ROSSI v. VERICARE

Filing 31

OPINION filed. Signed by Judge Freda L. Wolfson on 11/22/2016. (mmh)

*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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Plaintiff,
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v.
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VERICARE MANAGEMENT, INC.
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Defendant.
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____________________________________:

BART ROSSI

Civ. Action No.: 13-6884 (FLW)(DEA)
OPINION

WOLFSON, United States District Judge:
Presently before the Court is defendant Vericare Management, Incorporated’s
(“Defendant” or “Vericare”) motion for partial dismissal of plaintiff Bart Rossi’s (“Plaintiff”)
Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6). In his Complaint, Plaintiff
asserted various claims under the False Claims Act (“FCA”), 31 U.S.C. § 3729, et seq., and
analogous state law causes of action, alleging that Defendant, his former employer, was submitting
fraudulent claims to Medicare and Medicaid. However, the parties have settled all federal and
state FCA claims. Now, the only remaining claims are employment-related state law claims
stemming from Plaintiff complaining to Vericare about its alleged fraudulent activities, as well as
discrimination based on Plaintiff’s age. Specifically, Plaintiff asserts claims under the New Jersey
Conscientious Employee Protection Act (“CEPA”), N.J. Stat. Ann. § 34:19, et seq., and the New
Jersey Law Against Discrimination (“LAD”), N.J. Stat. Ann. § 10:5-1, et seq., for age
discrimination and hostile work environment. In the instant motion, Defendant only seeks to

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dismiss Plaintiff’s claims under the LAD. For the reasons set forth below, Defendant’s motion is
GRANTED.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In 1978, Plaintiff founded Rossi Psychological Group, which “was a behavioral health

science organization with licensed mental health/behavioral health professionals delivering
developed assessments and counseling to elderly residents at almost 150 nursing facilities
throughout New Jersey.” Compl. at ¶¶ 8-9. After owning and operating that company for
approximately thirty-one years, Plaintiff sold Rossi Psychological Group to Vericare in 2009. Id.
at ¶ 10.

According to Plaintiff, “Vericare directly employs licensed behavioral healthcare

professionals, including psychiatrists, psychologists, licensed clinical social workers, physicians,
nurses and other medical professionals who provide behavioral health services and psychotherapy
to elderly patients in nursing facilities and long-term care settings.” Id. at ¶ 7. Plaintiff continued
to work at Vericare until he was terminated in June 2013. See id. at ¶ 54.
Beginning in 2012, Plaintiff alleges that “there was a change in upper management at
Vericare,” which resulted in the adoption of new practices that “led to extremely excessive billing
for evaluations, a significant amount of unnecessary psychological evaluations and hundreds of
needless psychotherapy follow-up sessions.” Id. at ¶¶ 12, 39. Plaintiff further alleges that “[t]hese
practices were implemented solely to increase Vericare’s profits. The practices were a violation
of Medicare and Medicaid’s provisions and Vericare improperly received funds allocated for the
Medicare and Medicaid program.” Id. at ¶ 39. Because of his concerns, Plaintiff allegedly raised
the following objections to various members of upper management at Vericare:
Specifically, Vericare management disregarded the competency evaluations of
patients and pushed Dr. Rossi to conduct follow-up sessions on patients determined
to be “not competent," therefore, rendering the session not medically necessary.
Dr. Rossi objected to this practice as well as the demand that every patient in a

