Hamed v . Ames Dept. Store CV-95-504-SD 05/13/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Audu Hamed
v. Civil N o . 95-504-SD
Ames Department Store; Zayre Central Corporation
O R D E R
In this civil action, plaintiff Audu Hamed1 brings a multi-
count discrimination suit against his former employer Zayre
Central Corporation and its parent corporation Ames Department Stores, Incorporated.2
Presently before the court is defendants' motion to dismiss, to which plaintiff has objected, and defendants have replied thereto. Also before the court is plaintiff's motion to supplement the record, which seeks to introduce the right-to-sue
1 The court notes that plaintiff was formerly known by the name Otasowie Ojo, but has since changed his name to Audu Hamed. Both of plaintiff's discrimination charges, as well as the right- to-sue notices, have been either filed or issued in the name of Audu Hamed. 2 Plaintiff originally filed suit against Ames only, but has since filed an amended complaint which names both Zayre and Ames. For the purposes of the instant proceedings, both defendants shall be singly identified by the court as "Ames". letter that correlates to his December 6, 1994, charge of
discrimination. Defendants have objected to such relief.
Background
Plaintiff Audu Hamed began his employment relationship with
Ames on August 1 , 1989. Amended Complaint ¶ 7 . Hired as a store
detective, Hamed was trained in Ames' Woburn, Massachusetts,
store and was thereafter assigned to its Waltham, Massachusetts,
store. Id. Between 1989 and 1992, plaintiff worked at
defendants' stores in Cambridge, Roxbury, and Saugus,
Massachusetts. Id. ¶ 8 .
Hamed maintains that Ames has established "a pattern and
practice of favoring white employees over African American
employees in promotions to senior detective and managerial
positions." Id. ¶ 1 2 . Plaintiff wrote to Ames' chief executive
officer sometime in 1992 to complain "about his failure to be
promoted." Id. ¶ 1 3 . Although this action was allegedly met
with displeasure by plaintiff's immediate supervisors, see id. ¶¶
14-15, plaintiff did receive a promotion on about November 2 2 ,
1993, to the position of senior store detective, id. ¶ 1 7 .
Notwithstanding such promotion, plaintiff asserts that "on
account of his race and origin, he was not permitted by M r . Tom
Jeffrey, his supervisor, to carry out many of the
2 responsibilities of his position, including having input in the
selection and training of new store detectives at his store."
Id.
Between June 1992 and October 1994, Hamed was transferred
three times, the first being from defendants' Roxbury store to
one in Manchester.3 Id. With the closure of defendants' Manchester store, plaintiff was then transferred to defendants'
store in Salem, New Hampshire, and thereafter to Ames' Seabrook,
New Hampshire, store. Id. ¶¶ 1 6 , 2 0 .
Hamed asserts that his transfer to the Seabrook store was
motivated by discriminatory animus regarding his race and
national origin, id. ¶ 2 3 , and further that such transfer
occurred in contravention of defendants' alleged "policy against
assigning detectives to stores more than 35 miles from their
home," id. ¶ 2 1 . Finally, when plaintiff attempted to return to
work following a medical leave of absence, the alleged failure of
plaintiff and Ames personnel to arrange a mutually acceptable
work schedule culminated in plaintiff's termination on January
1 8 , 1995. Id. ¶¶ 27-28.
Plaintiff has lodged two separate complaints against Ames
with the New Hampshire Commission for Human Rights (NHCHR). The
3 The court notes that the pleadings do not indicate whether this store is in Manchester, Massachusetts or New Hampshire.
3 first charge, NHCHR number 16D950038, was filed on December 6,
1994, and alleges discrimination based on race and national
origin. See December 6, 1994, Charge of Discrimination (attached
to Defendants' Motion as Exhibit 6 ) . The discrimination alleged
in this charge is stated to have taken place on May 1 , 1993, at
the earliest, and by September 7 , 1994, at the latest. Id. A Notice of Right to Sue letter based on this charge was issued on
February 5 , 1996. Plaintiff filed a second charge of
discrimination, NHCHR number 16D950109, on March 3 1 , 1995,
asserting discrimination in his termination based on race,
national origin, retaliation, and New Hampshire Revised Statutes
Annotated 354-A. See March 3 1 , 1995, Charge of Discrimination
(attached to Defendants' Motion as Exhibit 5 ) . The
discriminatory conduct alleged therein is stated to have taken
place between January 17 and 1 8 , 1995. Id. A Notice of Right to
Sue letter was issued thereafter on September 1 1 , 1995.
Commencement of this federal action followed on October 1 7 , 1995.
