United States District Court, D. Delaware
Scott, Dover, Delaware. Pro Se Plaintiff.
Kathleen Furey McDonough, Esquire, and Stephanie E.
O'Byrne, Esquire, Potter Anderson & Corroon, LLP,
Wilmington, Delaware. Counsel for Defendant.
ANDREWS, U.S. District Judge.
Jason Scott, who appears pro se and has been granted
leave to proceed in forma pauperis, filed a
complaint on June 27, 2016, which he followed with what
appeared to be an amended complaint on October 28, 2016.
(D.I. 2, 6). Defendant moves to dismiss the amended complaint
pursuant to Fed.R.Civ.P. 12(b)(6). (D.I. 10). Plaintiff
opposes. (D.I. 15). Briefing on the motion is complete.
Plaintiff also requests counsel and moves for issuance of a
subpoena. (D.I. 13, 19).
time of his discharge, Plaintiff was employed by Defendant as
a community health worker. The Complaint alleges employment
discrimination by reason of race, color, sex, religion, and
disability occurring on April 30, 2015, when Plaintiff's
employment was terminated. (D.I. 2). The Complaint contains
three counts: (1) religious discrimination; (2) retaliation;
and (3) disability discrimination. (D.I. 2-2 at 2-3).
Attached to the Complaint is a notice of suit rights for EEOC
Charge No. 17C-2016-00158 and its corresponding charge of
discrimination, presented to the Delaware Department of Labor
on December 15, 2015, that alleges discrimination based upon
religion and retaliation. (D.I. 2 at Exs. A, B). The charge
states that Defendant discriminated against Plaintiff based
upon his religion and acted in retaliation after Plaintiff
engaged in protected activity. Plaintiff alleges that
"he was to be reinstated after his grant expired but was
discharged after he filed previous charges with the DDOL
(SCO052015 despite showing success and building positive
relationships during his employment." (Id. at
October 28, 2016, Plaintiff filed a second pleading again
alleging employment discrimination by reason of race, color,
sex, religion, and disability, occurred on April 30, 2015
when his employment was terminated and Defendant failed to
hire him. (D.I. 6). Attached to the pleading is a notice of
suit rights for EEOC Charge No. 17C-2015-00459 and the
corresponding charge of discrimination that alleges
discrimination based upon race, sex, religion, and
disability. (D.I. 6-1). The charge states that
Plaintiff worked for Defendant from February 2011 until
September 2011 as an insurance verification rep, from
September 2011 until October 2012 as a "PSR, " and
from October 2012 until April 30, 2015 as a community health
worker. It goes on to state that Plaintiff is a qualified
individual with a disability who is able to perform the
essential functions of his job with or without a reasonable
charge states that Plaintiff is Black Christian male with a
disability. Plaintiff alleges that Defendant discriminated
against him when it referred Plaintiff to an employee
assistance program in 2015. Plaintiff was informed that he
was going to be assigned to an "opening position but
eventually got discharged." (D.I. 6-1). Plaintiff
alleges that he was unfairly discharged by Defendant while he
was on his day off and that he was also denied a different
position with Defendant based upon his protected classes.
(Id.) The Complaint and its amendment seek
injunctive relief, back pay, and monetary damages. (D.I. 2,
moves for dismissal pursuant to Fed.R.Civ.P. 12(b)(6) on the
grounds that the amended complaint: (1) does not reference
the original complaint in any matter and, therefore, stands
independently as the operative pleading; and (2) alleges no
facts to support a claim of "discretionary
discharge" or failure to hire.
proceeds pro se and, therefore, his pleadings are
liberally construed and his complaint, "however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers." Erickson
v. Pardus, 551 U.S. 89, 94 (2007). Under Rule 12(b)(6),
a motion to dismiss may be granted only if, accepting the
well-pleaded allegations in the complaint as true and viewing
them in the light most favorable to the plaintiff, a court
concludes that those allegations "could not raise a
claim of entitlement to relief." BellAtl. Corp. v.
Twombly, 550 U.S. 544, 558 (2007). "Though
'detailed factual allegations' are not required, a
complaint must do more than simply provide 'labels and
conclusions' or 'a formulaic recitation of the
elements of a cause of action.'" Daws v.
Abington Mem'l Hosp., 765 F.3d 236, 241 (3d Cir.
2014) (quoting Twombly, 550 U.S. at 555). In
addition, a plaintiff must plead facts sufficient to show
that a claim has substantive plausibility. See Johnson v.
City of Shelby, ___ U.S.___, 135 S.Ct. 346, 347 (2014).
A complaint may not dismissed, however, for imperfect
statements of the legal theory supporting the claim asserted.
See Id. at 346.
reviewing the sufficiency of a complaint, a court should
follow a three-step process: (1) consider the elements
necessary to state a claim; (2) identify allegations that are
merely conclusions and therefore are not well-pleaded factual
allegations; and (3) accept any well-pleaded factual
allegations as true and determine whether they plausibly
state a claim. See Connelly v. Lane Constr. Corp.,
809 F.3d 780, 787 (3d Cir. 2016); Williams v. BASF
Catalysts LLC, 765 F.3d 306, 315 (3d Cir. 2014).
Deciding whether a claim is plausible will be a
"context-specific task that requires the reviewing court
to draw on its judicial experience and common sense."
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
Court liberally construes Plaintiffs pleadings. In doing so,
and with hindsight, the Court concludes that docket item 6
should now be construed, not as an amended complaint, but as
a supplement to the original complaint. The Court thus
construes the ...