PONCIANO v. SHARP et al

Filing 56

OPINION AND ORDER granting Defendant's 43 Motion to Dismiss for Lack of Jurisdiction; CIVIL CASE TERMINATED. Signed by Judge Claire C. Cecchi on 2/27/2023. (mxw)

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NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

FELICIA PONCIANO,

Civil Action No.: 15-cv-2600

Plaintiff,
v.
OPINION & ORDER
STEFANIE SHARP and JERSEY HEALTH
ALLIANCE LLC
Defendants.

CECCHI, District Judge.
This matter comes before the Court by way of Defendant Jersey Health Alliance LLC’s
(“Defendant” or “Jersey Health”) motion to dismiss pro se Plaintiff Felicia Ponciano’s (“Plaintiff”)
Third Amended Complaint (ECF No. 28, TAC) pursuant to Federal Rules of Civil Procedure
12(b)(2), 12(b)(5), and 12(b)(6). See ECF No. 43 (“MTD”). Plaintiff filed letters in opposition to
Defendant’s motion (ECF Nos. 45, 47, 48) and Defendant replied. ECF No. 46 (“Reply”). For
the reasons set forth below, Defendant’s motion to dismiss is GRANTED.
WHEREAS this suit arises out of Defendant’s alleged discriminatory termination of
Plaintiff’s employment in 2014. See generally TAC. Plaintiff filed her initial complaint (ECF No.
1) on April 10, 2015, asserting claims against her former employer Jersey Health, and Stephanie
Sharp, a purported former employee of Jersey Health and co-worker of Plaintiff’s. 1 Plaintiff filed

1

As of the date of this Order, it appears defendant Sharp has not been effectively served and
therefore has not appeared in this suit. See ECF No. 11 (Order dated June 22, 2016, finding that
Plaintiff had not appropriately delivered the summons and complaint to defendant Sharp as
required by the Federal Rules of Civil Procedure, and instructing Plaintiff to effect proper service

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an amended complaint on October 20, 2017 (ECF No. 15) and a second amended complaint on
June 20, 2018 (ECF No. 25). Upon Order of this Court dated June 28, 2018, Plaintiff’s Third
Amended Complaint would “supersede and replace” Plaintiff’s initial complaint, amended
complaint, and second amended complaint. ECF No. 27. The Court further instructed Plaintiff
that her TAC “must contain all of Plaintiff’s factual and legal allegations.” Id.; and
WHEREAS Plaintiff filed her operative TAC on July 30, 2018. Plaintiff’s TAC does not
delineate specific causes of action. However, given Plaintiff’s pro se status, the Court gleans from
the pleading that Plaintiff intends to pursue the defamation claim as asserted in the TAC in addition
to Plaintiff’s Title VII and CEPA claims as originally contended in the initial complaint. See ECF
No. 1; TAC at 1; and
WHEREAS Plaintiff alleges that defendant Sharp defamed her by criticizing her work
performance and eventually forcing her to resign. TAC at 1–2. For example, while Plaintiff’s
assertions are at times difficult to decipher, it appears that she blames Sharp for interfering with
her job performance and maligning her to others: “Ms. Sharp gave me medical records tasks to
do, but Mr. Blinder had asked me to help him. Ms. Sharp told not to do it to focus on my copays
and daily sheets instead, then when Mr. Blinder told her that I couldn’t help him because she told
not to she go ahead and email him and others upper administration lying telling him that she never

