NUNESS v. SIMON AND SCHUSTER, INC. et al
Filing
16
OPINION. Signed by Chief Judge Jerome B. Simandle on 11/17/2016. (dmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
TYSHANNA NUNESS
Plaintiff,
v.
HONORABLE JEROME B. SIMANDLE
SIMON AND SCHUSTER, INC; CBS
CORP; JOHN DOES 1-100; ABC
CORPS 1-100
Civil No. 16-2377 (JBS/KMW)
Defendants.
OPINION
APPEARANCES:
Toni L. Telles, Esq.
LANCE BROWN & ASSOCIATES, LLC
1898 Route 33
Hamilton, NJ 08690
Attorney for Plaintiff
Paul C. Evans, Esq.
MORGAN, LEWIS & BOCKIUS LLP
1701 Market St.
Philadelphia, PA 19103
Attorney for Defendants
SIMANDLE, Chief Judge:
I.
INTRODUCTION
Plaintiff Tyshanna Nuness (“Plaintiff” or “Ms. Nuness”)
filed this lawsuit against her employers Simon & Schuster, Inc.
and CBS Corp. (“Defendants”) under the New Jersey Law Against
Discrimination (“NJLAD”), N.J.S.A. 10:5-1, et seq., as she
specifically brings claims of racial harassment, constructive
discharge, and retaliatory discharge. Plaintiff alleges that a
co-worker harassed her on one occasion by calling her a racial
epithet, and after Defendants suspended the co-worker for a week
and subsequently placed him back on the same shift as Plaintiff,
she felt so uncomfortable that she had no choice but to resign.
Presently before the Court is Defendants’ motion to dismiss
all claims pursuant to Fed. R. Civ. P. 12(b)(6). [Docket Item
8.] For the reasons set forth below, the Court will grant in
part and deny in part Defendants’ motion without prejudice.
II.
BACKGROUND
A. Factual Background
The Amended Complaint alleges that from February 1, 2014 to
March 20, 2015, Plaintiff, a female African-American line picker
employed by Defendants, worked in “close proximity” and
“alongside” Christopher Hankins, a male Caucasian line picker.
(Am. Compl. at ¶¶ 4, 6-10, 20-21.) Prior to the March 1, 2015
incident described below, Mr. Hankins was “often in trouble for
speaking inappropriately towards co-workers,” and Defendants had
even “held a department meeting” regarding his inappropriate
behavior prior to the incident at issue, but did not take any
further disciplinary action at that time. (Id. at ¶¶ 11-13.)
On March 1, 2015, Mr. Hankins referred to Plaintiff as a
“niglet” — a “racist remark[]” that “highly offended” her. (Id.
at ¶¶ 14-15, 22.) Plaintiff reported the incident to her
2
immediate supervisor, Marcellus Williams (“Ms. Williams”) when
it occurred, and Ms. Williams forwarded the complaint to the
Director of Human Resources, Jacqueline Tuccillo (“Ms.
Tuccillo”). (Id. at ¶¶ 16-17.) Defendants decided to suspend Mr.
Hankins for one week given his inappropriate conduct, but
Defendants then placed him back on the same shift as Plaintiff,
thereby “forc[ing]” Ms. Nuness to work in “close proximity” to
the same person who uttered the epithet. (Id. at ¶¶ 18-20.)
Because Plaintiff now “felt uncomfortable and unsafe” working
near Mr. Hankins, she alerted Ms. Williams and Ms. Tuccillo
about her concerns, and she requested that either Mr. Hankins be
placed in a different department or on a different shift, or
that she be transferred to a different department or shift. (Id.
at ¶¶ 21-24.) Defendants denied Plaintiff’s request, despite the
availability of “multiple departments and shifts available for
either party,” so Plaintiff and Mr. Hankins continued to work
together on the same shift in the same department. (Id. at ¶¶
25-26.) There is no allegation that Mr. Hankins ever repeated
any racial epithet towards Ms. Nuness. Plaintiff then notified
Ms. Tuccillo that she still “felt uncomfortable coming to work”
because of Mr. Hankins’s prior racist comment, and informed Ms.