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rehabilitation facility receive two to five therapy sessions per week regardless of
necessity as is the practice by Vericare in other states. Dr. Rossi also objected to
the need for every patient in a rehabilitation setting to be evaluated by a
psychologist, too many sessions with patients who had cognitive problems,
caseload calculators pushing three or more sessions per month per patient, overuse
of psychological testing, the "Vericare Standing Order Form" and push for standing
orders so that each new patient in a nursing home serviced by Vericare is seen by a
Vericare psychologist, cash bonuses given to Vericare Regional Managers for
procuring standing orders with nursing facilities, and cash bonuses to
psychologists, licensed social workers and nurses for services that were above a set
high number.
Id. at ¶ 38. In response to his objections, Plaintiff alleges that Defendants “minimized [his] efforts
and involvement within Vericare, ignored [his] suggestions for business development and instead
put pressure on [him] to conduct fraudulent business.” Id. at ¶¶ 40, 114. In addition, Plaintiff
alleges that Defendant “accused Dr. Rossi's region of being unsuccessful despite proof that it held
the top position in New Jersey and faced growing competition.” Id. at ¶¶ 41, 115. Indeed, under
the new management, Plaintiff alleges that he did not receive a bonus for his performance in either
2011 or 2012. Id. at ¶¶ 44-45, 118-119. According to Plaintiff, however, one of his subordinates
received “a sizable bonus for 2012 to which Dr. Rossi helped him achieve yet Vericare awarded
no bonus to Dr. Rossi for his efforts in 2012.” Id. at ¶¶ 45, 118. When that subordinate was
terminated, Defendant assigned Plaintiff two additional territories, which “led to an immense
increase in workload yet Dr. Rossi received no salary increase.” Id. at ¶¶ 46, 119.
In May 2012, Donald Myll (“Myll”), Chief Executive Officer of Defendant, sent Plaintiff
an email, stating: “I wanted to get back to you regarding your option request.... The performance
of your NJ and MA regions did not set you apart of overall company results to lead the [Board of
Directors] to an exception for you.” Id. at ¶¶ 42, 116. In December of that same year, Myll sent
Plaintiff another email, stating:
Your region is performing significantly behind our mutually prepared plan and last
year. Let's put it into perspective. Less than last year in a growing market! Now
we can talk about the reasons behind this disappointment but in the end what we
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are doing in New Jersey has not worked this year. Blaming it on competition as if
it is solely an external factor that we have no control over is not acceptable.
Changes in new ideas, new disciplines teamwork, etc. are needed. From what I can
tell, we have not adjusted our strategy in New Jersey for our base business.
Id. at ¶¶ 43, 117. In February 2013, Plaintiff alleges that he complained to Dr. Thomas Cooper,
Chairman of the Board of Directors at Defendant, with respect to Defendant's purported fraudulent
practices and the hostile work environment caused by Myll and other members of upper
management. Id. at ¶¶ 47, 120. Prior to that meeting, however, Myll allegedly called Plaintiff to
reprimand him for complaining to Dr. Cooper, and “Myll pressed Dr. Rossi to tell him what Dr.
Rossi was going to tell Dr. Cooper prior to Dr. Rossi's meeting with Dr. Cooper.” Id. at ¶¶ 48,
121. At the meeting, Plaintiff alleges that he informed Dr. Cooper that “Vericare's method for
growing business was a concern for Dr. Rossi as he believed it involved violations of Medicare
and Medicaid's Rules and Regulations, which he brought to Dr. Cooper's attention.” Id. at ¶ 49.
After Plaintiff complained to Dr. Cooper, Plaintiff avers that Defendant removed two territories
from him “and put them under the supervision of a younger person.” Id. at ¶¶ 50, 108, 122.
Furthermore, Plaintiff alleges that he was also excluded from meetings and communications
regarding a facility called Buttonwood, “which he was instrumental in bringing to Vericare.” Id.
In response to his complaints, Plaintiff alleges that Vericare hired a consultant to conduct
an investigation, but Plaintiff alleges that “[t]he consultant conducted a sham investigation into
Dr. Rossi’s complaints,” and that “[t]he investigation was never concluded and no findings were
issued.” Id. at ¶¶ 51, 123. On or around May 22, 2013, Plaintiff's counsel sent correspondence to
Defendant's counsel providing a copy of Plaintiff's complaint to Dr. Cooper and informing
Defendant's counsel of the retaliation that has followed. Id. at ¶¶ 52, 124. On or around May 31,
2013, Defendant turned off Dr. Rossi's cellphone. Id. at ¶¶ 53, 125. Shortly thereafter, in June of
2013, Defendant terminated Plaintiff. Id. at ¶¶ 54, 126.

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On November 14, 2013, Plaintiff filed his qui tam Complaint on behalf of the United States
and Florida, North Carolina and Texas, asserting claims under the federal False Claims Act
(“FCA”) and analogous state laws, as well as employment-based claims under CEPA and LAD.
On November 4, 2015, the United States declined to intervene, however, the United States assisted
the parties in reaching a settlement. On December 2, 2015, the parties submitted a joint stipulation
of settlement. Shortly thereafter, this Court then signed an Order dismissing Plaintiff’s FCA
claims in Counts One, Two, Three, Seven, Eight and Nine. See Order dated December 7, 2015.
The following claims remain: violations of CEPA in Count Four; violations of LAD for age
discrimination in Count Five; and violations of LAD for hostile work environment in Count Six.
In the instant motion, Defendant only moves to dismiss Plaintiff’s LAD claims in Counts Five and
Six.
II.

