BOWMAN v. ROWAN UNIVERSITY et al
Filing
16
OPINION. Signed by Judge Noel L. Hillman on 12/18/2018. (rtm, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SUSAN BOWMAN,
Plaintiff,
CIVIL NO. 18-04239 (NLH/KMW)
OPINION
v.
ROWAN UNIVERSITY, JAMES
NEWELL, JOHN DOES 1-10, and
XYZ CORP. 1-10,
Defendants.
APPEARANCES:
MARK E. BELLAND
O’BRIEN, BELLAND & BUSHINSKY, LLC
1526 BERLIN ROAD
CHERRY HILL, NJ 08003
On behalf of Plaintiff Susan Bowman.
CHRISTIE PAZDZIERSKI
DEPUTY ATTORNEY GENERAL OF NEW JERSEY
R.J. HUGHES JUSTICE COMPLEX
25 MARKET STREET, P.O. BOX 112
TRENTON, NJ 08625-0112
On behalf of Defendants Rowan University and James
Newell.
HILLMAN, District Judge
This is an employment discrimination suit brought by
Plaintiff Susan Bowman, a current professor and former
department Chair at Rowan University.
Defendants, Rowan
University (“Rowan”) and Provost James Newell (“Provost
Newell”), move to dismiss the complaint and preclude
Plaintiff’s request for leave to amend her complaint.
For
the reasons set forth herein, Defendants’ motion will be
granted, in part, and denied, in part.
Plaintiff’s request
for leave to amend her complaint will also be granted, in
part, and denied, in part.
BACKGROUND
The Court takes its facts from Plaintiff’s complaint.
In 2002, Ms. Bowman began her academic career with Rowan as
an Assistant Professor in the College of Fine and
Performing Arts.
(Compl. ¶ 12.)
Ms. Bowman served as an
Assistant Professor for five years before being elected
Chair of the Department of Art in 2008.
(Id. ¶ 13.)
Ms.
Bowman served in this position for eight years, being reelected twice.
(Id. ¶ 14.)
Ms. Bowman also served on the
Department of Art Tenure and Recontracting Committee (the
“Committee”) during the 2015-16 school year, along with
Education of Art Coordinator, Dr. Jane Graziano, and the
Committee Chair, Dr. Andrew Hottle.
(Id. ¶ 20-21.)
The Committee reviewed two tenure-track faculty
members for the 2015-16 school year.
(Id. ¶ 23.)
Tingting Wang was one of the two reviewed.
(Id.)
Dr.
Dr.
Hottle and Dr. Graziano found that Dr. Wang had not met the
field work requirements necessary for recontracting and
recommended that Ms. Bowman vote against recontracting.
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(Id. ¶ 27.)
Dr. Hottle and Dr. Graziano voted against
recontracting Dr. Wang, but Ms. Bowman submitted her own
recommendation to a superior authority, the University
Senate Tenure and Recontracting Committee, in favor of Dr.
Wang’s application.
(Id. ¶¶ 25-29.)
In January 2016, the
Rowan University Board of Trustees voted to approve Dr.
Wang’s application.
(Id. ¶ 30.)
Following the vote, around February 15, 2016, Provost
Newell called for a meeting with the full-time tenure track
faculty in the Department of Art.
(Compl. ¶ 31.)
Provost
Newell announced that four faculty members had placed a
“vote of no confidence” in Ms. Bowman; the University
Senate President confirmed those four were Dr. Fred
Adelson, Dr. Herbert Appleson, Skeffington Thomas, and
Nancy Ohanian.
(Id. ¶¶ 31-32.)
The same faculty that
placed a vote of no confidence also filed an “internal
Charge of Workplace Violence and Bullying” against Ms.
Bowman about a week later.
(Id. ¶ 34.)
During her time as
Chair, Ms. Bowman claims she was subjected to
discriminatory incidents of harassment, intimidation, and
hostility from the above Rowan faculty members as well as
another faculty member, Dr. Daniel Chard.
(Id. ¶ 16.)
On or about March 23, 2016, Dr. Wang filed a complaint
with Rowan against Ms. Bowman – and the other members of
3
the Committee - claiming the Committee discriminated
against her during the recontracting review process and
that Ms. Bowman engaged in student evaluation tampering.
(Compl. ¶¶ 36-37.)
A Compliance Officer investigated the
allegations by conducting a four-hour long interview with
Ms. Bowman.
