GROSS v. CITY OF JERSEY CITY et al

Filing 16

OPINION. Signed by Judge John Michael Vazquez on 5/15/2019. (sm)

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

VANESSA GROSS,
Plaint UT

Civil Action No. 18-9802

v.

OPINION

CITY OF JERSEY CITY. et al.,
Defrndanrs.

John Michael Vazguez, U.S.D.J.
This case involves alleged employment discrimination and related claims. Presently before
the Court is Defendants’ joint motion to dismiss Plaintiff’s first amended complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6).

D.E. 10.

Plaintiff Vanessa Gross (“Gross” or

“Plaintiff’) filed a brief in opposition (D.E. 13) to which Defendants replied (D.E. 14).’ The Court
reviewed the parties’ submissions and decided the motion without oral argument pursuant to Fed.
R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For the reasons set forth below, Defendants’ motion to
dismiss is GRANTED in part and DENIED in part.

Defendants’ brief in support of their motion (D.E. 10-1) will be referred to as “Defs. Br.”;
Plaintiff’s opposition (D.E. 13) will be referred to as “PIE Opp.”; and Defendants’ reply (D.E. 14)
will be referred to as “Defs. Reply.”

I.

FACTUAL2 AND PROCEDURAL BACKGROUND

This case involves allegations that Plaintiff, a female firefighter with the Jersey City Fire
Department. was subjected to discriminatory comments and retaliation because of her gender,
military status, and her whistleblowing activities. First Am. Compl. (“FAC”)

¶ 6,

15, 24-25, 33.

Specifically, Plaintiff, a member of the Arson Investigation Unit, maintains that Defendant Mark
A. Petrucelli, the Fire Captain of the unit and Plaintiffs superior officer, made three separate
discriminatory comments to Plaintiff that pertained to her gender and military status. After each
discriminatory comment, Plaintiff complained to Defendant Joseph Menendez, the Deputy Chief
of the Arson Investigation Unit. Following her complaints, Plaintiff alleges that Defendants have
retaliated against her in a number of ways including disciplining her, failing to accommodate her
military’ leave schedule, refusing her overtime pay and overtime opportunities, and temporarily
transferring Plaintiff out of the Arson Investigation Unit. See general/v FAC.
Plaintiff initially filed suit the Superior Court of New Jersey, asserting the following claims
against all Defendants3: (1) violation of the New Jersey Conscientious Employee Protections Act,
(“CEPA”). N.J.S.A. 34:19-2(b); (2) sex and1or gender discrimination pursuant to the New Jersey
Law Against Discrimination (“LAD”), NJ.S.A. 10:5-5(e); (3) military’ status discrimination
pursuant to the Uniformed Set-vices Employment and Reemployment Rights Act (“USERRA”)
and/or the LAD; (4) hostile work environment in violation of the LAD; and (5) aiding and abetting

2

The factual background is taken from Plaintiffs First Amended Complaint (RE. 3). When
reviewing a motion to dismiss, a court accepts as true all well-pleaded facts in the Complaint.
Fouleri’. UPMCShadvside, 578 F.3d 203, 210 (3d Cir. 2009).
Defendants include the City of Jersey City (“Jersey City” or the “City); the Jersey City Division
of Fire, Department of Public Safety; Menendez; Petrucelli; Steven J. McGill, the Chief of the Fire
Department; James Shea, the Director of Public Safety; Gerome Cala, the Deputy Director of the
Department of Fire and Emergency Services; and Mark Bunbury. the Director of Human
Resources for Jersey City. FAC ?1 3-Il.
7

illegal discrimination. Defendants removed the matter to this Court on May 30, 2018, asserting
federal question jurisdiction based on the USERRA claim.

Notice of Removal

¶

2, DR I.

Defendants filed the instant motion to dismiss on July 12, 2018. D.E. 10.
STANDARD OF REVIEW

II.

Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss a complaint that fails
“to state a claim upon which relief can be grantcd[.]” For a complaint to survive dismissal under
Rule I 2(b)(6), it must contain sufficient factual matter to state a claim that is plausible on its face.
Ashcroft

i

Jqba/. 556 U.S. 662, 678 (2009) (quoting Be//At!. Corp. v. Two,nbh, 550 U.S. SM,

570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ii Further, a plaintiff must “allege sufficient facts to raise a reasonable expectation that discovery
will uncover proof of her claims.” Conne/lv

i’.

Lane Const. Corp., 809 F.3d 780, 789 (3d Cir.

2016). In evaluating the sufficiency of a complaint, district courts must separate the factual and
legal elements. Fowler i’. UPMCShadvskle, 578 F.3d 203, 210-211 (3d Cir. 2009). Restatements
of the elements of a claim are legal conclusions, and therefore, are not entitled to a presumption of

truth. Bunch

i’.

Mi/berg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011). The Court, however,

“must accept all of the complaint’s well-pleaded facts as true.” Fon/er, 578 F.3d at 210. Even if
plausibly pled, however, a complaint will not withstand a motion to dismiss if the facts alleged do
not state “a legally cognizable cause of action.1’ Turner i. JR Morgan Chase & C’o., No. 14-7 148,
2015 WL 12826480, at *2 (D.N.J. Jan. 23, 2015).

3

III.

ANALYSIS
A. ENTITIES SUBJECT TO SUIT

In addition to asserting claims against a number of individuals, Plaintiff brings claims
against Jersey City as well as the Division of Fire and the Department of Public Safety. FAC ¶J
3-4, II. The Division of Fire (which is apparently part of the Department of Public Safety) and
the Department of Public Safety (standing alone) are administrative arms of the City and are not
separate entities.

As a result, the Division of Fire and the Department of Public Safety are

dismissed as Defendants in this matter.4 See, e.g., &reater v. Cliv of Camden Fire Dept., 567 F.
Supp. 2d 667, 674 n.5 (D.N.J. 2008) (explaining that fire departments “cannot be sued in
conjunction with municipalities, because

[]

the department is merely an administrative arm of the

local municipality”).
B. USERRA CLAIM (Count Three)
Defendants argue that Plaintiffs USERRA claim must fail because she does not plead that
she suffered an adverse employment decision as a result of her military status. Defs. Br. at 24.
Plaintiff argues that her military status was a substantial and motivating reason for the retaliatory
and discriminatory behavior, which resulted in adverse employment decisions. Plf. Opp. at 22-27.
The USERRA prohibits discrimination in employment on the basis of military service. 38

U.S.C.

§

4311. Section 43 11(a) provides that “[a] person who is a member of,

...

or has an

obligation to perform service in a uniformed service shall not be denied initial employment.
reemployment, retention in employment, promotion, or any benefit of employment by an employer

In her opposition brief. Plaintiff concedes that the Division of Fire and the Department of Public
Safety are not separate entities, therefore, cannot be sued in conjunction with the City. PIE Opp.
at 34-35.

4

on the basis of that membership.

.

.

or obligation.” 38 U.S.C.

§ 4311(a).

Further, the act pro’ides

that an employer
shall be considered to have engaged in actions prohibited under
. or obligation for
subsection (a), if the person’s membership.
service in the uniformed services is a motivating factor in the
employer’s action, unless the employer can prove that the action
or
would have been taken in the absence of such membership.
obligation fix service.
.

.

38 U.S.C.

§

.

.

431 l(e)(l).

Courts apply the following “two-step burden shifting framework adapted from NLRB v.
Transportation Management Corp.” when assessing a USERRA discrimination claim:
[A]n employee making a USERRA claim of discrimination [
bear[s] the initial burden of showing by a preponderance of the
evidence that the employee’s military’ service was “a substantial or
motivating factor” in the adverse employment action. If this
requirement is met, the employer then has the opportunity to come
forward with evidence to show, by a preponderance ofthe evidence,
that the employer would have taken the adverse action anyway. for
a valid reason.
Qinvll v. DeL River Port Auth.. 843 F.3d 129, 131 (3d Cir. 2016) (quoting Sheehan

i

Dept. of

iVan’, 240 F.3d 1009, 1013 (Fed. Cir. 200? )). Military status is a motivating factor if the defendant
“relied on, took into account, considered, or conditioned its decision on that consideration.”
Murphy v. Rat/nor ToIL’nship, 542 F. App’x 173, 177 (3d Cir. 2013).

