WILLIAMS v. VERIZON

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

MYRNA WILLIAMS

Plaintiff,

Vv. Civ. No. 2:19-09350 (KM-SCM)

VERIZON NEW JERSEY, INC., et al,

OPINION

Defendants.

MCNULTY, U.S.D.J.:

Plaintiff Myrna Williams is an employee of Defendant Verizon New Jersey

(“Verizon”). (LAC 7 4 (DE 1)).! She has raised a variety of statutory and

common law claims against her employer relating to alleged discrimination on

the basis of her race, which is African-American. Currently before the Court is

the motion of Defendant Verizon to dismiss Plaintiff's first amended complaint

in its entirety. (DE 17}.

I make a few observations at the outset.

First, the court strongly discourages “kitchen-sink’” or “form book”

pleading. The amended complaint purports to assert some twenty-two separate

claims. Some are not causes of action at all; many plaintiff's counsel has not

even attempted to defend in response to defendant’s motion. The same held

true for an amended complaint in another case filed by the sarne counsel

I Citations to certain record items will be abbreviated as follows:

DE = Docket entry number

1AC = First Amended Complaint (DE 14)

Def. Brf. = Verizon’s Motion to Dismiss Plaintiffs 1AC (DE 17)

Pl. Brf. = Plaintiffs’ Brief in Opposition (DE 22)

Def. Reply = Verizon's Reply Brief on Motion to Dismiss (DE 23)

against Verizon. Powell v. Verizon, Civ. No. 19-4818 (D.N.J.).2 My reasoning is

set forth in somewhat more detail in an opinion filed in that action as Docket

Entry 43.

Second, for the most part the federal laws invoked here do not address

general unpleasantness, even perpetrated by management, let alone by co-

workers. What is generally required is an allegation of discrimination by the

employer on a prohibited basis, such as race or gender.

Third, I note that many of the grounds for dismissal relate to the statute

of limitations or failure to exhaust administrative remedies. These are legal

bars to the assertion of certain claims, no matter how meritorious. The

discussion herein, therefore, should not be taken to express any opinion on the

theoretical viability of certain factual allegations regarding events, however

serious, that took place as long as eleven years ago.

For the reasons set forth in more detail below, Verizon’s motion is

granted in part and denied in part.

I, FACTUAL BACKGROUND

In considering a motion to dismiss, the Court is required to treat the

facts alleged in the complaint as true and to draw all reasonable inferences in

the plaintiffs’ favor. 1 summarize those allegations as follows:

Plaintiff Myrna Williams is a woman of African descent, originally from

St. Lucia. (1AC § 1). She has been a full-time employee of Defendant Verizon

since 1989, holding a variety of job titles and responsibilities. (Id. { 4).

Williams’s career at Verizon was productive and fulfilling until 2007. (/d. { 6).

At that point, however, Williams began to experience ongoing and pervasive

harassment. (Id. { 8).

2 Of course, a party may assert as many claims as it has. But if a claim is not

worth defending at the initial, motion-to-dismiss stage, then it probably was not worth

asserting in the first place. Counsel are encouraged to exercise some selectivity at the

outset, to avoid unnecessary expenditure of time and resources by adversaries and an

already-overburdened court.

The first incident occurred in 2008, eleven years before the filing of the

complaint. At that time, Williams was allegedly denied a personal day off for

Martin Luther King Day by her new supervisor, LaVerne Francis. (id. 4] 7,10).

She brought the issue up to her manager, Salvatore Lobue. (Id. 4 11). Lobue,

however, did not assist her, and in fact would often overlook complaints from

workers in Verizon’s predominantly African American Newark office, while

promptly assisting workers in Verizon’s predominantly Caucasian Mt. Laurel

office. (Id.). Williams sought intervention from her union. (id. J 12). Afterwards,

Ms. Francis retaliated against Williams by acting in a spiteful and petty

manner, for example by requesting she resubmit previously completed

assignments. (/d. J 12).

In an effort to obtain mediation of the dispute, Williams began copying

her manager, Lobue, on correspondence between herself and Ms. Francis, (Id. |

13). Rather than taking action to solve the problem, Lobue compounded the

harassment by passing over Williams’s department for overtime work. (/d.).

Plaintiff ultimately sought and received redress through union arbitration. (Id.

q 14). Nonetheless, the problem of harassment continued. (Id. { 15).

In 2009, Plaintiff was transferred to Verizon’s East Brunswick office

along with three other African American employees. (Jd. {| 16-17). Williams

and other African American employees were treated differently from the

Caucasian employees in East Brunswick. (/d. | 17). One example of such

disparate treatment was that Plaintiff was denied a personal day to attend the

funeral of her deceased aunt, while Caucasian employees were granted leave

under similar circumstances. (Id. | 18). Another is that an African American

co-worker was punished for often arriving to work late in East Brunswick

because she did not own a vehicle. Later, when the whole office was transferred

to Newark, Caucasian workers traveling to Newark were granted

accommodations for their disrupted travel. (Jd. 19).

At the East Brunswick office, Williams also had a tense relationship with

her new supervisor, Cherisse Rheubottom-Wilson. (/d. | 20). This supervisor,

along with a subordinate, Judith Britt, teamed up to harass Williams. (Id. |

23). Harassment included threatening Plaintiff with suspension for stepping

away from her desk to deal with a medical condition; barging into the restroom

to demand she immediately join a meeting; yelling at Plaintiff from across the

office in order to humiliate her; and using Plaintiffs annual review as an

excuse to antagonize her and accuse her of attacking Britt. (Id. J] 23-24).

Williams’s attempts to seek help from Verizon’s human resources

department were ignored. (Id. { 24). Indeed, her reports earned her a

reputation as a troublemaker, and she continued to be denied overtime

opportunities and time off. (/d. J 25).

Rheubottom-Wilson and Britt left the company at some unspecified time.

Williams’s circumstances did not improve, however, since two new coworkers

arrived and continued to harass her. Defendants Tina Kalfin and Tara

Finnegan were placed in workstations next to that of Williams. (Id. | 27). These

individuals were generally antagonistic to everyone in the office—for example,

they referred to the new manager as “That Bitch.” Their insults, however, often

took a racial form. (Jd. | 28). The two would openly comment on racially

charged current affairs; they made light of police shootings involving African

Americans; they expressed satisfaction that Bill Cosby, an African American,

had been arrested; and they wore “hoodie” sweatshirts to work shortly after a

fatal shooting of an African American boy who had been wearing a hoodie at

the time. (/d. JJ 29, 30).

On one occasion, after Williams asked Kalfin to lower the volume on her

radio, Kalfin and Finnegan refused to speak to her. (id. J 31). Another time,

Finnegan hovered behind Williams while she was working, and when Williams

noticed what she was doing, Finnegan started an argument which ended with

her screaming at Williams and calling her a “witch.” (Id. J 32). Following this

incident, the two continued harassing Williams with witch-themed insults; they

placed a witch doll on their work desk facing Williams, and Finnegan came to

work in a t-shirt labeled “You Witch.” (Id. 4 33). While this antagonism was not

explicitly racial in content, Plaintiff alleges that it came about because Kalfin

and Finnegan disliked Williams for racial reasons. (Id.).

