# PHANG

> District Court, D. New Jersey · January 14, 2026

URL: https://www.frixlaw.com/law-library/cases/11243227

## Case

- **Full name:** Moises J. Phang v. City of Paterson Department of Public Works
- **Court:** District Court, D. New Jersey
- **Decided:** January 14, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CHAMBERS OF MARTIN LUTHER KING COURTHOUSE
SUSAN D. WIGENTON 50 WALNUT ST.
UNITED STATES DISTRICT JUDGE NEW 97 A 3 R -6 K 45 , - N 5 J 9 0 0 3 7 101

January 14, 2026

Victor M. Urbaez, Esq.
243 Market Street
Paterson, NJ 07505
Counsel for Plaintiff

Joshua A. Zielinski, Esq.
Joseph R. Marsico, Esq.
O’Toole Scrivo, LLC
14 Village Park Road
Cedar Grove, NJ 07009
Counsel for Defendant

LETTER OPINION FILED WITH THE CLERK OF THE COURT

Re: Phang v. City of Paterson Department of Public Works, Civ. No. 25-06990 (SDW)
(JRA)

Counsel:

Before this Court is Defendant City of Paterson Department of Public Works’s
(“Defendant” or “DPW”) Motion to Dismiss Plaintiff Moises J. Phang’s (“Plaintiff”) Complaint
pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6). (D.E. 5.) Jurisdiction is proper
pursuant to 28 U.S.C. § 1331. This opinion is issued without oral argument pursuant to Rule 78.
For the reasons stated herein, the Motion to Dismiss is GRANTED.
I. FACTUAL AND PROCEDURAL BACKGROUND
This Court writes only for the parties and accordingly limits its discussion of the factual
and procedural background to only the facts pertinent to the instant decision.
Plaintiff was employed by Defendant in April 2020. (D.E. 1 (“Compl.”) ¶ 16.) On June
14, 2023, while cleaning a bathroom, Plaintiff was locked inside by three younger employees and
ridiculed about his age. (Id ¶ 2.) Plaintiff reported the accident to his supervisor, who stated that
the younger employees were joking. (Id. ¶ 3.) On June 20, 2023, Plaintiff reported to his
supervisors that the workload was not properly distributed but his supervisors told Plaintiff that
“maybe he was too old and should probably quit.” (Id. ¶¶ 4-5.) On a separate occasion, Plaintiff
also overhead two employees speaking about him, and one said, “they are getting that old man out
of here one way or another.” (Id.) On August 17, 2023, Plaintiff’s supervisor informed him that
a female coworker accused him of sexual harassment. (Id. ¶¶ 6-8.) After a disciplinary hearing
was held on May 15, 2024, DPW Director William Rodriguez recommended terminating Plaintiff
due to the accusations of sexual harassment. (Id. ¶¶ 8-10.)
Plaintiff filed the instant lawsuit on April 21, 2025, in the Superior Court of New Jersey, Law
Division, Passaic County, which Defendant removed to this Court on June 3, 2025. (D.E. 1, 1-1.)
The operative complaint asserts claims for: (1) age discrimination; and (2) age discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA). Defendant subsequently
filed the present Motion to Dismiss. (D.E. 5.) All briefing was timely completed.
II. LEGAL STANDARD
To withstand a motion to dismiss under Rule 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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “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.
When deciding a motion to dismiss under Rule 12(b)(6) for failure to state a claim upon
which relief may be granted, federal courts “must accept all factual allegations in the complaint as
true, construe the complaint in the light favorable to the plaintiff,” and determine “whether [the]
plaintiff may be entitled to relief under any reasonable reading of the complaint.” Mayer, 605 F.3d
at 229. Determining whether a complaint’s allegations are “plausible” is “a context-specific task
that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal,
556 U.S. at 679. If the “well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct,” the complaint should be dismissed for failing to show “that the pleader
is entitled to relief.” Id. (quoting Fed. R. Civ. P. 8(a)(2)). “[L]abels and conclusions” or a
“formulaic recitation of the elements of a cause of action” are insufficient to withstand a motion
to dismiss. Twombly, 550 U.S. at 555.
III. DISCUSSION

