JOHNSON, et al. v. GLOUCESTER COUNTY IMPROVEMENT AUTHORITY, et al.
Filing
39
OPINION. Signed by Judge Renee Marie Bumb on 12/21/2017. (tf, n.m.)
[Docket No. 24]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
MARCELLA JOHNSON, BETTY DAVIS,
GLENNA NICHOLS, and SWARDELLA
CLARK,
Plaintiffs,
Civil No. 16-8422 (RMB/AMD)
OPINION
v.
GLOUCESTER COUNTY IMPROVEMENT
AUTHORITY, et al.,
Defendants.
APPEARANCES:
THE O’HANLON LAW FIRM
By: Stephen T. O’Hanlon, Esq.
2 Penn Center Plaza Suite 1850
1500 John F. Kennedy Boulevard
Philadelphia, Pennsylvania 19102
Counsel for Plaintiffs
BROWN & CONNERY, LLP
By: Christine P. O’Hearn, Esq.
Benjamin S. Teris, Esq.
Kathleen E. Dohn, Esq.
360 Haddon Avenue
P.O. Box 539
Westmont, New Jersey 08108
Counsel for Defendants
BUMB, UNITED STATES DISTRICT JUDGE:
Plaintiffs Marcella Johnson, Betty Davis, Glenna Nichols, and
Swardella Clark, all African American employees, two of whom are
current, and two of whom are former employees of Defendant
1
Gloucester County Improvement Authority, bring this suit alleging
that they were subjected to disparate negative treatment because of
their race, and that they suffered retaliation when they complained
about the disparate treatment.
Before the Court is Defendants’ Partial Motion to Dismiss
pursuant to Fed. R. Civ. P. 12(b)(6).
For the reasons stated
herein, the motion will be granted in part and denied in part.
I.
FACTS
Defendant Gloucester County Improvement Authority allegedly
operates Defendant Shady Lane Nursing Home.
Complaint, “SAC”, ¶¶ 7-8)
(Second Amended
Plaintiffs Davis and Nichols presently
work at Shady Lane. (SAC ¶¶ 19, 44, 20)
Plaintiff Johnson worked at
Shady Lane until she was terminated on April 3, 2017.
(SAC ¶ 34)
Plaintiff Clark worked at Shady Lane until “April, 2017” when she
alleges she was “forced to resign.”
(SAC ¶ 96)
All four plaintiffs
allege that they experienced continuous and pervasive discriminatory
employment practices and a hostile work environment based on race,
as well as retaliation, during their employment.
Allegedly, the
individual Defendants, Carmen Treffiletti, Shery Faulkner, Michelle
Baylor, George Strachan, Sal Rocabaldi, Joe D’Angelo, Anthony Pepe,
Megan Kerr, and Beth Higgins-- all allegedly supervisors at Shady
Lane (SAC ¶¶ 9-17)-- individually acted in a discriminatory and
retaliatory manner, and also allegedly conspired with each other to
discriminate and retaliate against each Plaintiff.
2
Each Plaintiff’s
specific factual allegations are set forth next in the order in
which those allegations appear in the Second Amended Complaint.
A. Plaintiff Johnson
“Plaintiff Johnson started working at Defendant Shady Lane on
August 4, 1999 initially as an environmental service / housekeeping
employee.”
(SAC ¶ 18)
At some unspecified time “in 2011” “Plaintiff Johnson
complained to the NAACP” about “all of the racist things that were
going on at Defendant Shady Lane” including alleged “differential
treatment” of African-American employees, and Caucasian employees
allegedly using racial slurs.
(SAC ¶ 22)
In connection with that
complaint, at some unspecified time, the president of the Gloucester
County NAACP “met with” Defendant Strachan, the “head of EEO for
Gloucester County” and Shady Lane’s lawyer, and also “talked to”
Plaintiffs Johnson and Davis.
(SAC ¶ 23)
“[B]y April 2, 2012, Plaintiff Johnson was laid off.”
24)
(SAC ¶
She alleges she was laid off “in retaliation for” her NAACP
complaint.
(Id.)
On July 27, 2012, Johnson returned to work at Shady Lane at “a
lower paid position.”
(SAC ¶ 25)
After returning, Johnson alleges
that she “was continually and pretextually written up for everything
that Caucasian supervisors could get Plaintiff Johnson for.”
26)
(SAC ¶
Specifically, Defendants Baylor, Treffiletti, and Pepe
allegedly required Johnson to provide a “doctor’s note” when she
3
“called out sick.”
(SAC ¶¶ 26-27)
Then, allegedly, on September 5,
2013, “Defendants Baylor and Treffiletti called the doctor’s office
to see what kind of doctor he was.”
(SAC ¶ 27)
Johnson was “terminated” on September 27, 2013, but then she
“won an arbitration and got her job back and she returned to work on
January 15, 2015.”
(SAC ¶ 27)
Upon Johnson’s return, allegedly
Defendant Pepe “told Plaintiff Johnson that he was instructed to
adversely treat Plaintiff Johnson and to pretextually terminate her
by Defendants Baylor and Treffiletti.”
(SAC ¶ 29)
Johnson alleges that she continued to be “pretextually
punished,” “including Defendant Rocabaldi sending someone to
Plaintiff Johnson’s grandmother’s funeral to see if Plaintiff
Johnson was present.”
(SAC ¶ 28)
Johnson also alleges that
Defendants Treffiletti, Kerr and Rocobaldi “would also write up
Plaintiff Johnson for no reason in stark contrast to Caucasian
employees.”
(Id.)
In May, 2016 “Defendants GCIA, Shady Lane, Treffiletti, and
Strachan” allegedly falsely accused Johnson of calling a coworker
“Uncle Tom.”
(SAC ¶ 31)
On March 28, 2017 Defendant Pepe allegedly “called [Johnson] to
a meeting” “purportedly because Plaintiff Johnson had made
statements that a certain nurse was only hired because she was
Caucasian.”
statement.
(SAC ¶ 32)
Johnson denies having made any such
(Id.)
4
Allegedly, two days later, Defendants Pepe and Baylor informed
Johnson that she “would be placed on paid leave.”
(SAC ¶ 33)
“On April 3, 2017, Plaintiff was terminated in a meeting with
Defendants Pepe and Baylor.”
(SAC ¶ 34)
B. Plaintiff Davis
“Plaintiff Davis began working at Defendant Shady Lane on
October 13, 1988 as a certified nurse’s aid.”
(SAC ¶ 19)
“Around May 30, 2010” Defendant Faulkner allegedly “falsely
accused” Davis of “injuring a patient” and imposed “adverse
discipline” as a result.
(SAC ¶ 36-37)
Allegedly, “[b]etween 2011 and 2015, Plaintiff Davis was
intimidated by Defendants Faulkner, Baylor, Treffiletti, and
Higgins, who attempted to force Plaintiff Davis to retire when
Plaintiff Davis injured herself at work. . . . Caucasian workers
were never adversely treated like this when injured at work.”
