Collier v. Edger et al

BRIEF in Opposition

D.N.J.June 29, 2017

LAW OFFICES OF EDWARD HARRINGTON HEYBURN, ESQ. (1) UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY TRENTON DIVISION ANDRE COLLIER; Plaintiff, v. JIMMY EDGER, JASON PEARLMAN ANDREW STEVENSON AND TRANE aka INGERSOL RAND; Defendants. Civil Action No. 16-CV-5430-PGS-TJB DECLARATION OF EDWARD HARRINGTON HEYBURN, ESQ. I, Edward Harrington Heyburn, Esq., hereby declare as follows: 1. I am an attorney at law, and attorney for Plaintiff, Andre Collier, Trane U.S. Inc.; 2. I make this declaration based upon my own personal knowledge, and I submit it in support of Plaintiff’s Opposition to Defendants’ Motion to Dismiss the Complaint with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6); 3. A true and accurate copy of Plaintiff’s Complaint is attached as Exhibit “A”; 4. A true and accurate copy of the “Right to Sue Letter” dated June 7, 2016 is attached as Exhibit “B”; 5. A true and accurate copy of the EEOC Complaint dated March 19, 2015 is attached as Exhibit “C”; Case 3:16-cv-05430-MAS-TJB Document 24 Filed 06/29/17 Page 1 of 2 PageID: 167 LAW OFFICES OF EDWARD HARRINGTON HEYBURN, ESQ. (2) I declare under penalty of perjury that the foregoing is true and correct. EDWARD HARRINGTON HEYBURN, ESQ. DATED: JUNE 29, 2017 Case 3:16-cv-05430-MAS-TJB Document 24 Filed 06/29/17 Page 2 of 2 PageID: 168 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY .l ;~ (Jn the space above enter the full name(s) of the plaintiff(s).) -against- Complaint for Employment Discrimination Case No. I lo -5480 [PCf~fTJe) (to be filled in by the Clerk'~ Office) -YtLAAL: f'k:A/ j /JfUD/ f1k} JuryTrial: D Yes D :No (check one) 1 (Write the full name of each defendant who is being sued If the names of all the defendants cannot fit in the space above, please write "see attached" in the space and attach an additional page with the full list of names.) 2 Case 3:16-cv-05430-MAS-TJB Document 1 Filed 09/07/16 Page 1 of 10 PageID: 1Case 3:16-cv 05430-MAS-TJB Document 24- il 6/29/ 7 f I : 69 I. The Parties to This Complaint A. The Plaintiff(s) I Provide the information below for each plaintiff named in the complaint. Attach additional pages if needed. Name Street Address City and County State and Zip Code Telephone Number B. The Defendant(s) Provide the information below for each defendant named in the comp~aint, whether the defendant is an individual, a government agency, an orga~ization, or a corporation. For an individual defendant, include the person's job ot title (if known). Attach additional pages if needed. Defendant No. I Name Job or Title 1-\um.,d)j f<~SDrlG~ _ [ - -- - . I (if known) , StreetAddress )J3 / ::; ~hf __ ~~-7jJJ ~-µd-_z__ j _______________ _ ____________ ~-: __ h_M~-s.~~--L .... u~~ ~~-·--·--_ .. ___ : ------ ----·- ... - --------- ~~~fu_rn_~®-·---- ----- --· --- --- ---------- ----~------ -- ---·-- --- ______ : ____ .. _____ _ .. A f ::._~ys_..it7J/--~-~ :A Co-woOl.;:t:___j_ ______________ . . _ _ H--- izfh_~1~ \....is lo C)DjtJ~-~-~.f.-W!n_/.84~91L+L-- ----------- -~- --- ----- (L~ . '.J- . • ~h-_J)~fY1 -~~f:M~zt, ______ ·_ .. ______ .. ---- ------ ~ -~ ~~-~$i _h~~-~-r-~--~ ~- ---:~ -----· ·-- - '~ ~_Q-~ec!<_";::,.__h~ ~- --b~-- -""-··----- ·-··----------- ·iti-A~~~f,q ·J~~~--.-~3~LLflQQ.~ __ i _____ ------·-~- ___ _ -----r-...~"--~'~ ihA+-· ------- '-----·-·-·- -r ____ · ·~ ---·---"·( "'-'-. ------.,.-----··--·--·--·-·-·---· -·- --·----+- ------fl-;-.---ft7j-;:p-~-.. ____ ._ .. ___ •. .. ,,_ -----+----------------·-~---~------- .. ·----------------------- -- -~~--~~~~~~-~~· --~-~------~------ I . -----+-·---- ------------+-· -·-· --- I ·---·------·--·--·------··-·-·----: ..• -·-·---------·--· ·---··-··-·----- ! I I ---...,..--~-----'--·------- ____ ..,,._____-----' . ·---------·- ~----·---- -- .. ----+---------------·-·----·------.. ---------------------· I . ---------·--· .... --··-·--·- ··-- .. ----·--·--------··-·--·-----------------·--· --· ------ -------------·---· ' ___ ; ---------------~--------·----- ----------------:---________ _:.._._. ---------- ------- -------· -· --:---· -· ·---- --· ----· - ----- ·-----~· ----- -··· --- -:--...;.....- .-·-· I I ----+----·---- - -------- ------- -------·~----·: ___ ... __,.. ·--- _______ .J___ --- ... -·----~-- .. -- ____________ .::..._ __ _ Case 3:16-cv-05430-MAS-TJB Document 1 Filed 09/07/16 Page 8 of 10 PageID: 8Case 3:16-cv 05430-MAS-TJB Document 24- il 6/29/ 7 f I : 176 V. Relief State briefly and precisely what damages or other relief the plaintiff asks the f urt to order. Do not make legal arguments. Include any basis for claiming that the wrongs alleged are continuing at the present time. Include the amounts of any actual ~amages claimed for the acts alleged and the basis for these amounts. Include any punitive or exemplary damages claimed, the amounts, and the reasons you claim you are ¢ntitled to actual or punitive money damages. VI. Certification and Closing Under Federal Rule of Civil Procedure 11, by signing below, I certify to the ~est of my knowledge, information, and belief that this complaint: (1) is not being presented for an improper purpose, such as to harass, cause unnecessary delay, or needlessly i:t;icrease the cost of litigation; (2) is supported by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law; (3) the factual contentions h~ve evidentiary support or, if specifically so identified, will likely have evidentiacy support after a reasonable opportunity for further investigation or discovery; and ( 4) the complaint otherwise complies with the requirements of Rule 11. A. For Parties Without an Attorney I agree to provide the Clerk's Office with any changes to my address where case- 1 related papers may be served. I understand that my failure to keep a crrrent address on file with the Clerk's Office may result in the dismissal of m.y case. Dateofsigning: CJ,(p - ,20& ~ Signature of Plaintiff ~ .$ Printed Name of Plaintiff ')qi=. co~ 8 Case 3:16-cv-05430-MAS-TJB Document 1 Filed 09/07/16 Page 9 of 10 PageID: 9Case 3:16-cv 05430-MAS-TJB Document 24- il 6/29/ 7 f I : 177 B. For Attorneys Date of signing: ____ , 20_. Signature of Attorney Printed Name of Attorney Bar Number Name of Law Firm Address Telephone Number E-mail Address 9 Case 3:16-cv-05430-MAS-TJB Document 1 Filed 09/07/16 Page 10 of 10 PageID: 10Case 3:16-cv-05430-MAS-TJB Document 24-1 Filed 06/29/17 Page 10 of 10 PageID: 178 I I U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Philadelphia District Office I Our References: Collier v. TRANE COMPANY Charge No. 530-2015-02036 Mr. Andre Collier 34 Boudinot Street Trenton, NJ 08618 Dear Mr. Collier: 801 Market Street, Suite 1300 Philadblphia, PA 19107-3127 I . (215) 440-2602 . TTY (215) 440-2610 FAX (215) 440-2632, 2848 & 2604 I ! I I I I RECE!VED II SEP 0 7 201~ AT 8:30 r M WILLIAM T. WALSH CLERK When you filed the above-referenced charge, \Ve requested infonnation from the Respondent with :respect to the allegations raised in your charge. Thereafter, you were given an opportunity to provide a written rebuttal to the Respondent's