Parker v. BJs Wholesale Club, Inc.
Filing
19
MEMORANDUM & ORDER granting in part and denying in part 15 Motion to Dismiss for Failure to State a Claim; Defendant's motion to dismiss (Docket Entry 15) is GRANTED IN PART and DENIED IN PART. Specifically, Plaintiff's claims for ag e discrimination (Count II), retaliation (Count IV), and breach of contract are DISMISSED WITH PREJUDICE. Plaintiff's claims for racial discrimination under Title VII and the NYSHRL (Counts III and V) are DISMISSED WITHOUT PREJUDICE and WITH LEA VE TO REPLEAD. The balance of Defendant's motion is DENIED. Thus, Plaintiff's claim for disparate treatment (Count I) is the only claim that remains unchanged by this Order. If Plaintiff wishes to file a Second Amended Complaint he must do so within thirty (30) days of the date of this Order. If Plaintiff fails to file a Second Amended Complaint Counts III and V will be DISMISSED WITH PREJUDICE. So Ordered by Judge Joanna Seybert on 3/18/2015. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
MARK L. PARKER,
Plaintiff,
-against-
MEMORANDUM & ORDER
13-CV-6065(JS)(SIL)
BJ’S WHOLESALE CLUB, INC.,
Defendant.
---------------------------------------X
APPEARANCES
For Plaintiff:
Chauncey D. Henry, Esq.
Jade Lacey Morrison, Esq.
Henry Law Group
825 E Gate Blvd, Suite 106
Garden City, NY 11530
For Defendant:
Sean Phillip O’Connor, Esq.
Morgan Brown & Joy LLP
200 State Street
Boston, MA 02109
SEYBERT, District Judge:
On October 29, 2013, plaintiff Mark Parker (“Plaintiff”)
commenced this employment discrimination action against defendant
BJ’s Wholesale Club (“BJ’s” or “Defendant”) alleging violations of
Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
§ 2000e et seq.; the Age Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. § 621 et seq.; and Article 15 of the New York
State Human Rights Law § 296 (the “NYSHRL”).
asserts
a
Defendant.
breach
of
contract
claim
under
Plaintiff also
state
law
against
Pending before the Court is Defendant’s partial motion
to
dismiss
(Docket
Entry
15).
For
the
following
reasons,
Defendant’s motion is GRANTED IN PART AND DENIED IN PART.
BACKGROUND1
Plaintiff, a forty-eight year old African American male,
worked as a loss prevention employee at Defendant’s store, located
at 125 Green Acres Mall, Valley Stream, New York 11580.
Compl., Docket Entry ¶ 15.)
In that role, he was responsible for
“checking customer receipts,” among other “security duties.”
Compl. ¶ 17.)
(Am.
(Am.
Plaintiff was employed at the store for less than
six months before he was terminated on March 1, 2013.
(See Am.
Compl. ¶¶ 33, 61.)
I.
Plaintiff’s Racial Profiling Complaints
Plaintiff asserts that “on several [ ] occasions, [he]
complained to members of Defendant BJ’s management team regarding
the discriminatory treatment of African American customers and
employees . . . .” (Am. Compl. ¶ 24.)
Specifically, Plaintiff
complained once to a manager named “Bernard” and twice to a manager
named “Winston” about “the selective enforcement of BJ’s store
policies” against African American customers.
(Am. Compl. ¶¶ 26-
28.) Plaintiff asserts that he “observed that customers of African
American descent were detained for extended periods of time and
The following facts are taken from Plaintiff’s Amended
Complaint and are presumed to be true for the purposes of this
Memorandum and Order.
1
2
subject to greater security checks than were those similarly
situated
non-African
American
customers.”
(Am.
Compl.
¶
30)
Because of these Complaints, Plaintiff alleges that he “became a
target” by management.
II.
(Am. Compl. ¶ 32.)
The Events Leading to Plaintiff’s Termination
On March 1, 2013, Plaintiff arrived at work at 2:20 PM
and began brewing coffee in the break room.
35.)
(Am. Compl. ¶¶ 33-
Soon afterward, Plaintiff was informed by his shift manager
that Edward Eastern, BJ’s General Manager, wanted to speak with
him in his office. (Am. Compl. ¶ 36.)
