ROTH v. CLEARCHOICE MANAGEMENT SERVICES, LLC

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ABIGAIL ROTH,

No. 1:21-cv-20440-NLH-EAP

Plaintiff,

v.

OPINION

CLEARCHOICE MANAGEMENT

SERVICES, LLC,

Defendant.

APPEARANCES:

ABIGAIL ROTH

1733 WALLACE STREET, APT. 1F

PHILADELPHIA, PA 19130

Plaintiff Appearing Pro Se.

ANASTASIA ANNE STYILANOU, ESQ.

LAUREN JILL MARCUS, ESQ.

LITTLER MENDELSON, P.C.

ONE NEWARK CENTER,

1085 RAYMOND BOULEVARD, 8TH FLOOR

NEWARK, NJ 07102

On behalf of Defendant ClearChoice Management Services,

LLC.

HILLMAN, District Judge

This matter is presently before the Court by way of

ClearChoice Management Services, LLC’s (“Defendant”) Motion to

Dismiss or in the Alternative for a More Definite Statement

regarding Abigail Roth’s (“Plaintiff”) claims of sexual

harassment and assault at her former workplace. (ECF No. 1 at

10-11). For the reasons expressed below, to the extent that

Plaintiff attempts to allege a claim under Title VII,

Defendant’s Motion to Dismiss will be granted and Plaintiff will

have thirty (30) days to amend her Complaint to address the

deficiencies noted below. To the extent that Plaintiff alleges

a claim under the NJLAD, Defendant’s Motion to Dismiss will be

denied.

BACKGROUND

Plaintiff worked for Defendant from February 11, 2019 to

October 7, 2019. (Id.). Plaintiff alleges that a coworker

began to physically assault and sexually harass her shortly

after her hire. (Id. at 10, 11). Plaintiff alleges that these

assaults would take place at the required morning staff

meetings, where the coworker would rub her back and shoulders.

(Id. at 10). Plaintiff asserts that she was required to meet

with this coworker one-on-one with the door closed where he

purportedly “stared and gawked” at Plaintiff and “undressed

[her] with is eyes.” (Id.). Before the beginning of May 2019,

another coworker pulled Plaintiff aside, allegedly asking and

noting that the interactions were not welcomed and allegedly

stated that she would speak to the offending coworker. (Id.).

Plaintiff asserts that the harassment continued, and on May 30,

2019, she was allegedly forced to accept a ride home from the

offending coworker after a cancelled training which caused

emotional distress to Plaintiff. (Id.). Plaintiff thereafter

brought these issues to the attention of a Regional Development

Manager in July of 2019. (Id. at 11). Plaintiff alleges that

Defendant knew of the unwelcomed conduct and did nothing to

ameliorate or correct the offending coworker’s behavior,

creating a hostile work environment, anxiety, and mental anguish

for Plaintiff. (Id.). Plaintiff alleges that she was

constructively discharged on October 7, 2019, based on the

foregoing. (Id.).

Procedurally, Defendant removed the instant case from state

court on December 9, 2021 (ECF No. 1). This Court entered an

Order to Show Cause on December 20, 2021, for the Defendant to

amend their Notice for Removal to address the ambiguity of

Defendant’s citizenship. (ECF No. 8). Defendant’s Amended

Notice for Removal filed on January 4, 2022, cured the ambiguity

with regard to Defendant’s citizenship. (ECF No. 11).

Defendant subsequently filed a Motion to Dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) or in

the Alternative For a More Definite Statement pursuant to

Federal Rule of Civil Procedure 12(e) (“Rule 12(e)”) on January

13, 2022. (ECF No. 12). On February 4, 2022, Plaintiff filed a

letter which is broadly construed as opposition to Defendant’s

motion. (ECF No. 14).1 Finally, Defendants replied on February

10, 2022. (ECF No. 15). Given this, the matter is ripe for

adjudication.

