MOLZ v. FEDERAL AVIATION ADMINISTRATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MAUREEN MOLZ,

No. 1:21-cv-20039-NLH-SAK

Plaintiff,

v.

FEDERAL AVIATION

OPINION

ADMINISTRATION, SHELLEY YAK,

JAIME FIGEROUA, JOHN DOES 1-

10,

Defendants.

APPEARANCES:

MARK J. MOLZ, ESQ.

1400 ROUTE 38 EAST

P.O. BOX 577

HAINESPORT, NEW JERSEY 08036

Attorneys for Plaintiff.

JOHN ANDREW RUYMANN, ESQ.

OFFICE OF THE U.S. ATTORNEY

402 EAST STATE STREET, SUITE 430

TRENTON, NEW JERSEY 08608

SAMANTHA R. D’AVERSA, ESQ.

DEPARTMENT OF JUSTICE, USAO

MITCHELL H. COHEN BUILDING & U.S. COURTHOUSE

401 MARKET STREET, P.O. BOX 2098

CAMDEN, NEW JERSEY 08101

On behalf of Defendants.

HILLMAN, District Judge

This matter is presently before the Court by way of a

Motion to Dismiss from the Federal Aviation Administration

(“FAA”), Shelley Yak, Jaime Figueroa, and John Does 1-10

(collectively, “Defendants”). (ECF No. 9). For the reasons

stated below, Defendants’ Motion to Dismiss will be granted.

BACKGROUND

Plaintiff Maureen Molz filed her Complaint on November 17,

2021 alleging one Count of Defendants’ violation of the New

Jersey Law Against Discrimination (“NJLAD”) for discrimination

based on sex, sexual orientation, and age. (ECF No. 1 at 26-

27). Plaintiff alleges discrimination and a hostile work

environment created by her two supervisors, Director Shelley Yak

and Division Manager Jaime Figueroa,1 between her promotion to

Supervisor, Aviation Technical Systems Specialist in 2017 and

Plaintiff’s retirement in 2019.

While Plaintiff does not provide specific dates, she

describes her transition into a new position where she was

“meticulously micromanaged” by Director Yak. (Id. at 5).

Plaintiff further alleges: that her initials were forged on a

“concurrence grid” on April 18, 2018; that she was forced to

walk “very far” to Director Yak’s office for meetings despite

having knee pain; that she had several “extremely difficult”

conversations with her supervisors; that her peers were afraid

1 Plaintiff notes that at some point, Defendant Figueroa was

promoted to Deputy Director. According to the Complaint, at all

relevant times Defendant Figueroa was in a supervisory position

to Plaintiff. (ECF No. 1 at 3-4).

to support her in fear of “anger[ing] Director Yak”; that her

supervisors were excluding her from meetings; and that her

supervisors were pressuring her to retire. (Id. at 5, 7-8, 12-

13, 17-18, 22). Plaintiff states that Director Yak “was pushing

[her] hard for no apparent reason,” (id. at 10), and that she

“never saw any other manager being treated with such disrespect

and blatant unfairness.” (Id. at 13).

Specific to Defendant Yak, Plaintiff alleges several

particular incidents. In one undated meeting, Plaintiff alleges

that Director Yak insulted her by insinuating that Plaintiff was

an “egg head” meaning “not a smart technical professional.”

(Id. at 13). Plaintiff also asserts that on January 17, 2019

Director Yak compared a government shutdown to Superstorm Sandy,

knowing that Plaintiff had lost her home in the storm, stating

that “a man-made tragedy is worse than a natural disaster,”

which Plaintiff attributed to “a problem with her tolerance of

Lesbians.” (Id. at 14).

Plaintiff also alleges incidents with Defendant Figueroa.

On November 1, 2018, after a meeting where Plaintiff was left

shaken, Defendant Figueroa called her at home because he was

“worried about her,” and told Plaintiff “please don’t slit your

wrists.” (Id. at 11). Plaintiff also alleges that Defendant

Figueroa called out to Plaintiff in the office saying that she

“look[ed] good, ‘You look just like your younger sister.’” (Id.

at 25). This distressed Plaintiff because her sister had “died

tragically,” but Plaintiff does not indicate whether Defendant

Figueroa knew of her sister’s passing. (Id.).

