Redway v. Walmart Inc. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
TAMIA REDWAY, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-26-18-JFH-GLJ
)
WALMART INC., 	)
)
Defendant. 	)
REPORT AND RECOMMENDATION
This matter is before the Court on motion by Defendant Walmart Inc. for dismissal
of this case filed by pro se Plaintiff Tamia Redway. 	This case was referred to the
undersigned Magistrate Judge for all further proceedings in accordance with jurisdiction
pursuant to 28 U.S.C. § 636, on February 20, 2026 [Docket No. 14]. Having considered
the motion and all relevant filings, the undersigned Magistrate Judge recommends that
Defendant’s Renewed Motion to Dismiss and Brief in Support [Docket No. 18] be
GRANTED.
I. Background and Procedural History
Plaintiff, proceeding pro se, filed this case in Oklahoma state court in Bryan County,
CJ-25-316, on December 18, 2025, and Defendant removed the case to this Court on
January 20, 2026 [Docket Nos. 1-2]. On February 10, 2026, Defendant moved to dismiss
Plaintiff’s state court Petition, and Plaintiff moved for leave to file an Amended Complaint.
Docket Nos. 11, 13. 	Plaintiff filed her Amended Complaint on February 20, 2026, and
Defendant filed a renewed Motion to Dismiss on March 4, 2026. 	Plaintiff’s Amended
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Complaint alleges violations of Title VII and the Oklahoma Anti-Discrimination Act
(“OADA”) arising out of her employment with Defendant, including race discrimination
and retaliation. Additionally, she alleges the state law claims of wrongful termination and
negligence.
II. Legal Standards
Under Fed. R. Civ. P. 8(a)(2), a complaint must contain “a short and plain statement
of the claim showing that the pleader is entitled to relief.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). Practically, this means that the “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). A claim
is plausible on its face when the complaint “pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
“In considering whether the complaint’s allegations are sufficient, the court first eliminates
conclusory allegations, mere ‘labels and conclusions,’ and any ‘formulaic recitation of the
elements of a cause of action.’” 	Bledsoe v. Carreno, 53 F.4th 589, 606 (10th Cir. 2022)
(quoting Iqbal, 556 U.S. at 678) (quoting Twombly, 550 U.S. at 555). 	“The court then
accepts as true all well-pled factual allegations and considers ‘whether they plausibly give
rise to an entitlement to relief.’” Id. (quoting VDARE Found. v. City of Colorado Springs,
11 F.4th 1151, 1159 (10th Cir. 2021)).
When reviewing a motion to dismiss under Rule 12(b)(6), the Court “‘must
determine 	whether 	the 	complaint 	sufficiently 	alleges 	facts 	supporting 	all
the elements necessary 	to 	establish 	an 	entitlement 	to 	relief 	under 	the 	legal 	theory
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proposed.’” Commonwealth Prop. Advocates, LLC v. Mortg. Elec. Registration Sys., Inc.,
680 F.3d 1194, 1201-1202 (10th Cir. 2011) (quoting Forest Guardians v. Forsgren, 478
F.3d 1149, 1160 (10th Cir. 2007)). 	“While the 12(b)(6) standard does not require that
Plaintiff establish a prima facie case in her complaint, the elements of each alleged cause
of action help to determine whether Plaintiff has set forth a plausible claim.” 	Khalik v.
United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012).
Finally, because Plaintiff is proceeding pro se, the undersigned Magistrate Judge
liberally construes her pleadings. See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992)
(requiring courts to liberally construe a pro se litigant’s pleadings); Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991) (a court construes a pro se party’s pleadings liberally and
holds them “to a less stringent standard than [that applied to] formal pleadings drafted by
lawyers.”). Although pro se pleadings are held to a less stringent standard than ones drafted
by lawyers, a pro se litigant must “‘follow the same rules of procedure that govern other
litigants.’” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005)
(quoting Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994)). Furthermore, the Tenth
Circuit “do[es] not believe it is the proper function of the district court to assume the role
of advocate for the pro se litigant.” Hall, 935 F.2d at 1110.
III. Analysis
Defendant moves for dismissal pursuant to Fed. R. Civ. P. 12(b)(4), 12(b)(5), and
12(b)(6), contending that service of process and the process itself was insufficient here and
that Plaintiff fails to state a claim. Plaintiff responds with additional factual allegations to
support her claims, but does not address Defendant’s argument regarding service.
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A. Proper Service
Defendant, appearing in this case out an abundance of caution, contends that
Plaintiff’s process itself was insufficient because the summons form, created while the case
was still pending in Oklahoma state court, did not comply with 12 Okla. Stat. § 2004(B)(1),
was not signed by the Clerk, contained a caption from the Western District of Oklahoma,
did 	not 	provide 	Plaintiff’s 	address, 	and 	provided 	an 	incorrect 	answer 	deadline.
Additionally, Defendant alleges service of process was insufficient because it was not made
upon an officer, managing or general agent, or authorized agent, but was instead directed
at an individual and left at the Durant, Oklahoma, Walmart store by a sheriff’s deputy. The
undersigned Magistrate Judge also notes that a return of service has not been filed with the
Court. See Fed. R. Civ. P. 4(l) and 12 Okla. Stat. § 2004(B)(1). Plaintiff does not refute
these assertions. 	The undersigned Magistrate Judge agrees that a sheriff dropping the
improper summons and Petition off at a store is not considered proper service of process
pursuant to Rule 4(e), and that the service itself was incomplete. 	Accordingly, the
undersigned Magistrate Judge finds Plaintiff’s service and attempted service of process
were insufficient and Plaintiff is entitled to dismissal pursuant to Fed. R. Civ. P. 12(b)(4)
and 12(b)(5).
B. Failure to State a Claim
Plaintiff’s alleges in her Amended Complaint that while she was employed with
Walmart she “was subjected to severe and ongoing racial discrimination, including unequal
treatment, hostile conduct, and discriminatory practices,” “was treated differently than
similarly situated non-Black employees,” and that she reported discriminatory conduct and
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unfair treatment to management, but that she “experienced retaliation, including increased
scrutiny, hostility, and adverse employment actions” up to and including termination,
which she believes was motived “by racial discrimination and retaliation, no legitimate
business reasons.” Docket No. 16, p. 1, ¶¶ 5-10. Plaintiff’s Amended Complaint provides
no additional or specific factual information regarding her dates of employment or specific
actions taken by Defendant in support of any of her four claims. See, e.g., Wade v. City of
Haileyville, 2015 WL 4759389, at *8 (E.D. Okla. Aug. 12, 2015) (“Plaintiff’s vague,
conclusory allegations against the Sheriff's Department do not state any facially plausible
claim for relief under 42 U.S.C. § 1983 or any other law and therefore must be dismissed.”).
While the Court must accept as true all well-pleaded factual allegations in the
complaint and view those allegations in the light most favorable to Plaintiff, Nixon v. City
and County of Denver, 784 F.3d 1364, 1368 (10th Cir. 2015), a complaint “must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” 	Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. 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. Plaintiff’s
Amended Complaint fails to meet this standard, and the additional factual averments
contained in her response cannot be considered. See Mobley v. McCormick, 40 F.3d 337,
340 (10th Cir. 1994) (“The nature of a Rule 12(b)(6) motion tests the sufficiency of the
allegations within the four corners of the complaint after taking those allegations as true.”)
(emphasis added). Defendant is therefore also entitled to dismissal pursuant to Fed. R. Civ.
P. 12(b)(6).
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Moreover, 	Plaintiff 	has 	previously 	been 	granted 	leave 	to 	amend 	following
Defendant’s original Moton to Dismiss. The undersigned Magistrate Judge considered the
the additional “factual clarifications” in Plaintiff’s Response in consideration of whether a
final amendment to the pleadings might be warranted, but finds that while they provide
information regarding dates, they fall short of containing sufficient factual matter to state
a claim as to this Defendant. As such, the undersigned Magistrate Judge finds Plaintiff has
had ample opportunity to support her claims but has ultimately failed to state a claim for
relief. 	“The court cannot construct a satisfactory Complaint on Plaintiff’s behalf.”
Vanwinkle v. Coweta Police Dep’t, 2022 WL 4449307, at *3 (E.D. Okla. Sept. 23, 2022).
CONCLUSION
Accordingly, the undersigned Magistrate Judge RECOMMENDS that Defendant’s
Renewed Motion to Dismiss and Brief in Support [Docket No. 18] be GRANTED. 	Any
objections to this Report and Recommendation must be filed within fourteen days. See 18
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). A response shall be due within fourteen days of
any objection. Any objections and response shall each be limited to 10 pages and a reply
is permitted only with leave of court upon a showing of good cause.
IT IS SO ORDERED this 8th day of April, 2026.
GERALD L. JACKSON
UNITED STATES MAGISTRATE JUDGE
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