PISCOPO v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY et al

Filing 21

OPINION. Signed by Judge Esther Salas on 7/3/14. (gmd, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
GERARD PISCOPO,

Civil Action No. 13-552 (ES)

Plaintiff,

OPINION

v.
PUBLIC SERVICE ELECTRIC AND
GAS COMPANY (“PSE&G”) and BETH
ACQUAIRE, Individually
Defendants.
SALAS, DISTRICT JUDGE
This matter comes before the Court on Defendants’ motion to dismiss Plaintiff’s Amended
Complaint pursuant to Fed. R. Civ. P. 12(b)(6). (D.E. No. 16). Defendants are Public Service
Electric and Gas Company (“PSE&G”) and Beth Acquaire (“Acquaire”) (collectively
“Defendants”). The Court has considered the parties’ submissions in support of and in opposition
to the instant motion, and decides the matter without oral argument pursuant to Fed. R. Civ. P.
78(b). For the reasons set forth below, Defendants’ motion to dismiss is granted. 1
I.

Factual Background and Procedural History
Gerard Piscopo (“Plaintiff”) is currently an employee at PSE&G working as a Service

Specialist and has been an employee with the company since 1986. (D.E. No. 15, Amended
Complaint, (“Am. Compl.”) ¶¶ 1, 3). After conducting an investigation in response to a customer
complaint in Fall 2008, PSE&G discharged Plaintiff on June 16, 2009 for:
a. Acceptance of cash from the customer and for work that is
normally performed by the Company without charge;
1

As outlined in this Court’s previous Opinion, (D.E. No. 10), the Court has jurisdiction over the instant matter, and
need not reassert its jurisdiction here.

1

b. Unacceptable conduct exhibited towards occupants of the
residence;
c. Misuse of Company assets; and
d. Falsification of Company time records.
(Id. ¶¶ 6-7).
Plaintiff’s bargaining unit representative, the International Brotherhood of Electrical
Workers, Local Union 94 (“Local 94”) appealed this discharge on behalf of Plaintiff. (Id. ¶ 8).
PSE&G and Local 94 appeared for arbitration hearings (the “Arbitration”), in May and June 2010.
(Am. Compl. ¶ 8). The issue before the arbitrator was to determine if PSE&G had “proper cause
to terminate [Plaintiff]” and to determine any remedy that should result if the arbitrator found
PSE&G had improper cause to terminate. (Id.).
On July 15, 2010, the arbitrator rendered her decision in favor of Plaintiff, finding that
PSE&G “did not have proper cause to terminate [Plaintiff].” (Am. Compl. ¶ 10) (emphasis
omitted). The arbitrator ordered PSE&G to reinstate Plaintiff to his immediate position and give
Plaintiff “back pay from the date of the discharge to the date of the reinstatement less any outside
earnings and unemployment benefits.” (Am. Compl. ¶ 11). The Arbitration stated that “[b]oth
parties were afforded full opportunity to present all the necessary proofs and evidence” and that
“[a]ll witnesses were sequestered, sworn and subjected to direct and cross-examination and the
parties closed orally at the hearing.” (D.E. No. 16, Brief in Support of Defendant PSE&G’s Motion
to Dismiss the Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) for Failure to State a
Claim Upon Which Relief Can Be Granted (“Def. Br.”), Ex. D (“Arb. Op.”), at 1).
Acquaire conducted PSE&G’s investigation and made “false assumptions not based in
fact” throughout the investigation. (Am. Compl. ¶ 15). Plaintiff alleges that during the year
Plaintiff was unemployed, Plaintiff was forced to cash into his 401K plan “in order to provide for
basic life necessities,” incurring “substantial fees” as a result. (Id. ¶ 16). During Plaintiff’s

