United States District Court, N.D. Indiana, Hammond Division
JOHN M. KULCSAR, Plaintiff,
AUTOZONE, LLC, Defendant.
OPINION AND ORDER
S. VAN BOKKELEN UNITED STATES DISTRICT JUDGE
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,  moved to dismiss the amended
complaint for failure to state a claim, under Federal Rule of
Civil Procedure 12(b)(6).
Standard for evaluating a motion to dismiss
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)).
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).
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.
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.
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.
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.
15, 2014, Carpio retaliated against Plaintiff by citing him
for a minor infraction of a rule not commonly enforced.
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.
3, 2014, Cassell failed to open the store on time, but did
not receive any disciplinary action.
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.
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
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
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.
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.)
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.
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.
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
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.
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
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. 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
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