(SAC
¶ 38)
The Second Amended Complaint does not allege that Davis was
ever laid off or terminated, however, the Court infers that she was
because the Second Amended Complaint alleges, without further
explanation or context, “Plaintiff Davis did eventually get her job
back with back pay on October 13, 2011.”
(SAC ¶ 39)
Then, allegedly in January, 2015, Davis slipped on ice and
injured herself at work, which appears to have temporarily
interfered with her ability to perform certain physical tasks at
5
work.
(SAC ¶ 40)
Defendant Faulkner allegedly “did nothing” when
Davis “inform[ed]” him about her severe pain in the days immediately
following her fall.
(Id.)
On July 20, 2015, Davis was allegedly medically cleared “to
return to work on full duty.”
(SAC ¶ 41)
Davis alleges that upon
returning to full duty, Defendant Treffiletti “cut Plaintiff Davis’
pay by $3 per hour” and that “Caucasian workers were never similarly
treated.”
(SAC ¶ 41)
Lastly, the Second Amended Complaint alleges: “[o]n January 30,
2017 and in direct retaliation for meritorious racial discrimination
complaints and the present lawsuit, Plaintiff Davis was disciplined
by Defendant Pepe because Plaintiff Davis used the word ‘the’ to
Robin Atkinson.
Defendant Pepe said this was a threat and
complaints to Defendant Treffiletti regarding racial motivation by
Defendant Pepe were ignored.”
(SAC ¶ 43)
C. Plaintiff Nichols
“Plaintiff Nichols started working at Defendant Shady Lane on
November 7, 2005 initially as a certified nurse’s aid.”
(SAC ¶ 20)
Beginning in 2005, allegedly Defendant Faulkner would “write
up” Nichols for using her sick time and for reporting to work late.
(SAC ¶ 46-47)
Allegedly, Caucasian employees’ use of sick time was
not punished and their tardiness was excused.
(SAC ¶ 47)
In 2007, Nichols allegedly experienced many incidents of verbal
harassment and “bullying” by her co-workers and Defendant Strachan.
6
(SAC ¶ 48-49; see also SAC ¶¶ 57-59, 68)
Some of those incidents
Defendant Faulkner allegedly witnessed and failed to correct; on
another occasion Nichols allegedly complained to “David Shields of
Defendant GCIA” who instructed Defendant Strachan to “‘handle it,’”
thereby allegedly “forc[ing] [Nichols] to meet with Defendant
Strachan alone, the very person that Plaintiff Nichols had
complained about.”
(SAC ¶ 12)
Also “continuously from 2007 to the present,” rules concerning
the conduct of certified nurse’s aids were allegedly strictly
enforced by Defendants Faulkner and Higgins against African American
employees, while the same rule infractions allegedly were “never an
issue when the Caucasian aides did it.”
(SAC ¶ 50; see also SAC ¶¶
55, 64)
Allegedly from 2007 through 2012, Nichols “repeatedly and
constantly complain[ed] to Defendant Faulkner that Caucasian nurses
and aids . . . mishandle[d] and verbally and physically abuse[d]
residents[,] . . . but nothing was done and it was just covered up.”
(SAC ¶¶ 52-53; see also SAC ¶¶ 56, 61, 70, 72-73)
In September 2009, Defendant Higgins allegedly disparately
enforced rules concerning smoking and cell phone use by employees
which, Nichols alleges, effectively created “segregated smoking
areas based upon race between 2009 and 2012.”
(SAC ¶ 63)
During
this time period Nichols alleges that she “frequently complained to
7
Defendant Higgins about a segregated smoking area that was set up by
Defendant Higgins but nothing was done.”
(SAC ¶ 67)
Allegedly, “[o]n October 28, 2009 . . . Plaintiff Nichols was
falsely accused of verbally abusing [a resident] and was suspended
for five days pending an investigation.
coworkers’ lies.”
(SAC ¶ 69)
Defendant Strachan believed
Allegedly as a result, Defendant
Faulkner imposed “progressive discipline.”
(Id.)
“[B]etween 2012 and 2017” Defendants Faulkner and Higgins
allegedly instructed Caucasian employees to double-check the work of
Plaintiffs Nichols and Clark “in hope of exacting discipline.”
(SAC
¶ 75)
During 2015, two Caucasian employees allegedly “began smacking
Plaintiff Nichols on her butt once or twice a month.”
(SAC ¶ 80)
The Second Amended Complaint alleges that on September 29, 2015,
Nichols “sent an email complaining to Defendants Baylor and
Treffiletti.”
(SAC ¶ 80)
The Second Amended Complaint does not
allege what happened after Nichols sent the email.
Allegedly on November 26, 2015 Plaintiff Nichols complained to
Defendant Treffiletti about verbal harassment by Caucasian
coworkers.
(SAC ¶ 81)
Defendant Treffiletti allegedly “yelled at
Plaintiff Nichols ‘all this craziness stops now.’”
(Id.)
D. Plaintiff Clark
“Plaintiff Clark began working at Defendant Shady Lane on
January 14, 2014 as [a] certified nurse’s aid.”
8
(SAC ¶ 21)
Throughout 2014 and into February, 2015, Clark was allegedly
“summoned to the office,” “disciplined” and/or “censured” by
Defendants Faulkner and Higgins many times for various rule
infractions, whereas Caucasian employees who violated the same rules
allegedly were not disciplined.
(SAC ¶¶ 84-89, 91-92)
Allegedly, “[i]n April of 2017, Plaintiff Clark was forced to
resign because of repeated racism and pretextual discipline and
retaliation.
Even after Plaintiff Clark’s resignation notice,
Defendants Faulkner and Baylor cited Plaintiff Clark for
insubordination when Plaintiff Clark was falsely accused of not
signing a patient shower sheet and these Defendants suspended
Plaintiff Clark for five days for false accusations of cumulative
discipline.”
(SAC ¶ 96)
The Second Amended Complaint asserts the following claims: §
1983 1 claims against the individual defendants, as well as Gloucester
County Improvement Authority and Shady Lane; § 1981 2 claims against
the individual defendants, as well as Gloucester County Improvement
Authority and Shady Lane; conspiracy claims against all Defendants;
1
42 U.S.C. § 1983.
2
42 U.S.C. § 1981.
9
and New Jersey Law Against Discrimination (“LAD”) 3 claims against
Gloucester County Improvement Authority and Shady Lane. 4
II.
MOTION TO DISMISS STANDARD
To withstand a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
“A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Id. at 663.
“[A]n unadorned, the defendant-unlawfully-harmed me
accusation” does not suffice to survive a motion to dismiss.
678.
Id. at
“[A] plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will
not do.”
Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478
U.S. 265, 286 (1986)).
In reviewing a plaintiff’s allegations, a district should
conduct a three-part analysis:
3
N.J.S.A. 10:5-1 et seq.
