FLETCHER v. GATEWAY GROUP ONE

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ARIELLE FLETCHER,

Civil No.: 20-cv-3413 (KSH) (CLW)

Plaintiff,

v.

GATEWAY GROUP ONE, BENJAMIN OKOLI,

STATE OF NEW JERSEY, COUNTY OF

ESSEX, CITY OF NEWARK, CITY OF

ELIZABETH, EMERSON RUSSELL OPIN ION

MAINTENANCE COMPANY AVIATION, and

PORT AUTHORITY OF NEW YORK AND

NEW JERSEY,

Defendants.

Katharine S. Hayden, U.S.D.J.

I. Introduction

Plaintiff Arielle Fletcher alleges she was subjected to discrimination and retaliation while

employed by defendant Gateway Group One and has asserted claims against Gateway and a host

of other defendants. Before the Court are the City of Elizabeth’s motion for summary judgment

(D.E. 12) and the motions to dismiss filed by Gateway, the City of Newark, Essex County, and

the Port Authority of New York and New Jersey (D.E. 17, 18, 30, 38). The motions are decided

without oral argument pursuant to L. Civ. R. 78.1(b).

II. Background

The amended complaint alleges as follows. Fletcher worked at Newark Liberty

International Airport as a customer sales representative for Gateway,1 a company that describes

1 Fletcher also alleges that Gateway “may also be doing business as or under” the name Emerson

Russell Maintenance Company Aviation, or ERMC, and that ERMC is “an agent or partner or

alias of” Gateway Group One. (Id. ¶¶ 3, 17.) Gateway states that it was improperly sued as

itself in the employee handbook accompanying the complaint as a “provider[] of security and

frontline customer services.” (D.E. 4, Am. Compl. ¶¶ 32, 35; D.E. 1-1, at 2.) She alleges that

defendant Benjamin Okoli subjected her to “unwelcomed and forced offensive touching,

grabbing, and unwanted mouth contact,” and made “unwelcomed lewd, sexual and aggressive

comments.” (Id. ¶ 4.) Fletcher met with a Port Authority supervisor on April 5, 2019, “advised

him of her fears,” and was directed to speak with human resources. (Id. ¶ 20.) It is unclear

whether this conversation pertained to Okoli, as she alleges that he started harassing her around

June 5, 2019, two months later. (Id. ¶ 56.) At that point, Fletcher alleges, Okoli began harassing

her and she “was afraid to report” him because “he was the Supervisor, who held positions of

power and authority at work and in the Union.” (Id.) Fletcher contends his conduct continued

after she “told him to ‘Stop’ invading her personal space” and that he did this frequently while

“yelling at [her] in an angry and threatening manner.” (Id.)

Fletcher also alleges that Okoli physically attacked her around June 21, 2019, after she

“approached [him] about his abusive behavior.” (Id. ¶¶ 5, 57.)2 She alleges she attempted to

speak with her managers but they “refused to listen to [her],” and that she provided a written

statement to one of them. (Id. ¶¶ 21, 23, 60, 62.) She also asserts that she contacted a human

resources manager and provided a written statement, but the person “failed (or refused) to

respond to her.” (Id. ¶¶ 22, 27, 61, 66.) She also made an oral statement to a union delegate,

who “expressly refused to assist [her],” a written statement to other union representatives, and a

“Gateway Group One” and that the proper company name is “Gateway Security Inc.” (D.E. 17-1

¶ 1; D.E. 17-5, at 1.) This defendant (including ERMC) is referred to herein as “Gateway.”

2 The date of the alleged attack is unclear from the complaint, which alternately describes it as

taking place on June 22, 2019 (id. ¶ 5) or June 21, 2019 (id. ¶ 57). Given that the steps Fletcher

alleges she took to report it to her employer and elsewhere are described as taking place on June

21, 2019 (id. ¶¶ 21-27, 60-66), this opinion uses the June 21 date.

written statement to a Newark Liberty International Airport police officer. (Id. ¶¶ 24-26, 63-65.)

She also alleges that she filed a police report. (Id. ¶¶ 5, 58.) Two days after the alleged attack,

Fletcher’s managers accused her of lying and “entirely refuted [her] account of the assault.” (Id.

¶ 67.) Human resources “refused or failed to respond” to her written communications regarding

the alleged abuse and refused her requests for copies of her performance reviews and write-ups,

and, she contends, her employer failed to take corrective action. (Id. ¶¶ 68-69.) Ultimately, in

July 2019, Fletcher’s employment was terminated. (See id. ¶¶ 70, 104.) She contends that in

addition to violating statutory law, this termination contravened Gateway’s policies as set forth

in the employee handbook. (Id. ¶¶ 71, 74-89; D.E. 1-1.)

Fletcher further alleges that she suffers from life-threatening seizures and that from

January 2019 to June 2019, she experienced multiple seizures while working, some requiring

transportation to a hospital by ambulance or hospital admission. (Id. ¶¶ 33, 36-54.) Her

managers assertedly prohibited her from taking her medication in the break room during break

time and “relegated [her] to the public bathroom, which was frequently filthy, unclean, and far

away” to take her pills. (Id. ¶ 55.) Separately, Fletcher asserts that she is “registered as a

survivor of [d]omestic violence.” (Id. ¶¶ 34, 59.)

