OLEARY v. COUNTY OF SALEM et al
Filing
114
OPINION. Signed by Judge Noel L. Hillman on 4/25/2018. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TIFFANY O’LEARY,
Plaintiff,
1:15-cv-03862-NLH-AMD
OPINION
v.
COUNTY OF SALEM
CORRECTIONAL FACILITY AND
SHERIFFS OFFICE) and ROWAN
COLLEGE AT GLOUCESTER COUNTY
GLOUCESTER COUNTY POLICE
ACADEMY,
Defendants.
APPEARANCES:
SARAH F. MEIL
4839 WALTON AVE.
PHILADELPHIA, PA 19143
On behalf of Plaintiff
THOMAS J. WAGNER
AMY L. WYNKOOP
LAW OFFICES OF THOMAS J. WAGNER
8 PENN CENTER - 6TH FLOOR
1628 JOHN F. KENNEDY BOULEVARD
PHILADELPHIA, PA 19103
On behalf of Defendant County of Salem
CHRISTINE P. O'HEARN
CHRISTOPHER ALBERT REESE
BROWN & CONNERY, LLP
360 HADDON AVENUE
PO BOX 539
WESTMONT, NJ 08108
On behalf of Defendant Rowan College at Gloucester County
Gloucester County Police Academy
HILLMAN, District Judge
This case concerns claims by Plaintiff, Tiffany O’Leary,
against Defendants the County of Salem and Rowan College at
Gloucester County Gloucester County Police Academy (“RCGC”) for
discrimination based on sex, disability, and whistleblowing
activity.
Plaintiff worked as a Corrections Officer at Salem
County Correctional Facility (“SCCF”), and after several years
in that position, Plaintiff’s employment with Salem County
changed from a corrections officer to a Salem County Sheriff’s
Officer Recruit.
She left her position at SCCF and began
attending the RCGC.
police academy.
Ultimately she was dismissed from the
As a result, she could not become a Sheriff’s
Officer and SCCF denied Plaintiff’s request to return to her
position as a corrections officer.
Plaintiff filed the instant suit against Salem County and
RCGC alleging numerous violations of her rights under the New
Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 et
seq., the Americans with Disabilities Act (ADA), 42 U.S.C. §
12111 et seq., Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., and the New Jersey Contentious Employee
Protection Act (CEPA), N.J.S.A. 34:19-1 et seq. 1
Salem County
and RCGC moved for summary judgment, and the Court granted in
1
The Court has subject matter jurisdiction pursuant to 28 U.S.C.
§ 1331 because Plaintiff brings claims arising under federal law.
The Court has supplemental jurisdiction over Plaintiff’s state law
claims pursuant to 28 U.S.C. § 1367.
2
part and denied in part their motions.
(Docket No. 86, 87.)
Salem County has moved for reconsideration of the Court’s
decision on three points.
First, Salem County argues that the
Court erroneously permitted a hostile work environment claim
under the NJLAD to proceed against it, separate from Plaintiff’s
hostile work environment under Title VII, even though Plaintiff
does not assert that specific claim in her complaint.
Second,
Salem County argues that the Court did not consider its
exhaustion of administrative remedies argument relative to the
Title VII hostile work environment claim against the Sheriff’s
Office.
Third, Salem County argues that the Order accompanying
the Opinion should be amended to reflect Plaintiff’s concession
that her retaliation claims under the NJLAD should be dismissed.
In opposition to Salem County’s motion, Plaintiff argues
that all the parties considered a hostile work environment claim
under the NJLAD to be in the case during the entire course of
discovery, and that Salem County moved for summary judgment on
that claim, never contending that it was not pleaded in
Plaintiff’s complaint.
Plaintiff further argues that her
complaint can easily be read to plead such a claim, and if more
particularity is needed, she should be granted leave to amend
3
her complaint to specify that claim. 2
Plaintiff also argues that
she satisfied her exhaustion of administrative remedies for her
Title VII claim.
With regard to Salem County’s request to amend
the Order, Plaintiff does not object.
A motion for reconsideration may be treated as a motion to
alter or amend judgment under Fed. R. Civ. P. 59(e), or as a
motion for relief from judgment or order under Fed. R. Civ. P.
60(b), or it may be filed pursuant to Local Civil Rule 7.1(i).
The purpose of a motion for reconsideration “is to correct
manifest errors of law or fact or to present newly discovered
evidence.”
Max's Seafood Cafe ex rel. Lou–Ann, Inc. v.
Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).
A judgment may be
altered or amended only if the party seeking reconsideration
shows: (1) an intervening change in the controlling law; (2) the
availability of new evidence that was not available when the
court granted the motion for summary judgment; or (3) the need
to correct a clear error of law or fact or to prevent manifest
injustice.
Id.
A motion for reconsideration may not be used to
re-litigate old matters or argue new matters that could have
been raised before the original decision was reached, P.
Schoenfeld Asset Mgmt., L.L.C. v. Cendant Corp., 161 F. Supp. 2d
2
To that end, Plaintiff has filed a cross-motion for leave to file
an amended complaint. (Docket No. 101.)
