NEWTON-HASKOOR v. COFACE NORTH AMERICA et al

Filing 17

OPINION. Signed by Judge Joel A. Pisano on 5/17/2012. (gxh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
_________________________________________
:
AUDRA NEWTON-HASKOOR,
:
:
:
Plaintiff,
:
:
v.
:
:
COFACE NORTH AMERICA, et al.
:
:
:
Defendants.
:
_________________________________________ :

Civil Action No. 11-3931 (JAP)

OPINION

PISANO, District Judge.
Plaintiff, Audra Newton-Haskoor (“Plaintiff”) brings this action against Defendant
Coface North America, Inc. (“Coface” or “Defendant”)1 alleging that Coface unlawfully
discriminated against her in violation of Title VII and various civil rights statutes, retaliated
against her in violation of New Jersey’s Conscientious Employee Protection Act, and breached
the implied covenant of good faith and fair dealing in its employment relationship with Plaintiff.
Presently before the Court is a motion by Coface to dismiss the complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6). Also before the Court is Plaintiff’s motion to amend her
complaint to add a count of gender discrimination under New Jersey’s Law Against
Discrimination. For the reasons below, Defendant’s motion is granted, and Plaintiff’s motion is
denied.

1

All remaining defendants have been dismissed from this case. See Order filed April 30, 2012 at docket entry no.
14.

I. BACKGROUND2
In 1996, Defendant was hired as an investigator by non-party Newton and Associates, a
debt collection company located in Metairie, Louisiana that was founded by Plaintiff’s father,
Bill Newton. Approximately ten years later, in September 2006, Newton and Associates was
acquired by Coface Collections North America, Inc. (“CCNA”). Compl. ¶ 9. After the
acquisition, Plaintiff entered into a three-year employment contract with Coface. Id. ¶ 10.
In January 2009, Plaintiff was promoted to Branch Manager of the Credit Services
Division of CCNA. Id. ¶ 11. About that same time, CCNA sent a consultant, Frank Trezza,
from New Jersey to Louisiana to work on an unspecified “special project under [Plaintiff’s]
control.” Id. ¶ 12. According to Plaintiff, within a short time of Trezza’s arrival, a number of
problems arose with regard to Trezza. First, Plaintiff came to learn that he “was not as
knowledgeable and experienced as he claimed to be when hired.” Id. Second, Trezza “refused
to acknowledge Plaintiff as his superior and made it known that he refused to take direction”
from Plaintiff because she was a woman. Id. Finally, within about two months of Plaintiff’s
promotion, female employees began complaining to Plaintiff of sexual discrimination and
harassment by Trezza. Id. ¶ 12-16. Plaintiff advised human resources and management
regarding each of these problems but no action was taken by the company. Id. Plaintiff also
advised the employees who were victims of harassment to file formal complaints, but these
formal complaints were ignored. Id.
In March 2009, Plaintiff was asked to work on a 90-day assignment in New Jersey, an
opportunity that she accepted. Id. ¶ 17. The project began in late April 2009. Id. ¶ 18. In July
2

The facts recited herein are derived from Plaintiff’s complaint and are presumed to be true for the purposes of this
motion. See Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (In deciding a motion to dismiss
pursuant to Rule 12(b)(6), courts must “accept all factual allegations as true, construe the complaint in the light most
favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may
be entitled to relief.”). They do not represent the factual findings of the Court.

2

2009, while Plaintiff was apparently still working on the project in New Jersey, the company
reassigned supervisory responsibility of Trezza to another employee, Mike Rome, and shortly
thereafter many of Trezza’s duties were reassigned. Id.¶ 19. By August 2009, responsibility
over “the largest project” in Plaintiff’s department was shifted to Mike Rome with Plaintiff’s
consent. Id. ¶ 20.
Plaintiff alleges that by this time, as a result “of the stress” she had endured over the
previous eight months, she was “losing her hair and crying on a daily basis.” Id. ¶ 21. After
discussing it with family and friends, Plaintiff decided to ask for a transfer to the company’s
New Jersey Office. Id. ¶ 21-23. That request was granted, and Plaintiff moved to New Jersey in
December 2009 to head up the collection department for the “Coface Factoring Division.” Id. ¶
21, 23.
During her time in New Jersey, Plaintiff continued “to develop the collection department
for the CCMNA [sic] Factoring office.” Id. ¶ 26. As best as the Court can construe from the
complaint,3 during the latter part of 2010, Plaintiff, on her own initiative, undertook an
investigation into the company’s bookkeeping systems after she discovered some discrepancies
in certain reports. Id. ¶ 26-30. There is no indication that she advised anyone of the
discrepancies or of her investigation. The complaint also does not allege whether she completed
her investigation or what the results were. However, it appears that based upon certain
discrepancies Plaintiff allegedly noticed, as well as a conversation she overheard between her
supervisor and another executive, Plaintiff believed that Coface had “manipulat[ed]” certain
numbers to “show a better bottom line” to “Corporate.” Id. ¶ 30.
Plaintiff was terminated from her position in early January 2011. Id. ¶ 35. Plaintiff was
told that the reason for her termination was that she had sent proprietary company information to
3

