Firrello v. Macy's Inc.

• Decision Date: 23 October 2013
• Docket Number: Civil Action No. 13-cv-2277 (JAP)
• Parties: TERRI FIRRELLO, Plaintiff, v. MACY'S INC., ITS EMPLOYEES, OFFICERS, REPRESENTATIVES, DIVISIONS AND SUBSIDIARIES, Defendants.
• Court: U.S. District Court — District of New Jersey

TERRI FIRRELLO, Plaintiff, v. MACY'S INC., ITS EMPLOYEES, OFFICERS, REPRESENTATIVES,DIVISIONS AND SUBSIDIARIES, Defendants.

Civil Action No. 13-cv-2277 (JAP)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

Date: October 23, 2013

NOT FOR PUBLICATION

OPINION

PISANO, District Judge

Presently before the Court is Defendant, Macy's Inc.'s ("Defendant") motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) [docket #7]. Plaintiff, Terri Firrello ("Plaintiff"), opposes this motion [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 #7].

I. BACKGROUND

Plaintiff's Complaint, received by the Court on April 10, 2013, consists of five (5) causes of action¹ pursuant to Title VII of the Civil Rights Act, the Civil Rights Act of 1991, Sections 1981 through 1988 of Title 42 of the United States Code, the Employee Retirement IncomeSecurity Act of 1974 ("ERISA"), the Age Discrimination in Employment Act of 1967 ("ADEA"), the Family and Medical Leave Act ("FMLA"), the Fair Labor Standards Act ("FLSA"), the Equal Pay Act ("EPA"), the New Jersey Law Against Discrimination ("NJLAD"), or "any public policy, contract, tort, or common law." Compl., Count Six ¶ 2. The following allegations are taken from Plaintiff's Complaint and are accepted as true for purposes of this Court's review only.

Plaintiff was hired by Defendant on or about November 15, 1992, as a part-time night sales associate in Defendant's Bridgewater, New Jersey location. Compl., Count One ¶ 3. Throughout her employment, Plaintiff was promoted and ultimately became sales manager of cosmetics. Compl., Count One ¶ 3. On or about February 5, 2012, Plaintiff resigned from her employment with Defendant. Compl., Count One ¶ 4. Plaintiff alleges that she was treated unfairly in relation to other similarly situated employees, such as having to work more nights and weekends than others. Plaintiff further states that she was forced to resign due in part to her age² and as retaliation for expressing concerns over Defendant's business practices³. Compl., Count One ¶¶ 4 and 8. Plaintiff claims that the State of New Jersey Unemployment Agency's decision, which entitled Plaintiff to unemployment benefits, is proof of forced termination. Compl., Count One ¶ 5.

Counts One, Two, Four and Five of Plaintiff's Complaint contain similar factual allegations relating to Defendant's alleged adverse employment action, retaliation, defamation, and intent to defraud Plaintiff. None of these Counts contain citations to any law or statute.Conversely, Count Six contains no additional factual allegations but states that Defendant's actions constitute a violation of the statutes and law(s) referenced above.

II. DISCUSSION

a. Legal Standard

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). Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." This pleading standard does not require "detailed factual allegations," but it does require "more than labels and conclusions"; a "formulaic recitation of the elements of a cause of action" will not suffice. Bell Atlantic Corp. v. Twombley, 550 U.S. 544, 555 (2007). Therefore, in order to withstand a motion to dismiss pursuant to 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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 whetherthey 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).

