United States District Court, Eastern District of New York
MARK L. PARKER, Plaintiff,
BJ’S WHOLESALE CLUB, INC., Defendant.
For Plaintiff: Chauncey D. Henry, Esq. Jade Lacey Morrison, Esq. Henry Law Group
For Defendant: Sean Phillip O’Connor, Esq. Morgan Brown & Joy LLP
MEMORANDUM & ORDER
JOANNA SEYBERT U.S.D.J.
On October 29, 2013, plaintiff Mark Parker (“Plaintiff”) commenced this employment discrimination action against defendant BJ’s Wholesale Club (“BJ’s” or “Defendant”) alleging violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq.; and Article 15 of the New York State Human Rights Law § 296 (the “NYSHRL”). Plaintiff also asserts a breach of contract claim under state law against Defendant. Pending before the Court is Defendant’s partial motion to dismiss (Docket Entry 15). For the following reasons, Defendant’s motion is GRANTED IN PART AND DENIED IN PART.
Plaintiff, a forty-eight year old African American male, worked as a loss prevention employee at Defendant’s store, located at 125 Green Acres Mall, Valley Stream, New York 11580. (Am. Compl., Docket Entry ¶ 15.) In that role, he was responsible for “checking customer receipts, ” among other “security duties.” (Am. Compl. ¶ 17.) Plaintiff was employed at the store for less than six months before he was terminated on March 1, 2013. (See Am. Compl. ¶¶ 33, 61.)
I. Plaintiff’s Racial Profiling Complaints
Plaintiff asserts that “on several [ ] occasions, [he] complained to members of Defendant BJ’s management team regarding the discriminatory treatment of African American customers and employees . . . .” (Am. Compl. ¶ 24.) Specifically, Plaintiff complained once to a manager named “Bernard” and twice to a manager named “Winston” about “the selective enforcement of BJ’s store policies” against African American customers. (Am. Compl. ¶¶ 26-28.) Plaintiff asserts that he “observed that customers of African American descent were detained for extended periods of time and subject to greater security checks than were those similarly situated non-African American customers.” (Am. Compl. ¶ 30) Because of these Complaints, Plaintiff alleges that he “became a target” by management. (Am. Compl. ¶ 32.)
II. The Events Leading to Plaintiff’s Termination
On March 1, 2013, Plaintiff arrived at work at 2:20 PM and began brewing coffee in the break room. (Am. Compl. ¶¶ 33-35.) Soon afterward, Plaintiff was informed by his shift manager that Edward Eastern, BJ’s General Manager, wanted to speak with him in his office. (Am. Compl. ¶ 36.)
Eastern informed Plaintiff that an anonymous employee reported that Plaintiff smelled like alcohol. (Am. Compl. ¶ 38.) Plaintiff “steadfastly denied consuming alcohol during company hours and averred that he was completely sober and ready to begin his shift.” (Am. Compl. ¶ 38.) Eastern told Plaintiff he could either “submit to a random drug test” or he would be fired. (Am. Compl. ¶ 39.) Plaintiff claims that he asked to see BJ’s drug and alcohol policy, but Eastern refused to provide it. (Compl. ¶ 40.) Plaintiff subsequently agreed to undergo a drug and alcohol test, which was administered at John F. Kennedy Airport (“J.F.K.”). (Am. Compl. ¶¶ 40-41.) The Complaint is silent about the result of the drug and alcohol test, but Plaintiff states in his EEOC charge “I came back .06 and I was terminated.” (O’Conner Aff., Docket Entry 15-1, Ex. A.)
While waiting to be taken to J.F.K. for the test, Plaintiff asked about the location of the car they were going to use make the trip. Plaintiff claims Eastern stated in response, “[y]ou are going to look like Magilla the Gorilla in that car.” (Am. Compl. ¶ 53.) According to Plaintiff, Eastern previously made another derogatory remark three months earlier in the break room. Plaintiff “stated in a jovial manner, ‘You ain’t a cowboy unless you have a good cup of coffee . . . .’” (Am. Compl. ¶ 56.) Eastern, who was present in the break room, responded “and a good strong rope too.” (Am. Compl. ¶ 56.) Plaintiff alleges that “Eastern’s characterization of the term “rope” [ ] is symbolic with the Jim Crow era noose.’” (Am. Compl. ¶ 56.)
Plaintiff alleges that he was “singled out” to take a drug test because of his race. (Compl. ¶ 50.) In support, Plaintiff alleges that two younger white employees who were known to consume drugs and alcohol at work were not ...