Williams’s pleas to Verizon’s human resources to remedy this

harassment went unanswered. (Id. 4 35). After overhearing Kalfin and

Finnegan planning to get her fired, Williams attempted to complain to the

“Verizon Vice President.” (Id. J 36). Upon her return from a sick day, Williams

found on her a desk a picture of a rat with its hands up. (/d. J 37). Kalfin and

Finnegan began referring to Williams as a “rat” and reminded her to “keep your

hands up,” which she took as a reference to the contemporaneous police

shooting of Michael Brown, an African American. (Jd. { 37). Then, during the

holidays, Kalfin and Finnegan placed a partially inflated reindeer with a wreath

around its neck among the Christmas decorations. (Id. ] 38). The reindeer was

kept partially deflated, which made it appear as if it were choking on the

wreath, similar to hanging by a noose. (Id.). Additionally, the pair used tape to

create an outline of a dead rat on the ground, evoking a chalk outline at a

murder scene. (Jd. J 38).

Eventually, the Verizon Human Resources department responded to

Williams regarding these “decorations,” reporting that it had discovered no

evidence of any violations of Verizon’s code of business conduct. (Id. 39). That

determination upset Williams to the point that she was unable to sleep that

night and suffered from migraine headaches the next day, resulting in the

paramedics arriving and taking her to the hospital. (Id. 4 40). The workplace

stress and harassment led to additional health issues which required her to

take off from work from April to June 2015. (id. ¥ 41).

Upon returning to work in June 2015, Williams was moved to a different

workspace and given a new assignment. (Id. | 42). A Verizon “Department

President” came to the office during this time and, during a meeting,

commended Williams for dealing with such difficult co-workers. (/d.). The

Department President stated during this meeting that Verizon’s “employee

screening” around 1998 was “insufficient due to conducting a mass hire.” (Id.).

(The co-workers hostile to Williams had been hired around that time.) (/d.).

In October of 2016, Williams was transferred to the Livingston call

center. (Id. | 43). In December of 2016, she was rewarded for excellent work by

being transferred to a dispatch center. (Id. | 43). Here, Williams endured

harassment by two co-workers named “Missy” and “Debbie.” (Id. | 44). They

constantly informed Williams of their dislike of “foreigners taking Americans’

jobs and accused her of ‘sending money back to your home country.” (/d.).

Williams’s attempts to bring up these issues to a supervisor were ignored. (Id.).

Williams also attempted to raise concerns during staff meetings, but was

criticized by Missy as being the only one complaining. (id.}. Williams again tried

to stand up for herself during a staff meeting, causing Missy to shout at her

and call her “evil” and “a bitch.” (Id. § 45). Management, although present,

made no effort to intervene. (Jd.).

Williams claims that the harassment is ongoing and that Verizon has

pursued a policy or pattern and practice of hiring unfit managers who allowed

employees to openly harass her. (Jd. 46-47). She asserts a variety of causes

of action, ranging from federal and state statutory violations to common law

claims, against Verizon. The claims are also directed against several of the

harassing employees in their individual capacities.

II. PROCEDURAL HISTORY

Plaintiff filed her complaint in this action on April 5, 20 19, (DE 1).

Verizon first filed a motion to dismiss on June 20, 2019. (DE 11). On June 28,

2019, Plaintiff filed the first amended complaint, which asserts the following

twenty-two causes of action:

1. Race-Based Discrimination in Violation of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e-2(a)

2. Race-Based Discrimination in Violation of the New Jersey Law Against

Discrimination, N.J. Stat. Ann. § 10:5-12

3. Race-Based Discrimination (Hostile Work Environment) in Violation of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)

4. Retaliation in Violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e-3(a)

5. Race-Based Discrimination (Disparate Treatment) in violation of the Civil

Rights Act of 1866, 42 U.S.C. § 1981

6. Race-Based Discrimination (Hostile Work Environment) in violation of the

Civil Rights Act of 1866, 42 U.S.C. § 1981

7. Race-Based Discrimination (Retaliation) in violation of the Civil Rights Act

of 1866, 42 U.S.C. § 1981

8. Conspiracy to Interfere with Civil Rights in Violation of 42 U.S.C. § 1985

9, Violation of the Americans with Disabilities Act

10. Invasion of Privacy

11. Intentional Infliction of Emotional Distress

12. Negligent Infliction of Emotional Distress

13. Negligent Hiring

14. Negligent Supervision

15. Negligent Retention

16. Vicarious Liability

17. Respondeat Superior

18. Ratification

19. Failure to Warn/Misrepresentation

20. Gross Negligence

21. Civil Conspiracy of Verizon Employees, its Members and Associated, and

Verizon

22. Punitive Damages

(LAC, DE 14),

Verizon filed this motion to dismiss on July 26, 2019. (DE 17). Plaintiff

filed an opposition (DE 22), to which Verizon replied (DE 23). For the following

reasons, Verizon’s motion to dismiss the first amended complaint is granted in

part and denied in part.

Ill. APPLICABLE LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a

complaint 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. Animal Science Products, Inc. v. China Minmetals Corp., 654 F.3d

462, 469 n.9 (3d Cir. 2011). For the purposes of a motion to dismiss, the facts

alleged in the complaint are accepted as true and all reasonable inferences are

drawn in favor of the plaintiff. New Jersey Carpenters & the Trustees Thereof v.

Tishman Const. Corp. of New Jersey, 760 F.3d 297, 302 (3d Cir. 2014).

Federal Rule of Civil Procedure 8(a) does not require that a complaint

contain detailed factual allegations. Nevertheless, “a plaintiffs 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), see Phillips v.

Cnty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (Rule 8 “requires a

‘showing’ rather than a blanket assertion of an entitlement to relief.” (citation

omitted)}. 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.” Twombly, 550 U.S. at 570; see also West Run Student Hous.

Assocs., LLC v. Huntington Nat. Bank, 712 F.3d 165, 169 (3d Cir. 2013}.

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.” Id.

When deciding a motion to dismiss, a court typically does not consider

matters outside the pleadings. However, a court may consider documents that

are “integral to or explicitly relied upon in the complaint” or any “undisputedly

authentic document that a defendant attaches as an exhibit to a motion to

dismiss if the plaintiff's claims are based on the document.” In re Rockefeller

Ctr. Props., Inc. Sec. Litig., 184 F.3d 280, 287 (3d Cir. 1999) (emphasis and

citations omitted); see In re Asbestos Prods. Liab. Litig. (No. V1), 822 F.3d 125,

133 n.7 (3d Cir. 2016); Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014).

In that regard, courts may consider matters of public record and exhibits

attached to the complaint. Schmidt, 770 F.3d at 249 (“To decide a motion to

dismiss, courts generally consider only the allegations contained in the

complaint, exhibits attached to the complaint and matters of public record”);

Arcand v. Brother Int’l Corp., 673 F. Supp. 2d 282, 292 (D.N.J. 2009) (court

may consider documents referenced in complaint that are essential to plaintiff's

claim). That exception rests on the rationale that “[w]hen a complaint relies on

a document . . . the plaintiff obviously is on notice of the contents the

document, and the need for a chance to refute evidence is greatly diminished.”

Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196-

97 (3d Cir. 1993).

Iv. ANALYSIS

Section IV.1 discusses arguments relating to the exhaustion of

administrative remedies with respect to Plaintiffs Title VII and ADA claims.

Section IV.2 discusses whether her NJLAD claim and § 1981 disparate

treatment claim are barred by the relevant statutes of limitations. Sections IV.3

and IV.4 consider whether Plaintiff has stated a claim under other § 1981

theories. Section IV.5 discusses Plaintiff's conspiracy claim under 42 U.S.C §

1985(3). Section IV.6 covers a variety of common law theories of liability.

