CHUN v. SUSHI MARU EXPRESS CORP. et al
Filing
9
OPINION. Signed by Judge John Michael Vazquez on 06/28/2018. (sms)
Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
LOIS CHUN,
Plain tzff
Civil Action No.
17-6411
V.
SUSHI MARU EXPRESS CORP., et al,
OPINION
Defendants.
John Michael Vazguez, U.S.D.J.
Plaintiff Lois Chun briefly worked for Defendants. Following her effective “termination”
from employment, Plaintiff instituted the present matter, alleging claims related to wages, whistleblowing retaliation, and defamation. Defendants Sushi Maru Express Corp., Sushi Nara, Komolo
Inc., and Kevin Kim talk/a Tae Bum Kim) (collectively “Defendants”) move to partially dismiss
Plaintiffs Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). D.E. 4. Plaintiff
submitted a brief in opposition. D.E.
7•1
The Court reviewed the submissions in support and in
opposition, and considered the motion without oral argument pursuant to Fed. R. Civ. P. 78(b) and
L. Civ. R. 78.1(b). For the reasons stated below, Defendants’ motion is GRANTED in part and
DENIED in part.
In this Opinion, Defendants’ motion to dismiss (D.E. 4) will be referred to as “Def. Brf.”
Plaintiffs brief in opposition (D.E. 7) will be referred to as “P1. Opp.” Defendants did not
submit a reply brief.
I.
BACKGROUND
A. Factual Background
Plaintiff is a New Jersey resident. Complaint (“Compl.”)
¶ 1; D.E. 1. Defendants Sushi
Maru Express Corp., (“Mani”) and Sushi Nara (“Nara”) are New Jersey business entities
specializing in Japanese sushi products. Id.
business entity.
Id.
¶J 2-3. Mani and Nara are “essentially the same”
¶ 9. Maru and Nara operate sushi counters in supermarkets and specialty
markets. Id. Defendant Komolo, Inc. (“Komolo”) is a Maryland business entity that provides
Maru and Nara with sushi supplies.
Id.
¶ 4. Komolo comingles finances and operations with
Maru. Id. Defendant Kevin Kim manages labor affairs on behalf of Maru and Nara. Id.
works out of the Maru office in New Jersey. Id.
¶ 5. He
¶ 6.
On April 8, 2016, Defendants hired Plaintiff to be a marketing employee.
Id.
¶ 8.
Specifically, Defendants wanted Plaintiff to spearhead the future marketing development of Maru,
Nara, and Komolo. Id.
¶ 10. For this work, Defendants agreed to pay Plaintiff a salary of $690
per week and to provide health benefits. Id. However, within a week of starting work, Kim told
Plaintiff that there was “not much marketing work at that time.” Kim instead directed Plaintiff to
handle “odds and ends,” which resulted in tasks typically completed by hourly paid workers. Id.
¶ 11. In particular, Kim instructed Plaintiff to address sanitary code violations at Maru locations.
Id. Defendants also increased Plaintiffs hours to, on average, a 90-hour-work-week while denying
her overtime compensation, health benefits, paid lunch hours, and employer contributions to social
security. Id.
¶JJ 20, 27. Defendants did not keep records of Plaintiffs, or other employees’, hours
and wages. Id. ¶21.
While addressing the complained of sanitary code violations, Plaintiff observed numerous
practices of Defendants and their employees that she believed violated the Food, Drug and
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Cosmetics Act (“fDCA”); Food and Drug Administration (“FDA”) regulations; and other laws.
Id.
¶ 12. Plaintiff claims that Defendants’ employees handled fish without regard for food safety
requirements. Id.
¶ 13. Employees also improperly transferred “frozen” fish from refrigerators
to freezers, causing bacterial growth on the raw fish. Id.
¶ 13(A). Further, employees dumped
bulk shipments of frozen fish onto a warehouse floor to sort through the shipment, mis-branded
the fish to sell it at premium prices, and did not store the fish properly. Id.
¶ 13(A)-(H). The
foregoing examples are but a few cited in the Complaint.
After a few weeks into her employment, and continuing thereafter, Plaintiff reported to
upper management the unsanitary practices and conditions she observed; she also indicated that
she believed the practices were unlawful and needed immediate remedial action.
