CORREA v. WORKING FAMILIES UNITED FOR N.J. et al

Filing 32

OPINION. Signed by Judge Esther Salas on 11/30/2017. (ek)

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

EDWARD CORREA,
Plaintiff,

Civil Action No. 16-2217 (ES) (JAD)

v.

OPINION

WORKING FAMILIES UNITED FOR N.J.,
et al.,
Defendants.

SALAS, DISTRICT JUDGE
Defendants Working Families United for N.J., New Jersey State AFL-CIO, New Jersey
State AFL-CIO Community Services Agency, and Charles Wowkanech (the “Moving
Defendants”) seek partial dismissal of Plaintiff Edward Correa’s Complaint under Federal Rule of
Civil Procedure 12(b)(6). (D.E. No. 24). Defendants Town of Dover and Mayor James P. Dodd
(together, the “Dover Defendants,” and collectively with the Moving Defendants, “Defendants”)
joined the present motion. (See D.E. No. 25). The Court has jurisdiction under 28 U.S.C. §§ 1331,
1343, and 1367(a). Having considered the submissions made in support of and in opposition to
Defendants’ motion, the Court decides this matter without oral argument. See Fed. R. Civ. P.
78(b). As set forth below, the Court GRANTS Defendants’ motion to dismiss Counts I and III.
I.

BACKGROUND1
Plaintiff. Correa resides in the Town of Dover. (D.E. No. 1 (“Compl.”) ¶ 5). As of

February 11, 2014, he was the Executive Director of Working Families United for New Jersey

The Court must accept Plaintiff’s factual allegations as true for purposes of resolving the pending motion to
dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bistrian v. Levi, 696 F.3d 352, 358 n.1 (3d Cir. 2012).
1

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(“Working Families United”). (Id. ¶¶ 14, 21). He was also the State Director of the We-Are-OneNew-Jersey project (the “One NJ Project”), a program of the New Jersey State AFL-CIO
Community Services Agency. (Id. ¶ 5). On May 13, 2015, Correa was terminated from both
positions. (Id. ¶¶ 5, 21).
Defendants. Correa asserts claims against six defendants: Working Families United, the
New Jersey State AFL-CIO, the New Jersey AFL-CIO Community Services Agency, Charles
Wowkanech, Town of Dover, and Mayor Dodd. (See Compl. at 1).
Working Families United is a New Jersey private entity and Correa’s former employer.
(Id. ¶¶ 5-6). At all relevant times, Wowkanech was President of the New Jersey State AFL-CIO
(the parent entity, funder, and Trustee of the Board of Working Families United). (Id. ¶¶ 7, 9).
Wowkanech was also President of the New Jersey AFL-CIO Community Services Agency, the
fiscal agent and funder of the One NJ Project. (Id. ¶¶ 8-9). Correa resides in Dover, where Mayor
Dodd serves as mayor. (Id. ¶¶ 5, 10).
Facts. On May 12, 2015, Correa spoke during the “public comments portion” of a Dover
town hall meeting and criticized Mayor Dodd’s relationship with Dover’s immigrant community.
(Id. ¶ 15). At the time, Correa was serving as the Executive Director of Working Families United
and State Director of the One NJ Project. (Id. ¶ 5). Correa alleges, however, that he spoke as a
Dover resident and taxpayer and “not in his official capacity” as either the Executive Director of
Working Families United, State Director of the One NJ Project, or representative of any other
organization. (Id. ¶ 15).
Minutes after Correa’s speech, Wowkanech called Correa to inform him that Mayor Dodd
had “made a complaint” about what Correa said. (Id. ¶ 16). Wowkanech explained that Mayor
Dodd “was not happy” with Correa’s “behavior” and that the Mayor “did not want to see him at