within thirty days of the date of the Order.); ECF No. 13 (certificate of service filed by Plaintiff
dated July 22, 2016, indicating “personal service unsuccessful” as to Sharp, where Plaintiff was
unsuccessful in serving Sharp at her place of work); ECF No. 21 (“Summons Returned Unexecuted
as to Stefanie Sharp” dated April 11, 2018, indicating that in-person service on Sharp failed
because Sharp had resigned in 2017 and no longer worked at the location Plaintiff attempted to
serve); ECF No. 37 (“Summons Returned Unexecuted as to Stefanie Sharp” dated May 6, 2019,
where Plaintiff appears to have attempted service at an incorrect address for Sharp). Accordingly,
the Court recognizes that defendant Sharp is not a party to the instant motion. Even if Sharp had
been properly served, Plaintiff’s claims nonetheless fail against Sharp for reasons espoused in this
opinion.
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told me not to do it.” TAC at 1. Further, Plaintiff alleges that “Ms. Sharp and I argued she claimed
that I was doing my work to slow,” (id. at 2) and avers that Sharp asked Plaintiff’s co-workers to
“spite” her (id.) and Plaintiff’s employer to “termed” her (id.). Plaintiff asserts that this alleged
treatment “caused me depression[,] sadness, worries and financial difficulties.” Id.; and
WHEREAS Plaintiff initially brought claims against both defendants for discrimination
and retaliation due to her age and ancestry in violation of Title VII of the Civil Rights Act of 1964
(“Title VII”) and the New Jersey Conscientious Employee Protection Act (“CEPA”), the state’s
employee whistleblower statute. ECF No. 1 at 2. Plaintiff’s TAC adds a claim for defamation,
which appears to allege that defendant Sharp spoke negatively about Plaintiff in the workplace
leading to Plaintiff’s resignation. TAC at 1–2. Plaintiff seeks $1 million from Jersey Health, and
an order from this Court to stop defendant Sharp’s alleged bad behavior. Id. at 2; and
WHEREAS on June 22, 2016, this Court determined that Plaintiff had not yet adequately
effectuated service and ordered Plaintiff to “effect service properly on Defendants, within thirty
(30) days of the date of this Order.” ECF No. 11 at ¶ 10. Plaintiff filed a Certificate of Service on
July 22, 2016, indicating that service on defendants had been unsuccessful. ECF No. 13.
Thereafter, on September 28, 2017, the Court ordered Plaintiff to file an amended complaint, with
service to be provided by the U.S. Marshals (“USMS”). ECF No. 14 at 2. Plaintiff filed her first
amended complaint on October 20, 2017. ECF No. 15. The Court then ordered the Clerk to issue
a summons and for the USMS to serve the first amended complaint and summons, among other
papers, on all defendants. ECF No. 16; and
WHEREAS Plaintiff requested permission to file a second amended complaint, which the
Court granted on May 15, 2018. ECF No. 24. The Court permitted Plaintiff thirty days to file a
second amended complaint, and again provided that the USMS should serve the second amended

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complaint, summons, and order on defendants. Id. Plaintiff filed her second amended complaint
on June 20, 2018. ECF No. 25. In response, the Court issued an order, dated June 28, 2018,
finding that the second amended complaint did not comply with the Court’s previous order, as it
failed to satisfy Rule 8’s short and plain statement requirement as to both jurisdiction and
entitlement to relief. ECF No. 27. The Court again permitted Plaintiff to replead. Id.; and
WHEREAS Plaintiff filed the operative TAC on July 30, 2018. ECF No. 28. Plaintiff
appears to re-allege that defendant Sharp created a hostile work environment through purported
lies and malicious treatment. Id. at 1. Plaintiff further alleges that she filed a formal Human
Resources complaint against defendant Sharp for retaliation and discrimination on account of her
age, and that defendant Sharp defamed her in the workplace. Id. at 1–2. On August 6, 2018, the
Court re-opened Plaintiff’s case, and ordered that the Clerk of Court issue a summons and the
USMS to serve the third amended complaint, summons, and order on the defendants. ECF No.
29. On January 3, 2019, the summons as to Defendant Jersey Health was returned unexecuted.
ECF No. 36. 2 In a letter dated October 14, 2019, Plaintiff inquired into that status of service of
her TAC. ECF No. 40. A Chamber’s Note on the docket, dated June 30, 2021, stated that USM
Form 285 should be forwarded to the USMS for effectuation of service. One year later, on June
22, 2022, the summons as to Defendant was returned executed and filed as having been served on
June 1, 2022. ECF No. 41. The USM Form 285 was dated May 31, 2022 and was stamped as
having been received by USMS on the same date. Id. On July 6, 2022, Defendant moved to
dismiss the instant TAC pursuant to Rules 12(b)(2), 12(b)(5), and 12(b)(6). See MTD; and

