Arce v. Bank of Am.
| Decision Date | 15 November 2013 |
| Docket Number | Civil Action No. 13-cv-2776 (JAP) |
| Parties | JUAN CARLOS ARCE, Plaintiff, v. BANK OF AMERICA, JARED STEUBING, ERIC JOHNSON and COURTNEY KILEY, Defendants. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
Presently before the Court is Defendant, Bank of America, N.A.'s ("Defendant") motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) [docket #5]. Plaintiff, Juan Carlos Arce ("Plaintiff"), opposes this motion by filing a "motion to strike Defendant's motion to dismiss" [docket #6]. Defendant opposes Plaintiff's motion to strike [docket #8]. The Court considered the papers filed by the parties and rules on the written submissions without oral argument pursuant to Federal Rule of Civil Procedure 78.
For the reasons that follow, this Court GRANTS Defendant's motion to dismiss in its entirety [docket #5] and DENIES Plaintiff's motion to strike [docket #6].
Plaintiff's Complaint, received by the Court on April 30, 2013, essentially consists of ten (10) causes of action pursuant to: (1) the New Jersey Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-5 and 34:19-8; (2) false claims in violation of N.J.S.A. 2A:32C-10; (3) sexual harassment in violation of N.J.S.A. 2C:33-4; (4) Title VII of the Civil Rights Act of1964, 42 U.S.C. § 2000e; (5) slander and libel in violation of N.J.S.A. 2A:14-3; (6) the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), 38 U.S.C. §§ 4301-4335; (7) the Americans with Disabilities Act 42 U.S.C. §§ 12102, et seq.; (8) the Right to Financial Privacy Act, 12 U.S.C. § 3401; (9) the Gramm-Leach-Bliley Act, 15 U.S.C. §§ 6801, et seq.; and (10) Obstruction of Criminal Investigation in violation of 18 U.S.C. § 1510. For the sake of clarity, the Court will address Plaintiff's factual allegations specific to each cause of action in separate paragraphs.
(1) In support of his CEPA claim, Plaintiff alleges that Defendant(s) violated N.J.S.A. 34:19-5 by wrongfully terminating him on March 14, 2013. Compl., p. 4. Plaintiff claims that Defendant(s) used tardiness as the reason for terminating him and that such action constitutes wrongful termination. Compl., p. 3. Further, Plaintiff claims that Defendant used tardiness as a pretext for termination, but that he was terminated for reporting claims of sexual harassment to the human resources department. Compl., p. 3.
(2) Plaintiff makes no factual allegations, other than listing the statute in his complaint, regarding false claims in violation of N.J.S.A. 2A:32C-10. Compl., p. 3.
(3) Plaintiff asserts that Defendant Eric Johnson sexually harassed him by discussing the possibility of "opening a strip club and how profitable it would be with the consumption of alcohol" in front of Plaintiff and two female associates, Adrienne Murphy and Shanee Abbott. Compl., p. 3. Plaintiff further alleges that Defendant Eric Johnson stated to an individual named Nation Price that a customer "needed a relationship review" while gyrating and making inappropriate body motions. Compl., p. 3. Plaintiff claims that he was sexually harassed when Defendants Eric Johnson and Jared Steubing discussed how to court females, and whenDefendant Jared Steubing told Plaintiff he should use a bucket at his workstation for a bathroom. Compl., pp. 3-4.
(4) Plaintiff states that Defendant(s) violated Title VII of the Civil Rights Act by denying his constitutional right to practice his religious beliefs. Compl., p. 3. Plaintiff further alleges that Defendant(s) showed preference to non-minority clients, treated minority clients with bias, and further gave minority employees (such as Plaintiff, Shanee Abbott and Adrienne Murphy) fabricated warnings to prevent them from advancing within the company. Compl., pp. 3-4. Moreover, Plaintiff claims that Defendant failed to discipline Pooja Jajal for stating "I love the way 'you people' have the ability to do anything with your hair" and that she intended "you people" to mean black people; therefore, Defendant(s) allowed Adrienne Murphy and Shanee Abbott to be racially discriminated against. Compl., p. 4.
