Donovan v. W. R. Berkley Corp.

566 F.Supp.3d 224

Sean M. DONOVAN, Plaintiff,

v.W. R. BERKLEY CORPORATION, Berkley Insurance Company a/k/a Berkley Public Entity, Richard Starkie, and Scott Barraclough, Defendants.

Civil Action No. 3:21-cv-03707-FLW-LHG

United States District Court, D. New Jersey.

Signed October 8, 2021

Richard P. Flaum, Difrancesco Bateman Coley Yospin Kunzman Davis & Lehrer, PC, Warren, NJ, for Plaintiff.

Anna Conlon Aguilar, Aguilar Bentley LLC, Ridgewood, NJ, for Defendants.

WOLFSON, Chief Judge:

Plaintiff Sean M. Donovan ("Plaintiff"), a resident of New York, brings this employment discrimination action under the New Jersey Law Against Discrimination ("NJLAD") against defendants, W. R. Berkley Corporation ("W.R. Berkley"), Berkley Insurance Company a/k/a Berkley Public Entity ("BPE"), a subsidiary of W. R. Berkley, Richard Starkie, Senior Vice President of BPE, and Scott Barraclough, Chief Executive Officer of BPE (collectively "Defendants"), alleging that he suffered retaliation for reporting discriminatory conduct. In the present matter, Defendants move to dismiss Plaintiff's Complaint on the grounds that Plaintiff, an employee of Defendants in New York, has not alleged a sufficient connection to New Jersey to avail himself of the protections of the New Jersey Law Against Discrimination ("NJLAD"). Plaintiff opposes Defendants’ motion, and cross-moves for leave to amend his Complaint, pursuant to Federal Rule of Civil Procedure 15(a)(2), to assert additional factual allegations connecting his claims to New Jersey. For the reasons set forth herein, Plaintiff's Motion to Amend is GRANTED and Defendants’ Motion to Dismiss is GRANTED . However, Plaintiff is given leave to file a second amended complaint to cure the deficiencies outlined in this Opinion within 21 days from the date of the accompanying Order.

I. BACKGROUND¹

Plaintiff is a resident of New York and a former employee of BPE. (Am. Compl. ¶ 1.) BPE is a wholly owned subsidiary of W.R. Berkley, which has offices in both New Jersey and New York. (Id. ¶ 2.) W.R. Berkley has its headquarters in Connecticut. (Id. ¶ 29.) According to Defendants’ Notice of Removal, Starkie is a citizen of Florida and Barraclough is a citizen of Pennsylvania. (ECF No. 1, 7–8.)

In 2017, Plaintiff was hired by BPE as a Claims Director. (Id. ¶ 6.) Plaintiff began work on May 30, 2017 in BPE's New York office. (Id. ) While Plaintiff was employed in the New York office, he alleges that he "worked on a semi[-]regular basis" at BPE's offices in Rutherford, Ewing, and Morristown, New Jersey. (Id. ¶ 7.) Plaintiff also alleges that he attended work meetings and functions in New Jersey, and would work remotely while traveling through New Jersey to BPE's Philadelphia office via Amtrak. (Id. ¶ 8.)

During his employment, Plaintiff alleges that he witnessed and experienced several incidents of discrimination. (Id. ¶¶ 11, 15, 19, 31, 34, 38, 45.) For instance, Plaintiff alleges that in May or June 2018, he participated in a Claims Team teleconference with several BPE employees, including Starkie, the Senior Vice President of BPE, and Andrea de Voogd ("Ms. de Voogd"), a Claims Analyst. (Id. ¶¶ 10–11.) Plaintiff alleges that Starkie participated in this teleconference from BPE's office in Rutherford, New Jersey. (Id. ¶ 13.) During the conference, Plaintiff alleges that Ms. de Voogd asked a legitimate process question and, in response, "Starkie launched into a loud and abusive tirade [during which] he repeatedly shouted at [Ms.] de Voogd." (Id. ¶ 11.) Shortly after the teleconference, Plaintiff reported Starkie's conduct as workplace bullying to then-BPE President, Richard Vincelette ("Vincelette"). (Id. ¶ 14.) A few weeks later, Plaintiff alleges that Starkie again made discriminatory remarks against Latinx people. (Id. ¶ 15.) Specifically, Plaintiff contends that during a teleconference, Starkie made the following racist comments: "the problem with the Labor Law cases is they almost always involve severe injuries because they're guys who fall off of scaffolds or are struck by a falling object ... they're often minority plaintiff – Latinos ... they go out on Comp and they never go back ... and so a million dollars in a Labor Law case." (Id. ¶ 19.) Plaintiff once again reported Starkie's remark to Vincelette as he believed Starkie's comment violated W.R. Berkley's code of ethics and business conduct handbook, which states that "[e]ven the perception of discrimination can harm morale. If you know or suspect that discrimination is taking place, report it promptly.". (Id. ¶¶ 19–20.) A few months later, Plaintiff settled a liability case involving a Latino male. (Id. ¶ 22.) According to Plaintiff, Starkie made a note in the claim file that the large payment was justified, in part, because the plaintiff was a Hispanic male. (Id. ) Plaintiff reported this statement to his direct manager as he believed it to be discriminatory. (Id. ¶ 23.) Plaintiff alleges that his manager edited the discriminatory portion of the note in the system. (Id. ¶ 24.)