statement of position. Having thoroughly reviewed your allegations and all documents submitted by you and the Respondent, we have determined that further processing by the agency will unlikely result in a finding in your favor based on the following: You alleged that you were harassed by a coworker because of you sexual orientation and that you were subjected to retaliation for your disability and request for accommodation. In ~rder to prevail, you must show that you were subjected to unwelcome connnents or conduct based upon you sexual orientation; that the conduct resulted in a tangible job action or was sufficiently severe or pervasive to interfere with your work performance to create a hostile environment (measured by standard of reasonable person in your situation). In addition, you must also show you opposed what you reasonably and in good faith believed to be an unlawful employment practice or you participated in the EEO process; that the Respoydent subjected you to adverse treatment; that there was a causal connection between your pr1otected activity and the adverse treatment (shown, e.g., by timing of adverse treatment soon after your protected activity). With regard to your allegation of harassment based· upon your sexual orientation, the evidence shows that you were engaged in an altercation with a coworker at which offensive or unwelcome comments were made. Upon its own internal investigation, the Respondent found both you and the coworker to have behaved in an inappropriate manner resulting in you and the coworker being disciplined similarly by the Respondent. Here, the Respondent was able to show that it responded to an allegation of harassment and took corrective actipn. In so doing, the Respondent gave no inference of disparate or discriminatory treatment based upon your pr~tected group. . . . . I, . . . With regard to your allegation of harassment and retaliation based upon your d1sab1hty and reasonable accommodation, the evidence shows that prior to 2008 the Respond~nt granted you a 10-pound lifting restriction as a reasonable accommodation for your disabilibr. In 2009, you filed a charge of discrimination on the basis of your disability with the New Jefsey Division on Civil Rights (NJDCR) which was dismissed in 2010. While you alleged a serie~ of disciplhu1ry Case 3:16-cv-05430-MAS-TJB Document 1-2 Filed 09/07/16 Page 1 of 5 PageID: 17Case 3:16-cv-05430-MAS-TJB Document 24 6 29 7 9 write-ups, there does not appear to be a causal connection between these incidents and your disability and reasonable accommodation or your charge with NJDCR.I. To establish harassment and retaliation under our statutes you must show that there was j~ basis for the harassment and retaliation (race, sex, color, religion, national origin, age, disability or sexual orientation) to establish both animus and a causal connection. While unacc1~ptable in any workplace, harassment and retaliation alone, without a basis under out statutJs, is not within the jurisdiction of the EEOC. ! I While we fully understand that, the parties to a charge often have very firm ) views that the available evidence supports their respective positions, our final determinations: must comport with our interpretations of the available evidence and the laws we enforce. For lthis reason, we will issue you a Dismissal and Notice of Rights, which will enable you to file suit in U.S. District Court within 90 days of your receipt of that Notice if you wish to pursue this matter further. Should you wish to obtain a copy of the administrative file for this charge, please write to the following address to make such a request. You must do so within the above-referenced 90-day period, which can be extended if you do file a lawsuit in court concerning this matter. Please be advised that there may be a fee if you make such a request for file disclosure. Furthermore, please note that failure to receive requested documents in a timely manner does not extend the time period for filing a lawsuit. File Disclosure Unit EEOC-Philadelphia District Office 801 Market St., Suite1300 Philadelphia, PA 19107 We regret that we could not be of further service to you in this matter. Sincerely, ~cM'eekin Date ederal Investigator RECB\VEO SEP 0 7 2015 I M AT B~~UAJT.WALSH ("I 11'.:0ll I Case 3:16-cv-05430-MAS-TJB Document 1-2 Filed 09/07/16 Page 2 of 5 PageID: 18Case 3:16-cv-05430-MAS-TJB Document 24 6 29 7 0 6EOC Form 161 (11/09) U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION To: DISMISSAL AND NOTICE OF RIGHTS Andre Collier 34 Boudinot Street Trenton, NJ 08618 D On behalf of person(s) aggrieved whose identity is CONFIDENT~AL (29 CFR §1601. 7(a)) From: Philadelphia District Office 801 Market Street Suite 1300 i Philadelphia, PA 191~7 I I I EEOC Charge No. EEOC Representative Telephone No. Legal Unit, 530-2015-02036 Legal Technician (215) 440-2828 THE EEOC IS CLOSING ITS FILE ON THIS CHARGE FOR THE FOLLOWING REASON: D The facts alleged in the charge fail to state a claim under any of the statutes enforced by the EEOC. D Your allegations did not involve a disability as defined by the Americans With Disabilities Act. D The Respondent employs less than the required number of employees or is not otherwise covered by the statutes. D Your charge was not timely filed with EEOC; in other words, you waited too long after the date(s) of the alleged discrimination to file your charge [KJ The EEOC issues the following determination: Based upon its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes. This does not certify that the respondent is in compliance with the statutes. No finding is made as to any other issues that might be construed as having been raised by this charge. D The EEOC has adopted the findings of the state or local fair employment practices agency that investigated this charge. D Other (briefly state) - NOTICE OF SUIT RIGHTS - (See the additional information attached to this form.) Title VII, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, or the Age Discrimination in Employment Act: This will be the only notice of dismissal and of your right toJsue that we will send you. You may file a lawsuit against the respondent(s) under federal law based on this charge in feder~I or state court. Your lawsuit must be filed WITHIN 90 DAYS of your receipt of this notice; or your right to sue based on this charge will be lost. (The time limit for filing suit based on a claim under state law may be different.) Equal Pay Act (EPA): EPA suits must be filed in federal or state court within 2 years (3 years for willful violations) of the alleged EPA underpayment. This means that backpay due for any violations that occurred mote than 2 years (3 years) before you file suit may not be collectible. Enclosures(s) cc: Michael J. Thompson Spencer H. Lewis, Jr., District Director Senior Corporate Counsel (For the Respondent) Case 3:16-cv-05430-MAS-TJB Document 1-2 Filed 09/07/16 Page 3 of 5 PageID: 19Case 3:16-cv-05430-MAS-TJB Document 24 6 29 7 81 . Enclosure with EEOC • Form 16.1 (11/09) INFORMATION RELATED TO FILING SUIT 1 