DISCUSSION

I. Subject Matter Jurisdiction

This matter was properly removed to this Court pursuant to

28 U.S.C. § 1446. This Court has jurisdiction pursuant to 28

U.S.C. § 1332, in that the parties are of diverse citizenship.

(ECF No. 11).

1 The Court notes that Plaintiff’s letter construed as a motion

in opposition, does not address the Motion to Dismiss outside of

a single paragraph stating that her complaint does not need to

specify the legal theories giving rise to her claims and that

her Complaint complied with Federal Rule of Civil Procedure 8.

(ECF No. 14 at 1). The letter focuses primarily on Plaintiff’s

opposition to removal, stating that removal was improper and

argues that Defendant’s Amended Notice of Removal was deficient.

(Id.). The Court finds that Defendant’s Amended Notice of

Removal (ECF No. 11) cured the deficiencies noted in Defendant’s

original Notice of Removal (ECF No. 1) and properly clarified

Defendant’s citizenship for diversity jurisdiction. As

Defendant explained in its reply, the citizenship of a limited

liability company is determined by the citizenship of its

members and is not based on the “domicile” or “contacts” within

a state it does business, and therefore the “domicile” of any of

the limited liability companies in the organization structure of

the Defendant is irrelevant to the diversity jurisdiction

analysis. (ECF No. 15 at 2). Ultimately, the sole member at

the end of the single member limited liability chain, Colorado

Purchaser, Inc., is incorporated in Delaware and has its

principal place of business in New York, making it a diverse

party apart from the Plaintiff, a citizen of Pennsylvania.

(Id.). It is noted that Plaintiff was employed in New Jersey

when the alleged acts took place. (Id.) To the extent that

Plaintiff’s opposition was intended to be a motion to remand for

lack of subject matter jurisdiction, that motion is DENIED.

II. Standard for Motion to Dismiss Pursuant to Rule 12(b)(6)

When considering a motion to dismiss a complaint for

failure to state a claim upon which relief can be granted

pursuant to Federal Rule of Civil Procedure 12(b)(6), a court

must accept all well-pleaded allegations in the complaint as

true and view them in the light most favorable to the plaintiff.

Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). It is well

settled that a pleading is sufficient if it contains “a short

and plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a)(2).

“While a complaint attacked by a Rule 12(b)(6) motion to

dismiss does not need detailed factual allegations, a

plaintiff’s obligation to provide the ‘grounds’ of his

‘entitle[ment] to relief’ requires more than labels and

conclusions, and a formulaic recitation of the elements of a

cause of action will not do . . . .” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (alteration in original)

(citations omitted) (first citing Conley v. Gibson, 355 U.S. 41,

47 (1957); Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc.,

40 F.3d 247, 251 (7th Cir. 1994); and then citing Papasan v.

Allain, 478 U.S. 265, 286 (1986)).

To determine the sufficiency of a complaint, a court must

take three steps: (1) the court must take note of the elements a

plaintiff must plead to state a claim; (2) the court should

identify allegations that, because they are no more than

conclusions, are not entitled to the assumption of truth; and

(3) when there are well-pleaded factual allegations, a court

should assume their veracity and then determine whether they

plausibly give rise to an entitlement for relief. Malleus v.

George, 641 F.3d 560, 563 (3d Cir. 2011) (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 664, 675, 679 (2009) (alterations,

quotations, and other citations omitted).

A district court, in weighing a motion to dismiss, asks

“not whether a plaintiff will ultimately prevail but whether the

claimant is entitled to offer evidence to support the claim.”

Twombly, 550 U.S. at 563 n.8 (quoting Scheuer v. Rhoades, 416

U.S. 232, 236 (1974)); see also Iqbal, 556 U.S. at 684 (“Our

decision in Twombly expounded the pleading standard for ‘all

civil actions’ . . . .”); Fowler v. UPMC Shadyside, 578 F.3d

203, 210 (3d Cir. 2009) (“Iqbal . . . provides the final nail in

the coffin for the ‘no set of facts’ standard that applied to

federal complaints before Twombly.”). “A motion to dismiss

should be granted if the plaintiff is unable to plead ‘enough

facts to state a claim to relief that is plausible on its

face.’” Malleus, 641 F.3d at 563 (quoting Twombly, 550 U.S. at

570).

