LAMPON-PAZ v. OFFICE OF PERSONNEL MANAGEMENT

Filing 26

MEMORANDUM OPINION. Signed by Judge Kevin McNulty on 4/4/2016. (nr, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MANUEL LAMPON-PAZ,

Civ. No. 15-5835 (KM)

Plaintiff,
MEMORANDUM OPINION
V.

OFFICE OF PERSONNEL MANAGEMENT,
Defendant.

This matter comes before the court on the motion (ECF no. 19) of the
defendant, Office of Personnel Management (“OPM”), to dismiss the complaint
for failure to state a claim, pursuant to Rule 12(b), Fed. R. Civ. P.
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). For the purposes of a
motion to dismiss, the facts alleged in the complaint are accepted as true and
all reasonable inferences are drawn in favor of the plaintiff. New Jersey
Carpenters & the Trustees Thereof v. Tishman Const. Corp. of New Jersey, 760
F.3d 297, 302 (3d Cir. 2014).
Where, as here, the plaintiff is proceeding pro Se, the complaint is “to be
liberally construed,” and, “however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.”

Erickson v.

Pardus, 551 U.S. 89, 93-94 (2007). Nevertheless, “pro se litigants still must
allege sufficient facts in their complaints to support a claim.” Mala v. Crown
Bay Manna, Inc., 704 F.3d 239, 245 (3d Cir. 2013). “While a litigant’s pro se
status requires a court to construe the allegations in the complaint liberally, a
litigant is not absolved from complying with Twombly and the federal pleading

requirements merely because s/he proceeds pro Se.” Thakar v. Tan, 372 F.
App’x 325, 328 (3d Cir. 2010) (citation omitted).
There are three problems with the complaint which require dismissal.
First, the complaint (ECF no. 1) is brought against the wrong party. It
seeks relief under Title VII of the Civil Rights Act, 42 U.S.C.

§ 2000e-3 (other

unlawful employment practices), which is an employment discrimination
statute. In general, such a claim must be brought against the plaintiff’s
employer. Here, the plaintiff was an air marshal, employed by the Department
of Homeland Security. The only proper defendant for a Title VII claim, then,
would be the head of the relevant agency—here, the Secretary of the
Department of Homeland Security. See 42 U.S.C.

§ 2000e-16(c); Wadhwa v.

Secretary, Dep’t of Veterans Affairs, 505 F. App’x 209, 212—13 (3d Cir. 2012).
This complaint, however, sues OPM, which is not alleged to have ever employed
the plaintiff. It is not enough to state, as plaintiff does, that OPM and the
Department of Homeland Security are both part of the federal government.
Second, the complaint does not state facts that would support a claim
under Title VII. The chief allegation is that the OPM informed the plaintiff that
he would not receive his disability retirement annuity payment for August 2015
because letters to him were returned to OPM as undeliverable. Plaintiff
disputes this, saying that OPM has acted “without cause” or in retaliation for
his filing of lawsuits against federal agencies. Attached to the complaint is a
letter from OPM to Plaintiff’s credit union, stating that mail to him has been
returned, and warning that, unless he responds, they will suspend annuity
payments. OPM requests the assistance of the credit union in contacting
Plaintiff. The papers attached to the complaint and motion seemingly relate to a
federal agency’s ordinary efforts to verify an address. (In his motion papers,
plaintiff acknowledges that the payments restarted. ECF no. 20 at 8))
To state a claim, for example, for retaliation under Title VII, a complaint
must allege (1) that plaintiff engaged in an employment activity protected by
Title VII; (2) that his employer took an adverse employment action; and (3) a

causal link between (1) and (2). E.g., Abramson v. William Paterson College, 260
F.2d 265, 286 (3d Cir. 2001).There is no allegation that plaintiff is a member of
a protected class or took action protected by Title VII. Merely filing a lawsuit
does not qualify as “protected activity”; only complaints of discrimination based
on, e.g., race, color, religion, sex, or national origin, do. See Davis v. City of
Newark, 417 F. Spp’x 201, 202—03 (3d Cir. 2011). That is not the subject of the
plaintiff’s prior complaints.
Third, there has been no exhaustion of administrative remedies, a
prerequisite to filing an action under Title VII. See Spence v. Straw, 54 F.3d
196, 201 (3d Cir. 1995).

CONCLUSION
For the foregoing reasons, the defendant’s motion to dismiss the
complaint (ECF no. 19) is GRANTED. Out of caution, this dismissal is without
prejudice to the submission, within 30 days, of an amended complaint that
remedies the deficiencies identified here.

)

L
/

KEVIN MCNULTY
‘
United States District Jud..J