HAMZAT v. PRITZKER

Filing 18

OPINION fld. Signed by Judge Claire C. Cecchi on 6/28/16. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ALABA HAMZAT,

Civil Action No.: 14-6440 (CCC-JBC)

Plaintiff,
OPINION
V.

PENNY S. PRITZKER, Secretary U.S.
Department of Commerce,
Defendant.
CECCHI, District Judge.
I.

INTRODUCTION

This matter comes before the Court on a motion of Defendant Penny S. Pritzker in her
official capacity as Secretary of the United States Department of Commerce (“Defendant”) to
dismiss Plaintiff Alaba Hamzat’s (“Plaintiff’) Amended Complaint for failure to state a claim
under F ederal Rule of Civil Procedure 12(b)(6). The Court decides the motion without oral
argument pursuant to Federal Rule of Civil Procedure 78.1

Having considered the parties’

submissions and for the reasons set forth below, the Court grants Defendant’s motion to dismiss.
II.

BACKGROUND

The following facts are alleged in the Amended Complaint. Plaintiff is black and walks
with a limp. [Am. Compi., Statement of Undisputed Material Facts (“SOF”)

¶

3-4.] He was

appointed as a Field Representative for the United States Department of Commerce in the New
York Regional Office of the Census Bureau on January 7, 2011. [SOF

¶ 5.1

The Court considers any arguments not presented by the parties to be waived. See Brenner v.
Local 514, United Bhd. of Carpenters & Joiners, 927 F.2d 1283, 1298 (3d Cir. 1991) (“It is well
established that failure to raise an issue in the district court constitutes a waiver of the argument.”).
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Plaintiff attended a three-day training course from January 19, 2011 through
January 21, 2011. [SOF ¶ 7.] Plaintiff alleges he was the only trainee who was not provided with
a laptop and other materials and that these items were necessary to process his wages and discharge
his duties effectively. [$OF

¶J 9,

11.]

Plaintiff alleges that Defendant failed to pay him for almost two months and that he
consistently told his crew leader, Ms. Geneva Bain, about this issue. [$OF

¶7J

15-16.] Plaintiff

was paid on March 7, 2011 after he called the head office to complain that he had not been paid.
[$OF ¶ 18.] Plaintiff informed his supervisor that he had been paid and shortly thereafter received
a call from Mr. Bill Harfmann that he should return all government property. [$OF

¶

that evening, a male supervisor was sent to collect his ID card and survey forms. [$OF
III.

18.] Later

¶ 18.]

LEGAL STANDARD
For a complaint to avoid dismissal pursuant to Rule 12(b)(6), it “must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.” Ashcrofl
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Ati. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
When evaluating the sufficiency of a complaint, Courts are required to accept all well-pleaded
allegations in the Complaint as true and to draw all reasonable inferences in favor of the nonmoving party. Phillips v. Cnty. ofAllegheny, 515 F.3d 224, 231 (3d Cir. 2008). Furthermore, “[a]
pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of
action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further
factual enhancement.”

Iqbal, 556 U.S. at 678 (internal citations and quotations omitted).

Accordingly, “a complaint must do more than allege the plaintiffs entitlement to relief. A
complaint has to ‘show’ such entitlement with its facts.” Fowler v. UFMC Shadyside, 578 F.3d
203, 211 (3d Cir. 2009). The Third Circuit has extended the Twombly plausibility standard to

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employment discrimination cases. See Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d
315, 322 (3d Cir. 200$) (“The plausibility paradigm announced in Twombly applies with equal
force to analyzing the adequacy of claims of employment discrimination.”).
W.

DISCUSSION

As an initial matter, Plaintiffs Amended Complaint does not identify a specific statutory
or common law cause of action. However, as Plaintiff is pro se, the Court will construe Plaintiffs
Amended Complaint liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed
pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be
held to less stringent standards than formal pleadings drafied by lawyers.”) (internal quotations
omitted).
Plaintiffs Amended Complaint appears to allege discrimination based on two separate
incidents: (1) failure to provide him with a laptop and other materials; and (2) termination from
his position. Based on the allegations in the Amended Complaint, the Court assumes for purposes
of this motion that Plaintiff is alleging discrimination based on race (in violation of Title VII of
the Civil Rights Act of 1964) and based on disability (in violation of the Rehabilitation Act
of 1973). The Court also construes Plaintiffs Amended Complaint as asserting a cause of action
for retaliation under both statutes.
Both Title VII and Rehabilitation Act claims are subject to the McDonnellDouglas burden
shifling framework. See Wishkin v. Potter, 476 F.3d 120, 184-85 (3d Cir. 2007).

Under the

McDonnell Douglas burden-shifting framework, a plaintiff in a discrimination case must first
establish aprimafacie case of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). For the reasons that follow, Plaintiffhas not pleaded facts sufficient to meet this initial
burden of establishing a prima fade case of discrimination.

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A. Plaintiff has not stated a claim for discrimination based on disability

To establish aprimafacie case of disability discrimination under the Rehabilitation Act, a
plaintiff must show that: (1) he has a disability within the definition provided by the Americans
with Disabilities Act (“ADA”); (2) he is otherwise qualified to perform the essential functions of
his position; and (3) he has suffered an adverse employment decision because of that disability.
Freeman v. Chertoff 604 F. $upp. 2d 726, 731 (D.N.J. 2009). Here, Plaintiff fails to plead facts
sufficient to establish aprimafacie case of disability discrimination under the Rehabilitation Act.
Specifically, Plaintiff fails to allege that he has a disability or that he suffered an adverse
employment action because of that disability.
i. Plaintiff has not alleged that he has a disability within the statute.
The Rehabilitation Act defines “individual with a disability” as a person who has “a
physical or mental impairment that substantially limits one or more of the major life activities of
such individual.” 29 U.S.C.
“disability” in 42 U.S.C.