Moreover, an adverse

employment action under the USERRA is something that is “serious and tangible enough to alter
an employee’s compensation, terms, conditions, or privileges of employment.”

(‘anew

i’.

Barnabas Health Svs.. 718 F. App’x 168, 169 (3d Cir. 2018) (quoting Robinson v. City of’
Pittsburgh. 120 F.3d 1286, 1300 (3d Cir. 1997)).
Among other things. Plaintiff alleges that she was disciplined because she missed a training
due to her military obligations (FAC ¶ 68). charged compensatory time for military’ leave (Id. ¶

5

73), and was temporarily removed from the Arson investigation Unit when she missed a class as
a result of her military commitments5 uL ¶ 73). If true, these are adverse employment actions
because

they alter Plaintiff’s

compensation,

terms, and privileges of employment. Sec (‘uncle.

718 F. App’x at 169. Moreover. Plaintiff alleges that they occurred in response to her military
obligations. Sec e.g., Id. ¶ 65 As a result. Plaintiff sufficiently pleads a USERRA claim.
The USERRA, however, only applies to employers “or those individuals who have the
Town ofKeamnv. No. 07-5893. 2010 WL 331347.

power to hire or fire the employee.” Con/son
at *7 (D.N.J. Jan. 19. 2010) (quoting Brooks
(D.

Dcl.

Oct.

II.

2001 ));

see

1’.

Fiore. No. 00-803. 2001 WL 1218448, at *9 n.3

also

3$

U.S.C.

§

4303(4)(A}(i)

(defining

employer as “a person, institution, organization, or other entity to whom the employer has
delegated the performance of employment-related responsibilities”). As pled, Plaintiff does not
establish that any of the individual Defendants had the ability to hire or fire her. As a result,
Plaintiff’s USERRA claim is dismissed as to the individual Defendants.6
C. NEW JERSEY LAW AGAINST DISCRIMATION CLAIMS
The LAD prohibits unlawful employment practices and discrimination by an employer.
Tarr

i’.

Ciusu/li. 181 N.J. 70, 83 (N.J. 2004). An employer “includes one or more individuals,

While not explicitly stated, there are sufficient allegations in the FAC for the Court to infer that
Plaintiff’s transfer out of the Arson Investigation Unit was an adverse employment act. The
Court’s assumption is based on allegations that Plaintiffjoined the Arson Investigation Unit after
she completed additional training following her general “firefighter programs.” FAC ¶ 16-20.
6

In Count Five, Plaintiff appears to assert aiding and abetting claims against the Individual
Defendants pursuant to the USERRA. FAC ¶ 101. Plaintiff provides no legal support for this
theory and the Court is not aware of any. See Lopez-Arenas v. Zisa, No. 10-2668, 2012 WL
933251, at *10 (D.NJ. Mar. 19, 2012) (“LAD provides essentially the same remedies as those
available under USERRA; however, LAD holds individuals liable for their actions in aiding and
abetting violations of an individual’s rights rather than simply imputing general liability to the
employer for the employees’ acts.”). Therefore, to the extent Plaintiffs aiding and abetting claims
are premised on a USERRA violation, they are dismissed.
6

partnerships. associations, organizations, labor organizations, corporations, legal representatives,
trustees in bankruptcy, receivers, and fiduciaries.” N.J.S.A. 10:5-5(a). (e). The definition of
employer does not include an individual supervisor. Tarr, 181 N.J. at 83. Here, Plaintiff explicitly
states that her employer is Jersey City. FAC ¶49. PlaintifTdoes not plead that any of the Individual
Defendants are her employer as defined by the LAD. As a result, Plaintiffs LAD claims (Counts
Two, Three, and Four) are dismissed as to the Individual Defendants.
I.

