CARROLL v. DELAWARE RIVER PORT AUTHORITY

Filing 8

OPINION. Signed by Judge Joseph E. Irenas on 7/9/2013. (drw)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ANTHONY J. CARROLL,

:
:
Plaintiff,
:
:
v.
:
:
:
DELAWARE RIVER PORT AUTHORITY,:
:
Defendant.
:
:

HONORABLE JOSEPH E. IRENAS
Civ. Action No. 13-2833(JEI/AMD)
OPINION

APPEARANCES:
MATTHEW S. WOLF, ESQUIRE, LLC
By: Matthew S. Wolf, Esq.
B, 2ND Floor
1236 Brace Road
Cherry Hill, NJ 08034
Counsel for Plaintiff
DEASEY, MAHONEY, VALENTINI & NORTH LTD
By: Carla P. Maresca, Esq.
80 Tanner Street
Haddonfield, NJ 08033-2419
Counsel for Defendant

IRENAS, Senior District Judge:
In this employment discrimination case, Plaintiff Anthony J.
Carroll alleges that his employer, Delaware River Port Authority
(“DRPA”), denied him promotional opportunities on account of his
military service, in violation of the Uniformed Services Employment
and Reemployment Rights Act, 38 U.S.C. §§ 4301 to 4335 (“USERRA”). 1
Before the Court is DRPA’s Motion to Dismiss pursuant to Fed. R. Civ.
1

The Court exercises federal question subject matter jurisdiction
pursuant to 28 U.S.C. § 1331.

P. 12(b)(6), or, alternatively, for a More Definite Statement
pursuant to Fed. R. Civ. P. 12(e).

For the reasons discussed below,

DRPA’s Motion to Dismiss will be granted, but Carroll will be given
an opportunity to amend his Complaint.

Therefore, the Court does not

reach the 12(e) issue.

I.
The Complaint alleges the following facts.
Carroll is a member of the Pennsylvania Army National Guard,
with concurrent civilian employment with the DRPA as a police
officer. (Compl. ¶¶ 3, 6.)

Carroll began his employment with the

DRPA on August 7, 1989, and was promoted to the rank of Corporal in
December, 2004.

(Id. ¶¶ 4-5.)

The Complaint does not plead the

dates during which Carroll was on active duty.

It merely states,

“[d]uring various times of his employment, Plaintiff was mobilized to
active duty in the Army National Guard.”

(Id. ¶ 7.)

Five paragraphs within the Complaint allege the facts giving
rise to Carroll’s claims.

They read, in their entirety:

9.

In 2003, Plaintiff was denied the opportunity to even
apply for promotion due to his active duty status.

10.

In 2010, Plaintiff applied for a Sergeant’s position
and was not selected.

11.

In 2012, Plaintiff applied for a Sergeant’s position
and was again not selected.

12.

Each time Plaintiff was overlooked for promotion to
Sergeant, and the time that he was not permitted to
apply for said promotion, it was because of his
military service.

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13.

Each time someone else was promoted, they were less
qualified and military service was not held against
those who were promoted.

(Id. ¶¶ 9-13.)
On March 28, 2013, Carroll filed suit in the Camden County
Superior Court.

On May 2, 2013, DRPA removed the case to this Court.

As previously stated, DRPA now moves to dismiss the Complaint
pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim,
or, in the alternative, for a more definite statement pursuant to
Fed. R. Civ. P. 12(e).

II.
Federal Rule of Civil Procedure 12(b)(6) provides that a court
may dismiss a complaint “for failure to state a claim upon which
relief can be granted.”

In order to survive a motion to dismiss, a

complaint must allege facts that raise a right to relief above the
speculative level.

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

(2007); see also Fed. R. Civ. P. 8(a)(2).
While the Court must accept as true all factual allegations in
the complaint, and view them in a light most favorable to the
plaintiff, Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010), a
court is not required to accept sweeping legal conclusions cast in
the form of factual allegations, unwarranted inferences, or
unsupported conclusions. Id.

The complaint must state sufficient

facts to show the legal allegations are not simply possible, but
plausible.

Id. at 230.

“A claim has facial plausibility when the

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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, 663 (2009).

[I]f a complaint is subject to a Rule 12(b)(6) dismissal, a
district court must permit a curative amendment unless such an
amendment would be inequitable or futile.”

Great Western Mining &

Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 174 (3d Cir. 2010)
(internal citation and quotation omitted; emphasis added).

Stated

another way, “[d]ismissal without leave to amend is justified only on
the grounds of bad faith, undue delay, prejudice, or futility.”
Alston v. Parker, 363 F.3d 229, 236 (3d Cir. 2004).

III.
USERRA was enacted to “minimize the disadvantages experienced
by service members in their civilian careers...to prevent
discrimination on the basis of an employee’s service, and to prevent
the deprivation of an of an employment benefit based on military
status.”

Lopez-Arenas v. Zisa, No. 10-2668, 2012 WL 933251, at *7

(D.N.J. March 19, 2012) (citing Gordon v. Wawa, Inc., 388 F.3d 78, 85
(3d Cir. 2004)).

Carroll brings suit under Section 4311(a) of

USERRA, which provides, in relevant part, “[a] person who is a member
of ... a uniformed service 2 shall not be denied ... promotion, or any

2

Membership in the Army National Guard is considered a military
obligation, and thus Plaintiff is a member of the uniformed service
for purposes of USERRA. See Hart v. Twp. of Hillside, 228 Fed. App’x
159 (3d Cir. 2007).
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benefit of employment by an employer on the basis of that
membership.”

