BENTON-FLORES v. AUSTIN

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

REDALE BENTON-FLORES, pro se, HONORABLE KAREN M. WILLIAMS

Plaintiff,

Civil Action

v. No. 22-00309 (KMW-SAK)

LLOYD J. AUSTIN, III, SECRETARY,

DEPARTMENT OF DEFEENSE, OPINION

Defendant.

WILLIAMS, District Judge:

I. INTRODUCTION

This matter comes before the Court on the Court’s sua sponte screening of pro se Plaintiff,

Redale Benton-Flores’s Complaint [ECF No. 1], alleging discrimination and retaliation claims

under Title VII of the Civil Rights Act of 1964. On February 25, 2022, this Court granted Plaintiff’s

application to proceed in forma pauperis [ECF No. 4] and the Complaint was filed against the

Defendant. This Court is now required to screen Plaintiff’s Complaint pursuant to 28 U.S.C. §

1915(e)(2)(B) and dismiss any claim which is frivolous, malicious, fails to state a claim for relief,

or seeks relief from an immune defendant. For the reasons set forth below, Plaintiff’s Complaint

shall be dismissed in its entirety for failure to state a claim. As such, Plaintiff’s Motion to Appoint

Pro Bono Counsel [ECF No. 5] and Plaintiff’s Motion to Direct USM to Serve the Summons and

Complaint [ECF No. 11]1 are dismissed as moot.

II. BACKGROUND

1 Federal law requires the Court to screen Plaintiff’s Complaint sua sponte for dismissal prior to service. 28 U.S.C.

§ 1915(e)(2)(B) (emphasis added). A s such, a summons is issued only upon the completion of the Court’s screening.

Because this matter is dismissed in its entirety, the summons in this matter will not be issued.

Plaintiff brings suit against Lloyd J. Austin III, Secretary of the Department of Defense

Education Activity Agency (the “Agency”) alleging two claims under Title VII. Both claims stem

from the Agency’s failure to hire Plaintiff for a school teacher position in Aomori, Japan in

September of 2017.2 Plaintiff alleges the Agency discriminated against her based on her age, race,

and national origin. [ECF No. 1 at 4]. Plaintiff also alleges the Agency retaliated against her by

considering her prior Equal Employment Opportunity Commission (“EEOC” or the

“Commission”) activity in determining not to hire her. Id. Plaintiff’s Complaint is devoid of facts

to support her claims and as such, the Court gleans what little facts it can from the EEOC’s

Decision on Request for Reconsideration (“EEOC Decision”) attached to Plaintiff’s Complaint.3

Plaintiff was an applicant for employment with the Agency for a high school English

teacher position in Aomori, Japan. Id. at 8-9. On September 9, 2017, selecting officials at the

Agency scheduled Plaintiff for a phone interview but a stable connection could not be made

between the school in Japan and the Plaintiff in the United States, and the interview was

terminated. Id. at 9. The Agency declined to reschedule the interview with Plaintiff and instead

hired someone else who had been previously interviewed. Id. at 9.

On November 14, 2017, Plaintiff filed a formal complaint with the Commission alleging

2 In Plaintiff’s Complaint, she alleges that the Defendant retaliated and discriminated against her when they failed to

“interview” her; however, it is well s ettled that a failure to interview claim is evaluated under the same legal

standard as a failure to hire claim. Sarmiento v. Montclair State Univ., 513 F. Supp. 2d 72 (D.N.J. 2007), aff’d, 285

F.Appx. 905 (3d Cir. 2008) (evaluating a plaintiff’s failure to interview claims under the prima facie standard for

discriminatory failure to hire under Title VII); Herrington v. Crestwood Sch. Dist., No. 3:04-CV-1243, 2006 WL

709219 (M.D. Pa. Mar. 17, 2006) (evaluating a retaliation claim for failure to interview under the same standard as a

retaliation claim based on failure to hire).

3 Although Plaintiff’s Complaint fails to satisfy even the most basic requirements set forth under the Federal Rules

of Civil Procedure, see Fed. R. Civ. P. 8(a)(2) (A pleading that states a claim for relief must contain “a short and

plain statement of the claim showing that the pleader is entitled to relief.”); the Court nonetheless is able to construe

the nature of Plaintiff’s allegations from the EEOC Decision and relies on same only for the facts contained therein.

See Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (quoting Pension Benefit Guar. Corp. v. White Consol.

Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). (“‘To decide a motion to dismiss, courts generally consider only

the allegations contained in the complaint, exhibits attached to the complaint and matters of public record.’”).

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discrimination by the Agency on the basis of her race (black), sex (female), age (over 40), disability

(vision),4 and in reprisal for her prior EEOC activity. Id. at 8. After filing a formal complaint with

the Commission, Plaintiff elected a hearing before an EEOC Administrative Judge (“AJ”). Id. at

9. During the hearing, Plaintiff asserted to the AJ that the selecting officials at the Agency were

faking a bad phone connection and that she had been put on an Agency-wide “do not hire” list. Id.

The AJ concluded that Plaintiff offered no competent evidence to support these claims and that

there was no evidence that Plaintiff was treated less favorably than any of the other applicants. Id.

On October 22, 2019, the AJ issued a finding of no discrimination. Id. In March of 2021,

Plaintiff requested that the EEOC reconsider its decision, but after reviewing the entire record the

Commission denied Plaintiff’s request and affirmed the AJ’s decision. Id. at 8-10. Plaintiff was

notified that there was no further right of administrative appeal from the decision, but Plaintiff did

have the right to file a civil action in an appropriate United States District Court within ninety (90)

calendar days from the date that Plaintiff received the decision. Id. at 10. Plaintiff timely filed her

Complaint, which is now before this Court.

III. LEGAL STANDARD

This case is subject to sua sponte screening by the Court because Plaintiff was granted

leave to proceed without prepayment of fees pursuant to 28 U.S.C. § 1915(a)(1). Pursuant to 28

U.S.C. § 1915(e)(2)(B), this Court must screen Plaintiff’s Complaint for sua sponte dismissal prior

to service, and dismiss any claim that is frivolous, malicious, fails to state a claim upon which

relief may be granted, or seeks monetary relief from a defendant who is immune from such relief.

“The legal standard for dismissing a complaint for failure to state a claim pursuant to 28 U.S.C. §

4 Noting that Plaintiff asserted discrimination based on race, sex, age, and disability in her EEOC complaint, but in

the Complaint filed with this Court, she asserts discrimination based on race, age, and national origin.

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1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal Rule of Civil

Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir. 2012) (citing Allah v.

Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)).

In deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a district court is

required to accept as true all factual allegations in the complaint and draw all reasonable inferences

from those allegations in the light most favorable to the plaintiff, see Phillips v. Cnty. of Allegheny,

515 F.3d 224, 228 (3d Cir. 2008), but need not accept as true legal conclusions couched as factual

allegations. Papasan v. Allain, 478 U.S. 265, 286 (1986). A complaint need not contain “detailed

factual allegations” to survive a motion to dismiss, but must contain “more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A

complaint “that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

of action will not do,’” and a complaint will not “suffice” if it provides only “’naked assertion[s]’

devoid of ‘further factual enhancement.’” Id. (quoting Bell Atlantic v. Twombly, 550 U.S. 544,

555, 557 (2007)). “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.” Id. (quoting

Twombly, 550 U.S. at 570). “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.” Id. (quoting Twombly, 550 U.S. at 556). A complaint that provides facts

“merely consistent with” the defendant’s liability “stops short of the line between possibility and

plausibility” and will not survive review under Rule 12(b)(6). Id. (quoting Twombly, 555 U.S. at

557). While pro se pleadings are to be liberally construed in conducting such an analysis, pro se

litigants must still “allege sufficient facts in their complaints to support a claim.” Mala v. Crown

Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013).

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IV. DISCUSSION

A. Discrimination Claim

A plaintiff makes out a prima facie case of discriminatory failure to hire by showing: (1)

she is a member of a protected class; (2) she was qualified for the position; (3) despite her

qualifications she was rejected for the position; and (4) she was rejected for the position “under

circumstances that give rise to an inference of unlawful discrimination.” Waldron v. SL Indus.,

Inc., 56 F.3d 491, 494 (3d Cir. 1995); see also Smith v. City of Allentown, 589 F.3d 684, 689-90

(3d Cir. 2009) (age discrimination); Sarullo v. Unites States Postal Serv., 352 F.3d 789, 797 (3d

Cir. 2003) (per curiam) (race, color, religion, sex, or national origin discrimination under Title

VII). In assessing whether a plaintiff establishes a prima facie case, a plaintiff must present

evidence that “establishes some causal nexus between [her] membership in a protected class and

the decision not to [hire her]. Sarullo, 352 F.3d at 798.

