THOMPSON v. THE ANTHEM COMPANIES, INC et al
OPINION. Signed by Chief Judge Jose L. Linares on 7/31/2018. (sm)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No.: 18-6676 (JLL)
ANTHEM COMPANIES, [NC., etat.,
LINARES, Chief District Judge.
This matter comes before the Court by way of Defendants’ Motion to Dismiss for Failure
to State a Claim pursuant to Rule 12(b)(6) of the federal Rules of Civil Procedure. (ECf Nos. 6,
11). Plaintiff Suget Thompson has submitted Opposition (ECF No. 18), to which Defendants have
replied. (ECf No. 19). The Court decides this matter without oral argument pursuant to Rule 78
of the Federal Rules of Civil Procedure. F or the reasons set forth below, the Court grants the
Defendants Motion to Dismiss, without prejudice.
The detailed background of this action is unnecessary to the disposition of the current
application before the Court. Accordingly, the Court provides the following brief background.
Plaintiff Suget Thompson is a black female of Guyanese descent who is a resident of Warren
County, New Jersey.
(ECF No. I (“Compi.”)
1). Plaintiff brought this Complaint against
This background is derived from Plaintiffs Complaint, which the Court must accept as true at this stage of the
proceedings. See Aiston v. Countiywide fin. Coip., 585 F.3d 753, 758 (3d Cir. 2009).
Defendants The Anthem Companies, Inc. (“Anthem”) and Amerigroup New Jersey, Inc.2
(“Arnerigroup”) alleging a violation under the New Jersey Law Against Discrimination
(“NJLAD”), N.J.S.A. §10:5-1, et. seq. (Compi.
named Health Plus, on or about June 6, 2011. (Compl.
Plaintiff began working for Anthem, then
Plaintiff worked as the supervisor of
personal care services roughly through the end of 2013, while the company underwent a few
acquisitions and a name change to Anthem.
schedule allowed her to work four days from home and one day in the office conducting case
intake, preparing reports and assigning cases to other nurses. (Compi.
On or about September 2013, Assistant Director Sara Lafita (“Lafita”) requested Plaintiff
begin working at least three days in the office, despite Plaintiffs contract. (Compi.
one year later, Martina Perez (“Perez”) from Human Resources (“HR”) met with Lafita, along with
Nadine Carter (“Carter”) to discuss their grievances regarding Plaintiff (Compi. ¶ 19). Perez told
Lafita and Carter that Plaintiff received outstanding annual reviews, but indicated that in order to
make a case against Plaintiff, Lafita and Carter would have to document Plaintiffs job
performance as poor. (Compi.
Shortly thereafter, Plaintiff was placed on “corrective actions,” had her job description
changed, was assigned a caseload of two hundred patients, and was gradually demoted, no longer
holding a managerial position. (Compi.
21-23). Around late 2014 or early 2015, Plaintiff
Defendants aver that Plaintiff has confused several of the corporate identities. (ECf No. 6 (“Def Mov. Br.”) at 6
n.4). Most relevant is Plaintiffs reference to Amerigroup New Jersey, Inc. (referred to in this Opinion as Amerigroup).
Defendants allege Amerigroup is not a subsidiary of The Anthem Companies, Inc. (Id.). first, as noted above, the
Court must accept Plaintiffs allegations as true at this juncture, and Defendants have not provided any concrete
evidence to completely rebut Plaintiffs allegations as to Defendants’ corporate structure. Moreover, and more
importantly, this distinction is not relevant to the Court’s analysis below.
expressed hei- concerns about these developments to Carter, who allegedly told Plaintiff, she
“should consider herself privileged to be making mega bucks as a little Guyanese girl.” (Compi.
Thereafter, towards the end of November 2015, Plaintiff went to Perez in HR to report the
alleged hostile work environment. Plaintiff asserts that, despite her complaint, HR took no action.
27). On January 4, 2016, Plaintiff was terminated from Anthem. (Compi.
Accordingly, Plaintiff filed this action asserting the following causes of action: Count I
Origin Discrimination in Violation ofNJLAD; Count II
of NJLAD; and Count III
Hostile Work Environment in Violation
Retaliation in Violation of NJLAD. (Cornpl.
¶J 3 0-42).
To withstand a motion to dismiss for failure to state a claim, a “complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.”
Ashcrofi v. Iqbal, 556 U.S. 662, 67$ (2009) (quoting Bell At!. Coip. v. Twomblv, 550 U.S. 544,
570 (2007)). “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., 556 U.S. at 678 (citing Thi’ombty, 550 U.S. at 556). “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. (quoting Twombly, 550 U.S. at 556).
