United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS United States District Judge.
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.
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).
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.
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.
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.
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.
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.
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.”
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. §§
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.
STANDARD OF REVIEW
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