CARTER v. AMAZON ACY1 et al
OPINION. Signed by Judge Noel L. Hillman on 9/29/2021. (rtm, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
AMAZON, et al.,
480 MAURICE RIVER PKWY
VINELAND, NJ 08360
Plaintiff appearing pro se
AUGUST W. HECKMAN, III
MORGAN, LEWIS & BOCKIUS LLP
502 CARNEGIE CENTER
PRINCETON, NJ 08540-6241
Counsel on behalf of Defendants Amazon.com Services, LLC
and Charlotte Smythe
HILLMAN, District Judge
This matter comes before the Court by way of Defendants
Amazon.com Services, LLC. (incorrectly identified as “Amazon
Acyl”)(“Defendant Amazon”) and Charlotte Smythe’s (“Defendant
Smythe”)(collectively the “Defendants”) Motion to Dismiss.
the reasons expressed below, Defendants’ Motion to Dismiss will
be GRANTED. 1
While the Court allowed this matter to proceed after initial
screening pursuant to 28 U.S.C. § 1915, the Court did not
explicitly rule on whether the allegations in the Amended
Plaintiff, an employee of Defendant Amazon, alleges he had
a conversation with Defendant Smythe “concerning [his] issues on
the discrimination taken [sic] place at Amazon.”
(ECF No. 9 at
Defendant Smythe responded by explaining “[t]here’s no
diversity on our shift.”
Plaintiff contends “everyone in
meaningful positions [at Amazon] are all Caucasian” and that
“[t]hese positions that are not given to others has prevented
people of color from reaching higher goals for advancement on
Plaintiff argues “[t]his is unfair to thee
people of color . . . because they’ll never get the training
needed to score high enough to qualify for an interview.”
Plaintiff alleges he was informed by another area manager at
Amazon that he “should feel lucky” because a different area
manager “had to fight to get [Plaintiff’s] problem solved
Plaintiff explains that since his
Complaint stated a claim under Title VII. Accordingly, the
Court’s screening order, ECF No. 4, has no preclusive effect.
Nevertheless, even if this Court’s grant of Plaintiff’s
application to proceed in forma pauperis and order directing the
filing of the Amended Complaint could be construed as a finding
that the Amended Complaint state a valid cause of action, “this
Court recognizes ‘[a] § 1915(e) screening determination is a
preliminary and interlocutory holding, subject to revision at
any time prior to entry of final judgment.’” Richardson v.
Cascade Skating Rink, No. 19-08935, 2020 U.S. Dist. LEXIS
236296, at *4-5 (D.N.J. Dec. 16, 2020)(quoting Magruder v.
Grafton Corr. Inst., No. 19-1980, 2020 U.S. Dist. LEXIS 93926,
at *7-8 (N.D. Ohio April 1, 2020)). After more careful scrutiny
of the Amended Complaint, the Court finds Plaintiff fails to
state a claim under Title VII.
“training others have followed” and that he “wonder[s] if
someone fight [sic] for them to be trained.”
finally contends that “[t]he response [he] received from site
Manager was to change [his] shift.”
As a result of the foregoing, Plaintiff filed the Amended
Complaint against Defendants asserting Title VII claims.
Plaintiff checked boxes on the form complaint that the
discriminatory conduct on which he bases his Amended Complaint
is as follows: (1) failure to promote; (2) retaliation; and (3)
unequal terms and conditions of employment. 2
checked boxes on the form complaint that such discriminatory
conduct occurred because of his race (African American/Indian),
color (Brown skin), and disability (speech impediment).
a. Subject Matter Jurisdiction
This Court has subject matter jurisdiction over this case
under 28 U.S.C. § 1331.
b. Legal Standard for Motion to Dismiss Under Rule 12(b)(6)
When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted
pursuant to Federal Rule of Civil Procedure 12(b)(6), a court
Plaintiff also checked the box “other acts” and explained he
was told by Defendant Smythe “not to say anything about unfair
treatment, just d.” (ECF No. 9 at 4.) Plaintiff fails to
conclude this sentence. The Court will at this stage, accept as
true, Defendant Smythe informed Plaintiff “not to say anything
about unfair treatment.”
must accept all well-pleaded allegations in the complaint as
true and view them in the light most favorable to the plaintiff.
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005).
