ABOUDEKIKA v. DELAWARE RIVER AND BAY AUTHORITY et al

Filing 21

MEMORANDUM ORDER that Defendant's 6 MOTION to Dismiss the Complaint or in the Alternative for Summary Judgment is denied with respect to Count 5 and granted with respect to Counts 6 and 7. Signed by Judge Renee Marie Bumb on 10/25/2011. (TH, )

NOT FOR PUBLICATION

[Dkt. No. 6, 11]

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

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Ahmed Mohamed Aboudekika,
Plaintiff,
v.
Delaware River and Bay
Authority, James Gillespie et
al.,
Defendants.

Civil No. 10-5830

MEMORANDUM ORDER

Appearances:
Joseph C. Grassi, Esquire
James E. Moore, Esquire
Barry, Corrado, Grassi & Gibson, P.C.
2700 Pacific Avenue
Wildwood, NJ 08260
Attorneys for Plaintiff
William M. Tambussi, Esquire
William F. Cook, Esquire
Eric D. Milavsky, Esquire
Brown & Connery LLP
360 Haddon Avenue
Westmont, NJ 08108
Attorneys for Defendants

Bumb, United States District Judge.

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Plaintiff Ahmed Mohamed Aboudekika (“Plaintiff”) is a former
employee of Defendant Delaware River Business Authority (“DRBA”).
Defendant James Gillespie (“Gillespie”) is his former supervisor
at the DRBA.

Plaintiff’s Amended Complaint asserts seven causes

of action against Defendants.

Defendants previously moved to

dismiss the case and this Court granted the motion, in part, and
denied it, in part, with the Court dismissing Counts 1, 2, and 4,
allowing Count 3 to go forward, and ordering supplemental
briefing on whether Counts 5 through 7 could survive based on a
theory of implied contract.
complete.

That supplemental briefing is now

For the reasons that follow, Counts 5 may proceed and

Counts 6 and 7 are dismissed.
I.

Background
According to the Amended Complaint, Plaintiff was hired by

DRBA in July 2009.

Plaintiff alleges that, shortly after

beginning employment, he was subjected to discriminatory
treatment by his co-workers.

Plaintiff claims that he reported

the discriminatory treatment to Gillespie, that Gillespie failed
to investigate the improper treatment, and that, in retaliation
for his complaint, Plaintiff was terminated on October 9, 2009.
Plaintiff claims that, at the time of his termination,

Gillespie

orally informed him that he was “more than welcome” to return to

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the DRBA the following year.1

Despite this alleged assurance,

DRBA did not rehire Plaintiff when he reapplied for the same
position in 2010.
II.

Analysis
Counts 5 through 7 allege: a claim under 42 U.S.C. § 1981

for intentional interference with contract by Gillespie in his
individual capacity (Count 5), breach of contract by all
Defendants (Count 6), and breach of the covenant of good faith
and fair dealing by all Defendants (Count 7).
A.

Count 5

Plaintiff has not alleged that Gillespie had any involvement
in DRBA’s decision not to rehire Plaintiff. Therefore, this Court
interprets Count 5 as alleging violations under section 1981
arising out of DRBA’s alleged retaliatory termination of
Plaintiff and predicated on Gillespie’s involvement in

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In the supplemental briefing, Plaintiff claims, for the
first time, that in August 2009, he passed on a full-time
permanent position at a Florida firm, in reliance on an oral
assurance from Defendant Gillespie that he would have fulltime, permanent employment with DRBA. Plaintiff also claims
that, in order to be hired initially, he was instructed to
secure a seaman’s license, that he in fact obtained the
license, and that he incurred $3,000 in expenses to do so.
The Court will not consider these new allegations, raised
for the first time in opposition to the Defendants’ motion
to dismiss.
Pa. ex rel. Zimmerman v. PepsiCo, 836 F.2d
173, 181 (3d Cir. 1988)(“It is axiomatic that the complaint
may not be amended by the briefs in opposition to a motion
to dismiss.”).
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Plaintiff’s termination: namely his alleged failure to
investigate Plaintiff’s alleged discriminatory treatment and role
in the termination of Plaintiff.

