CRUZ v. STATE OF NEW JERSEY et al

Filing 8

OPINION. Signed by Judge Jose L. Linares on 4/4/2016. (ld, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COUR
T
DISTRICT OF NEW JERSEY
YVETTE CRUZ,

Civil Action No.: 16-0703 (iLL)
Plaintiff,
V.

STATE OF NEW JERSEY, DEPARTME
NT
OF CHILDREN AND FAMILIES,
DIVISION OF CHILD PROTECTION
AND
PERMANENCY, etal.

OPINION

Defendants.
LINARES. District Judge.
Presently before the Court is a motion
to dismiss Plaintiff Yvette Cruz’s Complai
nt, filed
by Defendants the New Jersey Departm
ent of Children and Families, the Divisio
n of Child
Protection and Permanency (“DCPP”), and
individual employees ofthe DCPP, pur
suant to Federal
Rule of Civil Procedure I 2(b)(6). (EC
F No. 4). Specifically, Defendants seek
to dismiss Count
IV of Plaintiffs Complaint for defama
tion/libel, as well as the retaliation claim
alleged in Count
II.’ Plaintiff has opposed this motion (EC
F No. 5), and Defendants have replied to
that opposition
(ECF No. 7). No oral argument was
heard pursuant to Rule 78 of the Federal
Rules of Civil
Procedure. After considering the submis
sions of the parties in support of and in
opposition to the
motion, the Court grants Defendants’ mo
tion to dismiss Plaintiffs claims of reta
liation under the
New Jersey Law Against Discrimination
, arising under Count II, as well as Pla
intiffs claim of
defamation/libel (Count IV).
‘Defendants have withdrawn their prior
motion to dismiss Plaintiffs claim for discr
imination under the NJLAD,
also alleged in Count II of the Complain
t. (ECF No. 7, “Def.’s Reply Br.” at
8).

1

I.

2
BACKGROUND

Plaintiff, an employee of the DCPP, filed this lawsuit against the DCPP and several of its
3
employees, alleging discriminatory and retaliatory conduct in violation of Federal and New Jersey
State laws, Specifically, Plaintiff alleges violations of Title VII of the Civil Rights Act, the New
Jersey Law Against Discrimination (“NJLAD”), and the Conscientious Employee Protection Act
(“CEPA”). Plaintiff also brings a common law claim for defamation/libel. (See ECF No. 1-1,
“Compl.”).
On March 12, 2012, Plaintiff was hired by the DCPP as a Family Service Specialist
Trainee. (Compl.

¶ 5). After completing the probationary period, on March 23, 2012, her title

was changed to Family Service Specialist II. (Id.

¶ 6). Plaintiff alleges that though she was never

formally designated a bilingual specialist within DCPP by use of their Bilingual Communications
Assessment Test (“BICAT”), she was informally and non-contractually designated as a “bilingual”
employee within her office because she spoke Spanish. (Id ¶ 7). Specifically, on or about August
or September 2013, Defendant Susan Jones, a branch office manager, held a meeting to discuss
assigning employees—including Plaintiff—who had been informally designated as “worker[sj
with bilingual capabilities” to cases within the agency that involved Spanish-speaking clients. (Id.

¶J 8-9.) Plaintiff alleges that, at that meeting, she and other bilingual employees objected to this
re-assignment because it increased the workload of Spanish speakers, who were predominantly
Hispanic or Latino, while decreasing the workload of non-Spanish speakers. (1dJ 10). As a direct

The facts as stated herein are taken as alleged in Plaintiffs Complaint. (ECF No. 1-1, “Compi.”).
For purposes of
this motion to dismiss, these allegations are accepted by the Court as true. See Phillips v. County
ofAllegheny, 515
F.3d 224, 228 (3d Cir. 2008) (“The District Court, in deciding a motion [to dismiss under
Rulel 12(b)(6), was required
to accept as true all factual allegations in the complaint and draw all inferences from the facts
alleged in the light most
favorable to [the plaintiff].”).
2

Plaintiff has brought suit against the following employees, in their individual and official
capacities: Susan Jones
Tinney (improperly pled as Susan Tinney-Jones), Maria Ojeda, Loretta Houston, Renatta Aikens,
and Linda
Macnamara.