It is well
settled that a pleading is sufficient if it contains “a short
and plain statement of the claim showing that the pleader is
entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
“While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a
plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do . . . .”
Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (alteration in original)
(citations omitted) (first citing Conley v. Gibson, 355 U.S. 41,
47 (1957); Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc.,
40 F.3d 247, 251 (7th Cir. 1994); and then citing Papasan v.
Allain, 478 U.S. 265, 286 (1986)).
To determine the sufficiency of a complaint, a court must
take three steps: (1) the court must take note of the elements a
plaintiff must plead to state a claim; (2) the court should
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, a court
should assume their veracity and then determine whether they
plausibly give rise to an entitlement for relief.
George, 641 F.3d 560, 563 (3d Cir. 2011) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 664, 675, 679 (2009) (alterations,
quotations, and other citations omitted).
A district court, in weighing a motion to dismiss, asks
“not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claim.”
Twombly, 550 U.S. at 563 n.8 (quoting Scheuer v. Rhoades, 416
U.S. 232, 236 (1974)); see also Iqbal, 556 U.S. at 684 (“Our
decision in Twombly expounded the pleading standard for ‘all
civil actions’ . . . .”); Fowler v. UPMC Shadyside, 578 F.3d
203, 210 (3d Cir. 2009) (“Iqbal . . . provides the final nail in
the coffin for the ‘no set of facts’ standard that applied to
federal complaints before Twombly.”).
“A motion to dismiss
should be granted if the plaintiff is unable to plead ‘enough
facts to state a claim to relief that is plausible on its
Malleus, 641 F.3d at 563 (quoting Twombly, 550 U.S. at
In the case where a plaintiff is proceeding without
counsel, pro se complaints, “however inartfully pleaded, must be
held to less stringent standards than formal pleadings drafted
Estelle v. Gamble, 429 U.S. 97, 106
(1976)(quotations and citations omitted).
Pro se litigants,
however, must still plead the essential elements of their claim
and are not excused from conforming to the standard rules of
McNeil v. United States, 508 U.S. 106, 113
(1993) (“[W]e have never suggested that procedural rules in
ordinary civil litigation should be interpreted so as to excuse
mistakes by those who proceed without counsel.”); Sykes v.
Blockbuster Video, 205 F. App’x 961, 963 (3d Cir. 2006) (finding
that pro se plaintiffs are expected to comply with the Federal
Rules of Civil Procedure).
a. Title VII Claims Against Defendant Smythe
Defendants argue Plaintiff’s Amended Complaint must be
dismissed against Defendant Smythe because “Title VII does not
recognize individual employee liability.”
(ECF No. 18-1 at 8).
Plaintiff fails to provide a response to this argument.
Court agrees with Defendants.
“Third Circuit jurisprudence is clear that Title VII does
not subject individual supervisory employees to liability.”
Spence v. New Jersey, No. 19-21490(NLH), 2021 U.S. Dist. LEXIS
70128, at *9 (D.N.J. Apr. 12, 2021)(citations omitted)(quoting
Simon v. Shore Cab, LLC, No. 13-6290, 2014 U.S. Dist. LEXIS
83435, at *13-14 (D.N.J. June 19, 2014)); see also Sheridan v.
E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1078 (3d Cir.
1996)(“Congress did not intend to hold individual employees
liable under Title VII”); Emerson v. Thiel Coll., 296 F.3d 184,
190 (3d Cir. 2002) (“[I]ndividual employees are not liable under
The Court recognizes that “[w]hen a plaintiff files a
complaint pro se and is faced with a motion to dismiss, ‘unless
amendment would be futile, the District Court must give a
plaintiff the opportunity to amend her complaint.” Spann v.
Cumberland/Salem Mun. Court, No. 21-11066, 2021 U.S. Dist. LEXIS
102393, at *4 (D.N.J. June 1, 2021)(quoting Phillips v. County
of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008)(emphasis in
“This is the case even when leave to amend has not
been sought; in such a situation, a district court is directed
to set a time period for leave to amend.”
Id. (citing Shane v.
Fauver, 213 F.3d 113, 116 (3d Cir. 2000)).
Based on the well-
establish case law, it appears that any attempt to amend
Plaintiff’s Amended Complaint against Defendant Smythe would be
Accordingly, Plaintiff’s Title VII claim against
Defendant Smythe will be dismissed with prejudice.
