DANIELS v. LANIGAN

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

____________________________________

:

BENJAMIN DANIELS, :

:

Plaintiff, :

v. : Case No. 3:18-cv-15375-BRM-DEA

:

STATE OF NEW JERSEY DEPARTMENT : OPINION

OF CORRECTIONS, et al., :

:

Defendants. :

____________________________________:

MARTINOTTI, DISTRICT JUDGE

Before this Court is Defendants State of New Jersey Department of Correction (“DOC”),

Trevor Beatty (“Major Beatty”), Robert Buechele (“Buechele”), Robert Chetirkin (“Chetirkin”),

Salvatore D’Amico (“Major D’Amico”), Anthony Degner (“Degner”), Gary Lanigan’s

(“Lanigan”) (collectively “Defendants”) Motion to Dismiss. (ECF No. 3) Plaintiff Benjamin

Daniels (“Daniels”) opposes the Motion. (ECF No. 7.) Having reviewed the parties’ submissions

filed in connection with the Motion and having declined to hold oral argument pursuant to Federal

Rule of Civil Procedure 78(b), for the reasons set forth below, and for good cause shown,

Defendants’ Motion to Dismiss is GRANTED.

I. FACTUAL BACKGROUND

For the purposes of the Motions to Dismiss, the Court accepts the factual allegations in the

Complaint as true and draws all inferences in the light most favorable to Daniels. See Phillips v.

Cty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008). Further, the Court also considers any

“document integral to or explicitly relied upon in the complaint.” In re Burlington Coat Factory

Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

This matter arises out of the alleged racial discrimination and retaliation Daniels incurred

working for the DOC. Daniels is a Lieutenant with the DOC currently assigned to the Central

Reception and Assignment Facility (“CRAF”), which is responsible for processing inmates in the

DOC prison system and employs 300 staff members. (ECF No. 1 ¶ 11.) At all relevant times,

Daniels’ direct supervisors were Major D’Amico, Major Beatty, Administrator Robert Buechele,

Administrator Robert Chetirkin, associate Administrator Degner, and Assistant Superintendent

Lisa Schofield (“Schofield”). (Id. ¶ 10.)

The facts as to Daniels’s case fall within three categories, which will be addressed in turn

below: (1) allegations related to his June 16, 2017 Equal Employment Opportunity Commission

(“EEOC”) right-to-sue letter, (2) allegations related to his August 2, 2018 EEOC right-to-sue letter;

and (3) assertions regarding his August 31, 2018, 10-day suspension.

Daniels also seeks to certify a class because he has testified as a witness for various

minority employees who he claims have also been the victims of discrimination and retaliation at

the hands of Defendants. (Id. ¶ 24.) For example, he testified as a witness in Sergeant Jackson’s

disciplinary hearing on September 19, 2016, and in support of his Equal Employment Division

(“EED”) complaint. (Id. ¶ 23.)

A. June 16, 2017 EEOC Right-to-Sue

In 2014, Major D’Amico began working at CRAF and instituted “discriminatory

employment practices by imposing artificial prerequisites on Lieutenant job assignments by

requiring CRAF Lieutenants to submit resumes for future job assignments (administrative

Lieutenant, Operations Lieutenant)[.] These job assignment prerequisites/conditions produce an

adverse effect on CRAF black . . . Lieutenants that retained the most ‘seniority’ at CRAF.” (Id. ¶

13.) Prior practice had been to job assignments based on class seniority. (Id. ¶ 14.) Further, Major

D’Amico reclassified certain Lieutenant job assignments as specialized, requiring extra training

that was not made available to Daniels or minority Lieutenants. (Id. ¶ 18.)

Therefore, he filed an internal New Jersey EED complaint, which he contends was

mishandled because he was “scrutinized,” and his first EEOC charge related to this incident. (Id.

¶¶ 20, 22.) On June 16, 2017, he received a right-to-sue letter from the EEOC. (Id. ¶ 21.) After his

filings, Daniels was finally able to secure the necessary training to be qualified for the specialized

jobs. (Id. ¶ 19.)

