GALLUCCIO et al v. PRIDE INDUSTRIES, INC. et al
OPINION FILED. Signed by Judge Noel L. Hillman on 9/13/16. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MARIO GALLUCCIO, MICHAEL
CARRO, ERIC CHARLES, KINGSLEY
CHIAGORO, MARK DINGLE, DANNY
GUZMAN, THOMAS MORRISEY,
ANTONIO SOTO, MICHAEL STONE,
and ASHOK SURTI,
HONORABLE NOEL L. HILLMAN
CIVIL ACTION NO. 15-3423
PRIDE INDUSTRIES, INC., and
INTERNATIONAL UNION OF
OPERATING ENGINEERS AFL-CIO,
LOCAL 68, 68A, 68B,
RESNICK LAW GROUP
By: Gerald Jay Resnick, Esq.
Vincent Antoniello, Esq.
5 Becker Farm Road, 4th Floor
Roseland, New Jersey 07068
Counsel for Plaintiffs
LITTLER MENDELSON, P.C.
By: Jedd Mendelson, Esq.
One Newark Center, 8th Floor
Newark, New Jersey 07102
Counsel for Defendant Pride Industries, Inc.
O’BRIEN, BELLAND & BUSHINSKY, LLC
By: Steven J. Bushinsky, Esq.
Mark E. Belland, Esq.
1526 Berlin Road
Cherry Hill, New Jersey 08003
Counsel for Defendant Local 68
HILLMAN, United States District Judge:
This is an employment suit.
Plaintiffs are all employees of
Defendant Pride Industries, and members of the Defendant Union,
Local 68. 1
They assert that Pride and the Union discriminated
against them on the basis of their disabilities, and retaliated
against them when they complained about the discrimination.
It is somewhat unclear which Plaintiffs remain in this suit at
this time. The original complaint asserted claims on behalf of ten
Plaintiffs, seven of whom were (and are) alleged to be current
employees of Defendant Pride Industries and current members of
Local 68; and three of whom were alleged to be former
As this Court explained in its previous opinion on Plaintiffs’
Motion to Amend the Complaint, neither the Complaint, nor the
Proposed Amended Complaint at the time, made any distinction
between former and current employees/members, which posed problems
for the legal analysis. See Galluccio v. Pride Indus., 2016 U.S.
Dist. LEXIS 6257 at *6-7 (D.N.J. Jan. 20, 2016).
Now, in support of Plaintiffs’ instant Motion to Amend,
Plaintiffs’ counsel submits a declaration wherein he states that
two of the former employee Plaintiffs -- Michael Carro and Michael
Stone -- are “no longer pursuing” their claims. However, this
statement notwithstanding, neither Plaintiff has filed a notice of
dismissal. See Fed. R. Civ. P. 41(a)(1)(A)(i).
As to the other former employee/member Plaintiff, Eric
Charles, Plaintiffs’ counsel states in a letter to the Court that
“Plaintiff Charles settled his retaliatory termination claim at
arbitration.” (Docket Entry #42) Yet he, too, has filed no notice
or stipulation of dismissal.
In short, Plaintiffs’ counsel has not been sufficiently clear
as to which claims of which former employee/member Plaintiffs-- if
any-- remain in this suit at this time. Accordingly, the Court’s
decision only addresses the claims of the current employee/member
Plaintiffs. Counsel is directed to take all appropriate procedural
steps, including any stipulations of dismissals or motions,
necessary to clarify the present status of all former
Presently before the Court is Plaintiffs’ Motion to Amend the
Complaint to allege discriminatory compensation setting in
violation of the Americans with Disabilities Act, 42 U.S.C. § 12101
Defendants oppose the motion, arguing that amendment is
futile because the claims are time-barred.
The issue presented is
discrete: Does the Lilly Ledbetter Fair Pay Act of 2009, 42 U.S.C.
§ 2000e-5(e)(3) (“FPA”), apply to Plaintiffs’ claims?
