MALIA v. AMAZON.COM, INC. et al
Filing
17
OPINION. Signed by Judge William J. Martini on 12/28/17. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
WILLIAM MALIA,
Civ. No. 2:17-5155 (WJM)
Plaintiff,
v.
OPINION
AMAZON.COM, INC., et al.,
Defendants.
WILLIAM J. MARTINI, U.S.D.J.:
Plaintiff William Malia files suit against Amazon.com, Inc. (“Amazon”) and his
former employer All Points Trucking and Courier Service, All Points Courier Service,
Inc. d/b/a Thruway Direct, Kevin Meyer (“Meyer”), Leigh Hodge, Office Staff
Consulting Inc. (collectively, “Thruway”), and other unnamed individuals and entities,
alleging Amazon and Thruway violated the New Jersey Conscientious Employee
Protection Act (“CEPA”) when they terminated him in retaliation for his whistleblowing
activity.1 The matter comes before the Court on Amazon and Thruway’s Federal Rule of
Civil Procedure Rule 12(b)(6) motions to dismiss. No oral argument was held. FED. R.
CIV. P. 78(b). For the reasons below, the motions to dismiss are GRANTED.
I.
BACKGROUND2
As president and owner of Thruway—a contracted company providing delivery and
courier services to customers, including Amazon—Meyer hired Malia as its Regional
Director of Operations. Am. Compl. ¶¶ 12, 14–15, ECF No. 11–4. In offering, hiring, and
then terminating Malia’s position with Thruway, Meyer set the terms and conditions of
Malia’s employment. Id. ¶¶ 15, 49.
1
Apart from the CEPA claims, Malia included claims for violating the New Jersey Wage Payment
Law (“NJWPL”), N.J. STAT. ANN. § 34:1–4.6(b), 4.7. Through stipulation, the parties agreed to
dismiss the NJWPL claims with prejudice. ECF No. 16. Also, through stipulation, Thruway will
leave undisturbed Malia’s breach of contract claim added in the Amended Complaint. See Decl. of
Kevin Doherty ¶ 4, Ex. 2, ECF No. 15–3.
2
In filing opposition, Malia filed a notice to amend the complaint and included it as an exhibit. See
Notice of Cross-Mot. to Amend the Compl., ECF No. 11; Cert. of Counsel, Ex. 4, ECF Nos. 11–3, 4.
The Court grants the cross-motion to amend the complaint but, for the reasons discussed in this
Opinion, denies the opportunity to replead the allegations giving rise to the CEPA claims.
1
While at Thruway, Malia’s responsibilities included overseeing, managing, and
directing packing and courier services in the New York, New Jersey, and Pennsylvania
markets and handling personnel issues. Id. ¶ 18. Part of these responsibilities included
interacting with Amazon management to address transportation and logistics matters. Id.
¶ 20. As a supplier, Amazon would conduct audits of contracted companies like Thruway
to ensure compliance with its Supplier Code of Conduct. Id. ¶ 28. In overseeing
Thruway’s delivery operations, Malia avers Amazon and Thruway acted as joint
employers. Id. ¶ 22.
Malia received complaints from Thruway’s New Jersey-based drivers that Thruway
withheld “Pennsylvania, rather than New Jersey, workers’ compensation deductions from
their paychecks while living and delivering Amazon products in New Jersey.” Id. ¶ 37.
Months later, unsure if they would receive coverage in a work-related accident,
Thruway’s drivers complained to Malia again about the workers’ compensation
deduction issue. Id. ¶¶ 41, 45. Malia reasonably believed the deductions were unlawful
and complained to Meyer about this perceived unlawful practice because Thruway
“exposed the drivers to medical and financial ruin in the event of a work related [sic]
accident.” Id. ¶¶ 38–39, 42, 44–45.