Plaintiff further asserts that Defendant Figueroa

“communicated degrading, sexually explicit filth to the

Plaintiff[.]” (Id. at 21). She alleges inappropriate text

messages from Defendant Figueroa consisted of: in December 2018,

she received two texts of “embarrassing pictures of President

Trump” which she asserts is a Hatch Act violation and

“[p]unishment ensu[ed]”2; on March 19, 2019, she received a text

that included a “sexually offensive and scary video”; on March

28, 2019 Defendant Figueroa showed a picture of “Donald Trump’s

face on a naked woman’s body sitting on Vladmir Putin’s lap with

a caption ‘collusion cologne’” from his phone on a work flight,

which Plaintiff described as “clear and abusive” due to its

“sexual/homophobic” nature. (Id. at 11, 16, 19-21).

Plaintiff asserts these actions made her feel “alienated,

bullied, and dismissed.” (Id. at 9). Plaintiff alleges that

her work environment became so unbearable that she went out on

sick leave for approximately three months shortly after May 3,

2019. (Id. 24-25). Finally, Plaintiff alleges that this

environment caused her constructive discharge into retirement

2 Plaintiff did not provide further details.

but does not indicate what date that was. (Id. at 26).

Defendants filed a motion to dismiss on March 1, 2022.

(ECF No. 9). Defendants assert several fatal deficiencies with

Plaintiff’s Complaint. First, Defendants argue that there are

several jurisdictional issues with the Complaint, including:

that the Parties are not proper pursuant to 42 U.S.C. § 42

2000e-16(c), that there is a lack of subject matter jurisdiction

based on sovereign immunity, that Plaintiff failed to exhaust

her administrative remedies, and that her claims are time-

barred. (Id. at 16-18, 20-21). Defendants also assert that her

pleadings are inadequate to support her discrimination and

hostile work environment claims of sex, sexual orientation, and

age discrimination. (Id. at 22).

Plaintiff filed her response on April 4, 2022. (ECF No.

14). The brief does not substantively address Defendants’ legal

arguments. Instead, Plaintiff asserts that she has stated a

claim for relief based on her “short and plain statement of the

claim,” generally citing to the Federal Rule of Civil Procedure

12(b)(6) standards for stating a claim. (Id. at 1-2).

Additionally, for the first time, in her response Plaintiff

asserts a claim for intentional infliction of emotional

distress, and avers that she filed a Tort Claims Notice

asserting emotional distress and harassment “on or about

February 17, 2020.” (Id. at 2-3). Plaintiff further requests

the Court’s permission to amend the Complaint and to “name the

proper Defendants including the United States.” (Id. at 4).

Defendants filed their reply on April 11, 2022. (ECF No.

15). Defendants note that Plaintiff did not rebut or address

the legal arguments in their motion to dismiss. (Id. at 2).

Defendants also assert that the addition of the tort claim for

intentional infliction of emotional distress is procedurally

improper as it was not raised in her Complaint, and that such a

claim is precluded by Title VII and the Age Discrimination in

Employment Act (“ADEA”) which provide the exclusive remedy for

discrimination claims stemming from federal employment. (Id. at

2-5). Finally, Defendants argue that Plaintiff should not be

given the opportunity to amend her Complaint because it would be

futile due to two uncurable defects: that Plaintiff has failed

to exhaust her administrative remedies, and that her claims are

time-barred. (Id. at 5-7).

Defendants also filed a Motion to Seal on March 1, 2022, to

seal an exhibit attached to Defendants’ Motion to Dismiss. (ECF

No. 11). Both of these motions are now ripe for adjudication.

DISCUSSION

I. Standard for Motion to Dismiss Under Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) governs a motion

to dismiss for lack of standing, since “standing is a

jurisdictional matter.” Ballentine v. United States, 486 F.3d

806, 810 (3d Cir. 2007). Standing “is a threshold

jurisdictional requirement, derived from the ‘case or

controversy’ language of Article III of the Constitution.” Pub.

Interest Research Grp. of N.J., Inc. v. Magnesium Elektron,

Inc., 123 F.3d 111, 117 (3d Cir. 1997). A plaintiff must

establish his or her standing to bring a case in order for the

court to possess jurisdiction over his or her claim. Id.

