REGIS v. INTERNATIONAL PAPER COMPANY et al
Filing
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OPINION. Signed by Judge Joseph H. Rodriguez on 9/26/2013. (TH, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
________________________
CLEVELAND M. REGIS, IV,
:
:
Plaintiff,
:
Hon. Joseph H. Rodriguez
:
v.
:
Civil Action No. 12-7549
:
INTERNATIONAL PAPER CO., et al. :
:
OPINION
Defendants.
:
_________________________
:
Presently before the Court is Plaintiff Cleveland M. Regis, IV’s (“Regis”) motion
to remand and for attorneys’ fees. The Court has considered the written submissions of
the parties and for the reasons that follow, the motion is granted and the case will be
remanded to the Superior Court of New Jersey, Burlington County Vicinage. The Court
will not award fees.
I. Background
Regis is suing his former employer International Paper Company (“IPC”) and his
former supervisor Frederick R. Klawunn (“Klawunn”) for ancestry and race
discrimination in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:51, et. seq. and in violation of New Jersey public policy. IPC has an Attendance Point
Policy which assesses points to an employee for absences and lateness. See Compl. at
¶22. Bereavement leave is an excused absence that does not trigger the assessment of
points. Id. IPC may terminate employment if the total attendance point count exceeds
the policy limit of ten points. Regis took approved bereavement leave for the death of
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his biological grandfather, James Pullen. The approval for the bereavement leave was
rescinded after Regis could not prove his lineage and was assessed two points. As a
result, his attendance policy points totaled ten and one half points and he was
terminated.
Regis claims he was treated disparately because of his race and that the decision
of Defendants to retroactively rescind the approval of bereavement leave constitutes
ancestry discrimination because it denies fair bereavement to persons like Regis, who
have non-traditional family relationships. Id. at ¶36. Regis has no documentary proof
that James Pullen is his biological grandfather. By all official accounts, James Pullen is
Regis’ great-uncle, but the Complaint details a different relationship.
Regis’ grandmother, Evelyn Pullen, was married to Ottawa Pullen. Ottawa is
James Pullen’s brother. Evelyn and James had a “sordid affair.” Id. at ¶ 17 and 13. As a
result of the affair, Evelyn gave birth to Regis’ mother, Fran Pullen. Id. Even though
James is Fran’s biological father, Ottawa Pullen (Evelyn’s husband) is listed as the father
on Fran’s birth certificate. And because news of the affair did not please James’ living
children, neither Fran nor Regis were recognized as descendants in James’ obituary. Id.
at ¶17. All of the forgoing leave Regis without documentation that James Pullen was his
biological grandfather.
Klawunn initially granted Regis’ request for bereavement leave for November 22,
23, and 24 of 2010. Id. at ¶ 20. Regis claims that he would not have gone to James’
funeral if the request was denied. Id. at ¶34. Following his return from leave, Klawunn
called Regis into his office to discuss Regis’ absence from James Pullen’s obituary. Id. at
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¶ 24. Regis explained the relationship and was asked to produce documentation.1 Id. at
¶ 26. Although he was unable to produce documentation supporting his relationship to
James Pullen, Regis provided Klawunn with the telephone numbers of his mother and
aunt; both women would attest to the relationship. Id. at ¶30. The Defendants did not
investigate Regis’ claims and the bereavement leave was retroactively rescinded. Id. at ¶
31. Regis was suspended without pay and assessed two points, causing him to exceed
IPC’s limit. Regis was then terminated.
