GAINES v. UNITED PARCEL SERVICE, INC.
Filing
10
OPINION. Signed by Judge Kevin McNulty on 4/14/2014. (nr, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 2:13-3709 (KM) (MCA)
SHELLY A. GAINES,
Plaintiff,
OPINION
V.
UNITED PARCEL SERVICE, INC.,
Defendant.
MCNULTY, U.S.D.J.:
This matter comes before the Court upon the motion (Docket No. 5 (“Def.
Br.”)) of Defendant United Parcel Service, Inc., to dismiss Counts 2, 3, 4, and 5
of the Complaint of Plaintiff Shelly A. Gaines (Docket No. 1 (“Compi.”)). For the
reasons set forth below, Defendant’s motion will be granted.
I.
BACKGROUND
Solely for purposes of this motion to dismiss, I take the well-pleaded
allegations of the Complaint as true.
According to the Complaint, the Plaintiff, Shelly A. Gaines, an AfricanAmerican woman, was hired by UPS to work as a part-time recruiter on
January 19, 2004. Compl., Count 1 ¶ 2.’ Around 2006, UPS promoted her to a
full-time position as a resource specialist (an office job). Id. ¶ 3. Thereafter, in
2009, Plaintiff complained to UPS about “harassment, discrimination, and a
hostile work environment because of her race, African American.” Id. ¶ 4.
Gaines alleges that, before she complained of discrimination in 2009, her work
was “outstanding and all her performance evaluations were excellent.” Id. ¶ 5.
On June 14, 2012 and August 8, 2012, Gaines made further complaints of
discrimination to UPS. In particular, Gaines complained of disparate treatment
by her immediate supervisor, Nancy McCarthy, and Human Resources
Manager Michelle Hug, both alleged to be Caucasian. Id. ¶ 6.
Each Count of Plaintiffs Complaint begins anew with ¶ 1. Accordingly,
references to the Complaint cite both the Count and the Paragraph number.
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On August 21, 2012, Gaines gave UPS a doctor’s note advising her
employer that she was required to wear sneakers or other “soft” footwear at
work because of a foot deformity. Id. ¶ 7. On September 18, 2012, UPS
allegedly responded by directing Gaines to leave work “because Defendant
opined that Plaintiff was suffering under the American with Disabilities Act
because she could not perform an alleged, essential function of her job, i.e. she
could not wear hard toed shoes in the operations hub area.” Id. ¶ 8. The
Complaint alleges that, at this time, UPS regularly permitted similarly situated
UPS office employees who did not have foot deformities to wear high heels and
other “soft shoes” in the operations hub. Id. ¶ 11. Gaines’s job duties only
required her to spend thirty minutes a day in the hub operations area. UPS
also directed Gaines to apply for disability benefits and failed to provide
reasonable accommodations. Id. ¶ 10. Gaines alleges that UPS used the “hard
toed shoes” requirement to discriminate against Gaines because UPS regarded
Gaines as handicapped. According to Gaines, UPS refused to permit her to
work between September 2012 and April 2013, after which she returned to
work.
Plaintiff originally commenced this action on May 31, 2013, in the
Superior Court of New Jersey, Law Division, Hudson County (Docket No. HUD
L-2459-13). Docket No. 1 at 1. UPS removed the case to this Court on June 14,
2013. Gaines’s Complaint alleges five claims against UPS: (1) racial and
handicap discrimination in violation of the New Jersey Law Against
Discrimination (“NJLAD”); (2) Retaliation under the NJLAD; (3) Intentional
Infliction of Emotional Distress “(lIED”); (4): Negligence/Breach of Ordinary
Care; (5): Breach of Express and Implied Contracts.
On July 5, 2013, UPS moved to dismiss counts two, three, four and five
of the Complaint pursuant to Fed. R. Civ. P. 12(b)(6). Def. Br. UPS submits that
these claims are time barred; that they are preempted by Gaines’s NJLAD claim
(Count 1); that they are barred by the New Jersey Workers’ Compensation Act;
or that they otherwise fail to state a claim on which relief may be granted.
