1

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

I. SHAH, et al.,

Plaintiffs,

v.

STATE OF WISCONSIN, et al.,

Defendants.

 

 

Civ. No. 11-0419

OPINION

THOMPSON, U.S.D.J.

This matter has come before the Court on separate Motions to Dismiss filed by 

Defendants ARUP [Docket # 39], Frank Olsen-Tank (―Olsen-Tank‖) and Parsons Transportation 

Group (―Parsons‖) [25], and Tishman Construction Corporation (―Tishman‖) [57] (collectively, 

the ―Moving Defendants‖). On September 16, 2011, the Court dismissed all claims asserted by 

the Plaintiffs except for the employment discrimination claims alleged against the Moving 

Defendants and certain claims against CM Consortium (―CMC‖). (Order of Sept. 16, 2011) [79]. 

Pursuant to that Order, Plaintiffs, I. Shah, A. Shah., and three minors, were requested to ―submit 

any evidence they have regarding Plaintiff A. Shah‘s employment relationship with Defendants 

Tishman Construction Corporation, the ARUP, or Parson Transportation Group.‖ (Id., at 2). The 

Court has decided the motions upon consideration of the parties‘ written submissions pursuant to 

Fed. R. Civ. P. 78(b) and upon the Court‘s sua sponte considerations under 28 U.S.C. § 

1915(e)(2)(B). For the reasons stated below, these motions will be granted and the employment 

discrimination claims filed against the Moving Defendants will be dismissed, along with the sua 

sponte dismissal of all claims against CMC, for failure to state a claim under Fed. R. Civ. P. 

12(b)(6). 

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I. FACTS

The Court assumes the parties‘ familiarity with the facts of this case as laid out in its 

Opinion dated September 16, 2011. [78]. Initially, the Court delayed deciding the part of the 

Defendants‘ motions concerning the employment discrimination claims in order to permit 

Plaintiffs the ―opportunity to submit any evidence or provide further clarity regarding [A. 

Shah‘s] employment relationship with these Defendants.‖ (Opinion of Sept. 16, 2011, at 12). In 

response, Plaintiffs have submitted to the Court the following: (1) a business card that contains 

the names ―A. Shah‖, ―CMC‖, ―Tishman‖, ―Parsons‖, and ―ARUP‖, along with contact 

information and the job title of ―Configuration Engineer‖; (2) a photocopy of that same business 

card; and (3) a ―Preparation, Approval and Revision of Contract Specific Validation Report‖ that 

was prepared by a ―Configuration Engineer,‖ which is alleged to be A. Shah, although his name 

does not appear anywhere on this report, nor was it signed by him. [84].

II. LEGAL STANDARD

Under a motion to dismiss for failure to state a claim, a ―defendant bears the burden of 

showing that no claim has been presented.‖ Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 

2005). When considering a Rule 12(b)(6) motion, a district court should conduct a three-part 

analysis. 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, --- U.S. ---

-, 129 S. Ct. 1937, 1947 (2009)). Second, the court must accept as true all of a plaintiff‘s wellpleaded 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). But, the court should

disregard any conclusory allegations proffered in the complaint. Id. Finally, once the wellpleaded facts have been identified and the conclusory allegations ignored, a court must next 

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determine whether the ―facts are sufficient to show that plaintiff has a  ̳plausible claim for 

relief.‘‖ Id. at 211 (quoting Ashcroft v. Iqbal, --- U.S. ----, 129 S. Ct. 1937, 1949 (2009)). This 

requires more than a mere allegation of an entitlement to relief. Id. ―A complaint has to  ̳show‘ 

such an entitlement with its facts.‖ Id. A claim is only plausible if the facts pleaded allow a 

court reasonably to infer that the defendant is liable for the misconduct alleged. Id. at 210 

(quoting Iqbal, 129 S. Ct. at 1948). Facts suggesting the ―mere possibility of misconduct‖ fail to 

show that the plaintiff is entitled to relief. Id. at 211 (quoting Iqbal, 129 S. Ct. at 194).

III. DISCUSSION

Plaintiffs have four outstanding claims against the Moving Defendants in this case: (1) a 

claim under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (―NJLAD‖); (2) 

a claim under Title VII of the Civil Rights Act of 1964 (―Title VII‖); (3) a claim under 42 U.S.C. 