A court in reviewing a Rule 12(b)(6) motion must only

consider the facts alleged in the pleadings, the documents

attached thereto as exhibits, and matters of judicial notice.

S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd.,

181 F.3d 410, 426 (3d Cir. 1999). A court may consider,

however, “an 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.” Pension Benefit Guar. Corp.

v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.

1993). If any other matters outside the pleadings are presented

to the court, and the court does not exclude those matters, a

Rule 12(b)(6) motion will be treated as a summary judgment

motion pursuant to Rule 56. Fed. R. Civ. P. 12(b).

III. Standard for Motion for a More Definite Statement pursuant

to Rule 12(e)

Rule 12(e) provides, in pertinent part: “[a] party may move

for a more definite statement of a pleading to which a

responsive pleading is allowed but which is so vague or

ambiguous that the party cannot reasonably prepare a response.”

Defendants must file a motion pursuant to Rule 12(e) “before

filing a responsive pleading and must point out the defects

complained of and the details desired.” Fed. R. Civ. P. 12(e).

In the Third Circuit, a motion for a more definite statement is

granted when “the pleading is too vague or ambiguous that the

opposing party cannot respond, even with a simple denial, in

good faith, without prejudice to [itself].” MK Strategies, LLC

v. Ann Taylor Stores Corp., 567 F.Supp.2d 729, 736-37 (D.N.J.

2008). Rule 12(e) motions are a remedy for an unintelligible

pleading, but it is not to be utilized to correct a pleading

simply lacking in detail. Premier Payments Online, Inc. v.

Payment Sys. Worldwide, 848 F. Supp. 2d 513, 522 (E.D. Pa. 2012)

(citation omitted). These motions are generally disfavored “in

light of the liberal pleading standards under the Federal

Rules,” Marley v. Donahue, No. 14-1597, 2014 WL 5152618, at *1

(D.N.J. Oct. 14, 2014) (citation omitted) and can be prone to

abuse by defendants because it could require more specificity

than required by Federal Rule of Civil Procedure 8(a)(2),

therefore such motions should only be granted under “strictest

necessity.” Gittens v. Experian Info. Sols., Inc., No. 13-5534,

2014 WL 1744851, at *2 (D.N.J. Apr. 30, 2014). 12(e) motions

are within the sound discretion of the district court. Clark v.

McDonald’s Corp., 213 F.R.D. 198, 232 (D.N.J. Mar. 3, 2003).

Moreover, courts must liberally construe pleadings that are

filed pro se. Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Thus, “a

pro se complaint, however inartfully pleaded, must be held to

‘less stringent standards than formal pleadings drafted by

lawyers.’” Id. (internal quotation marks omitted). See also

Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003) (“[The

Court will] apply the applicable law, irrespective of whether

the pro se litigant has mentioned it by name.”). But while pro

se pleadings are liberally construed, “pro se litigants still

must allege sufficient facts in their complaints to support a

claim,” Owens v. Armstrong, 171 F. Supp. 3d 316, 328 (D.N.J.

2016) (quoting Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245

(3d Cir. 2013)), and pro se litigants are not exempt from

complying with federal pleading standards. See Thakar v. Tan,

372 F. App’x 325, 328 (3d Cir. 2010).

IV. Analysis

In her Complaint, Plaintiff broadly alleges discrimination

claims against Defendant. Although she does not articulate her

allegations under specific statutes or legal theories, her

Complaint can be construed to plead under Title VII, 42 U.S.C. §

2000e-2, or the New Jersey Law Against Discrimination (“NJLAD”),

N.J.S.A. 10:5-12(a). See Sims-Felton v. Hegedus, No. 11-4923,

2013 U.S. Dist. LEXIS 61183, at *16 (D.N.J. Apr. 30, 2013)

(citing Estelle v. Gamble, 429 U.S. 97, 107 (1976)). While

Defendant raised several elements of Plaintiff’s Complaint that

could be clearer, the Court finds that Plaintiff’s allegations

against Defendant are specific enough to enable them to provide

a good faith response. Therefore, the Court will deny

Defendant’s Motion in the alternative pursuant to 12(e) and will

proceed to analyze the claims Plaintiff has alleged pursuant to

12(b)(6) below.

