Fogbawah v. National Railroad Passenger Corporation

Filing 41

MEMORANDUM OPINION. Signed by Judge Jennifer L. Hall on 9/25/2024. (ceg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
TOM K. FOGBAWAH,
Plaintiff,
v.
NATIONAL RAILROAD PASSENGER,
CORPORATION,
Defendant.

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) C.A. No. 23-501 (JLH)
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MEMORANDUM OPINION
Tom K. Fogbawah, Wilmington, Delaware, Pro Se Plaintiff.
Jared Thomas Green, Esq., Richard J. Kim, Esq., Seitz, Van Ogtrop & Green, P.A., Wilmington,
Delaware. Counsel for Defendant.

September 25, 2024
Wilmington, Delaware

HALL, U.S. District Judge:
I.

INTRODUCTION
Plaintiff Tom K. Fogbawah, proceeding pro se, filed a Complaint on May 8, 2023, alleging

civil rights and employment violations by Defendant National Railroad Passenger Corporation.
(D.I. 2.) This matter was reassigned to me in January 2024. Defendant now moves to dismiss the
Complaint and to strike certain post-Complaint filings by Plaintiff. (D.I. 21.) Additionally,
Plaintiff moves for leave to file a sur-reply regarding Defendant’s motion to dismiss and strike.
(D.I. 34.) I now resolve the pending motions as follows.
II.

BACKGROUND
The Complaint alleges that Defendant retaliated and discriminated against Plaintiff based

on disability, race, national origin, and age between August 30, 2021, and February 15, 2022, in
Wilmington, Delaware. (D.I. 2 at 3–4.) According to the Complaint, Plaintiff sustained a
permanent knee injury after an accident at work in 2019. (Id. at 4.) Plaintiff then initiated legal
action in an attempt to have Defendant cover his medical expenses related to the knee injury. (Id.
at 5.) Plaintiff experienced retaliation at work after the lawsuit was filed. (Id.) The Complaint
does not specify the timing, location, parties involved, or other details regarding the alleged
retaliation. As of the filing of the Complaint, the lawsuit remained pending, and Plaintiff’s medical
expenses were still unpaid. (Id.)
Plaintiff alleges that he contracted COVID-19 in 2021. (Id. at 4.) After recovering,
Plaintiff reported to work and was told by a manager that Plaintiff’s position “had been abolished.”
(Id. at 5.) No additional details are provided, but at some point, Plaintiff resumed work for
Defendant. Then, in 2022, Plaintiff was suspended from work for “harassing [his] co-workers to

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put their mask[s] on,” “with mandatory mental evaluation as a condition to return to work.” (Id.)
This suspension occurred the day after Plaintiff told a co-worker to put on his mask because the
co-worker had a runny nose while the two were riding to a worksite together in a company vehicle.
(Id.) Plaintiff stopped receiving paychecks from Defendant roughly a month-and-a-half after the
suspension. (Id.)
The Complaint states, “A detailed explanation with additional facts will be submitted
later.” (Id. at 6.) Finally, the Complaint requests relief in the form of “los[t] wages[,] back pay
for all the times that [Plaintiff has] been suspended[,] and return to work as per work experience
and education.” (Id. at 7.)
III.

LEGAL STANDARD
A defendant may move to dismiss a complaint under Federal Rule of Civil Procedure

12(b)(6) for failure to state a claim. “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)). A claim is plausible on its face when the complaint contains “factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550 U.S. at 556). A possibility of relief is not enough. Id. “Where
a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of
the line between possibility and plausibility of entitlement to relief.’” Id. (quoting Twombly, 550
U.S. at 557).
In determining the sufficiency of the complaint, the court must assume all “well-pleaded
facts” are true but need not assume the truth of legal conclusions. Id. at 679. “[W]hen the

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allegations in a complaint, however true, could not raise a claim of entitlement to relief, this basic
deficiency should be exposed at the point of minimum expenditure of time and money by the
parties and the court.” Twombly, 550 U.S. at 558 (internal quotation marks omitted).
Because Plaintiff proceeds pro se, his pleading is liberally construed and his Complaint,
“however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted
by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007).
IV.

DISCUSSION
Upon review of the Complaint, and with the benefit of adversarial briefing, the Court

concludes that the Complaint fails to state a claim upon which relief can be granted. Specifically,
the Complaint alleges workplace discrimination and retaliation by Defendant without providing
sufficient facts to render such allegations facially plausible.
For instance, the Complaint provides no examples or details regarding the alleged
retaliation Plaintiff experienced in 2019 after Plaintiff pursued legal action to have Defendant
cover the medical expenses associated with Plaintiff’s on-the-job knee injury. Instead, the
Complaint merely alleges that retaliation occurred. This is a legal conclusion, which the Court
does not credit in the absence of factual allegations from which retaliation could be reasonably
inferred. See Iqbal, 556 U.S. at 679.
Additionally, regarding Plaintiff’s post-COVID job loss in 2021, the Complaint merely
states that Plaintiff’s position was “abolished.” The Complaint provides no facts from which the
Court could reasonably infer that the elimination of Plaintiff’s position was retaliatory or
discriminatory, as opposed to being based on a temporary lack of work, funds, reorganization, or
any other lawful reason. Similarly, the Court cannot reasonably infer from the facts presented that

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Plaintiff’s suspension in 2022 was retaliatory or discriminatory. The Complaint provides no facts
to suggest that the basis for suspension was other than Defendant’s given reason, specifically,
Plaintiff’s harassment of co-workers.
In sum, the Court cannot reasonably infer from the facts alleged in the Complaint that
Defendant is liable for discrimination or retaliation against Plaintiff. In other words, the factual
allegations in the Complaint do not raise a claim of entitlement to the relief Plaintiff’s seeks. See
Twombly, 550 U.S. at 558. Accordingly, the Complaint will be dismissed for failure to state a
claim upon which relief can be granted.
Plaintiff will be given an opportunity to file an amended complaint remedying the
deficiencies discussed above. If Plaintiff chooses to file an amended complaint, Plaintiff may not
add any new claims; Plaintiff may only amend the allegations in the Complaint to remedy the
above-discussed deficiencies. Plaintiff should be advised that filing an amended complaint that
fails to remedy the above-discussed deficiencies will likely result in dismissal with prejudice.
Alternatively, if Plaintiff chooses not to timely file an amended complaint, this case will be closed.
V.

CONCLUSION
For the above reasons, the Court will grant Defendant’s Motion to Dismiss the Complaint.

(D.I. 22.) Defendant’s motion to strike certain post-Complaint filings (id.) will be denied as moot.
Plaintiff’s motion for leave to file sur-reply (D.I. 34) will be denied.
An appropriate Order will be entered.

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