Randall v. Rutgers

• Decision Date: 12 November 2014
• Docket Number: Civ. No. 13-cv-07354 (FLW)(DEA)
• Parties: DERRICK RANDALL, Plaintiff, v. RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

DERRICK RANDALL, Plaintiff, v. RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY, et al., Defendants.

Civ. No. 13-cv-07354 (FLW)(DEA)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

November 12, 2014

**NOT FOR PUBLICATION**

OPINION

WOLFSON, U.S. DISTRICT JUDGE:

Before the Court is Defendant Mark P. Hershhorn's ("Hershhorn," or "Defendant") motion to dismiss Counts Nine and Twelve of the Complaint brought by Plaintiff Derrick Randall ("Randall," or "Plaintiff") against Hershhorn et al. For the following reasons, Hershhorn's motion is GRANTED.

I. Background

Derrick Randall was a student at Rutgers University ("Rutgers") and a player on the Rutgers's men's basketball team ("Rutgers basketball team") from the fall of 2011 to the spring of 2013. (Compl. ¶ 33). Randall suffers from learning disabilities, of which Randall claims Rutgers was aware and for which Rutgers agreed to make special accommodations.¹ (Compl. ¶¶ 37-38). While Randall was a member of the Rutgers basketball team, Defendant Michael Rice ("Coach Rice") was the coach. (Compl. ¶ 27). On April 2, 2013, the cable network ESPN released a videorecording ("Video") of Coach Rice abusing players of the Rutgers basketball team, including Plaintiff. (Compl. ¶ 7). It was later revealed that Coach Rice had frequently abused members of the team, including Randall, both physically and emotionally. (Compl. ¶¶ 44-46). According to Plaintiff, such abuse was continuous and ongoing when Randall was a member of the Rutgers' men's basketball team. (Compl. ¶ 52).

Randall alleges that members of the Rutgers administration—including Mark P. Hershhorn, a member of the Board of Governors—knew of this abuse and failed to take any action to protect Rutgers basketball team players. (Compl. ¶¶ 67-74). The Video was allegedly brought to the attention of Timothy Pernetti, then the NCAA Director of Intercollegiate Athletics at Rutgers, as a result of a wrongful termination suit brought by Eric Murdock, the former Director of Basketball Player Development. (Compl. ¶ 67). On December 13, 2012, a Rutgers-commissioned internal report investigating the Video and its contents was released. (Compl. ¶ 73). That same day, Pernetti announced that Coach Rice would be suspended for three games. (Compl. ¶ 74). However, Pernetti did not publicly disclose any evidence or information regarding Coach Rice's abusive conduct. (Compl. ¶ 74). It was not until nearly four months later—on April 3, 2014, the day after ESPN aired footage from the Video—that Coach Rice was fired. (Compl. ¶¶ 76-79).

Randall brought suit against (1) Coach Rice; (2) Rutgers University; (3) Timothy Pernetti, the NCAA Director of Intercollegiate Athletics at Rutgers; (4) James Martelli, the Rutger's men's basketball team assistant coach; (5) Janine Purcaro, the Chief Financial Officer for Intercollegiate Athletics at Rutgers; (5) Mark P. Hershhorn, Chairman of the Rutgers University Board of Governors Committee on Intercollegiate Athletics and member of the Board of Governors; and (6) Robert Barchi, the President of Rutgers University (collectively, "Defendants"), alleging varioustort claims and violations of the New Jersey Law Against Discrimination ("NJLAD"), Americans with Disabilities Act, and his constitutional rights.

The Complaint's specific allegations as to Hershhorn are as follows: (1) "in December, 2012, Hershhorn viewed the Video[; (2)] Hershhorn did not take the matter to the full Board of Governors, nor did he take any other action." (Compl. ¶ 72).

Hershhorn filed this motion to dismiss the following two counts against him: Count Nine, which alleges liability pursuant to the NJLAD; and Count Twelve, which alleges violations of Plaintiff's substantive due process rights pursuant to 42 U.S.C. § 1983.

