United States District Court, D. Maryland
Lipton Hollander United States District Judge
Fonjungo, the self-represented plaintiff, has filed suit
against his former employer, Rite Aid Corporation
(“Rite Aid”), defendant. ECF 1. He alleges
violations of the Age Discrimination in Employment Act
(“ADEA”), as amended, 29 U.S.C. §§ 621,
et seq.; the “Fair Labor Practices Act”;
and the “Civil Rights Act.” Id. at 4.
worked as a pharmacist at a Rite Aid pharmacy in Edgewood,
Maryland, from July 8, 2014 until March 11, 2015.
Id. at 3, 5-6. He was born in 1960, and thus he was
over the age of forty at all relevant times. Id. at
5. Fonjungo claims that Rite Aid terminated him due to his
age. Id. He also states that Rite Aid retaliated
against him. Id.
before the Court is Rite Aid's motion to dismiss (ECF 6),
supported by a memorandum of law (ECF 7) (collectively, the
“Motion”) and an exhibit. ECF 7-1. Rite Aid
construed plaintiff's claim under the “Civil Rights
Act” as a claim under Title VII of the Civil Rights Act
of 1964 (“Title VII”), as amended, 42 U.S.C.
§§ 2000e, et seq. And, it has construed
plaintiff's “Fair Labor Practices Act” claim
as a claim under the Fair Labor Standards Act
(“FLSA”), as amended, 29 U.S.C. §§ 201,
et seq. ECF 7 at 2. Rite Aid urges dismissal of
Fonjungo's Title VII claim under Fed.R.Civ.P. 12(b)(1)
because, according to defendant, Fonjungo failed to exhaust
his administrative remedies. ECF 7 at 1. And, Rite Aid seeks
dismissal of Fonjungo's FLSA claim under Fed.R.Civ.P.
12(b)(6), for failure to state a claim. Id. However,
Rite Aid does not seek dismissal of plaintiff's ADEA
claim. Fonjungo filed a response in opposition to the Motion
(ECF 15) (“Opposition”), including exhibits. ECF
15-1. Rite Aid replied. ECF 16.
hearing is necessary to resolve the Motion. Local Rule 105.6.
mindful that pleadings filed by a self-represented litigant
must be liberally construed. Erickson v. Pardus, 551
U.S. 89, 94 (2007). Nevertheless, it does not appear that
plaintiff ever intended to bring claims under Title VII or
the FLSA. Therefore, I shall deny defendant's Motion, as
moot. However, if plaintiff meant to file claims under the
FLSA and/or Title VII, he must file an amended complaint
within 21 days of the date of the attached Order, and he must
include factual allegations sufficient to state such claims.
“Civil Rights Act”
filed suit using a form complaint titled “Complaint for
Employment Discrimination.” Section II of the form
identifies various types of claims. Plaintiff checked the box
for an ADEA claim. And, he checked the box titled
“Other federal law (specify the federal law),
” and wrote: “Fair Labor Practices Act, Civil
Rights Act.” Id. However, he did not check the
box for a claim under “Title VII of the Civil Rights
Act of 1964 . . . (race, color, gender, religion, national
origin).” ECF 1 at 4.
III of the form is titled “Statement of Claim.”
Paragraph D of Section III states: “Defendant(s)
discriminated against me based on my (check all that
apply and explain).” Id. at 5 (emphasis
in original). The form includes boxes for various categories.
Notably, plaintiff did not check the box next to the word
“race.” See Id. But, plaintiff checked
the box next to the word “age, ” and also checked
the box for “Retaliation.” Id.
appended to his complaint a lengthy description of the
discrimination he allegedly suffered, Fonjungo never
articulated race as an issue. Id. at 6-8.
Additionally, in his Opposition to the Motion, plaintiff did
not respond to defendant's contention that he failed to
exhaust his administrative remedies with respect to race
discrimination. See ECF 15. But, plaintiff makes
clear that he did not assert a retaliation claim. He said,
ECF 15 at 7: “[I]f the defendant had taken the time to
read and understand the timeline of events then the defendant
would have realized that it was not filed as a complaint
about retaliation but a complaint about undue discrimination
because of age.” (Emphasis added). Plaintiff added,
id. at 10: “It was not my intention to check
retaliation as a reason for my complaints.”
on the foregoing, it does not appear that plaintiff ever
intended to file a claim of discrimination based on race
under Title VII. And, as noted, plaintiff expressly stated
that he did not intend to sue for retaliation under Title
“Fair Labor Practices Act”
cited the “Fair Labor Practices Act” as a basis
for relief. However, in the complaint he sets forth no facts
pertaining to a wage claim or a claim that he was