NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 21-1752

__________

ANTHONY K. BAILEY,

Appellant

v.

THE MILLENIUM GROUP OF DELAWARE; NRG ENERGY, INC.

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 3-18-cv-01188)

Chief District Judge: Honorable Freda L. Wolfson

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 21, 2022

Before: RESTREPO, PHIPPS and COWEN1, Circuit Judges

(Opinion filed: August 30, 2022)

___________

OPINION*

___________

1 The Honorable Robert J. Cowen participated in the decision in this case. Judge Cowen 

assumed inactive status on April 1, 2022 after the submission date, but before the filing 

of the opinion. This opinion is filed by a quorum of the panel pursuant to 28 U.S.C. § 

46(d) and Third Circuit I.O.P. Chapter 12.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

PER CURIAM

Anthony Bailey appeals pro se from the District Court’s order dismissing his 

complaint for failure to state a claim. For the reasons below, we will affirm in part, vacate 

in part, and remand to the District Court for further consideration.

I.

Bailey was hired in 2014 by the Millennium Group of Delaware (“Millennium”) to 

work as a Stock Associate at a facility owned by NRG Energy, Inc. (“NRG”) in 

Princeton, New Jersey. In March 2017, he was fired for a purported breach of security 

after he opened a locked door and allowed access to an individual who had herself been 

fired earlier that day. Bailey brought this action against Millennium and NRG in 2018, 

alleging that he had in fact been terminated because he is African American, in violation 

of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the New Jersey Law 

Against Discrimination (“NJLAD”). NRG moved to dismiss the claims against it, arguing 

that Bailey had not established that they had an employment relationship, because he was 

an employee of Millennium contracted to NRG. The District Court granted this motion 

and dismissed the claims against NRG without prejudice. 

Bailey then filed a document that he styled as an amended complaint, but which, 

as the District Court noted, was structured more like a brief—attacking the defendants’ 

prior motion to dismiss and adding little more than conclusory allegations that he had an 

employment relationship with NRG. The amended complaint also added allegations that 

NRG violated 42 U.S.C. § 1981, which prohibits racial discrimination by contracting 
3

parties, and the New Jersey Wage Theft Act. NRG again moved to dismiss Bailey’s 

claims, and the District Court again dismissed without prejudice. Rather than amend a 

second time, Bailey filed a motion for reconsideration, which the District Court denied. 

Bailey now appeals.

II.

We have jurisdiction under 28 U.S.C. § 1291. See Marshall v. Comm’r Pa. Dep’t 

of Corr., 840 F.3d 92, 96 (3d Cir. 2016) (holding that, under Cape May Greene v. 

Warren, 698 F.2d 179, 184–85 (3d Cir. 1983), and its progeny, a premature notice of 

appeal may ripen “from a decision that is not immediately appealable but that becomes 

appealable before we take action on the appeal”); Frederico v. Home Depot, 507 F.3d 

188, 193 (3d Cir. 2007) (holding plaintiff expressed intent to stand on her complaint by 

immediately filing an appeal after dismissal and arguing her factual allegations were 

sufficient to state a claim). We review the District Court’s grant of a motion to dismiss de 

novo.2 Newark Cab Ass’n. v. City of Newark, 901 F.3d 146, 151 (3d Cir. 2018). In doing 

so, we accept the factual allegations in Bailey’s complaint as true and construe those facts 

in the light most favorable to him. See id. “To survive a motion to dismiss, a complaint 

2 Despite NRG’s argument to the contrary, see Appellee Br. 23–24, our review 

encompasses both the order denying Bailey’s timely motion for reconsideration and the 

underlying order, see McAlister v. Sentry Ins. Co., 958 F.2d 550, 552–53 (3d Cir. 1992)

(“[A]n appeal from a denial of a Motion for Reconsideration brings up the underlying 

judgment for review.”); cf. LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 

225 n.6 (3d Cir. 2007) (holding that the “technical inadequacy” of citing only an order 

denying reconsideration in a notice of appeal “does not in itself deprive us of jurisdiction 

over the appeal from the underlying order”). Also, to the extent NRG asks that we strike 

Bailey’s opening brief as untimely, we decline to do so. 
4

must contain sufficient factual allegations, taken as true, to ‘state a claim to relief that is 

plausible on its face.’” Fleisher v. Standard Ins., 679 F.3d 116, 120 (3d Cir. 2012) 

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “We may affirm a 

district court for any reason supported by the record.” Brightwell v. Lehman, 637 F.3d 

187, 191 (3d Cir. 2011).