Gender Discrimination (Count Two)

Defendants argue that Plaintiffs gender discrimination LAD claim must be dismissed
because Plaintiff fails to plead that she suffered an adverse employment action due to her gender.
Defs. Br. at 16-i 7. The Court agrees. To state a LAD claim, a plaintiff must allege that she (1) is
a member of a designated protected class; (2) was qualified for and performing the essential
functions of the job; (3) suffered termination or adverse employment action; and (4) others not in
the protected class did not suffer similar adverse employment decisions. Victor v. State, 203 N.J.
383, 408 (2010). For purposes of the LAD, “an adverse employment action is one which is serious
and tangible enough to alter an employee’s compensation, terms, conditions, or privileges of
employment.” C’ardenas v. Massey, 269 F.3d 251,263 (3d Cir. 2001); sec also Marrero v. C’aniden
Cti Bd. of Social Sen’s.. 164 F. Supp. 2d 455. 473 (D.N.J. 2001) (stating that an adverse
employment action “must affect adversely the terms, conditions, or privileges of the plaintiff’s
employment or limit, segregate or classify the plaintiff in a way which would tend to deprive her
of employment opportunities or otherwise affect her status as an employee”). “Harassment alone
is not enough.” ban v County ofMiddlesex, 595 F. Supp. 2d 425, 470 (D.N.J. 2009).

7

Here, Plaintiff alleges that because she is a woman, she has been subjected to
discriminatory statements7 (FAQ ¶ 50), has been denied training and shooting range practice
opportunities (Id.

¶

53), cannot use the locker room (Ic!. ¶ 54). and that Defendants Nenendez,

Shea, McGill and/or Bunbury failed to investigate her complaints (Ii

¶ 52).

Plaintift however,

fails to explain how these decisions have deprived her of employment opportunities or otherwise
adversely impacted her status as a firefighter. Consequently, Plaintiff fails to state a gender
discrimination claim under the LAD. Count Two is dismissed.
Military Service Discrimination (Count Three)

2.

In addition to a violation under the USERRA, Count Three is also pled as a violation of the
LAD. FAQ

¶ 60.

Membership in the armed forces is a protected class under the LAD. NJ.S,A.

10:5-12(a). Plaintiff alleges that she was qualified for and was performing the job of an Arson
Investigator. FAQ ¶ 20. And as discussed with respect to Plaintiff’s USERRA claim, Plaintiff
adequately alleges that she suffered adverse employment action as a result of her military status.
Plaintiff also pleads that firefighters who were not in the military did not suffer similar adverse
employment actions. J. ¶: 40, 42. Therefore. Plaintiff states a LAD discrimination claim based
on her military status.

Plaintiff alleges, among other things, that Petrucelli referred to her as a “baby back’ which is a
sexist, discriminatory and derogaton term ascribed to women who complain or cry a lot, or act
like a ‘pussy.”1 FAQ ¶ 24. Defendants repeatedly argue that “baby back” is not a gender related
term. See, e.g., Defs. Br. at 8-9. The Court is not familiar with this term vis-à-vis a derogatory
expression. But at the motion to dismiss stage, the Court must accept Plaintiffs well-pleaded facts
as true. As a result, the Court assumes at this stage that “baby back” is a gender-related derogatory
term. Plaintiff also alleges that Petrucelli told her that “females need to understand things are
different in the firehouse’ or words to that effect.” FAQ ¶ 26.
$

3.

Hostile Work Environment (Count Four)

Plaintiff also asserts a hostile work environment claim under the LAD that is premised on
her gender and military status discrimination.

