IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

REBECCA SPENCE,

 Plaintiff,

v.

HONORABLE RAY LAHOOD, et al.,

 Defendants.

HON. JEROME B. SIMANDLE

Civil No. 11-3972 (JBS/AMD)

OPINION

APPEARANCES:

Hyder A. Naqvi, Esq.

AHMED NAQVI RODRIGUEZ LLP

22 Cortland Street, 16th Floor

New York, NY 10007

Attorney for Plaintiff 

Paul J. Fishman

United States Attorney

By: Irene E. Dowdy

Assistant United States Attorney 

OFFICE OF THE UNITED STATES ATTORNEY

401 Market Street, 4th Floor

P.O. Box 2098

Camden, NJ 08101

Attorneys for Defendants

SIMANDLE, Chief Judge:

I. INTRODUCTION

 Plaintiff Rebecca Spence alleges that she was terminated

from her job at the Federal Aviation Administration (“FAA”)

because of discrimination on the basis of religion, race and

national origin. She brings this action against the FAA, the

United States Department of Transportation (“DOT”), and U.S.

Secretary of Transportation Ray LaHood. The matter before the

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Court is Defendants’ motion to dismiss certain claims and certain

parties from this action. [Docket Item 14.]

Defendants move to dismiss all counts against the FAA and

the DOT, leaving Ray LaHood as the sole Defendant, because the

only proper defendant in a federal employment discrimination

action is the head of the employing agency. [Def. Mot. Br. at 6-

7; see 42 U.S.C. § 2000c-16(c) (“the head of the department,

agency, or unit, as appropriate, shall be the defendant”).]

Defendants also move to dismiss all claims under the Civil Rights

Act of 1866, 42 U.S.C. § 1981, and the New Jersey Law Against

Discrimination (“LAD”), N.J. Stat. Ann. § 10:5-1, et seq.,

because Title VII of the Civil Rights Act of 1964 provides the 1

exclusive remedy for claims of class-based discrimination and

retaliation in federal employment. [Id. at 5-6.] Plaintiff

concedes that these dismissals are proper. [Pl. Opp’n at 4.]

Accordingly, the Court will dismiss with prejudice all claims

against the FAA and the DOT and all claims under § 1981 and the

LAD. An accompanying Order will be entered.

The sole remaining issue is whether Plaintiff sufficiently

pleads a claim of a hostile work environment under Title VII case

law. Because Plaintiff fails to plead facts, accepted as true,

that form a plausible basis for relief, the motion to dismiss the

 The Act, as amended, is codified at 42 U.S.C. § 2000e, et 1

seq. 

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hostile work environment claim will be granted.

II. Background

Plaintiff Rebecca Spence, also known as Khadijah Spence, is

an African-American Muslim who wears a traditional head covering

in public at all times, in accordance with her religious

beliefs. [Compl. ¶ 7.] In 2009, Plaintiff applied for the 2

position of Management and Program Analyst with the FAA. [Id. ¶

13.] While filling out her job application online, she checked a

box indicating that she was eligible for a “derived veteran’s

disability preference,” because her spouse resigned from the

military due to an in-service injury. [Id. ¶ 14.] The hiring

preference automatically added 10 points to her overall

application score, which also took into account her skills and

experience, among other criteria. [Id. ¶ 16.] Plaintiff was

offered the job and began working at the William J. Hughes

Technical Center in Atlantic City, N.J., in October 2009. [Id. ¶¶

13.]

Plaintiff experienced no problems at work for approximately

eight months and received favorable work evaluations during that

time. [Id. ¶¶ 19-21.] However, in July 2010, Plaintiff’s

department reorganized and she was assigned a new supervisor,

Isidore Venetos, who is neither African American nor Muslim. [Id.

 These facts are drawn from the Complaint and are assumed 2

true for the purposes of this motion.

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¶ 21.] When Mr. Venetos met with his newly assigned staff, he

allegedly told Plaintiff, in substance, “I bought a Quran so I

can understand who you are.” [Id. ¶ 23.] Plaintiff believed that

he was referencing or and commenting on her head covering. [Id.]

