CURRO v. HD SUPPLY, INC.

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

____________________________________

:

ANGELO CURRO, :

: Case No. 2:19-cv-19198-BRM-JAD

:

Plaintiff, :

:

v. :

: OPINION

HD SUPPLY, INC., et al., :

:

:

Defendants. :

____________________________________ :

MARTINOTTI, DISTRICT JUDGE

Before the Court is Defendants HD Supply Inc. (“HD Supply”), and HD Supply

Management, Inc.’s (“HD Supply Management”) (together, “Defendants”) Motion to Dismiss the

First and Second Counts of the Complaint for the failure to state a claim for which relief can be

granted pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 4.) Plaintiff Angelo Curro

(“Curro”) opposes the Motion. (ECF No. 5.) Having reviewed the 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 appearing, Defendants’

Motions to Dismiss Counts One and Two is GRANTED in part and DENIED in part.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY1

A. Factual Background

Curro, a resident of Bloomingdale, New Jersey, began working in early 2011 at HD

Supply,2 a corporation with a principal business address in Atlanta, Georgia. (Compl. (ECF No.

1-1) ¶¶ 1, 2.) HD Management also is a corporation with a principal business address in Atlanta,

Georgia. (Id. ¶ 3.) The Complaint does not state where Defendants are incorporated, nor does it

state the business or businesses in which Defendants are engaged.

Curro was a Field Account Representative whose territory in New Jersey included Hudson

and Essex counties. (Id. ¶ 7.) He alleges he was a top-performing salesman in 2016 and 2017, and

received a “good” performance review in 2018 that resulted in a merit raise and bonus. (Id. ¶ 8.)

In November 2016, Curro was in a “workplace car accident,” from which he sustained

severe back injuries, including herniated discs. (Id. ¶ 9.) In April 2017, Curro received a poor

review. (Id. ¶ 12.) In June 2017, Curro made a workers’ compensation claim. (Id. ¶¶ 10).

At some point, Curro learned from a co-worker that Curro’s manager, Bryan Gallino

(“Gallino”), was upset about the workers’ compensation claim and about Curro’s engagement of

an attorney to represent him for this claim. (Id. ¶ 11.) Curro responded to this and the poor review

by filing, on June 20, 2017, a “detailed written complaint regarding harassment and

1 For the purposes of this Motion to Dismiss, the Court accepts the factual allegations in the

Amended Complaint as true and draws all inferences in the light most favorable to Plaintiff. See

Phillips v. Cty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008). Furthermore, the Court also

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

Coat Factory Secs. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (quoting Shaw v. Dig. Equip. Corp.,

82 F.3d 1194, 1220 (1st Cir. 1996)).

2 Curro alleges he also was in the employ of HD Management. (ECF No. 1-1 ¶ 3.) He does not

explain the relationship between HD Supply and HD Management, nor how he was simultaneously

employed by both entities.

discrimination.” (Id. ¶ 12.) In this report, Curro alleged retaliation and “unlawful and

discriminatory actions” by Gallino and his supervisor, Kolah Haskell (“Haskell”). (Id. ¶ 13.) The

Complaint filed in this action does not describe the unlawful or discriminatory actions. The

Complaint also does not state with whom Curro filed this report. The report also maintained that

the company was forcing him and other sales representatives to work excessive hours in unsafe

working conditions to meet unrealistic sales milestones. (Id. ¶ 14.)

In response, Curro was treated in a “disparate and negative fashion by management.” (Id.

¶ 16.) The terms and conditions of Curro’s employment were changed and, ultimately, he was

terminated in November 2018 “for completely pretextual reasons.” (Id.)

B. Procedural History

Curro filed a Complaint on September 16, 2019, in N.J. Superior Court, Law Division,

Hudson County, alleging discrimination and retaliation in violation of the New Jersey Law Against

Discrimination (“NJLAD”) (Counts One and Two), as well as unlawful retaliation in violation of

both New Jersey’s Workers’ Compensation law (Count Three) and the New Jersey Conscientious

Employee Protection Act (“CEPA”) (Count Four). (Id. ¶¶ 17-34.)

