Nuness v. Simon & Schuster, Inc.

• Decision Date: 17 November 2016
• Docket Number: Civil No. 16–2377 (JBS/KMW)
• Citation: 221 F.Supp.3d 596
• Parties: Tyshanna NUNESS, Plaintiff, v. SIMON AND SCHUSTER, INC; CBS Corp; John Does 1–100; ABC Corps 1–100, Defendants.
• Court: U.S. District Court — District of New Jersey

221 F.Supp.3d 596

Tyshanna NUNESS, Plaintiff,

v.SIMON AND SCHUSTER, INC; CBS Corp; John Does 1–100; ABC Corps 1–100, Defendants.

Civil No. 16–2377 (JBS/KMW)

United States District Court, D. New Jersey.

Signed November 17, 2016

Toni L. Telles, Esq., LANCE BROWN & ASSOCIATES, LLC, 1898 Route 33, Hamilton, NJ 08690, Attorney for Plaintiff

Paul C. Evans, Esq., MORGAN, LEWIS & BOCKIUS LLP, 1701 Market St., Philadelphia, PA 19103, Attorney for Defendants

OPINION

SIMANDLE, Chief Judge:

I. INTRODUCTION

Plaintiff Tyshanna Nuness ("Plaintiff" or "Ms. Nuness") filed this lawsuit against her employers Simon & Schuster, Inc. and CBS Corp. ("Defendants") under the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5–1 et seq. , as she specifically brings claims of racial harassment, constructive discharge, and retaliatory discharge. Plaintiff alleges that a co-worker harassed her on one occasion by calling her a racial epithet, and after Defendants suspended the co-worker for a week and subsequently placed him back on the same shift as Plaintiff, she felt so uncomfortable that she had no choice but to resign.

Presently before the Court is Defendants' motion to dismiss all claims pursuant to Fed. R. Civ. P. 12(b)(6). [Docket Item 8.] For the reasons set forth below, the Court will grant in part and deny in part Defendants' motion without prejudice.

II. BACKGROUND

A. Factual Background

The Amended Complaint alleges that from February 1, 2014 to March 20, 2015, Plaintiff, a female African–American line picker employed by Defendants, worked in "close proximity" and "alongside" Christopher Hankins, a male Caucasian line picker. (Am. Compl. at ¶¶ 4, 6–10, 20–21.) Prior to the March 1, 2015 incident described below, Mr. Hankins was "often in trouble for speaking inappropriately towards co-workers," and Defendants had even "held a department meeting" regarding his inappropriate behavior prior to the incident at issue, but did not take any further disciplinary action at that time. (Id. at ¶¶ 11–13.)

On March 1, 2015, Mr. Hankins referred to Plaintiff as a "niglet"—a "racist remark[ ]" that "highly offended" her. (Id. at ¶¶ 14–15, 22.) Plaintiff reported the incident to her immediate supervisor, Marcellus Williams ("Ms. Williams") when it occurred, and Ms. Williams forwarded the complaint to the Director of Human Resources, Jacqueline Tuccillo ("Ms. Tuccillo"). (Id. at ¶¶ 16–17.) Defendants decided to suspend Mr. Hankins for one week given his inappropriate conduct, but Defendants then placed him back on the same shift as Plaintiff, thereby "forc[ing]" Ms. Nuness to work in "close proximity" to the same person who uttered the epithet. (Id. at ¶¶ 18–20.) Because Plaintiff now "felt uncomfortable and unsafe" working near Mr. Hankins, she alerted Ms. Williams and Ms. Tuccillo about her concerns, and she requested that either Mr. Hankins be placed in a different department or on a different shift, or that she be transferred to a different department or shift. (Id. at ¶¶ 21–24.) Defendants denied Plaintiff's request, despite the availability of "multiple departments and shifts available for either party," so Plaintiff and Mr. Hankins continued to work together on the same shift in the same department. (Id. at ¶¶ 25–26.) There is no allegation that Mr. Hankins ever repeated any racial epithet towards Ms. Nuness. Plaintiff then notified Ms. Tuccillo that she still "felt uncomfortable coming to work" because of Mr. Hankins's prior racist comment, and informed Ms. Tuccillo that she would be contacting an attorney. (Id. at ¶¶ 28, 31.) Ms. Tuccillo replied that "if she did not come to work she would be resigning." (Id. at ¶ 33.) Because she "could no longer tolerate the racially charged environment," Plaintiff was absent from work for approximately one week. (Id. at ¶¶ 35–36.) On March 20, 2015, Ms. Tuccillo informed Plaintiff that her employment was terminated. (Id. at ¶ 37.)

