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DEJOY v. COMCAST CABLE COMMUNS. INC.

October 8, 1996

FRANK DEJOY, Plaintiff,
v.
COMCAST CABLE COMMUNICATIONS INC., SUBURBAN CABLEVISION, COMCAST CABLE OF NEW JERSEY, THOMAS BAXTER, individually and his official capacity, and MICHAEL DOYLE, individually and in his official capacity, Defendants.



The opinion of the court was delivered by: LECHNER

 LECHNER, District Judge

 This is an action by Frank DeJoy ("DeJoy") against Comcast Cable Communications, Inc. ("Comcast Cable"), Suburban Cablevision ("Suburban Cablevision"), Comcast Cable of New Jersey, Thomas Baxter ("Baxter") and Michael Doyle ("Doyle") (collectively, the "Defendants"). The amended complaint (the "Amended Complaint") asserts claims, arising from the termination of DeJoy's employment with Suburban Cable, pursuant to the Age Discrimination in Employment Act ("ADEA") 29 U.S.C. § 621 et seq. ; the Americans with Disabilities Act ("ADA") 42 U.S.C. § 12101 et seq. ; the New Jersey Law Against Discrimination ("NJLAD") N.J.S.A. 10:5-12 et seq., as well as various common law contract and tort claims. Jurisdiction is alleged pursuant to 28 U.S.C. §§ 1331 and 1343, 29 U.S.C. § 626(c) and 42 U.S.C. § 12117(a). Amended Complaint, P 2. Pendant jurisdiction is alleged over the State and common law claims. Id. Diversity jurisdiction is not alleged.

 Currently before the court is the Defendants' motion to dismiss counts VI, XI and XII of the Amended Complaint entirely and to dismiss counts I, III and V of the Amended Complaint as against Doyle and Baxter, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Rule 12(b)(6)") (the "Motion to Dismiss"). *fn1" For the reasons set forth below, count VI is dismissed in its entirety and counts I, III and V are dismissed as against Doyle and Baxter. Counts XI and XII, however, are not dismissed.

 Facts2

 A. Parties

 DeJoy is a citizen of the State of New Jersey. Amended Complaint, P 7. Comcast Cable is a corporation "doing business throughout the State of New Jersey" and maintaining offices in Union, New Jersey. Id., P 8. At all relevant times, Baxter was the President of Comcast Cable. Id., P 9. At all relevant times, Doyle was Regional Vice President of Comcast Cable. Id., P 10. At all relevant times, Suburban Cablevision was a corporation "doing business in the State of New Jersey" and maintaining offices in Union, New Jersey. Id., P 11. Comcast Cable is "a successor entity to Suburban Cablevision." Id.

 B. Procedural History

 DeJoy filed a timely charge of employment discrimination with the Equal Employment Opportunity Commission ("EEOC") on 14 June 1995, which was within 180 days of his allegedly unlawful termination. Amended Complaint, P 4; see 29 U.S.C. § 626(d); 42 U.S.C. § 2000e-5(e)(1). On 26 January 1996, the EEOC provided DeJoy with a "notice of right to sue." Amended Complaint, P 5 & Exhibit A. DeJoy timely filed a complaint (the "Complaint") on 15 March 1996. See 29 U.S.C. § 626(d); 42 U.S.C. § 2000e-5(f)(1).

 On 21 May 1996, the Defendants served DeJoy with a notice of motion to dismiss the Complaint, together with a memorandum of law. Moving Brief at 2. On 18 June 1996, DeJoy served his opposition to the Defendants' motion to dismiss. Id.

 At a status conference, held on 24 June 1996, however, DeJoy, in light of the motion to dismiss, requested and was given leave to file the Amended Complaint. Moving Brief at 2. DeJoy was given until 1 July 1996 to amend the Complaint to address the issues raised by Defendants in their motion to dismiss. Id. On 28 June 1996, DeJoy filed the Amended Complaint. The Defendants subsequently filed the Motion to Dismiss.