Fletcher filed suit on March 30, 2020, naming Gateway and Okoli as defendants, along

with the state of New Jersey, Essex County, the City of Newark, and the City of Elizabeth. (D.E.

1.) Her basis for naming Newark and Elizabeth was their alleged partial ownership of the

airport. The basis for naming the state and county is unclear, and the docket does not reflect that

the state was ever served with process. On April 3, 2020, Fletcher filed the amended complaint,

which added the Port Authority as a defendant on the asserted basis that its “agents operate in

[the airport]” and it “exercises control over” the airport. (Am. Compl. ¶ 18.)

Fletcher asserts claims under Title VII of the Civil Rights Act of 1964 for hostile work

environment (count 1), retaliation (count 2), wrongful termination based on sex discrimination

(count 3), wrongful termination based on race discrimination (count 4), and wrongful termination

based on disability discrimination (count 5). Five motions are presently before the Court.

Elizabeth has moved for summary judgment (D.E. 12), arguing that it does not own or operate

Newark Liberty International Airport and has no connection to this matter or Fletcher’s former

employer, Gateway. Newark moves to dismiss for failure to state a claim, arguing the only basis

for suit against it that is articulated in the complaint – partial ownership of the airport – does not

give rise to a cognizable Title VII claim and that no employment relationship existed between it

and Fletcher. (D.E. 18.) Gateway moves to dismiss for failure to exhaust administrative

remedies, improper service of process, and failure to timely effectuate service. (D.E. 17.) Essex

County moves to dismiss for failure to exhaust administrative remedies. (D.E. 30.) Finally, Port

Authority moves to dismiss for failure to exhaust administrative remedies, failure to timely

effectuate service, and on the basis that it was not Fletcher’s employer. (D.E. 38.) Fletcher has

opposed these motions.

III. Discussion

A. Administrative Exhaustion

Gateway, Essex County, and Port Authority seek dismissal for failure to exhaust

administrative remedies. Fletcher has asserted her claims under Title VII, which, in 42 U.S.C.

§ 2000e-2(a)(1), prohibits employment discrimination on the basis of race, color, religion, sex, or

national origin, and in 42 U.S.C. § 2000e-3(a), prohibits retaliation against those who assert

rights under the statute. Fort Bend Cnty. v. Davis, 139 S. Ct. 1843, 1846 (2019). A plaintiff

bringing a claim under these statutory provisions “must comply with the procedural requirements

set forth in 42 U.S.C. § 2000e-5.” Williams v. E. Orange Community Charter Sch., 396 F. App’x

895, 897 (3d Cir. 2010).3 Among these requirements are a time limit (180 days or 300 days, as

set forth in the statute) to file a charge with the EEOC and another time limit (90 days) to file suit

after receipt of right to sue letter. 42 U.S.C. § 2000e-5(e)(1), (f)(1). See also Davis, 139 S. Ct. at

1846-47 (summarizing administrative exhaustion process for Title VII claims).

Because the purpose of the administrative exhaustion requirement is to allow the EEOC

an opportunity to settle disputes using “conference, conciliation, and persuasion,” thereby

“avoiding unnecessary action in court,” an ensuing lawsuit is limited to claims within the scope

of the initial charge to the EEOC. Williams, 396 F. App’x at 897. See also Simko v. United

States Steel, 992 F.3d 198, 207 (3d Cir. 2021) (observing that “a fundamental aim of the pre-suit

requirements is to ‘give prompt notice to the employer’ and ‘encourage the prompt processing of

all charges of employment discrimination’” (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 109, 121 (2002)).

Fletcher has alleged that she complied with administrative exhaustion requirements.

(Am. Compl. ¶ 19 (“Plaintiff has complied with all administrative procedures that are conditions

precedent to the filing of the instant matter and, as a result, has exhausted all remedies available

to her.”); see also id. ¶ 30 (“Plaintiff has exhausted any and all administrative remedies available

to her.”).) She also alleges that she “timely filed a Notice of Claim” with the state, Essex

County, and Newark. (Id. ¶ 19; see also id. ¶ 29.)4 It is unclear whether the latter assertion

3 To the extent plaintiff asserts a claim for disability discrimination in count 5, disability is not a

protected class under Title VII. Even if plaintiff intended to plead this claim under the Americans

with Disabilities Act, the same exhaustion requirements would apply. Simko v. United States

Steel, 992 F.3d 198, 204 (3d Cir. 2021); Williams, 396 F. App’x at 897; see also 42 U.S.C.

§ 12117(a).

4 Despite the reference in paragraph 19 to an exhibit, no such exhibit accompanied either the

original or amended complaint.

reflects a belief, which would be erroneous, that a notice of claim made to these entities would

satisfy the exhaustion requirements under Title VII, and there is no mention in the amended

complaint of any charge having been made to the EEOC or receipt of a right-to-sue letter.

