United States District Court, D. New Jersey
McNulty United States District Judge.
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.
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.
Factual Allegations 
Complaint (full version at ¶ 5-2, pp.
5-23) 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.
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
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).
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).
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.].
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).
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).
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).
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).
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."').
Claims against Crawford, Mongelli, and Rubitz
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. . . .").
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.
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)).
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").
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
Discrimination claims against NJIT
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).
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)
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).
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
ADEA - a plaintiff must show:
(1) she is over forty;
(2) is qualified for the position in ...