LONG v. LEGGETT & PLATT, INCORPORATED et al
OPINION. Signed by Judge Noel L. Hillman on 9/27/2017. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
LEGGETT & PLATT,
INCORPORATED; JOHN CASE; XYZ
ENTITIES 1-100, fictitious
unknown business entities;
and J. DOES 1-100, fictitious
ROBERT J. HAGERTY
HAGERTY & BLAND-TULL LAW LLC
MOORESTOWN TIMES SQUARE
714 EAST MAIN STREET – SUITE 2C
MOORESTOWN, NJ 08057
On behalf of Plaintiff
MICHAEL R. MILLER
THE CURTIS CENTER, SUITE 400E
170 S. INDEPENDENCE MALL W.
PHILADELPHIA, PA 19106-3337
On behalf of Defendants
HILLMAN, District Judge
This case concerns Defendants’ alleged violation of the New
Jersey Law Against Discrimination (NJLAD).
Presently before the
Court is Defendants’ Motion for Judgment on the Pleadings and
Plaintiff’s Cross-Motion to Amend the Complaint.
reasons expressed below, Defendant’s motion will be granted in
part and denied in part, and Plaintiff’s motion will be granted.
We take our brief recitation of the facts from Plaintiff’s
Plaintiff was hired by Defendant Leggett &
Platt, Inc. (“L&P”) in 1982, where he remained until 1989.
resumed employment with L&P in 1994, eventually rising to
Director of Sales in 2009 and Senior Vice President of Sales in
2013. In April 2014, Defendant John Case was hired as President.
On December 21, 2015, Plaintiff informed Robert Newcombe,
the Senior Vice President of Sales and Marketing, that Bobby
Keen, an employee at L&P, was sexually harassing a female
No action was taken by Newcombe or Case following
In January 2016, Plaintiff was informed that his employment
was being terminated and he was given a severance package on
January 15, 2016.
Plaintiff claims he was terminated “in
retaliation for his reporting the sexually harassing conduct of
Keen, in violation of the New Jersey Law Against
Plaintiff filed a complaint against Defendant on May 23,
The complaint alleges retaliation and aiding and abetting
under the NJLAD.
It also alleges Defendants are liable for
The matter was removed to this Court on
August 11, 2016 based on diversity jurisdiction.
filed a Motion for Judgment on the Pleadings on February 10,
Plaintiff filed a Cross-Motion to Amend the Complaint on
March 6, 2017.
A Rule 12(c) motion for judgment on the pleadings may be
filed after the pleadings are closed.
Fed. R. Civ. P. 12(c);
Turbe v. Gov’t of V.I., 938 F.2d 427, 428 (3d Cir. 1991).
analyzing a Rule 12(c) motion, a court applies the same legal
standards as applicable to a motion filed pursuant to Rule
Turbe, 938 F.2d at 428.
Thus, a court must accept
all well-pleaded allegations in the complaint as true and view
them in the light most favorable to the plaintiff.
Fisher, 423 F.3d 347, 351 (3d Cir. 2005).
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 Corp. v. Twombly, 550 U.S. 544, 583 (2007)
(quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also
Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir.
2008) (stating the “Supreme Court's Twombly formulation of the
pleading standard can be summed up thus: ‘stating . . . a claim
requires a complaint with enough factual matter (taken as true)
to suggest’ the required element.
This ‘does not impose a
probability requirement at the pleading stage,’ but instead
‘simply calls for enough facts to raise a reasonable expectation
that discovery will reveal evidence of’ the necessary element”).
A court need not credit either “bald assertions” or “legal
conclusions” in a complaint when deciding a motion to dismiss.
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 142930 (3d Cir. 1997).
The defendant bears the burden of showing
that no claim has been presented.
Hedges v. United States, 404
F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v.
Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).
“[O]n a motion for judgment on the pleadings,” the court
“reviews not only the complaint but also the answer and any
written instruments and exhibits attached to the pleadings.”
Perelman v. Perelman, 919 F. Supp. 2d 512, 520 n.2 (E.D. Pa.