“A challenge to subject matter jurisdiction under Rule

12(b)(1) may be either a facial or a factual attack.” Davis v.

Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016). “A court ruling

on a facial attack considers only the complaint, viewing it in

the light most favorable to the plaintiff. A factual attack, in

which the defendant contests the truth of the jurisdictional

allegations, is a different matter: the court need not treat the

allegations as true[.]” Long v. SEPTA, 903 F.3d 312, 320 (3d

Cir. 2018) (internal citations omitted).

“In reviewing a factual attack, the court may consider

evidence outside the pleadings.” Gould Elecs. Inc. v. United

States, 220 F.3d 169, 176 (3d Cir. 2000). Because the Federal

Defendants make a factual attack on subject matter jurisdiction,

the Court may consider the papers attached to Defendants’

briefings. See Mortensen v. First Fed. Sav. & Loan Ass’n, 549

F.2d 884, 891 (3d Cir. 1977) (“Because at issue in a factual

12(b)(1) motion is the trial court’s . . . very power to hear

the case[,] there is substantial authority that the trial court

is free to weigh the evidence and satisfy itself as to the

existence of its power to hear the case. In short, no

presumptive truthfulness attaches to plaintiff’s allegations,

and the existence of disputed material facts will not preclude

the trial court from evaluating for itself the merits of

jurisdictional claims.”).

II. Analysis

a. Subject Matter Jurisdiction

Defendants argue that Plaintiff lacks standing to bring her

NJLAD claim and thus the Court lacks subject matter jurisdiction

over this case. Because jurisdiction is a threshold matter, the

Court must address the issue of subject matter jurisdiction

before it may look to the Plaintiff’s case on the merits. Pub.

Interest Research Grp. of N.J., Inc., 123 F.3d at 117.

i. State Law Employment Claims Against Federal

Defendants

Defendants note that Plaintiff asserts only one count of

discrimination and hostile work environment based on sex, sexual

orientation, or age under the NJLAD.

Title 28, U.S.C. § 1346 generally confers subject matter

jurisdiction for plaintiffs to bring civil actions against the

United States. See 28 U.S.C. § 1346(b)(1) (“[T]he district

courts . . . shall have exclusive jurisdiction of civil actions

on claims against the United States, for money damages, [] for

injury or loss of property, or personal injury or death caused

by the negligent or wrongful act or omission of any employee of

the Government while acting within the scope of his office or

employment, under circumstances where the United States, if a

private person, would be liable to the claimant in accordance

with the law of the place where the act or omission occurred.”).

Plaintiff’s single count against Defendants asserts a claim

under the NJLAD. We note that unlike its federal counterparts,

the NJLAD’s statute of limitations is two years and it does not

require plaintiffs to exhaust administrative remedies prior to

seeking relief in the courts. See Anjelino v. New York Times

Co., 200 F.3d 73, 97 (3d Cir. 1999) (citing Montells v. Haynes,

627 A.2d 654 (N.J. 1993) (“[T]he Montells court found that the

two-year statute of limitations would apply uniformly to all

NJLAD claims[.]”); Hashem v. Hunterdon Cnty., No. 15-8585, 2016

U.S. Dist. LEXIS 134055 at *27 (D.N.J. Sept. 29, 2016); see also

N.J.S.A. § 10:5-13 (a plaintiff may “initiate suit in Superior

Court under [this act] without first filing a complaint with the

division or any municipal office.”).

The fact that Plaintiff’s only claim is brought under the

NJLAD presents an issue because a claim under the NJLAD may not

be asserted against the Federal Defendants. The NJLAD is not a

viable cause of action against the Federal Defendants here

because the United States “is immune from suit save as it

consents to be sued,” and “absent a specific waiver of sovereign

immunity, the Courts lack subject matter jurisdiction over

claims against the federal government and its agencies.” United

States v. Testan, 424 U.S. 392, 399 (1976); United States v.

Dalm, 494 U.S. 596, 608 (1990). The United States has not

waived sovereign immunity for state law discrimination claims.

“It is axiomatic that the United States may not be sued

without its consent and that the existence of consent is a

prerequisite for jurisdiction.” United States v. Mitchell, 463

U.S. 206, 212 (1983). This immunity extends to federal

agencies. See Chandler v. Roudebush, 425 U.S. 840 (1976).