Id.
¶ 15.
Defendants initially received Plaintiffs reports constructively. Id. However, as Plaintiffs reports
kept accruing, Defendants eventually began to cut her out of communication lines and disregard
her reports about the unsanitary conditions. Id. Plaintiff claims that Defendants began treating
her as a “crazy woman.” Id.
¶JJ
15-16. FUrther, Plaintiff asserts that Defendants either knew or
believed that she would report the health and safety violations to the supermarkets that Defendants
partnered with or to relevant government agencies. Id.
¶ 36.
Defendants’ alleged retaliation took various forms. Kim told Plaintiff to “shut up.” Id.
¶
36. Kim also pointed Plaintiff to an Internet blog, where anonymous posters were making false
statements about her. Kim allegedly cited this blog as proof that Plaintiff was a “criminal” and
was going to be terminated. Id. By August 2016, Plaintiff felt so mistreated by upper management
that she could no longer go to work. Id.
¶ 16. Defendants refused to acknowledge that Plaintiff
had been effectively terminated from employment and refused to write a letter of verification
confirming that they no longer employed Plaintiff. Id.
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¶ 18.
B. Procedural Background
On August 25, 2017, Plaintiff filed her Complaint.
D.E. 1.
The allegations in the
Complaint are somewhat unclear.2 The Complaint appears to allege the following seven counts:
violation of the Fair Labor Standards Act, 29 U.S.C.
the New Jersey State Wage and Hour Law, N.J.S.A.
§ 201 (“FLSA”) (Count One); violation of
§ 34:1 1-56a (“NJWHL”) (Count Two (A))3;
failure to make proper employer contribution to social security and other benefits (Count Two
(B)); failure to keep proper records of Plaintiffs work hours (Count Three); violation of the New
Jersey Conscientious Employee Protection Act. N.J.S.A. 34:19-1 (“CEPA”) (Count Five);
defamation (Count Six); and retaliation for Plaintiffs worker’s compensation request (Count
Seven). Defendants’ current motion followed. Defendants argue that Counts Two (B), Three,
Five, and Six of the Complaint should be dismissed.
II.
LEGAL STANDARD
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a defendant to move to
dismiss a count for “failure to state a claim upon which relief can be granted[.]” To withstand a
motion to dismiss under Rule 12(b)(6), a plaintiff must allege “enough facts to state a claim to
relief that is plausible on its face.” Bell Ati. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A
complaint is plausible on its face when there is enough 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). Although the plausibility standard “does not impose a probability
requirement, it does require a pleading to show more than a sheer possibility that a defendant has
2
For example, some of the counts appear to be based on statutory violations, but no statute or
regulation is cited.
The Complaint mistakenly lists two Counts as Count Two. The Court will refer to the first as
Count Two (A) and the second as Count Two (B).
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acted unlawfully.” Connelly v. Lane Const. Corp., $09 F.3d 780, 786 (3d Cir. 2016) (internal
quotation marks and citations omitted). As a result, a plaintiff must “allege sufficient facts to raise
a reasonable expectation that discovery will uncover proof of [his] claims.” Id. at 789.
In evaluating the sufficiency of a complaint, a district court must accept all factual
allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff.
Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008).
A court, however, is “not
compelled to accept unwarranted inferences, unsupported conclusions or legal conclusions
disguised as factual allegations.” Baraka v. McGreevey, 481 f.3d 187, 211 (3d Cir. 2007). If,
after viewing the allegations in the complaint most favorable to the plaintiff, it appears that no
relief could be granted under any set of facts consistent with the allegations, a court may dismiss
the complaint for failure to state a claim. DeFazio v. Leading Edge Recoveiy Sols., 2010 WL
5146765, at *1 (D.N.J. Dec. 13, 2010).
III.
LAW AND ANALYSIS
A. Social Security Contributions (Count Two (B))
Defendants argue that Plaintiffs employer social security contribution claim must be
dismissed because Plaintiff does not have a private right of action. In support, Defendants assert
that the Federal Insurance Contribution Act (“FICA”) codifies employer social security
contributions and it does not create a private right of action and cite to Urn land v. PLANCO Fin.