38 U.S.C. § 4311(a).

Given the similarity of USERRA’s antidiscrimination provision to
Title VII’s antidiscrimination provision, 3 Title VII pleading
requirements are instructive as to what a USERRA plaintiff must
allege.
To state a prima facie claim of discrimination under Title VII,
Plaintiff must allege that: (1) he is a member of a protected class;
(2) he was qualified for the position at issue; (3) he was not
promoted; and (4) Defendants filled the spot with a similarly
situated applicant who was not of plaintiff’s protected class.

See

Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994); Ezold v. Wolf,
Block, Schorr and Solis-Cohen, 983 F.2d 509, 523 (3d Cir. 1992); see
also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
As described supra, the Complaint apparently alleges three
separate instances of discrimination on the basis of military
service: denial of the opportunity to apply for a promotion in 2003;
failure to promote in 2010; and failure to promote again in 2012.
First, the 2003 claim fails because Carroll does not allege
sufficient facts to put DRPA on notice as to the nature of his claim.
Carroll merely pleads, in conclusory fashion, that he “was denied the
3

Compare 38 U.S.C. § 4311(a) (“A person who is a member of . . . a
uniformed service shall not be denied . . . promotion, or any benefit
of employment by an employer on the basis of that membership.”) with
42 U.S.C. §§ 2000e-2(a)(2) (“It shall be an unlawful employment
practice to . . . deprive any individual of employment opportunities
. . . because of such individual’s race, color, religion, sex, or
national origin.”); see also Staub v. Proctor Hosp., 131 S. Ct. 1186,
1191 (2011) (observing that USERRA is “very similar to Title VII.”).
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opportunity to even apply for promotion due to his active duty
status.”

(Compl. ¶ 9)

Nowhere does Carroll allege how DRPA

prevented Carroll from applying for a promotion.

The Court (and

indeed DRPA) is left to wonder, what does Carroll allege that DRPA
did or did not do?

Such limited factual pleading does not pass

muster under Rule 8, Twombly, and Iqbal.
Second, as to all three claims, Carroll does not allege that the
people promoted were not members of his protected class.

Indeed, by

asserting that “military service was not held against those who were
promoted” (Compl. ¶ 13), Carroll seems to suggest that those who were
promoted did serve in the military.
Lastly, Carroll’s blanket allegation that the people who were
selected for promotion were “less qualified” than Carroll does not
necessarily mean that Carroll was qualified for the promotions he
sought.

In any event, such an allegation is merely conclusory.

Carroll does not identify the requisite qualifications of a Sergeant
in the DRPA police force; nor does he state what his own
qualifications were during the relevant time periods.

As already

stated, Carroll’s claims are not supported by sufficient factual
allegations to withstand the instant Motion to Dismiss.
As to all three claims of the Complaint, Carroll fails to plead
facts supporting the requisite elements of a USERRA cause of action.
Accordingly, DRPA’s Motion to Dismiss will be granted.

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However, in

accordance with Third Circuit precedent, Carroll will be granted
leave to file an Amended Complaint. 4

IV.
For the above-stated reasons, DRPA’s Motion to Dismiss will be
granted, but Carroll will be given leave to file an Amended
Complaint.

Date: July

An appropriate Order accompanies this Opinion.

9th , 2013

s/ Joseph E. Irenas
JOSEPH E. IRENAS, S.U.S.D.J.

4

It is possible that amending the 2003 claim would be futile because
the claim may be time-barred. In 2008, Congress amended USERRA to
make clear that suits under the statute may be brought at any time.
See 38 U.S.C. § 4327(b) (“If any person seeks to file a complaint . .
. with . . . a Federal or State court under this chapter alleging a
violation of this chapter, there shall be no limit on the period for
filing the complaint or claim.”). However, many courts have held
that § 4327(b) does not retroactively apply to claims that accrued
prior to § 4327(b)’s enactment on October 10, 2008, and that claims
such as Carroll’s are subject to a four-year statute of limitations.
See Baldwin v. City of Greensboro, 714 F.3d 828 (4th Cir. 2013); Dean
v. City of New Orleans, 2013 U.S. App. LEXIS 9106 (5th Cir. May 3,
2013); Middleton v. City of Chicago, 578 F.3d 665 (7th Cir. 2009);
Charcalla v. General Electric Trans. Sys., 2012 WL 1436563 (W.D.Pa.
2012); Tully v. County of Nassau, 2012 WL 487007 (E.D.N.Y. 2012);
Moore v. United Airlines, Inc., 2011 WL 2144629 (D. Colo. 2011);
Risner v. Haines, 2009 WL 4280734 (N.D. Ohio 2009); Roark v. Lee Co.,
2009 WL 4041691 (M.D. Tenn. 2009); Hogan v. United Parcel Service,
648 F. Supp. 2d 1128 (W.D. Mo. 2009).
However, because the parties have not briefed the issue (DRPA
did not raise a statute of limitations defense in the instant
Motion), the Court declines to rule on it at this time. If Carroll
includes the 2003 claim in his Amended Complaint, DRPA may raise the
issue in an appropriate pleading or motion.
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