II. DISCUSSION
A. Legal Standard of Review
Rule 12(b)(6) provides for the dismissal of a complaint, in whole or in
part, if it fails to state a claim upon which relief can be granted. The defendant,
as the moving party, bears the burden of showing that no claim has been
stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a
Rule 12(b)(6) motion, a court must take the allegations of the complaint as true
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and draw reasonable inferences in the light most favorable to the plaintiff.
Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (traditional
“reasonable inferences” principle not undermined by Twombly, see infra).
Federal Rule of Civil Procedure 8(a) does not require that a complaint
contain detailed factual allegations. Nevertheless, “a plaintiff’s 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.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the
complaint’s factual allegations must be sufficient to raise a plaintiff’s right to
relief above a speculative level, so that a claim is “plausible on its face.” Id. at
570; see also Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008).
That facial-plausibility standard is met “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Twombly, 550 U.S. at 556). While “[tjhe plausibility standard
it asks for more than a sheer
is not akin to a ‘probability requirement’
possibility.” Iqbal, 556 U.S. at 678.
.
.
.
“Under Fed. R. Civ. P. 8(c), the statute of limitations constitutes an
affirmative defense to an action. Under the law of this and other circuits,
however, the limitations defense may be raised on a motion under Rule
12(b)(6), but only if ‘the time alleged in the statement of a claim shows that the
cause of action has not been brought within the statute of limitations.” Bethel
v. Jendoco Const. Corp., 570 F.2d 1168, 1174 (3d Cir. 1978) (quoting Hanna v.
U.S. Veterans’ Admin. Hosp., 514 F.2d 1092, 1094 (3d Cir. 1975)). If the time
bar is not apparent from the face of the complaint, “then it may not afford the
basis for a dismissal of the complaint under Rule 12(b)(6).” Id.
B. Plaintiff’s Claims
1. Count 2: NJLAD Retaliation Claim
Defendant argues that Plaintiff’s NJLAD Retaliation claim should be
dismissed because (1) the claim is time-barred (at least in part) and (2) because
there are no facts pleaded identifying a “protected activity” under the NJLAD. I
disagree and will deny the motion to dismiss this claim.
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a. Statute of Limitations
Plaintiff commenced this action in state court on May 31, 2013. The
statute of limitations for NJLAD claims is two years from the date of accrual.
See Thomas v. Care Plus of New Jersey, Inc., 484 F. App’x 692, 693 (3d Cir.
2012). Defendant therefore argues that any acts of retaliation occurring on or
before May 31, 2011, are time-barred and should be dismissed.
The Complaint alleges that Gaines first complained about racial
discrimination, harassment, and a hostile work environment in 2009. She says
she again complained about differential treatment due to her race in June and
August of 2012. She provided UPS with a doctor’s note requesting an
accommodation regarding her footwear on August 21, 2012.
The nub of Gaines’s Count 2 allegations, however, is retaliation for those
complaints or requests. The Complaint alleges that, between 2009 and
September 2012, UPS engaged in “numerous hostile acts” against her. Compl.,
Count 2, ¶ 3. That allegation, for sure, is somewhat vague about dates, but
Gaines does specifically allege that, “after being directed by Defendant to leave
work on or about August 8, 2012, HR Manager, Michelle Hug advised Plaintiff
that she could [] return to work only if she signed an agreement to stop
complaining to upper management about the differential treatment.” Id.
Further, Gaines alleges that, since her return to work in April 2013,
“Defendant continues to retaliate against her with the purpose of unreasonably
interfering with her work” by, for example, refusing to allow her to return to her
prior duties, demoting her from her salaried position, and denying a pay
increase. Id.
The plain reading of these allegations of retaliation is that they did not
occur until her return to work in April 2013, well within the two-year
limitations period. There may be alleged acts of retaliation that occurred
outside of the two year statute of limitations, but the facts pleaded in the
complaint do not permit me to conclude whether they might be actionable
under a continuing violation theory. At any rate, however, I am satisfied that
Count 2 contains allegations that are not time-barred, and I will not subdivide
it any further; I will deny the motion to dismiss Count 2.