To state a hostile work environment claim, a

plaintiff must allege that there was conduct that a reasonable person would consider “sufficiently
severe or pervasive to alter the conditions of employment and create an intimidating, hostile, or
offensive working environment.” Schknv
368 (App. Div. 2015) (quoting Lehniann

1’.

i

Marina Dist. Dcv Co., LLC, 442 N.J. Super. 346,

Toys R’ Us, Inc., 132 N.J. 587, 603-04 (1993)). A

plaintiff must also allege that the conduct would not have occurred but for her protected status. Id.
When assessing the sufficiency of a hostile work environment claim. “[c]ourts must consider the
frequency or severity of the conduct, whether the conduct was physically threatening or
humiliating, or merely an offensive utterance and whether the conduct unreasonably interfered
with plaintiffs work performance.” Rich v, State. 294 F. Supp. 3d 266,281 (D.N.J. 2018) (quoting
Jackson

i’.

Gannett Co., No. 08-6403, 2011 WL 3362154, at *5 (D.N.J. Aug. 3. 2011)). Thus,

severe or pervasive conduct may be established through “numerous incidents that, if considered
individually, would be insufficiently severe to state a claim, but considered together are
sufficiently pervasive to make the work environment intimidating or hostile.” Lehmann, 132 N.J.
at 607.

However, “the LAD is not intended to be a general civility code for conduct in the

workplace.

.

.

.

Thus simple teasing, ofifiand comments, and isolated incidents (unless extremely

serious) will not amount to discriminatory changes in the terms and conditions of employment.”
Mandel i’. UBS/Painewebber, Inc., 373 N.J. Super. 55, 73 (App. Div. 2004) (quoting Heitzrnan v
Monmozith County, 321 N.J. Super. 133. 147 (App. Div. 1999) (internal quotations omitted).
Plaintiffs gender discrimination hostile work environment claim is premised on the
following: (I) Petwcelli referring to her as a “baby back”; (2) Petwcelli’s statement that “females

9

need to understand things are different in the firehouse” or words to that effect; (3) the inability to
attend training programs and/or practice at the range; and (4) denied access to the locker room.
FAC ¶} 51-54. As discussed, giving Plaintiff the benefit of the doubt, the Court views “baby back”
as a derogatory term. As for Petrucelli’s second statement, it is reasonable to infer that this was
also a negative remark based on gender. Plaintiffs remaining allegations, however, are not pled
with specificity. There are no facts in the FAC explaining when or how many times Plaintiff was
denied access to the shooting range or trainings, or who made the decision as to the denials.
Moreover, although Plaintiff pleads that she could not use a locker room, she also states that she
was given access to an area designated for male and female firefighters. The FAC fails at a
fundamental level to explain which locker room she was denied access to or how this alleged
deprivation was discriminatory. Moreover, the FAC does not explain when this occurred. Thus,
Plaintiffs hostile work environment claim is essentially based on Petnicelli’s two statements. But
these statements are not enough to state a hostile work environment claim because the alleged
conduct is neither severe nor pervasive. See Cones v. Univ. of Med. & Denlistiy of N.J., 391 F.
Supp. 2d 298, 308 (D.N.J. 2005) (explaining that incidents are pervasive “if they occur in concert
or with regularity”); Lehman, 132 N.J. at 606-07 (stating that “it will be a rare and extreme case in
which a single incident will be so severe that it would from the perspective of a reasonable woman,
make the working environment hostile”).
This is also the case for Plaintiffs military status hostile work environment claim. Plaintiff
alleges that because of her military status she was disciplined for missing training because of her
military obligations (FAC ¶i 82-84), required to take compensatory time for any military leave
(Id.

¶ 85), that Petrucelli made a derogatory comment that she was “lucky” to have unlimited leave

(Id.

¶

51, 65), that new regulations regarding notice of leave were implemented (Id.

10

¶ 35),

that

she was denied access to trainings (id.
Investigation Unit (Id.

¶ 35).