The entire complaint is drafted in an inartful, somewhat confusing, and often careless manner.

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her father after his relationship with the company had terminated. According to the complaint,
after the acquisition, Plaintiff’s father had remained with “Coface” until October 2010 as a
consultant. Soon after ending his relationship with the company, Mr. Newton announced he
would be starting up a new collection agency on January 6, 2011. Id. ¶ 33, 35. When
confronted, Plaintiff stated that she sent her father a copy of an internal production report one
time in October 2010. Id. ¶ 35.
In response to her termination, Plaintiff filed a Charge of Discrimination on March 23,
2011 with the Equal Opportunity Commission (“EEOC”). On April 29, 2011, Plaintiff was
issued a Right to Sue notice. This lawsuit followed.
The instant complaint contains four counts.4 In the first two counts, which seem to
overlap to some degree, Plaintiff appears to be alleging claims for unlawful sex discrimination
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”),
unlawful retaliation under Title VII for complaints about gender discrimination, and deprivation
of Plaintiff’s civil rights in violation of 42 U.S.C. §§ 1981, 1985 and 1988. In the third count,
Plaintiff alleges a claim for unlawful retaliation under new Jersey’s Conscientious Employee
Protection Act, N.J.S.A. 34:19-2, et seq. (“CEPA”). In the fourth count, Plaintiff asserts that
Defendant breached an implied covenant of good faith and fair dealing.
Coface has moved to dismiss each of Plaintiff’s claims based on a number of different
arguments, including: (1) Plaintiff’s Title VII claims and § 1985 claims are time barred; (2) sex
discrimination is not actionable under § 1981; (3) Plaintiff has not alleged facts to state a claim
under § 1985; (4) Plaintiff has no cause of action under § 1988; (5) Plaintiff has failed to state
claims for unlawful retaliation because she has not pled facts showing that she engaged in a

4

Each count in the complaint is brought against “Defendants” collectively.

4

protected activity that caused the allegedly retaliatory conduct; and (6) Plaintiff has failed to set
forth facts that support a claim for breach of the covenant of good faith and fair dealing.5
In response, Plaintiff asserts that her discrimination and retaliation claims are not time
barred under a continuing violation theory, that she has stated a prima facie CEPA claim, and
that she has stated a prima facie case of retaliation and discrimination under Title VII for
complaining about discrimination.6

II. ANALYSIS
A. Legal Standard
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
explained the standard for addressing a motion to dismiss under Rule 12(b)(6) in Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 562, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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 entitle[ment]
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); see also Baraka v.
McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (stating that standard of review for motion to
dismiss does not require courts to accept as true “unsupported conclusions and unwarranted
inferences” or “legal conclusion[s] couched as factual allegation[s].” (internal quotation marks
5

Coface also argues that Coface was not Plaintiff’s employer, but rather Plaintiff’s employer was CCNA. The
complaint alleges that Coface was Plaintiff’s employer, but other facts alleged in the complaint can be read to lend
some support to Coface’s argument. It appears that the ultimate resolution Coface’s argument would require
reference to matters outside the pleading and, thus, would be is more appropriately addressed by way of a summary
judgment motion. However, given the Court’s opinion as set forth herein, it does not need to reach the question.
6
Plaintiff’s brief also makes reference to New Jersey’s Law Against Discrimination. However, no such claim is
asserted in the complaint.