STANDARD OF REVIEW
Under Rule 12(b)(6), a complaint may be dismissed for “failure to state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). When reviewing a motion to dismiss on the
pleadings, courts “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.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir.
2008) (internal quotation marks omitted). Under such a standard, the factual allegations set forth
in a complaint “must be enough to raise a right to relief above the speculative level.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). Indeed, “the tenet that a court must accept as true
all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “[A] complaint must do more than allege the plaintiff’s

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entitlement to relief. A complaint has to ‘show’ such an entitlement with its facts.” Fowler v.
UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).
However, Rule 12(b)(6) only requires a “short and plain statement of the claim showing
that the pleader is entitled to relief” in order to “give the defendant fair notice of what the… claim
is and the grounds upon which it rests.” Twombly, 550 U.S. at 555. The complaint must include
“enough factual matter (taken as true) to suggest the required element. This does not impose a
probability requirement at the pleading stage, but instead simply calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence of the necessary element.” Phillips,
515 F.3d at 234 (internal quotation marks and citation omitted); Covington v. Int’l Ass’n of
Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013) (“[A] claimant does not have to
set out in detail the facts upon which he bases his claim. The pleading standard is not akin to a
probability requirement; to survive a motion to dismiss, a complaint merely has to state a plausible
claim for relief.”) (internal quotation marks and citation omitted).
In sum, under the current pleading regime, when a court considers a dismissal motion, three
sequential steps must be taken: first, “it must take note of the elements the plaintiff must plead to
state a claim.” Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal
quotations marks and brackets omitted). Next, the court “should identify allegations that, because
they are no more than conclusions, are not entitled to the assumption of truth.” Id. (internal
quotation marks omitted). Lastly, “when there are well-pleaded factual allegations, the court
should assume their veracity and then determine whether they plausibly give rise to an entitlement
to relief.” Id. (internal quotation marks and brackets omitted).
III.

DISCUSSION
(i) CEPA Waiver Provision

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Defendant argues that Plaintiff’s LAD claims for age discrimination and hostile work
environment should be dismissed because Plaintiff has effectively waived his LAD claims,
pursuant to the CEPA waiver provision, N.J. Stat. Ann. § 34:19-8, as those claims are factually
identical to his CEPA claim. To that end, Defendant further contends that, under the plain
language of the statute, the applicability of the CEPA waiver provision is determined at the
“institution of an action,” and that courts in this jurisdiction have regularly determined the waiver
provision at the motion to dismiss stage. In response, Plaintiff contends that he does not have to
elect to waive his LAD claims until after the completion of discovery.
CEPA “is considered remedial legislation entitled to liberal construction, its public policy
purpose to protect whistleblowers from retaliation by employers have been long recognized by the
courts of this State.” Lippman v. Ethicon, Inc., 222 N.J. 362, 378 (2015); see Abbamont v.
Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431 (1994). Relevant here, that statute contains a
waiver provision, which states in pertinent part: “the institution of an action in accordance with
this act shall be deemed a waiver of the rights and remedies available under any other contract,
collective bargaining agreement, State law, rule or regulation or under the common law.” N.J.
Stat. Ann. § 34:19-8. Simply put, that waiver provision requires a plaintiff to elect between his or
her CEPA claim and other claims based on the same retaliatory conduct which is actionable under
CEPA. Broad v. Home Depot U.S.A., Inc., 16 F. Supp. 3d 413, 416 (D.N.J. 2014). However, the
waiver provision does not require a plaintiff to elect between a CEPA claim and those claims that
are substantially independent of the CEPA claim. Id.
The New Jersey Supreme Court has not determined when a plaintiff must make an election
under CEPA’s waiver provision, and courts in this district are split on the question. See Walsh v.
Bril-Jil Enter., Inc., No. 15-0872, 2016 WL 6246764, at *13 (D.N.J. Oct. 24, 2016) (stating that