1. The Motion to Dismiss Standard
The task of a court presented with a motion to dismiss filed
under Rule 12(b)(6), Fed. R. Civ. P., "is necessarily a limited
one. The issue is not whether a plaintiff will ultimately
prevail but whether the claimant is entitled to offer evidence to
4 support the claims." Scheuer v . Rhodes, 416 U.S. 2 3 2 , 236
(1974). Thus, the court takes all of plaintiff's factual
averments as true and indulges every reasonable inference in
plaintiff's favor. Talbott v . C.R. Bard, Inc., 63 F.3d 2 5 , 27
(1st Cir. 1995), petition for cert. filed, 64 U.S.L.W. 3593 (U.S.
Feb. 1 6 , 1996) (No. 95-1321); Dartmouth Review v . Dartmouth College, 889 F.2d 1 3 , 16 (1st Cir. 1989).
2. The Merits
Plaintiff's amended complaint sets forth four separate counts, of which Count I seeks recovery under 42 U.S.C. § 1981 for race-based discrimination, and Counts II-IV seek recovery under 42 U.S.C. § 2000e, et seq., for impermissible discrimination on account of race, national origin, and
retaliation, respectively. Plaintiff sets these counts forth in the last four paragraphs of the amended complaint, utilizing the preceding thirty-five paragraphs to supply the underlying facts.
Defendants' motion seems to take issue with this manner of complaint construction, and essentially seeks the court's assistance in parsing the facts and compartmentalizing same with the appropriate cause of action. This the court declines to d o , and accordingly denies defendants' motion in its entirety.
5 In so ruling, the court pauses to note that the motion sub judice is one based upon Rule 12(b)(6), Fed. R. Civ. P., for failure to state a claim. Each count set forth in plaintiff's amended complaint is supported by the requisite factual allegations and thus survives the instant motion as a result. Whatever arguments defendants may have regarding plaintiff's ability to recover for some or all of the injustices alleged, a matter the court affirmatively avoids at this juncture, are more properly raised in a different motion and at a different time.
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Hamed v . Ames Dept. Store CV-95-504-SD 05/13/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Audu Hamed
v. Civil N o . 95-504-SD
Ames Department Store; Zayre Central Corporation
O R D E R
In this civil action, plaintiff Audu Hamed1 brings a multi-
count discrimination suit against his former employer Zayre
Central Corporation and its parent corporation Ames Department Stores, Incorporated.2
Presently before the court is defendants' motion to dismiss, to which plaintiff has objected, and defendants have replied thereto. Also before the court is plaintiff's motion to supplement the record, which seeks to introduce the right-to-sue
1 The court notes that plaintiff was formerly known by the name Otasowie Ojo, but has since changed his name to Audu Hamed. Both of plaintiff's discrimination charges, as well as the right- to-sue notices, have been either filed or issued in the name of Audu Hamed. 2 Plaintiff originally filed suit against Ames only, but has since filed an amended complaint which names both Zayre and Ames. For the purposes of the instant proceedings, both defendants shall be singly identified by the court as "Ames". letter that correlates to his December 6, 1994, charge of
discrimination. Defendants have objected to such relief.
Background
Plaintiff Audu Hamed began his employment relationship with
Ames on August 1 , 1989. Amended Complaint ¶ 7 . Hired as a store
detective, Hamed was trained in Ames' Woburn, Massachusetts,
store and was thereafter assigned to its Waltham, Massachusetts,
store. Id. Between 1989 and 1992, plaintiff worked at
defendants' stores in Cambridge, Roxbury, and Saugus,
Massachusetts. Id. ¶ 8 .
Hamed maintains that Ames has established "a pattern and
practice of favoring white employees over African American
employees in promotions to senior detective and managerial
positions." Id. ¶ 1 2 . Plaintiff wrote to Ames' chief executive
officer sometime in 1992 to complain "about his failure to be
promoted." Id. ¶ 1 3 . Although this action was allegedly met
with displeasure by plaintiff's immediate supervisors, see id. ¶¶
14-15, plaintiff did receive a promotion on about November 2 2 ,
1993, to the position of senior store detective, id. ¶ 1 7 .
Notwithstanding such promotion, plaintiff asserts that "on
account of his race and origin, he was not permitted by M r . Tom
Jeffrey, his supervisor, to carry out many of the
2 responsibilities of his position, including having input in the
selection and training of new store detectives at his store."
Id.
Between June 1992 and October 1994, Hamed was transferred
three times, the first being from defendants' Roxbury store to
one in Manchester.3 Id. With the closure of defendants' Manchester store, plaintiff was then transferred to defendants'
store in Salem, New Hampshire, and thereafter to Ames' Seabrook,
New Hampshire, store. Id. ¶¶ 1 6 , 2 0 .
Hamed asserts that his transfer to the Seabrook store was
motivated by discriminatory animus regarding his race and
national origin, id. ¶ 2 3 , and further that such transfer
occurred in contravention of defendants' alleged "policy against
assigning detectives to stores more than 35 miles from their
home," id. ¶ 2 1 . Finally, when plaintiff attempted to return to
work following a medical leave of absence, the alleged failure of
plaintiff and Ames personnel to arrange a mutually acceptable
work schedule culminated in plaintiff's termination on January
1 8 , 1995. Id. ¶¶ 27-28.
