ROMAN v. WASTE MANAGEMENT OF NEW JERSEY et al

Filing 44

OPINION filed. Signed by Judge Joel A. Pisano on 5/12/2011. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
____________________________________
:
JAVIER ROMAN,
:
:
Plaintiff,
:
Civil Action No. 10-4337 (JAP)
v.
:
:
OPINION
WASTE MANAGEMENT OF NEW
:
JERSEY, WASTE MANAGEMENT, INC., :
LAWRENCE FASCHAN, SCOTT
:
SMITH, JOHN HYNES,
:
INTERNATIONAL BROTHERHOOD
:
OF TEAMSTERS, LOCAL 945, ABC,
:
INC. 1-10, and JOHN DOES 1-10,
:
:
Defendants.
:
___________________________________ :

PISANO, District Judge.
Before the Court is a motion to dismiss certain claims filed by Defendants Waste
Management of New Jersey, Inc. (“WMNJ”), Lawrence Faschan, and John Hynes (collectively,
the “Waste Management Defendants”), pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Plaintiff Javier Roman opposes the motion. For the reasons that follow, the Court
will grant the motion to dismiss.
I.

BACKGROUND
On August 23, 2010, Plaintiff commenced this action against the Waste Management

Defendants,1 Scott Smith, and the International Brotherhood of Teamsters, Local 945 (“Local
945”). Plaintiff previously had filed a complaint with the United States Equal Employment
1

The Court notes that Plaintiff also brought the Complaint against Waste Management,
Inc., of which, he alleged, WMNJ was a wholly owned subsidiary. In its Answer, WMNJ denied
the allegation.

Opportunity Commission (“EEOC”) and subsequently, on May 27, 2010, he received his “Right
to Sue” letter. In the instant Complaint, Plaintiff alleges that the defendants engaged in
discriminatory conduct toward him, which included uttering racial epithets to Plaintiff,
threatening Plaintiff if he made worker compensation claims, denying Plaintiff‟s applications for
management positions, and ultimately terminating Plaintiff‟s employment.
Plaintiff claims that, as a Latino and member of a protected class, he received disparate
treatment from the defendants (Count One) and was subject to disparate impact (Count Two).
He also claims that the defendants created a hostile work environment (Count Three) and
retaliated against him for opposing unlawful acts and practices (Count Four). Plaintiff states the
first four counts of his Complaint pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000,
et seq. (“Title VII”) and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq.
(“LAD”). Finally, Plaintiff complains that WMNJ and Local 945 breached their duty of fair
representation by failing to adhere to its collective bargaining agreement (Count Five) and
breached the implied covenant of good faith and fair dealing with regard to the collective
bargaining agreement (Count Six).
The Waste Management Defendants filed its motion to dismiss on October 7, 2010. They
request that the Court dismiss Plaintiff‟s LAD claims against WMNJ, his Title VII and LAD
claims against Lawrence Faschan and John Hynes (the individual defendants), and his Title VII
disparate impact and retaliation claims against WMNJ.
II.

STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(6), a court may grant a motion to dismiss if

the complaint fails to state a claim upon which relief can be granted. The Supreme Court set
forth the standard for addressing a motion to dismiss under Rule 12(b)(6) in Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 127 S. Ct. 1955 (2007). The Twombly Court stated that, “[w]hile a
complaint attacked by a Rule 12(b)(6) motion to dismiss does not need 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.” Id. at 555 (internal citations omitted). Therefore, for a complaint to withstand a
motion to dismiss under Rule 12(b)(6), the “[f]actual allegations must be enough to raise a right
to relief above the speculative level, on the assumption that all the allegations in the complaint
are true (even if doubtful in fact).” Id. (internal citations and footnote omitted).
More recently, the Supreme Court has emphasized that, when assessing the sufficiency of
a civil complaint, a court must distinguish factual contentions and “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements.” Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949 (2009). A complaint will be dismissed unless it “contain[s] sufficient factual
matter, accepted as true, to „state a claim to relief that is plausible on its face.‟” Id. (quoting
Twombly, 550 U.S. at 570). This “plausibility” determination will be “a context-specific task
that requires the reviewing court to draw on its judicial experience and common sense.” Fowler
v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (citations omitted).
A district court deciding a motion to dismiss generally does not consider material beyond
the pleadings. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997);
Pension Benefit Guar. Corp. v. White Consol. Industries, 998 F.2d 1192, 1196 (3d Cir. 1993),
cert. denied, 510 U.S. 1042, 114 S. Ct. 687 (1994). Typically, when a court does rely on matters
outside of the pleadings, it must convert the motion to dismiss into a motion for summary
judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and provide all parties
with a reasonable opportunity to present all material pertinent to the motion. See Fed. R. Civ. P.