2

It appears that Plaintiff mistakenly effectuated service through the USMS on a non-party to this
lawsuit, Carepoint Health Group. ECF No. 38
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WHEREAS to survive dismissal under Rule 12(b)(6), a complaint must “contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face’” pursuant to
Fed. R. Civ. P. 8(a). Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim has “facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678; and
WHEREAS the Court will dismiss Plaintiff’s TAC in its entirety under Rule 12(b)(6) for
failure to state a claim for which relief may be granted. 3 To the extent Plaintiff alleges she was
defamed by Jersey Health, the Court is not persuaded. To state a claim for defamation under New
Jersey law, a plaintiff must adequately allege: (1) that the defendant made a defamatory statement
of fact; (2) concerning the plaintiff; (3) which was false; (4) which was communicated to persons
other than the plaintiff; and (5) fault. Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164 F.3d 186,
189 (3d Cir. 1998). While “a defamation pleading does not need to cite precise defamatory
statements, it must [] provide sufficient notice to the other party of the allegations made against
him.” Cristelli v. Filomena II, Inc., No. 99-2862, 1999 WL 1081290, at *3 (D.N.J. Dec. 1, 1999).
Plaintiff’s defamation allegations appear to assert that Sharp lied to upper administration and coworkers about her inability to complete work and effectively do her job (TAC at 1–2), and that
Sharp asked Plaintiff’s direct supervisor to terminate her (id. at 2); and
WHEREAS Plaintiff’s claim fails because she has not adequately pleaded that the
comments were “defamatory statements of fact.” New Jersey courts have consistently held that

3

Because Plaintiff is a pro se litigant, her filings are entitled to a liberal construction and her
complaint is held to a less stringent standard than pleadings drafted by lawyers. Dluhos v.
Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). However, “pro se litigants still must allege sufficient
facts in their complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244–
45 (3d Cir. 2013) (citation omitted).
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generic criticisms of an employee’s or co-worker’s job performance are opinion statements and
thus not actionable as a defamation claim. Ward v. Zelikovsky, 136 N.J. 516, 529 (1994)
(“[O]pinion statements generally have received substantial protection under the law”); Kassin v.
CompuCom, Inc., No. 11-5009, 2012 WL 893097, at *3 (D.N.J. Mar. 15, 2012) (finding that
employer’s statements about “unsatisfactory job performance” was not “false and defamatory”
because it was “primarily comprised of opinions that enjoy immunity.”); Higgins v. Pascack Valley
Hosp., 158 N.J. 404, 427 (1999) (determining that co-workers' statements about their
unwillingness to work with plaintiff were non-actionable opinions rather than defamatory
statements of fact). Here, Sharp’s comments appear to be limited to her own opinions of Plaintiff’s
on-job performance. See, e.g., TAC at 1–2. Thus, Plaintiff’s defamation claim fails as a matter of
law; and
WHEREAS the Court next considers Plaintiff’s claims for age and ancestry/race
discrimination under Title VII. Although a pro se plaintiff like Ms. Ponciano is given some leeway
in meeting the Federal Rules' pleading requirements, even under that relaxed standard, there is no
substantial question that the TAC failed to state a claim. See Fantone v. Latini, 780 F.3d 184, 193
(3d Cir. 2015) (holding that a pro se complaint must still meet Twombly and Iqbal's plausibility
standard). To make out a prima facie case of discrimination under Title VII, Plaintiff must show:
“(1) she belongs to a protected class; (2) she suffered some form of adverse employment action;
and (3) the adverse employment action occurred under circumstances that give rise to an inference
of unlawful discrimination.” Barnett v. New Jersey Transit Corp., 573 Fed. App'x. 239, 243 (3d
Cir. 2014) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Here, Plaintiff
has not asserted any circumstances that could give rise to an inference of unlawful discrimination.
Plaintiff does not plead facts alleging that she belongs to a protected class, and thus her allegations