1ff! 53-54, 65), and was temporarily removed from the Arson

As for Petrueelli’s comment, Plaintiff states in a conclusory manner

that this statement amounted to discrimination. FAC

J

75. But without more facts or context as

to the statement, the Court cannot reasonably infer that Petmcelli’s statement was made in a
derogatory fashion. It is equally possible that such a statement was, as it states, an opinion that
Plaintiff was fortunate to have more flexible leave. As for the remainder of Plaintiffs allegations
regarding military-status discrimination, they do not amount of severe or pervasive conduct.
Accordingly, Plaintiffs hostile work environment claim is dismissed.
4.

Aiding and Abetting (Count Five)

Plaintiff alleges that all of the Individual Defendants are liable for aiding and abetting
Jersey City’s violations of the LAD. FAC

¶

102. With respect to the LAD, “individual liability

of a supervisor for acts of discrimination or for creating or maintaining a hostile environment can
only arise through the aiding and abetting mechanism.” Cicchetti v. Morris Cty. Sheriffs Office,
194 N.J. 563, 594 (2008).

Pursuant to N.J.S.A. 10:5-12(e), it is unlawful “[for any person,

whether an employer or employee.

.

.

to aid, abet, incite, compel or coerce any of the acts forbidden

under [the LAD].” To conclude that an individual person is liable under an aiding and abetting
theory there must be “active and purposeftul conduct.” Tarr. 181 N..J. at 83. Specifically,
a plaintiff must show that (I) the party whom the defendant aids must perform a
wrongful act that causes an injury; (2) the defendant must be generally aware of his
role as part of an overall illegal or tortious activity at the time that he provides the
assistance; and (3) the defendant must knowingly and substantially assist the
principal violation.
Id. at 84 (quoting Hurlev v. AtL Cliv Police Dept. 174 F.3d 95. 127 (3d Cir. 1999)) (internal
quotations marks and brackets omitted).

II

Plaintiff asserts claims against Shea, the Director of Public Safety: Cala, the Deputy
Director of the Department of Fire and Emergency Services: and Bunbury, the Director of Human
Resources for Jersey City. FAC ¶$} 8-10. Defendants contend that the allegations against these
Defendants are conclusorv. and that Plaintiff fails to allege that they were involved in the
discriminatory conduct or were even aware that it occurred. As a result, Defendants seek to dismiss
the claims against these Defendants as impermissible group pleading. Defs. Br. at 29-30. Plaintiff
counters that these Defendants had “the authority to control the Plaintiffs work place and thus
participate[dj

.

.

.

in the decisions to retaliate against Plaintiff” PIE Opp. at 34. Given the

allegations in the FAQ, Plaintiff fails to state an aiding and abetting claim against these Defendants.
Outside of conclusory allegations, Plaintiff does not sufficiently allege that these Defendants were
aware of the alleged wrongful conduct. Accordingly, Plaintiff’s aiding and abetting claim is
dismissed as to Shea, Cala, and Bunbury.
Defendants also seek to dismiss the aiding and abetting claim with respect to gender-based
discrimination as to McGill (Defs. Br. at 30) and the gender discrimination hostile workplace claim
as to Menendez (Del’s. Br. at 25). The Court agrees, although for a reason other than as argued by
Defendants. “[AJn individual employee can not be found liable for discrimination under NJ LAD
unless the employer is first found liable.” Hanani v. New Jersey. No. 03-3111, 2005 WL 1308231,
at * 16 (D.N.J. May31, 2005) (citing Fail/a v. City of Passaic, 146 F.3d 149, 158 (3d Cir. 1998)).
Because Plaintiffs gender-based LAD claims are dismissed, Plaintiffs gender-based aiding and
abetting claims must also be dismissed.
Finally, Defendants argue that the military-based aiding and abetting claim should be
dismissed as to Petrucelli because none of the military status allegations involve him. Defs. Br. at
22. The Court awees. As noted, the Court finds that Plaintiff has not plausibly set forth a hostile

12

work environment claim vis-ü-vis her military status.

