DICKERSON v. NEW JERSEY INSTITUTE OF TECHNOLOGY et al

Filing 54

AMENDED OPINION. Signed by Judge Kevin McNulty on 1/10/2022. (jd,) Modified on 1/11/2022 (jd, ).

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

GLORIA D. DICKERSON,

Civ. No. 19-8344 (KM) (JBC)

Plaintiff,

OPINION

v.
NEW JERSEY INSTITUTE OF
TECHNOLOGY,
ANNIE CRAWFORD,
STACI MONGELLI, and
LAUREN RUBITZ
Defendants.

KEVIN MCNULTY, U.S.D.J.:
Plaintiff Gloria Dickerson, proceeding pro se, sues her former employer,
New Jersey Institute of Technology (“NJIT”), and her former co-workers Annie
Crawford, Staci Mongelli, and Lauren Rubitz for discrimination under Title VII
of the Civil Rights Act of 1964 (“Title VII”), 42. U.S.C. §§ 2000e et seq.; the
Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12112 to 12117,
and the New Jersey Law Against Discrimination (“NJLAD”), N.J. Stat. Ann. §§
10:5-1 et seq. Pending before the Court is Dickerson’s motion to amend her
complaint. (DE 50.) For the following reasons, the motion to amend is
GRANTED in part and DENIED in part.

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I.

Summary 1
a. Factual Background
The Court presumes a familiarity with the nature and history of this

litigation. I focus on the facts most relevant to Dickerson’s pending motion to
amend.
Dickerson filed the initial Complaint on March 7, 2019, asserting claims
of race, age, and disability discrimination under Title VII, the ADA, and the
ADEA, against NJIT and the three individual defendants. (DE 1.)
On April 24, 2019, Defendants filed a motion to dismiss the initial
Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (DE 5.) On
November 14, 2019, the Court dismissed all of Dickerson’s claims except for
her claims of harassment and retaliation in violation of the ADA, as asserted
against NJIT. (DE 21; DE 22.) In doing so, the Court granted Dickerson leave to
amend her Complaint. (DE 21; DE 22.)
Dickerson filed an Amended Complaint (DE 32), on February 14, 2020,
asserting claims under Title VII, the ADEA, the ADA, the Equal Pay Act, and
the NJLAD for harassment, retaliation, failure to accommodate her disability,
and unequal terms and conditions of employment. (DE 32 at 2-3.)
On March 30, 2020, Defendants filed a motion to dismiss the (First)
Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (DE
37.) The Court, on December 2, 2020, dismissed all of Dickerson’s claims as
asserted against NJIT. (DE 48; DE 49.) That order of dismissal was “entered

Citations to the record will be abbreviated as follows. Citations to page numbers
refer to the page numbers assigned through the Electronic Court Filing system, unless
otherwise indicated:
1

“DE” = Docket entry number in this case.
“Compl.” = Dickerson’s initial Complaint (DE 1)
“Am. Compl.” = Dickerson’s First Amended Complaint (DE 32)
“2AC” = Dickerson’s Proposed Second Amended Complaint (DE 50)

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without prejudice to the filing, within 30 days, of a proposed Second Amended
Complaint, which” would be deemed as Dickerson’s motion to amend. (DE 49.)
Dickerson now seeks leave to file a proposed Second Amended Complaint
(“2AC”). The 2AC, filed on January 4, 2021, asserts claims of race, age, and
disability discrimination under Title VII, the ADA, and NJLAD, against
Defendant NJIT and the three individual defendants. 2 On January 19, 2021,
the Defendants filed their opposition to Dickerson’s motion to amend. (DE 51.) 3
II.