2

discharge, PSE&G denied Plaintiff unemployment benefits, which Plaintiff also allegedly
challenged. (Id. ¶ 9). Plaintiff further alleges that though he was awarded some back pay through
the Arbitration, “the back pay did not include pay for overtime worked, which made up a
significant portion of Plaintiff’s income. (Id. ¶ 12). Plaintiff was “not awarded the pension and
retirement contributions due to him,” since PSE&G “failed to remit the required contributions to
the fund for the benefit of the Plaintiff.” (Id. ¶ 13). Plaintiff also alleges that Plaintiff attempted
to access the pension plan’s administrative procedures “on several occasions in late 2010 and
subsequent years,” but he was denied access and “was only told ‘don’t worry about it.’” (Id. ¶ 14).
Procedurally, Plaintiff filed the instant action in the Superior Court of New Jersey, Law
Division, Hudson County on December 26, 2012. (See D.E. No. 1). It was removed to this Court
on January 29, 2013. (Id.). Defendants moved to dismiss the pleadings pursuant to Fed. R. Civ.
P. 12(b)(6) on February 2, 2013. (See D.E. No. 4). The Court granted Defendants’ motion by
Opinion and Order dated September 27, 2013. (See D.E. Nos. 10 & 11). The Court dismissed,
with prejudice, Plaintiff’s claims under Count One (Breach of Contract), Count Two ( Breach of
Implied Covenant of Good Faith and Fair Dealing), and Count Three, (Wrongful Discharge). (Id.).
The Court dismissed, without prejudice, the remaining three counts, which alleged violations of
the FLSA, NJWPL, ERISA, and intrusion upon seclusion, for failure to plead facts sufficient to
state a claim. (Id.).

3

II.

Standard of Review
Fed. R. Civ. P. 8(a)(2) requires a complaint to set forth “a short and plain statement of the

claim showing that a pleader is entitled to relief.” The pleading standard announced by Rule 8
does not require detailed factual allegations; however, it does demand “more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citations omitted). In addition, the plaintiff’s short and plain statement of the claim must “give
the defendants fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 545 (2007) (internal citation omitted).
For a complaint to survive dismissal, it “must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (citing Twombly,
550 U.S. at 570). “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. (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id.
In evaluating the sufficiency of a complaint, a court must accept all well-pleaded factual
allegations contained in the complaint as true and draw all reasonable inferences in favor of the
non-moving party. See Phillips v. Cnty. Of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). But, “the
tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable
to legal conclusions,” and “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 555).

4

Furthermore, a district court deciding a motion to dismiss generally does not consider
materials beyond the pleadings. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426
(3d Cir. 1997). “[When] deciding a Rule 12(b)(6) motion, a court must consider only the
complaint, exhibits attached [thereto], matters of the public record, as well as undisputedly
authentic documents if the complainant’s claims are based upon these documents.” Mayer v.
Belichick, 605 F.3d 223, 230 (3d Cir. 2011). “[A]n exception to the general rule is that a document
integral to or explicitly relied upon in the complaint may be considered without converting the
motion [to dismiss] into one for summary judgment.” In re Burlington Coat Factory Sec. Litig.,
114 F.3d at 1426 (emphasis in original) (citation omitted & internal quotation marks omitted).
“Otherwise, a plaintiff with a legally deficient claim could survive a motion to dismiss simply by
failing to attach a dispositive document on which it relied.” Pension Benefit Guar. Corp. v. White
Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
“[I]f a complaint is subject to a Rule 12(b)(6) dismissal, a district court must permit a
curative amendment unless such an amendment would be inequitable or futile.” Phillips, 515 F.3d
at 245 (citation omitted).

5

III.

Analysis 2
A.