Although satisfaction with the exhaustion requirements is a prerequisite to commencing a

Title VII suit in court and must be enforced if, as is the case here, a party has properly and timely

raised the issue of plaintiff’s noncompliance, see Davis, 139 S. Ct. at 1846, 1849, 1851, at the

pleadings stage it is sufficient for a plaintiff to generally allege that all conditions precedent have

been performed. Fed. R. Civ. P. 9(c); accord Hildebrand v. Allegheny Cnty., 757 F.3d 99, 111-

12 (3d Cir. 2014) (concluding that the pleading of conditions precedent – there, exhaustion of

administrative remedies under the Age Discrimination in Employment Act – need not meet the

pleading standards of Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal,

556 U.S. 662 (2009)); Hong Zhuang v. EMD Performance Materials Corp., 2018 WL 3814282,

at *6 (D.N.J. Aug. 10, 2018) (Martinotti, J.) (same, in Title VII case). Accordingly, the Court

declines to dismiss the claims at this stage for failure to exhaust administrative remedies.

This does not mean that Fletcher has demonstrated that she in fact complied with the

exhaustion requirements, nor does it mean that she complied with those requirements as to each

defendant and each claim and did so in a timely manner. But the issue cannot be resolved now.

In response to Gateway’s motion to dismiss, Fletcher offered no response whatsoever to

Gateway’s administrative exhaustion argument. (See generally D.E. 23; see also D.E. 26, at 1.)

In response to Essex County’s and Port Authority’s motions to dismiss, Fletcher revealed that

she had purportedly sent a series of charges to the EEOC beginning around August 1, 2019, and

that the EEOC allegedly sent a right to sue letter, albeit with the wrong information for the

complainant, employer, and attorney, around September 5, 2020. (See D.E. 34, at 6-7.; D.E. 40,

at 5.) These submissions came after briefing was concluded on the motions filed by Elizabeth,

Newark, and Gateway. After the briefing was closed on all of the motions presently before the

Court, Fletcher’s counsel filed a letter attaching a right to sue letter dated April 2, 2021, that was

addressed to Fletcher, with copy to Gateway. (D.E. 45, Ex. A.) In view of the circumscribed

universe of documents the Court may consider in deciding a motion to dismiss,5 and because

defendants have had no opportunity to respond to or even address the April 2 document plaintiff

submitted after the close of briefing, the Court will not determine on the present record whether

Fletcher properly exhausted her administrative remedies. Nevertheless, given the effect of a

failure to properly exhaust, focused discovery followed by summary judgment motion practice

directed to this issue may be appropriate, at the discretion of the Magistrate Judge. Accord

DeSantis v. N.J. Transit, 103 F. Supp. 3d 583, 593 (D.N.J. 2015) (McNulty, J.).

B. Service

Two defendants, Gateway and Port Authority, have sought dismissal on grounds that the

service of process made upon them was either untimely or improper. The Federal Rules of Civil

Procedure set forth requirements for service of process, both with respect to the manner of

service and the time in which it must be accomplished. Relevant here, Rule 4 requires the

plaintiff to have the complaint and summons served upon the defendants within 90 days after the

complaint is filed. Fed. R. Civ. P. 4(c)(1), (m). The rule also sets forth how service is properly

5 See, e.g., Lum v. Bank of Am., 361 F.3d 217, 221 n.3 (3d Cir. 2004) (“In deciding motions to

dismiss pursuant to Rule 12(b)(6), courts generally consider only the allegations in the

complaint, exhibits attached to the complaint, matters of public record, and documents that form

the basis of a claim.”); Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192,

1196 (3d Cir. 1993) (“[A] court may consider an undisputedly authentic document that a

defendant attaches as an exhibit to a motion to dismiss if the plaintiff’s claims are based on the

document.”).

accomplished on various types of defendants. See, e.g., Fed. R. Civ. P. 4(e), (h) (addressing how

service is to be made on individuals and corporations, respectively).

Under Rule 4(m), if a plaintiff fails to timely serve a defendant, the Court must dismiss

the action without prejudice against that defendant, or, alternatively, order that service be made

within a specified time. If the plaintiff shows good cause for the failure to timely serve, “the

court must extend the period for an appropriate time.” Id. Thus, a showing of good cause makes

extension (rather than dismissal) mandatory. McCurdy v. Am. Bd. of Plastic Surgery, 157 F.3d

191, 196 (3d Cir. 1998). Even absent good cause, “the court may still grant the extension in the

sound exercise of its discretion.” Id.

Port Authority argues that dismissal under Rule 4(m) is appropriate because although the

amended complaint naming it as a defendant was filed on April 3, 2020, it was not served until

December 9, 2020 – 250 days after the filing, and thus well beyond the 90-day deadline. In

opposition, Fletcher does not acknowledge the untimeliness of her service of process on Port

Authority, instead contending that service was properly made and that in any event there had

been no prejudice to Port Authority because it had actual notice of the suit and appeared in the

action. (See D.E. 40.)6 The “primary focus” of the good cause inquiry “is on the plaintiff’s

reasons for not complying with the time limit in the first place.” MCI Telecomm. Corp. v.

Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir. 1995)). “Good cause” is measured by an

“excusable neglect” test, which requires a showing of good faith by the party seeking the

extension and “‘some reasonable basis’” for not complying with the time limit. Id. (citation

6 Plaintiff cites “Federal Rule of Civil Procedure § 2334(a)” in support of her contention that

service was proper. (D.E. 40.) There is no such rule, and to the extent the intended reference is

to 18 U.S.C. § 2334(a), that provision applies to suits under 18 U.S.C. § 2333 and has no

applicability here.

omitted). Here, Fletcher has offered no reason whatsoever for not complying with the time limit

and instead insists that service was proper notwithstanding the unrefuted record evidence that it

was untimely. (See D.E. 38-2, Lee Cert. ¶ 2 (certifying that Port Authority was served on

December 9, 2020).) Although she also contends, essentially, “no harm, no foul” because Port

Authority did ultimately get notice of the suit, appeared in the action, and thereby had an

opportunity to be heard in accordance with due process requirements, “absence of prejudice

alone can never constitute good cause to excuse late service.” Id. Fletcher has not shown good

cause.

But, as noted earlier, a discretionary extension may be appropriate even absent good

cause. McCurdy, 157 F.3d at 196. Pertinent considerations include “actual notice of the legal

action; prejudice to the defendant; the statute of limitations on the underlying cause of action; the

conduct of the defendant; and whether the plaintiff is represented by counsel,” as well as “any

other factor that may be relevant when deciding whether to grant an extension or dismiss the

complaint.” Chiang v. U.S. Small Bus. Admin., 331 F. App’x 113, 116 (3d Cir. 2009). Here,

Port Authority did get notice of the suit, as evidenced by its appearance and the pending motion.

However, there is no indication it had notice before it was actually served, such as through

settlement negotiations or other pre-service contact. Cf. Jumpp v. Jenkins, 2010 WL 715678, at

*11 (D.N.J. Mar. 1, 2010) (Kugler, J.) (noting that the record “strongly suggest[ed] that

[defendant] . . . had actual notice of this action well-within the service period”).7 Fletcher is

represented by counsel, and when the Court issued a call for dismissal in August 2020 because

7 It is unclear how Fletcher’s transportation to the emergency room from the airport on

“countless occasions” would have put Port Authority on notice of the claims now asserted

against it. (D.E. 40, at 12.)

no proof of timely service had been filed, Fletcher’s attorney sought and obtained an extension of

time to serve several defendants without any mention of Port Authority. (See D.E. 5, 7, 8.)

Although these facts disfavor a discretionary extension, others point in the opposite

direction. There is no indication that Port Authority’s ability to defend on the merits has been

affected by Fletcher’s service approximately five months beyond the deadline in the rule. See

Boley v. Kaymark, 123 F.3d 756, 759 (3d Cir. 1997) (“Delay may damage a defendant’s ability

to defend on the merits,” such as through a consequent unavailability of witnesses or evidence).

No scheduling order has yet been entered, and this litigation has not progressed beyond the

threshold motion practice presently before the Court. Also, although the issue of administrative

exhaustion must be explored further (as explained previously), Fletcher has cited right to sue

letters received in or around September 2020 or early April 2021. Because Title VII requires

civil actions to be filed no later than 90 days after receipt of a right to sue letter, assuming

arguendo that the dates Fletcher has cited are correct, dismissing her claims against Port

Authority without prejudice would be tantamount to a with-prejudice dismissal (if the letter was

received in September 2020) or would soon have that effect (if the letter was received in April

2021). Although the running of the statute of limitations does not require the discretionary grant

of an extension, it is a factor supporting that result. Boley, 123 F.3d at 759.8 Accordingly, the

Court will deny Port Authority’s motion to dismiss under Rule 4(m) and grants Fletcher an

extension of time nunc pro tunc to serve Port Authority. Because that service has already been

8 The 180-day period within which a plaintiff must file a charge with the EEOC and the 90-day

time limit to file a civil suit following receipt of a right to sue letter from the EEOC are

considered statutes of limitation. See Burgh v. Borough Council of Montrose, 251 F.3d 465, 471

(3d Cir. 2001).

effectuated and Port Authority does not argue that service was improper other than with respect

to its untimeliness, service is deemed completed with respect to it.

For its part, Gateway argues that it was not properly served and that the claims against it

should be dismissed because Fletcher’s failure to effectuate proper service deprives the Court of

personal jurisdiction over it. Gateway contends that the person upon whom Fletcher claims to

have made service, a “Ms. Kirby,” was never employed by Gateway and that even if the person

was an employee, Fletcher has not shown that she was authorized to accept service of process.