Discussion
a. Legal standard
Generally, motions to amend are governed by Federal Rule of Civil

Procedure 15(a), which allows amendments either as a matter of right within a
certain time limit or thereafter “with the opposing party’s written consent or the
court’s leave.” Fed. R. Civ. P. 15(a)(2). “[L]eave [to amend] shall be freely given
when justice so requires.” Id. Accordingly, courts “have shown a strong
liberality … in allowing amendments under Rule 15(a).” Heyl & Patterson Int’l,
Inc. v. F.D. Rich Hous., 663 F.2d 419, 425 (3d. Cir. 1981) (quoting 3 J. Moore,

The 2AC was thus filed a few days after the expiration of the 30-day deadline
set by the court. In light of the virtual certainty that the Court would have granted
such a brief extension and the plaintiff’s pro se status, I will not treat the filing as
untimely or require any additional threshold showing of good cause. Wise v. Hickman,
2020 WL 6375788 at *4 (D.N.J. Oct. 30, 2020) (“Where the Court’s established
deadline to amend pleadings passes, a party seeking to amend after that date must
first satisfy the good cause standard of Fed. R. Civ. P. 16(b)(4).”).
2

3
On December 29, 2021, Dickerson sent a letter to the Court requesting an
update, informing the Court of the Department of Labor’s finding of discrimination
with respect to Dickerson exercising her FMLA leave, and requesting that “the U.S.
Department of Justice, Civil Rights Division … investigate the disparate racial
treatment of African American employees at the New Jersey Institute of Technology—
past and present.” DE 52. Defendants responded to this letter on January 6, 2022,
characterizing Dickerson’s allegations as “baseless,” “unsubstantiated,” and “libelous,”
and an improper attempt to “bolster her proposed amended pleading.” DE 53.

The Court has construed Dickerson’s 2AC very liberally, based on the
allegations contained therein. Statements in a letter or brief will not save a complaint
defective on its face. See Pennsylvania ex. Rel Zimmerman v. PepsiCo, Inc., 836 F,2d
173, 181 (3d Cir. 1988) (“It is axiomatic that the complaint may not be amended by
the briefs in opposition to a motion to dismiss.”)

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Moore’s Federal Practice ¶ 15.08(2) (2d ed. 1989)). On a motion to amend, the
court will consider the following factors: (1) undue delay on the part of the
party seeking to amend; (2) bad faith or dilatory motive behind the amendment;
(3) repeated failure to cure deficiencies through multiple prior amendments; (4)
undue prejudice on the opposing party; and (5) futility of the amendment.” See
Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 174
(3d Cir. 2010) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
“Futility” means that the complaint, as amended, “would not withstand a
motion to dismiss.” Massarsky v. Gen. Motors Corp., 706 F.2d 111, 125 (3d Cir.
1983); see also Brown v. Philip Morris Inc., 250 F.3d 789, 796 (3d Cir. 2001);
Adams v. Gould Inc., 739 F.3d 858, 864 (3d Cir. 1984). The standards
governing a rule 12(b)(6) motion are well known, have been stated in the
Court’s prior opinions, and therefore need not be stated in detail here. In brief,
“[t]o 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) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). The focus is not on “‘whether a plaintiff will
ultimately prevail but whether the claimant is entitled to offer evidence to
support the claims.’” Bell Atl. Corp., 550 U.S. at 563 n.8 (quoting Scheuer v.
Rhoades, 426 U.S. 232, 236 (1974)).
Otherwise, “prejudice to the non-moving party is the touchstone for the
denial of an amendment.” Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (3d Cir.
1993) (internal quotation and citation omitted). Therefore “delay,” for example,
entails more than the mere passage of time; to warrant denial of leave to
amend, it must be “undue” or prejudicial. Cureton v. Nat’l Collegiate Athletic
Ass’n, 252 F.3d 267, 273 (3d Cir. 2001).
b. Analysis
Defendants do not rely on the Rule 15 factors of delay or prejudice, but
argue that the 2AC should be rejected as futile, because it could not withstand
a motion to dismiss. (DE 51.) As noted above, futility “means that the
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complaint, as amended would fail to state a claim upon which relief could be
granted.” Burtch v. Millberg Factors, Inc., 662 F.3d 212, 231 (3d Cir. 2011)
(quoting Great Western Mining & Mineral Co., 615 F.3d at 175). For present
purposes, then, the motion is indistinguishable from one under Rule 12(b)(6).
i.