a. Hostile Work Environment Claim2

To establish a prima facie hostile work environment claim,

a plaintiff must demonstrate: (1) she suffered intentional

discrimination because of their race or sex; (2) the

discrimination was pervasive and regular; (3) the discrimination

detrimentally affected the plaintiff; (4) the discrimination

would detrimentally affect a reasonable person of the same race

or sex in that position; and (5) the existence of respondeat

superior liability. Aman v. Cort Furniture Rental Corp., 85

F.3d 1074, 1081 (3d Cir. 1996). “The first four elements

establish a hostile work environment, and the fifth element

determines employer liability.” Mandel v. M & Q Packaging

Corp., 706 F.3d 157, 167 (3d Cir. 2013).

To violate Title VII, the harassment must be “sufficiently

severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working environment that

2 The standard under the NJLAD is phrased slightly differently,

but the results are subsumed in the Title VII analysis. To

establish a prima facie hostile work environment claim under the

NJLAD, a plaintiff must show that the harassment: (1) “would not

have occurred but for the employee’s gender; and it was (2)

severe or pervasive enough to make a (3) reasonable woman

believe that (4) the conditions of employment are altered and

the working environment is hostile or abusive.” Lehmann v. Toys

‘R’ Us, 132 N.J. 587, 603-04 (N.J. 1993); Erickson v. Marsh &

McLennan Co., 117 N.J. 539, 549-50, (N.J. 1990) (explaining that

New Jersey Supreme Court has adopted methodology of proof used

in Title VII cases for use in LAD cases); see also Martinez v.

City of Union City, No. 21-11111, 2021 WL 5195708, at *4 n.5.

(D.N.J. Nov. 8, 2021).

permeates the workplace.” Meritor Savings Bank, FSB v. Vinson,

477 U.S. 57, 65 (1986)); see also Martinez, 2021 WL 5195708, at

*4. The Third Circuit has held that “harassing conduct may be

either severe or pervasive to qualify under the second prong,”

of the analysis and that “even a single instance of harassment

can suffice to state a claim.” Castleberry v. STI Grp., 863

F.3d 259, 264 (3d Cir. 2017). However, “[i]n evaluating a

hostile work environment claim under both Title VII . . . and

the NJLAD, both the Supreme Court and the Third Circuit have

been clear that ‘offhand comments, and isolated incidents

(unless extremely serious)’ are not sufficient.” Nuness v.

Simon & Schuster, Inc., 221 F. Supp. 3d 596, 601 (D.N.J. 2016)

(quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788

(1998)).

To determine whether a work environment is hostile, “courts

look to totality of the circumstances, which should include ‘the

frequency of the discriminatory conduct; its severity; whether

it is physically threatening or humiliating, or a mere offensive

utterance, and whether it unreasonably interferes with an

employee’s work performance.’” Nuness v. Simon & Schuster,

Inc., 221 F. Supp. 3d 596, 601 (D.N.J. 2016) (quoting Mandel,

706 F.3d 157, 168 (3d Cir. 2013)).

With the foregoing in mind, this Court will now review

Plaintiff’s claim of harassment through each prong to determine

if the Complaint has sufficiently alleged facts to support a

claim of sexual harassment under Title VII and the NJLAD.

