Apollo v. Bank of Am., N.A.
Apollo v. Bank of Am., N.A.
Opinion of the Court
Plaintiff Jose G. Apollo, Sr., who is proceeding pro se, brings this action against Defendants Bank of America, N.A., and three of its individual employees, Barry P. James, Nancy Mejia, and Alexandria Scudder. Though far from a model of clarity, Plaintiff's "Second Re-Amended Complaint" alleges, in sum and substance, that *438Defendants discriminated against him based on his race when, on August 3, 2016, they threw him out of the Bank of America branch office located in Dupont Circle. See generally Second Re-Amended Complaint, ECF No. 11. Plaintiff asserts claims of discrimination under
Defendants first assert that Plaintiff's discrimination claim under Section 1981 fails because Plaintiff has not "allege[d] any facts plausibly supporting a minimal inference of discriminatory motivation." Defs.' Mem. at 3. To satisfy the pleading standard of Federal Rule of Civil Procedure 8(a), a plaintiff asserting a claim of discrimination need only allege facts that "give[ ] [the defendant] fair notice of the basis for [the plaintiff's] claims." Swierkiewicz v. Sorema N.A. ,
Plaintiff's Section 1981 claim satisfies this low pleading bar, except with respect to Defendant James. The Second Re-Amended Complaint details the allegedly discriminatory act (throwing Plaintiff out of the bank), who participated in that act (Mejia and Scudder), and where and when it occurred (the Dupont Circle Bank of America branch on August 3, 2016). See Second Re-Am. Compl. at 2-8. Moreover, Plaintiff makes specific factual allegations that, if presumed to be true, support a plausible inference of race discrimination, including harassing phone calls by Mejia, denial of bank services for false reasons, and an unceremonious removal from the bank's premises. See id. at 5-7. It is immaterial that the court believes Plaintiff's prospect of "a recovery is very remote and unlikely." Bell Atl. Corp. v. Twombly ,
The court reaches a different conclusion as to Defendant James. The only allegations that Plaintiff makes against James is that James failed to take disciplinary action against Mejia and Scudder and that James told Plaintiff that he could go to another Bank of America branch. Second Re-Am. Compl. at 9. In this court's view, James' mere failure to act in response to an alleged discriminatory act is not enough to give rise to plausible inference of discriminatory intent as to him. Therefore, Plaintiff fails to state a claim under Section 1981 against James.
Next, Defendants argue that Plaintiff's Section 1985(3) conspiracy claim must be dismissed because, under the intracorporate conspiracy doctrine, Bank of America cannot conspire with its employees to violate the civil rights laws. Defs.' Mem. at 4.
*439Whether the intracorporate conspiracy doctrine applies to civil rights conspiracies is an open question in this Circuit. See Bowie v. Maddox ,
Finally, Defendant maintains that Plaintiff has failed to make out a common law claim of intentional infliction of emotional distress (IIED). The court agrees. Under District of Columbia law, an IIED claim requires a showing of "extreme and outrageous" conduct. See Kotsch v. District of Columbia ,
For the foregoing reasons, Defendants' Motion to Dismiss is granted in part, denied in part, and deferred in part. Plaintiff's Section 1981 claim may proceed against all Defendants except James. Plaintiff's IIED claim is dismissed. In addition, the court defers ruling on whether to dismiss Plaintiff's Section 1985(3) claim.
The court may not have to resolve the matter if Plaintiff cannot survive summary judgment on his underlying Section 1981 claim. For instance, the court notes that it is unclear whether an essential element of a Section 1981 claim is present in this case: the existence of an impaired contractual relationship. See Domino's Pizza, Inc. v. McDonald ,
Reference
- Full Case Name
- Jose G. APOLLO, Sr. v. BANK OF AMERICA, N.A.
- Cited By
- 4 cases
- Status
- Published