Plaintiff asserts that Mr. Venetos “immediately began to question

and criticize plaintiff’s work performance and berate her for no

apparent reason . . . .” [Id. ¶ 24.] In addition, “several of

plaintiff’s co-workers made negative comments about her head

covering.” [Id.] One of Plaintiff’s co-workers, also a Muslim

woman who wore traditional head covering, told Plaintiff that

someone had told the co-worker, in substance, “If you take that 3

rag off your head, you will get somewhere in the FAA.” [Id. ¶

35.]

Around the same time, the Technical Center underwent an

audit and a subset of personnel records were examined,

purportedly at random, for compliance with federal statutory

hiring requirements and FAA regulations. [Id. ¶ 22.] Plaintiff’s

records were audited. [Id.] A few months later, Plaintiff was

told that an error had been discovered related to her derived

veteran’s disability preference, and she would have to provide

proof that “her husband was 100% disabled and separated from

federal employment due to an in-service related disability or

 The Complaint does not explain who said this to the 3

Plaintiff’s co-worker.

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unable to obtain federal employment due to that disability . . .

.” [Id. ¶¶ 25-26.] In fact, Plaintiff’s spouse was 30 percent

disabled, and Plaintiff contends that she indicated that fact on

her application. [Id. ¶¶ 15, 25-26.] Nonetheless, a personnel

manager told Plaintiff that she would be terminated before her

one-year probation period expired on October 26, 2010, because

she did not qualify for the derived veteran’s disability

preference. [Id. ¶ 29.] She was terminated on October 15, 2010,

“effectively den[ying] plaintiff all right of appeal with the

Merit System Protection Board.” [Id. ¶ 30.] Plaintiff was

retained as a temporary employee to “train her replacement.” [Id.

¶¶ 32-33.] The temporary position lasted through February 2,

2011, after which Plaintiff left the FAA. [Id. ¶¶ 32, 36.]

Upon termination from her permanent position, in October

2010, Plaintiff filed a Freedom of Information Act (“FOIA”)

request for records related to her personnel records audit. [Id.

¶ 34.] She alleges that John Wilkes, a “FOIA representative,”

told her, in substance, “You know they don’t like Muslims here.

You suffer the consequences of the choices that you make. You

choose to come in here dressed like that.” [Id.]

Plaintiff filed an Equal Employment Opportunity complaint of

discrimination with the U.S. DOT Departmental Office of Civil

Rights, and the agency dismissed her claim on April 5, 2011. [Id.

¶ 6.] Plaintiff then filed the present action, alleging six

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counts: discrimination on the basis of race, national origin and 4

religion under Title VII [Id. ¶¶ 46-54]; retaliation in violation

of Title VII [Id. ¶¶ 55-57]; retaliation in violation of the 42

U.S.C. § 1981 [Id. ¶¶ 40-45]; and racial and religious

discrimination and retaliation under the LAD. [Id. ¶¶ 58-60.]

III. Analysis

A. Jurisdiction

The Court has jurisdiction over this action pursuant to its

28 U.S.C. § 1331 federal question jurisdiction and its 28 U.S.C.

¶ 1343(a)(4) civil rights jurisdiction. The Court has

supplemental jurisdiction over the LAD claims pursuant to 28

U.S.C. § 1367.

B. Standard of Review

In reviewing a complaint on a motion to dismiss, the Court

must “accept all factual allegations as true, construe the

complaint in the light most favorable to the plaintiff, and

determine whether, under any reasonable reading of the complaint,

the plaintiff may be entitled to relief.” Fleisher v. Standard

Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012). The complaint must

contain “sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks

 The Court cannot find in the Complaint an assertion of 4

Plaintiff’s national origin. Defendants cannot either. [Def. Mot.

Br. at 1 (“national origin (not stated)”).]

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omitted). “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Id. Allegations that are no more than legal

conclusions are not entitled to the assumption of truth. Bistrian

v. Levi, 696 F.3d 352, 365 (3d Cir. 2012). To determine if a

complaint meets the pleading standard, the Court must strip away

conclusory statements and “look for well-pled factual

allegations, assume their veracity, and then determine whether

they plausibly give rise to an entitlement to relief.” Id.

(internal quotation marks omitted).

C. Hostile work environment claim under Title VII

To the extent that Plaintiff brings a hostile work

environment claim in her Complaint, Defendants argue that the

claim should be dismissed for failure to state a claim. [Def.