Defendants contend that

Plaintiff’s 1981 claim should be dismissed for three reasons.
First, Defendants argue that Plaintiff’s at-will employee
status precludes his claim.

Defendants cites no authority for

this proposition and this Court joins with the Second, Fourth,
Fifth, Seventh, Eighth, and Tenth Circuits, as well as a District
Court in this Circuit, in rejecting it

United Steel, Paper and

Forest, Rubber Mfg., Energy, Allied Indus.and Serv. Workers Int’l
Union v. N.L.R.B., 544 F.3d 841, 861 (7th Cir. 2008); Turner v.
Arkansas Ins. Dept., 297 F.3d 751, 756 (8th Cir. 2002); Hysten v.
Burlington Northern Santa Fe Ry. Co., 415 F. App’x 897, 911 (10th
Cir. 2011); McClease v. R.R. Donnelley & Sons Co., 226 F.Supp.2d
695, 700 (E.D.Pa.2002); See also, Pryor v. Nat’l Collegiate
Athletic Ass’n, 288 F.3d 548, 570 (3d Cir. 2002)(citing the
Fourth Circuit’s rule on this issue with approval).
Second, Defendants contend that Plaintiff’s Section 1981
claim must be dismissed because Section 1983 is the exclusive
mechanism to raise a Section 1981 claim.

McGovern v. City of

Philadelphia, 554 F.3d 114, 120-21 (3d Cir. 2009)(“In sum,
because Congress neither explicitly created a remedy against
state actors under § 1981(c), nor expressed its intent to
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overrule Jett, we hold that the express cause of action for
damages created by § 1983 constitutes the exclusive federal
remedy for violation of the rights guaranteed in § 1981 by state
governmental units.”)(quotation and citation omitted).

However,

while Plaintiff’s claim is denominated as one under section 1981,
Plaintiff alleges that it is brought “pursuant to 42 U.S.C.§
1983” (Am. Compl. ¶ 30).

The Court also notes that the

denomination of the count as one under section 1981, rather than
section 1983, may very well have been a simple typographical
error. The Court will therefore construe this Count as a proper
section 1983 claim for violation of rights secured under section
1981.

This interpretation is buttressed by the fact that, in the

initial motion to dismiss briefing, Plaintiff himself cites Jett
v. Dallas Independent School Dist., 491 U.S. 701 (1999), the case
Defendants claim compels the dismissal of this claim, and states
that “Plaintiff should be permitted to amend his complaint to
assert his § 1981 claims against defendant Gillespie individually
via 42 U.S.C. § 1983.” (emphasis added).
Third, Defendants argue that Gillespie lacked personal
involvement in the allegedly discriminatory treatment sufficient
to establish a section 1981 claim.

Individual defendants can be

held liable under section 1983, for conduct arising out of a
section 1981 claim, where the plaintiff demonstrates the
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defendants’ personal involvement through a demonstration of “some
affirmative link to causally connect the actor with the
discriminatory action.”

Whidbee v. Garzarelli Food Specialties,

Inc., 223 F.3d 62, 75 (2d Cir. 2000)(quotation and citation
omitted).

“A plaintiff may claim personal involvement by a

supervisor by alleging that: (1) the defendant participated
directly in the alleged constitutional violation, (2) the
defendant, after being informed of the violation through a report
or appeal, failed to remedy the wrong, (3) the defendant created
a policy or custom under which unconstitutional practices
occurred, or allowed the continuance of such a policy or custom,
(4) the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts, or (5) the
defendant exhibited deliberate indifference to the rights of
[plaintiff] by failing to act on information indicating that
unconstitutional acts were occurring.”

