SMALL v. RAHWAY BOARD OF EDUCATION et al

Filing 2

OPINION AND ORDER, that Plaintiff's application to proceed in forma pauperis is Granted and it is further Ordered that Plaintiff's claims under the ADA and Title VII are Dismissed without prejudice pursuant 28 USC sec 1915 (e)(2)(B) for fai lure to state a claim. Plaintiff, however is granted leave to file an amended complaint asserting the ADA and Title VII claims within thirty (30) days, etc., (Certified mail send #7011-35000000-6746-1883). Signed by Judge John Michael Vazquez on 4/6/2017. (JB, ) Modified on 4/7/2017 (JB, ).

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JANE SMALL,

Plaintff
Civil Action No. 17-1963
V.

OPINION & ORDER

RAHWAY BOARD OF EDUCATION &
PATRICIA CAMP,
Defendants.

Plaintiff seeks to bring this action informapattperis pursuant to 2$ U.S.C.

§ 1915. D.E.

1. For the reasons discussed below, the Court GRANTS Plaintiffs application to proceed informa
pattperis and DISMISSES the Complaint IN PART and without prejudice, pursuant to 2$ U.S.C.

§ 1915(e)(2)(B), for failing to state a claim upon which relief can be granted.
Under Section 1915, this Court may excuse a litigant from prepayment of fees when the
litigant “establish[es] that he is unable to pay the costs of his suit.” Walker

i

People Express

Airlines, Inc., $86 F.2d 598, 601 (3d Cir. 1989). Plaintiff sufficiently establishes her inability to
pay, and the Court grants her application to proceed informapaitperis without prepayment of fees
and costs.
When allowing a plaintiff to proceed in forma pauperis, the Court must review the
complaint and dismiss the action if it determines that the action is frivolous, malicious, fails to
state a claim upon which relief may be granted, or seeks monetary relief against a defendant who
is immune. 28 U.S.C.

§ 1915(e)(2).

When considering dismissal under Section 1915(e)(2)(B)(ii) for failure to state a claim on
which relief can be granted, the Court must apply the same standard of review as that for dismissing
a complaint under Federal Rule of Civil Procedure 12(b)(6). Schreane

i’.

Seana, 506 F. App’x

120, 122 (3d Cir. 2012). To state a claim that survives a Rule 12(b)(6) motion to dismiss, a
complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell
Atlantic Corp.

V.

Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the

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, 678 (2009).
Because Plaintiff is proceeding pro Se, the Court construes the pleadings liberally and holds them
to a less stringent standard than those filed by attorneys. Haines v. Kerner, 404 U.S. 519, 520
(1972).

“The Court need not, however, credit a pro se plaintiffs ‘bald assertions’ or ‘legal

conclusions.’” D’Agostino v. CECOMRDEC, No. 10-4558, 2010 WL 3719623, at *1 (D.N.J.
Sept. 10, 2010).
Plaintiff, a sixty-year old African-American woman, alleges that she was a substitute
custodian for the Rahway Board of Education.

Plaintiff was allegedly hired as a full-time

custodian but before she started, Defendants informed her that she could not start her new job due
to a positive drug test result. Plaintiff maintains that Defendants refused to consider a note from
her doctor explaining that she has a medical condition that caused a false positive test result. D.E.
1 at 7-8, D.E. 1-1. Plaintiff states that Defendants hired a younger, white male for the custodian
position. D.E. 1-1. Plaintiffs Complaint asserts claims for employment discrimination under Title
VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act
(“ADEA”), and the Americans with Disabilities Act (“ADA”).

2

A plaintiff must comply with the procedural requirements set forth in Title VII before
bringing employment discrimination charges under the ADA or Title VII. Bttck i’. Hampton Tip.
Sc/i. Dist., 452 f.3d 256, 260 (3d Cir. 2006) (applying Title Vii procedural requirements to ADA
discrimination claim).

