FOSTER v. JET AVIATION FLIGHT SERVICES, INC.

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Civil Action No. 18-15767 (WJM)

RONALD FOSTER,

Plaintiff,

i OPINION

JET AVIATION FLIGHT SERVICES,

INC., JET AVIATION HOLDINGS USA,

INC., BERNARD CARLISLE,

WILLIAM BEUKA, and DONALD

HALOBURDO,

Defendants.

FALK, U.S.M.J.

This is an employment discrimination case. Before the Court is Plaintiff Ronald

Foster’s motion for leave to amend his Complaint. Plaintiff seeks leave to add five

defendants, members of senior management of his former employer, and to assert new

claims for wrongful termination and failure to rehire on account of race and age.

(CM/ECF No. 67.) Defendants oppose the motion. The motion is decided on the

papers. Fed.R.Civ.P. 78(b). For the reasons set forth below, the motion is granted in

part and denied in part.

BACKGROUND

A. Factual background and procedural history

Plaintiff, Ronald Foster (“Plaintiff” or “Foster”), is a 65-year-old African

American man. Defendant Jet Aviation Flight Services, Inc. (“JAFS”) is an entity in

the business of providing private jet charter services.

Foster was hired by JAFS in August 2014, as an accounting manager.1 (Second

Am. Compl. ¶¶ 35-37.) According to Plaintiff, during the course of his employment

with JAFS, two of its officers, Defendants William Beuka (“Beuka”) and Donald

Haloburdo (“Haloburdo”), told him that he would be promoted to Controller upon the

then-Controller’s retirement. (Id. ¶¶ 56-73.) The Controller retired in December 2016.

At around the same time, Defendant Bernard Carlisle (“Carlisle”), another officer of

JAFS, allegedly made disparaging remarks about Foster’s age, implying that Plaintiff

should not be promoted to Controller because he was too old. (Id. ¶¶ 79-80.) Foster

claims Carlisle, along with Beuka and Haloburdo, collectively denied him the

promotion on account of Plaintiff’s age and race. (Id. at ¶¶ 74-80.) Beuka and

Haloburdo are both Caucasian and younger than Plaintiff. (Id. ¶¶ 51-55.) According to

Foster, the person hired as the new Controller was Caucasian, markedly younger than

Plaintiff, and less qualified than him. (Id. ¶¶ 109-114; Proposed Third Am. Compl.

(“TAC”) ¶¶ 115-121.)

1 Plaintiff alleges he was employed by JAFS, as well as its related entities. See infra n. 2.

In March 2018, Plaintiff filed a Charge of Discrimination (“EEOC Charge”)

with the Equal Employment Opportunity Commission. (“TAC” ¶¶ 6, 126.) The

Charge asserted that Defendants denied Plaintiff a promotion in December 2016, on

account of race and age discrimination.

On November 7, 2018, Foster filed a Complaint against JAFS, and its related

companies2, asserting claims of age and race discrimination in violation of Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., the New Jersey Law Against

Discrimination (“NJLAD”), N.J.S.A. 10:5-1, et seq., as well as breach of contract and

other state law claims. Plaintiff amended his Complaint twice3, adding Carlisle, Beuka

and Haloburdo as defendants.4 Thereafter, The Court entered an Order on July 30,

2019, referring the case to mediation and staying the matter for 60 days. Mediation was

unsuccessful. On September 25, 2019, Defendants filed an Answer to the Second

Amended Complaint. (CM/ECF No. 37.)

Foster continued to be employed by JAFS after commencement of this lawsuit.

On April 20, 2020, Foster was furloughed. (TAC. ¶ 136.) Plaintiff was terminated on

May 22, 2020. Following his termination, Plaintiff applied for the open position of

2 The Complaint named as defendants Jet Aviation Holdings USA, Inc. and General Dynamics Corporation, two

companies which Plaintiff claims are related to JAFS, and share common owners, employees, and policies on age

and race discrimination. (Compl. ¶¶ 13-19.)

3 Plaintiff filed a First Amended Complaint and Second Amended Complaint on May 28, 2019 and September 4,

2019, respectively. (CM/ECF Nos. 21, 34.)

4 Answers to the Complaint and First Amended Complaint were filed on January 28, and June 18, 2019,

respectively. (CM/ECF Nos. 9 and 23.) The Court entered an Order on July 30, 2019, referring the case to

mediation and staying the matter for 60 days. Mediation was unsuccessful.

“Holdings Accounting Specialist” at JAFS. Plaintiff was not rehired despite allegedly

being qualified for the job.

At the outset of the litigation, the Court entered a Scheduling Order which was

amended several times. The most recent amended Scheduling Order entered November

23, 2020, closes discovery on February 28, 2021. Shortly after Plaintiff’s termination

by JAFS, Plaintiff requested and was granted permission to file the instant motion for

leave to amend.