2

result of this change in office policy, Plaintiff claims she suffere
d an increased workload, a hostile
work environment with her co-workers, differential treatment
with regard to vacation time and
other work benefits, and denial of time off should there be no other
bilingual workers working on
requested days. (IdJ 10-11).
On March 11, 2014, Plaintiff faxed an anonymous complaint to
the Equal Employment
Opportunity Commission (“EEOC”).

(Id.

¶

13).

investigation into Plaintiffs complaint. (Id.

¶

14.) Plaintiff further alleges that, after filing the

Around May 2014, the EEOC began an

EEOC complaint, she suffered various forms of retaliation in
the workplace. (Id

¶‘ff

15-18).

Plaintiff contends that on August 4, 2014, she suffered defama
tion and libel at the hands of
Defendant Maria Ojeda by way of a retaliatory interoffice memorandum
that accused Plaintiff of
“incompetency, inefficiency, and failure to perform her duties.
” (Id.

¶J

16, 45-46). On February

23, 2015, Plaintiffs counsel wrote a letter to Jillian Hendri
cks, the director of the Equal
Employment and Affirmative Action Office for the State’s Depart
ment of Children and Families,
informing Ms. Hendricks of Plaintiffs treatment as a result
of the EEOC investigation and
advising the EEOC of Plaintiffs intent to sue should the EEO
investigation yield no improvement
in office environment. (See ECF No. 5,”P1.’s Opp. Br.”, Exh.
A).
Plaintiff filed her original Complaint on or about July 13,
2015, in the Superior Court of
New Jersey, Law Division. (ECF No. 1

¶ 2).

Defendant thereafter removed this action to the

Federal District Court for the District of New Jersey on the ground
s of
(Id.

¶ 8).

federal question jurisdiction.

For the arguments detailed below, Defendant now moves
to dismiss the retaliation claim

alleged in Count II of Plaintiff’s Complaint, as well as Plain
tiffs claim for defamation!libel as
alleged in Count IV. (ECF No.4, “Def.’s Mov. Br.”). Plainti
ff has opposed this motion (ECF No.

3

4, “PUs Opp. Br.”), and Defendants have replied to that opposition (ECF No. 7, “Def.’s Reply
Br.”).
II.

LEGAL STANDARD

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.’ “Ashcroft v. Jqbal, 556 U.S. 62, 678
(2009) (citing Bell Ati. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

In determining the

sufficiency of a complaint, the Court must accept all well-pleaded factual allegations in the
complaint as true and draw all reasonable inferences in favor ofthe non-moving party. See Phillips
v. Cnty, of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). Additionally, in evaluating a plaintiffs

claims, generally “a court looks only to the facts alleged in the complaint and its attachments
without reference to other parts of the record.” Jordan v. Fox Rothschild, O’Brien & Frankel 20
F.3d 1250, 1261 (3dCir. 1994).
It not the role of the Court to determine whether the non-moving party “will ultimately
prevail” but whether that party is “entitled to offer evidence to support the claims.” United States
cx rd. Wilkins v. Lh’iited Health Grp., Inc., 659 F.3d 295, 302 (3d Cir. 2011). The Court’s analysis
is a context-specific task requiring the court “to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 663-64.

III.

DISCUSSION

A.

Plaintiff’s Defamation/Libel Claim (Count IV) is Dismissed for Failure to Comply
with the New Jersey Tort Claims Act’s Notice Requirement

Defendant seeks dismissal of Plaintiff’s tort claims for defamation/libel, arguing that
Plaintiff has not provided Defendants with a timely notice of claim as required under the New

4

Jersey Tort Claims Act (“NJTCA”). (Def.’s Mov. Br. at 5-6). The Court agrees that dismis
sal of
Count IV is warranted.
The NJTCA outlines the procedural requirements for filing a tort claim for damages agains

t

a public entity or public employee. N.J. Stat. Ann.

§ 59:8-3. Specifically, prior to filing a lawsuit,

and within ninety days after the cause of action accrues, a plaintiff is required to presen
t a written
notice of claim to the public entity or public employee. Id.

§ 59:8-8. Among other information,

the notice of claim should identify the claimant, specific information regarding the
basis of the
claim, ‘[a] general description of the injury, damage, or loss incurred so far as it may
be known at
the time of presentation of the claim,” and an amount of damages that the claimant is
seeking. Id.

§ 59:8-4. After filing the notice of claim, an employee must allow six months to pass prior to
filing her lawsuit. Id.
The Court considers Defendants’ argument that Plaintiff failed to comply with the NJTCA
in the specific context of Plaintiffs libel/defamation claim. This claim arises out
of an August 4,
2014 interoffice memorandum which “accused the {Pjlaintiff of incompetency, ineffic
iency, and
failure to perform duties.” (Compl.

¶ 45). According to Plaintiff, “the interoffice memorandum

had the effect of damaging [P]laintiffs reputation with her co-workers and her
supervisors,”
resulting in a “loss of reputation, mental anguish, emotional distress, humiliation,
embarrassment
and other damages.” (Id.

¶ 47).

Plaintiffs defamationllibel claim accrued on August 4, 2014, the date on
which the
interoffice memorandum containing allegedly libelous content was circulated.
See Churchill v.
State, 876 A.2d 311, 316 (N.J. Super. Ct. App. Div. 2005) (noting that cause
a
of action for
publication of libel accrues when the document is published). Therefore, pursua
nt to the NJTCA,
Plaintiff had ninety (90) days from the date the memorandum was circula
ted to file a notice of

5

claim. See N.J. Stat. Ann..

§ 59:8-8. Thus, in order to preserve her right to sue for defamation/libel,

Plaintiff was required to file a notice of claim prior to November 2, 2014. Plaintiff has not offered
any evidence that a notice of claim was filed prior to this date. Instead, Plaintiff maintains, and
Defendant refutes, that a February 23, 2015 letter from Plaintiff’s attorney to the Director of the
Equal Employment Opportunity Office within the State’s Department of Family Services satisfies
the notice of claim requirement. (Pl.’s Opp. Br. at 10-12; Def’s Reply Br. at 1-5). However,
because the Court finds that Plaintiff’s claim is barred for failure to file a timely notice of claim,
the Court need not consider whether the February 23, 2015 letter is compliant with the NJTCA’s
substantive notice requirements.
The NJTCA provides that, with limited exceptions not applicable here, a “claimant shall
be forever barred from recovering against a public entity or employee if.

.

.

to file the claim with the public entity within 90 days of accrual of the claim.

[t]he claimant failed
..

.“

N.J. Stat. Ann.

§ 59:8-8a. Accordingly, the Court dismisses Plaintiff’s tort claim for defamation/libel with
prejudice.

B,

Plaintiffs Retaliation Claim Under the New Jersey Law Against
Discrimination is Dismissed Pursuant to the Conscientious Employee
Protection Act’s Waiver Provision.

Defendant seeks dismissal of Plaintiff’s retaliation claim under the NJLAD, arguing that
this claim is waived by Plaintiff’s claim of a violation of the Conscientious Employee Protection
Act (“CEPA”), which bars duplicate State law actions that are based on the same set of facts as
the CEPA retaliation claim. (Def.’s Mov. Br. at 7-8). The Court agrees that Plaintiff’s NJLAD
retaliation claim is properly dismissed as waived under CEPA.
The CEPA statute was enacted in 1986 “to protect public employee who ‘blow the whistle’
on governmental organizations or employees engaged in wrongful conduct from retaliatory
6

action” Baldassare v. State of NJ, 250 F.3d 188, 202 (3d Cir. 2001)
(citing Abbamont v.
Piscataway Bd. of Educ., 650 A.2d 958, 964 (N.J. 1994)). CEPA includ
es a waiver provision

which provides, in pertinent part, that “the institution of an action in accord
ance with this act shall
be deemed a waiver of the rights and remedies available under any other
contract, collective
bargaining agreement, State law, rule or regulation or under common law.”
N.J. Stat. Ann.