Defendants removed the action to this Court on October 22, 2019. (ECF No. 1.) Defendants

filed this Motion on November 12, 2019. (ECF No. 4.) Defendants argue the NJLAD retaliation

Count should be dismissed because Curro waived such claims by also filing a CEPA claim.

Defendants further contend that, even if Curro did not waive the NJLAD retaliation claim, both

NJLAD claims should be dismissed because he has not stated NJLAD claims for which relief could

be granted. (Id.) Curro filed his opposition to the Motion on December 2, 2019. (ECF No. 5.)

Defendants filed a Reply on December 9, 2019. (ECF No. 6.)

II. LEGAL STANDARD

A. Rule 12(b)(6) 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 Rule 12(b)(6) motion to dismiss does not need detailed factual

allegations.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). 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.” 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 that 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

pleaded; 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)).

However, courts are “not compelled to accept ‘unsupported conclusions and unwarranted

inferences,’” Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (quoting Schuylkill Energy

Res. Inc. v. Pa. Power & Light Co., 113 F.3d 405, 417 (3d Cir. 1997)), nor “a legal conclusion

couched as a factual allegation.” Papasan, 478 U.S. at 286.

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

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

court may consider certain narrowly defined types of material without converting the motion to

dismiss [to one for summary judgment pursuant to 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.’” Burlington Coat Factory, 114 F.3d at 1426 (quoting

Shaw, 82 F.3d at 1220).

III. DECISION

Before considering the merits of Curro’s claims, the Court first must be satisfied it has

subject-matter jurisdiction over this action. Wyrough & Loser, Inc. v. Pelmor Laboratories, Inc.,

376 F.2d 543, 547 (3d Cir. 1967) (citing Arrowsmith v. United Press International, 320 F.2d 219,

221, 6 A.L.R.2d 1072 (3d Cir. 1963)). While no party challenges the Court’s subject-matter

jurisdiction, “federal courts ‘have an independent obligation to determine whether subject-

matter jurisdiction exists, even in the absence of a challenge from any party.’” Hartig Drug Co. v.

Senjuu Pharm. Co., 836 F.3d 261, 267 (3d Cir. 2016) (quoting Arbaugh v. Y&H Corp., 546 U.S.

500, 514 (2006)).

Defendants removed this action alleging jurisdiction under 28 U.S.C. § 1332(a), which

provides district courts with original jurisdiction over matters between citizens of different states

where the amount in controversy is greater than $75,000.00. Diversity jurisdiction “requires

complete diversity of the parties; that is, no plaintiff can be a citizen of the same state as any of

the defendants.” Grand Union Supermarkets of V.I., Inc. v. H.E. Lockhart Mgmt., Inc., 316 F.3d

408, 410 (3d Cir. 2003). In any case resting on diversity jurisdiction, the Court must determine for

itself whether or not every defendant is completely diverse from the plaintiff. See Auto-Owners

Ins. Co. v. Stevens & Ricci, Inc., 835 F.3d 388, 394 (3d Cir. 2016) (quoting Grand Union

Supermarkets of the V.I., Inc. v. H.E. Lockhart Mgmt., Inc., 316 F.3d 408, 410 (3d Cir. 2003)).

The Complaint alleges only that HD Supply and HD Management have principal paces of

business in Atlanta, Georgia. The Complaint is silent on where these companies are incorporated.

It is well established a corporation takes on the citizenship of “both its state of incorporation and

the state of its principal place of business.” GBForefront, 888 F.3d 29, 34 (3d Cir. 2018).

However, “[t]he burden of persuasion for establishing diversity jurisdiction, of course,

remains on the party asserting it.” Hertz Corp. v. Friend, 559 U.S. 77, 96 (2010). Here, that is

Defendants. In the Notice of Removal, Defendants maintain HD Supply is a Delaware corporation

and HD Management a Florida corporation. (ECF No. 1 ¶¶ 7, 8.) The Court therefore concludes

there exists the diversity required by § 1332.

