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Plummer v. Safeway, Inc.

United States District Court, District of Columbia

March 30, 2013

SAFEWAY, INC., Defendant

Page 192

MICHAEL PLUMMER, Plaintiff, Pro se, Washington, DC.

For SAFEWAY INC., Defendant: David E. Nagle, LEAD ATTORNEY, JACKSON LEWIS, LLP, Richmond, VA; Joel Jacob Borovsky, LEAD ATTORNEY, JACKSON LEWIS LLP, Reston, VA.


Page 193

JOHN D. BATES, United States District Judge.


Plaintiff Michael Plummer, proceeding pro se, brings this action against defendant Safeway, Inc., alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (" Title VII" ), and the District of Columbia Human Rights Act, D.C. Code § 2-1402.11(a)(1) (" DCHRA" ). Plummer contends that Safeway discriminated against him by failing to promote him on the basis of his race and retaliated against him by subsequently failing to promote him due to his Equal Employment Opportunity Commission (" EEOC" ) activity. Plummer also brings claims under District of Columbia law alleging civil conspiracy to defraud, aiding and abetting fraud, fraudulent misrepresentations, unfair and deceptive trade practices, unjust enrichment, breach of duty, breach of good faith and fair dealing, negligence, emotional distress, and violation of the District of Columbia Consumer Protection Procedures Act, D.C. Code § 28-3901 et seq. (" DCCPPA" ). Before the Court is Safeway's motion to dismiss all of Plummer's claims for failure to state a claim upon which relief can be granted. For the reasons discussed below, Safeway's motion will be granted in part and denied in part.


Plummer, an African American male, was hired as a Second Assistant Manager at Safeway in September 2008. See Am. Compl. [ECF 1] at 3.

Page 194

Plummer's complaint [1] alleges that he was discriminated and retaliated against, id. at 1, 3, but it gives no specific facts to support these claims.

However, the following set of facts can be gleaned from Plummer's opposition to the motion to dismiss. Sometime in 2008 Plummer applied for the Retail Leadership Development (" RLD" ) program. On December 23, 2008, he received a letter from Safeway notifying him that he had passed the first hurdle in the RLD selection process. See Pl.'s Opp'n to Def.'s Mot. to Dismiss [ECF 6] (" Pl.'s Opp'n" ) at 20. The letter outlined the next steps in the selection process, which were based on three evaluation factors. See id. Plummer was ultimately rejected from the program in March 2009. See id. at 29.

In November 2009, Plummer sent emails to various Safeway employees inquiring about possible promotions and lateral positions, including multiple field merchandiser positions. See id. at 21-22. He applied for a Non-Perishable Field Merchandiser position and was notified on December 8, 2009 that he had not been selected. See id. at 42. Plummer also applied for a Deli Field Merchandiser position and was rejected from that as well. See id. at 29. Craig Hanning, Plummer's manager, told Plummer that he did not have the basic qualifications for the position. Plummer disputes this, claiming that he did have the requisite qualifications based on his education and prior retail experience. See id. Plummer applied to the RLD program again in 2009, but was again rejected because of his purported lack of retail experience. See id.

On December 30, 2009, Plummer sent a letter to the EEOC. See id. at 29. The letter accused Hanning of violating Safeway's equal opportunity promotion and hiring policies. The letter also asserted that Safeway stores in Plummer's district recruited African Americans as Assistant Managers, but only selected white employees to be Store Managers. See id. Plummer attended an EEOC mediation meeting in April 2010. See id. at 32.

In mid-2010, Plummer applied for another Deli Field Merchandiser position and was again not selected for the promotion. See id. at 35. The September 2010 letter notifying Plummer of his non-promotion explained that he did not receive a minimum passing score in each of the four areas required for that position. See id. Plummer contends that this 2010 failure to promote was retaliation for his prior 2009 EEOC filings. See id. at 1. In December 2011, Plummer submitted an Investigation Response to the EEOC referencing his ongoing case and reiterating his concerns about Safeway's allegedly discriminatory promotion practice, calling it a " glass ceiling." See id. at 39. The response detailed the racial breakdown of Safeway Store Managers and Assistant Managers in Plummer's district. See id. According to an October 2010 directory, all but one of the seventeen Store Managers in Plummer's district were white (the remaining individual ...

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