Mot. Br. at 7.] Defendants note that Plaintiff does not use the

words “hostile work environment,” or expressly address the

elements of a hostile work environment claim in the Complaint.

[Id.] Rather, Plaintiff brings separate, general claims for

“racial discrimination,” “national origin discrimination” and

“religious discrimination” under Title VII. [See Compl. ¶¶ 46-

54.] Defendants, “for the sake of completeness,” argue that

Plaintiff fails to state a hostile work environment claim. [Def.

Mot. Br. at 7.] If the factual content in the complaint is

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sufficient to state a claim for relief that is plausible, the

motion to dismiss the hostile work environment claim will be

denied. 

To establish a hostile working environment claim against an

employer, a plaintiff must prove: (1) the employee suffered

intentional discrimination on the basis of race, national origin

or religion, (2) the discrimination was pervasive and regular,

(3) the discrimination detrimentally affected the plaintiff, (4)

the discrimination would detrimentally affect a reasonable person

who belonged to the same protected class, and (5) the existence

of respondeat superior liability. Huston v. Procter & Gamble

Paper Prods. Corp., 568 F.3d 100, 104 (3d Cir. 2009). The “sine

qua non of a hostile work environment claim is a ‘workplace . . .

permeated with discriminatory intimidation, ridicule, and insult,

that is sufficiently severe or pervasive to alter the conditions

of the victim’s employment and create an abusive working

environment[.]’” McKinnon v. Gonzales, 642 F. Supp. 2d 410, 421

(D.N.J. 2009) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 116 (2002)). The conduct “must be extreme to amount to

a change in the terms and conditions of employment.” Feeney v.

Jeffries & Co., Inc., No. 09-2708, 2010 WL 2629065, at *5 (D.N.J.

June 28, 2010) (quoting Faragher v. City of Boca Raton, 524 U.S.

775, 788 (1998)). Courts must determine whether an environment is

sufficiently hostile or abusive by “‘looking at all the

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circumstances,’ including the ‘frequency of the discriminatory

conduct; its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee’s work performance.’”

Faragher, 524 U.S. at 787-88 (quoting Harris v. Forklift Systems,

Inc., 510 U.S. 17, 23 (1993)). The Supreme Court has stated

repeatedly that Title VII is not a “general civility code” and

that “ordinary tribulations of the workplace, such as the

sporadic use of abusive language, gender-related jokes, and

occasional teasing” do not give rise to liability under Title

VII. Id. at 788.

Defendants argue that Plaintiff does not allege facts

sufficient to address any of the elements of a hostile work

environment claim. [R. Br. at 3.] Defendants focus in particular

on the second element and argue that the conduct alleged does not

“begin to approximate the level of pervasive, discriminatory

hostility necessary to ground a hostile work environment claim.”

[Def. Mot. Br. at 9 (quoting McKinnon, 642 F. Supp. 2d at 423).]

The conduct that appears to form the basis of Plaintiff’s

hostile environment claim may be summarized succinctly. First,

Plaintiff’s supervisor told her “I bought a Quran so I can

understand who you are” and began to criticize her work and 5

 It is not clear that such a remark is offensive; the 5

supervisor said nothing derogatory about Plaintiff or about the

Quran. An effort to better understand an employee’s religious

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“berate her for no apparent reason . . . .” [Compl. ¶¶ 23-24.]

Second, “several of plaintiff’s co-workers” made “negative

comments” about her traditional head covering. [Id.] Third,

someone told one of Plaintiff’s Muslim co-workers that “If you

take that rag off your head, you will get somewhere in the FAA.”

[Id. ¶ 35.] Finally, after her termination, Plaintiff was told by

John Wilkes, a FOIA representative, that “You know they don’t

like Muslims here. You suffer the consequences of the choices

that you make. You choose to come in here dressed like that.”

[Id. ¶ 34.]