B. August 8, 2018 Right-to-Sue Letter

Daniels’s second set of allegations are tied to his March 26, 2018 EEOC complaint, for

which he received a right-to-sue letter on August 8, 2018. (Id. ¶¶ 25, 32.) His EEOC complaint

alleged that Major D’Amico and Major Beatty “purposely dismissed job duties and assignments

of all communications operators to create an advantage for a white male-non-Hispanic,” although

the NJDOC maintained that it disposed of this job assignment throughout New Jersey. (Id. ¶ 25.)

Essentially, Daniels alleges the Majors discontinued the “communications operator” position to

ultimately relocate the white male, who previously held the position, to the more favorable

assignment of “mail room”, which contained better working conditions and better days off. (Id. ¶¶

26-28.)

The EEOC complaint also alleged details regarding an incident that occurred in February

or March of 2018, where Daniels was instructed by Degner, Major Beatty, and Major D’Amico to

change Sergeant Maurice Jackson’s, a black male, shift and regular days off to less favorable

options. (Id. ¶ 37, 42.) Daniels refused to change his shift and days off, believing the action to be

discriminatory and retaliatory. (Id. ¶ 38.) Therefore, he memorialized the chain of events and his

discomfort in an email to his union representative and Defendants. (Id. ¶ 37, 39.) Major Beatty

responded to his email in a manner that led him to be reprimanded by the DOC. (Id. ¶¶ 40, 43.) As

a result of Daniels’s reactions to Defendants’ conduct, he was retaliated against. Specifically, his

work was subject to “over scrutinization,” he received an increase in work assignments, and

encountered more than usual investigations, to which his white male co-worker was not subject.

(Id. ¶¶ 32, 36.) Daniels was also “accosted/harassed” by Major D’Amico through a “barrage” of

questions, including whether he thought D’Amico was a racist. (Id. ¶ 33.) D’Amico was later

subject to remedial action for his behavior. (Id. ¶ 34.)

Daniels was also retaliated against as a result of filing his March 26, 2018 EEOC complaint.

(Id. ¶ 46.) He was no longer permitted to have 24-hour email access and was no longer permitted

the use of “flex time.” (Id.) On August 2, 2019, he received his right-to-sue letter from the March

26, 2018 EEOC complaint, which was dated July 30, 2018. (See ECF No. 1-1)

C. August 31, 2018 10-day suspension

The third set of allegations relate to a 10-day suspension levied against him. On August 10,

2018, Daniels was issued a Preliminary Notice of Disciplinary Action and a Final Notice of

Disciplinary Action on August 31, 2018, relating to an unidentified incident that occurred on June

29, 2018, seeking an unpaid suspension for ten days. (ECF No. 1 ¶ 50.) He asserts these

“disciplinary charges . . . were issued with retaliatory intent and represent a continuing course of

retaliation by Defendant against this [him].” (Id.) He alleges they were a response to his most

recent EED complaint and whistle-blowing activities. (Id.) After serving nine days of his

suspension, it was withdrawn “due to additional information that CRAF had received” and

replaced with “a Letter of Counseling.” (Id. ¶ 53.)

II. PROCEDURAL HISTORY

On October 29, 2018, Daniels filed a Complaint alleging: (1) race discrimination, disparate

impact, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e

et seq. (“Title VII”), and the New Jersey Law Against Discrimination (“NJLAD”); (2) retaliation,

in violation of 42 U.S.C. § 1981; and (3) retaliation in violation of the Conscientious Employee

Protection Action (“CEPA”), N.J.S.A. 34:19-1, et seq. (See ECF No. 1.) On December 11, 2018,

Defendants filed a Motion to Dismiss on the basis that all claims relating to the June 16, 2017

right-to-sue letter are barred by the statute of limitations and all Title VII claims relating to the 10-

day suspension and retaliation for filing the March 26, 2018 EEOC complaint should be dismissed

for failure to exhaust administrative remedies. (See ECF No. 3-1.) Daniels opposes the Motion.