III.

A. Discrimination Claims

A plaintiff alleging employment discrimination under Title VII or NJLAD must 

demonstrate that an employment relationship existed with the defendant. See Covington 

v. Int’l Ass’n of Approved Basketball Officials, 710 F.3d 114, 119 (3d Cir. 2013); 

Pukowsky v. Caruso, 711 A.2d 398, 403 (N.J. Super. Ct. App. Div. 1998). Here, the 

District Court dismissed Bailey’s claims against NRG for failing to sufficiently plead 

such a relationship between them. We decline to affirm on these grounds. 

The standard for determining whether a defendant is an employer for purposes of 

the anti-discrimination laws embraces the concept of joint employment. See Covington, 

710 F. 3d at 119–20; Graves v. Lowery, 117 F.3d 723, 727–29 (3d Cir. 1997) (citing 

NLRB v. Browning-Ferris Indus. of Pa., Inc., 691 F.2d 1117, 1122–23 (3d Cir. 1982)). 

Whether Bailey was employed by Millennium as well as NRG for these purposes turns 

on a number of factors, including NRG’s level of control over Bailey’s work and which 

entity was responsible for his firing. See Covington, 710 F.3d at 119 (citing Nationwide 

Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992)). Under this standard, “the precise contours 
5

of an employment relationship can only be established by a careful factual inquiry,” 

Graves, 117 F.3d at 729, and thus “may generally require resolution at the summary 

judgment stage, rather than at the motion to dismiss stage,” Mariotti v. Mariotti Bldg. 

Prods., Inc., 714 F.3d 761, 768 n.5 (3d Cir.), cert. denied, 571 U.S. 954 (2013). 

Nonetheless, as NRG argued before the District Court and does again here, 

Bailey’s complaint still did not state a claim for relief under Title VII or the NJLAD 

because he did not allege facts sufficient to support a finding that his termination was 

motivated by racial discrimination. Although the prima facie elements of a discrimination 

claim are “flexible and must be tailored to fit the specific context,” Sarullo v. U.S. Postal 

Service, 352 F.3d 789, 797–98 (3d Cir.2003) (per curiam), the plaintiff must generally 

plead facts that “raise[] an inference of discrimination,” Swierkiewicz v. Sorema N. A., 

534 U.S. 506, 510 (2002) (citations omitted). “The central focus of the prima facie case is 

always whether the employer is treating some people less favorably than others because 

of their race, color, religion, sex, or national origin.” Sarullo, 352 F.3d at 798 (internal 

quotation marks and citation omitted). 

Piecing together Bailey’s factual allegations from the collection of documents that 

make up his original and amended complaints, at no point does he raise an inference of 

racial discrimination. Despite his lengthy statements about the nature and history of race 

relations in society at large, he never alleges that any specific individual took any 

discriminatory action against him. Instead, he claims that he was fired for an act that 

other people routinely performed without repercussions: opening a door that requires 
6

individual key-card access for someone else.3 He offered nothing more than his own 

speculation that his firing was motivated by racial discrimination and pleaded no facts to 

support any inference that it was. See Twombly, 550 U.S. at 555 (“Factual allegations 

must be enough to raise a right to relief above the speculative level.”); Mala v. Crown 

Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (explaining that “pro se litigants still 

must allege sufficient facts in their complaints to support a claim”); Sarullo, 352 F.3d at 

798 (plaintiff in racial discrimination claim must “establish some causal nexus between 

his membership in a protected class and” the adverse action).

Accordingly, we will affirm the District Court’s dismissal of Bailey’s claims 

against NRG under Title VII and the NJLAD. 