§ 705(20)(B) (incorporating by reference the ADA’s definition of

§ 12 102(2)). Where a plaintiff fails to allege any major life activity that

is limited by his impairment, courts in the Third Circuit have dismissed for failure to state a claim.
See, e.g., Karipidis v. ACE Gaming LLC, No. 09-3321, 2010 U.S. Dist. LEXIS 56617, at *23..24
(D.N.J. June 9, 2010) (“By simply stating that the plaintiff lives with an injury, illness or
impairment without alleging that the impairment substantially limits a major life activity creates a
defect in the Complaint.”); see also Popko v. Penn State Milton S. Hershey Medical Center, No.
13-1845, 2014 U.S. Dist. LEXIS 95486 (M.D. Pa. July 14, 2014); Butler v. BTC Foods, Inc., No.
12-492, 2012 U.S. Dist. LEXIS 151582 (E.D. Pa. Oct. 19, 2012).
Here, Plaintiff alleges that he walks with a limp. [SOF

¶ 3.] Plaintiff attached to his

Amended Complaint a letter from Dr. Demetri Blanas at the Family Health Center of Harlem
explaining that his limp results from a polymyelitis infection he suffered as a child that caused
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permanent damage to his leg. [See Am. Compl.] Plaintiff further alleges that his coworkers were
all aware of his limp. [See SOF ¶ 13.] However, neither the allegations in the Amended Complaint
nor the attached exhibits allege that Plaintiff was substantially limited in any major life activity.
Moreover, courts have consistently found that a limp does not rise to the level of substantially
limiting the major life activity of walking. See Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1025,
(5th Cir. 1999); McCteary v. National Cold Storage, Inc., 67 F. Supp. 2d 1288, 1300-01 (D. Kan.
1999); Kelly v. Drexel Univ., 907 F. Supp. 864, 874-75 (E.D. Pa. 1995). Accordingly, Plaintiff

has not pleaded facts sufficient to establish the first element of aprimafacie case of disability.
ii. Plaintiff has not suffered an adverse employment action because of his
disability.
Even assuming that Plaintiff had pleaded facts sufficient to establish a disability, Plaintiff
has not alleged that he suffered an adverse employment action because of his disability. First, the
allegation that Plaintiff did not receive a laptop does not constitute an adverse employment action.
See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761-62 (1998) (“A tangible employment
action constitutes a significant change in employment status, such as hiring, firing, failing to
promote, reassignment with different responsibilities, or a decision causing a significant change in
benefits... A tangible employment action in most cases inflicts direct economic harm.”); Langley
.

v. Merck & Co, Inc., 186 F. App’x 258, 260 (3d Cir. 2006) (“Minor actions, such as lateral transfers
and changes of title and reporting relationships, are generally insufficient to constitute adverse
employment actions.”).

Second, while termination of employment constitutes adverse

employment action, Plaintiff makes no allegation that his termination was caused by his disability.
Accordingly, Plaintiff fails to establish a prima facie case of disability discrimination under the
Rehabilitation Act.

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B. Plaintiff has not stated a claim for discrimination based on race.

To establish a prima facie case of discrimination under Title VII, a plaintiff must show
that: (1) he is a member of a protected class; (2) he is qualified for the position; (3) he suffered an
adverse employment action; and (4) the circumstances give rise to an inference of unlawful
discrimination. Makky v. Chertoff 541 F.3d 205, 214 (3d Cir. 2008). Here, Plaintiff fails to plead
facts sufficient to establish aprimafacie case of discrimination on the basis of race under Title VII.
The circumstances identified in Plaintiffs Amended Complaint do not give rise to an
inference of unlawful discrimination. As discussed above, Plaintiffs termination was an adverse
employment action. However, Plaintiffs Amended Complaint alleges in only conclusory fashion
that “[his] termination had something to do with [his] race.

.

.

.“

[Am. Compl. at 2.] As there is

no identifiable factual support for that allegation anywhere in Plaintiffs Amended Complaint, the
Court cannot infer unlawful discrimination from the mere fact that Plaintiff is black and his
employment was terminated. Accordingly, Plaintiffhas not stated a claim for discrimination based
on race.
C. Plaintiff has not stated a claim for retaliation under either the Rehabi]itation
Act or Title VII

To establish a prima facie case of retaliation under either Title VII or the Rehabilitation
Act, a plaintiff must plead: (1) that he engaged in a protected activity; (2) that he suffered an
adverse employment action; and (3) that there was a causal connection between the protected
activity and the adverse employment action. See Lanza v. Postmaster General of US., 570 F.
App’x 236, 240-41 (3d Cir. 2014). Not every complaint to management constitutes a “protected
activity.” Rather, a protected activity must be an action taken “to oppose discrimination made
unlawful by Title VII”, see Moore v. City ofPhiladelphia, 461 F.3d 331, 341 (3d Cir. 2006), or
the Rehabilitation Act, see 42 U.S.C.

§ 12203(a).
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In this case, Plaintiff alleges that he complained to his supervisor and to the regional office
about not receiving a laptop and not getting paid. However, the Amended Complaint states no
facts that would support the inference that Plaintiffs complaints were in opposition to
discrimination made unlawful by either Title VII or the Rehabilitation Act. Accordingly, Plaintiff
fails to plead facts sufficient to establish aprimafacie case of retaliation.
V.

CONCLUSION

Having reviewed the parties’ submissions, the Court grants Defendant’s motion to
dismiss. To the extent the deficiencies in the Amended Complaint can be cured, Plaintiff will be
given thirty (30) days to file a second amended complaint. An appropriate Order accompanies
this Opinion.

Dated:

J’——2 ,2016
CLAIRE C. CECCHI, U.S.D.J.

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