4
The Court exercises federal question subject matter
jurisdiction pursuant to 28 U.S.C. § 1331, and supplemental
jurisdiction pursuant to 28 U.S.C. § 1367.
10
First, the court must take note of the elements a plaintiff
must plead to state a claim.
Second, the court should
identify allegations that, because they are no more than
conclusions, are not entitled to the assumption of truth.
Third, when there are well-pleaded factual allegations, a
court should assume their veracity and then determine
whether they plausibly give rise to an entitlement for
relief.
Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) (internal
citations, quotations, and modifications omitted) (quoting Iqbal,
556 U.S. at 675, 679).
Rule 12(b)(6) requires the district court to “accept as true
all well-pled factual allegations as well as all reasonable
inferences that can be drawn from them, and construe those
allegations in the light most favorable to the plaintiff.”
Bistrian, 696 F.3d at 358 n. 1.
Only the allegations in the
complaint and “matters of public record, orders, exhibits attached
to the complaint and items appearing in the record of the case” are
taken into consideration.
Oshiver v. Levin, Fishbein, Sedran &
Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir. 1994) (citing Chester Cty.
Intermediate Unit. v. Pennsylvania Blue Shield, 896 F.2d 808, 812
(3d Cir. 1990)).
A court may also “consider an undisputedly
authentic document that a defendant attaches as an exhibit to a
motion to dismiss if the plaintiff’s claims are based on the
document.”
Pension Ben. Guar. Corp. v. White Consol. Indus., Inc.,
998 F.2d 1192, 1196 (3d Cir. 1993).
11
III. ANALYSIS
Defendants’ Partial Motion to Dismiss seeks to narrow (rather
than entirely eliminate) the claims asserted in the rather
expansive-- and in places, disjointed-- Second Amended Complaint.
Defendants argue: (A) Plaintiff Johnson’s § 1983 and § 1981 claims
against Defendants Rocobaldi, D’Angelo and Kerr lack sufficient
factual allegations; (B) the conspiracy counts lack sufficient
factual allegations; and (C) a portion of each Plaintiff’s claims is
barred by the applicable statute of limitation.
The Court addresses
each argument in turn.
A. Plaintiff Johnson’s § 1981 and § 1983 claims against
Defendants Rocabaldi, D’Angelo and Kerr
With regard to claims of disparate treatment race
discrimination in violation of § 1981, the Third Circuit has stated,
“‘[t]he substantive elements of a racial discrimination claim under
§ 1981 are generally identical to the elements of an employment
discrimination claim under Title VII.’”
Carvalho-Grevious v.
Delaware State Univ., 851 F.3d 249, 256–57 (3d Cir. 2017) (quoting
Brown v. J. Kaz, Inc., 581 F.3d 175, 181–82 (3d Cir. 2009)).
Thus, a § 1981 plaintiff must allege “that her [race] was either a
‘motivating’ or ‘determinative’ factor in the adverse employment
action against her.”
Connelly v. Lane Const. Corp., 809 F.3d 780,
789 (3d Cir. 2016).
12
To state a claim for racial harassment / hostile work
environment in violation of § 1981, Johnson must allege: “1) [she]
suffered intentional discrimination because of [] her [race], 2) the
discrimination was severe or pervasive, 3) the discrimination
detrimentally affected [her], 4) the discrimination would
detrimentally affect a reasonable person in like circumstances, and
5) the existence of respondeat superior liability[,] meaning the
employer is responsible.”
Castleberry v. STI Grp., 863 F.3d 259,
263 (3d Cir. 2017) (quoting Mandel v. M & Q Packaging Corp., 706
F.3d 157, 167 (3d Cir. 2013)).
For the purposes of the instant motion, the basic elements of
the § 1983 claims of racial discrimination and harassment in
employment are substantially the same as the § 1981 elements.
See
Ugorji v. New Jersey Envtl. Infrastructure Tr., 529 F. App’x 145,
150 (3d Cir. 2013) (“Claims for an equal protection violation based
on race and national origin under § 1983, like a disparate treatment
claim under Title VII, require a plaintiff to prove intentional
discrimination.”); Stewart v. Rutgers, The State Univ., 120 F.3d
426, 428 (3d Cir. 1997); compare Third Circuit Model Civil Jury
Instructions for Employment Discrimination Claims Under Title VII,
with Instructions For Race Discrimination Claims Under 42 U.S.C. §
1981, with Instructions Regarding Section 1983 Employment Claims. 5
5
Available at http://www.ca3.uscourts.gov/model-civil-jurytable-contents-and-instructions.
13
To state a claim for retaliation in violation of § 1981, a
plaintiff must plead (1) she engaged in protected activity, (2) her
employer took an adverse employment action against her, and (3)
there was a causal connection between her participation in the
protected activity and the adverse employment action.
Estate of
Oliva ex rel. McHugh v. New Jersey, 604 F.3d 788, 798 (3d Cir.
2010).
(1)
Allegations concerning Defendant Rocabaldi
Defendants argue that the Second Amended Complaint contains
insufficient specific factual allegations concerning Defendant
Rocabaldi’s alleged discriminatory and retaliatory actions against
Johnson.
In response, Plaintiff points to the following paragraphs
of the Second Amended Complaint:
28. Upon return to work in 2013, Plaintiff Johnson was
again pretextually punished by Defendants Baylor and
D’Angelo and Plaintiff Johnson was labeled as being angry
and having a chip on her shoulder by Defendants Treffiletti
and Kerr as well as other Defendant supervisors such as
Defendant Rocabaldi. This type of treatment had occurred
from previously from July of 2012 until September of 2013
and subsequent retaliatory incidents included Defendant
Rocabaldi
sending
someone
to
Plaintiff
Johnson’s
grandmother’s funeral to see if Plaintiff Johnson was
present. These Defendants would also write up Plaintiff
Johnson for no reason in stark contrast to Caucasian
employees.
. . .
138. Defendant Rocabaldi was a Supervisor of Environmental
Services from approximately 2010 until 2012.
139.
Defendant
Rocabaldi
has
engaged
in
direct
discrimination based upon race against Plaintiff Johnson.
14
140.
Defendant
Rocabaldi
has
pretextually
punished
Plaintiff Johnson for no reason and when similarly placed
Caucasian employees are not punished for the same
activities.
141. Defendant Rocabaldi has failed to act despite
meritorious complaints that have been brought to Defendant
Rocabaldi by Plaintiff Johnson.
142. Defendant Rocabaldi has engaged in a continuing
violation of Plaintiff Johnson’s Equal Protection rights
since at least 2010.
143.
Defendant Rocabaldi has engaged in an ongoing and
continuing conspiracy with all other Defendants to violate
all Plaintiff Johnson’s Equal Protection Clause rights. In
particular, Defendant Rocabaldi conspired with Defendants
Baylor, D’Angelo, and Treffiletti to retaliate against
Plaintiff Johnson upon her return to work in 2013 and
Defendant Rocabaldi conspired with these Defendants to
pretextually investigate Plaintiff Johnson, including
Defendant Rocabaldi sending someone to Plaintiff Johnson’s
grandmother’s funeral to see if Plaintiff Johnson was
there.
