Virginia Lawyers Weekly VA Lawyers Weekly
Where a man alleged that Home Depot refused to honor an alleged promise to discount his moving truck fee because of his race, but he failed to plead any facts supporting this allegation, his suit was dismissed.
Background
Hazem Garada’s amended complaint alleges that Home Depot USA Inc. infringed plaintiff’s consumer and civil rights in violation of 42 U.S.C. § 1981 when it declined to honor an oral agreement to discount the fee for his rental of a moving truck by 50 percent. Home Depot has filed a motion to dismiss.
Analysis
To show that a defendant intended to discriminate against a plaintiff based on his race, a complaint must allege either direct or circumstantial evidence of discrimination. Plaintiff’s amended complaint proffers no facts which constitute direct evidence that Home Depot denied him a 50 percent discount because of his race. It contains only one conclusory allegation that the plaintiff “should not have been treated [in] such a manner just because he is of a different nationality, religion, or race.” However this “threadbare recital[] of a cause of action’s elements” does not establish direct evidence of discrimination.
Neither has the amended complaint created a plausible inference of discrimination through circumstantial evidence. For example, it fails to point to any white customers who were given a discount when plaintiff was not. Instead, it describes three unrelated incidents that lack any similarity to plaintiff’s situation, which plaintiff claims establish a pattern or practice of discrimination by Home Depot.
The three alleged incidents are too dissimilar from plaintiff’s experience to make out a “[p]attern and [p]ractice” that would plausibly support plaintiff’s claim that he “was denied the opportunity to contract for goods or services that was otherwise afforded to white customers.” Moreover, of the three incidents cited in the amended complaint, only one involves William, who was the employee who “[r]udely” refused to give plaintiff the 50 percent discount.
Defendant also correctly argues that the amended complaint has not alleged that the oral agreement for a 50 percent discount was a “contractual relationship covered under § 1981.” “The general rule is that a new promise, without other consideration than the performance of an existing contract in accordance with its terms, is a naked promise without legal consideration therefor and unenforceable.”
There is no dispute that plaintiff’s contract with defendant to rent a moving truck was fulfilled. The only dispute is over the alleged proffered discount, offered “due to the hassle, trouble, time and money lost driving back and forth to the store.” Because no valuable consideration for the discount was exchanged other than the performance of the already agreed-to contract to rent the truck, the discount was an unenforceable, gratuitous promise that plaintiff may not rely upon for his § 1981 claim.
Plaintiff argues in his opposition that he entered into the contract to rent the truck only after Mr. KO approved the discount. But plaintiff may not amend his amended complaint through his opposition memorandum. Moreover, even if plaintiff agreed to rent the truck only on the condition of receiving the discount, the truck rental agreement clearly states that “no representative of The Home Depot is authorized to make any promise . . . other than those reflected in writing in the Agreement,” and the price of the rental as reflected in the agreement was $143.10. Mr. KO was therefore unauthorized to make any modifications to the price of the contract, and, as such, the discount would have been ineffective even if plaintiff construed it as a condition of his entering the contract to rent the truck.
Defendant’s motion to dismiss granted.
Garada v. Home Depot USA Inc., Case No. 1:22-cv-723, Feb. 17, 2023. EDVA at Alexandria (Brinkema). VLW 023-3-078. 11 pp.
