The opinion of the court was delivered by: ANNE THOMPSON, Senior District Judge
This matter is before the Court on Defendant's Motion for
Summary Judgment [33-1]; Defendant's Motion to Dismiss and Strike
the Amended Complaint [41-1]; Plaintiff's Motion Opposing
Defendant's Motion to Dismiss and Strike the Amended Complaint
[43-1]; and Defendant's Motion to Strike Plaintiff's Opposition
to Defendant's Partial Reply to Plaintiff's Opposition to Summary
Judgment [44-1]. The Court has decided these motions after
considering the parties' written submissions and without oral
argument pursuant to Fed.R.Civ.P. 78. For the following
reasons, Defendant's motions are granted and Plaintiff's motion
Plaintiff, a black Haitian male, brings this pro se action
under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., for employment discrimination. Plaintiff's
December 13, 2002 Complaint alleges that his former employer,
Nordstrom, Inc. ("Nordstrom"), discriminated against him based on
his race, sex, and national origin by failing to promote him, by
favoring other employees with regard to scheduling and other
matters, by limiting his telephone communications with his supervisor, and by ultimately terminating
him. On September 15, 2004, Plaintiff filed an Amended Complaint
without leave of Court which added claims of disability
discrimination, retaliation, hostile work environment, defamation
of character, obstruction of justice, violation of human rights,
I. Motion to Strike or Dismiss the Amended Complaint
Defendant first moves to dismiss or strike Plaintiff's Amended
Complaint, arguing that Plaintiff improperly amended his claims
without leave of the Court in violation of Fed.R.Civ.P.
15.*fn1 Defendant answered the Complaint on March 15, 2004,
and Plaintiff was required to obtain leave of the court or
Defendant's written consent in order to amend. Plaintiff did not
seek leave of the Court to amend and did not obtain consent of
his adversary, who advised Plaintiff that it needed a copy of his
proposed amendments before it decided whether to grant consent.
Further, Plaintiff did not serve the Amended Complaint on
Defendant, as required by Fed.R.Civ.P. 5. For these reasons,
the Amended Complaint will be struck.
Even if the Court were to consider Plaintiff's opposition to
Defendant's motion to dismiss or strike as a motion to amend, it
appears as if such a motion would be denied as futile. See
Foman v. Davis, 371 U.S. 178, 182 (1962). In other words, it
appears that the amendments would not be able to withstand a motion to dismiss. Alvin v.
Suzuki, 227 F.3d 107, 121 (3d Cir. 2000).
Plaintiff's new claims of disability discrimination,
retaliation, and hostile work environment cannot stand, as
Plaintiff has not exhausted his administrative remedies by filing
a charge with the Equal Employment Opportunity Commission or
state or local agency, see 42 U.S.C. § 2000e-5;
42 U.S.C. § 12117; see also Churchill v. Star Enterprises, 183 F.3d 184,
190 (3d Cir. 1999); Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir.
1996), and has not demonstrated an equitable basis for modifying
this requirement, see Bowen v. City of New York,
476 U.S. 467, 482 (1986); Waiters v. Parsons, 729 F.2d 233, 236 (3d Cir.
1984) (per curiam). Even accepting as true Plaintiff's allegation
that an EEOC investigator misled him about the requirements and
procedures involved with filing an EEOC complaint, this "does not
rise to the level of being prevented in an `extraordinary way' by
the EEOC from asserting his rights." See Robinson v. Dalton,
107 F.3d 1018, 1023 (3d Cir. 1997). Thus, equitable tolling is
not justified in this case. Although the facts supporting the
three new claims occurred before Plaintiff filed his initial
Complaint with the EEOC, Plaintiff did not raise these claims
until after the EEOC made its determination, did not attempt to
amend his complaint to include these claims, and did not make any
additional inquiries or attempt to investigate the appropriate
procedures for raising these claims after he was allegedly misled
by one EEOC employee.*fn2
Further, although "[a] victim of discrimination is not required
to exhaust administrative remedies with respect to a claim concerning an incident which
falls within the scope of a prior EEOC complaint or the
investigation which arose out of it," Waiters, 729 F.2d at 235,
Plaintiff's original factual allegations cannot fairly be said to
encompass a claim for retaliation, hostile environment,*fn3
or disability discrimination, and an investigation of those facts
would not have yielded evidence of any such claims. Therefore,
even if Plaintiff's Amended Complaint was not struck, the Court
would deny his attempt to add claims of disability
discrimination, retaliaton, and hostile work environment as
Similarly, the Court would deny as futile Plaintiff's attempt
to add claims of defamation of character, conspiracy, obstruction
of justice, violation of human rights, and unfair treatment.
There are no private rights of action that would allow Plaintiff
to proceed with a civil claim based on obstruction of justice,
violation of human rights, and unfair treatment outside of the
claims he has pled elsewhere in his Complaint. Cf.
29 U.S.C. § 160; 18 U.S.C. §§ 241, 242, 1503, and 2516. As to conspiracy,
employees of a corporation acting within the scope of their employment cannot conspire with a corporation or with each other,
as they are all considered one entity. Sunkett v. Misci,
183 F. Supp. 2d 691, 722 (D.N.J. 2002). Further, both Plaintiff's
conspiracy claim and defamation claim are barred by the statute
of limitations, should not be equitably tolled, and do not
constitute a "continuing violation" that is within the
limitations period. See N.J.S.A. § 2a:14-3.1; Montells v.
Haynes, 133 N.J. 282, 286 (1993).
II. Motion for Summary Judgment*fn4
Defendant also moves for summary judgment on Plaintiff's
discrimination claims in his original Complaint: failure to
promote, favoring other employees, limiting telephone access to
supervisor Joseph Dubina, and termination. Plaintiff did not
oppose Defendant's motion with regard to the failure to promote
claim, and the Court will grant Defendant's motion to dismiss the
failure to promote claim for this reason.*fn5 The Court
turns to the remaining three allegations.
A party seeking summary judgment must "show that there is no
genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law." Fed.R.Civ.P. 56;
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Orson,
Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir. 1996).
Summary judgment is to be granted against the non-moving party
when that party has failed to make a sufficient showing, after
discovery, establishing an element of his claim that is essential
to his case, and on which the non-moving party will bear the
burden of proof at trial. Celotex, 477 U.S. at 322. In reviewing
motions for ...