4
349, 352 (D.N.J. 2001), and mere disagreement with the Court
will not suffice to show that the Court overlooked relevant
facts or controlling law, United States v. Compaction Sys.
Corp., 88 F. Supp. 2d 339, 345 (D.N.J. 1999), and should be
dealt with through the normal appellate process, S.C. ex rel.
C.C. v. Deptford Twp Bd. of Educ., 248 F. Supp. 2d 368, 381
(D.N.J. 2003); U.S. v. Tuerk, 317 F. App’x 251, 253 (3d Cir.
2009) (quoting Mayberry v. Maroney, 529 F.2d 332, 336 (3d Cir.
1976)) (stating that “relief under Rule 60(b) is
‘extraordinary,’ and ‘may only be invoked upon a showing of
exceptional circumstances'”).
The Court will address Salem County’s arguments in turn.
(1)
Whether the Court erroneously permitted a hostile work
environment claim under the NJLAD to proceed against
Salem County.
Salem County’s moving brief in support of its motion for
summary judgment argued that Plaintiff’s evidence failed to
support a hostile work environment claim against SCCF and the
Sheriff’s Office.
Neither the brief’s opening “statement of
question presented” nor its argument section distinguished
claims brought under the NJLAD and Title VII.
24, 32-33.)
(Docket No. 64 at
Plaintiff’s opposition brief argued that both her
NJLAD and Title VII hostile work environment claims should be
permitted to proceed, and she set forth the standards for both
claims.
(Docket No. 73 at 34-35.)
5
Salem County’s reply brief
again did not distinguish between the two claims and did not
specifically object to Plaintiff’s assertion of both claims,
arguing instead (citing mostly to cases involving the NJLAD)
for summary judgment on Plaintiff’s hostile work environment
claims in general.
(Docket No. 8 at 8-9.)
Because the parties presented to the Court arguments for
and against the viability of hostile work environment claims
under Title VII and the NLJAD, it is evident they both
considered a hostile work environment claim under the NJLAD to
be a part of Plaintiff’s complaint.
To the extent that Salem
County has changed its previous point of view by discovering
after the fact that Plaintiff’s complaint does not specifically
aver a violation of the NJLAD for hostile work environment, the
Court finds, consistent with the parties’ conduct up until the
date the Court issued its Opinion, that such a claim can be
fairly construed from Plaintiff’s complaint and remains viable.
Because the complaint is the blueprint of the case, the
Court will grant Plaintiff’s request to amend her complaint to
assert a specific count as to Salem County’s alleged violation
of the NJLAD for fostering a hostile work environment. 3
3
See Fed.
Plaintiff’s second amended complaint is 27 pages and asserts 24
counts. (Docket No. 4.) Salem County argues such a
comprehensive complaint evidences that Plaintiff intentionally
omitted a hostile work environment claim under NJLAD. Because
the allegations in the complaint assert facts to support a
hostile work environment, and Plaintiff asserts a hostile work
6
R. Civ. P. 15(a)(2) (providing that the Court “should freely
give leave” to a plaintiff to file an amended complaint “when
justice so requires”).
Amendment is proper under these
circumstances because there is no undue delay, bad faith,
dilatory motive, unfair prejudice, or futility of amendment.
See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.
2002) (citing Foman v. Davis, 371 U.S. 178, 182 (1962))
(directing that an amendment must be permitted in the absence of
these five considerations). 4
environment claim under Title VII, along with 23 other claims
including numerous under the NLJAD, the Court considers the
omission a likely oversight.
4
If Salem County waited to make this argument at trial rather
than through a motion for reconsideration, and Plaintiff had
presented her evidence in support of her NJLAD hostile work
environment claim, Fed. R. Civ. P. 15(b) would provide the same
result. See Fed. R. Civ. P. 15(b)(1) (“If, at trial, a party
objects that evidence is not within the issues raised in the
pleadings, the court may permit the pleadings to be amended. The
court should freely permit an amendment when doing so will aid
in presenting the merits and the objecting party fails to
satisfy the court that the evidence would prejudice that party's
action or defense on the merits.”); Fed. R. Civ. P. 15(b)(2)
(“When an issue not raised by the pleadings is tried by the
parties’ express or implied consent, it must be treated in all
respects as if raised in the pleadings. A party may move—at any
time, even after judgment—to amend the pleadings to conform them
to the evidence and to raise an unpleaded issue. But failure to
amend does not affect the result of the trial of that issue.”).
Moreover, the proof and standards for both claims are
functionally the same. See Moody v. Atlantic City Board of
Education, 870 F.3d 206 (3d Cir. 2017) (citing Meritor Sav.
Bank, FSB v. Vinson, 477 U.S. 57, 65-66 (1986); Lehmann v. Toys
‘R’ Us, Inc., 626 A.2d 445, 452 (N.J. 1993) (explaining that the
New Jersey Supreme Court “has frequently looked to federal
7
Consequently, the Court will permit Plaintiff’s NJLAD
hostile work environment claim to proceed against Salem County,
as it did so in the Opinion, and Plaintiff shall file a third
amended complaint to specifically list that claim.