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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) ...”
Twombly, 550 U.S. at 555 (internal citations and footnote omitted).
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, 556 U.S. 662,
678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). When evaluating a motion to dismiss for
failure to state a claim, district courts conduct a three-part analysis.
First, the court must “tak[e] note of the elements a plaintiff must plead to state a
claim.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1947 (2009). Second, the court should
identify allegations that, “because they are no more than conclusions, are not
entitled to the assumption of truth.” Id. at 1950. Third, “whe[n] there are wellpleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement for relief.” Id. This
means that our inquiry is normally broken into three parts: (1) identifying the
elements of the claim, (2) reviewing the complaint to strike conclusory
allegations, and then (3) looking at the well-pleaded components of the complaint
and evaluating whether all of the elements identified in part one of the inquiry are
sufficiently alleged.
Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). 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.’” Iqbal, 556 U.S. at 678 (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, 578 F.3d at 211 (citations omitted). “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;” mere consistency with liability is insufficient.
Iqbal, 556 U.S. at 678. A plaintiff may not required to plead every element of a prima facie case,

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but he must at least make “allegations that raise a reasonable expectation that discovery will
reveal evidence of the necessary element.” Fowler, 578 F.3d at 213 (3d Cir. 2009).

B. Title VII Sex Discrimination Claim
To establish a prima facie case of sex discrimination under Title VII, the plaintiff must
show that (1) she belongs to a protected class; (2) she was qualified for the position; (3) she
suffered an adverse employment decision; and (4) circumstances exist that give rise to an
inference of unlawful discrimination in that similarly situated male employees were treated more
favorably. Brown-Baumbach v. B&B Automotive, Inc., 437 Fed. Appx. 129, 134 (3d. Cir. 2011)
(citing Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d
207 (1981); Scheidemantle v. Slippery Rock Univ. State Sys. of Higher Educ., 470 F.3d 535, 539
(3d Cir.2006)). Plaintiff contends that the facts pled in the complaint are sufficient to state a
claim for gender discrimination under Title VII. The Court disagrees.
Giving Plaintiff the benefit of all reasonable inferences, the complaint appears to contain
facts that satisfy the first and second elements of a Title VII discrimination claim. As to the third
element, Plaintiff claims that her “transfer and termination were adverse employment decisions.”
Pl. Br. at 24.7 As to the fourth element, Plaintiff alleges that the circumstance that raise an
inference of unlawful discriminatory action was the fact that “Trezza was never disciplined or
terminated” despite “complaints of sexual harassment lodged against him by female employees
with the participation of Plaintiff.” Id.
The Court finds Plaintiff’s assertions to be meritless and concludes that Plaintiff has
failed to state a claim for sex discrimination under Title VII. As an initial matter, there is

7

Plaintiff’s 25-page brief does not contain page numbers; therefore, the Court refers to the page number appearing
in the header generated by the District’s electronic filing system.

7

nothing in the complaint to infer that Plaintiff’s transfer to New Jersey was an “adverse
employment decision.” To the contrary, Plaintiff herself requested the transfer to the New Jersey
office, and it appears that her request was enthusiastically granted by management. See Compl. ¶
21, 23 (President of Coface Credit Management North America “agreed that Plaintiff would be a
valuable asset to the Factoring Division” and “Plaintiff’s transfer was approved immediately
without objection or question.”) 8
Turning to Plaintiff’s termination, the complaint is devoid of any facts that raise an
inference that the basis for Plaintiff’s termination was her sex. It is true that the complaint
alleges that another employee, Bryan Clancy, a male, was also accused of sending “reports” to
Mr. Newton. Unlike Plaintiff, Clancy was not terminated. Compl. ¶ 36. However, the two do
not appear to have been “similarly situated,” as Clancy denied sending any such reports to
Newton, while Plaintiff admitted to management that she had done so on at least one occasion.
Furthermore, the Court is not persuaded by Plaintiff’s argument that discrimination can
be inferred from the fact that Trezza was not terminated or disciplined in 2009 despite
allegations of sexual harassment against him. Pl. Brf. at 24. As best as the Court can construe
Plaintiff’s argument, it appears Plaintiff is trying to say that Trezza, a male, engaged in bad
behavior and was not disciplined while, Plaintiff, a female, engaged in bad behavior and was
terminated. However, the nature of the parties’ alleged behavior is too dissimilar and the time
periods in which the behaviors occurred are too remote to conclude the two were “similarly
situated” so as to permit the inference advanced by Plaintiff.

8

The Court has assumed that the “transfer” Plaintiff refers to in her brief is Plaintiff’s permanent relocation to New
Jersey, and not the temporary assignment of Plaintiff to the New Jersey office in early 2009. However, even if
Plaintiff was referring to her 2009 temporary assignment, the Court’s conclusion is unchanged. There is nothing in
the complaint from which it can be inferred that Plaintiff’s temporary assignment was an adverse employment
action. Indeed, Plaintiff herself viewed it as “an opportunity to learn about other aspects of Coface’s many services
and a chance to advance her career.” Compl. ¶ 18.

