WEBSTER v. DOLLAR GENERAL, INC. et al
Filing
20
OPINION. Signed by Judge Joseph E. Irenas on 8/22/13. (dd, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MATTHEW WEBSTER,
Plaintiff,
v.
HONORABLE JOSEPH E. IRENAS
CIVIL ACTION NO. 13-0690
(JEI/KMW)
DOLGENCORP, LLC, BOB MILLER,
VINCE TRIBOLETTI, et al.,
Defendants.
OPINION
APPEARANCES:
RANDY P. DAVENPORT, ESQUIRE
242 Old New Brunswick Road, Suite 360
Piscataway, New Jersey 08854
Counsel for Plaintiff
MORGAN, LEWIS & BOCKIUS LLP
By: August W. Heckman, Esquire
502 Carnegie Center
Princeton, New Jersey 08540
Counsel for Defendants
IRENAS, Senior District Judge:
Plaintiff Matthew Webster initiated this action against
Defendant Dolgencorp, LLC (“Dolgencorp”) 1 and several of its
employees 2 alleging employment discrimination. 3
Pending before
1
Plaintiff concedes that this is the correct identification of Defendant and
not Dollar General, Inc., as was indicated in the Complaint. (See Pl.’s Br.
in Opp’n 7)
2
As discussed below, the individual defendants have not yet been properly
served with the Summons and Complaint. (Notice of Removal ¶ 3)
3
Plaintiff filed his Complaint in the Superior Court of New Jersey, Civil Law
Division, Gloucester County. On February 4, 2013, Dolgencorp removed the
the Court is Dolgencorp’s Motion to Dismiss pursuant to Fed. R.
Civ. P. 12(b)(6) all of Plaintiff’s claims except for
Plaintiff’s religious discrimination and failure to accommodate
claims under Title VII.
For the reasons stated herein, the
Motion will be granted in part and denied in part.
I.
For the purposes of this Motion, the Court accepts as true
the facts as alleged in the Complaint. 4
Defendant owns several retail stores in New Jersey and
operates them as Dollar General, Inc. (“Dollar General”).
(Compl. ¶ 2)
Plaintiff, a practicing Seventh Day Adventist, was
formerly employed by Dollar General.
(Id. ¶ 1)
On or about August 12, 2010, Plaintiff accepted an offer
from Dollar General’s district manager, Bob Miller (“Miller”),
to become the store manager of Dollar General’s Sicklerville,
New Jersey location.
(Id. ¶¶ 3, 9)
The parties agreed that
Plaintiff would not be required to work on Saturday “without
case to this Court pursuant to 28 U.S.C. §§ 1441 and 1446. The Court
exercises subject matter jurisdiction over the federal claims pursuant to 28
U.S.C. § 1331 and supplemental jurisdiction over the remaining state claims
pursuant to 28 U.S.C. § 1367.
4
Dolgencorp disputes some of these allegations and attaches several documents
to the instant Motion. These documents, which have not yet been
authenticated, include Plaintiff’s job application, handwritten letter, and
signed acknowledgement form. See Mot. to Dismiss Exs. A-C. However, as
discussed below, the Court cannot consider these documents at this time
because they were not attached to the Complaint and do not form the basis of
Plaintiff’s claim.
2
exception” and that Plaintiff “would not be dismissed without
legitimate and lawful cause.”
(Id. ¶¶ 72, 74)
Additionally,
when applying for the position in July 2010, Plaintiff stated in
his job application that he “would never be available to work
from sunset on Fridays to sunset on Saturdays” because his
religion required him to observe the Sabbath and abstain from
working on Saturdays. 5
(Id. ¶¶ 1, 8)
While Dollar General accommodated Plaintiff for a brief
period of time, Plaintiff was eventually required to work on a
Saturday.
(Id. ¶¶ 10, 11)
Thereafter, when Plaintiff was
called in to work on a second Saturday, Plaintiff objected,
stating that he could not work on Saturdays for religious
reasons and that he had noted this on his job application.
(Id.
¶ 11)
Sometime later, Miller directed Plaintiff to contact Vince
Triboletti (“Triboletti”), the manager of Dollar General’s store
in Berlin, New Jersey, who needed assistance.
(Id. ¶ 12)
Plaintiff called Triboletti on or about October 26, 2010.
(Id.)