(5) In support of his slander and libel claims, Plaintiff alleges that he was in a meeting with individual Defendants Courtney Kiley, Jared Steubing and Eric Johnson, where he was accused in writing of running through the lobby in a loud and angry manner. Compl., p. 4. Plaintiff further claims that Defendant Jared Steubing told Plaintiff he was perceived as violent and other employees feared him1. Compl., p. 4.
(6) Moreover, Plaintiff alleges that Defendant Eric Johnson violated USERRA by stating that Plaintiff was not eligible for military pay while on duty. Compl., p. 3. Plaintiff further states that on October 12, 2012, Defendant(s) required Plaintiff to work until 1 p.m. despite his mandatory obligation to report to the Army National Guard at such time. Compl., p. 3.
(7) Plaintiff asserts that Defendant Eric Johnson violated the ADA on January 31, 2013, by telling Plaintiff he had to stand despite being aware of Plaintiff's medical restrictions. Compl., p. 4. Plaintiff further alleges that Defendant Jared Steubing told Plaintiff he would be fired if he attempted to seek any medical accommodations. Compl., p. 4.
(8) Plaintiff makes no factual allegations, other than listing the statute in his complaint, regarding a violation of the Right to Financial Privacy Act, 12 U.S.C. § 3401. Compl., p. 3.
(9) Plaintiff alleges that Defendant(s) violated the Gramm-Leach-Bliley Act by illegally asking Plaintiff to disclose account information surrounding the business of Augustus Brown. Compl., p. 4.
(10) Last, Plaintiff alleges that on March 13, 2013, Defendant(s) obstructed a criminal investigation in violation of 18 U.S.C. § 1510 by denying Plaintiff the ability to report suspicious activities, which were endangering public safety, to the authorities. Compl., p. 3.
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint if the plaintiff fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In determining the sufficiency of a pro se complaint, the Court must be mindful to construe it liberally in favor of the Plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). The Court must "accept as true all of the allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Morse v. Lower Merion Sch. Dist., 132 F. 3d 902, 906 (3d Cir. 1997). However, the Court need not credit a pro se plaintiff's "bald assertions" or "legalconclusions." Id. The factual allegations must be sufficient to raise a plaintiff's right to relief above a speculative level, such that it is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007).
The plausibility standard is satisfied "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The plausibility standard is not a "probability requirement," but "it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. To decide if a complaint meets this plausibility standard and therefore, survives a motion to dismiss, the Third Circuit has required a three step analysis: (1) the Court must "outline the elements a plaintiff must plead to . . . state a claim for relief"; (2) the Court must identify "those allegations that are no more than conclusions and thus not entitled to the assumption of truth"; and (3) "where there are well-pleaded factual allegations, [the Court] should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief." Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012); Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010).
When enacted, CEPA was considered "the most far reaching 'whistle-blower statute' in the nation." D'Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110, 120 (2007)(quoting Mehlman v. Mobil Oil Corp., 153 N.J. 163, 179 (1998)). CEPA is intended to provide protection "to vulnerable employees who have the courage to speak out against or decline to participate in an employer's actions that are contrary to public policy mandates." See Yurick v. State, 184 N.J. 70, 77 (2005). Since CEPA is a "broad, remedial legislation," it must therefore "be construed liberally" to effectuate its important social goal. D'Annunzio, 192 N.J. at 120 (). See also Donelson v. DuPont Chambers Works, 206 N.J. 243, 256 (2011).
In order to sufficiently plead a CEPA claim, a Plaintiff must allege that "(1) [he or she] reasonably believed that the employer's conduct was violating either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy; (2) he or she performed a "whistle-blowing" activity described in N.J.S.A. 34:19-3c; (3) an adverse employment action was taken against the plaintiff employee; and (4) a causal connection exists between the whistle-blowing activity and the adverse employment action." White v. Smiths Detection, Inc., 2010 WL 4269424, at *-- (D.N.J. Oct. 22, 2010)(citing Dzwonar v. McDevitt, 177 N.J. 451, 462 (2007)). A CEPA plaintiff need not demonstrate "that the activity complained of ... [constituted] an actual violation of a law or regulation," but simply that he or she "'reasonably believes' that to be the case." Id. (quoting Estate of Roach v. TRW, Inc., 164 N.J. 598, 613 (2000)).
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