(ECF No. 7.)

III. LEGAL STANDARD

In deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a

district court is “required to accept as true all factual allegations in the complaint and draw all

inferences in the facts alleged in the light most favorable to the [plaintiff].” Phillips, 515 F.3d at

228. “[A] complaint attacked by a . . . motion to dismiss does not need detailed factual allegations.”

Bell Atl. v. Twombly, 550 U.S. 544, 555 (2007). However, the 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.” Id. (citing Papasan v. Allain,

478 U.S. 265, 286 (1986)). A court is “not bound to accept as true a legal conclusion couched as a

factual allegation.” Papasan, 478 U.S. at 286. Instead, assuming the factual allegations in the

complaint are true, those “[f]actual allegations must be enough to raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555.

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570). “A claim has facial plausibility when the

pleaded factual content allows the court to draw the reasonable inference that the defendant is

liable for misconduct alleged.” Id. This “plausibility standard” requires the complaint allege “more

than a sheer possibility that a defendant has acted unlawfully,” but it “is not akin to a ‘probability

requirement.’” Id. (quoting Twombly, 550 U.S. at 556). “Detailed factual allegations” are not

required, but “more than an unadorned, the defendant-harmed-me accusation” must be pled; it

must include “factual enhancements” and not just conclusory statements or a recitation of the

elements of a cause of action. Id. (citing Twombly, 550 U.S. at 555, 557).

“Determining whether a complaint states a plausible claim for relief [is] . . . a context-

specific task that requires the reviewing court to draw on its judicial experience and common

sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer

more than the mere possibility of misconduct, the complaint has alleged—but it has not

‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).

While as a general rule, a court many not consider anything beyond the four corners of the

complaint on a motion to dismiss pursuant to 12(b)(6), the Third Circuit has held “a court may

consider certain narrowly defined types of material without converting the motion to dismiss [to

one for summary judgment pursuant under Rule 56].” In re Rockefeller Ctr. Props. Sec. Litig., 184

F.3d 280, 287 (3d Cir. 1999). Specifically, courts may consider any “document integral to or

explicitly relied upon in the complaint.” In re Burlington Coat Factory Sec. Litig., 114 F.3d at

1426.

IV. DECISION

A. Title VII Claims Preceding June 16, 2017 Right-to-Sue

Defendants argue that “[a]ll claims asserted by Daniels pertaining to his 2017 EEOC

charge and subsequent June 16, 2017, right to sue letter must be dismissed as barred by the 90 day

statue of limitations.” (ECF No. 3-1 at 8.) Daniels’s opposition acknowledges that the claims

pertaining to his January 16, 2017 right-to-sue are beyond the 90-day statue of limitations. Instead,

he contends that the claims “are well within 300 days of the next filing of a[n] EEOC complaint.”

(ECF No. 7 at 9.)

Prior to filing a Title VII suit, a plaintiff must exhaust all administrative remedies. “A

plaintiff’s failure to exhaust administrative remedies is a prudential requirement, rather than a

jurisdictional one.” Scocozza v. New Jersey, No. 14-2095, 2014 WL 6674453, at *4 (D.N.J. Nov.

25, 2014) (citing Anjelino v. N.Y. Times Co., 200 F.3d 73, 87 (3d Cir. 1999) (holding that the

district court erred “in considering the [defendant’s] failure to exhaust and timeliness defenses as

grounds for dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction”). “In Title VII

actions, failure to exhaust administrative remedies is an affirmative defense in the nature of statute

of limitations.” Williams v. Runyon, 130 F.3d 568, 573 (3d Cir. 1997).

