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Dickerson v. New Jersey Institute of Technology

United States District Court, D. New Jersey

November 14, 2019



          Kevin McNulty United States District Judge.

         Pro se plaintiff Gloria Dickerson filed a complaint asserting that her employer, New Jersey Institute of Technology ("NJIT"), and her co-workers Annie Crawford, Staci Mongelli, and Lauren Rubitz discriminated against her. Ms. Dickerson asserts that defendants failed to promote her, subjected her to unequal terms and conditions of employment, subjected her to a hostile work environment, and harassed and retaliated against her. These acts, she alleged, were impermissibly based on her race, her age, and her exercise of rights under the Family Medical Leave Act. Defendants now move to dismiss the complaint under Fed.R.Civ.P. 12(b)(6) for failure to plead facts sufficiently setting forth the basis for Ms. Dickerson's claims.

         In general, the Title VII, ADEA, and ADA claims, which may only be brought against an employer, are dismissed as against the three individuals. As to the employer, NJIT, the complaint states facts in relation to a possible ADA violation, relating to Ms. Dickerson's exercise of rights under the FMLA. It contains no facts, however, suggesting that her alleged workplace frustrations arose from racial or age discrimination. For the reasons provided below, then, defendants' motion to dismiss is granted in part and denied in part.

         I. Factual Allegations [1]

         The Complaint (full version at ¶ 5-2, pp. 5-23)[2] consists of pages 1-7 of a form court complaint for employment discrimination. Following page 7 is a handwritten attachment (DE 5-2 p. 12); a copy of Ms. Dickerson's N.J. Division on Civil Rights Charge of Discrimination (DE 5-2 pp. 13-14); U.S. Department of Labor Interview Statement (DE 5-2 pp. 15-16) and finding of FMLA violation (DE 5-2 pp. 17-18); and an EEOC dismissal and notice of rights (DE 5-2 pp. 20). The form court complaint for employment discrimination then resumes at page 8. (DE 5-2 pp. 21-22). Given plaintiffs pro se status, I will treat these documents collectively as her complaint, and cite them together as "Compl." Because of the inconsistent pagination, I will cite the Complaint using the page numbers from the ECF docket entry.

         Ms. Dickerson works as a customer service representative in the human resources department at NJIT. She is an African-American female, she is approximately 72 years old, and she suffers from a permanent chronic respiratory condition. (Compl. at 10). Occasionally, this respiratory condition requires her to request temporary leave under the Family Medical Leave Act ("FMLA"). (Id. at 15).

         Ms. Dickerson was hired in 2014. [Id. at 10). Defendant Annie Crawford, an assistant Vice President at NJIT, is Ms. Dickerson's supervisor. [Id. at 11). Defendant Staci Mongelli is the assistant director of employment and human resources operations. Defendant Lauren Rubitz is the assistant director of organizational development and human resource operations. (Id. at 8). Ms. Crawford, Ms. Mongelli, and Ms. Rubitz, who are members of the employment division of NJIT. Ms. Dickerson alleges that they were supposed to include her as a member of the same division. (Id. at 12). Ms. Dickerson generally alleges that defendants did not want to work with her. (Id.) As a result, defendants are alleged to have "retaliated, discriminated, denied opportunity, created a hostile environment to suppress the positive relationships [she] was developing with Faculty and Staff and created a "toxic environment." (Id.; see also Id. at 13).

         On or about November 23, 2018, Ms. Dickerson filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). On the form complaint, she checked boxes indicting that she was asserting discrimination based on race, age, and disability. (Id. at 13). In the body of the EEOC complaint, she asserts that for approximately 4 years, from August 31, 2014 through September 20, 2018, she was "subjected to harassment and a hostile work environment by several employees . . . Annie Crawford, Staci Mongelli, and Lauren Rubitz. I have been denied opportunities to grow as an employee within my department by the aforementioned individuals. I have complained to respondent about these actions and nothing was done." (Id.). The EEOC complaint asserts more specifically that "[o]n one occasion, Ms. Crawford called me into her office and interrogated me as to how I could be dancing if I had my disability. These comments were harassing and uncalled for." (Id.). On November 29, 2019, the EEOC dismissed Ms. Dickerson's complaint and mailed her a notice of rights letter that instructed that she had 90 days to appeal the EEOC's dismissal by filing a lawsuit in federal court. (Id. at 20). Ms. Dickerson received this notice on December 10, 2019. (Id. at 11).

