The opinion
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KIMBERLY RICHARDSON,
Plaintiff,
No. 23cv21729 (EP) (JRA)
OPINION
TYLER MCCORMICK, LEE KAFCHINSKI,
and JEREMIAH LNU,
Defendants.
Pro se Plaintiff Kimberly Richardson seeks to bring this action in forma pauperis (“IFP’)
against Defendants Tyler McCormick, Lee Kafchinski, and Jeremiah Lnu. Plaintiff alleges that
Defendants violated Title VII of the Civil Rights Act (“Title VII’), 42 U.S.C. §§ 2000e-2000e-
17, and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-624, when
Defendants terminated Plaintiff's employment. D.E. 1 (‘Compl.” or “Complaint”) at 5. Plaintiff
alleges that she was discriminated against based on her sex (female), race (African American),
and age (53 at the time). See generally id. For the reasons discussed below, the Court will
GRANT Plaintiff's IFP application (D.E. 1-2), and Plaintiff's Complaint will PROCEED in
part. Thus, Plaintiffs Title VII claim will PROCEED, but her ADEA claim will be
DISMISSED without prejudice.
1. ANALYSIS
Pursuant to 28 U.S.C. § 1915, the Court may excuse a litigant from prepayment of fees
when the litigant “establish[es] that [s]he is unable to pay the costs of hfer] suit.” Walker v.
People Express Airlines, Inc., 886 F.2d 598, 601 (3d Cir. 1989). Because Plaintiff has
sufficiently established her inability to pay, the Court will grant her IFP application. See D.E. 1-
2.
However, courts must review an IFP plaintiff's complaint and dismiss the complaint if it
is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks
monetary relief against a defendant who is immune.'! 28 U.S.C. § 1915(e)(2)(B). Because
Plaintiff proceeds pro se, the Court construes the Complaint liberally and holds it to a less
stringent standard than papers filed by attorneys. Haines v. Kerner, 404 U.S. 519, 520 (1972).
The Court, however, need not “credit a pro se plaintiff's ‘bald assertions’ or ‘legal conclusions.’”
Grohs v. Yatauro, 984 F. Supp. 2d 273, 282 (D.N.J. 2013) (quoting Morse v. Lower Merion Sch.
Dist., 132 F.3d 902, 906 (3d Cir. 1997)).
After Plaintiff's employment was terminated, Plaintiff filed a complaint with the Equal
Employment Opportunity Commission (“EEOC”) (“EEOC Complaint”). See D.E. 1-1 (copy of
EEOC Complaint). The EEOC reviewed Plaintiff's allegations and found “there is reasonable
cause to believe that [Defendants] ha[ve] discriminated against [Plaintiff] on the basis of sex,
race[,] and age.” D.E. 1-4.* Accordingly, the EEOC issued Plaintiff a notice of her right to sue.
D.E. 1-5 (‘right to sue letter’’).
Plaintiff brings claims pursuant to Title VII and the ADEA, alleging that she was
unlawfully terminated and harassed based on her sex, race, and age because she was “constantly
written up and suspended” while similarly situated employees were not. Compl. at 7.
' The Court’s preliminary review pursuant to 28 U.S.C. § 1915 does not determine whether the
Complaint’s allegations would survive a properly supported motion to dismiss. See Richardson
v. Cascade Skating Rink, 2020 WL 7383188, at *2 (D.N.J. Dec. 16, 2020) (internal quotation
marks omitted) (“[T]his Court recognizes [a] § 1915(e) screening determination is a preliminary
and interlocutory holding, subject to revision at any time prior to entry of final judgment.”’).
* After Plaintiff filed the EEOC Complaint, the EEOC notified Defendants of the charges. D.E.
1-4 at 1. Defendants did not respond, which creates an adverse inference that Plaintiff's
allegations are credible. Jd. at 1-2.
To establish a prima facie case under Title VII, a plaintiff must first receive a right to sue
letter from the EEOC. Burgh v. Borough Council of Borough of Montrose, 251 F.3d 465, 470
(3d Cir. 2001). Then, a plaintiff need only to allege “enough facts to raise a reasonable
expectation” that she was discriminated against based on her sex and race; this is a liberal
standard, especially for pro se plaintiffs. Connelly v. Lane Const. Corp., 809 F.3d 780, 788-89
(3d Cir. 2016). This is a liberal standard, and even more liberal for pro se plaintiffs. See id.
Here, Plaintiff received a right to sue letter. D.E.s 1-4, 1-5. Further, Plaintiff's
allegations that other employees were not terminated for similar actions coupled with the
EEOC’s finding that “there is reasonable cause to believe that violations have occurred,” D.E. 1-
4 at 1-2, easily satisfies this liberal standard. The Court will permit Plaintiff's Title VII claim to
proceed.
The ADEA prohibits discrimination by employers based on age. Acevedo v. Monsignor
Donovan High School, 420 F. Supp. 2d 337, 341 (D.N.J. 2006). A plaintiff must establish that
(1) she was over forty years old at the time of discharge; (2) she was qualified for the position
she was discharged from and was performing her duties satisfactorily; (3) her employment was
discharged despite her qualifications and performance; and (4) her employer ultimately filled the
position with a person sufficiently younger than plaintiff. Jd. (citing Narin v. Lower Merion Sch.
Dist., 206 F.3d 323, 331 (3d Cir. 2000)). Here, construing the Complaint liberally, Plaintiff
establishes all but the last element. Nowhere does Plaintiff allege that her employer replaced her
position with someone sufficiently younger. Therefore, the Court will dismiss Plaintiffs ADEA
claim without prejudice. This means that Plaintiff may move to amend her Complaint pursuant
to Federal Rule of Civil Procedure 15 to reassert this claim by alleging appropriate facts.
Il. CONCLUSION
For the reasons discussed above, the Court will GRANT Plaintiff’s IFP application (D.E.
1-2) and her Complaint (D.E. 1) will PROCEED in part. Plaintiff's Title VII claim will
PROCEED, but her ADEA claim will be DISMISSED without prejudice. An appropriate
Order accompanies this Opinion.
Th, p-
Dated: April 10, 2024 Lord /
Evelyn Padin, U.S.D.J.