United States District Court, E.D. Virginia, Richmond Division
December 15, 2016
KRISTIAN TAGUINOD, Plaintiff,
AMAZON.COM, INC., et al., Defendants.
MEMORANDUM OPINION (GRANTING DEFENDANTS* MOTION TO
DISMISS IN PART AND REMANDING THE CASE)
E. Hudson, United States District Judge
MATTER is before the Court on Defendants Amazon.com, Inc.
("Amazon"), Integrity Staffing Solutions, Inc.
("ISS"), and Mahmoud Omari's (collectively, the
"Defendants") Motion to Dismiss Pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6) (ECF No. 6),
and Defendant Mahmoud Omari's Motion for Judgment on the
Pleadings Pursuant to Federal Rule of Civil Procedure 12(c)
(ECF No. 8).
Defendants included an appropriate Roseboro Notice in both
motions, as required by Local Civil Rule 7(K) and the Fourth
Circuit's decision in Roseboro v. Garrison, 528
F.2d 309 (4th Cir. 1975).
parties have filed memoranda supporting their respective
positions. The Court will dispense with oral argument
because the facts and legal contentions are adequately
presented in the materials before the Court, and oral
argument would not aid in the decisional process. E.D. Va.
Local Civ. R. 7(J).
reasons stated herein, the Court will dismiss Counts IX, X,
and XI of Plaintiffs Complaint, which allege claims under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000, et seq. ("Title VH"). As the parties
are not diverse and those Counts are the only ones arising
under federal law, the Court finds that it lacks
subject-matter jurisdiction over the rest of Plaintiff s
claims. Therefore, the Court will REMAND this case to the
Circuit Court for the City of Richmond, Virginia, where
Plaintiff initially brought suit.
required by Rule 12(b)(6) of the Federal Rules of Civil
Procedure, the Court assumes Plaintiffs well-pleaded
allegations to be true and views all facts in the light most
favorable to him. T.G. Slater & Son v. Donald P.
& Patricia A. Brennan LLC, 385 F.3d 836, 841 (4th
Cir. 2004) (citing Mylan Labs, Inc. v. Matkari, 7
F.3d 1130, 1134 (4th Cir. 1993)). At this stage, the
Court's analysis is both informed and constrained by the
four corners of Plaintiff s Complaint. Viewed through
this lens, the facts are as follows.
around September 2014, Plaintiff, a Virginia citizen of
Filipino descent, began working as a "Stow
Associate" through ISS in the packaging department at
Amazon Fulfillment Center RIC2 in Chesterfield, Virginia.
(Compl. ¶ 1; ECF No. 1-1.) On January 29, 2015, Amazon
hired Plaintiff as a permanent employee in its receiving
department. (Id. ¶ 3.)
October 1, 2015, and December 22, 2015, Defendants Mahmoud
Omari and Malik Omari (collectively, the
"Omaris")-both citizens of Virginia-were Amazon
employees and worked alongside Plaintiff. (Id.
¶¶ 6-7.) During that time, Plaintiff summarily
contends that Mahmoud Omari harassed him by making derogatory
statements about his race and national origin. (Id.
¶¶ 8-9, 13.) The only racially tinged statement
that Plaintiff alleges Mahmoud Omari made was, "[Y]ou
philippinos [sic] are all alike and [too]... slow
for me." (Id. ¶ 13.) Also during that
period, Mahmoud Omari repeatedly went to Plaintiffs work
station asking for work and became angry when Plaintiff told
him that the work was not yet ready. (Id.
¶¶ 11-14.) Plaintiff filed verbal complaints with
his department supervisor, Kayla Laughlin, on a weekly basis
in response to this conduct. (Id. ¶ 179.)
December 22, 2015, Mahmoud Omari went to Plaintiffs work
station and demanded unfinished assembly line work.
(Id. ¶ 15.) After being told that it was not
ready, Mahmoud Omari began to argue with Plaintiff.
(Id. ¶ 16.) Plaintiff asserts that Mahmoud
Omari threatened to kill him and told Plaintiff that he would
be waiting outside to carry out his threat. (Id.