§ 1981; and (4) a claim under the Immigration and Nationality Act, 8 U.S.C. § 1324b(a)(1) 

(―INA‖).

1

 In addition, all claims against CMC remain. 

a. Immigration and Nationality Act

Plaintiffs‘ INA claims against all Defendants in this case must be dismissed. The INA 

makes it an ―unfair immigration-related employment practice for a person or other entity to 

discriminate against any individual . . . with respect to hiring, or recruitment or referral for a fee, 

of the individual for employment or the discharging of an individual for employment . . . because 

of such individual‘s national origin.‖ 8 U.S.C. § 1324b(a)(1). However, a Plaintiff must 

generally resort to ―the comprehensive administrative process for filing a claim,‖ and ―has no 

private cause of action in a federal district court to enforce violations of § 1324b in the first 

 

1 As noted in the Court‘s initial Opinion of September 16, 2011, the Complaint consists of twenty-one pages of 

convoluted and confusing narrative. The Court does not read the allegations contained in the Complaint as 

contending that the Moving Defendants and CMC have violated the Wisconsin Fair Employment Act. Although 

Plaintiffs‘ Complaint makes a number of allegations relating to his employment in the State of Wisconsin, none of 

those allegations are directed toward the Moving Defendants or CMC.

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instance.‖ Shine v. TD Bank Fin. Grp., No.09-4377, 2010 U.S. Dist. LEXIS 69529, at *22–23 

(D.N.J. July 12, 2010). Judicial review is proper only at the conclusion of the administrative 

proceedings. See generally 8 U.S.C. § 1324b(f)(2); see also Shah v. Wilco Sys., Inc., 126 F. 

Supp. 2d 641, 648 (S.D.N.Y. 2000) (discussing the appropriate procedure under the INA). 

Accordingly, all claims by Plaintiffs arising under the INA are dismissed. 

b. Employment Relationship with ARUP, Tishman, and Parson

Plaintiffs contend in the Complaint and in various other filings before the Court that at 

the time in question A. Shah was an employee of CMC. At the same time, however, Plaintiffs 

have brought employment-related claims under both Title VII and NJLAD against the Moving

Defendants. A claim under both the NJLAD and Title VII requires a showing of an employment 

relationship. See, e.g., Hicks v. Mulhallan, No. 07-1065, 2008 U.S. Dist. LEXIS 36362, *12 

(D.N.J. May 5, 2008) (finding that plaintiff was ―not an  ̳employee‘ and therefore not protected 

under Title VII or the [NJLAD]‖). In this case, Plaintiffs have alleged no facts indicating that 

they are a direct employee of any of the Moving Defendants. However, Plaintiffs do contend

that Parsons, ARUP, and Tishman are part owners of CMC. Therefore, it appears that Plaintiffs 

argue that Parsons, ARUP, and Tishman should be liable on a vicarious liability or agency 

theory. 

1. Title VII

The Court of Appeals for the Third Circuit has held that ―in order to determine whether a 

person is an employee for purposes of Title VII, the common law of agency and the traditional 

master-servant doctrine applies.‖ Shah v. Bank of Am., 346 F. App‘x 831, 833 (3d Cir. 2009) 

(citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322–24 (1992)).

2

 Numerous factors 

 

2 The Court notes that the plaintiff in this case was named Ashok Shah, but it is unclear whether this is the same A. 

Shah that is presently before the Court. 

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should be taken into consideration in making this determination, but the control of one party by 

another is paramount. See, e.g., Darden, 503 U.S. at 323–24 (listing factors).3 In Shah, the 

Court of Appeals for the Third Circuit held that even though Bank of America qualified as an 

employer under the statutory definition, ―that alone is not evidence that Shah is among them.‖ 

Shah v. Bank of Am., 346 F. App‘x at 834. In another case decided by the Third Circuit, the 

court held that dismissal of a complaint was improper when the plaintiff had alleged in the 

complaint that the defendant‘s funding of the position, along with its actions and policies, 

exercised the requisite control to establish an employment relationship. Graves v. Lowery, 117 

F.3d 723, 728 (3d Cir. 1997).

