Gray v. Home Depot
Filing
19
MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 01/14/2015. (jsmi, )
IN THE UNITED
STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
EUGENE GRAY,
Plaintiff,
V.
Civil Action No.
3:14cv488
HOME DEPOT,
Defendant.
MEMORANDUM OPINION
This matter
is
before
the Court
on
RULE
12(b) (6)
MOTION
TO
DISMISS AMENDED COMPLAINT (Docket No. 13) filed by the defendant Home
Depot U.S.A.,
Inc.
(^^Home Depot");
FILE A SECOND AMENDED COMPLAINT
PLAINTIF'S MOTION FOR LEAVE TO
(Docket No.
RELIEF FROM LOCAL CIVIL RULE 7(E)
16); and the MOTION FOR
filed by Home Depot.
(Docket No.
17) .
These motions present the following issues:
1.
Whether Plaintiff's First Amended Complaint^ pleads
facts that are sufficient to state a claim to relief.
2.
If the First Amended Complaint does not plead facts
sufficient to state a claim for relief, whether the
Court should grant Plaintiff's Motion to File a
Second Amended Complaint.
3.
Whether the Court should grant the MOTION FOR RELIEF
FROM LOCAL CIVIL RULE 7(E) filed by Home Depot and
set a
hearing on Home Depot's Motion to Dismiss.
^ Plaintiff's Amended Complaint (Docket No. 11) is referred to as the
First Amended Complaint to distinguish it from the proposed Second
Amended Complaint filed as an attachment to Plaintiff's Motion for
Leave to File Second Amended Complaint
(Docket No.
16).
PROCEDURAL BACKGROUND
Eugene Gray originally filed his Complaint in the Circuit Court
for the City of Richmond.
(Docket No. 1-1, Compl., Attach 1.)
Depot timely removed the case to this Court.
Home
(Docket No. 1, Notice
of Removal.)
Pursuant to Fed. R. Civ. P. 12(b) (6), Home Depot filed a motion
to dismiss the Complaint
(Docket No. 3).
In response. Gray filed
a Motion for Leave to File an Amended Complaint as well as a Response
to Defendant's 12(b)(6) Motion to Dismiss.
August 19,
2014,
(Docket Nos. 5, 6.)
On
the Court entered two separate Orders granting
Gray's Motion to Amend and denying Home Depot's Motion to Dismiss
"without prejudice to the re-filing of a Motion to Dismiss the Amended
Complaint." (Docket Nos. 10, 12.)
In accordance with this Court's
Order, Gray timely filed the First Amended Complaint (Docket No. 11. )
Two weeks later. Home Depot filed the pending motion to dismiss
the First Amended Complaint (Docket No. 13.)
In response. Gray filed
the Motion for Leave to File a Second Amended Complaint instead of
a brief in opposition to the motion to dismiss the First Amended
Complaint.
(Docket No. 16.)
FROM LOCAL CIVIL RULE 7(E)
Home Depot filed the MOTION FOR RELIEF
(Docket No.
17).
FACTUAL BACKGROUND
Gray's claims arise out of an incident that occurred on November
6,
2013 at a Home Depot retail location.
(See Docket No. 11, Am.
Compl., at f 6.).
attempted to
According to the First Amended Complaint,^ Gray
return ten cans
of
unused spray paint that
purchased from Home Depot on or around October 27, 2012.
7-8.).
Gray
says
that
he
witnessed
a
''younger
he had
(Id. at SIH
white
male''
successfully return several cans of spray paint without a receipt.
(Id.
at SISI 9-10.)
Then,
cans without a receipt.
Gray attempted to return his spray paint
The same Home Depot employee who processed
the white male's return^ refused to allow Gray to return his spray
paint cans.
(Id. at fSl 11,13) .
Gray then asked the employee if he
could receive store credit or exchange the cans, and the Home Depot
employee
denied
his
requests.
(Id.
at
14-15).
Gray
was
''frustrated'' by the situation and told the employee he "didn't want
to
argue"
because
an
argument
would
aggravate
pressure and [kjidney problems." (Id. at SI 13) .
to a manager,
f
his
"high
blood
Gray asked to speak
but a manager never came to speak with him.
