SHINN et al v. FEDEX FREIGHT, INC. et al

Filing 27

OPINION. Signed by Judge Noel L. Hillman on 12/6/2016. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

STANLEY SHINN and PAUL ELLIS,

Civ. No. 16-777 (NLH/KMW)
OPINION

Plaintiffs,
v.
FEDEX FREIGHT, INC.,
Defendant.

APPEARANCES:
LAW OFFICES OF ERIC A. SHORE, P.C.
By: Graham F. Baird, Esq.
Two Penn Center
1500 JFK Boulevard, Suite 1240
Philadelphia, Pennsylvania 19110
Counsel for Plaintiffs
BALLARD SPAHR LLP
By: David S. Fryman, Esq.
Amy L. Bashore, Esq.
Steven D. Millman, Esq.
210 Lake Drive East, Suite 200
Cherry Hill, New Jersey 08002
Counsel for Defendant

HILLMAN, District Judge
This is an employment retaliation suit brought by
Plaintiffs Stanley Shinn and Paul Ellis, both former drivers for
Defendant FedEx Freight (“FedEx”).

FedEx presently moves to

dismiss six of the seven counts of the Amended Complaint.
the reasons set forth herein, the Motion will be granted in

For

part, denied in part, and denied as moot in part.

I.
A.

Plaintiff Shinn
Shinn was hired by FedEx as a driver in 2003.

Compl. ¶ 10)

(Amend.

He was fired on May 21, 2015. (Id. ¶ 26)

Shinn

alleges that he was fired for two unlawful reasons.
First, Shinn alleges that he was fired in retaliation for
participating in an investigation into a confrontation in a
break room involving Plaintiffs Shin and Ellis on the one hand,
and another driver, Steven Buckley, on the other. (Amend. Compl.
¶¶ 19-25)
According to the Amended Complaint, on April 29, 2015,
Buckley allegedly walked into the break room and said to
Plaintiffs, “‘hey you two union fags, you couple of Facebook
fags,’” (Amend. Compl. ¶¶ 19-20) to which “Shin replied, ‘you
want to go outside and talk about who is a fag?’” (Id. ¶ 22)
The Amended Complaint does not allege what happened next,
although the Amended Complaint does state that “at no time did
Shinn or Beckley get into any physical altercation.” (Id. ¶ 29)
FedEx allegedly “initiated an investigation” into the
incident, and both Plaintiffs were interviewed as to what
happened. (Amend. Compl. ¶ 24)
month after the incident.

Shinn was fired less than a

FedEx allegedly “took no action

whatsoever against Buckley.” (Amend. Compl. ¶ 27)

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Second, Shinn alleges he was fired for participating in
union organizing activities in 2014.

Specifically, the Amended

Complaint alleges that both Shinn and Plaintiff Ellis advocated
for unionizing, and then subsequently signed affidavits in
support of the Teamster’s unfair labor practice charge against
FedEx filed with the NLRB. (Amend. Compl. ¶ 12-17)
B.

Plaintiff Ellis
Ellis was hired as a driver in 2004. (Amend. Compl. ¶ 8)

He was fired on July 9, 2015. (Id. ¶ 34)
fired for three unlawful reasons.

Ellis alleges he was

In addition to the two

reasons described above -- participating in the investigation
into the Shinn-Buckley break room confrontation (Amend. Compl. ¶
38), and unionizing activities (Id. ¶ 39) -- Ellis alleges that
he was fired in retaliation for using leave time authorized by
the Family Medical Leave Act. (Id. ¶ 37)
Specifically, Ellis allegedly took a medical leave day on
May 22, 2015 (Amend. Compl. ¶ 30), and was informed by another
driver later that same day that Ellis had been assigned a
particularly “distressing and oppressive” delivery assignment.
(Id. ¶ 32)

Ellis was fired a little over a month later.

The Amended Complaint asserts the following counts: (1)
“Title VII retaliation”; (2) “Title VII hostile work
environment”; (3) violation of the New Jersey Constitution,
Article 1, paragraph 19; (4) violation of New Jersey’s
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Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1
et seq.; (5) violation of the Family Medical Leave Act (FMLA),
29 U.S.C. § 2615 (asserted by Plaintiff Ellis only); (6)
violation of New Jersey’s Law Against Discrimination (LAD),
N.J.S.A. 10:5-1 et seq.; and (7) “wrongful termination under New
Jersey common law.” 1
FedEx moves to dismiss all claims except Plaintiff Ellis’
FMLA claim.
II.
When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted
pursuant to Federal Rule of Civil Procedure 12(b)(6), a court
must accept all well-pleaded allegations in the complaint as
true and view them in the light most favorable to the plaintiff.
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005).

It is well

settled that a pleading is sufficient if it contains “a short
and plain statement of the claim showing that the pleader is
entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

Under the liberal federal pleading rules, it is not
necessary to plead evidence, and it is not necessary to plead

1

The Court has subject matter jurisdiction pursuant to 28
U.S.C. §§ 1331 (federal question), 1332 (diversity of
citizenship) and 1367 (supplemental jurisdiction). Plaintiffs
are citizens of New Jersey. Defendant is a citizen of Tennessee
and Delaware. The amount in controversy is alleged to exceed
$150,000.
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all the facts that serve as a basis for the claim. Bogosian v.
Gulf Oil Corp., 562 F.2d 434, 446 (3d Cir. 1977).

