Rochelle v. CVS Caremark
Filing
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MEMORANDUM AND ORDER granting 9 defendant's Motion to Dismiss. Signed by District Judge Daniel D. Crabtree on 6/8/2015. Mailed to pro se party Marquan Rochelle by regular mail. (ms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARQUAN ROCHELLE,
Plaintiff,
Case No. 14-cv-2473-DDC-TJJ
v.
CVS CAREMARK,
Defendant.
MEMORANDUM AND ORDER
Plaintiff Marquan Rochelle filed this lawsuit pro se on September 19, 2014 (Doc. 1),
alleging that defendant CVS Caremark discriminated against him in violation of Title VII of the
Civil Rights Act of 1964 (“Title VII”) and the Americans with Disabilities Act of 1990
(“ADA”). This matter comes before the Court on defendant’s Motion to Dismiss (Doc. 9). For
the following reasons, the Court grants defendant’s motion.
I. Factual and Procedural Background
Plaintiff, an African-American man, brings Title VII claims for race and gender
discrimination. He also brings an ADA claim for disability discrimination. He alleges that
defendant unlawfully harassed him, reduced his wages, retaliated against him, and ultimately
terminated his employment. Plaintiff’s Complaint, made on the “Employment Discrimination
Complaint” form provided by this Court, contains virtually no factual support for these claims.
Paragraph 10 of the form Complaint asks plaintiff to state the essential facts of his claim. In
response, plaintiff alleges: “Complain about discrimination to employer, refuse to file
complaint, terminated employment.” Doc. 1 at ¶ 10. He never identifies any disability and states
simply, “Employer did not provid[e] accommodation for my disability.” Id. at ¶ 13.
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Plaintiff attaches to his Complaint a Charge of Discrimination that he filed on June 11,
2014, as well as the right-to-sue letter that the EEOC issued in response to this Charge.1 His
Charge of Discrimination provides some facts about the alleged discrimination, and the Court
recites them fully here:
I was hired on September 30, 2013, as a Customer Service Representative. On
October 8, 2013, I was written up. On October 9, 2013, I was disciplined for
harassing a female co-worker. On October 18, 2013, I complained about my
wages. On October 23, I complained to management and human resources that
my supervisor made disparaging comments about my disability. On the same
day, I was made to work alone while everyone else worked in a group. On
October 25, 2013, I was accused of harassing a female co-worker. On November
4, 2013, I was discharged.
Management indicated that I was discharged because a female accused me of
harassment.
I believe that I was disciplined, harassed and falsely accused of harassing a female
co-worker because of my race, black, and sex, male, in violation of Title VII of
the Civil Rights Act of 1964, as amended; I also believe that I was harassed and
discharged because of my disability and in retaliation for complaining, I was
discharged.
Doc. 1 at 7.
Defendant filed this motion to dismiss on October 31, 2014. On December 31, 2014 and
January 12, 2015, plaintiff filed Motions to Amend his Complaint (Docs. 17, 19) to which
defendant filed a response on January 14, 2015 (Doc. 20). On February 2, 2015, plaintiff filed a
brief both supporting his motions to amend and opposing defendant’s motion to dismiss (Doc.
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Exhaustion of administrative remedies is a jurisdictional prerequisite to bringing a lawsuit in federal
court under Title VII and the ADA. Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1309-10, 1317
(10th Cir. 2005). Because plaintiff filed this lawsuit within 90 days of receiving the right-to-sue letter
from the EEOC, he has exhausted his administrative remedies on both his Title VII and ADA claims. See
Kinney v. Blue Dot Servs. of Kan., 505 F. App’x 812, 814 (10th Cir. 2012) (“Title VII plaintiffs must
clear three procedural hurdles before bringing suit in federal court: (1) file a discrimination charge with
the EEOC, (2) receive a right-to-sue letter from the EEOC, and (3) file suit within ninety days of
receiving the letter.”); Shikles, 426 F.3d at 1309 (holding that the procedural requirements of Title VII
and the ADA “must be construed identically”). The Court therefore has subject matter jurisdiction over
this lawsuit.
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21). On February 27, 2015, Judge James issued an Order (Doc. 24) denying without prejudice
plaintiff’s motions to amend because plaintiff failed to attach his proposed amended complaint to
his motion, as required by D. Kan. Rule 15.1(a)(2). Plaintiff has not sought to amend his
complaint since Judge James’ Order. Defendant has filed a reply in support of its motion to
dismiss (Doc. 23), and therefore this motion is ripe for decision.
II. Legal Standard
“‘[O]nly a complaint that states a plausible claim for relief survives a motion to
dismiss.’” Asebedo v. Kan. State Univ., 559 F. App’x 668, 670 (10th Cir. 2014) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). In Iqbal and Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555-57 (2007), the Supreme Court created “‘a middle ground between heightened fact
pleading, which is expressly rejected, and allowing complaints that are no more than labels and
conclusions or a formulaic recitation of the elements of a cause of action, which the Court stated
will not do.’” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)). “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.” Iqbal, 556 U.S. at 678 (citing Twombly,
550 U.S. at 556).
Although the Court must assume that the factual allegations in the complaint are true, it is
“not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S.
at 678 (quotation omitted). “‘Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice’” to state a claim for relief. Bixler v. Foster, 596
F.3d 751, 756 (10th Cir. 2010) (quoting Iqbal, 556 U.S. at 678). Plaintiffs are not required to
allege all the elements of a prima facie case of discrimination specifically. Asebedo, 559 F.