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there is not “a consensus among courts within this district as to the point in the proceedings at
which a plaintiff must elect between pursuing his CEPA or unlawful termination claim.”). Some
courts in this district have held that “the CEPA waiver does not attach until after the completion
of discovery.” Broad, 16 F. Supp. 3d at 417; see Chadwick v. St. James Smokehouse, Inc., No.
14-2708, 2015 U.S. Dist. LEXIS 38340, at *27-28 (D.N.J. Mar. 26, 2015) (“A decision about
CEPA waiver ought to be reached after discovery.”); Rubin v. Sultan Healthcare, Inc., No. 086175, 2009 U.S. Dist. LEXIS 41534, at *12 (D.N.J. May 15, 2009) (concluding that “the CEPA
waiver provision would not require a plaintiff to elect her remedy at the pleading stage of the
litigation but rather defer the waiver until the plaintiff has had an opportunity to conduct
discovery.”). However, other courts in this district have held that, based on the provision’s use of
the phrase “institution of the action,” a plaintiff “waive[s] all other CEPA-related claims upon his
filing of a claim under CEPA.” Hornung v. Weyerhaeuser Co., Inc., No. 06-2300, 2007 WL
2769646, at *6 (D.N.J. Sept. 21, 2007); see Hilburn v. Bayonne Parking Auth., No. 07-5211, 2009
WL 777147, at *3 (D.N.J. Mar. 20, 2009) (concluding that, “because the clear and unambiguous
language of CEPA supports the interpretation that an action is ‘instituted’ upon filing, and because
New Jersey courts have provided no authority to the contrary, the Court finds that Plaintiffs waived
their CEPA-related claims upon filing their CEPA claim.”).
In the absence of a controlling decision from the State’s highest court on an issue, this
Court has to predict what the New Jersey Supreme Court would decide. See Ill. Nat’l Ins. Co. v.
Wyndham Worldwide Operations, Inc., 653 F.3d 225, 231 (3d Cir. 2011). In this case, I predict
that the New Jersey Supreme Court would hold that the CEPA waiver provision does not require
a plaintiff to elect his remedies until after the completion of discovery. In reaching this conclusion,
I find helpful the Supreme Court’s decision in Young v. Schering Corp., 141 N.J. 16, 32 (1995).

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In that case, the Court addressed the timing of the CEPA waiver provision, in dicta, opining that
the language of “institution of an action” contained in that provision, “may be susceptible of
meaning something other than the filing of a complaint,” and that such language “could
conceivably contemplate an election of remedies with restrictions in which the election is not
considered to have been made until discovery is complete or the time of a pretrial conference.”
Young, 141 N.J. at 32. In doing so, the Court expressly declined to decide this question, as well
as other questions regarding the “extent of [the waiver provision’s] application and its interaction
with other sources of law.” Id. Years later, guided by Young, the Appellate Division found that
“[o]nly after gaining access to all of the facts, will a plaintiff be in a position to make a knowing
and meaningful election,” and thus, before making an election under the CEPA waiver provision,
“a plaintiff should have an opportunity to complete discovery.” Maw v. Advanced Clinical
Comms., 359 N.J. Super. 420, 441 (App. Div. 2003), rev’d on other grounds, 179 N.J. 439 (2004).
Indeed, other courts in this district have relied on Young and Maw to predict that the New
Jersey Supreme Court would hold that a plaintiff should have an opportunity to complete discovery
before making an election of remedies under the CEPA waiver provision. See Broad, 16 F. Supp.
3d at 418 (“Based on Young and Maw, however, this Court predicts that New Jersey’s Supreme
Court would hold that the CEPA waiver provision does not require a plaintiff to make this
[election] choice at the pleading stage.”); Chadwick, No. 14-2708, 2015 U.S. Dist. LEXIS 38340,
at *27-28 (“Based on Young and Maw, the Court finds that the New Jersey Supreme Court would
hold that CEPA waiver does not bar a plaintiff from filing a Complaint alleging both CEPA and
common law wrongful discharge causes of action.”). I, too, join Broad and Chadwick and find
that Plaintiff should have the opportunity to conduct discovery regarding his claims before he is
required to make an election of remedies between his CEPA and LAD claims under the waiver