Eastern informed Plaintiff that an anonymous employee
reported that Plaintiff smelled like alcohol.
(Am. Compl. ¶ 38.)
Plaintiff “steadfastly denied consuming alcohol during company
hours and averred that he was completely sober and ready to begin
his shift.”
(Am. Compl. ¶ 38.)
Eastern told Plaintiff he could
either “submit to a random drug test” or he would be fired.
Compl. ¶ 39.)
(Am.
Plaintiff claims that he asked to see BJ’s drug and
alcohol policy, but Eastern refused to provide it.
(Compl. ¶ 40.)
Plaintiff subsequently agreed to undergo a drug and alcohol test,
which was administered at John F. Kennedy Airport (“J.F.K.”). (Am.
Compl. ¶¶ 40-41.)
The Complaint is silent about the result of the
drug and alcohol test, but Plaintiff states in his EEOC charge “I
came back .06 and I was terminated.”
15-1, Ex. A.)
3
(O’Conner Aff., Docket Entry
While waiting to be taken to J.F.K. for the test,
Plaintiff asked about the location of the car they were going to
use make the trip.
Plaintiff claims Eastern stated in response,
“[y]ou are going to look like Magilla the Gorilla in that car.”
(Am. Compl. ¶ 53.)
According to Plaintiff, Eastern previously
made another derogatory remark three months earlier in the break
room.
Plaintiff “stated in a jovial manner, ‘You ain’t a cowboy
unless you have a good cup of coffee . . . .’”
(Am. Compl. ¶ 56.)
Eastern, who was present in the break room, responded “and a good
strong rope too.”
(Am. Compl. ¶ 56.)
Plaintiff alleges that
“Eastern’s characterization of the term “rope” [ ] is symbolic
with the Jim Crow era noose.’” (Am. Compl. ¶ 56.)
Plaintiff alleges that he was “singled out” to take a
drug test because of his race. (Compl. ¶ 50.)
In support,
Plaintiff alleges that two younger white employees who were known
to consume drugs and alcohol at work were not required to take
random drug tests.
(Am. Compl. ¶¶ 43-44.)
On May 28, 2013, Plaintiff filed an EEOC Charge which
states as follows:
I have been employed by Respondent since
September 5, 2012. I have been qualified for
and performed my job satisfactory [sic] at all
times.
On March 1, 2013, I was made to go take a drug
test because someone said they smelled alcohol
on me. I was the only one singled out to go
and take a drug test ever. Several other
4
employees have come to work smelling of
alcohol and some even smoke pot during work
hours and no one else has ever been made to go
for a drug test. It came back .06 and I was
terminated.
I believe I was singled out and treated
differently than others due to my race in
violation of Title VII of the Civil Rights Act
of 1964, as amended.
(O’Conner Aff. Ex. A.)
III. Denial of a Raise
Plaintiff further claims that he was fired, in part,
because of his age.
deny
Plaintiff
a
According to the Complaint, BJ’s sought to
raise,
which
BJ’s
customarily
pays
to
its
employees after six months of satisfactory employment, because
Plaintiff was already “one of the highest paid and most senior
employees assigned to BJ’s loss prevention unit.”
¶¶ 83, 58-60.)
(Am. Compl.
Plaintiff also contends that he was denied a raise
customarily paid to personnel after ninety days of employment.
(Am. Compl. ¶ 60.)
Plaintiff claims in his Amended Complaint that he was
discriminated against based upon his race and age in violation of
Title VII, the ADEA, and the NYSHRL.
(Am. Compl. ¶ 1.)
specifically
causes
Defendant,
contract.
brings
ranging
six
from
separate
racial
(Am. Compl. ¶¶ 12-19.)
number of Plaintiff’s claims.
of
discrimination
Plaintiff
action
to
against
breach
of
Defendant moves to dismiss a
In support, it makes the following
5
arguments:
(1)
Plaintiff’s
claims
for
retaliation,
racial
discrimination, and compensation discrimination fail as a matter
of law because Plaintiff failed to exhaust his administrative
remedies; (2) Plaintiff’s hostile work environment claims should
also be dismissed because they were not properly pleaded; and
(3) Plaintiff’s breach of contract claim fails as a matter of law
because Plaintiff was an employee at will. (Def.’s Br., Docket
Entry 15-2, at 6-20.)
