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Apollo v. CVS Pharmacy

United States District Court, District of Columbia

January 9, 2019

JOSE G. APOLLO SR., Plaintiff,


          Emmet G. Sullivan United States District Judge.

         Plaintiff 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 GRANTED.

         I. Background

         As this 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).

         Mr. 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 3.[1] 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.

         No more 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.

         Mr. 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.

         Dissatisfied 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 adjudication.

         II. Legal Standard

         Defendants 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, 286 (1986).

         A 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)).

         A 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, the-defendant-unlawfully-harmed-me accusation[s].” 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 equally unavailing.

         III. Discussion

         Mr. 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. ...

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