“To establish a prima facie case of discriminatory
retaliation, plaintiffs must demonstrate that: (1) they engaged
in a protected activity known by the employer; (2) thereafter
their employer unlawfully retaliated against them; and (3) their
participation in the protected activity caused the retaliation.”
Craig v. Suburban Cablevision, 660 A.2d 505, 508 (N.J. 1995);
accord Kachmar v. Sungard Data Sys., 109 F.3d 173, 177 (3d Cir.
We address each element in turn.
In his complaint, Plaintiff’s allegation of protected
activity was that he “informed Mr. Robert Newcombe, the Senior
Vice President of Sales and Marketing for L&P, about Mr. Keen’s
latest inappropriate sexually harassing behavior regarding a
specific female employee . . . , along with other accounts of
sexual harassment by Keen.”
This is sufficient to satisfy
Plaintiff’s burden on the first prong.
See, e.g., Barroso v.
Lidestri Foods, Inc., 937 F. Supp. 2d 620, 637 n.16 (D.N.J.
2013) (“The parties do not dispute that Plaintiff engaged in
protected activity as required under the NJLAD for a retaliation
claim by submitting a sexual harassment complaint . . . .”);
Smith v. Exxon Mobil Corp., 374 F. Supp. 2d 406, 419 (D.N.J.
2005) (“[Plaintiff] engaged in a protected activity when she
turned to various levels of management with complaints regarding
. . . sexual harassment.”); Hargrave v. County of Atlantic, 262
F. Supp. 2d 393, 424 (D.N.J. 2003) (“Plaintiff . . . clearly
engaged in protected activity . . . when she made complaints
about Defendant[‘s] . . . alleged sexual harassment.”).
Protected activity includes allegations of harassment of other
Michaels v. BJ’s Wholesale Club, Inc., No. 11-5657,
2014 WL 2805098, at *6 (D.N.J. June 19, 2014) (“Protected
activity can include a plaintiffs complaints concerning
allegations of discrimination against herself or others . . . .”
(quoting Fabrikant v. Arthur J. Gallagher & Co., A-5995-05T1,
2008 WL 281690, at *7 (N.J. Super. Ct. App. Div. Feb. 4,
Plaintiff’s complaint alleges his employer unlawfully
retaliated against him by way of his termination in January
“Under the LAD, an ‘adverse employment action’ is one
‘sufficiently severe or pervasive to have altered plaintiff’s
conditions of employment in an important and material manner.’”
Ivan v. County of Middlesex, 595 F. Supp. 2d 425, 470 (D.N.J.
2009) (quoting El-Siofi v. St. Peter’s Univ. Hosp., 887 A.2d
1170, 1188 (N.J. Super. Ct. App. Div. 2005)).
employment is the quintessential adverse employment action.
“In determining whether a plaintiff has produced prima
facie evidence of causation, the decisions of our Court of
Appeals have generally focused on two indicia: timing and
evidence of ongoing antagonism.”
Hargrave, 262 F. Supp. 2d at
Although the timing of an employer’s adverse employment
action will, by itself, rarely provide prima facie
evidence that disciplinary action is attributable to
retaliatory motives, the temporal proximity between an
employer’s action and an employee’s protected activity
may permit an inference of causation where the
relatively short interval between the two is “unusually
suggestive” of retaliation.
Id. (footnote omitted).
“In cases where the timing of an
employer’s adverse action is, by itself, inconclusive, plaintiff
may demonstrate a causal link by producing circumstantial
evidence of ‘ongoing antagonism’ or ‘retaliatory animus’ in the
intervening period between her complaints and the adverse
Id. at 424-25 (quoting Kachmar, 109 F.3d at 177;
Woodson v. Scott Paper Co., 109 F.3d 913, 921 (3d Cir. 1997)).
Further, “the Court of Appeals has not excluded the possibility
that the timing of an employer’s action, together with ‘other
types of circumstantial evidence,’ may also suffice to support
an inference of causation.”
Id. at 425.
“In short, the case
law has set forth few limits on the type of evidence which might
suffice to establish a prima facie showing of causation.”
