Burton v. Lawson et al

Filing 5

MEMORANDUM. Signed by Judge Sue L. Robinson on 10/26/2016. (cna)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

STACIE TOMIKA BURTON,
Plaintiff,

)
Civ. No. 16-645-SLR

)
SUSSEX COUNTY COUNCIL, et al.,
Defendants.

MEMORANDUM

1. Introduction. Plaintiff Stacie Tomika Burton ("plaintiff) proceeds pro se and
has been granted in forma pauperis status. She filed this complaint alleging
employment discrimination pursuant to Title VII. (D.I. 2)

2. Standard of Review. A federal court may properly dismiss an action sua
sponte under the screening provisions of 28 U.S.C. § 1915(e)(2)(B) if "the action is
frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such relief." Ball v. Famlglio, 726

F.3d 448, 452 (3d Cir. 2013); see also 28 U.S.C. § 1915(e)(2) (in forma pauperis

actions). The court must accept all factual allegations in a complaint as true and take
them in the light most favorable to a pro se plaintiff. Phillips v. County of Allegheny,
515 F.3d 224, 229 (3d Cir. 2008); Erickson v. Pardus, 551 U.S. 89, 93 (2007). Because
plaintiff proceeds pro se, her pleading is liberally construed and her complaint,
"however inartfully pleaded, must be held to less stringent standards than formal

pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. at 94 (citations omitted).

3. An action is frivolous if it "lacks an arguable basis either in law or in fact."
Neitzke v. Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.C. § 1915(e)(2)(B)(i). a

court may dismiss a complaint as frivolous if it is "based on an indisputably meritless
legal theory" or a "clearly baseless" or "fantastic or delusional" factual scenario.
Neitzke, 490 at 327-28; Wiison v. Rackmiil, 878 F.2d 772, 774 (3d Cir. 1989). The legal

standard for dismissing a complaint for failure to state a claim pursuant to § 1915(e)(2)(B)(ii)
is identical to the legal standard used when ruling on Rule 12(b)(6) motions. Tourscher
V. McCuilough, 184 F.3d 236, 240 (3d Cir, 1999) (applying Fed. R. Civ. P. 12(b)(6)
standard to dismissal for failure to state a claim under § 1915(e)(2)(B)). However,

before dismissing a complaint or claims for failure to state a claim upon which relief
may be granted pursuant to the screening provisions of 28 U.S.C. § 1915, the court
must grant plaintiff leave to amend her complaint unless amendment would be

inequitable or futile. See Grayson v. Mayview State Hosp., 293 F.3d 103,114 (3d Cir.
2002).

4. A well-pleaded complaint must contain more than mere labels and
conclusions. See Ashcroft v. iqbal, 556 U.S. 662 (2009); BeliAtl. Corp. v. Twombly,

550 U.S. 544 (2007). A plaintiff must plead facts sufficient to show that a claim has

substantive plausibility. See Johnson v. City of Shelby,

U.S.

, 135 S.Ct. 346, 347

(2014). A complaint may not dismissed, however, for imperfect statements of the legal

theory supporting the claim asserted. See id. at 346.

5. Under the pleading regime established by Twombly and Iqbal, a court

reviewing the sufficiency of a complaint must take three steps: (1) take note of the
elements the plaintiff must plead to state a claim; (2) identify allegations that, because
they are no more than conclusions, are not entitled to the assumption of truth; and
(3) when there are well-pleaded factual allegations, the court should assume their

veracity and then determine whether they plausibly give rise to an entitlement to relief.
Connelly v. Lane Const. Corp., 809 F.Sd 780, 787 (3d Cir. 2016) (internal citations and
quotations omitted). Elements are sufficiently alleged when the facts in the complaint
"show" that the plaintiff is entitled to relief. Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ.
P. 8(a)(2)). Deciding whether a claim is plausible will be a "context-specific task that

requires the reviewing court to draw on its judicial experience and common sense." Id.
6. Discussion. Plaintiff filed this action as a Title VII claim. The complaint does

not state who employs plaintiff, but suggests that it may be defendant Sussex County

Council ("SCC"). Also named as defendants are county administrator Todd Lawson
("Lawson"), HR director Karen Brewington ("Brewington"), director of assessment
Christopher Keeler ("Keeler"), security manager Ronald S. Verosko, ("Verosko"), chief
constable Michael Costello ("Costello"), and HR specialists Kimberly Bennett ("Bennett")
and Marcia Wilson ("Wilson"). Plaintiff alleges a number of discriminatory acts occurred
from January 2013 through December 2016, such as harassment, failure to promote,
discrimination, discipline, demotion, and retaliation. She seeks compensatory
damages.

7. Deficient Pleading. Plaintiff indicates that she raises her claims pursuant to

Title VII. "Title VII makes it an 'unlawful employment practice for an employer... to

discriminate against any individual.... because of such individual's race, color,
religion, sex, or national origin.'" Connelly v. Lane Const Corp., 809 F.3d 780, 787 (3d
Cir. 2016) (quoting 42 U.S.C. § 2000e-2(a)(1). Here, the complaint does not indicate
by whom plaintiff is employed. Nor does it indicate the basis for discrimination such as
race, color, religion, sex, national origin, age, or disability. See 42 U.S.C. §§ 2000e, et
seq., 42 U.S.C. §§ 12101, etseq., 29 U.S.C. §§ 621, etseq., 29 U.S.C. §§ 701, etseq.
Therefore, the court will dismiss the complaint for failure to state a claim upon which

relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). However, since it
appears plausible that plaintiff may be able to articulate a claim against her employer,
she will be given an opportunity to amend her pleading. See O'Dell v. United States
Gov't, 256 F. App'x 444 (3d Cir. 2007) (unpublished) (leave to amend is proper where
the plaintiff's claims do not appear "patently meritless and beyond all hope of

redemption").^
8. Individual Defendants. Finally, the complaint names several individual

defendants, but its allegations do not lead to the conclusion that any of the individual
defendants are "employers" as required under Title VII. Individual employees cannot

^The court notes that the complaint does not indicate if plaintiff has filed a charge
of discrimination or if she has received a notice of suit rights. Regardless, Third Circuit
jurisprudence holds that, although the failure to pursue administrative remedies before
filing a lawsuit may prevent a plaintiff from proceeding in federal court, the failure to
exhaust is an affirmative defense and should not be the basis of a sua sponte
dismissal. See Mclntyre v. City of Wilmington, 360 F. App'x 355, 356 (3d Cir. 2010)
(unpublished).

be held liable under Title VII. See Sheridan v. E.L DuPont de Nemours and Co., 100

F.3d 1061, 1077 (3d Cir. 1996). Therefore, the court will dismiss Lawson, Brewington,

Keeler, Verosko, Costello, Bennett, and Wilson as the claims against them are legally
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
9. Conclusion. For the above reasons, the court will dismiss the complaint as

legally frivolous and for failure to state a claim upon which relief may be granted
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). Plaintiff will be given leave to amend
the employment discrimination claim against her employer. A separate order shall
issue.

Dated; October^ .2016
UNITED STATES DISTRICT JUDGE