Tuccillo that she would be contacting an attorney. (Id. at ¶¶
28, 31.) Ms. Tuccillo replied that “if she did not come to work
3
she would be resigning.” (Id. at ¶ 33.) Because she “could no
longer tolerate the racially charged environment,” Plaintiff was
absent from work for approximately one week. (Id. at ¶¶ 35-36.)
On March 20, 2015, Ms. Tuccillo informed Plaintiff that her
employment was terminated. (Id. at ¶ 37.)
B. Procedural History
Plaintiff filed suit against Defendants in the Superior
Court of New Jersey, Burlington County, Law Division on January
29, 2016, and Defendants removed the action to this Court
pursuant to 28 U.S.C. § 1441 et seq on April 27, 2016. [Docket
Item 1.] Plaintiff filed an Amended Complaint on May 18, 2016.
[Docket Item 5.] Defendants then filed a motion to dismiss all
claims pursuant to Fed. R. Civ. P. 12(b)(6) on May 27, 2016.
[Docket Item 8.]
III. STANDARD OF REVIEW
When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted under
Fed. R. Civ. P. 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 nonmoving party. A motion to dismiss may
be granted only if a court concludes that the plaintiff has
failed to set forth fair notice of what the claim is and the
grounds upon which it rests that make such a claim plausible on
4
its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
Although Rule 8 does not require “detailed factual allegations,”
it requires “more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 555).
Although the court must accept as true all well-pleaded
factual allegations, it may disregard any legal conclusions in
the complaint. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11
(3d Cir. 2009). A plaintiff should plead sufficient facts to
“raise a reasonable expectation that discovery will reveal
evidence of the necessary element,” Twombly, 550 U.S. at 556,
and “[a] pleading that offers labels and conclusions or a
formulaic recitation of the elements of a cause of action will
not do.” Iqbal, 556 U.S. at 678.
Whether a proposed amendment to the complaint should be
permitted at this early stage, when leave to amend should be
freely granted under Rule 15(a)(2), is generally measured by
whether the proposed amendment would be futile. Adams v. Gould,
Inc., 739 F.2d 858, 864 (3d Cir. 1984). “Futility” means that
the complaint, as amended, would fail to state a claim upon
which relief could be granted. Travelers Indem. Co. v. Dammann &
Co., 594 F.3d 238, 243 (3d Cir. 2010); Shane v. Fauver, 213 F.3d
113, 115 (3d Cir. 2000). In assessing “futility,” the court
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applies the same standard of legal sufficiency as applies under
Rule 12(b)(6). Shane, 213 F.3d at 115. Thus, if a claim is
vulnerable to dismissal under Rule 12(b)(6) and the Court finds
that an amendment would not cure the deficiency, the request to
amend will be denied.
IV.
ANALYSIS
A. Racial Harassment Claim
In Count I of her Amended Complaint, Plaintiff asserts a
claim of racial harassment against Defendants under the New
Jersey Law Against Discrimination (“NJLAD”). Section 10:5-12(a)
of the NJLAD makes it unlawful for an employer to discriminate
against an individual because of that person’s disability or
race. N.J.S.A. § 10:5-12(a). To succeed on a racial harassment
claim based upon a hostile work environment, Plaintiff must
demonstrate that “the defendant’s conduct (1) would not have
occurred but for the employee’s race; and the conduct was (2)
severe or pervasive enough to make a (3) reasonable African
American believe that (4) the conditions of employment are
altered and the working environment is hostile or abusive.”
Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir. 2005)
(citations omitted). Defendants argue that the utterance of a
single remark by a co-worker does not meet the standard of
severe or pervasive conduct necessary to properly plead a
6
hostile work environment claim. (Def. Br. at 4.) Additionally,
they argue that Plaintiff has not plead enough facts
demonstrating that Defendants are vicariously liable for the
conduct of an employee. (Id. at 3-4.)