¶ 17.) Following the argument, Plaintiff again filed a
verbal complaint with his supervisor. (Id. ¶
35.) Laughlin told Plaintiff to go on a break, without taking
any action to reprimand Mahmoud Omari or protect Plaintiff.
his break, Plaintiff decided to go to his car in the Amazon
parking lot. (Id. ¶ 38.) The Omaris followed
him as he left the building and walked to his vehicle.
(Id. ¶ 45.) Plaintiff asserts that upon
reaching his car, the Omaris grabbed him, jumped on him,
punched him, and choked him. (Id. ¶ 50.) At
some point during the altercation, Plaintiff was able to
escape to his vehicle. (Id. ¶ 79.) While there,
Plaintiff grabbed a toy gun- which he admits "appear[ed]
to be a firearm"-pointed it at his assailants, and put
it in his pocket. (Id. ¶¶ 84, 87.) In
spite of this perceived threat, the Omaris continued to beat
him. (Id. ¶ 86.)
the altercation, the Omaris told a Chesterfield Police
Officer that Plaintiff had pointed a firearm at them.
(Id. ¶ 73.) Plaintiff was subsequently arrested
and charged pursuant to Va. Code § 18.2-282.
(Id. ¶ 99.) After reviewing video footage from
the Amazon parking lot, the Chesterfield General District
Court dismissed the charge. (Id.)
fired Plaintiff because of his involvement in the December
22, 2015, altercation. (Id. ¶ 187
("[P]laintiff['s] job was terminated on the basis of
misconduct for being in an altercation.").) Amazon did
not take any adverse employment action against the Omaris or
charge them with misconduct for the incident. (Id.
¶ 188, 190.)
filed an eleven-count Complaint against the Defendants and
Malik Omari in the Circuit Court of the City of Richmond,
Virginia, on September 29, 2016. The Defendants timely
removed the case to this Court on October 27, 2016. (ECF No.
1.) The Court finds that it has original subject-matter
jurisdiction over this action pursuant to 28U.S.C.
§§ 1331, 1367(a).
eleven counts, the Court will only address those that concern
matters of federal law: race and national origin
discrimination in violation of Title VII (Count IX);
harassment and the creation of a hostile work environment in
violation of Title VII (Count X); and retaliation in
violation of Title VII (Count XI).
LEGAL STANDARDS a. 12(b)(1)
motion to dismiss made pursuant to Federal Rule of Civil
Procedure 12(b)(1) challenges the court's jurisdiction
over the subject matter of the complaint. In resolving
motions to dismiss under Rule 12(b)(1), a court may consider
affidavits, depositions, or live testimony without converting
the motion into one for summary judgment. Williams v.
United States, 50 F.3d 299, 304 (4th Cir. 1995);
Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).
Furthermore, within the context of a Rule 12(b)(1) motion to
dismiss, a court may resolve factual questions to determine
whether it has subject-matter jurisdiction. Thigpen v.
United States, 800 F.2d 393, 396 (4th Cir. 1986),
overruled on other grounds, Sheridan v. United
States, 487 U.S. 392 (1988).
subject-matter jurisdiction implicates a federal court's
constitutional power to act, it may be raised at any time
either by the court sua sponte or by one of the
parties. Plyler v. Moore, 129 F.3d 728, 731 n.6 (4th
Cir. 1997). The burden of demonstrating subject-matter
jurisdiction resides with the Plaintiff. Richmond,
Fredericksburg & Potomac R.R. Co. v. United States,
945 F.2d, 765, 768 (4th Cir. 1991).
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of a complaint; importantly, it does not resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses." Republican Party of N.C.
v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citation
omitted). The Federal Rules of Civil Procedure
"require only 'a short and plain statement of the
claim showing that the pleader is entitled to relief, '
in order to 'give the defendant fair notice of what the
... claim is and the grounds upon which it rests.'"
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
A complaint need not assert "detailed factual
allegations, " but must contain "more than labels
and conclusions" or a "formulaic recitation of the
elements of a cause of action." Twombly, 550
U.S. at 555 (citations omitted). Thus, the "[f]actual
allegations must be enough to raise a right to relief above
the speculative level" to one that is "plausible on
its face, " rather than merely "conceivable."