         Around the time that Ms. Dickerson filed her EEOC complaint, she also filed a complaint with the United States Department of Labor's Wage and Hour Division alleging violations of the FMLA. (Id. at 15). Ms. Dickerson was interviewed on December 27, 2018. [Id.), She explained in her interview that because of her chronic respiratory condition, she is occasionally granted temporary leave under the FMLA. (Id.). She was initially certified for FMLA leave in 2016, and has been recertified three times, most recently on August 14, 2018. (Id.). She alleged in her complaint to the Department of Labor that she was harassed as a result of exercising her rights under the FMLA:

I was harassed due to me using intermittent FMLA. I was invited to a co-worker retirement party which was held on a Saturday evening. During the event I danced as I have done during previous related events. On or around 9/7/2018 Annie Crawford . . . asked me to come to her office. . . . Annie said to me, It was brought to my attention that you attended Norma's Retirement Celebration.' She further Asked, 'How can you dance on FMLA?' She repeated the question several times. I felt humiliated by the question from her because I felt she had no right to ask me such a question. I felt her actions were insensitive, unfair, unnecessary, retaliatory, and extremely hurtful.

[Id. at 15). The Department of Labor conducted an investigation and determined that Ms. Crawford had discriminated against Ms. Dickerson when she questioned Ms. Dickerson about how she could be on FMLA leave and yet dance at a retirement party. [Id.). NJIT agreed that proper recertification procedures would be used moving forward and that if Ms. Crawford had questions about FMLA usage, she should ask for a recertification. [Id.].

         On March 7, 2019, Ms. Dickerson filed a complaint with this Court alleging violations of: (1) Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e, et seq.) ("Title VII"); (2) Age Discrimination in Employment Act of 1967 (29 U.S.C. §§ 621 to 634) (the "ADEA"); (3) Americans with Disabilities Act of 1990 (42 U.S.C. §§ 12112 to 12117) (the "ADA"); and (4) Whistleblower Protection Act. (Compl. at 9). The discriminatory conduct alleged failure to promote, unequal terms and conditions of employment, retaliation, and harassment. (Id. at 10).

         On April 24, 2019, defendants filed a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The motion asserts that Ms. Dickerson failed to exhaust administrative remedies before filing her complaint, and that she failed to plead the elements of each cause of action. (DE 5).[3]

         II. Standard

         Federal Rule of Civil Procedure 8(a) does not require that a complaint contain detailed factual allegations. Nevertheless, "a plaintiffs obligation to provide the 'grounds' of his 'entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). See also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (Rule 8 "requires a 'showing' rather than a blanket assertion of an entitlement to relief" (citation omitted)). Thus, the complaint's factual allegations must be sufficient to raise a plaintiffs right to relief above a speculative level, so that a claim is "plausible on its face." Twombly, 550 U.S. at 570. See also West Run Student Hous. Assocs., LLC v. Huntington Nat Bank, 712 F.3d 165, 169 (3d Cir. 2013). That facial-plausibility standard is met "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). While "[t]he plausibility standard is not akin to a 'probability requirement'... it asks for more than a sheer possibility." Id. Rule 12(b)(6) provides for the dismissal of a complaint if it fails to state a claim upon which relief can be granted. The defendant, as the moving parry, bears the burden of showing that no claim has been stated. Animal Science Products, Inc. v. China Minmetals Corp., 654 F.3d 462, 469 n.9 (3d Cir. 2011).

         For purposes of a motion to dismiss, the facts alleged in the complaint are accepted as true and all reasonable inferences are drawn in favor of the plaintiff. New Jersey Carpenters & the Trustees Thereof v. Tishman Const, Corp. of New Jersey, 760 F.3d 297, 302 (3d Cir. 2014). "Complaints filed pro se are construed liberally, but even a pro se complaint must state a plausible claim for relief." Badger v. City of Phila. Office of Prop. Assessment, 563 Fed.Appx. 152, 154 (3d Cir. 2014) (citation and internal quotation marks omitted).

         In considering a motion to dismiss a pro se complaint, a court must bear in mind that pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Haines v. Kerner, 404 U.S. 519, 520-21, 92' S, Ct. 594, 30 L.Ed.2d 652 (1972); see Alston v. Parker, 363 F.3d 229, 234 (3d Cir. 2004) ("Courts are to construe complaints so as to do substantial justice . . . keeping in mind that pro se complaints in particular should be construed liberally." (citations omitted)). This does not, however, absolve a pro se plaintiff of the need to adhere to the Federal Rules of Civil Procedure. See, e.g., Fantone v. Latini, 780 F.3d 184, 193 (3d Cir. 2015) ("a pro se complaint . . . must be held to 'less stringent standards than formal pleadings drafted by lawyers;'. . . but we nonetheless review the pleading to ensure that it has 'sufficient factual matter; accepted as true; to state a claim to relief that is plausible on [its] face."').