144. It does not matter if Defendant Rocabaldi left the
conspiracy because he left Defendant Shady Lane. The
conspiracy constitutes a continuing violation because the
same or similar racist conduct occurs to Plaintiff Johnson
and Defendant Rocabaldi’s involvement in the conspiracy
allowed the conspiracy to foment and continue.
145. These actions include, but are not limited to,
Defendant Rocabaldi stating that Plaintiff Johnson was
angry and had a chip on her shoulder and baseless write
ups of Plaintiff Johnson as well as allegations that
Plaintiff Johnson was a liar.
In reply, Defendants argue that the Second Amended Complaint
“merely lumps all of the defendants together and accuses every
defendant of committing the same harm,” which, Defendants contend,
15
is insufficient under Iqbal and Twombly.
(Reply Brief, Dkt. No. 28,
p. 2)
Defendants cannot be faulted for attacking the clarity and
cohesiveness of the Second Amended Complaint.
appears to be a “kitchen-sink” approach. 6
Much of the pleading
However, laboring through
the conclusory, vague and imprecise statements which pervade the
Second Amended Complaint, the Court holds that the facts alleged
adequately support, as this early pleading stage of the case, some
of Johnson’s claims against Defendant Rocabaldi.
Discrimination
With regard to Johnson’s discrimination claims, she alleges
that Rocabaldi “would write up Plaintiff Johnson for no reason in
6
Compare Wright, Miller, Kane et al., 5 Fed. Prac. & Proc.
Civ. § 1217 (3d ed. 2017) (“Taken together, [Federal] Rules [of
Civil Procedure] 8(a) and 8(e)(1) underscore the emphasis placed on
clarity and brevity by the federal pleading rules.”); see generally,
OFI Asset Mgmt. v. Cooper Tire & Rubber, 834 F.3d 481, 492 (3d Cir.
2016) (“[Plaintiff’s] kitchen-sink pleading has been a hindrance at
every stage of these proceedings.”); Greene v. Virgin Islands Water
& Power Auth., 557 F. App’x 189, 191 (3d Cir. 2014)(“The operative
pleading, the Third Amended Complaint, was filed in March of 2009.
Its clarity was undermined by a kitchen-sink approach.”); Washington
v. Grace, 445 F. App’x 611, 615 (3d Cir. 2011) (“The complaint’s
defects are many, its clarity undermined by [Plaintiff’s] kitchensink approach. Several paragraphs discuss events occurring before
the two-year statute of limitations cutoff applied to § 1983
claims[.]”); Tilbury v. Aames Home Loan, 199 F. App’x 122, 124 (3d
Cir. 2006)(“the District Court was not exaggerating when it remarked
that the [Plaintiffs’] complaint ‘is an example of an everything but
the kitchen sink pleading in which they sue almost everyone under
the sun.’”); see also, Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d
90, 97 (3d Cir. 1988)(“the practice of ‘throwing in the kitchen
sink’ at times may be so abusive as to merit Rule 11
condemnation.”).
16
stark contrast to Caucasian employees.” (SAC ¶ 28)
This single
sentence is too vague and ambiguous to support a discrimination
claim because it does not adequately plead differential treatment
supporting a plausible conclusion of racial bias.
The Second
Amended Complaint does not explain how Caucasian employees were
treated differently than Plaintiffs.
Indeed, one reasonable
interpretation of the sentence is that Plaintiffs were written up
“for no reason” while Caucasian employees were written up with
reason.
Accordingly, the Court holds that Plaintiff Johnson has failed
to state a claim for discrimination against Defendant Rocabaldi.
Hostile Work Environment
In contrast, the Court holds that Johnson’s harassment claims
survive the instant motion.
Without elaboration, Defendants argue
that the allegation concerning Rocabaldi’s “single act” (Reply
Brief, Dkt. No. 28, p. 2) of “pretextually investigat[ing]” Johnson
(SAC ¶ 143) by “sending someone to Plaintiff Johnson’s grandmother’s
funeral to see if Plaintiff Johnson was present” (SAC ¶¶ 28, 143)
“does not rise to the level necessary to assert a Section 1983 or
Section 1981 claim.”
(Reply Brief, Dkt. No. 28, p. 2)
The Court
disagrees.
The standard is “severe or pervasive.”
at 264 (emphasis in original).
Castleberry, 863 F.3d
Thus, a single incident, if
sufficiently severe, can support a hostile work environment claim.
17
Id. (“Under the correct ‘severe or pervasive’ standard, the parties
dispute whether the supervisor’s single use of the ‘n-word’ is
adequately ‘severe’ and if one isolated incident is sufficient to
state a claim under that standard.
Although the resolution of that
question is context-specific, it is clear that one such instance can
suffice to state a claim.”).
Applying this standard, the Court holds that the allegations
concerning Rocabaldi’s verifying Johnson’s attendance at a close
family member’s funeral constitute a sufficiently severe invasion of
Johnson’s privacy to allow Johnson’s hostile work environment claim
to proceed to discovery.
Moreover, the allegations concerning
Rocabaldi’s differential treatment of African American employees and
Caucasian employees with regard to discipline, while more attenuated
to the harassment claim, nonetheless raises above the speculative
level Johnson’s claim that the severe harassment was racially
motivated.
Retaliation
In addition to the theories discussed above, Johnson appears to
assert that Defendant Rocabaldi’s alleged discrimination and
creation of a hostile work environment were in retaliation for
Johnson’s complaint to the NAACP in 2011.
Johnson has alleged
protected activity-- i.e., the NAACP complaint, and adverse
employment actions based on the facts supporting the discrimination
and hostile work environment claims discussed above.
18
While the
lengthy lapse of time between the protected activity and the alleged
adverse actions substantially weakens any inference of causation,
such issues are better addressed at summary judgment.
Cf. LeBoon v.
Lancaster Jewish Community Center Ass’n, 503 F.3d 217, 233 (3d Cir.
2007) (“Although there is no bright line rule as to what constitutes
unduly suggestive temporal proximity, a gap of three months between
the protected activity and the adverse action, without more, cannot
create an inference of causation and defeat summary judgment.”).
Accordingly, Defendants’ Partial Motion to Dismiss Johnson’s §
1981 and § 1983 claims against Defendant Rocabaldi will be granted
as to the discrimination claims and denied in all other respects. 7
(2)
Allegations concerning Defendant D’Angelo
Defendants level the same attack on the allegations against
Defendant D’Angelo, asserting that they are vague, conclusory and
not specific to D’Angelo.