Plaintiff informed Newcombe of the alleged sexual
harassment on December 21, 2015, according to Plaintiff’s
complaint, and was then terminated from employment in January
2016, receiving his severance package on January 15, 2016.
Accordingly, the termination decision was made close in time –
less than a month after his allegations of sexual harassment.
Attached as Exhibit A to Defendants’ Answer is an e-mail
exchange between Case and Justen Moore.
On October 12, 2015,
Moore e-mailed Case regarding the severance calculation for
Plaintiff, in which Moore recognized Plaintiff would not be
eligible for a payout if he was terminated before December 31,
The e-mail exchange continued with regard to another
employee later that day and on October 15, 2015, with the
principal point of discussion being the appropriate severance
On October 21, 2015, Case e-mailed Moore instructing that
the other employee’s separation date would be October 30, 2015
and Plaintiff’s separation date would be January 1, 2016.
The parties advance contrary interpretations of this e-mail
Plaintiff acknowledges Case contemplated his
termination prior to his sexual harassment allegations but
argues the decision was not finalized until after Plaintiff’s
December 2015 allegations.
Plaintiff further argues there is no
indication that, at the time the October e-mails were sent, the
requisite approvals had been sought or obtained to terminate
Plaintiff’s employment. 1
Defendant, on the other hand, argues
the e-mails conclusively decided that Plaintiff would be
terminated on January 1, 2016, proving fatal to Plaintiff’s
As further evidence of causation, Plaintiff alleges in his
amended complaint that L&P had approved Plaintiff’s planned 2016
vacation time and had approved the expenses associated with a
January 2016 business trip. 2
At this juncture, we find these
allegations and Plaintiff’s interpretation of the e-mail
exchange sufficient evidence of causation to survive Judgment on
The October 15, 2015 e-mail from Moore to Case acknowledged
that Moore “still need[ed] approvals.”
As we are granting Plaintiff’s Motion to Amend the
Complaint, we consider the additional allegations made in the
Plaintiff has shown temporal proximity between
the protected conduct and the alleged retaliatory conduct.
Plaintiff has also advanced a plausible interpretation of the email exchange between Case and Moore which contradicts
Defendants’ argument that the final decision to terminate
Plaintiff’s employment occurred prior to the protected conduct.
Finally, Plaintiff provided plausible allegations that discovery
could show his employer was not contemplating his termination in
2015 due to its approval of vacation time and business expenses.
Accordingly, we deny Defendants’ motion for Judgment on the
Pleadings as to the NJLAD retaliation claim.
We now turn to Plaintiff’s aiding and abetting claim.
Plaintiff alleges aiding and abetting against Case. 3
individuals liable for their actions in aiding and abetting
violations of an individual’s rights rather than simply imputing
general liability to the employer for the employees’ acts.”
Lopez-Arenas v. Zisa, No. 10-2668, 2012 WL 933251, at *10
(D.N.J. Mar. 19, 2012).
There are two forms of aiding and
abetting under NJLAD: an active form and a passive form.
To establish the active form, three elements must be proven:
(1) the party whom the defendant aids must perform a
wrongful act that causes an injury; (2) the defendant
must be generally aware of his role as part of an overall
Plaintiff also appears to allege aiding and abetting
against Keen and Newcombe. However, neither Newcombe nor Keen
are named as defendants to this matter.
illegal or tortious activity at the time that he provides
the assistance; (3) the defendant must knowingly and
substantially assist the principal violation.
Hurley v. Atl. City Police Dep’t, 174 F.3d 95, 127 (3d Cir.
To establish the passive form, “a plaintiff must show
that the supervisor holds a duty to act against harassment and
yet remains deliberately indifferent to its existence.”
Arenas, 2012 WL 933251, at *10.
Plaintiff has not pled facts sufficient to survive Judgment
on the Pleadings with regard to the aiding and abetting claim.
Plaintiff informed Newcombe of the allegations of sexual
harassment by Keen.
Plaintiff does not plead that any similar
allegations were made to Case, that Newcombe informed Case of
the allegations, or that Case was in any way made aware of the
Even if Case had been aware of the allegations of
sexual harassment, Plaintiff has not sufficiently alleged that
Case “knowingly and substantially assisted” in the alleged
retaliatory conduct or was “deliberately indifferent.”