ADA Claims

The 2AC asserts that Dickerson was discriminated against because the
Defendants harassed her, retaliated against her, failed to accommodate her
disability, and wrongfully discharged her because of her disability. 4 As
expressed in my previous opinions, ADA claims are analyzed under the
burden-shifting framework announced in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973). See, e.g., Shaner v. Synthes, 204 F.3d 494, 500 (3d
Cir. 2000). Dickerson therefore carries the initial burden of establishing a
prima facie case for each claim. See id. (citing Jones v. School Dist. Of
Philadelphia, 198 F.3d 403, 409 (3d Cir. 1999)). If Dickerson establishes a
prima facie case, Defendants must articulate a “legitimate, non-discriminatory
reason” for the adverse employment action. Id. If Defendants can carry this
burden, Dickerson must show that it is “a pretext for discrimination.” Id.
1. Harassment
To establish a prima facie claim of harassment under the ADA,
Dickerson must demonstrate that: (1) she is a qualified individual with a
disability under the ADA; (2) she was subject to unwelcome harassment; (3) the
harassment was based on her disability or a request for an accommodation;
and (4) NJIT knew or should have known of the harassment but failed to take
prompt remedial action. Vanhook v. Cooper Health Sys., No. CV 19-14864,

While the 2AC explicitly asserts ADA claims for harassment and retaliation in
the section heading, upon reviewing the pleading it appears that Dickerson is also
asserting failure to accommodate and wrongful discharge claims. Defendants read the
complaint similarly, addressing all four claims in their opposition brief. For purposes
of resolving this motion, I will analyze the sufficiency of all four claims but would
instruct Dickerson to make it explicitly clear (e.g., through the usage of section and
number headings) in any future pleading what causes of action she wishes to assert.

4

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2021 WL 2186989, at *8 (D.N.J. May 28, 2021) (citing Walton v. Mental Health
Ass’n of Se. Pennsylvania, 168 F.3d 661, 667 (3d Cir. 1999)).
In my opinion dismissing the Amended Complaint, I explained that
Dickerson’s harassment claim in the initial Complaint was not dismissed
because that pleading alleged that: (1) Dickerson has been certified with an
FMLA disability; (2) Dickerson was called into Ms. Crawford’s office to explain
how she could dance if she had a disability; (3) the Department of Labor
investigated the incident and found the conduct to be severe enough to amount
to a discrimination violation; and (4) NJIT knew of the violation and failed to
take prompt remedial action. (DE 48 at 13 (citing DE 21 at 15-16.)) In the
Amended Complaint, however, those factual allegations were missing, and I
dismissed the harassment claim—although I expressed that Dickerson “may, if
appropriate, reassert her claims, with the earlier supporting factual allegations,
via a Second Amended Complaint.” (DE 48 at 14.)
The 2AC restores the earlier factual allegations from the initial Complaint
that I found sufficient to state a harassment claim. Dickerson alleges that (1)
she was on intermittent FMLA leave for a “permanent chronic respiratory
condition”; (2) Crawford called Dickerson to her office around September 7,
2018 and repeatedly “asked her how she could dance on FMLA”; (3) the
Department of Labor determined that Crawford’s conduct amounted to a
discrimination violation; and (4) NJIT knew of the harassment and failed to
take prompt remedial action. (2AC at 2-3, 17-18.)
Accepting these allegations as true, I am persuaded that Dickerson’s
proposed ADA harassment claim against NJIT is not futile.
2. Retaliation
To state a prima facie case of retaliation under the ADA, Dickerson must
demonstrate that (1) she engaged in protected activity; (2) she suffered adverse
action by the employer either after or contemporaneous with her protected
activity; and (3) there exists a causal connection between the employee’s