Therefore, “a plaintiff must timely file a charge with the EEOC that contemplates the

claims of discrimination to be asserted.” Scocozza, 2014 WL 6674453, at *4. “Under Title VII, a

charge of race discrimination in employment must be filed with the EEOC within 180 days of the

occurrence of the alleged unlawful employment practice.” Burgh v. Borough Council of Borough

of Montrose, 251 F.3d 465, 469 (3d Cir. 2001). The 180-day deadline is extended to 300 days

when the plaintiff lives in a “deferral state,” such as New Jersey and Pennsylvania. Scocozza, 2014

WL 6674453, at *4. (citing 42 U.S.C. § 2000e–5(e)(1); 29 U.S.C. § 626(d); Cardenas v. Massey,

269 F.3d 251, 255 n. 2 (3d Cir. 2001). Thereafter, “[t]he EEOC must serve notice of the charge on

the employer within ten days of the filing of the charge.” Burgh, 251 F.3d at 469-70. The EEOC

is required to investigate the charge “and the complainant must allow a minimum of 180 days for

the EEOC investigation to proceed.” Id. at 470.

If the EEOC has not resolved the charge after 180 days, it must advise the plaintiff through

a “right-to-sue” letter “that it sees no reason to take action on the complaint.” Id. (citations

omitted). After 180 days, if the EEOC has not issued a right-to-sue letter, the plaintiff may request

one and the EEOC must issue the letter promptly. Id. “The receipt of the right-to-sue letter indicates

that a complainant has exhausted administrative remedies, an essential element for bringing a

claim in court under Title VII.” Id. (citations omitted). A plaintiff cannot bring a Title VII suit

without having first received a right-to-sue letter. Id. (citation omitted). If the plaintiff does choose

to bring a Title VII action, “it must be filed within 90 days of the date on which the complainant

has notice of the EEOC’s decision not to pursue the administrative charge.” Id. (citing 42 U.S.C.

§ 2000e–5(f)(1)). The start of 90-day period is generally triggered by the date the plaintiff receives

the right-to-sue letter. Id.; (citing Seitzinger v. Reading Hosp. and Med. Ctr., 165 F.3d 236, 239

(3d Cir. 1999); Mosel v. Hills Dept. Store, Inc., 789 F.2d 251, 252 (3d Cir. 1986)).

“Both the 180–day period for filing the administrative complaint and the 90–day period for

filing the court action are treated as statutes of limitations.” Id. (citation omitted). The Third Circuit

strictly construes these periods and has held that “even one day late is time-barred and may be

dismissed.” Id. The statute of limitations, however, does not begin to run unless there has been

“final agency action,” such as the EEOC issuing a right-to-sue letter. Id. at 470-71. Without “final

agency action,” a plaintiff cannot bring suit. Id.

Here, Daniels received his first right-to-sue letter on June 16, 2017, and this action was

filed on October 29, 2018, well beyond the 90-day period. Therefore, all claims relating to the June

16, 2017 right-to-sue letter, which can be found in Section A of the Factual Background above,

are barred by the statue of limitations. Accordingly, Defendants’ Motion to Dismiss as to these

issue is GRANTED.

B. Title VII Claims Relating to Daniels’ 10-day Suspension and Relation for Filing

the March 26, 2018 EEOC Complaint

Defendants argue Daniels’s Title VII claim relating to his 10-day suspension and retaliation

for filing his March 26, 2018 EEOC complaint should be dismissed for failure to exhaust his

administrative remedies, because he never filed an EEOC charge on such actions. (ECF No. 3-1 at

9.) In response, Daniels argues he has filed “numerous EEOC complaints and all complaints are

extremely similar in nature,” and therefore, Defendants were aware of his complaints. (ECF No.

7 at 9-10.)

