Cunningham v. Home Depot

          ORDER

          Hon. Susan M. Brnovich, United States District Judge

         Pending before the Court is Defendant The Home Depot USA, Inc.'s (“Defendant” or “Home Depot”) Motion to Dismiss Plaintiff's Second, Third, and Fourth Claims for Relief. (Doc. 21, “Mot.”). Plaintiff Scott Chris Cunningham filed an opposition, (Doc. 23, “Resp.”), and Defendant filed a reply, (Doc. 25, “Reply”).

         I. BACKGROUND

         The following facts are as alleged by Plaintiff in his First Amended Complaint. (Doc. 17, “FAC”). Plaintiff began employment with Home Depot on January 13, 2004, as a sales associate. He became an assistant store manager in November 2013. Plaintiff alleges that shortly after Edmond Lawrence became his manager in May 2016, he noticed that Lawrence was giving preferential treatment to another assistant manager who was Hispanic. Plaintiff is Caucasian. Plaintiff confronted Lawrence about his favoring the other assistant manager, and Lawrence subsequently began to ostracize and ignore Plaintiff. Plaintiff alleges that “[t]he work environment created by Lawrence was abusive, severe and pervasive enough to alter the terms of [Plaintiff's] employment and interfered with [his] ability to get his work done.” (FAC at 5). Plaintiff also alleges that Lawrence retaliated against him for complaining by giving him poor reviews. Plaintiff reported the alleged retaliation to the HR District Manager and also reported that Lawrence created a hostile work environment for him. Plaintiff alleges that his complaint was closed without investigation, and that Lawrence continued to create a hostile work environment for Plaintiff.

         In November 2016, Plaintiff took medical leave. In March 2017, while Plaintiff was still out on leave, Lawrence gave Plaintiff a low rating and “withheld stock and a bonus” from Plaintiff despite his good work performance. (FAC at 6). Plaintiff then filed an Equal Employment Opportunity Commission (“EEOC”) Charge (No. 540-2017-01377) on March 17, 2017, alleging that after Lawrence became Store Manager, Plaintiff was “targeted and treated differently due to [his] race . . . .” (Doc. 17-1) (the “First Charge”). Plaintiff also alleged that he “brought forward concerns” to Lawrence and HR “and was subjected to retaliation, which included discipline and denial of transfer.” (Doc. 17-1). The EEOC mailed a right to sue notice based on the First Charge to Plaintiff on October 31, 2018. (Doc. 17-3) (the “First Right to Sue Notice”).

         In January 2018, Plaintiff was informed that unless he returned to work in February 2018, he would be terminated. Plaintiff requested to return as an assistant manager, but was told that there were no assistant manager positions in his district or surrounding districts. Plaintiff alleges that he was discriminated against due to his disability because Home Depot created an assistant manager position for a non-disabled employee while refusing to do so for Plaintiff. Plaintiff alleges that he was treated disparately because he is disabled and protested race discrimination.

         On April 24, 2018, Plaintiff filed another EEOC Charge (No. 540-2018-02621) in which he alleged that Home Depot was “continuing to retaliate against [him] by demoting [him] after [he came] back from a medical leave in which they forced [him] back early.” (Doc. 17-2) (the “Second Charge”). He further alleged that “the HR team claimed that they had no management positions in [his] district available” for when he came back from leave, and that after he came back as an hourly associate in another store, a new manager “transferred in 2 weeks after [he] was told there were no management positions available.” (Doc 17-2). The EEOC mailed a right to sue notice based on the Second Charge to Plaintiff on November 9, 2018. (Doc. 17-4) (the “Second Right to Sue Notice”).

         Plaintiff initiated this action on February 8, 2019, against Home Depot by filing a complaint, pro se. (Doc. 1). Plaintiff filed his First Amended Complaint through counsel on March 27, 2019 (Doc. 17, “FAC”). In the FAC, Plaintiff brings five counts:

(1) 42 U.S.C. § 1981 - retaliation for having reported or opposed race discrimination

(2) 42 U.S.C. § 2000e-2(a)(1) - retaliation for having reported or opposed race discrimination^[1]

(3) 42 U.S.C. § 12112 - disability discrimination in violation of the ADA

(4) 42 U.S.C. § 2000e-2(a)(1) - hostile work environment or disparate treatment based upon race^[2]

(5) 42 U.S.C. § 1981 - hostile work environment or disparate treatment based upon race

(FAC at 2, 9-11). Defendant now moves to dismiss Counts Two and Four (the “Title VII Counts”) and Count Three (the “ADA Count”) pursuant to Rule 12(b)(6), ...