United States District Court, D. Maryland
Lipton Hollander United States District Judge.
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"), 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
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. 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).
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.
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.
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
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. 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.
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
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."
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.
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
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.
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
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 ...