b. Failure to plead a protected activity
“The NJLAD prohibits unlawful discrimination against an individual
with respect to terms and conditions of employment because of various traits
and characteristics, including, but not limited to, race, religion, age, sex and
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disability.” Davis v. Supervalu, Inc., CIV. 13-414 JBS/JS, 2013 WL 1704295, at
*4 (D.N.J. Apr. 19, 2013) (citing N.J.S.A. 10:5—12(a)). The NJLAD also makes it
unlawful “to take reprisals against any person because that person has
opposed any practices or acts forbidden under” the act or “because he has filed
a complaint, testified or assisted in a proceeding” under the Act. N.J.S.A. 10:5—
12(d). In addition to formal letters of complaint to an employer or the Equal
Employment Opportunity Commission (“EEOC”), “informal protests of
discrimination to management may qualify as protected activity” under the
NJLAD. DeJoy v. Comcast Cable Commc’ns Inc., 968 F. Supp. 963, 988 (D.N.J.
1997) (citing Barber v. CSX Distribution Servs., 68 F.3d 694, 702 (3d Cir.
1995)).
The United States Court of Appeals for the Third Circuit has held that, to
establish a prima facie case for retaliation under the NJLAD, a plaintiff must
plead that “(1) that she engaged in a protected activity; (2) that she suffered an
adverse employment action; and (3) that there was a causal connection
between the protected activity and the adverse employment action.” Davis v.
City of Newark, 417 F. App’x 201, 202 (3d Cir. 2011). Once a prima facie case
for retaliation is established, the burden of production shifts to the employer to
articulate a legitimate reason for the adverse employment action. Woods-Pirozzi
v. Nabisco Foods, 290 N.J. Super. 252, 274, 675 A.2d 684, 695 (App. Div.
1996) (citation omitted). “Plaintiff must then show that a retaliatory intent, not
the proffered reason, motivated defendants actions.” Id. Moreover, as recently
clarified by the Supreme Court of New Jersey, a plaintiff can only recover where
a complaint was made with a “good faith belief that the conduct complained of
violates the NJLAD.” Battaglia v. United Parcel Seru., Inc., 214 N.J. 518, 549, 70
A.3d 602, 620 (2013).
At this stage, then, Plaintiff must plead facts sufficient to render it
“plausible on its face,” Iqbal, 556 U.S. at 678, that she engaged in protected
activity, that she suffered an adverse employment action, and that there was a
causal connection between the two. What the Complaint does allege is that “in
or about 2009, Plaintiff complained to Defendant about harassment,
discrimination and hostile work environment because of her race, African
American.” Compi. ¶ 4. Further, she alleges that, “[ojn or about June 14, 2012,
and August 8, 2012, Plaintiff again complained to Defendant UPS about
differential treatment from her immediate supervisor, Nancy McCarthy and also
from HR Manager Michelle Hug (both Caucasians).” Compl. ¶ 6. Gaines alleges
that, since 2009, she was retaliated against “because of her complaints of
differential treatment based on her race, African American, perceived handicap
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and attendant retaliation.” Compi., Count 2, ¶ 2. She lists numerous acts of
discrimination, including refusal to allow her to return to her prior duties,
demotion from her salaried position to an hourly position with a different
schedule, and denial of a pay increase. Complaint, Count 2, ¶ 3.
Primarily in dispute here is whether these allegations set forth the first
element of a prima facie case of retaliation: engaging in protected activity.
According to Plaintiff, African Americans have been a protected class under the
NJLAD since its inception and complaining about racial discrimination is a
protected activity under the NJLAD. See, e.g., Barber v. CSX Distribution Servs.,
68 F.3d 694, 702 (3d Cir. 1995) (even informal complaint to management about
discrimination can constitute cognizable protected activity under the NJLAD). I
agree, and UPS does not really attack this as a legal premise. The issue boils
down to whether Gaines’s allegations are sufficiently specific and plausible.
In Buckley v. Power Windows & Siding, Inc., Judge Pisano dismissed a
claim that the defendants “engaged in behavior which was harassing and
discriminatory towards Plaintiff on the basis of her age,” that she “suffered
intentional harassment because of her age,” and that the alleged
“discriminatory conduct was based upon” her age. CIV.A. 09-3162 JAP, 2010
WL 3981978, at *4 (D.N.J. Oct. 7, 2010). Judge Pisano concluded that “these
naked assertion[s]’ devoid of ‘further factual enhancement’ and legal
conclusions are insufficient to state a claim.” Id. (quoting Iqbal, 129 S.Ct. at
1949).