However, “the

Federal Rules of Civil Procedure . . . do require that the
pleadings give defendant fair notice of what the plaintiff’s
claim is and the grounds upon which it rests.” Baldwin Cnty.
Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 n.3 (1984)
(quotation and citation omitted).
A district court, in weighing a motion to dismiss, asks
“‘not whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support the
claim.’” Bell Atlantic v. Twombly, 550 U.S. 544, 563 n.8 (2007)
(quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also
Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009)(“Our decision in
Twombly expounded the pleading standard for ‘all civil actions’
. . . .”); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2009)(“Iqbal . . . provides the final nail in the coffin for the
‘no set of facts’ standard that applied to federal complaints
before Twombly.”).
III.
A.

The New Jersey Constitution count (Count III)
In response to the instant Motion to Dismiss, Plaintiffs

state in their brief that “Plaintiffs voluntarily withdraw Count
III of their Amended Complaint.” (Opposition Brief, p. 13,
Docket #24-1)

The Court expects that Plaintiffs will promptly
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file the appropriate Notice of Dismissal pursuant to Fed. R.
Civ. P. 41(a)(1)(A)(i).
FedEx’s Motion to Dismiss Count III will be denied as moot.
B.

The Title VII counts (Counts I and II)
FedEx moves to dismiss the Title VII claims asserting that

Plaintiffs failed to exhaust their EEOC administrative remedies.
In opposition, Plaintiffs argue that they “filed NLRB complaints
against FedEx,” and therefore “[t]o force Plaintiffs to re-file
the identical charge or claims with the EEOC would be wasteful
[and] unduly burdensome.” (Opposition Brief, p. 13, Docket #241)
Plaintiffs’ argument fails.

The statute requires EEOC

exhaustion, see 42 U.S.C. § 2000e-5(f)(1); the Court cannot
excuse the statutory requirement.

FedEx’s Motion to Dismiss the

Title VII claims will be granted.
C.

The CEPA count (Count IV)
Plaintiffs assert that FedEx violated CEPA when it fired

Plaintiffs allegedly in retaliation for “participating in the
NLRB charging process and investigation.” (Amend. Compl. ¶ 69)
FedEx argues this claim is preempted by the National Labor
Relations Act.

The Court agrees.

A CEPA claim will be preempted by the NLRA when it presents
a question that would be within the jurisdiction of the NLRB.

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Puglia v. Elk Pipeline, Inc., 226 N.J. 258, 289 (2016)(“ The
concern animating federal preemption . . . is one of primary
jurisdiction. . . . The critical inquiry is thus whether the
controversy presented to the state court is identical to . . .
or different from . . . that which could have been, but was not,
presented to the Labor Board.”)(internal citation and quotation
omitted).

Such analysis is rather simple in this case because

not only were Plaintiffs’ claims within the NLRB’s jurisdiction,
those claims were “fully investigated and considered” by the
NLRB, and then dismissed based on “insufficient evidence.”
(Amend. Compl. Ex. B)
Indeed, the NLRB has held that firing an employee for
participating in a Board investigation violates Section 8(a)(4)
of the Act. Caterpillar, Inc., 322 NLRB 674 (1996); Pillsbury
Chem. Oil Co., 317 NLRB 261 (1995).

Thus, it is clear that

Plaintiffs’ CEPA claims, which are based on the allegation that
they were fired in retaliation for participating in a Board
investigation, are preempted.
Plaintiffs argue in conclusory fashion that their CEPA
claims fall within the “local interest” exception to preemption
because CEPA is a broad remedial statute intended to effectuate
important social goals.

This argument fails.

“The ‘critical

inquiry’ in the ‘local interest’ cases ‘is not whether the State
is enforcing a law relating specifically to labor relations or
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one of general application but whether the controversy presented
to the state court is identical to . . . or different from . . .
that which could have been, but was not, presented to the
NLRB.’” Londono v. ABM Janitorial Servs., 2014 U.S. Dist. LEXIS
172475 (D.N.J. Dec. 12, 2014)(quoting Sears v. San Diego Cnty.
Dist. Council of Carpenters, 436 U.S. 180, 197 (1978)).
the local interest exception does not apply.

Thus,

FedEx’s Motion to

Dismiss the CEPA count will be granted.
D.

The NJ LAD count (Count VI)--retaliation
FedEx argues that the NJ LAD counts is simply a

“repackaging” of the CEPA claim, and therefore the NJ LAD claim
is also preempted by the NLRA, and should be dismissed in its
entirety.