Defendants further maintain the amount in controversy is greater than $75,000.00, as Curro

seeks front pay and back pay, as well as other compensation and benefits, emotional distress

damages, attorneys’ fees under the fee-shifting provisions of LAD and CEPA, and punitive

damages. (Id. ¶ 10.) “A case may be dismissed for failure to meet the amount in controversy

requirement only if it appears to a ‘legal certainty’ that the claim is for less than the jurisdictional

amount.” McCollum v. State Farm Ins. Co., 376 F. App’x 217, 220 (3d Cir. 2010) (citing St. Paul

Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938); see also Dardovitch v. Haltzman,

190 F.3d 125, 135 (3d Cir. 1999)). Accordingly, the Court concludes the amount-in-controversy

requirements of § 1332 also have been met, giving this Court subject-matter jurisdiction over this

action. The Court now will address Defendants’ arguments that Counts One and Two should be

dismissed.

A. Motion to Dismiss Pursuant to Rule 12(b)(6)

1. CEPA Preclusion

Curro alleges Defendants terminated his employment in unlawful retaliation for filing a

complaint against his manager and supervisors. Curro claims this behavior violates both the

NJLAD (Count Two) and CEPA (Count Four). (ECF No. 1-1 ¶¶ 24-27, 32-33.)

Defendants argue the Court Two NJLAD claim must be dismissed because the CEPA

statute, specifically N.J. Stat. Ann. § 34:19-8, precludes alternate remedies for the same retaliatory

conduct. (Defs.’ Br. in Support of Mot. (ECF No. 4-1) at 6.) In other words, Defendants contend

that by bringing a CEPA claim Curro waived the possibility of seeking any NJLAD remedy.

It is well established retaliation claims brought under the LAD can be precluded by CEPA

claims in the same Complaint. See Ivan v. Cty. of Middlesex, 595 F. Supp. 2d 425, 465–66 (D.N.J.

2009). See also Figueroa v. City of Camden, 580 F. Supp. 2d 390 (D.N.J. 2008). However, not

every NJLAD claim is waived by assertion of a CEPA claim, only those that would require a

finding that would be actionable under CEPA. Id. (citing Bowen v. Parking Authority of the City

of Camden, No. 00–5765, 2003 WL 22145814, at *24 (D.N.J. Sept. 13, 2003) (citing Young v.

Schering Corp., 141 N.J. 16, 29, 660 A.2d 1153, 1160 (1995)

Count Two alleges unlawful retaliation in violation of the NJLAD. (ECF No. 1-1 ¶¶ 24-

27.) In Count Two, Curro claims he was “treated differently in a negative fashion” by Defendants

after he had complained to his manager and supervisors about “the discriminatory, retaliatory

and/or harassing behavior of certain supervisory personnel.” (Id. ¶ 25.) Specifically, this retaliation

included, first, changes in the terms and conditions of his employment, and ultimately, termination.

(Id. ¶ 26.) In Court Four, Curro alleges Defendants retaliated against him in violation of CEPA by

the same conduct: changing the terms and conditions of his employment, and ultimately,

terminating his employment.

The New Jersey Supreme Court interprets § 34:19-8 to mean

“once a CEPA claim is ‘instituted,’ any rights or claims for

retaliatory discharge based on a contract of employment; collective

bargaining agreement; State law, whether its origin is the

Legislature, the courts, the common law or rules of court; or

regulations or decisions based on statutory authority, are all

waived.”

Young, 141 N.J. at 29, 660 A.2d at 1160. In other words, “parallel claims based on those rights,

privileges and remedies,” such as retaliation claims grounded in the NJLAD, “are waived because

they represent multiple or duplicative claims based on retaliatory discharge.” Id.

This Court adhered to the Young Court’s reading in Estate of Olivia v. New Jersey, where

the estate of a deceased state trooper was prevented from asserting an NJLAD claim where that

claim “closely resembled” the estate’s CEPA claim and did not require different proofs. Id.

To make a prima facie case of illegal retaliation under the NJLAD, Curro must show “(1)

that he engaged in a protected activity; (2) that he suffered an adverse employment action; and (3)

that there was a causal connection between the protected activity and the adverse employment

action.” Sgro v. Bloomberg L.P., 331 F. App’x 932, 939 (3d Cir. 2009) (citing Cardenas v. Massey,

269 F.3d 251, 263 (3d Cir. 2001) (citations omitted)).

To succeed on his CEPA claim, Curro must prove four elements: (1) that he reasonably

believed his employer’s conduct violated a law or regulation; (2) that he performed “whistle-

blowing activity” as defined in CEPA; (3) that an adverse employment action has been taken

against him; and (4) that the whistle-blowing activity caused such adverse employment

action. See Kolb v. Burns, 727 A.2d 525, 530 (N.J. Super. Ct. App. Div. 1999); Dzwonar v.