Count Two: Violation of the FLSA 3

In the Amended Complaint, Plaintiff alleges that PSE&G intentionally violated the FLSA
“by withholding pay and benefits accrued and earned by Plaintiff during his employment.” (Am.
Compl. ¶ 28). Plaintiff further alleges that though the Arbitration awarded back pay, “the back
pay did not include pay for overtime worked, which made up a significant portion of Plaintiff’s
income,” (Id. ¶ 30), and therefore, Defendant “wrongfully withheld portions of Plaintiff’s wages.”
(D.E. No. 18, Plaintiff Gerard Piscopo’s Brief in Opposition to Defendant PSE&G’ s Motion to
Dismiss Pursuant to FRCP 12(b)(6) (“Pl. Opp. Br.”) at 7). Plaintiff also alleges that Acquaire
intentionally violated the FLSA because she “was responsible in whole or in part for the Plaintiff’s
damages resulting under FLSA violations.” (Am. Compl. ¶ 29). 4
In response, Defendants argue that though the Plaintiff asserts that PSE&G withheld “pay
and benefits accrued and earned by Plaintiff during his employment,” Plaintiff is really attempting
to recover overtime pay in addition to the back pay awarded to Plaintiff in the Arbitration, to which
he is not entitled under the FLSA. (Def. Br. at 12-13). Additionally, Defendants argue that
Plaintiff’s Amended Complaint did not cure the lack of factual allegations regarding PSE&G’s

2
In analyzing Plaintiff’s Amended Complaint, the Court can rely on exhibits attached to Plaintiff’s Amended
Complaint. See Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2011). The Court notes that Plaintiff’s Amended
Complaint refers to his Collective Bargaining Agreement and the Arbitration Opinion, but does not attach these
documents to the Amended Complaint. The Court properly considers the Defendants’ exhibits attaching the Collective
Bargaining Agreement and the Arbitration Opinion because these documents are “integral” to Plaintiff’s allegations
and “undisputedly authentic.” See Stallings ex rel. Estate of Stallings v. IBM Corp., No. 08-3121, 2009 WL 2905471,
at *4 (D.N.J. Sept. 9, 2009); Pension Benefit Guar. Corp., 998 F.2d at 1196 (holding that “a court may consider an
undisputedly authentic document that a defendants attach as an exhibit to a motion to dismiss if the plaintiff’s claims
are based on that document.”).
3

The Court dismissed, with prejudice, Plaintiff's Wrongful Discharge claim in its September 27, 2013 Opinion after
Plaintiff voluntarily withdrew it. (D.E. No. 10, at 11 n.8). Plaintiff raised the claim again in the Amended Complaint,
but omitted it in his opposition brief. Therefore, the Court need not address the claim.
4

Plaintiff further alleges that Plaintiff was not “awarded the pension and retirement contributions due to him.” (Am.
Compl. ¶ 31). However, the FLSA does not govern pension and retirement contributions. See 29 U.S.C. 201.

6

“failure to convey pay or benefits earned by Plaintiff during his employment,” for which the Court
previously dismissed his initial complaint. (Id. at 14).
The Court made clear to Plaintiff in its September 27, 2013 Opinion that, “[b]ecause of the
lack of factual allegations [in his initial complaint] regarding any Defendants’ failure to convey
pay or benefits earned by Plaintiff during his employment, [the FLSA claim] is too conclusory to
survive a motion to dismiss. (D.E. No. 10, at 12) (emphasis added). Plaintiff did not cure this
deficiency, and just as in his initial complaint, the Amended Complaint’s only factual allegations
concerning withheld pay and benefits refer to overtime pay when Plaintiff was temporarily
discharged—not while employed by Defendants.
1. Plaintiff was not an Employee Under the FLSA During the Period of Discharge.
To state a claim for overtime pay pursuant to the FLSA, the Plaintiff must show that: 1)
defendant was engaged in commerce as defined by statute; 2) plaintiff was an “employee” as
defined by the statute; and 3) plaintiff “worked more than forty hours in a week, but was not paid
overtime for hours worked in excess of forty hours.” Michaelgreaves v. Gap, Inc., No. 11-6283,
2013 WL 257127, at *4 (D.N.J. Jan. 23, 2013). Plaintiff cannot demonstrate that he was an
“employee,” nor that he worked more than forty hours in a week during the period between his
discharge and reinstatement.
Moreover, the FLSA only applies to an “employee,” who is defined as “any individual
employed by an employer.” 29 U.S.C.A. § 203(e)(1) (West 2014). The act further defines
“employ” as “to suffer or permit to work.” § 203(g). As such, Plaintiff was not an employee
during the period Defendants discharged him, as Defendants did not suffer or permit Plaintiff to
work.