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protected activity and the employer’s action. Krouse v. AM. Sterilizer Co, 126
F.3d 494, 500 (3d Cir. 1997).
I did not dismiss Dickerson’s retaliation claim in the initial Complaint,
because she alleged that (1) she engaged in protected activity by exercising her
right to take FMLA leave; (2) Dickerson suffered adverse action when she “was
called to a meeting where she was, effectively dressed down by her boss for
taking FMLA leave since she was able to attend and dance at a retirement
party”; and (3) Dickerson “exercised her right to take FMLA leave in the days
surrounding the retirement party and then upon her return to work was
questioned about her behavior at that retirement party.” (DE 48 at 13 (citing
DE 21 at 18-19.)) Those factual allegations were missing from the Amended
Complaint, and I consequently dismissed the retaliation claim against NJIT
without prejudice.
The 2AC restores the factual allegations from the initial complaint,
alleging that (1) Dickerson “was on intermittent FMLA” leave; (2) Ms. Crawford
repeatedly asked Dickerson how “she could dance on FMLA” based on her
having attended a retirement party in non-working hours; and (3) after
exercising her right to take FMLA leave around the time of the retirement party,
upon her return to work she was challenged about her behavior at the party.
Consequently, the Court finds that Dickerson’s retaliation claim is not
futile.
3. Failure to Accommodate
To state a prima facie case of failure to accommodate under the ADA,
Dickerson must demonstrate that (1) NJIT is a covered entity; (2) she “is a
disabled person within the meaning of the ADA;” (3) she “is otherwise qualified
to perform the essential functions of the job, with or without reasonable
accommodations by the employer;” and (4) she “has suffered an otherwise
adverse employment decision as a result of discrimination … [which] in this
contest include[s] refusing to make reasonable accommodations for [her]
disabilities.” Hohider v. United Parcel Serv., Inc., 574 F.3d 169, 186-87 (3d Cir.
2019) (alterations in original; internal quotation marks omitted) (quoting
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Williams v. Philadelphia Hous. Auth. Police Dep’t, 380 F.3d 751, 761 (3d Cir.
2004)).
Dickerson’s failure-to-accommodate claim is futile. (DE 51 at 12-13.) The
2AC alleges that when the “Painters and Construction Crews worked on the
floor where the Department of Human Resources is located,” Dickerson
informed Crawford “that the paint fumes and construction dust and chemicals
used were detrimental to her health.” (2AC at 3-4.) In response, Crawford told
Dickerson “to close the door and use the restrooms on the lower floors.” (Id.)
Setting aside whether that was a sufficient accommodation, the 2AC still
fails to allege that (1) NJIT is a covered entity or (2) that Dickerson is otherwise
qualified to perform her duties with or without a reasonable accommodation.
Accordingly, I find that Dickerson’s failure-to-accommodate claim under the
ADA is futile.
4. Discriminatory Discharge
To establish a prima facie case of discriminatory discharge under the
ADA, Dickerson must show that (1) she has a disability or is perceived by the
employer to be disabled; (2) that she was qualified for the position from which
she was discharged; and (3) she has suffered an adverse employment action
because of that disability.” Hoskins v. Valcor Eng'g, No. CV 14-6536, 2017 WL
1023353, at *5 (D.N.J. Mar. 16, 2017)
The 2AC alleges that “Defendants retaliated against Plaintiff by
wrongfully terminat[ing] [her] because of her disability during the Coronavirus
Pandemic.” (2AC at 4.) Such an allegation is conclusory; because it fails to
state supporting facts, it is insufficient to state a claim for discriminatory
discharge. Moreover, Dickerson fails to provide any allegations that would
support the inference that she was qualified for the specific position from
which she was discharged. Therefore, I find that Dickerson’s discriminatory
discharge claim is futile.

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5. Individual Liability
Dickerson also appears to assert an individual failure-to-accommodate
claim against Crawford, along with aiding-and-abetting harassment and
retaliation claims against Mongelli and Rubitz.
In my opinion granting partial dismissal of the initial Complaint, I stated
that under Third Circuit precedent, ADA and Title VII claims against individual
defendants are barred. (DE 21 at 7 (citing Williams v. Pennsylvania Human
Relations Comm’n, 870 F.3d 294, 299 (3d Cir. 2017) (“Title VII and the ADA
impose liability only on employers.”); Koslow v. Pennsylvania, 302 F.3d 161,
178 (3d Cir. 2002) (noting that “there appears to be no individual liability for
damages under Title I of the ADA.”) Thus, I dismissed with prejudice any
individual Title VII, ADEA, and ADA claims against Crawford, Mongelli, and
Rubitz. Because these claims have already been dismissed with prejudice, I
find that Dickerson’s individual claims against Crawford, Mongelli, and Rubitz
were, and remain, futile. 5
ii.