II. Procedural Posture
Regis filed suit in the New Jersey Superior Court on October 1, 2012. The
Complaint alleges only state law claims. IPC was served on October 25, 2012 and
Klawunn was served on November 10, 2010. The parties engaged in discovery practice
and depositions were noticed. See Schorr Cert., ¶ 7, Ex. B. The Notice of Removal was
filed on December 10, 2012 by Klawunn and IPC joined. Although there is no dispute
that Regis and Klawunn are both New Jersey citizens, jurisdiction is solely predicated
upon 28 U.S.C. § 1332. Defendants, in removing, allege that Klawunn was fraudulently
joined to the action to frustrate removal and that Klawunn’s citizenship must be
disregarded for jurisdiction purposes. Defendants further argue that no cause of action
exists against Klawunn individually under the NJLAD.
Plaintiff seeks remand because, as a non-diverse defendant, Klawunn had no
right to remove based upon diversity jurisdiction. Under Plaintiff’s argument, IPC
cannot remove because it was out of time and cannot join Klawunn’s improper removal.
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The IPC bereavement policy extends to immediate family only, which includes
grandparents. Id. at ¶21.
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Plaintiff also claims that Klawunn is liable under an “aiding and abetting” theory under
the NJLAD, N.J.S.A.10:5-12(e). For the reasons that follow, the Court finds that there is
a cognizable cause of action plead against Klawunn and that the matter must be
remanded for lack of diversity jurisdiction.
II. Standard of Review
Jurisdiction lies only if Defendant Klawunn is fraudulently joined to this action.
If Klawunn is not fraudulently joined, then diversity jurisdiction is lacking pursuant to
28 U.S.C. § 1332 and the case must be remanded to the New Jersey Superior Court,
Burlington County Vicinage.
Joinder is fraudulent if “there is no reasonable basis in fact or colorable ground
supporting the claim against the joined defendant, or no real intention in good faith to
prosecute the action against the defendant or seek a joint judgment.” Briscoe, 448 F.3d
at 216 (citing Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 32 (3d Cir. 1985)); see
also Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111-112 (3d Cir. 1990) (Joinder is
fraudulent if the “action against the individual defendants is defective as a matter of
law.”). “If there is even a possibility that a state court would find that the complaint
states a cause of action against any one of the resident defendants, the federal court
must find that joinder was proper and remand the case to state court.” Boyer v. Snap-on
Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990) (citing Coker v. Amoco Oil Co., 709 F.2d
1433, 1440-1441 (11th Cir. 1983)).
Defendants must demonstrate that the non-diverse party was fraudulently joined
to avoid remand. Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 (3d Cir. 1992).
Defendants carry a “heavy burden of persuasion” in that showing. Id., (citing Steel
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Valley Author. v. Union Switch & Signal Div., 809 F.2d 1006, 1012 n. 6 (3d Cir. 1987)).
The Court must assume as true all factual allegations of the plaintiff’s complaint and
resolve any uncertainties in the law in favor of the plaintiff. Batoff, at 852. However,
the Court can give limited consideration to reliable evidence proffered by the defendant
in support of removal. In re Briscoe, 448 F.3d 201, 220 (3d Cir. 2006).
In considering limited evidence, the Court must not “step[] from the threshold
jurisdictional issue into a decision on the merits.” Boyer, 913 F.2d 112; see also Batoff,
977 F.2d at 852.). The Third Circuit has cautioned that "removal statutes are to be
strictly construed, with all doubts to be resolved in favor of remand." Brown v. JEVIC,
575 F. 3d 322, 326 (3d Cir. 2009) (citing Batoff, 977 F.2d at 851).
III. Analysis
Given recent developments in New Jersey case law, Plaintiff has sufficiently plead
a claim against defendant Klawunn under the NJLAD.
Pursuant to the NJLAD “[a]ll persons shall have the opportunity to obtain
employment ... without discrimination because of race, creed, color, national origin,
ancestry, age, marital status, affectional or sexual orientation, familial status, disability,
nationality, [or] sex ... subject only to conditions and limitations applicable alike to all
persons.” N.J.S.A. 10:5–4. In addition, N.J.S.A. 10:5–12(a) makes it an unlawful “[f]or
an employer, because of the ... ancestry and race ... of any individual ... to refuse to hire
or employ or to bar or to discharge ... from employment such individual or to
discriminate against such individual in compensation or in terms, conditions or
privileges of employment[.]”
