MCGOVERN v. SOUTHWEST AIRLINES et al

Filing 11

MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 1/8/2013. (TH, )

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

BLAISE A. MCGOVERN,
Plaintiff,

Civil Action
No. 12-3579 (JBS/KMW)

v.
SOUTHWEST AIRLINES, et al.,

MEMORANDUM OPINION

Defendants.

SIMANDLE, Chief Judge:
This matter comes before the Court on Defendant Southwest
Airlines’ (“Southwest”) Motion to Dismiss [Docket Item 4], which
will be granted. The sole issue before the Court is whether the
New Jersey Law Against Discrimination (“NJLAD”) applies against
Defendant. The NJLAD does not apply because Plaintiff was
exclusively employed in Pennsylvania, not New Jersey, and,
therefore, Plaintiff’s claims must be dismissed. The Court finds
as follows:
1.

Plaintiff Blaise A. McGovern commenced this action by

filing a Complaint [Docket Item 1, Ex. A] in the Superior Court
of New Jersey, Law Division, Camden County. Defendant Southwest
removed the action to this Court. The Court has jurisdiction
pursuant to 28 U.S.C. § 1332(a) because Plaintiff is a New Jersey
resident, Defendant Southwest is incorporated in and has its
principal place of business in Texas, and Plaintiff has alleged

1

over $75,000 in damages.
2.

Plaintiff began working for Defendant Southwest on

April 27, 2011 as a ramp supervisor at the Philadelphia
International Airport.1 (Compl. ¶¶ 4-5.) Plaintiff alleges that
he was subjected to abusive, harassing, and homophobic conduct
and comments. (Compl. ¶ 6.) Plaintiff reported the harassment to
his supervisors and, as a result, he began to receive threatening
and harassing phone calls and text messages. (Compl. ¶ 13.)
Plaintiff was terminated on August 9, 2011, after making a
written complaint regarding the harassment. (Compl. ¶ 15.)
Plaintiff makes claims under the New Jersey Law Against
Discrimination (“NJLAD”) against Southwest for harassment,
hostile work environment, and unlawful termination. Plaintiff
also sued John Doe and ABC Entity Defendants to reserve the right
to add more named Defendants.
3.

Defendant Southwest filed a Motion to Dismiss [Docket

Item 4] because Plaintiff’s employment was exclusively in
Philadelphia and, therefore, the NJLAD does not apply.
4.

Plaintiff filed Opposition [Docket Item 8], arguing

that the harassment extended beyond the place of employment,
i.e., Pennsylvania, and was felt in Plaintiff’s home state, i.e.,
New Jersey, because he received harassing phone calls, threats,

1

As this action is before the Court on a motion to dismiss,
the Court accepts as true all factual allegations in the
Complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
2

and text messages at his home. Plaintiff argues that the facts of
this case merit a choice of law analysis that results in the
application of New Jersey’s law because New Jersey has the most
significant relationship to the facts of the case and Plaintiff
has an interest and expectation in being protected from
harassment while in his home in New Jersey.
5.

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) may

be granted only if, accepting the well-pleaded allegations in the
complaint as true and viewing them in light most favorable to the
plaintiff, the court concludes that the plaintiff fails to set
forth a claim upon which relief may be granted. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007).
6.

New Jersey courts have consistently applied the law of

the state of employment to claims of workplace discrimination
and, therefore, only apply the NJLAD if the claimant was employed
in New Jersey. See, e.g., Buccilli v. Timby, Brown & Timby, 283
N.J. Super 6, 10-11 (App. Div. 1995) (a New Jersey resident,
employed in Pennsylvania, could not assert a claim under the
NJLAD against a law firm even though it had offices in New
Jersey); Satz v. Taipina, 2003 WL 22207205, at *18 (D.N.J. 2003)
(plaintiff could not assert a claim under the NJLAD where
defendants had offices in New Jersey, but plaintiff worked
exclusively in Pennsylvania and Delaware); Brunner v. Allied
Signal, Inc., 198 F.R.D. 612, 613-14 (D.N.J. 2001) (the NJLAD

3

does not apply to claims brought by a New Jersey resident against
a New Jersey company when claimant was employed exclusively in
Pennsylvania).
7.

The rationale behind the application of the law of the

state of employment is to protect employers from the potential
unfairness of having to comply with several different legal
regimes merely because they may have employees that reside in
different states. See Buccilli at 11 (noting that “making the
rights of each of several co-workers dependent on his or her
state of residence would be an entirely unreasonable result”). In
other words, “[l]ooking to the state of employment ensures that
the law in the jurisdiction with the strongest interest in the
outcome of the litigation controls.” Weinberg v. Interep Corp.,
CIV. 05-5458 (JBS), 2006 WL 1096908, *7 (D.N.J. Apr. 26, 2006).
8.