McDevitt, 828 A.2d 893, 900 (N.J. 2003).

“The latter three of these are the elements a plaintiff must prove to prevail on the LAD

retaliation claim.” Ivan, 595 F. Supp. 2d at 466 (citing Bowen v. Parking Auth. of City of Camden,

No. 00-5765, 2003 WL 22145814, at *24 n.49 (D.N.J. Sept. 18, 2003) (“It is ‘beyond dispute that

the framework for proving a CEPA claim follows that of a LAD claim.’” (quoting Donofry v.

Autotote Sys., Inc., 795 A.2d 260, 269 (N.J. Super. Ct. App. Div. 2001)))). It is clear, therefore,

that retaliation claims under the NJLAD necessarily fall within the CEPA waiver provision. Ivan,

595 F. Supp. 2d at 466 (citing Sandom v. Travelers Mtg. Servs., Inc., 752 F. Supp. 1240, 1244

(D.N.J. 1990)).

Plaintiff counters that any dismissal of Count Two required by CEPA cannot be invoked

at this point in the litigation.

The CEPA section at issue states, in relevant part:

Nothing in this act shall be deemed to diminish the rights, privileges,

or remedies of any employee . . . except that the institution of an

action in accordance with this act shall be deemed a waiver of the

rights and remedies available under any other contract, collective

bargaining agreement, State law, rule or regulation or under the

common law.

N.J. Stat. Ann. § 34:19-8 (emphasis added).

“Institution” is defined as: “The commencement of something, such as a civil or criminal

action.” Black’s Law Dictionary (10th ed. 2014).

Nevertheless, Curro argues the New Jersey Supreme Court in Young “very clearly

indicated” plaintiffs have “until at least the close of discovery” to chose between pursuing the

CEPA claim and any potentially duplicative claims, here the NJLAD claim. (ECF No. 5 at 9

(quoting Young, 660 A.2d at 1161).)

The Court is not persuaded by Curro’s reliance on Young, as the Supreme Court there stated

only that § 34:19-8’s “institution of an action” language “may be susceptible” of other meanings

besides the filing of the complaint and “could conceivably contemplate an election of remedies”

occurring after discovery is complete or a pretrial conference is held. Young, 141 N.J. at 32, 660

A.2d at 1161. Such conditional language hardly indicates a clear direction from the New Jersey

Supreme Court, which has otherwise been silent on this matter.

This Court faced the same question in Broad v. Home Depot U.S.A., Inc. and looked to

guidance provided by New Jersey’s appellate courts. See 16 F. Supp. 3d 413 (D.N.J. April 22,

2014) (citing Werwinski v. Ford Motor Co., 286 F.3d 661, 670–71 (3d Cir. 2002) (holding that, in

the absence of a controlling decision from a state’s highest court on an issue of state law, a federal

court sitting in diversity must predict how the court would rule by considering the relevant

decisions of the state’s appellate courts). Specifically, this Court examined Maw v. Advanced

Clinical Comms., also cited by Curro, where the appellate division held that “before electing

remedies, a plaintiff should have an opportunity to complete discovery. Only after gaining access

to all of the facts will a plaintiff be in a position to make a knowing and meaningful election.” Id.

at 417-18 (citing Maw, 820 A.2d 105 (N.J. Super. Ct. App. Div. 2004)).

Defendants argue Curro’s reliance on Maw is misguided because it overlooks the New

Jersey Supreme Court’s later holding in Tartaglia v. UBS PaineWebber, Inc., where the court

stated § 34:19-8 “deems the filing of a CEPA complaint to be an election of remedies.” (ECF No.

