Flagg v. State of New Jersey/Office of Child Support Services

REPLY BRIEF to Opposition to Motion

D.N.J.June 29, 2017

Off: 'lHc STgTE, ~ ~~~̀ ` '̀'' + . ~ I ~ ~ Y~y ~~~~I-= State o f New Jersey CHRIS CHRISTIE OFFICE OF THE ATTORNEY GENERAL Gove~~rtor• DEPARTMENT OF LAW AND PUBLIC SAFETY DIVISION OF LAW KIM GUADAGNO Z̀5 MARKET STREET Lt. Governor PO Box 112 TRErrTON, NJ 08625-0112 Agnes I. Rymer, D.A. G. a nes.l_ymer~c~lps.state.n~.us June 29, 2017 Via Electronic Filing and Mail (courtesy copy) Hon. Peter G. Sheridan, U.S.D. J. United States District Court Clarkson S. Fisher Federal Building & U.S. Courthouse 402 E. State Street Trenton, New Jersey 08608 CHRISTOPHER S. PORRINO Attorney General MICHELLE L. MILLER Actirtig Director Re: Flagg v. State of NJ/Office of Child Support Services Docket No. 3:17:02602-CV-94576-PGS-TJB Dear Judge Sheridan: My office represents the Defendant Office of Child Support Services ("OCSS.") The Defendant submits this letter reply brief in support of its motion to dismiss the Complaint. The Defendant also submits the Reply Certification of Agnes I. Rymer, which contains one new unpublished opinion relevant to the Title VII issue. We have been advised that Your Honor will hear argument on the motion on August 7 at 11:00 a.m. in Courtroom 4E. The OCSS moves to dismiss the Complaint without prejudice ~̀ 'lure to comply with the basic rules of pleading (Point HUGHES JUSTICE COMPLEX ~ TELEPHONE: (609 777-4889 • FAx: (609) 984-6446 New Jersey Is An Equ,a,l Opport,urtiity Enaploye~~ • Prirtted ort Recycled Paper ared Recyclable Case 3:17-cv-02602-PGS-TJB Document 6 Filed 06/29/17 Page 1 of 5 PageID: 355 June 29, 2017 Page 2 I), and with prejudice for failure to state a claim on which relief can be granted as a matter of law (Point II.) POINT I THE COMPLAINT SHOULD BE DISMISSED FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED. Plaintiff's 278-page Complaint violates the basic pleading rules of Fed.R.Civ.P. 8, 10 and 11. The Complaint does not contain a short and plain statement of the claim or a clear statement of the relief sought; it is not stated in numbered paragraphs; and the Complaint is not signed. Plaintiff's response does not cure any of these defects. The OCSS would be unable to answer the unclear Complaint. The Complaint should be dismissed without prejudice for this reason. POINT II PLAINTIFF'S COMPLAINT SHOULD BE DISMSSED FOR FAILURE TO STATE A CLAIM FOR VIOLATION OF TITLE VII BECAUSE SEXUAL C1RTT+'ATT~TTCIAT T~ T~TC1T D URCITT.'(''TFT1 (''T.~CC TTi~TT1T+'R TTTT.T,' ZTTT The law of the Third Circuit is that Title VII does not cover claims of retaliation or discrimination because of sexual orientation. Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001.) The only circuit court that has ruled to the contrary is the 7th Circuit in Hivey v. Ivy Tech.Cmty. Coll. of Ind. , 853 F.3d 339 (7th Cir. 2017. ) The Second Circuit recently held that it was bound by precedent to dismiss a Title VII claim alleging discrimination Case 3:17-cv-02602-PGS-TJB Document 6 Filed 06/29/17 Page 2 of 5 PageID: 356 June 29, 2017 Page 3 because of sexual orientation. Anonymous v. Omnicom Group, Inc., 852 F.3d 195 (2d Cir. 2017). That court correctly followed precedent of the Second Circuit Court of Appeals that had not been overruled by the court en bans, or by the Supreme Court. That is the course urged by the OCSS here: this Court should follow the Third Circuit Bibby precedent unless and until that precedent is overruled by the Third Circuit Court of Appeals en bans, or by the Supreme Court. This sound approach was adopted most recently by the U.S. District Court for the Eastern District of Pennsylvania in Coleman v Amerihealth Caritas, 2017 U.S. Dist. LEXIS 85319 (E.D. Pa. June 2, 2017) (attached to the Reply Certification of Agnes I. Rymer as Exhibit A.) In Anonymous, the Second Circuit Court of Appeals allowed the case to proceed as a claim of gender/sex discrimination, based on its specific facts. The court determined that some allegations of discrimination based on sexual orientation can qualify as sex/gender discrimination under Title VII. This was also the approach of the court in Coleman, which dismissed the claim of sexual orientation discrimination with prejudice, but permitted the plaintiff to attempt