First, Plaintiff alleges that she suffered intentional

discrimination because of her sex. Plaintiff alleges that her

co-worker subjected her to unwelcomed physical contact by

“rubbing her back and shoulders” during required morning

meetings, “stared . . . at [her] chest/breasts and undressed

[her] with his eyes,” and that these actions were targeted to

her as a woman. (ECF No. 1 at 10-11). The Court finds that

this prong has been satisfied at the motion to dismiss stage.

Second, the Court must assess whether the discrimination

alleged by Plaintiff was pervasive and regular. Courts evaluate

all instances of harassment, discrimination, or intimidation as

it relates to the work environment as a whole rather than in

isolation. See Durham Life Ins. Co. v. Evans, 166 F.3d 139, 155

(3d Cir. 1999). Plaintiff’s Complaint demonstrates the

regularity of the unwelcomed conduct on its face: Plaintiff

alleges here that the unwelcomed physical conduct occurred

during the required morning meetings where the “assaults” were

“routine and repeated.” (ECF No. 1 at 10). Plaintiff further

alleged that she was subjected to more than one required closed-

door meeting with this coworker alleging that his staring made

her feel unsafe. (Id.). The allegations as plead demonstrate

pervasiveness in that the unwelcomed physical contact began

shortly after her hire, that the meetings where this took place

occurred daily, and the unwelcomed conduct continued through the

entirety of her employment with Defendant. (Id. at 10-11);

compare Reyes v. McDonald Pontiac-GMC Truck, 997 F. Supp. 614,

618 (D.N.J. Apr. 8, 1998) (“Plaintiff recounts several isolated

incidents of conduct . . . [t]he few instances illuminated by

plaintiff took place on two or three days over nearly a month’s

time.”).

Third, the discrimination detrimentally affected Plaintiff.

Plaintiff alleges that the nonconsensual encounters with the

coworker “became a source of severe mental anguish and anxiety”

and that, on at least one occasion, the coworker’s behavior left

her “terrified.” (ECF No. 1 at 10). Plaintiff alleges that the

behavior she was subjected to “constructively discharged [her]

from her position.” (Id. at 11).

Plaintiff’s recounting satisfies this requirement because

it is a subjective one, and “a relatively low hurdle to clear.”

Grazioli v. Genuine Parts Co., 409 F. Supp. 2d 569, 578 (D.N.J.

Dec. 30, 2005) (citing Harris v. Forklift Sys., Inc., 510 U.S.

17, 22, (1993)). The plaintiff is only required to “establish

that she subjectively perceived her work environment to be

hostile or abusive, and not that she suffered concrete

psychological harm.” Martinez, 2021 WL 5195708 at *5 (internal

citations and quotations omitted).

Next, the Court must determine if the discrimination as

alleged by Plaintiff would detrimentally affect a reasonable

person of the same sex in that position by evaluating several

factors, including “the frequency of the discriminatory conduct;

its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee’s work performance.”

Ivan v. County of Middlesex, 595 F. Supp.2d. 425, 451 (D.N.J.

Jan. 21, 2009) (citing Hargrave v. County of Atlantic, 262 F.

Supp.2d 393, 413 (D.N.J. 2003). Such “analysis must focus on

the totality of the circumstances.” Hargrave, 262 F. Supp.2d at

413-14 (internal citations omitted).

Here, Plaintiff alleges that the unwelcomed physical

contact occurred repeatedly, in front of others while at

required meetings which caused “severe mental anguish and

anxiety,” which this Court finds sufficient at this stage to

demonstrate a frequency that would perturb a reasonable person.

(ECF No. 1 at 10). The conduct was open and obvious enough to

others that in May of 2019, the office manager pulled Plaintiff

aside to ask Plaintiff if the alleged behavior was “undesired

and whether they made Plaintiff uncomfortable” to which

Plaintiff confirmed it was unwelcomed. (Id.). Because the

unwelcomed conduct occurred during meetings that Plaintiff’s job

required her to participate in on a regular basis, such

allegations suggest that the conduct was sufficient to disrupt a

reasonable person’s workplace performance. (Id.). Moreover,

Plaintiff has alleged at least one incident involving a car ride

that left her “terrified,” suggesting at least some indicia of

physically threatening behavior. (Id.). Given the overall

context of the alleged harassment happening at routine and

required meetings, both in front of others and “behind closed

doors,” (Id.) the Court finds that Plaintiff’s pleading

satisfies the fourth prong.