According to UPS, Gaines’s Complaint similarly asserts nothing more
than conclusory allegations of protected activity under the NJLAD. Plaintiff
responds that she has alleged facts: that she is African American, and that she
complained of discrimination three times: in 2009, on June 14, 2012, and on
August 8, 2012. She lists the alleged acts of retaliation, including UPS’s alleged
refusal to allow her to return to work for some eight months.
To be sure, there is much factual development to be done in discovery.
There is enough here, however, to permit the case to go forward. As to Count 2,
the motion to dismiss is denied.
2. Count 3: Intentional Infliction of Emotional Distress
Count 3 alleges that the discriminatory conduct of UPS constituted
Intentional Infliction of Emotional Distress (“lIED”), a state common-law tort.
Gaines alleges that, in committing the alleged acts of discrimination and
retaliation, UPS intentionally and willfully subjected Gaines to emotional
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distress “which it knew or should have known would result in illness or other
bodily harm” to Gaines, including “deprivations of physical and mental health,”
Complaint, Count 3, ¶ 2. She alleges that, as a result of this emotional
distress, she has endured mental suffering, anxiety, depression, and severe
emotional distress. Id. ¶ 3. In support of dismissal, Defendant submits that the
lIED claim is: (1) preempted by Gaines’ statutory LAD claims and (2)
insufficiently pleaded. I agree, and will dismiss Count 3.
a. NJLAD Preemption
I first deal with preemption. “Where the factual predicates for the
common law claims and the NJLAD claims are the same and the remedies
sought are the same, the common law claims are barred.” Schnieder v.
Sumitomo Corp. of Am., (D.N.J. Dec. 22, 2009). “Because of the broad
availability of remedies under the NJLAD, both state and federal courts in New
Jersey have frequently held that the NJLAD bars common law claims based on
the same operative facts as underlie the NJLAD claim.” Everson v. JPMorgan
Chase Bank, CIV.A. 12-07288 FLW, 2013 WL 1934666, at *2 (D.N.J. May 8,
2013) (citations omitted).
In Metzler v. American Transportation Group, L.L. C, Judge Linares
considered a defendant’s motion to dismiss a plaintiff’s lIED claims. The
defendants argued that the plaintiff could not supplement her NJLAD claim
with her common law tort claims. Judge Linares agreed and dismissed the lIED
claims, reasoning that the “NJLAD provides plaintiffs with all remedies
available in common law tort actions.” Metzler v. Am. Transp. Grp., L.L.C., CIV.
A. 07-2066 JLL, 2008 WL 413311, at *4 (D.N.LJ. Feb. 13, 2008) (citing N.J.S.A.
§ 10:5-3; Catalane v. Gilian Instrument Corp., 271 N.J.Super. 476, 492, 638
A.2d 1341 (N.J. Super. Ct. App. Div. 1994)). The exclusivity of the NJLAD
therefore preempts any supplemental common law tort action that is based “on
the same factual predicate.” Id. (citing Toscano v. Borough of Lavallette, No. 044412, 2006 WL 1867197, at *9 (D.N.J. June 30, 2006) (granting defendant’s
motion for summary judgment on negligence claim where no new allegations
were made against the defendants and the claim was based on the same
factual assertions as the NJLAD claim); Quarles v. Lowe’s Home Ctr., No. 045746, 2006 WL 1098050, at *4 (D.N.J. March 31, 2006) (holding that TIED
claims based on the same allegations supporting plaintiff’s NJLAD claim was
barred by NJLAD)); see also Buckley v. Power Windows & Sliding, Inc., CIV.A.
09-3 162 JAP, 2010 WL 3981978, at *5 (D.N.J. Oct. 7, 2010) (noting that New
Jersey courts have held that intentional and negligent infliction of emotional
distress claims are preempted by the NJLAD); Valentine v. Bank of Am., CIV.A.
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09-262 (SDW), 2010 WL 421087 (D.N.J. Feb. 1, 2010) (denying leave to amend
a complaint as futile and reasoning that “[wjhen a common law claim of
intentional infliction of emotional distress is based on the same allegations
supporting Plaintiffs NJLAD claim, Plaintiff is not entitled to relief”).