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provision. In so holding, I am persuaded by state and federal courts alike that have expanded the
interpretation of the language “institution of the action” under CEPA. To be clear, however, if
Plaintiff has not elected his remedies after the close of discovery, Defendant is entitled to raise
anew its waiver argument at that time. I, now, turn to the merits of Plaintiff’s LAD claims.
(ii) LAD – Age Discrimination
Defendant argues that Plaintiff cannot state a claim for age discrimination under LAD
because: (i) Plaintiff has failed to allege sufficient allegations to suggest his membership in a
protected class; (ii) Plaintiff does not sufficiently allege that he suffered an adverse employment
action; and (iii) Plaintiff fails to sufficiently allege that he was replaced with someone sufficiently
younger to permit an inference of discrimination. I agree.
“The purpose of the LAD is to eradicate discrimination whether intentional or
unintentional.” Lehmann v. Toys R Us, Inc., 132 N.J. 587, 604 (1993). Under LAD, it is unlawful
for an employer to discriminate against an individual with respect to the terms and conditions of
his or her employment on the basis of a protected characteristic, which includes race, religion, age,
sex and disability. N.J. Stat. Ann. § 10:5-12(a). To state a claim for age discrimination, a plaintiff
must allege that: (1) he was a member of the protected class; (2) he was performing his job at a
level that met his employer’s legitimate expectations; (3) he suffered an adverse employment
action; and (4) he was ultimately replaced by a person sufficiently younger to permit an inference
of age discrimination. See Zive v. Stanley Roberts, Inc., 182 N.J. 436, 450 (2005); see also
Monaco v. Am. Gen. Assur. Co., 359 F.3d 296, 300 (3d Cir. 2004). While LAD does not establish
an age limitation on who is able to assert an age discrimination claim, it is imperative that a plaintiff
at least allege his or her actual age in the complaint. See Swider v. Ha-Lo Indus., 134 F. Supp. 2d
607, 622 (D.N.J. 2001). In that connection, in order to determine whether a person is “sufficiently

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younger” to permit an inference of age discrimination, a plaintiff must also plead the actual age,
or at least an approximation of the actual age, of the person that replaced the plaintiff. See Monaco,
359 F.3d at 307 (“We subsequently have explained that in order to satisfy the sufficiently younger
standard, "there is no particular age difference that must be shown, but while different courts have
held… that a five year difference can be sufficient,… a one year difference cannot.").
The Third Circuit has stated that “an adverse employment action is one which is serious
and tangible enough to alter an employee’s compensation, terms, conditions, or privileges of
employment.” Cardenas v. Massey, 269 F.3d 251, 263 (3rd Cir. 2001) (internal quotation marks
and citation omitted); see Ivan v. Cnty. of Middlesex, 595 F. Supp. 2d 425, 470 (D.N.J. 2009)
(“Under the LAD, an adverse employment action is one sufficiently severe or pervasive to have
altered plaintiff's conditions of employment in an important and material manner."). In addition,
an adverse employment action is also one that can “limit, segregate or classify the plaintiff in a
way which would tend to deprive [him or] her of employment opportunities or otherwise affect
[his or] her status as an employee." Marrero v. Camden Cnty. Bd. of Soc. Servs., 164 F. Supp. 2d
455, 463 (D.N.J. 2001) (internal quotation marks and citation omitted). While an adverse
employment action obviously includes termination, suspension or demotion, it can also include
such actions as transfer or reassignment that are materially adverse. 1 See Ivan, 595 F. Supp. 2d at

1

In addition, “courts have looked to CEPA for guidance on what constitutes an ‘adverse
employment action.’” Ivan, 595 F. Supp. 2d at 471. Under CEPA, an adverse employment action
or “retaliatory action” is similarly defined as “the discharge, suspension or demotion of an
employee, or other adverse employment action taken against an employee in the terms and
conditions of employment.” N.J. Stat. Ann. § 34:19-2(e). “When a plaintiff does not allege a
discharge or demotion, conduct must be serious and tangible enough to materially alter the
employee's terms and conditions of employment or adversely affect her status as an employee."
Ivan, 595 F. Supp. 2d at 471 (internal quotation marks and citation omitted). Indeed, a “[p]laintiff
need not show that the adverse employment action resulted in financial hardship.” Id.