4-1 at 5 (quoting Tartaglia, 961 A.2d 1167, 1179 (2008). But, Defendants overstate the importance

of Tartaglia, where the Court was focused on the required elements for a successful CEPA claim

and the quoted statement above was only introductory dicta. Also, the case cited by the Targalia

Court for the proposition quoted by Defendants, Catalane v. Gilian Instrument Corp., only upheld

the dismissal of common-law claims of retaliation because they sought the same remedy as CEPA

claims in litigation that had gone to trial. Tartaglia, 961 A.2d at 1179 (citing Catalane, 638 A.2d

1341, 1350 (N.J. Super. Ct. App. Div. 1994)). Catalane, in other words, does not support the

proposition that CEPA preclusion is triggered by the filing of a Complaint or by other methods for

instituting an action. This Court declines to chose between the dicta of Young and the dicta of

Tartaglia as being the definitive statement on the precise contours of “institution of an action.”

In Rossi v. Vericare Mgmt., Inc., U.S. District Judge Freda L. Wolfson observed that some

courts in this district have held the “institution of an action” language means plaintiffs waive “all

other CEPA-related claims upon the filing” of a CEPA claim, such as Hornung v. Weyerhaeuser

Co., Inc., No. 06-2300, 2007 WL 2769646, at *6 (D.N.J. Sept. 21, 2007); Hilburn v. Bayonne

Parking Auth., No. 07-5211, 2009 WL 777147, at *3 (D.N.J. Mar. 20, 2009) (concluding that,

“because the clear and unambiguous language of CEPA supports the interpretation that an action

is ‘instituted’ upon filing, and because New Jersey courts have provided no authority to the

contrary, the Court finds that Plaintiffs waived their CEPA-related claims upon filing their CEPA

claim.”), while others have held “the CEPA waiver does not attach until after the completion of

discovery.” Rossi, No. 13-6884, 2016 WL 6892075, at *4 (citing Broad, 16 F. Supp. 3d at

417; see Chadwick v. St. James Smokehouse, Inc., No. 14-2708, 2015 U.S. Dist. LEXIS 38340, at

*27-28, 2015 WL 1399121 (D.N.J. Mar. 26, 2015) (“A decision about CEPA waiver ought to be

reached after discovery.”); Rubin v. Sultan Healthcare, Inc., No. 08-6175, 2009 U.S. Dist. LEXIS

41534, at *12, 2009 WL 1372272 (D.N.J. May 15, 2009) (concluding that “the CEPA waiver

provision would not require a plaintiff to elect her remedy at the pleading stage of the litigation

but rather defer the waiver until the plaintiff has had an opportunity to conduct discovery.”).

Without a controlling decision from the New Jersey Supreme Court on this issue, Judge

Wolfson looked to New Jersey’s appellate courts “to predict what the New Jersey Supreme Court

would decide.” Rossi, 2016 WL 6892075, at *4 (citing Ill. Nat’l Ins. Co. v. Wyndham Worldwide

Operations, Inc., 653 F.3d 225, 231 (3d Cir. 2011). Weighing Maw in light of the Supreme Court’s

dicta in Young, Judge Wolfson concluded the New Jersey Supreme Court likely would not require

a plaintiff to elect remedies before discovery was completed. Rossi, 2016 WL 6892075, at *4.

Decisions from the Appellate Division since Rossi have not wavered from Maw. See Rivera

v. Dep’t of Human Servs., No. A-0086-17T4, 2019 WL 1418098, at *16 n.7 (N.J. Super. Ct. App.

Div. Mar. 28, 2019); Bordone v. Passaic Pub. Library Tr., No. A-2299-15T4, 2018 WL 2271354,

at *8 (N.J. Super. Ct. App. Div. May 18, 2018) (where the court rejected arguments that the point

of election of remedies was before a case was submitted to a jury). Accordingly, the Court

concludes Defendants’ Motion to Dismiss Count Two’s retaliation claim, because it is precluded

by Court Four’s CEPA retaliation claim, is DENIED.

The Court now considers Defendants arguments that Counts One and Two should be

dismissed because they fail to state a claim for which relief can be granted.

i. Count One

Defendants contend their Motion should be granted as to Count One’s Failure to

Accommodate claim because Curro failed to allege sufficient facts to support allegations of such

discrimination. (ECF N0. 4-1 at 6.) Specifically, Defendants argue Curro did not allege any facts

associated with an accommodation request, such as whether Defendants knew of his alleged

disability, received an accommodation request, failed to make a good faith effort to assist Curro,

or whether Curro could have been reasonably accommodated but for Defendants’ alleged lack of

good faith. (Id. at 12.)