The factual allegations concerning
D’Angelo are:
22. In 2011, Plaintiff Johnson complained to the NAACP
about Defendant Shady Lane because of all the racist things
that were going on at Defendant Shady Lane including
differential treatment based upon race in disciplinary
contexts perpetuated by among others Defendant Strachan,
withholding of Plaintiff Johnson’s increased pay by
Defendant Strachan despite Plaintiff Johnson being given a
purported promotion requiring a union grievance, more
exacting scrutiny of licensing upkeep for African-American
employees as compared to Caucasian employees, a Caucasian
nurse named Vicky Smith calling an African-American
7
This holding is subject to the Court’s independent holding
regarding the timeliness of Plaintiff Johnson’s claims as set forth
below.
19
certified nurse’s assistant Aunt Jemima, and Defendant
D’Angelo calling a student worker named Jamal a Nigger.
. . .
28. Upon return to work in 2013, Plaintiff Johnson was
again pretextually punished by Defendants Baylor and
D’Angelo and Plaintiff Johnson was labeled as being angry
and having a chip on her shoulder by Defendants Treffiletti
and Kerr as well as other Defendant supervisors such as
Defendant Rocabaldi. This type of treatment had occurred
from previously from July of 2012 until September of 2013
and subsequent retaliatory incidents included Defendant
Rocabaldi
sending
someone
to
Plaintiff
Johnson’s
grandmother’s funeral to see if Plaintiff Johnson was
present. These Defendants would also write up Plaintiff
Johnson for no reason in stark contrast to Caucasian
employees.
. . .
143. Defendant Rocabaldi has engaged in an ongoing and
continuing conspiracy with all other Defendants to violate
all Plaintiff Johnson’s Equal Protection Clause rights. In
particular, Defendant Rocabaldi conspired with Defendants
Baylor, D’Angelo, and Treffiletti to retaliate against
Plaintiff Johnson upon her return to work in 2013 and
Defendant Rocabaldi conspired with these Defendants to
pretextually investigate Plaintiff Johnson, including
Defendant Rocabaldi sending someone to Plaintiff Johnson’s
grandmother’s funeral to see if Plaintiff Johnson was
there.
. . .
148. Defendant D’Angelo is Head of Maintenance and
Environmental Management and has been in that or a similar
position since approximately 2002.
149.
Defendant
D’Angelo
has
engaged
in
direct
discrimination based upon race against Plaintiff Johnson.
150.
Defendant
D’Angelo
has
pretextually
punished
Plaintiff Johnson for no reason and when similarly placed
Caucasian employees are not punished for the same
activities.
20
151. Defendant D’Angelo has failed to act despite
meritorious complaints that have been brought to Defendant
D’Angelo by Plaintiff Johnson.
152. Defendant D’Angelo has engaged in a continuing
violation of Plaintiff Johnson’s Equal Protection rights
since at least 2010.
153. Defendant D’Angelo has engaged in an ongoing and
continuing conspiracy with all other Defendants to violate
all Plaintiff Johnson’s Equal Protection Clause rights.
154. These actions include, but are not limited to,
Defendant D’Angelo retaliating against Plaintiff Johnson
and writing her up upon her return to work in 2013.
Plaintiff
Johnson
had
previously
complained
about
Defendant D’Angelo calling a coworker a Nigger.
(SAC ¶ 22, 28, 143, 148-54)
Discrimination
Johnson’s discrimination claim against D’Angelo is based on the
same faulty sentence in paragraph 28 of the Second Amended Complaint
discussed above with regard to Johnson’s claim against Defendant
Rocabaldi.
Accordingly, for the reasons already articulated,
Johnson’s discrimination claim against Defendant D’Angelo fails.
Hostile Work Environment
The Court holds that Johnson has not alleged sufficient facts
to support a hostile work environment claim against Defendant
D’Angelo.
Unlike Johnson’s claim against Defendant Rocabaldi, the
allegations concerning Defendant D’Angelo’s actions do not rise to
the level of a single severe incident.
The Second Amended Complaint
merely alleges that Defendant D’Angelo “wrote up” Johnson.
21
Moreover, to the extent that the Second Amended Complaint may
allege that Defendant D’Angelo wrote up Johnson more than once, the
Second Amended Complaint lacks sufficient factual allegations, which
if accepted as true, would establish that the write ups formed a
pattern of conduct.
Retaliation
With regard to retaliation, the Second Amended Complaint
alleges that D’Angelo wrote up Johnson in 2013 allegedly in
retaliation for her complaint to the NAACP.
For the reasons
explained as to Johnson’s similar claim against Defendant Rocabaldi,
the Court holds that these allegations are sufficient at this early
stage of the case. 8
Accordingly, Defendants’ Partial Motion to Dismiss Johnson’s §
1981 and § 1983 claims against Defendant D’Angelo will be granted as
to the discrimination and hostile work environment claims but denied
as to the retaliation claim. 9
(3)
Allegations concerning Defendant Kerr
8
It is not clear whether Johnson also asserts a retaliation
claim based on the single sentence in Paragraph 154 which reads:
“Plaintiff Johnson had previously complained about Defendant
D’Angelo calling a coworker a [racial epithet].” This single
sentence cannot support a separate retaliation claim. It does not
allege to whom Johnson allegedly complained. Nor does it allege any
facts or circumstances under which it may be plausibly inferred that
Defendant D’Angelo knew about Johnson’s alleged complaint.
9
This holding is subject to the Court’s independent holding
regarding the timeliness of Plaintiff Johnson’s claims as set forth
below.
22
Lastly, Johnson’s factual allegations concerning Defendant Kerr
are:
16. Defendant Megan Kerr (hereinafter “Defendant Kerr”) was
a former HR Director and former supervisor and employee at
Shady Lane Nursing Home.
. . .
28. Upon return to work in 2013, . . . Plaintiff Johnson was
labeled as being angry and having a chip on her shoulder by
Defendants Treffiletti and Kerr as well as other Defendant
supervisors such as Defendant Rocabaldi. This type of
treatment had occurred from previously from July of 2012 until
September of 2013 and subsequent retaliatory incidents
included Defendant Rocabaldi sending someone to Plaintiff
Johnson’s grandmother’s funeral to see if Plaintiff Johnson
was present. These Defendants would also write up Plaintiff
Johnson for no reason in stark contrast to Caucasian
employees.
. . .
56. Plaintiff Nichols began giving Defendant Faulkner
handwritten statements about resident abuse and neglect but
nothing was done. At one point, Plaintiff Nichols went to
Defendant GCIA to report Defendant Faulkner to Defendant Kerr
who at the time was HR manager. Defendant Kerr was informed
of everything that was going on with regard to differential
treatment of African-American staff at Defendant Shady Lane.
Nothing was done and nothing was done to Defendant Faulkner.
. . .
. . .
166. Defendant Kerr was HR Director from approximately 2009
until 2015.
167.
Defendant Kerr has engaged in direct discrimination
based upon race against Plaintiff Johnson.
168.
Defendant Kerr has pretextually punished Plaintiff
Johnson for no reason and when similarly placed Caucasian
employees are not punished for the same activities.
