United States District Court, W.D. Pennsylvania
OPINION RE: ECF NO. 73
MAUREEN P. KELLY CHIEF UNITED STATES MAGISTRATE JUDGE.
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.
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.
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
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
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.
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.
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.
8, 2018, Defendant filed a Reply Brief. ECF No. 79. The
Partial Motion to Dismiss is now ripe for consideration.
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.
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.
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. ...