HAMZAT v. PRITZKER
OPINION. Signed by Judge Claire C. Cecchi on 6/27/17. (DD, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No.: 14-6440 (CCC-JBC)
PENNY S. PRITZKER, Secretary U.S.
Department of Commerce,
CECCHI, District Judge.
This matter comes before the Court by Defendant Penny S. Pritzker, in her official capacity
as Secretary of the United States Department of Commerce, (“Defendant”), on a partial motion to
dismiss hostile work environment claims brought under Title VII (Count One, in part) and the
Rehabilitation Act (Count Three, in part) of Plaintiff Alaba Hamzat’s (“Plaintiff’) Second
Amended Complaint (“SAC”) pursuant to Fed. R. Civ. P. 12(b)(6). (ECF No. 23.) The Court
decides the motion without oral argument pursuant to Fed. R. Civ. P. 78.’ Having considered the
parties’ submissions and for the reasons set forth below, the Court denies Defendant’s partial
motion to dismiss.
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.”).
Defendant employed Plaintiff as a field Representative for the United States Department
of Commerce in the New York Regional Office of the Census Bureau from January 16, 2011 until
March 5, 2011. (ECF No. 20 at 2.) On or about January 16, 2011, Plaintiff and ten other
individuals (“participants” or “trainees”) attended, and were certified as successfully completing,
a mandatory three-day training organized by the Census Bureau. (Id. at 3.) Plaintiff was the only
participant who was African American of Nigerian descent, “thus with a strong and different
accent[,J” and who had a noticeable disability: an “obvious limp” such that he is “unable to walk
fast or properly without experiencing severe pain.” (Id. at 2, 4.) Plaintiff’s direct supervisor during
training (“Training Supervisor”) complained to Plaintiff during training that Plaintiff’s accent “was
too strong” and that Plaintiff was “too slow[.]” (Id. at 3.)
At the training, Defendant provided a laptop computer and other materials intended to
support job performance to all participants except for Plaintiff. (Id. at 4.) Following the successful
completion of the training, Plaintiff and the ten other trainees were assigned posts and job duties.
(Id. at 4.) Defendant compensated all participants for their services except for Plaintiff. (Id. at
4-5.) After about 30 days of employment, Plaintiff protested repeatedly to Defendant through his
direct supervisor (“Supervisor”) that he, unlike the other trainees, had not been compensated. (Id.
at 5.) The Supervisor provided no explanation for the delay and Plaintiff remained unpaid. (Id.)
Plaintiff escalated his request for compensation to his direct supervisor’s supervisor
(“Manager”). (Id.) He informed the Manager that he believed he was being discriminated against
by not being paid because of his race/national origin and his physical disability. (Id.) The Manager
For the purpose of deciding this partial motion to dismiss, the facts alleged by Plaintiff in his
SAC are accepted as true.
Plaintiff had previously stated his appointment to this position occurred on January 7, 2011.
(ECF No. 15 at 4.)
and Training Supervisor “reacted angrily” and the Manager criticized Plaintiffs Nigerian accent.
(Id.) On March 5, 2011, following this communication, Plaintiff was compensated and, on the
same day, terminated. (Id. at 6.) Plaintiff alleges that he dutifully performed all employment
obligations without written or verbal complaint regarding his job performance from his supervisors
and that at the time he was terminated he could perform the essential functions of his job without
accommodation. (Id. at 4-5.)
On July 27, 2016, Plaintiff filed the SAC. (ECF No. 20.) On August 26, 2016, Defendant
filed the instant motion for partial dismissal of the SAC. (ECF No. 23.)
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.” Ashcroft
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Ati. Corp. v. Twornbty, 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. Cty. 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
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. UPMC Shadyside, 578 F.3d
203, 211 (3d Cir. 2009). The Third Circuit has extended the Twombly plausibility standard to
employment discrimination cases. See Wilkerson v. New Media Tech. Charter $ch. Inc., 522 F.3d
315, 322 (3d Cir. 2008) (“The plausibility paradigm announced in Twombly applies with equal
force to analyzing the adequacy of claims of employment discrimination.”).
“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 drafted by
lawyers.” See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotations omitted).
Plaintiff’s SAC claims discrimination based upon Plaintiffs race and national origin in
violation of Title VU of the Civil Rights Act of 1964 (“Title VII”) (Count One), retaliatory
treatment, including termination, in violation of the Rehabilitation Act of 1973 (“Rehabilitation
Act”) (Count Two), and discrimination based upon his physical disability in violation of the
Rehabilitation Act (Count Three). (ECF No. 20.)