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12(d). This rule allows the plaintiff an opportunity to respond to any extraneous documents that
the court considers. Pension Benefit, 998 F.2d at 1196. An exception to the general rule exists,
however, so that a court may consider extraneous documents to which a plaintiff refers in the
complaint or on which the claims in the complaint were based without converting the motion to
dismiss into one for summary judgment. Burlington Coat Factory, 114 F.3d at 1426; Pension
Benefit, 998 F.2d at 1196. The rationale behind the exception is that, when a complaint refers to
or relies on a document, “the plaintiff obviously is on notice of the contents of the document, and
the need for a chance to refute evidence is greatly diminished.” Pension Benefit, 998 F.2d 1192
at 1196-97.
In this case, the Waste Management Defendants ask the Court to consider documents
attached to the declaration of defense counsel (“Declaration”), Docket Entry no. 10-1, to the
extent that Plaintiff‟s Complaint referred to or was based on those documents. They include the
Charge of Discrimination filed with the EEOC and the New Jersey Division on Civil Rights
(“DCR”) and the “Dismissal and Notice of Rights” letter issued by the EEOC on May 26, 2010.
Plaintiff specifically refers to both documents in his Complaint. See Complaint, ¶ 59. Plaintiff
does not appear to oppose the use of these documents and, indeed, refers to them in his
opposition to the instant motion. Accordingly, the Court will consider the documents and
examine the issues under the standard of a motion to dismiss.
III.

DISCUSSION
In their motion to dismiss, the Waste Management Defendants request that the Court

dismiss Plaintiff‟s LAD claims against WMNJ, his Title VII and LAD claims against Lawrence
Faschan and John Hynes (the individual defendants), and his Title VII disparate impact and

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retaliation claims against WMNJ. Because the Waste Management Defendants propose to
dismiss each under a different legal theory, the Court will address them separately.
A.

LAD Claims

The LAD provides means for redress for victims of discrimination. N.J.S.A. 10:5-3. The
law provides victims an option to pursue recompense through an administrative process with the
DCR as an alternative to commencing an action in New Jersey state courts. Chugh v. W.
Inventory Servs., Inc., 333 F. Supp. 2d 285, 290 (D.N.J. 2004). The LAD, however, contains an
“election of remedies” provision that bars an individual from bringing a judicial action while the
DCR is pursuing its investigation or after the DCR has rendered its determination. Id.
Specifically, the provision states:
[T]he procedure herein provided shall, while pending, be exclusive; and the final
determination therein shall exclude any other action, civil or criminal, based on
the same grievance of the individual concerned.
N.J.S.A. 10:5-27. This provision “basically seeks to prevent parties from having „a second bite
at the apple‟ by pursuing the alternative route to relief. It seeks to prevent duplication of efforts
and forum shopping.” Wilson v. Wal-Mart Stores, 158 N.J. 263, 271, 729 A.2d 1006, 1010
(1999) (citing Ferrara v. Tappan Co., 722 F. Supp. 1204, 1205 (D.N.J. 1989)).
Pursuant to a worksharing agreement between the EEOC and the DCR, a plaintiff may
file a Charge of Discrimination with the EEOC and elect to “dual file” it with the DCR so that
one agency may investigate discrimination claims under both federal and state law. See
Declaration ¶3, Exh. B. According to a letter from the DCR to the Waste Management
Defendants, “[o]nce the Equal Opportunity Commission has made a Determination concerning
[a] charge and closes its file, the Division on Civil Rights ordinarily adopts the EEOC‟s

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determination.” Id. The DCR will review, however, a no reasonable cause determination by the
EEOC upon application and for good cause shown. Id.
In this case, Plaintiff chose to seek relief through the DCR administrative process. He
elected to have his EEOC Charge of Discrimination “dual filed” with the DCR, and the DCR
deferred investigation and processing to the EEOC. Id. The EEOC returned a determination of
no reasonable cause on May 26, 2010. Declaration, Exh. C. Plaintiff filed the instant suit on
August 23, 2010. On October 7, 2010, the Waste Management Defendants filed their motion to
dismiss, citing the LAD‟s election of remedies provision as the reason the LAD claims should be
dismissed. After this, on October 18, 2010, Plaintiff advised the DCR by letter that, having no
record of a determination from the DCR, he was withdrawing its DCR complaint.
Because Plaintiff elected to proceed by the administrative process, it would typically
seem straightforward that N.J.S.A. 10:5-27 would control and his LAD claims would be
dismissed. See Metzler v. Am. Transp. Grp., L.L.C., 2008 WL 413311 (D.N.J. 2008) (dismissing
LAD claims when DCR adopted no reasonable cause determination of EEOC pursuant to
worksharing agreement). Plaintiff, however, points to Hernandez v. Region Nine Hous. Corp.,
146 N.J. 645, 684 A.2d 1385 (1996), as support for maintaining his LAD claims here. In
Hernandez, the plaintiff, Hernandez, filed separate discrimination claims, regarding the same
conduct, on separate dates with the EEOC and the DCR. Id. at 650. Hernandez then withdrew
his DCR complaint before the DCR had taken any action. Id. at 651. Almost a year after the
withdrawal, the EEOC returned a no reasonable cause determination and Hernandez thereafter
filed suit. Id. The Supreme Court of New Jersey allowed his LAD claims to survive, reasoning
that the EEOC determination was not a final DCR determination as contemplated by N.J.S.A.
10:5-27. Id. at 656.

