Hamzah v. Woodmans Food Mkt. Inc.
| Decision Date | 24 March 2014 |
| Docket Number | 13-cv-491-wmc |
| Court | U.S. District Court — Western District of Wisconsin |
| Parties | SHARIF HAMZAH, Plaintiff, v. WOODMANS FOOD MARKET INC., Defendant. |
In this proposed civil action, plaintiff Sharif Hamzah alleges that defendant Woodmans Food Market Inc. ("Woodman's") violated his rights under Title VII, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., by (1) discriminating against him on the basis of his heterosexuality, age and ethnicity; and (2) retaliating against him by firing him due to internal complaints he filed alleging abuse. Hamzah asks for leave to proceed under the in forma pauperis statute, 28 U.S.C. § 1915. From the financial affidavit Hamzah has provided, the court concludes that he is unable to prepay the fee for filing this lawsuit. The next step is determining whether Hamzah's proposed action is (1) frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks money damages from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).
Because Title VII and the ADEA do not cover such conduct, the court will dismiss plaintiff's claim that Woodman's discriminated against him on the basis of his sexual orientation. Because he provides insufficient facts in support of those claims to meet the requirements of Federal Rule of Civil Procedure 8, the court will also deny plaintiff's request for leave to proceed with his other claims at this time. Plaintiff will have the opportunity toamend his complaint to remedy those deficiencies. If there is any merit to his claim, he should also have little trouble getting a lawyer who specializes in Title VII claims to present him on a contingency or fee award basis.
In addressing a pro se litigant's pleadings, the court must read the allegations generously. Haines v. Kerner, 404 U.S. 519, 521 (1972). For the purposes of this order, the court accepts the plaintiff's well-pled allegations as true and assumes the following facts:
Hamzah was employed at Woodman's West. While employed there, he claims members of staff harassed him on the basis of his heterosexuality. On one occasion, his supervisor, Gabe Ororo, allegedly told him following a confrontation that "this is a homo/bi thing" and that Hamzah "did not belong [there.]" In or about July 2011, Jacob Bemis, a Woodman's employee and outside supervisor, allegedly told him that because he was heterosexual, he would not be promoted and would ultimately be terminated, because "this is a gay thing" and "non-gays or -bisexuals aren't welcome for long here at Woodman's West." Hamzah further alleges that Woodman's routinely denies employment to heterosexuals and harasses them if hired so that they will not remain employed for long.
Additionally, Hamzah filed numerous written complaints about various forms of harassment by Woodman's staff. Store supervisor "Dale" warned him multiple times that if the complaints did not stop, Hamzah would be fired. When Hamzah said he would seek legal recourse if he was terminated for filing complaints, Dale told him it was "useless" to do so, because Woodman's "owns this town and every politician and judicial clerk in it." Hamzah was eventually terminated, in part for filing complaints alleging staff abuses.
Finally, both before and on the date of his termination, Jacob Bemis allegedly made remarks about Hamzah "not belonging to the right ethnic group" and "being too old to work" as parcel/card personnel. "Gabe A.," the inside supervisor on duty, also stated multiple times that Hamzah was too old to work at Woodman's and that he did not belong to the right ethnic group.1 Gabe A. was the "primary instigator" of Hamzah's eventual termination.
Hamzah seeks damages of between one million and three million dollars for the alleged discrimination and wrongful termination under Title VII and the ADEA.2
OPINIONA complaint may be dismissed for failure to state a claim where the plaintiff alleges too little and thereby fails to meet the federal pleading standards found in Federal Rule of Civil Procedure 8. Rule 8(a) requires a "'short and plain statement of the claim' sufficient to notify the defendants of the allegations against them and enable them to file an answer." Marshall v. Knight, 445 F.3d 965, 968 (7th Cir. 2006). The Supreme Court has held that to comply with Rule 8, a complaint must "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citing Twombly, 550 U.S. at 556).On the other hand, a plaintiff may "plead himself out of court" by including allegations thatshow he has no valid claim for relief. Lekas v. Briley, 405 F.3d 602, 613-14 (7th Cir. 2005) (citations omitted).
Here, Hamzah alleges that Woodman's discriminated against him due to his heterosexual orientation, his ethnicity and his age, in violation of Title VII and the ADEA. He also alleges that Woodman's retaliated against him for filing internal complaints about harassment, another ground for relief under Title VII. The court will address each of his claims separately.
First, Hamzah alleges he was harassed and discriminated against on the basis of his heterosexuality. Title VII states that:
42 U.S.C. § 2000e-2(a)(1). While Title VII expressly prohibit employers from harassing employees "because of [their] sex," Hamner v. St. Vincent Hosp. & Health Care Ctr., 224 F.3d 701, 704 (7th Cir. 2000) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 7879 (1998)), the Seventh Circuit has held that "Congress intended the term 'sex' to mean 'biological male or biological female,' and not one's sexuality or sexual orientation." Id. "Therefore, harassment based solely upon a person's sexual preference or orientation (and not on one's sex) is not an unlawful employment practice under Title VII." Id. To theextent that Hamzah claims harassment due to his heterosexuality -- that is, his sexual orientation, not his sex -- he cannot bring a Title VII claim against Woodman's for these alleged instances of harassment, and the court will dismiss that claim with prejudice.
Hamzah also alleges discrimination based on his ethnic group. Specifically, he contends that during his employment at Woodman's, as well as on the date of his termination, Jacob Bemis, one of his supervisors, and Gabe A., another supervisor, "made remarks about [Hamzah] not belonging to the right ethnic group." (Compl. (dkt. #1) 3.) Hamzah does not appear to allege any adverse employment action taken against him because of his ethnicity; rather, he alleges that supervisors made discriminatory remarks against him based on his ethnicity, which would tend to support a claim for a hostile work environment under Title VII.3
Unlike sexual orientation, discrimination based on ethnicity is protected under Title VII. See 42 U.S.C. § 2000e-2(a)(1) (). This protection extends beyond economic or tangible discrimination and precludes "requiring people to work in a discriminatorily hostile or abusive environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Thus, an employer violates Title VII "[w]hen the workplace ispermeated with 'discriminatory intimidation, ridicule, and insult,' . . . that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Id. (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65-67 (1986)) (internal citation omitted).
To find a Title VII violation under this theory, (1) the victim must subjectively perceive the environment as abusive, id. at 21-22; and (2) the environment must also be "objectively hostile or abusive," id. at 21. Circumstances that bear on that determination may include:
[T]he frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.
Although Hamzah is not required to prove his case at the pleading stage, his complaint must satisfy Rule 8, which requires him to plead sufficient factual matter to state a claim for relief that is plausible, not merely possible. See Iqbal, 129 S. Ct. at 1949. Here, Hamzah alleges that two supervisors "made remarks about the plaintiff not belonging to the right ethnic group" and that this happened "on more than one occasion." (Compl. (dkt. #1) 3.) But the Supreme Court has made clear that the "'mere utterance of an . . . epithet which engenders offensive feelings in an employee' does not sufficiently affect the conditions of employment to implicate Title VII." Harris, 510 U.S. at 21 (internal citation omitted) (omission in original). Hamzah has provided no details making it plausible that the conduct was "severe or pervasive enough to create an objectively hostile or abusive workenvironment." Id. Thus, his complaint does not meet the requirements of Rule 8, and the court will dismiss this claim.
This dismissal is, however, without prejudice, meaning that...
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