B. Section 1981

In his amended complaint, Bailey also alleged that NRG violated 42 U.S.C. § 

1981. See Am. Compl. 18–20, ECF No. 41. To state a claim under section 1981, a 

plaintiff must allege facts supporting: “(1) that plaintiff is a member of a racial minority; 

(2) intent to discriminate on the basis of race by the defendant; and (3) discrimination 

concerning one or more of the activities enumerated by the statute, which includes the 

3 For example, in response to an EEOC prompt about which persons similarly situated to 

him were treated better, he listed his African American supervisor and five Caucasian 

men with executive or managerial titles, claiming they all regularly opened this same 

door for others. See ECF No. 1-1 at 14–15. But his list comprises a person who belongs 

to the same protected class but was not discriminated against and people who are not 

similarly situated to him in terms of authority. Moreover, he failed to allege that these 

individuals granted access to the door in similar circumstances to his, that is, opening the 

door for people who were no longer employees. 
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right to make and enforce contracts.” Brown v. Philip Morris Inc., 250 F.3d 789, 797 (3d 

Cir. 2001) (cleaned up). Yet, even assuming arguendo that could meet the first two 

prongs, the only contract Bailey referenced was the one between Millennium and NRG,

as the District Court noted. See Order 8, ECF No. 51 (citing Brown v. J. Kaz, Inc., 581 

F.3d 175, 181 (3d Cir. 2009) (explaining that a plaintiff can bring a Section 1981 cause of 

action “against the entity with which she contracted.”)). We will affirm the District 

Court’s dismissal of this claim.

C. New Jersey Wage Theft Act

Finally, Bailey alleged that NRG violated the New Jersey Wage Theft Act. See

Am. Compl. 15, 21. He explained that while at NRG, he worked “routinely as a substitute 

receptionist, for a minimum of 3-5 hours per week . . . for over 24 months[, and] was 

never paid or compensated for this employment” by either Millennium or NRG. Id. at 21; 

see also ECF No. 1-1 at 24 (noting to EEOC that Bailey “would routinely/periodically be 

assigned to relieve the front desk receptionist). He included in his amended complaint a 

job posting from another NRG facility for an administrative assistant that he claimed was 

an “approximation” of “the position . . . which [he] routinely performed, most times on a 

daily basis, for years.” Am. Compl. 9. 

The New Jersey Wage Theft Act passed in 2019, see 2019 N.J. Sess. Law Serv. 

212 (West), and amended two distinct but related statutes: the Wage and Hour Law 

(“WHL”), see N.J. Stat. Ann. § 34:11-4.1 et seq.; and the Wage Payment Law (“WPL”), 

see § 34:11-56a et seq. The District Court construed Bailey’s claim as arising under the 
8

WHL only and determined that it must fail “for the same reasons as his discrimination 

claims, as Plaintiff has not alleged the existence of an employment relationship between 

himself and NRG.” Order 8, ECF No. 51. While the District Court correctly noted the 

necessity of pleading an employment relationship under these statutes, see, e.g., N.J. Stat. 

Ann. § 34:11-4.1 (“‘Employee’ means any person suffered or permitted to work by an 

employer, except that independent contractors and subcontractors shall not be considered 

employees.”), this cursory analysis was erroneous. 

Not long ago, we petitioned the Supreme Court of New Jersey to certify the 

following question: “Under New Jersey law, which test should a court apply to determine 

a plaintiff's employment status for purposes of the [WPL] and [WHL]?” Hargrove v. 

Sleepy’s LLC, 612 F. App’x 116, 118 (3d Cir. 2015) (per curiam). There, the District 

Court had used the Darden factors to evaluate the employment relationship at issue, and 

on appeal, we sought clarification as to whether that was correct. See id. at 117–18. The 

Supreme Court of New Jersey rejected the Darden framework and concluded that the 

proper test under the WPL and WHL is the so-called “ABC Test” that the New Jersey 

Department of Labor has long used, and that it was not coextensive with the tests under 

Title VII and the NJLAD. Hargrove v. Sleepy’s, LLC, 106 A.3d 449, 465 & n.2 (N.J. 

2015). Following that decision, we remanded to the District Court to conduct the proper 

analysis in the first instance. See Hargrove, 612 F. App’x at 118–19. 

We will follow the same course here. The District Court’s dismissal of Bailey’s 

discrimination claims for failure to establish an employment relationship with NRG was 
9

based on an interpretation of the Darden factors. The dismissal of his claim for unpaid 

wages was, in turn, based on that same analysis. Since the Supreme Court of New Jersey 

has spoken on this issue at our request, and in so doing has noted that the ABC Test 

“presumes that the claimant is an employee and imposes the burden to prove otherwise 

on the employer,” see Hargrove, 106 A.3d at 464, we cannot say that the failure to apply 

that test here was harmless error. 

Accordingly, we will vacate the District Court’s dismissal of this claim and 

remand for further consideration in accordance with this opinion.