Moore v. Jennings et al
Filing
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MEMORANDUM ORDER: Defendants' Motion to Dismiss (D.I. 17 ) is GRANTED. The Court shall give Plaintiff 14 days from the issuance of this Order to file an Amended Complaint. Plaintiff is advised that filing an Amended Complaint that fails to reme dy the deficiencies will likely result in dismissal with prejudice. Alternatively, if Plaintiff chooses not to timely file an Amended Complaint, this case will be closed. (See Order for complete details). Signed by Judge Jennifer L. Hall on 1/29/2025. ***Copy mailed to Pro Se Plaintiff on 1/29/2025*** (ceg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
VENUS MOORE,
Plaintiff,
v.
KATHY JENNINGS, et al.,
Defendants.
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) C.A. No. 24-208 (JLH)
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MEMORANDUM ORDER
1.
On February 16, 2024, pro se Plaintiff Venus Moore filed a Complaint alleging
employment discrimination. The Complaint names as Defendants (1) Delaware Attorney General
Kathy Jennings, (2) Delaware State Solicitor Patricia Davis Oliva, (3) Delaware Deputy Attorney
General Gabriela Kejner, (4) Delaware Deputy Attorney General Adria B. Marinelli, (5) Kirstin
Melero, and (6) Stacey Lynch, and (7) Dava Newman, Deputy Cabinet Secretary of the Delaware
Department of Health and Human Services. (D.I. 2.) Now pending before the Court is Defendants’
Motion to Dismiss. (D.I. 17, 18.) For the reasons summarized below, the motion is GRANTED.
2.
The Complaint and attached exhibits reflect that Plaintiff was terminated from
employment with the State of Delaware Department of Health and Human Services in 2022.
Plaintiff’s Complaint alleges three claims: (1) violation of the Americans with Disabilities Act
(ADA); (2) violation of the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA); and
(3) Violation of the Age Discrimination in Employment Act (ADEA). (D.I. 2 at 3.)
3.
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 “wellpleaded facts” are true but need not assume the truth of legal conclusions. Id. at 679. “[W]hen the
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, 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. 89, 94 (2007).
4.
A defendant may also move to dismiss a complaint under Federal Rule of Civil
Procedure 12(b)(1) for lack of subject matter jurisdiction. “A facial 12(b)(1) challenge, which
attacks the complaint on its face without contesting its alleged facts, is like a 12(b)(6) motion in
requiring the court to consider the allegations of the complaint as true.” Hartig Drug Co. v. Senju
Pharm. Co., 836 F.3d 261, 268 (3d Cir. 2016) (internal quotation marks and citation omitted).
5.
Plaintiff’s ADA claim will be dismissed. There are multiple problems with the
ADA claim. For example, the Complaint and attached exhibits do not plead facts connecting the
individuals named as defendants with anything plausibly suggesting any discrimination on the
basis of a disability, any retaliation for any protected activity, any denial of a reasonable
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accommodation, or any other violations of the ADA. And even if Plaintiff were to name an
appropriate defendant for her ADA claim, it is well settled that claims for money damages against
the state for employment discrimination under the ADA are barred by the Eleventh Amendment.
Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 362 (2001); Brooks v. Delaware,
Dep’t of Health & Soc. Servs., No. 10-569, 2012 WL 1134481, at *4 (D. Del. Mar. 30, 2012).
6.
Plaintiff’s VEVRAA claim will also be dismissed, as there is no private right of
action under VEVRAA. Jackson v. Dana Corp., No. 98-5431, 1999 WL 1018241, at *10 (E.D.
Pa. Nov. 9, 1999).
7.
The Complaint also fails to state a claim under the ADEA. Among the many
problems with the ADEA claim are that the Complaint fails to allege any facts plausibly suggesting
that Plaintiff was discriminated against on the basis of her age or that the named defendants are
legally responsible.
8.
Defendants also point out, and Plaintiff does not dispute, that the Equal
Employment Opportunity Commission issued Plaintiff a Right to Sue letter on August 18, 2023.
Plaintiff only had 90 days from her receipt of the letter to file suit; however, Plaintiff did not file
her Complaint here until almost 6 months later, on February 16, 2024. Thus, even if Plaintiff fixed
all of the deficiencies in her pleading, her ADA and ADEA claims appear to be time-barred. See
Burgh v. Borough Council of Borough of Montrose, 251 F.3d 465, 470 (3d Cir. 2001) (“We have
strictly construed the 90–day period and held that, in the absence of some equitable basis for
tolling, a civil suit filed even one day late is time-barred and may be dismissed.”).
9.
Out of an abundance of caution, Plaintiff will be granted leave to amend her
Complaint to attempt to address the deficiencies noted above. The Court shall give Plaintiff
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fourteen (14) days from the issuance of this Order to file an amended complaint. If Plaintiff
chooses to file an Amended Complaint, it will wholly replace her Complaint. Plaintiff is 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.
Dated: January 29, 2025
_____________________________
Jennifer L. Hall
United States District Judge
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