Whereas Title VII waives sovereign immunity for claims brought

by federal employees, the United States has not waived its

sovereign immunity with respect to state law claims of

discrimination. See Goode v. United States Dep’t of Homeland

Sec., 815 Fed. App’x 643, 645 (3d Cir. 2020) (citing Holt v.

Shinseki, No. 13-22, 2013 U.S. Dist. LEXIS 154978 at *6-7 (W.D.

Pa. Sept. 30, 2013); Leitch v. MVM, Inc., No. 03-4344, 2004 WL

1638132, at *7 (E.D. Pa. July 21, 2004) (no waiver with respect

to state anti-discrimination claims such as the Pennsylvania

Human Relations Act and the New Jersey Law Against

Discrimination)).

Further, Congress has designated Title VII and the ADEA to

be the sole statutory remedy for federal employees to bring

workplace discrimination claims of sex, sexual orientation, and

age (respectively) against a federal employer. See Brown v.

General Services Administration, 425 U.S. 820, 829 (1976);

Robinson v. Dalton, 107 F.3d 1018, 1020-21 (3d Cir. 1997);

McGuire v. Potter, No. 06-1745, 2006 WL 2883234 at *5 (D.N.J.

Oct. 6, 2006); Edwards v. Borough of Dickson City, 994 F.Supp.2d

616, 621 (M.D. Pa. 2014) (“Given this comprehensive scheme, it

does seem clear, as the Seventh Circuit explains, that Congress

intended allegations of statutory age discrimination (i.e.

violations of the ADEA) to proceed exclusively under the

ADEA.”).

Because the United States is immune from suit, there is no

viable claim against the government and the Court does not have

jurisdiction pursuant to 28 U.S.C. § 1346 as alleged in the

Complaint. Thus, this Court does not have subject matter

jurisdiction over Plaintiff’s claims as plead in her Complaint.3

3 Defendants also argue that Plaintiff brought suit against

improper parties. Defendants rightfully assert that Plaintiff

inappropriately brought this matter against the named Defendants

contrary to 42 U.S.C. § 2000e-16(c), which states that “in a

civil action the head of the department, agency, or unit, as

appropriate,” is the proper defendant to be named. Courts in

our Circuit have noted that the head of the federal agency is

the “only cognizable defendant” in discrimination suits under

Title VII, ADEA, and the Rehabilitation Act. See Wilcher v.

Potter, No. 08-2723, 2010 WL 2545963 at *1 n4 (D.N.J. Jun. 18,

2010). Even if Plaintiff had named the head of the Department

of Transportation as the sole defendant, the Court would still

b. Request for Leave to Amend

“If a complaint is subject to a Rule 12(b)(6) dismissal, a

district court must permit a curative amendment unless such an

amendment would be inequitable or futile.” Phillips v. County

of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008); see also Alston

v. Parker, 363 F.3d 229, 235 (3d Cir. 2004) (“We have held that

even when a plaintiff does not seek leave to amend, if a

complaint is vulnerable to 12(b)(6) dismissal, a District Court

must permit a curative amendment, unless an amendment would be

inequitable or futile.”); Burrell v. DFS Servs., LLC, 753 F.

Supp. 2d 438, 444 (D.N.J. 2010) (“When a claim is dismissed

pursuant to Federal Rule of Civil Procedure 12(b)(6), leave to

amend and reassert that claim is ordinarily granted. . . . A

claim may be dismissed with prejudice, however, if amending the

complaint would be futile.”) (citation omitted); see also G.S.

v. Penn-Trafford Sch. Dist., 813 Fed. Appx. 799, 803-04 (3d Cir.

2020) (a district court must make a finding about whether an

amendment would be inequitable or futile to dismiss a complaint

without leave to amend). Thus, the Court must evaluate whether

Plaintiff could cure her Complaint, or if the exercise would be

inequitable or futile.

Plaintiff requested leave to amend “to name the Proper

lack jurisdiction based on sovereign immunity.

Defendants including the United States.” (ECF No. 14 at 6). As

noted above, an amendment to simply name the correct parties

would be futile, as the proper Defendants would also be immune

from suit pursuant to the same sovereign immunity analysis set

out above.