(Id.
at
16.)
Notwithstanding Gray's alleged statement that he didn't "want
to argue about his right to return merchandise," the First Amended
^ The facts outlined in this section summarize those presented by Gray
in the First Amended Complaint and those factual allegations are
accepted as true for purposes of this motion.
The facts presented
in the proposed Second Amended Complaint are slightly different than
those contained in the First Amended Complaint.
The facts presented
in the proposed Second Amended Complaint are outlined in the section
of this Memorandum Opinion addressing whether the Court should grant
the motion to
amend.
^ Gray asserts that this younger white male was issued store credit.
(Am.
Compl.
SI 10) .
3
Complaint asserts that a ''hostile argument" occurred.
13-17).
Gray says that he was
''in a
(Id. at
state of shock" after the
argument and asserts that he "has suffered, continues to suffer, and
will continue to suffer" from various ailments including: "emotional
distress
.
.
.
insomnia
.
.
.
high blood pressure affecting and
complicating his end stage renal dialysis treatment and destroying
his kidney function . . . stomach pain . . . headaches . . . physical
pain, and back muscle spasms requiring physical therapy . .
pain medication."
(Id.
at SISI 17,
.
[and]
37-38).
Generally, Gray asserts in his First Amended Complaint that this
incident involved a violation of Home Depot's return policy and was
motivated by racial bias.
damages
for
various
He seeks injunctive relief, compensatory
physical
damages,
punitive
The First Amended Complaint contains six counts.^
Count I
damages, and attorney fees.
and
emotional
(Id. at 51 64-66.)
alleges that Home Depot violated the Virginia Human Rights Act,
Virginia Code Ann. §§ 2.2-3900 et seq.
(Id. at SISI 20-31.)
Count II
seeks to recover for the "intentional and negligent infliction of
emotional distress." (Id. at
32-38.)
Count III alleges that Home
Depot violated Title VII's provisions related to contracts.
at ff 39-46.)
Count IV seeks to recover for Home Depot's alleged
negligence in hiring and training.
The
proposed
(Id.
Second
Amended
(Id.
at iSI 47-50.)
Complaint
interference with contract claim and adds
of the Americans with Disabilities Act.
deletes
a
the
Count V
tortious
claim under Title
III
alleges that Home Depot, an alleged place of public accommodation,
violated 42 U.S.C.
§
2000.
(Id.
at fSl
tortious interference with contract.
51-56).
(Id.
STANDARD FOR DISMISSAL XJHIDER FED.
A
motion
challenges
to
the
dismiss
legal
filed
sufficiency
Alternative Resources Corp.,
motion
to
dismiss
under
pursuant
of
Rule
CIV.
Fed.
R.
12(b) (6)
Civ.
P.
complaint.
458 F.3d 332,
to
at iSI 57-63).
R.
a
Count VI alleges
338
12(b) (6)
12(b) (6)
Jordan
(4th Cir. 2006).
must
be
read
v.
A
in
conjunction with Fed R. Civ. P. 8(a) (2), which requires "a short and
plain statement of the claim showing that the pleader is entitled
to relief."
Earl v. Norfolk State Univ., 2014 U.S. Dist. LEXIS 88652
(E.D. Va June 26, 2014) .
Together, these rules require a plaintiff
to allege facts that are sufficient to ''state a claim to relief that
is plausible on its face."
570
(2007) .
Bell Atl. Corp. v. Twombly, 550 U.S. 544,
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."
Ashcroft V.
In
Iqbal,
556 U.S.
662,
678
(2009).
considering a Rule 12(b)(6) motion, the court "must accept
as true all of the factual allegations contained in the Complaint
and
draw
all
reasonable
inferences
in
favor
of
the
Kensington Volunteer Fire Dep^t v. Montgomery Cnty.,
467
(4th Cir. 2012)
plaintiff."
684 F.3d 462,
(internal quotation marks omitted).
While the
well-pled factual allegations of a Complaint must be accepted as
true,
the Court need not
inferences,
unreasonable
Imaginary Images,
Va. Aug 8,
P' ship,
2012)(citing E.
evidence
legal
conclusions,
Inc., 2012 U.S.