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the . . . Board of Aldermen meetings or stepped [sic] into Town Hall.” (Id. ¶ 17). Wowkanech
then asked Correa to resign. (Id. ¶ 18).
The following day, on May 13, 2015, Wowkanech “stated that [Correa] had a choice of
resigning, being terminated, or apologizing” to Mayor Dodd. (Id. ¶ 19). Correa responded in a
letter to Wowkanech that “he would not resign or apologize” to the Mayor. (Id. ¶ 20). Wowkanech
and the New Jersey State AFL-CIO then terminated Correa from his positions on the same day.
(Id. ¶ 21).
Causes of Action. On April 20, 2016, Correa filed a four-count Complaint alleging
retaliatory discharge against the Moving Defendants (“Count I”); tortious interference with
economic advantage against the Dover Defendants (“Count II”); breach of contract against the
Moving Defendants (Count III); and violation of 42 U.S.C. § 1983 through suppression of his First
Amendment rights against the Dover Defendants (“Count IV”). (Id. ¶¶ 22-40).
Procedural History. Shortly after Correa initiated this action, the Moving Defendants filed
a first motion to dismiss Counts I and III for failure to state a claim. (D.E. No. 5). After the parties
briefed the Moving Defendants’ motion, Magistrate Judge Dickson entered a Text Order (i)
directing the parties to exchange written discovery “on the limited issue of whether Plaintiff had
an employment agreement”; and (ii) administratively terminating the Moving Defendants’ motion
without prejudice to their right to re-file that motion after completion of the limited discovery.
(D.E. No. 19).
Following the exchange of limited discovery, the Moving Defendants filed a second motion
to dismiss Counts I and III for failure to state a claim. (D.E. No. 24-4 (“Def. Mov. Br.”)). That
motion is presently before the Court. Correa opposed the Moving Defendants’ motion (D.E. No.
27 (“Pl. Opp. Br.”)), and the Moving Defendants replied (D.E. No. 29 (“Def. Reply Br.”)).

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On the same day the Moving Defendants filed their motion, the Dover Defendants
submitted a letter indicating they “hereby join[] in the motion filed by the [Moving Defendants].”
(D.E. No. 25). The Dover Defendants’ letter states:
The plaintiff’s allegations against [the Dover Defendants] are that Mayor Dodd
improperly interfered in the employment relationship between the plaintiff and the
co-defendant. Plaintiff further alleges that the actions of [the Dover Defendants] in
that regard, violated his civil rights. While [the Dover Defendants] vehemently
den[y] those allegations, it is axiomatic that if no employment relationship existed
between plaintiff and co-defendant, then the claims asserted by plaintiff against [the
Dover Defendants] must also fail.
(Id.). The Dover Defendants cite no law in their letter. Plaintiff filed a response to the Dover
Defendants’ letter directed primarily to the merits of the Dover Defendants’ legal assertions. (See
D.E. No. 28).
Although the Dover Defendants seek to join the Moving Defendants’ 12(b)(6) motion to
dismiss Counts I and III, they also appear to seek dismissal of Count II, which alleges tortious
interference with economic advantage. Because the Dover Defendants have already answered the
Complaint (D.E. No. 6), their request presumably falls under Federal Rule of Civil Procedure
12(c). But the Dover Defendants have not complied with this District’s Local Rules governing
motion practice. (See, e.g., Local Civil Rules 7.1 & 7.2). Accordingly, if the Dover Defendants
wish to seek dismissal of certain counts of Plaintiff’s Complaint, they must do so in accordance
with this District’s Local Rules and the Federal Rules of Civil Procedure.
II.

LEGAL STANDARD
To withstand a motion to dismiss, “a complaint 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 678.2
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

2

Unless otherwise indicated, all internal citations and quotation marks are omitted, and all emphasis is added.