There are exceptions to the general rule: An out-of-

state defendant may be held liable under the NJLAD if New
Jersey's contacts to the factual scenario are sufficient. Bowers
v. Nat'l Collegiate Athletic Ass'n, 151 F. Supp. 2d 526, 531
(D.N.J. 2001). Cases that have applied the NJLAD to an out-ofstate employer have involved non-trivial employment
responsibilities in New Jersey. For example, in McDonnell v.
State of Illinois, 163 N.J. 298 (2000), the New Jersey Supreme
Court affirmed the Appellate Division’s holding that the NJLAD
applies to a New Jersey resident's employment claims against the

4

State of Illinois where the New Jersey resident worked in the
Illinois Department of Revenue’s New Jersey field office. The
McDonnell case involved full-time employment in New Jersey. In
Weinberg, the Court held that a Plaintiff who was employed in
Pennsylvania but conducted five percent of his sales in New
Jersey could not assert NJLAD claims because his New Jersey sales
were not a substantial fraction of his business and did not
“transform his place of employment from Pennsylvania to his
customers' locations in New Jersey.” Weinberg at *6. In Karykous
v. Sbarro, Inc., CIV. 06-2452 (AET), 2006 WL 2690287 (D.N.J.
Sept. 19, 2006), the District of New Jersey found that the
plaintiff had not established sufficient contacts with New Jersey
because “none of [plaintiff’s] duties were required to be
performed in New Jersey.” Id. at *3.
9.

Essentially, there are no cases applying the NJLAD to

out-of-state employers unless the Plaintiff has significant
employment responsibilities in New Jersey. In this case,
Plaintiff has not alleged that he had any employment
responsibilities in New Jersey. He argues that the NJLAD should
apply to his employer because he received harassing text messages
and phone calls while he was in New Jersey, but he has cited no
cases supporting an expansion of the NJLAD’s reach based upon the
location at which a plaintiff received discriminatory comments.
In addition, expanding the NJLAD’s reach based on the location

5

where a plaintiff received harassing messages would contravene
the policy articulated in Buccilli, namely to protect employers
from the potential unfairness of having to comply with several
different legal regimes merely because they may have employees
that reside in different states.
10.

Plaintiff has cited several non-employment cases that

do not support applying the NJLAD to these circumstances. The
bulk of Plaintiff’s opposition relies on Blakey v. Continental
Airlines, Inc., 751 A. 2d 538 (N.J. 2000), in which the New
Jersey Supreme Court held that personal jurisdiction may exist in
New Jersey over defendants who posted harassing comments on an
internet message board that the defendant sponsored. The Blakey
plaintiff was based in Newark, New Jersey. Blakey does not
support the application of the NJLAD to the facts of this case,
in which Plaintiff was not employed in New Jersey and in which
Defendant has not challenged personal jurisdiction.2 Plaintiff
argues that an employer is responsible for harassment that occurs
outside the workplace. The Blakey court noted that “harassment by
a supervisor that takes place outside of the workplace can be
actionable.” Blakey at 57. But the issue here is not whether the

2

The Court notes that Blakey was published in 2000, before
many of the cases that the Court cites in support of the
proposition that the NJLAD does not apply to out-of-state
employment. Satz was published in 2003, Brunner in 2001, Weinberg
in 2006, and Karykous in 2006.
6

harassing messages and phone calls are actionable; the issue is
whether they are actionable under the NJLAD. Plaintiff’s NJLAD
claims must be dismissed because the NJLAD does not apply to
Plaintiff’s employment in Pennsylvania.3
11.

Defendant Southwest’s Motion to Dismiss is granted.

Plaintiff’s claims against Southwest will be dismissed. If a
complaint is vulnerable to 12(b)(6) dismissal, a district court
must permit a curative amendment, unless an amendment would be
inequitable or futile. Phillips v. County of Allegheny, 515 F.3d
224, 236 (3d Cir. 2008). In this case, amendment would be futile
because Plaintiff acknowledged that his employment was based in
Philadelphia. Plaintiff’s claims are dismissed with prejudice.
12.

In addition, because Plaintiff has not identified any

John Doe or ABC Entity Defendants and no named Defendants remain
in the action, the Court will terminate this action.
13.

The accompanying Order will be entered.

January 8, 2013
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

3

Plaintiff conducts a lengthy choice-of-law analysis to
assert that New Jersey should supply the rule of decision. The
Court finds that a choice-of-law assessment is unnecessary
because, as explained above, there is no basis to assert New
Jersey law against Plaintiff’s employer when Plaintiff was
exclusively employed in Pennsylvania.
7