213 F.3d 175,
extrinsic
accept
180
should
or
''unwarranted
arguments."
Jones
Dist. LEXIS 111682, *11-12
Shore Mkts.,
{4th Cir.
not
conclusions,
be
Inc. v.
2000)).
considered.
(E.D.
T.D. Assocs.
As a
v.
Ltd.
general rule,
However,
it
is
appropriate for the court to consider the documents attached to, or
referenced in,
record.
the complaint and any relevant matters of public
Krane v. Capital One Servs., 314 F. Supp. 2d. 589, 596 (E.D.
Va. 2004).
The court may also consider a document attached to the
motion to dismiss if it is ''integral to and explicitly relied on in
the complaint and the plaintiffs do not challenge its authenticity."
Am. Chiropractic v. Trigon Healthcare, 367 F.3d 212, 234
(4th Cir.
2004) .
The fact that this case involves a pro se plaintiff does not
significantly alter the analysis because,
"[w]hile a court must
typically construe the pleadings of a pro se plaintiff liberally,
a court considering a motion to dismiss must still evaluate the pro
se plaintiff's pleadings according to the standards developed under
Rule 12.
111682,
Jones v.
*14
omitted).
(E.D.
Imaginary Images,
Va.
Aug 8,
2012)
Inc.,
2012 U.S.
(Spencer)
Dist.
LEXIS
(internal citations
Though pro se plaintiffs are properly accorded some
leniency, the court need not and should not "conjure up facts not
plead to support conclusory allegations."
U.S.
Dist. LEXIS 101668
{E.D. Va. Aug.
Easter v, Virqiniay 2006
29,
2006).
DISCUSSION
1.
Whether Plaintiff's First Amended Complaint Pleads Facts That
Are Sufficient To State A
A.
Claim For Relief
Virginia Human Rights Act
Count I of the First Amended Complaint alleges that Home Depot
violated the Virginia Human Rights Act.
at 5-7).
(Docket No. 11, Am. Compl.,
That statute reflects the policy of the Commonwealth of
Virginia to ''safeguard individuals. . . from unlawful discrimination
.
.
.
in places of public accommodation [, ]
transactions[,]
Nonetheless,
[and]
Home
in employment."
...
in real estate
Va. Code. Ann. § 2.2-3900.
Depot correctly states that ''the Act does not
create a private cause of action to enforce alleged violations except
in narrowly defined circumstances.
See Id. § 2.2-3903(A) ("Nothing
in this chapter... creates, nor shall it be construed to create, an
independent or private cause of action to enforce its provisions,
except as specifically provided in subsections B and C.") .
The Act
creates a cause of action for employees who have been subject to
wrongful discrimination when the employer has more than five and
fewer than fifteen employees.
Id. § 2 . 2-3903 (B) , (C) .
Importantly,
subsection D prohibits a cause of action based on the public policies
reflected in the Act unless the conditions of § 2.2-2639 (B) and (C)
have been met.
Va.
362,
372
Id. § 2.2-3903 (D); see also Doss v. Jamco, Inc., 254
(1997) .
The court stressed that ''Virginia courts have consistently held
that a plaintiff does not have a cause of action under the VHRA unless
the conditions of § 2.2-2639 (B) and (C) have been met."
Blackenship
V. City of Portsmouth, 372 F. Supp. 2d 496, 501 (E.D. Va. 2005); see
also Easter, 2006 U.S. Dist. LEXIS 101668 at n. 6 ("The Virginia Human
Rights
Act
does
not
create
a
general
cause
of
action
for
discrimination, and therefore will not be considered by the Court.") .
Here, the special conditions of 2.2-2639(3) and (C) are not met
because,
as Home Depot contends,
''Plaintiff does not
(and cannot)
allege that he had an employment relationship of any sort with Home
Depot."
Division
Tellingly,
of
Human
the Virginia Office of the Attorney General,
Rights
previously
informed
Gray
that
"the
issues... described against Home Depot do not appear to articulate
a violation under the Virginia Human Rights Act."
