O'Toole v. Tofutti Brands, Inc.

203 F.Supp.3d 458

Renee O'TOOLE, Plaintiff,

v.TOFUTTI BRANDS, INC. & David Mintz, Defendants.

Civil Action No. 15-8841

United States District Court, D. New Jersey.

Signed August 26, 2016

Corey M. Stein, Serrins Fisher LLP, New York, NY, for Plaintiff.

James Thomas Prusinowski, Trimboli & Prusinowski, Morristown, NJ, for Defendants.

OPINION

John Michael Vazquez, United States District Judge.

THIS MATTER comes before the Court by way of the Motion for Summary Judgment filed by Defendants Tofutti Brands, Inc. ("Tofutti" or the "Company") and David Mintz (collectively "Defendants"), which was filed in lieu of answering Plaintiff Renee O'Toole's Complaint and without leave of the Court. D.E. 8. Plaintiff opposed the motion (D.E. 17-19) and Defendants filed a reply (D.E. 21). The parties also submitted supplemental letter briefs regarding jurisdiction. D.E. 28, 32. No discovery has been taken in this matter. The Court reviewed all submissions made in support and in opposition to the motion, and considered the motion without oral argument pursuant to L. Civ. R. 78.1(b). For the reasons stated below, Defendants' motion is DENIED .

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff began working as a laboratory technician at Tofutti on September 15, 2008. Compl. ¶ 12, D.E. 1. In November 2008, Defendants also hired Plaintiff to prepare meals for Defendant Mintz, Tofutti's founder and CEO, at his home twice a week. Id. ¶ 16. "Due to her positive performance as a laboratory technician," Plaintiff was promoted to Director of Research and Development in 2012. Id. ¶ 14. As the Director, she supervised testing and was responsible for the food formula laboratory. Id. ¶ 15. Plaintiff reported directly to Mintz both in her capacity as his personal chef and as the Director of Research and Development. Id. ¶ 17. Plaintiff's four count complaint against Defendants alleges that Mintz sexually harassed and subjected her to a hostile work environment. Plaintiff contends that Mintz made "near daily" discriminatory remarks and engaged in repeated discriminatory behavior due to her gender. Id. ¶¶ 20-25. Plaintiff alleges that she was ultimately terminated on February 11, 2015 "because she rebuffed Defendant Mintz's sexual advances and complained about his regular sexual harassment." Id. ¶¶ 31-32.

Plaintiff's complaint asserts that this Court has federal subject matter jurisdiction over the matter due to a Title VII retaliation claim (Count One) and a Title VII hostile work environment claim (Count Two) against Tofutti. Id. ¶¶ 3, 33-44. Plaintiff's complaint also asserts two counts pursuant the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5–1, et seq . , against Tofutti and Mintz as employers, and against Mintz individually for aiding and abetting the discriminatory conduct (Counts Three and Four). Id. ¶ 45-60. Plaintiff's complaint asserts that this Court has supplemental jurisdiction, pursuant to 28 U.S.C. § 1367(a), over the LAD claims. Id. ¶ 3.

Defendants filed this motion for summary judgment in lieu of answering the complaint. Defendants state that "[i]t is irrefutable that Tofutti did not employ more than fourteen employees during any twenty-week period for the relevant years." Defs' Br. at 8. To support this argument, Defendants provided payroll records only from the fourth quarters of 2014 and 2015, but failed to include any payroll records (or other information) for the complete time period covering the alleged hostile work environment or for all of 2014 and 2015. See Affidavit of Steven Kass ("Kass Aff.") Exs. 1, 4 (D.E. 8-4, 8-7). Defendants argue that this evidence establishes that Tofutti is not a covered employer under Title VII so Plaintiff's Title VII claims must be dismissed. Defs' Br. at 9-10. Defendants further argue that because the Title VII claims are not viable, the Court should not retain supplemental jurisdiction over Plaintiff's LAD claims. As a result, the complaint should be dismissed in its entirety. Id. at 10-11. In the alternative, Defendants argue that the LAD claims against Mintz in his individual capacity must be dismissed because he is not an "employer" pursuant to the LAD and cannot be personally liable because he could have not aided and abetted his own conduct. Id. at 12-17.

