Lozano v. Resources for Human Development et al
MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 8/15/2017. (fms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
XIOMARA EDILMA LOZANO,
Civ. No. 17-587-LPS
RESOURCES FOR HUMAN
DEVELOPMENT, et al.,
Xiomara Edilma Lozano, Townsend, Delaware; Pro Se Plaintiff.
August 15, 2017
Plaintiff Xiomara E. Lozano ("Plaintiff') filed this action on May 22, 2017 under the Age
Discrimination in Employment Act ("ADEA"), 29 U .S.C. § 621, et seq. (D.I. 2) She appears prose
and has been granted leave to proceed in Jonna pauperis. (D.I. 4) The Court proceeds to review and
screen the Complaint pursuant to 28 U.S.C. § 1915(e)(2).
Plaintiff, who was employed as a master clinician by Defendant Resources for Human
Development ("RHD"), alleges that she was terminated by reason of age on December 2, 2016.
While not clear; she may also be alleging discrimination by reason of race, given that she refers to
her race and that of Defendant intern Patricia Hill ("Hill"). It appears that Plaintiff filed a charge of
discrimination, although there is no indication that she received her notice of suit rights from the
United States Equal Employment Opportunity Commission ("EEOC"). 1 Other named defendants
include unit manager and supervisor Michael Brothers ("Brothers") and co-worker Angela Robinson
("Robinson"). Plaintiff alleges that she was replaced by a younger clinician. She seeks
compensatory damages and reinstatement to her position.
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."
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 Mcfnryre
v. Ciry of Wilmington, 360 F. App'x 355, 356 (3d Cir. Jan. 7, 2010).
Baff v. Famiglio, 726 F.3d 448, 452 (3d Cir. 2013); see also 28 U.S.C. § 1915(e)(2) (infarma pauperis
actions). The Court must accept all factual allegations in a complaint as true and take them in the
light most favorable to a prose plaintiff. See Phillips v. County ofAlleghe1!J, 515 F.3d 224, 229 (3d Cir.
2008); Erickson v. Pardus, 551 U.S. 89, 93 (2007). Because Plaintiff proceeds prose, 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, 551 U.S. at 94 (citations omitted).
A~ 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
compfa.int 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; see also Wilson v. Rackmill, 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 deciding Rule 12(b)(6) motions. See
Tourscher v. McCullough, 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 a plainti.ffleave to amend his
complaint unless amendment would be inequitable or futile. See Grqyson v. Mqyview State Hosp., 293
F.3d 103, 114 (3d Cir. 2002).
A complaint may be dismissed only if, accepting the well-pleaded allegations in the
complaint as true and viewing them in the light most favorable to the plaintiff, a court concludes
that those allegations "could not raise a claim of entitlement to relief." Bell At!. Cotp. v. Twombfy, 550
U.S. 544, 558 (2007). Though "detailed factual allegations" are not required, a complaint must do
more than simply provide "labels and conclusions" or "a formulaic recitation of the elements of a
cause of action." Davis v. Abington Mem'I Hosp., 765 F.3d 236, 241 (3d Cir. 2014) (internal quotation
marks omitted). In addition, a complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face. See Williams v. BASF Catafysts LLC, 765 F.3d 306,
315 (3d Cir. 2014) (citing Ashcreft v. Iqbal, 556 U.S. 662, 678 (2009) and Twombfy, 550 U.S. at 570).
Finally, a plaintiff must plead facts sufficient to show that a claim has substantive plausibility. See
Johnson v. City ef Shelf?y, _U.S._, 135 S.Ct. 346, 347 (2014). A complaint may not be dismissed for
imperfect statements of the legal theory supporting the claim asserted. See id. at 346.
Under the pleading regime established by Twombfy 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. See Connelfy v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016). Elements are
sufficiently alleged when the facts in the complaint "show" that the plaintiff is entitled to relief. See
Iqbal, 556 U.S. at 679 (citing 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.
As a matter of law, the ADEA does not provide for individual liability. See Hill v. Borough
Kutzjown, 455 F.3d 225, 246 n. 29 (3d Cir. 2006). Only the "employer" may be held liable under the
ADEA, 29 U.S.C. § 623, and Plaintiff's complaint does not alleges that Brothers, Robinson, or Hill
are her employers. Similarly, to the extent that Plaintiff intended to raise Title VII race
discrimination claims under 42 U.S.C. § 2000e et seq., there is no individual liability. See Shetir/an v.
E.I. Dupont de Nemours & Co., 100F.3d1061, 1077-78 (3d Cir. 1996). Therefore, the Court will
dismiss Brothers, Robinson, and Hill as defendants, as the claims against them fail as a matter of
For the above reasons, the Court will dismiss Defendants Brothers, Robinson, and Hill, as
the claims against them are legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Plaintiff will be
allowed to proceed against RHD.
An appropriate Order follows.
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