WRIGHT III v. FOOTLOCKER, INC. et al
MEMORANDUM OPINION. Signed by Judge Kevin McNulty on 7/26/17. (cm, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
HOWARD WRIGHT III,
Civ. No. 16-2522 (KM) (MAH)
FOOTLOCKER, INC., and BOB
KEVIN MCNULTY, U.S.D.J.:
Plaintiff Howard Wright III (“Wright”) brought this action against his
former employer, Foot Locker Retail, Inc.’ (“Foot Locke?’), and Foot Locker
district manager Bob Chalfant (collectively, “Defendants”), based on alleged
employment discrimination and retaliation in violation of Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C.
§ 2000e et seq.
Now before the Court is Defendants’ motion (ECF no. 12)2 to dismiss the
Complaint for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6). For
the reasons stated below, I will dismiss Wright’s complaint without prejudice to
the submission of a proposed amended complaint within 30 days.
Wright mistakenly designated the corporate defendant as “Footlocker, Inc.”
Record items cited repeatedly will be abbreviated as follows
Complaint (ECF no. 1-1)
Plaintiffs Letter in Opposition (ECF no. 17)
According to the Complaint, Wright was employed by Foot Locker for
eight years from January 8, 2008 through February 27, 2016. (Compl. 6)
Wright was a fulitime associate during his first year of employment, and was
an assistant manager for the remaining seven years. (Id.) The Complaint alleges
that Wright was “discriminated against and denied promotion” despite an
excellent employment record. (Id.)
Tn April and May 2013, Wright was transferred from the Willowbrook
Foot Locker store4 to temporarily manage the Foot Locker store in Irvington,
New Jersey. (Id. at 7) Wright asked district manager Bob Chalfant to promote
him to permanent store manager at that location. (Id.) However, Ramon
Acevedo was instead promoted to the permanent manager position, and Wright
became the assistant manager. (Id.) “To date,” Wright is “the only assistant
manager out of the bunch [he] started with that has not been promoted to my
own store as a manager.” (Id.)
In February 2014, there was an incident of gun violence at the Irvington
Foot Locker. (Id.) Chalfant let Wright and his fellow assistant manager,
Rodderick Garett, know that they “would be recognized and compensated for
[their] bravery” and manner in which they “handled the situation.” (Id.)
However, “nothing has happened in reference to the store shooting.
has been like the whole situation was swept under the rug.” (Id.) Acevedo,
Garett, and Wright all requested to be transferred to different locations out of
concern for their safety. (Id.) Acevedo and Garett were both transferred in April
2014, but Wright was not. (Id.)
Wright’s Complaint consists of a five-page form complaint, an EEOC Notice of
Dismissal and Right to Sue, and documents titled “Howard Wright 3rd
Damages.docx” and “Howard Wright 3rd Statement of Events.docx.” For ease of
reference, all citations to the Complaint will use the page number of the collected
documents as designated in ECF no. 1-1.
Presumably, this refers to a Foot Locker Store in Willowbrook Mall located in
In July 2014, Wright was transferred to a Foot Locker store in Paterson,
NJ, and his pay was reduced. Wright voiced his objection to that placement,
but Chalfant reassured him that the placement would not last more than two
to three months. (Id. at 8) The Paterson Foot Locker store was in violation of
certain city codes, and Wright “filed a complaint with the board of health and
other proper agencies.” (Id.) The bathroom had been unusable “due to lead,
asbestos and mold.” (Id.) As a result of Wright’s complaint, “the city made [the
store] clean everything up and build a new bathroom with running water.” (Id.)
However, after this incident, Wright noticed that many assistant managers with
less experience than him were being promoted while Wright was passed over.
In December 2014, Wright filed a complaint with the human resources
department regarding his having been denied and passed over for promotions.
(Id.) Although he was told that his complaint would be investigated, it was not
until February 2015—after Wright had filed with the Equal Employment
Opportunity Commission (“EEOC9—that Chalfant telephoned Wright to say
that “he was going to give [Wright] a fair chance,” and that Wright should “just
email him where [Wright] wanted to be relocated to.” (Id.) In early March 2015,
Wright wrote an e-mail message to Chalfant stating that he wished to be placed
at the Willowbrook Foot Locker. (Id.) Wright was told that he would be relocated
“after All Star Weekend.” (Id.) In April 2015, Wright still had not been
transferred out of the Paterson store, and doubted that he would ever be
promoted at Foot Locker. (Id.) He therefore decided to go to school part-time for
a Commercial Driver’s License (“CDL”). (Id.) Wright’s manager at the Paterson
store, Ernesto Aquino, approved a work schedule that accommodated Wright’s
CDL school schedule. (Id.)