1. Severe or Pervasive Conduct
Defendants argue that while the use of the term “niglet” is
“clearly insensitive” and “not condoned,” it does not meet the
severe or pervasive standard necessary to plead racial
harassment. (Id. at 3-4.) The Court agrees. In evaluating a
hostile work environment claim under both Title VII of the Civil
Rights Act of 1964 (“Title VII”) and the NJLAD, both the Supreme
Court and the Third Circuit have been clear that “offhand
comments, and isolated incidents (unless extremely serious)” are
not sufficient. Faragher v. City of Boca Raton, 524 U.S. 775,
788 (1998); Caver, 420 F.3d at 262. Severe or pervasive
harassment can be distinguished from the “mere utterance of an
ethnic or racial epithet which engenders offensive feelings in
an employee.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67
(1986). In determining if a work environment is hostile or
abusive, courts look to totality of the circumstances, which
should include “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating,
or a mere offensive utterance, and whether it unreasonably
7
interferes with an employee’s work performance.” Mandel v. M & Q
Packaging Corp., 706 F.3d 157, 168 (3d Cir. 2013) (quoting
Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)); see also
Caver, 420 F.3d at 262-63 (“[A] discrimination analysis must
concentrate not on individual incidents, but on the overall
scenario.”). The “sine qua non of a hostile work environment
claim is a ‘workplace . . . permeated with discriminatory
intimidation, ridicule, and insult, that is sufficiently severe
or pervasive to alter the conditions of the victim’s employment
and create an abusive working environment. Fitzgerald v. Shore
Memorial Hosp., 92 F. Supp. 3d 214, 240 (D.N.J. 2015) (citations
omitted). An employment discrimination law such as the NJLAD is
not intended to be a “general civility code” for conduct in the
workplace. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.
75, 80 (1998); Herman v. Coastal Corp., 791 A.2d 238, 250 (N.J.
Super. Ct. App. Div. 2002).
While Mr. Hankins’s remark to Plaintiff was certainly
vulgar and offensive, it does not alone rise to a sufficient
level of severity or pervasiveness to sufficiently plead racial
harassment under the NJLAD. Plaintiff relies on Taylor v.
Metzger for the proposition that a “one incident of harassing
conduct can create a hostile work environment.” 706 A.2d 685,
689 (N.J. Super. Ct. App. Div. 1985). In that case, the
8
plaintiff, a county sheriff’s officer, alleged that her
employer, the county sheriff, violated the NJLAD when he uttered
a racial epithet – “jungle bunny” – in her presence. Id. at 696.
The court there held that the circumstances, specifically
including that (1) the insult was clearly a racist slur, (2) it
was directed against the plaintiff, (3) it was uttered by the
chief ranking supervisor of her employ, the Sheriff of
Burlington County, and (4) it was made in the presence of
another supervising officer, were sufficient to establish the
severity of the harassment. Id. at 693.
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, and
there are no facts in the Amended Complaint indicating that any
other person was present to hear the remark. Moreover, the
Taylor court noted that “it will be a rare and extreme case in
which a single incident will be so severe that it would, from
the perspective of a reasonable [person situated as the
claimant], make the working environment hostile.” Id. at 689
(quoting Lehmann v. Toys R Us, Inc., 626 A.2d 445, 455 (N.J.
1993)). The court indicated that the facts there fell into that
“rare and extreme case” category because the person who uttered
9
the epithet “was not an ordinary co-worker of plaintiff; he was
the . . . chief executive of the office in which plaintiff
worked.” Id. at 691. This fact, according to that court,
“greatly magnifie[d] the gravity of the comment.” Id. As
Defendants argue, Taylor therefore “provides a blueprint for the
kind of “rare” fact pattern that may be cause for finding the
existence of a hostile work environment in a single-incident
case.” (Reply Br. at 3.) While Plaintiff is correct in noting
that there is no “requirement for a single incident of racial
harassment to be made by a supervisor in order for it to be
considered actionable under” the NJLAD, this distinction was
heavily relied on by the Taylor court in finding severe or
pervasive conduct, and Plaintiff can cite to no other case where
a court applying New Jersey law found that a single incident of
harassment was sufficiently severe or pervasive conduct. (Opp’n
at 9.) This is especially true where the sole defendants in this
case are the employer and its parent, who are sought to be held
liable for one remark of a non-supervisory co-worker. As a
result, Plaintiff cannot merely rely on Taylor to properly plead
a racial harassment claim under the NJLAD.