Similarly instructive is Everson v. JPMorgan Chase Bank, in which Judge
Wolfson considered a motion to dismiss because, inter alia, the plaintiff’s
breach of contract, negligent infliction of emotional distress, and lIED claims
were preempted by the NJLAD. 2013 WL 1934666. Judge Wolfson dismissed
the plaintiff’s lIED claim, finding that it was duplicative of and preempted by
the NJLAD claim. Id. at *4
Plaintiffs TIED claim is based on the same operative facts as
underlie her NJLAD claim. In addition to the facts discussed in the
previous section, which are incorporated into Plaintiffs lIED claim,
the paragraphs specific to the lIED claim reinforce that the
crux of the claim is the same alleged discrimination being used to
support Plaintiffs NJLAD claim.
Id.
Count 3 of Gaines’s Complaint, the lIED claim, specifically incorporates
by reference the allegations of Counts 1 and 2, the NJLAD discrimination and
retaliation claims. Complaint Count 3, ¶ 1, 2. Count 3 “repeats and realleges
the allegations of the First and Second Counts of this Complaint and makes
them part of this Count, as if fully set forth herein.” Id. ¶ 1. Count 3 alleges
that “in committing the above described acts [i.e., the acts alleged in Count 1
and 2], Defendant intentionally and willfully subjected Plaintiff to emotional
distress . . . .“ Id. ¶ 2. In short, the lIED claim in Count 3 is based solely on the
allegations underlying the NJLAD claims; the factual predicate is the same.
This Complaint is therefore on point with, and governed by, the preemption
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case law cited above.
Plaintiff cites Mosley v. Bay Ship Management, Inc., which held that a plaintiff
may be able to pursue a common law claim independent of a statutory claim under
the NJLAD. 174 F.Supp.2d 192, 201 (D.N.J. 2000). Mosley relied, however, on
statements from the New Jersey Supreme Court to the effect that a plaintiff “in
appropriate circumstances could pursue an independent action . . . to vindicate
particular interests in addition to or aside from those sought to be protected by a
NJLAD action.” Id. (quoting Shaner v. Horizon Bancorp, 116 N.J. 433, 454, 561 A.2d
1130 (N.J. 1989)). Here, the allegations comprising Gaines’ TIED claim do not invoke
any interest separate and distinct from those underlying the NJLAD claims. Moreover,
2
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I will follow the lead of the cases, cited above, that have dismissed TIED
claims on NJLAD preemption grounds at the motion to dismiss stage. Gaines
has not cited contrary case law; she has not identified any independent factual
basis for her lIED claim; and she does not seek any remedy unavailable to her
under the NJLAD.
Count 3, the lIED claim, is therefore preempted by Gaines’ statutory
claims under the NJLAD and will be dismissed.
b. Failure to state an lIED claim
In addition, and in the alternative, I find that the Complaint does not
plead a legally sufficient TIED claim. The New Jersey Supreme Court has laid
out the essential elements of TIED:
[Tjhe plaintiff must establish intentional and outrageous conduct
by the defendant, proximate cause, and distress that is severe.
Initially, the plaintiff must prove that the defendant acted
intentionally or recklessly. For an intentional act to result in
liability, the defendant must intend both to do the act and to
produce emotional distress. Liability will also attach when the
defendant acts recklessly in deliberate disregard of a high degree of
probability that emotional distress will follow.
Second, the defendant’s conduct must be extreme and outrageous.
The conduct must be “so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds of decency, and to
be regarded as atrocious, and utterly intolerable in a civilized
community.” Third, the defendant’s actions must have been the
proximate cause of the plaintiffs emotional distress. Fourth, the
emotional distress suffered by the plaintiff must be “so severe that
no reasonable man could be expected to endure it.”
in Martinez v. Anselmi & Decicco, Inc., Judge Linares rejected Mosely and was
“persuaded by the reasoning in the majority of cases that have found that such
[supplemental common law tort] claims are barred as duplicative of the NJLAD.” CIV.
A. 09-5277(JLL), 2009 WL 5206286, at *8 (D.N.J. Dec. 22, 2009). I agree with Judge
Linares’s reasoning, and I am not persuaded that Mosley precludes preemption of an
TIED claim that is asserted on the same factual basis as an NJLAD claim or claims.
