WHITEHEAD v. COUNTY OF MONMOUTH et al
OPINION. Signed by Judge Anne E. Thompson on 9/18/2015. (km)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civ. No. 15-5352
COUNTY OF MONMOUTH, FRANK
TRAGNO, and GERALDINE L.
THOMPSON CARE CENTER,
This matter appears before the Court upon the Motion of Defendants the County of
Monmouth, Frank Tragno, and the Geraldine L. Thompson Care Center (collectively
“Defendants”) to dismiss the Complaint of Plaintiff Joann Whitehead. (ECF No. 4.) Plaintiff
opposes. (ECF No. 7.) After reviewing the parties’ submissions and without oral arguments
pursuant to Local Civil Rule 78.1(b), the Court will grant Defendants’ motion.
Plaintiff’s action alleges a violation of New Jersey’s Law Against Discrimination
(“NJLAD”), N.J.S.A. 10:5–1 et seq., the Americans with Disabilities Act (“ADA”), 42 U.S.C. §
12101 et seq., intentional infliction of emotional distress, negligent infliction of emotional
distress, and negligence. Defendants removed the case to federal court on the basis of federal
question jurisdiction under 28 U.S.C. § 1331. It appears that Plaintiff and all Defendants are
citizens of New Jersey.
Plaintiff alleges the following facts in her Complaint. She is an employee of Defendant
County of Monmouth. She suffers from a disability and claims that Defendants were aware of
her disability. According to Plaintiff, on June 5, 2014 Defendant Tragno, also an employee of
the County, called Plaintiff into his office along with three representatives of Defendant
Geraldine L. Thompson Care Center for a thirty minute discussion. Tragno explained that he
had received a complaint of someone urinating and defecating in a handicapped bathroom in the
County administrative building and accused Plaintiff of doing so. Plaintiff alleges that Tragno
asked her personal and embarrassing questions in the presence of the Care Center
representatives. Plaintiff states that she told Tragno to speak with the Buildings and Grounds
department about the complaint. During the meeting, Tragno was informed by that department’s
supervisor that there was no urine or feces on the floor of the handicapped bathroom; there was
only water. After learning this, Tragno allegedly told Plaintiff not to tell anyone about his
questioning of her. In addition, Plaintiff claims that Tragno intended to question other
employees about the bathroom incident but did not.
Plaintiff initially filed her five count complaint in state court, but Defendants removed the
matter to this Court on July 9, 2015. (ECF No. 1.) Defendants then filed the present motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6) on July 29, 2015. (ECF No. 4.)
A. Legal Standard
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency
of the complaint, and the defendant bears the burden of showing that no claim has been
presented. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993); Hedges v. U.S., 404 F.3d
744, 750 (3d Cir. 2005). When assessing a Rule 12(b)(6) motion, district courts conduct a threepart analysis, considering only the Complaint and its attached exhibits and matters of public
record. See Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011); Pension Ben. Guar. Corp. v.
White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). “First, the court must ‘take note
of the elements a plaintiff must plead to state a claim.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S.
662, 675 (2009)). Second, the court must accept as true all of a plaintiff’s well-pleaded factual
allegations and construe the complaint in the light most favorable to the plaintiff but may
disregard legal conclusions. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210–11 (3d Cir.
2009). Third, the court must determine whether the “facts are sufficient to show that plaintiff has
a ‘plausible claim for relief.’” Id. at 211 (quoting Iqbal, 556 U.S. at 679). Bare allegations of
entitlement to relief and demonstrations of a “mere possibility of misconduct” are insufficient;
rather, the facts must allow a court reasonably to infer “that the defendant is liable for the
misconduct alleged.” Id. at 210–11 (quoting Iqbal, 556 U.S. at 678–79).
1. Count I: NJLAD Claim
“The NJLAD prohibits unlawful discrimination against an individual with respect to
terms and conditions of employment because of various traits and characteristics, including, but
not limited to, race, religion, age, sex and disability.” Davis v. Supervalu, Inc., No. 13-414
JBS/JS, 2013 WL 1704295, at *4 (D.N.J. Apr. 19, 2013) (citing N.J.S.A. 10:5–12(a)).
Discrimination claims under the NJLAD are assessed under the McDonnell-Douglas burdenshifting framework. Victor v. State, 203 N.J. 383, 408 (2010). To assert a prima facie case of
discrimination under the NJLAD, a plaintiff must establish that she “(1) belongs to a protected
class; (2) was performing a job at a level that met the employer’s legitimate expectations; (3)
suffered an adverse employment action; and (4) others not within the protected class did not
suffer similar adverse employment actions.” Maclean v. Stuart Weitzman Shoes, 863 F. Supp. 2d
387, 391 (D.N.J. 2012) (citing Zive v. Stanley Roberts, Inc., 192 N.J. 436, 447 (2005)). In the
specific context of disability discrimination, to satisfy the first element for a prima facie case the
plaintiff must demonstrate that she qualifies as an individual with a disability or is perceived as
having a disability, as defined by the statute;1 to satisfy the second element the plaintiff must
show “she is qualified to perform the essential functions of the job, or was performing those
essential functions, either with or without a reasonable accommodation.” Victor, 203 N.J. at
410; see also Lopez v. Lopez, 997 F. Supp. 2d 356, 272 (D.N.J. 2014).