The instant motion pertains solely to claims of hostile work environment under Title VII
(Count One, in part) and under the Rehabilitation Act (Count Three, in part). (Id. at 7, 9-10.)
Defendant moves for partial dismissal of the SAC as to these claims only, for failure to state a
claim pursuant to Fed. R. Civ. P. 12(b)(6). (ECF No. 23.)
Courts in this Circuit recognize an employee’s right to pursue hostile work environment
claims under the Rehabilitation Act. See Miller v. Cohen, 52 F. Supp. 2d 389, 400 (M.D. Pa.
1998), aff’d, 185 F.3d 862 (3d Cir. 1999). Section 504 of the Rehabilitation Act makes it unlawful
for the federal government, federal contractors, and recipients of federal funding to discriminate
against qualified individuals with disabilities. Rehabilitation Act of 1973,
§ 504, 29 U.S.C.A.
§ 794. Courts in this Circuit recognize an employee’s right to pursue hostile work environment
claims under Title VII.
See Arnan v. Cort Furniture Rental Corp., 85 F.3d 1074, 1087 (3d Cir.
1996). Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer “to discriminate
against any individual with respect to his [or her] compensation, tenns, conditions, or privileges
of employment, because of such individual’s race, color, religion, sex, or national origin.”
§ 2000e—2(a)(l). Both Title VII and Rehabilitation Act claims are subject to the
McDonnell Douglas burden-shifting framework. See Wishkin v. Potter, 476 F.3d 180, 184-85 (3d
Under the McDonnell Douglas burden-shifting framework, a plaintiff in a
discrimination case must first establish a prima fade case of discrimination. See McDonnell
Dottglas Corp. v. Green, 411 U.S. 792 (1973).
To determine whether there exists an actionable claim of hostile work environment under
the Rehabilitation Act and Title VII, a plaintiff must allege that (1) he suffered intentional
discrimination because of his disability and/or national origin; (2) the discrimination was pervasive
and regular; (3) it detrimentally affected him; (4) it would have detrimentally affected a reasonable
person of the same protected class in his position; and (5) there is a basis for vicarious liability.
Cardenas v. Massey, 269 F.3d 251, 260 (3d Cir. 2001).
Here, Plaintiff alleges that he was discriminated against on the basis of his disability and
race/national origin repeatedly over the course of the short period during which he was employed.
Plaintiff asserts that he was the only visibly disabled trainee and the only trainee of his
Over the course of his training period, Plaintiffs supervisor directed
allegedly discriminatory comments directly to Plaintiff saying Plaintiff’s accent was “too strong”
and commenting on his limp saying that Plaintiff was “too slow[.]” ECF No. 20 at 3. Plaintiff,
unlike other trainees, was denied pay for months until immediately prior to termination allegedly
on a discriminatory basis. Similarly, Plaintiff, unlike other trainees, was denied a laptop computer
and other working materials during the entirety of his employment. Plaintiff’s Manager criticized
Plaintiffs Nigerian accent during the course of Plaintiffs employment, while denying Plaintiff
payment for services until just prior to termination.
Additionally, unlike a Title VII claim based on discrete acts of discrimination, a Title VII
claim for hostile work environment claim is based upon the cumulative effect of individual acts,
that themselves may not be actionable. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 11516 (2002). To determine whether there exists an actionable claim of hostile work environment
claim under Title VII, the analysis focuses on the “totality of the circumstances” or the “overall
scenario” rather than concentrating on individual incidents. Caver v. City of Trenton, 420 F.3d
243, 262—63 (3d Cir. 2005). Here, Plaintiff was employed for a very short period, from January
16, 2011 until March 5, 2011. Yet, Plaintiff has alleged specific instances of repeated andlor
ongoing conduct by Defendants throughout the entirety of his employment. While there may be a
plausible alternative explanation to discrimination, one is not apparent from the face of the
Complaint taking Plaintiff’s allegations as true. Plaintiff successfully completed training, was
subjected to verbal and nonverbal conduct allegedly on the basis of his race/nationality and
disability, and was terminated. When viewing the totality of the circumstances, including ongoing
instances of conduct from the beginning of employment through termination, Plaintiff has
sufficiently alleged an overall pattern of discriminatory conduct that detrimentally affected him as
it would a reasonable person of the same protected class in his position.
Accordingly, Plaintiff has alleged sufficient facts when taken as true to suggest a plausible
hostile work environment claim under the Rehabilitation Act and Title VII to survive a motion to
Having reviewed the parties’ submissions, the Court denies Defendant’s motion to
dismiss. An appropriate Order accompanies this Opinion.
Dated: 3ve_ 2_
CLAIRE C. CECCHI, U.S.D.J.
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