CORREA v. WORKING FAMILIES UNITED FOR N.J. et al
Filing
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OPINION. Signed by Judge Esther Salas on 9/18/2018. (JB, )
Not for Publication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
Before the Court is Defendants Working Families United for New Jersey (“Working
Families”), New Jersey State AFL-CIO (“NJ AFL-CIO”), New Jersey State AFL-CIO Community
Services Agency (“NJ AFL-CIO Community Services Agency”), and Charles Wowkanech’s
(collectively, the “Moving Defendants”) motion to dismiss Counts I and III of Plaintiff Edward
Correa’s Amended Complaint under Federal Rule of Civil Procedure 12(b)(6). (D.E. No. 41). 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 the Moving Defendants’ motion, the Court
decides the matter without oral argument. See Fed. R. Civ. P. 78(b). As set forth below, the Court
GRANTS the Moving Defendants’ motion to dismiss. Counts I and III are dismissed with
prejudice.
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I.
Background1
A. The Parties
Correa is a Hispanic resident of Dover, New Jersey. (D.E. No. 37 (“Am. Compl.”) ¶ 4).
On February 11, 2014, he became the Executive Director of Working Families. (Id. ¶ 13). He
was also the State Director of the We Are One New Jersey project (the “One NJ Project”), a
program of the NJ AFL-CIO Community Services Agency. (Id. ¶ 4).
Correa asserts claims against six defendants: Working Families, the NJ AFL-CIO, the NJ
AFL-CIO Community Services Agency, Charles Wowkanech, the Town of Dover, and Dover’s
Mayor, James P. Dodd. (See id. at 1).2 Working Families is a New Jersey private entity and
Correa’s former employer. (Id. ¶ 5). At all relevant times, Wowkanech was President of the NJ
AFL-CIO (the parent entity, funder, and Trustee of the Board of Working Families). (Id. ¶ 8).
Wowkanech was also President of the Board of Trustees of the NJ AFL-CIO Community Services
Agency, the fiscal agent and funder of the One NJ Project. (Id. ¶¶ 7-8).
B. Factual Background
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 Hispanic immigrant
community. (Id. ¶ 14). Correa was then serving as the Executive Director of Working Families
and State Director of the One NJ Project. (Id. ¶ 4). 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, State Director of the One NJ Project, or representative of any other
organization. (Id. ¶ 14).
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).
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Plaintiff also names John Doe 1-5 and ABC Corp. 1-5 as defendants.
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Minutes after Correa’s speech, Wowkanech called Correa to inform him that Mayor Dodd
had “made a complaint” about what Correa said. (Id. ¶ 15). Wowkanech explained that Mayor
Dodd “was not happy” with Correa’s “behavior” and that the Mayor “did not want to see him at
the . . . Board of Aldermen meetings or stepped [sic] into Town Hall.” (Id. ¶ 16). Wowkanech
then asked Correa to resign. (Id. ¶ 17).
The next day, Wowkanech “stated that [Correa] had a choice of resigning, being
terminated, or apologizing” to Mayor Dodd. (Id. ¶ 18). Correa responded in a letter to Wowkanech
that “he would not resign or apologize” to the Mayor. (Id. ¶ 19). Wowkanech and the NJ AFLCIO then terminated Correa from his positions as the Executive Director of Working Families and
State Director of the One NJ Project. (Id. ¶ 20).
C. Procedural History
Correa filed an initial Complaint on April 20, 2016. (D.E. No. 1). Following dispositive
motion practice, the Court (i) dismissed with prejudice Count I (Retaliatory Discharge) to the
extent the claim was based on constitutional free-speech protections; and (ii) dismissed without
prejudice Count III (Breach of Contract) because Correa did not reference or attach the
employment manual on which his claim was based. (See D.E. Nos. 32 & 33).
On January 8, 2018, Correa filed an Amended Complaint alleging retaliatory discharge
because he “was discharged from his position based on his affiliation with the Hispanic immigrant
community which was revealed in his speech, and he was terminated due to that affiliation and his
race which was Hispanic.” (Am. Compl. ¶ 22). Correa renewed Counts II, III, and IV. (See id.
¶¶ 21-42).
Defendants Working Families, NJ AFL-CIO, NJ AFL-CIO Community Services Agency,
and Wowkanech moved to dismiss Correa’s Amended Complaint on February 8, 2018. (D.E. No.
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41-4 (“Defs. Mov. Br.”)). Correa opposed the Moving Defendants’ motion on March 6, 2018.
(D.E. No. 43 (“Pl. Opp. Br.”)). The Moving Defendants replied in further support of their motion
on March 14, 2018. (D.E. No. 46 (“Defs. Reply”)). The motion is now ripe for adjudication.
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 678.3 “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.” 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,
3
Unless otherwise indicated, all internal citations and quotation marks are omitted, and all emphasis is added.