b. Analysis

As stated above, Counts One through Five of Plaintiff's Complaint state facts without identifying any statute or law to support Plaintiff's grounds for relief. Count Six of Plaintiff's Complaint repeats and realleges all of the facts from Counts One through Five, and then lists ten (10) possible grounds for relief. This Court assumes that Plaintiff intended the grounds for relief listed in Count Six to support the factual allegations of Counts One through Five. For the sake of brevity, this Court will address each ground for relief listed in Count Six and utilize the facts set forth in all Counts.⁴

i. Title VII of the Civil Rights Act of 1964 and The Civil Rights Act of 1991⁵

"[U]sually '[a] complaint does not state a claim upon which relief may be granted unless it asserts the satisfaction of the precondition to suit specified by Title VII: prior submission of the claim ... for conciliation or resolution.'" Green v. Potter, 687 F. Supp. 2d 502, 516 (D.N.J. 2009) (citing Hornsby v. United States Postal Service, 787 F.2d 87, 90 (3d Cir.1986)). "Title 42 U.S.C. § 2000e-5(e)(1) is a charge filing provision that "specifies with precision" the prerequisites that a plaintiff must satisfy before filing suit." Cortes v. Univ. of Med. & Dentistry of New Jersey, 391 F. Supp. 2d 298, 309 (D.N.J. 2005).

Prior to bringing a claim for relief in federal court pursuant to Title VII, a plaintiff "must file a charge [with the Equal Employment Opportunity Commission "EEOC"] within thestatutory time period and serve notice upon the person against whom the charge is made." Id. Further, New Jersey is a "deferral state" and any complaints received by the EEOC that arise in New Jersey should be referred to the New Jersey Division on Civil Rights ("DCR"). Id. at 310. Due to the existence of this deferral agency, any complaints received by the EEOC within 300 days of the alleged violation will be timely. Id. Importantly, however, the fact that the DCR may ultimately hear a complaint does not obviate the requirement to first file with the EEOC.

Here, Plaintiff claims that because the EEOC and the DCR have a work-sharing agreement, there is no need to file a claim with both prior to bringing a suit in federal court. However, as stated above, a Plaintiff who brings a Title VII claim in federal court must file a charge with the EEOC within 300 days of the alleged violation, and it is the EEOC which determines whether it is referred to the DCR. Further, despite Plaintiff's claim that she need not file with both the EEOC and the DCR, Plaintiff fails to allege that she filed a claim with either entity. Thus, it is clear to this Court that Plaintiff failed to comply with the prerequisites of 42 U.S.C. § 2000e-5 and accordingly, Plaintiff's Title VII claim is DISMISSED without prejudice.

ii. Sections 1981 through 1988 of Title 42 of the United States Code⁶

§ 1981 provides that "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other." 42 U.S.C. § 1981. The Third Circuit has held that the statute, on its face, "is limited to issues of racial discrimination inthe making and enforcing of contracts . . ." Anjelino v. New York Times Co., 200 F.3d 73, 98 (3d Cir. 1999). Further, § 1982 states that "[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." 42 U.S.C. § 1982. Thus, "[t]o prevail on a § 1982 claim a plaintiff must demonstrate an intent to discriminate based on race." Carrington v. City of Jersey City, 2008 WL, at *-- 2061147 (D.N.J. May 12, 2008) (internal quotation marks omitted).

Here, Plaintiff has not made any allegations regarding racial discrimination. Plaintiff's Complaint contains allegations relating to gender and/or age discrimination; however, such types of discrimination may not support claims under §§ 1981 and 1982. Further, Plaintiff's opposition brief merely states that "42 U.S.C. Sections 1981 and 1982, do not preclude such rights to white citizens as Defendants infer and therefore this allegation does not fail as a matter of law." See Plaintiff's Opposition Brief, p. 6. This Court need not address whether §§ 1981 and 1982 apply to white citizens because Plaintiff has still failed to allege any racial discrimination by Defendant. Accordingly, Plaintiff's claims pursuant to 42 U.S.C. §§ 1981 and 1982 are DISMISSED, without prejudice.

Moreover, 42 U.S.C. § 1983 "imposes civil liability upon any person, who acting under the color of state law, deprives another individual of any rights, privileges or immunities secured by the Constitution or laws of the United States." White v. Williams, 179 F. Supp. 2d 405, 417 (D.N.J. 2002). "By itself, ...