The Court finds that Plaintiff fails to state a prima facie

case for a hostile work environment claim because the factual

content of the Complaint does not suggest that the discrimination

was pervasive and regular, or that it was sufficiently severe,

extreme or abusive, or that it unreasonably interfered with her

work performance. The statements by Plaintiff’s supervisor, coworkers and FOIA representative were offensive, insensitive and,

no doubt, hurtful to Plaintiff. But the language of those

comments was not particularly severe, and a handful of offensive

remarks directed at Plaintiff over the year that she was employed

by the FAA does not indicate that the discrimination was

pervasive or regular. Plaintiff does not allege that any

practices by consulting the teachings of that religion does not

conceivably suggest hostility as much as tolerance.

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individual made more than one comment to her about her religion

or head covering. Such commentary in the workplace does not rise

to the severity, regularity or pervasiveness required by Title

VII.

An analysis of the Harris factors, quoted in Faragher, 524

U.S. at 787-88, leads to the conclusion that the environment as

described in the present Complaint was not sufficiently hostile

or abusive to sustain a claim under Title VII. On the issue of

frequency, Plaintiff has identified two individuals, her

supervisor and John Wilkes, the FOIA representative, who each

directed one allegedly discriminatory comment at her, along with

“several” co-workers who made “negative comments” about her head

covering. This does not suggest that discriminatory comments were

frequent. Plaintiff does allege that Mr. Venetos “berate[d]” her

for her work performance, but Plaintiff provides no facts about

his criticism, and increased scrutiny or reprimand by a

supervisor, under most circumstances, does not rise to the level

of a “materially adverse action” for purposes of Title VII.

McKinnon, 642 F. Supp. 2d at 426. In addition, Plaintiff does not

allege that Mr. Venetos’s criticism was frequent, pervasive or

severe, and there is no factual basis alleged in the present

Complaint from which the Court may conclude that the comments

were so severe that they amounted to a “change in the terms and

conditions of employment.” Faragher, 524 U.S. at 788.

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The Complaint contains no facts from which the Court may

infer that the discrimination unreasonably interfered with her

work performance. To the contrary, Plaintiff suggests that her

“performance was exemplary up to the time Mr. Venetos was

assigned as her manager and her performance continued to be

exemplary.” [Compl. ¶ 24.] There are no allegations that

Plaintiff was given less desirable assignments or that her work

load, schedule or routine was altered in any way. Plaintiff does

not assert that the alleged discrimination affected her ability

to do her job. Plaintiff does not allege that she was physically

threatened. The Court takes seriously allegations of

discrimination, and Plaintiff may yet prove that she was the

victim of illegal discrimination and that her termination

violated Title VII. But even if that turns out to be the case, it

does not necessarily follow that the work environment in which

Plaintiff operated, in light of all the circumstances, was

hostile to the point of being actionable as a self-standing

violation of Title VII. Accepting all facts pled as true, and

giving Plaintiff the benefit of all reasonable inferences, the

Court nonetheless finds that Plaintiff has not alleged factual

content sufficient to provide a plausible basis for relief.

Defendants’ motion to dismiss any hostile work environment claim

will be granted.

Plaintiff, even now, does not argue that the factual content

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in her Complaint supports a prima facie case of a hostile work

environment claim under the governing pleading standards

established in Iqbal and Bell Atl. Corp. v. Twombly, 550 U.S. 544

(2007). Rather, Plaintiff asserts that her claim should be

governed by “the extremely lenient notice pleading requirements

of the Federal Rules” [Pl. Opp’n at 11], but Plaintiff makes no

attempt to explain why the heightened pleading standard of Iqbal

is inapplicable here. See Fowler v. UPMC Shadyside, 578 F.3d 203,

210 (3d Cir. 2009) (observing that, after Iqbal, “pleading

standards have seemingly shifted from simple notice pleading to a

more heightened form of pleading, requiring a plaintiff to plead

more than the possibility of relief to survive a motion to

dismiss”). Plaintiff relies primarily on a Supreme Court case

from 1957 to argue that the pleading requirement for 6

discrimination and civil rights claims is notice pleading. [Id.

at 8.] While it is true, as Plaintiff states, that complaints

need not recite each element of a prima facie case of

discrimination, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510

(2002), and that the purpose of pleadings is to give notice of

the claim being made, see, e.g., Cordero v. AFI Food Serv., LLC,

No. 10-5598, 2012 WL 5989424, at *4 (D.N.J. Nov. 29, 2012),

notice pleading is no longer sufficient to survive a motion to

 Conley v. Gibson, 344 U.S. 41, 47-48 (1957). The Conley 6

standard was displaced in 2007 in Twombly, 550 U.S. at 561-63.