Plaintiff alleges that Klawunn committed ancestry discrimination against him
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because Regis was unable to prove his familial connection to his biological grandfather
and therefore denied bereavement rights. The strictures of the NJLAD extend to
individual supervisors. Under N.J.S.A. 10:5–12(e), it is 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 this act, or to attempt to do so.” However,
“individual liability of a supervisor for acts of discrimination or for creating or
maintaining a hostile environment can only arise through the ‘aiding and abetting’
mechanism that applies to ‘any person’” under N.J.S.A. 10:5–12(e). Cicchetti v. Morris
Cnty. Sheriff's Office, 194 N.J. 563, 594 (2008).
The words “aiding” and/or “abetting” do not appear anywhere in Plaintiff’s
Complaint. Defendant argues that this supports the fraudulent joinder theory because
the only way Klawunn can be subject to liability in an individual capacity is under the
“aiding and abetting” theory cognized in N.J.S.A. 10:5–12(e). Even if Klawunn comes
under NJLAD, Defendant claims that Klawunn must have acted in concert with another
entity or individual, because he cannot be charged with aiding and abetting himself.
Defendants cite several cases in this district that hold that one cannot aid and abet his
own conduct. See, e.g., Hunter v. ARC of Union County, No. 10 CV 256, 2012 WL 71758
(D.N.J. Jan. 9, 2012); Tsakonas v. Nextel Communs., Inc., No. 04 CV 1363, 2006 WL
2527998 (D.N.J. Aug. 31, 2006).
The Court finds that the absence of the words aid and abet are not fatal to
Plaintiff’s cause of action against Klawunn under the NJLAD. Read as a whole, the
allegations set forth a “colorable” claim against Klawunn. The Court is persuaded by the
analysis and reasoning of the District Court in Freichs v. Lifestar Response Corp., 09 CV
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4460, 2009 WL 3754190 (D.N.J. Nov. 5, 2009). The NJLAD claims against a supervisor
in Freichs suffer from the same malady that plagues the present Complaint: the precise
phrase “aid and abet” is absent from the allegations and the supervisor and the
organization are identified collectively as defendants. Parsing through the claims in
Freichs and viewing the claims under the lens of the forgiving standard of fraudulent
joinder, the District Court determined that the claims against the supervisor were
“colorable” because plaintiff averred that her termination constituted discrimination
and that her supervisors carried out the termination. Freichs, 209 WL 3754190, at *2.
In addition, the District Court noted that the complaint alleged that her supervisor was
her “‘direct employer,’ thus implying that she was either terminated on his authority or
he was responsible for communicating with company decision-makers regarding her
disability and eventual firing.” Id. at *2.
Here, Regis claims that Klawunn and a human resources manager called him in
for a meeting to discuss the obituary (Compl. at ¶24) and asked for documentation of his
relationship to James Pullen. See Compl. at ¶¶ 24, 26. Regis claims that Defendants
rescinded the bereavement leave approval, suspended him and ultimately terminated
him. See, id. at ¶¶ 32, 33, 35. The Court agrees with Plaintiff that there can be no
ambiguity as to Klawunn’s inclusion in Defendants, as he is the only named individual in
the Complaint. As a result, the Court finds that the Complaint sets forth an allegation
that Klawunn was Regis’ supervisor and that he used his position to discriminate under
the NJLAD. See Freichs, 2009 CV 3754190, at *2.