Compl, Attach.
1.)
Accordingly, Count I
failure
to
B.
state
a
"Intentional
II
of
and
(Gray's VHRA claim) will be dismissed for
claim.
Intentional
Count
(Docket No. 1-1,
I n f l i c t i o n Of Emotional D i s t r e s s
the
First
Negligent
Amended
Infliction
(Docket No. 11, Am. Compl., at 7-9.)
Complaint
of
is
Emotional
captioned
Distress."
However, the body of the First
Amended Compliant does not even conclusorily allege that Home Depot
acted negligently.
Thus, the Court will consider that Count II of
Gray's First Amended Complaint posits a putative claim only for
intentional i n f l i c t i o n of emotional distress.
The elements of such a claim requires Gray to allege and prove
that:
(1) the wrongdoer's conduct was intentional or reckless;
the conduct was outrageous or intolerable;
connection
between
(4)
the
the
wrongdoer's
distress;
and
emotional
Kreutzer,
271 Va. 188, 203
(3)
conduct
distress
was
there was a causal
and
the
emotional
severe."
Harris
(2006); accord Mason v. Wyeth,
Fed. Appx. 353, 364 (4th Cir. 2006) .
(2)
v.
Inc.,183
Home Depot argues that the First
Amended Complaint fails to allege both the type of action and the
type of injury required to maintain this claim.
Mem.
in Supp.,
See (Docket No. 14,
at 9-9-13).
First, Home Depot claims that Gray ''does not plead the type of
outrageous conduct required for element two of the tort."
9.
Id. at
Gray makes the conclusory assertion that ''Defendant's actions
were carried out with conduct that was outrageous." (Docket No. 11,
Am. Compl., SI 33) .
Yet, conclusions need not be accepted, and a mere
recitation of the elements of a claim is not enough to survive a Rule
12(b) (6) motion to dismiss.
See Iqbal, 556 U.S. at 678.
Here, Gray
makes no allegation of any specific communication, statement or use
of particular language
instead asserts
(Docket No.
[used by the
Home
Depot
employee]."
He
that an "outrageous hostile argument" occurred,
11, Am. Compl.,
at SI 11), but he provides no facts or
contextual
information
supporting
outrageousness.
Thus,
Gray's
plausibly
that
''the
assert
the
allegation
of
First Amended Complaint does
not
conduct
has
vague
been
so
outrageous
in
character, and so extreme in degree, as to go beyond all possible
bounds of decency,
and to be regarded as atrocious,
intolerable in a civilized community"
Second,
Home
Depot
asserts
that
Russo,
Gray
241 Va.
has
not
and utterly
at 24.
pled
facts
sufficient to plausibly show that he can meet element three of this
claim.
Namely, Home Depot argues that Gray does not show, except
in a conclusory form,
that he suffered ''emotional injury so severe
that no reasonable person could be expected to endure it."
No. 14, Mem. in Supp., at 10-11)
(Docket
(citing King v Chesapeake,
Supp. 2d 871, 873 (E.D. Va. 2007)).^
478 F.
In particular. Gray alleges that
he suffered "severe emotional distress over the incident," but that
conclusory statement is not accepted at face value.
Am.
Compl.
at f
(Docket No. 11,
38).
Gray has alleged a whole host of injuries that he claims to be
the result of the November 6, 2013 incident at Home Depot.
These
injuries range from "embarrassment" to "back muscle spasms,
.
.
.
^ Home Depot admits that the "issue is closer on the intentional
infliction
distress
claim"
than
it
would
be
if
this
Court
were
considering Gray's negligent infliction of emotional distress claim
because a claim for negligent infliction of emotional distress
"requires
a
physical
manifestation
of
injury
immediately
contemporaneously with the incident."
(Docket No. 14, Def.'s Mem.
in Supp, at 12 (citing Michael v Sentara Health Sys., 939 F. Supp.
1220,
1234
(E.D.
Va.
1996)) .
10
extreme high blood pressure, . . . and depression." (Id. at H
37-38) .
Gray indicates that he has since received both ''physical therapy
.
.