23
169. Defendant Kerr has failed to act despite meritorious
complaints that have been brought to Defendant Kerr by
Plaintiff Johnson.
170. Defendant Kerr has engaged in a continuing violation of
Plaintiff Johnson’s Equal Protection rights since at least
2009.
171. Defendant Kerr has engaged in an ongoing and continuing
conspiracy with all other Defendants to violate all Plaintiff
Johnson’s Equal Protection Clause rights. In particular,
Defendant Kerr conspired with Defendants Baylor, D’Angelo,
and Treffiletti to retaliate against Plaintiff Johnson upon
her return to work in 2013 and Defendant Kerr conspired with
these Defendants to falsely and repeatedly label Plaintiff
Johnson as angry with a chip on her shoulder and Defendant
Kerr oversaw Plaintiff Johnson’s return to work at a lower
rate of pay than when she was terminated in violation of the
CBA and in retaliation for complaints to Defendant Kerr
about racial discrimination which were not acted upon by
Defendant Kerr despite her having the power to do so.
172. It does not matter if Defendant Kerr left the conspiracy
because he left Defendant Shady Lane. The conspiracy
constitutes a continuing violation because the same or
similar racist conduct occurs to Plaintiff Johnson and
Defendant Kerr’s involvement in the conspiracy allowed the
conspiracy to foment and continue.
173. These actions include, but are not limited to, Defendant
Kerr stating that Plaintiff Johnson was angry and had a chip
on her shoulder and baseless write ups of Plaintiff Johnson.
Discrimination
Like the claims against Defendants Rocabaldi and D’Angelo,
Johnson asserts that in 2013 Defendant Kerr “wr[o]te up Plaintiff
Johnson for no reason in stark contrast to Caucasian employees.”
(SAC ¶ 28)
For the reasons already articulated, this factual
allegation is insufficient to support Johnson’s race discrimination
claims.
24
Additionally, Johnson alleges a discrimination claim against
Defendant Kerr under a knowledge and acquiescence theory.
Plaintiffs’ counsel explains in Johnson’s opposition brief,
“Defendant Kerr was HR Director at relevant times and ‘was informed
of everything that was going on with regard to differential
treatment of African-American staff at Defendant Shady Lane.
Nothing was done[.]’”
SAC ¶ 56)
(Opposition Brief, Dkt. No. 26, p. 9, quoting
This allegation is also too vague and conclusory to
support a discrimination claim.
Johnson alleges no facts indicating
how Defendant Kerr came to be “informed” about the alleged
unspecified differential treatment unspecified African American
employees allegedly experienced.
Hostile Work Environment
The Court holds that Johnson has not alleged sufficient facts
to support a hostile work environment claim against Defendant Kerr
for essentially the same reasons Johnson has not stated a claim
against Defendant D’Angelo.
Like the claim against Defendant
D’Angelo, Johnson merely alleges that Defendant Kerr “wrote her up,”
perhaps more than once.
The additional fact that Defendant Kerr allegedly “stat[ed]
that Plaintiff Johnson was angry and had a chip on her shoulder,”
(SAC ¶ 173), does not independently, nor in combination with the
alleged baseless write up (or write ups), establish a hostile work
environment claim.
The allegation is not sufficiently severe to
25
support a single incident theory, nor are there any facts alleged
that would plausibly support a conclusion that Defendant Kerr’s
actions were pervasive.
Moreover, the allegation is impermissibly
vague as it does not identify to whom, or under what circumstances,
Defendant Kerr allegedly said that Plaintiff Johnson had a chip on
her shoulder.
Retaliation
Johnson’s retaliation claim against Defendant Kerr is identical
to the retaliation claims against Defendant Rocabaldi and D’Angelo.
Johnson’s retaliation claim against Defendant Kerr survives the
instant Partial Motion to Dismiss for the same reasons articulated
above.
Accordingly, Defendants’ Partial Motion to Dismiss Johnson’s §
1981 and § 1983 claims against Defendant Kerr will be granted as to
the discrimination claims and hostile work environment claims but
denied as to the retaliation claim. 10
B. The Conspiracy Counts
(1)
Intra-Corporate Conspiracy Doctrine
Plaintiffs concede that the intra-corporate doctrine bars the
conspiracy claims against the entity defendants, Gloucester County
Improvement Authority and Shady Lane. (Opposition Brief, Dkt. No.
10
This holding is subject to the Court’s independent holding
regarding the timeliness of Plaintiff Johnson’s claims as set forth
below.
26
26, p. 4, 13, 17)
Accordingly, the Motion to Dismiss will be
granted as to the conspiracy claims against those two Defendants.
(2)
Sufficiency of the Factual Allegations of Conspiracy
Defendants assert that the Second Amended Complaint fails to
plead sufficient facts to support a conspiracy claim against any of
the individual defendants.
In particular, Defendants assert that
“the [Second Amended] Complaint lacks any allegation of a meeting of
the minds amongst Defendants to violate Plaintiffs’ civil rights.”
(Moving Brief, Dkt. No. 24, p. 19)
In opposition, Plaintiffs point to numerous paragraphs of the
Second Amended Complaint where various Defendants are alleged to
have “work[ed] together” or “act[ed] together.” (Opposition Brief,
Dkt. No. 26, p. 11)
These allegations, however, are insufficient as
a matter of law.
The Third Circuit has expressly set forth the pleading standard
for § 1983 conspiracies: “to properly plead an unconstitutional
conspiracy, a plaintiff must assert facts from which a
conspiratorial agreement can be inferred. . . . Twombly and Iqbal .
. . require ‘enough factual matter (taken as true) to suggest that
an agreement was made,’ in other words, ‘plausible grounds to infer
an agreement.’”
Great Western Mining & Mineral Co. v. Fox
Rothschild LLP, 615 F.3d 159, 178 (3d Cir. 2010)(quoting Twombly). 11
11
The Court’s analysis concerning the sufficiency of the
conspiracy allegations applies to all conspiracies alleged in the
27
Great Western holds that merely pleading “‘concerted action,’”
and then asserting that such action is “‘not likely to occur in the
absence of agreement,’” is legally insufficient.
615 F.3d at 178
(quoting plaintiffs’ proposed amended complaint); see also, Figueroa
v. City of Camden, 580 F. Supp. 2d 390, 402 (D.N.J. 2008)(“to make
out a § 1983 conspiracy claim, the plaintiff must make specific
factual allegations of a combination, agreement or understanding
amongst all or between any of defendants to plot, plan, or conspire
to carry out the alleged chain of events in order to deprive
plaintiff of a federally protected right.”).
The conspiracy
allegations in Plaintiffs’ Second Amended Complaint are closely
analogous to those at issue in Great Northern.
The Second Amended
Complaint merely alleges parallel action which is insufficient to
support a plausible inference of a meeting of the minds.