to plead a claim of sex/gender discrimination. The distinction depends on the particular facts alleged. Plaintiff's Complaint is not definite or clear enough to Case 3:17-cv-02602-PGS-TJB Document 6 Filed 06/29/17 Page 3 of 5 PageID: 357 June 29, 2017 Page 4 allow the Court here to determine that it states a claim for sex/gender discrimination. Plaintiff's Complaint cannot be saved by the narrow exception that some claims for sexual orientation discrimination may also state claims for sex/gender discrimination. The result here should be dismissal of the Complaint with prejudice. POINT III PLAINTIFF'S BELATED REFERENCE TO THE NEW JERSEY LAW AGAINST DISCRIMINATION DOES NOT RESCUE PLAINTIFF'S COMPLAINT. In his opposition brief, Plaintiff discusses the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1, et seq. Unlike Title VII, the LAD prohibits discrimination because of sexual orientation. However, Plaintiff's Complaint does not allege any state causes of action. On both the handwritten and typed Complaint forms, Plaintiff has not checked off "relevant state law." (Handwritten Complaint at 5; typed Complaint at 3 of In addition, amendment of the Complaint to assert a claim under the LAD would be futile because (i) the State is immune from suit in federal court under the LAD because of Eleventh Amendment Immunity; (ii) the LAD authorizes suits only in state court. N.J.S.A 10:5-5(e); and (iii) there would be no basis for federal jurisdiction over a stand-alone state LAD claim. See, e•g., Garcia v. The Richard Stockton College of New Jersey, 210 Case 3:17-cv-02602-PGS-TJB Document 6 Filed 06/29/17 Page 4 of 5 PageID: 358 June 29, 2017 Page 5 F. Supp. 2d 545, 550 (D.N.J. 2002) (the District Court of New Jersey does not have jurisdiction to hear supplemental state law claims under the LAD because the State has not consented to suit in federal court): CONCLUSION For the foregoing reasons, Plaintiff's Complaint should be dismissed with prejudice for failure to state a claim on which relief can be granted under Title VII based on sexual orientation. In the alternative, the Complaint should be dismissed without prejudice for failure to comply with the basic rules of pleading. Respectfully submitted, CHRISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY t By. Ag es I. mer Deputy Attorney General cc: Hosea L. Flagg, Pro Se 404 N. Clinton Avenue Trenton, NJ 08638 Case 3:17-cv-02602-PGS-TJB Document 6 Filed 06/29/17 Page 5 of 5 PageID: 359 CHRISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex P.O. Box 112 25 Market Street Trenton, New Jersey 08625-0112 Attorney for Defendant N.J. Office of Child Support Services By: Agnes I. Rymer Deputy Attorney General Ph: 609) 777-4889 Agnes.rymer@dol.lps.state.nj.us IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY VICINAGE OF TRENTON HOSEA L. FLAGG, v. Plaintiff, STATE OF NEW JERSEY, OFFICE OF CHILD SUPPORT SERVICES, Defendant. Hon. Peter G. Sheridan United States District Judge Hon. Tonianne J. Bongiovanni United States Magistrate Judge Civil Action No. 17:2602-cv-04576 (PGS-TJB) REPLY CERTIFICATION OF AGNES I. RYMER Agnes I. Rymer, Deputy Attorney General, of full age, hereby certifies: 1. I am employed by the State of New Jersey, Department of Law and Public Safety, Division of Law, in the capacity of Deputy Attorney General, and I have been assigned to represent the Defendant New Jersey Office of Child Support Services in this matter. I am fully familiar with the facts to which I now Case 3:17-cv-02602-PGS-TJB Document 6-1 Filed 06/29/17 Page 1 of 10 PageID: 360 certify. I submit this Certification in further support of the Defendant's motion to dismiss the Complaint. 