During the conversation, Triboletti “became angry” when
5
While the Court does not consider Plaintiff’s job application for the
purposes of the instant Motion, the Court recognizes that the application
tends to undermine Plaintiff’s allegation that he stated he would be unable
to work on Saturday because of religious reasons. (See Mot. to Dismiss Ex.
A) Plaintiff appears to be relying on a table he completed in the
application detailing the time that he would be available to work. In this
table, Plaintiff wrote that he would only be available to work on Fridays
from 6:00 AM until 6:00 PM and on Saturdays from 6:00 PM until 11:00 PM.
Nowhere does Plaintiff state that his availability would vary based on the
sunset times, nor does he indicate that religious reasons dictated this
schedule.
3
Plaintiff said that he could not work on Saturday.
(Id.)
The
following day, Miller went to Plaintiff’s store in Williamstown
and told him that he would not be allowed to work at the Berlin
store.
(Id. ¶ 13)
Miller also ordered Plaintiff to provide a
written statement explaining why he could not work on Saturdays.
(Id.)
On or about November 1, 2010, Miller went to Plaintiff’s
store again and informed him that he would have to either work
on Saturdays or accept a demotion with a reduction in hours.
(Id. ¶ 14)
Plaintiff alleges that employees who asked for
Sundays off were not subject to such conditions and were freely
granted time off.
(Id. ¶ 15)
When Plaintiff refused to accept
either option, Miller asked Plaintiff for his keys “and escorted
him out of the store.”
(Id. ¶ 16)
The Complaint further alleges that during the course of his
employment, Plaintiff was subject to “repeated comments,
statements and harassment” because of his religion.
(Id. ¶¶ 39,
66)
On or about September 25, 2012, the U.S. Equal Employment
Opportunity Commission (“EEOC”) issued a Notice of Right to Sue
authorizing Plaintiff to sue under Title VII of the Civil Rights
Act of 1964.
(Id. ¶ 20)
On December 20, 2012, Plaintiff filed
suit in the Superior Court of New Jersey, Civil Law Division,
Gloucester County against Dolgencorp, Miller, Triboletti, and
4
several unnamed Dollar General employees and unnamed
corporations.
Plaintiff’s Complaint asserts ten Counts,
including violations of Title VII (Counts One - Three) and the
New Jersey Law Against Discrimination (“NJLAD”) (Counts Four Seven), breach of contract and the implied covenant of good
faith and fair dealing (Counts Eight - Nine), and intentional
infliction of emotional distress (Count Ten).
On February 4, 2013, Dolgencorp removed the case to this
Court.
(Dkt. No. 1)
Dolgencorp now moves to dismiss all claims
except for Plaintiff’s Title VII religious discrimination and
failure to accommodate claims (Counts One and Two) pursuant to
Fed. R. Civ. P. 12(b)(6) for failure to state a claim.
II.
Federal Rule of Civil Procedure 12(b)(6) provides that a
court may dismiss a complaint “for failure to state a claim upon
which relief can be granted.”
In order to survive a motion to
dismiss, a complaint must allege facts that raise a right to
relief above the speculative level.
Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007); see also Fed. R. Civ. P.
8(a)(2).
While a court must accept as true all allegations in the
plaintiff’s complaint, and view them in the light most favorable
to the plaintiff, Phillips v. Cnty. of Allegheny, 515 F.3d 224,
5
231 (3d Cir. 2008), a court is not required to accept sweeping
legal conclusions cast in the form of factual allegations,
unwarranted inferences, or unsupported conclusions.
Morse v.
Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).
The
complaint must state sufficient facts to show that the legal
allegations are not simply possible, but plausible.
515 F.3d at 234.
Phillips,
“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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
When evaluating a Rule 12(b)(6) motion to dismiss, the
Court considers “only the allegations in the complaint, exhibits
attached to the complaint, matters of public record, and
documents that form the basis of a claim.”
361 F.3d 217, 221 n.3 (3d Cir. 2004).
Lum v. Bank of Am.,
A document forms the
basis of a claim when it is “integral to or explicitly relied
upon in the complaint.” Id. (quoting In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)).
III.
Dolgencorp first argues that Plaintiff’s NJLAD claims are
outside the statute of limitations.
Dolgencorp further argues
that Plaintiff’s hostile work environment claims under Title VII
6
and the NJLAD fail as a matter of law.
Third, Dolgencorp argues
that Plaintiff’s claims for breach of contract and the implied
covenant of good faith and fair dealing fail because there was
no contract.
