YOBE v. RENAISSANCE ELECTRIC, INC. et al
OPINION filed. Signed by Judge Freda L. Wolfson on 2/16/2016. (kas, )
*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No.: 15-3121(FLW)
RENAISSANCE ELECTRIC, INC. and:
WOLFSON, United States District Judge:
Robert Yobe (“Plaintiff” or “Yobe”), alleges that Plaintiff’s
employer, defendant Renaissance Electric, Inc. (“Renaissance”),
(“Macintosh”)(collectively, “Defendants”), violated New Jersey’s
Law Against Discrimination (“NJLAD”) by terminating Plaintiff’s
employment in retaliation for Plaintiff taking a disability leave
In the instant matter, Defendants move to dismiss the
two-count Complaint on the basis that Plaintiff’s allegations fail
to give rise to any cognizable cause of action under the NJLAD.
For the reasons set forth herein, Defendants’ motion is DENIED.
BACKGROUND and PROCEDURAL HISTORY
The following facts are derived from the Complaint, and taken
as true for the purposes of this motion.
Plaintiff was employed
by Renaissance beginning in 2001 as a “Journeyman Electrician”
until he suffered an on-the-job injury.
Compl., ¶¶ 7-9.
the nature of the injury, Plaintiff alleges that he took a fouryear authorized disability leave of absence, i.e., from March 30,
2011 to February 13, 2015, during which he received workers’
compensation insurance benefits.
Id. at ¶¶ 10-12.
When Plaintiff was cleared to return to work, Macintosh,
Renaissance had “no job for Plaintiff,” see id. at ¶ 14, when in
fact Plaintiff saw an advertisement for a Journeyman Electrician
Id. at ¶ 15.
According to Plaintiff, after seeing the
advertisement, Plaintiff communicated with Macintosh regarding the
open position, and Macintosh responded to Plaintiff in a text
message, “[t]o be honest your accident cost me an incredible amount
in Workman’s Comp insurance premiums for the past 5 years.
cannot afford that again as it would put me out of business.
Please don’t take it personally, it’s just a business decision
I’ve had to make.”
Id. at ¶ 17.
Complaint, asserting a retaliation claim under the NJLAD against
disability leave of absence ended.
Id. at ¶ 22.
asserts an aiding and abetting claim under the NJLAD against
Now, Defendants move to dismiss those claims.
Standard of Review
Under Fed. R. Civ. P. 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,
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) (citation
and internal quotations 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 entitlement to relief. A complaint has to
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 quotations and citations
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
requirement; to survive a motion to dismiss, a complaint merely
has to state a plausible claim for relief." (citation and internal
In sum, under the current pleading regime, when a court
considers a dismissal motion, three sequ ential steps must be
taken: first, “it must take note of the elements the plaintiff
must plead to state a claim.” Connelly v. Lane Constr. Corp., 809
F.3d 780 (3d Cir. 2016) (citations and quotations omitted). Next,
the court “should identify allegations that, because they are no
more than conclusions, are not entitled to the assumption of
truth.” Id. (citations and quotations omitted). Lastly, “when
assume their veracity and then determine whether they plausibly
give rise to an entitlement to relief.” Id. (citations, quotations
and brackets omitted).
NJLAD – Retaliation against Renaissance
In Count One, Plaintiff alleges that Renaissance “terminated
Plaintiff’s employment . . . after his disability leave of absence
Compl., ¶ 21.
Plaintiff further avers that his leave of
absence was a right protected by the NJLAD, and that Renaissance
retaliated against Plaintiff by firing him for exercising that
right. Id. at ¶¶ 22-25.
On its motion, Renaissance takes issue
with Plaintiff’s pleadings; it argues, first, that Plaintiff’s
retaliation claim fails to state a claim. But, Defendant spends
the bulk of its argument challenging this claim on the basis that
retaliation for pursuing workers’ compensation benefits is not a
cognizable cause of action under the NJLAD.
Plaintiff explains, his retaliation claim is based on the protected
activity of taking a disability leave of absence, not on receiving
workers’ compensation. 1
As such, I will focus on Plaintiff’s
allegations in that light.
I begin with a recitation of the relevant principles of law.
Layman, 109 N.J. 319, 334 (quoting Jackson v. Concord Co., 54 N.J.
113, 124 (1969)), cert. denied, 488 U.S. 826 (1988)). Striving to
effectuate the will of the New Jersey legislature, the New Jersey
Supreme Court has recognized the NJLAD's broad remedial purposes.
Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04 (1993); see
Quinlan v. Curtiss-Wright Corp., 204 N.J. 239, 258-59 (2010)
(stating principles and statutory purposes).
Under the NJLAD, it is unlawful for employers to discriminate
against an individual with respect to the terms and conditions of
his/her employment on the basis of a protected characteristic,
such as race, religion, age, sex and disability.
The statute also makes it illegal "[f]or any person to
take reprisals against any person because that person has opposed
any practices or acts forbidden under this act or because that
While the parties dispute whether receiving workers’
compensation can be a viable basis as a protected activity under
the NJLAD, I need not address this question as Plaintiff, himself,
maintains that his retaliation claim is premised on the protected
activity of taking a disability of leave of absence. See Pl. Opp.
Br., p. 4; Compl., ¶ 21.
proceeding under this act . . . ." N.J.S.A. 10:5-12(d).
retaliation, the employee-plaintiff must sufficiently allege that
(1) he engaged in a protected activity that was known to the
employer; (2) that he was subjected to an adverse employment
decision; and (3) that there is a causal link between the activity
and the adverse action. Battaglia, 214 N.J. at 547.
Here, in light of these elements, Plaintiff has adequately
argument is plain: that Plaintiff has not alleged any factual
support for his retaliation claim, but rather, Plaintiff, in a
conclusory fashion, alleges that he was terminated in direct
response to his disability leave.
In that regard, Defendant
contends that Plaintiff’s allegations paint too broad of a brush
to survive Rule 12(b)(6) review.
With respect to the first element, Plaintiff alleges that he
engaged in the protected activity of taking disability medical
leave. Renaissance challenges that such an activity is a protected
right, without citing to any authority.
Rather, it explains that
under the plain language of N.J.S.A. 10:5-12(d), Plaintiff has not
interfered with Plaintiff’s decision to take a leave of absence.
However, Defendant seemingly ignores the part of the statute
where the NJLAD makes it an illegal retaliatory act, if an employer
interferes with “any person in the exercise or enjoyment of a
protected right.” N.J.S.A. 10:5-12(d)(emphasis added). Indeed,
taking a disability/medical leave is protected by the NJLAD.
Nusbaum v. CB Richard Ellis, Inc., 171 F. Supp.2d 377, 388 (D.N.J.
2001)(denying motion to dismiss because medical leave is protected
activity under the NJLAD); Boles v. Wal-Mart, No. 12-1762, 2014
U.S. Dist. LEXIS 41926, at * (D.N.J. Mar. 26, 2014)(denying summary
compels this Court to conclude that the requesting and taking of
medical leave are protected activities under the NJLAD.”); cf
Guinup v. Petr-All Petroleum Corp., 786 F. Supp. 2d 501, 514
(N.D.N.Y. 2011) ("[T]aking medical leave is a protected activity
within the meaning of the ADA."); Dove v. Cmty. Educ. Ctrs., Inc.,
No. 12-4384, 2013 U.S. Dist. LEXIS 170081, at *63 (E.D. Pa. Dec.
2, 2013) ("[N]umerous courts have recognized that a request for
constitute a request for a reasonable accommodation under the ADA"
Plaintiff has sufficiently alleged the first element.
Next, Plaintiff alleges that Renaissance adversely subjected
Plaintiff to an adverse employment decision of job termination,
because Plaintiff took a disability leave of absence from March
30, 2011 until February 13, 2015.
Further, as for causation,
employment . . . in direct response to Plaintiff’s protected
disability leave of absence.”
suggests that this is not sufficient, Plaintiff supports his
causation theory with the allegation that Plaintiff’s supervisor,
Macintosh, explained to Plaintiff that because his medical leave
cost Renaissance “an incredible amount” in insurance premiums, the
company cannot afford to rehire Plaintiff.
Id. at ¶17.
Defendant attempts to factually distinguish this case with
those cases that I have just cited. But, as Boles makes clear, as
a matter of law, the taking of a medical leave is a protected
activity under the NJLAD. Boles, 2014 U.S. Dist LEXIS 41926 at
*22-23. The court, there, held that “the requesting and taking of
medical leave are protected activities under the NJLAD.” Id. The
court explained that the anti-retaliation provision of the NJLAD
specifically prohibits employers from interfering with ‘any right
granted or protected by [the NJLAD].’ N.J.S.A. 10:5-12(d). A
disabled employee's right to a reasonable accommodation is one
such rights.” Id. at *23; see, e.g., Victor v. State, 203 N.J.