We also note that providing Plaintiff an opportunity to

amend to assert her IIED claim, which she attempts to assert

through her response to the motion to dismiss, would also be

futile. As discussed above, Title VII and the ADEA provide the

exclusive remedy for alleged discrimination stemming from a

Plaintiff’s federal employment. See Brown, 425 U.S. at 829.

Further, even if Plaintiff were given the opportunity to

amend her Complaint to restate her allegations under a federal

statute that governs sex, sexual orientation, and age

discrimination (such as Title VII or the ADEA) such a claim

would be barred by her failure to exhaust administrative

remedies and barred by the statute of limitations.

i. Plaintiff Failed to Exhaust Administrative Remedies

under Title VII and the ADEA

At the outset, the Court notes that even though Plaintiff

alleges she was constructively discharged into retirement and is

now a private citizen unaffiliated with any government agency,

she would still be required to comply with administrative

exhaustion requirements under Title VII and the ADEA.4 See Green

v. Brennan, 578 U.S. 547, 549-50 (2016); Marley v. Donahue, 133

F.Supp.3d 706, 715-16 (D.N.J. 2015) (collecting cases) (“In

other words, a federal employee’s claims under Title VII, the

RA, and the ADEA must be, and routinely are, dismissed if the

employee fails to properly exhaust.”).

In order to exhaust administrative remedies, a plaintiff

must first make a report to the EEO Counselor within 45 days of

the discriminatory act. See 29 C.F.R. § 1614.105(a)(1); Dalzell

v. Astrue, No. 05-755, 2008 U.S. Dist. LEXIS 15901 at *8-9 (W.D.

Pa. Mar. 3, 2008). The second step is to file a formal

administrative complaint with the agency within 15 days of

receipt of a notice of right to file a discrimination complaint

from the EEO counselor. 29 C.F.R. § 1614.105(d); id. Third, a

plaintiff could either appeal the agency’s final decision to the

EEOC or file a civil action in a federal district court within

90 days of receiving the final action, or if no action has been

taken, after 180 days after filing the initial complaint. 29

C.F.R. § 1614.407; see also Marley, 133 F.Supp.3d at 716. As

4 The ADEA has two routes to judicial review, one which follows

the EEOC’s administrative process as in Title VII cases, and

also an alternative route to judicial review which will be

discussed infra whereby a plaintiff could file directly in

federal court after providing the EEOC with at least 30 days’

notice of an intent to sue, within 180 days of the alleged

unlawful discrimination. See 29 C.F.R. § 1614.201(a).

stated above, failure to exhaust administrative remedies in

federal employment discrimination actions is grounds for

dismissal. Marley, 133 F.Supp.3d at 715-16.

Plaintiff has not plead any facts, or asserted any facts in

their responsive briefing, to indicate that she engaged in the

administrative process and exhausted her administrative remedies

as required, and Defendants affirmatively assert that there is

no FAA record of Plaintiff ever making contact with an EEO

counselor or filing an EEO complaint. See (ECF No. 9 at Ex. A).5

Plaintiff cannot cure this deficiency, as she would be

barred by the statute of limitations. Although Plaintiff does

not allege her retirement date in her Complaint, Defendants

explain that she retired on November 30, 2019. Plaintiff does

not suggest otherwise in her response. Thus, Plaintiff had

forty-five days from November 30, 2019 to submit her initial

filing with the EEO. Thus, she had until January 14, 2020, to

report to an EEO counselor and begin the administrative process.

Plaintiff filed this Complaint on November 17, 2021, nearly two

years after the statute of limitations had run to report to the

EEO counselor.

5 Plaintiff’s Complaint was also deficient of a critical fact

necessary for the Court’s assessment of her claims: her date of

her “constructive discharge” upon being forced into retirement.

This information was also provided by Defendants per her

Standard Form 50. (Id. at Ex. B). Plaintiff’s retirement was

effective on November 30, 2019.

ii. Plaintiff Failed to Give Notice of an ADEA Claim

While Title VII claims require exhaustion of administrative

remedies, a plaintiff raising an ADEA claim may alternatively

file directedly in a United States district court after

providing the EEOC with “not less than 30 days’ notice of an

intent to such an action” and must do so “within 180 days of the

alleged unlawful practice.” See 29 C.F.R. § 1614.201(a).