Plaintiff argues that Defendants' motion for summary judgment is premature and that she should be provided with an opportunity to conduct discovery regarding the number of people employed by Tofutti. Plf's Br. at 10-14. Plaintiff argues that discovery is needed to properly oppose Defendants' motion, noting that no discovery has been taken because Defendants fded this motion in lieu of answering the complaint. See Certification of Corey M. Stein (Stein Cert.) ¶¶ 7-10 (D.E. 17); Certification of Renee O'Toole (O'Toole Cert.) ¶ 11 (D.E. 18). Further, Plaintiff alleges that she worked with people in Tofutti's lab who "were not listed on the pay records that Defendants submitted with their Motion for Summary Judgment." O'Toole Cert. ¶¶ 6-7. Plaintiff alleges that at least one of these individuals, a lab technician named Sara Schenker, "worked on Defendants' premises, us[ed] Defendants' equipment, and w [as] directed in [her] job duties by Defendants."¹ Id. ¶ 8. As result, Plaintiff argues that she has provided a legitimate basis for requesting leave to take discovery and that Defendants' assertion that it is not a covered employer is without merit or, at best, premature. Plf's Br. at 11-14. Plaintiff also argues that Mintz can be liable under the LAD as an employer and for aiding and abetting his own conduct. Id. at 15-21.

After the motion for summary judgment was fully briefed, the parties filed a "Consent to Submit Supplemental Argument," requesting leave for Plaintiff to file an additional brief alleging that the Court also has diversity jurisdiction over Plaintiff's LAD claims, although diversity jurisdiction was not asserted in the Complaint. D.E. 25. The Court granted this request and also gave Defendants leave to file a brief in opposition. D.E. 26. Plaintiff filed a supplemental letter brief arguing that this Court has diversity jurisdiction over the state law claims, pursuant to 28 U.S.C. § 1332(a), because at the time of filing the parties were completely diverse and the amount in controversy exceeded $75,000. Because the Court has diversity jurisdiction, Plaintiff argued that the LAD claims should not be dismissed on jurisdictional grounds. Plf's Ltr. Br. at 1-2 (D.E. 28). Plaintiff also requested leave to amend her Complaint, pursuant to Fed. R. Civ. P. 15, to plead diversity jurisdiction. Id. at 2. Defendants filed a letter brief opposing Plaintiff's argument as to diversity jurisdiction, stating that parties are not diverse. Specifically, Defendants alleged that "there is evidence that Plaintiff [ ] resided in New Jersey throughout her employment with Tofutti." Defs' Ltr. Br. at 2 (D.E. 32).

II. SUMMARY JUDGMENT STANDARD

A moving party is entitled to summary judgment where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact in dispute is material when it "might affect the outcome of the suit under the governing law" and is genuine "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Disputes over irrelevant or unnecessary facts will not preclude granting a motion for summary judgment. Id. "In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.’ " Marino v. Indus. Crating Co. , 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson , 477 U.S. at 255, 106 S.Ct. 2505 ). A court's role in deciding a motion for summary judgment is not to evaluate the evidence and decide the truth of the matter but rather "to determine whether there is a genuine issue for trial." Anderson , 477 U.S. at 249, 106 S.Ct. 2505.

A party moving for summary judgment has the initial burden of showing the basis for its motion and must demonstrate that there is an absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). After the moving party adequately supports its motion, the burden shifts to the nonmoving party to "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548 (internal quotation marks omitted). To withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict the moving party. Anderson , 477 U.S. at 250, 106 S.Ct. 2505. Ultimately, there is "no genuine issue as to any material fact" if a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp. , 477 U.S. at 322–23, 106 S.Ct. 2548. "If reasonable minds could differ as to the import of the evidence," however, summary judgment is not appropriate. See Anderson , 477 U.S. at 250–51, 106 S.Ct. 2505.

III. ANALYSIS

A. TITLE VII CLAIMS (COUNTS ONE AND TWO)

Title VII only applies to entities that qualify as an "employer" as defined by the statute. An "employer" is "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year." 42 U.S.C. § 2000e(b) (emphasis added). Whether an employer has the requisite number of employees is a substantive element of a Title VII claim. Arbaugh v. Y & H Corp. , 546 U.S. 500, 516, 126 S.Ct. 1235, 163...