7

Notwithstanding such clear definitions of “employee,” Plaintiff argues that for purposes of
the FLSA, he was an employee during his discharge, stating that “BUT FOR Defendant PSE&G’s
unlawful termination of the Plaintiff he would have been entitled to the same rate of pay had he
been allowed to work.” (Pl. Opp. Br. at 7). Plaintiff then quotes 5 CFR 550.805(a)(1), which
relates to the Back Pay Act, 5 U.S.C § 5596, stating that “when the appropriate authority corrects
or directs the correction of an unwarranted or unjustified personnel action . . . the employee shall
be deemed to have performed service during the period of the corrective action.” (Pl. Opp. Br. at
7).
However, a close reading of the actual text of the regulation exposes Plaintiff’s careful
omission: “the employee shall be deemed to have performed service for the agency during the
period of the corrective action.” 5 CFR 550.805(a)(1) (emphasis added). The omission is critical,
revealing that the Back Pay Act and the corresponding regulation apply only to federal government
employees. See 5 U.S.C.A. § 5596(a)(1)-(7) (West 2014) (defining agency as “an Executive
agency; the Administrative Office of the United States Courts, . . . the Library of Congress,” among
other federal government entities); 5 CFR 550.803 (defining employee as “an employee of an
agency” or former agency employee making a back pay claim). As an employee of PSE&G, a
public company, Plaintiff is not a federal agency employee, and therefore, neither the Back Pay
Act, nor the related cited regulation, applies.
2. Plaintiff did not Work More Than Forty Hours in a Workweek During the Period
of Discharge.
In the Amended Complaint, Plaintiff alleges that though the Arbitration awarded back pay,
“the back pay did not include pay for overtime worked, which made up a significant portion of
Plaintiff’s income.” (Am. Compl. ¶ 30). Plaintiff argues that Defendants provided the Plaintiff

8

his back pay “at his base salary and did not include pay for overtime,” and therefore, Defendants
“wrongfully withheld portions of Plaintiff’s wages.” (Pl. Opp. Br. at 7).
However, the FLSA only requires employers to pay overtime compensation to employees
for hours actually worked in excess of forty hours per week. See 29 U.S.C.A. § 207(a)(1) (West
2014) (“No employer shall employ any of his employees who in any workweek is engaged in
commerce or in the production of goods for commerce . . . for a workweek for longer than forty
hours unless such employee receives compensation for his employment . . . at a rate not less than
one and one-half times the regular rate at which he is employed) (emphasis added); Aboud v. City
of Wildwood, No. 12-7195, 2013 WL 2156248, at *5 (D.N.J. May 17, 2013) (“If an employee
works less than forty hours per week the overtime protections of the FLSA are inapplicable.”).
Plaintiff did not “engage” in any work for Defendant during the period between his
discharge and his reinstatement. Therefore, since Plaintiff did not work more than forty hours in
a week during this period, “the overtime protections of the FLSA are inapplicable.” Id. As such,
the Court finds that Plaintiff has not stated a claim under the FLSA, and Count Two is accordingly
dismissed with prejudice.
B.

Count Three: Violation of the New Jersey Wage Payment Law (“NJWPL”), and
ERISA 5
Plaintiff alleges in Count Three that PSE&G violated the NJWPL and ERISA “for failing

to remit the required pay, overtime, pension contributions, accurate record keeping, retirement
contributions, and monetary benefits.” (Am. Compl. ¶ 35).

5

Plaintiff alleges Count Three as to PSE&G only.

9

1.