A. Count I — Age Discrimination
Although Plaintiff cites to the ADEA in Count II, Count I of Plaintiff’s Complaint does not
cite to any specific statute or other source of law for the claim. To state a claim, a complaint needs
only to provide a “short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). Although “short and plain,” this statement must “give the
defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550
U.S. at 545 (quotations, alterations, and citation omitted).
Plaintiff mistakenly concludes that the Rule 8(a)(2) does not require a plaintiff to identify
a legal basis for his claims. However, the Third Circuit has emphasized that to determine the
sufficiency of a complaint under the pleading standard, a court must first “take note of the elements
a plaintiff must plead to state a claim.” Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir.
2010) (citing Iqbal, 556 U.S. at 675). This Court cannot take notice of the elements that Plaintiff
must plead to state a claim because Plaintiff has not identified the legal basis for his claim. Notably,
in his opposition papers, Plaintiff states that he alleges a clear claim for age discrimination but still
fails to cite to any relevant legal authority.1 Simply stating that the claim is for age discrimination
is not enough to satisfy the pleading standard as an age discrimination claim may be pursued under
several statutes or legal authorities, each that may have different elements to satisfy the claim.2
Importantly, because Plaintiff has counsel, his complaint is not entitled to the liberal
construction given to pro se pleadings. See, e.g., Giles v. Keamey, 571 F.3d 318, 322 (3d Cir.
2009) (citing Haines v. Kemer, 404 U.S. 519, 520-21 (1972)). As such, this Court will not
hypothesize potential causes of action that have not been clearly alleged. Therefore, Count I of
Plaintiff’s Complaint fails to satisfy the applicable pleading standard and is dismissed.
B. Count II — Age Discrimination in Violation of the ADEA
Under the ADEA, employers are prohibited from “discharg[ing] any individual or
otherwise discriminat[ing] against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's age.” 29 U.S.C. § 623(a)(1).
To establish a prima facie case of age discrimination, a plaintiff must show: “(1) the plaintiff is at
least forty years old; (2) the plaintiff suffered an adverse employment decision; (3) the plaintiff
was qualified for the position in question; and (4) the plaintiff was ultimately replaced by another
employee who was sufficiently younger so as to support an inference of a discriminatory motive.”
Willis v. UPMC Children's Hosp. of Pittsburgh, 808 F.3d 638, 644 (3d Cir. 2015).
Here, even when accepting Plaintiff’s allegations as true, Plaintiff has failed to adequately
plead a cause of action for age discrimination in violation of the ADEA. Although Plaintiff alleges
that he was replaced by younger employees, his Complaint contains no other allegations
supporting an ADEA claim. Plaintiff does not allege that he is at least forty years old, that he was

1 Nonetheless, this would not change the result in any event as “it is axiomatic that the complaint
may not be amended by the briefs in opposition to a motion to dismiss.” Janowski v. City of N.
Wildwood, 259 F. Supp. 3d 113, 120 (D.N.J. 2017) (citing Com. of Pa. ex rel. Zimmerman v.
PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988)).

2 For instance, age discrimination under the New Jersey Law Against Discrimination (NJLAD)
does not have an age requirement to state a claim, while the ADEA does. See, e.g. Sgro v.
Bloomberg L.P., 331 F. App'x 932, 938 (3d Cir. 2009) (“[T]o make a prima facie case of age
discrimination under the NJLAD, a plaintiff must demonstrate that she (1) is a member of the
protected class, (2) was qualified for the position held, (3) suffered an adverse employment action,
and (4) ultimately was replaced by a person sufficiently younger to permit an inference of age
discrimination.”)
qualified for the position, and importantly, Plaintiff alleges that he was terminated for sexual
harassment accusations and not his age. Therefore, Plaintiff's ADEA claim is dismissed.
IV. CONCLUSION
For the reasons set forth above, Defendant’s Motion to Dismiss is GRANTED. Plaintiff
shall have thirty (30) days to file an amended complaint. An appropriate order follows.

/s/ Susan D. Wigenton
SUSAN D. WIGENTON, U.S.D.J.

Orig: Clerk
cc: Parties
José R. Almonte, U.S.M.J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11243227. Public record. Not legal advice.