2. Attached as Exhibit A is a copy of Coleman v. Amerihealth Caritas, Civil Action No. 16-3652, 2017 U.S. Dist. LEXIS 85319 (E.D. Pa. June 2, 2017). I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. J ~--. Agne I. Rym r Deputy Attorney General DATED: June 29, 2017 2 Case 3:17-cv-02602-PGS-TJB Document 6-1 Filed 06/29/17 Page 2 of 10 PageID: 361 Case 3:17-cv-02602-PGS-TJB Document 6-1 Filed 06/29/17 Page 3 of 10 PageID: 362 Get aDocument - by Citation - 2017 U.S. Dist. LEXIS 85319 e }zf' Search Get a Document Sheprard"s° More Page 1 of 7 Switch Client ~ Preferences ~ Help ~ Sign Out Histary Alerts FC3CUST'" Terms c~ Advanced... Get a ~aeument c~ _ _View Tutr~rial_ ~~~~~~~: ~~t ~y LExsEEo citation: 2017 U.S. Dist. LEX~S ~5~19 2017 U.S. Dist. LEXIS 85319, JUSTIN COLEMAN, Plaintiff, v. AME~Z~HEALTH CA~ZITAS, Defendant. CIVIL ACTION NO. ~6-3552 UNITED STATES DI aTRICT COURT FC~R THE EASTERN DISTRICT QF PENNSYLVANIA 2017 U.S. Dist. LEX~~ 853.9 June 2, 2017, Decided ~u~,~ ~, ~a~~, ~~iea CARE TERMS: sexual orientafiion, ret~li~tir~n, gender, stereotyping, termin~fiion, supervisor, sex, gay, digestive, impairment, pled, discrimination claims, factual allegations, adverse action, discriminated, applic~~le law, employment decision, right to file, federal claims, disabled person, protected activity, sex discrimination, terminated, disabilities, derogatory, ~rc~rr~otion, stutter, qualify, male, dropped CC3UNSEL: [*1] For JUSTIN CaLEMAN, Plaintiff: JAMES A. E~ELL, rV ,~, LEAD ATTORNEY, CH~ZISTOPHER A. MATEY, .~f~..~, BELL &BELL LLP, PHILADELPHIA, PA, For AM~R~H~ALTH CARITAS, Defendant: D~AN~ L.~E f~EWMAN ~, SAND & SATDEL P.C., PH:IL.~tI~ELPHIA, PA. JUi~~IE~a Hon..~AN E. [~uBOI~, J. t)PIP11IC11V BYR ,7AN E• I~U~QIS ~ * • • ~ ~ ~ This employment discrimina~ian case arises oufi of the termination of plaintiff Justin Coleman's employment by defendant Arr~erihealth Carifias. Ct~l~man alleges that he was discriminated against and ultimately t~rmir~at~d based an his requests for medical and family lave, disabilities, and genderJsexual orientation. Ne ass~r~s claims against Amerihealth for violations of the Family end Medical Leave r~ct ("~ML.A°'), 29 U.~.Ca ~~li, ~t seq., the Americans with Disabilities Act ",~l~At'}~ ~~ ~.~.C~. ~ ~~~.d~.f ~'~ ~@C]., TI~I~ VII C)~ ~~le CiVII Rlg~7~~ AC~~ 4~ U.~.~. ~~ ~~Q~~'~ ~'~ seq., end the Phil~delp~ii~ Fair Practices t~rdin~nce ("PFPC~"}, Phila. Code ~~ 9-ll~a, et' seq. Presently before the Court is Amerihe~lth's Motion to Dismiss Coleman's Amended Complaint pursuant tc~ federal Ruin of Civil Pro~~d€.~re ~.2(b}(6) and/or to dismiss Count IV (violation of the PFPt~) pursuant to Fed~r~l R.ul~ of Civil Pr~c~dure 12{b)(1}. For the reasons that follow, the Court http://www.lexis.com/research/retrieve?_m=8d23c833ab282bcce39065d96ab3a28f&csvc=... 6/28/2017 Case 3:17-cv-02602-PGS-TJB Document 6-1 Filed 06/29/17 Page 4 of 10 PageID: 363 Get aDocument - by Citation - 2017 U.S. Dist. LEXIS 85319 Page 2 of 7 grants in part and dailies in pert Amerihealth's Motion to Dismiss. ~ ,~ A ~~fiws\~~J T~7e facts as ~Il~g~d in Coleman's Amended Compi~int are ~s follows. Colerr~an, a Philadelphia [*2] r~sid~nt, was hired by Amerihealth on October 1, 2012, to work at its Phil~delphi~ location. Am. Compl. ¶¶ 8, 9, 14. Beginning in the summer of 20113, Coleman, who is r~~Y, was v~r~b~lly h~r~ss~ci by ~ co-wcarkPr, Shaur~ Joh~~~s. Am. Cornpl. ~~ 17-18, Johns tald ~olem~r~ "'you look like ~ faggot'° ar~d "your heir I~oks gay."" Am. Compl. ¶ 1~. In July X013, Johns p~~ncf~ed Coleman d~arin~ vvark. ~1m. Compi. ~ ~.9. When Coleman "protested," Johns replied, „f~~got, I'll punch you ire your face." Am. Compl. '~~ 20. In November 2Q13, after a period ~Ilegediy with similar comments, Johns again punched ~olem~« ~~ v~rc~rk. Am. G~mpl. ~ 21. ~c~llc~wing ghat ~It~rc~ti~sr~, Cal~m~n cc~mpl~ined to his supervisors, Wanda Childs ~r~d Kelvin Alexander. Am. Comps. ~ 22. Childs and Alexander attempted to dis~uad~ Coleman from reporting the attacks and comments to Human Resources, because Childs was a friend of Johns. Am, Con7pl. ~¶ 23-24. Childs again attempted to dissuade Coleman from i n~c~rr~lin~ Human R~saurces in ~ s~~b~ec~uent conversation, s~~ting that she woulcJ contact Johns clir~ct~ly about tl7e issues. Am. Cr~~~~pl. ~'~ 25-2~i, Colman ~ub~equently informed Michael Greevy of Amerihe~lth"s Human Resources Department of .lohns' conduct. Am. [*3] Compl. ~(~ 2g. As a result, .~ohns was terminated. Am. Compl. '~~ 29. Thereafter, Childs and M~r~ha E3~iley, ~r~other supervisor, "began to themselves make derogatory con~~r~~ents ~:a ar7d about: C~lerr~~r7 reg~rciii~g hip fender/sex~.i~l ori~r~t~tior~, including spr~~ding a false rumor tl~~~ Coleman was sleepir~c~ with Alexander, Coler~t~r~'s mile direct supervisor."" Arn. Com~l. ¶ 30. Coleman reported tl~e~e comments to Greevy but nc~ action was taken to address his complaints. Am. Comps. ~~ 31. Chilci~ anci ~~il~y also began to treat Colerrl~n differently with r~~pect to discipline and sched~.