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Usman M. Baig v. Nuclear Regulator Commission

June 6, 2011

USMAN M. BAIG PLAINTIFF,
v.
NUCLEAR REGULATOR COMMISSION DEFENDANT.



The opinion of the court was delivered by: Wolfson, United States District Judge:

*NOT FOR PUBLICATION

OPINION

Defendant Nuclear Regulatory Commission ("Defendant") moves to dismiss the Complaint filed by pro se Plaintiff Usman M. Baig ("Plaintiff"), pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). The Complaint alleges that, during the course of Plaintiff's employment with Defendant, Defendant unlawfully discriminated against Plaintiff based on his race and age. The Complaint also asserts violations of federal whistleblower laws and breach of contract by Defendant. For the reasons that follow, the Court grants Defendant's motion; Counts I and II of the Complaint are dismissed without prejudice; all other counts are hereby dismissed with prejudice. The Court provides Plaintiff fifteen days from the date of the Order accompanying this Opinion to amend the Complaint with respect to Counts I and II of the Complaint.*fn1

I. Background

For the purpose of this Opinion, the facts alleged in the Complaint are assumed to be true. Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008). Plaintiff filed the Complaint on February 19, 2010. Plaintiff alleges that he received an adverse "Equal Employment Decision" on November 24, 2009, denying a prior complaint he made, and said letter also informed him of his right to file a civil action within 90 days. Without dispute from Defendant, this appears to be a right-to-sue letter from the Equal Employment Opportunity Commission ("EEOC"); however, a copy of the letter was not provided to the Court. For the purposes of this motion, the Court assumes that Plaintiff received a right-to-sue letter from the EEOC.*fn2

At the outset, the Court notes that the pro se Complaint mainly consists of legal conclusions and is devoid of any factual allegations. First, the Complaint improperly asserts a cause of action pursuant to a federal regulation - 29 C.F.R. § 1614. The rest of the Complaint consists of eight causes of action. Count I alleges that Plaintiff, a native of the country of India, was wrongfully discriminated against because of his ethnic background and nationality; no further factual allegations were provided. Similarly deficient, Count II alleges that Plaintiff was discriminated against because of his age, and no further factual allegations were provided other than that Plaintiff is more than sixty years old and has "long experience and has an age of experience in the field." Compl., Count II, ¶ 2. Count III alleges that Plaintiff, despite being highly qualified for promotion, was nevertheless discriminated against and did not receive a promotion. Count IV alleges that Plaintiff, despite being fully qualified, was discriminated against and not given favorable assignments. Count V alleges that Plaintiff, despite being fully qualified, was wrongfully discriminated against and was not paid fairly as compared to his peers. Count VI alleges that Plaintiff, despite being extraordinarily qualified and having "permanent tenure," Compl., Count VI, ¶ 4, nevertheless Defendant terminated his employment. Again, in none of these counts does Plaintiff make any further supporting factual allegations.

In Count VII, Plaintiff alleges that Defendant wrongfully terminated him in violation of "law for whistle blower's safeguard from adverse action," Compl, Count VII, ¶ 6, after he provided "input for the improper management in the Division and blew the whistle for the wrong practices conducted in the section" to the Office of Personnel Management ("OPM") in surveys conducted in 2007 and 2008. Count VIII alleges that Plaintiff was promised a quick promotion during his hiring process, and that Defendant breached that oral contract when Plaintiff did not receive such a promotion. As is consistent with the rest of the Complaint, Plaintiff provided no further details concerning these allegations. The Complaint made a general demand for $454,000 in damages.

On May 17, 2010, Plaintiff petitioned for default judgment when Defendant failed to respond to the Complaint. Defendant responded to the petition arguing that default judgment should be denied because Plaintiff improperly served the summons and complaint. On Aug. 18, 2010, the Court denied default judgment and ordered Plaintiff to effectuate proper service on Defendant. Plaintiff provided the Court with proof of service on September 20, 2010. Now, Defendant moves to dismiss the Complaint pursuant to Rule 12(b)(1) and Rule 12(b)(6), or in the alternative, for summary judgment.

II. Motion to Dismiss Standard of Review

The Federal Rules of Civil Procedure provide that a complaint "shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends . . . (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks." Fed. R. Civ. P. 8(a). The purpose of a complaint is "to inform the opposing party and the court of the nature of the claims and defenses being asserted by the pleader and, in the case of an affirmative pleading, the relief being demanded." 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1182 (3d ed. 2004).

In reviewing a motion to dismiss for failure to state a claim under Rule 12(b)(6), a Court must take all allegations in the complaint as true, viewed in the light most favorable to the plaintiff "and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citation and quotations omitted). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court "retired" the language in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Twombly, 550 U.S. at 561 (quoting Conley, 355 U.S. at 45-46). Rather, the factual allegations in a complaint "must be enough to raise a right to relief above the speculative level." Id. at 555. The Third Circuit summarized the pleading requirement post-Twombly:

The Supreme Court's Twombly formulation of the pleading standard can be summed up thus: 'stating . . . a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element. This 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of 'the necessary element.'

Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 556).

In affirming that the Twombly standard applies to all motions to dismiss, the Supreme Court recently further clarified the 12(b)(6) standard. "First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). "Second, only a complaint that states a plausible claim for relief survives a motion to dismiss." Iqbal, 129 S.Ct. at 1950. Accordingly, "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. In short, "a complaint must do more ...


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