During this time, Amazon knew about Thruway’s workers’ compensation practices
through its oversight and audits of Thruway’s business records. Id. ¶ 47. For instance,
while on a conference call with an Amazon auditor, Malia and Thruway representatives
discussed Thruway’s deliveries and payroll of its drivers. Id. Months later, Meyer
terminated Malia’s employment. Id. ¶ 49. Malia then filed suit in state court and Amazon
timely removed. See ECF No. 1.
Amazon and Thruway now move to dismiss the CEPA claims. Amazon argues it
never employed Malia and thus he cannot be considered its “employee” under CEPA. See
Amazon’s Reply Br. 7, ECF No. 14. Also fatal to the CEPA claim, Amazon argues it had
no part in Thruway’s decision (through its owner, Meyer) to terminate Malia’s
employment. Id. at 9. Now Thruway contends Malia has failed to establish a prima facie
CEPA case because he lacked an objectively reasonable belief as to its workers’
compensation practice violating any law or policy and also there lacks a substantial nexus
between the whistle-blowing activity and the retaliatory employment action. See
Thruway’s Reply 5, 7, ECF No. 15.
Both Amazon and Thruway take issue with Malia’s wholesale revision of the
allegations and the basis for submitting the Amended Complaint. After filing its motions
to dismiss, Malia changed the facts that formed the basis for the retaliatory discharge and
chalked up filing the Amended Complaint as to having “inadvertently filed an
unapproved draft of the complaint rather than the finalized and approved version.” Pl.’s
Opp’n 2, ECF No. 11.
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II.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in
whole or in part, if the plaintiff fails to state a claim upon which relief can be granted.
The moving party bears the burden of showing that no claim has been stated. Hedges v.
United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a motion to dismiss, a court
must take all allegations in the complaint as true and view them in the light most
favorable to the plaintiff. See Warth v. Seldin, 422 U.S. 490, 501 (1975); Leamer v.
Fauver, 288 F.3d 532, 535 (3d Cir. 2002).
Although a complaint need not contain detailed factual allegations, “a plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the factual allegations
must be sufficient to raise a plaintiff’s right to relief above a speculative level, such that it
is “plausible on its face.” See id. at 570; see also Umland v. PLANCO Fin. Servs., Inc.,
542 F.3d 59, 64 (3d Cir. 2008). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). While “[t]he plausibility standard is not akin to a ‘probability
requirement,’ [ ] it asks for more than a sheer possibility.” Id.
III.
DISCUSSION
Amazon contends it never directly employed Malia, it cannot be considered a joint
employer with Thruway, and it had no part in the adverse employment action required to
sustain a CEPA retaliation claim. Malia insists he formed an employment relationship
with Amazon. 3 The Court agrees with Amazon.
A. The Amended Complaint fails to show a direct or joint employer
relationship to underpin Malia’s CEPA claim against Amazon, and to
permit an amendment would be futile.
Inherent in a CEPA retaliation claim is one of an employer-employee relationship.
N.J. STAT. ANN. § 34:19–3. The facts here show Malia “perform[ed] services for and
under the control and direction of” Thruway and Meyer “for wages or other
remuneration.” Id. § 34:19–2b. Since Thruway—not Amazon—outlined Malia’s job
responsibilities, supervised his work, evaluated his performance, set his compensation
terms, and terminated his employment, there lacks a basis to even consider the 12-factor
Pukowsky test New Jersey courts use to address a joint employment theory under CEPA.
Prior to filing its motion to dismiss, Amazon asked Malia’s counsel to withdraw the claims against
it. The July 5, 2017, letter contains legal arguments to warrant dismissal. First, Amazon had no
control over the terms and conditions of Malia’s employment. And second, nowhere in the original
Complaint did Malia assert Amazon was his direct or joint employer. See Lynch Decl., Ex. A, ECF
No. 14–1. In lieu of a response, Malia’s counsel submitted an Amended Complaint which addressed
the substantive arguments in the letter.
3
3
See D’Annunzio v. Prudential Ins. Co., 891 A.2d 673, 676–77 (N.J. Super. Ct. App. Div.