1. Exhaustion of Administrative Remedies: Counts I, 3, 4, and 9

Verizon asserts that Plaintiffs claims under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. §§ 2000e-2(a) and 2000e3(a) (“Title VII") and the

Americans with Disabilities Act (“ADA”) ought to be dismissed because Plaintiff

has not exhausted her administrative remedies. Because it requires

consideration of extrinsic materials, I must deny it in its current form as a

motion to dismiss. I will, however, authorize Verizon to file an early motion for

summary judgment, confined to the exhaustion issue.

Prior to commencing a Title VII action in court, the employee must first

file a charge with the Equal Employment Opportunity Commission (“EEOC”).

Fort Bend County, Texas v. Davis, 139 S. Ct. 1843, 1846 (2019). Once the

EEOC has received the charge, it notifies the employer and investigates the

allegations, first pursuing informal methods of resolution and then being given

the option of bringing suit against the employer itself. Id. at 1846-1847.

In the event that the EEOC determines there is “njo] reasonable

cause to believe that the charge is true,” the Commission is to

dismiss the charge and notify the complainant of his or her right to

sue in court. 42 U.S.C. § 2000e—-5(b), f(1}; 29 CFR § 1601.28.

Whether or not the EEOC acts on the charge, a complainant is

entitled to a “right-to-sue” notice 180 days after the charge is filed.

§ 2000e-5(f)(1); 29 CFR § 1601.28. And within 90 days following

such notice, the complainant may commence a civil action against

the allegedly offending employer. § 2000e-5(f)(1).

Id. at 1847.

These procedures are mandatory and must be followed before bringing a

private suit, See id. at 1851-1852 (noting that the claim-processing

requirement was mandatory, though potentially subject to forfeiture as a

defense if not timely raised}. After filing the charge, and before filing suit, the

complainant “must allow a minimum of 180 days for the EEOC investigation to

proceed.” Burgh v. Borough Council of Borough of Montrose, 251 F. 3d 465, 470

(3d Cir. 2001). If the EEOC decides not to pursue the matter further, it will

notify the complainant, typically by means of a right-to-sue letter. “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.” Jd. “A complainant may not bring a Title VII suit without

having first received a right to sue letter.” Jd.

The same process is required for ADA claims. See Williams v. East

Orange Community Charter School, 396 F. App’x 895, 897 (3d Cir. 2010) (citing

42 U.S.C. § 2000e-5(e}(1); 42 U.S.C. § 12117(a)).

10

Ordinarily, a Title VII plaintiff must file an administrative charge with the

EEOC within 180 days of the last discriminatory act. 42 U.S.C. § 2000e-5(e){1).

If, however, the plaintiff first institutes proceedings with a “State or local

agency with authority to grant or seek relief from such practice,” that 180-day

limitations period is extended to 300 days. Id.

Any lawsuit resulting from the filing of an EEOC charge is limited to

claims that are within the scope of that initial administrative charge. Barzanty

v. Verizon PA, Inc., 361 F App’x 411, 413-414 (3d Cir. 2010) (citing Antol v.

Perry, 82 F. 3d 1291, 1296 (3d Cir. 1996)). Claims not reasonably within the

scope of the administrative charge will not be deemed exhausted.

The complaint alleges that Plaintiff “filed a claim with the EEOC on June

26, 2019.” (1AC 7 48). In its motion to dismiss, Verizon asserted that Plaintiff's

Title VIL and ADA claims should nevertheless be dismissed on exhaustion

grounds, because she had not received a right-to-sue letter. (Def. Brf. at 10).

Plaintiff responded that exhaustion is an affirmative defense, requiring citation

of extrinsic evidence, which therefore cannot be considered within the bounds

of a motion to dismiss. (Pl. Opp. at 17). To its reply brief, Verizon has attached

what appears to be a copy of Williams’s initial charge with the EEOC anda

dismissal of that charge. For the first time, however, Verizon’s reply brief also

argues that the claims in this lawsuit fall outside the scope of Williams’s EEOC

charge, and therefore remain unexhausted. (Def. Reply at 7-10; Exh. A, Exh.

B).

Plaintiff has not had an opportunity to respond to Verizon’s contentions.

I will not decide such an issue based on documents appended to a brief, and a

reply brief at that. I will therefore deny the motion to dismiss the Title VII and

ADA claims on grounds of nonexhaustion.

2 The exhaustion requirement and the statute of limitations requirement are, of

course, interrelated. If a claim has not been filed at all, then it has not been filed

timely.

11

I will, however, authorize Verizon to file a focused motion for summary

judgment, confined to the issue of exhaustion of administrative remedies as to

Counts 1, 3, 4, and 9. The facts necessary for a response should be within

plaintiff's control, To the extent Counts 1, 3, 4, and 9 may survive the

exhaustion analysis, Verizon’s motion may, in the alternative, reassert the

other grounds for dismissal of those counts that it asserts here. Verizon may

do so by incorporation of its arguments on this motion to dismiss; plaintiff may

likewise incorporate by reference her arguments in opposition to this motion to

dismiss.

For the meantime, however, Verizon’s motion to dismiss on exhaustion

grounds is denied as to Counts 1, 3, 4, and 9. Pending resolution of that

threshold issue, I do not reach Verizon’s other arguments for dismissal of those

counts.

2. NULAD and § 1981 claims (disparate treatment): Counts Zand □

Verizon argues that Count 2, Plaintiff's discrimination claim under the

New Jersey Law Against Discrimination (“NJLAD’), N.J. Stat. Ann. § 10:5-12, is

barred by the applicable two-year statute of limitations. It argues that Count 5,

the disparate treatment claim under 42 U.S.C. § 1981, is barred by the

applicable four-year statute of limitations.

a. Standards: NJLAD, § 1981, and adverse employment actions

I first quickly review the essential elements of the NJLAD and § 1981

claims. In NJLAD actions for employment discrimination, courts generally

follow Title VII precedent. Tourtellotte v. Eli Lilly & Co., 636 F, Appx 831, 842

(3d Cir. 2016) (“This Court’s discrimination inquiry is the same for claims filed

under Title VII and the NJLAD ....”) (citing Armstrong v. Burdette Tomlin Mem’l

Hosp., 438 F.3d 240, 249 (3d Cir. 2006)). The elements ofa § 1981

discrimination claim likewise parallel those of a Title VII claim. Schurr v.

Resorts Intern. Hotel, Inc., 196 F. 3d 496, 499 (3d Cir. 1999) (quotation

omitted). Title VII, in turn, “prohibits discriminatory employment practices

12

based upon an individual’s race, color, religion, sex, or national origin.” Shahin

v. Delaware, 424 F. App'x 90, 92-93 (3d Cir, 2011) (citations omitted).

Title VII claims (and, by extension, NJLAD and § 1981 claims) of racially

based employment discrimination require a plaintiff to allege as a prima facie

case that “1) she belongs to a protected class; 2) she was qualified for the

position; 3) she was subject to an adverse employment action; and 4) the

adverse action [occurred] under circumstances giving rise to an inference of

discrimination.” Shahin, 424 F. App'x at 92-93 (citing Sarullo v. U.S. Postal

Serv., 352 F. 3d 789, 797 (3d Cir. 2003); see also Tourtellotte, 636 F. App'x at

842 (citing Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410-11 (3d Cir. 1999);

Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 n. 6, 101 S. Ct. 1089,

67 L.Ed.2d 207 (1981)). If the plaintiff establishes a prima facie case, the

defendant must provide a legitimate, non-discriminatory reason for the adverse

employment action. If the defendant can proffer such a reason, the plaintiff

must show that it is a pretext for discrimination. Shahin, 424 F. App'x at 93

(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817

(1973)).

b. Discussion

Verizon argues that Plaintiff has not suffered any adverse employment

action within the applicable statutes of limitations.