§

34:1 9—8. Furthermore, the New Jersey Supreme Court has specifically
interpreted the scope of
this waiver as it applies to State law claims, stating that:
[Oince a CEPA claim is “instituted,” any rights or claims for retaliatory discharge based
on a contract of employment; collective bargaining agreement; State law,
whether its origin
is in the Legislature, the courts, the common law or rules of the court;
or regulations or
decisions based on statutory authority, are all waived. The waiver except
ion contains a list
of sources of law that may provide a bundle of rights protecting employees from
retaliatory
discharge. Parallel claims based on those rights, privileges and remedi
es are waived
because they represent multiple or duplicative claims based on retaliatory discha
rge.
Young v, Schering C’orp., 660 A.2d 1153, 1160 (N.J. 1995). In short, the
State Supreme Court

held that ‘[t]he waiver exception does not apply to those causes of action
that are substantially
independent of the CEPA claim.” Id. (emphasis added); see also See Baldas
sare,250 F.3d at 202
(holding that dismissal is appropriate where plaintiff’s state law claims
arise from the same set of
facts surrounding his CEPA retaliation claim as CEPA prohibits litigati
ng duplicative claims).
Thus, the issue before this Court is whether Plaintiff’s NJLAD
retaliation claim is
“substantially independent” of her CEPA claim.

Defendant argues that Plaintiff’s NJLAD

retaliation claim is “duplicative of Plaintiff’s retaliation claim under CEPA
.” (Def.’s Reply Br. at
8). According to Plaintiff, the separate retaliation claim under the NJLAD

is properly plead. (Pl.’s

Opp. Br, at 7-9). In support of this position, Plaintiff summarily states
that her “Complaint is
adequately plead to present NJLAD causes of action that are substan
tially independent from the
referenced CEPA claims.” (Id. at 8).

7

A review of Plaintiff’s Complaint demonstrates that Plaintiffs claims

of NJLAD retaliation

and CEPA violations are duplicative. By way of background, Plainti
ff alleges that after the EEOC
conducted an investigation into Plaintiffs complaint, [Pjlaintiff
was subjected to various forms of
retaliation.” (Compl.

¶J

13-15). The Complaint further provides that:

As a result of the EEOC complaints regarding discrimination
in the work place, [P]laintiff
has been retaliated against by her supervisors. The retaliation has
taken the form of, inter
alia, harassment, unfair treatment, receiving a higher volume
of cases (including cases that
are deemed undesirable by others) and lower than appropriate perform
ance reviews.

(Id.T 18).
In Count II, Plaintiff alleges that Defendants retaliated agains
t her in violation of the

NJLAD by assigning her undesirable cases “when [shej sought to assert
her rights under the statues
and laws under the state of New Jersey and of the United States.
” (Id.

¶ 36).

With regards to her

retaliation claim arising under CEPA, Plaintiff states that “Defen
dants violated the CEPA by
retaliating against [P]laintiff when acts of discrimination prevented
by state and federal
brought to the attention of a public body, namely the EEOC.”
(Id.

¶ 41).

statue were

Plaintiff goes onto state

that “[sjubsequent to {P]laintiff bringing to light the discrim
ination and disparate treatment of
Hispanic and Latino co-workers
retaliating against her.
occasions.” (Id.

.

.

.

workers with supervisory capacity over {P]laintiff began

The retaliation took various forms and occurred on severa
l different

¶ 42).

In short, based upon a reading of the entire Complaint, Plainti
ff alleges (with respect to
both the NJLAD and CEPA claims) that she suffered retaliat
ion as a result of filing an EEOC
complaint. Therefore, the Court agrees with Defendant
that Plaintiffs allegations of NJLAD
retaliation and CEPA violations are not “substantially indepe
ndent.”

8

Young, 660 A.2d at 1160.

Accordingly. the Court will dismiss Plaintiff’s claim for retaliation under
the NJLAD as waived
by her claim under CEPA.

IV.

CONCLUSION
For the reasons stated above, the Court grants Defendants’ motion to dismis
s Plaintiff’s

claims of defamation/libel and retaliation under the NJ LAD. An approp
riate Order accompanies
this Opinion.

IT IS SO ORDERED.

DATED: April

2016

STATES DISTRICT JUDGE

9