There is no indication in the Complaint, or her responsive

briefing, that Plaintiff filed a notice with the EEOC of her

intent to sue. Plaintiff would be unable to cure this

deficiency as she would have had to give this notice within 180

days of the last discriminatory act. The last possible

discriminatory act to evaluate the statute of limitations would

be the date of her retirement, November 30, 2019. Thus, she

would have had until May 28, 2020 to file her 30-day notice with

the EEOC of her intent to sue.

iii. Tort Claims Notice Is Separate from EEOC

Administrative Process

The Court notes that in her response brief, Plaintiff

asserts for the first time that she had filed a Tort Claims

Notice on February 17, 2020 for intentional infliction of

emotional distress related to her alleged experience of

harassment and hostile work environment due to age, gender, and

sexual orientation. (ECF No. 14 at 3); see also (ECF No. 15 at

Ex. A at 2). While Plaintiff did not allege an intentional

infliction of emotional distress claim in her Complaint, (and

therefore it cannot be considered as a claim in this action),6

plausibly, we consider whether Plaintiff may have thought this

filing was sufficient to “give notice” to the government with

regards to her alternative ADEA claim.

The Court notes that such “notice” would not be applicable

to Plaintiff’s Title VII claims because the administrative

process provided by Title VII is the exclusive process by which

such claims can be brought against a federal employer. Brown,

425 U.S. at 829; Robinson, 107 F.3d at 1020-21; McGuire, 2006 WL

2883234 at *6-7. The only means to establish a Title VII claim

is to contact an EEO counselor. Sending a Tort Claim notice to

the U.S. Department of Transportation, Federal Aviation

Administration is not comparable or equivalent. See (ECF No. 15

at Ex. A at 1).

In terms of giving “notice” with regards to the ADEA claim

through its alternative pathway, the Tort Claim notice fairs no

6 A complaint may not be amended by the briefs in opposition to a

motion to dismiss. Com. of Pa. ex rel. Zimmerman v. PepsiCo,

Inc., 836 F.2d 173, 181 (3d Cir. 1988). And, as previously

stated, Title VII and the ADEA are the exclusive remedy for

federal employees to bring discrimination claims against a

federal employer, therefore a Tort Claim would not be a viable

alternative for Plaintiff here. See Brown, 425 U.S. at 829;

Robinson, 107 F.3d at 1020-21; McGuire, 2006 WL 2883234 at *6-7

(D.N.J. Oct. 6, 2006); Edwards, 994 F.Supp.2d at 621.

better. Again, even to engage in the ADEA’s alternative pathway

and file directly in a federal court requires a plaintiff to

file a notice of intent to file an age-related discrimination

claim to the EEO 30 days before filing a Complaint in federal

court. See 29 C.F.R. § 1614.201(a). Plaintiff’s letter that

accompanied the notice describes the notice as “part of

settlement negotiations” and “everything herein is provided for

the purpose of settlement negotiations and other purposes

nothing contained herein may be used in a trial, motion or other

legal proceeding for any reason.” (ECF No. 15 at Ex. A at 1).

Although the terms “settlement negotiations” may infer a

lawsuit, nothing in the letter gives any clear indication if a

suit was already filed or imminent. Additionally, the Tort

Claim notice itself asserts “NJLAD” as its basis of claim. (Id.

at 2). Nothing about the Torts Claim notice gives any

indication that Plaintiff was going to file an ADEA suit in a

federal court, nor was this notice sent to the attention of an

EEO counselor.

iv. Equitable Tolling is not Applicable

The time limits in which a plaintiff must file a Title VII

action, or an ADEA action, is akin to a statute of limitations

rather than a jurisdictional bar, and thus the time limit is

subject to tolling. See Seitzinger v. Reading Hosp. & Med.

Ctr., 165 F.3d 236, 239-40 (3d Cir. 1999) (citing Zipes v. Trans

World Airlines, Inc., 455 U.S. 385, 393 (1982)) (holding that

time limits in Title VII are not jurisdictional but are instead

like statutes of limitations).

Equitable tolling is a “rare remedy to be applied in

unusual circumstances.” Wallace v. Kato, 549 U.S. 384, 396

(2007). It is appropriate to apply equitable tolling sparingly,

with the burden on the plaintiff to demonstrate that the

application is warranted; excusable neglect is not acceptable to

obtain relief. Boyce v. Ancora State Hosp., No. 14-0185, 2015

U.S. Dist. LEXIS 167241, at *9-10 (D.N.J. Dec. 15, 2015).