Title VII Claims

Dickerson also asserts claims for unequal terms and conditions,
harassment, retaliation, and discriminatory discharge under Title VII. 6 Title VII
claims are similarly analyzed under the McDonnell Douglas burden-shifting
framework. DeSantis v. New Jersey Transit, 756 F. App'x 197, 202 (3d Cir.
2019) (citation omitted). Shahin v. Delaware, 424 F. App’x 90, 92-93 (3d Cir.
2011) (applying the burden-shifting framework in Title VII cases).

Although individuals cannot be held liable under the ADA, they may be liable
under the NJLAD for “aiding and abetting” discrimination. See Desantis v. New Jersey
Transit, 103 F. Supp. 3d 583, 589-90 (D.N.J. 2015).
5

6
For Dickerson’s Title VII claims, she generally asserts claims for racial
discrimination, harassment, and age discrimination. Upon reviewing the pleading,
however, I perceive that Dickerson also appears to assert causes of action resembling
retaliation, unequal terms and conditions, and discriminatory discharge. Because of
Dickerson’s pro se status, I will assume for purposes of this motion to amend that she
intends to assert these claims.

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1. Unequal Terms and Conditions
To establish a prima facie claim of unequal terms and conditions in
employment, or disparate treatment, Dickerson 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 protected class. Murphy v. Hous.
Auth. & Urban Redevelopment Agency of City of Atl. City, 32 F. Supp. 2d 753,
763 (D.N.J. 1999), aff’d 208 F.3d 206 (2d Cir. 2000) (citing St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 506 (1993)).
The Third Circuit has expressed that the “central focus of the prima facie
[Title VII] case ‘is always whether the employer is treating some people less
favorably than others because of their race, color, religion, sex, or national
origin.” Sarullo v. U.S. Postal Serv., 352 F.3d 789, 798. For disparate treatment
claims, “[t]he evidence most often used to establish this” is whether the plaintiff
has demonstrated that “[she] was treated less favorably than similarly situated
employees who are not in plaintiff’s protected class.” Verdu v. Trustees of
Princeton Univ., No. CV 19-12484 (FLW), 2020 WL 1502849, at *9 (D.N.J. Mar.
30, 2020) (citing Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 366 (3d Cir.
2008); see also Ewell v. NBA Properties, Inc., 94 F. Supp. 3d 612, 624 (D.N.J.
2015) (“An inference of discrimination may arise if similarly situated employees
of a different race received more lenient treatment than that afforded
plaintiff.”).
Dickerson’s disparate treatment claim is futile because the 2AC fails to
sufficiently allege facts that could support an inference that she was treated
differently from similarly situated employees not in her protected class. The
2AC generally alleges that (1) “[n]o African American, Hispanic, or other ethnic
minority has been permitted to participate in the closed door, private
Employment Team Meetings” and (2) “only younger, Caucasian women were
permitted to attend the Employment Team Meeting.” (2AC at 5-6.)

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While Dickerson “is not required to show that [s]he is identical to [her
alleged] comparator,” she is still required to establish “substantial similarity.”
See Houston v. Easton Area Sch. Dist., 355 F. App’x 651, 654-55 (3d Cir. 2009)
(stating that “[t]o make a comparison of the plaintiff’s treatment to that of an
employee outside the plaintiff’s protected class for purposes of a Title VII claim,
the plaintiff must show that he and the employee are similarly situated in all
relevant respects”) (citations omitted). The claim is one of discrimination, and
requires some fact suggesting that the decision maker acted out of some racial
or similar motive; it is not enough to allege that those who attended and did
not attend the meeting were members of different groups, or that the employer
acted unfairly. Because Dickerson has not alleged that she is similar in any
respect to the employees who were permitted to attend the at-issue meetings,
her unequal terms and conditions claim is futile.
2. Harassment
To state a prima facie case of retaliation under the ADA, Dickerson must
demonstrate that (1) she engaged in protected activity; (2) she suffered adverse
action by the employer either after or contemporaneous with her protected
activity; and (3) there exists a causal connection between the employee’s
protected activity and the employer’s action. Krouse v. AM. Sterilizer Co, 126
F.3d 494, 500 (3d Cir. 1997).
To establish a prima facie case of hostile work environment harassment
under Title VII, Dickerson must show (1) she “suffered intentional
discrimination” because of her membership in a protected class”; (2) “the
discrimination was pervasive and regular”; (3) “the discrimination detrimentally
affected” her; (4) “the discrimination would detrimentally affect a reasonable
person” of the same protected class in that position; and (5) “the existence of
respondeat superior liability.” Cardenas v. Massey, 269 F.3d 251, 260 (3d Cir.
2001); Ulrich v. U.S. Sec’y of Veterans Affairs, 457 F. App’x 132, 140 (3d Cir.
2012).

