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Johnson v. Autozone

United States District Court, W.D. Pennsylvania

May 21, 2018

TIMOTHY JOHNSON, Plaintiff,
v.
AUTOZONE, Defendant.

          OPINION RE: ECF NO. 73

          MAUREEN P. KELLY CHIEF UNITED STATES MAGISTRATE JUDGE.

         Presently before the Court is Defendant Autozone's Partial Motion to Dismiss Plaintiffs Second Amended Complaint. ECF No. 73. For the reasons that follow, the Partial Motion to Dismiss will be granted.

         I. PROCEDURAL HISTORY

         Plaintiff Timothy Johnson ("Plaintiff) proceeding pro se, commenced this case on August 9, 2016. ECF No. 1. On April 10, 2017, Plaintiff, then counseled, filed an Amended Complaint. ECF No. 44. On April 25, 2017, Defendant Autozone ("Defendant") filed a Partial Motion to Dismiss and a Brief in support. ECF Nos. 45-46. Also on April 25, 2017, Plaintiffs counsel moved to withdraw, citing irreconcilable differences with Plaintiff. ECF No. 47. This Court granted counsel's motion and stayed this case pending the entry of appearance of new counsel for Plaintiff. ECF No. 48.

         On June 19, 2017, Plaintiff moved for the appointment of counsel to represent him. ECF No. 49. On July 14, 2017, this Court granted Plaintiffs motion insofar as it granted Plaintiff counsel for the limited purpose of a Judicial Settlement Conference. ECF No. 53. On September 5, 2017, this Court conducted a Judicial Settlement Conference at which the case did not resolve. ECF No. 56. However, following the conference, the Court continued the stay of the case until November 6, 2017, to allow Plaintiff time to secure legal counsel. Id.

         On November 20, 2017, this Court conducted a Status Conference at which Plaintiff advised the Court that he was waiting to hear from attorneys regarding representation. ECF No. 64. The Court gave Plaintiff until December 20, 2017, to have new counsel enter an appearance or to notify the Court that he would be representing himself. Id. The Court additionally gave Plaintiff a deadline of January 12, 2018, to file a Second Amended Complaint or a response to Autozone's Partial Motion to Dismiss. Id.; ECF No. 65.

         On January 12, 2018, Plaintiff filed a Motion to Appear as Legal Representation. ECF No. 66. On January 16, 2018, this Court granted Plaintiffs Motion, permitting him to represent himself. ECF No. 67. Also on January 16, 2018, observing that Plaintiffs Motion to Appear as Legal Representation also sought an extension of time in which to file a Second Amended Complaint, the Court granted Plaintiff a final extension of time until January 30, 2018, in which to file a Second Amended Complaint. ECF No. 68. The Court advised Plaintiff that failure to file an amended complaint by the January 30, 2018, deadline could result in dismissal of the case. Id.

         Plaintiff failed to file a Second Amended Complaint by January 30, 2018. On February 13, 2018, this Court filed a Rule to Show Cause why this action should not be dismissed for Plaintiffs failure to file a Second Amended Complaint or a response to the Partial Motion to Dismiss. ECF No. 69. The Court advised Plaintiff that failure to respond would result in dismissal of this action. Id. The Show Cause Response was due on February 27, 2018. Id., On February 28, 2018, Plaintiff filed a Second Amended Complaint. ECF No. 71. On March 15, 2018, Autozone filed a Partial Motion to Dismiss and a Brief in support. ECF Nos. 73-74. Also on March 15, 2018, this Court entered an order directing Plaintiff to respond to the Partial Motion to Dismiss by April 6, 2018. ECF No. 75. Plaintiff did not comply with that order.

         On April 17, 2018, this Court issued a Rule to Show Cause why this case should not be dismissed for Plaintiffs failure to file a Response to the Partial Motion to Dismiss as ordered. On May 1, 2018, Plaintiff finally filed a Response to the Order to Show Cause, ECF No. 77, and a Response to the Partial Motion to Dismiss, ECF No. 78.

         On May 8, 2018, Defendant filed a Reply Brief. ECF No. 79. The Partial Motion to Dismiss is now ripe for consideration.

         II. FACTUAL ALLEGATIONS

         In the operative Second Amended Complaint, Plaintiff makes the following allegations. Plaintiff, who is African American, was employed by Defendant from 2013 to September 2014. ECF No. 71 ¶¶ 12, 35. In July of 2014, Plaintiff was a manager of parts sales for Defendant. Id. At that time, Mike Pierce became manager of the store at which Plaintiff worked. Id. ¶ 13. Pierce immediately cut the hours of black employees and treated them as if they were incompetent. Id. ¶ 14. After Plaintiff reported the concerns of the black employees to Human Resources, Pierce told Plaintiff he had heard that Plaintiff was interested in transferring to another store. Id. Plaintiff was not interested in a transfer. Id.

         At a later date, Pierce accused Plaintiff of stealing store merchandise as a result of a transaction in which a customer purchased items with a gift card and did not receive a receipt indicating the amount of sale. Id. ¶¶ 19-23.

         During a 14-day period when Pierce was on vacation, Plaintiff was tardy arriving back at work after lunch. Id. ¶¶ 29, 31. Pierce did not "correct" the tardiness report in "the system, " although he had done so for white employees. Id. ...


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