~lir~g. Ai~r~. Cc~rr~pl. ¶ 32. T~~ey b~yan to scrutinize Coleman"s and Alexander's ci~ys aff from work, suc~c~e~ting that overl~p~inc~ days indicted the two wire romantically involved. Am. Compl. ~~ 34. Coleman continued to lodge complaints througfl March or April 20.14 with Greevy ar~d HR Business P~rtr~er Di~n~ Zumbach, despite Greevy`s frustration over Coleman's complaints. Am. Ct~mpl. '~ 3.~. At that point, Coleman spoke to aire~tor Charlit~ T~~e about his complaints. Am. ~c~ r~~ p I . ~ ~ 5 . Soon after the c~iscus~ian with Tate, Coleman was transferred to ~ new department, where he was supervised by Dwayne Robinson. Am. Compl. '~~ ~G. This trarl~fer resulted [*4] in a significar7t recJuc~ion in overtime for ~olerr~~n. Am. Com~l. ¶ ~7. However, Coleman soon began tc~ exp~ri~nc,e~ issues wit~~ FZt~k~ir~sa~~, who was friendly with Colem~r~'s former supervisors. Am. Compl. ~(~ 3~. Robinson repeatedly made comments to Coleman about his tone, stating that "you need to work on your tons" "you need to buy a mirror and smile in the mirror so you don't sound like you da," ar~d "yoga saund smug." Am. Compl. ~¶ 47-48. ~olem~n, who has a "stutter, which is ~g~ravated by stress," end "su~f~rs from digestive issues" that have i~sted aver six months, took i nterr~it~~r~t FM~A I~c~ve far his digestive i~s~.»~ ~~gin~~~i~~g in M~rcr~ or Aril X014. Am. Comps. ¶'~ 43-46. Wh~r7 Coleman approached Robinson tc~ request permission to work from home due to his medical issues, Robinson told him th~fi "you need to come to work to gel the shifts you want." Am. Compl. ~ 51. Cc~l~rr~~~n ~c~~.i~~~~: c~~ditic~n~~l FM LA I~~v~ c~r~ .Iona 14, 2a~.4, to carp far r~is rnather, who ~uf~f~red fro~~r~ 1..~.~pus. Ar~~. Com~l. ~ 52. After apprr~v~l rah treat request, Cvlern~n requested are earlier shift for one day anc~ Robinson informed him that '"T l~nderstand there's [sick personal issues, f.~ut we have to cater to the company" and denied the request. [*5] Am. Compl. ¶ 53. Coleman was ~Iso denied promotion to a trainer position in July 2t]14, after previously being c~~nied ~ promotion to ~~ovider rn~in~en~nce position. Am. Campl. '~ 15, n.l. ~n auly 2~, 2014, Col~rr~~n took a ha(f-day of MLA leave. Am. Comps. '~ 54. The following day, Coleman met with Robinson and stated fihat "I feel like you have a problem with me because of http://www.lexis.com/research/retrieve? m=8d23c833ab282bcce39065d96ab3a28f&csvc=... 6/28/2017 Case 3:17-cv-02602-PGS-TJB Document 6-1 Filed 06/29/17 Page 5 of 10 PageID: 364 Get aDocument - by Citation. - 2017 U.S. Dist. LEXIS 85319 Page 3 of 7 how others feel about me," to which Robinson responded "I'm sorry that you feel that way" and "you miss work ~ lot,'° anal commented on Coleman's tone. Am. Comb(. ¶¶ 55-56. Whin Caler~n~n r~fer~nc:~d ~~is "'~xcepti~n l ~erfarmar~ce n~irY~t~ers,'" Robinson r~spand~d fl7~t "it is not ~Iways ~bo~~t the numbers.'" Am. Compl. ~~ 57-58. Coleman was terminated the next day, July 30, 201 , ley Robinson end Greevy. Am. Comp(, ~~ ~9. In its explan~tian for Coleman's termination, Am~rihealth stated that Coleman "dropp[ed] calls." Am. Cornpl. '~~ 60. Coleman claims that he had documented prooF that each "dropped call" was prap~rly reported as dropped due to technical ~liffic~.ilties, in accordance with corr►pany policy. Arn. Carr~pl. ¶ 51. Qn ,~aly 1, 2o~.f~, Colman filed ~ one ~o~~n~ Complaint against Amerii~e~lth, ~(leging violation of the ~ML~. tin Febr~~ary 2~, 2017, the [*6] PCHR issued Coleman a Right to Sue letter and the E~OC ~Isa issued a Right to St~i~ I~tt~r on his federal claims on March 17, 2017. Am. Compl. '~ 6. Ct~IC-~I"Yi~fl FII~t~ ~P~ ACT1~i~Cl2C.I COCT1~I~ICIt t7 (1 M~r~cl~ 2{~, 2017, adding claims far discrimination and ret~liatic~n unc~~r the A[~~1 ar~c~ the PFPC~ G~t~d c~, ender s~er~o~yping and sexual orientation discrimir~~tion urtdPr title VT1 anc~ the f~~PO. Am~rihealth filed its Nation to C3ismiss on April 10, 201 . Rule l~(b}(~,) ref the F~der~l I~ul~s o~ Civil ~r~ced~r~ permits ~ party to respond tc~ a pleading by filing a motion tc~ dismiss far "failure to state a claim upon which relief can be granted."" To su~~vive a r~7ation to dismiss, the complaint must allege f~cfis that °"raise ~ right to relief above the specul~~ive level."