8

Coface has also argued that any sex discrimination claim that is based solely on the
events involving or concerning Trezza is untimely. However, Plaintiff is clear that she has not
brought any claims based solely upon the actions of Trezza. Rather, Plaintiff states that the
discriminatory act upon which her claims are based is the termination of her employment. Pl.
Brf. at 15 (stating that Plaintiff’s Title VII, § 1985 and CEPA claims “rely upon the distinct act
of termination”). As there are no claims in this action that rely solely on Trezza’s actions in
2009, the Court need not reach Coface’s argument that such claims would be untimely.

C. Title VII Retaliation Claim
To establish a prima facie case of retaliation, a plaintiff must show that “(1) she engaged
in activity protected by Title VII; (2) the employer took an adverse employment action against
her; and (3) there was a causal connection between her participation in the protected activity and
the adverse employment action.” Moore v. City of Phila., 461 F.3d 331, 340-41 (3d Cir. 2006)
(quoting Nelson v. Upsala College., 51 F.3d 383, 386 (3d Cir. 1995)). Facts pled in the
complaint support the first two elements. As to the first element, Plaintiff clarifies in her brief
that the protected activity she engaged in was “report[ing] Trezza’s acts of sexual harassment to
human resources and direct[ing] [employees who were harassed] to file internal complaints
[regarding the harassment].” Pl. Brf. at 23. As to the second element, the only materially
adverse employment action taken against Plaintiff that can be discerned from the complaint is the
termination of her employment.
However, it is the third element where Plaintiff’s complaint falls short. There are simply
no facts pled from which a causal connection between Plaintiff’s complaints in 2009 about
Trezza’s actions and Plaintiff’s termination in 2011 can be inferred. The Third Circuit has noted

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that a causal connection can be shown through (1) temporal proximity between the protected
activity and the adverse employment action; (2) an intervening pattern of antagonism; or (3)
other facts, that, when “looked at as a whole,” are sufficient to raise an inference. Farrell v.
Planters Lifesavers Co., 206 F.3d 271, 280-81 (3d Cir. 2000). Nothing here supports the
existence of a causal connection.
First, the temporal proximity does not suggest a causal connection. The last time Plaintiff
complained to management about Trezza’s actions was in March 2009, nearly two years before
her termination. This simply is far too long of an interval to infer a causal connection between
the two events. See Dooley v. Roche Laboratories, Inc., 2007 WL 556885 (D.N.J. 2007) (“[T]he
interval of time [between the protected activity and the adverse action], almost a full year, is
simply to remote to for this Court to find a causal connection.”).
Second, there is no intervening pattern of antagonism or mistreatment. Indeed, according
to the complaint, Plaintiff appeared to be advancing in her career during the two-year period
between the protected activity and her termination. She was asked to set up a new department
for the company, which she described as “a chance to advance her career.” Compl. ¶ 17.
Thereafter, she requested and was granted a transfer to New Jersey, and was told she “would be a
valuable asset” to her new division. Id. ¶ 23. Plaintiff states she continued to “successfully
develop” her new department after her transfer to New Jersey. The complaint does note,
however, that Plaintiff achieved her success despite “management” providing her with “little”
support in the way of “tools and programming to work efficiently.” Id. ¶ 18. The complaint also
notes that, beginning apparently sometime in 2010, Plaintiff’s “discussions” regarding business
matters with her direct supervisor became more infrequent, until most of the conversations
between the two were about “personal” matters. Id. ¶ 31. These allegations, however, do not

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amount to a pattern of antagonism so as to bridge the large gap in temporal proximity and
suggest a causal connection between the protected activity and Plaintiff’s termination.
Moreover, the complaint does not suggest in any way that either the lack of “tools and
programming” or the decreasing interaction with her supervision was a result of Plaintiff
engaging in the protected activity.
Last, for the same reasons described above, the facts alleged taken as a whole do not
support the existence of a causal connection between Plaintiff’s complaints about sexual
harassment and her termination. Consequently, Plaintiff has failed to state a plausible claim for
retaliation under Title VII.