Under Fed. R. Civ. P. 12(b)(5), a defendant may move to dismiss for insufficient service

of process. It is plaintiff’s burden to show that service was sufficient. Grand Entm’t Grp. v. Star

Media Sales, 988 F.2d 476, 488 (3d Cir. 1993) (“[T]he party asserting the validity of service

bears the burden of proof on that issue.”). Moreover, proper service of process is a prerequisite

to the Court’s exercise of personal jurisdiction over a defendant. Lampe v. Xouth, Inc., 952 F.2d

697, 700-01 (3d Cir. 1991).

Under Rule 4, a corporation is to be served by (1) “following state law for serving a

summons in an action brought in courts of general jurisdiction in the state where the district court

is located or where service is made,” Fed. R. Civ. P. 4(h)(1)(A), (e)(1), which, here, means

following New Jersey law, or (2) “by delivering a copy of the summons and complaint to an

officer, a managing or general agent, or any other agent authorized by appointment or by law to

receive service of process and – if the agent is one authorized by statute and the statute so

requires – by also mailing a copy of each to the defendant,” Fed. R. Civ. P. 4(h)(1)(B). Under

New Jersey law, service on a corporation is made by:

serving a copy of the summons and complaint . . . on any officer, director, trustee

or managing or general agent, or any person authorized by appointment or by law

to receive service of process on behalf of the corporation, or on a person at the

registered office of the corporation in charge thereof, or, if service cannot be

made on any of those persons, then on a person at the principal place of business

of the corporation in this State in charge thereof, or if there is no place of business

in this State, then on any employee of the corporation within this State acting in

the discharge of his or her duties . . . .

N.J. Ct. R. 4:4-4(a)(6).

Fletcher claims to have made service on Gateway through a process server that delivered

a copy of the summons and complaint to a “Ms. Kirby,” the “Custodian of Records,” at 604-608

Market Street, in Newark, New Jersey. (See D.E. 23-1, Aff. of Service.) In response to

Gateway’s argument that no person of that name worked at the company, Fletcher argues that her

counsel “is not a detective, nor is a process server,” and that there is “nothing [p]laintiff can do”

if the person supplied an incomplete or incorrect name. (D.E. 23, at 4, 5.) She also argues that

due process was met as Gateway has appeared in this action, which she frames as indicating

actual notice and a lack of prejudice.9

This argument fails to recognize that it is plaintiff’s burden to prove the sufficiency of

service, and that service must be made in the manner set forth in the rules, as discussed above.

Fletcher makes no attempt to show how the person served, purportedly the custodian of records,

qualifies as an appropriate person to receive service under any of the categories set forth in the

rule. Hiring a process server does not relieve a plaintiff of the responsibility to properly and

timely serve a defendant, or of the burden to prove the validity of service when faced with a

challenge. For example, in Gabros v. Shore Medical Center, the plaintiff filed three proofs of

service, each of which indicated that a process server had gone to the defendant’s place of

business and left copies of the summons and complaint with an administrative assistant and,

9 To the extent Fletcher again relies on “Federal Rule of Civil Procedure § 2334(a)” and “18

U.S.C. § 2334(a)” as the basis for service being proper, as noted earlier, these provisions, which

are interpreted as references to 18 U.S.C. § 2334(a), have no applicability here.

later, a risk manager. 724 F. App’x 119, 122 (3d Cir. 2018). The Third Circuit concluded that

the district court properly dismissed plaintiff’s claims without prejudice, as service was

improper:

The record is bereft . . . of any evidence that either [person with whom the process

server left the summons and complaint] was “an officer, a managing or general

agent, or an[] . . . agent authorized . . . to receive service of process.” Fed. R. Civ.

P. 4(h)(1)(B). Nor is there any basis to conclude that either one was “in charge” of

[defendant’s] place of business and therefore a proper target of process under

New Jersey Court Rule 4:4-4(a)(6), which the Federal Rules incorporate as a

permissible method of service. See Fed. R. Civ. P. 4(h)(1)(A), 4(e)(1).

Gabros, 724 F. App’x at 122; see also West v. Am. Honda Motor Co., 2008 WL 4104683, at *4

(Aug. 28, 2008) (Hillman, J.) (“In order for service of process upon an agent to be effective, it

must be shown that the agent was actually appointed by the defendant for the specific purpose of

receiving process. . . . Mere acceptance is not enough to demonstrate an agency relationship for

purpose of service of process.”).

Despite these deficiencies, however, “[t]he choice of remedy for improper service is

committed to the sound discretion of the District Court.” Gabros, 724 F. App’x at 122 (citing

Umbenhauer v. Woog, 969 F.2d 25, 28 (3d Cir. 1992)); see also Woog, 969 F.2d at 30 (court

may dismiss claims for failure to effect service or alternatively, quash the service of process,

though the latter should be done “when there exists a reasonable prospect that service may yet be

obtained”). Although concluding that Fletcher has not met her burden to prove the validity of

service on Gateway also means she has also not met the time limit for service in Rule 4(m), the

same factors that support a discretionary extension of time with respect to Port Authority also

support one here.10 This case is substantively in its early stages; no scheduling order has been

10 There is no basis for a mandatory extension based on good cause. As with Port Authority,

Fletcher has not shown excusable neglect, and, in her opposition to Gateway, insists service was

proper.

entered; there is no indication that Gateway’s ability to defend has been negatively affected;11

and dismissing without prejudice would in all likelihood function as a with-prejudice dismissal

given the statute of limitations.