NJWPL

As with his FLSA claim, Plaintiff alleges that though the Arbitration awarded him back
pay, it “did not include pay for overtime which made up a significant portion of Plaintiff’s income."
(Am. Compl. ¶ 36). 6 Plaintiff further alleges that he was “not awarded the pension and retirement
contributions due to him.” (Id. ¶ 37). PSE&G argues that Plaintiff’s NJWPL claim fails for the
same reasons the FLSA claim fails, as “plaintiff performed no work for PSE&G during the period
in question.” (Def. Br. at 15).
The NJWPL governs the manner, mode, and time of wage payment, as well as when an
employer may withhold part of an employee’s paycheck. See N.J. Stat. Ann. § 34:11-4.1 et seq.
(West 2014). The NJWPL defines wages as “direct monetary compensation for labor or services
rendered by an employee, where the amount is determined on a time, task, piece, or commission
basis excluding any form of supplementary incentives and bonuses which are calculated
independently of regular wages and paid in addition thereto.” N.J. Stat. Ann. § 34:11-4.1. The
NJWPL does not deal with pension and retirement contributions from an employer to an
employee’s retirement plan. Rather, NJWPL only states when an employer may lawfully withhold
or divert a portion of an employee’s wages, such as “for contributions authorized either in writing
by employees, or under a collective bargaining agreement, to employee . . . pension, retirement,
and profit sharing plans.” N.J. Stat. Ann. § 34:11-4.4(b)(1).

6

The Court does not address this part of Plaintiff’s NJWPL claim. Plaintiff seems to be seeking overtime payment,
which is not addressed by the NJWPL, N.J. Stat. Ann. § 34:11-4.1 (West 2014). The claim seems to fall under the
New Jersey State Wage and Hour Law ("NJWHL"), N.J. Stat. Ann. § 34:11-56a1. However, even under the NJWHL,
Plaintiff’s claim for overtime pay fails, as he did not engage in any working time in excess of forty hours in a week
during the period between his discharge and reinstatement. See N.J. Stat. Ann. § 34:11-56a4 (“Employer shall pay . .
. [overtime pay] for each hour of working time in excess of 40 hours in any week.”) (emphasis added); N.J.A.C. 12:566.1 (“[F]or each hour of working time in excess of 40 hours in any week . . . every employer shall pay [overtime pay]
to each of his or her employees.”) (emphasis added).

10

Plaintiff argues that “[PSE&G’s wrongful termination of the Plaintiff, coupled with the
wrongful denial of unemployment benefits, interfered with the terms and conditions of Plaintiff's
pension and retirement benefit account.” (Pl. Opp. Br. at 8). But the NJWPL does not govern
these issues. See N.J. Stat. Ann. § 34:11-4.1 et seq. Therefore, Plaintiff has failed to plead
sufficient facts to state a claim, and his NJWPL claim under Count 2 is dismissed with prejudice. 7
2.

ERISA

ERISA governs the rights and obligations of participants and beneficiaries of employee
pension benefit plans. See 29 U.S.C.A. § 1321(a) (West 2014). It is well recognized that unless a
plaintiff seeks to assert a substantive right established by the ERISA statute, the plaintiff must first
exhaust his administrative remedies under the terms of the benefit plan.

Lees v. Munich

Reinsurance America, Inc., No. 11-3764, 2012 WL 1183694, at *3 (D.N.J. Apr. 9, 2012) (citations
omitted). Accordingly, “a federal court will not entertain an ERISA claim unless the plaintiff has
exhausted the remedies available under the plan.” Weldon v. Kraft, 896 F.2d 793, 800 (3d Cir.
1990) (citation omitted). To survive a motion to dismiss, a plaintiff “must have exhausted
administrative remedies or must establish that exhaustion would be futile.” Lees, 2012 WL
1183694, at *3.
Plaintiff alleges that he “was not awarded the pension and retirement contributions due to
him” as a result of the Arbitration. (Am. Compl. ¶¶ 13, 37). Plaintiff further alleges that PSE&G
“failed to provide a full and fair review of the plan and otherwise failed to make disclosures” as
required by Section 503 of ERISA. (Id. ¶ 38). 8 In response, PSE&G argues that “in essence,
7

PSE&G argued that ERISA preempts Plaintiff’s pension and retirement contributions claim under NJWPL. (Def.
Br. at 15 n.6). Because the Court finds that the NJWPL does not govern Plaintiff’s claim, the Court need not
address this alternative argument.