After four or five months of this arrangement, Chalfant inquired about
Wright’s modified schedule and informed Wright that “because [he] wasn’t
working [thel 35 hour[J minimum,” Wright had to “either demote [him]self or
change [his] school schedule.” (Id.) Chalfant declined Wright’s request that
Chalfant put the demand in writing, and informed Wright that he had only
until the end of the day to decide. (Id. at 9) That same day, another Foot Locker
employee was transferred to the Paterson store in order to accommodate that
employee’s attendance at Paterson Community College. (Id.) Wright felt
discriminated against that this employee had been accommodated, but Wright
had not. (Id.) Later, around September 2015, Wright “suffered an anxiety
attack from the constant pressure,” and took medical leave after seeking
psychiatric help. (Id. at 8—9)
In or around September 2015, Wright filed a second EEOC complaint
and received his Notice of Dismissal and Right to Sue in February 2016. (Id. at
A. Standard of Review
Rule 12(h)(6J provides for the dismissal of a complaint, in whole or in
part, if it fails to state a claim upon which relief can be granted. The defendant,
as the moving party, bears the burden of showing that no claim has been
stated. Animal Science Products, Inc. v. China Minmetals Corp., 654 F.3d 462,
469 n. 9 (3d Cir. 2011). For the purposes of a motion to dismiss, the facts
alleged in the complaint are accepted as true and all reasonable inferences are
drawn in favor of the plaintiff. New Jersey Carpenters & the Tnzstees Thereof v.
Tishman Const. Corp. of New Jersey, 760 F.3d 297, 302 (3d Cir. 2014).
Federal Rule of Procedure 8(a) does not require that a complaint contain
detailed factual allegations. Nevertheless, “a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Bell AtL Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the
complaint’s factual allegations must be sufficient to raise a plaintiffs right to
relief above a speculative level, so that a claim is “plausible on its face.” Id. at
570; see also West Run Student Housing Assocs., LLC u. Huntington Nat. Bank,
712 F.3d 165, 169 (3d Cir. 2013). That facial-plausibility standard is met
“when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcrofl v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).
While “lt]he plausibility standard is not akin to a ‘probability requirement’.
it asks for more than a sheer possibility.” Iqbal, 556 U.S. at 678.
Where a plaintiff is proceeding pro se, the complaint is “to be liberally
construed,” and, “however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551
U.S. 89, 93-94 (2007). Nevertheless, “pro se litigants still must allege sufficient
facts in their complaints to support a claim.” Mala u. Crown Bay Marina, Inc.,
704 F.3d 239, 245 (3d Cir. 2013). “While a litigant’s pro se status requires a
court to construe the allegations in the complaint liberally, a litigant is not
absolved from complying with Twombly and the federal pleading requirements
merely because s/he proceeds pro se.” Thakar
Tan, 372 F. AppSc 325, 328
(3d Cir. 2010) (citation omitted).
The only cause of action identified by Wright in his complaint is Title VII.
(See Civil Cover Sheet, ECF no. 1-3) (Cause of Action listed as: “Title VII of the
Civil Rights Act of 1964, Discrimination, character discrim[ination],
Retaliation.”) Defendants contend that Wright has failed to state a claim for a
Title VII violation. I agree.
Title VII of the Civil Rights Act of 1964 prohibits, among other things,
discrimination based on race, color, religion, sex, or national origin in the
workplace. 42 U.S.C.