Defendants have not disputed that amendment would not be futile.
The Court holds that the FPA does apply to the claims at issue;
accordingly the Motion to Amend will be granted.
The Proposed Amended Complaint (“Prop. Amend. Compl.”)(Docket
#42-1) alleges the following facts.
The collective bargaining agreement between Defendant Pride
and Defendant Local 68 distinguishes between earlier-hired
“incumbent” employees, and more recently hired “non-incumbent”
Pursuant to the CBA, incumbent employees earn more
money, while simultaneously paying less for benefits, than their
Specifically, the Proposed Amended
20. . . . Defendants conspired to force Plaintiffs and
‘nonincumbents’) to pay up to three (3) times (or more) for
the very same benefits as non-disabled employees.
. . .
22. . . . Defendants also enabled non-disabled employees
to make several dollars more per hour than disabled
employees, like Plaintiffs, in the very same job
They did so by implementing a
discriminatory ‘stipend’ that correlated to benefits
costs and which clearly favored the incumbent (nondisabled) employees.
(Prop. Amend. Compl., ¶¶ 20, 22)
Plaintiffs are all non-incumbents who “have worked for Pride
in a building maintenance capacity at Fort Dix [Army Base] since on
or after July 1, 2010.” (Prop. Amend. Compl., ¶ 13)
are disabled. (Id.)
Also, they all
Indeed, Plaintiffs were specifically “hired
pursuant to an AbilityOne contract requiring Pride to employ a
certain number of disabled workers at Fort Dix.” (Id.)
assert that the CBA’s incumbent/non-incumbent distinction is simply
pretext for disability discrimination, or alternatively,
disparately impacts disabled employees. (See Prop. Amend. Compl.,
Counts One and Two)
Amendments to pleadings “should [be] freely give[n] . . . when
justice so requires.” Fed. R. Civ. P. 15(a)(2).
Rule 15 should be liberally granted in order to ensure that claims
will be decided on their merits rather than on technicalities. See
Dole v. Arco Chemical Co., 921 F.2d 484, 487 (3d Cir. 1990);
Bechtel v. Robinson, 886 F.2d 644, 652 (3d Cir. 1989).
the absence of undue delay, bad faith, dilatory motive, unfair
prejudice, or futility of amendment, amendments should be granted.
Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.
2002)(citing Foman v. Davis, 371 U.S. 178, 182 (1962)).
the complaint is futile if the amendment will not cure the
deficiency in the original complaint or if the amended complaint
cannot withstand a renewed motion to dismiss. Jablonski v. Pan
American World Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988).
As stated in the Court’s previous opinion in this case,
“Plaintiffs’ claims are timely if charges were filed with the EEOC
within 180 days of the discriminatory . . . conduct.” Galluccio v.
Pride Indus., 2016 U.S. Dist. LEXIS 6257 at *5 (D.N.J. Jan. 20,
2016)(citing Mikula v. Allegheny County of Pennsylvania, 583 F.3d
181, 186 (3d Cir. 2009), and Morris V. Eberle & BCI, LLC, No. 136113, 2014 WL 4352872 at *4-5 (D.N.J. Sept. 3, 2014)). 2
The question here is, what is the discriminatory conduct?
The FPA clearly answers that question:
an unlawful employment practice occurs, with respect to
discrimination in compensation in violation of this
subchapter, when a discriminatory compensation decision
or other practice is adopted, when an individual becomes
subject to a discriminatory compensation decision or
other practice, or when an individual is affected by
application of a discriminatory compensation decision or
other practice, including each time wages, benefits, or
The Court denied without prejudice Plaintiffs’ previous Motion
to Amend their complaint because the Proposed Amended Complaint
(Docket #12-5) did not allege when Plaintiffs filed charges with
the EEOC. The current Proposed Amended Complaint (Docket #42-1)
remedies that deficiency.
other compensation is paid, resulting in whole or in
part from such a decision or other practice.
