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O'Connor v. JC Penney Corporation Inc.

United States District Court, N.D. Alabama, Southern Division

May 8, 2017

JOYANN ROETT O'CONNOR, Plaintiff,
v.
JC PENNEY CORPORATION, INC. Defendant.

          MEMORANDUM OPINION

          R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE.

         This case is before the court on Defendant's Motion to Dismiss. (Doc. # 11). The parties have fully briefed the motion and it is under submission. (Docs. # 16, 17). For the reasons explained below, the court concludes that the motion to dismiss is due to be denied.

         I. Procedural History and Background

         In December 2016, Plaintiff, who is appearing pro se, filed her initial complaint against Defendant. (Doc. # 1). She complained that one of Defendant's employees at a store in Alabaster, Alabama refused to cut her hair on December 29, 2014 because the salon at that store did not “do African American hair.” (Id. at 2). Following an initial review, the court found some deficiencies in Plaintiff's complaint and directed her to file an amended complaint. (Doc. # 4). Plaintiff filed an amended complaint in January 2017. (Doc. # 5). After reviewing the amended complaint, the court directed Plaintiff to file a second amended complaint to remedy additional deficiencies. (Doc. # 6).

         Plaintiff submitted her second amended complaint in February 2017.[1] (Doc. # 7). This complaint alleges that Plaintiff made an appointment at a beauty salon in Defendant's Alabaster store. (Id. at ¶ 4). When she arrived at the salon on December 29, 2014, a salon employee told her that the salon did not cut “African-American hair” because it was too hard. (Id. at ¶¶ 4, 6). Plaintiff alleges that the remark “prevented her from getting services at the salon” and that she “left the salon before she was able to receive the services” she desired. (Id. at ¶¶ 7-8). Plaintiff asserts that Defendant violated 42 U.S.C. § 1981 by acting with discriminatory intent towards her.[2] (Id. at ¶ 11). She complains that she suffered emotional and mental anguish from Defendant's conduct. (Id. at ¶ 12).

         II. Standard of Review

         The Federal Rules of Civil Procedure require that a complaint provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). However, the complaint must include enough facts “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Pleadings that contain nothing more than “a formulaic recitation of the elements of a cause of action” do not meet Rule 8 standards, nor do pleadings suffice that are based merely upon “labels and conclusions” or “naked assertion[s]” without supporting factual allegations. Id. at 555, 557. In deciding a Rule 12(b)(6) motion to dismiss, courts view the allegations in the complaint in the light most favorable to the non-moving party. Watts v. Fla. International Univ., 495 F.3d 1289, 1295 (11th Cir. 2007). Moreover, the court must liberally construe Plaintiff's second amended complaint because she submitted the complaint pro se. Erickson v. Pardus, 551 U.S. 89, 94 (2007).

         To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “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 (2009). Although “[t]he plausibility standard is not akin to a ‘probability requirement, '” the complaint must demonstrate “more than a sheer possibility that a defendant has acted unlawfully.” Id. A plausible claim for relief requires “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence” to support the claim. Twombly, 550 U.S. at 556.

         In considering a motion to dismiss, a court should “1) eliminate any allegations in the complaint that are merely legal conclusions; and 2) where there are well-pleaded factual allegations, ‘assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.'” Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 F.App'x 136, 138 (11th Cir. 2011) (unpublished) (quoting Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)). That task is context specific and, to survive the motion, the allegations must permit the court based on its “judicial experience and common sense . . . to infer more than the mere possibility of misconduct.” Iqbal, 556 U.S. at 679. If the court determines that well-pleaded facts, accepted as true, do not state a claim that is plausible, the claims are due to be dismissed. Twombly, 550 U.S. at 570.

         III. Discussion

         Defendant contends that Plaintiff's Section 1981 claim is due to be dismissed because she has not plausibly pled that Defendant intended to discriminate against her. (Doc. # 11 at 7). Moreover, Defendant insists that Plaintiff has not alleged a denial of an opportunity to enter a contract. (Id.). The court disagrees.

         A plaintiff must establish three elements for a claim under Section 1981: (1) he or she is a member of a racial minority; (2) a defendant intended to discriminate against him or her on the basis of race; and (3) “the discrimination concerned one or more of the activities enumerated in the statute.” Lopez v. Target Corp., 676 F.3d 1230, 1233 (11th Cir. 2012) (quoting Kinnon v. Arcoub, Gopman & Assocs., Inc., 490 F.3d 886, 891 (11th Cir. 2007)). The Eleventh Circuit has adopted the Fifth's Circuit standard for determining whether an incident in a retail establishment concerns contractual activity protected under Section 1981. See Id. at 1233-34 (affirmatively citing and discussing Arguello v. Conoco, Inc., 330 F.3d 355 (5th Cir. 2003)). Under that standard, a complaint “must allege that the plaintiff was actually prevented, and not merely deterred, from making a purchase.” Id. at 1234 (quoting Arguello, 330 F.3d at 358-59).

         The court's research has uncovered two published opinions from the Eleventh Circuit analyzing Section 1981 claims based on conduct in retail establishments, both of which were decided in the defendant's favor. In Lopez, a cashier claimed that her register was closed when the plaintiff, a Hispanic customer, attempted to complete a purchase. Id. at 1231. The cashier then proceeded to serve the next customer. Id. A supervisor sent the plaintiff back to the same register, and the cashier reiterated that the register was closed for plaintiff. Id. at 1231-32. The plaintiff moved to another register and completed his purchase. Id. at 1232. The Eleventh Circuit held that the plaintiff in Lopez failed to state a claim under Section 1981 because he was “able to complete his transaction at the same Target store, buying his desired goods at the same price and using the same payment method as any other customer.” Id. at 1234.

         In Kinnon, the plaintiff ordered pizza for a staff meeting, but told an employee to refuse the pizza when it was delivered two hours after her order. 490 F.3d at 888. An employee at the pizzeria left the plaintiff numerous messages to try and collect payment. Id. at 889. In one message, the employee used numerous racial epithets in reference to the plaintiff. Id. The Eleventh Circuit held that the plaintiff could not maintain a claim under Section 1981 premised on the phone messages because the conduct at issue was ...


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