` Vict~~t~frc Co. v. Tiem~~r~, 499 F~.~d 227, 24 ~3d Cir. 2C}U7} {quoting Bell Atl. ~"vr~. v, TwarrrbJy, ,CSC} U.~. 54~, ~ 5, x.27 5. ~~:. 1955, ~.~7 L. ~d. ~d 929 (~OQ~}). A cor~~plairit mint contain "'sufficient factual matter, accepted ~s true, t~ 'state ~ clairri to relief that is ~lau~ible on its face. rrt A~f7croft v. I~~~l, 5.~6 U.~. F~6~, 6'78, 129 S. fit. ~.9~7, 173 L. Ed. 2d 868 {200 } (quoting Twamt~ly, ~~0 U.S. ~t 57a). A district court first identifies those factual allegations that cons#:it~~te nothing mare than "legal cc~nclusic~ns" ar "naked assertions." ~rwo~~oy, ~5a U.~. cat 555, ~ a?. S~.rch ~Ilec~~ticans G~r~ "riot entitled to the assurr~ptian of truth" end must be disrer~arc~~d. .Tc~b~{, 5~~ U.S~ ~t ~~~. T~~~ court then assesses "the °r7ub' of the pl~intiffC's) compE~ir~t-the well-pleaded, nonc~nclusQry factual allega~ion[s] [*7] "-to determine whether it states a plausible claim for relief. Id. The Curt cansiders each of Colern~~~"s claims in turn. A. R~t~lia~icar~ Claim under the MLA In i~:~ Mc~tiar~ to Disrriiss, Ai~rt~rir7~ ltr~ ~rg~.~~s tr~a~: ~calern~n his nc~t ~I~owr~ that I1i~ termin~tior~ was r~t~li~tinn for taking FM~.A leave. The Caurt disagrees. To state ~ claim for retaliafiian under the FMLA, an employee must allege "tn~t ~i~ Cne~ invoked [his] right to FM~.A-qualifying I~~v~, {2) [he] sufF~red an adverse employment decision, and {3) the adverse ~~:ti~n was c:~us~lly related tc~ [hiss invoc~tior~ Uf rights." ~udhur7 v. R~~c~t~r~g clasp. and M~di~~! Cerrt~r~, ~6S ~.3d 2~5, 2S~ (3c1 Cir. ~t~14}. The parties ~gre~ that Coleman invoked his right to FMLA leave and that his termination qualifies as an adverse employment action. Thus, the only element at issue is whether r~r not Coleman's termination was causally related to his request for FMLA leave. Colen~~ar~ was fired on ,7uly 3~, 20 .4, twc~ days after h~ ~a~k a half-el~y of FLMA leave on July 28, 2014. This brief two day period betv~reen his leave and termination is "unduly suggestive" and cr~~tes ~n inference of causality. L.~chterrst~in v. Ur~iv, cif Pittsburgh Mid. Ctr., 691 F.3d 294, 307 (~d Cir. ~01~} {"Although there is n~a bright line as to what constitutes ~~nduly suggestive temporal proxir~itY, (~ period of seven days is] sufficient [*8] at the prima facie stage."). Cole~~r~an ~Iso ~Ileges that Robinson, his supervisor, told Calem~n, •`you need to comp to work to get the shifty you w~r~~," Amo Compl. ~ 5~., ••T understand there's personal issues, but we have to cater to the company" when denying Coleman's request for an earlier shiffi, Am. Comps. ~ 53, end http://www.lexis.com/research/retrieve? m=8d23c833ab282bcce39065d96ab3a28f&csvc=... 6/28/2017 Case 3:17-cv-02602-PGS-TJB Document 6-1 Filed 06/29/17 Page 6 of 10 PageID: 365 Get aDocument - by Citation - 2017 U.S. Dist. LEXIS 85319 Page 4 of 7 "you miss work a lot," Am. Compl. '~ 56. The claw temporal proximity between Coleman's FMLA leave and terr~~ir~ation and the cor~~men~~ by Coleman's supervisor create an inference of C~t,ISc~li~y. ThI.JSr the Court c;Of1CIUC~~'S ~~lc~.~ COI~("1"l~fl ~~s suffi~ier~tly pled a claim of FMLA ret~ii~tic~r~. B. Claims under the ADA and the PFPC~1 • ~ Claims arising udder the ADA and the PFPC~ are .analyzed under tf7e same legal framework. AherPn v. ~researc,~ Tech., Inc., 183 F. ~~~pp. 3d ~~3, X68 ( .D. P~. 2010. In ifis Motion, A,rr~erihe~l~h arg~~~s th~~ Col~m~n hay not adequately pled claims of discrimination and r~tali~tior~ cinder the ADA and the PFPO (Phil~delphi~ fair Practices Ordinance). The Court clisagr~~s. 1. L?i~criminatrnnC.I~im~° To state a clairr~ far discrimination under ~r~e ADA and the PFPO, a plaintiff must alle~~ that "he is ~ disabled person withir~ fihe meaning of the ADA; {~) he is otherwise qualified to perform the essential functions cif the jab, with or withoL~t r~ason~bl~ accommodations by the employer; and (3} he has si~ffer~ed ~n otl~~rwise adverse ~mploym~nt decision [*9] ~s a result of discrimination."' ~~c~/ v. ~.uc~r~t T"~ch~., Inc., 1~~ F.:~d SI~i, 5~0 (3~ Cir. 1~9~). Amerihe~lth argues ~h~fi Coleman does not meet fihe definition of a "disabled person" under the ADA.2 ~~Unci~r the [ADA], ~~~ individi.~al is defined ~s disabled if he has (a) ~ physical or mental i rn~~irn~~nt th~~t s~.