The opinion of the court was delivered by: SIMANDLE
SIMANDLE, District Judge:
Plaintiff, Judith Schanzer, brings this action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2, against Rutgers University (hereinafter "Rutgers") and numerous of its employees, including President Francis Lawrence, Provost Walter Gordon, Dean Robert Catlin, and Professor Joseph Walker, alleging that she was unlawfully discriminated against on the basis of her race, sex, and religion while an Assistant Professor in the Department of Theater Arts and Speech at the Camden campus of Rutgers, and in decisions to deny her tenure in 1993 and 1995. Plaintiff also asserts numerous pendent state claims under New Jersey law. Presently before this court is defendants' motion to dismiss several counts of plaintiff's Complaint, brought pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state a claim upon which relief can be granted. This court has jurisdiction pursuant to 28 U.S.C. § 1331, as well as under 28 U.S.C. § 1367.
The principal issues to be decided in this motion to dismiss are whether plaintiff has appropriately exhausted her administrative remedies with regard to the circumstances surrounding the second decision to deny her tenure in 1995, whether Title VII supports individual liability, and whether plaintiff's state law claim for whistleblowing under the Pierce doctrine is barred by operation of the New Jersey Law Against Discrimination. Several other subsidiary issues are considered as well.
The facts giving rise to this cause of action stem from plaintiff Judith Schanzer's employment as an Assistant Professor of Theater in the Theater and Speech Department at Rutgers under the direct supervision of the Chairman of that department, defendant Professor Joseph Walker. Plaintiff sets forth, in a detailed Amended Complaint, a series of allegedly discriminatory acts, culminating with the decision by the University to deny her a tenured position.
Plaintiff asserts that while employed by Rutgers, defendants, through Professor Walker "exhibited a pattern and practice of racial discrimination against whites," (Amended Complaint at P 20), as well as a "pattern and practice of religious discrimination and sexual harassment." (Id. at P 24). Plaintiff Schanzer is a white, Jewish, female, (Id. at P 24(a)), and defendant Walker is a black male. (Id. at PP 19-21).
Plaintiff, in her Amended Complaint, alleges that while under the supervision of defendant Walker, he described her as "a white Jew bitch" and "Jewish American Princess," excluded her from faculty meetings, excluded her from departmental programs, excluded her from choice teaching assignments and theatrical productions, created a climate of discrimination on the basis of his teachings, as well as made inappropriate sexual comments and suggestions. (Id. at PP 24(a)-(g)). Defendant Walker is also alleged, inter alia, to have taught that blacks are superior to all other races, stated his desire to "rid the department of all whites," used racial epithets, and discouraged black students from associating with white students. (Id. at PP 20(a)-(j)). Defendants Gordon and Catlin are alleged to have been aware of these actions and done nothing to abate them. (Id. at PP 25-30).
In addition to the discriminatory climate that defendant Walker is alleged to have fostered in his department, plaintiff also asserts that several of the defendants conspired to deny her a tenured position at the University. (Id. at PP 31-40). Plaintiff alleges that defendants Walker and Catlin held private meetings to discuss plaintiff's application for tenure, and defendant Catlin is alleged to have stated that he would "take the heat for denying plaintiff tenure." (Id. at P 35). After approval for tenure by two University committees, plaintiff was allegedly denied tenure by defendant Catlin in April 1993. (Id. at PP 36-37). Essentially, plaintiff asserts that defendant Walker, in conjunction with defendant Catlin, in addition to creating a discriminatory environment, conspired to deny her a tenured position, with the acquiescence of defendant Gordon, Provost of the University.
Following the tenure denial, plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission (hereinafter "EEOC") on August 4, 1993, (Def. Br., ex. I), and was issued a Right to Sue letter on or about July 26, 1994. (Id. at P 41). However, subsequent to the tenure denial and filing of the EEOC Charge, and after an appeal of the tenure decision through the University grievance process, the University Grievance Committee determined that the tenure decision was arbitrary and capricious and granted plaintiff a one-year extension to re-apply for tenure. (Id. at P 39). Following remand for re-review of the tenure packet, defendant Catlin again recommended against granting plaintiff tenure and defendant President Lawrence, accepting this recommendation, made the final decision to deny plaintiff tenure. (Id. at PP 44, 48).
