United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
WILLIAM E. CASSADY, Magistrate Judge.
This cause is before the Magistrate Judge for issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b), on the complaint (Doc. 1), the motion to dismiss filed by defendant Stein Mart (Doc. 9; see also Doc. 10 (brief)), plaintiff's response in opposition ( see Doc. 13), and the moving party's reply (Doc. 14). Upon consideration of the foregoing pleadings, the Magistrate Judge recommends that the Court GRANT the defendant's motion to dismiss.
On May 16, 2013, Edrice Taylor Jones went to Stein Mart with her son to shop for outfits for her May 18, 2013 wedding. (Doc. 1, at 4.) After looking at numerous pieces of clothing and trying on a purple Roman-style jumper-which she had decided to accessorize-Jones was approached by two police officers. ( Id. ) The officers told Jones that the store's manager had called in a complaint about possible shoplifting and, more specifically, informed the officers that plaintiff was acting suspiciously. ( See id. ) The embarrassed Jones informed the officers that she had a job, was a valued customer of the store and was not stealing clothes; instead, she told the officers she was simply shopping for a wedding outfit. ( Id. ) When one of the officers told her to purchase the items of clothing she desired to purchase and leave the store, plaintiff attempted to open her purse to show the officers her Stein Mart Platinum Rewards credit card; however, the officer simply informed Jones that the store manager could ask anyone to leave the premises. ( See id. ) Jones began to cry, took the jumper off, and, due to her mistreatment, left the store without purchasing any items. ( Id. at 2 & 4.)
Jones filed a Title VII charge of discrimination against Stein Mart-based on race and retaliation-with the Equal Employment Opportunity Commission ("EEOC") on June 8, 2013. (Doc. 10, Exhibit A, CHARGE OF DISCRIMINATION.) On July 16, 2013, the EEOC dismissed Jones's Title VII charge of discrimination based on the lack of an employer/employee relationship. (Doc. 10, Exhibit B.) That dismissal also notified Jones of her right to file suit within 90 days of her receipt of the notice. ( Id. ) Accordingly, on October 16, 2013, Jones initiated this action against Stein Mart alleging that she was discriminated against on account of her race, in violation of Title VII of the Civil Rights Act of 1964. ( See Doc. 1.)
The defendant filed its motion to dismiss on January 30, 2014. (Doc. 9; see also Doc. 10.) The defendant contends that, as one of its customers, Jones cannot establish a Title VII claim inasmuch as such a claim requires that the plaintiff be either an employee or job applicant. (Doc. 9, at 1; see also Doc. 10, at 2-3.) In her response in opposition, Jones admits that she is not filing suit as an employee or job applicant; rather, she contends she is filing suit "as a private citizen based upon the information furnished to [her] by the EEOC[.]" (Doc. 13, at 1.)
Defendant has filed a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. ( Compare Doc. 9 with Doc. 10.) Pursuant to Rule 12(b)(6), a defendant may move to dismiss a complaint on the basis that the plaintiff has failed to state a claim upon which relief may be granted. See Fed.R.Civ.P. 12(b)(6). To avoid dismissal for failure to state a claim upon which relief can be granted, the allegations must show facial plausibility. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct.1955, 1966, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility 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, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). In other words, "[f]actual allegations must be enough to raise a right to relief above the speculative level, " Twombly, supra, 550 U.S. at 555, 127 S.Ct. at 1965, and must be a "plain statement' possess[ing] enough heft to sho[w] that the pleader is entitled to relief.'" Id. at 557, 127 S.Ct. at 1966 (second brackets in original). However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, supra, 556 U.S. at 678, 129 S.Ct. at 1949.
In assessing the merits of a Rule 12(b)(6) motion, the court must assume that all the factual allegations set forth in the complaint are true. See, e.g., United States v. Gaubert, 499 U.S. 315, 327, 111 S.Ct. 1267, 1276, 113 L.Ed.2d 335 (1991); Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990). Moreover, all factual allegations are to be construed in the light most favorable to the plaintiff. See, e.g., Brower v. County of Inyo, 489 U.S. 593, 598, 109 S.Ct. 1378, 1382, 103 L.Ed.2d 628 (1989). Indeed, courts must liberally construe a pro se litigant's allegations and hold them to a less stringent standard than the allegations of an attorney contained in a formal pleading. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972); see also Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) ( per curiam ) (" Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed."). However, courts do not have "license... to rewrite an otherwise deficient pleading in order to sustain an action[.]" GJR Investments, Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998), overruled on their grounds by Iqbal, supra . 
In this case, plaintiff has filed a complaint solely under Title VII of the Civil Rights Act of 1964. (Doc. 1.) 42 U.S.C. § 2000e-2(a)(1) makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin[.]" Id. The statute thus makes clear that for an individual to recover under Title VII, "[t]he establishment of an employment relationship is required[.]" Reeves v. DSI Sec. Servs., 331 Fed.Appx. 659, 661 (11th Cir. Jun. 3, 2009) (citing Hishon v. King & Spalding, 467 U.S. 69, 74, 104 S.Ct. 2229, 2233, 81 L.Ed.2d 59 (1984) and 42 U.S.C. § 2000e-2), cert. denied, 558 U.S. 992, 130 S.Ct. 507, 175 L.Ed.2d 349 (2009); see Lewis v. Asplundh Tree Expert Co., 402 Fed.Appx. 454, 457 (11th Cir. Nov. 8, 2010) (noting that an "employer-employee relationship" is necessary to "trigger liability under Title VII."). In contrast, a "customer" or "guest" of a business cannot establish a claim for relief under Title VII because "only those plaintiffs who are "employees" may bring a Title VII suit.'" Smith v. Eike, 2012 WL 2373294, *2 (M.D. Ala. May 23, 2012) (quoting Llampallas v. Mini-Circuits, Lab, Inc., 163F.3d 1236, 1242 (11th Cir. 1998)), report and recommendation adopted by 2012 WL 2368658 (M.D. Ala. Jun. 22, 2012).
Here, it is undisputed that Jones was a customer of Stein Mart on May 16, 2013, not an employee or job applicant; indeed, in her response in opposition, plaintiff admits as much (Doc. 13 ("This action by the defendant to have this case dismiss[ed] was based on me the plaintiff  not being an employee of Stein Mart Department Store was correct but I was not filing as an employee; I was filing as a private citizen based upon the information furnished to me by the EEOC[.]")). Accordingly, it is recommended that Stein Mart's motion to dismiss be granted and that the Court dismiss, with prejudice, plaintiff's Title VII claim against Stein Mart.
Based upon the foregoing, the Magistrate Judge recommends that the defendant's motion to dismiss plaintiff's ...