UNDER THE LAWS ENFORCED BY THE EEOC i . I (This information relates to filing suit in Federal or State court under Federal law,1 If you also plan to sue claiming violations of State law, please be aware that time limits a1nd other provisions of State law may be shorter or more limited than those described belol) PRIVATE SUIT RIGHTS Title VII of the Civil Rights Act, the Americans with Dis~bilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), or the Age Discrimination in Employment Act (ADEA): In order to pursue this matter further, you must file a lawsuit against the respondent(s) named in the charge within 90 days of the date you receive this Notice. Therefore, you should keep a record of thisJ'.date. Once this 90- day period is over, your right to sue based on the charge referred to in this Notice will be lost.' If you intend to consult an attorney, you should do so promptly. Give your attorney a copy of this Notice, and its envelope, and tell him or her the date you received it. Furthermore, in order to avoid any question that you did not act in a timely manner, it is prudent that your suit be filed within 90 days of the date this Notice was mailed to you (as indicated where the Notice is signed) or the date of the postmark, if later. Your lawsuit may be filed in U.S. District Court or a State court of competent jurisdiction. (Usually, the appropriate State court is the general civil trial court.) Whether you file in Federal or State court is a matter for you to decide after talking to your attorney. Filing this Notice is not enough. You must file a "complaint" that contains a short statement of the facts of your case which shows that you are entitled to relief. Your suit may include any matter alleged in the charge or, to the extent permitted by court decisions, matters like or related to the matters alleged in the charge. Generally, suits are brought in the State where the alleged unlawful practice ocqurred, but in some cases can be brought where relevant employment records are kept, where the employment would have been, or where the respondent has its main office. If you have simple questions, you usually can get answers from the office of the clerk of the court where you are bringing suit, but do not expect that office to write your complaint or make legal strategy decisions for you. PRIVATE SUIT RIGHTS Equal Pay Act (EPA): EPA suits must be filed in court within 2 years (3 years for willful violations) of the alleged EPA underpayment: back pay due for violations that occurred more than 2 years (3 years) before you file suit may not be collectible. For example, if you were underpaid under the EPA for work performed from 7/1/08 to 12/1/08, you should file suit before 7/1/10 - not 12/1/10 -- in order to recover unpaid wages due for July 2008. This time limit for filing an EPA suit is separate from the 90-day filing period under Title VII, the ADA, GINA or the ADEA referred to above. Therefore, if you also plan to sue under Title VII, the ADA, GINA or the ADEA, in addition to ~uing on the EPA claim, suit must be filed within 90 days of this Notice and within the 2- or 3-year EPA back p~y recovery period. ATTORNEY REPRESENTATION -- Title VH, the ADA or GINA: If you cannot afford or have been unable to obtain a lawyer to represent you, the U.S. District Court having jurisdiction in your case may, in limited circumstances, assist you in obtaining a lawyer. Requests for such assistance must be made to the U.S. District Court in the form and manner it requires (you should be prepared to explain in detail your efforts to retain an attorney). Requests should be made well before the end of the 90-day period mentioned above, because such requests do not relieve you of the requirement to bring suit within 90 days. ATTORNEY REFERRAL AND EEOC ASSISTANCE -- All Statutes: You may contact the EEOC representative shown on your Notice if you need help in finding a la~er or if you have any questions about your legal rights, including advice on which U.S. District Court can hear your cas:e. If you need to inspect or obtain a copy of information in E~OC's file. on the charge, please request it promptly i~i w~iting and provid.e your charge number (as shown on your Notice). While EEOC destroys charge files after a certain time, all charge files are kept for at least 6 months after our last action on the case. Therefore, if you file suit and warit to review the charge file, please make your review request within 6 months of this Notice. (Before filing suit, any request should be made within the next 90 days.) It= YOU FILE SUIT, PLEASE SEND A COPY OF YOUR COURT COMPLAINT TO THIS OFFICE. Case 3:16-cv-05430-MAS-TJB Document 1-2 Filed 09/07/16 Page 4 of 5 PageID: 20Case 3:16-cv-05430-MAS-TJB Document 24 6 29 7 182 ·I ~~TICE OF RIGHTS UNDER THE ADA AMENDMENTS ACT OF 2008 (ADA~A): The ADA was amended, effective January 1, 2009, to broaden the definitions of disability to make it e1asier for individuals to be covered under the ADA/ AD AAA. A disability is still defined as (1) a physical or rliental impairment that substantially limits one or more major life activities (actual disability); (2) a record of~ substantially limiting impairment; or (3) being regarded as having a disability. However, these terms are redefined, and it is easier to be covered under the new law. : If_you plan to retain an attorney to assist you with your ADA claim, we recommJd that you share this information with your attorney and suggest that he or she consult the amertded regulations and appendix, and other ADA related publications, I' available at http://www.eeoc.gov/laws/types/disability regulations.cfm. "Actual" disability or a "record of' a disability (note: if you are pursuing a failure t~ accommodate claim you must meet the standards for either "actual" or "record of' a disability): I' )- The limitations from the impairment no longer have to be severe or significant for the impairment to be considered substantially limiting. » In addition to activities such as performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, thinking, concentrating, reading, bending, and communicating (more examples at 29 C.F.R. § 1630.2(i)), "major life activities" now include the operation of major bodily functions, such as: functions of the immune system, special sense organs and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions; or the operation of an individual organ within a body system. )- Only one major life activity need be substantially limited. » With the exception of ordinary eyeglasses or contact lenses, the beneficial effects of "mitigating measures" (e.g., hearing aid, prosthesis, medication, therapy, behavioral modifications) are not considered in determining if the impairment substantially limits a major life activity. )- An impairment that is "episodic" (e.g., epilepsy, depression, multiple sclerosis) or "in remission" (e.g., cancer) is a disability if it would be substantially limiting when active. )- An impairment may be substantially limiting even though it lasts or is expected to last fewer than