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471. However, “harassment alone is not enough.” Id; Victor v. State, 401 N.J. Super. 596, 616
(App. Div. 2008) (stating that “an employer’s adverse employment action must rise above
something that makes an employee unhappy, resentful or otherwise cause an incidental workplace
dissatisfaction,” such as “temporary reassignment… or a supervisor’s decision to no longer
socialize with an employee.”); Sempier v. Johnson & Higgins, 45 F.3d 724, 729 (3d Cir. 1995).
With respect to the first prong, Plaintiff has failed to allege sufficient facts to show that he
is a member of a protected class because he does not allege his actual age, which is crucial
information in an age discrimination claim. See Swider, 134 F. Supp. 2d at 622. Furthermore, the
fourth prong fails for the same reason. Plaintiff merely alleges that he was replaced by a “younger
person,” but that allegation is wholly insufficient to determine the age difference between Plaintiff
and his replacement. See Monaco, 359 F.3d at 307; see also Hassell v. Johnson & Johnson, No.
13-4109, 2014 U.S. Dist. LEXIS 60503, at *15 (D.N.J. May 1, 2014) (dismissing the plaintiff’s
claim for age discrimination under LAD, reasoning that, “[b]y merely stating that the positions
went to ‘primarily younger’ employees, Plaintiff is asking the Court to take a conclusory statement
and draw an inference that Defendant’s hiring decision was discriminatory.”). Nevertheless, while
Plaintiff has failed to allege these basic requirements of an age discrimination claim under LAD,
these deficiencies are readily curable, and as such, I shall address whether Plaintiff has sufficiently
alleged an adverse employment action. 2

2

However, Defendant does not contend that Plaintiff failed to perform his job at a level that met
Vericare’s legitimate expectations, and as such, the second prong is not in dispute. See Zive, 182
N.J. at 450.

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In regard to the third prong, 3 as an adverse employment action, Plaintiff alleges that
Defendant removed two territories from Plaintiff “and put them under the supervision of a younger
person.” Compl. at ¶¶ 50, 108. While the removal of territories may rise to the level of an adverse
employment action, Plaintiff has failed to alleged sufficient factual allegations to show that his
employment condition was materially altered. See Ivan, 595 F. Supp. 2d at 471. For instance,
Plaintiff does not allege the total amount of territories that he serviced prior to the change, so the
Court is unable to determine what impact the removal had on his employment. In addition,
Plaintiff does not allege that the removal of two territories negatively affected his compensation
or that he was deprived of employment opportunities. Furthermore, Plaintiff alleges that he was
“excluded from meetings and communications regarding a facility called Buttonwood, which he
was instrumental in bringing to Vericare.” Compl. at ¶¶ 50, 108. However, Plaintiff has not
alleged that Defendant’s decision to prevent Plaintiff from attending those meetings was based on
age. Therefore, this allegation does not suffice as an adverse employment action in an age
discrimination case.
Accordingly, Plaintiff’s LAD claim for age discrimination is dismissed without prejudice
because Plaintiff fails to allege sufficient facts to show that he was a member of the protected class,

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In his Complaint, Plaintiff alleges that, “on or around June 15, 2013, in further retaliation for Dr.
Rossi’s complaints regarding discrimination by upper management at Vericare and the company’s
violations of Medicare and Medicaid, Vericare terminated Dr. Rossi’s employment.” Compl. at
¶¶ 54, 126. While Plaintiff asserts that he was terminated because he complained about some
unspecified “discrimination,” Plaintiff does not specifically allege that he was terminated because
he complained to members of management at Vericare about experiencing age discrimination.
More importantly, nor does Plaintiff allege that he was terminated because of his age. Without
additional allegations, this Court cannot infer that Defendant’s decision to terminate Plaintiff was
motivated by discriminatory animus based on age. Tellingly, in his briefing, Plaintiff does not
argue that his termination was an adverse employment action in the context of his age
discrimination claim. As such, I will not consider Plaintiff’s termination as an adverse
employment action in connection with his LAD claim for age discrimination.
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that he suffered an adverse employment action or that he was ultimately replaced by a person
sufficiently younger to permit an inference of age discrimination. See Zive, 182 N.J. at 450.
(iii) LAD – Hostile Work Environment
Defendant argues that Plaintiff fails to state a claim for hostile work environment because
Plaintiff does not include any allegations to suggest that the conditions of his employment had
been altered based on his age. Defendant further argues that Plaintiff fails to allege that he was
subjected to offensive or pervasive conduct.

Rather, Defendant maintains that Plaintiff’s

allegations amount to nothing more than generalized, workplace conduct that is far from the
offensive conduct required to establish a hostile work environment claim. Once again, I agree.
To establish a claim for hostile work environment, a plaintiff must show that that the
complained of conduct: (1) would not have occurred but for the employee’s protected status, and
was (2) severe or pervasive enough to make a (3) reasonable person believe that (4) the conditions
of employment have been altered and that the working environment is hostile or abusive.
Lehmann, 132 N.J. at 603-604; see Cutler v. Don, 196 N.J. 419, 431 (2008) (“Making that
assessment requires an examination of the totality of the circumstances.”). To sustain an action,
the complained of conduct need not be both “severe and pervasive,” since such a dual requirement
“would bar actions based on a single, extremely severe incident or, perhaps, even those based on
multiple but randomly-occurring incidents of harassment.”