Fourth, Dolgencorp argues that Plaintiff’s claim
for intentional infliction of emotional distress is time-barred,
or alternatively, that it fails as a matter of law.
Finally,
Dolgencorp moves to dismiss all claims brought against the
individually named defendants.
The Court addresses each
argument in turn.
A.
NJLAD Claims
Dolgencorp asserts that Plaintiff’s NJLAD claims are barred
by the applicable statute of limitations.
Law 2)
(Def.’s Reply Mem. of
The Court agrees.
The Third Circuit allows a limitations defense to be raised
in a motion to dismiss when “the time alleged in the statement
of a claim shows that the cause of action has not been brought
within the statute of limitations.” Thomas v. Care Plus of N.J.,
Inc., 484 F. App’x 692, 693 (3d Cir. 2012) (quoting Robinson v.
Johnson, 313 F.3d 128, 135 (3d Cir. 2002)); see also W. Penn
Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85, 105 n.13 (3d
Cir. 2010).
“[A] court may dismiss an action if the complaint
shows facial noncompliance with the statute of limitations.”
Wolk v. Olson, 730 F. Supp. 2d 376, 377 (E.D. Pa. 2010) (citing
7
Jones v. Bock, 549 U.S. 199, 215 (2007), and Oshiver v. Levin,
Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 n.1 (3d Cir.
1994)).
Claims under the NJLAD are subject to a two-year statute of
limitations.
Montells v. Haynes, 133 N.J. 282, 286 (1993);
Henry v. N.J. Dep’t of Human Servs., 204 N.J. 320, 324 (2010).
In the instant case, November 1, 2010 is the last day on which
the Complaint alleges that any wrongful action was taken against
Plaintiff.
Because Plaintiff’s Complaint was filed on December
20, 2012, more than two years later, all of Plaintiff’s NJLAD
claims (Counts Four - Seven) are time-barred.
Accordingly, they
will be dismissed with prejudice.
B.
Hostile Work Environment
Next, Dolgencorp argues that Plaintiff failed to adequately
plead facts supporting a hostile work environment claim under
Title VII (Count Three).
(Mot. to Dismiss 9-12)
Title VII
makes it unlawful for an employer “to discriminate against any
individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual’s . . .
religion.”
42 U.S.C. § 2000e–2(a)(1).
A hostile work
environment exists when an employer’s discriminating conduct is
“sufficiently severe or pervasive to alter the conditions of the
plaintiff’s employment and create an abusive working
8
environment.”
Mandel v. M & Q Packaging Corp., 706 F.3d 157,
167 (3d Cir. 2013) (quoting Meritor Sav. Bank v. Vinson, 477
U.S. 57, 67 (1986)).
To state a claim for a hostile work environment based on
religious discrimination under Title VII, an employee must
allege the following: “1) the employee suffered intentional
discrimination because of [his religion], 2) the discrimination
was severe or pervasive, 3) the discrimination detrimentally
affected the plaintiff, 4) the discrimination would
detrimentally affect a reasonable person [of the same religion]
in like circumstances, and 5) the existence of respondeat
superior liability.”
Id. (citation omitted); see also Abramson
v. William Patterson Coll. of N.J., 260 F.3d 265, 276-77 (3d
Cir. 2001).
To fall within the purview of Title VII, the discriminatory
conduct must have been sufficiently severe or pervasive so that
the work environment was both subjectively and objectively
hostile or abusive.
Ullrich v. U.S. Sec’y of Veterans Affairs,
457 F. App’x 132, 140 (3d Cir. 2012) (citing Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21-22 (1993)).
To determine whether
the work environment was hostile or abusive, the court must
consider the totality of the circumstances.
168 (citing Harris, 510 U.S. at 23).
Mandel, 706 F.3d at
These circumstances
include “the frequency of the discriminatory conduct; its
9
severity; whether it [was] physically threatening or
humiliating, or a mere offensive utterance; and whether it
unreasonably interfere[d] with [the] employee’s work
performance.”
Id.
The analysis “must concentrate not on individual incidents,
but on the overall scenario.”
Caver v. City of Trenton, 420
F.3d 243, 262-63 (3d Cir. 2005) (quoting Andrews v. City of
Phila., 895 F.2d 1469, 1484 (3d Cir. 1990)).
Thus, “isolated
incidents (unless extremely serious) are not sufficient to
sustain a hostile work environment claim.”
