Kurdyla v. Pinkerton Security, Civil Action No. 00-02401 (MLC) (D. N.J. 10/13/2000), Civil Action No. 00-02401 (MLC).

• Decision Date: 13 October 2000
• Docket Number: Civil Action No. 00-02401 (MLC).
• Parties: CHRISTINE KURDYLA, Plaintiff, v. PINKERTON SECURITY, a California Corporation; EXXON RESEARCH, a New Jersey Corporation, DARYL SWINISKI and JOHN DOES 1-3, employees of Pinkerton and Exxon, Defendants.
• Court: U.S. District Court — District of New Jersey

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CHRISTINE KURDYLA, Plaintiff, v. PINKERTON SECURITY, a California Corporation; EXXON RESEARCH, a New Jersey Corporation, DARYL SWINISKI and JOHN DOES 1-3, employees of Pinkerton and Exxon, Defendants.

Civil Action No. 00-02401 (MLC).

United States District Court, D. New Jersey.

October 13, 2000.

Karen F. DeSoto, Eric M. Bernstein & Associates, L.L.C., Warren, NJ, Attorney for Plaintiff.

Joseph T. Walsh, III, Amy C. Grossman, McCusker, Anselmi, Rosen, Carvelli & Walsh, P.A., Chatham, NJ, Attorneys for Defendants Exxon Research and Daryl Swiniski.

MEMORANDUM OPINION

COOPER, District Judge

This matter comes before the Court on the motion of defendants Exxon Research¹ and Daryl Swiniski² under Federal Rule of Civil Procedure Rule 12(b)(6) to dismiss Counts I through IV of plaintiff Christine Kurdyla's Second Amended Complaint insofar as the counts contain claims against Exxon Research and Daryl Swiniski. Plaintiff asserts claims against Pinkerton Security ("Pinkerton"), Exxon Research, Daryl Swiniski, and unknown employees of Pinkerton and Exxon Research under the New Jersey Law Against Discrimination ("NJLAD"). Exxon Research and Daryl Swiniski seek the dismissal of these claims on the grounds that plaintiff is not an employee of Exxon Research and therefore is not protected by the NJLAD. For the reasons expressed below, this motion to dismiss is denied.

BACKGROUND

Christine Kurdyla began working for "Exxon/Pinkerton" on October 1, 1995 as a "life safety operator,"(Second Am. Compl. Count I, ¶ 3.), or security guard.³ (Pl.'s Br. in Opp. at 4.) While working as a guard, plaintiff allegedly suffered from sexual harassment, (Second Amended Complaint Counts I-III), gender discrimination, (id. Count IV), and a Federal Family and Medical Leave Act violation, (id. Count V). "After working at Exxon/Pinkerton for two (2) years," plaintiff was terminated. (Id. Count IV, ¶ 2.)

Christine Kurdyla originally filed her action in the Superior Court of New Jersey, Law Division, Somerset County on or about October 9, 1999. (Not. of Removal ¶ 1.) In her Second Amended Complaint filed on or about April 19, 2000, Christine Kurdyla for the first time asserted a claim under federal law, specifically the Federal Family and Medical Leave Act.⁴ (Id. ¶ 3). In response, Pinkerton, with the consent of the attorney for Exxon Research and Daryl Swiniski, filed a Notice of Removal with this Court on or about May 17, 2000.

Plaintiff's Second Amended Complaint contains a number of allegations concerning her relationship with Exxon Research. Plaintiff worked at "Exxon/Pinkerton as a life safety operator." (Second Am. Compl. Count I, ¶ 3.) Daryl Swiniski and the unknown defendants are also "employees of Pinkerton & Exxon." (Id. ¶ 6.) Plaintiff further alleges that Exxon Research is "the ultimate parent corporation of Pinkerton." (Id. ¶ 2.) She asserts that "[u]pon information and belief, Exxon maintains control over the operations, business and practices of Pinkerton." (Id.) Both Pinkerton and Exxon Research are allegedly "employers" as defined by the NJLAD. (Id. ¶¶ 4-5.)

Exxon Research and Daryl Swiniski argue that dismissal is required because Christine Kurdyla is not an employee of Exxon Research and therefore cannot sue the company under the NJLAD. They contend that the NJLAD only protects employees and not independent contractors. (Def.'s Br. in Supp. at 11.) Relying almost exclusively on materials other than the pleadings, (id. at 13-16), defendants argue that "[p]laintiff simply cannot set forth any set of facts that would render her an employee" of Exxon Research or Swiniski, (id. at 18). Therefore, a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) must be granted because plaintiff can never make out a claim entitling her to relief under the NJLAD. (Id.)

Also relying heavily on materials outside of the pleadings, (Pl.'s Br. in Opp. at 8-14), Christine Kurdyla responds that: (1) the evidence to date at least establishes "a genuine material issue" of fact on the question of whether an employer-employee relationship existed between herself and Exxon Research and Daryl Swiniski,(id. at 13.); and (2), because she has yet to begin discovery, granting this motion would be inappropriate considering the likelihood that she may uncover even more materials, such as insurance, tax, and health benefits evidence, indicating the existence of an employer-employee relationship,⁵ (Id. at 1-2, 11-12).

