Tohotcheu v. Harris Teeter, Inc.

Decision Date22 November 2011
Docket NumberCASE NO. 1:11-CV-767
CourtU.S. District Court — Eastern District of Virginia
PartiesJEREMIE T. TOHOTCHEU, Plaintiff, v. HARRIS TEETER, INC. Defendant.
MEMORANDUM OPINION

THIS MATTER is before the Court on Defendant Harris Teeter's Motion to Dismiss Plaintiff's claims of employment discrimination, negligence and intentional infliction of emotional distress for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). This case concerns Plaintiff's allegations that Defendant unlawfully discriminated against and discharged him from employment on the basis of national origin.

There are four issues before the Court. The first issue is whether the Court should dismiss Plaintiff's discrimination claim based on national origin under Title VII where (1) Plaintiff's allegations regarding his satisfactory work performance lack factual support and (2) Plaintiff fails to allege both that he is a member of a protected class and that similarly situated employees outside the protected class received more favorable treatment from Defendant. The second issue is whether the Court should dismiss Plaintiff's claim of retaliation under Title VII where Plaintiff fails to allege sufficient facts that he engaged in a protected activity. The third issue is whether the Court should dismiss Plaintiff's claim for negligence arising from an alleged wrongful termination where (1) the Plaintiff does not allege any facts to support his claim (2) the Complaint was filed more than two years after the alleged wrongful termination. The fourth issueis whether the Court should dismiss Plaintiff's claim for intentional infliction of emotional distress arising from an alleged wrongful termination where (1) the Plaintiff does not allege any facts to support his claim and (2) the Complaint was filed more than two years after the alleged wrongful termination.

The Court holds that: (1) Plaintiff fails to state a claim of discrimination because Plaintiff fails to allege with specificity two elements of the discrimination claim and his allegations related to satisfactory work performance lack factual support; (2) Plaintiff fails to state a claim of retaliation because he does not allege sufficient facts that he engaged in a protected activity; (3) Plaintiff fails to state a claim for negligence because he does not allege any facts concerning the elements of a negligence claim and any claim of negligence arising from termination of employment that occurred over two years before the Complaint was filed is barred by the statute of limitations; (4) Plaintiff fails to state a claim for intentional infliction of emotional distress because he does not allege any facts concerning the elements of an intentional infliction of emotional distress claim, and any claim of intentional infliction of emotional distress arising from termination of employment that occurred over two years before the Complaint was filed is barred by the statute of limitations. Accordingly, the Court GRANTS Defendant's Motion to Dismiss and dismisses all claims without prejudice.

I. BACKGROUND

This is an employment discrimination action brought by Plaintiff Jeremie Tohotcheu against Defendant Harris Teeter, Inc. ("Harris Teeter") alleging wrongful termination based on national origin. Harris Teeter hired Plaintiff, a native of Cameroon, to work in its Reston, Virginia store on September 13, 2007, and he worked there until his first termination inDecember 2007.1 (Compl. ¶ 2.) Subsequently, Harris Teeter rehired Tohotcheu in January 2008 and terminated him again in October 2008. Id. Plaintiff alleges that soon after his second termination, a human resources specialist with Harris Teeter contacted Plaintiff and rehired him. Id. Finally, Harris Teeter terminated him a third time in December 2008. Id. In February 2009, Plaintiff allegedly learned from the Virginia Employment Commission that the reason for his termination was "failure to provide [Harris Teeter] with proper work documentation after a two weeks' notice was given to [him]." (Compl. ¶ 3.)

Plaintiff subsequently filed complaints with the Equal Employment Opportunity Commission ("EEOC") and the Department of Justice, Office of Special Counsel ("OSC"). (Compl. ¶ 4.) On February 15, 2011, the EEOC dismissed Plaintiff's claim alleging national origin discrimination, noting it was "unable to conclude that the information obtained establishes violations of the statutes."2 (Compl., Ex. A.)