         III. Discussion

         A. Claims against Crawford, Mongelli, and Rubitz

         As a threshold matter, the Title VII, ADEA, and ADA claims will be dismissed as against the individual defendants, Ms. Crawford, Ms. Mongelli, and Ms. Rubitz. In deciding whether individuals are liable (and for other issues as well), courts have generally treated these three statutes interchangeably. See DeJoy v. Comcast Cable Communications Inc., 941 F.Supp. 468, 474 (1996) (D.N.J.1996) ("Courts, including the Third Circuit, routinely use the case law under the three statutes interchangeably." (citing DiBiase v. SmithKline Beecham Corp., 48 F.3d 719, 724 (3d Cir. 1995})). And that parallel construction makes sense. All three Acts are aimed at discrimination. In all three Acts, Congress created liability for "employers." See 29 U.S.C. § 623(a)(ADEA)("It shall be unlawful for an employer . . ."); 42 U.S.C. § 12111(2)(ADA)(defining "covered entity" which is prohibited from discriminating as "an employer, employment agency, labor organization, or joint labor-management committee"); 42 U.S.C. § 2000e-2(a)(Title VII)("It shall be an unlawful employment practice for an employer. . . .").

         The courts of this Circuit have routinely held that coworkers cannot be held liable under Title VII. Canete v. Barnabas Health Sys., No. 12-cv-7222, 2013 WL 5305236, at *3 (D.N.J. Sept. 18, 2013)(citing Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1077-78 (3d Cir. 1996)("we are persuaded that Congress did not intend to hold individual employees liable under Title VII."))-Clements v. Hous. Auth., 532 F.Supp.2d 700, 705 n.l (D.N.J. 2007)("It is well settled that individuals may not be held liable under Title VII."). Count One, the Title VII claim, must be dismissed as against Ms. Crawford, Ms. MongelH, and Ms. Rubitz because they are not employers but individuals.

         The same holds true for Count Two, the ADEA claim. "As a matter of law, the ADEA does not provide for individual liability." Muhammad v. Sills Cummis & Gross P.C., 621 Fed.Appx. 96, 98 (3d Cir. 2015)(citing Hill v. Borough of Kutztown, 455 F.3d 225, 246 n. 29 (3d Cir. 2006)).

         Likewise, recent Third Circuit precedent makes it clear, if it was not clear before, that an ADA claim against individual defendants is barred: "Title VII and the ADA impose liability only on employers." Williams v. Pennsylvania Human Relations Comm'n, 870 F.3d 294, 299 (3d Cir. 2017); Koslow v. Pennsylvania, 302 F.3d 161, 178 (3d Cir. 2002) (noting that "there appears to be no individual liability for damages under Title I of the ADA").

         Counts One, Two, and Three of the complaint will be dismissed insofar as they assert claims against defendants Crawford, Mongelli, and Rubitz that are unavailable as a matter of law. Because amendment would be futile, this dismissal is with prejudice.

         B. Discrimination claims against NJIT

         In general, Ms. Dickerson asserts that she was discriminated against because NJIT failed to promote her, subjected her to unequal terms and conditions of employment, retaliated against her, and harassed her. (Compl. at 10). She asserts that these discriminatory practices occurred because of her race, age, and disability. (Id. at 11). Ms. Dickerson therefore brings suit against NJIT pursuant to Title VII, the ADEA, and the ADA. (Id. at 10).

         Title VII prohibits discriminatory employment practices based upon an individual's "race, color, religion, sex, or national origin." 42 U.S.C.2000e-2(a)(1). The ADEA forbids an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age" or "to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age." 29 U.S.C.A. § 623(a)(1), (2). The ADA makes it unlawful for an employer to discriminate "against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C.A. § 12112(a)

         Ms. Dickerson's Title VII race discrimination, ADEA age discrimination, and ADA disability discrimination claims are all analyzed under the burden-shifting framework announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). First, the plaintiff carries the initial burden of establishing a prima facie case. Id. "If [the plaintiff] establishes a prima facie case, the State must provide a legitimate, non-discriminatory reason for the adverse employment action." Shahin v. Delaware, 424 Fed.Appx. 90, 92-93 (3d Cir. 201 l)(applying burden-shifting framework in Title VII cases and citing Jones v. Sch. Dist. of Philadelphia, 198 F.3d 403, 410 (3d Cir. 1999)). "If the State is able to proffer such a reason, [the plaintiff] must show that it is a pretext for discrimination." Id.; see also Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir. 2000) (finding that the burden-shifting framework of McDonnell Douglas applies to ADA retaliation claims); Gress v. Temple Univ. Health Sys., No. 18-3085, 2019 WL 4511720, at *2 (3d Cir. Sept. 19, 2019)(applying McDonnell Douglass burden shifting framework to ADEA claims).

         Step one, the prima facie case, whether under Title VII, the ADEA, or the ADA, has parallel elements:

Title VII - a plaintiff must show:
(1) she belongs to a protected class;
(2) she was qualified for the position;
(3) she was subject to an adverse employment action despite being qualified; and (4) under circumstances that raise an inference of discriminatory action.

Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003)(citing McDonnell Douglas, 411 U.S. at 802).

ADEA - a plaintiff must show:
(1) she is over forty;
(2) is qualified for the position in ...

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