To detennine the sufficiency of a complaint under Twomblv and Iqbal in the Third Circuit,
the Court must take three steps. “first, it must ‘tak[e] note of the elements a plaintiff must plead
to state a claim.’ Second, it should identify that there are well-pleaded factual allegations that,
‘because they are no more than conclusions, are not entitled to the assumption oftruth.’ finally,
‘[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement for relief.” See Connellv v. Lane
Constr. Coip., 809 F.3d 780, 787 (3d Cir. 2016) (quoting Iqbal, 556 U.S. at 675, 679) (citation
omitted). “In deciding a Rule 12 (b)(6) motion, a court must consider only the complaint, exhibits
attached to the complaint, matters of public record, as well as undisputedly authentic documents
if the complainant’s claims are based upon these documents.” Mayer v. Beliclzick, 605 f.3d 223,
230 (3d Cir. 2010). The Third Circuit has held that the Court can review the record of prior actions
between the parties and take judicial notice of the same in considering a motion to dismiss. See
Toscano v. Conn. Gen. Ltfe Ins. Co., 288 F. App’x 36, 38 (3d Cir. 2008).
Defendants first argument is that “Any Claims Based on Actions That Plaintiff Alleges
Occurred before December 29, 2015 Are Time Barred.” (Def. Mov. Br at 10-11). Claims
brought under NJLAD are subject to a two-year statute of limitations. Mol?tells v. Haynes. 133
N.J. 282, 292 (1993).
Plaintiff filed her Complaint on December 29, 2017.
Cornpl.). As such, Defendants conclude that any claims predicated on acts that occurred more
than two years before the filing of the Complaint are time barred. (Def. Mov. Br. at 10-11).
Plaintiff opposes Defendants’ position by arguing that the continuing violation doctrine saves
claims that are based on acts that occurred before December 29, 2015. (ECF No. 18 (“P1.
Br.”) at 2-3).
“[T]he ‘continuing violation’ doctrine is an ‘equitable exception” to NJLAD’s two-year
statute of limitations. Handelman v. State ofNew Jersey, 2016 WL 3691976, at *56 (D.N.J. July
12, 2016) (citing Shepherd
Htinterdon Developmental Ctr., 174 N.J. 1. 6-7, 17-24 (2002))
(additional citations omitted).
This doctrine is premised on the nature of a hostile work
environment claim, which “is composed of a series of separate acts that collectively constitute one
‘unlawful employment practice” and “cannot be said to occur on any particular day.” Nat ‘1 R.R.
Passenger Coip. v. Morgan, 536 U.S. 101, 115-17 (2002). Indeed, inliorgan, the Supreme Court
[E]stablished a bright-line distinction between dicrete acts, which are individually
actionable, and acts which are not individually actionable but may be aggregated to
make out a hostile work environment claim. The former must be raised within the
applicable limitations period or they will not support a lawsuit [. .] The latter can
occur at any time so long as they are linked in a pattern of actions which continues
into the applicable limitations period.
O’Connor v. City ofNewark, 440 F.3d 125, 127 (3d Cir. 2006) (citing Morgan, 536 U.S. at 105,
1 13). Stated differently, “[u]nder the continuing violation doctrine, discriminatory acts that are
not individually actionable may be aggregated to make out a hostile work environment claim; such
acts ‘can occur at any time so long as they are linked in a pattern of actions which continues into
the applicable limitations period.” Mandet v. M& QPackaging Coip.. 706 f.3d 157, 165-66 (3d
Cir. 2013) (quoting O’Connor, 440 f.3d at 127). “To allege a continuing violation, the plaintiff
must show that all acts which constitute the claim are part of the same unlawful employment
practice and that at least one act falls within the applicable limitations period.” Id. at 165-66 (citing
Morgan, 536 U.S. at 122) (additional citation omitted).