Claims under the NJLAD are subject to a two-year statute of limitations.

Rodriguez v. Raymours Furniture Co., Inc., 138 A. 3d 528, 536. (N.J. 2016).

Certain claims under § 1981, including ones like Plaintiffs here, are subject to

a four-year statute of limitations. See Jones v. R.R. Donnelley & Sons Co., 541

U.S. 369, 382-383 (2004) (applying a four-year statute of limitations to § 1981

claims that arose under a 1991 amendment that expanded the universe of

claims under the statute).

The original complaint in this action was filed on April 5, 2019. Under

the four-year § 1981 statute, there must be therefore be an allegation of an

13

adverse employment action occurring after April 5, 2015; under the two-year

NJLAD statute, the cutoff date is April 5, 2017.

The statute of limitations runs from the date that the last unlawful

employment practice occurred. See Nat’l RR Passenger Corp. v. Morgan, 536

U.S. 101, 114 (2002). “Each incident of discrimination and each retaliatory

adverse employment decision constitutes a separate actionable ‘unlawful

employment practice.” Jd. In the case of “discrete acts” which are actionable in

themselves, “only incidents that took place within the timely filing period are

actionable.” Id. I therefore look for an allegation of the last act that completes

the violation—ie., an adverse employment action—within the limitations

period. See Red v. Potter, 211 F. App’x 82, 85 (3d Cir. 2006) (treating the

plaintiffs demotion and termination as “incidents of discrimination” that set

the statute of limitations running in a Title VII retaliation case); Chugh v.

Western Inventory Services, Inc., 333 F. Supp. 2d 285, 295 (D.N.J. 2004) (for §

1981 claim, treating discriminatory/retaliatory discharge as relevant date

triggering four-year statute of limitations); see also Alexander v. Seton Hall

Univ., 204 N.J. 219, 228 (2010) (“Discriminatory termination and other similar

abrupt, singular adverse employment actions that are attributable to invidious

discrimination, prohibited by the [NJ]JLAD, generally are immediately known

injuries, whose two-year statute of limitations period commences on the day

they occur.”).4

4 Here I set aside the § 1981 claim of a hostile work environment (see Count 6),

which may consist of a series of events, not individually actionable, running into the

limitations period. See Verdin v. Weeks Marine Inc., 124 F App’x 92, 96 (3d Cir. 2005)

(applying Title VII analysis to a Section 1981 claim and assessing the pattern of events

as a whole for liability under a hostile work environment theory)

Consideration of the timeliness of Count 3, the Title VII hostile work

environment claim, has been deferred pending analysis of the exhaustion of

administrative remedies. See Section IV.1, supra. See generally Mandel v. M & Q

Packaging Corp., 706 F.3d 157, 165 (3d Cir. 2013) (“Under the continuing violation

doctrine, discriminatory acts that are not individually actionable may be aggregated to

make out a hostile work environment claim” under Title VII); O'Connor v. City of

Newark, 440 F.3d 125, 127 (3d Cir. 2006) (for Title VII hostile work environment

claim, such acts “can occur at any time so long as they are linked in a pattern of

14

Under Title VI, and by extension under § 1981, an actionable adverse

employment action does not encompass mere “unpleasantness that may be

encountered in the work place.” Walker v. Centocor Ortho Biotech, Inc. 508 F.

App’x 216, 219 (3d Cir. 2014). Rather, an adverse employment action must be

one that is “serious and tangible enough to alter an employee's compensation,

terms, conditions, or privileges of employment, deprive her future employment

opportunities, or otherwise have a ‘materially adverse’ effect on her status as

an employee.” Hargrove v. Cnty. of Atl., 262 F. Supp. 2d 393, 427 (D.N.J. 2003)

(quoting Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300-01 (3d Cir. 1997)

(citing Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 749, 118 S, Ct. 2257

(1998) (defining adverse employment action as “significant change in

employment status, such as hiring, firing, failing to promote, reassignment, a

decision causing a significant change in benefits’).

An adverse employment action thus may fall well short of dismissal, but

it must affect employment status. Some representative examples of an adverse

employment action follow. See Nichols v. Caroline Cnty. Bd. of Educ., No. 02-

3523, 2004 U.S. Dist. LEXIS 2851, 2004 WL 350337 (D. Md. Feb. 23, 2004),

aff'd, 114 Fed. App'x 576 (4th Cir. 2004) (downgrade of teacher’s certificate,

which resulted in salary decrease and ultimate termination, was adverse

employment action); Coles v. Perry, 271 F. Supp. 2d 157 (D.D.C. 2003)

actions which continues into the applicable limitations period”) (citing Natl R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 105, 122 S. Ct. 2061 (2002)}).

5 An adverse employment action is defined similarly for purposes of Title VII and

NJLAD. Marrero v. Camden Cnty. Bd. of Soc. Servs., 164 F. Supp.2d 455, 473 (D.N.J.

2001) (“In order to constitute adverse employment action for purposes of the LAD,

retaliatory conduct must affect adversely the terms, conditions, or privileges of the

plaintiff's employment or limit, segregate, or classify the plaintiff in a way which would

tend to deprive her of employment opportunities or otherwise affect her status as an

employee.”) (quoting Hurley v. Atlantic City Police Department, No. 96-4928, 1998 WL

351781, at*12 (D.N.J. May 28, 1998)); see also Tourtellotte, 636 F. App’x at 842 (The

“discrimination inquiry is the same for claims filed under Tide VII and the NULAD as

the New Jersey statute borrows the federal standard ... .").

Section 1981, too, follows Title VII in defining an adverse employment action.

See Walker v. Centocor Ortho Biotech, Inc. 558 F App’x 216, 218-219 (3d Cir. 2014)

(analyzing “adverse employment action” under the Title VH framework).

15

(decision to remove employee from best qualified list for vacant promotional

position, thus destroying employee’s ability to advance from lower position, was

adverse employment action); Webb v. Secretary, No. 85-6833, 1986 U.S. Dist.

LEXIS 23229 (E.D. Pa. July 3, 1986) (lateral transfer and lower than expected

performance evaluation was adverse employment action).

At least for present purposes, Verizon does not deny that an adverse

employment action ever occurred; what it claims here is that no adverse

employment action occurred within the limitations period(s).6 Focusing on the

longer, four-year statute, we find a convenient break in the events; almost

exactly four years before filing the complaint in this action, Ms. Williams took a

three-month break from her employment, from April through June 2015. Even

if not precisely dated, events occurring before that hiatus would fall outside of

the four-year limitations period.

Williams’s complaint describes a number of harassing events that

occurred before the April-June 2015 hiatus. The only alleged harassment

dating from after Williams returned to work in June 2015 is the verbal abuse

she received from “Missy” and “Debbie.” (1AC 7 44). Whether or not this

harassment was racially motivated, there is no allegation that it constituted an

adverse employment action, or that Williams suffered any kind of adverse

employment action as a result. Even though many of the comments were made

during staff meetings, there is no indication that supervisors or management

resultingly viewed Williams in a worse light, changed her job responsibilities, or

took any action against her at all. Accordingly, she has not suffered any

adverse employment action within the § 1981 four-year statute of limitations. A

fortiori, no such action occurred within NJLAD’s two-year statute of limitations.