The Court does not reach this issue, however, because

Plaintiffs’ LAD claim -- to the extent it is based on the
allegation that they were fired in retaliation for union
activity or participation in an NLRB investigation -- fails
simply because the LAD does not protect union membership or
support.
The statute protects against discrimination on the basis of
“race, creed, color, national origin, ancestry, age, marital
status, civil union status, domestic partnership status,
affectional or sexual orientation, genetic information,
pregnancy, sex, gender identity or expression, disability or
atypical hereditary cellular or blood trait of any individual,
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or because of the liability for service in the Armed Forces of
the United States or the nationality of any individual, or
because of the refusal to submit to a genetic test or make
available the results of a genetic test to an employer.”
N.J.S.A. § 10:5-12.

Participation in union activities or union

membership does not fall within the statute.
Sexual orientation, however, does.

To the extent

Plaintiffs’ claims are based on the allegations that they were
fired because of their perceived sexual orientation, or their
participation in an investigation into whether another employee
was harassing Plaintiffs on the basis of their perceived sexual
orientation, the claims are not preempted by the NLRA and are
actionable under the NJ LAD.
FedEx’s Motion to Dismiss the NJ LAD count will be granted
insofar as the count is based upon alleged union activity or
participation in an NLRB investigation, and will be denied
insofar as the count is based on Plaintiffs’ alleged
participation in the investigation of the Shinn-Buckley break
room confrontation.
E.

The NJ LAD count (Count VI)--hostile work environment
To the extent that the NJ LAD count also asserts a hostile

work environment claim, FedEx argues the claim fails because
there are insufficient allegations to support a plausible

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conclusion that FedEx’s actions were severe or pervasive.

The

Court agrees.
The Amended Complaint alleges a single confrontation, in a
break room, where a single co-worker allegedly uttered a
derogatory term concerning Plaintiffs’ perceived sexual
orientation.
In opposition, Plaintiffs rely on Taylor v. Metzger, where
the New Jersey Supreme Court stated that “a single utterance of
an epithet can, under certain circumstances, create a hostile
work environment.” 152 N.J. 490, 501-03 (1998).

Taylor is

distinguishable from this case however, because the person who
uttered the epithet in Taylor was a supervisor, whereas Buckley
is alleged to have been a coworker.

Several other courts have

distinguished Taylor on this basis. See Nuness v. Simon &
Schuster, Inc., 2016 U.S. Dist. LEXIS 159315 (D.N.J. Nov. 17,
2016)(Simandle, Chief District Judge)(“The facts of the Taylor
case can be distinguished from the facts in the present matter.
While the insult at issue here was clearly a racist slur and
directed at the plaintiff, it was not uttered by a supervisor
like in Taylor, but by a co-worker.”); Bagley v. W.J. Maloney
Plumbing, 2014 U.S. Dist. LEXIS 185309 (D. Ariz. Feb. 10,
2014)(“Taylor is factually distinguishable in that the racially
offensive comment was made by the highest ranking official in
the county sheriff’s office.”); Shaw v. FedEX Corp., 2012 N.J.
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Super. Unpub. LEXIS 1872 (App. Div. July 20, 2012)(“We reject
plaintiff’s argument that her circumstances were similar to
those of the plaintiff in Taylor, where the county sheriff, in
front of a high ranking undersheriff, referred to the plaintiff,
an African-American sheriff’s officer, by a very insulting
racial slur and, later, berated her for feeling insulted.

As

the Supreme Court noted, when the chief executive of the
organization utters an unambiguously demeaning racial slur in
front of another high ranking supervisor, the one severely
insulting comment could be found to signal pervasive workplace
racial hostility. In contrast, Hicks was plaintiff’s co-worker,
with no power to alter the terms of employment or the
workplace.”)(citations and quotations omitted); Shain v. Hel
Ltd., 2012 N.J. Super. Unpub. LEXIS 454 (App. Div. Mar. 2, 2012)
(“Unlike in Taylor, the discriminatory comment was not made by
plaintiff’s ultimate supervisor.”).
Accordingly, FedEx’s Motion to Dismiss the hostile work
environment claim will be granted.

However, if Plaintiffs wish

to supplement the current allegations supporting their hostile
work environment claims, they may file a Second Amended
Complaint within 30 days.
F.

The common law wrongful termination claim (Count VII)
FedEx argues that the common law wrongful termination count

should be dismissed because it is coterminous with the statutory
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claims asserted.

The cases upon which FedEx relies, however,

are decisions made at summary judgment.

The Court declines to

dismiss this count at the pleadings stage; alternate pleading is
expressly allowed by the Federal Rules of Civil Procedure. See
Fed. R. Civ. P. 8(d).

FedEx’s Motion to Dismiss the wrongful

termination count will be denied.
IV.
For the foregoing reasons, Defendants’ Motion to Dismiss
will be denied as moot as to Count III.
granted as to Counts I, II, and IV.
as to Count VII.

The Motion will be

The Motion will be denied

As to Count VI, the NJ LAD count, the motion

will be granted as to the hostile work environment claim
however, Plaintiffs will be granted leave to amend; the motion
will be denied insofar as the count is based on Plaintiffs’
alleged participation in the investigation of the Shinn-Buckley
break room confrontation; and the motion will be granted in all
other respects.
An appropriate order accompanies this opinion.

Dated: December 6, 2016
At Camden, New Jersey

s/ Noel L. Hillman____
NOEL L. HILLMAN, U.S.D.J.

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