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dismiss. See Iqbal, 556 U.S. at 680 (distinguishing a conceivable

or possible claim from one that is plausible). Merely alleging

discriminatory conduct cannot save Plaintiff’s claim for a

hostile work environment. 

Plaintiff further argues, without citations to any

authority, that it is premature to determine whether the alleged

discrimination was sufficiently severe or pervasive, because an

analysis of the Harris factors “cannot properly be measured

without formal discovery.” [Pl. Opp’n at 10.] This simply is not

the case. See, e.g., Manley v. Mem. Hosp. of Salem, No. 11-2117,

2012 WL 32926, at *2 (D.N.J. Jan. 5, 2012) (dismissing a hostile

work environment claim after reciting the totality of the

circumstances requirement); Feeney, 2010 WL 2629065, at *5

(dismissing a hostile work environment claim after conducting a

totality of the circumstances analysis); Waiters v. Hudson Cnty.

Corr. Cntr., No. 07-421, 2010 WL 1838468, at *4-*5 (D.N.J. May 5,

2010) (same). A plaintiff does not need, nor is she entitled to,

discovery before she must plead sufficiently a claim for a

hostile work environment, which necessarily depends on conduct

and communications observed and received by the plaintiff in the

first place. The Federal Rules of Civil Procedure clearly

anticipate that a claim must first be pled by stating grounds

which make such a claim plausible before discovery is due from

the defendant; nowhere is this principle more valid than in the

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present circumstance, where Plaintiff is in the best position to

know what, if anything, was said or done to her to render her

workplace environment as hostile due to prohibited

discrimination.

The result here is consistent with other Title VII hostile

work environment cases in this District that were dismissed,

despite allegations of similar or, in some cases, more extreme

conduct. In Manley, the plaintiff, an African American female,

pled without much detail that her employer told her they would

“get rid of her” because of her race, assigned her to less

favorable work shifts and assignments, isolated her from other

workers, and used racial slurs. Manley, 2012 WL 32926, at *1. The

court nonetheless dismissed the hostile work environment claim

for failing to show the discrimination was pervasive and regular.

Id. at *2. In Feeney, the plaintiff’s supervisor “continually

harassed, verbally abused, and discriminated against” the

plaintiff, told him he was “lucky to have this job because of his

Irish ancestry,” and called him a derogatory name related to his

ancestry during a meeting. Feeney, 2010 WL 2629065, at *2. The

court dismissed the hostile work environment claim because the

stray remarks were not repeated and plaintiff pled no facts as to

the frequency with which the supervisor engaged in abusive

conduct. Id. at *5. The conduct in the present case is no more

severe or pervasive than in Manley or Feeney, and the Court sees

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no reason why the hostile work environment claim similarly should

not be dismissed.

D. Amending the Complaint

Plaintiff has not moved for leave to amend the Complaint,

but requests in her opposition brief to “be given the opportunity

to amend her complaint accordingly.” [Pl. Opp’n at 11.] Because

the Court cannot determine that amendment to this claim would be

futile, the Court will dismiss the hostile work environment claim

without prejudice. Plaintiff will have fourteen (14) days from

the date of entry of this Opinion and Order to file an Amended

Complaint to attempt to cure these deficiencies. Phillips v.

Cnty. of Allegheny, 515 F.3d 224, 245-46 (3d Cir. 2008). The

Court grants Plaintiff leave to amend only the claim for hostile

work environment under Title VII.7

IV. Conclusion

The Court will grant Defendant’s motion to dismiss all

claims against the FAA and the DOT and to dismiss claims under §

1981 and the New Jersey LAD with prejudice. The Court will

dismiss without prejudice the claim for hostile work environment

under Title VII, and permit Plaintiff to file an Amended

Complaint, amending only that claim to address deficiencies noted

 Furthermore, the deadlines for completing discovery and 7

for filing dispositive motions set forth in the Scheduling Order

of September 28, 2012 [Docket Item 25] continue to govern this

case.

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herein, within fourteen days of the date of entry of this Opinion

and Order. An accompanying Order will be entered.

 January 28, 2013 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE

Chief U.S. District Judge

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