§ 2000e-2(a) et seq.; Covington u. Int’l Ass’n of Approved
Basketball Officials, 710 F.3d 114, 119 (3d Cir. 2013). To establish a claim of
disparate treatment under Title VII, a plaintiff must show that he (1) is a
member of a protected class; (2) was qualified for the position; and (3) suffered
an adverse employment action (4) under circumstances that give rise to an
inference of intentional discrimination. Makky v. Chertoff, 541 F.3d 205, 214
(3d Cir. 2008). To establish a prima facie case of retaliation under Title VII, a
plaintiff must demonstrate: (1) the plaintiff engaged in activity protected by
Title VII; (2) the employer took an adverse employment action against him; and
(3) there was a causal connection between his participation in the protected
activity and the adverse employment action. Moore v. City of Philadelphia, 461
F.3d 331, 340—4 1 (3d Cir. 2006) (applying McDonnell Douglas framework in
As to the first element of a prima facie case, there are two classes of
“protected activity”: (a) participation (which includes formal charges, testifying,
assisting, or participating in any investigation, proceeding, or hearing under
Title VII) and (b) opposition (encompassing informal grievance procedures,
informal protests, and making complaints to management about acts unlawful
under Title VII). See Moore, 461 F.3d at 341, 343; Curay-Cramer v. Ursuline
Academy of Wilmington, Delaware, Inc., 450 F.3d 130, 135 (3d Cir. 2006). An
actual Title VII violation need not be proven, but the employee plaintiff must
have had an “objectively reasonable belier that the challenged practice of the
employer was unlawful under Title VII. Moore, 461 F.3d at 341 (citing Clark
County u. Breeden, 532 U.S. 268, 271 (2001) (per curiam)). The opposition to
discrimination must have been clear, not equivocal. Id.
Here, however, Wright has not alleged that he was subject to
discrimination on the basis of his membership in a protected class. Wright
The Title VII claim must be dismissed against defendant Bob Chalfant in any
case. The Third Circuit has long held that Title VII liability attaches to employers, not
to individual supervisory employees. For example, in Emerson t’. Thiel College, 296
F.3d 184 (3d Cir. 2002), a former student brought suit under Title VII against a
college, its president, its vice president of academic affairs, and members of the faculty
and staff. The Third Circuit upheld dismissal of the claim against the individual
defendants because “individual employees are not liable under Tide VII.” Id. at 190.
See also Thci v. Corn. of Pa., 91 F.3d 542, 552 (3d Cir. 1996) (“individual employees
cannot be held liable under Title VII”); Sheridan v. E.L DuPont de Nernours & Co., 100
F.3d 1061, 1078 (3d Cir. 1996) (“we are persuaded that Congress did not intend to
hold individual employees liable under Tide VII”).
does not clearly allege that a protected characteristic played any role in the fact
that another employee, Anderson, received a scheduling accommodation to
attend Paterson Community College but Wright’s school-related
accommodation was revoked. He does reference Anderson’s ethnicity, but the
implication is not clear from the context: “I asked Anderson who was also
Hispanic why he was moved from Irvington to the Paterson store
9) Wright does not identify his own ethnicity, and so it is unclear to whom he
was comparing Anderson’s ethnicity. Either way, Wright does not clearly allege
that the disparate treatment was due to his ethnicity, or any other protected
Neither has Wright alleged that he suffered retaliation for engaging in
activity protected by Title VII. Instead of retaliation based on activity protected
under Title VII, Wright’s Complaint suggests that he was passed over for
promotions in retaliation for filing a complaint about city code violations in the
Paterson Foot Locker store.
In his opposition brief, in which he had the opportunity to clarify the
nature of the alleged discrimination, Wright states, “I believe Mr. Chalfant has
been discriminating against me based on my personal history, as well as
retaliation for the workers comp. suit and me being verbal about the safety of
myself and co workers.” (P1. Opp. 8) Even if Wright had clearly made this
allegation in his Complaint, it would not state a claim for a Title VII
discrimination or retaliation claim.
Accordingly, Wright’s Title VII claim must be dismissed.
Dismissal Without Prejudice
Particularly in a pro se employment discrimination case, where a
complaint is dismissed on Rule 12(b)(6) grounds, “a District Court must permit
a curative amendment, unless an amendment would be inequitable or futile.”
Aiston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004) (emphasis added). Accord
Phillips v. Cty. of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008) (citing Qrayson v.
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (citing Shane
213 F.3d 113, 116 (3d Cir. 2000)).
This dismissal is therefore without prejudice. Within 30 days, Mr. Wright
may submit a proposed amended complaint that remedies the deficiencies of
his Title VII claim or asserts another claim or claims.
For the foregoing reasons, Defendants’ motion to dismiss the Complaint
for failure to state a claim is GRANTED, and the Complaint is DISMISSED in
its entirety, without prejudice to the filing of a proposed amended complaint
within 30 days.
An appropriate Order follows.
Dated: July 26, 2017
HON. KEVIN MCNULTY, U.S.
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