Additionally, federal courts have dismissed claims under
Title VII based on similar facts as the present case. See
Grazioli v. Genuine Parts Co., 409 F. Supp. 2d 569, 576 n. 10
10
(D.N.J. 2005) (“Because the hostile work environment analyses
for Title VII claims and NJLAD claims are ‘strikingly similar,’
the Court will analyze both simultaneously.”). For instance, in
Exantus v. Harbor Bar & Brasserie Restaurant, 386 F. App’x 352,
354 (3d Cir. 2010), the Court held that while defendant’s use of
the epithet “Haitian Fuck” several times was “indeed unpalatable
and inappropriate,” it did not rise to the level of severe or
pervasive. See also Park v. Sec’y U.S. Dept. of Veterans
Affairs, 594 F. App’x 747, 751 (3d Cir. 2014) (holding that one
incident – where a co-worker asked Plaintiff “whether all
Koreans were infected by a fungus - was not severe or pervasive
enough to support a hostile environment claim); Lawrence v. F.C.
Kerback & Sons, 134 F. App’x 570, 572 (3d Cir. 2005) (holding
that while defendant’s racial remark was “disrespectful and
inexcusable,” Plaintiff could not show a hostile work
environment “based on this one isolated incident”). Similarly,
in Jones v. Norton, No. 06-2924, 2008 WL 282251, at *1 (E.D. Pa.
Jan. 31, 2008), the plaintiff pointed to a single altercation,
during which a white co-worker called him a “black son of a
bitch,” a “black motherfucker” and possibly a “nigger”
(Plaintiff did not hear that world clearly). The Court, while
finding the co-worker’s action to be “shameful and
reprehensible,” held that the epithets “simply d[id] not rise to
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the level of racial discrimination required to make out a
hostile work environment claim.” Id. at *3. Additionally, in
Killen v. Northwestern Human Services, Inc., No. 07-3897, 2007
WL 2684541, at *9 (E.D. Pa. Sept. 8, 2008), Plaintiff’s hostile
work environment claim depended on an a series of racially
harassing comments during a three-day audit in which the African
American plaintiff was subjected to derogatory remarks about her
dark skin tone from a lighter-skinned African American
defendant. The Court there held that defendant’s alleged
comments, “especially given their brief duration,” did not rise
to a level of severity which could be said to alter the terms of
the plaintiff’s employment. Id. at *6.
Plaintiff argues that “not a single case cited by
Defendants involves claims of racial harassment and use of the
word as severe as “nigger” or a variance of that word such as
‘niglet.’” (Opp’n at 7-8.) But this does not overcome the fact
that Plaintiff’s allegations, even when considered in the light
most favorable to Plaintiff, do not appear to state grounds for
racial harassment that is either severe or pervasive under New
Jersey law given the totality of the circumstances. Plaintiff
attempts to dismiss Defendants’ reliance on Feeney v. Jefferies
& Co., Inc., No. 09-2708, 2010 WL 2629065 (D.N.J. June 28, 2010)
because the allegation there that Plaintiff was called an “Irish
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cocksucker” is “more appropriately characterized as sexually
harassing and certainly cannot be compared with the racial
epithet Plaintiff endured.” (Opp’n at 8.) Whether or not that
comment was sexually or racially harassing, Plaintiff cannot
explain away Feeney, as the case is quite instructive in
assessing Plaintiff’s Amended Complaint. In that case, not only
was Plaintiff called the epithet by his supervisor, but the
incident occurred “in front of several other . . . employees
during a meeting.” 2010 WL at *2. In addition, Plaintiff alleged
that throughout his year at the company, his supervisor
“continually harassed, verbally abused, and discriminated
against” him. Id. Here, Plaintiff describes only one incident,
not heard by anyone else, and uttered by a co-worker. The facts
as currently plead describe merely an “isolated incident” that
does not change the terms and conditions of employment.