B. Foster’s motion to amend

Foster now seeks leave to amend his Complaint to add five members of the

JAFS senior management team as defendants (“Individual Defendants”)5 and assert 18

new counts under the ADEA and NJLAD for retaliatory and ageist wrongful discharge

and failure to hire which allegedly arose after the commencement of this lawsuit.

Specifically, Plaintiff seeks to add causes of action for alleged retaliation and

discrimination by five JAFS members and Carlisle which he claims participated in the

decision to furlough and terminate him in April and May 2020, and to not rehire him at

JAFS despite having open positions. Specifically, Plaintiff seeks to allege that the

wrongful actions of Carlisle and the Individual Defendants were committed in

retaliation for Plaintiff’s filing of the EEOC Charge and this lawsuit. Plaintiff also

seeks to assert claims against certain Individual Defendants and Carlisle for aiding and

5 Plaintiff seeks to add as defendants Jean Stefanski, an HR Manager, David Best, Senior Vice President of U.S.

Operations, David Paddock, a Vice President, Kenneth Pires, and Susan Seibel.

abetting the alleged age discrimination. (TAC ¶¶ 247-286.)

Defendants oppose the amendment on futility grounds. Noting that Defendants

eliminated the position of Controller in its reorganization, Defendants contend that

Plaintiff cannot state a prima facie claim for discriminatory discharge. (Def.’s Br. at 4-

5.) Defendants further argue that Plaintiff’s proposed Third Amended Complaint fails

to assert facts which would support an inference that age played any role in Plaintiff’s

furlough and termination. Pointing out that 26 months transpired between Plaintiff’s

filing of the EEOC Charge and his termination, Defendants contend that Plaintiff’s

claim for retaliation must fail because there is no plausible causal link between

Plaintiff’s actions and the May 2020 termination.

DISCUSSION

A. Legal standard

Motions to amend pleadings are governed by Federal Rule of Civil Procedure

15(a). Once a responsive pleading has been filed, “a party may amend its pleadings only

with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2).

Leave to amend is generally granted unless there is: (1) undue delay or prejudice; (2) bad

faith; (3) dilatory motive; (4) failure to cure deficiencies through previous amendment; or

(5) futility. The ultimate decision to grant or deny leave to amend is a matter committed

to the Court’s sound discretion. See, e.g., Zenith Radio Corp. v. Hazeltine Research, Inc.,

401 U.S. 321, 330 (1970). Prejudice to the non-moving party has long been the

“touchstone” for the denial of leave to amend. Mullin v. Balicki, 875 F.3d 140 (3d Cir.

2017); see also Arthur v. Maersk, Inc., 434 F.3d 196, 204 (3d Cir. 2006) (“[l]eave to

amend must generally be granted unless equitable considerations render it otherwise

unjust”).

Although tracking Rule 12(b)(6), Rule 15 futility does not contemplate substantive

motion practice on the merits of the claims:

If a proposed amendment is not clearly futile, then denial of leave to

amend is improper. This does not require the parties to engage in the

equivalent of substantive motion practice upon the proposed new claim or

defense; [it] does require, however, that the newly asserted defense appear

to be sufficiently well- grounded in fact or law that it is not a frivolous

pursuit.

Harrison Beverage Co. v. Dribeck Importers, Inc., 133 F.R.D. 463, 468 (D.N.J.1990)

(emphases added) (citations omitted); see also 6 Wright, Miller & Kane Federal Practice

and Procedure, §1487 (2d ed. 1990). Effectively, this means that the proposed

amendment must be “frivolous or advance a claim or defense that is legally insufficient

on its face . . . .” Marlowe Patent Holdings LLC v. Dice Electronics, LLC, 293 F.R.D.

688, 695 (D.N.J. 2013); see also Ashcroft v. Iqbal, 556 U.S. 662 (2009) (citing Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570, (2007)). Given the liberal standard for the

amendment of pleadings, “courts place a heavy burden on opponents who wish to declare

a proposed amendment futile.” See Pharmaceutical Sales and Consulting Corp. v. J.W.S.

Delavau Co., Inc., 106 F. Supp. 2d 761, 764 (D.N.J. 2000) (citations omitted). Thus,

“[i]f a proposed amendment is not clearly futile, then denial of leave to amend is

improper.” Harrison Beverage, 133 F.R.D. at 468 (emphasis added); see also 6 Wright,

Miller & Kane Federal Practice and Procedure, §1487 (2d ed. 1990).

B. Analysis

The Court finds, for the limited purpose of this motion, that Plaintiff’s proposed

claims against JAFS6 are not so clearly futile to warrant denial of leave to amend.