Title VII, and therefore the ADA, requires that a complainant file a

“charge” and receive a “right to sue” letter from the Equal Employment Opportunity Commission
(“EEOC”) before filing suit in the district court. Burgh v. Borough Council ofMontrose, 251 F.3d
465, 470 (3d Cir. 2001). If a plaintiff brings suit under Title VII or the ADA before receiving a

“right to sue letter,” the matter may be dismissed pursuant to federal Rule of Civil Procedure
1 2(b)(6) for failure to exhaust administrative remedies. See, e.g., Robinson v. Univ. of Med. &
Dentistry ofN.i, No. 06-1158, 2006 WL 3371748, at *2 (D.N.J. Nov. 17, 2006) (granting motion
to dismiss ADA claims where plaintiff admitted that she did not file an EEOC charge or receive a
right to sue letter).
Here, Plaintiff attached her charge of discrimination to the Complaint, which is dated
November 21, 2016, along with communications with the EEOC. D.E. 1-1. Therefore, it is clear
that she filed a charge with the EEOC. Plaintiff, however, does not include a right to sue letter
with her filing. As a result, Plaintiffs Title VII and ADA claims are dismissed without prejudice.
Plaintiff may reassert these claims if she provides the Court with a copy of her right to sue letter.
A plaintiff, however, need not receive a right to sue letter to assert a claim under the ADEA.
Covington v. URS Corp., No. 11-4516, 2013 WL 2181282, at *2 (D.N.J. May 20, 2013) (citing 29
U.S.C.

§ 626(d)). “After filing a charge with the EEOC, the complainant must wait at least 60

days before commencing a federal suit under the ADEA.” Because more than sixty days have
elapsed since Plaintiff filed her charge with the EEOC, Plaintiff may proceed with her ADEA

3

claim.

Therefore, the Court will consider whether Plaintiffs age discrimination claim was

plausibly pled.
To make out a prima facie case for age discrimination under the ADEA, a plaintiff must
demonstrate that: “(1) she is forty years of age or older; (2) the defendant took an adverse
employment action against her; (3) she was qualified for the position in question; and (4) she was
ultimately replaced by another employee who was sufficiently younger to support an inference of
discriminatory animus.” Burton v. Teteflex Inc., 707 F.3d 417, 426 (3d Cir. 2013). Viewing the
Complaint and information she provided to the EEOC liberally, as the Court must do since Plaintiff
is proceedingpro Se, Plaintiff makes out aprimafacie ADEA claim. Plaintiff states that she is 60
years old and was not permitted to work as a full time custodian after she was told that she was
hired. See D E. 1, D.E. 1-1. Because Plaintiff was already working as a substitute custodian, the
.

Court infers that Plaintiff was qualified for the position. Finally, Plaintiff states that Defendants
hired a younger male for the full-time custodian position. Id. Consequently, Plaintiffs ADEA
claim may proceed.
F or the reasons set forth above and for good cause shown,
IT IS on the 6th day of April, 2017
ORDERED that Plaintiffs application to proceed informa pauperis is GRANTED; and

it is further
ORDERED that Plaintiffs claims under the ADA and Title VII are DISMISSED without

prejudice pursuant to 28 US.C.

§ 1915(e)(2)(B) for failure to state a claim. Plaintiff, however, is

granted leave to file an amended complaint asserting her ADA and Title VII claims within thirty
(30) days provided that she includes a copy of her right to sue letter from the EEOC; and it is
further

4

ORDERED that Plaintiff sets forth a prima fade claim for age discrimination under the

ADEA. Thus, the Clerk of the Court shall file the Complaint as to Plaintiff’s ADEA claim; and it

is further
ORDERED that the Clerk issue a summons and the U.S. Marshal serve a copy of the

complaint, summons and this order upon Defendants as directed by Plaintiff. All costs of service
shall be advanced by the United States; and it is further
ORDERED that the Clerk shall serve this Order and the accompanying Opinion upon

Plaintiff by certified mail.

JOHNMICHAEL VAZ

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U.S.D.J.