Equitable tolling may be invoked in Title VII and AEDA claims

“(1) where the defendant has actively misled the plaintiff

respecting the plaintiff’s cause of action; (2) where the

plaintiff in some extraordinary way has been prevented from

asserting his or her rights; or (3) where the plaintiff has

timely asserted his or her rights mistakenly in the wrong

forum.” Dixon v. Sec’y, United States VA, 607 Fed. App’x 153,

155 (3d Cir. 2015). The Third Circuit has held that “in the

absence of a recognized equitable consideration, the court

cannot extend the limitations period by even one day.” Mosel v.

Hills Dep’t Store, Inc., 789 F.2d 251, 253 (3d Cir. 1986).

Plaintiff has not made any arguments in either her

Complaint or Response Brief to indicate that equitable tolling

applies. There is no indication that Plaintiff was actively

misled in terms of her available remedies by opposing counsel or

her former employer, nor is there any indication that some

extraordinary occurrence has prevented Plaintiff from asserting

his or her rights, and there is no indication that Plaintiff

timely asserted her claims the wrong forum.

If anything, the filing of the Tort Claim notice, while

ineffectual, demonstrates that Plaintiff was competent and

capable enough to seek counsel early enough to vindicate at

least her ADEA claim within the time period required by statute

outside of the EEO process, circumstances akin to the Plaintiff

in Dixon where the Third Circuit found that Dixon’s ability to

pursue a claim of unemployment compensation during the time he

could have filed his EEOC claim negates any potential argument

that an extraordinary circumstance prevented his ability to file

his EEOC claims in a timely way. Dixon, 607 Fed. App’x at 155.

Moreover, the inclusion of the “NJLAD” in her Tort Claim notice

further demonstrates Plaintiff’s intent, however mistaken, was

to pursue her claims only under the NJLAD and to forego other

claims. While gross attorney error can be grounds to apply

equitable tolling, those circumstances are not present in the

case at bar.

To receive equitable tolling an attorney’s mistake or lack

of action must be beyond “excusable neglect.” Giddens v. UPS

Supply Chain Solutions, No. 11-616, 70 F. Supp. 3d. 705, 711 (D.

Del. 2014) (citing Seitzinger, 165 F.3d at 241). Getting a date

wrong is a mundane mistake, and such errors are considered

attributable to the client. Seitzinger, 165 F.3d at 240 (“The

usual rule is that attorney errors will be attributed to their

clients.”) (internal citations omitted). Only gross attorney

error, such as an attorney affirmatively lying to a client, or

an attorney abandoning a client due to mental illness, reaches a

level where equitable tolling may be applied. Id. at 240-41.

The usual rule, that attorney errors will be attributed to their

clients, is applicable here. Id. at 240.

The Court finds that, even if Plaintiff was given the

opportunity to amend her Complaint, it would be futile due to

the passage of time. Ultimately, when a court lacks

jurisdiction to hear the case, it “a fortiori [] lacks

jurisdiction to rule on the merits.” Mortensen, 549 F.2d at 895

n.22. Therefore, this Court does not have the power to review

this case on the merits and thus will end its analysis here.

III. Motion to Seal

Local Civil Rule 5.3 has several requirements that the

Parties must address for a court in this District to restrict

public access to court documents:

(a) the nature of materials or the proceedings

at issue;

(b) the legitimate private or public interest

which warrants the relief sought;

(c) the clearly defined and serious injury that

would result of the relief sought is not

granted;

(d) why a less restrictive alternative to the

relief sought is not available;

(e) any prior order sealing the same materials

in the pending action; and

(f) the identity of any party or nonparty known

to be objecting to the sealing request.

L. Civ. R. 5.3(c)(2). The party moving to seal must submit a

proposed order that contains proposed findings of fact and

conclusions of law. Id.

The Court notes that while litigants have an interest in

privacy, the public also has a right to obtain information about

judicial proceedings. In re Avandia Mktg., Sales Practices &

Prods. Liab. Litig., 924 F.3d 662, 670-74 (3d Cir. 2019). When

discovery materials are filed as court documents, a more

rigorous common law right of access is applied. Id. at 670.

