United States District Court, D. Arizona
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),
...