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fail at the outset. Even if Plaintiff had adequately alleged that she belonged to a protected class
and was forced to resign, Plaintiff’s pleading does not demonstrate that she was subject to
circumstances that may give rise to an inference of unlawful discrimination. Nowhere does
Plaintiff allege that Defendant forced her resignation on account of her age or ancestry. Further,
Plaintiffs has not put forth allegations “that raise a reasonable expectation that discovery will
reveal evidence” sufficient to establish a prima facie discrimination case. Fowler v. UPMC
Shadyside, 578 F.3d 203, 213 (3d Cir.2009). In other words, Plaintiff’s TAC does not attribute
any adverse employment action to her age or race, and thus her discrimination claims lack
reasonable factual support. Accordingly, because the pleading is devoid of factual allegations
establishing the required elements, the Court dismisses Plaintiff’s Title VII discrimination claims.
See Washington v. Malmud, No. 19-5927, 2020 WL 6144707, at *3 (D.N.J. Oct. 20, 2020)
(dismissing pro se plaintiff’s age and race discrimination claims under Title VII where, as here,
plaintiff “failed to plead almost any facts at all” to show “an inference of unlawful
discrimination.”); 4 and
WHEREAS Plaintiff’s retaliation claims fare no better. To advance a prima facie case of
retaliation a plaintiff must show that: (1) she engaged in a protected activity; (2) the employer took
an adverse employment action after or contemporaneous with the protected activity; and (3) a
causal link exists between the employee's protected activity and the employer's adverse action.

4

Although Plaintiff does not bring a separately delineated claim for hostile work environment, in
the interest of completeness, the Court notes that such a claim would fail as pleaded. See Rosado
v. Session, No. 15-3999, 2018 WL 2411608, at *10 (D.N.J. May 29, 2018) (considering a pro se
hostile work environment claim in addition to Title VII discrimination even though plaintiff “does
not style any of his counts as a hostile-work-environment cause of action.”). To succeed on a
hostile work environment claim under Title VII, Plaintiff must establish, at the very least, that she
suffered intentional discrimination because of her race, national origin, or ethnicity. Mandel v. M
& Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013). As discussed above, Plaintiff has not
made such a showing. Accordingly, any claims for hostile work environment are without merit.
7

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See Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 286 (3d Cir. 2001). As discussed
above, Plaintiff has failed to allege facts showing that she was engaged in any protected activity.
Nor has Plaintiff provided any factual allegations showing a causal connection between any
activity of hers and any action taken by her employer. Washington, 2020 WL 6144707, at *4.
Plaintiff does not plausibly allege that her resignation was caused by any purported discrimination
based on race or age, nor does she assert that decisions about her employment were motivated by
her engagement in protected activity. See Romano v. City of Paterson, New Jersey, No. 17-12191,
2019 WL 1423687, at *5–6 (D.N.J. Mar. 29, 2019). Accordingly, Plaintiff’s retaliation claims are
dismissed; and
WHEREAS Plaintiff’s whistleblower claim under CEPA is similarly dismissed. CEPA
requires proof of four elements: (1) that the plaintiff reasonably believed that an employer's
conduct violated a law or regulation; (2) that the plaintiff performed “whistle-blowing activity” as
defined in CEPA; (3) that an adverse employment action has been taken against him or her; and
(4) that the whistle-blowing activity caused such adverse employment action. Rodriguez v. Ready
Pac Produce, No. 13-4634, 2014 WL 1875261 (D.N.J. May 9, 2014). Here, Plaintiff does not
allege that Defendant engaged in any illegal or violative activity. Moreover, Plaintiff does not
claim to have been a whistle-blower or to have performed any whistle-blowing activities in relation
to her resignation. Thus, Plaintiff’s CEPA claim may not proceed. 5
Accordingly, IT IS on this 27th day of February, 2023,

5

Having determined the insufficiency of Plaintiff’s TAC under rule 12(b)(6), the Court need not
consider Defendants’ alternative grounds for dismissal under Rules 12(b)(2) and 12(b)(5). MTD
at 7–14.
8

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ORDERED that Defendant’s motion to dismiss (ECF No. 43) is GRANTED; and it is
further
ORDERED that this case shall be DISMISSED; and it is further
ORDERED that the Clerk of the Court shall mark this matter CLOSED.
SO ORDERED.

s/ Claire C. Cecchi
CLAIRE C. CECCHI, U.S.D.J.

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