Iannucci et al v. RiteAid Corporation
Filing
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ORDER granting 10 Motion for Judgment on the Pleadings and every cause of action alleged in the Complaint is hereby DISMISSED except that Plaintiff Marge Iannucci's claims of the age discrimination alleged in Count II and Count III are not dismissed. All claims of Plaintiff Michael Iannucci are hereby DISMISSED. Signed by District Judge Martin Reidinger on 05/23/2012. (Pro se litigant served by US Mail.)(thh)
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:11cv281
MARGE IANNUCCI and
MICHAEL A. IANNUCCI,
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Plaintiffs,
vs.
RITE AID CORPORATION,
Defendant.
ORDER
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THIS MATTER is before the Court on the Defendant’s Motion for Partial
Judgment on the Pleadings. [Doc. 10].
PROCEDURAL HISTORY
The Plaintiffs, who appear pro se, initiated this action on October 24,
2011. [Doc. 1]. The Plaintiff Marge Iannucci (Iannucci or Plaintiff) alleges that
she was discriminated against by Defendant Rite Aid Corporation (Rite Aid)
on the basis of her sex and age and alleges claims for termination of
employment, unequal treatment, harassment and displacement by foreign
workers. [Id.]. Although not specified as a separate cause of action, it is
alleged that Marge’s husband, Michael Iannucci (Michael), has been injured
by the loss of consortium. [Id. at 9]. Michael has been named as a plaintiff.
[Id. at 1].
Rite Aid 1 answered and shortly thereafter moved for partial judgment
based on the pleadings. [Doc. 4; Doc. 10]. Because the Plaintiffs appear pro
se in this matter, the Court provided notice to them of the burden they face in
responding to such a motion. [Doc. 13]. They were specifically cautioned that
the failure to timely respond would result in the dismissal of certain claims with
prejudice. [Id. at 1-2]. The Plaintiffs were also advised that their Response
was to be filed by February 25, 2012. [Id. at 3].
It is clear that the Plaintiffs received this Order and understood it
because on February 22, 2012 they moved for an extension of time within
which to respond. [Doc. 14]. That motion was granted on February 23, 2012
and the Plaintiffs were advised to file response on or before March 5, 2012.2
Eight days after the revised deadline, the Plaintiffs filed an untimely response.
[Doc. 15].
While the motion remained under advisement, Rite Aid moved to compel
the Plaintiffs to respond to certain discovery requests. [Doc. 19]. It also seeks
an award of attorney’s fees as a sanction. [Id.].
1
The Plaintiffs styled the caption of the Complaint as naming “Rite Aid
Corporation, et. al.” as the Defendant(s), but they name no entities or individuals other
than Rite Aid. Therefore, the caption has been amended to so reflect.
2
The motion was granted by text order, a copy of which was printed and mailed
to the Plaintiffs.
2
FACTUAL BACKGROUND
Plaintiff Marge Iannucci alleges that she was employed as a pharmacist
at “Store #11565" in Asheville, North Carolina from August 2009 through July
20, 2010. [Doc. 1 at 2]. She does not further describe the identity of the store.
Rite Aid alleged in its Answer that Iannucci was actually employed as a
pharmacist by Eckerd Corporation (Eckerd), a subsidiary of Rite Aid, until her
store was closed in July 2010. [Doc. 4].
Iannucci also alleged in her
Complaint that the store where she worked was closed in July 2010. [Doc. 1
at 6]. It is undisputed that her husband, Michael, never worked for Rite Aid or
Eckerd. [Id. at 9].
In the Complaint, it is alleged that Marge Iannucci was told in April 2010
by John Lago (Lago), the pharmacy district manager, that her store was to be
closed by July of that year. [Doc. 1 at 6]. On June 21, 2010, Iannucci filed a
Charge of Discrimination with the Equal Employment Opportunity Commission
(EEOC). [Doc. 1-2 at 2]. In that Charge, she named as her employer “Rite
Aid 11565" and alleged that she had been discriminated against on the basis
of her sex, age and disability. [Id.]. The complete content of Charge No. 4302010-02169 is as follows:
I was hired by the above employer on 11/17/2008 as a
Pharmacist-in-Charge. On 4/29/10 I was informed by John Lago,
PDM that I would not be receiving my raise while a single female,
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25 y/o staff pharmacist, less qualified and has engaged in activity
which violates company policy will receive her raise. I am a
person with a disability and have verbally requested an
accommodation to John Lago who did nothing and just laughed.
I was not given a valid reason for not receiving my raise or why
my accommodation was not given.