Plaintiff appears to argue in the alternative that she has pled a

continuing violation which extended into the limitations period. The continuing

6 As Verizon reads the allegations, the last event that could arguably be termed

an adverse employment action occurred when, during her annual performance review,

Rheubottom-Wilson accused her of attacking Britt, which occurred sometime prior to

the 2014 holiday season. (LAC J 24; see pp. 3-4, supra.)

16

violation theory is more appropriately considered in relation to the hostile work

environment claims asserted in Counts 3 and 6. For such a claim, acts outside

the limitations period can be used to support a claim if the hostile environment

continues into the limitations period. The theory does not apply, however, to

discrete, actionable acts of discrimination. See Morgan, 536 U.S. at 113

(“[D]iscrete discriminatory acts are not actionable if time barred, even when

they are related to acts alleged in timely filed charges. Each discrete

discriminatory act starts a new clock for filing charges alleging that act.”)

Accordingly, the motion to dismiss Counts 2 and 5 is granted, based on

the lack of an allegation of a discrete, actionable adverse employment action

within the limitations period.

3. § 1981 hostile work environment claim: Count 6

Count 6 of the Amended Complaint asserts a claim of hostile work

environment under 42 U.S.C. § 1981.7 To make out a hostile work environment

claim on the basis of race under § 1981, “a plaintiff must show that 1) the

employee suffered intentional discrimination because of his/her [race], 2} the

discrimination was severe or pervasive, 3) the discrimination detrimentally

affected the plaintiff, 4) the discrimination would detrimentally affect a

reasonable person in like circumstances, and 5} the existence of respondeat

superior liability [meaning the employer is responsible].” Castleberry v. STI

Group, 863 F. 3d 259, 265 (3d Cir. 2017) (quotation omitted).

Citing the four-year statute of limitations for § 1981 claims, see Section

IV.2, supra, Verizon argues that only conduct that occurred after April 2015 is

actionable. As to a hostile work environment claim, however, the continuing

violation doctrine is available. A hostile environment claim may encompass a

series of actions that would not be actionable individually, but which, taken

7 This is not to be confused with the Title VII hostile work environment claim in

Count 3. As noted above, I have deferred further consideration of Count 3 pending

determination of the threshold issue of administrative exhaustion. While similar to

Title VII claims, § 1981 claims are distinct and, notably, not subject to an

administrative exhaustion requirement.

17

together, amount to a continuing pattern—in this case, a racially hostile

environment. To be timely, such a claim must allege a continuing pattern of

conduct that extends into the limitations period. If so, then the older conduct

may be included in the hostile work environment claim. At a minimum,

however, one unlawful (here, racially hostile) act must have occurred within the

limitations period. Mandel, 706 F. 3d at 165-166; Verdin, 124 F. App’x at 96

(noting the applicability of Title VII’s continuing violation theory to a § 1981

claim).

As noted above, only the actions of “Missy” and “Debbie” occurred within

the four-year limitations period. The question is whether those acts are alleged

to be part of an ongoing pattern of racial hostility. None of their allegedly

harassing comments make any reference to Williams’s race or otherwise appear

to be motivated by racial animus. It is true that some comments were allegedly

directed at Williams’s foreign origin, or expressed disapproval of her (supposed)

sending of money to relatives abroad. While the Third Circuit has not ruled

directly on this issue, the case law consensus seems to be that § 1981 does not

apply to claims based on national-origin discrimination. See Wesley v. Palace

Rehabilitation & Care Center, L.L.C., 3 F. Supp. 3d 221, 229 (D.N.J. 2014)

(analyzing this issue and surveying decisions from other circuits as well as

courts within the Third Circuit). At any rate, Ms. Williams’s complaint does not

even purport to assert a § 1981 national-origin claim, it claims racial

discrimination. (See 1AC at 24-25). None of the harassing comments within the

limitations period fit that racial description.®

The relevant conduct, then, is not unlawful under § 1981. Since no

incident of racially hostile conduct occurred within the applicable limitations

period, Plaintiff does not enjoy the benefit of the continuing violation doctrine

8 | note also that the situation with Missy and Debbie arose after Ms. Williams

had been transferred out of the area where she had experienced the prior harassment,

which would tend to break the chain of events alleged to form a pattern. There is no

allegation that Missy and Debbie interacted or acted in concert with the persons who

had allegedly expressed racial hostility.

18

in connection with her § 1981 hostile work environment claim. Accordingly,

Count 6 is dismissed.

4. § 1981 retaliation claim: Count 7

Count 7 asserts a claim of retaliation under 42 U.S.C. § 1981. To make

out a prima facie retaliation claim, the plaintiff must show that 1) she engaged

in protected activity, 2) her employer took an adverse employment action

against her, and 3) there was a causal connection between her participation in

the protected activity and the adverse employment action. Estate of Oliva ex rel.

McHugh v. New Jersey, 604 F. 3d 788, 798 (3d Cir. 2010) {citing Moore v. City

of Philadelphia, 461 F. 3d 331, 340-41 (3d Cir. 2006)).

Again, the four-year statute of limitations for § 1981 claims dictates that

only the allegations relating to “Missy” and “Debbie” are pertinent. The

complaint alleges that Missy yelled at Williams and called her names during a

staff meeting. This occurred after Williams complained to supervisors about her

co-workers’ conduct. I will assume that Williams could meet the first element—

i..e., that her complaint to supervisors constituted protected activity. Still, there

is no indication that Missy’s shouting rose to the level of an adverse

employment action, or that Williams suffered any other adverse employment

action thereafter. Williams’s contention that her coworker Missy’s comments

tended to “isolate” Williams is not sufficient to transform them into an adverse

employment action. (1AC 4 44). And the alleged indifference of management,

though hardly commendable, does not in itself rise to the level of a retaliatory

adverse employment action.

This failure to allege the second prong renders Williams unable to make

a prima facie case for retaliation under § 1981. Accordingly, Count 7 is

dismissed.

5. § 1985(3) Conspiracy Claim: Count 8

In Count 8, Williams asserts a violation of 42 U.S.C. § 1985, a statute

providing civil remedies for a conspiracy to interfere with civil rights. She

presumably means to invoke subsection (3), which focuses on equal

19

protection.? Section 1985(3} does not create substantive rights, but “serves only

as a vehicle for vindicating federal rights and privileges which have been

defined elsewhere.” Brown v. Philip Morris Inc., 250 F. 3d 789, 805 (3d Cir.

2001) (citing Great American Federal Sav. & Loan Ass'n v. Novotny, 442 U.S.

366, 376 (1979)).

Title VII violations must be redressed within the remedial scheme of Title

VII. Thus the substantive rights provided by Title VII are not independently

actionable under § 1985(3). Novotny, 442 U.S. at 378 (“[(W]e conclude that §

1985(3) may not be invoked to redress violations of Title VII.”). Williams’s Title

VII allegations, then, provide no foundation for her § 1985(3) claim.