Lehmann, 132 N.J. at 606.

Nevertheless, “severe or pervasive conduct must be conduct that would make a reasonable [person]
believe that the conditions of employment are altered and [that the] working environment is
hostile.” Cutler, 196 N.J. at 431 (internal quotation marks and citation omitted). On one hand,
severe or pervasive conduct can be shown by alleging “numerous incidents that, if considered
individually, would be insufficiently severe to state a claim, but considered together are

14

sufficiently pervasive to make the work environment intimidating or hostile.” Lehmann, 132 N.J.
at 607. On the other hand, severe or pervasive conduct may also be shown “by a single, severe
incident of harassment rather than by multiple incidents of harassment.” Id.
In the instant matter, the vast majority of Plaintiff’s complained of conduct has no relation
to his alleged protected status of age. For example, Plaintiff contends that Myll and other members
of the upper management at Vericare minimized Plaintiff’s involvement in the company, and that
Defendant put pressure on Plaintiff to engage in what he believed was fraudulent conduct.
However, Plaintiff has provided no link between the complained of conduct and his age – which
is currently unknown – let alone shown that his complained of conduct would not have occurred
but for his age. See Lehmann, 132 N.J. at 603-604. To the contrary, as alleged, Plaintiff’s
complained of conduct would not have occurred but for his complaints to members of upper
management and Dr. Cooper about Vericare’s alleged practice of committing fraud against
Medicare and Medicaid. What Plaintiff is left with is a single incident of alleged harassment that
could plausibly be construed as related to his age, i.e. that Defendant removed two territories from
Plaintiff and placed them under the supervision of a younger person. In the context of a hostile
work environment claim, that allegation alone is not an “extremely severe incident” of harassment,
particularly since Plaintiff has failed to allege how such a change in his responsibilities impacted
his employment. See Lehmann, 132 N.J. at 607. Nor is it sufficient to show that Plaintiff’s
workplace was permeated with discriminatory intimidation, since it was a single incident. See
Cortes v. Univ. of Med. & Dentistry, 391 F. Supp. 2d 298, 308 (D.N.J. 2005) (“A hostile work
environment exists when a workplace is permeated with discriminatory intimidation, ridicule and
insult so severe or pervasive to alter the conditions of the victim’s employment and create an

15

abusive working environment.”). Without additional allegations, Plaintiff’s claim for hostile work
environment under the LAD must fail.
Accordingly, Plaintiff’s LAD claim for hostile work environment is dismissed without
prejudice because Plaintiff has failed to allege that his complained of conduct would not have
occurred but for his age, or that his complained of conduct was severe or pervasive enough to alter
the conditions of his employment. See Lehmann, 132 N.J. at 603-604.
IV.

CONCLUSION
For the reasons set forth above, Defendant’s motion to dismiss the LAD claims (Counts

Five and Six) of the Complaint is granted, and Plaintiff’s LAD claims for age discrimination and
hostile work environment are dismissed without prejudice. Furthermore, in his Complaint,
Plaintiff alleges that this Court has federal question jurisdiction over the instant action, because of
his claims under the FCA. However, all federal and state FCA claims have been dismissed,
pursuant to a settlement, prior to the filing of the instant motion. As a result, federal question
jurisdiction no longer exists, and Plaintiff does not base his suit on diversity jurisdiction in his
Complaint. Indeed, the Court questions whether diversity jurisdiction exists. See Werwinski v.
Ford Motor Co., 286 F.3d 661, 666 (3d Cir. 2002) (“A district court has subject matter jurisdiction
over state law claims if there is complete diversity of citizenship between the parties and the
amount in controversy exceeds $75,000 for each plaintiff.”). Should the Court lack diversity
jurisdiction, the Court is inclined not to exercise supplemental jurisdiction over the remaining state
law claims. See 28 U.S.C. § 1367(c)(3). In that regard, the Court directs Plaintiff to submit a
declaration, within ten (10) from the date of the Order accompanying this Opinion, setting forth
whether he asserts diversity jurisdiction and the facts supporting that assertion.

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DATE: November 22, 2016
/s/ Freda L. Wolfson
Freda L. Wolfson
United States District Judge

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