Id. at 555, 570.
considering such a motion, a plaintiffs well-pleaded
allegations are taken as true and the complaint is viewed in
the light most favorable to the plaintiff. T.G.
Slater, 385 F.3d at 841 (citation omitted). Legal
conclusions enjoy no such deference. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). c. 12(c)
Rule of Civil Procedure 12(c) permits a party to move for
judgment on the pleadings at any time "[a]fter the
pleadings are closed-but early enough not to delay
trial." Fed.R.Civ.P. 12(c). The Fourth Circuit has held
that courts are to "apply the same standard for Rule
12(c) motions as for motions made pursuant to Rule
12(b)(6)." Burbach Broad. Co. v. Elkins Radio
Corp., 278 F.3d 401, 406 (4th Cir. 2002).
"Accordingly, [the Court] assume[s] the facts alleged in
the complaint are true and draw[s] all reasonable factual
inferences in [the non-moving party's] favor."
under Rule 12(c), "[j]udgment should be entered in favor
of the movant when the pleadings 'fail to state any
cognizable claim for relief, and the matter can, therefore,
be decided as a matter of law.'"
Bojorquez-Moreno v. Shores & Ruark Seafood Co.,
92 F.Supp.3d 459, 462 (E.D. Va. 2015) (quoting Thomas v.
Standard Fire Ins. Co., 414 F.Supp.2d 567, 570 (E.D. Va.
Liberal Construction of the Pro Se Plaintiffs
courts are not required to "conjure up questions never
squarely presented to them ... [or] construct full blown
claims from sentence fragments, " Beaudett v. City
of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985), pro
se complaints must be "liberally construed."
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However
"inartfully pleaded, "pro se complaints
must be held to less stringent standards than those drafted
by skilled lawyers. Id.
the standards of review presented and allowing the pro
se Plaintiff broad latitude in the construction of
his Complaint, the Court will address Counts IX, X, and XI as
they pertain to each Defendant.
standing to bring suit under Title VII, a plaintiff must
exhaust his or her administrative remedies by filing a
discrimination charge with the Equal Employment Opportunity
Commission ("EEOC"). Bryant v. Bell Atl. Ud.,
Inc., 288 F.3d 124, 132 (4th Cir. 2002); Smith v.
First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir.
2000). The purpose of this requirement is to put an employer
on notice of the charge, permit the EEOC to investigate, and
allow the parties to resolve the dispute without litigation.
See Miles v. Dell, Inc., 429 F.3d 480, 491 (4th Cir.
case, Plaintiff attached a copy of a Dismissal and Notice of
Rights ("Notice") from the EEOC as an exhibit to
his Complaint. (ECF No. 1-1.) The Notice makes a passing
reference to Amazon as a potential defendant. (See
id (copying an Amazon shareholder to the Notice).) But
any mention of ISS is conspicuously absent from the document.
(See id.) Therefore, the Court finds that it lacks
subject-matter jurisdiction over Plaintiffs Title VII claims
against ISS because a party not properly named in an EEOC
charge "may not be subsequently sued for alleged
discrimination." Carter v. Arlington Pub. Sch.
Sys., 82 F.Supp.2d 561, 567 (E.D. Va.
the Court will dismiss Counts IX, X, and XI against ISS
Defendant Mahmoud Omari
Fourth Circuit has made clear that "supervisors are not
liable in their individual capacities for Title VII
violations." Lissau v. Southern FoodServ., 159
F.3d 177, 180 (4th Cir. 1998); see also Lane v. Lucent
Techs., Inc., 388 F.Supp.2d 590, 595- 96 (M.D. N.C.
2005) (collecting cases and granting a motion to dismiss
Title VII claims that were asserted against individual
defendants). From this, the Court can reasonably conclude
that coworkers are also protected from liability for Title
VII violations. Stated succinctly, "Title VII...
foreclose[s] individual liability." Lissau, 159
F.3d at 180.
appears to concede this much in his Response. (See
Resp. 40 ("Plaintiff agrees that Mahmoud Omari in his
individual capacity may be dismiss[ed].").)