six months. "Regarded as" coverage: Ii )- An individual can meet the definition of disability if an employment action was taken because of an actual or perceived impairment (e.g., refusal to hire, demotion, placement' on involuntary leave, termination, exclusion for failure to meet a qualification standard, harassment, or denial of any other term, condition, or privilege of employment). » "Regarded as" coverage under the ADAAA no longer requires that an impairment be substantially limiting, or that the employer perceives the impairment to be substantially limiting. )- The employer has a defense against a "regarded as" claim only when the impairment at issue is objectively BOTH transitory (lasting or expected to last six months or less) AND minor. > A person is not able to bring a failure to accommodate claim if the individual is ·covered only under the "regarded as" definition of "disability." . I Note: Although the amended ADA states that the definition of disability "shall he ~onstrued broadly" and "should not demand extensive analysis," some courts require specificity in the compluint explaining how an impairment substantially limits a major life activity or what facts indicate the challe~ged employment action was because of the impairment. Beyond the initial pleading stage, some courts will rbquire specific evidence to establish disability. For more information, consult the amended regulations antl appendix, as well as explanatory publications, available at http://www.eeoc.gov/laws/types/disability regulations.cfm. Case 3:16-cv-05430-MAS-TJB Document 1-2 Filed 09/07/16 Page 5 of 5 PageID: 21Case 3:16-cv-05430-MAS-TJB Document 24 6 29 7 183 EEOC Form 5 (11/09) CHARGE OF DISCRIMINATION Charge Presented To: Agency(ies) Charge No(s): This form is affected by the Privacy Act of 197 4. See enclosed Privacy Act Statement and other information before completing this forrri. D FEPA . .. [!] EEOC 530-2015-02036 New Jersey Division On Civil Rights and EEOC Name (indicate Mr., Ms., Mrs.) Mr. Andre Collier Street Address 34 Boudinot Stree.t, Trenton, NJ 08618 State or local Agency, if any City, State and ZIP Code Home Phone (Incl. Area:code) Date of Birth (609) 278-1557 01-05-1965 Named is the Employer, Labor Organization, Employment Agency, Apprenticeship Committee, or State or Local Govern_ment Agency That I Believe Discriminated Against Me or Others. (If more than two, list under PARTICULARS below.) Name TRANE COMPANY Street Address City, State and ZIP Code 2231 ESTATE STREET, Trenton, NJ 08609 DISCRIMINATION BASED ON (Check appropriate box(es).) D RACE D COLOR D SEX D RELIGION D NATIONAL ORIGIN 00 RETALIATION D AGE D DISABILITY D GENETIC INFORMATION D OTHER (Specify) THE PARTICULARS ARE (If additional paper is needed, attach extra sheet(s)): No. Employees, Members Phone No. (Include Area Code) 15 -100 (605) 587-3400 DATE(S) DISCRIMINATION TOOK PLACE Earliest Latest 05-29-2014 03-19-2015 [Kl CONTINUING ACTION I was hired by the Respondent on about June 19, 1999 as an assembly wotker. In 2001 I was promoted to a technician position. In 2009 I was involved in a workplace injury and, as a result, filed a charge of discrimination based upon my disability (ADA) with the EEOC. · . '.1;.1 •. Since I filed my EEOC charge I have experienced workplace harassment in the form of disciplinary write-ups, most recently on May 29, 2014 when I complained to the Respondent about it. I believe this continuing hostile work environment is in retaliation fo·r filing an EEOC charge and subsequent internal complaints of harassment. In addition, I have experienced at least two lffcidents of harassment on the basis of my sexual orientation, most recently on February 6, 2015 and February 12, 2015 in which I was called a derogatory name by two of my coworkers. I allege that under Title I of the Americans with Disabilities Act of 1990, as amended, R~spondent is engaging in retaliation for my earlier charges of discriminati.on. I also allege that under Title VII of the Civil Rights Act of 1964, as amended, Respondent has discriminated against t!!1fj; ;bes&us~f my sexual orientation. . (n s;: ·?: m --.. - () U') l'Tl -! ~ < :l: I want this charge filed with both the EEOC and the State or local Agency, if any. I NOTARY - When necessary for State and Lo·.. ·-'-"' cy · · uiref::js will advise t_he agencies if I change my address or phone number and I will :p;:. ~ .. cooperate fully with them in the processing of my charge in accordance with their 'IOii!""' ~~-~-~_re_s_·----------~-~---~--~l~ar~d~fu~l~wre~~~~~~e•fu~~~tr~~ I declare under penalty of perjury that the above is true and correct. the best of my knowledge, info~ation a'nd belief. Mar 19, 2015 Date Charging Party Signature SIGNATURE OF COMPLAINANT SUBSCRIBED AND SWORN TO BEFORE ME THIS DATE (month, day, year) Case 3:16-cv-05430-MAS-TJB Document 1-3 Filed 09/07/16 Page 1 of 2 PageID: 22Case 3:16-cv-05430-MAS-TJB Document 24 6 29 7 184 CP Enclosure with EEOC Form 5 (11/09) PRIVACY ACT STATEMENT: Under the Privacy Act of 1974, Pub. Law 93-579, authority to request personal data and its uses are: 1. FORM NUMBER/TITLE/DATE. EEOC Form 5, Charge· of Discrimination (11/09). 2. AUTHORITY. 42 U.S.C. 2000e-5(b), 29 U.S.C. 211, 29 U.S.C. 626, 42 U.S.C. 12117, 42 U.S.C. 2000ff-6. 3. PRINCIPAL PURPOSES. The purposes of a charge, taken on this form or otherwise reduced to writing (whether later recorded on this form or not) are, as applicable under the EEOC anti- discrimination statutes (EEOC statutes), to preserve private suit rights under the EEOC statutes, to invoke the EEOC's jurisd.iction and, where dual-filing or referral arrangements exist, to begin state or local proceedings. 4. ROUTINE USES. This form is used to provide facts that may establish the existence of matters covered by the EEOC statutes (and as applicable, other federal, state or local laws). Information given will be used by staff to guide its mediation and investigation efforts and, as applicable, to determine, conciliate and litigate claims of unlawful discrimination. This form may be presented to or disclosed to other federal, state or local agencies as appropriate or necessary in carrying out EEOC's functions. A copy of this charge will ordinarily be sent to the respondent organization against which the charge is made. 5. WHETHER DISCLOSURE IS MANDATORY; EFFECT OF NOT GIVING INFORMATION. Charges must be reduced to writing and should identify the charging and responding parties and the actions or policies complained of. Without a written charge, EEOC will ordinarily not act on the complaint. Charges under Title VII, the ADA or GINA must be sworn to or affirmed (either by using this form or by presenting a notarized statement or unsworn declaration under penalty of perjury); charges under the ADEA should ordinarily be signed. Charges may be clarified or amplified later by amendment. It is not mandatory that this form be used to make a charge. NOTICE OF RIGHT TO REQUEST SUBSTANTIAL WEIGHT REVIEW Charges filed at a state or local Fair Employment Practices Agency (FEPA) that dual-files charges