The Court finds that Plaintiffs Complaint, as it is currently constituted, does not implicate
the continuing violation doctrine. This is because Plaintiff did not specifically plead the continuing
As explained by the Morgan Court, “discrete discriminatory acts are not actionable if time barred, even when they
are related to acts alleged in timely filed charges. Each discriminatory act starts a new clock for filing charges alleging
that act.” Morgan, 536 U.S. at 113. In contrast, “consideration of the entire scope of a hostile work environment
claim, including behavior alleged outside the statutory time period, is permissible for purposes of assessing liability,
so long as any act contributing to that hostile environment takes place within the statutory time period.” Id. at 105.
violation doctrine in hei- complaint. It is true that Courts within the Third Circuit have disagreed
with regard to whether a plaintiff must specifically plead the continuing violation
doctrine. Compare Poveromo-Spring v. Exxon Coip., 96$ F. Supp. 219, 226 (D.N.J. 1997) (“To
apply the continuing violation theory properly plaintiff must have pled this theory
specifically.”) and Williams v. Home Depot, US.A., Inc., 1999 WL 788597, at *6 (E.D. Pa. Oct.
5, 1999) (“In order to invoke the continuing violations theory in an employment discrimination
case, the doctrine must be clearly pled in both the administrative filing and the
complaint.”), with Phillips v. Heydt, 197 F. Supp. 2d 207, 217 (E.D. Pa. 2002) (noting that “other
opinions indicate a willingness to look at the substance of the allegations, rather than specific
language of the pleadings, to determine if a plaintiff has properly invoked the doctrine”). The
rationale for requiring the continuing violation doctrine to be clearly pled is that “[w]ithout such
an allegation, there is merely continuity of employment with what may be no more than sporadic
instances of discriminatory conduct, and ‘[m]ere continuity of employment, without more, is
insufficient to prolong the life of a cause of action for employment discrimination.” Williams,
1999 WL 788597, at *6 (citing Del. State Coll. v. Ricks, 449 U.S. 250, 257 (1980)).
The Court finds the Williams rationale persuasive in light of Plaintiffs allegations.
Plaintiff recites relevant allegations in support of her discrimination claim, however, absent from
Plaintiffs Complaint is an explicit invocation of the continuing violation doctrine. There is no
reference to “continuous violations” in Plaintiffs Complaint. Thus, Plaintiffs Complaint, in its
current form, is “mere continuity of employment” with allegations of discrimination along the
way. Hence, the Court agrees with Defendants that Plaintiffs current Complaint cannot support
claims based on conduct that occurred prior to December 29, 2015.
However, the Court also believes that Plaintiff may be able to cure this deficiency. Rule
1 5(a)(2) of the Federal Rules of Civil Procedure provides that leave to amend “should be freely
given when justice so requires.” Fed. R. Civ. P. 15(a)(2). “Leave shall be freely given in the
absence of undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to
cure deficiencies in previous amendments, undue prejudice or futility of the amendment.” In re
caterpillar Inc., 67 F. Supp. 3d 663, 668 (D.N.J. 2014) (citing foman v. Davis, 371 U.S. 178, 182
(1962): Slzane v. Fattver, 213 F.3d 113. 115 (3d Cir. 2000)). However, “[a] District Court has
discretion to deny a plaintiff leave to amend where the plaintiff was put on notice as to the
deficiencies in his complaint, but chose not to resolve them.” Krantz v. Prudential Invs. Fund
Mgmt., 305 F.3d 140, 144 (3d Cir. 2002) (citing Rob v. City Investing Co. Liqtticlating Trust, 155
F.3d 644, 654 (3d Cir. 199$)).
The Court finds that granting Plaintiff leave to amend her Complaint is the prudent course
here. Indeed, the Court cannot conclude that Plaintiff was “on notice” of the deficiencies and
“chose not to resolve them.” Moreover, the Court finds that, based on the allegations in her current
Complaint. Plaintiff may be able to amend the allegations in a way sufficient to invoke the
continuing violation doctrine. For example, Plaintiff alleges the underlying acts of Defendants
commenced when Plaintiffs four-day telecommuter privileges were revoked even though she had
received outstanding annual reviews. Additionally, despite Plaintiffs good performance reviews,
Plaintiff was placed under “con-ective actions” as suggested by HR. Such allegations, if pled
properly, may be sufficient to implicate the continuing violation doctrine.
Therefore, the Court will grant the portion of Defendants’ Motion to Dismiss as it relates
to the untimeliness of claims that rely on incidents that occurred before December 29, 2015, but
will grant Plaintiff leave to amend her Complaint. Because the Court is allowing Plaintiff to amend
her Complaint, the Court will not address Defendants’ remaining arguments in support of their
Motion to Dismiss, as doing so would be premature in light of P1aintiffs impending Amended
F or the aforementioned reasons. Defendants’ Motion to Dismiss is hereby granted in part.
An appropriate Order accompanies this Opinion.
DATED: July 2018
Judge, United States District Court
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