8

Plaintiff also alleges that “on other days, and including September 8, 2011, Plaintiff requested information on the
plan,” and that “section 502(c)(1)(B) of ERISA authorizes this Court to award a participant up to $110 per day for
each that certain requested documents have not been delivered.” (Am. Compl. ¶ 38). While Plaintiff is correct in his

11

Plaintiff seeks a judicial remedy for a breach of a collective bargaining agreement,” which has a
broad arbitration procedure. (Def. Br. at 17-18). 9 PSE&G further argues that Plaintiff again failed
to allege sufficient facts to state a claim. (Id. at 19-20).
Plaintiff’s claim is based under section 502(a)(1)(B) of ERISA, which allows a participant
or beneficiary to bring a civil action “to recover benefits due to him under the terms of his plan, to
enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the
terms of the plan.” 29 U.S.C.A. § 1132(a)(1)(B). In essence, Plaintiff’s allegations indicate that
he seeks specific benefits for an alleged breach of the terms of his plan.
However, seeking “specific benefits [under the benefit plan] rather than an interpretation
of ERISA itself” requires exhaustion of administrative remedies. Lees, 2012 WL 1183694, at *3;
Zipf v. Am. Tel. and Tel. Co., 799 F.2d 889, 892 (3d Cir. 1986) (“When a plan participant claims
that he or she has unjustly been denied benefits, it is appropriate to require participants first to
address their complaints to the fiduciaries to whom Congress . . . assigned the primary
responsibility for evaluating claims for benefits.”); Majka v. Prudential Ins. Co. of Am., 171 F.
Supp. 2d 410, 414 (D.N.J. 2001) (“[Section 503] has been universally interpreted as requiring an
individual claiming improper denial of benefits first to exhaust the internal administrative
procedures made available by the ERISA plan at issue before seeking judicial relief.”).

reiteration of the law, Plaintiff does not allege anywhere that Defendant failed or refused to comply with the requests
by not “mailing the material . . . within 30 days after such request.” 29 U.S.C.A. § 1132(c)(1)(B).
9

The Court, at this time, cannot address PSE&G’s argument as it is unclear what the terms of the benefit plan are or
which administrative procedures Plaintiff refers to in his Amended Complaint. See infra n.9 and accompanying text.
The Collective Bargaining Agreement notes under Section B of Article VIII that the “Pension Plan of [PSE&G] . . .
shall continue for the duration of this Agreement,” but also states that “[d]isputes or differences arising between the
Company and . . . [employees] as to the interpretation, application or operation of the provisions of this Section B of
Article VIII . . . shall not be subject to arbitration” under the arbitration clause of the agreement. (Def’s Br., Ex. C
(“Collective Bargaining Agreement”) at 44).