While the Court notes that, generally speaking, ―the precise contours of an employment 

relationship can only be established by a careful factual inquiry,‖ Id. at 729, in this case the 

Plaintiffs have alleged no fact or set of facts indicative of such a relationship. Therefore these 

claims must be dismissed. This Court need not accept conclusory allegations proffered in the 

Plaintiffs‘ Complaint. See Fowler v. UPMC Shadyside, 578 F.3d at 210–11. As the Supreme 

Court has stated, ―A pleading that offers labels and conclusions or a formulaic recitation of the 

elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked 

assertions devoid of further factual enhancement.‖ Iqbal, 129 S. Ct. at 1949 (internal citations 

and quotations omitted).

The Defendants in this case have alleged only the conclusory statements that there is 

employment relationship between A. Shah and the CMC, and that ―CMC is a business entity and 

joint venture of Tishman, Parson Transportation Group and ARUP.‖ (Compl., ¶ 4.e). Plaintiffs 

have alleged no facts that indicate that it is ―plausible‖ that Tishman, Parson, or ARUP had an 

 

3 As the court in Shah noted, Draden was an ERISA case, but the statutory language of ERISA and Title VII is 

identical and ―the Supreme Court has applied Draden in other employment discrimination contexts where the 

statutory definition of employee is the same as that in ERISA.‖ Shah, 346 F. App‘x at 834 n.1.

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employment relationship with A. Shah. Therefore this case is distinguishable from the facts of 

Graves where specific factual allegations prevented the district court from granting a motion to 

dismiss in favor of the defendants. 

In their reply brief, Plaintiffs argue that ―[b]ased on the control the CMC, a Parson entity, 

had over [A. Shah], [A.Shah‘s] work location, [and A. Shah‘s] duties makes plaintiff an 

employee of the CMC as per case laws [sic] and as per the definition of the [sic] employee as per 

EEOC and US DOL.‖ (Pls.‘ Reply Br., at 6).4 Notably, however, the Plaintiffs have never 

alleged that Parsons, ARUP, or Tishman exerted similar control over A. Shah in his 

employment—only CMC allegedly did so. To the extent that this conclusory allegation suggests

that because Parson has met the statutory definition of ―employer‖ promulgated by the EEOC it

must also be an employer in this particular case, the court in Shah specifically rejected this 

argument. See Shah, 346 F. App‘x at 834. This Court similarly rejects this argument.

The further ―evidence‖ offered by the Plaintiffs in their letter dated September 30, 2011 

[84] does not suffice to establish an employment relationship.5 There is not, for example, any 

factual allegation that this business card was given to A. Shah by one of the Defendants for his 

use in employment or that A. Shah otherwise had permission to use any of the Defendant‘s trade 

names. Rule 8 requires more than the possibility of an employment relationship—it must be 

plausible that such a relationship existed. Devoid of context, this business card cannot be said to 

make the fact of an employment relationship plausible. 

The validation report offered by the Plaintiffs is similarly unavailing. Neither A. Shah‘s 

name nor signature appears anywhere on the report. Likewise, nothing on the report indicates 

 

4

In their Reply Brief, Plaintiffs apparently do not contend that ARUP or Tishman is a parent corporation of CMC.

5

In a letter to the Court, Parsons, Tishman, and Olsen-Tank argue that the Court should not consider the ―evidence‖ 

attached to Plaintiffs‘ September 30, 2011 letter because it was unaccompanied by a sworn affidavit. (Letter from 

Carla D. Macaluso, Esq. of Oct. 18, 2011, at 1). The Court need not, and does not, decide whether consideration of 

this ―evidence‖ is proper because even taken in the light most favorable to the Plaintiffs, the Court holds that this 

supposed ―evidence‖ could not establish the plausibility of an employment relationship.

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that any Defendant other than CMC has anything to do with this report. Much like the business 

card offered by the Plaintiffs, this report is devoid of any meaningful context.

Although the Court recognizes that under Rule 15(a) leave to amend should be freely 

given when justice so requires—even in the absence of a formal request, see Alston v. Parker, 

363 F.3d 229, 235 (3d Cir. 2004)—this Rule does not prevent dismissal in this case. The Court 

specifically requested that the Plaintiffs ―submit any evidence they have regarding Plaintiff A. 