Faragher, 524 U.S. at 788. Thus, Plaintiff has failed to plead
enough facts that would give rise to a hostile work environment
claim under the NJLAD.
2. Vicarious Liability
The Court does not need to reach the issue of vicarious
liability given that it is granting Defendants’ motion to
dismiss Plaintiff’s hostile work environment claim. But even if
Plaintiff could establish a viable claim under the NJLAD, she
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provides no basis for Defendants’ vicarious liability for her
alleged harassment. In New Jersey, an employer is liable for a
co-worker’s harassing conduct only if “management-level
employees knew, or in the exercise of reasonable care should
have known, about the campaign of harassment.” Herman v. Coastal
Corp., 791 A.2d 238, 252 (N.J. Super. Ct. App. Div. 2002).
Furthermore, the plaintiff must show that the employer failed to
provide a reasonable avenue for complaint or was aware of the
alleged harassment and failed to take appropriate remedial
action. See Weston v. Pennsylvania, 251 F.3d 420, 426-27 (3d
Cir. 2001)(citing Kunin v. Sears Roebuck & Co., 175 F.3d 289,
293-94 (3d Cir. 1999)), abrogated in part on other grounds by
Burlington N. & Santa Fe Railway Co. v. White, 548 U.S. 53, 67
(2006). The employer cannot be held liable when it responds in a
manner which stops the harassment. Id.
Plaintiff suggests that courts have imposed liability on
employers “where the employer was negligent, i.e., where it did
not have an effective anti-harassment policies (sic) to prevent
the harassment.” (Opp’n at 10-11.) But Plaintiff does not plead
any facts describing Defendants’ anti-harassment policy and how
it was inadequate. In fact, Plaintiff admits that prior to the
incident at issue, Mr. Hankins “was often in trouble for
speaking inappropriately towards co-workers” (Am. Compl. at ¶
14
11), and once Mr. Hankins called Plaintiff the derogatory term,
he was “suspended for one week.” (Id. at 18). This is the
opposite of employer indifference to the racist remark of a coworker. Without further facts plead regarding Defendant’s antiharassment policies to prevent harassment, Plaintiff cannot
proceed in obtaining vicarious liability against Defendants
based on one comment from a co-worker. Plaintiff provides no
other basis for why the Court should consider Mr. Hankins to be
“within that class of an employer organization’s officials who
may be treated as the organization’s proxy.” Faragher, 524 U.S.
at 789.
B. Constructive Discharge Claim
Next, Plaintiff alleges a constructive discharge claim
under the NJLAD. (Am. Compl. at ¶¶ 47-50.) To properly plead a
constructive discharge, Plaintiff must put forth facts showing
that “the employer knowingly permitted conditions of
discrimination in employment so intolerable that a reasonable
person subject to them would resign.” Aman v. Cort Furniture
Rental Corp., 85 F.3d 1074, 1084 (3d Cir. 1996); see also
Shepherd v. Hunterdon Dev. Ctr., 803 A.2d 611, 627 (N.J. 2002).
The standard “envisions a sense of outrageous, coercive, and
unconscionable requirements . . . involving more egregious
conduct than that sufficient for a hostile work environment
15
claim.” Shepherd, 803 A.2d at 628. Constructive discharge
requires not merely “severe or pervasive” conduct, but conduct
that is so intolerable that a reasonable person would be forced
to resign rather than continue to endure it. Zubrycky v. ASA
Apple, Inc., 885 A.2d 449, 451 (N.J. 2005). This is an objective
test and thus an employee's subjective perceptions of unfairness
or harshness do not govern a claim of constructive discharge.
Gray v. York Newspapers, Inc., 957 F.2d 1070, 1083 (3d Cir.
1992). A trial court should consider (1) the nature of the
harassment, (2) the closeness of the working relationship
between the harasser and the victim, (3) whether the employee
resorted to internal grievance procedures, (4) the
responsiveness of the employer to the employee’s complaints, and
all other circumstances. Shepherd, 803 A.2d at 627.