DISCUSSION

A. Rule 12(b)(6) Motions to Dismiss and Reference to Mattters Outside the Pleadings

When confronted with a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, a court generally may only consider allegations in the complaint, exhibits attached to the complaint, and public records. See, e.g., Beverly Enters., Inc. v. Trump, 182 F.3d 183, 190 n.3 (1999), cert. denied, 120 S. Ct. 795 (2000); Childs v. Meadowlands Basketball Assocs., 954 F. Supp. 994, 997 (D.N.J. 1997) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993)). A court has discretion to convert a Rule 12(b)(6) motion into a motion for summary judgment by considering materials extrinsic to the pleadings.⁶ See Fed. R. Civ. Pro. 12(b); see also Childs, 954 F. Supp. at 997 (citing Kulwicki v. Dawson, 969 F.2d 1454, 1463 (3d Cir. 1992)). A court should not convert a motion, however, when little or no discovery has occurred. See, e.g., id.; Brennan v. National Tel. Directory Corp., 850 F. Supp. 331, 335-36 (E.D. Pa. 1994) (citations omitted).

Christine Kurdyla clearly asserts in her brief that she "has not even begun the discovery process," and she further claims that she may "uncover additional and various insurance, tax and health benefit issues" indicating the existence of an employer-employee relationship between herself, Exxon Research, and Daryl Swiniski. (Pl.'s Br. in Opp. at 11.) While certain facts do support a conversion of this motion to a motion for summary judgment,⁷ this case is at the beginning of the discovery process. Even the parties' use of materials other than the pleadings does not mandate a conversion. See, e.g., Childs, 954 F. Supp. at 997 (refusing to convert motion to dismiss to motion for summary judgment even though both parties submitted affidavits); Morris v. Azzi, 866 F. Supp. 149, 149 (D.N.J. 1994); Brennan, 850 F. Supp. at 335-36. Therefore, the Court will not convert the motion to a motion for summary judgment, and it will not consider the additional materials submitted by the parties.⁸

In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), a court "accept[s] as true all the allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view[s] them in the light most favorable to the nonmoving party." Rocks v. Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). Dismissal is inappropriate unless it clearly appears that plaintiff can prove no set of facts in support of her claim that would entitle her to relief. Robb v. Philadelphia, 733 F.2d 286, 290 (3d Cir. 1984). In order to survive a Rule 12(b)(6) motion, "it is not necessary for the plaintiff to plead evidence, and it is not necessary to plead the facts that serve as the basis for the claim." Morris, 866 F. Supp. at 152 (citing Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977)).

B. NJLAD'S INDEPENDENT CONTRACTOR/EMPLOYEE DISTINCTION

The NJLAD protects only employees and does not cover independent contractors. Carney v. Dexter Shoe Co., 701 F. Supp. 1093, 1101-1102 (D.N.J. 1988); Pukowsky v. Caruso, 312 N.J. Super. 171, 178-80, 711 A.2d 398, 402-03 (App. Div. 1998). The NJLAD defines the terms "employer"⁹ and "employee"¹⁰ generally without much guidance on how to resolve this issue. In Pukowsky v. Caruso, 312 N.J. Super. 171, 178-80, 711 A.2d 398, 402-03 (App. Div. 1998), the Appellate Division of the New Jersey Superior Court determined, based largely on a review of the judicial interpretation of comparable federal and state anti-discrimination enactments, that the NJLAD does not protect independent contractors. Pukowsky, 312 N.J. Super. at 178-80, 711 A.2d at 178-80.¹¹

This decision affirmed the earlier view of the federal district court in Carney v. Dexter Shoe Co., 701 F. Supp. 1093, 1101-1102 (D.N.J. 1988). The Carney court concluded that "[b]ecause the proscriptions [of the NJLAD] apply to an `employer,' — as they do under the terms of ADEA — it is inescapable that the `individual' on the receiving end of the employer's conduct must be an employee or prospective employee in order for the statute to apply." Id. at 1102. Like the Appellate Division, the court bolstered its conclusion by examining case law on the federal Age Discrimination in Employment Act and the New York Human Rights Law. Id.¹²

Though the NJLAD requires a distinction between employees and independent contractors, the proper basis for this distinction is unsettled. Tests have been developed to characterize individuals as employees and independent contractors under a variety of statutes. See, e.g., Pelliccioni v. Schuyler Packing Co., 140 N.J. Super. 190, 196-202, 356 A.2d 4, 7-10 (App. Div. 1976) (Federal Employers' Liability Act); Blessing v. T. Shriver & Co., 94 N.J. Super 426, 429-434, 228 A.2d 711, 713-15 (App. Div. 1967) (workers' compensation).

The Carney and Pukowsky courts discussed federal anti-discrimination statutes in developing a test to be used under the NJLAD. Carney, 701 F. Supp. at 1098-1102; Pukowsky, 312 N.J. Super. 171, 182-83, 711 A.2d 404-05. The Carney court relied on the multi-factor test developed by the Third Circuit in E.E.O.C. v. Zippo Mfg. Co., 713 F.2d 32 (3d Cir. 1983), for Age Discrimination in Employment Act ("ADEA") cases, Carney, 701 F. Supp. at 1098-1100. This test represents a "hybrid" approach combining the traditional common law focus on the defendant's right to control the alleged employee's efforts with the...