To file a Title VII suit, a plaintiff must timely file a charge with the EEOC within 300 days

of the occurrence of the alleged unlawful employment practice. Scocozza, 2014 WL 6674453, at

*4. “The purpose of this administrative exhaustion requirement is to put the EEOC on notice of

the plaintiff's claims and afford it the opportunity to settle disputes through conference,

conciliation, and persuasion, avoiding unnecessary action in court.” Webb v. City of Phila., 562

F.3d 256, 262 (3d Cir. 2009) (citations omitted). A plaintiff cannot “bypass the administrative

process.” Id. (citation omitted). “[T]he parameters of the civil action . . . are defined by the scope

of the EEOC investigation which can reasonably be expected to grow out of the charge of

discrimination.” Id. (citation omitted).

The Complaint does not provide any indication that Daniels filed an EEOC complaint as

to his 10-day suspension or retaliation for filing his March 26, 2018 EEOC complaint. The

Complaint also fails to allege he received a right-to-sue letter as to either of those claims. In fact,

there is no indication that Daniels filed any EEOC complaints after his March 26, 2016 EEOC

complaint. Clearly, Daniels March 26, 2018 EEOC complaint, which he contends gave rise to the

retaliation, could not have been incorporate in that filing. Also, his suspension, occurring after the

issuance of the August 2, 2018 right-to-sue letter could not have fallen within the scope of that

March 26, 2018 EEOC charge. Consequently, both Title VII claims must be dismissed for failure

to exhaust administrative remedies, since Daniels did not put the EEOC on notice of his claims

and afford them the opportunity to settle his disputes. Webb, 562 F.3d at 262. Accordingly,

Defendants Motion to Dismiss as to these issues is GRANTED.1

C. Class Certification

Defendants argue Daniels’ request for class certification should be denied because he fails

to meet Federal Rule of Civil Procedure 23’s requirements. (ECF No. 3-1 at 11.) Daniels contends

because “there are many injured persons in relation to this claim” and he “has testified as [a]

witness in numerous EED complaints,” he should be granted class certification. (ECF No. 7 at 11-

12.)

1. Standard of Review

The Third Circuit has observed that “Rule 23 is designed to assure that courts will identify

the common interests of class members and evaluate the named plaintiffs’ and counsel’s ability to

fairly and adequately protect class interests.” In re Comm. Bank of N. Va., 622 F.3d 275, 291 (3d

Cir. 2010) (quoting In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d

768, 799 (3d Cir. 1995) (alterations omitted). Rule 23 contains two sets of requirements. First, a

1 Therefore, the only remaining claims before this Court are those associated with Daniels’ August

2, 2018 right-to-sue letter, which are discussed in detail in Section B of the Factual Background.

party seeking class certification must demonstrate the class satisfies the requirements of Rule

23(a):

(1) the class is so numerous that joinder of all members is

impracticable [numerosity]; (2) there are questions of law or fact

common to the class [commonality]; (3) the claims or defenses of

the representative parties are typical of the claims or defenses of the

class [typicality]; and (4) the representative parties will fairly and

adequately protect the interests of the class [adequacy].

Fed. R. Civ. P. 23(a).

Second, plaintiffs must show that the requirements of one of the provisions of Rule 23(b)

are met. Federal Rule of Civil Procedure 23(b) provides:

(b) Types of Class Actions. A class action may be maintained if Rule

23(a) is satisfied and if:

(1) prosecuting separate actions by or against individual class

members would create a risk of:

(A) inconsistent or varying adjudications with respect to

individual class members that would establish incompatible

standards of conduct for the party opposing the class; or

(B) adjudications with respect to individual class members

that, as a practical matter, would be dispositive of the interests of the

other members not parties to the individual adjudications or would

substantially impair or impede their ability to protect their interests;

(2) the party opposing the class has acted or refused to act on

grounds that apply generally to the class, so that final injunctive

relief or corresponding declaratory relief is appropriate respecting

the class as a whole; or

(3) the court finds that the questions of law or fact common to class

members predominate over any questions affecting only individual

members, and that a class action is superior to other available

methods for fairly and efficiently adjudicating the controversy. The

matters pertinent to these findings include:

(A) the class members’ interests in individually controlling the

prosecution or defense of separate actions;

(B) the extent and nature of any litigation concerning the

controversy already begun by or against class members;

(C) the desirability or undesirability of concentrating the litigation

of the claims in the particular forum; and

(D) the likely difficulties in managing a class action.