Plaintiff appealed the OSC's dismissal to the Office of Chief Administrative Hearing Officer ("OCAHO") and also to the Fourth Circuit. (Compl. ¶ 3.) Plaintiff's appeal to the Fourth Circuit was dismissed on July 22, 2011. See Order ¶ 1, July 22, 2011 (Dkt. No. 5-1.)

On May 13, 2011, Plaintiff commenced this action in the Circuit Court of Fairfax County3 seeking monetary damages including back pay for what he could have earned since December 8, 2008, damages of losses incurred from the termination, and compensation for theemotional distress resulting from the situation. (Case No. CL-2011-7859.) Defendant removed the case from the Circuit Court to this Court on July 20, 2011, and filed its Motion to Dismiss on July 29, 2011, which is before this Court.4

II. STANDARD OF REVIEW

To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must set forth "a claim to relief that is plausible on its face." Bell All. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible "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. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556). "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Id. (quoting Twombly, 550 U.S. at 555). A complaint is also insufficient if it "tenders naked assertions devoid of further factual enhancement." Iqbal, 129 S. Ct. at 1949 (citation and internal quotation marks omitted). Because the central purpose of the complaint is to provide the defendant "fair notice of what the claim is and the grounds upon which it rests," the plaintiff's allegations must be supported by some factual basis sufficient to allow the defendant to prepare a fair response. Twombly, 550 U.S. at 555 (citation and internal quotation marks omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 555).

In reviewing a Rule 12(b)(6) motion, a court must construe the complaint in the light most favorable to the plaintiff, read the complaint as a whole, and take the facts asserted thereinas true. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However, "conclusory allegations regarding the legal effect of the facts alleged" need not be accepted. Labram v. Havel, 43 F.3d 918, 921 (4th Cir. 1995) (citation omitted). In addition to the complaint, a court may also examine any "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S. Ct. 2499, 2509 (2007).

III. ANALYSIS
1. Discrimination Claim

The Court grants Defendant Harris Teeter's Motion to Dismiss with respect to Plaintiff's discrimination claim under Title VII because (1) Plaintiff's allegations as to his satisfactory work performance lack factual support, and (2) the Complaint fails to allege the elements of a prima facie case for discrimination.

To state a claim of discrimination under Title VII, a plaintiff must allege that: (1) he is a member of a protected class; (2) he suffered an adverse employment action; (3) he was performing satisfactorily at the time of the adverse employment action; and (4) similarly situated employees outside the protected class received more favorable treatment. Bateman v. American Airlines, Inc., 614 F. Supp. 2d 660, 674 (E.D. Va. 2009) (citing Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)). When the alleged adverse action is termination, Title VII plaintiff's must show that they were replaced by someone outside of their protected class. See Miles v. Dell. Inc., 429 F.3d 480, 486 (4th Cir. 2005). When Plaintiff fails to show that Defendant hired someone else outside of his protected class to replace him, he fails to set forth facts sufficient to allege each element of his claim. See Gerner v. Cnty. of Chesterfield, 765 F. Supp. 2d 770, 774 (E.D. Va. 2011).

The Complaint does not contain any allegation that Plaintiff is a member of a protected class, nor does it allege that similarly situated employees outside the protected class received more favorable treatment. Similarly, Plaintiff has not supported with sufficient factual allegations his assertion that he was performing satisfactorily at the time of the termination. The Complaint contains only a conclusory statement that he was a "very good and outstanding employee" who completed his work beyond his employer's expectations in order to show that he was performing satisfactorily at the time of the termination. (Compl. ¶ 5.) Therefore, Plaintiff fails to allege facts sufficient to support three elements of a discrimination claim under Title VII. The Court grants Defendant's Motion to Dismiss as to this discrimination claim.

2. Retaliation Claim

The Court grants Defendant Harris Teeter's Motion to Dismiss with respect to Plaintiff's claim of retaliation because Plaintiff only generally alleges that Harris Teeter engaged in retaliatory conduct against him, failing to provide sufficient factual content to support his assertion that he engaged in a protected activity that resulted in an adverse employment action.

In order to state a claim of retaliation, a plaintiff must allege that: (1) he engaged in a protected...

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