.
[and]
psychiatric
treatment"
to
treat
the
physical
emotional injuries that he attributes to Home Depot's conduct.
at SI 38) .
and
(Id.
However, as Home Depot argues, the articulation of those
injuries amount only to an assertion of run-of-the mill physical
ailments and stress,
which,
under Virginia law,
are not enough to
support a claim of intentional inflection of emotional distress.
(Docket No. 14, Def.'s Mem. in Supp., at 12 (citing Russo v. White,
241 Va.
23,
28
(1991)) .
For the foregoing reasons. Count II will be dismissed.
C.
T i t l e VII
Provisions Related To Contracts
Count III of the First Amended Complaint purports to allege that
Home Depot violated 42 U.S.C. § 1981 and 42 U.S.C. § 1982.®
In relevant part, 42 U.S.C. § 1981 states ''all persons... shall
have the same right . . . to make and enforce contracts .
en j oyed by white citizens . "
.
. as is
Section 1982 states "all citizens .
.
.
shall have the same right . . . as is enjoyed by white citizens .
.
.
to inherit, purchase, lease, sell, hold, and convey real and personal
property."
Id.
§ 1982.
® The heading to Count III in Gray's First Amended Complaint includes
a reference to 42 U.S.C. § 2000, however that allegation is addressed
separately by Count V.
11
Though the First Amended Complaint makes reference to 42 U.S.C.
§ 1982, Mr. Gray does not allege any facts suggesting that he was
denied
the
right
to
''inherit,
purchase,
lease,
sell,
hold,
or
convey... property.Rather, his allegations seem to be focused on
the premise that Home Depot interfered with his ''right to . . . enforce
[a]
contract[]"
and denied him the
"equal
enjoyment
...
of a
contractual relationship.''
To sustain a § 1981 action, a plaintiff must show three things:
(1) membership in a protected class;
the part the defendant;
and
(3)
(2)
discriminatory intent on
interference with the rights
benefits associated with making and enforcing contracts.
or
Sparrow
V. Bank of Am., N.A., 2014 U.S. Dist. LEXIS 123011 (D. Md. Sept. 4,
2014)
(citing Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 349
(4th Cir.
2013)) .
First, the First Amended Complaint does not clearly allege facts
showing that Gray is a member of a protected class.
He repeatedly
refers to the white men involved in this incident (the Home Depot
employee and the other customer) as members of the "non protected
class," but does not indicate his own race or allege his membership
^ Gray's Second Amended Complaint seems to realize this shortcoming.
In the Second Amended Complaint, Gray alleges additional facts
suggesting that, in addition to being denied the opportunity to
return previously purchased spray cans, he was also not permitted
to purchase additional new spray cans.
12
in a protected class.®
Second, Gray has not alleged any facts
indicating that Home Depot intentionally discriminated against him
on the basis of his race.
contains
Although the First Amended Complaint
conclusory allegations
of ''racial animus," nowhere
are
there facts sufficient to plausibly support the allegation that Gray
was intentionally treated differently from the white customer ahead
of him in line because of his race.
Failure to plead such facts is
sufficient on its own to find that Gray's claim in Count III is
implausible and fails to meet the pleading standard.
Home Depot's
most extensive argument about the § 1981 claim is addressed to the
third element
(the ''interference" element) .
At the core of Gray's contract claim is an assertion that the
employee's refusal to process his return violated the Home Depot
return policy posted in the store.
In the First Amended Complaint,
Gray asserts the "Home Depot Return Policy Sign Posted in the store
next
to
the
customer
service
return desk"
read:
You may return most new, unopened items sold by
Home Depot within 90 days of purchase for a full
refund, unless otherwise noted below.
Returns
made without a valid sales receipt or after 90
days of purchase will be exchanged or refunded
to a Home Depot store credit or a Home Depot
Commercial
Account
for
the
lowest
advertised
price.
(Docket No.
11, Am.
Compl. ,
at SI 17.)
(emphasis added).
® The Court will presume, for purposes of this motion, that Gray is
a member of a protected class.
13
In the First Amended Complaint, Gray asserts that he took a photo
of this sign.
