Schulman v. Zoetis, Inc.

684 F.Supp.3d 275

Frances Yvonne SCHULMAN, Plaintiff, v. ZOETIS, INC. and Zoetis Reference Labs, LLC, Defendants.

Civil Action No. 22-1351(MEF)(LDW)

United States District Court, D. New Jersey

Signed July 14, 2023

Julie Salwen, David Harrison, Harrison Harrison & Associates Ltd., Red Bank, NJ, for Plaintiff.

Cody C. Hubbs, Richard J. Cino, Robert J. Cino, Kelly Rose Anderson, Linda Joanne Posluszny, Jackson Lewis P.C., Berkeley Heights, NJ, Robert Jude Cino, Jackson Lewis P.C., Morristown, NJ, for Defendant Zoetis, Inc.

Robert J. Cino, Jackson Lewis P.C., Berkeley Heights, NJ, Robert Jude Cino, Jackson Lewis P.C., Morristown, NJ, for Defendant Zoetis Reference Labs, LLC.

OPINION and ORDER

Michael E. Farbiarz, United States District Judge

The Plaintiff sued the Defendants under federal law and New Jersey law, alleging she received less pay than certain male co-workers.

The Defendants now move to dismiss the New Jersey law claims, principally because the Plaintiff, a remote worker, did not live or work in New Jersey. The motion is denied.

I. Procedural History

This case was initiated during March of 2022, and a motion to dismiss was filed a few months later. Before the motion was decided, the Plaintiff filed an amended complaint, during March of 2023. This made the original motion to dismiss moot.

During April 2023, the Defendants filed a renewed motion to dismiss, directed at the amended complaint. Opposition and then reply papers were filed during late May, and on June 13 the case was re-assigned to the undersigned.

As noted, the current motion to dismiss concerns only the Plaintiff's state law claims. These arise under various provisions of New Jersey's Law Against Discrimination, N.J. Stat. Ann. § 10:5-1 et seq. (West) ("New Jersey LAD"). In support of their motion to dismiss, the Defendants assert that the Plaintiff is a New Hampshire resident; that she worked during the relevant period only in New Hampshire; and that her only meaningful allegation related to New Jersey is that the Defendants' headquarters are there. Memorandum of Law in Support of Defendants' Partial Motion to Dismiss ("Defendants' Memo") at 1.¹

In these circumstances, the Defendants argue, the New Jersey LAD does not apply (Defendants' Memo at 9-16) and New Hampshire law does (Defendants' Memo at 16-29).

These arguments are taken up below, each in turn.

II. The New Jersey Law Against Discrimination

As noted, the Defendants first argue that the New Jersey LAD "does not extend to employment outside of New Jersey," Defendants' Memo at 10, and that the Plaintiff worked outside of the state at all relevant times. See id. at 12. Accordingly, the Defendants argue, the New Jersey LAD does not apply in this case and the motion to dismiss should be granted. See id. at 9-16.

To evaluate this argument, the Court considers New Jersey law. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). When doing so in this context, "the decisions of the [New Jersey] Supreme Court are the authoritative source." Spence v. ESAB Grp., Inc., 623 F.3d 212, 216 (3d Cir. 2010).

But as to the issue here --- does the New Jersey LAD reach a remote worker who worked for a New Jersey company, but outside of New Jersey? --- the New Jersey Supreme Court has not issued a "controlling decision." Popa v. Harriet Carter Gifts, Inc., 52 F.4th 121, 125 (3d Cir. 2022); see also Nationwide Mut. Ins. Co. v. Buffetta, 230 F.3d 634, 637 (3d Cir. 2000).

Accordingly, this Court must "predict" how the Supreme Court of New Jersey will eventually resolve this issue. See Spence, 623 F.3d at 216. To make this prediction, a range of sources may be consulted. See, e.g., Buffetta, 230 F.3d at 637 (listing sources); McKenna v. Ortho Pharm. Corp., 622 F.2d 657, 662-663 (3d Cir. 1980) (listing more sources); see generally Popa, 52 F.4th at 125.

These include relevant "opinions of intermediate appellate state courts." Buffetta, 230 F.3d at 637. Here, there is one such opinion: Calabotta v. Phibro Animal Health Corp., 460 N.J. Super. 38, 213 A.3d 210 (2019).

In Calabotta, a non-New Jersey resident sued his "New Jersey-based former employer." Id. at 44, 213 A.3d 210. The former employee alleged that he was denied a "promotion to a position in New Jersey"; that he was then fired from his job at the New Jersey employer's non-New Jersey-based subsidiary; and that all this violated New Jersey's LAD. Id. In this circumstance, Calabotta asked, "can the [New Jersey LAD] protect nonresident workers and job applicants[?]" Id. at 45, 213 A.3d 210.

The Calabotta Court answered: yes and yes. See id. at 45-46, 213 A.3d 210. First, the New Jersey LAD can "extend" to the non-promotion of a non-New Jersey resident into a New Jersey job. Id. at 45, 213 A.3d 210. And second, the New Jersey LAD can "extend," id. at 45, 213 A.3d 210, to wrongfully discharging a non-New Jersey resident from a non-New Jersey-based job with a New Jersey entity's subsidiary. See id. at 45-46, 213 A.3d 210.