Great
Northern, 615 F.3d at 176-77 (“‘Without more, parallel conduct does
not suggest conspiracy[.] . . . [W]hen allegations of parallel
conduct are set out . . . they must be placed in a context that
raises a suggestion of a preceding agreement, not merely parallel
conduct that could just as well be independent action.’”)(quoting
Twombly, 550 U.S. at 556-57).
Second Amended Complaint. While Great Northern only addressed §
1983 conspiracies, the Court finds no distinguishing reason to apply
a different pleading standard to Plaintiffs’ claims of conspiracy to
violate § 1981. The Second Amended Complaint does not allege a
conspiracy to violate the LAD.
28
Plaintiffs argue that they do allege more: the Second Amended
Complaint alleges that “Sylvia Murphy . . . will testify to an
explicit conspiracy by [] Defendants [Faulkner and Strachan] to
target African-American employees and enforce disparate discipline.”
(SAC ¶ 60)
This allegation, however, is merely conclusory; it
contains no facts concerning what Sylvia Murphy allegedly saw,
heard, read, experienced or otherwise obtained personal knowledge
of.
Plaintiffs cannot sustain their burden of pleading facts by
stating that such facts will be provided in witness testimony at a
later time. (See Opposition Brief, Dkt. No. 26, p. 12, “Ms. Murphy
will testify in discovery and at trial.”)
The time is now-- not in
discovery, and the place is in the pleading-- not in a deposition
transcript.
The Second Amended Complaint lacks factual averments which
would “create plausible grounds to infer an agreement” between any
of the individual Defendants.
Great Northern, 615 F.3d at 179.
Accordingly, Defendants’ Motion to Dismiss the conspiracy claims
will be granted.
C. Statutes of Limitation
The parties do not dispute that the limitation period for §
1983 claims and LAD claims is two years; 12 and the limitation period
12
O’Connor v. City of Newark, 440 F.3d 125, 126–27 (3d Cir.
2006)(two-year statute of limitation for § 1983 claims in New
Jersey); Montells v. Haynes, 133 N.J. 282, 292 (1993)(holding that
29
for § 1981 claims is four years. 13
Thus, Defendants argue, the
accrual dates for the claims are November 10, 2014 (§ 1983 and LAD);
and November 10, 2012 (§ 1981), and any claims based on alleged
adverse employment actions taking place prior to those dates are
time-barred.
In opposition, Plaintiffs assert that all of their claims are
“timely pursuant to continuing violation doctrine and hostile work
environment theory.” (sic) (Opposition Brief, Dkt. No. 26, p. 13)
(1)
Continuing Violation Theory
The continuing violation doctrine does not apply to discrete
adverse employment actions such as termination (or other separation
from employment such as lay-offs, reductions in force, or
constructive termination), and wrongful discipline.
See National
Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002)
(explaining that “discrete acts” are easy to identify as
discriminatory, such as termination, failure to promote, denial of
transfer, or refusal to hire).
This rule applies to each of
Plaintiffs’ claims as follows.
Plaintiff Johnson
the two-year statute of limitation for personal injury claims
applies to LAD claims).
13
Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 371
(2004)(holding that the “catchall 4–year statute of limitations for
actions arising under federal statutes”, as opposed to the state law
applies to claims arising under § 1981).
30
Johnson alleges the following adverse employment actions.
She
was allegedly: (a) laid off “by April 2, 2012,” (SAC ¶ 24); (b)
written-up in July or August of 2012 (SAC ¶ 25); (c) written-up and
“pretextually punished” several times between July of 2012 and
September 27, 2013 (SAC ¶¶ 26-28); (d) terminated on September 27,
2013 (SAC ¶ 27); (e) “pretextually punished” in 2015 (SAC ¶ 28); (f)
“placed on [disciplinary] paid leave” on March 30, 2017 (SAC ¶ 33);
(g) sent home for disciplinary reasons sometime after November 16,
2016 (SAC ¶ 100); and (h) terminated on April 3, 2017 (SAC ¶ 34).
Each of these alleged adverse employment actions are discrete
events to which the continuing violation doctrine does not apply.
Accordingly, the Court holds that Johnson’s § 1983 and LAD claims
are time-barred to the extent they are based on (a) through (d); and
Johnson’s § 1981 claims are time-barred to the extent they are based
on (a) through (b) and part of (c).
Plaintiff Davis
Davis alleges the following adverse employment actions.
She
was allegedly: (a) “told not to report to work” for disciplinary
reasons “around May 30, 2010” (SAC ¶ 36); (b) subjected to “adverse
discipline and had to fight to retain her job in 2010” (SAC ¶ 37);
(c) terminated sometime prior to October 13, 2011 (SAC ¶ 39); (d)
not accommodated for her work injury and resulting pain sometime
between January 19, 2015 and July 20, 2015 (SAC ¶ 40); (e) demoted
with a decrease in pay on or after July 20, 2015 (SAC ¶ 41); (f)
31
disciplined on January 30, 2017 (SAC ¶ 43); and (g) sent home for
disciplinary reasons sometime after November 16, 2016 (SAC ¶ 100).
Each of these alleged adverse employment actions are discrete
events to which the continuing violation doctrine does not apply.
Accordingly, the Court holds that Davis’ § 1983 and LAD claims are
time-barred to the extent they are based on (a) through (c); and
Davis’ § 1981 claims are time-barred to the extent they are based on
(a) through (c).
Plaintiff Nichols
Nichols alleges the following adverse employment actions.
She
was allegedly: (a) written up in 2005 (SAC ¶ 46); (b) written up
sometime between 2005 and 2007 (SAC ¶ 47); (c) “sent home” and
suspended for disciplinary reasons in September 2009 (SAC ¶ 64); (d)
suspended for five days for disciplinary reasons on October 28, 2009
(SAC ¶ 69); (e) “interrogated and accused of being a racist by a
labor law attorney hired by Defendant GCIA” on April 13, 2016 (SAC ¶
82); (f) “interrogated by Defendants Treffiletti and Baylor about
private texts and emails sent from Plaintiff Nichols’ telephone” on
April 14, 2016 (SAC ¶ 83); and (g) sent home for disciplinary
reasons sometime after November 16, 2016 (SAC ¶ 100).
Each of these alleged adverse employment actions are discrete
events to which the continuing violation doctrine does not apply.
Accordingly, the Court holds that Nichols’ § 1983 and LAD claims are
time-barred to the extent they are based on (a) through (d); and
32
Nichols’ § 1981 claims are time-barred to the extent they are based
on (a) through (d).
Plaintiff Clark
Clark alleges the following adverse employment actions.
She
was allegedly: (a) disciplined in January of 2014 (SAC ¶ 84); (b)
disciplined in February 2014 (SAC ¶ 85); (c) “censured” or
disciplined in March of 2014 (SAC ¶ 86); (d) disciplined in April
2014 (SAC ¶ 87); (e) “censured” in May 2014 (SAC ¶ 88); (f) written
up in February of 2017; and (g) sent home for disciplinary reasons
sometime after November 16, 2016. (SAC ¶ 100)
Each of these alleged adverse employment actions are discrete
events to which the continuing violation doctrine does not apply.