II. Standard of Review

When reviewing a motion to dismiss on the pleadings, courts "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citation and quotations omitted). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court clarified the 12(b)(6) standard: the factual allegations set forth in a complaint "must be enough to raise a right to relief above the speculative level." Id. at 1965. As the Third Circuit has stated, "[t]he Supreme Court's Twombly formulation of the pleading standard can be summed up thus: 'stating ... [a] claim requires a complaint with enough factual matter (taken as true) to suggest' the required element. This 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Phillips, 515 F.3d at 234 (quoting Twombly, 127 U.S. at 1965); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013) ("[A] claimant does not have to set out in detail the facts upon which he bases his claim. . . . The pleadingstandard is not akin to a probability requirement, . . . to survive a motion to dismiss, a complaint merely has to state a plausible claim for relief." (citations omitted)).

In affirming that Twombly's standards apply to all motions to dismiss, the Supreme Court explained several principles. First, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662 (2009). Second, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. Therefore, "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 1949. Ultimately, "a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts." Fowler v. U PMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). However, "a district court ruling on a motion to dismiss may not consider matters extraneous to the pleadings ... [although a] limited exception exists for documents that are integral to or explicitly relied upon in the complaint." W. Penn Allegheny Health Sys., Inc. v. U PMC, 627 F.3d 85, 97 n.6 (3d Cir. 2010) cert. denied, 132 S.Ct. 98 (2011) (citation and internal quotation marks omitted).

The Third Circuit has reiterated that "judging the sufficiency of a pleading is a context-dependent exercise" and "[s]ome claims require more factual explication than others to state a plausible claim for relief." Id. at 98. That said, the Rule 8 pleading standard is to be applied "with the same level of rigor in all civil actions." Id. (quoting Iqbal, 129 S.Ct at 1953).

III. Analysis

1. Count Nine - Violation of New Jersey Law Against Discrimination

In Count Nine of the Complaint, Plaintiff alleges that Defendants "engaged in intentional discrimination against Plaintiff because of his protected class, and failed to accommodate his needsdespite agreeing to do so." (Compl. ¶ 156). Hershhorn moves to dismiss this Count for failure to state a claim. First, Hershhorn alleges that he cannot be held liable under the NJLAD because he and Plaintiff are not in an employment relationship. In his reply, Hershhorn alternatively argues that he cannot be held liable under the NJLAD's public accommodation section because he is not an "owner, lessee, proprietor, superintendent, agent, or employee" of Rutgers as statutorily required under the NJLAD. Lastly, Defendant asserts that he cannot be held liable under an aiding and abetting theory of supervisory liability because inaction is insufficient conduct to meet such a standard.

a. Public Accommodation

The Court construes Count Nine of the Complaint as alleging a cause of action for discrimination in a place of public accommodation pursuant to the NJLAD.² Defendant argues that this claim should be dismissed because he is not an actor covered under the statute. In opposition, Plaintiff argues that this claim should proceed because (1) Rutgers is a place of public accommodation, (2) Hershhorn is an agent of the university, and (3) Coach Rice clearly discriminated against Plaintiff. However, Plaintiff's arguments do not coincide with the statutory requirements for such a claim. N.J.S.A. § 10:5-4 states that "all persons shall have the opportunity to obtain . . . all the accommodations, advantages, facilities, and privileges of any place of public accommodation . . . without discrimination because of . . . disability." N.J. STAT. ANN. § 10:5-4. The NJLAD further prohibits "any owner, lessee, proprietor, manager, superintendent, agent, or employee, of any place of public accommodation [from] directly or indirectly refus[ing], withhold[ing] from, or deny[ing] to any person any of the accommodations, advantages, facilitiesor privileges thereof, or [from] discriminat[ing] against any person in the furnishing of . . . on account of . . . disability." N.J. STAT. ANN. 10:5-12(f)(1).

Because the NJLAD is so broadly written, New Jersey and Third Circuit courts have looked to federal laws such as Title VII and the Americans with Disabilities Act for guidance in adjudicating discrimination claims. See Lawrence v. Nat'l Westminster Bank New Jersey, 98 F.3d 61, 70 (3d Cir. 1996). Claims for discrimination on the basis of disability are determined under the ADA standard, requiring that a plaintiff show:

(1) he is a qualified person with a disability; (2) he was either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability.

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