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draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “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.
“When reviewing a motion to dismiss, ‘[a]ll allegations in the complaint must be accepted
as true, and the plaintiff must be given the benefit of every favorable inference to be drawn
therefrom.’” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). But the court is not required
to accept as true “legal conclusions.” Iqbal, 556 U.S. at 678. And “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
Finally, “[i]n deciding a Rule 12(b)(6) motion, a court must consider only the complaint,
exhibits attached to the complaint, 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. 2010); see also Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d
Cir. 2006) (“In evaluating a motion to dismiss, we may consider documents that are attached to or
submitted with the complaint, and any matters incorporated by reference or integral to the claim,
items subject to judicial notice, matters of public record, orders, and items appearing in the record
of the case.”).
III.

DISCUSSION
A. Count I: Retaliatory Discharge
i. The Parties’ Arguments
Defendants argue that Correa’s retaliatory-discharge claim “appears to hinge on his

assertion that his employer terminated his employment based upon the exercise of his free speech
rights under the First Amendment of the United States Constitution and/or its state counterpart.”
(Def. Mov. Br. at 8). Defendants contend that such a claim requires government action and cannot

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be asserted against private employers. (Id.). And because each of the Moving Defendants are
private actors, Defendants seek dismissal of Count I with prejudice. (Id. at 19).
Defendants also argue that Correa cannot rely on Pierce v. Ortho Pharm. Corp., a New
Jersey Supreme Court case that held an at-will employee may sustain a claim for wrongful
termination if he or she shows that the discharge was “contrary to a clear mandate of public policy,”
417 A.2d 505, 512 (N.J. 1980). (See Def. Mov. Br. at 9-10). Defendants spend much of their brief
addressing the Third Circuit’s decision in Novosel v. Nationwide Ins. Co., which analyzed
Pennsylvania law and found that, for purposes of a Pierce claim, “a cognizable expression of
public policy may be derived . . . from either the First Amendment of the United States Constitution
or Article I, Section 7 of the Pennsylvania Constitution,” 721 F.2d 894, 899 (3d Cir. 1983). (See
Def. Mov. Br. at 10-14, 19).
Defendants submit that, since Novosel, “the Supreme Court of Pennsylvania has
disapproved of Novosel’s interpretation of its constitution.” (Id. at 12-13) (citing Paul v. Lankenau
Hosp., 569 A.2d 346 (1990)). Defendants also note that “the Third Circuit has explicitly retreated
from Novosel’s interpretation of Pennsylvania’s Constitution.” (Id. at 13) (citing Borse v. Piece
Goods Shop, Inc., 963 F.2d 611 (3d Cir. 1992)). Finally, Defendants contend that “the prevailing
view among the majority of courts addressing the issue is that state or federal constitutional free
speech cannot, in the absence of state action, be the basis of a public policy exception in wrongful
discharge claims.” (Id.) (citing Tiernan v. Charleston Area Med. Ctr., Inc., 506 S.E.2d 578, 58791 (W. Va. 1998); Johnson v. Mayo Yarns, Inc., 484 S.E.2d 840 (N.C. Ct. App. 1997); Drake v.
Cheyenne Newspapers, Inc., 891 P.2d 80 (Wyo. 1995); Albertson’s, Inc. v. Ortiz, 856 S.W.2d 836
(Tex. App. 1993); Shovelin v. Central N.M. Elec. Coop. Inc., 850 P.2d 996 (N.M. 1993); Prysak
v. R.L. Polk Co., 483 N.W.2d 629 (Mich. Ct. App. 1992); Booth v. McDonnell Douglas Truck