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Buckley v. Trenton Saving Fund Soc., 111 N.J. 355, 366-67, 544 A.2d 857, 863
(1988).
What Count 3 of the Complaint alleges is an ordinary case of
employment discrimination. It does not allege outrageous, atrocious conduct
likely to cause extreme emotional distress. If Count 3 were not preempted by
Counts 1 and 2, I would dismiss it for failure to state a claim.
3. Count 4: Negligence/Breach of Ordinary Care
Count 4 of the Complaint sounds in negligence. It alleges that UPS “had
a duty to use ordinary in their investigation of a perceived disability and
retaliation complaints by its employees and in supervising their staff’s response
to the complaints, and this Defendant negligently, unlawfully, recklessly, and
improperly investigated and supervised Plaintiff’s charges of discrimination and
Complaint, Count 4, ¶ 3. As to the underlying facts, Plaintiff
retaliation
“repeats and realleges the allegations of the First, Second, and Third Counts” of
the Complaint and “makes them a part of” Count 4. Complaint, Count 4, ¶ 1.
.
.
.
.“
In support of its motion to dismiss, UPS argues that Count 4 is
preempted by the NJ LAD claim asserted in Count 1; that it is barred by the
New Jersey Workers’ Compensation Act; and that it fails to state a cause of
action. I will dismiss Count 4 on preemption grounds.
a. Preemption under the NJLAD
Case law suggests that a negligence claim based on the same factual
allegations as an NJLAD claim is barred. In Toscano v. Borough of Lavallette,
for instance, the plaintiff alleged discrimination under the NJLAD, but also
alleged that the defendants “acted in a careless and negligent manner by
allowing, ‘condoning, ratifying, and/or acquiescing to libelous and slanderous
statements of and concerning the plaintiff.” Toscano v. Borough of Lavallette,
*9 (D.N.J. June 30, 2006)
CIV A. 04-4412 (MLC), 2006 WL 1867197, at
(quoting complaint). Judge Cooper reasoned that plaintiff’s negligence claim
was “an alternate common law cause of action” that asserted “no new
allegations against the defendants, and is based on the same factual assertions
as” the NJLAD claim. Id. Finding that such an action was “not allowed when
the NJLAD provides a remedy for the wrong,” she granted summary judgment
in favor of the defendant on the negligence claim. Id. (citations omitted).
Gaines’s complaint alleges no independent factual basis for the
negligence claim; to all appearances, it is simply an alternative legal theory
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based on the same facts underlying the TIED claim. Count 4 merely repeats and
incorporates the allegations made in Counts 1—3. The alleged negligence
consists of nothing beyond UPS’s failure to address Gaines’s complaints of
discrimination. Complaint, Count 4, ¶ 1—3. I find that Count 4, like Count 3, is
preempted by the NJLAD. See Part II.B.2 (discussing NJLAD preemption).
b. Preemption under the Workers’ Compensation Act
In addition, and in the alternative, I conclude that Count 4 is preempted
by the exclusive remedy provision of the New Jersey Workers’ Compensation
Act. “Under Jersey law an action in negligence against an employer is barred by
the New Jersey Workers Compensation Act, N.J.S.A. § 34:15—8.5.” Silvestre v.
Bell Ati. Corp., 973 F. Supp. 475, 486 (D.N.J. 1997) (reasoning that an
employee cannot assert a claim for negligent hiring and supervision against an
employer because an action in negligence against an employer is barred by the
New Jersey Workers Compensation Act), affd, 156 F.3d 1225 (3d Cir. 1998).4
Plaintiff replies that the New Jersey Workers’ Compensation Act does not
bar intentional torts. P1. Br. at 16 (citing Millison v. E.I. du Pont de Nemours Co.,
101 N.J. 161, 185 (N.J. 1985)). In Millison, the Supreme Court of New Jersey
held that “the intentional wrongs of an employer as well as those of co
employees fall outside of the boundaries of the Compensation Act.” Millison,
101 N.J. at 185, 501 A.2d at 518.
Count 4, however, clearly sounds in negligence; it alleges breach of a
duty of reasonable care, not any intentional tort. Specifically, it alleges that
UPS “negligently, unlawfully, recklessly, and improperly investigated and
Complaint,
supervised Plaintiff’s charges of discrimination and retaliation.