Here Defendants assert that the Complaint fails to adequately allege Plaintiff’s
membership in a protected class and does not identify any adverse employment action taken
against Plaintiff as a result of her belonging to a protected class. Indeed the Complaint merely
states that “Plaintiff suffers from a disability” and that she “is a member of a protected class,”
without providing a single factual detail to support such conclusory claims. (Comp. at 3–4, ECF
No. 1.) Plaintiff has not alleged sufficient facts for the Court to reasonably infer that the first
required element of a prima facie NJLAD claim is satisfied. In addition, the Complaint fails to
provide adequate notice of what specific NJLAD violation is being asserted because she has not
identified what adverse employment action was taken against her.2 Therefore Count I will be
dismissed without prejudice.
Notably, the NJLAD’s conception of a disability is broader than the ADA’s definition. See
Victor, 203 N.J. at 410 n.11.
Plaintiff seems to assert in her opposition brief that Defendant Tragno’s meeting with Plaintiff
regarding the bathroom incident was so outrageous that it changed the “terms and conditions of
employment.” (Pl.’s Opp. Br. at 3, ECF No. 7.) It thus appears that Plaintiff seeks to assert a
hostile work environment claim under the NJLAD, but in the Complaint there is no reference to
such a claim or to a change in the terms and conditions of employment. “[A] complaint cannot
be amended (or supplemented) by way of an opposition brief.” Swift v. Pandey, No. 13-649
(JLL), 2013 WL 6022093, at *2 (D.N.J. Nov. 13, 2013) (citing Pa. ex rel. Zimmerman v.
Pepsico, 830 F.2d 173 (3d Cir. 1998) (“It is axiomatic that the complaint may not be amended by
the briefs in opposition to a motion to dismiss.”)).
2. Count II: ADA Claim
The ADA prohibits employers from “discriminat[ing] against a qualified individual on
the basis of disability.” 42 U.S.C. § 12112(a). In order to demonstrate a prima facie case of
discrimination under the ADA, a plaintiff must show “(1) [s]he is a disabled person within the
meaning of the ADA; (2) [s]he is otherwise qualified to perform the essential functions of the
job, with or without reasonable accommodations by the employer, and (3) [s]he has suffered an
otherwise adverse employment decision as a result of discrimination.” Williams v. Phila. Hous.
Auth. Police Dep’t., 380 F.3d 751, 761 (3d Cir. 2004) (internal citations omitted). The ADA
defines “disability” as: “(A) a physical or mental impairment that substantially limits one or
more of the major life activities of [an] individual; (B) a record of such an impairment; or (C)
being regarded as having such an impairment.” 42 U.S.C. § 12102.
Defendants argue that Plaintiff’s ADA claim must be dismissed because the Complaint
failed to adequately plead Plaintiff’s disability, Defendants’ knowledge of such disability, and an
adverse employment action. The Court agrees. As explained above, the Complaint merely states
that Plaintiff has an unspecified disability without any further elaboration, but to receive
protection under the ADA, Plaintiff must suffer from a disability that falls within the statutory
definition. Plaintiff’s Complaint does not provide any facts to support such a finding, thus
warranting dismissal. See, e.g., Amiot v. Kemper Ins. Co., 122 F. App’x 577, 580 (3d Cir. 2004)
(affirming dismissal of an ADA claim where the plaintiff failed to allege a disability within the
meaning of the statute); Wright v. City of Trenton, No. 06-3832 (GEB), 2007 WL 2705162, at *2
(D.N.J. Sept. 17, 2007) (granting dismissal of an ADA claim where the plaintiff failed to identify
in his complaint what his disability was). Furthermore Plaintiff’s Complaint also fails to plead
any facts indicating Defendants regarded her as disabled. See, e.g., Grazioli v. Genuine Parts
Co., 409 F. Supp. 2d 569, 585–86 (D.N.J. Dec. 30, 2005) (granting summary judgment to the
employer on the employee’s ADA claim where the employee failed to establish that the
employer believed the employee was disabled). Lastly, as explained above, Plaintiff has not
sufficiently alleged any adverse employment action.3 Therefore, Count II will be dismissed
3. Remaining Counts III, IV, V
With respect to Plaintiff’s three remaining claims of intentional infliction of emotional
distress, negligent infliction of emotional distress, and negligence, Defendants assert that the
NJLAD preempts common law claims based on the same facts as the NJLAD claim. See, e.g.,
Gaines v. UPS, Inc., No. 2:13-3709 (KM) (MCA), 2014 WL 1450113, at *5–7 (D.N.J. Apr. 14,
2014) (collecting numerous cases and dismissing negligence and intentional infliction of
emotional distress claims that were based on the same operative facts as the NJLAD claim and
therefore preempted). Plaintiff has not contested this argument in her opposition brief.
Therefore the Court will dismiss Counts III, IV, and V with prejudice.
For the reasons above, the Court will grant Defendants’ motion. Counts I and II of the
Complaint will be dismissed without prejudice, but Counts III, IV, and V will be dismissed with
prejudice. Plaintiff may refile an Amended Complaint within 30 days if she can correct the
deficiencies above. A corresponding Order follows.
/s/ Anne E. Thompson
ANNE E. THOMPSON, U.S.D.J.
Again, to the extent Plaintiff seeks to assert a hostile work environment ADA claim, the
Complaint fails to provide adequate notice of such a claim.
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