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Defendants argue that Dickerson has not alleged facts in the 2AC to
support her Title VII harassment claim, and the Court agrees. The 2AC is bereft
of factual allegations that would support an inference of intentional
discrimination based on Dickerson’s membership in a protected class, as
opposed to an employee grievance or complaint of unfairness. Further, the 2AC
does not allege that Dickerson’s treatment “would detrimentally affect a
reasonable person” in Dickerson’s protected class in her position at NJIT.
Therefore, I find that Dickerson’s Title VII harassment claim is futile.
3. Retaliation
Title VII prohibits discrimination against an employee for having engaged
in a protected activity. See 42 U.S.C. § 2000e-3(a) (Title VII). To establish a
prima facie case of retaliation, Dickerson must show (1) she engaged in
protected activity; (2) her “employer took an adverse employment action after or
contemporaneous with the employee’s protected activity”; and (3) there exists a
causal connection between her protected activity and the employer’s adverse
action. Abramson v. William Paterson College of New Jersey, 260 F.3d 265, 286
(3d Cir. 2001).
Under the first element, “protected activity” includes both “an employee’s
filing of formal charges of discrimination against an employer … [and] informal
protests of discriminatory employment practices, including making complaints
to management.” Daniels v. Sch. Dist. of Philadelphia, 776 F.3d 181, 195 (3d
Cir. 2015) (quoting Curay-Cramer v. Ursuline Acad. Of Wilmington, Del., Inc.,
450 F.3d 130, 135 (3d Cir. 2006), Title VII’s antiretaliation provision prohibits
“all employer action that ‘well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.’” Thompson v. N. Am.
Stainless, LP, 562 U.S. 170, 174 (2011) (internal quotation marks omitted)
(quoting Burlington N. & S.F.R. Co. v. White, 548 U.S. 53, 69 (2006). With
regard to Dickerson establishing a causal connection between her protected
activity and NJIT’s adverse action, Third Circuit case law focuses “on two main

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factors”: “timing and evidence of ongoing antagonism.” Abramson, 260 F.3d at
288.
I will assume arguendo that the protected activity consisted of (1)
Dickerson questioning Crawford about perceived discriminatory practices or (2)
Dickerson opting to meet with Crawford concerning “sensitive issues” in the
presence of the Associate Director of Labor & Employee Relations. Dickerson’s
retaliation claim is nonetheless futile, because the 2AC fails to adequately
plead the second and third elements. The 2AC does not allege any facts
concerning the temporal proximity of her protected activity and her July 7,
2020 termination; nor does it allege any facts suggesting that Dickerson’s
termination was causally related to that protected activity.
Accordingly, I find that Dickerson’s retaliation claim under Title VII is
futile.
4. Discriminatory Discharge
Finally, the 2AC appears to assert a claim of discriminatory discharge
under Title VII, in connection with her July 7, 2020 employment termination
“during the Coronavirus Pandemic on July 7, 2020.” (2AC at 6-7.) In order to
state a prima facie case for discriminatory discharge under Title VII, Dickerson
must allege: (1) that she is a member of a protected class: (2) that she is
qualified for the position; (3) that she was fired from that position; and (4) that
the circumstances of the case give rise to an inference of unlawful
discrimination such as might occur when the position is filled by a person not
of the protected class. Omogbehin v. Dimensions Int'l, Inc., No. CIV 083939NLHKMW, 2009 WL 2222927, at *4 (D.N.J. July 22, 2009) (citing Jones v.
School Dist. Of Philadelphia, 198 F.3d 403, 411 (3d Cir. 1999)).
The 2AC is bereft of allegations supporting an inference that Dickerson’s
termination, whether or not justified, was attributable to unlawful
discrimination. The only supporting allegation Dickerson provides is that
“[y]ounger, non-protected class employees were given options to remain
employed, offered temporary furloughs, and related.” Such a conclusory
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allegation is not sufficient to state a factual claim for discriminatory discharge.
Accordingly, I find that Dickerson’s discriminatory discharge claim under Title
VII is futile.
5. Individual Liability
As established earlier in this opinion, individuals cannot be held liable
under Title VII. Canate v. Barnabas Health Sys., No. 12-cv-7222, 2013 WL
5305236, at *3 (D.N.J. Sept. 18, 2013). Therefore, to the extent Dickerson
asserts Title VII claims against Crawford, Mongelli, and Rubitz, those claims
are similarly futile.
iii.

