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Thomas v. Pathmark Stores

December 24, 2008

LYNN B. THOMAS, PLAINTIFF,
v.
PATHMARK STORES, INC., DEFENDANT.



The opinion of the court was delivered by: Baylson, J.

MEMORANDUM RE: MOTION TO DISMISS

Presently before the Court is Defendant's Motion to Dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Plaintiff has filed suit against his prior employer alleging claims of racial discrimination, hostile work environment, retaliatory discharge, and wrongful discharge under various state and federal laws. For the reasons discussed below, this Court will deny the Motion with respect to all claims except the state wrongful discharge claim, which the Court will dismiss.

I. Background Information

A. Facts and Allegations in the Complaint

Plaintiff, Lynn B. Thomas, alleges that he worked as a butcher for Defendant, Pathmark Stores, Inc. ("Pathmark" or "Defendant"), from July 2, 1994 until his termination on June 26, 2006. Throughout that time, Plaintiff worked at various Pathmark locations in Philadelphia and in Wilmington, Delaware.

Plaintiff asserts that on Saturday June 10, 2006 he witnessed Tommy Vince Jeppi, the Meat Manager to whom Plaintiff reported at the Glenolden, Pennsylvania store, "slicing boneless chicken on a meat slicer without first cleaning and sanitizing the meat slicer." (Compl. ¶ 17.) Plaintiff suggests that Mr. Jeppi's conduct violated the Pennsylvania Food Code and Defendant's Meat Procedures Manual. (Compl. ¶ 26.) Plaintiff alleges that he reported this conduct to the Assistant Store Manager, Joe Edis, who then reported the incident to Store Assistant Manager, Robert Taylor. (Compl, ¶ 18.) Plaintiff further alleges that he had previously reported improper conduct by Mr. Jeppi after he observed Mr. Jeppi discarding and destroying "thousands of dollars worth of store merchandise without first recording it." (Compl. ¶ 19.)

According to Plaintiff, Mr. Jeppi was not disciplined for his conduct on June 10th, but on June 11, 2006, Mr. Taylor informed Plaintiff that Plaintiff had "'hurt himself"by reporting Mr. Jeppi's conduct. (Compl. ¶s 21, 22.) Plaintiff alleges that on June 13, 2006, Plaintiff was told he was suspended, pending an investigation, for using two Pathmark Advantage Club ("PAC") Cards, one of which belonged to a deceased former employee and one of which belonged to Plaintiff, to redeem coupons approximately three weeks earlier. (Compl. ¶s 23, 24.) On June 26, 2006, Plaintiff was terminated from his employment with Defendant. (Compl. ¶ 25.) Plaintiff alleges that but for his report of Mr. Jeppi's conduct, Plaintiff would not have been terminated based on the alleged PAC Card violation. (Compl. ¶ 26.)

Plaintiff further asserts that on or about March 7, 2000 Plaintiff had filed a Charge of Discrimination against Defendant with the United States Equal Employment Opportunity Commission ("EEOC"), which was cross-filed with the Pennsylvania Human Relations Commission ("PHRC"). (Compl. ¶ 27.) According to Plaintiff, the EEOC issued a determination of probable cause, but the Charge was later settled for a monetary amount. (Compl. ¶s 28, 29.) Plaintiff alleges that his filing of the earlier Charge and subsequent settlement were additional factors in Defendant's decision to terminate Plaintiff on June 26, 2006. (Compl. ¶ 30.)

Plaintiff also alleges that the earlier Charge and settlement were factors in Defendant's failure to promote Plaintiff to Assistant Meat Manager (Compl. ¶ 43.) According to Plaintiff, he submitted "Bid Cards" for the managerial position on several occasions and spoke with the Human Resources Department Director as well as another Human Resources Department official about the promotion, but his requests and application were ultimately denied. (Compl. ¶s 35-37.) Plaintiff alleges that during the EEOC investigation in the instant case, Defendant claimed Plaintiff's failure to take the Department Manager's Test was the reason for denying the promotion. (Compl. ¶ 38.) However, Plaintiff asserts that completion of that test was required only for promotions to the position of Department Manager and that another employee was promoted to Assistant Meat Manager without taking the Test. (Compl. ¶s 39, 40.)

Plaintiff further alleges that his race was a substantial factor in Defendant's decision to terminate Plaintiff and in its failure to promote Plaintiff to Assistant Meat Manager. (Compl. ¶s 33, 42.) Plaintiff suggests that other Pathmark employees have committed PAC Card violations but either were not discharged or their discharges were reinstated. (Compl. ¶ 31.) Plaintiff alleges that the only significant difference between those employees and Plaintiff is that the other employees are all Caucasian while Plaintiff is African-American. (Compl. ¶ 32.) Similarly, Plaintiff alleges his race was a substantial motivating factor in denying the promotion and asserts that the only significant difference between Plaintiff and the other employee who was promoted to Assistant Meat Manager is race, as Plaintiff is African-American and the other employee is Caucasian. (Compl. ¶s 41, 42.)

Finally, Plaintiff alleges that while he worked in Defendant's stores he was subjected to racial harassmentand a racially hostile work environment. (Compl. ¶ 45.) Specifically, Plaintiff contends that he was subjected to such treatment by the Assistant Store Manager, Store Manager, and other store employees while working at a store on Cottman Avenue in Philadelphiaand by Mr. Jeppi, the Meat Manager, at the store in Glenolden, Pennsylvania. (Compl. ¶s 45, 46.)Plaintiff alleges that such harassment included discrimination in the terms, conditions, and privileges of employment as well as retaliation for the earlier Charge filed with the EEOC. (Compl. ¶s 47-48.) Plaintiff alleges he reported this harassment to management but management failed to take corrective action. (Compl. ¶ 49.)

As a result of the actions of Defendant, Plaintiff alleges he has "suffered personal and psychological injuries for which he as [sic] sought and will continue to require professional care, personal embarrassment, professional setbacks, injury to his reputation and good name, personal pain, suffering and humiliation, all of which will continue to deleteriously affect him for an indefinite period of time in the future, to his great detriment and loss."(Compl. ¶ 51.)

B. Procedural History

1. EEOC Proceedings

Plaintiff filed a Charge of Discrimination with the EEOC on April 4, 2007. (Compl. ¶ 64). On June 11, 2008, the EEOC issued its Determination, in which it concluded that Plaintiff was not retaliated against for filing and settling the earlier Charge. (Compl., Ex. C.) However, the EEOC did determine that Plaintiff was subjected to discriminatory treatment and terminated due to his race, as evidenced by Defendant's different treatment of a white employee who also misused the PAC card. (Id.) The EEOC then issued a Notice of Right to Sue on June 19, 2008. (Compl., Ex. A.)

2. State Court Suit

Plaintiff filed suit in the Court of Common Pleas for the County of Philadelphia on June 23, 2008. (See Doc. No. 1.) Plaintiff's Complaint included eleven counts:

Count I Wrongful discharge claim under state common law Count II Improper Retaliation claim under Title VII (42 U.S.C. § 2000(e))*fn1 Count III Racial Discrimination claim under Title VII Count IV Hostile Work Environment claim under Title VII Count V Improper retaliation ...


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