Curro counters that the Complaint makes clear “plaintiff was let go based upon a clear

perception by defendants that he was unable to perform the essential functions of his job and in

lieu of continuing to provide necessary reasonable accommodations pursuant to the interactive

process. (ECF No. 5 at 32 (citing ECF No. 1-1 ¶¶ 21-22.)

The NJLAD prohibits “any unlawful discrimination against any person because such

person is or has been at any time disabled or any unlawful employment practice against such

person, unless the nature and extent of the disability reasonably precludes the performance of the

particular employment.” N.J.S.A. § 10:5–4.1; see also Victor v. State, 401 N.J. Super. 596, 609

(App. Div. 2008), aff’d as modified, 203 N.J. 383 (2010). The elements of an NJLAD claim vary

based on the cause of action alleged. Victor v. State, 203 N.J. at 408 (listing the different prima

facie elements for various NJLAD causes of action based on failure to hire, discriminatory

discharge, retaliation, and hostile environment).

To establish a case of disability discrimination under the NJLAD, Curro must demonstrate:

(1) he was handicapped or disabled within the meaning of the statue;

(2) he was qualified to perform the essential functions of the position

of employment, with or without accommodation; (3) he suffered an

adverse employment action because of the handicap or disability;

and (4) the employer sought another to perform the same work after

he had been removed from the position.

Id. To satisfy the second prong, Curro must further show (1) HD Supply knew of his disability;

(2) he requested accommodations or assistance for his disability; (3) HD Supply made no good

faith effort to assist; and (4) that he could have been reasonably accommodated but for HD

Supply’s lack of good faith. Fitzgerald v. Shore Mem’l Hosp., 92 F. Supp. 3d 214, 237 (D.N.J.

2015) (citing Victor, 952 A.2d at 504; Armstrong v. Burdette Tomlin Mem. Hosp., 438 F.3d 240,

246 (3d Cir. 2006); Linton v. L’Oreal USA, 2009 WL 838766, at *3 (D.N.J. Mar. 27, 2009). Once

a request for accommodation is made, “both parties have a duty to assist in the search for an

appropriate reasonable accommodation. Tynan v. Vicinage 13 of Superior Court, 798 A.2d 648,

656–57 (N.J. Super. App. Div. 2002) (citing Taylor v. Phoenixville School District, 184 F.3d 296,

312 (1999) (quoting Mengine v. Runyon, 114 F.3d 415, 419–20 (3d Cir. 1997))).

The Court begins by observing that Defendants’ arguments do not challenge whether the

Complaint sufficiently alleges Curro was disabled within the meaning of the NJLAD. Therefore,

the Court concludes for the purposes of the Motion to Dismiss, where a plaintiff’s allegations are

taken as true, that Curro’s allegations of herniated discs constitute a disability as contemplated by

the NJLAD and the first prong of a failure-to-accommodate case.

Defendants contend Curro has not alleged facts to support the second prong, whether

Defendants knew of his alleged disability. The Court disagrees. From a review of the Complaint

it is apparent Curro clearly, even if sparsely, alleges his manager, Gallino, and his supervisors were

upset about the workers’ compensation claim arising from the car accident in which Curro suffered

“severe back injuries, including herniated discs.” (See ECF No. 1-1 ¶¶ 9, 11.) Curro further alleges

his manager threatened to fire Curro as a result of Plaintiff’s pursuit of a workers’ compensation

claim. (Id. ¶ 11.) If HD Supply knew about the workers’ compensation claim, it follows Defendants

knew about Curro’s alleged disability.

Defendants further contend Curro has not alleged facts indicating Curro requested

accommodations or assistance for his disability. Curro’s arguments infer two theories on requests

for accommodations. First, Curro suggests the workers’ compensation claim itself was a request

for accommodation. (See ECF No. 5 at 31 (“management had become upset with his accident and

accommodations he was pursuing, including his workers’ compensation filing”).) Second, Curro

indicates the June 2017 report “regarding harassment and discrimination” was a request for

accommodation. (ECF No. 1-1 ¶¶ 12-14.)