Finally, the Court must determine if, in the instant case,

Plaintiff has alleged the existence of respondeat superior

liability. “The basis of an employer’s liability for a hostile

work environment claim depends on whether the harasser is the

victim’s supervisor or coworker.” Mandel, 706 F.3d at 169

(citing Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d

100, 104 (3d Cir. 2009)). An employer is vicariously liable to

a victimized employee “for an actionable hostile environment

created by a supervisor with immediate (or successively higher)

authority over the employee” or if “the person charged with

creating the hostile environment is the plaintiff’s co-worker,

and not a supervisor, liability exists [only] where the

[employer] knew or should have known of the harassment and

failed to take prompt remedial action.” Hitchens v. Montgomery

Cty., 278 F. App’x 233, 235-36 (3d Cir. 2008) (internal

citations and quotations omitted).

In the instant matter, Plaintiff clearly alleges that the

Defendant was “on notice” of the alleged harassment. First, the

unwelcomed physical contact would occur at daily meetings where

various attendees purportedly witnessed the behavior including

the office manager, who purportedly pulled Plaintiff aside after

one meeting in the beginning of May, confirmed the unwelcomed

nature of the conduct, and allegedly said that she would

“address the concern” with the problematic coworker. (ECF No. 1

at 10). Plaintiff alleges that she went to the office manager a

second time on May 30, 2019 to inform the manager of the car

ride that left her “terrified.” (Id.). Plaintiff alleges that

when the behavior continued unabated, she had a “sit-down

meeting” in July with the regional development manager to

explicitly address her concerns and told her that “Plaintiff did

not feel comfortable alone with [the coworker] in his office.”

(Id. at 11). Given this, at the motion to dismiss stage,

Plaintiff has alleged sufficient facts to satisfy the fifth

element of a prima facie case of harassment.

Given the above, Plaintiff has stated sufficient facts to

state a plausible claim of sexual harassment. However, the

Court must also address the additional procedural requirements

to bring such claims to Federal Court under Title VII and the

NJLAD.

b. Title VII

Title VII requires that plaintiffs exhaust all

administrative remedies, (Kopko v. Lehigh Valley Health Network,

776 Fed. App’x 768, 773 (3d Cir. 2019)), and timely file a

complaint after that process is complete in order to bring a

claim to Federal Court. Here, Plaintiff does not address in her

Complaint whether or not she has timely filed with the Equal

Employment Opportunity Commission (“EEOC”) or received a right-

to-sue letter. Timely filing with the EEOC, receiving a right-

to-sue letter, and filing a case in Federal court within the

statute’s filing deadline are necessary prerequisites to any

Title VII suit. Burgh v. Borough Council of Borough of

Montrose, 251 F.3d 465, 469, (3d Cir. 2001) (stating that under

Title VII, before a plaintiff can file suit for race

discrimination, he must first file a charge with the Equal

Employment Opportunity Commission within 180 days of the

occurrence of the alleged unlawful employment practice);

Anjelino v. New York Times Co., 200 F.3d 73, 87 (3d Cir. 1999)

(stating that a right-to-sue letter is required before a

plaintiff can bring a Title VII suit).

Because Plaintiff has failed to demonstrate compliance with

these requirements, her Title VII claim must be dismissed.

However, because there is some possibility that Plaintiff could

provide additional details to properly assert her Title VII

claims that dismissal will be without prejudice. Cunningham v.

Albright College, No. 20-01429, 2020 WL 7640192, at *6 n.8 (E.D.