with EEOC will ordinarily be handled first by the FEP A. Some charges filed at EEOC may also be first handled by a FEPA under worksharing agreements. You will be told which agency will handle your charge. When the FEPA is the. first to handle the charge, it will notify you of its final resolution of the matter. Then, if you wish EEOC to give Substantial Weight Review to the FEPA's final findings, you must ask us in writing to do so within 15 days of your receipt of its findings. Otherwise, wewill ordinarily adopt the FEPA's finding and close our file on the charge. NOTICE OF NON-RETALIATION REQUIREMENTS Please notify EEOC or the state or local agency where you fiJed your charge if retaliation is taken against you or others who oppose discrimination or cooperate in any investigation or lawsuit concerning this charge. Under Section 704(a) of Title VII, Section 4(d) of the ADEA, Section 503(a) of the ADA and Section 207(f) of GINA, it is unlawful for an employer to discriminate against present or former employees or job applicants, for an employment agency to discriminate against anyone, or for a union to discriminate against its members or membership applicants, because they have opposed any practice made unlawful by the statutes, or because they have made a ·charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the laws. The Equal Pay Act has similar provisions and Section 503(b) of the ADA prohibits coercion, intimidation, threats or interference with anyone for exercising or enjoying, or aiding or encouraging others in their exercise or enjoyment of, rights under the Act. Case 3:16-cv-05430-MAS-TJB Document 1-3 Filed 09/07/16 Page 2 of 2 PageID: 23Case 3:16-cv-05430-MAS-TJB Document 24 6 29 7 185 LAW OFFICES OF EDWARD HARRINGTON HEYBURN, ESQ., LLC (1) UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY TRENTON DIVISION ANDRE COLLIER; Plaintiff, v. JIMMY EDGER, JASON PEARLMAN ANDREW STEVENSON AND TRANE aka INGERSOL RAND; Defendants. Civil Action No. 16-CV-5430-PGS-TJB MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO RULE 12(B)(6) Law Offices of EDWARD HARRINGTON HEYBURN, ESQ. 7 Poplar Run East Windsor, New Jersey 08520 Tel. (609) 240-5578 Attorneys for Plaintiff, Andre Collier Of Counsel and On The Brief: Edward Harrington Heyburn, Esq. Dated: June 29, 2017 Case 3:16-cv-05430-MAS-TJB Document 24-4 Filed 06/29/17 Page 1 of 20 PageID: 186 LAW OFFICES OF EDWARD HARRINGTON HEYBURN, ESQ., LLC (2) TABLE OF CONTENTS TABLE OF AUTHORITIES........................................... 3 I. PRELIMINARY STATEMENT ..................................... 5 II. ALLEGATIONS IN PLAINTIFF’S COMPLAINT ...................... 6 III. STANDARD FOR A MOTION TO DISMISS ....................... 10 IV. LEGAL ARGUMENT ........................................... 12 A. PLAINTIFF COMPLAINT WAS TIMELY FILED ..................... 12 B. PLAINTIFF EXHAUSTED HIS ADMINISTRATIVE REMEDIES PRIOR TO FILING THE WITHIN COMPLAINT ................................. 14 C. FAILURE TO ACCOMMODATE UNDER THE ADA ..................... 16 D. PLAINTIFF PROPERLY STATES A CLAIM FOR UNEQUAL TERMS AND CONDITIONS OF EMPLOYMENT .................................... 16 E. PLAINTIFF’S COMPLAINT STATES A CLAIM FOR RETALIATION ..... 17 F. TITLE VII DOES NOT PROHIBIT DISCRIMINATION BASED UPON SEXUAL ORIENTATION BUT CONDUCT IS COVERED BY NEW JERSEY’S LAW AGAINST DISCRIMINATION ...................................... 18 G. PLAINTIFF SHOULD BE PERMITTED AN OPPORTUNITY TO CURE ANY FACTUAL DEFECTS IN THE COMPLAINT PURSUANT TO RULE 15(A) ..... 19 V. CONCLUSION ................................................ 20 Case 3:16-cv-05430-MAS-TJB Document 24-4 Filed 06/29/17 Page 2 of 20 PageID: 187 LAW OFFICES OF EDWARD HARRINGTON HEYBURN, ESQ., LLC (3) TABLE OF AUTHORITIES Cases 188 LLC, 300 F.3d 730 (7th Cir. 2002)......................... 19 28 U.S.C. § 1367.............................................. 19 Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009).................. 11, 12 Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147 (1984)..... 13 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)........... 11 Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001) .................................................. 17 Burgh v. Borough Council of the Borough of Montrose, 251 F.3d 465 (3rd Cir. 2001) .......................................... 13 Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). 15 Connelly v. Lane Const. Corp., 809 F. 3d 780 (3rd Cir. 2016).. 11 EEOC v. Allstate Ins. Co., 778 F.3d 444 (3rd Cir. 2015) ....... 15 Fogleman v. Mercy Hosp., Inc., 283 F.3d 561 (3d Cir. 2002) 15, 16 Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009). 10, 11, 12 Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187 (3d Cir. 2009) ....................................................... 12 Gray v. Phillips Petroleum Co., 858 F.2d 610 (10th Cir. 1988). 19 Haines v. Kerner, 404 U. S. 519 (1972).................... 10, 18 Hedges v. United States, 404 F.3d 744 (3d Cir. 2005).......... 11 Kost v. Kozakiewicz, 1 F.3d 176, (3d Cir. 1993)............... 10 Krouse........................................................ 16 Malleus v. George, 641 F.3d 560 (3d Cir. 2011)................ 11 Papasan v. Allain, 478 U.S. 265 (1986))....................... 11 Phillips v. Cty. of Allegheny, 515 F.3d 224 (3d Cir. 2008).... 10 Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775 (1989) ............................................................ 17 Prowel v. Wise Business Forms, Inc., 579 F.3d 285 (3d Cir.2009) ............................................................ 17 West Run Student Housing Associates LLC v. Huntington Nat. Bank, 712 F.3d 165 (3rd Cir. 2013) ............................. 19, 20 Case 3:16-cv-05430-MAS-TJB Document 24-4 Filed 06/29/17 Page 3 of 20 PageID: 188 LAW OFFICES OF EDWARD HARRINGTON HEYBURN, ESQ., LLC (4) Wilkerson v. New Media Tech. Charter School, Inc., 522 F.3d 315 (3d Cir.2008) ............................................... 14 Statutes Americans with Disabilities Act of 1990, as codified, 42 U.S.C. §§ 12112 to 12117 ............................................ 6 Conscientious Employee Protection Act, N.J.S.A. §§ 34:19-1 - 34:19-8 ...................................................... 7 New Jersey Law Against Discrimination N.J.S.A. 10:5-12..... 6, 18 Title VII of the Civil Rights Act of 1964, as codified, 42 U.S.C. §§ 2000e to 2000e-17 ............................. passim Rules Federal Rule of Civil Procedure, 12(b)(6)..................... 10 Federal Rules of Civil Procedure, Rule 15(A).................. 19 Federal Rules of Civil Procedure, Rule 6(d)................... 13 Treatises 6 Wright & Miller § 1474...................................... 