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Kulcsar v. Autozone, LLC

United States District Court, N.D. Indiana, Hammond Division

February 24, 2017

JOHN M. KULCSAR, Plaintiff,
v.
AUTOZONE, LLC, Defendant.

          OPINION AND ORDER

          JOSEPH S. VAN BOKKELEN UNITED STATES DISTRICT JUDGE

         Plaintiff Kulcsar sued his former employer under Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. § 2000e et seq.). Plaintiff claims constructive discharge based on “pervasive age and sex-sex stereotyping discrimination, ” harassment, and retaliation for reporting the discrimination and harassment. (Amend. Compl., DE 27 at 2.) Defendant AutoZoners, LLC, [1] moved to dismiss the amended complaint for failure to state a claim, under Federal Rule of Civil Procedure 12(b)(6).

         A. Standard for evaluating a motion to dismiss

         The purpose of a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim is to test the sufficiency of the pleadings, not to decide the merits of the case. See Gibson v. Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). Rule 8(a)(2) provides that a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” However, “recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007)).[1]

         As the Supreme Court stated, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. Rather, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. at 678 (quoting Twombly, 550 U.S. at 570). A complaint is facially plausible if a court can reasonably infer from factual content in the pleading that the defendant is liable for the alleged wrongdoing. Id. (citing Twombly, 550 U.S. at 556).

         The Seventh Circuit synthesized the standard into three requirements. See Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). “First, a plaintiff must provide notice to defendants of her claims. Second, courts must accept a plaintiff's factual allegations as true, but some factual allegations will be so sketchy or implausible that they fail to provide sufficient notice to defendants of the plaintiff's claim. Third, in considering the plaintiff's factual allegations, courts should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements.” Id.

         B. Plaintiff's amended complaint Plaintiff alleges the following. He involuntarily resigned from employment with Defendant on August 28, 2014, after five months of pervasive age and sex stereotyping discrimination, harassment, and retaliation for reporting the discrimination and harassment. Defendant failed to investigate his complaints thoroughly, and knowingly allowed the discrimination, harassment, and hostility to escalate.

         On May 9, 2014, co-worker Quinton Cassell told Plaintiff that someone called the store to make a gun threat against Plaintiff. A few days later, two other co-workers, Glory Wendt and Jorge Marquez, apparently began telling Plaintiff that Cassell thought Plaintiff was incapable, slow, gay, and did not belong there.

         On May 13, 2014, Marquez told Plaintiff that Cassell tried to have acquaintances make complaints in an effort to cause Plaintiff's termination. The same day, Plaintiff reported this to Chris Carpio, the store manager. Yet no one addressed or recorded Plaintiff's grievance.

         On May 15, 2014, Carpio retaliated against Plaintiff by citing him for a minor infraction of a rule not commonly enforced.

         On May 27, 2014, Wendt called Plaintiff from the store and Plaintiff heard Cassell say in the background, “you are no better than that faggot John.” On May 28, 2014, Plaintiff reported this incident to Carpio. On the same day, Marquez told Plaintiff that Cassell said he knew how to deal with people like Plaintiff and knew how to get rid of him. Also on that day, two sequenced seals disappeared, making it impossible for Plaintiff to complete a particular task. (Plaintiff doesn't say why the seals disappeared, but he implies sabotage.) Carpio made Plaintiff pay for a cash register error greater than $30 and reprimanded him.

         On June 3, 2014, Cassell failed to open the store on time, but did not receive any disciplinary action.

         Through the end of June 2014, Carpio and Cassell heckled Plaintiff in front of customers about being bi-polar, having a low IQ, and having degenerative cognitive disease. (Plaintiff denies ever having these conditions.) Plaintiff complained to Carpio about this but Carpio was dismissive.

         On July 8, 2014, Carpio issued Plaintiff a fourth corrective action. (Plaintiff presents reasons why this corrective action and two others were unjust. Plaintiff claims he received each corrective action within days of reporting harassment to Carpio.) Plaintiff claims he “was now being transferred to another location based upon performance issues that did not exist.” (Amend. Compl., DE 27 at 5.) Plaintiff claims the transfer was “essentially a demotion to a far smaller, less demanding and challenging location . . . to avoid addressing the underlying discrimination, harassment and retaliation.” (Id.) The attempted transfer humiliated Plaintiff.

         On July 17, 2014, Lecta, an employee at the new store, called Plaintiff and told him she knew the transfer was based on pretext and that Plaintiff had no performance issues. Lecta (directly or indirectly-the complaint is unclear) confirmed Plaintiff's suspicions that the difficulties resulted from his sexual orientation, which Plaintiff had not disclosed.

         On July 19, 2014, co-worker Zalazar said to a customer near Plaintiff, “his gay ass is being transferred in a few days.” (Id. at 6.) Later that day, another co-worker told Plaintiff that Carpio and Cassell were mistreating Plaintiff because he is gay.

         On July 20, 2014, co-workers told Plaintiff that Cassell's conduct was escalating to include threats of physical violence against Plaintiff. (Plaintiff does not allege Cassell made threats of physical violence to Plaintiff.)

         Plaintiff then called the AutoZone employee hotline for the third time. He complained about the escalation of discrimination, harassment, and retaliation. He complained of fearing for his safety and he complained about the pending transfer based on pretext. He eventually spoke with higher-level representatives. Plaintiff claims Rice, human resources generalist, selectively documented the information.

         By July 28, 2014, the unjust transfer and corrective actions were repealed. Plaintiff called Bush, in divisional human resources, to ask why nothing had been done to correct the problems except repeal of the transfer and corrective actions. Bush told Plaintiff his claims were denied.

         On August 15, 2015, Wendt and Cassell conspired to incite two customers against Plaintiff. One of these customers waited in his car in front of the store for an hour, watching Plaintiff.

         Plaintiff complained to Carpio, but nothing was done to redress the problem. Instead, on August 26, 2014, Plaintiff was reprimanded on the basis of false statements about customer complaints that never occurred and on the basis of false accusations of misconduct.

         Plaintiff's amended complaint does not (and needs not) present neat counts delineating the claims. Instead, the amended complaint cites Title VII as its basis and provides:

“CONSTRUCTIVE DISCHARGE. PLAINTIFF INVOLUNTARILY RESIGNED 8/24/14 FOLLOWING 5 MONTHS OF PERVASIVE AGE AND SEX-SEX STEREOTYPING DISCRIMINATION, HARASSMENT AND RETALIATION FOR REPORTING THE DISCRIMINATION AND HARASSMENT.”

         (Amend. Compl., DE 27 at 2.) The amended complaint provides the factual narrative summarized above, with the words “harassment, ” “discrimination, ” and “retaliation” sprinkled throughout. Defendant characterizes the amended complaint as attempting to state claims for age discrimination, sex stereotyping discrimination, hostile work environment based on age, hostile work environment based on sex stereotyping, constructive discharge, and retaliation.[2] In his response, Plaintiff does not challenge this characterization. Indeed, the only claims Plaintiff defends in his response are claims for “sexual harassment due to the stereotype of ‘maleness;'” constructive discharge due to the harassment; and age discrimination, harassment, and retaliation.

         Defendant moves to dismiss on the grounds that Plaintiff (1) failed to state a claim for age or gender discrimination or “sex stereotyping” discrimination, (2) failed to state a claim for hostile work environment based on age or gender or “sex stereotyping, ” (3) failed to state a claim for constructive discharge, and (4) failed to state a claim for retaliation.

         C. ...


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