Servs., Inc., 542 F.3d 59, 66 (3d Cir. 200$). Def. Brf. at 3. Plaintiffs opposition to this argument
is not clear. She appears to argue that her social security cause of action is different because it
concerns the value of the missing contributions, not the loss of wages. P1.
Opp. at 9-10.
Without
analysis, Plaintiff states that the distinction of her social security claim can be seen in Lytes v.
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Burt’s Butcher Shoppe & Eatery Inc., No. 4:10-CV-53, 2011 WL 4915484, at *6 (M.D. Ga. Oct.
17,2011). Id. at 9.
The Third Circuit has held that FICA does not create a private right of action. Urn land,
542 F.3d at 67. In Umland, a plaintiff sought to bring a FICA cause of action based on the implied
tenris of her employment contract. Joining the Eleventh Circuit, the Third Circuit rejected that
FICA provided a private cause of action. The Circuit stated, “{rn]oreover, if we were to read
FICA’s provisions into every employment contract, we would contradict Congress’s decision not
to include expressly a private right of action and our belief that Congress did not intend to imply
a private right of action either.” Id.
Plaintiffs attempts to distinguish Umland are unclear and unconvincing. In Lytes, the
Middle District of Georgia briefly mentioned the plaintiffs employer’s FICA contributions in
completing a FLSA calculation of the overtime compensation to which the plaintiff was entitled.
2011 WL 4915484, at *6. Lyles does not stand for the proposition that Plaintiff apparently asserts.
In any event, Urnland is binding precedent on this Court. Therefore, to the extent that Plaintiff is
asserting a private right of action under FICA, Count Two (B) is dismissed with prejudice.
B. Record Keeping (Count Three)
Next, Defendants argue that their alleged failure to keep a record of Plaintiffs work-hours
does not provide an independent cause of action under the FLSA.
Def. Brf. at 3.
Instead,
Defendants claim that an employer’s failure to keep proper records triggers a burden-shifting of a
FLSA claim. Id. Plaintiff, however, contends that the FLSA “is a vast body of law” and that
Defendants are “complaining” about Plaintiff being specific in her pleadings. Pt. Opp. at 13.
Plaintiff goes so far as to claim that Defendants’ argument “is essentially a quibbling over a non
essential matter in the case, and now [sic] worthy of relief.”
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The Court’s independent research indicated that Defendants may not be correct. See US.
v. Universal C.I.T. Credit Corp., 344 U.S. 218, 222-24 (1952); Donovan v. Frezzo Brothers, Inc.,
678 F.2d 1166, 1167 (3d Cir. 1982); Wirtz v. F.M Sloan, Inc., 411 F.2d 56, n.1 (3d Cir. 1969).
However, for reasons only known to P1aintiff, she did not adequately address Defendants’
arguments. Nevertheless, the Court finds that the Complaint is lacking essential information
needed to plead a claim, assuming that a record-keeping violation is a viable cause of action under
the FLSA. The Complaint fails to provide the law or statute pursuant to which Count Three is
asserted. Therefore, the Court is not sure whether the Complaint is asserting Count Three pursuant
to the FLSA, or the NJWHL, or some other statute. The Court will not guess, and the Court will
not leave Defendants to guess what claim they are defending against. Therefore, Count Three is
dismissed without prejudice.
C. New Jersey Conscientious Employee Protection Act (Count Five)
Defendants argue that the Complaint fails to plausibly plead a prima facie claim under
CEPA. Specifically, Defendants assert that Plaintiff has not sufficiently pled a causal connection
between the whistle-blowing activity and the adverse employment action.
Def. Brf. 3-4.
Moreover, Defendants claim that the Complaint admits that Plaintiffs “termination was related in
substantial part to retaliation for a workers comp claim,” rather than in retaliation for whistleblowing. Id. at 5. Plaintiff responds that the Complaint plausibly alleges a CEPA violation. To
that end, Plaintiff points out that the Complaint states that after Plaintiff began reporting sanitary
and safety violations to upper management, Defendants began retaliating against her and then
effectively terminated her. P1.
Opp. at 15-16.
CEPA is considered a “remedial” statute and is therefore “construed liberally to effectuate
its important social goal.” Abbamont v. Piscatal4ay Tip. Bd. ofEthic., 138 N.J. 405, 431 (1994).