Nevertheless, Plaintiff still attempts to seek recovery from
Mahmoud Omari in his "official capacity."
(Id.) Because Mahmoud Omari was not Plaintiffs
employer, this argument is unavailing. See Lissau,
159 F.3d at 180-81.
Plaintiffs Title VII claims against his coworker fail as a
matter of law with no hope of being resuscitated. As such,
the Court will dismiss Counts IX, X, and XI against Mahmoud
Omari with prejudice.
initial matter, the Court concludes for the purpose of this
analysis that it has subject-matter jurisdiction over Counts
IX, X, and XI as they pertain to Amazon since Amazon was
named in the Notice. (ECF No. 1-1.) Moreover, the Court finds
that Amazon faces potential liability under Title VII as
Plaintiffs employer during the time that the alleged events
took place. (See Compl. ¶ 3 ("[O]n January
29, 2015, plaintiff was hired as a permanent employee by
the Court will address each Count against Amazon in turn.
Race or National Origin Discrimination (Count IX)
state a prima facie case of discrimination under
Title VII, a plaintiff must allege "(1) membership in a
protected class; (2) satisfactory job performance; (3)
adverse employment action; and (4) different treatment from
similarly situated employees outside the protected
class." Coleman v. Maryland Court of Appeals,
626 F.3d 187, 190 (4th Cir. 2010), aff'd, 132
S.Ct. 1327 (2012).
Plaintiffs allegations are sufficient to satisfy the first
and third prongs- he is of Filipino descent and was fired
from his position-the Court concludes that he has failed to
plead adequate facts to raise his assertion "above the
speculative level" under the second and fourth.
Twombly, 550 U.S. at 555.
claim in Count IX centers on the fact that he was fired for
misconduct based on the December 22, 2015, altercation, but
the Omaris-who are both white-were not. (Compl. ¶ 188.)
Significant to the Court's analysis, however, is the fact
that Plaintiff admits to violating Amazon's anti-violence
policy by grabbing the toy firearm during the altercation,
rendering his conduct unique among the participants. (Compl.
¶¶ 84, 87.)
of this information, the Court finds that he has failed to
allege facts that his job performance was
"satisfactory" or that he was treated differently
"from similarly situated employees outside the
protected class." Coleman, 626 F.3d at 190
the Court will dismiss Count IX against Amazon without
Hostile Work Environment (Count X)
state a claim for hostile work environment under Title VII,
Plaintiff must allege that: (1) he "experienced
unwelcome harassment"; (2) "the harassment was
based on his" race; (3) "the harassment was
sufficiently severe or pervasive to alter the conditions of
employment and create an abusive atmosphere"; and (4)
"that there is some basis for imposing liability
on" Amazon. Bass v. E.I. DuPont de Nemours &
Co., 324 F.3d 761, 765 (4th Cir. 2003). A review of
Plaintiff s Complaint reveals that he has, at a minimum,
failed to plead facts sufficient to satisfy the third prong
of the Bass analysis.
is considered sufficiently severe or pervasive to alter the
terms or conditions of the employment if a workplace is
'permeated with discriminatory intimidation, ridicule,
and insult.'" Pueschel v. Peters, 577 F.3d
558, 565 (4th Cir. 2009) (quoting Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21 (1993)). In this case,
Plaintiffs allegations that Amazon created a racially hostile
working environment turn on his conclusory claims that
Mahmoud Omari occasionally directed racial slurs at him.
(Compl. ¶¶ 13, 19.) The only specific statement
that Plaintiff pleads in support of this assertion is that
Mahmoud Omaris told him, "[Y]ou philippinos [sic]
axe all alike and [too]... slow for me." (Compl.
¶¶ 13, 19.)
alone, is facially inadequate to support a claim that Mahmoud
Oman's conduct was "sufficiently severe or pervasive
to alter the terms or conditions of the employment."