(Id. ¶¶ 39-41.)
Ms. Bowman claims she was
never given the opportunity to present her side of the
story, and further claims the investigator had a conflict
of interest because he investigated both the Committee
action and evaluation tampering cases against her.
(Id. ¶¶
40, 42.)
On July 21, 2016, Ms. Bowman received a letter from
Rowan’s Executive Vice President that she had been found
guilty of violating the New Jersey Anti-Discriminatory
Policy.
The Committee was charged with racially
discriminating against Dr. Wang in the review process.
(Compl. ¶ 36.)
Both women were found guilty, while, Dr.
Hottle, the male, was not.
(Id. ¶¶ 45-47.)
This resulted
in Bowman’s removal as Chair of the Department of Art,
ineligibility for sabbatical for seven years, and a fiveyear ban from serving on the Committee or obtaining a chair
position.
(Id. ¶ 44.)
On August 1, 2016, Ms. Bowman received a letter from
the Assistant Vice President of Rowan’s Equity and
4
Diversity division determining that she had violated the
Workplace Violence and Bullying Policy.
(Compl. ¶ 52.)
This also resulted in sanctions, including a second basis
for her removal as Chair of the Department of Art, a fiveyear ban from any committee participation and release time,
and a prohibition on her previously approved sabbatical for
at least five years.
(Id. ¶ 51.)
Based on these two sanction letters, Provost Newell
issued a cumulative summary sanction letter that
effectively removed Ms. Bowman from her position as Chair
of the Department of Art, ruled her ineligible to receive
an Adjusted Work Load for five years, prohibited her from
participating in any committee for five years or reviewing
Dr. Wang’s credentials for any purpose, and rescinded her
previously approved sabbatical.
(Compl. ¶ 52.)
Following the sanctions, Ms. Bowman was moved from the
Department of Art to the Department of Public Relations and
Advertising by Provost Newell and other executive members.
(Compl. ¶ 59.)
Provost Newell proceeded to move Dr.
Graziano to the Department of Science, Technology,
Engineering, Art, and Mathematics and Ms. Amanda Almon to
the Department of Radio, Television and Film.
(Id. ¶ 60.)
Ms. Bowman was left teaching new courses in an area where
she lacked expertise.
(Id. ¶¶ 61-62.)
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Dr. Graziano and
Ms. Almon were allegedly able to request and schedule their
same courses, but Ms. Bowman was denied a similar request
for the first time in fifteen years.
(Id. ¶¶ 63-65.)
The complaint alleges the following five claims
against Defendants, including: (1) a violation of the New
Jersey Law Against Discrimination (“NJLAD”) by
discriminating against Ms. Bowman on the basis of her sex
(Count I); (2) a violation of the NJLAD by retaliating
against Ms. Bowman for complaining of being discriminated
against on the basis of her sex (Count II); (3) a violation
of Title IX of the Education Amendment of 1972 (“Title IX”)
by discriminating against Ms. Bowman on the basis of her
sex while under employment of an educational program
receiving federal financial assistance (Count III); (4) a
violation of 42 U.S.C. § 1983 by depriving Ms. Bowman of
her Fourteenth Amendment constitutional rights when Rowan
discriminated against her on the basis of her sex (Count
IV); and (5) the negligent infliction of emotional distress
(“NIED”) based on Rowan’s adverse employment actions
against her (Count V).
In Defendants’ Motion to Dismiss, Defendants ask this
Court to Dismiss Counts II, IV, and V.
contests dismissal of Counts II and IV.
Plaintiff only
Plaintiff conceded
dismissal of Count V, but has asked for leave to amend her
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complaint to assert a claim for Intentional Infliction of
Emotional Distress (“IIED”).
to Amend be denied.
Defendants request her Leave
This Court will address each argument
in turn.
ANALYSIS
A.
Subject Matter Jurisdiction
Plaintiff has brought her claims pursuant to 42 U.S.C.
§ 1983, Title IX, and New Jersey state law.
This Court has
jurisdiction over Plaintiff’s federal claims under 28
U.S.C. § 1331, and supplemental jurisdiction over
Plaintiff’s state law claims under 28 U.S.C. § 1367.
B.
Motion to Dismiss Standard
Pursuant to Federal Rule of Civil Procedure 12(b)(6),
when considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted,
a court must accept all well-pleaded allegations in the
complaint as true and construe all reasonable inferences in
a light most favorable to the non-movant.