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To plead aprimafacie CEPA claim, a plaintiff must demonstrate that (1) she reasonably believed
that the employer’s conduct violated a law, rule, regulation, or clear mandate of public policy; (2)
she performed “whistle-blowing” activity as described in N.J.S.A. 34:19-3c; (3) an adverse
employment action was taken against her; and (4) a causal connection between the whistle-blowing
activity and the adverse employment action exists. Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003)
(citing Kotb v. Burns, 320 N.J. Super. 467, 476 (App. Div. 1999)).
CEPA prohibits an employer from taking any retaliatory action against an employee
because the employee either “discloses or threatens to disclose to a supervisor or to a public body
an activity, policy or practice of the employer
violation of a law or a rule or regulation.
.
.
.
.
.
that the employee reasonably believes is in
or, is fraudulent or criminal.” N.J.S.A. 34:19-3. CEPA
also prohibits retaliation if the employee refuses to participate in any activity she believes to be in
violation of a law, fraudulent or criminal, or incompatible with a clear mandate of public policy.
Id. CEPA defines “retaliatory action” as “the discharge, suspension, or demotion of an employee
or other adverse employment action taken against an employee in the terms and conditions of
employment.” N.J.S.A. 34:19-2e. See Abbamont, 13$ N.J. at 423 (holding that the supervisors’
recommendations that the plaintiff teacher not be rehired, because he complained of health code
violations within the classroom, were retaliatory actions under the CEPA).
Plaintiff plausibly pleads a prima fcicie CEPA claim. Looking to the contested fourth
element, the Court finds that Plaintiff plausibly pleads a causal connection between her whistle
blowing activity and Defendants effectively terminating her. The Complaint’s factual allegations
create a plausible inference that Defendants effectively terminated Plaintiff because she reported
health code and safety violation concerns to Defendants.
The Complaint identifies specific
practices and conditions that Plaintiff observed while employed by Defendants. Plaintiff alleges
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that these observations reasonably led her to believe that Defendants were violating the FDCA and
FDA regulations as well as state and local health code laws. Compi.
¶ 12-13. The Complaint
then states that Plaintiff voiced these concerns, on repeated occasions, to upper management. Id.
¶ 15. Further, the Complaint claims that Defendants either knew or believed that Plaintiff was
going to report the existence of these violations to the supermarkets who partnered with
Defendants or to relevant government agencies. Id.
¶ 36. Finally, the Complaint states that as
Plaintiffs’ reports grew in frequency and alarm, Defendants ceased being receptive to them.
Defendants told Plaintiff to “shut up,” ridiculed her, accused her of being a criminal, and cut her
out of communications. Defendants’ actions culminated in their effectively terminating Plaintiff.
Compl.
¶J 15-16.
Employer retaliation under the CEPA includes “completed” actions that impact
compensation and job rank.
Allegations of harassment alone are insufficient to constitute
employer retaliation under CEPA. Borawski e. Henderson, 265 F. Supp. 2d 475, 486-87 (D.N.J.
2003) (holding that there was no employer retaliatory action when the employee did not allege
discharge, demotion, suspension, or other adverse action related to the terms and conditions of his
employment); see also Beasley v. Passaic County, 873 A.2d 673 (N.J. App. Div. 2005) (finding
that employer actions resulting in a bruised ego or injured pride do not qualify as adverse employer
actions under the CEPA). Here, Plaintiffs allegations of harassment and ridicule are, standing
alone, insufficient to allege employer retaliation under the CEPA. However, Plaintiffs allegations
go further. The Complaint states that Kim told Plaintiff that she would be terminated and that,
thereafter, Defendants did effectively terminate Plaintiff because of her whistle-blowing activity.
Therefore, Plaintiff sufficiently alleges retaliatory conduct under the CEPA. Compl.
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¶ 36.