I believe I have been discriminated against because of my sex,
female in violation of Title VII of the Civil Rights Act of 1964, as
amended and because of my age/50 in violation of the Age
Discrimination in Employment Act and because of my disability in
violation of the American with Disabilities Act.
[Doc. 2-1 at 2]. In the Charge there is no description or identification of
Iannucci’s alleged disability. It is significant that the only discriminatory acts
Plaintiff asserted in her EEOC charge was the failure to give her a raise and
the failure to provide the unspecified accommodation.
On July 27, 2011, the EEOC issued a Dismissal and Notice of Rights
pursuant to which Iannucci was notified of her right to institute an action. [Doc.
1-2 at 3].
In the Complaint filed in this Court, there are no allegations
concerning a disability. The causes of action alleged in the Complaint are as
follows: (1) harassment based on age and gender; (2) denial of a raise based
on age and gender; (3) unequal treatment during employment based on age
and gender; (4) termination based on age and gender; and (5) displacement
by foreign employees who work for lower wages. [Doc. 1].
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STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(c) provides that “[a]fter the pleadings
are closed – but early enough not to delay trial – a party may move for
judgment on the pleadings.” Fed.R.Civ.P. 12(c). The failure to state a claim
upon which relief may be granted can be raised by a motion for judgment on
the pleadings. Fed.R.Civ.P. 12(h)(2)(B). Such a motion is decided using the
same standard as that applied to a Rule 12(b)(6) motion to dismiss for failure
to state a claim upon which relief may be granted. Walker v. Kelly, 589 F.3d
127, 138 (4 th Cir.), cert. denied
(2010).
U.S.
, 130 S.Ct. 3318, 176 L.Ed.2d 1215
This means that the Plaintiffs must show that they have made
sufficient allegations in the Complaint to support a cause of action against the
Defendant which is recognized by law.
To survive a Rule 12[c] motion, “[f]actual allegations must be
strong enough to raise a right to relief above the speculative level”
and have “enough facts to state a claim to relief that is plausible
on its face.” [T]he court “need not accept the [plaintiff’s] legal
conclusions drawn from the facts,” nor need it “accept as true
unwarranted inferences, unreasonable conclusions, or
arguments.”
Philips v. Pitt County Memorial Hospital, 572 F.3d 176, 179-80 (4 th Cir. 2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955,
167 L.Ed.2d 929 (2007)) (other citations omitted).
The Complaint therefore must contain factual matter which, if accepted
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as true, would “state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing
Twombly, supra.).
A claim is facially plausible when a plaintiff pleads
sufficient factual content to allow “the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id.
In considering a motion for judgment on the pleadings, the Court may
take judicial notice of matters of public record. Philips, 572 F.3d at 179-80.
It may also consider documents attached to the Complaint. Id.
The Plaintiffs attached to the Complaint a document purporting to show
a determination by the Employment Security Commission of North Carolina
concerning a claim by Iannucci for unemployment benefits. [Doc. 1-2]. That
document is inadmissible in this proceeding. N.C. Gen. Stat. 96-4(x)(8). It is
likewise not relevant to this action, and therefore will not be considered with
regard to this motion.
DISCUSSION
Count I: Harassment based on age and gender.
Before a plaintiff may file a lawsuit alleging employment discrimination
in violation of Title VII or the Age Discrimination in Employment Act (ADEA),
she must first exhaust administrative remedies by filing a timely charge with
the EEOC. 42 U.S.C. §2000e-5; 42 U.S.C. §12117(a); Jones v. Calvert
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Group, Ltd., 551 F.3d 297, 300 (4 th Cir. 2009); Davis v. Va. Commw. Univ.,
180 F.3d 626, 628 n.3 (4 th Cir. 1999). “[T]he allegations contained in the
administrative charge of discrimination [before the EEOC] generally operate
to limit the scope of any subsequent judicial complaint.” Chacko v. Patuxent
Institution, 429 F.3d 505, 509 (4 th Cir. 2005) (internal quotation and citation
omitted). The United States Court of Appeals for the Fourth Circuit has
ma[d]e clear that the factual allegations in formal litigation must
correspond to those set forth in the administrative charge. For
example, the plaintiff’s claim generally will be barred if his charge
alleges discrimination on one basis – such as race – and he
introduces another basis in formal litigation – such as sex. A
claim will also typically be barred if the administrative charge
alleges one type of discrimination – such as discriminatory failure
to promote – and the claim [raised in litigation] encompasses
another type – such as discrimination in pay and benefits.
Chacko, 429 F.3d at 509.