Count 4, ¶ 3.
.
.
.“
Of course, Count 3 itself contains no allegations other than those incorporated
from Counts 1 and 2.
In pertinent part, the statute provides that:
If an injury or death is compensable under this article, a person shall not
be liable to anyone at common law or otherwise on account of such
injury or death for any act or omission occurring while such person was
in the same employ as the person injured or killed, except for intentional
wrong.
N.J.S.A. § 34:15-8 (emphasis added).
11
Although there are exceptions to the “exclusive remedy rule,” see, e.g.,
Rorrer v. Cleveland Steel Container, 712 F. Supp. 2d 422, 437 (E.D. Pa. 2010)
(exception where employer’s negligence enables a co-worker to intentionally
injure employee), none apply here, and Plaintiff does not suggest any.
Therefore, the “exclusive remedy” provision is applicable to Gaines’ negligence
claim brought against her employer, UPS. See, e.g., Cremen v. Harrah’s Marina
Hotel Casino, 680 F. Supp. 150, 155—56 (D.N.J. 1988) (finding that plaintiff’s
claim, sounding in negligence, was barred by the exclusive remedy provision
where plaintiff alleged that employer acted with gross negligence in hiring and
retaining a co-worker after sexual harassment allegations were made against
the co-worker).
For this independent reason, too, Count 4 will be dismissed.
4. Count 5: Breach of Express and Implied Contracts
Count 5 of the Complaint alleges breach of express and implied contracts
with UPS. Defendant’s defective investigation of Gaines’s complaints, she says,
“violated rules and policies governing disability and retaliation.” Complaint,
Count 5, ¶ 2. Further, she alleges that, “[b]y reason of Defendant’s express and
implied promises in its written policies and procedures, Plaintiff reasonably
expected that Defendant would not arbitrarily deny her requests to wear soft
shoes.” Id. ¶ 3. In exposing Gaines to harassment and retaliation, “Defendant
wrongfully breached express and implied contracts made to Plaintiff at the time
of the commencement of her employment and thereafter and relied upon by
Plaintiff in continuing such employment.” Id. ¶ 5.
Generally, to state a claim for breach of contract under New Jersey law, a
plaintiff “must allege (1) a contract between the parties; (2) a breach of that
contract; (3) damages flowing therefrom; and (4) that the party stating the
claim performed its own contractual obligations.” Frederico v. Home Depot, 507
F.3d 188, 203 (3d Cir. 2007). In support of dismissal, UPS submits (1) that
Count 5 is preempted by the NJLAD; and (2) that it fails to allege the existence
of a contract, because it does not identify the “rules” or “policies” that UPS
allegedly violated. I agree, and will dismiss Count 5.
a. NJLAD preemption
First, I find that the common law contract claims in Count 5 are
duplicative of Counts 1 and 2, and therefore preempted by the NJLAD. Gaines
responds that the allegations of Count 5 are distinct from the NJLAD claims,
but does not support that contention with any specifics.
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Clearly, a contract claim may be preempted by the NJLAD. In Everson v.
JPMorgan Chase Bank, Judge Wolfson relied on NJLAD preemption to dismiss
a breach of contract claim where the plaintiff “incorporate[d] numerous facts
into her breach of contract claim that make it clear that her breach of contract
claim sounds in discrimination.” CIV.A. 12-07288 FLW, 2O13 WL 1934666, at
*3 (D.N.J. May 8, 2013). In DeCapua v. Bell Atl.-New Jersey, Inc., the court
granted summary judgment in favor of the defendant “because plaintiffs
common-law breach of contract claim duplicate[d] his statutory claim under
New Jersey’s Law Against Discrimination.” 313 N.J. Super. 110, 128, 712 A.2d
725, 734 (Ch. Div. 1998) (citing Catalane, 271 N.J. Super. at 491-—92, 638
A.2d 1341 (App. Div. 1998)); see also Santiago v. City of Vineland, 107 F. Supp.
2d 512, 567 (D.N.J. 2000) (finding that common law contract claims were
“preempted by the NJLAD because the common law claims are premised upon
the same discriminatory conduct as alleged under the state statute”).