The New Jersey Supreme Court recently examined the contours of defining what

constitutes reasonable accommodations in Caraballo v. City of Jersey City Police Dep’t., 204 A.3d

254 (2019). At issue was whether medical treatment qualified as a reasonable accommodation

under the NJLAD. Id. at 261. The Court stated that because the NJLAD does not specifically

address the concept of failure to accommodate, New Jersey’s courts evaluate NJLAD claims “in

accordance with the [American’s With Disabilities Act].” Id. at 267 (quoting Grande v. St. Clare’s

Health Sys., 164 A.3d 1030, 1041 (N.J. 2017)). The Court held that the term reasonable

accommodation focuses on modification of work environments and the removal of workplace

barriers in an “attempt to accommodate the physical disability of the employee,” but courts “do

not require the employer ‘to acquiesce to the disabled employee’s requests for certain benefits or

remuneration.’” Id. (citing Raspa v. Office of Sheriff of Gloucester, 924 A.2d 435 (2007)

(quoting Jones v. Aluminum Shapes, Inc., 772 A.2d 34, 43 (N.J. Super. App. Div. 2001))).

Specifically, the Court found that a medical procedure sought by the plaintiff was neither a

modification to the work environment nor a removal of a workplace barrier and the request for

surgery could not therefore qualify as a reasonable accommodation under the NJLAD. Caraballo,

204 A.3d at 261–63.

The principles of Caraballo make clear that, because a workers’ compensation claim also

is not a modification of a work environment nor removal of workplace barriers, a workers’

compensation claim cannot constitute a request for accommodation. Consequently, Curro has not

pleaded facts on this theory sufficient to satisfy the second prong.

The Court now considers Curro’s second theory, that his June 2017 report constituted a

request for accommodation.

The Complaint states Curro “filed” a detailed report on harassment and discrimination.

(ECF No. 1-1 ¶ 12.) The Complaint does not state either for whom this June 2017 report was

intended or who received it. The Complaint states the report included the fact that Curro was

“being targeted and/or retaliated against due to his filing of a workers’ compensation claim.” (Id.)

The report also included the claim that HD Supply “has violated a number of statutes in New

Jersey,” such as the NJLAD, CEPA and the state’s Workers’ Compensation Law. (Id.) According

to the Complaint, the report accused the company of “forcing him and other sales employees to

work excessive hours and in unsafe working conditions, including forcing them to violate motor

vehicle and other safety laws to meet unrealistic quotas regarding sales calls. (Id. at 14.) Curro

concludes that “Defendants also failed to accommodate plaintiff’s disability by terminating him

during a time where he was entitled to certain reasonable accommodations” and “failed to engage

plaintiff in the interactive process as to these reasonable accommodations.” (Id. ¶ 22.)

The Third Circuit has stated when “an employer has adequate notice of an employee’s

disability, and the employee requests accommodations for the disability, it becomes the

responsibility of the employer to ‘engage the employee in the interactive process of finding

accommodations.’” Armstrong v. Burdette Tomlin Mem’l Hosp., 438 F.3d 240, 246 (3d Cir. 2006)

(citing Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 317–320 (3d Cir. 1999). Here, the Court

concludes Defendants had adequate notice of Curro’s disability. However, the Court also

concludes Curro failed to plead any facts demonstrating he requested accommodations for

disability. Curro is “not required to show that he had requested a particular accommodation, which

the employer refused, but rather only that the employer knew of the disability and the employee’s

desire for an accommodation. Armstrong, 438 F.3d at 246.

Curro’s June 2017 report, as described in the Complaint, does not satisfy even this low bar

because the Report is not a request for accommodation for his disability, even in the most general

of terms. Rather, as described in the Complaint, the report raises issues applicable to any and/or

all field representatives, such as: “plaintiff maintained that these quotas forced sales staff to work

excessive hours without additional compensation and would necessarily require employees to

violate motor vehicle, safety and/or parking laws to meet such quotas.” (ECF No. 1-1 ¶ 15.) It is

clear Curro was raising issues affecting the “sales staff” generally and not only those employees

affected by herniated disc problems.