Shah‘s employment relationship with Defendants Tishman Construction Corporation, the ARUP, or 

Parson Transportation Group‖ in its September 16th Order. [79]. This gave the Plaintiffs ample 

opportunity to correct the defects that lead to the Court‘s ultimate decision here today. As explained 

above, the ―evidence‖ proffered by Plaintiffs was woefully inadequate to establish the plausibility of 

an employment relationship. In addition, we note that Plaintiffs have repeatedly run afoul of court 

ordered deadlines, see, e.g., Opinion and Order of June 2, 2011 [43], have previously had a similar 

case dismissed for failure to prosecute, see Shah v. Wisconsin Department of Transportation, Civ. 

No. 09-6441, and have accused court employees of intentionally obstructing justice without 

supplying any evidence justifying that weighty accusation, see Letter from I. Shah of May 31, 2011 

[42], all of which indicates a penchant for abusing the judicial process and bad faith. 

The Court further notes that Plaintiffs reply brief appears at times to be just that (i.e., a 

reply brief), while at other times it appears to make an attempt at amending the pleadings. 

Additional factual allegations are made in the reply brief. The allegations, however, are merely 

―threadbare‖ and conclusory. For example, Plaintiffs contend that Defendants supplied A. Shah 

with tools, that Defendants had the right to assign work, that A. Shah was paid on a monthly or 

yearly basis, etc. These are exactly the type of conclusory pleadings that the Supreme Court of 

the United Stated in Iqbal declared to be insufficient at the pleadings stage. These additional 

―facts‖ alleged by the Plaintiffs closely track those factors considered by the court in cases such 

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as Darden, 503 U.S. at 323–24, when determining whether there exists an employment 

relationship between plaintiffs and defendants. As the court in Iqbal explained, ―Threadbare 

recitals of the elements of a cause of action, supported by mere conclusory statements, do not 

suffice.‖ Iqbal, 129 S. Ct. at 1949. An amended complaint is ―futile‖ if it would still fail to state 

a claim for relief under the Rule 12(b)(6) standard. In re Burlington Coat Factory Sec. Litig., 

114 F.3d 1410, 1434 (3d Cir. 1997). Therefore, to the extent that the Plaintiffs‘ reply brief can 

be taken as a motion to amend the pleadings, such a motion would be futile. 

For these reasons, not permitting leave to amend does not weigh against the interests of 

justice in this case. Accordingly, the Title VII claims against ARUP, Parson, and Tishman are 

dismissed.

2. NJLAD

The foregoing analysis applies with equal force to the NJLAD claims against ARUP, 

Parson, and Tishman. The substantive law of NJLAD ―has been influenced markedly by 

experience derived from litigation under federal anti-discrimination statutes.‖ Shaner v. Horizon 

Bancorp., 561 A.2d 1130, 1132 (N.J. 1989). The Supreme Court of New Jersey has itself stated 

that ―[i]n construing the terms of the [NJ]LAD, this Court has frequently looked to federal 

precedent governing Title VII of the Civil Rights Act of 1964 as a key source of interpretive 

authority.‖ Lehmann v. Toys ‘R’ Us, 626 A.2d 445, 452 (N.J. 1993) (internal citations and 

quotations omitted). The Court has no doubt that a similar standard as that applied under Title 

VII would be adopted by the New Jersey Supreme Court in this case. See, e.g., Anjelino v. N.Y. 

Times Co., 200 F.3d 73, 92 (3d Cir. 1999) (citations omitted) (applying a standing analysis under 

Title VII to similar claims arising under NJLAD); Pukowsky v. Caruso, 711 A.2d 398 (N.J. 

Super. Ct. App. Div. 1998) (adopting the reasoning of Title VII cases in holding that independent 

contractors are not ―employees‖ under NJLAD); J.M.L. ex rel. T.G. v. A.M.P., 877 A.2d 291, 

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296 (N.J. Super. Ct. App. Div. 2005) (holding that an independent contractor agreement does not 

establish an employment relationship under the NJLAD). For these reasons, the NJLAD claims 

against ARUP, Parson, and Tishman must also be dismissed. 

c. Employment Claims Against Olsen-Tank

Defendant Olsen-Tank has also moved to dismiss the Title VII and NJLAD claims 

against him pursuant to Rule 12(b)(6). [25]. For the foregoing reasons, the Title VII and 

NJLAD claims against Olsen-Tank are dismissed.

