DINALLO v. BOGOTA BOARD OF EDUCATION et al

Filing 12

MEMORANDUM OPINION AND ORDER denying 8 Motion to Dismiss. Signed by Judge Kevin McNulty on 2/6/14. (sr, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

DAVID DINALLO,

Civ. No. 13-5761 (KM)
Plaintiff,
MEMORANDUM OPINION AND
ORDER

BOGOTA BOARD OF EDUCATION,
BOGOTA PUBLIC SCHOOLS, BOROUGH
OF BOGOTA, and LETIZIA
PANTOLIANO
Defendants.

KEVIN MCNULTY, U.S.D.J.:

Plaintiff David Dinallo brings this suit against Defendants Bogota Board
of Education, Bogota Public Schools, Borough of Bogota, and Letizia
Pantoliano, claiming that they terminated his employment on the basis of his
age and that they failed to pay overtime compensation owed him. He seeks,
inter alia, damages and reinstatement of his position pursuant to the New
Jersey Law Against Discrimination, N.J.S.A. § 10:5-1, and the Fair Labor
Standards Act, 29 U.S.C. § 2 16(b).
In his complaint, Plaintiff alleges that he is 62 years old and began
working for the Defendants in 1991. (Complaint (Doc. No. 1) at ¶J 16-17). He
alleges that he became Supervisor of Buildings and Grounds, working often in
excess of 40 hours per week at his duties of cleaning and maintenance. (Id. at
¶11 19, 24, 26). He alleges that the Defendants terminated his employment in
June 2013. (Id. at ¶ 18). He then goes on to allege, inter alia, that the
Defendants’ stated reason for terminating his employment, “economic
purposes,” was a pretext for age discrimination (id. at ¶11 39-52), and that he
had accrued “over 200 sick days” for which he never received compensation
from Defendants (id. at ¶J 58-60).
The Borough of Bogota (“Borough”) moves to dismiss Plaintiff’s complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6), and has simultaneously
argued that the Court should consider matters outside the pleading, pursuant
to Federal Rule of Civil Procedure 12(c), and enter summary judgment
pursuant to Federal Rule of Civil Procedure 56(a). The Borough contends it did
not employ Plaintiff, and that “there is no cause of action against the Borough.”
(Doc. No. 8-5). It submits a certification by its borough administrator, August

Greiner, stating that the Borough “has never had a contract of employment
directly with David Dinallo” and that the Borough “has never compensated
David Dinallo for employment. or otherwise had David Dinallo on the payroll.”
(Doc. No. 8-4).
. .

Plaintiff, however, has specifically alleged that he was employed by the
Borough, and that the Borough, like the Board of Education, is liable for his
improper termination and for not paying his overtime. I find, therefore, that
Plaintiff has “ple[d] 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 Bell Ati. Corp. v. Twombly, 550 U.S. 544,
556 (2007)). Taking these well-pleaded factual allegations as true, I find that
plaintiff may plausibly be entitled to relief from the Borough, on the face of his
complaint. Id. at 679. Plaintiff does not, therefore, fail to state a claim.
Even if I converted the Borough’s motion into a motion for summary
judgment, I could not enter judgment because there is a genuine issue of
material fact. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986) (summary judgment is appropriate where “there is no genuine issue
of material fact to be resolved and the moving party is entitled to judgment as a
matter of law.”). Defendant has submitted one piece of evidence, the
certification of its administrator, which at least partially contradicts Plaintiff’s
allegation that the Borough employed him. The material issue of whether the
Borough employed Plaintiff is thus in dispute. I cannot determine, based on the
limited proofs before, that a reasonable jury could not find that Borough was
Plaintiff’s employer and could not potentially enter a verdict against the
Borough. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Plus,
as Plaintiff points out, the Borough’s evidence does not even fully contradict
Plaintiff’s allegation— it may well be that the Borough exerted control over
Plaintiff sufficient to render it his employer as a matter of statute. See Thomas
v. County of Camden, 386 N.J. Super. 582, 595-596 (App. Div. 2006) (noting
breadth of NJLAD’s definition of employer and employee and setting forth
twelve-factor test for determining whether an employment relationship exists
“in the absence of a strict or direct employer-employee relationship”).
In short, dismissal would be, at best, premature on this undeveloped
record. Accordingly, neither dismissal nor entry of judgment in favor of the
Borough is proper at this time, and Plaintiff’s motion will be denied.
ORDER

THIS MATTER having been opened to the Court by Defendant Borough
of Bogota (“Borough”) through its counsel Norton, Sheehy & Higgins, P.C., on a
motion to dismiss plaintiff’s complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) [ECF No. 8]; and the Plaintiff David Dinallo, through his
counsel Halsband Law Offices, having submitted papers opposing the motion
[ECF No. 10]; and the Borough having submitted a reply [ECF No. 11]; and the
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Court having considered the papers, pursuant to Federal Rule of Civil
Procedure 78(b); for the reasons stated in the Memorandum Opinion filed on
this date, and for good cause shown:
IT IS this

Zth

day of February, 2014, ORDERED that:

The Borough’s motion to dismiss Plaintifi’s complaint is DENIED.

ON. KEVIN MCNULT
United States District Ju ge
Dated: February 4, 2014
Newark, New Jersey

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