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Serv., Inc., 585 A.2d 24 (Pa. Super. Ct. 1991); Korb v. Raytheon Corp., 574 N.E.2d 370 (Mass.
1991); Barr v. Kelso-Burnett Co., 478 N.E.2d 1354 (Ill. 1985); Gil v. Metal Serv. Corp., 412 So.
2d 706 (La. Ct. App. 1982), writ denied, 414 So. 2d 379 (La. 1982); Chin v. AT&T, 410 N.Y.S.2d
737 (N.Y. Sup. Ct. 1978).
In opposition, Correa argues that he has a valid Pierce claim because he was terminated in
violation of a clear mandate of public policy. (Pl. Br. at 5).3 In particular, Correa contends that
“[t]his matter is not just about Freedom of Speech but the violation of public policy to be free from
a harassing environment.” (Id.). Plaintiff primarily relies on Novosel and analyzes that case’s
four-part inquiry for determining “the sufficiency of the claim in regard to protected speech.” (Id.
at 6).
ii. Analysis
Under Pierce, an “employee has a cause of action for wrongful discharge when the
discharge is contrary to a clear mandate of public policy.” 417 A.2d at 512. “Sources of public
policy include the United States and New Jersey Constitutions; federal and state laws and
administrative rules, regulations, and decisions; the common law and specific judicial decisions;
and in certain cases, professional codes of ethics.” MacDougall v. Weichert, 677 A.2d 162, 167
(N.J. 1996). “A basic requirement of the wrongful discharge cause of action is that the mandate
of public policy be clearly identified and firmly grounded.” Id. On the other hand, a “vague,
controversial, unsettled, and otherwise problematic public policy does not constitute a clear
mandate,” and “[i]ts alleged violation will not sustain a wrongful discharge cause of action.” Id.

Plaintiff’s opposition brief does not include page numbers, so the Court will use the ECF-generated page
numbers in that document’s header to refer to pages therein.
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To state a valid Pierce claim, a plaintiff “must identify the clear mandate of public policy
allegedly violated by the employee’s discharge.” Roman v. AXA Advisors, LLC, No. 16-2863,
2017 WL 2381280, at *2 (D.N.J. June 1, 2017). “If an employee does not point to a clear
expression of public policy the court can grant a motion to dismiss or for summary judgment.”
Pierce, 417 A.2d at 513.
In Count I, Correa alleges that he “engaged in a protected activity of speech, he was
discharged after the speech was made, and there was a causal link between the protected activity
and the loss of his job.” (Compl. ¶ 23). Correa appears to base his claim on the United States
Constitution and the New Jersey Constitution. (See id. at 2) (generally alleging violations of “First
Amendment Rights” and the “New Jersey Constitution”). Although Correa does not explicitly
link his Pierce claim to a specific source of public policy, Defendants’ motion proceeds under the
assumption that Correa’s Pierce claim is “based upon the exercise of his free speech rights under
the First Amendment of the United States Constitution and/or its state counterpart.” (Def. Mov.
Br. at 8). Correa’s opposition appears to confirm this inference. (See Pl. Opp. Br. at 5). Thus, the
Court will analyze Correa’s Pierce claim as it relates to the First Amendment of the United States
Constitution and Article 1, ¶ 6 of the New Jersey Constitution.4
The parties do not cite any New Jersey case that addresses whether a private employee may
base a Pierce claim on a private actor’s alleged interference with the employee’s freedom of
speech. This Court’s independent research suggests no such case exists. See, e.g., Pietrylo v.

