United States District Court, D. Columbia
David Fillmore, Plaintiff, Pro se, Oreland, PA USA.
T Mobility Services LLC, Defendant: Carey Robert Butsavage,
LEAD ATTORNEY, BUTSAVAGE & ASSOCIATES, P.C., Washington, DC
USA; Nancy B.G. Lassen, LEAD ATTORNEY, WILLIG, WILLIAMS &
DAVIDSON, Philadelphia, PA USA.
E. BOASBERG, United States District Judge.
Pro se Plaintiff Brian David Fillmore worked for
Defendant AT& T Mobility Services LLC for nearly three years
between early 2011 and his termination in early 2014. He has
filed suit against both AT& T and his union, CWA Local 2336,
asserting separate claims of age discrimination against each.
Although AT& T has not yet been served, the union now moves
to dismiss the Complaint with prejudice, arguing that
Plaintiff has failed to state a claim upon which relief may
be granted. Agreeing that his allegations against the union
are insufficient, the Court will grant the Motion, but
dismiss that Defendant without prejudice.
Court, as it must in a case brought by a pro se
plaintiff, considers the facts as alleged in both the
Complaint and Plaintiff's Opposition to Defendant's
Motion to Dismiss. See Brown v. Whole Foods, 789
F.3d 146, 152 (D.C. Cir. 2015) (court should consider "
alleged in all of [a pro se plaintiff's]
pleadings" when evaluating a defendant's motion to
dismiss). According to the former, Fillmore began working for
AT& T as a Sales Support Representative (SSR) on January 16,
2011, and was promoted to Financial Service Representative
(FSR) two months later. See Compl. at 2. He initially worked
at the AT& T store at Potomac Yards in Alexandria, Virginia,
but transferred in March 2012 to the one in the Chinatown
section of Washington, where he served as that location's
FSR. See id. In May 2013, Plaintiff's supervisor -- the
Chinatown store manager -- mandated that he attend counseling
due to his inability to complete required job
responsibilities -- namely, an accurate count of phones and
other store inventory. See id. at 3; see also ECF No. 1 at 10
(Letter from Nickolas Parker). The document notifying
Plaintiff of the required counseling stated that failure to
improve his job performance could result in further
disciplinary procedures " up to and including
dismissal." Parker Letter at ECF p. 11. In August 2013,
AT& T informed its employees that all FSR positions and some
SSR positions would be eliminated in January 2014. See Compl.
at 3. On September 13, 2013,
the union notified affected employees that they would be
allowed to apply for open positions within AT& T and that
employees facing active disciplinary procedures would be
treated " as if they had clean discipline records."
Id.; see ECF No. 1 at 7 (Local 2336 Letter).
took short-term disability leave from his job between August
25, 2013, and October 1, 2013. See Compl. at 4. Upon
returning, he was again asked to conduct an inventory count
of available phones and reported over three hundred missing,
whereupon he was removed from inventory-counting
responsibilities. Id. On November 12, 2013, he
" informed [union] Executive VP Terrence
Richardson" that a job applicant from outside the
Company had been hired as an SSR at the Chinatown store while
Plaintiff was " in jeopardy of being laid off."
Id. Fillmore was suspended without pay on November
15, 2013, and subsequently " went to see Terrence &
filed a grievance." See id. The exact substance of
Plaintiff's grievance against AT& T is unclear and could
concern the hiring of an outside applicant for the available
SSR position, Plaintiff's suspension without pay, both
incidents, or something entirely different. Although the
explicitly mentions that he was subsequently terminated,
Fillmore attaches a document from the D.C. Department of
Employment Services, which is dated January 23, 2014, and
states that AT& T fired him " due to investigation for
'fraudulently altering phone counts.'" ECF No. 1
at 12 (D.C. DOES Determination by Claims Examiner).
Complaint alleges two separate counts of age discrimination,
one against AT& T and one against Local 2336. The sole
factual basis for the latter is unrelated to discharge;
instead, Fillmore alleges that when he was suspended without
pay, he " went to see Terrence & filed a grievance.
Terrence had a duty to act and chose not to." Compl. at
4. Nothing further is alleged, and only in his ...