Such preemption, moreover, extends to implied, as well as express,
contract claims. “[Cjourts have held that a breach of contract claim that seeks
damages for discriminatory acts on the basis of a statement in a policy manual
is preempted by the NJLAD.” Martinez v. Anselmi & Decicco, Inc., CIV. A. 095277(JLL), 2009 WL 5206286 (D.N.J. Dec. 22, 2009) (quoting Finn v. J.B. Hunt
Transp. Servs., No. 07—485 1, 2009 WL 2058850, at *6 (D.N.J. July 7, 2009)). In
DiMare v. Metlfe Ins. Co., for example, the plaintiff asserted “that Defendants
breached an implied contract with Plaintiff by failing to ‘treat Plaintiff in a fair,
equitable, and nondiscriminatory manner regarding her past health
condition/or disability.”’ DiMare v. Metlfe Ins. Co., CIV. 07-4268 (GEB), 2008
WL 2276007, at *4 (D.N.J. June 2, 2008), affd, 369 F. App’x 324 (3d Cir. 2010)
(quoting the plaintiff’s complaint). That implied contract claim was based on
“Defendant’s conduct and treatment of other employees throughout the period
within which the Plaintiff was employed by Defendants.” Id. The court
concluded that “this broad and vague claim is also preempted by the NJLAD
and must be dismissed because it is entirely duplicative of Plaintiffs NJLAD
claim.” Id. (citing Santiago, 107 F. Supp. 2d at 568).
The contract claim here is of the same ilk. It is parallel to, even
duplicative of, the NJLAD allegations. I conclude that it is preempted.
b. Failure to state a contract claim
In the alternative, I hold that Count 5 fails to allege a breach of contract
claim with the requisite specificity. In short, it is impossible to discern what the
alleged contract consists of.
13
Count 5 alleges generally that UPS’s investigation and response to her
complaints “violated rules and policies governing disability and discrimination.”
Importantly, general policies and procedures do not rise to the level of legal
contracts. In Kapossy v. McGraw-Hill, Inc., a plaintiff alleged that defendant
was contractually bound by statements made in its “Code of Business Ethics,
in statements of its Equal Employment Opportunity Policy and by ‘past
practices.” 921 F. Supp. 234, 245, n. 12 (D.N.J. 1996). The court found that
“the generalized conclusory statements of purpose contained in these
documents do not give rise to contractual rights.” Id. (citing Tripodi v. Johnson
& Johnson, 877 F. Supp. 233, 240 (D.N.J. 1995) (“Corporate ‘Credo’ which
states general policies and goals of the company lacks the specificity required
by Woolley)); see also Catalane, 271 N.J. Super. at 495, 638 A.2d at 1350
(“ Woolley contemplates that the policy manual must contain more than the
company’s general policies or goals” to constitute a legal contract.); Bell v. KA
Indus. Servs., LLC, 567 F. Supp. 2d 701, 710 (D.N.J. 2008) (dismissing implied
contract claim where plaintiff had “not alleged the existence of a manual, much
less identified a provision or language guaranteeing job security, he has failed
to allege facts that raise his claims above the speculative level”).
Count 5 fails to specify what rules, policies, or procedures (either written,
oral, or otherwise) constitute the contract that was allegedly breached. See
Complaint, Count 5, ¶ 3. Gaines alleges in conclusory fashion that UPS
breached both written and implied contracts that “she would not be sent home
from work and denied income because her deformed foot precluded her from
wearing soft shoes.” P1. Br. at 18. The Complaint does not identify the source of
any such express or implied agreement regarding footwear policies. Even in her
opposition brief, Gaines does not identify any specific relevant oral or written
“policies and procedures.” Although she contends that her claim depends on
the interpretation of a “disclaimer,” P1. Br. at 17, she does not identify this
disclaimer or state where it might be found.
Count 5, because it is preempted by NJLAD and fails to state a claim of
breach of contract, will be dismissed.
14
III. CONCLUSION
For the foregoing reasons, UPS’s motion to dismiss will be DENIED as to
Count 2 and GRANTED as to Counts 3, 4 and 5. An appropriate Order follows.
DATED: April 14, 2014
KEVIN MCNULTY
United States District Judge
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