2007) (citing Pukowsky v. Caruso, 711 A.2d 398 (N.J. Super. Ct. App. Div. 1998)).
Despite a wholesale revision of its theory of the case and attempts to avoid dismissal in
repleading new facts to keep Amazon in the fight, Malia fails to plead sufficient facts to
show Amazon employed him. Malia instead conflates performing his job responsibilities
in interacting with Amazon representatives and in Thruway adhering to Amazon’s
Supplier Code of Conduct as forming a basis to be considered an Amazon employee. The
Court finds such arguments unpersuasive.
Although Federal Rule of Civil Procedure 15(a) allows a court to grant an amendment
“when justice so requires,” a court has discretion to deny a request to amend if from the
record the amendment would be futile. See Shane v. Fauver, 213 F.3d 113, 115 (3d Cir.
2000). No amendment here would cure the fundamental deficiencies in Malia’s CEPA
claim—that Amazon employed him. Because under no set of facts could Malia show that
Amazon either employed him or took retaliatory action against him, the Court
DISMISSES WITH PREJUDICE the sole claim against Amazon.
B. The Amended Complaint misses the plausibility mark to support a
CEPA claim against Thruway.
Thruway argues Malia has yet to make out a prima facie CEPA case because the
allegations fail to show how Malia had an objectively reasonable belief that Thruway
acted unlawfully and there lacks a substantial nexus between the complained-of conduct
and the adverse employment action. The Court agrees.
To show a CEPA retaliation claim, Malia must establish that (1) he reasonably
believed that his employer’s conduct was violating a law, rule or regulation; (2) he
objected to the conduct; (3) the employer took an adverse employment action him; and
(4) a causal connection exists between the whistleblowing activity and the adverse
employment action. Dzwonar v. McDevitt, 828 A.2d 893, 900 (N.J. 2003).
The Court finds fault with the first prong because Malia has yet to plead facts to
support his reasonable belief that Thruway violated a law, rule, or regulation. Id. That
employer contributions, not deductions from employee paychecks, fund workers’
compensation programs belies Malia’s assertion that he believed Thruway made such
wrongful deductions from its employees’ paychecks. See Doherty Decl. ¶ 5, Ex. 3, ECF
No. 15–1. Also, Thruway’s actions cannot be viewed as a violation of public policy. Even
if it failed to maintain workers’ compensation coverage, New Jersey law requires
employers to maintain an Uninsured Employer Fund to cover medical expenses for onthe-job employee injuries. See id. ¶ 6, Ex. 4. And although Malia complained about an
alleged illegal practice and was terminated months later, the facts fail to show a causal
connection between these events. See Donofry v. Autotote Sys. Inc., 795 A.2d 260, 271
(N.J. Super. Ct. App. Div. 2001) (citation omitted). At the time Meyer and Thruway
terminated Malia’s employment in January 2017, the company had existing New Jersey
workers’ compensation coverage in place. See Doherty Decl. ¶ 7, Ex. 5.
4
At its core, Malia pleads an implausible amended theory to support the CEPA claim.
Employers like Thruway obtain workers’ compensation insurance by paying premiums to
a state-run program or an insurance carrier, not through employee paycheck deductions.
This undermines Malia’s reasonable belief that Thruway’s workers compensation
practices violated law or public policy. See Dzwonar, 828 A.2d at 900. Also, that
Thruway had workers’ compensation coverage in place cuts against Malia’s contention
that his complaints to Meyer about the workers’ compensation scheme played a
significant role in his termination. Like with Amazon, because permitting an amendment
would be futile, the Court DISMISSES WITH PREJUDICE the CEPA claim against
Thruway.
IV. CONCLUSION
For the above-stated reasons, Amazon’s motion to dismiss is GRANTED WITH
PREJUDICE. Thruway’s motion to dismiss is also GRANTED WITH PREJUDICE.
As the Court has diversity jurisdiction under 28 U.S.C. § 1332, the case against Thruway
will continue on the remaining breach of contract claim. An appropriate order follows.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: December 28, 2017
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