Segal v. Harris Teeter Supermarkets, Inc.

ROBERT SEGAL, Plaintiff, v. HARRIS TEETER SUPERMARKETS, INC., Defendant.

Civil Action No. 15-1496 (BAH)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

December 13, 2016

Chief Judge Beryl A. Howell

MEMORANDUM OPINION

The plaintiff, Robert Segal, brought this lawsuit against the defendant, Harris Teeter LLC,¹ alleging the defendant retaliated against him for his action in filing a discrimination charge with the Equal Employment Opportunity Commission ("EEOC"). See Compl. at 3, ECF No. 1. Pending before the Court is the defendant's Motion to Dismiss ("Def.'s Mot."), ECF No. 11, and the Plaintiff's Opposition to Defendant Harris Teeter's Motion to Dismiss and Motion to Amend Complaint ("Pl.'s Opp'n & Mot. Amend"), ECF No. 14. For the reasons set forth below, the defendant's motion is granted and the plaintiff's motion is denied.

I. BACKGROUND

The facts below, taken from the Proposed Amended Complaint ("Prop. Am. Compl."), ECF No. 14-4, will be accepted as true for the purposes of the pending motions.² The Proposed Amended Complaint asserts claims for retaliation arising under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e-1-2000e-17, and the Age Discrimination inEmployment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621-634. See Prop. Am. Compl. at 1, 6-7. The following factual allegations will aid in resolving both the defendant's motion to dismiss and the plaintiff's motion for leave to file the Proposed Amended Complaint.

The plaintiff, a fifty-six year-old white male, was an employee of the defendant from August 2008 until his termination in April 2015. Id. ¶¶ 11-12, 28. In 2012, the plaintiff filed an EEOC charge against the defendant alleging "discrimination based on race and age." Id. ¶ 15. While only "Joseph Warren, James Smith (40s, white) and Andre Mason (non-white, 40s)" were named in the 2012 charge, the plaintiff asserts that other managers at the store—specifically, "Jahn Espana (Meat/Seafood Manager, 25, Hispanic), Joyce Owusu (Seafood Manager, 44, Black), Jaqueline Dooley (Store Manager, 40s, Black), Waymond Denson (Assistant Store Manager, late 50s, Black), Carl Witlock (Assistant Store Manager, 48), Adam Warren (Executive Store Director), and Chris Pine (District II manager)"—were aware of the 2012 EEOC complaint. Id. ¶¶ 15-16.

According to the plaintiff, during the pendency of the administrative proceedings related to his EEOC charge, the defendant "retaliated against Plaintiff by failing to promote him to a full-time position." Id. ¶ 17. Specifically, the plaintiff alleges that from November 2013 to April 2014, he applied for over twenty-five positions with the defendant but received no interviews. Id. ¶ 18. One of the plaintiff's managers "informed Plaintiff in March/April 2014 that he would interview him for a full-time position and never did so." Id. ¶ 19. The plaintiff followed up with the manager, who "said Plaintiff would be interviewed later that week and Plaintiff responded that somebody had already been promoted into the position and is on the schedule." Id.; see id. ¶ 22. From November 2013 to April 2014, a number of employees were promoted from part-time to full-time status, including three individuals whom the plaintiff describes as African-American and in their early 20s. Id. ¶ 20. When the plaintiff "inquired about the status of his applications he was told he would be interviewed or that the person did not know the status and would follow up." Id. ¶ 21.

The plaintiff further alleges that he experienced unfair discipline during this time "for taking sick leave" and "working beyond his shift." Id. ¶¶ 39-40, 47-48. According to the plaintiff, his managers "unfairly disciplined Plaintiff for exceeding time and not sticking to the schedule, even though other employees of Defendant were not penalized for these infractions." Id. ¶ 23. The plaintiff explains that those employees were similarly situated, except that they were African-American and significantly younger than the plaintiff. See id. ¶ 24. The plaintiff additionally asserts that "[u]pon information and belief, no other similarly situated employee has engaged in protected activity like Plaintiff." Id. ¶ 29.