Evancho v.
Fisher, 423 F.3d 347, 351 (3d Cir. 2005).
The court is required to distinguish any claims acting
as mere labels or reaching legal conclusions and decide
which plausible claims give rise to relief.
Malleus v.
George, 641 F.3d 560, 563 (3d Cir. 2011) (citations
7
omitted) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)).
A district court considers, “‘not whether a plaintiff
will ultimately prevail but whether the claimant is
entitled to offer evidence to support the claim.’”
Bell
Atl. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Scheuer
v. Rhoades, 416 U.S. 232, 236 (1974)); see also Iqbal, 556
U.S. at 684 (“Our decision in Twombly expounded the
pleading standard for ‘all civil actions’ . . . .”); Fowler
v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2009) (“Iqbal . . . provides the final nail in the coffin
for the ‘no set of facts’ standard that applied to federal
complaints before Twombly.”).
If the plaintiff does not plead enough facts to state
a claim for relief, the claim is not plausible on its face
and the motion to dismiss must be granted.
George, 641
F.3d at 563 (citing Twombly, 550 U.S. at 570).
C.
Motion to Dismiss
a. Whether Plaintiff’s NJLAD Retaliation Claim
Should be Dismissed
Defendants move to dismiss Plaintiff’s NJLAD
retaliation claim (Count II).
Defendants argue that a
prima facie case for retaliation under NJLAD requires
Plaintiff to plead facts showing she was engaged in a
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protected activity.
Defendants argue there are no facts in
the Complaint showing Plaintiff engaged in a protected
activity.
Plaintiff asserts she engaged in a protected
activity when she “submitted a letter to the Civil Service
Commission seeking to appeal the discrimination complaint
determination issued by Rowan.”
(Pl.’s Opp. Br. 13-14.)
In the alternative, Plaintiff argues she should be given
leave to amend her complaint.
In order to prove a prima facie case of retaliation
under the NJLAD, a plaintiff must show: (1) she was engaged
in a protected activity known to defendant; (2) she was
subjected to an adverse employment decision by the
defendant following the engagement of the activity; and (3)
a causal link exists between the protected interest and the
following adverse employment action.
12.
N.J. STAT. ANN. § 10:5–
A person engages in a protected activity when she
challenges any practice rendered unlawful under the NJLAD,
which includes, but is not limited to, discrimination
against race, gender, sex, creed, and national origin.
Id.
Defendants are correct that Plaintiff has not included
any facts in her complaint to support her conclusory
allegation that she engaged in a protected activity.
Plaintiff first claimed the protected activity mentioned
supra in her opposition brief.
Accordingly, this Court
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will dismiss Count II of the complaint, without prejudice,
subject to the direction included immediately infra.
Because this Court will dismiss Count II, it must now
consider whether it should grant Plaintiff leave to amend.
Generally, “plaintiffs who file complaints subject to
dismissal . . . should receive leave to amend unless
amendment would be inequitable or futile.”
Grayson v.
Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
The
Court does not find it inequitable or futile to allow
Plaintiff leave to amend.
The allegations included in the
opposition brief – but left out of the complaint - include
enough facts, if true, to support a facially plausible
claim.
Therefore, this Court grants Plaintiff leave to
amend Count II.
b. Whether Plaintiff’s § 1983 Claim Should be
Dismissed
Defendants also move to dismiss Count IV of the
complaint in which Plaintiff alleges Defendants violated 42
U.S.C. § 1983 by violating her due process and equal
protection rights.
Defendants contend that they are not
“persons” under § 1983.
Instead, Defendants argue, they
are entitled to sovereign immunity under the Eleventh
Amendment because they are an arm of the state.
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In light of the recent changes to Rowan’s legal
relationship with the state of New Jersey, Plaintiff argues
Defendants should not be considered a state entity under
the law and believes dismissal is, at least, premature.
Plaintiff contends this issue requires a more detailed
analysis, which will likely require discovery and further
briefing.
The Court agrees.
To state a claim for relief under § 1983, a plaintiff
must allege (1) the violation of a right secured by
the Constitution or laws of the United States, and (2) the
alleged deprivation was committed or caused by a person
acting under color of state law.
42, 48 (1988).
West v. Atkins, 487 U.S.
See also Piecknick v. Pennsylvania, 36 F.3d
1250, 1255-56 (3d Cir. 1994).