Id. at 262 (quoting
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998))
(internal quotation marks omitted).
In the instant case, Plaintiff merely alleges that he was
subjected to a hostile work environment because of “repeated
comments, statements and harassment based upon his creed.”
(Compl. ¶¶ 39, 66)
Other than this vague and conclusory
allegation, Plaintiff’s only factual support for a hostile work
environment stems from the single incident on October 26.
The
Complaint claims that following Plaintiff’s refusal to work on
Saturday, his coworker Triboletti “became angry” with him, and
his supervisor Miller ordered him to provide a written statement
explaining why he could not work on Saturdays.
(Id. ¶¶ 12, 13)
This isolated incident hardly amounts to the severe or pervasive
discriminatory conduct required for a plausible hostile work
10
environment claim.
Unless extremely serious, isolated incidents
are not sufficient to sustain a hostile work environment claim.
Caver, 420 F.3d at 262.
Because Plaintiff has not provided any further allegations
of “comments, statements and harassment” made to him, he has
failed to plausibly allege a hostile work environment under
Title VII, and his claim (Count Three) 6 will be dismissed without
prejudice. 7
6
Dolgencorp also argues that the NJLAD hostile work environment claim (Count
Seven) fails as a matter of law. While the Court finds that Plaintiff’s
NJLAD hostile work environment claim is time-barred, it also notes that
Plaintiff failed to plausibly allege such a claim. The NJLAD provides a
cause of action for a hostile work environment. See Abramson, 260 F.3d at
277 (setting out the elements of an NJLAD hostile work environment claim
based on religious discrimination). The analysis of a NJLAD claim generally
follows the analysis of a Title VII claim. Schurr v. Resorts Int’l Hotel,
Inc., 196 F.3d 486, 498 (3d Cir. 1999); see also Taylor v. Metzger, 152 N.J.
490, 507 (1998) (stating that the “severe or pervasive” test under the NJLAD
conforms to the standard required by Title VII and that “it will be a rare
and extreme case in which a single incident will be so severe” as to sustain
a hostile work environment claim). Accordingly, the Court’s analysis applies
equally to Plaintiff’s NJLAD hostile work environment claim (Count Seven).
7
The Court notes that there is a question as to whether Plaintiff properly
exhausted his required administrative remedies prior to bringing his Title
VII hostile work environment claim.
To bring a Title VII claim, a plaintiff must first exhaust his
administrative remedies by filing a charge of discrimination with the EEOC
and procuring a notice of the right to sue. Mandel, 706 F.3d at 163; see
also 42 U.S.C. § 2000e-5 (outlining the procedural requirements). Once a
right-to-sue letter is issued, the plaintiff’s claims must be limited to acts
that are “fairly within the scope of the prior EEOC complaint, or the
investigation arising therefrom.” Antol v. Perry, 82 F.3d 1291, 1295 (3d
Cir. 1996).
Although Plaintiff neither provided this Court with a copy of his EEOC
charge, nor described the charge’s factual basis in his Complaint, Dolgencorp
has introduced a copy of an EEOC charge filed by Plaintiff on November 2,
2010, the day after his termination. (Def.’s Reply Mem. of Law Ex. A) The
Court may review this document because it is integral to Plaintiff’s claims.
The EEOC charge complains only of religious discrimination arising from
Plaintiff’s discharge. In the EEOC charge, Plaintiff indicated November 1
2010, the date of his termination, as the only day on which discrimination
took place, and the Summary of the Particulars section describes facts solely
relating to the discharge. Nowhere did Plaintiff present any facts that
11
C.
Breach of Contract and Implied Covenant of
Good Faith and Fair Dealing
Plaintiff asserts claims for breach of contract and the
implied covenant of good faith and fair dealing alleging that
Dolgencorp expressly promised never to require Plaintiff to work
on Saturday and not to terminate him without cause.
(Counts
Eight and Nine)
The Court turns first to the breach of contract claim.
To
state a claim for breach of contract in New Jersey, a plaintiff
must allege “(1) a contract between the parties; (2) a breach of
that contract; (3) damages flowing therefrom; and (4) that the
party stating the claim performed its own contractual
obligations.”
Frederico v. Home Depot, 507 F.3d 188, 203 (3d
Cir. 2007).
Additionally, under New Jersey law, employment is at-will,
and either party can terminate the employment relationship
“unless an agreement exists between the parties that provides
otherwise.”