Plaintiff pleads that she was discriminated against because of her protected classes (race,

age, and national origin), but beyond asserting these legal conclusions has not pled any facts to

deduce whether the Agency filled the position in a manner giving rise to an inference of

discrimination. See Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 275 (3d Cir. 2010)

(holding that to make out a prima facie case of discriminatory failure to hire, facts are needed to

show “a causal nexus between the harm suffered and the plaintiff’s membership in a protected

class, from which a reasonable juror could infer, in light of common experience, that the defendant

acted with discriminatory intent”). The only fact set forth in Plaintiff’s Complaint is “Defendant

failed to interview Plaintiff from dates October 17, 2017- present.” However, the EEOC Decision

explains that Plaintiff “was scheduled for a phone interview, but a stable connection could not be

established” and in light of the imminent start of the upcoming school year another applicant was

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selected. Neither the Complaint nor the EEOC Decision provide any facts from which this Court

could glean a causal nexus between the Agency’s decision not to hire Plaintiff and her race, age or

national origin. See Alja-lz v. U.S. Virgin Islands Dept. of Educ., 626 Fed. App’x 44, 47 (3d Cir.

2015) (affirming dismissal of a plaintiff’s discrimination claim based on failure to hire after the

plaintiff failed to plead facts that raised a reasonable expectation that the hiring department did not

hire him on the improper consideration of any protected characteristic).

B. Retaliation Claim

Likewise, Plaintiff’s retaliatory failure to hire claim also fails for lack of factual content to

support her claim. A plaintiff seeking to establish a prima facie case of retaliation must show: (1)

that she engaged in a protected activity, (2) adverse action by the employer either after or

contemporaneous with the employee’s protected activity, and (3) a causal connection between the

protected activity and the adverse action. Daniels v. Sch. Dist. Of Phila., 776 F.3d 181, 193 (3d

Cir. 2015). To establish a causal link between the protected activity and the adverse action, a

plaintiff must prove “either (1) an unusually suggestive temporal proximity between the protected

activity and the allegedly retaliatory action or (2) a pattern of antagonism coupled with timing.”

Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).

It appears that Plaintiff claims that she was not hired because of her prior EEOC activity

but has not provided any facts in her Complaint as to when her previous EEOC activity took place,

whether it involved the same people or even the same employers, nor if the Agency was even

aware of her prior EEOC activity. Boykins v. SEPTA, 722 Fed. App’x 148, 157 (3d Cir. 2018) (“A

plaintiff cannot establish that there was a causal connection without some evidence that the

individuals responsible for the adverse action knew of the plaintiff’s protected conduct at the time

they acted”). Additionally, the EEOC Decision does not provide any facts relating to any EEOC

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activity undertaken by Plaintiff prior to the Agency’s decision not to hire her for the teaching

position in Aomori, Japan. As such, there is no factual content to determine whether any causal

nexus exists at all between Plaintiff's alleged EEOC activity and the Agency’s failure to hire.

Simply stated, Plaintiff has failed to plead enough factual content for the Court to even

consider whether there is any causal nexus to support her claims for discrimination or retaliation.

See Twombly, 550 US. at 556, 570 (A plaintiff must contain sufficient factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”).

Consequently, Plaintiff has failed to state a claim under Rule 12(b)(6).

C. CONCLUSION

For the reasons set forth above, Plaintiff's Complaint [ECF No. 1] is DISMISSED

WITHOUT PREJUDICE in its entirety. The Clerk’s office is further directed to close this case.

Plaintiff may file an amended complaint within thirty (30) days of the date of this Order.

Furthermore, Plaintiff's Motion to Appoint Pro Bono Counsel [ECF No. 5] and Plaintiff's Motion

to Direct USM to Serve the Summons and Complaint [ECF No. 11] are DISMISSED AS MOOT.

An order consistent with this Opinion will be entered.

Dated: July 22, 2022

4 CusSSoe

KAREN M. WILLIAMS

United States District Judge