Given that this Court has already granted Defendants’
motion to dismiss Plaintiff’s hostile work environment claim,
and under Shepherd, the constructive discharge standard
envisions more egregious conduct, the Court will also grant
Defendant’s motion to dismiss the constructive discharge claim.
Nevertheless, for clarity, the Court will explain why the
Plaintiff’s Amended Complaint is insufficient on this claim.
Plaintiff argues that she has adequately plead a
constructive discharge claim because she complained to HR about
16
the racist remark after it was uttered, HR only suspended Mr.
Hankins for a week, and then continued to schedule Plaintiff and
Mr. Hankins on the same shift in the same departments despite
Plaintiff’s continued complaints to HR. (Opp’n at 13-14.) After
Mr. Hankins’ return to back to the shift, Plaintiff alleges that
Ms. Tuccillo told her that “despite her feeling uncomfortable,
if she did not come to work she would be resigning.” (Am. Compl.
at ¶ 33.) After Plaintiff was absent from work for one week, she
was terminated. (Id. at ¶¶ 36-37.) Importantly, however, once
Mr. Hankins returned from his one-week suspension, Plaintiff
does not allege that she experienced any additional raciallyinsensitive conduct. Instead, she simply stopped showing up for
work. (Id.) The facts as currently plead therefore do not
suggest the “unremitting, proximate harassment contemplated by
New Jersey law.” Kirschling v. Atl. City Bd. Of Educ., 604 F.
App’x 153, 155 (3d Cir. 2015). The Amended Complaint does not
suggest that Defendants knowingly permitted any conditions of
discrimination in employment “so intolerable that a reasonable
person subject to them would resign,” because once they found
out about the incident, they suspended Ms. Hankins for a week,
and once they placed him back in the line of duty, there were no
further alleged racially-charged incidents. 85 F.3d at 1084.
Therefore, even accepting Plaintiff’s allegations regarding
17
constructive discharge as true, and giving her all favorable
inferences, she fails to meet the pleading requirements
necessary to overcome a motion to dismiss for failure to state a
claim.
C. Retaliatory Discharge Claim
Finally, Plaintiff alleges a retaliatory discharge claim
under the NJLAD, because “Defendants’ actions in permitting her
constructive discharge and/or terminating Ms. Nuness was
motivated in part and/or determined in part by the fact that she
complained about racial harassment and/or by the fact that she
commented that she would be contacting an attorney.” (Am. Compl.
at ¶ 56.) Section 12(d) of the NJLAD prohibits retaliation
against an employee because that employee “has opposed any
practices or acts forbidden under [the NJLAD] or because that
person has filed a complaint, testified or assisted in any
proceeding under [the NJLAD.]” N.J.S.A. § 10:5–12(d); Cortes v.
Univ. of Med. & Dentistry of N.J., 391 F. Supp. 2d 298, 314
(D.N.J. 2005). “Retaliatory action” is defined as “the discharge,
suspension or demotion of an employee, or other adverse
employment action taken against an employee in the terms and
conditions of employment.” N.J.S.A. 34:19-2(e). To state a prima
facie case for retaliation under the NJLAD, a plaintiff must
show that she (1) engaged in protected activity, (2) that she
18
suffered an adverse employment action, and (3) that there was a
causal connection between the protected activity and the adverse
employment action. Sanchez v. SunGard Availability Servs. LP,
362 F. App’x 283, 287 (3d Cir. 2010); see also Battaglia v.
United Parcel Serv., Inc., 70 A.3d 602, 619 (N.J. 2013).
Importantly, in a retaliatory discharge case, “the plaintiff
bears the burden of proving that his or her original complaint –
the one that allegedly triggered his or her employer’s
retaliation – was made reasonably and in good faith.” Carmona v.
Resorts Int’l Hotel, Inc., 915 A.2d 518, 521 (N.J. 2007).
There is no dispute that Plaintiff engaged in protected
activity when she complained about the harassment from Mr.
Hankins. Regarding the second and third prongs, in order to
constitute an “adverse employment action” for the purposes of
the NJLAD, “retaliatory conduct must affect adversely the terms,
conditions, or privileges of the plaintiff’s employment or
limit, segregate or classify the plaintiff in a way which would
tend to deprive her of employment opportunities or to otherwise
affect her status as an employee.” Marrero v. Camden Cty Bd. of
Soc. Servs., 164 F. Supp. 2d 455, 473 (D.N.J. 2001).