The original Complaint commencing this action was filed October 19, 1994, and comprised the allegations of discrimination up to and including the first denial of plaintiff's application for tenure. On December 22, 1995, the Honorable Robert Kugler, U.S.M.J., granted plaintiff's motion for leave to file the aforementioned Amended Complaint, which added, inter alia, further allegations of discrimination stemming from the second denial of plaintiff's application for tenure. The new allegations found in the Amended Complaint are premised upon a second EEOC Charge filed October 6, 1995. At the time of the filing of the Amended Complaint, the EEOC had not yet issued a second right to sue letter.
The Amended Complaint contains thirteen counts,
and seeks relief for alleged racial, gender, and religious discrimination, on the basis of: (1) Title VII, as amended, 42 U.S.C. § 2000e-2; (2) 42 U.S.C. § 1981; (3) 42 U.S.C. § 1983; (4) 42 U.S.C. §§ 1985 & 1986; (5) the New Jersey Law Against Discrimination (hereinafter "NJLAD"), N.J.S.A. § 10:1-1; (6) breach of contract; (7) intentional infliction of emotional distress; (8) civil conspiracy; (9) negligent infliction of emotional distress; (10) defamation; (11) retaliation under the Conscientious Employee Protection Act (hereinafter "CEPA"), N.J.S.A. § 34:19-1; (12) retaliation under NJLAD, N.J.S.A. § 10:5-12(d); and (13) whistleblowing in violation of public policy. The Complaint seeks an award of tenure, compensatory damages, punitive damages, injunctive relief, attorney's fees, costs, and any other relief as this court deems just.
Defendants' motion to dismiss, pursuant to Fed. R. Civ. P. 12(b)(6), attacks numerous aspects of plaintiff's Amended Complaint, and asserts that: (1) events subsequent to the first tenure denial must be dismissed for failure to exhaust administrative remedies; (2) count one, asserting a claim under Title VII, must be dismissed as to defendants Lawrence, Catlin and Gordon because they were not named in the original EEOC charge; (3) count one must be dismissed as to defendants Lawrence, Catlin and Gordon as Title VII does not support individual liability; (4) count nine, asserting a claim for negligent infliction of emotional distress, must be dismissed because it is barred by the New Jersey Workers' Compensation Act; (5) Counts five through fourteen must be dismissed as a result of the waiver contained in CEPA; (6) count thirteen, alleging whistleblowing, must be dismissed because it alleges matters already protected by NJLAD; (7) counts one through four must be dismissed to the extent they assert claims directly under the Fifth and Fourteenth Amendments; and (8) count two, asserting a claim under 42 U.S.C. § 1981 must be dismissed to the extent it asserts a claim for sex discrimination.
As a result of the filing of the motion described herein, plaintiff recognized several deficiencies in the Amended Complaint and has sought to correct them. Plaintiff has stipulated that she will withdraw counts nine and eleven of the Amended Complaint, asserting claims for common law negligent infliction of emotional distress and on the basis of CEPA, respectively. Plaintiff has also stated that she will not pursue a cause of action for sexual discrimination under 42 U.S.C. § 1981.
Other than the issues rendered moot by plaintiff's concessions, each issue will be addressed seriatim.
A. Motion to Dismiss Standard
A motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted does not attack the merits of the case, but merely tests the legal sufficiency of the Complaint. See Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir. 1987). When considering a Rule 12(b)(6) motion, the reviewing court must accept as true all well-pleaded allegations in the Complaint and view them in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Wisniewski v. Johns-Manville Corp., 759 F.2d 271, 273 (3d Cir. 1985); Rogin v. Bensalem Township, 616 F.2d 680, 685 (3d Cir. 1980), cert. denied, 450 U.S. 1029, 68 L. Ed. 2d 223, 101 S. Ct. 1737 (1981). In considering the motion, a district court must also accept as true any and all reasonable inferences derived from those facts. See Unger v. National Residents Matching Program, 928 F.2d 1392, 1400 (3d Cir. 1991); Glenside West Corp. v. Exxon Co., U.S.A., 761 F. Supp. 1100, 1107 (D.N.J. 1991); Gutman v. Howard Savings Bank, 748 F. Supp. 254, 260 (D.N.J. 1990). A court may not dismiss the Complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).
The question before the court is not whether the plaintiff will ultimately prevail; rather, it is whether she can prove any set of facts in support of her claims that would entitle her to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984). However, while the rules do not dictate that a "claimant set forth an intricately detailed description of the asserted basis for relief, they do require that the pleadings give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." ...