NJLAD Claims

Dickerson brings two sets of claims under the NJLAD. First, the 2AC
brings “identical [NJLAD] claims” to those asserted under the ADA. Second, the
2AC asserts under NJLAD that her July 7, 2020 termination was
discriminatory, a claim which I earlier found to be futile under Title VII.
1. Claims Against NJIT
NJLAD claims are analyzed under the McDonnell Douglas burden-shifting
framework used for federal discrimination statutes. DeSantis v. New Jersey
Transit, 756 F. App'x 197, 202 (3d Cir. 2019) (citation omitted). NJLAD claims
are governed by the same standards governing parallel claims under the ADA
and Title VII. See Fowler v. AT&T, Inc., 19 F.4th 292, 298 (3d Cir. 2021) (stating
that with regard to claims brought under the ADA, courts “look to Title VII case
law to … inform [their] analysis” and that “New Jersey law generally tracks the
relevant federal statutes[.]”); Brown v. City of Long Branch, 380 F. App'x 235,
238 (3d Cir. 2010) (“NJLAD claims generally are governed by the same
standards” as the ADA.); see also Pratt v. Ann Klein Forensic Ctr., No. CV 155779, 2019 WL 4509288, at *6 (D.N.J. Sept. 18, 2019) (“[D]iscrimination claims
under the NJLAD track the same analysis as those under the ADA.”).
Given these standards and the similarity between the NJLAD and their
federal analogues, I largely track my earlier analysis and find that (1) the
NJLAD claims for harassment and retaliation regarding Dickerson exercising
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her rights under the FMLA (also asserted under the ADA) are not futile; (2)
Dickerson’s NJLAD failure to accommodate claim (also asserted under the
ADA) is futile; and (3) that Dickerson’s unequal terms and conditions and
discriminatory discharge (also asserted under Title VII) claims are futile.
2. Individual Liability
Unlike federal law, the NJLAD does impose individual liability, albeit
through an “aiding and abetting” theory of liability. NJLAD makes it unlawful
for “any person, whether an employer or an employee or not, to aid, abet,
incite, compel, or coerce the doing of any of the acts forbidden under this act.”
N.J. Stat. Ann. § 10:5-12(e). Further, New Jersey courts have held that an
individual can aid and abet, not only the conduct of another person, but—
counterintuitively—that person’s own conduct. That principle furnishes an
alternative route to personal liability for a NJLAD violation. See Cicchetti v.
Morris Cnty Sheriff’s Off., 194 N.J. 563 (N.J. 2008).
To hold an employee liable as an aider and abettor, Dickerson must
show: (1) the employer whom the defendant aided performed a wrongful act
causing an injury; (2) the defendant was generally aware of defendant’s role as
part of an overall illegal or tortious activity at the time that he or she provided
the assistance; and (3) the defendant knowingly and substantially assisted the
principal violation. Cicchetti, 947 A.2d at 645 (citing Hurley v. Atlantic City
Police Dep’t, 174 F.3d 95, 127 (3d Cir. 1999)).
The 2AC seeks to hold (1) Crawford, Mongelli, and Rubitz individually
liable for Dickerson’s retaliation and harassment claims stemming from her
taking FMLA leave and attending a colleague’s retirement dinner; (2) Crawford
individually liable for her failure to provide a reasonable accommodation to
Dickerson; and (3) Crawford individually liable for Dickerson’s retaliation and
harassment claims in connection with her exclusion from Employment Team
meetings.
With respect to Dickerson’s exercising her right to take FMLA leave, I
have already found that she has sufficiently alleged harassment and retaliation
claims against NJIT. I now find that she has adequately alleged that Crawford
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aided and abetted those harassment and retaliation violations. The 2AC alleges
that Crawford is the primary wrongdoer, and Dickerson focuses almost all of
her factual allegations on Crawford’s conduct, which she describes in the
complaint. The complaint also refers to a Department of Labor investigation,
which similarly focused on Crawford’s September 7, 2018 conversation with
Dickerson and came to the conclusion, after conversations with both Dickerson
and Crawford, that a discrimination violation had occurred. 2AC at 19-20. I
find a sufficient basis for an inference that Crawford played a role in
Dickerson’s alleged discriminatory treatment and that therefore Dickerson’s
aiding and abetting claim is not futile as to Crawford.
On the other hand, the aiding and abetting claims against Mongelli and
Rubitz are futile. The 2AC alleges only that “Staci Mongelli and Lauren Rubitz
aided and abetted the discrimination, harassment, and retaliation toward
Plaintiff.” That conclusory, fact-free allegation does not sufficiently state an
aiding and abetting claim.
The remaining aiding and abetting claims are necessarily futile in light of
the rulings above. 7 Because the 2AC has failed to sufficiently plead a primary
violation under the NJLAD, there can be no aiding and abetting liability. See
Taylor v. Lincare, Inc., No. CV 15-6284 (RMB/JS), 2016 WL 3849852, at *8
(D.N.J. July 15, 2016) (“[B]ecause Plaintiff’s underlying causes of action fail,
there can be no claim for aiding and abetting violation of the NJLAD.”)
iv.