In the alternative, Plaintiff points to her § 1981 allegations as the

substantive basis for the § 1985(3) claim. (Pl. Opp. at 19). Verizon counters

that violations of 42 U.S.C. § 1981, like violations of Title VII, are not

actionable under § 1985(3). The case Verizon cites, Brown v. Philip Morris Inc.,

250 F. 3d 789 (3d Cir. 2001), does not go quite that far. In dictum, however,

Brown does express great reluctance to allow § 1985(3) liability for violations of

§ 1981. Id. at 806. (“The great weight of precedential authority, however,

supports the traditional limitation of § 1985(3) to questions of interstate travel

and involuntary servitude and does not suggest that §§ 1981 or 1982 claims in

general may form the basis of a § 1985(3) action.”). Brown did not need to

conclusively “resolve the question” because it determined that the plaintiff had

in any case failed to state a claim under § 1981. Id. Even so, other cases in this

district have interpreted Brown to limit § 1985 liability for private actors to

violations of the right to interstate travel and freedom from involuntary

servitude. Shine v. TD Bank Financial Group, No. 09-4377, 2010 WL 2771773,

at *9 (D.N.J. July 12, 2010); Andrews v. Hanover Marriot, No. 06-1039, 2008

WL 11383866, at *8 (D.N.J. June 25, 2008). I follow their lead.

9 The factual allegations suggest no obvious connection to subsection (1)

(preventing officers of the United States from performing official duties) or subsection

(2) (obstruction of justice and intimidating witnesses or jurors). 42 U.S.C. § 1985.

20

Plaintiff has not claimed that her right to interstate travel has been

infringed or that she has been subjected to involuntary servitude. I hold that

her claims under § 1981 do not give rise to liability for a private actor under §

1985(3). Accordingly, Count 8 is dismissed for failure to state a claim.

6. Common Law Claims

Williams’s amended complaint, in scattershot fashion, alleges various

claims under state common law. See Counts 10, 11, 12, 13, 14, 15, 16, 17, 18,

19, 20, 21, and 22. Some fail to state a cognizable claim. Many are not causes

of action at all, but instead assert untethered contentions or theories of

vicarious liability, such as respondeat superior. Verizon has moved to dismiss

each one, providing legal support for each of its arguments. (DE 17-1).

Williams’s papers respond to Verizon’s arguments as to Count 17

(respondeat superior), 1 discuss Count 17 in subsection 6(a), infra.

As to the rest—Counts 10-16 and 18-22—Williams makes scarcely any

argument, or no argument at all. A plaintiff concedes a claim when she fails to

oppose arguments in support of a motion to dismiss it under Fed. R. Civ. P.

12(b}(6). O’Neal v. Middletown Twp., No. 18-5269, 2019 U.S. Dist. LEXIS 59, at

*9, 2019 WL 77066 (D.N.J. Jan. 2, 2019); see also Hollister v. U.S. Postal Serv.,

142 F. App'x 576, 577 (3d Cir. 2005); Person v. Teamsters Local Union 863, No.

12-2293, 2013 U.S. Dist. LEXIS 149252, at *2, 2013 WL 5676802 (D.N.J. Oct.

17, 2013); Ankele v. Hambrick, 286 F. Supp. 2d 485, 496 (E.D. Pa. 2003), aff'd,

136 F. App’x 551 (3d Cir. 2005). For that reason alone, those enumerated

counts might be dismissed. I nevertheless discuss them briefly and confirm

that they should be dismissed for failure to state a claim. See subsections 6(b),

(c), (d), (e) and (A.

a} Respondeat superior: Count 1 7

Count 17 of Williams’s amended complaint purports to state a cause of

action for respondeat superior. Respondeat superior is not properly understood

as a cause of action in its own right. See Rowan v. City of Bayonne, 474 Fed.

App'x 875, 878 n.3 (3d Cir. 2012) (citing Carter v. Reynolds, 175 N.J. 402, 815

21

A.2d 460 (2003)). Rather it is a legal doctrine under which a court may impose

vicarious liability on the employer of a person who has committed some

independent tort. Carter, 175 N.J. at 408, 815 A.2d 460 (citing W. Page Keeton,

Prosser and Keeton on the Law of Torts §§ 4, 69 at 21-23, 449-501 (5th ed.

1984)). Respondeat superior is not in itself, then, a “claim upon which relief

may be granted.” Fed. R. Civ. P. 12(b)(6). Count 17 is therefore dismissed.

That is not to say, however, that the doctrine of respondeat superior may

not apply in the context of the plaintiff's tort claims. I therefore discuss it

briefly for future guidance.

An employer may be liable for an employee’s tortious acts when such

acts are committed within the scope of employment. Carter, 175 N.J. at 408-

09, 815 A.2d 460. In order to establish liability under the doctrine of

respondeat superior, a plaintiff must establish: (1) that the wrongdoer is

employed by the defendant; (2) acts or omissions causing injuries or damages

to others; and (3) that the employee committed the acts or omissions within the

scope of his or her employment, i.e., when the employee was performing the

services for which he or she had been engaged. Davis v. Devereux Found., 209

N.J. 269, 287, 37 A.3d 469 (2012); see also 23 Restatement (Second) of Agency

§ 219 (1958). The term “scope of employment” refers to those acts which are so

closely connected with what the servant is employed to do, and so fairly and

reasonably incidental to it, that they may be regarded as methods, even though

improper ones, of carrying out the objectives of employment. Carter, 175 NJ.

at 411, 815 A.2d 460 (quotations omitted).

The scope-of-employment issue comprises a two-part inquiry. Stroka v.

United Airlines, 364 N.J. Super. 333, 339, 835 A.2d 1247 (App. Div. 2003).

First, there must be a time-and-place nexus between the employment and the

incident. See Coleman v. Cycle Transformer Corp., 105 N.J. 285, 288-89, 520

A.2d 1341, (1986). Second, there must be a causal connection between the

employment and the incident itself. Id. To demonstrate the causal connection

between the employment and the incident, “[i]t must be established that the

22

work was at least a contributing cause of the injury and that the risk of the

occurrence was reasonably incident to the employment.” Id. at 290, 520 A.2d

1341. “[T]he ‘but for’ or positional-risk test” used for this analysis in New

Jersey asks “whether it is more probably true than not that the injury would

have occurred during the time and place of employment rather than

elsewhere.” Id. at 290-91, 520 A.2d 1341 (quoting Howard v. Harwood’s Rest

Co., 25 N.J. 72, 83, 135 A.2d 161 (1957). “(Rlisks that result from a purely

personal activity” are deemed to fall outside of the course of employment. Id.

Here, Verizon concedes (or at least does not contest) that it employed the

persons whom Williams accuses of harassing or injuring her in the workplace.

The respondeat superior inquiry will thus probably depend on whether the

allegedly tortious conduct occurred within the scope of any such individual’s

employment. Should the employee’s commissions of a tort be established, then

Verizon's liability via respondeat superior may become an issue. As a

standalone cause of action, however, it is superfluous; Count 17 is therefore

dismissed.

b) Other theories of liability not amounting to causes of action: Counts 1 6,

18, and 22

My resolution of Counts 16, 18, and 22 is similar.

Vicarious liability (Count 16) is a legal theory by which a third-party can

be held liable for a tortfeasor’s conduct. It is not an independent cause of

action. Galicki v. New Jersey, No. 14-169, 2016 U.S. Dist. LEXIS 126076, at

*108-09, 2016 WL 4950995 (D.N.J. Sep. 15, 20 16}.

