United States District Court, District of Columbia
JOSE G. APOLLO SR., Plaintiff,
CVS PHARMACY; ALI ABDULKAREEM, Defendants.
G. Sullivan United States District Judge.
Jose Apollo, Sr., brings this action against CVS Pharmacy
(“CVS”) and Ali Abdulkareem, a manager at CVS,
alleging, inter alia, discrimination in violation of
42 U.S.C. § 1981, and a claim of intentional infliction
of emotional distress under District of Columbia law. Pending
before the Court is defendants' motion to dismiss for
failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6). For the reasons that follow,
defendants' motion to dismiss is
case is before the Court on the defendants' motion to
dismiss, the Court takes the following facts alleged in Mr.
Apollo's complaint to be true and grants Mr. Apollo
“the benefit of all inferences that can be derived from
the facts alleged.” See Kowal v. MCI Comm'cns
Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
Apollo, an Afro-Latino man, walked into CVS in the summer of
2017 to purchase some items and decided that he would avail
himself of the restroom. Compl., ECF No. 20 at
He had to wait approximately ten minutes because a sanitation
worker was ensuring that the restroom was clean. Id.
The sanitation worker finished his job, apologized to Mr.
Apollo for the delay, and Mr. Apollo was able to use the
restroom. Id. Prior to entering the restroom,
however, there was a man watching Mr. Apollo while Mr. Apollo
waited for those ten minutes it took to get the restroom in
usable condition. Id. That man was the store
manager, Mr. Abdulkareem.
than five minutes after entering the restroom, Mr. Apollo
heard loud knocking on the door. Id. Someone was
“viciously pulling and knocking” on the door and
yelling “come on, you have been in there more than 15
minutes already.” Id. To which Mr. Apollo
“calmly replied . . . ‘I just got in here, not
even a good five minutes.'” Id. Unable to
use the restroom after this encounter, Mr. Apollo quickly
left to determine the identity of “the person that
cause[d] him such embarrassment and emotional
distress.” Id. To his surprise, he discovered
it was the store manager Mr. Abdulkareem. Id.
Abdulkareem continued to yell at Mr. Apollo once the latter
exited the restroom. Mr. Abdulkareem shouted “you have
been in there more than [fifteen] minutes[, ] this is not a
public restroom.” Id. at 3. Mr. Apollo
responded by producing his CVS membership cards to prove that
he was a client of the store and by requesting Mr.
Abdulkareem provide the name of his supervisor. Id.
at 4. Mr. Abdulkareem complied. Id. Ultimately, Mr.
Apollo received a written apology from the district manager
of the store. Id.
with just an apology, Mr. Apollo filed this law suit, pro
se, alleging violations of federal and state law and
stating that “he was discriminated when he was denied
services, outrageously denied access to the CVS customers
restrooms, and basically exited out of the store.”
Id. at 5. He requests five million dollars in
damages and a declaratory judgment that CVS and Mr.
Abdulkareem violated the law. Id. Defendants moved
to dismiss the complaint for failure to state a claim.
See Defs.' Mot., ECF No. 21. Mr. Apollo
responded to the motion, ECF No. 22, and the defendants have
filed their reply, ECF No. 24. The motion is ripe for
move to dismiss the complaint on the ground that the
complaint “fail[s] to state a claim upon which relief
can be granted.” Fed.R.Civ.P. 12(b)(6). A motion under
Rule 12(b)(6) tests the sufficiency of the complaint. See
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
“[T]he complaint is construed liberally in the
plaintiff['s] favor, and [the Court] grant[s the]
plaintiff[ ] the benefit of all inferences that can be
derived from the facts alleged.” Kowal, 16
F.3d at 1276. However, the Court is “not bound to
accept as true a legal conclusion couched as a factual
allegation.” Papasan v. Allain, 478 U.S. 265,
complaint survives a motion under Rule 12(b)(6) only if it
“contain[s] 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) (citation omitted). A claim is facially
plausible “when the plaintiff pleads factual content
that allows the court to draw [a] reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 556, (2007)). A complaint alleging facts which
are “merely consistent with a defendant's liability
. . . stops short of the line between possibility and
plausibility of entitlement to relief.” Id.
(citing Twombly, 550 U.S. at 557, (internal
quotation marks omitted)).
pro se complaint “must be held to less
stringent standards than formal pleadings drafted by lawyers,
” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(citation and internal quotation marks omitted), but it, too,
“must plead ‘factual matter' that permits the
court to infer ‘more than the mere possibility of
misconduct.'” Atherton v. District of Columbia
Off. of the Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009)
(quoting Iqbal, 556 U.S. at 679). Although detailed
factual allegations are not required at the pleading stage, a
complaint must offer more than “unadorned,
Iqbal, 556 U.S. at 678 (citations omitted). “A
pleading that offers ‘labels and conclusions' or
‘a formulaic recitation of the elements of a cause of
action will not do, '” id. (quoting
Twombly, 550 U.S. at 555), and a complaint which
merely “tenders ‘naked assertion[s]' devoid
of ‘further factual enhancement, '”
id. (quoting Twombly, 550 U.S. at 557), is
Apollo sues under two theories of liability. His first claim,
under federal law, is that the defendants discriminated
against him when they allegedly forced him out of the store
while he was trying to use the restroom in violation of 42
U.S.C. § 1981. Compl., ECF No. 20 at 5. His second
claim, under District of Columbia (“D.C.”) law,
is that the defendants inflicted extreme emotional distress,
pain, and mental anguish when Mr. ...