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App’x at 670. “Nevertheless, ‘the elements of each alleged cause of action help to determine
whether [p]laintiff has set forth a plausible claim.’” Id. (quoting Khalik, 671 F.3d at 1192).
“[G]eneral assertions of discrimination and retaliation, without any details whatsoever of events
leading up to [the plaintiff’s] termination, are insufficient to survive a motion to dismiss. While
specific facts are not necessary, . . . some facts are.” Khalik, 671 F.3d at 1193 (brackets and
internal quotation marks omitted).
When evaluating a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court may
consider not only the complaint itself, but also attached exhibits and documents incorporated into
the complaint by reference. Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)
(citations omitted).
III. Analysis
Defendant argues that the Court should dismiss plaintiff’s Complaint because it does not
provide sufficient factual allegations to state a plausible claim for relief. The Court agrees. At
the outset, several of plaintiff’s allegations are not entitled to the assumption of truth because
they are entirely conclusory. These include his allegations that: (1) defendant “did not provide
accommodation for [his] disability,” Doc. 1 at 4; (2) “I believe that I was disciplined, harassed
and falsely accused of harassing a female co-worker because of my race, black, and sex, male, in
violation of Title VII,” id. at 7; and (3) “I also believe that I was harassed and discharged
because of my disability and in retaliation for complaining,” id. Cf. Khalik, 671 F.3d at 1193
(holding that the plaintiff’s allegations that: “(1) she was targeted because of her race, religion,
national origin and ethnic heritage; (2) she was subjected to a false investigation and false
criticism; and (3) [the d]efendant’s stated reasons for the termination and other adverse
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employment actions were exaggerated and false, giving rise to a presumption of discrimination,
retaliation, and wrongful termination” were conclusory and not entitled to be taken as true.).
Striking those conclusory allegations leaves the following facts, which the Court accepts
as true, id.: (1) plaintiff is an African-American male; (2) on September 30, 2013, defendant
hired plaintiff as a Customer Service Representative; (3) on October 8, 2013, plaintiff “was
written up,” Doc. 1 at 7; (4) on October 9, 2013, defendant disciplined plaintiff for harassing a
female co-worker; (5) on October 18, 2013, plaintiff complained about his wages; (6) on October
24, 2013, plaintiff complained to management and human resources that his supervisor made
disparaging comments about his disability; (7) on that same day, defendant forced plaintiff to
work alone while other employees worked in a group; (8) on October 25, 2013, plaintiff was
again accused of harassing a female co-worker; (9) on November 4, 2013, defendant terminated
plaintiff’s employment; and (10) defendant told plaintiff that it discharged him because a woman
accused him of harassment. The Court also accepts as true plaintiff’s allegation that defendant
refused to “file a complaint” after he complained about discrimination. Doc. 1 at ¶ 10.
Neither plaintiff’s Complaint nor his Charge of Discrimination contain any facts that
even mention racial or gender discrimination, let alone plausibly show that defendant
discriminated or retaliated against him on either basis. Plaintiff alleges that defendant reduced
his wages or “refuse[d] to pay” him, but makes no attempt to show a connection between these
actions and his race or gender. The Court therefore dismisses plaintiff’s Title VII claims.
Plaintiff does allege that he complained to management and human resources that his
supervisor had made disparaging comments about his disability. But he never identifies his
disability or specifies what his supervisor actually said. Plaintiff argues that defendant harassed
him based on his disability but pleads no facts showing how defendant harassed him or that the
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harassment was so “severe or pervasive to alter the conditions of [his] employment and create an
abusive working environment.” Benavides v. City of Okla. City, 508 F. App’x 720, 723 (10th
Cir. 2013). Nor do his pleadings contain facts showing a causal connection between his
disability and his ultimate termination. Finally, plaintiff’s claim that defendant retaliated against
him based on his disability also fails. Plaintiff alleges that defendant forced him to work alone
on the same day he complained to management about his supervisor’s comment about his
disability. But plaintiff pleads no facts that plausibly demonstrate that “a causal connection
existed between the protected activity” and defendant’s action, an element of a retaliation claim.
Proctor v. United Parcel Serv., 502 F.3d 1200, 1208 (10th Cir. 2007) (quotation omitted). For
these reasons, the Court dismisses plaintiff’s ADA claims.
“‘Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading
regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with
nothing more than conclusions.’” Asebedo, 559 F. App’x at 673 (quoting Iqbal, 556 U.S. at 67879). Because plaintiff supports his claims with little more than conclusions, the Court grants
defendant’s motion and dismisses plaintiff’s claims without prejudice.
IT IS THEREFORE ORDERED BY THE COURT THAT defendant’s Motion to
Dismiss (Doc. 9) is granted.
IT IS SO ORDERED.
Dated this 8th day of June, 2015, at Topeka, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge
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