As a result, the aiding and abetting claim

also fails.
However. Plaintiffs aiding and abetting claim survives as to Petmcelli. Menendez and
McGill for conduct that pertains to military-status discrimination (other than the hostile work
environment) under the LAD.
0. CEPA CLALNI (Count One)
CEPA, N.J.S.A. 34:19-1, et seq., pennits a whistleblowing employee to bring suit against
an employer5 that retaliated against her through an adverse employment action. Winters

1’.

N.

Hudson Reg’l Fire & Rescue, 212 N.J. 67, 89 (2012). “[T]he framework for proving a CEPA
claim follows that of a LAD claim.” Ivan, 595 F. Supp. 2d at 466.

Thus, the employee carries

the initial burden of establishing apr/ma facie case of retaliation. To establish aprimafacie case

under CEPA. a plaintiff must show that (1) she reasonably believed that her employer’s conduct
was violating a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public
policy; (2) she performed a “whisdeblowing” activity; (3) an adverse employment action was taken
against her; and (4) there is a causal connection between the whistleblowing activity and the
adverse employment action. Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003).
In seeking dismissal of the CEPA claim, Defendants first argue that Plaintiff fails to
demonstrate an objectively reasonable belief that a violation occurred. Defs. Br. at 8. A plaintiff
does not need to show that her employer actually violated a law or a clear mandate of public policy

to state a CEPA claim. Dzuvnar, 177 N.J. at 462. Rather, an employee must “show that his belief

An employer under CEPA includes “any individual, partnership, association, corporation or any
person acting directly or indirectly on behalf of or in the interest of an employer with the
employer’s consent.” N.J.S.A. 34:19-2(a); see also hwz, 595 F. Supp. 2d at 478. As a result,
unlike USERRA, the Individual Defendants can be directly liable for the alleged discriminatory
conduct.
13

that illegal conduct was occurring had an objectively reasonable basis in fact

in other words that,

given the circumstantial evidence, a reasonable lay person would conclude that illegal activity was
going on.” Young i’. Schering Corp., 275 N.J. Super. 221, 233 (App. Div. 1994) (quoting Lirrman
v. Firestone Tire & Rubber Co.. 709 F. Supp. 461, 470 (S.D.N.Y. 1989)). But if the employee’s
“belief, however sincere, was objectively unreasonable, his actions are not protected activity and
his CEPA claim must fail.” Blackburn v. United Parcel Sen., Inc., 3 F. Supp. 2d 504, 515 (D.N.J.
1998).
Here, Plaintiffs CEPA claim is premised on two alleged violations of law.

Plaintiff

contends that she suffered from retaliation after reporting Petmcelli’s gender-based discrimination
comments to Menendez that purportedly violated the LAD. FAC ¶IJ 24-31. Plaintiff also maintains
that she suffered from retaliation after reporting Petrucelli’s military-status based comments to
Menendez in violation of the USERRA and the LAD. Id. ¶1J 33-35. As for Plaintiffs complaints
regarding Petmcelli’s gender-based comments, while they are not sufficient as pled to support a
hostile work environment claim, they- are sufficient to establish an objectively reasonable belief
that a violation had occurred. This is not the case for Plaintiffs CEPA claim to the extent it is
premised on Petrueelli’s statement that she was lucky to have unlimited leave. As discussed,
Plaintiffs statement that this comment was derogatory is conclusory; it is equally possible to
interpret the remark in a non-discriminatory manner. Accordingly, it is objectively unreasonably
to assume there was LAD or USERRA violation solely based on this single comment. Therefore,
Plaintiffs CEPA claim is dismissed to the extent that it is premised on her complaints about
Petrucelli’s military status comments.
Defendants also reason that Plaintiffs CEPA claim must be dismissed because Plaintiff
does not plead that she was subject to retaliatory action as a result of her whistleblowing activities.