Ratification (Count 18) is “the affirmance by a person of a prior act which

did not bind him but which was done, or professedly done on his account,

whereby the act, as to some or all persons, is given effect as if originally

authorized by him.” In re Dwek, Nos. 07-1616, 07-1697, 2010 Bankr. LEXIS

1859, 2010 WL 2196417 (Bankr. D.N.J. June 1, 2010) (quoting Martin

Glennon, Inc. v. First Fid. Bank, N.A., 279 N.J. Super. 48, 60, 652 A.2d 199

(App. Div. 1995). It, too, is a theory by which a third party may be held liable

for the act of a tortfeasor; it is not in itself a cause of action. Id.

23

Punitive damages (Count 22) are a remedy, not a cause of action. See

Hassoun v. Cimmino, 126 F. Supp. 2d 353, 372 (D.N.J. 2000).

To be clear, these theories are not hereby banished from the case; the

point, as in the case of respondeat superior, is that they do not constitute

causes of action in their own right. Because Plaintiff has offered no substantial

arguments in response to the motion to dismiss these counts, and because in

any event they fail to state a claim upon which relief can be granted, Counts

16, 18, and 22 are dismissed.

c) Invasion of Privacy: Count 10

In Count 10, Williams alleges an invasion of privacy, in the sense of an

intrusion “upon the solitude or seclusion of her private affairs or concerns.”

(1AC at 33 q 2). As she explains, the defendants “violated [her] reasonable

expectation of privacy by entering into {her] office while she was not there and

hanging offensive and racist office decorations. Defendants further violated

[her] reasonable expectation of privacy by permitting its employees to engage in

harassing and racist discussions about [her] personal life.” (LAC at 33 4 4).

The common-law right to privacy encompasses multiple torts, including

intrusion upon seclusion, public disclosure of private facts, placing plaintiff in

a false light in the public eye, and appropriation of plaintiff's name or likeness.

Rumbauskas v. Cantor, 649 A. 2 853, 856 (N.J. 1994) (quoting W. Page Keeton,

et al., Prosser and Keeton on the Law of Torts § 117 (5th ed. 1984)). Plaintiff

does not specify which tort she is claiming, but only two seem potentially

relevant to the allegations: false light defamation and intrusion on seclusion.

The statute of limitations is two years for intrusion upon seclusion and

one year for placing plaintiff in a false light. Smith v. Dalta, 164 A. 3d 1110,

1117 (N.J. Super. Ct. App. Div. 2017). At the outset, then, it appears that the

statute of limitations rules out the bulk of the factual allegations in the

24

complaint.!° I state this for the parties’ guidance in the event the complaint is

amended.

The first potentially applicable privacy tort is that of false light. See

Romaine v. Kallinger, 537 A. 2d 284, 289 (N.J. 1988) (“It is accepted in New

Jersey that a cause of action exists for invasions of privacy involving publicity

that unreasonably places the other in a false light before the public.”). This tort

typically involves some sort of publication or dissemination. See, e.g., Romaine,

537 A. 2d (book), DeAngelis v. Hill, 847 A. 2d 1261 (N.J. 2004) (newsletter),

G.D. v. Kenny, 15 A. 3d 300 (N.J. 2011) (political flyer). To state a claim for this

tort, a defendant must “give publicity to a matter concerning another that

places the other before the public in a false light [and] (a) the false light in

which the other was placed would be highly offensive to a reasonable person,

and (b) the actor had knowledge of or acted in reckless disregard as to the

falsity of the publicized matter and the false light in which the other would be

placed.” Romaine, 537 A. 2d at 290.

Williams has not, in her complaint or her briefing, identified the factual

allegations that would support liability under this tort. The only examples of

statements to others, let alone the “public’—particularly within the limitations

period—would have to be insulting comments made by co-workers. Thus, for

example, Missy allegedly called Williams “evil” and “a bitch.” These insults,

however, amount to little more than name-calling; they contain nothing

specific, factual, or private about Williams, the public disclosure of which could

give rise to a claim for the tort of false light.

Next is the tort of intrusion upon seclusion. See Hennessey v. Coastal

Eagle Point Oil Co., 129 N.J. 81, 94, 609 A.2d 11 (1992). That tort imposes

liability on “[oJne who intentionally intrudes, physically or otherwise, upon the

solitude or seclusion of another or his private affairs or concerns . . . if the

10 Other privacy torts have their own limitations periods. See Smith, 164 A.3d at

1117, 1123.

25

intrusion would be highly offensive to a reasonable person.” Id. at 94-95, 609

A.2d 11 (quoting Restatement (Second) of Torts § 652B (1977)).

Under New Jersey law, an essential element of the intrusion tort is that

the plaintiff possess a reasonable expectation of privacy:

[T]he intrusion must be “highly offensive to a reasonable person,” a

determination that turns on what a person’s reasonable

expectation of privacy is with respect to the item or area searched

or intruded upon. Thus, an intrusion is not highly offensive “when

the [defendant] intrudes into an area in which the victim has either

a limited or no expectation of privacy.” Notwithstanding a plaintiff's

subjective expectations of privacy, a court must determine whether

objectively, given the facts and circumstances of the particular

case, a person would reasonably believe he has an expectation of

privacy.

Poltrock v. N.J. Auto. Accounts Mgmt. Co., No. 08-1999, 2008 WL 5416396

(D.N.J. Dec. 22, 2008) (Wolfson, J.) (quoting White v. White, 344 N.J. Super.

911, 222, 781 A.2d 85 (2001)) (citing State v. Hempele, 120 N.J. 182, 200, 576

A.2d 793 (1990) (holding that “expectations of privacy are established by

general social norms”)), quoted in Torsiello v. Strobeck, 955 F. Supp. 2d 300,

315 (D.N.J. 2013) (dismissing privacy claim based on an intrusion into

employee’s locker).

Williams has not alleged facts to establish that she had a reasonable

expectation of privacy in her workspace. In a prior case, I reviewed the law

thus:

[W]hether an employee has a reasonable expectation of privacy in

her particular work setting “must be addressed on a case-by-case

basis.”

In Ratti v. Serv. Mgmt. Sys., Inc., the plaintiff-employee claimed

intrusion after his employer opened his locked desk drawer and

discovered a pellet gun inside. In granting summary judgment in

favor of the employer, the court found that the employee had no

objectively reasonable privacy right because “[t]he desk was located

at his place of employment in an unlocked office, used by other

employees, and contained his employer’s documents.”

26

Torsiello, 955 F. Supp. 2d at 315 (quoting Stengart v. Loving Care Agency, Inc.,

201 N.J. 300, 317, 990 A.2d 650 (2010)) (citing Ratti v. Serv. Mgmt. Sys., Inc.,

No. 06-6034, 2008 WL 4004256, at *3 (D.N.J. Aug. 25, 2008)). I held that the

locker in the Torsiello case, like the desk drawer in Ratti, was ata place of

employment and was alleged to contain files to which the business would have

needed access. I therefore dismissed the claim without prejudice for failure to

adequately allege an expectation of privacy.

An expectation of privacy, if properly alleged, may indeed pose an issue

requiring further factual development. As noted above, however, an intrusion is

not actionable when the complaint demonstrates that the area is one “in which

the victim has either a limited or no expectation of privacy.” White, 344 NJ.

Super. at 222, 781 A.2d 85. Here, the complaint merely alleges in conclusory

fashion that the plaintiff had “a reasonable expectation of privacy inside of her

office at Verizon.” (1AC at 33 { 3). A person is not presumed to have a privacy

interest in the employment environment, however, and the complaint fails to

allege any facts suggesting such an expectation.