Dismissals with prejudice

The remaining question is whether I should grant Dickerson leave to file
a third amended complaint. The Third Circuit has liberally permitted pleading
amendments to ensure that “a particular claim will be decided on the merits
rather than on technicalities.” Dole v. Arco Chern. Co., 921 F.2d 484, 487 (3d
Cir. 1990). Accordingly, if a complaint is vulnerable to Rule 12(b)(6) dismissal,
courts “must permit a curative amendment, unless an amendment would be
I refer to Dickerson’s aiding and abetting claims regarding the (1) failure to
accommodate claim and (2) the harassment and retaliation claims stemming from
Dickerson’s alleged exclusion from Employment Team meetings.
7

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inequitable or futile.” Alston v. Parker, 363 F,3d 229, 235 (3d Cir. 2004)
(emphasis added).
The claims found futile herein, based on the application of a Rule 12(b)(6)
standard, are deemed dismissed. The dismissals have been entered, to a
substantial extent, based on legal defects which, by their nature, would not be
remedied by amendment. To the extent the dismissals rest on the failure to
allege sufficient facts, I note that Ms. Dickerson has now had three
opportunities to allege such facts as she may possess. A fourth opportunity, in
the form of leave to submit another amended complaint, would be futile. The
dismissals are therefore entered with prejudice.
III.

Conclusion

For the reasons provided above, Plaintiff’s motion to amend is GRANTED
in part and DENIED in part. The motion to amend will be granted as to
Dickerson’s ADA and NJLAD harassment and retaliation claims against NJIT,
and as to her NJLAD harassment and retaliation claims against Crawford. The
motion to amend will be denied with respect to all other claims.
An appropriate Order, specifying the claims that will and will not go
forward, accompanies this Opinion.
Dated: January 10, 2022
/s/ Kevin McNulty
____________________________________
Kevin McNulty
United States District Judge

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