for
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retaliatory 	failure 	to 	promote 	because 	plaintiff 	“did 	not 	file 	a
new 	or 	amended 	EEOC 	charge 	on 	the 	basis 	of 	this 	alleged
retaliation, 	even 	though 	she 	certainly 	had 	the 	opportunity 	to 	do
so [prior to filing her lawsuit], and it is clear in this Circuit
that 	‘Baker 	and 	Gupta 	do 	not 	apply 	where 	the 	retaliatory 	action
occurs 	after 	the 	filing 	of 	the 	first 	EEOC 	charge 	but 	long 	before
the filing of the lawsuit to give the plaintiff an opportunity to
amend 	or 	to 	file 	a 	new 	EEOC 	charge 	to 	add 	a 	retaliation 	claim”)
(citing 	Robinson, 	2014 	U.S. 	Dist. 	LEXIS 	127198, 	at 	*7, 	2014 	WL
4472611, at *2), report and recommendation adopted, 2017 U.S. Dist.
LEXIS 147254, 2017 WL 4019435 (S.D. Ala. Sept. 12, 2017).
Upon 	consideration, 	the 	undersigned 	is 	persuaded 	by 	the
analysis 	of 	the 	Eleventh 	Circuit 	panels 	in 	Duble 	and 	Ellison 	and
finds 	it 	applicable 	to 	the 	circumstances 	presented 	here.
Chestnut’s 	EEOC 	investigation 	was 	still 	pending 	when 	she 	was
terminated in October 2023, ostensibly for chewing gum. 	Chestnut
had ample opportunity to amend her EEOC charge or file a new charge
relating to her October 2023 termination, given that her EEOC claim
remained 	pending 	for 	approximately 	eight 	months 	after 	her
termination, 	and 	Chestnut 	did 	not 	file 	suit 	in 	this 	Court 	until
September 	1, 	2024. 	However, 	Chestnut 	chose 	not 	to 	amend 	or 	file
a new EEOC charge based on her termination.
Accordingly, because Chestnut did not amend or file a separate
EEOC charge raising a termination claim within 180 days after her
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discharge from employment, her Title VII and ADA retaliation claims
in counts five and nine are barred to the extent those claims are
based on her post-charge termination.
IV. 	CONCLUSION
For 	the 	reasons 	set 	forth 	above, 	the 	undersigned 	recommends
that Walmart’s partial motion to dismiss (Doc. 6) be GRANTED, that
count 	seven 	(ADA 	discriminatory 	discharge) 	be 	DISMISSED 	for
failure 	to 	exhaust 	administrative 	remedies, 	and 	that 	counts 	five
(Title 	VII 	retaliation) 	and 	nine 	(ADA 	retaliation) 	be 	DISMISSED
for failure to exhaust administrative remedies to the extent they
are 	based 	on 	the 	termination 	of 	Chestnut’s 	employment 	after 	she
filed her EEOC charge of discrimination.
NOTICE OF RIGHT TO FILE OBJECTIONS
A 	copy 	of 	this 	report 	and 	recommendation 	shall 	be 	served 	on
all parties in the manner provided by law. 	Any party who objects
to this recommendation or anything in it must, within fourteen (14)
days of the date of service of this document, file specific written
objections with the Clerk of this Court. 	See 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72(b); S.D. Ala. GenLR 72(c). 	The parties should
note 	that 	under 	Eleventh 	Circuit 	Rule 	3-1, 	“[a] 	party 	failing 	to
object 	to 	a 	magistrate 	judge’s 	findings 	or 	recommendations
contained 	in 	a 	report 	and 	recommendation 	in 	accordance 	with 	the
provisions 	of 	28 	U.S.C. 	§ 	636(b)(1) 	waives 	the 	right 	to 	challenge
on appeal the district court’s order based on unobjected-to factual
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and legal conclusions if the party was informed of the time period
for objecting and the consequences on appeal for failing to object.
In the absence of a proper objection, however, the court may review
on appeal for plain error if necessary in the interests of justice.”
11th Cir. R. 3-1.
In 	order 	to 	be 	specific, 	an 	objection 	must 	identify 	the
specific place in the Magistrate Judge’s report and recommendation
where 	the 	disputed 	determination 	is 	found. 	An 	objection 	that
merely incorporates by reference or refers to the briefing before
the Magistrate Judge is not specific.
DONE this 1st day of November, 2024.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
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