~k~st~n~:ially l ir~nits or7~ or mare of t~~~ ~~r~~jor life activiti~~ of such individual; Cb) ~ r~ecarc~ of such ~n imps€rment; or (c) is. reg~rd~d as hiving such an imE~airm~r~t." Rirrehirrter v. Cemcolr`~t, .Ir~rc., 2~2 F.3d 375, 3~0 (;d Cir. 2t~02}. Coleman alleges that his stutter and digestive issues subst~nfii~lly limit several major life activities, including eating, speaking, communicating, working, and the operatior~ of the major bodily fun~fiians of his digestive system, end have lasted longer th~r~ six mor7ths. As~i. Campl. ¶¶ 42, 4~. Such ailr~nents carp qualify ~s disabil ities under the ACA. Sep l~f~c~vi~ v. ~'arr~~~~s ~igr~ Co., LLG, No. ltd-S;~?2, 2Q1 ~. 11.5. Dist. 1.~EXIS $9 75, 2011 11t/L 3~1.34~~, at *~ (E.D. ~~. Auk. 10, 2011.) (collecting cases on stuttering ~s an impairment under the ADA}; M~zr~rk~ v. Miffs Fret Firm, 245 ~.3d C75 (~3tf7 Ciro 2001) {holding that debilitating digestive issues can be an impairment under the ADA). Because Coleman's stutter and digestive is~u~s may qualify him ~s a "disabled ~ersan," the court will not dismiss hip discrimination claims under the AC A and the PFPt~ ~t tl~is early st~c~~ caf the ~rocePdings. A • • z At this st~g~, Am~r~ihe~lth dais nit ciis~~u~:e thG~t Col~~~an was qu~lifi~~ fQr r7is position or that he s~~ffered ~r~ adverse err~pltaym~~~t c~ecisian as ~ result ~~ ~Il~ged discrimir~~tion. 2, Ret~li~tian Claims To state ~ claim far ret~li~~ian under the ADA ar~c~ the PF~(~, a pf~intifF [*10] must all~g~ that (.~) h~ engaged in a protected acfiivity; (2} the employer took ~n adverse acfiian against him after or contemporaneous with the protected ~ctivi~y; and (3) there i~ a causal link between the pr-ot~cted activity and the adverse action. Moore v, City of Phil., 4~1 F.3ci 331, 341 (~ci Cir. ~Ofl6}. Amerihe~lth cr~nter~ds that ~olemar~ does nod ~Ilege that Amerihealth took ~n adverse action ~g~in~t ~~im because h~ was F~ermitted to tike leave. As r7~ted above in the discussion on Co4~rr7~n's r~tali~tion claim ur~cler the MLA, Coleman ~Ileg~s that he was criticized for taking leave prior to his termina~ian end w~~ denied two pror~notians. Am, Compl. ~ 15, n.1. Additionally, h~ avers that hip r-ec~uest to work from r~ome due to leis medical issues was denied. Am. Compl. ~ http://www.lexis.com/research/retrieve?_m=8d23c833ab282bcce39065d96ab3a28f&csvc=... 6/28/2017 Case 3:17-cv-02602-PGS-TJB Document 6-1 Filed 06/29/17 Page 7 of 10 PageID: 366 Get aDocument - by Citation - 2017 U.S. Dist. LEXIS 85319 Page 5 of 7 51. At this stagy of the case, Coleman has sufficiently pled a claim for retaliation under the ADA end the PFPO. C. GenderJSexual c7rientation Claim under Title VTI In its Nation to Dismiss, Amerihe~lth contends that Caleman has not adequately pled a gender s~ereatyping sex discrimination claim under Title ~/II end that a sexual orientation discrimination Maim under Ti~l~ VII is nat actionable. The Caurt agrees. Thy use of day slurs indicates that a"'claim is b~s~d upon discriminatir~n [*11] that is motivated by perceived sexual orientation." ~'~y v. .~ndep. ~lu~ Crass, l42 F. App°x 48, ~1 {3d Cir. 20 5}. Coleman ~Ilege~ that Johns referred to him using ~ gay sfur end stated that his "hair looks gay." Am. Compl. ~ 18. These comments culminated in two physical assaults. Am. Camel. ¶ 2U. Coleman also alleges that his supervisors spr~~d a fare rumor that he was romantically involved with his direct male supervisor and "m~[de] ~erag~tory comments to and about Coleman r~g~rding his gender/sexual ari~nt~tion.'" Am. Compl. '~ 30. Such comments are unacceptable. H(JWE'V~t"r while Coleman ~~ates in his Amended Complaint that he was subjected to "repeated derogatory camr~nents regarding his gender/sexual ori~nt~tian end/or the perception that he ~c~ed effeminate and did not exhibit stereotypically male traits," he provides n~o factual ~Ileg~tions about comments re~~rding "the perception that he acted ~ffemin~te." Am. Compl. '~ i8. Taking the nonconclusary factual a{legations contained ire Coleman's Am~nd~d Complaint as firue, the Court concludes that Coleman has a pled a sexual orientation claim, not ~ sex ster~atyping claim. The Court must next address whether sexual orientation claims are cognizable under Title VII. In Bibhy v. Philadelphia Coca Cola Bottling [* 12] Company, issued in X001, the United States Court o~ App~~ls far the Third Circuifi held that "Tile VII does not prohibit discrimination based on sexual orientation." 