“[T]ermination is the most obvious example of adverse employment
action.” Id.; see also Cortes, 391 F. Supp. 2d at 312 (noting
that discharge would be an actionable adverse employment
19
action).
Plaintiff argues that Defendants’ motive for failing to
address her complaints and concerns and their subsequent
termination of her was to retaliate for her previous complaints
of racial harassment and her comment about contacting an
attorney. (Opp’n at 17.) Defendants reply that Plaintiff has
failed to plead any adverse employment action since she was not
actually terminated, so she cannot state a claim for
retaliation. (Def. Br. at 10.) Plaintiff states that after Mr.
Hankins returned from his suspension, she would “no longer
endure the current working environment,” and Defendants
“thereafter terminated Ms. Nuness’s employment rather than
address her complaints.” (Am. Compl. at ¶ 55.) Whether
Plaintiff’s March 20, 2015 separation constitutes a resignation
or a termination is an issue of fact that is inappropriate for
resolution on a motion to dismiss under Fed. R. Civ. P.
12(b)(6). For purposes of this Rule 12(b)(6) motion, the Court
must assume that Plaintiff’s separation was involuntary, that
is, that it was a constructive discharge by the employer.
Additionally, Plaintiff has alleged facts sufficient to
demonstrate that her discharge was causally related to her
filing a complaint with HR and contacting an attorney. A
plaintiff may demonstrate causation by showing: (1) a close
20
temporal relationship between her report and discharge, or (2)
that “the proffered evidence, looked at as a whole, . . .
raise[s] the inference [of causation].’” LeBoon v. Lancaster
Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 232 (3d Cir. 2007). Here,
the temporal proximity between Plaintiff’s complaint to her
supervisors and her subsequent discharge supports an inference
of causation. “When a causal connection relies on temporal
proximity alone, courts generally require that the termination
occur within a few days of the protected activity.” Incorvati v.
Best Buy Co., Inc., No. 10-1939, 2010 WL 4807062, at *3 (D.N.J.
Nov. 16, 2010) (citations omitted); see also Daniels v. Sch.
Dist. of Phila., 776 F.3d 181, 196 (3d Cir. 2015) (noting that a
plaintiff may rely on temporal proximity if “unusually
suggestive”). The Amended Complaint alleges that the racial
remark occurred on March 1, 2015, Plaintiff complained to HR
about a week later (after Mr. Hankins was suspended and
reinstated), and Plaintiff was then terminated on March 20,
2015. (Am. Compl. at ¶¶ 14, 22, 37.) This period is sufficiently
close to create an inference at this stage in the litigation
that Plaintiff’s discharge was causally connected to her
complaint of harassment and her informing HR that she was
contacting an attorney.
Even if Plaintiff does not rely solely on temporal
21
proximity to establish causation, she could also rely on
circumstances including “any intervening antagonism by the
employer, inconsistencies in the reasons the employer gives for
its adverse action, and any other evidence suggesting that the
employer had a retaliatory animus when taking the adverse
action.” Daniels, 776 F.3d at 196. Plaintiff pleads that after
she complained about the hostile work environment and after her
comment about contacting an attorney, “Defendants did nothing to
remediate Ms. Nuness’ complaints,” and “[u]pon learning the
Plaintiff would not continue to endure the intolerable working
environment, Defendants thereafter terminated Ms. Nuness’
employment rather than address her complaints.” (Am. Compl. at
¶¶ 37, 54-55.) Thus, accepting Plaintiff’s allegations as true,
and giving her all reasonable inferences, she properly states a
claim for retaliatory discharge.
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IV. CONCLUSION
For the foregoing reasons, the Court will grant Defendants’
motion to dismiss Count I (racial harassment) and Count II
(constructive discharge) without prejudice, and will deny
Defendants’ motion to dismiss Count III (retaliatory discharge).
November 17, 2016
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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