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Fonjungo v. Rite Aid Corp.

United States District Court, D. Maryland

April 28, 2017

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

          MEMORANDUM

          Ellen Lipton Hollander United States District Judge.

         Plaintiff George Fonjungo, who until recently was self-represented, worked as a pharmacist at a Rite Aid pharmacy in Edgewood, Maryland from July 8, 2014 until March 11, 2015. At all relevant times, plaintiff was over the age of forty. See ECF 24 at 5. He alleges in an Amended Complaint (ECF 24) that he was terminated and retaliated against by defendant Rite Aid Corporation ("Rite Aid")[1], in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. §§ 621, et seq., and Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. §§ 2000e, etseq. ECF 24 at 4.[2]

         Now pending is Rite Aid's motion to dismiss only the Title VII claim, pursuant to Fed.R.Civ.P. 12 (b)(1) and Fed.R.Civ.P. 12(b)(6), on the grounds that plaintiff failed to exhaust his administrative remedies and has failed to state a claim. ECF 25 at 1.[3] The motion to dismiss is accompanied by a memorandum of law (ECF 25-1) (collectively, the "Motion") and an exhibit. ECF 25-2. The Motion seeks dismissal solely as to plaintiffs Title VII claim. ECF 25. Fonjungo responded in opposition to the Motion (ECF 29) ("Opposition"). Rite Aid has not replied, and the time to do so has elapsed. See Local Rule 105.2 On April 18, 2017, during the pendency of the Motion, counsel entered an appearance on behalf of Fonjungo. ECF 30. However, because Fonjungo was self-represented when he filed his Amended Complaint, I shall construe the pleadings liberally; the pleadings of a pro se litigant are "held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989).

         No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall grant the Motion and dismiss the Title VII claim.

         I. Background[4]

         Fonjungo was hired by Rite Aid on July 8, 2014. ECF 24 at 6. According to Fonjungo, when he was being interviewed for the job, Ansu Green, the pharmacy supervisor, was impressed by "[his] resume and [his] presentation." Id. Nevertheless, Fonjungo alleges that Green was reluctant to hire him based on his appearance, and she said to him: "I don't think you can handle it." ECF 24 at 6. Green subsequently relented and hired plaintiff after her secretary, Stacey Henry, intervened, arguing that the pharmacy needed additional help to mitigate a staffing shortage that was expected to last until recent graduates passed the board exams in September. Id. Fonjungo claims that at the time he was hired, Henry stated: "[T]his shortage is not going to last forever. We will be placing new younger graduates who have been promised positions in September, when they start receiving their licenses from the board." Id. at 9.

         Fonjungo was hired by Rite Aid to work full time, at seventy-seven hours every two weeks. Id. However, from the time he began working for Rite Aid, he "averaged 65 to 70 hours a week for about six to seven weeks . . . ." Id. On August 25, 2014, Green met with Fonjungo in her office and "said she wanted [him] to resign" and said that he "can't handle it." Id. When Fonjungo asked Green if her request for him to resign "had anything to do with [his] age or the fact that they [were] getting new hires in September", Green responded "maybe." Id. Fonjungo refused to resign. Id.

         At some point during the following week, Fonjungo sent Green an email in which he claimed that she wanted to terminate his job. Id. She replied "No." Id. Thereafter, Green scheduled a meeting with Fonjungo, which was also attended by a human resources employee. Id.[5] At the meeting, Green stated, id: "[S]ince you won't step down, I intend to watch you like a hawk, I will put a shine upon you. If you make any mistake and especially if you have any complaints, customer complaints, I will put it on your record and I will write you up and have you terminated." Id. Fonjungo claims, id.: "In effect she was going to retaliate on me for refusing to resign by holding me to a higher standard above every other Pharmacist. I was on notice so I had to be extra careful." Id.

         Subsequently, Green "wrote [Fonjungo] up three times in the following months always about customer complaints." ECF 24 at 9. And, each time, Green asked Fonjungo if he was ready to resign. Id.

         Further, Fonjungo claims that he received increased complaints as the result of a "conspiracy" orchestrated by Krishna Mataparthy, a pharmacy manager who was also "the best friend of Ansu Green." Id. at 9, 10. For example, on March 6, 2015, a customer came into the pharmacy while Fonjungo was working and informed him that her prescription had been filled incorrectly. Id. According to Fonjungo, despite the fact that Mataparthy had filled the prescription, he apologized to the customer and offered to correct the error. Id. Fonjungo asserts that, to his surprise, the customer stated: "Well every time I come here and this has happened[, ] and this has happened many times, [Mataparthy] said you did it. . . ." Id. Fonjungo also asserts that the customer said: "[Mataparthy] has given me the toll free number and urged me to call and complain about you." Id.

         On Friday March 6, 2015, after the incident with the customer, Fonjungo sent a letter to Mataparthy seeking an explanation. Id. Mataparthy then called Fonjungo "many times over the weekend" of March 7-8, 2015, demanding to know the name of the customer with whom he spoke. Id.

         On March 10, 2015, Green scheduled another meeting with Fonjungo for March 11, 2015. Id. At that meeting, which was attended by a human resources employee, Green informed Fonjungo that he was to be terminated because of customer complaints. Id.

         Fonjungo filed a Charge of Discrimination ("Charge") with the Equal Employment Opportunity Commission ("EEOC") on April 14, 2015. Id. at 6; see ECF 25-2 at 3-4. In the Charge, plaintiff checked the box adjacent to "Age", but not the boxes adjacent to race, color, sex, religion, national origin, or retaliation. ECF 25-2 at 3. In the Charge, Fonjungo stated: "I believe I have been discriminated against In violation of the Age Discrimination in Employment Act of 1967, as amended, regarding unequal terms and conditions of employment, discipline and discharge based on my age (54)." Id. at 4. Nowhere in the Charge does Fonjungo indicate that he was discriminated or retaliated against on the basis of his race, color, religion, or national origin. See id.

         The EEOC sent a "Notice of Charge of Discrimination" ("Notice") to Rite Aid on April 24, 2015, indicating that plaintiff had filed the Charge. Id. at 2. In the Notice, the EEOC stated that the Charge alleged violations of the ADEA and that the "circumstance[] of alleged discrimination" was "Age." See id.

         Fonjungo received a "Right to Sue letter" from the EEOC on December 19, 2015. ECF 24 at 6; see ECF 15-1 at 15 (Right to Sue letter). In the Right ...


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