D. CEPA claim
In order to establish a claim for retaliation under CEPA, a plaintiff must allege (1) he or
she reasonably believed that the employer's conduct was violating a law, rule, regulation
promulgated pursuant to law, or a clear mandate of public policy; (2) he or she objected to the
conduct; (3) an adverse employment action was taken against him or her; and (4) a causal
connection exists between the whistle-blowing activity and the adverse employment action.
Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 404 (3d Cir. 2007).
Although not readily apparent from the complaint, Plaintiff clarifies in her brief that the
conduct she alleges that supports the first element of her claim revolves around her discovery of
certain discrepancies in the company’s internal reports. Pl. Brf. at 18. However, the complaint
is devoid of any allegation that she told anyone about the discrepancies she discovered or, said
another way, that she blew the proverbial whistle. Having failed to engage in any whistleblowing activity, she cannot state a plausible claim for retaliation under CEPA.

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E. Good Faith and Fair Dealing Claim and Claims Under §§ 1981, 1985 and 1988
Plaintiff has failed to respond to Defendants arguments that she has failed to plead
plausible claims for breach of the implied covenant of good faith and fair dealing or for violation
of §§ 1981, 1985 and 1988. As such, Plaintiff has abandoned those claims. See, e.g., Duran v.
Equifirst Corp., 2010 WL 936199, at *3 (March 12, 2010) (“The absence of argument constitutes
waiver in regard to the issue left unaddressed, and that waives the individual counts
themselves.”); Griglak v. CTX Mortg. Co., LLC, 2010 WL 1424023 (D.N.J. April 8, 2010)
(“The failure to respond to a substantive argument to dismiss a count, when a party otherwise
files opposition, results in a waiver of that count.”); Marjac, LLC v. Trenk, 2006 WL 3751395
(D.N.J. December 19, 2006) (“Plaintiffs do not address their § 1983 claims [in their opposition to
a motion to dismiss] … and has thus abandoned them.”) (citing cases).

F. Motion to Amend
Plaintiff has moved to amend her complaint to add a claim for sex discrimination and
retaliation under New Jersey’s Law Against Discrimination, N.J.S.A. 10:5-1, et seq.,
(“NJLAD”). Pursuant to Federal Rule of Civil Procedure 15, leave to amend the pleadings is
generally given freely. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222
(1962); Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000). However, the Court may deny a
motion to amend where there is “undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the
amendment.” Foman, 371 U.S. at 182.

12

A proposed amendment is appropriately denied where it is futile. An amendment is futile
if it “is frivolous or advances a claim or defense that is legally insufficient on its face.” Harrison
Beverage Co. v. Dribeck Imps., Inc., 133 F.R.D. 463, 468 (D.N.J. 1990) (internal quotation
marks and citations omitted). In determining whether an amendment is “insufficient on its face,”
the Court employs the Rule 12(b)(6) motion to dismiss standard. See Alvin, 227 F.3d at 121.
Here the court finds the proposed amendment would be futile.
Although the motion to amend the complaint was apparently filed in response to
Defendant’s motion to dismiss, the proposed amended complaint does not contain any additional
or clarifying factual matter. The proposed amended complaint is identical to the original
complaint but for an added fifth count containing claims of retaliation and discrimination under
NJLAD.
An analysis of claims made pursuant to the NJLAD generally follows the analysis of
Title VII claims, Schurr v. Resorts Int'l Hotel, Inc., 196 F.3d 486, 498 (3d Cir. 1999). As
discussed above, an analysis under the relevant Rule 12(b)(6) standard shows that Plaintiff has
failed to plead plausible claims of discrimination and retaliation under Title VII. It follows,
therefore, that Plaintiff’s proposed NJLAD claims would fail under the same standard. As such,
the Court shall deny Plaintiff’s motion to amend, finding that such amendment would be futile.

III. CONCLUSION
For the reasons above, Defendant’s motion to dismiss is granted, and Plaintiff’s motion to
amend is denied. As Plaintiff’s motion to amend was filed in response to Defendant’s motion to
dismiss, and the proposed amendment failed to save Plaintiff’s complaint from 12(b)(6)
dismissal, the Court finds that further leave to amend would be futile. See Phillips v. County of

13

Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (“[I]f a complaint is subject to a Rule 12(b)(6)
dismissal, a district court must permit a curative amendment unless such an amendment would
be inequitable or futile.”). An appropriate Order accompanies this Opinion.

/s/ Joel A. Pisano
JOEL A. PISANO, U.S.D.J.
Dated: May 17, 2012

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