(Id., at SI 19.)
The Court ordered Mr. Gray to file
a copy of the photo as an exhibit to his Amended Complaint.
No. 10, Order.)
directive.
(Docket
The First Amended Complaint does not satisfy that
However,
Exhibit 4 of Gray's proposed Second Amended
Complaint is a photocopy of a return policy containing the above
quoted language.
blurry,
(Docket No.
16-5.)
The photocopy is somewhat
but i t appears as though the language is the same as the
language quoted by Gray in his First Amended Complaint.
Home Depot asserts that Gray inaccurately quotes Home Depot's
Return Policy in his First Amended Complaint.
in Supp., at 14.)
(Docket No. 14, Mem.
Home Depot asserts that the return policy reads:
You may return most new, unopened items sold by
Home Depot within 90 days of purchase for a full
refund, unless otherwise noted below. Returns
made without a valid sales receipt or after 90
days of purchase may be exchanged or refunded
to a Home Depot store credit or a Home Depot
Commercial
Account
for
the
lowest
advertised
price.
(Id., at 14-15)
(emphasis added).
Exhibit A to Home Depot's initial
Memorandum in Support of Motion to Dismiss is a color photograph of
a sign displaying Home Depot's Return Policy.
(Docket No. 4-1.)
The
language that appears on this photograph is identical to the language
quoted by Home Depot in its Memorandum in Support of its current
Motion to
Dismiss.
14
The only apparent difference between Gray's Exhibit 4 and Home
Depot's Exhibit A is that Gray's Exhibit 4 shows the language under
the first bullet of the Return Policy to be "Returns .
exchanged or refunded.
. . will be
. . . " and Home Depot's Exhibit A shows the
language under the first bullet to be ''Returns . . . may be exchanged
or
refunded
.
.
Otherwise,
the
two
images
do
not
contain
contradictory language.
This inconsistency is puzzling.
Home Depot's Exhibit B to its
Memorandum in Support of its Motion to Dismiss the original Complaint
states that Home Depot's Return policy has not changed since November
6, 2013
his
(the date of the incident and the date Gray states he took
photograph
Additionally,
of
the
return
policy
sign).
(Docket
No.
4-2.)
Gray includes a copy of Defendant's Exhibit A (the
photograph of the return policy with the ''may be" language) as an
attachment to his own proposed Second Amended Complaint without
acknowledging the obvious inconsistency.
Depot's most recent filing,
(Docket No.
16-7).
Home
its Motion for Relief from Local Civil
Rule 7(E) also fails to address this apparent inconsistency.
As Home Depot points out, the correct language of the Return
Policy is relevant to whether Home
Depot "interfere[d]
with the
rights or benefits associated with making and enforcing contracts."
Sparrow, 2014 U.S. Dist. LEXIS 123011.
Home Depot argues that, "even
if Home Depot's return policy were a part of the sales contract,"
Gray does not have a valid claim because the language of the Return
15
Policy is permissive and ''Home Depot is under no legally enforceable
obligation to accept returns without a receipt."
(Docket No.
14,
Def.' s Mem. in Supp, at 16. ) In the end, i t is not necessary to address
this theory because, as explained above. Gray has not alleged facts
to satisfy the discriminatory intent element of his § 1981 claim.
That alone necessitates the conclusion that Count I I I does not s t r a t e
a plausible claim to relief under 42 U.S.C. § 1981.
thus
Count III will
be dismissed.
D.
Negligence In Hiring And Training
Count VI alleges that Home Depot was ''negligent in hiring and
training" a "white male know[n] for hatred of black people in an area
known for past/present hatred of black people" and this negligence
was a "direct and proximate cause" of Gray's injuries.
As
Home
Depot
correctly notes,
"an
employer
is
liable
for
negligent hiring where the employer 'fails to exercise reasonable
care
in
placing
propensities
that
an
individual
should
have
with
been
known
propensities,
discovered
by
or
reasonable
investigation, in an employment position in which...it should have
been foreseeable that the hired individual posed a threat of injury
toothers."