Plaintiff has lodged two separate complaints against Ames
with the New Hampshire Commission for Human Rights (NHCHR). The
3 The court notes that the pleadings do not indicate whether this store is in Manchester, Massachusetts or New Hampshire.
3 first charge, NHCHR number 16D950038, was filed on December 6,
1994, and alleges discrimination based on race and national
origin. See December 6, 1994, Charge of Discrimination (attached
to Defendants' Motion as Exhibit 6 ) . The discrimination alleged
in this charge is stated to have taken place on May 1 , 1993, at
the earliest, and by September 7 , 1994, at the latest. Id. A Notice of Right to Sue letter based on this charge was issued on
February 5 , 1996. Plaintiff filed a second charge of
discrimination, NHCHR number 16D950109, on March 3 1 , 1995,
asserting discrimination in his termination based on race,
national origin, retaliation, and New Hampshire Revised Statutes
Annotated 354-A. See March 3 1 , 1995, Charge of Discrimination
(attached to Defendants' Motion as Exhibit 5 ) . The
discriminatory conduct alleged therein is stated to have taken
place between January 17 and 1 8 , 1995. Id. A Notice of Right to
Sue letter was issued thereafter on September 1 1 , 1995.
Commencement of this federal action followed on October 1 7 , 1995.
1. The Motion to Dismiss Standard
The task of a court presented with a motion to dismiss filed
under Rule 12(b)(6), Fed. R. Civ. P., "is necessarily a limited
one. The issue is not whether a plaintiff will ultimately
prevail but whether the claimant is entitled to offer evidence to
4 support the claims." Scheuer v . Rhodes, 416 U.S. 2 3 2 , 236
(1974). Thus, the court takes all of plaintiff's factual
averments as true and indulges every reasonable inference in
plaintiff's favor. Talbott v . C.R. Bard, Inc., 63 F.3d 2 5 , 27
(1st Cir. 1995), petition for cert. filed, 64 U.S.L.W. 3593 (U.S.
Feb. 1 6 , 1996) (No. 95-1321); Dartmouth Review v . Dartmouth College, 889 F.2d 1 3 , 16 (1st Cir. 1989).
2. The Merits
Plaintiff's amended complaint sets forth four separate counts, of which Count I seeks recovery under 42 U.S.C. § 1981 for race-based discrimination, and Counts II-IV seek recovery under 42 U.S.C. § 2000e, et seq., for impermissible discrimination on account of race, national origin, and
retaliation, respectively. Plaintiff sets these counts forth in the last four paragraphs of the amended complaint, utilizing the preceding thirty-five paragraphs to supply the underlying facts.
Defendants' motion seems to take issue with this manner of complaint construction, and essentially seeks the court's assistance in parsing the facts and compartmentalizing same with the appropriate cause of action. This the court declines to d o , and accordingly denies defendants' motion in its entirety.
5 In so ruling, the court pauses to note that the motion sub judice is one based upon Rule 12(b)(6), Fed. R. Civ. P., for failure to state a claim. Each count set forth in plaintiff's amended complaint is supported by the requisite factual allegations and thus survives the instant motion as a result. Whatever arguments defendants may have regarding plaintiff's ability to recover for some or all of the injustices alleged, a matter the court affirmatively avoids at this juncture, are more properly raised in a different motion and at a different time. At this stage of the proceedings, however, the court finds and rules that plaintiff's amended complaint passes muster.
3. Plaintiff's Motion to Supplement, document 18
Plaintiff's motion to supplement the record, introducing the
February 5 , 1996, right-to-sue letter, is herewith granted over
defendants' objection.
In making such a ruling, the court notes that this is not a
circumstance where a single charge of discrimination had been
filed and plaintiff then sought to commence a federal civil
action prior to exhausting his administrative remedies; i.e.,
prior to obtaining a right-to-sue letter. Rather, Hamed filed
two charges of discrimination, but the right-to-sue letter
ultimately obtained erroneously referenced only the latter of the
6 two charges. Upon request of counsel, the EEOC corrected the
alleged oversight and issued a second right-to-sue letter.
Properly in this federal court on the one charge, the court
declines to require plaintiff to needlessly jump through further
procedural hoops on account of the EEOC's purported inadvertence
or oversight.
Conclusion
For the reasons set forth herein, defendants' motion to
dismiss (document 4 ) is denied, and plaintiff's motion to
supplement record (document 18) is granted.
SO ORDERED.
Shane Devine, Senior Judge United States District Court
May 1 3 , 1996
cc: H . Jonathan Meyer, Esq. Richard V . Wiebusch, Esq.