Pa. Dec. 23, 2020). Given the strict timeliness requirements of

Title VII claims, if Plaintiff’s claim was dismissed and she was

to refile, Plaintiff could become precluded from bringing her

claim. Williams v. Township of Lakewood, No. 17-11401, 2020 WL

7391009, at *6 (D.N.J. Dec. 15, 2020) (“The Third Circuit has

strictly construed [Title VII’s filing deadlines] and held that,

in the absence of some equitable basis for tolling, a civil suit

filed even one day late is time-barred and may be dismissed.”)

(internal citation and quotations omitted). Therefore, the

Court will grant Plaintiff thirty (30) days to amend her

Complaint to address the deficiencies set forth in this Opinion

related to a Title VII claim if she is able to do so.

c. NJLAD

All NJLAD claims have a two-year statute of limitations.

See Anjelino, 200 F.3d at 68 (citing Montells, 133 N.J. at 627

(“[T]he Montells court found that the two-year statute of

limitations would apply uniformly to all NJLAD claims[.]”).

However, courts have recognized that some conduct covered by the

NJLAD is “continuing in nature” and inappropriate to measure

“the running time” of the statute of limitations period from the

first occurrence of the discrimination. Bronze Shields Inc. v.

New Jersey Dept. of Civ. Serv., 667 F.2d 1074, 1081 (3d Cir

1981). The continuing violation doctrine is the equitable

exception to the application of the statute of limitations that

may apply “when a defendant’s conduct is part of a continuing

practice,” Snyder v. Baxter Healthcare, Inc., 393 F. App’x 905,

909 (3d Cir. 2010) (quoting Brenner v. Local 514, United Bhd. of

Carpenters and Joiners of Am., 927 F.2d 1283, 1295 (3d Cir.

1991) (internal quotation marks omitted), such as in a case of

repeated sexual harassment.

Where there is a continuing practice, “an action is timely

so long as the last act evidencing the continuing practice falls

within the limitations period.” Id. For the Court to find a

continuing practice of conduct, “a plaintiff must establish that

the defendant’s conduct is more than the occurrence of isolated

and sporadic acts.” West v. Philadelphia Elec. Co., 45 F.3d

744, 755 (3d Cir. 1995) (internal quotations and citation

omitted) (overruled in part on other grounds). To establish a

continuing practice, the Court must analyze two factors: whether

the violations were related in subject matter and whether the

acts were recurring. Bennett v. Susquehanna County Children &

Youth Servs., 592 Fed. App’x 81, 84 (3d Cir. 2014).

Regarding the timeliness of a NJLAD claim, Plaintiff’s

claim would not be time-barred with the application of the

continuing violations doctrine. Plaintiff’s claim is emblematic

of the continuing violations doctrine: the alleged harassing

behaviors were repeated over the course of Plaintiff’s

employment with Defendant and were all related to Plaintiff’s

sex. Plaintiff filed her claim in state court on October 7,

2021, which was within the two-year statute of limitations on

NJLAD claims based on the last act, her constructive discharge

on October 7, 2019. (ECF No. 1 at 10).

Given this, the Court finds that Plaintiff has alleged

sufficient facts for a NJLAD claim to survive at this stage.

CONCLUSION

For the reasons expressed above, to the extent that

Plaintiff attempts to allege a claim under Title VII,

Defendant’s Motion to Dismiss or in the Alternative for a more

Definitive Statement, (ECF No. 12) will be granted and Plaintiff

will have thirty (30) days to amend her Complaint to address the

deficiencies noted above. To the extent that Plaintiff alleges

a claim under the NJLAD, Defendant’s Motion to Dismiss will be

denied. Because the Complaint alleged sufficient facts and was

addressed pursuant to Rule 12(b)(6), to the extent that

Defendant’s motion argues for Plaintiff to provide a more

definite statement pursuant to Rule 12(e), such part of

Defendant’s motion will be denied.

An appropriate Order will be entered.

Date: September 2, 2022 /s Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.