Defendants’ opposition on futility grounds contains largely merits-based arguments—

something the Court does not consider on a motion to amend. However, the Court finds

that the allegations against the Individual Defendants and Carlisle on the newly proposed

claims are insufficient and conclusory, warranting denial, without prejudice, of those

proposed claims.

By way of example, Defendants contend that Plaintiff’s “allegation completely

lacks any plausible suggestion of a causal connection between Plaintiff’s March 2018

EEOC Charge and his May 2020 termination.” (Def.’s Br. at 8.) Defendants base this

argument largely on the fact that 26 months passed between the protected activity (the

EEOC Charge) and the alleged adverse action. That may make Plaintiff’s claim against

JAFS difficult to prove, but it does not make it futile on its face. Indeed, causation is

often termed to be a classic jury issue. See Marra v. Philadelphia Housing Authority,

497 F.3d 286, 302-306 (3d Cir. 2007). The point is that Plaintiff need not prove his claim

in order to obtain leave to assert it. Plaintiff’s proposed claims need only be supported by

alleged facts. See Marlowe Patent Holdings, 293 F.R.D. at 695. Here, Plaintiff’s

proposed pleading contains factual allegations that Defendants wanted Plaintiff’s

employment to end when he filed the EEOC Charge and lawsuit and that they utilized the

6 Reference to JAFS includes its related entity Jet Aviation Holdings USA, Inc. for purposes of this decision.

pandemic and JAFS’s reorganization as a pretext to furlough and terminate him. While it

is conceivable that a finder of fact may conclude that the JAFS furloughed and terminated

Plaintiff for legitimate, non-retaliatory reasons, Plaintiff’s claim against JAFS is not

necessarily futile. The Court will not weigh the evidence and make a decision on the

merits of Plaintiff’s proposed claims which is arguably what it would be doing if it were

to deny the motion for leave as requested by Defendants.

Referring to the elements of an age discrimination claim,7 Defendants contend that

Plaintiff does not state a claim for retaliatory discharge because he does not allege that

Defendants replaced him with someone younger. (Def.’s Br. at 5.) But that is not entirely

accurate—at least from Plaintiff’s point of view. It appears that Plaintiff seeks to allege

that the “Controller” position essentially became known as “Finance Director”, and that

he was not promoted due to his age. Plaintiff also claims that the person who replaced

the former Controller (now Finance Director) was younger and less qualified than him.

These are mere allegations. They may or may not have merit. But the Court will not

make a determination as to the merits of Plaintiff’s claims when deciding whether to

allow him to assert them.

By contrast, Defendants’ futility argument as it relates to Plaintiff’s proposed

claims against the Individual Defendants and Carlisle under the NJLAD for aiding and

abetting age discrimination and unlawful retaliation has merit. Defendants argue that the

7 To state a prima facie claim of age discrimination, a plaintiff must establish: (1) he was over forty at the time in

question; (2) he was qualified for the position; (3) adverse action was taken against him; and (4) he was replaced by

another employee who was sufficiently younger to support an inference of discriminatory animus. See Smith v. N3

Oceanic,, Inc., 717 Fed. Appx. 162, 164-65 (3d Cir. 2017); Bergen Commercial Bank v. Sisler, 157 N.J. 188, 218

(1999).

proposed amended complaint fails to state a claim against the Individual Defendants and

Carlisle because it is insufficiently pleaded against them. Ashcroft v. Iqbal, 566 U.S. 662

(1992); Hurley v. Atl. City Police Dept., 174 F.3d 95, 129 (3d Cir. 1999). Specifically,

the proposed new claims are conclusory and don’t allege sufficient facts, if accepted as

true, to establish aiding and abetting liability. The Court agrees. For these reasons, any

potential new claims against the Individual Defendants and Carlisle are futile and the

request to add them is denied without prejudice.

Accordingly, Plaintiff’s request for leave to amend is granted in part and denied in

part.8

CONCLUSION

For the reasons set forth above, Plaintiff’s motion for leave to amend his

Complaint is granted in part, and denied in part.

MARK FALK

United States Magistrate Judge

Dated: February 19, 2021

8 Although prejudice is not argued at length by the parties, the Court finds that no party will suffer prejudice by the

amendment. Discovery is not set to close until February 28, 2021. (CM/ECF No. 73.) Despite the age of the case,

written discovery has been completed but the parties have yet to take depositions. (Id.) Discovery is not over and

the case will not be delayed by any amendment. Plaintiff requested permission and timely filed his motion to

amend. No prejudice will occur as a result of Plaintiff’s amendment. See Mullin, 875 F.3d at 150 (prejudice to the

non-moving party is the “touchstone” for the denial of leave to amend).