(Docket No. 14, D'sMem. in Supp., at 16) (citing Morgan
V. Wal-Mart Stores East, LP, 2010 U.S. Dist. LEXIS 116400, *9 (E.D.
Va.
Nov.
1,
2010) ) .
16
Home
Depot argues that Gray's negligent hiring claim fails
because Gray does not allege a ''serious physical injury" or that the
employee presented a ''threat of injury."
Id.
And,
i t is correct
that the First Amended Complaint does not plead that the employee
posed a threat of injury to others.
More importantly though is that
Gray does not allege facts that plausibly posit that Home Depot knew
or should have known that the Home Depot employee who allegedly harmed
him posed a threat of injury.
Instead, Gray's theory of foreseeability appears to rest on the
premise that "Defendant['s] place of business is located in an area
known for past/present racial hatred of black people."
11, Am. Compl., at SI 48) .
{Docket No.
That contention, even if accepted as true,
merely addresses where the store is located, not what the company
knew, or should have known, about the employee.
A broad allegation
that Home Depot acts negligently whenever it hires white males to
work in a store "located in an area known for past/present racial
hatred of black people" is,
of itself,
quite nonsensical.
More
importantly, it is insufficient under the law to support Count IV.
Gray's First Amended Complaint also states that Home Depot
failed to "train its employees" and failed to provide "sensitive EEO
training."
(Docket No. 11, Am. Compl., at 51 49). However, as Home
Depot points out, negligent training is not recognized as a tort in
Virginia.
See Morgan,
2010 U.S. Dist. LEXIS 116400 at *4
("[T]his
Court is not aware of any case from the Supreme Court of Virginia
17
or
lower
courts
that
recognizes
the
distinct
tort
of negligent
training."). Thus, this theory is legally insufficient predicate for
Count
IV.
E.
Violation Of 42 U.S.C.
§
2000
Count V of the First Amended Complaint alleges that Gray was
denied the '^full and equal enjoyment of goods, services, facilities,
privileges, advantages, and accommodations" of a ''place of public
accommodation" on the basis of ''race,
national origin,
sex,
disability" in violation of Title II of the Civil Rights Act
Docket No.
11, Am.
Compl.,
at f
and
(See
56).
The statute provides a "comprehensive list of establishments"
that qualify as places of public accommodation,'
namely:
i.
Hotels and other businesses providing
transient guests;'
ii.
Restaurants
and
other
facilities
^principally
engaged in selling food for consumption on the
premises;'
iii.
MP]lace[s]
iv.
Establishments that are within or that purport to be
a
^lodging to
of exhibition or entertainment';
and
covered establishment."
Zhang V. Ross Store, Inc., 2011 U.S. Dist. LEXIS 155505, *9-10 (E.D.
Va. May 17, 2011); s ^ also 42 U.S.C. § 2000a.
Gray alleges that Home Depot qualifies as a place of public
accommodation
because
items,
and soda[]
SI 53) .
water,
it
offers
"other
beverages."
services
{Docket No.
as
sales
11, Am.
of
food
Compl.,
Home Depot responds that Home Depot is a retail store and
18
is thus, not a place of public acconmodation.
Mem.
in Supp.,
(holding that
at 18
a
(citing Zhang,
clothing retail
2011 U.S.
store
accommodation under Title II) ) ) .
{Docket No. 14, Def's
is
Dist.
not
a
LEXIS 155505
place of public
Home Depot asserts that Gray fails
to offer any authority for the proposition that selling some food
or
beverage
items
transforms
a
hardware
store
into
a
^'facility
principally engaged in selling food for consumption on the premises."
Id.
at
19.
The First Amended Complaint fails to allege sufficient facts
to plausibly state that Home Depot falls within any of the categories
enumerated in Title II of the Civil Rights Act.
Even accepting that
Home Depot sells water, other beverages and some food items, the First
Amended Complaint fails to allege plausible facts that would permit
a finding that Home Depot is ''principally engaged in selling food
for consumption on the premises."
Furthermore, the First Amended
Complaint does not allege that Gray was denied equal enjoyment of
a restaurant or similar facility located on the premises of Home Depot
(a retail location) .