Pueschel, 577 F.3d at 565. Apart from the
inflammatory statements made immediately preceding the
altercation, Plaintiff does not allege any facts to support
his assertion that Mahmoud Omari's racially charged
epithets were physically threatening or humiliating to the
point that they impacted his ability to work. To the
contrary, Plaintiff states that he "had received several
production bonuses, outstanding evaluation[s] and [had been]
recommended for [a] promotion at the time of his discharge.
(Compl. ¶ 4.)
regrettable as the alleged comment is, it does not rise above
the level of a "mere offensive utterance" and is
insufficient to support a claim of hostile work environment.
See Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268,
271 (2001) ("[S]imple teasing, offhand comments, and
isolated incidents (unless extremely serious) will not amount
to discriminatory changes in the 'terms and conditions of
Fourth Circuit has reinforced this principle by
"recogniz[ing] that personality conflicts and unfair
treatment 'arise routinely in employment
relationships' and do not alone constitute a
discriminatory hostile work environment." Cox v.
Rumsfeld, 369 F.Supp.2d 748, 758 (E.D. Va. 2005)
(quoting Hawkins v. PepsiCo, Inc., 203 F.3d 274, 282
(4th Cir. 2000)).
the Court will dismiss Count X against Amazon without
Retaliation (Count XI)
state a prima facie case for retaliation under Title
VII, a plaintiff must allege "(1) engagement in a
protected activity; (2) adverse employment action; and (3) a
causal link between the protected activity and the employment
action." Coleman, 626 F.3d at 190.
discussed above, Plaintiff admits to engaging in conduct
sufficient to establish a clear basis for his termination,
thereby severing any potential allegation of a "causal
link" between a protected activity and his firing.
Plaintiffs assertions of Amazon's alleged race-based
retaliation amount to nothing more than pure speculation.
See Twombly, 550 U.S. at 555, 570.
the Court will dismiss Count XI against Amazon without
foregoing reasons, the Defendants' Motion to Dismiss and
Defendant Mahmoud Omari's Motion for Judgment on the
Pleadings will be GRANTED IN PART. (ECF Nos. 6, 8.)
Court will DISMISS Counts IX, X, and XI of Plaintiff s
Complaint without prejudice as to Defendants ISS and Amazon
and with prejudice as to Defendant Mahmoud Omari.
parties are not diverse and Counts IX, X, and XI are the only
ones alleging a federal question, the Court finds that it
lacks subject-matter jurisdiction over the rest of Plaintiffs
claims. Therefore, pursuant to 28 U.S.C. § 1367(c)(3),
the Court will REMAND this case to the Circuit Court for the
City of Richmond, Virginia, where Plaintiff initially brought
appropriate Order will accompany this Memorandum Opinion.
Clerk is DIRECTED to send a copy of this Memorandum Opinion
to all counsel of record and to Plaintiff, who is pro
 Defendant Mahmoud Omari filed an
Answer to the Complaint before the Defendants filed their
Motion to Dismiss. (ECF No. 1-2, at 4.)
 Plaintiff also filed suit against
Malik Omari, but he has not been served as of the date of
this Memorandum Opinion. (See Mem. in Supp. of the
Mot. Dismiss 4.) Since he is not presently a party to this
litigation, the Court will proceed in its analysis only with
regard to the Defendants, who have been properly
 Plaintiff improperly attempts to
bolster his initial allegations by introducing new or
modified facts in his Response Brief. The Court will only
consider those facts plead in the Complaint.
 Plaintiff attached as an exhibit to
his Response an unauthenticated document that he allegedly
filed with the EEOC, naming Amazon, ISS, and Mahmoud Omari as
potential defendants. (Resp. Ex. 3.) Unlike the Notice, which
appears to be authentic and gives rise to the cause of
action, the document attached to Plaintiff's Response
cannot be construed as integral to his Complaint. Even if the
Court were to consider the unauthenticated document, it is
clear from its face that it is not a formal charge filed with
the EEOC. Rather, it is merely a letter that Plaintiff
submitted using the EEOC Assessment System. (Resp. Ex. 3.) As
such, it is irrelevant to the present analysis.