The Eleventh Amendment
provides:
The Judicial power of the United States shall not
be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens
or Subjects of any Foreign State.
U.S. Const. amend. XI.
It is well established that states are not “persons”
subject to suit under § 1983 and sovereign immunity extends
to state agencies and state officers, as long as the state
is the real party in interest.
Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 71 (1989).
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States, state
agencies, and state officials may be sued, but not for
monetary damages.
Id.
To determine whether the state is the real party in
interest, this Court considers three factors: (1) who is
responsible for paying an adverse judgment; (2) the status
of the agency under state law; and (3) what degree of
autonomy the agency retains from state control.
Fitchik v.
N.J. Transit Rail Operations, 873 F.2d 655, 658 (3d Cir.
1989).
“Each step of that analysis is a ‘fact-intensive’
undertaking that requires a fresh analysis and
‘individualized determinations’ for each entity claiming
Eleventh Amendment immunity.”
Bowers v. Nat'l Collegiate
Athletic Ass'n, 475 F.3d 524, 546 (3d Cir. 2007).
Furthermore, “‘each state university exists in a unique
governmental context, and each must be considered on the
basis of its own peculiar circumstances.’”
Kovats v.
Rutgers, The State Univ., 822 F.2d 1303, 1312 (3d Cir.
1987) (quoting Soni v. Bd. of Trs. of the Univ. of Tenn.,
513 F.2d 347, 352 (6th Cir. 1975)).
Defendant heavily relies on Maliandi v. Montclair St.
Univ., in which Montclair State University was provided
immunity.
845 F.3d 77, 86 (3d Cir. 2016).
However, the
Third Circuit in that case had access to enough information
12
to allow it to thoroughly address the Fitchik factors.
Further, the Third Circuit in that case expressed the
importance of conducting the Fitchik test in a unique,
individualized, and fact-intensive manner.
Id. at 85.
With regard to Rowan, this issue has not been
thoroughly addressed since the Nannay decision in 2000.
Nannay v. Rowan College, 101 F. Supp. 2d 272, 283 (D.N.J.
2000)(finding Rowan College, Rowan’s predecessor
institution, immune).
The cases decided post-Nannay do not
persuade this Court that dismissal is warranted at this
stage.
See e.g., Cottrell v. Norman, No. 12-1986, 2014 WL
3729215, at *7 (D.N.J. July 25, 2014) (stating briefly in
dicta that Rowan University may not be considered a
“person” under 42 U.S.C. § 1983); Williams v. Rowan Univ.,
No. 10-6543, 2014 WL 7011162, at *7 (D.N.J. Dec. 11, 2014)
(citing to a footnote in Cottrell noting that Rowan may not
be considered a “person” under 42 U.S.C. § 1983, but
deciding the motion for summary judgment on the merits of
the constitutional claim).
Moreover, Plaintiff has enumerated changes since the
Nannay decision, including the New Jersey Medical and
Health Science Education Restructuring Act which
transferred the University of Medicine and Dentistry of New
Jersey’s School of Osteopathic Medicine to Rowan
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University.
(Pl.’s Opp. Br. 9-10.)
These changes may
accord Rowan a status similar to Rutgers University which
has been held to not enjoy Eleventh Amendment immunity.
Kovats, 822 F.2d at 1312, 1312 n.10.
At this stage of the
pleadings, the information supplied by Defendants is not
enough for this Court to conclude that Rowan is clearly an
arm of the state.
To be clear, Defendant is free to raise
this argument again at a later date, following discovery.
Accordingly, the court denies Defendants’ Motion to Dismiss
as it relates to Count IV.
c. Whether this Court Should Grant Plaintiff Leave
to Amend Her Complaint to Assert a Claim for
Intention Infliction of Emotional Distress
Defendants also move to dismiss Count V of the
complaint in which Plaintiff alleges that Defendants’
adverse employment actions against her constituted
negligent infliction of emotional distress.
Defendants
contend Plaintiff failed to file a notice of claim within
the statutorily prescribed period.
Plaintiff “consents to the withdrawal of her negligent
infliction of emotional distress claim,” but requests
“leave to assert a claim for intentional infliction of
emotional distress” and “leave to further amend the
Complaint.”
(Pl.’s Opp. Br. 2-3.)