19 Case 3:16-cv-05430-MAS-TJB Document 24-4 Filed 06/29/17 Page 4 of 20 PageID: 189 LAW OFFICES OF EDWARD HARRINGTON HEYBURN, ESQ., LLC (5) I. PRELIMINARY STATEMENT On Plaintiff, Andre Collier filed a pro se Complaint alleging employment discrimination based on three (3) types of issues: Race, Sexual Orientation and Disability. While Plaintiff has alleged sufficient facts to state a cause of action for discrimination based on race and disability, the third category is not covered under Federal law. Discrimination based on sexual orientation is covered under New Jersey’s Law Against Discrimination. The Court has the authority to dismiss Plaintiff’s Complaint without prejudice and permit Plaintiff to file an Amended Complaint, specifically alleging relief pursuant to New Jersey’s Law Against Discrimination which this Court has supplemental jurisdiction. Case 3:16-cv-05430-MAS-TJB Document 24-4 Filed 06/29/17 Page 5 of 20 PageID: 190 LAW OFFICES OF EDWARD HARRINGTON HEYBURN, ESQ., LLC (6) II. ALLEGATIONS IN PLAINTIFF’S COMPLAINT Plaintiff, Andre Collier filled out a form complaint for employment discrimination. (See a copy of Plaintiff’s Complaint attached as Exhibit “A”). The form complaint was provided by the United States District Court for the District Court of New Jersey. The Complaint was filed pro se. Plaintiff filled out his name and address as well as the Defendant’s name and address in Part I of the Complaint. (See Exhibit “A”). Part II Basis of Jurisdiction allows a pro se litigant to check any of three boxes. Plaintiff checked the boxes related to: 1. Title VII of the Civil Rights Act of 1964, as codified, 42 U.S.C. §§ 2000e to 2000e-17 (race, color, gender, religion, national origin); and 2. Americans with Disabilities Act of 1990, as codified, 42 U.S.C. §§ 12112 to 12117; 3. Other federal law (specify the federal law). (See Exhibit “A”). Although Plaintiff did not specify a federal law by statute, he did write in, “Sexual Orientation/Retaliation.” There was an additional box which Mr. Collier did not check. It states, “Relevant state law (specify, if known):” The form does not explain ancillary jurisdiction, nor does it give a list of state statutes such as New Jersey Law Against Discrimination (N.J.S.A. 10:5-12 (“NJ LAD”)) or the Case 3:16-cv-05430-MAS-TJB Document 24-4 Filed 06/29/17 Page 6 of 20 PageID: 191 LAW OFFICES OF EDWARD HARRINGTON HEYBURN, ESQ., LLC (7) Conscientious Employee Protection Act (N.J.S.A. §§ 34:19-1 - 34:19-8 (“NJ CEPA”)). The form complaint provides a section for a statement of claims. Specifically, the complaint instructs plaintiffs as follows: III. Statement of Claim Write a short and plain statement of the claim. Do not make legal arguments. State as briefly as possible the facts showing that each plaintiff is entitled to the damages or other relief sought. State how each defendant was involved and what each defendant did that caused the plaintiff harm or violated the plaintiff's rights, including the dates and places of that involvement or conduct. If more than one claim is asserted, number each claim and write a short and plain statement of each claim in a separate paragraph. Attach additional pages if needed. (Exhibit “A”). Although the form complaint does not provide any space for a short and plain statement of the claim, it does instruct that such information can be provided on a separate sheet of paper. Under the Statement of Claim section, the form complaint provides several options. The Plaintiff checked the boxes next to the following options: 1. Failure to accommodate my disability. 2. Unequal terms and conditions of my employment. 3. Retaliation. 4. Other acts (specify): (Exhibit “A”). In the line marked other, Plaintiff specified, Case 3:16-cv-05430-MAS-TJB Document 24-4 Filed 06/29/17 Page 7 of 20 PageID: 192 LAW OFFICES OF EDWARD HARRINGTON HEYBURN, ESQ., LLC (8) “Sexual Orientation.” Plaintiff also filled out the following portion of the complaint indicating that the discrimination was still going on and he has experienced this discrimination since 2009. (Exhibit “A”). Section D of the form complaint provided the Plaintiff with an opportunity to state the basis of the discrimination. Plaintiff completed the form as follows: (Exhibit “A”). Accordingly, the basis of Plaintiff’s claim was that he was discrimination based on his race (African American), his color (Black), gender/sex1 (Gay Black Man) and disability (back injury). The form complaint provides four (4) lines for the Plaintiff to provide the all of the facts that support the Plaintiff’s claim. Plaintiff completed the form as follows: 1 The form does not distinguish “gender/sex” (male or female) and the issues of gender identity and sexual orientation. Case 3:16-cv-05430-MAS-TJB Document 24-4 Filed 06/29/17 Page 8 of 20 PageID: 193 LAW OFFICES OF EDWARD HARRINGTON HEYBURN, ESQ., LLC (9) (Exhibit “A”). Plaintiff attached a copy of the charge he filed with the EEOC in compliance with the form. (See Exhibit “A”). Section V. of the form complaint provides plaintiffs with an opportunity to state the relief request. Plaintiff completed this section of the form complaint as follows: (Exhibit “A”). Admittedly, this portion of the complaint does not state the relief that the Plaintiff is entitled to under the statutes identified in Part II of the Complaint. Case 3:16-cv-05430-MAS-TJB Document 24-4 Filed 06/29/17 Page 9 of 20 PageID: 194 LAW OFFICES OF EDWARD HARRINGTON HEYBURN, ESQ., LLC (10) Defendants’ Motion to Dismiss Plaintiff’s Complaint for Failure to State a Cause of Action argues that the Complaint does not state facts sufficient to support the allegations. Defendants also argue that the claim of discrimination based on sexual orientation is not a violation of any federal law. III. STANDARD FOR A MOTION TO DISMISS A motion under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). When evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), "courts accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). As the Court unanimously held in Haines v. Kerner, 404 U. S. 519 (1972), A pro se complaint, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers" and can only be dismissed for failure to state a claim if it appears " `beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' " Id. (citations omitted). The defendants bear the Case 3:16-cv-05430-MAS-TJB Document 24-4 Filed 06/29/17 Page 10 of 20 PageID: 195 LAW OFFICES OF EDWARD HARRINGTON HEYBURN, ESQ., LLC (11) burden of showing that no claim has been presented. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In Ashcroft v. Iqbal, the United States Supreme Court explained the pleading requirement relative to a complaint. Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." As the Court held in Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929, the pleading standard Rule 8 announces does not require "detailed factual allegations," but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. Id., at 555, 127 S.Ct. 1955 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." 550 U.S., at 555, 127 S.Ct. 1955. Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement." Id., at 557, 127 S.Ct. 1955. 