The Calabotta Court's core reasoning: the New Jersey LAD protects "all persons" --- and "[t]he statute's plain language . . . does not limit the definition of 'person' to New Jersey residents or employees." Id. at 61, 213 A.3d 210. (The Court noted that other relevant statutory terms, "employer" and "any individual," also do not purport to limit the statute's coverage to those who work or live in New Jersey. See id. at 61-62, 213 A.3d 210.)

Will the New Jersey Supreme Court take Calabotta's approach?

If yes, the New Jersey LAD can reach the Plaintiff's allegations in this case. The Plaintiff here is like the plaintiff in Calabotta: a non-New Jersey resident working outside of New Jersey for a New Jersey-connected employer. And the statutory provisions of the New Jersey LAD at play in this case are the same ones construed in Calabotta --- "person," "employer" and "individual."

* * *

The Court predicts that the New Jersey Supreme Court, when confronted with the question, will hold that the New Jersey LAD can reach a remote worker who worked for a New Jersey-based company, but physically outside of New Jersey.

This prediction is based on five considerations.

[1] Calabotta

First, the Calabotta decision is, itself, a firm data point from which to predict what the New Jersey Supreme Court will decide. See, e.g., Rivard v. Trip Mate, Inc., 2023 WL 2624721, at *2 n.3 (3d Cir. Mar. 24, 2023); see generally U.S. Underwriters Ins. Co. v. Liberty Mut. Ins. Co., 80 F.3d 90, 93 (3d Cir. 1996) ("due deference to the decisions of lower [state] courts" in prediction analysis); Robinson v. Jiffy Exec. Limousine Co., 4 F.3d 237, 242 (3d Cir. 1993) ("we must give serious consideration to the decisions of the intermediate appellate courts in ascertaining and applying state law"); City of Philadelphia v. Lead Indus. Ass'n, Inc., 994 F.2d 112, 123 (3d Cir. 1993) ("decisions of state intermediate appellate courts should be accorded significant weight" in prediction analysis).

[2] Interpretive Principles

Second, Calabotta's analysis was based on the statutory interpretation principles the New Jersey Supreme Court applies in this area. This increases the likelihood that the New Jersey Supreme Court, when it gets its chance, will see things the way Calabotta did.

The first of the statutory interpretation principles is general. It applies across the board. The New Jersey Supreme Court has said:

In determining the meaning of a statute, we consider first the plain language of the statute. If the language is clear, we interpret the statute consistent with its plain meaning.

Oberhand v. Dir., Div. of Tax'n, 193 N.J. 558, 568, 940 A.2d 1202 (2008); see also, e.g., Richardson v. Bd. of Trs. Police & Firemen's Ret. Sys., 192 N.J. 189, 195, 927 A.2d 543 (2007) ("If the plain language leads to a clear and unambiguous result, then [the] interpretive process is over."); cf. Instructional Sys., Inc. v. Comput. Curriculum Corp., 130 N.J. 324, 367, 614 A.2d 124 (1992) (assessing extraterritorial reach of New Jersey statute in light of "the question of whether the New Jersey Legislature intended the Act to apply to . . . activities outside of the state").

This "plain language" approach is a big part of how the Calabotta Court did its work. Calabotta zeroed-in on key statutory terms --- employer, person, and individual. See Calabotta, 460 N.J. Super. at 61-62, 213 A.3d 210. And Calabotta declined to read into these terms any concepts that are not plainly there in the words. See id. "Person," for example, was not read as "person in New Jersey."²

The second relevant statutory interpretation principle: the New Jersey Supreme Court has held that "special rules of interpretation," Nini v. Mercer Cnty. Cmty. Coll., 202 N.J. 98, 108, 995 A.2d 1094 (2010), should be applied to the New Jersey LAD. As the Supreme Court has put it:

The [New Jersey LAD] is remedial social legislation whose overarching goal is to eradicate the cancer of discrimination. As such, it should be liberally construed. Indeed, this Court has been scrupulous in its insistence that the Law Against Discrimination be applied to the full extent of its facial coverage.

Id. at 108-09, 995 A.2d 1094 (cleaned up); see also, e.g., N.J. Stat. Ann. § 10:5-3 (West) ("[t]he Legislature intends that . . . [the New Jersey LAD] shall be liberally construed").

Applying these "special rules[,]" the New Jersey Supreme Court has held that the New Jersey LAD's coverage extends to the full breadth of the statute's (broad) language. See, e.g., Andersen v. Exxon Co., U.S.A., 89 N.J. 483, 495, 446 A.2d 480 (1982) (declining to read into the New Jersey LAD's prohibition on discrimination based on "physical disability" a "so-called severe disabilities" requirement); Bergen Com. Bank v. Sisler, 157 N.J. 188, 215, 723 A.2d 944 (1999) (declining to read into the New Jersey LAD's prohibition on age discrimination a requirement that it be based on older age, as opposed to younger age); cf. Zahorian v. Russell Fitt Real Est....