Therefore, this Court
will deny Defendants’ Motion to Dismiss as moot and dismiss
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Count V – as stated in the complaint – by consent of
Plaintiff. 1
But, this Court must still address Plaintiff’s request
for leave to amend to add an IIED claim against Defendants.
Defendants argue leave to amend should not be granted
because amendment here would be futile.
Specifically, the
Defendant asserts the New Jersey Tort Claims Act (“NJTCA”)
“does not waive sovereign immunity for a State entity when
a public employee commits an intentional tort.”
(Defs.’
Reply Br. 4 (citing N.J. STAT. ANN. §§ 59:2-2 and 59:2-10).)
Before addressing Defendants argument, this Court must
assure itself that Defendants are covered by the NJTCA.
A
“[p]ublic entity” includes “the State, and any county,
municipality, district, public authority, public agency,
and any other political subdivision or public body in the
State.”
N.J. STAT. ANN. § 59:1-3.
A “[p]ublic employee” is
defined, in part, as “an employee of a public entity.”
Id.
Under the Higher Education Governance statute, Rowan
University is considered a public research university.
1
In light of this disposition, the Court need not address
Defendants’ alternative argument that Plaintiff’s
negligence claim is barred by the New Jersey Workers’
Compensation Act. N.J. STAT. ANN. § 34:15-8.
15
N.J. STAT. ANN. § 18A:3B-3. 1
Rowan is a public entity and
Provost Newell is a public employee.
Since Defendants fall within the confines of the
NJTCA, this Court may now consider whether the NJTCA opens
up a public entity or public employee to liability for an
intentional tort.
Defendants are correct that Rowan cannot
be held liable for an intentional tort committed by an
employee.
See Soto v. City of Newark, 72 F. Supp. 2d 489,
497 (D.N.J. 1999) (“[T]he Court cannot find Defendants –
public entities – liable for [IIED].”) (citing N.J. STAT.
ANN. § 59:2-10 (“A public entity is not liable for the acts
or omissions of a public employee constituting a crime,
actual fraud, actual malice, or willful misconduct.”);
Fuchilla v. Layman, 537 A.2d 652 (N.J. 1988) (finding
public entities may only be liable for their negligent
actions); Kisselbach v. Cty. of Camden, 638 A.2d 1383 (N.J.
Super. Ct. App. Div. 1994) (noting a public entity may not
1
Additionally, recent precedent has established Rowan as a
“public entity” within the meaning of the NJTCA. The
Maliandi court considered NJTCA eligibility under the
funding factor of Fitchik, and even Rutgers University, a
university considered a “person” subject to suit under §
1983, was found to be covered by the NJTCA. Eze v. Rowan
Univ., No. A-2659-07T2, 2009 WL 232181, at *1 (N.J. Super.
Ct. App. Div. Feb. 3, 2009); see also Maliandi, 845 F.3d at
87; Sykes v. Rutgers, The St. Univ. of N.J., 705 A.2d 1241,
1242 (App. Div. 1998) (stating that Rutgers is a public
entity covered by the NJTCA); N.J. STAT. ANN. § 59:1-3.
16
be held liable for intentional infliction of emotional
distress).
This Court finds amending the complaint to
assert an IIED claim against Rowan would be futile.
Accordingly, it will deny Plaintiff’s request for leave to
amend on those grounds.
However, the same bar that renders a public entity
immune does not apply to a public employee.
Under N.J.
STAT. ANN. § 59:3-14, the NJTCA states that the willful
misconduct of an employee is not subject to an immunity
defense.
Therefore, the bar against an IIED claim against
Rowan does not act as a similar bar against an IIED claim
against Provost Newell.
Plausible claims must nonetheless be timely.
Even
though a public employee may be liable for an intentional
tort, the New Jersey Supreme Court has held “a plaintiff
must give a public entity written notice, pursuant to the
Act, prior to filing a common law intentional tort action
against a public employee.”
Velez v. City of Jersey City,
850 A.2d 1238, 1239 (N.J. 2004).
In this case, that means Plaintiff should have
presented a notice of her claim no later than the ninety
days after the accrual of the cause of action.
ANN. § 59:8-8.
N.J. STAT.
If the claim was not noticed accordingly,
the Plaintiff could be “forever barred from recovering
17
against a public entity or public employee,” unless she
fits within a narrow exception.
Id.
This Court, in its
discretion, may allow Plaintiff to file notice within one
year after the accrual of the cause of action.
ANN. § 59:8-9.
N.J. STAT.