Under Title VII, a plaintiff cannot maintain a cause of action against an individual. 

Sheridan v. E.I. Dupont de Nemours & Co., 100 F.3d 1061, 1077–78 (3d Cir. 1996), cert. denied, 

521 U.S. 1129 (1997). Therefore, Plaintiffs‘ Title VII claim against Olsen-Tank must be 

dismissed.

As a general matter, an individual defendant also cannot be held personally liable under 

N.J.S.A. § 10:5-12(a). See Tarr v. Ciasulli, 853 A.2d 921, 928 (N.J. 2004). The provision of 

N.J.S.A. § 10:5-12(e), however, permits individual liability on an aiding and abetting theory. 

See id. This section of the NJLAD makes it unlawful ―[f]or any person, whether an employer or 

an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden 

[under the LAD].‖ N.J.S.A. § 10:5-12(e); see also Tarr, 853 A.2d 928. 

In Tarr, the Supreme Court of New Jersey adopted the Restatement (Second) of Torts § 

876(b) standard for determining whether an individual ―aids and abets‖ under the NJLAD. Id. at 

929; see also Failla v. City of Passaic, 146 F.3d 149, 158 (3d Cir. 1998); Hurley v. Atlantic City 

Police Dep't, 174 F.3d 95, 129 (3d Cir. 1999) (predicting that New Jersey courts would impose 

aiding and abetting liability only on supervisory employees), cert. denied, 528 U.S. 1074 (2000). 

Under this approach, an individual is liable if ―he or she  ̳knows that the other‘s conduct 

constitutes a breach of duty and gives substantial assistance or encouragement to the other so to 

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conduct himself.‘‖ Tarr, 853 A.2d at 928 (quoting Restatement (Second) of Torts § 876(b)). To 

establish liability a plaintiff must prove: ―(1) the party whom the defendant aids must perform a 

wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part 

of an overall illegal or tortious activity at the time that he provides the assistance; and (3) the 

defendant must knowingly and substantially assist the principal violation.‖ Id. (quoting Hurley, 

174 F.3d at 127). 

Olsen-Tank first argues that he was an employee of Parsons and not CMC, as the 

Plaintiffs allege. Therefore he argues that he cannot be held liable under the NJLAD because 

there is no valid employment relationship on which to premise liability, see supra. Regardless of 

what corporate entity was the actual employer of Olsen-Tank at the time in question, this is not 

controlling for determining liability under the NJLAD on an aiding or abetting theory. The 

statutory text of NJLAD specifically provides for individual liability on an aiding and abetting 

theory whether the person is ―an employer or an employee or not.‖ N.J.S.A. § 10:5-12(e) 

(emphasis added). Therefore, proving an aiding and abetting theory under LAD does not require 

proof of an employment relationship, and Olsen-Tank may be liable for aiding or abetting CMC

regardless of whether he was employed by it.

Olsen-Tank next argues that Plaintiffs have not adequately alleged a wrongful act that 

caused an injury, i.e., they have not adequately alleged a prima facie case of discrimination.6 To 

establish a prima case of discrimination under the NJLAD, a plaintiff must show (1) that he was 

subjected to differential treatment based upon membership in a protected class; (2) that he was 

qualified for a position and performed at a level that met his employer‘s expectations; (3) that he 

suffered an adverse employment action; and (4) that the adverse employment action occurred 

 

6 The New Jersey Supreme Court has adopted the McDonnell-Douglas burden shifting approach to discrimination 

claims under the NJLAD. Zive v. Stanley Roberts, Inc., 867 A.2d 1133, 1138 (N.J. 2005).

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under circumstances giving rise to an inference of discrimination. Henry v. N.J. Dep’t of Human 

Servs., 9 A.3d 882, 889 (N.J. 2010) (quoting Dixon v. Rutgers, The State Univ. of N.J., 541 A.2d 

1046, 1051–52 (N.J. 1988)). Specifically, Defendants argue that Plaintiffs have failed to 

adequately plead the first, third, and fourth elements of a prima facie case of discrimination. 

