United States District Court, D. Delaware
Xiomara Edilma Lozano, Townsend, Delaware, Pro Se Plaintiff.
U.S. District Judge
Xiomara E. Lozano ("Plaintiff) filed this action on May
22, 2017 under the Age Discrimination in Employment Act
("ADEA"), 29 U.S.C. § 621, et seq.
(D.I. 2) She appears pro se and has been granted
leave to proceed in forma pauperis. (D.I. 4) The
Court proceeds to review and screen the Complaint pursuant to
28 U.S.C. § 1915(e)(2).
who was employed as a master clinician by Defendant Resources
for Human Development ("RHD"), alleges that she was
terminated by reason of age on December 2, 2016. While not
clear, she may also be alleging discrimination by reason of
race, given that she refers to her race and that of Defendant
intern Patricia Hill ("Hill"). It appears that
Plaintiff filed a charge of discrimination, although there is
no indication that she received her notice of suit rights
from the United States Equal Employment Opportunity
Commission ("EEOC"). Other named defendants include
unit manager and supervisor Michael Brothers
("Brothers") and co-worker Angela Robinson
("Robinson"). Plaintiff alleges that she was
replaced by a younger clinician. She seeks compensatory
damages and reinstatement to her position.
federal court may properly dismiss an action sua
sponte under the screening provisions of 28 U.S.C.
§ 1915(e)(2)(B) if "the action is frivolous or
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is
immune from such relief." Ball v. Famiglio, 726
F.3d 448, 452 (3d Or. 2013); see also 28 U.S.C.
§ 1915(e)(2) (in forma pauperis actions). The
Court must accept all factual allegations in a complaint as
true and take them in the light most favorable to a pro
se plaintiff. See Phillips v. County of
Allegheny, 515 F.3d 224, 229 (3d Cir. 2008);
Erickson v. Pardus, 551 U.S. 89, 93 (2007). Because
Plaintiff proceeds pro se, her pleading is liberally
construed and her Complaint, "however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers." Erickson, 551
U.S. at 94 (citations omitted).
action is frivolous if it "lacks an arguable basis
either in law or in fact." Neitzke v. Williams,
490 U.S. 319, 325 (1989). Under 28 U.S.C. §
1915(e)(2)(B)®, a court may dismiss a complaint as
frivolous if it is "based on an indisputably meridess
legal theory" or a "clearly baseless" or
"fantastic or delusional" factual scenario.
Neitzke, 490 at 327-28; see also
Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989).
legal standard for dismissing a complaint for failure to
state a claim pursuant to § 1915(e)(2)(B)(ii) is
identical to the legal standard used when deciding Rule
12(b)(6) motions. See Tourscherv. McCullough, 184
F.3d 236, 240 (3d Cir. 1999) (applying Fed.R.Civ.P. 12(b)(6)
standard to dismissal for failure to state a claim under
§ 1915(e)(2)(B)). However, before dismissing a complaint
or claims for failure to state a claim upon which relief may
be granted pursuant to the screening provisions of 28 U.S.C.
§ 1915, the Court must grant a plaintiff leave to amend
his complaint unless amendment would be inequitable or
futile. See Grayson v. May view State Hosp., 293
F.3dl03, 114 (3d Cir. 2002).
complaint may be dismissed 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.
Twomblj, 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." Davis v. Abington
Mem'l Hosp., 765 F.3d 236, 241 (3d Cir. 2014)
(internal quotation marks omitted). In addition, a complaint
must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.
See Williams v. BASF Catalysts LLC, 765 F.3d 306,
315 (3d Cir. 2014) (citing Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) and Twombly, 550 U.S. at 570).
Finally, 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 be dismissed for imperfect
statements of the legal theory supporting the claim asserted.
See Id. at 346.
the pleading regime established by Twombly and
Iqbal, a court reviewing the sufficiency of a
complaint must take three steps: (1) take note of the
elements the plaintiff must plead to state a claim; (2)
identify allegations that, because they are no more than
conclusions, are not entided to the assumption of truth; and
(3) when there are well-pleaded factual allegations, the
court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief. See
Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d
Cir. 2016). Elements are sufficiendy alleged when the facts
in the complaint "show" that the plaintiff is
entided to relief. See Iqbal, 556 U.S. at 679
(citing Fed.R.Civ.P. 8(a)(2)). 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." Id.
matter of law, the ADEA does not provide for individual
liability. See Hill v. Borough of Kutttfown, 455
F.3d 225, 246 n. 29 (3d Cir. 2006). Only the
"employer" may be held liable under the ADEA, 29
U.S.C. § 623, and Plaintiffs complaint does not alleges
that Brothers, Robinson, or Hill are her employers.
Similarly, to the extent that Plaintiff intended to raise
Tide VII race discrimination claims under 42 U.S.C. §
2000e etseq., there is no individual liability.
See Sheridan v. E.I. Dupont de Nemours & Co.,100 F.3d 1061, 1077-78 (3d Cir. ...