Monaco v. Am. Gen. Assurance Co., 359 F.3d 296, 308
(3d Cir. 2004) (citation omitted).
Thus, the at-will
presumption may be overcome “where such intention is
would suggest a hostile work environment, nor did he check the box indicating
that the discrimination was a “continuing action.” Thus, Plaintiff’s hostile
work environment claim is not within the scope of this EEOC charge. See
Barzanty v. Verizon PA, Inc., 361 F. App’x 411, 414 (3d Cir. 2010).
Nevertheless, drawing all inferences in favor of Plaintiff, the Court
is reluctant to dismiss the Title VII hostile work environment claim on this
basis alone. The Court does not have enough information at this time to
determine whether Plaintiff filed any other charge of discrimination with the
EEOC.
12
‘specifically stated in explicit, contractual terms.’”
Anderson
v. DSM N.V., 589 F. Supp. 2d 528, 534 (D.N.J. 2008) (quoting
Bernard v. IMI Sys., Inc., 131 N.J. 91, 106 (1993)).
In the instant case, Plaintiff plausibly alleges that
Dolgencorp breached an express contract by requiring him to work
on Saturday and by terminating him without cause.
Plaintiff
clearly alleges that he entered into an employment contract with
Dollar General on or about August 12, 2010 (Compl. ¶¶ 9, 71),
and that as part of that contract, the parties expressly agreed
that Plaintiff would not be required to work on Saturday and
would not be terminated without cause.
(Id. ¶ 72, 74)
Plaintiff further asserts that Dolgencorp breached these express
terms by first requiring him to work on Saturday, and then
terminating him (id. ¶ 75), despite him having performed his
duties “in an exemplary and unimpeachable manner.”
(Id. ¶ 17)
Finally, Plaintiff alleges that he suffered damages as a result
of this conduct.
(Id. ¶ 76)
These allegations state a
plausible claim for breach of contract.
Dolgencorp argues that it never agreed to such terms with
Plaintiff.
(Mot. to Dismiss 13-14)
In support of its
contention, Dolgencorp urges the Court to consider Plaintiff’s
job application and a document titled “Employment & Handbook
Acknowledgement” (“Acknowledgement Form”), in which Plaintiff is
13
claimed to have acknowledged that his employment was only atwill.
(Mot. to Dismiss 13-14, Exs. A, C)
Aside from the fact that these documents do not undermine
Plaintiff’s claim that the parties agreed that he would not be
required to work on Saturday, Dolgencorp essentially asks the
Court decide the merits of Plaintiff’s claim with respect to his
termination.
However, Rule 12(b)(6) tests only the sufficiency
of the Complaint and the Court cannot consider these documents
at this time.
The documents were introduced by Dolgencorp and
do not form the basis of Plaintiff’s claim since they are not
integral to or explicitly relied upon in the Complaint. 8
Moreover, even if the Court were to consider the documents,
it would not change the outcome.
Although according to the
Acknowledgment Form, Dollar General’s employees are employed atwill by default, the Acknowledgement Form specifically
contemplates that the parties may agree otherwise.
Dismiss Ex. C)
(Mot. to
As the Acknowledgment Form states, “unless
otherwise agreed in writing . . . all Dollar General employees
are employed on an at-will basis.”
Plaintiff specifically
alleges that the parties did in fact agree that he would be
terminated only for cause.
Therefore, the Acknowledgement Form
8
The Acknowledgement Form is clearly not the contract referenced in the
Complaint. It does not contain any contractual provisions agreed upon by the
parties. Instead, it is a standard form that Dollar General requires all
employees to initial acknowledging their responsibility to read and
understand its Employee Handbook.
14
does not undermine Plaintiff’s breach of contract claim with
respect to his termination.
Thus, considering only the facts as alleged in the
Complaint, Plaintiff has stated a plausible claim for breach of
contract and the Court cannot dismiss it at this stage.
Lastly, Plaintiff also states a plausible claim for breach
of the implied covenant of good faith and fair dealing.
In New
Jersey, every contract contains an implied covenant of good
faith and fair dealing.
562, 577 (2011).
Wood v. N.J. Mfr. Ins. Co., 206 N.J.
The covenant requires that “neither party
shall do anything which will have the effect of destroying or
injuring the right of the other party to receive the fruits of
the contract.”
Id.