Even on a liberal reading of Plaintiffs‘ pro se Complaint, Plaintiffs have not adequately 

alleged a prima facie case of discrimination. The allegations are convoluted, but reading the 

Complaint in the light most favorable to the Plaintiffs, the facts alleged are essentially as follows. 

First, Plaintiffs argue that A. Shah was required to submit personal documentation upon 

being hired that other employees at CMC were not required to submit. This is not an adverse 

employment action. See Simmerman v. Hardee’s Food Sys., 1996 U.S. Dist. LEXIS 3437, at *46 

(E.D. Pa. 1996) (―Although there is no exhaustive list of what constitutes adverse employment 

action, examples include demotion, additional responsibilities, termination, denial of a deserved 

promotion, pay decrease, or loss of benefits.‖).

Next, Plaintiffs argue that Olsen-Tank ―started treating [A. Shah] in a derogatory way 

and made the environment hostile and drastically increased his work load and started making 

false deadline[s] and created every opportunity to belittle with [sic] him in front of other 

employees and managers.‖ (Compl., ¶ 63). The bald allegations that Olsen-Tank made the 

environment hostile, that he increased A. Shah‘s workload, and that he belittled A. Shah is not 

sufficient to state a claim; there are no facts alleged that make this claim ―plausible.‖ See Iqbal, 

129 S. Ct. at 1949 (internal citations and quotations omitted) (A complaint is inadequate ―if it 

tenders naked assertions devoid of further factual enhancement.‖). In addition, there is no 

allegation that this occurred because of Plaintiffs‘ status as a member of a protected class. 

Rather, Plaintiffs appear to allege that Olsen-Tank engaged in this behavior as part of a nefarious 

plot undertaken with Defendants Johnson, Busalacchi, and Newson (collectively, ―the 

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Conspiratorial Defendants‖) stemming from these Defendant‘s apparent animus toward A. Shah. 

Thus, the circumstances do not give rise to an inference of discrimination. The same 

Conspiratorial Defendants, along with Olsen-Tank, allegedly tried to ―trap [A. Shah] in a crime 

and intimidate [A. Shah],‖ therefore violating federal law. These acts are not employment 

related, and therefore they cannot be said to be an adverse employment action. 

Plaintiffs‘ next contention is that Olsen-Tank forced A. Shah to resign by threatening to 

involuntarily terminate him if he did not. (Compl., ¶ 64). There is no allegation that this was 

done on the basis of A. Shah‘s membership in a protected class. Rather, Plaintiffs state that at 

the time of the forced resignation, ―Frank O-T also added that because they hired [A. Shah,] their 

company is loosing [sic] multimillion dollars worth of contract [sic] with Wisconsin State 

Government.‖ (Id.). Therefore, this adverse employment action did not occur under 

circumstances giving rise to an inference of discrimination, but rather because CMC—or some 

other corporate entity—was losing money by having A. Shah as an employee. Plaintiffs go on to 

say the following: ―Thus Frank OT and other[s] at CMC joined with [the Conspiratorial 

Defendants] and again violated Federal law that allows [a] person of color to do federally 

protected activity like work and feed his children/family.‖ (Id.). As an initial matter, Plaintiffs 

do not appear to allege that the forced resignation violated state law, such as the NJLAD. Even 

if this could be excused because Plaintiffs are pro se litigants, Plaintiffs are confused as to the 

purpose of employment discrimination laws. Plaintiffs apparently allege that Title VII (and 

presumably NJLAD) grants them the unconditional ability to ―work and feed [their] children‖

because of their status as minorities. This is fundamentally wrong. Title VII and NJLAD only 

protect against adverse employment actions taken on the basis of their status as a minority. In 

other words, Title VII and NJLAD protect against certain activity, they do not grant affirmative,

unconditional rights. These statutes act as a shield, not as a sword. Taken in the light most 

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favorable to the Plaintiffs, the forced resignation did not occur under circumstances that give rise 

to an inference of discrimination.

