UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
JOSE G. APOLLO SR.,
Plaintiff,
v. Civil Action No. 17-1775
CVS PHARMACY; ALI ABDULKAREEM,
Defendants.
MEMORANDUM OPINION
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
1 When citing electronic filings throughout this Memorandum Opinion, the Court cites to the ECF header page number, not the original page number of the filed document. 2 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
3 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.
4 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.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
JOSE G. APOLLO SR.,
Plaintiff,
v. Civil Action No. 17-1775
CVS PHARMACY; ALI ABDULKAREEM,
Defendants.
MEMORANDUM OPINION
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
1 When citing electronic filings throughout this Memorandum Opinion, the Court cites to the ECF header page number, not the original page number of the filed document. 2 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
3 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.
4 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. Abdulkareem allegedly berated him as he attempted to
use the bathroom. Id. at 4–5. The Court discusses each claim in
5 turn.
A. Mr. Apollo Fails to State a Claim Under Federal Law
Mr. Apollo’s first claim is for discrimination under 42
U.S.C. § 1981. Section 1981 states in relevant part “[a]ll
persons within the jurisdiction of the United States shall have
the same right . . . to make and enforce contracts . . . as is
enjoyed by white citizens.” 42 U.S.C. § 1981(a). To state a
claim under Section 1981, a plaintiff not only “must initially
identify an impaired contractual relationship . . . under which
[he or she] has rights,” Domino's Pizza, Inc. v. McDonald, 546
U.S. 470, 476, (2006) (citation and internal quotation marks
omitted), but also must allege “some facts that demonstrate that
[his or her] race was the reason for the defendant's actions.”
Ridley v. VMT Long Term Care Mgmt., Inc., 68 F. Supp. 3d 88, 90
(D.D.C. 2014) (citations omitted). A “plaintiff cannot merely
invoke [his or her] race in the course of a claim's narrative
and automatically be entitled to pursue relief.” Bray v. RHT,
Inc., 748 F. Supp. 3, 5 (D.D.C. 1990). Rather, the complaint
must allege a racially discriminatory purpose for the
defendant’s misconduct. Ridley, 68 F. Supp. 3d at 90.
Mr. Apollo fails to state a claim because he has not
alleged any facts that show he was denied the right to enter
into or to enforce a contract as required by Section 1981. The
parties agree that Section 1981 protects the right to make and
6 enforce contracts free from discrimination. See Defs.’ Mot., ECF
No. 21-1, at 4; Pl.’s Opp’n., ECF No. 22 at 4 (conceding Section
1981 “only applies to the making of contracts”). Here, Mr.
Apollo has not alleged a loss of a contractual interest or the
ability to form a contract, but rather states he was denied
“services and benefits offered to customers and clients of CVS”
and “ordinary common privileges and services normally guaranteed
to all of CVS Pharmacy customers and clients.” Pl.’s Opp’n., ECF
No. 22, 11–12, 14. The facts Mr. Apollo alleges in his complaint
are that Mr. Abdulkareem shouted at him and knocked on the
restroom door when Mr. Apollo was using the facilities. Compl.,
ECF No. 20 at 3–4. Even accepting these allegations as true,
nothing about these facts give rise to a claim that CVS impeded
Mr. Apollo from enforcing or making a contract such that there
is an inference that the defendants could be liable under
Section 1981. 2
Mr. Apollo’s complaint fails to state a claim for a second,
independent, reason. Mr. Apollo does not provide any factual
2 In his opposition, Mr. Apollo claims the defendants owed him a fiduciary duty and violated that duty. Pl.’s Opp’n., ECF No. 22 at 11 (stating defendants “outrageously and callously” violated a fiduciary duty). There is no claim for a breach of a fiduciary duty in Mr. Apollo’s complaint. But even if there was, the case law is clear that ordinary business transactions do not create a fiduciary duty between a customer and a business. See, e.g., Magee v. AICPA, 245 F. Supp. 3d 106, 115 (D.D.C. 2017) (stating a fiduciary relationship exists where there “is a special confidential relationship that transcends an ordinary business transaction.”). 7 allegations that would lead to an inference that the defendants’
actions were motivated by his race. Rather he states in passing
that Mr. Abdulkareem was “without a doubt conducting some type
of racial profiling . . . where the restrooms [were] located.”
Compl., ECF No. 20 at 3. Nowhere in the complaint does Mr.
Apollo allege that Mr. Abdulkareem treated him differently
because of his race. Without a factual basis “to support an
inference of discrimination by [CVS] based on plaintiff’s race,
the complaint asserts nothing more than a ‘mere possibility of
misconduct.’” Ridley, 68 F. Supp. 3d at 90 (citing Iqbal, 556
U.S. at 679).
Mr. Apollo has failed to identify rights under a
contractual relationship he wishes to make or enforce, or
“injuries flowing from a racially motivated breach” of that
contractual relationship. Domino's Pizza, 546 U.S. at 479.
Accordingly, Mr. Apollo has failed to state a claim under 42
U.S.C. § 1981. 3
B. Mr. Apollo Fails to State a Claim Under D.C. Law
Mr. Apollo’s second claim is for intentional infliction of
emotional distress under D.C. law. To maintain a cause of action
3 Mr. Apollo cites the Fourteenth Amendment in his opposition to defendants’ motion for summary judgment, but this claim clearly fails because CVS is not a state actor. See Alridge v. Rite Aid of Wash., D.C., Inc., 146 F. Supp. 3d 242, 251 (D.D.C. 2015) (stating the Fourteenth Amendment “only applies to actions taken by state actors, not by private entities”). 8 for intentional infliction of emotional distress, District of
Columbia law “requires the plaintiff to show (1) extreme and
outrageous conduct by the defendant which (2) intentionally or
recklessly (3) cause[d] the plaintiff severe emotional
distress.” Ben-Kotel v. Howard Univ., 156 F. Supp. 2d 8, 14
(D.D.C. 2001) (citations and quotation marks omitted).
“Liability will be imposed only for conduct so outrageous in
character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community.” Thompson v. Jasas
Corp., 212 F. Supp. 2d 21, 27-28 (D.D.C. 2002) (citing Homan v.
Goyal, 711 A. 2d 812, 818 (D.C. 1998)) (internal quotation marks
omitted).
The conduct alleged by Mr. Apollo does not rise to the
level of “atrocious, and utterly intolerable in a civilized
community.” Id. Taken in the light most favorable to Mr. Apollo,
Mr. Abdulkareem banged and pulled on the restroom door, and
shouted at Mr. Apollo when he was inside and outside the
restroom. Compl., ECF No. 20 at 3. Mr. Abdulkareem continued to
chastise Mr. Apollo for using the restroom for more than fifteen
minutes, although Mr. Apollo was allegedly only in the bathroom
for no more than five. Id. Even if proven, Mr. Abdulkareem’s
actions do not approach the “extreme and outrageous” conduct
required to support an intentional infliction of emotional
9 distress claim. See Hollis v. Rosa Mexicano DC, LLC, 582 F.
Supp. 2d 22, 23 (D.D.C. 2008) (stating that defendants’ alleged
conduct in ignoring a black patron, denying her equal service at
restaurant and speaking to her in an abrasive and sharp-toned
manner was not sufficiently extreme and outrageous to state a
claim of intentional infliction of emotional distress).
Accordingly, the intentional infliction of emotional distress
claim is dismissed for failure to state a claim upon which
relief may be granted.
IV. Conclusion
For the foregoing reasons, the defendants’ motion to
dismiss is GRANTED. An appropriate Order of dismissal
accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan United States District Judge January 9, 2019