Spence, 2021 U.S. Dist. LEXIS 70128, at *9-10 (dismissing with
prejudice plaintiff’s Title VII claims against individual
b. Title VII Claims Against Defendant Amazon
The Court interprets Plaintiff’s Amended Complaint to
essentially assert three Title VII claims: (1) failure to
promote; (2) retaliation; and (3) unequal terms and conditions
For the purposes of the standard applied to Rule
12(b)(6) motions, Plaintiff need not plead all of the prima
facie elements of her discrimination claims at this stage, but
still must “allege sufficient facts to raise a reasonable
expectation that discovery will uncover proof of her claims.”
Connelly v. Lane Constr. Corp., 809 F.3d 780, 789 (3d Cir.
The Court similarly notes its duty to hold the complaint
of a pro se plaintiff “to less stringent standards than formal
pleadings drafted by lawyers.”
Estelle, 429 U.S. at 106.
Plaintiff, however, has failed to plead almost any facts at all,
and accordingly has failed to state a claim under Title VII.
The Court turns first to Plaintiff’s failure to promote
“To state a prima facie case of failure to promote in
violation of Title VII, a plaintiff must show ‘(i) that [s]he
belongs to a [protected category]; (ii) that [s]he applied and
was qualified for a job for which the employer was seeking
applicants; (iii) that, despite [her] qualifications, [s]he was
rejected; and (iv) that, after [her] rejection, the position
remained open and the employer continued to seek applicants from
persons of complainant’s qualifications.’”
Rhodes v. Camden
Redevelopment Agency, No. 20-20337 (NLH), 2021 U.S. Dist. LEXIS
4062, at *9 (D.N.J. Jan. 8, 2021)(quoting Dickerson v. New
Jersey Institute of Tech., No. 19-8344, 2019 U.S. Dist. LEXIS
197518, at *14-15 (D.N.J. Nov. 14, 2019)(alteration in
As to the second element the Court recognizes that
“[a]lthough some courts have held that failure to apply for a
promotion is fatal to a failure to promote claim, many courts
have overlooked this failure in certain cases, such as when the
promotional system did not involve a formal application process
and when a plaintiff’s attempts to apply for a promotion have
Id. (citing Dickerson, 2019 U.S.
at *16) (quoting Khair v. Campbell Soup Co., 893 F. Supp. 316, 331
(D.N.J. 1995), on reconsideration in part (July 3, 1995)).
Here, Plaintiff, an African American, satisfies the first
Plaintiff alleges “everyone in meaningful positions
are all Caucasian. These positions that are not given to others
have prevented people of color from reaching higher goals or
better-paying jobs within the company.”
(ECF No. 9).
further alleges “[t]he H.R. department has implemented a matrix
system for advancement on the job” and that this is “unfair to
people of color on FHN because they’ll never get the training
needed to score high enough to qualify for an interview.”
Even if the Court were to consider these well-pleaded facts,
Plaintiff has still failed to plead enough additional facts to
state a failure to promote claim.
Plaintiff pleads he actually
received the requisite training for promotions and “fails to
plead any specific promotional opportunities, whether he
applied for or attempted to pursue them, or any specifics
whatsoever about the alleged promotions he claims to have
missed out on.”
Rhoades, 2021 U.S. Dist. LEXIS 4062, at *11.
“Without any specific factual allegations, Plaintiff’s claims
fail to meet Federal Rule of Civil Procedure 8(a)’s pleading
standards” and accordingly, the Court must dismiss Plaintiff’s
Title VII claim based on the failure to promote.
Plaintiff’s second claim is for retaliation.
“A claim of
discriminatory retaliation has three elements: (1) plaintiff
‘engaged in conduct protected by Title VII; (2) the employer
took adverse action against her; and (3) a causal link exists
between her protected conduct and the employer’s adverse
Spence, 2021 U.S. LEXIS 70128, at *22.
employer’s action to qualify as an adverse employment action”
for a retaliation claim, a plaintiff “must show that a
reasonable employee would have found the challenged action
materially adverse, which in this context means it well might
have dissuaded a reasonable worker from making or supporting a
charge of discrimination.”
Id. at *25(citing Daniels v. Sch.