Thus, a defendant who acts with ill motives
and without any legitimate purpose is liable for breaching the
implied covenant when the plaintiff’s “reasonable expectations
are destroyed.”
DiCarlo v. St. Mary Hosp., 530 F.3d 255, 267
(3d Cir. 2008) (quoting Brunswick Hills Racquet Club, Inc. v.
Route 18 Shopping Ctr. Assoc., 182 N.J. 210, 226 (2005)).
Because Plaintiff has adequately alleged the existence of an
employment contract, his claim for breach of the implied
covenant of good faith and fair dealing stands.
15
D.
Intentional Infliction of Emotional Distress
Dolgencorp next asserts that Plaintiff’s claim for
intentional infliction of emotional distress is barred by the
applicable statute of limitations.
(Mot. to Dismiss 16)
The
Court agrees.
As discussed above, a limitations defense may be raised in
a motion to dismiss when “the time alleged in the statement of a
claim shows that the cause of action has not been brought within
the statute of limitations.” Thomas v. Care Plus of N.J., Inc.,
484 F. App'x at 693 (3d Cir. 2012) (quoting Robinson v. Johnson,
313 F.3d 128, 135 (3d Cir. 2002)).
In New Jersey, intentional infliction of emotional distress
claims are subject to a two-year statute of limitations.
N.J.
STAT. ANN. § 2A:14–2; 9 see also Hardwicke v. Am. Boychoir Sch.,
188 N.J. 69, 85 (2006).
In the instant case, November 1, 2010
is the last day on which Plaintiff alleges any wrongful action
was taken against him.
Because Plaintiff filed his Complaint
more than two years later, the intentional infliction of
emotional distress claim (Count Ten) is time-barred.
Accordingly, it will be dismissed with prejudice. 10
9
N.J. Stat. Ann. § 2A:14–2 provides, “Every action at law for an injury to
the person caused by the wrongful act . . . of any person . . . shall be
commenced within 2 years next after the cause of any such action shall have
accrued.”
16
E.
Individual Claims
Lastly, Dolgencorp moves to dismiss all claims brought
against the individually named defendants.
21)
(Mot. to Dismiss 18-
Despite the considerable confusion in Defendants’ papers,
it is clear that the individual defendants do not join the
instant Motion.
While the individual defendants are represented
by the same attorneys as Dolgencorp (see Notice of Removal ¶ 1),
the Motion was only brought on behalf of Dolgencorp and not the
individual defendants. 11
The moving papers state unequivocally
that the individual defendants “do not appear in this action or
join the instant motion.”
(Mot. to Dismiss 1, n.1)
Instead
Dolgencorp claims that the individual defendants were never
properly served with the Summons and Complaint.
Notice of Removal ¶ 3)
(See id.,
However, Dolgencorp cannot move to
dismiss claims that were not brought against it.
Accordingly,
its Motion to Dismiss the claims brought against the
individually named defendants will be denied as moot.
10
The Court notes that Plaintiff has not alleged a plausible claim for
intentional infliction of emotional distress. To state a claim for
intentional infliction of emotional distress, a plaintiff must allege conduct
that is “so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community.” Taylor, 152 N.J. at 509.
Moreover, the defendant is not liable unless he acted with the intent to
produce emotional distress, or was reckless in deliberate disregard of a high
degree of probability that emotional distress will occur. Buckley v. Trenton
Saving Fund Soc., 111 N.J. 355, 366 (1988). The facts pled hardly rise to
this standard.
11
In fact, even the Notice of Removal was filed only on behalf of Dolgencorp
and not the individual defendants. (See Notice of Removal 2)
17
IV.
For the foregoing reasons, Dolgencorp’s Motion to Dismiss
is granted in part and denied in part.
The Motion is denied as
to the claims for breach of contract and implied covenant of
good faith and fair dealing (Counts Eight and Nine), and is
denied as moot as to all claims against the individually named
defendants.
The Motion is granted as to the Title VII hostile
work environment claim (Count Three), the NJLAD claims (Counts
Four – Seven), and the claim for intentional infliction of
emotional distress (Count Ten).
However, Plaintiff will be
granted leave to file a Motion to Amend his Complaint as to the
Title VII hostile work environment claim.
An appropriate Order
accompanies this Opinion.
Date:
August 22, 2013
/s/ Joseph E. Irenas ______
Joseph E. Irenas, S.U.S.D.J.
18
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