If at first you don’t succeed
Bogan v. The Roomstore, Inc., Civil Action No. 3:09-cv-00705-HEH (E.D. Va., January 29, 2010). Bogan filed a complaint against The Roomstore, Inc., alleging that his employer discriminated against him because of his race. Bogan, who is black, alleged that he was terminated for initially refusing to take a drug test. Bogan alleged that he refused because his white counterpart had not been required to take a drug test even though he had engaged in illegal activity and had missed several days of work. Bogan had received his 90-day “right-to-sue” notice from the EEOC and had timely filed suit in Massachusetts, although that case had been dismissed. Bogan, representing himself, had filed suit again in Virginia after the expiration of the 90-day period. Roomstore filed a motion to dismiss Bogan’s complaint for failure to state a claim for which relief can be granted. In its motion, Roomstore asserted two reasons for the motion, first, Bogan complaint was filed too late and, second, Bogan had failed to state a claim of racial discrimination. The court found that Bogan’s inartfully pleaded complaint did not identify specifically his theory of race discrimination but held that his theory could either be disparate treatment based on race or discriminatory discipline based on race. The court found that Bogan had not alleged all of the elements necessary for disparate treatment but that he had plausibly alleged all elements of discriminatory discipline. With respect to the timeliness issue, the court held that there were too many issues outside the complaint to allow for a motion to dismiss. The court denied defendant’s motion.