United States District Court, D. New Jersey
HOSEA L. FLAGG, Plaintiff,
STATE OF NEW JERSEY/OFFICE OF CHILD SUPPORT SERVICES, et al. Defendants.
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
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).
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.
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,
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).
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, a manager, who
requested that Plaintiff send her a copy of Plaintiff s
resume. Sometime later, the incoming office manager
("Val") 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.
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).
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
I: Wrongful Termination
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
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.
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.