Accordingly, the Court will grant Fletcher a short extension of time within which to

effectuate proper service of process on Gateway. She shall properly effectuate service of the

summons and amended complaint on Gateway within 10 days and shall promptly thereafter file

proof of service, or shall file within 10 days a waiver of service signed by Gateway waiving

additional service of process.

C. Failure to Plead Plausible Claim for Relief

Three defendants – Port Authority, Newark, and Elizabeth – have also argued that

Fletcher has not asserted cognizable claims for relief against them. These arguments, some of

which are made under Fed. R. Civ. P. 12(b)(6) and one of which is made under Fed. R. Civ. P.

56, are addressed in turn.

1. Port Authority

Port Authority seeks dismissal of the claims against it on the basis that it was not

Fletcher’s employer, and that the factual allegations against it – that it operates in or exercises

control over the airport and that Fletcher told a Port Authority supervisor of her fears and he

directed her to speak with human resources (Am. Compl. ¶¶ 18, 20) – are insufficient to state a

cause of action against it. Fletcher offers no opposition to this argument by Port Authority.

To withstand dismissal under Fed. R. Civ. P. 12(b)(6), a complaint must “contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

11 Indeed, its motion to dismiss was filed in, and therefore it was necessarily on actual notice of

this suit no later than, October 2020, just over three months after plaintiff’s 90-day service

deadline expired.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)). A claim is “plausibly” pled only if, based on the factual allegations pleaded, the

court can “‘draw the reasonable inference that the defendant is liable for the misconduct

alleged.’” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Iqbal, 556

U.S. at 678).

The Court agrees that the barebones allegations against Port Authority do not state a

plausible claim for relief against it. Among other deficiencies, the complaint identifies no

employment relationship between Fletcher and Port Authority, and neither in the complaint nor

in her briefing does Fletcher explain how the alleged operation or control by the Port Authority

of the airport generally or her alleged conversation with a person who worked for Port Authority

would give rise to or reflects a relationship between her and Port Authority that would subject

the latter to liability. Cf., e.g., See Covington v. Int’l Ass’n of Approved Basketball Officials, 710

F.3d 114, 119 (3d Cir. 2013) (“In order to state a Title VII claim, Covington must allege an

employment relationship with the defendants.”). The most that can be gleaned from the

amended complaint about the circumstances of Fletcher’s employment is that she allegedly was a

“customer sales representative” for a company, Gateway, that according to its employee

handbook, provides “security and frontline customer services,” and that in her role, she worked

at Newark Liberty International Airport.12 Left unsaid is what, if any, connection exists between

Port Authority and Gateway, or why Fletcher believes that Port Authority has any role in

12 In evaluating a motion to dismiss, the Court may consider documents attached to the

complaint. Lum v. Bank of Am., 361 F.3d at 221 n.3. The employee handbook was attached as

an exhibit to the original, but not amended, complaint, though it is extensively referenced in the

amended complaint. As such, the Court considers it for the limited purpose of noting how

Gateway’s business is described, as the amended complaint does not otherwise provide any

information in that respect.

employment decisions or conditions affecting employees of Gateway. Even aside from the

threshold issue of an employment relationship, the Court cannot plausibly infer from the factual

allegations in the amended complaint, taking them as true for purposes of the motion, that Port

Authority would be liable under the substantive elements of a Title VII claim. See, e.g.,

DeSantis v. New Jersey Transit, 756 F. App’x 197, 202 (3d Cir. 2019) (discussing legal

standards for Title VII claims).

The deficiencies in Fletcher’s claims against Port Authority compel dismissal under Fed.

R. Civ. P. 12(b)(6). Although she has not requested leave to amend, in civil rights cases district

courts generally must permit an opportunity to amend unless it would be inequitable or futile to

do so. Thomas v. City of Philadelphia, 779 F. App’x 99, 102 (3d Cir. 2019) (citing Alston v.

Parker, 363 f.3d 229, 235 (3d Cir. 2004)). Fletcher will therefore be permitted to file an

amended complaint that addresses the deficiencies in her claims against Port Authority within 21

days. She is, however, cautioned that an amended pleading relying on the same factual

allegations is subject to dismissal on futility grounds.

2. Newark

Newark has also moved to dismiss under Fed. R. Civ. P. 12(b)(6), arguing that the sole

basis Fletcher has articulated for naming it as a defendant is its alleged ownership interest in

Newark Liberty International Airport, a circumstance that does not give rise to liability under the

statute she has invoked, 42 U.S.C. § 2000e-16(c). Indeed, the only allegation against Newark is

that its ownership of the airport makes it “the relevant executive agency” and therefore a

properly named defendant “pursuant to 28 U.S.C. § 2000e-16(c).” (Am. Compl. ¶ 12.)13

13 Fletcher clearly intended to cite 42 U.S.C. § 2000e-16(c), as no “28 U.S.C. § 2000e-16(c)”

exists.