Rather, it is alleged only that Gray was denied
equal enjoyment of Home Depot, a retail location not considered a
place of public accommodation under Title II.
Therefore, Count V will be dismissed for failure to state a claim
upon which relief may be granted.
19
F.
Tortious Interference With A
Contract
Count VI alleges tortious interference with a contract.
The
facts alleged in this section are largely the same as those contained
within Count II, which alleges that Home Depot deprived Gray of his
contractual rights on the basis of race.
To establish a prima facie claim for tortious interference with
a contract, a plaintiff must plead the following elements:
existence
expectancy;
of
(2)
a
valid
contractual
knowledge
of
that
relationship
contractual
or
(1) the
business
relationship
business expectancy on the part of the interferor;
or
(3) intentional
interference inducing or causing a
breach or termination of the
relationship or expectancy; and
resultant damage to the party
(4)
whose relationship or expectancy has been disrupted.
Patient First Corp., 207 F. Supp. 2d 431,
447
See Storey v.
{E.D. Va. 2002).
Home Depot alleges that this Count must fail because the First
Amended Complaint fails to allege that a third-party interfered with
the contract between Gray and Home
Depot.
Home Depot cites law
stating, ''it is axiomatic that a party cannot interfere with his own
contract."
(Docket No.
14,
Def's Mem.
in Supp.,
Storey, 207 F. Supp. at 448 (E.D. Va. 2002)) .
at 19
(citing
Although that premise
of law is correct, the same case cited by Home Depot also states,
"if it can be shown that an agent of a party to the contract was acting
outside the scope of his employment in tortiously interfering with
such contract, then the aggrieved party may be entitled to recover."
20
storey, 207 F. Supp. at 488.
Gray has alleged that ''Defendant [the
Home Depot employee's] act .
.
. went beyond his authorized duties
and the scope of employment." (Docket No. 11, Am. Compl, 5 59).
If
that allegation is to be taken at face value, then Gray's claim would
be against the employee not against Home Depot.
event.
Count VI
fails
Thus,
in either
against Home Depot under the rationale of
Storey.
However, Count VI fails for a more basic reason:
of a
contract or expectancy.
the absence
The return policy is a
permissive
policy, not a contract that was susceptible of interference.
the
existence
of
interference with
2.
a
contractual
contract must
entitlement,
the
Absent
tort
claim
And,
the
for
fall.
The Proffered Second Amended Complaint
Gray has previously amended his complaint.
First
Amended Complaint has been found wanting, and will be dismissed for
the reasons set out in Section 1 above.
The proffered Second Amended
Complaint does not cure the deficiencies.
Home Depot has suggested
that the best course is to allow the filing of the Second Amended
Complaint and then allow i t to file another motion to dismiss.
That,
however, would be an exercise in futility because the Second Amended
Complaint manifests the same defects that necessitated dismissal of
the First Amended Complaint.
(1962),
Under Foman v.
Davis,
371 U.S.
178
an amendment should not be permitted if the filing of an
amendment would be futile.
And, i t would be a wasteful exercise to
21
permit the filing of an amendment and then have to decide another
motion to dismiss.
Therefore, Gray's iyiOTION FOR LEAVE TO FILE SECOND
AMENDED COMPLAINT
(Docket No.
16)
will be denied.
The defendant's MOTION FOR RELIEF FROM LOCAL CIVIL RULE 7(E)
(Docket No. 17) will be denied as moot because there is no need for
a hearing given the disposition of the motion to dismiss.
CONCLUSION
For the reasons set forth above.
Home Depot's RULE 12(b)(6)
MOTION TO DISMISS AMENDED COMPLAINT (Docket No. 13) will be granted;
Gray's MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT (Docket No.
16) will be denied; and the MOTION FOR RELIEF FROM LOCAL CIVIL RULE
7(E)
(Docket No.
17)
will be denied as moot.
The Clerk is directed to send a copy of this Memorandum Opinion
to the plaintiff and counsel of record.
It
is
so
ORDERED.
/s/
fi-sP
Robert E. Payne
Senior United States District Judge
Richmond, Virginia
Date:
January
2015
22
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