Accordingly, we grant Defendants’ motion for Judgment on the
Pleadings as to the NJLAD aiding and abetting claim.
We now turn to Plaintiff’s claim for punitive damages.
order to award punitive damages under the NJLAD, two
requirements must be satisfied: “(1) ‘actual participation in or
willful indifference to the wrongful conduct on the part of
upper management’ and (2) ‘proof that the offending conduct [is]
Cavuoti v. N.J. Transit Corp., 735
A.2d 548, 551 (N.J. 1999) (alteration in original) (quoting
Rendine v. Pantzer, 661 A.2d 1202, 1215 (N.J. 1995)).
For the offending conduct to be “sufficiently egregious
to warrant a punitive-damage award,” the conduct must be
“wantonly reckless or malicious” or “an intentional
wrongdoing in the sense of an ‘evil-minded act’ or an
act accompanied by a wanton and willful disregard of the
rights of another . . . .”
Gares v. Willingboro Township, 90 F.3d 720, 732 (3d Cir. 1996)
(quoting Rendine, 661 A.2d at 1215).
“[P]unitive damages should
only be awarded under the NJLAD in exceptional cases.” Weiss v.
Parker Hannifan Corp., 747 F. Supp. 1118, 1135 (D.N.J. 1990).
Plaintiff has not alleged sufficient facts of such
egregious conduct to survive Judgment on the Pleadings.
Plaintiff has not alleged wanton, reckless, or malicious
conduct, nor that the conduct constituted an “evil-minded act.”
Accordingly, we grant Defendants’ motion for Judgment on the
Pleadings as to Plaintiff’s claim for punitive damages.
We next consider Plaintiff’s Motion to Amend the Complaint.
Unless amending as a matter of course, 4 Federal Rule of Civil
Plaintiff is unable to amend as a matter of course. Rule 15
provides that where “the pleading is one to which a responsive
pleading is required,” “[a] party may amend its pleading once as
a matter of course within . . . 21 days after service of a
responsive pleading or 21 days after service of a motion under
Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P.
15(a)(1)(B). Plaintiff has exceeded this time frame.
Procedure 15 provides “a party may amend its pleading only with
the opposing party’s written consent or the court’s leave,”
which the court should “freely give . . . when justice so
Fed. R. Civ. P. 15(a)(2). 5
The Third Circuit
dictates that amendments should “be granted freely,” stating a
preference for decisions made “on the merits rather than on
Dole v. Arco Chem. Co., 921 F.2d 484, 486-87
(3d Cir. 1990).
“Leave to amend a complaint should be granted freely in the
absence of undue delay or bad faith on the part of the movant as
long as the amendment would not be futile and the opposing party
would not suffer undue prejudice.”
Hunter v. Dematic USA, No.
16-00872, 2016 WL 2904955, at *3 (D.N.J. May 18, 2016).
“’Futility’” means that the complaint, as amended, would fail to
state a claim upon which relief could be granted.”
Burlington Coat Factory Sec. Litig., 114 F.3d at 1434.
“[A] refusal of a motion for leave to amend must be
Permissible justifications include: (1) undue delay;
(2) bad faith or dilatory motive; (3) undue prejudice to the
opposition; (4) repeated failures to correct deficiencies with
previous amendments; and (5) futility of the amendment.”
As Defendants oppose the filing of an amended complaint,
Plaintiff’s only option is with leave of court.
v. Taylor, 62 F.3d 86, 90 (3d Cir. 1995) (citation omitted).
Defendants argue Plaintiff’s motion should be denied due to
This court disagrees, as the original complaint
sufficiently alleges facts to survive Judgment on the Pleadings
with regard to the retaliation claim.
Finding no reason to
refuse Plaintiff’s motion, we grant Plaintiff leave to file the
However, we note the amended complaint does
not cure the deficiencies of the initial complaint with regard
to the aiding and abetting claim and the claim for punitive
Thus, Judgment on the Pleadings stands as to those
An appropriate Order will be entered.
Date: September 27, 2017
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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