Finally, Defendants argue that Plaintiff cannot now claim that her termination was causally
connected to her whistle-blowing activity because she also alleged in the Complaint that her
tennination resulted, in substantial part, from her asking for workers’ compensation. However,
pursuant to the Federal Rules of Civil Procedure, a plaintiff may hypothetically plead in the
alternative, and “if a party makes alternative statements, the pleading is sufficient if any one of
them is sufficient.” Fed. R. Civ. P. $(d)(2). In this case, Plaintiffs allegations that Defendants
terniinated her in retaliation for both whistle-blowing activity and for seeking workers’
compensation are not irreconcilably inconsistent. It is possible, and plausible, that both situations
served as driving factors in Defendants’ effective termination of Plaintiff. Therefore, the Court
finds that Plaintiff has alleged aprimafacie CEPA claim. Defendants’ motion to dismiss Count
Five is denied.
B. Defamation (Count Six)
Defendants lastly argue that the Complaint fails to allege a prima fade defamation claim
because Plaintiff does not allege that any defamatory statement was published to a third party.
Def. Brf. at 6. Defendants also argue that even if the Complaint plausibly alleges a defamation
claim, that claim would be time-barred. Plaintiff, in opposition, argues that the Complaint has pled
a plausible defamation claim. Moreover, Plaintiff asserts that Kim’s telling of “others” that she is
a criminal was slanderperse. P1.
Opp. at 17-18.
To plead defamation, a plaintiff must establish that (1) a false statement was made
concerning her; (2) the statement was published to a third party and not otherwise privileged; (3)
the publisher was at least negligent in publishing the statement; and (4) damages. Robles v. US.
Envt. Universal Serv., Inc., 469 Fed. Appx. 104, 109 (3d Cir. 2012) (citing DeAngelis v. Hill, 180
N.J. 1 (2004)). Under New Jersey law, in a “complaint charging defamation, plaintiff must plead
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facts sufficient to identify the defamatory words, their utterer and the fact of their publication.”
Zoneraich v. Overlook Hosp., 212 N.J. Super. 83, 101 (App. Div. 1986). A vague conclusory
allegation is insufficient to plausibly plead defamation. Id.
Further, under New Jersey law, defamation per se exists when the relevant statement
“imputes to another conduct that constitutes a criminal offense” and that offense is of the type that
could be “punishable by imprisornrient” or “regarded by public opinion as involving moral
turpitude.” Restatement (Second) of Torts
§ 571 (1977). See Robles, 469 Fed. Appx. at 109
(holding that the accusation of criminality was defamatory as a matter of law) (citation omitted).
Here, the Complaint alleges that Defendants, through Kim, defamed Plaintiff when they
told her and others that she was a criminal. The allegation that Kim indicated that Plaintiff was a
“criminal” adequately alleges a defamatory statement. However, the defamation count is deficient
for other reasons. First, Plaintiff does not plausibly allege when or to whom the statement was
made, merely indicating that it was made to Plaintiff and “others.” Second, the Complaint also
fails to allege that the statement was not privileged. See Robles, 469 Fed. Appx. at 109 (upholding
summary judgment for the defendant as to a defamation claim because the plaintiffs had not
“demonstrated the fact of unprivileged publication”). Therefore, the Court finds that Plaintiff has
not sufficiently alleged a defamation claim.4 Count Six is dismissed without prejudice.
IV.
CONCLUSION
For the reasons set forth above, Defendants’ motion to dismiss (D.E. 4) is GRANTED in
Defendants’ argument that the defamation claim is time barred is erroneous. N.J.S.A. 2A:14-3
provides that every action for libel or slander must be commenced within one year after the alleged
libel or slander occurred. Defendants erroneously indicate that Plaintiff filed her Complaint on
September 25, 2017. Def. Brf. at 6. In fact, the Complaint was filed on August 25, 2017. D.E.1.
Therefore, Plaintiffs allegations of defamation occurring in September 2016 are within the statute
of limitations.
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part and DENIED in part. Defendants’ motion is granted as to Counts Two(B), Three, and Six
and is denied as to Count five. Count Two(B) is dismissed with prejudice, and Counts Three and
Six are dismissed without prejudice. Plaintiff has thirty (30) days to file an Amended Complaint,
if she so chooses, consistent with this Opinion. If Plaintiff fails to file an Amended Complaint,
the dismissal of Counts Three and Six will also be with prejudice.
An appropriate Order
accompanies this Opinion.
Dated: June 28, 2018
c
John Michael Vazqu, U.D.J.
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