Even were the Court inclined to construe the June 2017 report as a request for

accommodation, which it is not, Curro also fails to sufficiently plead facts supporting the fourth

prong, which asks whether Curro’s disability could have been reasonably accommodated but for

HD Supply’s lack of good faith. The Supreme Court has held that in employment discrimination

cases, a plaintiff is not required to establish a prima facie case at the pleadings stage. See Kelly v.

HD Supply Holdings, Inc., No. 14-372, 2014 WL 5512251, at *3 (D.N.J. Oct. 31, 2014) (citing

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510, 122 S. Ct. 992, 152 L.Ed.2d 1 (2002).

Nonetheless, in the Complaint Curro has not even alleged that his alleged disability could be

accommodated, let alone alleging what accommodations he requested. Accordingly, Defendants’

Motion to Dismiss Count One’s failure-to-accommodate claim for the failure to state a claim is

GRANTED.

ii. Count Two

Defendants similarly contend Count Two’s LAD retaliation claim should be dismissed

because Curro failed to allege sufficient facts in support of his allegations. (ECF No. 4-1 at 6.)

Specifically, Defendants maintain the Complaint does not contain “the slightest indication of what

constituted the ‘discriminatory’ or ‘harassing’ behavior” allegedly violative of the LAD that Curro

believed had occurred.

The NJLAD makes it illegal “[f]or any person to take reprisals against any person because

that person has opposed any practices or acts forbidden under this act[.]” Battaglia v. United

Parcel Serv., Inc., 70 A.3d 602, 619 (N.J. 2013) (quoting N.J. Stat. Ann. 10:5–12(d)). To make a

case of retaliation under the NJLAD, Curro must show (1) he engaged in a protected activity; (2)

he suffered an adverse employment action; and (3) there was a causal connection between the

protected activity and the adverse employment action. Sgro v. Bloomberg L.P., 331 F. App’x 932,

939 (3d Cir. 2009) (citing Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir. 2001) (citations

omitted)). The NJLAD is clear that Curro must show he engaged in activity protected by the

NJLAD. See N.J. Stat. Ann. 10:5-12(d). Disability is a status protected by the NJLAD. N.J. Stat.

Ann. 10:5–12(a).3

Curro alleges Defendants retaliated against him, ultimately by terminating his employment,

because of his disability and because he complained about harassment and discrimination he

experienced after he filed a workers’ compensation claim based on a disability arising from a

workplace-related accident. (ECF No. ¶ 12.). In so alleging, Curro has sufficiently pleaded a claim

for retaliation under the NJLAD.

The Court agrees the Complaint’s factual details are sparse. However, the case law is clear

that “as long as the complaint is made in a good faith belief that the conduct complained of violates

the LAD, it suffices for purposes of pursuing a cause of action.” Battaglia, 214 N.J. at 549, 70

A.3d at 620. Taking Curro’s allegations as true, as required for a Rule 12(b)(6) Motion, the Court

concludes Defendants’ Motion to Dismiss Count Two for the failure to state a claim is DENIED.

IV. CONCLUSION

For the reasons set forth above, Defendants’ Motion to Dismiss Count One is GRANTED,

while Defendants’ Motion to Dismiss Count Two is DENIED. An appropriate Order follows.

Date: June 29, 2020 /s/ Brian R. Martinotti___________

HON. BRIAN R. MARTINOTTI

UNITED STATES DISTRICT JUDGE

3 The NJLAD lists the following as protected statuses: “the race, creed, color, national origin,

ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual

orientation, genetic information, pregnancy, sex, gender identity or expression, disability or

atypical hereditary cellular or blood trait of any individual, or because of the liability for service

in the Armed Forces of the United States or the nationality of any individual, or because of the

refusal to submit to a genetic test or make available the results of a genetic test to an employer, to

refuse to hire or employ or to bar or to discharge or require to retire, unless justified by lawful

considerations other than age, from employment such individual or to discriminate against such

individual in compensation or in terms, conditions or privileges of employment.” N.J. Stat. Ann.

§ 10:5-12(a).