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There are important distinctions in this case, however, that render Hernandez inapposite.
In Hernandez, the EEOC complaint and DCR complaint began, proceeded, and ended as separate
claims, instead of, as here, proceeding at the same pace pursuant to the worksharing agreement.
This is important because in Hernandez, it was obvious that the New Jersey Supreme Court
considered only whether the EEOC determination, on its own, precluded the inclusion of the
LAD claims. In this case, it is more complex. Under the worksharing agreement, the EEOC is
given authority to investigate LAD violations, and the DCR ordinarily adopts the EEOC
determination unless a complainant applies to the DCR for review. Therefore, because it appears
that Plaintiff did not apply to the DCR for review, the Court could reasonably assume that any
DCR determination would adopt that of the EEOC and thus preclude the LAD claims from this
suit.
The Court need not make that assumption, however. In Hernandez, the plaintiff
withdrew his DCR complaint well before the EEOC determination and well before filing his suit.
Here, Plaintiff withdrew his DCR complaint only after the EEOC completed its investigation of
the Title VII and LAD claims and rendered its determination, such that it is obvious that his
withdrawal served only to allow his LAD claims to proceed in this case. Indeed, Plaintiff only
withdrew his DCR complaint after the Waste Management Defendants moved to dismiss them
based on the election of remedies provision, providing further support that he withdrew his
complaint to receive a “second bite at the apple.” More to the point, the DCR process “shall,
while pending, be exclusive” pursuant to N.J.S.A. 10:5-27. Because Plaintiff‟s complaint before
the DCR was still pending when he filed his Complaint with the Court, his LAD claims were
barred by statute and his Complaint thus fails to state a claim with regard to them.

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B.

Claims against the Individual Defendants

Title VII states that “[i]t shall be an unlawful employment practice for an employer” to
hire, fire, or otherwise discriminate against an individual on the basis of his or her race, color,
religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). The statute defines “employer” as “a
person engaged in an industry affecting commerce who has fifteen or more employees.” 42
U.S.C. § 2000e(b). Interpreting whether individuals may be held liable as an “employer,” the
Third Circuit has clearly held that “Congress did not intend to hold individual employees liable
under Title VII.” Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1078 (3d Cir.
1996). Accordingly, the individual defendants in this case may not be held liable under Title VII
and the claims are dismissed.
Similarly, the LAD claims against the individual defendants must be dismissed. The
Supreme Court of New Jersey has held that “the plain meaning of the definition of employer in
the LAD does not include a supervisor. Instead, 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 that applies to „any person.‟” Cicchetti v. Morris Cnty. Sheriff's
Office, 194 N.J. 563, 594, 947 A.2d 626, 645 (2008) (internal citations omitted).2 It is only
possible to find an individual liable for aiding and abetting under the LAD, however, when the
employer may be held liable under the LAD. Feraro-Bengle v. Randstad N. America, L.P.,
2006 WL 2524170, *12 (D.N.J. 2006); Jackson v. Del. River & Bay Auth., 2001 WL 1689880,
*22 (D.N.J. 2001) (“If the NJLAD does not apply to the employer . . . then no individual aiding
and abetting liability may be found, because an employer's liability must be shown before any
supervisory liability for violations can exist.”); see also Monaco v. Am. Gen. Assur. Co., 359
N.J.S.A. 10:5-12 states that it is unlawful “[f]or any person, whether an employer or an
employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden
under this act, or to attempt to do so.”
2

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F.3d 296, 307 n.15 (3d Cir. 2004) (“[I]nasmuch as we hold that the district court correctly
granted summary judgment to the corporate defendants, any claim he brought against the
individual defendants for aiding and abetting fails as well.”). In the present case, the Court has
dismissed Plaintiff‟s LAD claims against the employer, WMNJ, and therefore it must dismiss the
LAD claims against the individual defendants as well.
C.

