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Flagg v. State, Office of Child Support Services

United States District Court, D. New Jersey

May 17, 2018

HOSEA L. FLAGG, Plaintiff,


          PETER G. SHERIDAN, U.S.D.J.

         This matter is before the Court on Defendant, State of New Jersey/Office of Child Support Service's motion to dismiss Plaintiffs Second Amended Complaint (ECF No. 23).

         At oral argument for this motion, held before this Court on April 23, 2018, Plaintiff agreed to dismiss all counts of the Second Amended Complaint except Count I. Accordingly, this opinion discusses Defendant's motion to dismiss Count I.


         Generally, this is an employment discrimination matter that was filed by Hosea L. Flagg, against the Office of Child Support Services (hereinafter "OCSS"). When describing the nature of this case, Plaintiff avers that he is seeking relief for the violation of his "civil rights failure to hire based on age after complaining about email transmissions and remarks made by management regarding sexual [orientation]." (Second Amended Complaint, ("SAC") ECF No. 20, ¶l).

         As the Court understands, on or about October 2013, Plaintiff, through ACRO Service Corporation, was hired by the Department of Human Services, to assist in Hurricane Sandy relief efforts. In June 2014, Plaintiff was transferred to the OCSS, to work as a child support specialist. (SAC¶8).

         On or about November 12, 2014, Plaintiff spoke to several managers regarding disparaging remarks and emails about his sexual orientation made by a supervisor within the OCSS. (SAC ¶3). Plaintiff alleges that he reported the matter to the Governor's Office in October 2015. Since there was no feedback from the Governor's Office, on or about December 7, 2015, Plaintiff brought the matter to the attention of the Acting Office Manager, Jeanette Murray. (Id.) Sometime in late 2015, Plaintiff claims that OCSS posted a position for a "Child Support Specialist 1, " for which Plaintiff applied on February 2, 2016. On March 18, 2016, Plaintiff was contacted by Maureen[1], a manager, who requested that Plaintiff send her a copy of Plaintiff s resume. Sometime later, the incoming office manager ("Val"[2]) asked that Plaintiff to come to her office to discuss the resume submitted. On April 1, 2016, Val made changes to Plaintiffs resume and resubmitted it to Human Resources. Plaintiff alleges that Val had two blood relatives who also applied for the same position. Therefore, on or about May 18, 2016, Plaintiff filed a "follow-up" Complaint with the Governor's office. On or about June 2016, Plaintiff filed a formal complaint with the EEOC. (SAC ¶3). In July, 2016, John Karl allegedly told Plaintiff that he should not track his co-workers. Plaintiff denied the accusations. (Id. ¶4). It appears that at that time, Defendants were informed of the complaints that Plaintiff had filed with the EEOC and the Governor. (Id.)

         On or about July 2016, Plaintiff was moved from Building 3 to Building 5. Building 5 apparently had limited access to functions needed to complete daily tasks. Plaintiff was informed of the move by Defendant's "agent, " Andrew. (Id. ¶5).

         In 2017 Plaintiff s job assignment was changed to ECM-electronic content management. (Id. ¶6). According to the Complaint, several younger applicants were hired by Defendant in May 2017. (Id. ¶IO). As stated in the Complaint, on June 30, 2016, "Plaintiffs employer ACRO Services Corporation called to inform the Plaintiff that his contract was not being renewed. (Id. ¶7). ACRO told Plaintiff not to report to work after the July fourth weekend, to collect any personal belongings from the security guard and to return the badge used for entry as soon as possible[3]. (Id.)

         COUNT I: Wrongful Termination

         Count I is identified in the Second Amended Complaint as a "Wrongful Termination" claim. As best the Court can tell, Plaintiff alleges that Defendant and its agents made comments, in writing and orally, that were offensive to the Plaintiff. (SAC ¶9). Plaintiff alleges that he reported the comments to upper management "as well as to his employer ACRO Service Corporation." (Id.) "As a direct and proximate result of these stated acts omissions, circumvention, and complaints made to the State of New Jersey EEO, Division of Civil Rights, and the Federal EEO (The Plaintiff exercised his Civil Rights), the Defendants wrongfully discharged the Plaintiff from employment." (Id. ¶IO) Plaintiff contends that the State hired "several younger employees within the division and the comment was made by the Asst. Director at an open staff meeting that we have filled the office with younger techier personnel." (Id.) At oral argument Plaintiff seemed to argue that this claim should also be construed as a discrimination claim on the basis of his sexual orientation, and a retaliation claim, in addition to the age discrimination claim.


         Defendant brings a motion to dismiss for failure to state a claim, pursuant to Fed.R.Civ.P. 12(b)(6). Specific to Claim I, Defendant argues that Plaintiffs claim should be dismissed because OCSS was not Plaintiffs employer.

         The Court notes that Plaintiff is proceeding pro se, and for that reason "we construe his complaint in the way most favorable to him." Carr v. Sharp, 454 F.2d 271, 272 (3d Cir. 1971). Pursuant to Rule 8(a)(2) "a pleading that states a claim for relief must contain ... [a] short and plain statement of the claim showing that the pleader is entitled to relief." On a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), the Court is required to accept as true all allegations in the Complaint and all reasonable inferences that can be drawn therefrom, and to view them in the light most favorable to the non-moving party. See Oshiver v. Levin, Fishbein, Sedran & Berman,38 F.3d 1380, 1384 (3d Cir. 1994). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,550 U.S. 544, 570 (2007)). While a court will accept well-pleaded allegations as true for the purposes of the motion, it will not accept bald assertions, unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. ...

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