As noted earlier, dismissal is warranted under Fed. R. Civ. P. 12(b)(6) if a complaint fails

to plead a plausible claim for relief, that is, if the factual allegations do not permit the Court to

“‘draw the reasonable inference that the defendant is liable for the misconduct alleged.’” Fowler,

578 F.3d at 210 (quoting Iqbal, 556 U.S. at 678).

The amended complaint does not permit that inference against Newark, as the only legal

basis Fletcher invokes for bringing a claim against the city is a statute that does not apply to it.

As Newark correctly observes, 42 U.S.C. § 2000e-16 applies to employees of the federal

government. It “prohibits employment discrimination by the Federal Government and sets out

procedures applicable to claims by federal employees.” Fort Bend, 139 S. Ct. at 1847 n.1; see

also Francis v. Mineta, 505 F.3d 266, 271 (3d Cir. 2007) (statute extends Title VII’s protection

to federal employees). The prohibition on discrimination is set forth in subsection (a), which

provides, in relevant part, that “[a]ll personnel actions affecting employees . . . in executive

agencies as defined in [5 U.S.C. § 105] . . . shall be made free from any discrimination based on

race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a) (emphasis added). An

“executive agency” is defined as “an Executive department, a Government corporation, and an

independent establishment.” See 5 U.S.C. § 105. The 15 “executive departments” are listed in 5

U.S.C. § 101.14 Newark is not among them.

Likewise, a “Government corporation” is a “corporation owned or controlled by the

Government of the United States.” 5 U.S.C. § 103(1). An “independent establishment” is “(1)

an establishment in the executive branch (other than the United States Postal Service or the

Postal Regulatory Commission) which is not an Executive department, military department,

14 They are the departments of State, Treasury, Defense, Justice, Interior, Agriculture,

Commerce, Labor, Health and Human Services, Housing and Urban Development,

Transportation, Energy, Educations, Veterans Affairs, and Homeland Security.

Government corporation, or part thereof, or part of an independent establishment; and (2) the

Government Accountability Office.” 5 U.S.C. § 104. Newark is neither of these; it is a

municipality organized under the Optional Municipal Charter Law, or Faulkner Act, N.J.S.A.

40:69A-1 to -210. Municipal Council v. James, 183 N.J. 361 (2005); see also Fraternal Order

of Police, Newark Lodge No. 12 v. City of Newark, 244 N.J. 75, 91 (2020).

In short, 42 U.S.C. § 2000e-16 simply does not apply to Newark and as such cannot be

used to pursue a cause of action against the city. The specific provision Fletcher cites in the

amended complaint, § 2000e-16(c), does not warrant otherwise; it simply provides that as a

procedural matter when a federal employee files a civil action under the statute, the “head of the

department, agency, or unit, as appropriate, shall be the defendant.” 42 U.S.C. § 2000e-16(c).

Fletcher seeks to avoid dismissal by arguing that Newark’s ownership or partial

ownership of the airport means that it may have some agreement with her former employer,

Gateway, that would make it an “executive agency” under 42 U.S.C. § 2000e-16. (D.E. 24, at 3-

4.) She contends that discovery may reveal the existence of such an agreement. But a plaintiff

may not use discovery to determine whether she has a cause of action in the first place. Ranke v.

Sanofi-Synthelabo Inc., 436 F.3d 197, 204 (3d Cir. 2006) (“[W]ere we to reverse the dismissal

here to allow for discovery, we would be permitting appellants to conduct a fishing expedition in

order to find a cause of action. We cannot do so.”). See also Twombly, 550 U.S. at 555 (factual

allegations must be sufficient to “raise a right to relief above the speculative level”). Nor does

she explain how any such agreement, if it existed, would transform Newark into an entity

covered by 42 U.S.C. § 2000e-16 or how it would be liable for the events alleged in the amended

complaint even if the statute did apply.15

Dismissal is therefore warranted against Newark. Because the only basis for Fletcher’s

claims against Newark is a statute that does not apply to it, amendment would be futile, and

Newark will be dismissed with prejudice.16

3. Elizabeth

Fletcher’s sole allegation against Elizabeth is that it “partially-owns [sic] the [airport] and

is, therefore, head of the relevant executive agency,” and is “named as a defendant in this action

pursuant to 28 U.S.C. § 2000e-16(c).”17 (Am. Compl. ¶ 13.) The City of Elizabeth has filed a

motion for summary judgment in lieu of answer, arguing that it does not own, maintain, or

control Newark Liberty International Airport and has no connection to Gateway, Fletcher’s

current employer. (D.E. 12-4, at 4-5.) Fletcher counters that discovery is necessary to ascertain

whether Elizabeth in fact has an ownership interest in the airport, and, as she did in opposing

Newark’s motion to dismiss, argues that Elizabeth may have a contract with Gateway that might

qualify it as an “executive agency.” (D.E. 27, at 1-2, 5.)

15 In her opposition brief, Fletcher invokes 42 U.S.C. § 2000e-16(d) and (e) (different

subsections than she pleaded in the amended complaint). (D.E. 24, at 4.) It is unclear how

Newark would or could be liable for the challenged acts under these provisions.