On March 4, 2019, Plaintiff became aware of another allegedly discriminatory incident that took place at an industry conference against a co-worker who is a South Asian Woman of Indian descent. (Id. ¶ 25.) Specifically, a representative of one of BPE's insureds approached Plaintiff's co-worker and "commented on her scarf, and stated that she "might be mistaken for a terrorist." (Id. ¶ 26.) Barraclough allegedly witnessed this incident and when asked if he would take any action in response, he replied "What am I supposed to say?" (Id. ) Plaintiff reported this incident to Keefe. (Id. ¶ 27.) Plaintiff alleges that his reporting "led to a continuous pattern of harassment against Plaintiff by Defendant Barraclough creating a hostile work environment based on retaliation or retaliatory harassment." (Id. ¶ 25.)

Shortly thereafter, Plaintiff applied for an open position as Vice President, Senior Claims Counsel, at W.R. Berkley's headquarters in Connecticut and was interviewed by a member of the Human Resources staff. (Id. ¶ 26.) In the months following his interview, Plaintiff attempted to contact the staff member who conducted the interview as to the status of his application, but Plaintiff did not receive any response. (Id. ¶ 27.) Eventually, Plaintiff was informed that the position had been filled by another person. (Id. ¶ 28.) In September 2019, Plaintiff contacted a Human Resources manager to discuss the lack of communication regarding the status of his application. (Id. ¶¶ 28–31.) However, instead of addressing Plaintiff's concerns, the manager allegedly criticized Plaintiff and warned him to watch his behavior. (Id. ¶ 31.) According to Plaintiff, this incident became part of a "Final Warning" he received later that year. (Id. ¶ 32.)

In September 2019, Plaintiff applied for the position of Senior Vice President, Chief Claims Officer. (Id. ¶ 35.) Plaintiff does not indicate where this position would have been located. Plaintiff was interviewed by Barraclough for the position in the Morristown, New Jersey office. (Id. ¶ 36.) According to Plaintiff, Barraclough attacked Plaintiff's character and criticized him through the interview. (Id. ¶¶ 37-43.) Then, on October 22, 2019, BPE issued a written final warning to Plaintiff based on performance deficiencies from late 2018 through October 2019. (Id. ¶ 56.) Plaintiff alleges that this Final Warning was issued at BPE's Morristown, New Jersey office. (Id. ) Following the final warning, Plaintiff claims that he continued to endure harassment from his supervisors and unsuccessfully sought other employment. (Id. ¶ 58.) Plaintiff was subsequently terminated from his employment with BPE on February 3, 2020. (Id. ¶ 60.) According to Plaintiff, Starkie informed him of his termination while at the Rutherford, New Jersey office. (Id. ¶ 63.)

Following his termination, Plaintiff filed this suit in the Superior Court of New Jersey, Mercer County, Law Division, alleging claims under the NJLAD for retaliatory harassment against BPE, and aiding and abetting against his supervisors, Starkie and Barraclough. Defendants subsequently removed the action to this Court. In the instant motion to dismiss, Defendants contend that (1) the NJLAD should not apply to this matter because Plaintiff was not employed in New Jersey, and (2) even if the NJLAD does apply, Plaintiff has failed to sufficiently allege claims against Defendants for retaliation and aiding and abetting under the NJLAD. In response, Plaintiff has filed a cross-motion to amend his complaint.

II. STANDARD OF REVIEW

In reviewing a motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6), "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." Fowler v. UPMC Shadyside , 578 F.3d 203, 210 (3d Cir. 2009) (internal quotation marks and citation omitted). While Federal Rule of Civil Procedure 8(a) 6 does not require that a complaint contain 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." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted). Thus, to survive a Rule 12(b)(6) motion to dismiss, the Complaint must contain sufficient factual allegations to raise a plaintiff's right to relief above the speculative level, so that a claim "is plausible on its face." Id. at 570, 127 S.Ct. 1955 ; Phillips v. Cty. of Allegheny , 515 F.3d 224, 231 (3d Cir. 2008). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct...