Gaines v. United Parcel Serv., Inc.

SHELLY A. GAINES, Plaintiff, v. UNITED PARCEL SERVICE, INC., Defendant.

Civ. No. 2:13-3709 (KM) (MCA)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

DATED: April 14, 2014

OPINION

MCNULTY, U.S.D.J.:

This matter comes before the Court upon the motion (Docket No. 5 ("Def. Br.")) of Defendant United Parcel Service, Inc., to dismiss Counts 2, 3, 4, and 5 of the Complaint of Plaintiff Shelly A. Gaines (Docket No. 1 ("Compl.")). For the reasons set forth below, Defendant's motion will be granted.

I. BACKGROUND

Solely for purposes of this motion to dismiss, I take the well-pleaded allegations of the Complaint as true.

According to the Complaint, the Plaintiff, Shelly A. Gaines, an African-American woman, was hired by UPS to work as a part-time recruiter on January 19, 2004. Compl., Count 1 ¶ 2.¹ Around 2006, UPS promoted her to a full-time position as a resource specialist (an office job). Id. ¶ 3. Thereafter, in 2009, Plaintiff complained to UPS about "harassment, discrimination, and a hostile work environment because of her race, African American." Id. ¶ 4. Gaines alleges that, before she complained of discrimination in 2009, her work was "outstanding and all her performance evaluations were excellent." Id. ¶ 5. On June 14, 2012 and August 8, 2012, Gaines made further complaints of discrimination to UPS. In particular, Gaines complained of disparate treatment by her immediate supervisor, Nancy McCarthy, and Human Resources Manager Michelle Hug, both alleged to be Caucasian. Id. ¶ 6.

On August 21, 2012, Gaines gave UPS a doctor's note advising her employer that she was required to wear sneakers or other "soft" footwear at work because of a foot deformity, Id. ¶ 7. On September 18, 2012, UPS allegedly responded by directing Gaines to leave work "because Defendant opined that Plaintiff was suffering under the American with Disabilities Act because she could not perform an alleged, essential function of her job, i.e. she could not wear hard toed shoes in the operations hub area." Id. ¶ 8. The Complaint alleges that, at this time, UPS regularly permitted similarly situated UPS office employees who did not have foot deformities to wear high heels and other "soft shoes" in the operations hub. Id. ¶ 11. Gaines's job duties only required her to spend thirty minutes a day in the hub operations area. UPS also directed Gaines to apply for disability benefits and failed to provide reasonable accommodations. Id. ¶ 10. Gaines alleges that UPS used the "hard toed shoes" requirement to discriminate against Gaines because UPS regarded Gaines as handicapped. According to Gaines, UPS refused to permit her to work between September 2012 and April 2013, after which she returned to work.

Plaintiff originally commenced this action on May 31, 2013, in the Superior Court of New Jersey, Law Division, Hudson County (Docket No. HUD-L-2459-13). Docket No. 1 at 1. UPS removed the case to this Court on June 14, 2013. Gaines's Complaint alleges five claims against UPS: (1) racial and handicap discrimination in violation of the New Jersey Law Against Discrimination ("NJLAD"); (2) Retaliation under the NJLAD; (3) Intentional Infliction of Emotional Distress "(IIED"); (4): Negligence/Breach of Ordinary Care; (5): Breach of Express and Implied Contracts.

On July 5, 2013, UPS moved to dismiss counts two, three, four and five of the Complaint pursuant to Fed. R. Civ. P. 12(b)(6). Def. Br. UPS submits that these claims are time barred; that they are preempted by Gaines's NJLAD claim (Count 1); that they are barred by the New Jersey Workers' Compensation Act; or that they otherwise fail to state a claim on which relief may be granted.

II. DISCUSSION

A. Legal Standard of Review

Rule 12(b)(6) provides for the dismissal of a complaint, in whole or in part, if it fails to state a claim upon which relief can be granted. The defendant, as the moving party, bears the burden of showing that no claim has been stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a Rule 12(b)(6) motion, a court must take the allegations of the complaint as trueand draw reasonable inferences in the light most favorable to the plaintiff. Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (traditional "reasonable inferences" principle not undermined by Twombly, see infra).