This may only be done if (1) Defendants have
not been substantially prejudiced and (2) Plaintiff has
submitted affidavits that prove extraordinary circumstances
relating to her failure to file. 2
N.J. STAT. ANN. § 59:8-8.
If the one-year limit has passed, this Court is without
discretion to allow late notice.
Davis v. Twp. of
Paulsboro, 371 F. Supp. 2d 611, 618 (D.N.J. 2005).
Here, Plaintiff was required to file a notice of claim
for any IIED claim against Provost Newell within ninety
days of accrual of that cause of action.
According to the
pleadings and briefings, it appears Plaintiff has failed to
fulfill the notice requirements.
Plaintiff has not filed
within the ninety-day period, nor has Plaintiff shown
extraordinary circumstances for leave to file a late notice
of claim.
Absent such a showing, this Court cannot allow
Plaintiff to amend her complaint at this time.
2
This Court has the discretion to permit late filings of
tort claims within one year after accrual. See Webster v.
Rutgers- N. J. Med. Sch., No. 15-08689, 2017 WL 3399996, at
*3 (D.N.J. Aug. 4, 2017).
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Plaintiff has an additional hurdle to overcome.
In
order to plead an IIED claim against Defendant Newell, a
“verbal threshold” must be met under the TCA, which
provides:
No damages shall be awarded against a public entity
or public employee for pain and suffering resulting
from any injury; provided, however, that this
limitation on the recovery of damages for pain and
suffering shall not apply in cases of permanent
loss of a bodily function, permanent disfigurement
or dismemberment where the medical treatment
expenses are in excess of $3,600.00.
R.K. v. Y.A.L.E. Sch. Inc., No. 07-5918, 2009 WL 1066125,
at *3 (D.N.J. Apr. 20, 2009) (citing N.J. STAT. ANN. § 59:9–
2(d)).
A permanent psychological injury may “constitute a
‘permanent loss of a bodily function’ within the meaning
of N.J. STAT. ANN. § 59:9–2(d).”
Collins v. Union Cty.
Jail, 420 A.2d 625, 632 (N.J. 1997).
However, humiliation,
anguish, mental pain, depression, and emotional distress,
are only considered “pain and suffering” and do not meet
the verbal threshold.
See Gretzula v. Camden Cty. Tech.
Sch. Bd. Of Educ., 965 F. Supp. 2d 478, 490 (D.N.J. 2013)
(stating a school board employee’s IIED claim of mental
anguish and emotional distress was barred); PBA Local No.
38 v. Woodbridge Police Dept., 832 F. Supp. 808, 821
(D.N.J. 1993) (finding injuries consisting of humiliation,
19
mental pain and anguish “fall within the purview of pain
and suffering”); Mercado v. State, 515 A.2d 804, 808 (N.J.
Super. Ct. Law. Div. 1985) (“[E]motional stress, distress,
anxiety, and embarrassment . . . provide no basis for
recovery . . . under the Tort Claims Act.”).
Again, the
pleadings and briefings do not currently show Plaintiff has
met this verbal threshold.
For this independent reason,
this Court cannot currently allow Plaintiff to amend her
complaint.
Accordingly, Plaintiff’s Motion for Leave to Amend
will be denied with prejudice as it relates to any IIED
claims against Rowan, and without prejudice as it relates
to an IIED claim against Provost Newell.
With the above
guidance in mind, Plaintiff may file a motion seeking leave
to amend the complaint to add her IIED claim.
Plaintiff is
instructed to specifically address (1) whether
extraordinary circumstances exist to allow filing of a late
notice of claim and (2) whether her injuries exceed the
verbal threshold.
CONCLUSION
For the foregoing reasons, Defendants’ Motion to
Dismiss Count II of the Complaint will be granted, without
prejudice, and Plaintiff’s motion for Leave to Amend will
be granted, as to Count II only.
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Defendants’ Motion to
Dismiss will be denied as to Count IV.
As to Count V,
Defendants’ Motion to Dismiss will be denied as moot as the
NIED claim will be dismissed, with prejudice, per
Plaintiff’s concession.
Plaintiff’s request for leave to
assert an IIED claim against Rowan will be denied with
prejudice.
Her motion to assert an IIED claim against
Provost Newell and serve late notice under the TCA will be
denied, without prejudice.
An appropriate Order will be entered.
Date: December 18, 2018
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN,U.S.D.J.
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