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Islar v. Whole Foods Markets Group, Inc.

United States District Court, District of Columbia

November 17, 2016



          RANDOLPH D. MOSS United States District Judge.

         Plaintiff Gregory Islar was terminated from his position at a supermarket operated by Defendant Whole Foods Market Group, Inc. (“Whole Foods”). Islar now brings claims against Whole Foods for (1) violations of the Civil Rights Act of 1866, 42 U.S.C. § 1981; (2) breach of implied contract; and (3) negligent retention and supervision. See Dkt. 1-1 at 8-15. Whole Foods has moved to dismiss the third count for failure to state a claim under the rule of Griffin v. Acacia Life Insurance Co., 925 A.2d 564, 576-77 (D.C. 2007). Dkt. 4. For the reasons explained below, Whole Foods's motion will be granted.

         I. BACKGROUND

         For purposes of Whole Foods's motion to dismiss, the following allegations in Islar's complaint are taken as true. See, e.g., Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

         Islar, who is African American, was employed by Whole Foods between April 1996 and May 2013. Compl. ¶¶ 4, 6. Starting in 2005, he served as the Customer Service Team Leader at the Whole Foods supermarket in the Georgetown neighborhood of Washington, D.C. Id. ¶ 6. Islar was responsible for supervising cashiers, and reported to the Store Team Leader and Assistant Store Team Leaders. Id.

         On January 19, 2013, Whole Foods employee Jean Michel Bartolo was transferred to the Georgetown store in the position of Store Team Leader-that is, as Islar's supervisor. Id. ¶¶ 8, 9. Islar alleges that Bartolo “had developed a reputation for mistreating employees and terminating a large number of employees.” Id. ¶ 7. Just before Bartolo was set to begin, an Assistant Store Team Leader asked Islar to “get rid of” Islar's assistant, Kim Wilson, because Bartolo “did not get along with her.” Id. ¶¶ 7, 10. Wilson had previously filed a complaint against Bartolo. Id. ¶ 7. Islar refused, saying that he would not demote or terminate Wilson “because she was a good employee.” Id. ¶ 8.

         Upon Bartolo's arrival, he “[i]mmediately . . . began targeting [Islar] for termination.” Id. ¶ 9. Whole Foods policy provides that employees may be terminated after receiving three written reprimands. Id. Islar received his first such reprimand from Bartolo on January 21, 2013, just two days after Bartolo arrived. Id. A cashier had temporarily left her register to help other employees, and had done so at the request of an Assistant Team Leader. Id. Islar was not at work that day. Id. Nonetheless, Bartolo issued Islar a written reprimand “because the cashier [had] left the register.” Id. Islar received his second reprimand on February 4, 2013, the day after Superbowl Sunday. Id. ¶ 10. Islar had not worked that Sunday, but Bartolo reprimanded him anyway “because the check[-]out lines [had been] too long.” Id. According to Wilson, there had been “no lines for customers” that Sunday. Id.

         After receiving the second reprimand, Islar complained to the Regional Manager and Human Resources Manager that he “was being mistreated by” Bartolo. Id. ¶ 11. The HR Manager set up a meeting in the hopes of mediating the dispute. Id. During the meeting, Bartolo said that Islar “was not ready to be a team leader” and “should step down from his position.” Id. Islar responded that he had held that job for seven years and would not step down. Id. The dispute was not resolved. Id.

         On May 2, 2013, Islar received his third reprimand because “there were lines at cash registers.” Id. ¶ 12. Islar was immediately terminated. Id. Islar alleges that he at no point “engage[d] in any conduct which warranted discipline and/or termination.” Id. ¶ 18.

         According to Islar, Bartolo has terminated approximately twenty African American employees at the Georgetown store since January 2013. Id. ¶ 13. Islar says these employees were written up for “insignificant issues, ” such as alleged failure to greet or smile at customers or because a customer complained about having to wait in line. Id. Minority employees were terminated as soon as they received their third written reprimand. Id. But Bartolo “did not terminate . . . non-African American employees for the same alleged infractions.” Id.

         On May 2, 2016, Islar filed the instant lawsuit against Whole Foods in D.C. Superior Court. Dkt. 1 at 1. His complaint includes three counts. Count I alleges that Bartolo violated the Civil Rights Act of 1866, 42 U.S.C. § 1981, by applying the Whole Foods discipline policy “in an arbitrary and discriminatory manner, ” by demanding that Islar step down, and by retaliating against Islar after Islar complained about Bartolo's conduct. Compl. ¶¶ 15-21. Count II alleges that Bartolo violated the Whole Foods employee handbook, which Islar says constitutes a breach of an implied contract. Id. ¶¶ 22-25. And Count III alleges that Whole Foods negligently retained and supervised Bartolo, in that Whole Foods knew about Bartolo's “mistreatment of employees, ” his “arbitrary and discriminatory enforcement” of the disciplinary policy, and his “disproportionate termination of minority employees, ” but failed to correct the behavior. Id. ¶¶ 26-30. On June 13, 2016, Whole Foods removed the case to this Court, invoking the Court's diversity and federal question jurisdiction. Dkt. 1 at 3 (citing 28 U.S.C. §§ 1331, 1332).

         Whole Foods's motion to dismiss Count III of Islar's complaint-i.e., the count for negligent retention and supervision-is now before the Court. Dkt. 4.


         A party moving to dismiss a complaint under Rule 12(b)(6) bears the burden of showing that the complaint “fail[s] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6); see also Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Court need not accept as true any legal conclusions disguised as factual allegations, any “‘naked assertion[s]' devoid of ‘further factual enhancement, '” or any “formulaic recitation[s] of the elements of a cause of action.” Id. (quoting Twombly, 550 ...

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