O'Connor v. JC Penney Corporation
MEMORANDUM OPINION. Signed by Judge R David Proctor on 5/8/2017. (KAM, )
2017 May-08 PM 01:30
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JOYANN ROETT O’CONNOR,
JC PENNEY CORPORATION, INC.
Case No.: 2:16-cv-02068-RDP
This case is before the court on Defendant’s Motion to Dismiss. (Doc. # 11). The parties
have fully briefed the motion and it is under submission. (Docs. # 16, 17). For the reasons
explained below, the court concludes that the motion to dismiss is due to be denied.
Procedural History and Background
In December 2016, Plaintiff, who is appearing pro se, filed her initial complaint against
Defendant. (Doc. # 1). She complained that one of Defendant’s employees at a store in
Alabaster, Alabama refused to cut her hair on December 29, 2014 because the salon at that store
did not “do African American hair.” (Id. at 2). Following an initial review, the court found
some deficiencies in Plaintiff’s complaint and directed her to file an amended complaint. (Doc.
# 4). Plaintiff filed an amended complaint in January 2017. (Doc. # 5). After reviewing the
amended complaint, the court directed Plaintiff to file a second amended complaint to remedy
additional deficiencies. (Doc. # 6).
Plaintiff submitted her second amended complaint in February 2017. 1 (Doc. # 7). This
complaint alleges that Plaintiff made an appointment at a beauty salon in Defendant’s Alabaster
store. (Id. at ¶ 4). When she arrived at the salon on December 29, 2014, a salon employee told
her that the salon did not cut “African-American hair” because it was too hard. (Id. at ¶¶ 4, 6).
Plaintiff alleges that the remark “prevented her from getting services at the salon” and that she
“left the salon before she was able to receive the services” she desired. (Id. at ¶¶ 7-8). Plaintiff
asserts that Defendant violated 42 U.S.C. § 1981 by acting with discriminatory intent towards
(Id. at ¶ 11).
She complains that she suffered emotional and mental anguish from
Defendant’s conduct. (Id. at ¶ 12).
Standard of Review
The Federal Rules of Civil Procedure require that a complaint provide “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
However, the complaint must include enough facts “to raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Pleadings that contain
nothing more than “a formulaic recitation of the elements of a cause of action” do not meet Rule
8 standards, nor do pleadings suffice that are based merely upon “labels and conclusions” or
“naked assertion[s]” without supporting factual allegations. Id. at 555, 557. In deciding a Rule
12(b)(6) motion to dismiss, courts view the allegations in the complaint in the light most
favorable to the non-moving party. Watts v. Fla. International Univ., 495 F.3d 1289, 1295 (11th
Both Plaintiff and Defendant have referred to the factual allegations in the initial complaint in support of
their arguments. However, an amended complaint supplants a plaintiff’s earlier complaint and constitutes an
abandonment of the earlier pleading. Pintando v. Miami-Dade Hous. Agency, 501 F.3d 1241, 1243 (11th Cir. 2007).
Therefore, the court will limit its review to the allegations in the second amended complaint.
In reviewing Plaintiff’s initial complaint, the court liberally construed the complaint to present a
discrimination claim under Title II of the Civil Rights Act of 1964. (Doc. # 4 at 1). Nevertheless, it determined that
any Title II claim in the initial complaint was not plausibly pled. (Id.). Plaintiff’s operative complaint does not
assert a Title II claim. (See generally Doc. # 7). And, she concedes that such a Title II claim would be meritless
here. (Doc. # 16 at 2).
Cir. 2007). Moreover, the court must liberally construe Plaintiff’s second amended complaint
because she submitted the complaint pro se. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible
on its face.” 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although “[t]he
plausibility standard is not akin to a ‘probability requirement,’” the complaint must demonstrate
“more than a sheer possibility that a defendant has acted unlawfully.” Id. A plausible claim for
relief requires “enough fact[s] to raise a reasonable expectation that discovery will reveal
evidence” to support the claim. Twombly, 550 U.S. at 556.
In considering a motion to dismiss, a court should “1) eliminate any allegations in the
complaint that are merely legal conclusions; and 2) where there are well-pleaded factual
allegations, ‘assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief.’” Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 F. App’x 136,
138 (11th Cir. 2011) (unpublished) (quoting Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283,
1290 (11th Cir. 2010)). That task is context specific and, to survive the motion, the allegations
must permit the court based on its “judicial experience and common sense . . . to infer more than
the mere possibility of misconduct.” Iqbal, 556 U.S. at 679. If the court determines that wellpleaded facts, accepted as true, do not state a claim that is plausible, the claims are due to be
dismissed. Twombly, 550 U.S. at 570.
Defendant contends that Plaintiff’s Section 1981 claim is due to be dismissed because she
has not plausibly pled that Defendant intended to discriminate against her. (Doc. # 11 at 7).
Moreover, Defendant insists that Plaintiff has not alleged a denial of an opportunity to enter a
contract. (Id.). The court disagrees.
A plaintiff must establish three elements for a claim under Section 1981: (1) he or she is a
member of a racial minority; (2) a defendant intended to discriminate against him or her on the
basis of race; and (3) “the discrimination concerned one or more of the activities enumerated in
the statute.” Lopez v. Target Corp., 676 F.3d 1230, 1233 (11th Cir. 2012) (quoting Kinnon v.
