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Ahmed Mohamed Aboudekika v. Delaware River and Bay Authority

July 26, 2011


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



This matter comes before the Court upon two motions: (1) the motion to dismiss, or in the alternative for summary judgment pursuant to Rule 12(d), by Defendants Delaware Bay River and Bay Authority ("DRBA") and James Gillespie, Plaintiff's supervisor at the DRBA [Dkt. Ent. 6] and (2) a motion for leave to amend the complaint filed by Plaintiff Ahmed Mohamed Aboudekika ("Plaintiff") [Dkt. Ent. 11]. For the following reasons, Defendants' motion to dismiss, or in the alternative for summary judgment, is granted, in part, denied, in part, and reserved, in part. Plaintiff's motion to amend is granted, in part, and denied, in part.


In July 2009, the DRBA hired Plaintiff, a Moslem*fn2 man of Egyptian descent, as a "wiper" on board the vessels of the Cape May-Lewes Ferry. First Amended Complaint ("FAC") ¶¶ 2, 6. Plaintiff's responsibilities included working with the ship's engineers to ensure the proper operation and maintenance of the ferry engines. FAC ¶ 6. After approximately one month on the job, Plaintiff's co-workers subjected him to "racial slurs and commentary." FAC ¶ 7. Specifically, co-workers told Plaintiff that his job should not have gone to a "minority," that he took work away from qualified "American" workers, and that "they couldn't believe they had to work with a minority worker such as Plaintiff." FAC ¶ 8. Plaintiff reported the harassment to his supervisor, James Gillespie. FAC ¶ 9. Gillespie promised to investigate the matter, and report back to Plaintiff, but no investigation took place. FAC ¶¶ 9-11.

On October 9, 2009, the DRBA terminated Plaintiff's employment, ostensibly for "lack of work." FAC ¶ 12. At the time of termination, Gillespie told Plaintiff that he was "more than welcome" to return to employment the following year. FAC ¶ 14. In March 2010, the DRBA sent Plaintiff an application for re-employment. FAC ¶ 15. However, the DRBA did not respond to Plaintiff's application and instead hired a replacement for Plaintiff's position. FAC ¶ 16.

On October 15, 2010, Plaintiff filed suit, stating claims pursuant to 42 U.S.C. § 1981 and § 1983 and alleging violations the New Jersey Constitution and New Jersey's Law Against Discrimination. Dkt. Ent. 1. Defendants removed the matter to this Court and now move to dismiss or, in the alternative, for summary judgment.*fn3

Dkt. Ent. 1, 6. Plaintiff cross moves to amend. Dkt. Ent. 11.


"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to

Id. at Ex. A.

Defendants further seek to introduce testimony from Plaintiff's unemployment benefits hearing. See Def. Ex. 2-3. At the hearing, Plaintiff testified that DRBA offered him seasonal employment in July, but by September, he was the only employee told that there was no more work. Def. Ex. 3 at p. 9. DRBA initially told Plaintiff to expect to work "[f]our to six months" Id. Plaintiff testified as follows regarding his last day working for DRBA:

[Hearing Officer]: Let me just ask you. Did you work the full day on October 9th? [Plaintiff]: No on October 9th, I went to the office to Mr. Gillespie and I was have a virus. [sic.] I was so sick and I never called out of my work actually, because I am a very responsible person and I asked him, he told me that he would not talk to you. [Plaintiff]: I say yes sir, you told me this is your last week and tomorrow is going to be your last day so and you're more than welcome to come back in the summertime. [Hearing Officer]: Okay. So you're saying you left sick that day? [Plaintiff]: Yes.

Id. at p. 17-18.

Plaintiff submitted an exhibit demonstrating that the New Jersey Department of Labor denied him unemployment benefits because he "left his job voluntarily because [he] felt [his] supervisor's criticism of [his] job performance was unduly severe." Pl. Ex. 2. Plaintiff also submitted a copy of his "2010 Previously Employed Application." Pl. Ex. 3. relief that is plausible on its face." Sheridan v. NGK Metals Corp., 609 F.3d 239, 263 n. 27 (3d Cir. 2010) (quoting Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1949 (2009) (internal quotation marks omitted)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Iqbal, 129 S.Ct. at 1949).

The Court conducts a three-part analysis when reviewing a claim:

First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Iqbal, 129 S.Ct. at 1947. Second, the court should identify allegations that, "because they are no more than conclusions are not entitled to the assumption of truth." Id. at 1950. Finally, "where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief." Id. Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010); see also Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009)("...[A] complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to "show" such an entitlement with its facts.").

Pursuant to Rule 12(d), "if, on a motion under Rule 12(b)(6) ..., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56," provided that "[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Summary judgment should be granted if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).

"An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party, and a factual dispute is material only if it might affect the outcome of the suit under governing law." Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "If the non-moving party bears the burden of persuasion at trial, 'the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry that burden.'" Id. (quoting Wetzel v. Tucker, 139 F.3d 380, 383 n.2 (3d Cir. 1998)). Upon such a showing, the burden shifts to the non-moving party to produce evidence of a genuine, factual dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-movant's burden is rigorous: it "must point to concrete evidence in the record"; mere allegations, conclusions, conjecture and speculation will not defeat summary judgment. Orsatti v. N.J. State Police, 71 F.3d 480, 484 (3d Cir. 1995).

When considering a summary judgment motion, the Court does not weigh evidence; rather, all reasonable "inferences, doubts, and issues of credibility should be resolved against the moving party." Meyer v. Riegel Products Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983). However, "a mere scintilla of evidence," without more, will not give rise to a genuine issue for trial. Anderson, 477 U.S. at 252. Summary judgment is still appropriate "where the record ... could not lead a rational trier of fact to find for the nonmoving party ...." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "Summary judgment motions thus require judges to 'assess how one-sided evidence is, or what a 'fair-minded' jury could 'reasonably' decide....'" Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460 (3d Cir. 1989) (quoting Anderson, 477 U.S. at 265 (Brennan, J. dissenting)).


"Bi-state entities ... are intended to address 'interests and problems that do not coincide nicely ... with State lines.'" Int'l Union of Operating Eng'rs, Local 542 v. Delaware River Joint Toll Bridge Comm'n ("Local 542"), 311 F.3d 273, 275-76 (3d Cir. 2002)(quoting Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 40 (1994)). Courts regard these entities "not as extensions of each compacting state's authority, but rather as 'independently functioning parts of a regional polity and of a national union.'" Id. at 276 (quoting Grad, Federal-State Compact: A New Experiment in Cooperative Federalism, 63 Colum.

L.Rev. 825, 854-55 (1963)). Thus, by entering into a compact, each state "surrender[s] a portion of their sovereignty over certain ... operations in order to better serve the regional interest." Id. "Such a surrender of state sovereignty should be treated with great care, and the Supreme Court has stated that courts should not find a surrender unless it has been 'expressed in terms too plain to be mistaken.'" Id. (quoting Jefferson Branch Bank v. Skelly, 66 U.S. (1 Black) 436, 446, 17 L.Ed. 173 (1861)).

The Court must determine whether Plaintiff's claims may proceed in light of DRBA's unique status ...

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