In Count One, Iannucci alleges that a younger female employee
received a larger signing bonus that she received. [Doc. 1 at 5]. She also
alleges that district managers made derogatory remarks about her age. [Id.].
These incidents, she claims, amounted to harassment based on age and
gender.
In the Charge of Discrimination, Charge No. 430-2010-02169,
however, Iannucci did not make any claim that she had been harassed
because of her age and gender. [Doc. 1-2 at 2]. She alleged only that she did
not receive her raise and her disability was not accommodated; and, as a
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result, she “believe[d]” that she had been discriminated against. [Id.].
The investigation by the EEOC of this Charge was based on Iannucci’s
claim that she was not awarded her raise or accommodated in her disability,
in violation of the ADEA and the ADA. As a result, both the Defendant’s
response to the Charge and the EEOC’s investigation thereof were limited to
those claims of discrimination. On July 27, 2011, the EEOC provided Plaintiff
with a Dismissal and Notice of Rights related to EEOC Charge No. 430-201002169 in which she was advised that the EEOC was closing its file and she
was provided with notice of her right to bring suit. [Doc. 1-2 at 3].
As a result, any claim Iannucci may have attempted to raise in her
Complaint based on age or gender harassment is barred because she has
failed to exhaust her administrative remedies as to such claims.3 Chacko, 429
F.3d at 509; Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132-33 (4 th Cir. 2002)
(claims of complaint which exceed allegations in the charge fail). For these
reasons, Plaintiff’s claim of harassment, Count I, must be dismissed.
3
Even if the Court were to consider the Plaintiffs’ untimely response, the only
allegation therein is that a younger female employee received a raise while Iannucci did
not. This would be insufficient to give rise to a claim for discriminatory harassment.
Bagir v. Principi, 434 F.3d 733, 745-6 (4th Cir.), cert. denied 549 U.S. 1051, 127 S.Ct.
659, 166 L.Ed.2d 512 (2006) (plaintiff must show harassment based on age so severe
and pervasive as to alter the conditions of employment and create an abusive
environment).
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Count IV: Termination claim based on age and gender.
In Count IV of the Complaint, Iannucci alleges that she was terminated
and told she could not continue to work even as a “floating” pharmacist. [Doc.
1 at 6]. On the other hand, she claims, a younger female employee was
allowed to transfer to another store. [Id.]. Although not alleged with any
clarity, taking the allegations of the Complaint in the light most favorable to the
Plaintiff, it appears that Plaintiff is attempting to assert a claim that she was
terminated due to her age and gender.
For the same reasons as discussed above, however, this claim must be
dismissed. The only EEOC Charge filed by Marge did not allege that she had
been unlawfully terminated. Spencer v. Ashcroft, 147 F. App’x. 373, 375 (4 th
Cir. 2005) (claim of termination is a discrete discriminatory act requiring
administration exhaustion) (citing Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 114, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)) (other citations
omitted). And, it is undisputed that she did not amend this Charge. Id.; Knotts
v. University of North Carolina at Charlotte, 2011 WL 650493 (W.D.N.C.
2011). The Plaintiffs’ claim based on termination due to age and/or gender
must therefore be dismissed.
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Count V: Displacement by foreign workers.
In Count V, Iannucci raises the claim that she has been discriminated
against on the basis of her national origin because her job was displaced by
foreign workers who were employed at a lower hourly rate. [Doc. 1 at 7]. The
EEOC Charge, however, did not contain any mention of this even although it
contained a box designated “National Origin” which she could have checked.
Jones v. Calvert Group, Ltd., 551 F.3d 297, 299, 301 (4 th Cir. 2009); Russell
v. BSN Medical, Inc., 721 F.Supp.2d 465, 476 (W.D.N.C. 2011); Fordyce v.
Doctors Community Hospital, 2010 WL 672937 (D.Md. 2010). Having failed
to administratively exhaust this claim, it is barred from being raised in this
action. Jones, 551 F.3d at 300-301; Malhotra v.KCI Technologies, Inc., 240
F. App’x. 588 (4 th Cir. 2007).
Counts I, II and III: Gender discrimination claims.
In Count I, Iannucci alleges that she was discriminated against on the
basis of her gender because a younger female employee received more
favorable treatment than she. [Doc. 1 at 5]. In Count II, she claims that she
was denied both a raise and the right to transfer to a different store because
of an unfavorable evaluation. [Id.]. During the same time period, however, a
younger female employee who also received an unfavorable evaluation was
given a raise and allowed to transfer. [Id.]. In Count III, Iannucci alleges that
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the same female employee violated a company policy and was not disciplined.