14

“Retaliatory action” under CEPA is defined as “the discharge, suspension or demotion of an
employee, or other adverse employment action taken against an employee in the tents and
conditions of employment.” N.J.S.A. 34:19-2(e). Employment actions that fall short of discharge,
suspension or demotion “may nonetheless be the equivalent of an adverse action.” Nardello v.
Township of Voorhees, 377 N.J. Super. 428, 433-34 (App. Div. 2005).

Moreover, adverse

employment action can include “many separate but relatively minor instances of behavior directed
against an employee that may not be actionable individually but that combine to make up a pattern
of retaliatory conduct.” Green v. Jersey City Bd. ofEduc., 177 N.J. 434,448 (2003). To determine
if there was retaliatory action, a court must consider “factors such as the employee’s loss of status,
a clouding of job responsibilities, diminution in authority, disadvantageous transfers or
assignments, and toleration of harassment by other employees.”

Mane/ni i’.

Township of Teaneck,

349 N.J. Super. 527, 564 (App. Div. 2002).
Here, Plaintiff alleges that in retaliation for her whistleblowing activities, she was, among
other things, denied training opportunities, subject to discipline, her military leave was not granted
in a timely fashion, she was temporarily transferred out of the Arson Investigation Unit, her work
schedule changed, her gun was taken away and she was denied the opportunity to go to the gun
range, and that she was not paid overtime. FAQ 1’ 31-32. When viewed together, these acts
sufficiently allege improper retaliatory conduct. Moreover, the Court has already concluded that
Plaintiff sufficiently alleged adverse employment actions at the motion to dismiss stage by
pleading that she was denied of overtime and transferred out of the Arson Investigation Unit.
Next, Defendants argue that Plaintiff fails to allege that the retaliatory conduct was causally
connected to her whistleblowing activities. Defs. Br. at il-IS. To determine whether a causal
connection exists, a plaintiff must allege facts “such that the court can infer that if the employe(s

15

actions remain unexplained, it is more likely than not that such actions were based on
impermissible reasons.” Bow/es v Cm’ of Camden, 993 F. Supp. 255, 264-65 (D.N.J. 1993). A
causal connection “can be satisfied by inferences that the trier of fact may reasonably draw based
on circumstances surrounding the employment action,” which may include temporal proximity.
Maimonc v. Cm’ ofAtlantic CTh’. 188 N.J. 221, 287 (2006). Plaintiff alleges in the FAC that within
an approximately seven-month period she was forced to incur numerous retaliatory actions from
supervisors who were aware of her whistleblowing activities. These allegations are enough to
plead that a causal connection existed at the motion to dismiss stage. See, e.g.. Rickerson v.
Pinnacle Foods, Inc., No. 17-4469, 2017 WL 6034147, at *3 (D.N.J. Dec. 6, 2017) (concluding
that the plaintiff showed a sufficient causal connection where there was a two-month gap between
the plaintiffs complaint and firing).
Finally, Defendants argue that the CEPA claim should be dismissed as to Shea, Cala,
Bunbury and McGill because Plaintiff fails to assert any CEPA-related allegations as to them.
Defs. Br. at 7-8. The Court agrees. Plaintiffs CEPA claim involves comments that Petnicelli
made to Plaintiff and that Plaintiff then reported to Menendez. Although Plaintiff alleges that she
endured a number of retaliatory actions because of her whistleblowing activities, Plaintiff does not
attribute any of the wrongful conduct to Shea, Cala. Bunbury or McGill in her CEPA claim. Thus,
as pled, no other Defendant appears to have been involved in any conduct that pertains to Plaintiff’s
whistleblowing activities. As a result, Count One is dismissed as to Shea. Cala. Bunbury and
McGill.
IV.

CONCLUSION

For the reasons stated above, Defendants’ motion to dismiss (D.E. 10) is GRANTED in
part and DENIED in part. The dismissal is without prejudice and Plaintiff is granted leave to

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file an Amended Complaint. 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 will be with prejudice. An appropriate Order accompanies this Opinion.
Dated: May 15, 2019

C\\JQ

1

John Michael Vazqu.D.J.

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