129 S.Ct. 1937, 1949 (2009). When considering a Rule 12(b)(6) motion, a district court should conduct a three-part analysis. See Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). "First, the court must `take note of the elements a plaintiff must plead to state a claim.'" Id. (quoting Ashcroft v. Iqbal, 56 U.S. 662, 675 (2009)). Second, the court must accept as true all of a plaintiff's well-pleaded factual allegations and construe the complaint in the light most favorable to the plaintiff. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009); see also Connelly v. Lane Const. Corp., 809 F. 3d 780, 787 (3rd Cir. 2016). However, the court Case 3:16-cv-05430-MAS-TJB Document 24-4 Filed 06/29/17 Page 11 of 20 PageID: 196 LAW OFFICES OF EDWARD HARRINGTON HEYBURN, ESQ., LLC (12) may disregard any conclusory legal allegations. Fowler, 578 F.3d at 203. Finally, the court must determine whether the "facts are sufficient to show that plaintiff has a `plausible claim for relief.'" Id. at 211 (quoting Iqbal, 556 U.S. at 679). If the complaint does not demonstrate more than a "mere possibility of misconduct," the complaint must be dismissed. See Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009) (quoting Iqbal, 556 U.S. at 679). IV. LEGAL ARGUMENT A. PLAINTIFF COMPLAINT WAS TIMELY FILED The Equal Employment Opportunity Commission issued its right to Sue Letter on June 7, 2016. The EEOC letter provided that: Title VII, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, or the Age Discrimination in Employment Act: This will be the only notice of dismissal and of your right to sue that we will send you. You may file a lawsuit against the respondent(s) under federal law based on this charge in federal or state court. Your lawsuit must be filed WITHIN 90 DAYS of your receipt of this notice; or your right to sue based on this charge will be lost. (The time limit for filing suit based on a claim under state law may be different.) (See a copy of the Right to Sue Letter dated June 7, 2016 and attached as Exhibit “B”). A right-to-sue letter is presumed to have been received within 3 days after its issuance by the EEOC. Case 3:16-cv-05430-MAS-TJB Document 24-4 Filed 06/29/17 Page 12 of 20 PageID: 197 LAW OFFICES OF EDWARD HARRINGTON HEYBURN, ESQ., LLC (13) See Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 148 n. 1 (1984) (per curiam) (relying on 3-day mailing rule in former Rule 6(e) of the Federal Rules of Civil Procedure, which now appears in Rule 6(d)). Rule 6(d) provides: ADDITIONAL TIME AFTER CERTAIN KINDS OF SERVICE. When a party may or must act within a specified time after being served and service is made under Rule 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to), 3 days are added after the period would otherwise expire under Rule 6(a). F.R.Civ.P., Rule 6 (2016). Accordingly, 93 days after June 7, 2016 is September 10, 2016. Plaintiff filed the within Complaint on September 9, 2016. The complaint was filed within the statutory period with the application of Rule 6(d). Defendants cite Burgh v. Borough Council of the Borough of Montrose, in support of their position that the 90-day period is to be strictly construed. 251 F.3d 465 (3rd Cir. 2001). Burgh did not involve either the application of the 90 period under a Right to Sue Letter or the three day extension under Rule 6(d). The court in Burgh applied a state two-year statute of limitations. The Court of Appeals for the Third Circuit reversed the dismissal of Burgh’s Complaint. Id. at 470. As the Complaint was filed within the 93 day period, it was timely filed and should not be dismissed. Case 3:16-cv-05430-MAS-TJB Document 24-4 Filed 06/29/17 Page 13 of 20 PageID: 198 LAW OFFICES OF EDWARD HARRINGTON HEYBURN, ESQ., LLC (14) B. PLAINTIFF EXHAUSTED HIS ADMINISTRATIVE REMEDIES PRIOR TO FILING THE WITHIN COMPLAINT Plaintiff’s Complaint alleges the same retaliation for filing an EEOC complaint as did the subsequent EEOC complaint. Title VII prohibits retaliation for opposing an unlawful employment practice. See 42 U.S.C. § 2000e-3. To establish a prima facie case of retaliation under Title VII, a plaintiff must prove that (1) he engaged in protected activity, (2) an employer took an adverse action against him, and (3) there was a causal connection between her participation in the protected activity and the adverse action. Wilkerson v. New Media Tech. Charter School, Inc., 522 F.3d 315, 320 (3d Cir.2008). The EEOC Complaint filed by the Plaintiff and attached to the Complaint herein alleges as follows: I was hired by the Respondent on about June 19, 1999 as an assembly worker. In 2001 I was promoted to a technician position. In 2009 I was involved in a workplace injury and, as a result, filed a charge of discrimination based upon my disability (ADA) with the EEOC. Since I filed my EEOC charge I have experienced workplace harassment in the form of disciplinary write-ups, most recently on May 29, 2014 when I complained to the Respondent about it. I believe this continuing hostile work environment is in retaliation for filing an EEOC charge and subsequent internal complaints of harassment. In addition, I have experienced at least two incidents of harassment on the basis of my sexual orientation, most recently on February 6, 2015 and February 12, 2015 in which I was called a derogatory name by two of my coworkers. Case 3:16-cv-05430-MAS-TJB Document 24-4 Filed 06/29/17 Page 14 of 20 PageID: 199 LAW OFFICES OF EDWARD HARRINGTON HEYBURN, ESQ., LLC (15) I allege that under Title I of the Americans with Disabilities Act of 1990, as amended, Respondent is engaging in retaliation for my earlier charges of discrimination. I also allege that under Title VII of the Civil Rights Act of 1964, as amended, Respondent has discriminated against me because of my sexual orientation. (See a copy of the EEOC Complaint dated March 19, 2015 and attached as Exhibit “C”). In EEOC v. Allstate Ins. Co., the Court of Appeals for the Third Circuit appressed retaliation in the context of prior complaints under the ADA. 778 F.3d 444, 449 (3rd Cir. 2015). The court held: Title VII, the ADEA, and the ADA proscribe discrimination in employment based on several personal characteristics. See 42 U.S.C. § 2000e-2(a) (race, color, religion, sex, national origin); 29 U.S.C. § 623(age); 42 U.S.C. § 12112 (disability). They also prohibit employers from retaliating against employees who oppose or complain about discriminatory treatment. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). The antiretaliation provisions "are nearly identical," and "precedent interpreting any one of these statutes is equally relevant to interpretation of the others." Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567 (3d Cir. 2002). Employers may not "discriminate against any individual because such individual has opposed any act or practice made unlawful by [the employment- discrimination statutes] or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing" under the employment-discrimination statutes. 