[Id. at 6].
She on other hand, was “aggressively questioned by loss
prevention regarding the alleged theft by me of one pill.” [Id.].
In order to state a claim for gender discrimination, a plaintiff must allege
(1) membership in a protected class; (2) satisfactory job performance; (3) an
adverse employment action; and (4) different treatment from similarly situated
employees outside the protected class.
Coleman v. Maryland Court of
Appeals, 626 F.3d 187, 190 (4 th Cir.), cert. granted
U.S.
, 131 S.Ct.
3059, 180 L.Ed.2d 884 (2011). All of Plaintiff’s allegations relate to the more
favorable treatment purportedly given to another female employee. 42 U.S.C.
§2000e-2(b) (women fall within a Title VII protected class). That employee,
however, was not outside the protected class Plaintiff claims - women. “[A]s
a general rule, Title VII plaintiffs must show that they were [treated differently
from] someone outside their protected class in order to make out a prima facie
case. Miles v. Dell, Inc., 429 F.3d 480, 487 (4 th Cir. 2005); Spease v. Public
Works Com’n of City of Fayetteville, 369 F. App’x. 455, 456 (4 th Cir. 2010);
Hirapetian v. City of Charlotte, 2011 WL 2975673 (W.D.N.C. 2011). The
Plaintiff has therefore failed to state any claim based on gender discrimination.
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Counts II & III: Age discrimination based on unequal treatment.
Rite Aid concedes that a claim for discriminatory denial of a raise based
on age, as alleged in Count II, remains viable in the case.
In Count III, Iannucci alleges that she was treated differently from the
younger female employee who was not disciplined for violating company
policy. [Doc. 1 at 6]. The different treatment is that she purportedly was
“aggressively questioned by loss prevention regarding the alleged theft by me
of one pill” based on the allegation of another employee. [Id.]. Although not
clearly stated, taking the allegations in the light most favirable to the Plaintiff,
it appears that she is claiming that she was ultimately denied a raise for this
alleged violation while a younger female employee was granted a raise and
not disciplined.
In order to state a claim for age discrimination, a plaintiff must show that
she suffered an adverse employment action.
Hill v. Lockheed Logistics
Mgmt., Inc., 354 F.3d 277, 285 (4 th Cir.), cert. dismissed 543 U.S. 1132, 125
S.Ct. 1115, 160 L.Ed.2d 1090 (2005). “An adverse employment action is a
discriminatory act that adversely affects the terms, conditions, or benefits of
the plaintiff’s employment.” Holland v. Washington Homes, Inc., 487 F.3d
208, 219 (4 th Cir.), cert. denied 552 U.S. 1102, 128 S.Ct. 955, 169 L.Ed.2d
734 (2008) (internal quotation and citation omitted).
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It must have some
significant detrimental effect on employment such as decrease in pay, job title,
level of responsibility or reassignment to a position not commensurate with
one’s salary level. Id. Iannucci alleges that she was denied a raise and, at
least at this stage of the litigation, the claims based on unequal treatment due
to age discrimination survive.
The loss of consortium claim.
The Plaintiffs did not allege a separate state law claim for loss of
consortium. Instead, the claim, to the extent it is stated at all, is derivative of
the claims based on age and gender discrimination. Since all claims based
on gender discrimination are dismissed, any such loss of consortium claim is
also dismissed.
Jones v. Southcorr, L.L.C., 324 F.Supp.2d 765, 783
(M.D.N.C.), affirmed 117 F. App’x. 291 (4 th Cir. 2004) (citations omitted).
Moreover, any claim for loss of consortium is preempted by the ADEA
and Title VII. Chergosky v. Hodges, 975 F.Supp. 799 (E.D.N.C. 1997); Brown
v. Youth Services Intern. of Baltimore, Inc., 904 F.Supp. 469, 470 (D.Md.
1995) (federal courts unanimously dismiss loss of consortium claims based
on federal civil rights violations).
As a result, Michael Iannucci’s claim based on loss of consortium must
be dismissed.
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ORDER
IT IS, THEREFORE, ORDERED that the Defendant’s Motion for Partial
Judgment on the Pleadings [Doc. 10] is hereby GRANTED and every cause
of action alleged in the Complaint is hereby DISMISSED except that Plaintiff
Marge Iannucci’s claims of the age discrimination alleged in Count II and
Count III are not dismissed. All claims of Plaintiff Michael Iannucci are
hereby DISMISSED.
Signed: May 23, 2012
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