DISCUSSION
The Court will first address the legal standard before
turning to Defendant’s motion.
I.
Standard of Review
In deciding Rule 12(b)(6) motions to dismiss, the Court
applies a “plausibility standard,” which is guided by “[t]wo
working principles.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.
Ct. 1937, 173 L. Ed. 2d 868 (2009); (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007);
accord Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009).
First,
although the Court must accept all allegations as true, this
“tenet”
is
“inapplicable
to
legal
conclusions;”
thus,
“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
556 U.S. at 678; accord Harris, 572 F.3d at 72.
Iqbal,
Second, only
complaints that state a “plausible claim for relief” can survive
6
a Rule 12(b)(6) motion to dismiss.
Iqbal, 556 U.S. at 679.
Determining whether a complaint does so is “a context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense.”
Id.; accord Harris, 572 F.3d at 72.
In deciding a motion to dismiss, the Court is confined
to “the allegations contained within the four corners of [the]
complaint.”
Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67,
71 (2d Cir. 1998).
This has been interpreted broadly to include
any document attached to the Complaint, any statements or documents
incorporated in the Complaint by reference, any document on which
the Complaint heavily relies, and anything of which judicial notice
may be taken.
See Chambers v. Time Warner, Inc., 282 F.3d 147,
152-53 (2d Cir. 2002) (citations omitted); Kramer v. Time Warner
Inc., 937 F.2d 767, 773 (2d Cir. 1991).
II.
Failure to Exhaust Administrative Remedies
Defendant
disparate
treatment
first
(Count
argues
I),
that
age
Plaintiff’s
claims
for
discrimination
(Count
II)
racial discrimination (Count III), and retaliation (Count IV)
should
be
dismissed
because
Plaintiff
failed
to
exhaust
his
administrative remedies with respect to these claims. (Def.’s Br.
at 6-12.)
Plaintiff argues in opposition that these Counts should
proceed because they are “reasonably related” to the allegations
in his EEOC charge.
(Pl.’s Opp. Br., Docket Entry 17, at 17-18.)
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“‘Exhaustion of administrative remedies through the EEOC
is an essential element of the Title VII and ADEA statutory schemes
and, as such, a precondition to bringing such claims in federal
court. ’”
Tanvir v. .N.Y.C Health & Hosps. Corp., 480 F. App’x
620, 621 (2d Cir. 2012) (quoting Legnani v. Alitalia Linee Aeree
Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001)). Nevertheless,
“claims that were not asserted before the EEOC may be pursued in
a subsequent federal court action if they are ‘reasonably related’
to those that were filed with the agency.”
Shah v. N.Y. City Dep’t
of Civ. Serv., 168 F.3d 610, 614 (2d Cir. 1999).
The Second
Circuit has explained that:
A claim is considered reasonably related if
the conduct complained of would fall within
the scope of the EEOC investigation which can
reasonably be expected to grow out of the
charge that was made. In this inquiry, the
focus should be on the factual allegations
made in the [EEOC] charge itself, describing
the discriminatory conduct about which a
plaintiff is grieving. The central question
is whether the complaint filed with the EEOC
gave
that
agency
adequate
notice
to
investigate discrimination on both bases.
Williams v. N.Y. City Hous. Auth., 458 F.3d 67, 70 (2d Cir. 2006)
(internal citations, alteration, and quotation marks omitted).
Here, Plaintiff’s EEOC charge only contains the allegation that he
was “singled out” to take a test for drugs and alcohol because of
his race.
(Am. Compl. ¶ 50.)
The charge contains no facts related
to: (1) Plaintiff’s claim that BJ’s managers fired him so that
8
they didn’t have to pay him a raise, or (2) that BJ’s retaliated
against Plaintiff for complaining about the treatment of African
American customers.
these claims.