“In addition to recognizing fewer reasons to justify the sealing

of court records, the public right of access — unlike a Rule 26

inquiry — begins with a presumption in favor of public access.”

Id. To rebut the presumption of public access, the party

seeking confidentiality must demonstrate “good cause” by

establishing that disclosure will cause a “‘clearly defined and

serious injury to the party seeking closure.’” Boehringer

Ingelheim Pharma GmbH & Co. v. Mylan Pharms., No. 14-4727, 2015

WL 4715307, at *2 (D.N.J. Aug. 7, 2015) (quoting Publicker

Indus., Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984)).

“‘Broad allegations of harm, unsubstantiated by specific

examples or articulated reasoning,’ do not support a good cause

showing.” Id. (quoting Cipollone v. Liggett Group, Inc., 785

F.2d 1108, 1121 (3d Cir. 1986), cert. denied, 484 U.S.

976(1987)).

The Court notes that this litigation involves a government

agency or a matter of “public concern,” and as such the

threshold for sealing is elevated. See Pansy v. Borough of

Stroudsburg, 23 F.3d 772, 788 (3d Cir. 1995).

The nature of the material presented as Exhibit B to

Defendants’ brief in support of its motion to dismiss, (ECF Nos.

9, 10), is the kind of material that is generally considered

confidential by courts: a federal agency document that contains

employment history. The document, Plaintiff’s Standard Form 50,

is a personnel document maintained by the FAA containing

Plaintiff’s employment history and as such it is protected by

the Privacy Act, 5 U.S.C. § 522a, et seq.7 This type of material

7 5 U.S.C. § 522a(b)(11) states in pertinent part: “No agency

shall disclose any record which is contained in a system of

records by any means of communication to any person, or to

another agency, except pursuant to a written request by, or with

the prior written consent of, the individual to whom the record

pertains, unless disclosure of the record would be— . . . (11)

pursuant to the order of a court of competent jurisdiction[.]”

is also considered confidential by Local Civil Rule 5.38 and the

Electronic Case Filing Policies and Procedures.9

The Court notes that in its own filing procedures documents

that contain employment history should be treated with caution

because of the risk of sensitive information being contained

therein, and the disclosure of this type of information poses a

substantial risk of harm to individuals. (Supra at 23-4 n.8 &

9).

The Defendants assert that the requested action, to seal

the document entirely, is the best method of protecting the

confidential information and that there is no less restrictive

alternative to protect their information and the Court agrees.

Further, such sealing of the document is required, absent a

court order, under the Privacy Act.

8 Local Civil Rule 5.3(a)(3) states in pertinent part: “(3) This

rule shall not apply to any materials or judicial proceedings

which must be sealed or redacted pursuant to statute or other

law.”

9 Electronic Case Filing Policies and Procedures, As Amended

April 3, 2014, THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW

JERSEY, Section 17. Sensitive Information, states in pertinent

part: “As the public may access case information through the

PACER system, sensitive information should not be included in

any document filed unless the Court orders otherwise. . . . The

Court may still require the party to file a redacted copy for

the public file. In addition, caution must be exercised when

filing documents that contain the following: (1) Personal

identifying numbers, such as a driver’s license number; (2)

Medical records, treatment, and diagnoses; (3) Employment

history; (4) Individual financial information; and (5)

Proprietary or trade secret information.

The Court notes that the motion is not a joint one as

contemplated by Local Civil Rule 5.3. Defendants did not

include an Index with the Motion to Seal and did not address

whether an attempt was made by Defendants to receive Plaintiff’s

consent to the filing. No Discovery Confidentiality Order or

any other requests for sealing have been made in the matter.

While Defendants have not met the letter of Local Civil

Rule 5.3, they have articulated sufficient specific allegations

of harm to show good cause to justify sealing these materials.

See Publicker, 733 F.2d at 1070-71.

CONCLUSION

For the reasons expressed above, Defendants’ Motion to

Dismiss (ECF No. 9) will be granted and Defendants’ Motion to

Seal (ECF No. 11) will be granted. Plaintiff’s request to Amend

her Complaint (ECF No. 14) will be denied with prejudice as this

Court has made sufficient findings of its futility.

An appropriate Order will be entered.

Date: February 27, 2023 /s Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.