Arcoub, Gopman & Assocs., Inc., 490 F.3d 886, 891 (11th Cir. 2007)). The Eleventh Circuit has
adopted the Fifth’s Circuit standard for determining whether an incident in a retail establishment
concerns contractual activity protected under Section 1981. See id. at 1233-34 (affirmatively
citing and discussing Arguello v. Conoco, Inc., 330 F.3d 355 (5th Cir. 2003)). Under that
standard, a complaint “must allege that the plaintiff was actually prevented, and not merely
deterred, from making a purchase.” Id. at 1234 (quoting Arguello, 330 F.3d at 358-59).
The court’s research has uncovered two published opinions from the Eleventh Circuit
analyzing Section 1981 claims based on conduct in retail establishments, both of which were
decided in the defendant’s favor. In Lopez, a cashier claimed that her register was closed when
the plaintiff, a Hispanic customer, attempted to complete a purchase. Id. at 1231. The cashier
then proceeded to serve the next customer. Id. A supervisor sent the plaintiff back to the same
register, and the cashier reiterated that the register was closed for plaintiff. Id. at 1231-32. The
plaintiff moved to another register and completed his purchase. Id. at 1232. The Eleventh
Circuit held that the plaintiff in Lopez failed to state a claim under Section 1981 because he was
“able to complete his transaction at the same Target store, buying his desired goods at the same
price and using the same payment method as any other customer.” Id. at 1234.
In Kinnon, the plaintiff ordered pizza for a staff meeting, but told an employee to refuse
the pizza when it was delivered two hours after her order. 490 F.3d at 888. An employee at the
pizzeria left the plaintiff numerous messages to try and collect payment. Id. at 889. In one
message, the employee used numerous racial epithets in reference to the plaintiff. Id. The
Eleventh Circuit held that the plaintiff could not maintain a claim under Section 1981 premised
on the phone messages because the conduct at issue was “post-contractual activity” that occurred
after the plaintiff “successfully took steps to terminate the contract.” Id. at 892-93.
Here, Plaintiff’s Section 1981 action is distinguishable from both Lopez and Kinnon.
Unlike the plaintiff in Lopez, Plaintiff was not able to enter into a contract at Defendant’s hair
salon and did not receive the services she sought from the salon. (Doc. # 7 at ¶¶ 6-8). Cf. Lopez,
676 F.3d at 1234. And, unlike the conduct at issue in Kinnon, Defendant’s employee asserted
that she could not cut “African-American hair” before any contract was entered into or
terminated. (Doc. # 7 at ¶¶ 6-8). Cf. Kinnon, 490 F.3d at 892-93.
Indeed, this case is most similar to a Fourth Circuit case, Denny v. Elizabeth Arden
Salons, Inc., 456 F.3d 427 (4th Cir. 2006), that presented a triable Section 1981 claim. The
plaintiff in Denny went to a hair salon to redeem a gift package purchased by her daughter. Id. at
430. The plaintiff received some services from the salon, but when the daughter tried to
purchase hair coloring services as a gift, a salon employee said that the salon did not “do black
people’s hair.” Id. The salon’s manager refused to cut the plaintiff’s hair and indicated that all
of the stylists at the salon refused to do so as well. Id. A stylist shampooed and dried the
plaintiff’s hair before she left due to her embarrassment. Id. The Fourth Circuit held that the
plaintiff had a triable Section 1981 claim because (1) a contractual relationship existed following
the purchase of the gift package, (2) a factual issue existed as to whether the plaintiff received
hair styling or hair coloring “in any meaningful sense,” and (3) a factual issue existed as to
whether the salon refused to allow the daughter to purchase hair coloring services on race-based
grounds. Id. at 434-36. With regard to the intentional discrimination element of a Section 1981
claim, the Denny opinion observed that “it is hard to imagine plainer evidence of purposeful
discrimination than when services are denied expressly because the purchaser is African
American.” Id. at 435.
Plaintiff’s second amended complaint alleges that she travelled to Defendant’s salon after
making an appointment to receive services. (Doc. # 7 at ¶ 4). One of Defendant’s employees
purportedly told her that the salon did not style “African-American hair,” and this statement
allegedly prevented Plaintiff from receiving services at the salon. (Id. at ¶¶ 6-7). Indeed,
Plaintiff left the salon without receiving any services. (Id. at ¶ 8). As in Denny, Plaintiff has
presented a plausible allegation of intentional discrimination because Defendant’s employee
allegedly referred to a racial characteristic as a ground for denying service. 3 (Id. at ¶ 6). Cf.
Denny, 456 F.3d at 435. And, despite the lack of an express allegation that the employee’s
conduct prevented Plaintiff from entering into a contract with Defendant, the court liberally
construes that element of Plaintiff’s claim to be alleged based upon Plaintiff’s non-conclusory
allegations that she made a reservation at Defendant’s salon, went to the salon, and left the salon
without receiving services. Cf. Erickson, 551 U.S. at 94 (referring to the court’s obligation to
liberally construe pro se complaints). Although Plaintiff’s complaint lacks many details that
would be helpful to assessing her claim, her Section 1981 claim (again construed liberally)
Defendant requests that the court infer an inartful mistake from the employee’s statement that she could
not cut “African-American hair” because it was “hard” to cut. (Doc. # 11 at 7). The court cannot infer that more
benign intention at this stage of the proceedings because it must view the allegations in the light most favorable to
the plaintiff. Watts, 495 F.3d at 1295.
crosses over the plausibility threshold. Therefore, Defendant’s motion to dismiss is due to be
For the foregoing reasons, Defendant’s motion to dismiss (Doc. # 11) is due to be denied.
An order consistent with this Memorandum Opinion will be entered.
DONE and ORDERED this May 8, 2017.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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