Title VII Claims for Disparate Impact and Retaliation

“It is a basic tenet of administrative law that a plaintiff must exhaust all required
administrative remedies before bringing a claim for judicial relief.” Robinson v. Dalton, 107
F.3d 1018, 1020 (3d Cir. 1997) (citing McKart v. United States, 395 U.S. 185, 193, 89 S. Ct.
1657, 1662 (1969)). With regard to employment discrimination claims, 42 U.S.C. § 2000e-5
provides that a plaintiff must file a timely Charge of Discrimination with the EEOC before filing
a lawsuit. A plaintiff must then wait for the EEOC to complete its investigation of the charge
and issue a “Right to Sue” letter before the complainant can initiate a private action. See Burgh
v. Borough Council, 251 F.3d 465, 470 (3d Cir.2001) (describing administrative process for
discrimination claims).
After a charge is filed, “the scope of a resulting private civil action in the district court is
defined by the scope of the EEOC investigation which can reasonably be expected to grow out of
the charge of discrimination . . . .” Barzanty v. Verizon PA, Inc., 361 Fed. Appx. 411, 414 (3d
Cir. 2010) (quoting Hicks v. ABT Assoc., Inc., 572 F.2d 960, 966 (3d Cir.1978)). The Third
Circuit further explained that “[a]lthough this standard does not necessarily preclude a plaintiff
from asserting a claim for the mere failure to check a box on an EEOC Charge Form, it does
prevent a plaintiff from „greatly expanding an investigation simply by alleging new and different
facts when she is contacted by the Commission following her charge.‟” Id. (quoting Hicks, 572

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F.2d at 967). Finally, “[b]ecause the EEOC is required to serve notice on the employer against
whom the charges are made, this standard also allows an employer to be put on notice of the
claims likely to be filed against it.” Id.
Interpreting Plaintiff‟s charge liberally, his disparate impact and retaliation claims were
still not within the scope of the charge.3 To state a claim for disparate impact, a plaintiff “must
identify the specific employment practice that is challenged [and] show that the employment
practice causes a disparate impact on the basis of race, color, religion, sex, or national origin.”
Stagi v. Nat’l R.R. Passenger Corp., 391 Fed. Appx. 133, 136 (3d Cir. 2010) (citations omitted).
Though Plaintiff has pled these elements in his Complaint, nothing in his EEOC charge suggests
that a reasonable investigation of the charge would cover a specific employment practice that had
a disparate impact. In fact, the only specific employment practices to which Plaintiff refers in his
charge are the “employer policies” that others have violated while retaining their jobs, when
Plaintiff‟s employment was terminated. Such a reference could not reasonably be expected to
put the employer on notice that a disparate impact claim regarding any specific employment
practices was likely to be filed against it.

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Plaintiff‟s charge included the following language:
I was first hired on or about April 11, 2005. My most recent position was that of
a Driver.
I have been subjected [to] disparate treatment and harassment. I was suspended
without cause sometime in December 2008. Shortly thereafter in January 2009 I
was terminated. Meanwhile, other employees who have violated [the] employer
policies have remained employed without any discipline or discharge.
Given the above I believe I have been discriminated against based on my national
origin in violation of Title VII of the Civil Rights Act of 1964, as amended.

See Declaration, Exh. A.
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To state a claim for retaliation, “a plaintiff must prove that: (1) she engaged in protected
conduct; (2) her employer took an adverse employment action against her; and (3) a causal link
exists between her protected conduct and the adverse employment action.” Young v. Temple
Univ. Hosp., 359 Fed. Appx. 304, 310 (3d Cir. 2009). Plaintiff‟s charge provides no hints that he
engaged in any protected conduct, nor that his termination or suspension was the result of any
protected conduct. Accordingly, it is not reasonable to expect an investigation into his charge to
cover such claims, nor could his employer reasonably expect to be sued for such claims.
Plaintiff did not include in his EEOC charge anything to suggest his claims for disparate
impact or retaliation. Therefore, he did not exhaust his administrative remedies with respect to
these claims and they must be dismissed.
IV.

CONCLUSION
The Court concludes that Plaintiff‟s LAD claims against WMNJ are precluded by statute,

that his Title VII claims and LAD claims against Lawrence Faschan and John Hynes fail as a
matter of law, and that his disparate impact and retaliation claims were not exhausted in the
administrative process. Accordingly, Plaintiff has failed to state a claim with respect to those
claims and they will be dismissed. An appropriate order shall issue.

/s/ JOEL A. PISANO
United States District Judge
Dated: May 12, 2011

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