2~0 F.~d 2~~, 261 (~d Cir. 2Qt~1). In the years sine that opinion was issued, the United States S~prem~ Court recognized that same-se c couples have the canstitutianal right to marry. C7b~rgefeld v. Hodges, 135 ~. Ct. X584, 2602, 192 L. Ed. 2d 609 {2015) ("'If rights were defined by whc~ exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied. This Court has rejected that approach, both with respect to the right to marry and the rights of gays and lesbians."}. Tn ~n apinian issued on April 4, 2017, the United States Court of Appeals for the Seventh Circuit reexamined its interpretation of Title VII and determined that discrimination on the basis of sexual orientation i~ a form of Sex discrimination. Niv~Jy v. rvy Tech Cmty. Col/eg~ of .~rrd., 853 ~.3d 339, Noo ~5- 720, X017 WL 1,230393, ~t *1 (7th Cir., 2017);3 see also United St~~te~ E~"C7C t~. Scott Ned, Health Cdr,, P.C., 21? F. ~' upp. 3d X334, No. 1~-225, ~Q1~ WL 659233, at *~ (W.D. Pa., 2Q~.6) ("'There is no mare obvious form of sex stereotyping than making a d~termin Lion that ~ person should conform} to heterosexuality.'"); Baldwin v. Foxx, EEtJ+C Appel No. 0~.201.3308Q, X01.5 EEtJF'UB LEXIS x.905, ~C►15 WL 43J7641, ~t *10 (EEtJC July 1~, ~a1.5) (holding that "allegations of discrimination an the basis of sexual arientation necessarily sfi~te a claim o~ discrimination an fihe basis of sex "). ~ • a ~ Discrimination on the basis of sexual orientation can also be understood as discrimination because of sex under three distinct theories. See Christi~►n~en v, Omnicom Grp., Inc,, 852 ~.3d 1.95, 207 (2d Cir. ~0~.7~ (Katzmann, C.J., eoncurring) C"Yhe EEOC end other advocates have articulated three ways that gay, lesbian, or bisexual plaintiffs could [demonstrate discrimination on the basis of sex]. first, plaintiffs could demonstrate that if they had engaged in identical conduct but been of the apposite six, they would not hive been discriminated against. Second, plaintiffs could demonstrate that they were discriminated against due to tl~e sex of their associates. Finally, plaintiffs could demonstrate that they wire discriminated against because they do not conform to some gender stereotype, including fibs stereotype that men should be exclusively afitracfied to women and women should be exclusively attracted to men."). http://www.lexis.com/research/retrieve?_m=8d23c833ab282bcce39065d96ab3a28f&csvc=... 6/28/2017 Case 3:17-cv-02602-PGS-TJB Document 6-1 Filed 06/29/17 Page 8 of 10 PageID: 367 Get aDocument - by Citation - 2017 U.S. Dist. LEXIS 85319 Page 6 of 7 While this Court is bound by [*13] Third Circuit precedent to dismiss Coleman's claim for sexual orientation discrimination under Title VII with prejudice, it does so with the recognition that "the nature of injustice is that we may not always see it in our times," Ob~rgefell, 135 S. Ct. at 2598. Thy Court dismisses Coleman's c~end~r stereotyping claim under Yule VIA without prejudice to his righfi ~o file and serve a second amended complaint in support of his gender stereotyping claim within twenty days if warranted by the facts and the applicable law set forth in this Memorandum, IV. CONCLUSION The Court denies Amer-ihealth's Motion to Dismiss as to Coleman's claims for retaliation under the FMLA, discrimination under the ADA and the PFPO, and retaliation under the ADA and the PFPO. The Court grants Amerihe~lth's Motion to Dismiss ~s to Coleman's claim for sexual orientation discrimination under Title VIT with prejudice. The Court grants Amerihealth's Motion to dismiss as to Coleman's claim for sex discrimination, specifically gender stereotyping, under Title VIT without prejudice to Coleman's righfi to file and serve a second amended complaint within twenty days if warranted by the facts and the applicable I~w set forth in this Memorandum. Because [*14] the Court declines to dismiss a number of Coleman's federal claims, it denies that part of Amerihealth's Motion that seeks dismissal of Coleman's PFPO claims pursuant to Federal Rule of Civil Procedure 12{b){1.).4 FC?OTNQTES a. Amerihealth contends that all of Coleman's federal claims are subject to dismissal and, thus, the Court does not have