12

Here, Plaintiff does not allege that he exhausted any available administrative remedies.
Plaintiff does allege that “on multiple occasions, [he] attempted to access the pension plan’s
administrative procedures and was denied meaningful access each and every time.” (Am. Compl.
¶ 38). He alleges these attempts occurred in “late 2010 and subsequent years,” and that he was
“only told ‘don’t worry about it.’” (Id. ¶ 14). Courts have noted that exhaustion may be excused
(1) if the plaintiff is threatened with irreparable harm, (2) if exhaustion of administrative remedies
would be futile, and (3) if the claimant has been denied meaningful access to administrative
procedures. Majka, 171 F. Supp. 2d at 414 (internal citation omitted).
Though Plaintiff’s position is not entirely clear, Plaintiff’s allegation would seem to fit
under the third exception—denial of meaningful access. This exception applies when “one party
has the sole power to invoke the higher levels of the review procedure and has not allowed another
party access [and] . . . the other party [has] made attempts to have the higher levels of review
initiated.” Id. at 415 (citation omitted). Additionally, the party seeking the exception must
“present facts and evidence showing he or she was prevented from exercising administrative
remedies.” Murren v. Am. Nat. Can Co., No. 99-3136, 2000 WL 116067, at *4 (E.D. Pa. Jan. 27,
2000); see also In re Zahl v. Local 641 Teamsters Welfare Fund, No. 09-1100, 2010 WL 1931235,
at *3 (D.N.J. May 13, 2010) (“A plaintiff must demonstrate the existence of a recognized exception
to the exhaustion requirement by a ‘clear and positive’ showing.”) (quoting Harrow v. Prudential
Ins. Co. of Am., 279 F.3d 244, 249 (3d Cir. 2002)).
Here, Plaintiff fails to make a “clear and positive” showing through his threadbare
allegations, as he does not present facts or evidence showing the provisions of the benefit plan
upon which he relies on, nor which administrative procedures he allegedly attempted to access and
to which he was denied meaningful access. In fact, Plaintiff does not allege any facts regarding

13

the details of his pension benefit plan whatsoever. 10 Plaintiff’s conclusory statements are nothing
more than a formulaic recitation of the elements of his ERISA claim. See Phillips, 515 F.3d at
231 (“[A] plaintiff’s [Rule] 8 obligation to provide the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.”).
Interestingly, in opposition, Plaintiff argues that PSE&G “has failed to offer proof of the
existence of any applicable administrative remedies under [PSE&G’s] benefit plan,” and that
PSE&G “failed to offer proof that Plaintiff had notice of the existence of such procedures.” (Pl.
Opp. Br. at 10). Plaintiff also argues that PSE&G did not notify Plaintiff of “the available options
or procedures for handling his accounts post-termination” and that PSE&G “has not offered any
proof that Plaintiff was otherwise aware of the proper administrative remedies or procedures to
follow.” (Id.).
Notwithstanding the fact that this Court previously discounted these same arguments in its
September 27, 2013 Opinion, 11 the Court still remains unaware how Plaintiff attempted to gain
access to the pension plan’s administrative procedures, and yet, simultaneously had no notice or
was aware of the existence of those same procedures. The Court, therefore, dismisses Plaintiff’s
ERISA claim, without prejudice, so that Plaintiff may more clearly state the facts of his claim as
they relate to the pension plan.

10

The Collective Bargaining Agreement does note that the “Pension Plan of [PSE&G] . . . shall continue for the
duration of this Agreement.” (Collective Bargaining Agreement at 44). Plaintiff, however, does not mention any
detail regarding this plan in his Amended Complaint and does not attach a copy of this plan to any document submitted
to the Court.
11

Plaintiff made these exact arguments in his opposition brief to Defendants’ motion to dismiss the initial complaint
and the Court instructed Plaintiff that he could not amend his pleadings in a brief opposing a motion to dismiss and
that “it is Plaintiff who must allege exhaustion of administration remedies.” (D.E. No. 10, at 15).

14

C.

Count Four: Unreasonable Intrusion upon Seclusion
The Court previously dismissed, without prejudice, Plaintiff’s intrusion upon seclusion