Lastly, Plaintiffs contend the following: ―Frank Olsen-Tank . . . agreed to pay my 

husband up to March 15, 2010 [but] forced [A. Shah] to leave [the] office all of [a] sudden on

March 4, 2010 afternoon without any notice and told [him that] he w[ould] . . . not [be] pa[id] up 

to March 15, 2010. When my husband stepped out [of the] elevator[,] my husband found Frank 

O-T sitting in a lobby [and] collaborating with others over [the] phone to trap my husband in a 

crime.‖ (Compl., ¶ 65). Again, Plaintiffs mention nothing about their status in a protected class, 

and the circumstances lead to the inference that the adverse employment action—assuming 

arguendo that there was one—resulted from the alleged conspiracy engaged in by the 

Conspiratorial Defendants and Olsen-Tank, not discrimination. 

For these reasons, Plaintiffs have failed to adequately allege a prima facie case of 

employment discrimination, and dismissal of these claims is proper at the pleading stage. See, 

e.g., Sangi v. Warren Hosp., No. 10-4571, 2011 U.S. Dist. LEXIS 117463 (D.N.J. Oct. 11, 

2011). As explained above, not permitting an amended pleading does not weigh against the 

interests of justice in this case. See supra, Part III.b.

d. 42 U.S.C. § 1981

Plaintiffs have also raised claims under 42 U.S.C. § 1981 against the Defendants in this 

case. To establish a claim for relief under 42 U.S.C. § 1981, a plaintiff must establish (1) that 

Plaintiffs are a member of a racially cognizable group; (2) an intent to discriminate on the basis 

of race by the defendant; and (3) the discrimination related to one of the activities enumerated in 

the statute. Estate of Oliva ex rel. McHugh v. New Jersey, 604 F.3d 788, 797–798 (3d Cir. 2010)

(quoting Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 569 (3d Cir. 2002)). The same 

McDonnell-Douglas burden shifting analysis applied to Title VII claims applies to § 1981 claims 

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as well. Coleman v. Blockbuster, Inc., 352 F. App‘x 676, 680 (3d Cir. 2009). Plaintiffs § 1981 

claim is premised on an alleged employment contract between A. Shah and the Moving 

Defendants, as well as CMC. ―The aim of the prima facie test [when premised on an 

employment contract] is to discern  ̳whether the employer is treating some people less favorably 

than others because of their race, color, religion, sex, or national origin.‘‖ Id. (quoting Pivirotto 

v. Innovative Sys., Inc., 191 F.3d 344, 352 (3d Cir. 1999)). As explained above, Plaintiffs have 

failed to adequately plead a prima facie case of discrimination against any of the Defendants. 

See supra Part III.c. Therefore, the 42 U.S.C. § 1981 claims against all of the above-named 

Defendants are dismissed. 

e. Claims Against CM Consoritum

After dismissing all of the claims above, the only claims remaining from Plaintiffs‘ 

Complaint are those alleged against CMC. At this time, the Court will dismiss sua sponte all 

claims against CMC. 

When a plaintiff proceeds in forma pauperis, a district court ―shall dismiss the case at any 

time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a 

claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is 

immune from such relief.‖ 28 U.S.C. § 1915(e)(2)(B). 

Dismissal of the claims against CMC is proper in this case because the Court has decided 

in its Opinion here today that Plaintiffs have not alleged a valid prima facie claim under any of 

the federal or state employment-discrimination statutes. This ruling applies with equal force to 

the claims against CMC as it does to Olsen-Tank. Therefore, all employment-related claims 

against CMC are dismissed for the reasons stated above. Additionally, the Court in its Opinion 

of September 16, 2011 [78] rejected all of the Plaintiffs‘ other claims arising under 42 U.S.C. §§ 

1983, 1985, and 1986, as well as any claim arising directly under the United States Constitution. 

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The reasoning of that opinion applies with equal force to the claims against CMC. As such, the 

non-employment-discrimination claims against CMC are also dismissed. 

IV. CONCLUSION

For the reasons stated above, and for good cause shown, the Defendants separate motions 

are granted and all remaining claims raised by the Plaintiffs are dismissed with prejudice. The 

Defendants‘ other arguments need not be discussed. An appropriate order will follow.

/s/ Anne E. Thompson

ANNE E. THOMPSON, U.S.D.J.

Dated: October 28, 2011

Case 3:11-cv-00419-AET-TJB Document 89 Filed 10/31/11 Page 15 of 15 PageID: 1051