Thomas v. Wal-Mart Stores East LP

Filing 22

ORDER granting 2 Motion to DismissOrdered by Judge Hugh Lawson on 09/16/09 (mbh)

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF GEORGIA V AL D O S TA DIVISION H E R B E R T THOMAS, P l a i nti ff, v. W A L -M A R T STORES EAST, L.P., D e fe nd a nt. : : : : : : : : : ORDER P l a i nti ff filed this case against W a l -M a rt Stores East, L.P. ("W a l -M a rt") on J ul y 28, 2008 in the Superior Court of Lowndes County, Georgia. Defendant ti m e l y filed a Notice of Removal (Doc. 1) (the "Notice"), removing the case to this C o urt on the basis of 28 U.S.C. Sections 1331 and 1332. Rather than filing an a nsw e r, Defendant filed its Motion to Dismiss/Alternative Motion for a More D e finitiv e Statement and Supporting Memorandum of Law (Doc. 2) (the "Motion") o n September 4, 2008. For the following reasons, this Court grants the Motion. In his pro se Complaint, attached as part of Exhibit "A" to the Notice, P la intiff, without any recital of supporting facts, alleges that W a l - M a r t d i s c ri m i na te d against him on the basis of gender and prays for an award of $2.5 m i l l i o n. Defendant filed the Motion seeking either to have the Complaint d i s m i s s e d , or to require Plaintiff to provide a more definite statement of his claim. In response to the Motion, Plaintiff filed his Motion to Not Dismiss Complaint 1

C i v i l Action 7:08-CV-119-HL

(D o c . 6) wherein Plaintiff provided further information in support of his claim. Plaintiff's account of the facts is rather confusing, but the Court understands that the following are Plaintiff's allegations. Plaintiff visited an unspecified W a l - M a r t s to re and attempted to pay for his groceries with a check. (Pl.'s Mtn. to Not D i s m i s s Comp. 1.) An unnamed W a l -M a rt employee refused to accept his check. (Pl.'s Mtn. 1.) Plaintiff complained to Mrs. Clara Smith, a staff member at the L a k e s i d e Apartments where Plaintiff resided, and Mrs. Smith spoke with c us to m e r service regarding Plaintiff's situation. (Pl.'s Mtn. 1.) After discussing the matter with Mrs. Smith, W a l -M a rt agreed to accept Plaintiff's check. (Pl.'s M tn. 1.) Plaintiff asked the customer service representative why she trusted Mrs. S m i th and not him, and the representative allegedly responded "You can't trust e v e ry b o d y ," which Plaintiff understood to mean "you can't trust a BLACK MAN. . . ." (Pl.'s Mtn. 1) (emphasis in original). A review of the statutes, case law and secondary sources regarding g e nd e r discrimination cases indicates that plaintiffs generally seek to vindicate a ll e g e d discrimination in at least three different contexts, only two of which are a c tua l ly actionable. The first context involves alleged discrimination in an e m p l o y e r-e m p l o y e e relationship, or in a potential employer-employee re l a ti o ns hi p . See, e.g., Serapion v. Martinez, 119 F.3d 982 (1st Cir. 1997). In thi s context, Title VII of the United States Code provides a cause of action for p l a i nti ffs who have been discriminated against on the basis of gender. See id. 2

T he second context involves discrimination against a plaintiff by a violation of his F o urte e nth Amendment right to equal protection by the state or a private entity a c ti ng on behalf of the state. There is a cause of action for gender discrimination in this context. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 130-31 (1994); P e rki ns v. Londonderry Basketball Club, 196 F.3d 13 (1st Cir. 1999). The third c o nte xt involves the alleged discrimination against a plaintiff on the basis of g e nd e r by a purely private party in a non-employment situation. There is no c a us e of action for gender discrimination in this context. See, e.g., American M frs . Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999). It is clear that Plaintiff is alleging that W a l -M a r t discriminated against him o n the basis of gender by refusing to accept his check as payment for his g ro c e ri e s . This allegation does not support a Title VII action as it does not i nv o l v e an employment relationship; nor does it support a Fourteenth Amendment E q u a l Protection action as there is no allegation that W a l -M a rt was acting on b e ha l f of the state, and this Court is skeptical of whether, in this context, such an a ll e g a tio n could even be supported. Even assuming, arguendo, that W a l - M a r t d i d discriminate against Plaintiff on the basis of gender by initially refusing to a c c e p t Plaintiff's check (but eventually accepting it), it is a case of gender d i s c ri m i na ti o n by a private party, not in the context of an employment re l a ti o ns hi p , and, therefore, is not actionable. As such, Plaintiff has failed to state a claim upon which relief can be granted, and his Complaint is dismissed with 3

p r e j ud i c e . S O ORDERED, this the 16th day of September, 2009.

/s / Hugh Lawson HUGH LAW S O N , JUDGE jch

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