16 Newark also argues that Fletcher alleged no employment relationship between herself and the

city, providing an additional basis for dismissal. (D.E. 18-1, at 13.) Fletcher counters that

Newark has not proven the absence of such a relationship. (D.E. 24, at 5). But Newark is not

required to do so to warrant dismissal under Fed. R. Civ. P. 12(b)(6); rather, it is up to Fletcher,

as the plaintiff, to plead factual allegations that, taken as true for purposes of the motion, permit a

reasonable inference that the named defendant is liable for the asserted misconduct, which

includes pleading facts that would support the required elements of the claim she has brought.

She has not done so, but the Court’s resolution makes it unnecessary to reach this alternative

argument by Newark.

17 The Court interprets this reference as one to 42 U.S.C. § 2000e-16(c).

Summary judgment is proper where the movant demonstrates that there is no genuine

dispute as to any material fact and that it is entitled to judgment as a matter of law. Fed. R. Civ.

P. 56(a). “[A] failure of proof on one of the essential elements of a claim renders both of these

requirements met.” Pyfer v. Am. Mgmt. Servs. (In re Nat’l Pool Constr., Inc.), 598 F. App’x 841,

844 (3d Cir. 2015) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Courts view

facts and draw reasonable inferences in the non-movant’s factor, Blunt v. Lower Merion Sch.

Dist., 767 F.3d 247, 265 (3d Cir. 2014), and may not make credibility determinations, Burton v.

Teleflex, Inc., 707 F.3d 417, 428-29 (3d Cir. 2013). A factual dispute is “material” if it bears

upon an essential element of the plaintiff’s claim, and “genuine” if the evidence would allow a

reasonable jury to find for the non-movant. Blunt, 767 F.3d at 265.

Much of the parties’ briefing is dedicated to whether Elizabeth has any ownership rights

in the airport, and to whether Fletcher has properly opposed Elizabeth’s motion as a procedural

matter. But there is a more fundamental problem with Fletcher’s claim, and the Court need not

look beyond the pleadings to address it: the only basis upon which she sues Elizabeth is 42

U.S.C. § 2000e-16, a statute that has no apparent applicability to this defendant. Like Newark,

Elizabeth is governed under the Faulkner Act, see We the People Comm. v. City of Elizabeth, 325

N.J. Super. 329 (App. Div. 1999); it is not an “executive agency” within the meaning of § 2000e-

16. And as with Newark, this deficiency in Fletcher’s claims against Elizabeth means that

Fletcher has incurably failed to plead a claim upon which relief can be granted against this

defendant. It is unnecessary to consider the material outside the pleadings that Elizabeth submits

in support of its motion because that material – pertaining to whether Elizabeth has ownership

rights to the airport – is irrelevant to the question of whether Fletcher has even stated a

cognizable claim against this defendant. Accordingly, the motion will be construed as one under

Fed. R. Civ. P. 12(b)(6), and will be granted. Because amendment would be futile, the claims

against Elizabeth will be dismissed with prejudice.

IV. Conclusion

For the reasons set forth above, the issue of administrative exhaustion, which was raised

by defendants Gateway, Essex County, and Port Authority, must be developed further before the

Court can properly determine whether Fletcher’s claims are barred in whole or in part for failure

to exhaust. The parties are directed to confer as to an approach for discovery on this issue and

shall report to the Magistrate Judge, who may, in her discretion, set the parameters for such

discovery and any related motion practice. Accordingly, Essex County’s motion to dismiss on

administrative exhaustion grounds (D.E. 30) is denied without prejudice to renewal on an

appropriate record. Gateway’s motion to dismiss (D.E. 17) and Port Authority’s motion to

dismiss (D.E. 38) insofar as they raise the issue of administrative exhaustion are likewise denied

without prejudice to renewal on an appropriate record.

To the extent Gateway’s motion also seeks dismissal for improper and untimely service

of process, its motion is granted. Fletcher shall properly effectuate service of the summons and

amended complaint on Gateway within 10 days, or shall file, within 10 days, a waiver of further

service of process signed by Gateway.

To the extent Port Authority’s motion also seeks dismissal for untimely service of

process, it is denied. To the extent Port Authority seeks dismissal for failure to state a claim

upon which relief can be granted, its motion is granted; within 21 days, Fletcher may file a

second amended complaint addressing the deficiencies in her claims against Port Authority.

Finally, the amended complaint fails to plead a cognizable claim for relief against

defendants Newark and Elizabeth, and amendment would be futile. Accordingly, Newark’s

motion to dismiss (D.E. 18) is granted, and the amended complaint is dismissed with prejudice

against Newark. Elizabeth’s motion for summary judgment (D.E. 12) is construed as a motion to

dismiss, and is granted; the amended complaint is dismissed with prejudice against Elizabeth.

An appropriate order will issue.

/s/ Katharine S. Hayden

Date: June 28, 2021 Katharine S. Hayden, U.S.D.J.