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Fillmore v. AT&T Mobility Servs. LLC

United States District Court, D. Columbia

October 22, 2015


          Brian David Fillmore, Plaintiff, Pro se, Oreland, PA USA.

         For At& 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.


         JAMES 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.

         I. Background

         The 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 " the facts

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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,

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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).

         Fillmore 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 Complaint never

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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).

         The 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 ...

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