Federal Rule of Civil Procedure 8(a) does not require that a complaint contain detailed factual allegations. Nevertheless, "a plaintiff's obligation to provide the 'grounds' of his 'entitlement 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 (2007). Thus, the complaint's factual allegations must be sufficient to raise a plaintiff's right to relief above a speculative level, so that a claim is "plausible on its face." Id. at 570; see also Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008). That facial-plausibility standard is met "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). While "[t]he plausibility standard is not akin to a 'probability requirement' . . . it asks for more than a sheer possibility." Iqbal, 556 U.S. at 678.

"Under Fed. R. Civ. P. 8(c), the statute of limitations constitutes an affirmative defense to an action. Under the law of this and other circuits, however, the limitations defense may be raised on a motion under Rule 12(b)(6), but only if 'the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations.'" Bethel v. Jendoco Const Corp., 570 F.2d 1168, 1174 (3d Cir. 1978) (quoting Hanna v. U.S. Veterans' Admin. Hosp., 514 F.2d 1092, 1094 (3d Cir. 1975)). If the time bar is not apparent from the face of the complaint, "then it may not afford the basis for a dismissal of the complaint under Rule 12(b)(6)." Id.

B. Plaintiff's Claims

1. Count 2: NJLAD Retaliation Claim

Defendant argues that Plaintiff's NJLAD Retaliation claim should be dismissed because (1) the claim is time-barred (at least in part) and (2) because there are no facts pleaded identifying a "protected activity" under the NJLAD. I disagree and will deny the motion to dismiss this claim.

a. Statute of Limitations

Plaintiff commenced this action in state court on May 31, 2013. The statute of limitations for NJLAD claims is two years from the date of accrual. See Thomas v. Care Plus of New Jersey, Inc., 484 F. App'x 692, 693 (3d Cir. 2012). Defendant therefore argues that any acts of retaliation occurring on or before May 31, 2011, are time-barred and should be dismissed.

The Complaint alleges that Gaines first complained about racial discrimination, harassment, and a hostile work environment in 2009. She says she again complained about differential treatment due to her race in June and August of 2012. She provided UPS with a doctor's note requesting an accommodation regarding her footwear on August 21, 2012.

The nub of Gaines's Count 2 allegations, however, is retaliation for those complaints or requests. The Complaint alleges that, between 2009 and September 2012, UPS engaged in "numerous hostile acts" against her. Compl., Count 2, ¶ 3. That allegation, for sure, is somewhat vague about dates, but Gaines does specifically allege that, "after being directed by Defendant to leave work on or about August 8, 2012, HR Manager, Michelle Hug advised Plaintiff that she could [] return to work only if she signed an agreement to stop complaining to upper management about the differential treatment." Id. Further, Gaines alleges that, since her return to work in April 2013, "Defendant continues to retaliate against her with the purpose of unreasonably interfering with her work" by, for example, refusing to allow her to return to her prior duties, demoting her from her salaried position, and denying a pay increase. Id.

The plain reading of these allegations of retaliation is that they did not occur until her return to work in April 2013, well within the two-year limitations period. There may be alleged acts of retaliation that occurred outside of the two year statute of limitations, but the facts pleaded in the complaint do not permit me to conclude whether they might be actionable under a continuing violation theory. At any rate, however, I am satisfied that Count 2 contains allegations that are not time-barred, and I will not subdivide it any further; I will deny the motion to dismiss Count 2.

b. Failure to plead a protected activity

"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 anddisability." Davis v. Supervalu, Inc., CIV. 13-414 JBS/JS, 2013 WL 1704295, at *4 (D.N.J. Apr. 19, 2013) (citing N.J.S.A. 10:5-12(a)). The NJLAD also makes it unlawful "to take reprisals against any person because that person has opposed any practices or acts forbidden under" the act or "because he has filed a complaint, testified or assisted in a proceeding" under the Act. N.J.S.A. 10:5-12(d). In addition to formal letters of complaint to an employer or the Equal Employment Opportunity Commission ("EEOC"), "informal protests of discrimination to management may qualify as protected activity" under the NJLAD. DeJoy v. Comcast Cable Commc'ns Inc., 968 F. Supp. 963, 988 (D.N.J. 1997) (citing Barber v. CSX Distribution Servs., 68 F.3d 694, 702 (3d Cir. 1995) ).

The United States Court of Appeals for the Third Circuit has held that, to establish a prima facie case for retaliation under the NJLAD, a plaintiff must plead that "(1) that she engaged in a protected activity; (2) that she suffered an adverse employment action; and (3) that there was a causal connection...