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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 Under the NJLAD
1. Law
Under the New Jersey Law Against Discrimination (the “NJLAD”), an employer may not
retaliate against an employee because that employee “has opposed any practices or acts forbidden
under [the NJLAD] or because that person has . . . filed a complaint, testified or assisted in any
proceeding under [the NJLAD] . . . .” N.J.S.A. § 10:5-12(d); see Cortes v. Univ. of Med. &
Dentistry of N.J., 391 F. Supp. 2d 298, 314 (D.N.J. 2005). To state a claim for retaliatory discharge
under the NJLAD, a plaintiff must show: (i) that he “engaged in a protected activity,” (ii) that he
“suffered an adverse employment action,” and (iii) that “there was a causal connection between
the protected activity and the adverse employment action.” Nuness v. Simon and Schuster, Inc.,
221 F. Supp. 3d 596, 605 (D.N.J. 2016) (citing Sanchez v. SunGard Availability Servs. LP, 362
Fed. App’x. 283, 287 (3d Cir. 2010)). In addition, “the plaintiff bears the burden of proving that
his or her original complaint—the one that allegedly triggered his or her employer’s retaliation—
was made reasonably and in good faith.” Carmona v. Resorts Int’l Hotel, Inc., 915 A.2d 518, 521
(2007).
2. The Parties’ Arguments
Correa’s retaliatory-discharge claim under the NJLAD4 stems from his termination after
speaking out “about immigration issues in the Town of Dover.” (Am. Compl. ¶¶ 21–24). Correa
Count I of Correa’s Amended Complaint does not explicitly reference the NJLAD. But the introduction of
the Amended Complaint references the NJLAD as a theory of liability, and Count I recites the elements of a retaliatory
discharge claim under the NJLAD. (See Am. Compl. at 1-6).
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argues that the following three allegations satisfy the pleading standard for a retaliatory-discharge
claim under the NJLAD. (Id.). First, Correa alleges that his speech at the Dover Town Hall
meeting, which he claims revealed “his affiliation with the Hispanic immigrant community” and
his membership to “a protected minority class,” was protected activity for purposes of the statute.
(Id. ¶ 22). Second, Correa alleges that he suffered an adverse employment action because he “was
discharged from his position.” (Id.). Third, Correa alleges that there was “a causal link between
his race and the loss of his job” when “he was terminated due to that affiliation [with the Hispanic
immigrant community] and his race which was Hispanic.” (Id.).
In their moving brief, the Moving Defendants argue that Correa failed to plead a prima
facie discrimination claim under the NJLAD. (Defs. Mov. Brief at 18–19). Although Count I is
labeled as a retaliatory-discharge claim and references the elements of a retaliatory-discharge
claim, it also contains allegations directed to some of the elements of a discrimination claim under
the NJLAD. (See Am. Compl. ¶ 22). For example, Correa alleges that he is a member of a
“protected minority class.”5 (Id.). Correa’s Amended Complaint does not, however, sufficiently
identify discrimination under the NJLAD as a cause of action, and as a result this Court will not
address it.6
On reply, the Moving Defendants acknowledge that the Amended Complaint contains
allegations directed to a retaliation claim under the NJLAD. (Defs. Reply at 6–9). The Moving
Defendants argue that because the content of Correa’s speech did not “concern workplace
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In the context of the NJLAD, this element is unique to claims for discrimination, which require a showing
that the plaintiff was a member of a protected class. Tourtellote v. Eli Lilly and Co., 636 Fed. App’x. 831, 842 (3d
Cir. 2016). A claim for retaliatory discharge does not require a plaintiff to show that he was a member of a protected
class. See Nuness, 221 F. Supp. 3d at 605.
Even if Correa’s Amended Complaint does sufficiently allege a claim for discrimination under the NJLAD,
the claim is deficient because Correa never alleges that he “was qualified for the position in question” or that the
“adverse employment action gives rise to an inference of unlawful discrimination.” Tourtellote, 636 Fed. App’x. at
842.
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discrimination” and instead concerned “Mayor Dodd’s relationship with the Hispanic
community,” Correa’s Town Hall speech was not a protected activity. (Id. at 9). They contend
that Correa never “reference[ed] his employment with any of the Defendants or a belief that he
was being discriminated against by any of the Defendants” during his Town Hall speech. (Id.).
Neither party disputes that Correa has satisfied the second and third elements of a
retaliatory-discharge claim: that he “suffered an adverse employment action” or “that there was a
causal connection between the [alleged] protected activity and the adverse employment action.”
See Nuness, 221 F. Supp. 3d at 605 (citing Sanchez, 362 Fed. App’x. at 287). So, the Court will
focus its analysis on the central remaining issue: whether Correa’s speech at the Town Hall
meeting constituted protected activity under the NJLAD.
3. Analysis
The Court is not persuaded that Correa’s speech at the Dover Town Hall meeting
constituted protected activity under the NJLAD. Courts in this District have made clear that the
“NJLAD prohibits employment discrimination and retaliation against an employee for opposing a
discriminatory practice which is based upon race, color, sex, religion, national origin, or a number
of other listed factors.” Chambers v. Heidelberg USA, Inc., No. 04-0583, 2006 WL 1281308, at
*10 (D.N.J. May 5, 2006); see N.J.S.A. § 10:5-12(d). “Therefore, in order to have engaged in a
protected activity under . . . the NJLAD, [a plaintiff] . . . must show that his complaints about the
[defendant’s] . . . conduct amounted to allegations of discrimination on the basis of race, color,
sex, religion, national origin, or some other statutorily enumerated basis.” Chambers, 2006 WL
1281308, at *10; see Ogunbayo v. Hertz Corp., 542 F. App’x. 105, 107 (3d Cir. 2013) (“[O]nly
challenges to discrimination prohibited by the NJLAD—such as discrimination on the basis of
race, age, or gender—constitute ‘protected activity.’”) (citation omitted).
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In contrast, speech that is unrelated to an individual’s employment “is not in itself a
protected activity” under the NJLAD’s antiretaliation provision. See Maddox v. City of Newark,
50 F. Supp. 3d 606, 623 (D.N.J. 2014). Confusingly, Correa alleges that his speech during the
Town Hall meeting was protected because “he was in a protected minority class which was
Hispanic” and his speech revealed “his affiliation with the Hispanic immigrant community.” (Am.
Compl. ¶ 22). But this allegation does not concern an unlawful employment practice by his
employer, which the NJLAD requires.
Although the NJLAD prohibits “any person to take reprisals against any person because
that person has opposed any practices or acts forbidden under this act,” Correa has never alleged
that his employer took reprisals against him for attempting to enforce any provision of the NJLAD.
See N.J.S.A. § 10:5-12(d). In fact, Correa’s termination predates the filing of his suit. (See
generally Am. Compl.). For example, if an employee was terminated after voicing concerns about
discrimination in the workplace, the employee could have a basis to seek relief under the NJLAD’s
retaliatory-discharge provision. See, e.g., Chambers, 2005 WL 1281308, at *10; Woodson v. Scott
Paper Co., 109 F.3d 913, 920 (3d Cir. 1997).
Rather, Correa merely alleges that his speech, which was critical of the Mayor, was
protected activity because “he spoke out about immigration issues in . . . Dover based on his
experiences as an Hispanic man.” (Am. Compl. ¶ 23). The content of Correa’s speech at the Town
Hall meeting is not a type of protected activity that the NJLAD recognizes. Heidelberg USA, Inc.,
at 10 (D.N.J. May 5, 2006). Correa was not speaking to his employer, was not speaking about the
work conditions of his employment, and was not airing any grievances he may have had regarding
his employment. (Am. Compl. ¶ 22). Thus, the content of Correa’s speech at the Town Hall
meeting, which expressed his personal views about the Mayor’s shortcomings with the Hispanic
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community in Dover, is not a type of protected activity the NJLAD recognizes. Maddox, 50 F.
Supp. 3d at 623 (D.N.J. 2014). Correa’s prima facie retaliatory discharge claim fails as a result of
insufficiently pleading that his speech was a type of protected activity under the NJLAD.
For the foregoing reasons, the Court will grant Defendants’ motion to dismiss Count I of
Correa’s Amended Complaint. Because this is Correa’s second bite at the apple and amendment
would be futile, Count I is dismissed with prejudice.
B. Count III: Breach of Contract
1. Law
Under New Jersey law, “an employment manual providing terms and conditions of
employment that includes grounds and procedures for dismissal can create an employment
contract.” Doll v. Port Authority Trans-Hudson Corp., 92 F. Supp. 2d 416, 422 (D.N.J. 2000).
“To determine whether a contract can be implied from statements published in an employee
handbook, [courts] consider the reasonable expectations of the employees.” Delgado v. Raritan
Bay Medical Ctr., 624 Fed. App’x. 812, 813 (3d Cir. 2015) (citing Witkowski v. Thomas J. Lipton,
Inc., 643 A.2d 546, 550 (1994); Woolley v. Hoffmann–La Roche, 491 A.2d 1257, 1264 (1985)).
“To do this, [courts] must examine the definiteness and comprehensiveness of the policies as well
as the context of the manual’s preparation and distribution.” Id. (citing Witkowski, 643 A.2d at
550).
“A company, however, may prevent an employment guide from creating an
implied contract by including a clear and prominent disclaimer.” Id. (citing Woolley, 491 A.2d at
1258; Nicosia v. Wakefern Food Corp., 136 N.J. 401, 643 (1994)).
2. The Parties’ Arguments
In Count III, Correa alleges that the Moving Defendants breached “a binding employment
agreement” with him by terminating him “without proper cause.” (Am. Compl. ¶ 35). Correa
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alleges that there is a discrimination policy in the Employee Handbook provided to him “at the
beginning of his employment.” (Id. ¶ 31). Thus, Correa alleges that he was terminated without
proper cause when he was terminated due to his race and affiliation with the Hispanic community.
(Id. ¶¶ 33-35).
The Moving Defendants contend that the employer, Working Families, “did not have an
Employee Handbook.” (Defs. Mov. Br. at 21). Correa has not produced the Employee Handbook
that his Amended Complaint references. The Moving Defendants have provided the “only
handbook [Correa] may be referring to,” which is the NJ AFL-CIO’s Employee Policy Manual
(the “Manual”).7 (Id. at 24; D.E. No. 41-2, Certification of Charles Wowkanech (“Wowkanech
Cert.”), Ex. A). The Moving Defendants argue that the “Manual did not apply to [Correa] because
he did not work for that entity.” (Defs. Mov. Br. at 4).
The Moving Defendants also contend that, even if the Manual did apply to Correa, “the
Manual contained sufficient disclaimer language to not deem it an employee contract.” (Id.).
According to the Moving Defendants, the Manual’s first substantive page contains a “prominent
disclaimer bolded, highlighted and in capital letters advising the reader that the Manual does not
create an employment contract or modify the right of the employer to terminate the employee at
any time.” (Id. at 24). In opposition, Correa alleges that the disclaimer “did not notify [him] that
he was an at will employee.” (Pl. Opp. Br. at 9).
3. Analysis
The Court concludes that Correa has failed to state a breach-of-contract claim because he
appears to have been an at-will employee, and the only Employee Manual identified by either party
“In evaluating a motion to dismiss, [courts] 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.” Buck, 452 F.3d at 260.
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did not contain an implied contract of employment. Indeed, on the first substantive page of the
Manual, the disclaimer states in bold, capitalized font:
THE INFORMATION CONTAINED IN THIS MANUAL GENERALLY
DESCRIBES THE PERSONNEL POLICIES AND PROCEDURES THAT
GOVERN THE EMPLOYMENT RELATIONSHIP BETWEEN THE NJ AFLCIO AND ITS EMPLOYEES. IT IS NOT A CONTRACT . . . . THIS IS
CERTIFY [SIC] I HAVE BEEN INFORMED AND UNDERSTAND THAT THE
NJ AFL-CIO EMPLOYER INFORMATION MANUAL IS NOT A BINDING
CONTRACT, EITHER EXPRESS OR IMPLIED, GUARANTEEING
EMPLOYMENT FOR ANY SPECIFIC DURATION. BUT IT IS A SET OF
GUIDELINES . . . . I ALSO UNDERSTAND, NOTWITHSTANDING ANY
OF THE PROVISONS OF THIS MANUAL, I AM EMPLOYED ON AN ATWILL BASIS. MY EMPLOYMENT MAY BE TERMINATED AT ANY TIME,
EITHER BY ME OR BY THE NJ AFL-CIO, WITH OR WITHOUT CAUSE. I
RECOGNIZE CHANGES IN THESE POLICIES WILL IN NO WAY ALTER
THE “AT-WILL” NATURE OF MY EMPLOYMENT.
(Wowkanech Cert., Ex. A) (emphasis added).
Correa unsuccessfully attempts to convert his at-will employment into something more,
despite his own allegations and the record showing otherwise. (See Pl. Opp. Br. at 9). The NJ
AFL-CIO provided a “clear and prominent disclaimer” in the Manual to avoid the precise implied
contract claim that Correa alleges. See Delgado, 624 Fed. App’x. at 813 (citing Woolley, 491 A.2d
at 1258; Nicosia, at 643). Further, Correa has failed to produce any Employee Handbook or
Manual which he alleges created an implied contract between him and the Moving Defendants.
Thus, because the Manual provided by the Moving Defendants contains a sufficient disclaimer,
and because Correa has not challenged the Manual as the one he received, Correa’s breach-ofcontract claim fails. See Delgado, 624 Fed. App’x. at 813. As a result, the Court need not address
whether Correa was an employee of the NJ AFL-CIO when he was terminated.
Because this is Correa’s second bite at the apple and further amendment would be futile,
Count III is dismissed with prejudice. See Kissell v. Dep’t of Corrections, 634 F. App’x. 876, 879
(3d Cir. 2015).
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IV.
Conclusion
For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss Counts I
and III with prejudice.8 An appropriate Order accompanies this Opinion.
s/Esther Salas
Esther Salas, U.S.D.J.
8
In light of this ruling, the Court need not address the parties’ alternative arguments.
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