                                                      NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT


                               No. 10-1062


                          JACQUELYN N’JAI,
                                         Appellant

                                     v.

     MR. HOMER C. FLOYD; STEPHEN A. GLASSMAN; RAQUEL OTERODE
  YIENGST; ROBERT FLIPPING; MICHAEL HARDIMAN; MANUEL B. ZUNIGA,
       JR.; WILKINSBURG SCHOOL DISTRICT; PA HUMAN RELATIONS
  COMMISSION; HUMAN RELATIONS COMMISSION; EQUAL OPPORTUNITY
COMMISSION; PITTSBURGH BOARD OF PUBLIC EDUCATION; SUE GOODWIN;
    JOSEPH TINDAL; LYNN BLACK; ROBERT SCHNEIDER; SHAWN DAVIS;
 RANDY DAVIS; LAURA MANNELLA; CYNTHIA FLIGGER; DENIS WARHOLA;
     STATE 10-1062 DEFENDANTS; WILKINSBURG 10-1062 DEFENDANTS


              On Appeal from the United States District Court
                  for the Western District of Pennsylvania
                         (D.C. Civil No. 07-cv-1506)
               District Judge: Honorable Nora Barry Fischer


              Submitted Pursuant to Third Circuit LAR 34.1(a)
                               July 1, 2010

           Before: BARRY, AMBRO and COWEN, Circuit Judges

                            (filed: July 8, 2010)




                                 OPINION
PER CURIAM

       Jacquelyn B. N’Jai, proceeding pro se, appeals orders of the United States District

Court for the Western District of Pennsylvania dismissing her employment discrimination

complaint. We will affirm.

                                             I.

       In November 2007, N’Jai filed a complaint, which she later amended, alleging that

she was deprived “of her right to recover for deliberate and long-term discrimination from

1994-2006, thereby violating both federal and state law.” She set forth claims under 42

U.S.C. §§ 1981, 1983, 1985, 1986, and 1988; Title VII of the Civil Rights Act of 1964;

the Americans with Disabilities Act (“ADA”); the Age Discrimination in Employment

Act (“ADEA”); the Individuals with Disabilities Education Act (“IDEA”); the Freedom

of Information Act (“FOIA”); the Pennsylvania Whistleblower Law; and the

Pennsylvania Right to Know Act.1 N’Jai named as defendants two of her previous

employers, the Board of Public Education of the School District of Pittsburgh (the

“Pittsburgh Board”) and the Wilkinsburg School District (“Wilkinsburg”), several

Wilkinsburg employees (the “Wilkinsburg Individuals”), as well as Anthony Sanchez,

Esq. and the law firm of Andrews & Price (“the Attorney Defendants”), who had

represented the Pittsburgh Board and Wilkinsburg in various lawsuits brought by N’Jai.



   1
    The District Court also read N’Jai’s complaints as raising claims relating to the Fifth
and Sixth Amendments, as well as 42 U.S.C. §§ 1984 and 1987. We will not address
such claims, however, because N’Jai does not appear to pursue them on appeal.

                                             2
N’Jai also brought claims against the Pennsylvania Human Relations Commission and

several of its employees (the “Commonwealth Defendants”), the Equal Opportunity

Commission (“EEOC”), and Sue Goodwin. With the exception of the EEOC and

Goodwin, who were not timely served with copies of the complaint, the defendants filed

motions to dismiss. The District Court issued several opinions granting those motions.2

N’Jai timely appealed.

                                               II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291, and exercise plenary review

over the District Court’s grant of the defendants’ motions to dismiss pursuant to Federal

Rule of Civil Procedure 12(b)(6). See Phillips v. County of Allegheny, 515 F.3d 224, 230

(3d Cir. 2008). We accept as true all of the allegations contained in the complaints and

draw reasonable inferences in favor of the plaintiff. See Erickson v. Pardus, 551 U.S. 89,

93-94 (2007) (per curiam). To survive dismissal, a complaint must contain sufficient

factual matter, accepted as true, to “‘state a claim to relief that is plausible on its face’”.

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly,

550 U. S. 544, 570 (2007)). We may affirm the District Court on any basis supported by



   2
     Previously, the District Court had dismissed the action for failure to prosecute. We
vacated that Opinion and Judgment and remanded so the District Court could make
explicit findings regarding the factors enumerated in Poulis v. State Farm Fire & Casualty
Co., 747 F.2d 863, 868 (3d Cir. 1984). N’Jai v. Floyd, 296 Fed. App’x 266 (3d Cir.
2008). The District Court did so, concluding that punitive dismissal was appropriate.
Because we conclude that N’Jai’s claims are unpersuasive, we will not address whether
that dismissal was an abuse of discretion.

                                                3
the record. See Fairview Twp. v. EPA, 773 F.2d 517, 525 n.15 (3d Cir. 1985).

                                             III.

       After a thorough review of the record and the appellate briefs, we conclude that the

District Court properly dismissed N’Jai’s claims. At the outset, we note that the District

Court properly rejected N’Jai’s claims under 42 U.S.C. § 1988 and the IDEA. See Kay v.