Importantly, the Third Circuit has instructed that “each Rule 23 component [must] be

satisfied” in order for a court to certify a class. In re Hydrogen Peroxide, 552 F.3d 305, 310 (3d

Cir. 2008) (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 630 (1997). A plaintiff “has the

burden of proof by a preponderance of the evidence that she has met each element of Rule 23.”

Coyle v. Hornell Brewing Co., No. 08-2797, 2011 WL 2147218, at *3 (D.N.J. May 26, 2011).

Prior to determining whether the requirements of Rule 23 have been met, the Court must

first analyze whether the proposed class definition is “readily ascertainable based on objective

criteria.” Agostino v. Quest Diagnostics Inc., 256 F.R.D. 437, 478 (D.N.J. 2009). In order to

determine whether a proposed class is ascertainable, the Court must engage in a two-part analysis.

First, the Court must determine whether the defined class specifies “a particular group that was

harmed during a particular time frame, in a particular location, in a particular way.” Rowe v. E.I.

Dupont De Nemours & Co., 262 F.R.D. 451, 455 (D.N.J. 2009). Second, the Court must be able

to ascertain the class’s membership in an objective manner. Id.; Byrd v. Aaron’s Inc., 784 F.3d

154, 163 (3d Cir. 2015) (finding the Third Circuit has implemented a two-fold inquiry requiring a

plaintiff to show: “(1) the class is defined with reference to objective criteria; and (2) there is a

reliable and administratively feasible mechanism for determining whether putative class members

fall within the class definition”).

Significantly, in demonstrating ascertainability, a plaintiff need not identify every class

member at the class certification stage; instead a plaintiff is required to show that “class members

can be identified.” Byrd, 784 F.3d at 163 (citation omitted) (emphasis in original). “If class

members are impossible to identify without extensive and individualized fact-finding or ‘mini-

trials,’ then a class action is inappropriate.” Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 593

(3d Cir. 2012). Then, the Court must determine whether the plaintiff satisfied the prerequisites for

maintain a class action as set forth in Rule 23(a). After meeting the threshold requirements of Rule

23(a), a plaintiff must establish the proposed class meets the requirements of Rule 23(b).

Here, both Daniels’s Complaint and Opposition Brief merely allege he should be granted

class certification because he has testified as a witness for various minority employees who been

claimed to be the victims of discrimination and retaliation at the hands of Defendants. (ECF No. 1

¶ 24 and ECF No. 7 at 11-12.) Neither the Complaint nor the Opposition Brief articulate a proposed

class definition that is “readily ascertainable based on objective criteria.” Agostino, 256 F.R.D. at

478. Daniels fails to identify “a particular group that was harmed during a particular time frame,

in a particular location, in a particular way,” and the Court cannot ascertain the class’s membership

in an objective manner. Rowe, 262 F.R.D. at 455.

Moreover, his bare allegations do not satisfy the two-prong test required pursuant to

Federal Rule of Civil Procedure 23. Daniels, holding the burden, fails to establish that his proposed

class meets all four requirements in Rule 23(a) and that the proposed class qualifies under at least

on section of Rule 23(b). He fails to allege: (1) the potential number of plaintiffs; (2) whether there

are questions of law or fact common to the class; (3) whether his claim is typical of those of the

members of the class; and (4) whether he will fairly and adequately protect the interests of the

class. Accordingly, Daniels’ request for class certification is DENIED.

IV. CONCLUSION

For the reasons set forth above, Defendants’ Motion to Dismiss is GRANTED (ECF No.

3). Daniels may file an amended Complaint by no later than August 12, 2019.

Date: July 31, 2019 /s/ Brian R. Martinotti___________

HON. BRIAN R. MARTINOTTI

UNITED STATES DISTRICT JUDGE