Correa also argues in his opposition brief that his termination violated a “policy to be free from a harassing
environment.” (Pl. Opp. Br. at 5). Correa’s Complaint, however, does not allege any such violation. “It is axiomatic
that the complaint may not be amended by the briefs in opposition to a motion to dismiss.” Pa. ex. rel. Zimmerman
v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988). Consequently, the Court will dismiss without prejudice Correa’s
Pierce claim to the extent it is based on Defendants’ alleged violation of a policy to be free from a harassing
environment. See Pierce, 417 A.2d at 513 (“If an employee does not point to a clear expression of public policy, the
court can grant a motion to dismiss or for summary judgment.”). Correa may amend his Complaint to assert such a
claim if appropriate.
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Hillstone Restaurant Grp., No. 06-5754, at *5 (D.N.J. July 25, 2008) (“New Jersey state courts
have not addressed whether or not a private employee may base a wrongful termination claim
based on alleged interference with freedom of speech as protected by the New Jersey
Constitution.”); Wiegand v. Motiva Enters., LLC, 295 F. Supp. 2d 465, 473-74 (D.N.J. 2003) (“The
issue regarding whether a wrongful termination claim against a private actor can be based on a
First Amendment constitutional claim, when First Amendment claims must themselves be based
on state action, is one that New Jersey courts have not addressed.”).
The precise question before the Court is whether the First Amendment of the United States
Constitution or Article I, ¶ 6 of the New Jersey Constitution “reflect a clear mandate of public
policy that prohibits” Correa’s termination. See MacDougall, 677 A.2d at 168. Defendants’
primary argument is that Correa cannot rely on constitutional free-speech protections where there
is no government involvement. As a general matter, Defendants are correct. “Under the United
States Constitution, the First Amendment protections for freedom of speech are directed only to
state action, not to private action.” Pietrylo, 2008 WL 6085437, at *5 (citing Am. Mfrs. Mut. Ins.
Co. v. Sullivan, 526 U.S. 40, 49-60 (1999)). And with certain limited exceptions not applicable
here,5 “the protections of Article I ¶ 6 of the New Jersey Constitution mirror those of the First
Amendment, and the New Jersey Supreme Court relies on federal constitutional principles in
interpreting its own constitution’s free speech provisions.” Sunkett v. Misci, 183 F. Supp. 2d 691,
708 (D.N.J. 2002). Thus, the Court concludes that Correa’s termination cannot violate the First
Amendment of the United States Constitution or Article I, ¶ 6 of the New Jersey Constitution
because neither provision protects against private action in this context.

“Two exceptions to the general rule . . . are political expressions at privately-owned-and-operated shopping
malls, New Jersey Coalition v. J.M.B., 138 N.J. 326, 650 A.2d 757 (1994), and defamation, Sisler v. Gannett Co., 104
N.J. 256, 271, 516 A.2d 1083 (1986).” Hamilton Amusement Center v. Verniero, 716 A.2d 1137, 1142 (N.J. 1998).
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Although this issue appears to be one of first impression in New Jersey, other district courts
have precluded a private employee’s Pierce claim based on a private employer’s alleged
infringement of free speech. See, e.g., George v. Lab. Corp. of Am. Holdings, 522 F. Supp. 2d
761, 763-64 (N.D.W. Va. 2007) (“George’s argument to extend First Amendment protections to
employees in the private sector is unpersuasive; this Court, therefore, declines to extend the law in
such direction at this time.”); Petrovski v. Fed. Express. Corp., 210 F. Supp. 2d 943, 948 (N.D.
Ohio 2002) (observing that the “prevailing view among the majority of courts addressing the issue
is that state or federal constitutional free speech cannot, in the absence of state action, be the basis
of a public policy exception in wrongful discharge claims”) (collecting cases and secondary
sources). Thus, this Court’s conclusion that Correa cannot state a Pierce claim based on private
employers’ alleged infringement of his constitutional free-speech rights appears to align with the
district courts that have addressed this issue.
Plaintiff’s reliance on Novosel v. Nationwide Ins. Co. is misplaced for the following
reasons.

First, that decision analyzed the propriety of the plaintiff’s Pierce claim under

Pennsylvania law, see Novosel, 721 F.2d 894, 895 (3d Cir. 1983), whereas Correa’s Pierce claim
is based on New Jersey law. Second, as Defendants correctly argue (see, e.g., Def. Mov. Br. at
12-14), the Third Circuit has declined to extend Novosel and has even cast doubt on the propriety
of the holding based on later developments in Pennsylvania law. See Borse, 963 F.2d at 620 (“In
light of the narrowness of the public policy exception and of the Pennsylvania courts’ continuing
insistence upon the state action requirement, we predict that if faced with the issue, the
Pennsylvania Supreme Court would not look to the First and Fourth Amendments as sources of
public policy when there is no state action.”). Indeed, since Novosel, “Pennsylvania courts have
not followed Novosel and have not permitted a wrongful discharge cause of action under a