In May 2014, the plaintiff received a Right-to-Sue letter for his 2012 discrimination claim, which enabled him to file suit in federal court, but which he never acted upon. Id. ¶ 25. Shortly thereafter, however, the plaintiff "contacted the EEOC to file a charge of retaliation for Defendant treating him differently than other employees and for failing to promote him from part-time to full-time." Id. ¶¶ 25-26. In that charge, dated July 2014, the plaintiff checked a box indicating he had been subject to discrimination based on retaliation and alleged he had been "retaliated against to include, but not limited to, [the defendant] not selecting [him] for various, internal positions . . . , in violation of the Age Discrimination in Employment Act of 1967, as amended. . . [and] Title VII of the Civil Rights Act of 1964, as amended." Defendant's Reply in Support of Harris Teeter, LLC's Motion to Dismiss and Opposition to Plaintiff's Motion to Amend Complaint ("Def.'s Reply"), Ex. 2 at 7, ECF No. 15-2. In the present action, the plaintiff acknowledges that he was promoted in May 2014 to the position of "full-time seafood clerk" butcontends he did not receive a "pay increase of $1" promised him by two managers. Prop. Am. Compl. ¶ 27-28. The plaintiff also alleges that in April 2015, two of the plaintiff's managers notified plaintiff of his termination "for failure to follow supervisor's instructions." Id. ¶ 28. The plaintiff notes that in May 2015, he succeeded in an unemployment claim because the defendant "could not show that his actions constituted misconduct." Id. ¶ 31.

The plaintiff received a Right-to-Sue letter in connection with his 2014 EEOC charge and filed a one-count Complaint, alleging retaliation in violation of Title VII, on September 14, 2015, see Compl. at 1, 3. The defendant filed a motion to dismiss, see Def.'s Mot. at 1, and the plaintiff filed an opposition, as well as a motion for leave to amend the complaint, see Pl.'s Opp'n & Mot. Amend. The plaintiff attached to his motion for leave to amend a Proposed Amended Complaint, which includes two counts of retaliation: one arising under Title VII and the other under the ADEA. See Prop. Am. Compl. ¶ 1, 33-49. The defendant opposes the plaintiff's motion, contending the proposed amendment would be futile, and requests that the matter be dismissed. See Def.'s Reply at 2, 14, ECF No. 15. Both of these motions are now ripe for consideration.

II. LEGAL STANDARD

A. Rule 12(b)(6) Motion to Dismiss

"A court should dismiss a complaint for failure to state a claim only if the complaint does not 'contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face."'" Rudder v. Williams, 666 F.3d 790, 794 (D.C. Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007))). A claim is facially plausible where it sets forth "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. In contrast,"threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Harris v. D.C. Water & Sewer Auth., 791 F.3d 65, 68 (D.C. Cir. 2015) (quoting Iqbal, 556 U.S. at 678). "As required by Federal Rule of Civil Procedure 8, the pleadings must give the defendants fair notice of what the claim is and the grounds upon which it rests, but the Rule does not require detailed factual allegations." Jones v. Kirchner, 835 F.3d 74, 79 (D.C. Cir. 2016) (internal quotation marks and citations omitted).

In considering a Rule 12(b)(6) motion, the court must construe "the complaint 'in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged.'" Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)). "The tenet that a court must accept as true all of the allegations contained in a complaint," however, "is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. Courts "ordinarily examine" other sources "when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

B. Motion for Leave to File an Amended Complaint

"[T]he grant or denial of leave to amend is committed to a district court's discretion . . . ." Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). While the court should freely grant leave to amend a complaint when justice so requires, see Fed. R. Civ. P. 15(a)(2), it may deny a motion to amend in the case of "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of the amendment." Foman v. Davis, 371 U.S. 178, 182 (1962). "A district court may deny a motion toamend a complaint as futile if the proposed claim would not survive a motion to dismiss." Hettinga, 677 F.3d at 480; see Willoughby v. Potomac Elec. Power Co., 100 F.3d 999, 1003 (D.C. Cir. 1996) ("With little chance of a successful Title VII claim, the district court did not abuse its discretion in concluding [the plaintiff] was not entitled to add the claim to his complaint.").

III. DISCUSSION

In support of its motion to dismiss and opposition to the plaintiff's motion to amend, the defendant raises two threshold arguments to bar consideration of many of the allegations in the plaintiff's Proposed Amended Complaint, contending that the plaintiff (1) improperly attempts to...