383, 412 (2010)(“Affording persons with disabilities reasonable
accommodation rights is consistent with the [NJ]LAD's broad
remedial purposes.”). And, because a reasonable accommodation can
take the form of a temporary leave of absence, see N.J. Admin.
Code 13:13-2.5(b)(1)(ii), the Boles court found that taking a
medical leave is a protected right under the NJLAD.
it is unclear whether the intent to terminate Plaintiff was based
on a business reason, or some other insidious retaliatory reasons,
at this pleading stage, it is certainly reasonable to infer that
Renaissance allegedly retaliated against Plaintiff for taking a
prolonged medical leave of absence, a protected activity under the
Accordingly, I find that Plaintiff has sufficiently stated a
claim of retaliation pursuant to the NJLAD against Renaissance.
Defendants’ motion in this regard is denied.
III. NJLAD – Aiding and Abetting against Macintosh
In Count II, Plaintiff asserts a claim against Macintosh for
aiding and abetting the alleged retaliation under the NJLAD.
Defendants argue that Plaintiff’s aiding and abetting claim cannot
lie because, under New Jersey law, Plaintiff cannot allege that
Macintosh aided and abetted his own conduct.
To support its contention, Defendants refer this Court to the
following trio of cases: Newsome v. Admin. Office of the Courts of
Diagnostics, Inc., No. 11-304, 2012 U.S. Dist. LEXIS 42708 (D.N.J.
the end of his
time, the Court
submit that whether Plaintiff was an employee at
disability leave is an open question.
alleges that he was indeed an employee at that
must take that allegation as true on this motion
Mar. 28, 2012); and Putterman v. Weight Watchers Intern., Inc.,
No. 10-1687, 2010 U.S. Dist. LEXIS 85754 (D.N.J. Aug. 19, 2010).
Hartford Plaza Ltd., No. A-0107-11T3, 2013 N.J. Super. Unpub. LEXIS
766, 2013 WL 1350095, at *8 (App. Div. Apr. 5, 2013). Under that
decision, a supervisor, like Macintosh, can be held liable for
aiding and abetting his employer's wrongful conduct, even where
the only bad conduct at issue is the supervisor's own conduct.
2013 N.J. Super. Unpub. LEXIS 766 at *8; see Cardenas v. Massey,
269 F.3d 251, 268 (3d Cir. 2001)("Under the LAD a supervisory
employee may be liable for discrimination for aiding and abetting
another's (the employer's) violation."); see also Cicchetti v.
Morris Cnty. Sheriff’s Office, 194 N.J. 563 (2008) (“individual
creating or maintaining a hostile environment can...arise through
the 'aiding and abetting' mechanism.”).
In fact, the Third Circuit has predicted long ago in Hurley
v. Atlantic City Police Dep't, 174 F.3d 95, 126 (3d Cir. 1999),
that the New Jersey Supreme Court would hold that, under the NJLAD,
when a supervisor engages in "affirmatively harassing acts," he
"flouts [his] duty" and "subjects himself and his employer to
liability.” See Coulson v. Town of Kearny, No. 07-5893, 2010 U.S.
Dist. LEXIS 3711, at *5 (D.N.J. Jan. 19, 2010); Ivan v. Cnty. of
Middlesex, 595 F. Supp. 2d 425, 462 (D.N.J. 2009); Danna v.
Truevance Mgmt., Inc., No. 05-5395, 2007 U.S. Dist. LEXIS 53660,
at *3 (D.N.J. July 25, 2007).
Importantly, in recent years,
following state lower courts, courts in this district have found
that aiding and abetting one’s own conduct is a sufficient basis
for liability under the NJLAD. Brown-Marshall v. Roche Diagnostics
Corp., No. 10-5984, 2013 U.S. Dist. LEXIS 101179, at *20 (D.N.J.
Jul. 19, 2013); DeSantis v. N.J. Transit, 103 F. Supp. 3d 583, 591
(D.N.J. 2015)(“New Jersey courts have held that an individual can
aid and abet, not only the conduct of another person, but that
person's own conduct.”).
individual liable for aiding and abetting his own conduct, it would
thwart the NJLAD's broad and remedial purpose, and make little
sense, to construe it as permitting "individual liability for a
harassing conduct, while precluding individual liability for the
supervisor based on his or her own discriminatory or harassing
Accordingly, Defendants' motion to dismiss on this basis is also
For the reasons set forth herein, Defendants’ motion to
dismiss is DENIED.
Dated: February 16, 2016
/s/ Freda L. Wolfson
Hon. Freda L. Wolfson
United States District Judge
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