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Fonjungo v. Rite Aid Corp.

United States District Court, D. Maryland

November 22, 2016

GEORGE FONJUNGO, Plaintiff,
v.
RITE AID CORPORATION, Defendant.

          MEMORANDUM

          Ellen Lipton Hollander United States District Judge

         George 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.

         Plaintiff 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.

         Now 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.

         No hearing is necessary to resolve the Motion. Local Rule 105.6.

         I am 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.

         Discussion

         A. “Civil Rights Act”

         Plaintiff 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.

         Section 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.

         Plaintiff 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.”

         Based 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 VII.[1]

         B. “Fair Labor Practices Act”

         Plaintiff 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 ...


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