42 U.S.C. § 12203(a)(ADA); see also 42 U.S.C. § 2000e- 3(a) (Title VII); 29 U.S.C. § 623(d) (ADEA). A prima facie case of illegal retaliation requires a showing of "(1) protected employee activity; (2) adverse action by the employer either after or contemporaneous with the employee's protected activity; and (3) a Case 3:16-cv-05430-MAS-TJB Document 24-4 Filed 06/29/17 Page 15 of 20 PageID: 200 LAW OFFICES OF EDWARD HARRINGTON HEYBURN, ESQ., LLC (16) causal connection between the employee's protected activity and the employer's adverse action." Fogleman, 283 F.3d at 567-68 (quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir.1997)). Id. Here, the Plaintiff specifically complained that adverse action was taken against him for make a prior complaint to the EEOC for violations of the ADA. As this was part of the EEOC complaint and Plaintiff was given a Right to Sue Letter, he exhausted his administrative remedies. C. FAILURE TO ACCOMMODATE UNDER THE ADA Defendants misunderstand Plaintiff’s Complaint. Plaintiff did not make a claim that Defendants failed to accommodate his disability. Plaintiff’s complaint alleges that Defendants retaliated against him for filing a prior EEOC complaint under the ADA which is a violation of the ADA itself. D. PLAINTIFF PROPERLY STATES A CLAIM FOR UNEQUAL TERMS AND CONDITIONS OF EMPLOYMENT Plaintiff’s Complaint alleges that he is an African American man with a disability, specifically a back injury. (See Plaintiff’s Complaint, ¶D attached as Exhibit “A”). Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer "to discriminate against any individual ... because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Discrimination based on failure to conform to gender stereotypes is cognizable discrimination on the basis of sex under Title VII. Prowel v. Wise Business Forms, Case 3:16-cv-05430-MAS-TJB Document 24-4 Filed 06/29/17 Page 16 of 20 PageID: 201 LAW OFFICES OF EDWARD HARRINGTON HEYBURN, ESQ., LLC (17) Inc., 579 F.3d 285, 290-91 (3d Cir.2009)(citing Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989)). Admittedly, "Title VII does not prohibit discrimination based on sexual orientation." Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001). Although scarce, the form complaint filed by the Plaintiff does state that the Defendants took adverse employment action against him for among other reason, the color of his skin and the fact that he is African American. The adverse action complain of is the allegation that he was targeted and “written up” based on his race and the fact that he made a prior complaint to the EEOC. This is sufficient to withstand Defendants’ motion to dismiss. E. PLAINTIFF’S COMPLAINT STATES A CLAIM FOR RETALIATION Plaintiff’s Complaint alleges his employer retaliated against him for filing an EEOC Complaint. The retaliation was in the form of false write-ups and warnings. The Plaintiff gave examples of where he was unfairly targeted. The Plaintiff explains the harassment as following and watching him. (See Exhibit “A”). Admittedly, the Plaintiff does not break each of the incidents of harassment into small vignettes but none the less categorizes them. Again, the Complaint was drafted pro se and does not contain the detail that the Court expects from a Case 3:16-cv-05430-MAS-TJB Document 24-4 Filed 06/29/17 Page 17 of 20 PageID: 202 LAW OFFICES OF EDWARD HARRINGTON HEYBURN, ESQ., LLC (18) lawyer. This is exactly why the Court give broader latitude to such complaints. See Haines v. Kerner, 404 U. S. 519 (1972). F. TITLE VII DOES NOT PROHIBIT DISCRIMINATION BASED UPON SEXUAL ORIENTATION BUT CONDUCT IS COVERED BY NEW JERSEY’S LAW AGAINST DISCRIMINATION Defendants correctly argue that Title VII does not prohibit discrimination based upon sexual orientation. Conversely, discrimination based on sexual orientation is prohibited by New Jersey’s Law Against Discrimination. The New Jersey Law Against Discrimination ("NJLAD") provides that All persons shall have the opportunity to obtain . . . all the accommodations, advantages, facilities, and privileges of any place of public accommodation . . . without discrimination because of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, familial status, disability, national origin, sex, gender identity or expression. . . . This opportunity is recognized as and declared to be a civil right. N.J.S.A. 10:5-4. It is clear that any claims Plaintiff has for discrimination and/or retaliation based on his sexual orientation are covered under LAD. Under Jurisdiction, Plaintiff should have check the box for relevant state law, specifying New Jersey’s Law Against Discrimination. Instead the Plaintiff filled out the form as follows: Case 3:16-cv-05430-MAS-TJB Document 24-4 Filed 06/29/17 Page 18 of 20 PageID: 203 LAW OFFICES OF EDWARD HARRINGTON HEYBURN, ESQ., LLC (19) (Exhibit “A”, Part II). This Court has supplemental jurisdiction over the New Jersey Law Against Discrimination claims under 28 U.S.C. § 1367. The fact that federal law condones discrimination based on sexual orientation but that a federal court has supplemental jurisdiction over the same claim under state law is something a pro se litigant would not understand. G. PLAINTIFF SHOULD BE PERMITTED AN OPPORTUNITY TO CURE ANY FACTUAL DEFECTS IN THE COMPLAINT PURSUANT TO RULE 15(A) In West Run Student Housing Associates LLC v. Huntington Nat. Bank, 712 F.3d 165 (3rd Cir. 2013) the court discussed the variety of ways plaintiffs are permitted to amend their complaints to avoid a dismissal. Plaintiffs routinely amend complaints to correct factual inadequacies in response to a motion to dismiss. See 6 Wright & Miller, supra § 1474 ("Perhaps the most common use of Rule 15(a) is by a party seeking to amend in order to cure a defective pleading."). That is so even when the proposed amendment flatly contradicts the initial allegation. See, e.g., 188 LLC, 300 F.3d at 734-36 (noting that district court permitted plaintiff to amend complaint to assert a contradictory factual position in response to a Rule 12(b)(6) motion and holding that earlier allegation was no longer a binding judicial admission in light of that amendment); cf. Gray v. Phillips Petroleum Co., 858 F.2d 610, 612 (10th Cir.1988) (noting that ADEA plaintiff amended his complaint as of right in response to motion to dismiss to "change[] the date of the alleged discriminatory action" for statute of limitations purposes, "ma[king] the filing of the discrimination charge timely under the pleadings"). Case 3:16-cv-05430-MAS-TJB Document 24-4 Filed 06/29/17 Page 19 of 20 PageID: 204 LAW OFFICES OF EDWARD HARRINGTON HEYBURN, ESQ., LLC (20) Id. at 172. To the extent that this Court disagrees with Plaintiff’s arguments and dismisses Plaintiff’s Complaint, the Complaint should be dismissed without prejudice and leave to file an amended Complaint. V. CONCLUSION Plaintiff, Andre Collier respectfully requests that this Court deny Defendants’ Motion to Dismiss Plaintiff’s Complaint. In the event that the Court dismisses Plaintiff’s Complaint, Plaintiff respectfully requests that the dismissal be without prejudice and this Court should permit the Plaintiff to Amend his Complaint. Respectfully submitted, EDWARD HARRINGTON HEYBURN, ESQ. Attorneys for Plaintiff, Andre Collier Dated: June 29, 2017 Case 3:16-cv-05430-MAS-TJB Document 24-4 Filed 06/29/17 Page 20 of 20 PageID: 205