Dist. Of Phila., 776 F.3d 181, 195 (3d Cir. 2015); Moore v. City
of Philadelphia, 461 F.3d 331, 341-42 (3d Cir. 2006) (“[A]
plaintiff claiming retaliation under Title VII must show that a
reasonable employee would have found the alleged retaliatory
actions ‘materially adverse’ in that they ‘well might have
dissuaded a reasonable worker from making or supporting a charge
For the third element, “[t]o
demonstrate a link between protected activity and an employer's
adverse action, a plaintiff may rely on the temporal proximity
between the two if unusually suggestive.”
Nicholson v. Brennan,
No. 17-07144, 2020 U.S. Dist. LEXIS 237295, at *10 (D.N.J. Dec.
17, 2020)(quoting Daniels, 776 F.3d at 196).
connection may be demonstrated by evidence of circumstances that
justify an inference of retaliatory motive, such as protected
conduct closely followed by adverse action.”
Id. (quoting Jalil
v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989)).
there is a lack of temporal proximity, circumstantial evidence
of a ‘pattern of antagonism’ following the protected conduct can
also give rise to the inference.”
Id. (quoting Kachmar v.
SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997)).
Here, even assuming Plaintiff engaged in a protected
activity, the Amended Complaint simply fails to contain any
allegations to support elements two or three.
fails to plead Defendant Amazon engaged in any action that a
reasonable employee would have found materially adverse.
end of Plaintiff’s factual allegations, he adds “Note: The
response I received from site Manager was to change my shift.”
(ECF No. 9 at 6).
Plaintiff fails to explain when this shift
change occurred or whether this shift change was adverse to
Even if this Court were to conclude the shift change
allegation was enough to satisfy the second element, Plaintiff
would still be unable to survive dismissal.
This is because
Plaintiff has failed to allege the change in shift resulted from
or was subsequent to any protected activity.
Nor has Plaintiff
alleged dates or any alleged adverse action to support a theory
based on suspicious timing, or temporal proximity.
To survive dismissal, “some adverse action must be
identified, and facts supporting a causal connection between
Plaintiff’s engagement in a protected activity and the negative
employer action must be pled.”
225665, at *16-17.
Dickerson, 2020 U.S. Dist. LEXIS
The Court finds that Plaintiff has failed to
sufficiently raise a reasonable expectation that he will be able
to demonstrate an adverse employment action or a causal
connection between the alleged protected activity and adverse
action after discovery based on the bare allegation that his
shift was changed.
Accordingly, the Court will dismiss
Plaintiff’s Title VII claim based on retaliation.
The Court next turns to Plaintiff’s claim for unequal terms
and conditions of employment.
“To establish a claim for unequal
terms and conditions in employment, or disparate treatment,
[Plaintiff] must establish that she (1) is a member of a
protected class; (2) was qualified for the position; (3) was
negatively affected by Defendant’s employment decisions; and (4)
was treated less favorably than employees not within her
Rhodes, 2021 U.S. Dist. LEXIS 4062, at *7
(quoting Dickerson, 2020 U.S. Dist. LEXIS 225665, at *17).
Plaintiff, an African American, satisfies the first
Even assuming Plaintiff was qualified for his
position, the Amended Complaint fails to specify Plaintiff was
negatively affected by Amazon’s employment decisions and fails
to allege facts suggesting that Plaintiff was treated less
favorable when compared to others not within his protected
The Plaintiff has indicated, by checking boxes on the
form complaint, that Amazon allegedly mistreated him based on
his race, color, and disability.
He has failed, however, to
state facts to support these conclusory assertions.
fails to identify another employee who was of a different race
or color or not disabled, who was similarly situated but
received better treatment.
For this reason, the Court concludes
Plaintiff has failed to sufficiently raise a reasonable
expectation that he will be able to demonstrate he was
negatively affected by an employment decision of Defendant
Amazon or was treated less favorable when compared to others
similarly situated and not within his protected class after
Accordingly, the Court will dismiss Plaintiff’s
Title VII claim based on the unequal terms or conditions of
The Title VII claims against Defendant Amazon are
Plaintiff will be afforded an additional
thirty days to amend his Amended Complaint to cure these
For the reasons expressed above, Defendants’ Motion to
Dismiss (ECF No. 18) will be GRANTED.
An appropriate Order will
Date: September 29, 2021
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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