Ritterband v, Hempstead

Union Free School Dist., No. 06-CV-6628, 2008 WL 3887605, at *5
(E.D.N.Y. Aug. 20, 2008).
Plaintiff’s allegations that Gillespie was informed of, but
failed to investigate, the alleged discriminatory treatment, and
subsequently personally terminated Plaintiff, sufficiently
demonstrate Gillespie’s personal involvement, at the motion to
dismiss stage, to satisfy the affirmative link requirement.
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Hawkins v. Cty of Oneida, N.Y., 497 F. Supp. 2d 362, 377
(N.D.N.Y. 2007)(evidence that supervisor had failed to conduct an
investigation in earnest was sufficient to survive summary
judgment in section 1981 hostile work environment claim);
Patterson v. Cty of Oneida, N.Y., 375 F.3d 206, 229 (2d Cir.
2004)(“Personal involvement, within the meaning of this concept,
includes not only direct participation in the alleged violation
but also gross negligence in the supervision of subordinates who
committed the wrongful acts and failure to take action upon
receiving information that constitutional violations are
occurring.”); Smith v. Town of Hempstead Dept. of Sanitation
Sanitrary Dist. No.2, No. 08-cv-3546, 2011 WL 2837504, at *10
(E.D.N.Y. July 19, 2011).

Plaintiff has therefore sufficiently

alleged a section 1981 claim against Gillespie.
B.

Counts 6 and 7

Counts 6 and 7 claim breach of an implied contract based on
Gillespie’s alleged statement to Plaintiff that he was “more than
welcome” to return.

In determining the substantive law that

applies to these claims, the Court applies the choice-of-law
rules of New Jersey - the forum state.

Spence-Parker v. Delaware

River & Bay Auth., 616 F. Supp. 2d 509, 523 (D.N.J. 2009).

Under

those rules, the Court must first assess whether there is any

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conflict between the two potential bodies of law applicable here
- New Jersey and Delaware.

Id.

There is no conflict between New Jersey and Delaware law.
Under both state’s law, Plaintiff has failed to state a viable
claim.

Under New Jersey law, absent allegations of detrimental

reliance, Gillespie’s alleged oral assurance - that Plaintiff was
“more than welcome” to return - at best constitutes an offer of
at-will employment that the DRBA was “free to rescind . . . at
will.”

Martin v. Port Auth. Transit Corp., No. 09-cv-3165, 2010

WL 1257730, at *5 (D.N.J. Mar. 25, 2010)(applying New Jersey law
and dismissing breach of contract and breach of good faith and
fair dealing claims on this ground); Peck v. Imedia, Inc., 293
N.J.Super. 151, 167 (N.J.Super.A.D. 1996)(“There is merit to the
view that it would be absurd to require an employer to actually
employ the applicant for one hour or one day so that the [atwill] employee could then be discharged”) (citation and quotation
omitted).
E.E.O.C. v. Avecia, Inc., 151 F.

Delaware law is in accord.

App’x 162, 164 (3d Cir. 2005)(“The general rule in Delaware is
that employees are employed ‘at will’ and may be dismissed at any
time without cause.”);

Ulmer v. Home Depot, Inc., 471 F. Supp.

2d 474, 476-77 (D.Del. 2007)(listing four exceptions to heavy
presumption of at-will employment that can allow a claim of
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breach of the covenant of good faith and fair dealing to go
forward, none of which are applicable here); Brooks v. Fiore, No.
00-803, 2001 WL 1218448, at *6 (D.Del. Oct. 11, 2001)(“The
defendants also argue in response that, if accepting new
employment alone could support a claim for promissory estoppel,
the at-will doctrine would be effectively abolished. The court
finds the defendants' argument to be persuasive.”)(applying
Delaware law).

Accordingly, Counts 6 and 7 of Plaintiff’s

Amended Complaint are dismissed without prejudice.
III. Conclusion
For the foregoing reasons, Defendants’ motion to dismiss is
denied with respect to Count 5 and granted with respect to Counts
6 and 7.

Dated: October 25, 2011

s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

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