Moreover,the Court rejects Defendant’s argument that Klawaunn cannot be
charged with aiding and abetting. Defendant’s claim that New Jersey case law is clear
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that aiding and abetting one’s own conduct is not recognized under the NJLAD has been
called into question. Although this is a peculiar theory, several Courts have very recently
acknowledged its foothold under the NJLAD. See, e.g., Brown-Marshall v. Roche
Diagnostics Corp., 10 CV 5984, 2013 WL 3793622, *7 (D.N.J. July 19, 2013) (citing
Cardenas v. Massey, 269 F.3d 251, 268 (3d Cir. 2001) (“Under the LAD a supervisory
employee may be liable for discrimination for aiding and abetting another's (the
employer's) violation.”); Hurley v. Atlantic City Police Dep't, 174 F.3d 95, 126 (3d Cir.
1999) (holding that when supervisor engaged in “affirmatively harassing acts,” he “flouts
[his] duty” and “subjects himself and his employer to liability”); Coulson v. Town of
Kearny, No. 07–5893, 2010 WL 331347, at *5 (D.N.J. Jan. 19, 2010); Ivan v. Cnty. of
Middlesex, 595 F.Supp.2d 425, 462 (D.N.J.2009); Danna v. Truevance Mgmt., Inc., No.
05–5395, 2007 WL 2156361, at *3 (D.N.J. July 25, 2007)).
As Brown-Marshall notes, the litany of decisions cited by Defendant’s, for support
of its contention that a supervisor cannot be liable for aiding and abetting his own
conduct, did not have the benefit of the New Jersey Appellate Division’s decision in
Rowan v. Hartford Plaza, LTD, LP, No. L-3106-09, 2013 WL 1350095 (N.J. App. Div.
April 5, 2013). Rowan recognizes supervisor liability under the NJLAD for aiding and
abetting the supervisor’s own conduct. Id. at *8. The New Jersey Appellate Division in
Rowan recognized the “somewhat awkward theory of liability,” that permits supervisor
liability when acting in concert but permits a supervisor to escape liability when he acts
alone. Id. (citing Hurley, supra, 174 F.3d at 126).
Based on the “broad and pervasive” reach of the LAD, and the requirement
that it be “liberally construed” to effectuate its purpose, any suggestion
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that N.J.S.A. 10:5–12(e) permits individual liability for a supervisor who
encourages or facilitates another employee's harassing conduct, while
precluding individual liability for the supervisor based on his or her own
discriminatory or harassing conduct, appears to us to be untenable.
Id.
Although Defendant’s argue Rowan cannot be cited for precedential purposes,
given that it is an unpublished opinion, the Rowan decision, and Brown-Marshall for
that matter, demonstrate the plausible nature of the claim. While Defendant’s argument
that New Jersey case law is “clear” on the matter may have had support during the brief
writing, there appears to be a shift toward expanding the “broad and pervasive” reach of
the NJLAD to include the claim plead against Klawunn.
Third Circuit precedent requires the Court to resolve any doubts in favor of
remand and remand a case “[i]f there is even a possibility that a state court would find
that the complaint states a cause of action against any one of the resident defendants.”
Boyer, 913 F.2d at 111 (citation omitted). Given the Rowan decision, there is a
possibility that the state court will find that the Complaint as plead sets forth a colorable
claim against Klawunn. As a result, Klawunn’s citizenship cannot be overlooked as
Defendant’s have not carried the “heavy burden of persuasion.” Batoff, 977 F.2d at 851.
The matter must be remanded to the New Jersey Superior Court, Burlington County
vicinage.
Given that the Rowan decision post dates the Notice of Removal and because the
state of the law as to supervisor liability under the NJLAD is evolving, the Court will not
award attorneys’ fees in this matter, as removal did not lack a good faith basis.
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IV. Conclusion
For the reasons set forth herein, Plaintiff’s Motion to Remand is Granted In Part
and the matter shall be remanded to the New Jersey Superior Court, Burlington County
Vicinage. Plaintiff’s request for attorney’s fees is denied.
An appropriate Order shall issue.
Dated: September 26, 2013
s/ Joseph H. Rodriguez
Hon. Joseph H. Rodriguez,
UNITED STATES DISTRICT JUDGE
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