(2)
Whether the Court erred by not dismissing Plaintiff’s
Title VII hostile work environment claim for her
failure to exhaust her administrative remedies.
Salem County argues that the Court did not address
Plaintiff’s lack of opposition to its argument that Plaintiff’s
EEOC charge did not contain any Title VII hostile work
environment allegations against the Sheriff’s Office, separate
from her allegations against SCCF, and it therefore is barred.
As pointed about by Plaintiff, the Sheriff’s Office and
SCCF are not separate defendants - rather, they are essentially
subparts of one defendant - Salem County. 5
Plaintiff’s EEOC
charge is directed to “Salem County (Sheriff’s Office),” the box
precedent governing Title VII” to interpret and apply the
NJLAD)).
5
In response to Salem County’s argument that some of Plaintiff’s
claims were time barred because of her change in employment from
the SCCF and Sheriff’s Office, the Court noted in the Opinion,
“Salem County does not offer evidence to refute Plaintiff’s
contention that she remained a Salem County employee from
November 2010 through June 12, 2014, even though she switched
positions within two different County organizations.” (Docket
NO. 86 at 6 n.3.) Even though Plaintiff is suing her employer –
Salem County – at trial Plaintiff will be obligated to present
evidence of the specific actions of SCCF and the Sheriff’s
Office to prove her claims.
8
for “sex” is checked for “cause of discrimination,” she relates
some of what she claimed occurred at SCCF and the Sheriff’s
Office, and she states that she feels she was terminated based
on sex and sex discrimination.
(Docket No. 64-5 at 2.)
In the Opinion, the Court set forth the standard for
construing a EEOC complaint, and noted that the relevant test in
determining whether a plaintiff has exhausted her administrative
remedies, is “whether the acts alleged in the subsequent Title
VII suit are fairly within the scope of the prior EEOC
complaint, or the investigation arising therefrom.”
86 at 8.)
(Docket No.
The Court further noted that a plaintiff’s suit will
not be barred for failure to exhaust administrative remedies if
the “core grievances” in the Title VII suit filed and the
earlier EEOC complaint are the same.
(Id. at 9.)
The Court then found that the “core grievance” of
Plaintiff’s charge concerned what occurred upon her transfer to
the Sheriff’s Office, and determined that Plaintiff could not
maintain a Title VII retaliation claim against Salem County
specifically concerning her whistleblowing activity.
10)
(Id. at
The Court continued, however, by finding that “[t]his
discrete carve out of Plaintiff’s claims against Salem County
does not affect substantively the analysis of the remainder of
Plaintiff’s claims against Salem County,” and the Court went on
to discuss Plaintiff’s claims against Salem County under CEPA
9
for retaliation for her whistleblowing, and her claims against
Salem County under the NJLAD and Title VII for sex
discrimination and harassment while she served as a corrections
officer and at the Sheriff’s Office.
All of the claims were
permitted to proceed past summary judgment.
(Id.)
Implicit in
this finding is that other than Plaintiff’s retaliation claim,
Plaintiff’s EEOC charge was sufficient to maintain her other
claims, including for sexual harassment.
The fact that
Plaintiff did not use the term of art “hostile work environment”
does not change the content of her core grievances in the EEOC
charge.
Consequently, the Court does not find that
reconsideration on this issue is warranted.
(3)
Whether the Order should be amended
The Court noted in the Opinion:
A plaintiff may not maintain a claim for retaliation for a
CEPA protected activity in tandem with a retaliation claim
under the NJLAD. See N.J.S.A. 34:19–8 (providing that when
a plaintiff files an action under CEPA, other state law
retaliation claims are waived). Plaintiff recognizes
CEPA’s waiver position, and clarifies that she is not
asserting a claim for retaliation under the NJLAD.
(Docket No. 86 at 10 n.4.)
Salem County points out that this finding was not accounted
for in the Court’s Order, and it requests that the Court enter
an amended order.
Plaintiff does not object.
The Court will
therefore file an amended Order to reflect this issue.
10
CONCLUSION
For the reasons expressed above, the Court will grant Salem
County’s request to reconsider the Opinion and Order resolving
its summary judgment motion, but the Court does not find that
reconsideration is warranted on the issue of permitting a
hostile work environment claim under the NJLAD to proceed
against it, or on the issue of the exhaustion of administrative
remedies argument relative to Plaintiff’s Title VII hostile work
environment claim against the Sheriff’s Office.
The Court will
file an amended Order to reflect the dismissal of Plaintiff’s
retaliation claims under the NJLAD.
Plaintiff’s motion for
leave to file a third amended complaint to aver precisely a
claim for hostile work environment under the NJLAD against Salem
County will be granted. 6
An appropriate Order will be entered.
Date: April 25, 2018
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
6
Plaintiff’s third amended complaint should reflect all the
findings made by this Court in this decision and its summary
judgment Opinion, in addition to any other relevant developments
that may have affected her claims since the filing of her second
amended complaint.
11
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