Ehrler, 499 U.S. 432, 435 (1991) (recognizing that “a pro se litigant who is not a lawyer is

not entitled to attorney’s fees” under § 1988) (emphasis omitted); Florence County Sch.

Dist. Four v. Carter, 510 U.S. 7, 13 (1993) (stating that the “IDEA was intended to ensure

that children with disabilities receive an education that is both appropriate and free”). In

addition, none of the defendants who was properly served with the complaint is subject to

the Freedom of Information Act. See 5 U.S.C. § 552(f)(1) (defining “agency,” for

purposes of disclosure, as including “any executive department, military department,

Government corporation, Government controlled corporation, or other establishment in

the executive branch of the Government (including the Executive Office of the President),

or any independent regulatory agency”). As to those defendants who are subject to

Pennsylvania’s Right to Know Act, the Eleventh Amendment barred the District Court

from considering N’Jai’s claims. See Capital Cities Media, Inc. v. Chester, 797 F.2d

1164, 1176-77 (3d Cir. 1986). The Eleventh Amendment also provided immunity to the

Commonwealth Defendants, who were sued exclusively in their official capacities. See

Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144



                                              4
(1993); Will v. Michigan Dep’t of State Police, 491 U.S. 58, 70-71 (1989). We also agree

with the District Court that, to the extent that N’Jai alleged cognizable Whistleblower

Law claims based on her September 2005 discharge, those claims were time-barred. See

43 Pa. Cons. Stat. Ann. § 1424(a) (providing that a plaintiff alleging violation of the Law

must bring action within 180 days after the occurrence of the alleged violation).

       Furthermore, the Attorney Defendants are not liable under 42 U.S.C. §§ 1983,

1985, or 1986. See Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir.

1999) (holding that “[a]ttorneys performing their traditional functions will not be

considered state actors solely on the basis of their position as officers of the court”);

Heffernan v. Hunter, 189 F.3d 405, 413 (3d Cir. 1999) (holding that actions taken by an

attorney within the scope of the attorney-client relationship are not subject to a conspiracy

charge under § 1985); Rogin v. Bensalem Twp., 616 F.2d 680, 696 (3d Cir. 1980) (stating

that “transgressions of § 1986 by definition depend on a preexisting violation of § 1985”).

N’Jai’s claims against Wilkinsburg and the Wilkinsburg Individuals under §§ 1981, 1983,

1985, and 1986 are time-barred because they accrued, at the latest, in September 2005,

when she was terminated from her job.3 See McGovern v. City of Philadelphia, 554 F.3d

114, 120 (3d Cir. 2009) (holding “that ‘the express cause of action for damages created

by § 1983 constitutes the exclusive federal remedy for violation of the rights guaranteed




   3
    Although N’Jai’s pleadings reference events that occurred after September 2005, it
does not appear that any of those events form the basis for her claims.

                                               5
in § 1981 by state governmental units’” (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S.

701, 733 (1989))); Kost v. Kozakiewicz, 1 F.3d 176, 189-90 (3d Cir. 1993) (stating that

Pennsylvania’s two-year statute of limitations applies to § 1983 actions); Cito v.

Bridgewater Twp. Police Dept., 892 F.2d 23, 25 (3d Cir. 1989) (recognizing that claims

asserted under § 1986 are subject to a one year statute of limitations). Although N’Jai had

several opportunities to amend her complaint, we see no “discernible factual basis” for

her allegations that the Pittsburgh Board conspired to discriminate against her by

providing negative employment references. Capogrosso v. Supreme Ct. of N.J., 588 F.3d

180, 184 (3d Cir. 2009) (per curiam). As noted by the District Court, N’Jai’s claim was

based solely on Wilkinsburg’s failure to promote her after she listed the Pittsburgh Board

as a reference for her teaching experience. She did not assert any facts related to the

elements of a conspiracy claim. See Dique v. New Jersey State Police, 603 F.3d 181-89

(3d Cir.).

       The Wilkinsburg Individuals cannot be held liable under Title VII, the ADA, or

the ADEA. See Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1077 (3d

Cir. 1996) (en banc) (holding that individual employees are not liable under Title VII);

Koslow v. Pennsylvania, 302 F.3d 161, 178 (3d Cir. 2002) (noting that “there appears to

be no individual liability for damages under Title I of the ADA”); Hill v. Borough of

Kutztown, 455 F.3d 225, 246 n.29 (3d Cir. 2006) (stating that “the ADEA does not

provide for individual liability”). Finally, the District Court properly dismissed N’Jai’s



                                              6
Title VII, ADA, and ADEA claims against Wilkinsburg because her failure to diligently

seek a right-to-sue letter from the EEOC prejudiced Wilkinsburg’s ability to defend

against N’Jai’s claims. See Brzozowski v. Correctional Physician Services, Inc., 360

F.3d 173, 181 (3d Cir. 2004).

                                               IV.

         For the foregoing reasons, we will affirm the judgment of the District Court.4




   4
       N’Jai’s motion to file supplemental reply briefs is granted.

                                                7