B. Procedural History

Plaintiff filed suit against Defendants in the Superior Court of New Jersey, Burlington County, Law Division on January 29, 2016, and Defendants removed the action to this Court pursuant to 28 U.S.C. § 1441 et seq . on April 27, 2016. [Docket Item 1.] Plaintiff filed an Amended Complaint on May 18, 2016. [Docket Item 5.] Defendants then filed a motion to dismiss all claims pursuant to Fed. R. Civ. P. 12(b)(6) on May 27, 2016. [Docket Item 8.]

III. STANDARD OF REVIEW

When considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted under Fed. R. Civ. P. 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 nonmoving party. A motion to dismiss may be granted only if a court concludes that the plaintiff has failed to set forth fair notice of what the claim is and the grounds upon which it rests that make such a claim plausible on its face. Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Although Rule 8 does not require "detailed factual allegations," it requires "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).

Although the court must accept as true all well-pleaded factual allegations, it may disregard any legal conclusions in the complaint. Fowler v. UPMC Shadyside , 578 F.3d 203, 210–11 (3d Cir. 2009). A plaintiff should plead sufficient facts to "raise a reasonable expectation that discovery will reveal evidence of the necessary element," Twombly , 550 U.S. at 556, 127 S.Ct. 1955, and "[a] pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.

Whether a proposed amendment to the complaint should be permitted at this early stage, when leave to amend should be freely granted under Rule 15(a)(2), is generally measured by whether the proposed amendment would be futile. Adams v. Gould, Inc. , 739 F.2d 858, 864 (3d Cir. 1984). "Futility" means that the complaint, as amended, would fail to state a claim upon which relief could be granted. Travelers Indem. Co. v. Dammann & Co. , 594 F.3d 238, 243 (3d Cir. 2010) ; Shane v. Fauver , 213 F.3d 113, 115 (3d Cir. 2000). In assessing "futility," the court applies the same standard of legal sufficiency as applies under Rule 12(b)(6). Shane , 213 F.3d at 115. Thus, if a claim is vulnerable to dismissal under Rule 12(b)(6) and the Court finds that an amendment would not cure the deficiency, the request to amend will be denied.

IV. ANALYSIS

A. Racial Harassment Claim

In Count I of her Amended Complaint, Plaintiff asserts a claim of racial harassment against Defendants under the New Jersey Law Against Discrimination ("NJLAD"). Section 10:5–12(a) of the NJLAD makes it unlawful for an employer to discriminate against an individual because of that person's disability or race. N.J.S.A. § 10:5–12(a). To succeed on a racial harassment claim based upon a hostile work environment, Plaintiff must demonstrate that "the defendant's conduct (1) would not have occurred but for the employee's race; and the conduct was (2) severe or pervasive enough to make a (3) reasonable African American believe that (4) the conditions of employment are altered and the working environment is hostile or abusive." Caver v. City of Trenton , 420 F.3d 243, 262 (3d Cir. 2005) (citations omitted). Defendants argue that the utterance of a single remark by a co-worker does not meet the standard of severe or pervasive conduct necessary to properly plead a hostile work environment claim. (Def. Br. at 4.) Additionally, they argue that Plaintiff has not plead enough facts demonstrating that Defendants are vicariously liable for the conduct of an employee. (Id. at 3–4.)

1. Severe or Pervasive Conduct

Defendants argue that while the use of the term "niglet" is "clearly insensitive" and "not condoned," it does not meet the severe or pervasive standard necessary to plead racial harassment. (Id. at 3–4.) The Court agrees. In evaluating a hostile work environment claim under both Title VII of the Civil Rights Act of 1964 ("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. Faragher v. City of Boca Raton , 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) ; Caver , 420 F.3d at 262. Severe or pervasive harassment can be distinguished from the "mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee." Meritor Sav. Bank, FSB v. Vinson , 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). In determining if a work environment is hostile or abusive, 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." Mandel v. M & Q Packaging Corp. , 706 F.3d 157, 168 (3d Cir. 2013) (quoting Harris v. Forklift Sys., Inc. , 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) ); see also Caver , 420 F.3d at 262–63 ("[A] discrimination analysis must concentrate not on individual incidents, but on the overall scenario."). The "sine qua non of a hostile work environment claim is a ‘workplace ... permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. Fitzgerald v. Shore Memorial Hosp. , 92 F.Supp.3d 214, 240 (D.N.J. 2015) (citations omitted). An employment discrimination law such as the NJLAD is not intended to be a "general civility code" for conduct in the workplace. Oncale v. Sundowner Offshore Servs., Inc. , 523 U.S. 75, 80, ...