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constitutional provision absent a showing of state action.” Wiegand, 295 F. Supp. 2d at 474 n.11
(citing Veno v. Meredith, 357 Pa. Super. 85, 515 A.2d 571 (1986); Martin v. Capital Cities Media,
Inc., 354 Pa. Super. 199, 511 A.2d 830, 843-44 (1986)). Third, Novosel is a case about forced
political speech, whereas here, Correa alleges retaliatory discharge based on his voluntarily public
criticism of Mayor Dodd, (see, e.g., Compl. ¶¶ 15-21). See Brennan v. Cephalon, Inc., No. 043241, 2005 WL 2807195, at *17 (D.N.J. Oct. 25, 2005) (“Here, Plaintiff does not allege that he
was fired based on forced political speech. Therefore, Novosel cannot be the basis for his claim
for wrongful discharge based on exercising his rights to free speech . . . .”). Thus, this Court
concludes that “the Novosel decision does not control here, and, if anything, the later decision in
Borse supports [D]efendants’ reading of the public policy exception.” Wiegand, 295 F. Supp. 2d
at 474 n.11.
For the foregoing reasons, the Court will grant with prejudice Defendants’ motion to
dismiss Count I of Correa’s Complaint to the extent it is based on constitutional free-speech
protections.
B. Count III: Breach of Contract
In Count III, Correa alleges that the Moving Defendants breached “a binding employment
agreement” with him by terminating him “without proper cause.” (Compl. ¶¶ 31-34). Correa’s
Complaint does not identify any employment agreement specifically, but rather generally alleges
that a “binding employment contract existed” between Correa and the Moving Defendants.
(Id. ¶ 27).
Correa’s opposition, however, attaches an Employment Manual purportedly issued by
Defendant New Jersey State AFL-CIO.

(See D.E. No. 27-3).

The Employment Manual

presumably surfaced during the parties’ limited discovery ordered by Magistrate Judge Dickson.

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Correa argues in his opposition brief that the Employment Manual constituted an implied contract
with Working Families United. (See Pl. Opp. Br. at 8-9). Correa’s opposition brief makes no
other arguments about any employment agreements with Defendants. (See generally id. at 8-10).
In effect, Correa’s opposition brief is tantamount to a constructive amendment of his Complaint,
and it is “axiomatic that the complaint may not be amended by the briefs in opposition to a motion
to dismiss,” Pa. ex. rel. Zimmerman, 836 F.2d at 181.
Because Correa’s Complaint is silent with respect to the Employment Manual and does not
otherwise allege sufficient facts to state a claim for breach of contract, the Court will grant
Defendants’ motion to dismiss Count III. But the Court will permit Correa to amend his Complaint
to include, among other things, allegations about the Employment Manual. See Phillips v. Cty. of
Allegheny, 515 F.3d 224, 236 (3d Cir. 2008) (“[I]f a complaint is vulnerable to 12(b)(6) dismissal,
a district court must permit a curative amendment, unless an amendment would be inequitable or
futile.”); Foman v. Davis, 371 U.S. 178, 182 (1962) (“[T]he grant or denial of an opportunity to
amend is within the discretion of the District Court.”). The Court finds that amendment here is in
the interests of justice, efficiency, and judicial economy, especially since the Court will permit
Correa to amend Count I to the extent he can state a valid Pierce claim based on a “policy to be
free from a harassing environment,” (Pl. Opp. Br. at 5).
IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss Counts I

and III. Count I is dismissed with prejudice to the extent it is based on constitutional free-speech
protections. Count I is dismissed without prejudice to the extent it is based on a policy to be free
from a harassing environment. Count III is dismissed without prejudice.

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An appropriate Order accompanies this Opinion. Correa may amend his Complaint within
thirty days of the Order.
s/Esther Salas
Esther Salas, U.S.D.J.

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