42 U.S.C. § 2000e-5(e)(3)(A) (emphasis added).
Thus, if each
plaintiff received a paycheck within 180 days of July 9, 2015-the date each filed their EEOC charges (Prop. Amend. Compl., ¶
13)-- then their ADA claims are timely.
Since the plaintiffs are
all alleged to be hired around July, 1, 2010 (Prop. Amend. Compl.
¶ 17), and are currently still employed by Pride (Prop. Amend.
Compl. ¶¶ 5, 7-12), the Court may plausibly infer that each
received an allegedly discriminatory paycheck within the
administrative period, and may therefore conclude that the claims
In an attempt to circumvent the above analysis, Defendants
rely on caselaw which has held that the FPA does not apply to
certain types of claims-- namely, failure-to-promote claims and
See, e.g., Noel v. The Boeing Co., 622
F.3d 266 (3d Cir. 2010); Almond III v. Unified Sch. Dist. #501,
749 F. Supp. 2d 1196 (D. Kan. 2010).
In distinguishing such
claims from wage discrimination claims, courts have explained that
the distinction makes sense because “compensation decisions . . .
are often concealed and not discovered until long after the 180or 300-day administrative period expires,” whereas “discrete
employment decisions, like promotion decisions” are usually
“‘fully communicated discrete acts [which are] easy to identify as
discriminatory’” at the time the action is taken.
Noel, 622 F.3d
at 274 (quoting Justice Ginsburg’s dissenting opinion in Ledbetter
v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618, 645 (2007)).
Defendants seek to extend that reasoning to this case, which
clearly alleges pay discrimination.
Defendants argue that here,
the decision to pay non-disabled incumbents and disabled nonincumbents differently was fully communicated and not concealed,
because it was the subject of collective bargaining; therefore,
the Court should hold that the FPA does not apply to Plaintiffs’
The flaw in Defendants’ reasoning, however, is that the
statute unambiguously applies to “discriminatory compensation
decisions,” which is exactly what Plaintiffs allege in this case.
Moreover, consistent with the statutory language, Third
Circuit precedent demonstrates that the determination of whether
the FPA applies to a particular claim does not turn on plaintiffs’
knowledge of the discriminatory conduct, but rather the type of
See Noel, 622 F.3d at 275 (“a failure-to-promote
claim is not a discrimination-in-compensation charge within the
meaning of the FPA.”); Mikula, 583 F.3d at 186 (holding that “the
failure to answer a request for a raise qualifies as a
compensation decision,” and therefore concluding that the FPA
applied to Mikula’s Title VII pay discrimination claim); see also
Aubrey v. City of Bethlehem, 466 F. App’x 88, 94 (3d Cir.
2012)(“[T]he Ledbetter Act does not apply, and therefore cannot
excuse a time barred claim, when a plaintiff has not alleged wage
discrimination.”); Davis v. Bombardier Transp. Holdings (USA),
Inc., 794 F.3d 266, 270 (2d Cir. 2015) (“[We] concur with the
Third Circuit’s assessment that ‘the plain language of the
[Ledbetter Act] covers compensation decisions and not other
discrete employment decisions,’ such as hirings, firings,
promotions, and demotions.”)(quoting Noel). 3
Plaintiffs here allege wage discrimination; therefore the FPA
applies, and Plaintiffs’ claims are timely.
amendment would not be futile, and Plaintiffs’ Motion to Amend
will be granted.
For the reasons set forth above, Plaintiffs’ Motion to Amend
the Complaint will granted.
An appropriate Order accompanies this Opinion.
September 13, 2016
At Camden, New Jersey
___s/ Noel L. Hillman __
Noel L. Hillman, U.S.D.J.
For this reason, the Court also rejects Defendants’ alternative
argument that if the Court grants the Motion to Amend, the Court
should initially limit discovery to the issue of Plaintiffs’
knowledge of the alleged discriminatory conduct.
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