United States District Court, District of Columbia
JOSE G. APOLLO, SR., Plaintiff,
BANK OF AMERICA, N.A., et al., Defendants.
P. Mehta United States District Judge.
Jose G. Apollo, Sr., who is proceeding pro se, brings this
action against Defendants Bank of America, N.A., and three of
its individual employees, Barry P. James, Nancy Mejia, and
Alexandria Scudder. Though far from a model of clarity,
Plaintiff's “Second Re-Amended Complaint”
alleges, in sum and substance, that Defendants discriminated
against him based on his race when, on August 3, 2016, they
threw him out of the Bank of America branch office located in
Dupont Circle. See generally Second Re-Amended
Complaint, ECF No. 11. Plaintiff asserts claims of
discrimination under 41 U.S.C. §§ 1981 and 1985(3),
and a common law claim of intentional infliction of emotional
distress. See Id. at 2. Before the court is
Defendants' Motion to Dismiss the Second Amended
Complaint. See Defs.' Mot. to Dismiss, ECF No.
12; Defs.' Mem. in Support of Mot. to Dismiss, ECF No.
12-1 [Defs.' Mem.]. For the reasons that follow,
Defendants' Motion is granted in part, denied in part,
and deferred in part.
first assert that Plaintiff's discrimination claim under
Section 1981 fails because Plaintiff has not “allege[d]
any facts plausibly supporting a minimal inference of
discriminatory motivation.” Defs.' Mem. at 3. To
satisfy the pleading standard of Federal Rule of Civil
Procedure 8(a), a plaintiff asserting a claim of
discrimination need only allege facts that “give[ ]
[the defendant] fair notice of the basis for [the
plaintiff's] claims.” Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 514 (2002). In
Swierkiewicz, the Court held that a complaint
alleging national origin and age discrimination satisfied the
notice pleading requirement in which the plaintiff had
“detailed the events leading to his termination,
provided relevant dates, and included the ages and
nationalities of at least some of the relevant persons
involved with his termination.” Id. In light
of Swierkiewicz, “courts in this Circuit have
consistently recognized the ease with which a plaintiff
claiming discrimination can survive a motion to
dismiss.” Fennell v. AARP, 770 F.Supp.2d 118,
127 (D.D.C. 2011) (cleaned up).
Section 1981 claim satisfies this low pleading bar, except
with respect to Defendant James. The Second Re-Amended
Complaint details the allegedly discriminatory act (throwing
Plaintiff out of the bank), who participated in that act
(Mejia and Scudder), and where and when it occurred (the
Dupont Circle Bank of America branch on August 3, 2016).
See Second Re-Am. Compl. at 2-8. Moreover, Plaintiff
makes specific factual allegations that, if presumed to be
true, support a plausible inference of race discrimination,
including harassing phone calls by Mejia, denial of bank
services for false reasons, and an unceremonious removal from
the bank's premises. See id. at 5-7. It is
immaterial that the court believes Plaintiff's prospect
of “a recovery is very remote and unlikely.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)
(internal citation omitted). It is sufficient, at this stage,
that Plaintiff has alleged facts that “raise [his]
right to relief above the speculative level.”
Id. at 555. He therefore has satisfied the
“short and plain statement” requirement of Rule
court reaches a different conclusion as to Defendant James.
The only allegations that Plaintiff makes against James is
that James failed to take disciplinary action against Mejia
and Scudder and that James told Plaintiff that he could go to
another Bank of America branch. Second Re-Am. Compl. at 9. In
this court's view, James' mere failure to act in
response to an alleged discriminatory act is not enough to
give rise to plausible inference of discriminatory intent as
to him. Therefore, Plaintiff fails to state a claim under
Section 1981 against James.
Defendants argue that Plaintiff's Section 1985(3)
conspiracy claim must be dismissed because, under the
intracorporate conspiracy doctrine, Bank of America cannot
conspire with its employees to violate the civil rights laws.
Defs.' Mem. at 4. Whether the intracorporate conspiracy
doctrine applies to civil rights conspiracies is an open
question in this Circuit. See Bowie v. Maddox, 642
F.3d 1122, 1130-31 (D.C. Cir. 2011); see also Ziglar v.
Abbasi, 137 S.Ct. 1843, 1868 (2017) (citing
Bowie as setting forth the circuits' varying
approaches on the question and refraining from
“approving or disapproving of the
intracorporate-conspiracy doctrine's application in the
context of an alleged [Section] 1985(3) violation”). As
the survey of cases in Bowie demonstrates, the
various circuit courts have taken differing approaches to the
question. See Bowie, 642 F.3d at 1130-31.
The Circuit in Bowie, however, declined to resolve
the issue because the district court had not expressly
reached the issue. Id. This court does the same. The
court is not satisfied with the parties' briefing on
whether the intracorporate conspiracy doctrine applies to
cases under Section 1985(3). Defendant simply assumes that
the doctrine applies, whereas Plaintiff ignores it
altogether. Given the complexity of the question and the fact
that the scope of discovery will not be impacted by deferring
a decision on Plaintiff's Section 1985(3) claim, the
court will await more fulsome briefing on the question and
resolve it in the context of summary judgment. Cf. Glymph v.
District of Columbia, 180 F.Supp.2d 111, 115 (D.D.C.
2001) (deferring decision on motion to dismiss Section 1981
claim due to “inadequate briefs”).
Defendant maintains that Plaintiff has failed to make out a
common law claim of intentional infliction of emotional
distress (IIED). The court agrees. Under District of Columbia
law, an IIED claim requires a showing of “extreme and
outrageous” conduct. See Kotsch v. District of
Columbia, 924 A.2d 1040, 1046 (D.C. 2007). This is an
“exceptionally demanding” standard. See
Bonner v. S-Fer Int'l, Inc., 207 F.Supp.3d 19, 25
(D.D.C. 2016). Although “[r]acial discrimination can
amount to extreme or outrageous conduct, ” Park v.
Hyatt Corp., 436 F.Supp.2d 60, 65 (D.D.C. 2006), that is
typically only the case where there is a “pattern of
harassment, ” as opposed to “a few isolated
incidents, ” Paul v. Howard Univ., 754 A.2d
297, 308 (D.C. 2000). Id. Here, Plaintiff has
alleged experiencing, at most, a few occasions of insulting
conduct, but not the kind of pattern of discriminatory
behavior required to give rise to a plausible IIED claim.
See Id. Plaintiffs IIED claim is therefore
foregoing reasons, Defendants' Motion to Dismiss is
granted in part, denied in part, and deferred in part.
Plaintiffs Section 1981 claim may proceed against all
Defendants except James. Plaintiffs IIED claim is dismissed.
In addition, the court defers ruling on whether to dismiss
Plaintiffs Section 1985(3) claim.
 The court may not have to resolve the
matter if Plaintiff cannot survive summary judgment on his
underlying Section 1981 claim. For instance, the court notes
that it is unclear whether an essential element of a Section
1981 claim is present in this case: the existence of an
impaired contractual relationship. See Domino's
Pizza, Inc. v. McDonald, 546 U.S. 470, 476 (2006). As