Indeed, the allegations suggest the opposite. Two photographs, including

one of the allegedly racist holiday decorations, are attached as Exhibits A&B

to the original complaint. (DE 1 at pp. 53-56)!! Ex. B appears to depict an

open, common area, which makes sense given that these were office

decorations. The complaint also alleges that two co-workers placed a depiction

of a rat on Williams’s desk, or situated a witch doll facing Williams’s

“workspace.” (1AC {J 37, 33). This, too is not a location alleged to be private,

since it is explicitly alleged that the co-workers were able to harass Williams

because they were all in adjoining “workstations.” (1AC 27), Williams calls

her work station an “office,” but she does not allege that her workstation was

sechuded, or that access to the area was restricted. (Ex. A appears to depict the

work stations.) In short, these seem to be common workspace cubicles, not

The amended complaint continues to cite to Exhibits A and B, but they are no

longer attached. | assume this was an oversight.

27

private or locked offices. More facts would be required before the court could

find that a legitimate expectation of “privacy” had been alleged.

However offensive, these actions are not adequately alleged as invasions

of privacy. Because Count 10 fails to allege facts suggesting either the public

disclosure of false information or a reasonable expectation of privacy that could

give rise to an “intrusion upon seclusion,” it is dismissed.

d)} Intentional Infliction of Emotional Distress: Count 11

A claim of intentional infliction of emotional distress (“IIED”) requires the

plaintiff to allege four essential elements:

1. that defendant acted intentionally or recklessly, both in

committing the alleged tortious acts and in producing emotional

distress;

2. that defendant’s conduct was so outrageous in character and

extreme in degree as to go beyond all bounds of decency;

3. that defendant’s actions were the proximate cause of the

emotional distress; and

4. that the emotional distress suffered was so severe that no

reasonable person could be expected to endure it.

Mardini v. Viking Freight, Inc., 92 F. Supp. 2d 378,384 (D.N.J. 1999) (citing

Buckley v. Trenton Sav. Fund Soc’y, 111 N.J. 355, 366, 544 A.2d 857 (1988));

see also Horvath v. Rimtec Corp., 102 F. Supp. 2d 219, 235 (D.N.J. 2000). It is

“extremely rare” to find actionable IED in the employment context. See Griffin

v. Tops Appliance City, Inc., 766 A. 2d 292, 297 (N.J. Super. Ct. App. Div. 2001)

(quoting Cox v. Keystone Carbon Co., 861 F. 2d 390, 395 (3d Cir. 1988)). See

also N.J. Stat. Ann. § 2A:14-2 (general two-year statute of limitations, subject

to doctrines of accrual and tolling).

Williams has not clearly alleged a timely claim that Verizon committed

acts so “outrageous” as to rise to the level of the “extremely rare” case of

12 Moreover, while it is not expressly stated, it appears that these decorations were

put up during the 2014 holiday season, well outside the two-year statute of

limitations. The description of the decorations comes sequentially before Plaintiff's

taking disability leave in April 2015. (1AC Jf 38-41).

28

workplace ITED.!$ At any rate, Williams’s briefing makes no response to the

motion to dismiss the IIED claim, and I will not construct an argument for her.

Accordingly, Count 11 is dismissed as to Verizon.

e) Negligence Claims: Counts 12, 13, 14, 15, 19, and 20

The amended complaint asserts six claims sounding in negligence:

Negligent Infliction of Emotional Distress (“NIED”) (Count 12); Negligent Hiring

(Count 13); Negligent Supervision (Count 14); Negligent Retention (Count 15);

Failure to Warn/Misrepresentation (Count 19); and Gross Negligence (Count

20}.

An employee may not “sue his [or her] employer in negligence nor can the

employee sue a co-employee.” Such on-the-job negligence claims are subsumed

by the scheme set up by the Workers Compensation Act, N.J. Stat. Ann. §

34:15-8; see also Wellenheider v. Rader, 49 N.J. 1, 9, 227 A.2d 329 (1967);

Millison v. E.L du Pont de Nemours & Co., 101 N.J. 161, 165, 501 A.2d 505

(1985). That is so regardless of the kind of injury alleged. See Rodriguez v.

Ready Pac Produce, No. 13-4634, 776 F.3d 276, 2014 U.S. Dist. LEXIS 64139,

at *17 (D.N.J. 2014). The proper forums for such grievances are the

administrative bodies designed by the New Jersey Legislature for the purpose.

Plaintiff has offered no substantive argument in response to the motion

to dismiss the negligence counts as being preempted by Workers

Compensation. Counts 12, 13, 14, 15, 19,14 and 20 are dismissed.

f) Civil Conspiracy: Count 21

A cause of action for civil conspiracy requires a plaintiff to allege “a

combination of two or more persons acting in concert to commit an unlawful

act, or to commit a lawful act by unlawful means, the principal element of

which is an agreement between the parties to inflict a wrong against or injury

13 At best, the claim against Verizon itself seems to be that Verizon “permitted” its

employees to harass her. (1AC at 35 7 4)

14 With respect to Count 19 only, Plaintiff did make several substantive

arguments. She did not, however, address the issue of preemption by the Workers’

Compensation scheme. (Pl. Opp. at 29-30).

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upon another, and an overt act that results in damage.” Banco Popular N. Am.

v. Gandi, 184 N.J. 161, 876 A.2d 253 (2005). “A corporation and its employees

are not separate persons for the purpose of civil conspiracy, and a conspiracy

cannot exist in the absence of two or more persons acting in concert.” Marjac,

LLC v. Trenk, 2006 U.S. Dist. LEXIS 91574, at *51, 2006 WL 3751395 (D.N.J.

Dec. 19, 2006); Nat’l Auto Div., LLC v. Collector’s All, Inc., No. A-3178, 2017

N.J. Super. Unpub. LEXIS 234, at *13, 2017 WL 410241 (App. Div. Jan. 31,

2017). “The gravamen of a conspiracy action is not the conspiracy itself but the

underlying wrong which, absent the conspiracy, would give a right of action.”

Ewing v. Cumberland Cnty., 152 F. Supp. 3d 269, 301 (D.N.J. 2015).

Here, the agreement to commit some underlying tort is not alleged with

any specificity, and at least one potential theory—the corporation’s conspiring

with its employees—is ruled out as a matter of law. See Marjac, supra. Count

21 is therefore dismissed.

CONCLUSION

For the foregoing reasons, Defendant Verizon’s motion to dismiss is

GRANTED as to Counts 2, 5-8, and 10-22. The motion to dismiss is DENIED

as to Counts 1, 3, 4, and 9.

Verizon is authorized to file a focused motion for summary judgment,

confined to the issue of exhaustion of administrative remedies as to Counts 1,

3, 4, and 9. To the extent Counts 1, 3, 4, and 9 may survive the exhaustion

analysis, Verizon’s motion may, in the alternative, reassert the other grounds

for dismissal of those counts that it asserts here. Verizon may do so by

incorporation of its arguments on this motion to dismiss; plaintiff may likewise

incorporate by reference her arguments in opposition to this motion to dismiss.

If Defendant chooses to file such a summary judgment motion, Plaintiff shall

have 30 days to respond.

Dated: March 12, 2020 :

M ( ate )

HON. KEVIN MCNULTY, U.S.D.J.

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