The EEOC was not put on notice of either of
Hoffman v. Williamsville Sch. Dist., 443 F. App’x
647, 650 (2d Cir. 2011) (holding that a retaliation claim was “not
reasonably related to the allegations in the Charge because nothing
in the Charge provided the EEOC adequate notice to investigate
possible retaliation”); O’Hara v. Mem’l Sloan-Kettering Cancer
Ctr., 27 F. App’x 69, 70-71 (2d Cir. 2001) (“The scope of an EEOC
investigation
cannot
reasonably
be
expected
to
encompass
retaliation when [plaintiff] failed to put the agency on notice
that she had engaged in the type of protected activity that is the
predicate to a retaliation claim.”).
which
states
that
Plaintiff
“was
However, the EEOC charge,
singled
out
and
treated
differently [ ]due to [his] race,” sufficiently put the EEOC on
notice
of
Plaintiff’s
discrimination claims.
disparate
treatment
and
racial
(O’Conner Aff. Ex. A.)
Plaintiff claims for age discrimination (Count II) and
retaliation (Count IV) are therefore DISMISSED WITH PREJUDICE.
III. Breach of Contract
Defendant argues that Plaintiff’s breach of contract
claim fails as a matter of law because he was an employee at will.
(Def.’s Br. at 18.) Plaintiff does not deny that he was an employee
at will without a contract, but argues that BJ’s breached an
9
implied contract when it fired him for discriminatory reasons.
(See Pl.’s Opp. Br. at 16.)
Under New York law, “[a]bsent an agreement establishing
a fixed duration, an employment relationship is presumed to be a
hiring at will, terminable at any time by either party.” De Petris
v. Union Settlement Assoc., Inc., 86 N.Y.2d 406, 410, 657 N.E.2d
269, 271, 633 N.Y.S.2d 274, 276, (1995); Chimarev v. TD Waterhouse
Investor Servs., Inc., 280 F. Supp. 2d 208, 216 (S.D.N.Y. 2003)
(finding that
“as an at-will employee, who can be terminated at
any time and for any reason, [Plaintiff could] not maintain an
action for breach of contract where no such contract existed”)
aff’d, 99 F. App’x 259 (2d Cir. 2004).
Here,
Plaintiff’s
allegation
that
BJ’s
breached
an
implied contract by terminating him for discriminatory reasons
fails.
There is no dispute that Plaintiff was an employee without
an employment contract.
“Although it is unlawful for an employer
to terminate an employee for discriminatory reasons, the proper
remedy for a person aggrieved in this manner is not a cause of
action for breach of contract.”
Benson v. N. Shore-Long Island
Jewish Health Sys., 482 F. Supp. 2d 320, 331 (E.D.N.Y. 2007).
There is no need for Plaintiff to rehash his discrimination claims
through an additional cause of action for breach of contract.
Plaintiff’s
breach
of
contract
DISMISSED WITH PREJUDICE.
10
cause
of
action
is
therefore
IV.
Boilerplate Claims
The parties dispute whether Plaintiff claims alleging
“racial discrimination” under Title VII and the NYSHRL (Counts III
and V) are in fact claims for a hostile work environment.
(See
Def.’s Reply Br., Docket Entry 18, at 2-3; Pl.’s Opp. Br. at 1.)
The confusion exists because Counts III and V were poorly drafted
using boilerplate language, which does not provide notice of
Plaintiff’s specific allegations.
Therefore, Counts III and V of
the Complaint are DISMISSED WITHOUT PREJUDICE and with LEAVE TO
REPLEAD.
[BOTTOM HALF OF PAGE INTENTIONALLY LEFT BLANK]
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CONCLUSION
Defendant’s motion to dismiss (Docket Entry 15) is
GRANTED IN PART and DENIED IN PART.
Specifically, Plaintiff’s
claims for age discrimination (Count II), retaliation (Count IV),
and breach of contract are DISMISSED WITH PREJUDICE.
Plaintiff’s
claims for racial discrimination under Title VII and the NYSHRL
(Counts III and V) are DISMISSED WITHOUT PREJUDICE and WITH LEAVE
TO REPLEAD.
The balance of Defendant’s motion is DENIED.
Thus,
Plaintiff’s claim for disparate treatment (Count I) is the only
claim that remains unchanged by this Order. If Plaintiff wishes to
file a Second Amended Complaint he must do so within thirty (30)
days of the date of this Order.
If Plaintiff fails to file a
Second Amended Complaint Counts III and V will be DISMISSED WITH
PREJUDICE.
SO ORDERED.
Dated:
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
March
18 , 2015
Central Islip, New York
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