jurisdiction over Coleman's PFPa claims. ~1n ~ppropriat~ ardor follows. ORDER AhID IYO►W, this 2nd day of June, 2Q17, upon Defendant's Amerih~alth Caritas, Motion to Dismiss Plaintiff's Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6); and/or Motion to Dismiss Count IV of Plaintiff's Amended Complaint Pursuant to federal Rule of Civil Procedure 1~(b)(1} (Doc. Na. 16, filed Apr. 1.0, 2017) and Memorandum of Law in Apposition to Defendant's Motion to Dismiss Plaintiff's Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b) (6) and/or Motion to Dismiss Count TV of Plaintiff's Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(1) {Doc. No. 19, filed May 15, 2017), for the reasons set forth in the accompanying Memorandum dated June 2, 2Q17, IT IS ORDERED that defendant's Motion is GRANTEC) TN PART c~~1d DENIED IN PARTr c~f.5 ~OIIOWS: 1. That part of defendant's Motion seeking dismissal of plaintiff`s claims for retaliation under the F~rr~ily end Medical Leave Act, discrimination under the Americans with Disabilities Act ("ADA") end the Philadelphia Fair Practices Ordinance ("PFPC7"}, and retaliation under the ADA and the PFPt7 is DENIED; 2. That part o~ defendant's Motion seeking dismissal [*15] of plaintiff's claim for sexual orientation discrimination under Title VTZ is GRANTED and that claim is DISMISSED WITH PREJUDICE; 3. That part of defendant°s Motion seeking dismissal of plaintiff's Claim t~f sex discrimination, specifically gender sfiereotyping, under Title VII is GRANTED and that claim is DISMISSED WITHC?UT PREJUDICE to plaintiff's right to file and serve a second amended complaint within twenty (20) days of the entry of this Order if warranted by the facts and the applicable law set 'Forth in the accompanying Memorandum; and 4. That part of defendant's Motion seeking dismissal of plaintiff's PFPO claims pursuant to Federal http://www.lexis.com/research/retrieve?_m=8d23c833ab282bcce39065d96ab3a28f&csvc=... 6/28/2017 Case 3:17-cv-02602-PGS-TJB Document 6-1 Filed 06/29/17 Page 9 of 10 PageID: 368 Get aDocument - by Citation - 2017 U.S. Dist. LEXIS 85319 Page 7 of 7 Rule of Ci~ril Proced~.,r~ 12(b){1) is DENIED. IT IS FURTHER ORDERED that a Preliminary Pretrial Conference will be scheduled in due course. BY 7NE Ct7URT: Js/ Han. ,Ian E. DuBois Du~3QIS, SAN E., Ja Service: Get by LEXSEEC~ Citation : 2017 U.~. Dwst. L.EXIS 85319 View: Ful l Da$e/Time: Wednesday, ,7ur~e 28, 2017 - 4:18 PM EDT Al~c~«t L~xisNexis ; Privacy Policy ~ TE't'fl"1S He CC1i1t~I~i0C1S ~ Cs~~~c ~'~ ~ ~~~' ~~' C~~yric~ht G 2017 L~xisNexis, a division of Reed Elsevier In~ ~l~ i ~ ~ http://www.lexis.com/researchlretrieve?_m=8d23c833ab282bcce39065d96ab3a28f&csvc=... 6/28/2017 Case 3:17-cv-02602-PGS-TJB Document 6-1 Filed 06/29/17 Page 10 of 10 PageID: 369 CHRISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex P.O. Box 112 25 Market Street Trenton, New Jersey 08625-0112 Attorney for Defendant N.J. Office of Child Support Services By: Agnes I. Rymer Deputy Attorney General (609) 777-4889 Agnes.rymerCdol.lps.state.nj.us IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY VICINAGE OF TRENTON HOSEA L. FLAGG, v. Plaintiff, STATE OF NEW JERSEY, OFFICE OF CHILD SUPPORT SERVICES, Defendant. Hon. Peter G. Sheridan United States District Judge Hon. Tonianne J. Bongiovanni United States Magistrate Judge Civil Action No. 17:2602-cv-04576 (PGS- TJB) CERTIFICATE OF SERVICE I, Agnes I. Rymer, Deputy Attorney General, of full age, do hereby certify that the Defendant's letter reply brief dated June 29, 2017, Reply Certification of Agnes I. Rymer and this Certificate of Service, were electronically filed with the Clerk of the United States District Court for the District of New Jersey, today, and that copies have been sent by U.S. First Class Mail and Certified Mail delivery today to the following: Case 3:17-cv-02602-PGS-TJB Document 6-2 Filed 06/29/17 Page 1 of 2 PageID: 370 Hosea L. Flagg, PRO SE 404 N Clinton Ave. Trenton, New Jersey 08638 I further certify that the foregoing statements made by me are true. I understand that if any of the foregoing statements is willfully false, I may be subject to punishment. s/A nes I. R mer ~ ~L• Agnes I. Rymer Deputy Attorney General Dated: June 29, 2017 2 Case 3:17-cv-02602-PGS-TJB Document 6-2 Filed 06/29/17 Page 2 of 2 PageID: 371