Accordingly, the Court holds that Clark’s § 1983 and LAD claims are
time-barred to the extent they are based on (a) through (d).
Clark’s § 1981 claims based on these alleged adverse employment
actions are not time-barred.
(2)
Hostile Work Environment
Discrimination and retaliation claims based on a pervasive
hostile work environment theory accrue on the date of the last
discrete act in a series of occurrences that allegedly constitute
the hostile work environment.
See Morgan, 536 U.S. at 117
(explaining that a continuing violation is a series of separate acts
that collectively constitute one unlawful employment practice, and
33
that “[s]uch a cause of action accrues on the date on which the last
component act occurred”).
Discrimination and retaliation claims based on a single
incident hostile work environment theory obviously accrue on the
date the single incident occurred.
These rules apply to each of Plaintiffs’ claims as follows.
Plaintiff Johnson
As discussed above, Johnson has stated a hostile work
environment claim based on the single incident of Defendant
Rocabaldi allegedly verifying Johnson’s attendance at her
grandmother’s funeral.
(SAC ¶ 28)
This incident allegedly occurred in 2015.
Accordingly, Johnson’s § 1983, LAD, and § 1981 claims,
to the extent they are based on this incident, are timely.
Plaintiff Davis
With respect to Plaintiff Davis, the Second Amended Complaint
alleges, “[b]etween 2011 and 2015, Plaintiff Davis was intimidated
by Defendants Faulkner, Baylor, Treffiletti, and Higgins, who
attempted to force Plaintiff Davis to retire when Plaintiff Davis
injured herself at work. . . . Caucasian workers were never
adversely treated like this when injured at work.”
(SAC ¶ 38)
The last component act allegedly occurred in 2015; accordingly
Davis’ § 1983, LAD, and § 1981 claims, to the extent they are based
on this incident, are timely.
Plaintiff Nichols
34
Plaintiff Nichols appears to assert four separate hostile work
environment claims.
First, she asserts that Defendants Faulkner and
Higgins created a hostile work environment by more closely
monitoring Nichols’ work and more strictly enforcing rule
infractions.
(SAC ¶¶ 50, 55, 64, 75)
These events allegedly
occurred “continuously” “from 2007 to the present.”
(SAC ¶¶ 50, 75)
The last component act allegedly occurred in 2017 (the year the
Second Amended Complaint was filed); accordingly Davis’ § 1983, LAD,
and § 1981 claims, to the extent they are based on this first
hostile work environment theory, are timely.
Second, Nichols asserts that she was “harassed” and “bullied”
by co-workers from 2007 until she was transferred to housekeeping in
“March of 2012.”
(SAC ¶¶ 48, 74, 57-59, 68)
She alleges that
during this time, Defendant Faulkner knew about the harassment and
acquiesced in it.
(SAC ¶¶ 48, 57, 58, 68)
The last component act
allegedly occurred in March of 2012; accordingly Davis’ § 1983, LAD,
and § 1981 claims, to the extent they are based on this second
hostile work environment theory, are all time-barred.
Third, Nichols separately alleges that in 2015 she was
“smack[ed] . . . on her butt once or twice a month” by two Caucasian
co-workers and that she was also verbally harassed by Caucasian coworkers.
(SAC ¶¶ 80-81)
Nichols allegedly complained to Defendant
Treffiletti, who allegedly did nothing.
(SAC ¶ 81)
The last
component act allegedly occurred in 2015; accordingly Davis’ § 1983,
35
LAD, and § 1981 claims, to the extent they are based on this third
hostile work environment theory, are timely.
Fourth, Nichols alleges that Defendant Higgins “set up”
“segregated smoking areas based upon race” “from 2009 until 2012.”
(SAC ¶¶ 63, 67)
The last component act allegedly occurred in 2012;
accordingly Davis’ § 1983 and LAD claims, to the extent they are
based on this fourth hostile work environment theory, are timebarred.
It is not clear at this time whether the § 1981 claim is
timely.
If discovery reveals that the last component act occurred
prior to November 10th of 2012, the Court may address the issue at
summary judgment.
Plaintiff Clark
Plaintiff Clark’s hostile work environment claim appears to be
based on an alleged pattern of unwarranted discipline and reprimands
that occurred almost monthly throughout 2014 and into 2015.
84-93)
(SAC ¶¶
The last component act allegedly occurred in 2015;
accordingly Clark’s § 1983, LAD, and § 1981 claims, to the extent
they are based on this hostile work environment theory, are timely.
Accordingly, Defendants’ Partial Motion to Dismiss each of
Plaintiffs’ claims based on the applicable statutes of limitation
will be granted in part and denied in part, as specifically set
forth above.
36
D. Leave to Amend
Plaintiffs generically assert that, in the event any of their
claims are dismissed, they should “be permitted to amend their
second amended complaint.”
(Opposition Brief, Dkt No. 26, p. 5, 17)
The Court declines to give Plaintiffs carte blanche permission to
make a fourth attempt to re-plead their claims when the original
complaint in this case was filed over a year ago.
Indeed, at least
some of the identified deficiencies of the Second Amended Complaint- namely the time-barred claims-- likely cannot be cured by
amendment. 14
Moreover, in response to Defendants’ previous pre-motion
letters filed pursuant to this Court’s Individual Rules and
Procedures, and after a pre-motion conference concerning Defendants’
proposed Motion to Dismiss, this Court already granted Plaintiffs
leave to amend their pleading which resulted in the Second Amended
Complaint at issue here.
In any event, the Court does not construe Plaintiffs’ generic
request to amend as a formal motion to amend, as such a motion would
require the filing of the proposed amended pleading, see L. Civ. R.
7.1(f), which Plaintiffs have not done.
14
Should Plaintiffs file a
The Court makes no ruling at this time as to the separate
issue of admissibility of the events alleged to have occurred prior
to the expiration of the statutes of limitation. Such events, while
not independently actionable, nonetheless may be admissible in
support of Plaintiffs’ timely claims. See generally, Fed. R. Evid.
404(b)(2). Discovery in this case should be guided accordingly.
37
proper Motion to Amend, the Court invites both Plaintiffs and
Defendants to thoroughly address why the proposed amendments would
not be futile and/or prejudicial to Defendants.
Additionally,
Plaintiffs’ proposed amended pleading shall provide a black-lined
version comparing the Second Amended Complaint with the proposed
Third Amended Complaint.
The Court desires not to have to
independently labor to identify proposed changes to an already dense
pleading which presently includes over 250 numbered paragraphs and
spans 47 pages.
See supra, fn. 6 (re: clarity and brevity of
pleadings).
IV.
CONCLUSION
For the foregoing reasons, Defendants’ Partial Motion to
Dismiss will be granted in part and denied in part as specifically
set forth in the accompanying Order issued on this date.
Dated: December 21, 2017
s/ Renée Marie Bumb
__________________________
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
38
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