claim because its “conclusory statement of surveillance is nothing more than a formulaic recitation
of the elements of this tort.” (D.E. No. 10, at 17). The Court stated that the complaint lacked
factual allegations sufficient to show liable conduct. Plaintiff failed to plead the type of
surveillance, which “is critical in determining the validity of an intrusion upon seclusion clam.”
(Id.). In the Amended Complaint, Plaintiff alleges that Defendants “conduct[ed] surveillance on
Plaintiff without consent or knowledge.” (Am. Compl. ¶ 41). Plaintiff further alleges that
“Defendants knowingly utilized third parties, including but not limited to Victoria Young,” and
that “Defendants utilized surveillance of Plaintiff’s tele and/or wireless communications” to
conduct said surveillance. (Id.).
In response, Defendants argue that the claim is time-barred under the two-year statute of
limitations, since the alleged investigation giving rise to the claim occurred prior to Plaintiff's
discharge on July 19, 2009, and Plaintiff brought the instant suit on December 31, 2012, more than
three years later. (Def. Br. at 20-21). Defendants further argue that Plaintiff became aware of the
investigation “at the May 2010 and June 2010 arbitration hearings or, at the very latest,” on July
15, 2010 when the arbitrator rendered her opinion and award. (Id. at 21).
Plaintiff’s intrusion upon seclusion claim is governed by New Jersey’s statute of limitations
for personal injury actions, as set forth in N.J.S.A. § 2A:14–2. See Rambauskas v. Cantor, 138
N.J. 173, 182 (1994) (holding that two-year limitations period applies to cause of action for
intrusion on seclusion based on nature of tortious conduct such as stalking, surveillance,
harassment, and threats of violence). An action for an injury to the person caused by a wrongful
act must be commenced within two years of accrual of the cause of action. N.J.S.A. § 2A:14–2(a).

15

Accrual of a cause of action generally occurs “from the date of the negligent act or omission.”
Fahey v. Hollywood Bicycle Ctr., Inc., 386 F. App'x 289, 290 (3d Cir. 2010) (internal quotation
omitted).
The basis for Plaintiff’s tort claim seems to be Defendants’ investigation of Young’s home
and Plaintiff’s phone records in April of 2009. (Arb. Op. at 7-8, 10-11); (see also Am. Compl. ¶
42) (“Plaintiff has suffered severe emotional distress as a result of the investigation and his
subsequent wrongful discharge.”) (emphasis added). The arbitration hearings of May 2010 and
June 2010, as well as Arbitrator Gandel’s opinion on July 15, 2010, discussed the alleged
investigation giving rise to the claim. (See Arb. Op. at 7-8, 10-11). Plaintiff filed the instant action
on December 31, 2012, more than three years after the investigation occurred and Plaintiff was
discharged, and two years and five months after the arbitrator rendered her opinion. Thus,
Plaintiff’s intrusion upon seclusion claim falls outside the two-year statute of limitations period.
However, Plaintiff attempts to supplement the Amended Complaint by claiming that
“Plaintiff became aware of the actionable tort when the information supporting the arbitration
cause of action was made available to him in March 2011,” thereby delaying the accrual of the
cause of action under the discovery doctrine. (Pl. Opp. Br. at 13-14). However, Plaintiff does not
mention the above allegation anywhere in his Amended Complaint. The Third Circuit has ruled
that it is “axiomatic that the complaint may not be amended by the briefs in opposition to a motion
to dismiss.” Penn. ex. Rel. Zimmerman v. Pepsico, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (citation
omitted).
Additionally, even if this Court were to consider Plaintiff’s facts offered in his opposition
brief, Plaintiff’s allegation is still unclear. Plaintiff states that he did not become aware of the

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information “supporting the arbitration cause of action” until March 2011, but Arbitrator Gandel
issued her opinion and award on July 15, 2010, eight months earlier. (Arb. Op. at 1).
Therefore, Plaintiff’s tort claim is dismissed, without prejudice, allowing Plaintiff the
opportunity to plead the applicability of the tort and the accompanying timeline that will allow the
claim to survive, or alternatively, to be barred.
IV.

Conclusion

For the foregoing reasons, Defendants’ motion to dismiss Counts One, Two, and Three, as
it relates to the NJWPL claim, is granted with prejudice. Defendants’ motion to dismiss Count
Three, as it relates to the ERISA claim, and Count Four, is granted without prejudice. Plaintiff
shall have thirty days to file an amended complaint to cure the deficiencies noted above.

s/Esther Salas
Esther Salas, U.S.D.J.

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