 C. Background

 DeJoy was born on 12 January 1939 and at the time of the filing of the Amended Complaint was fifty-seven years old. Amended Complaint, P 12. DeJoy had thirty years of "diverse experience in the cable television industry." Id., P 13.

 DeJoy started his employment with Suburban Cablevision in 1981. Amended Complaint, P 14. He began as the Vice President of Engineering, was promoted to Vice President of Operations and eventually became "Vice President and General Manager of the enterprise in January of 1988." Id. DeJoy remained in the position of Vice President and General Manager from January of 1988 until January of 1995. Id., P 15.

 In 1994, Comcast Cable acquired Suburban Cablevision. Amended Complaint, P 17. "During the final six months of 1994," Doyle repeatedly told DeJoy that DeJoy would become Area Vice President for Northern New Jersey and General Manager of Suburban Cablevision and Cable-TV of Jersey City upon Comcast Cable's acquisition of Suburban Cablevision. Id., PP 18-19. Doyle, moreover, told "State Regulators and hundreds of employees of Suburban Cablevision that there would be no change in the management structure of Suburban Cablevision upon [Comcast able's] acquisition of [Suburban Cablevision] and that [DeJoy] would be the Area Vice-President." Id., P 20.

 "During 1994 and the beginning of 1995," Baxter, who had authority to act on behalf of Comcast Cable and Suburban Cablevision in business and personnel matters, "reiterated to third parties the assurances made by [Doyle] regarding [DeJoy's] job security and retention and the continuation of the same management structure of [Suburban Cable]." Id., PP 21-22.

 DeJoy remained in the position of Vice President and General Manager of Suburban Cablevision when Comcast Cable finalized its acquisition of Suburban Cablevision, on or about 22 December 1994. Id., P 23-24. On 8 December 1994, however, because of "a ruptured aortic abdominal aneurysm[,]" DeJoy "underwent emergency surgery and was hospitalized in critical condition in the intensive care unit of St. Barnabas Hospital[.]" Id., P 25. DeJoy remained hospitalized until 26 December 1994. Id. After being discharged from the hospital, DeJoy remained on medical leave from work while he recuperated. See id, P 28.

 On or about 10 January 1995, while DeJoy was on medical leave, the Defendants notified DeJoy of his removal as Vice President and General Manager of Suburban Cablevision. Id., P 28. The Defendants replaced DeJoy with Joseph Fischer ("Fischer"). Id., P 29. Fischer was younger than DeJoy, had less experience and had only recently been hired by Comcast Cable. Id., PP 29-31. "In or about March of 1995," the Defendants appointed Michael Schenker ("Schenker") General Manager of Suburban Cablevision. Id., P 33. Schenker was also younger than DeJoy and had less experience. Id.

 In early 1995, DeJoy challenged his removal as Vice President and General Manager of Suburban Cablevision by informing the Defendants their actions "violated the representations made to him and to many others" regarding his employment and that he believed he had been wrongly removed because of his age and disability. Amended Complaint, P 34. DeJoy's attorney subsequently wrote to the Defendants informing them "charges of employment discrimination would be filed with the EEOC and the New Jersey Division on Civil Rights if Defendants failed to remedy the situation." Id.

 Defendants retaliated against DeJoy for challenging his removal. Amended Complaint, P 35. In late January of 1995, DeJoy was informed he would become the Director of Business Development. Id., P 35a. The Director of Business Development position, however, would have paid approximately twenty-five percent less then DeJoy was earning before his hospitalization. Id. Additionally, DeJoy learned the Director of Business Development did not exist. Id.

 On or about 31 March 1995, DeJoy was informed in writing he was "removed from salary status and placed on disability insurance at a fraction of his normal pay." Amended Complaint, P 35b. The Defendants took this action despite a written agreement, dated 20 December 1994, that DeJoy would receive "'Full Salary While On Leave Of Absence[.]'" Id.

 Defendants subsequently discontinued DeJoy's salary on 7 April 1995. Amended Complaint, P 35c. DeJoy was informed he would receive only disability payments in the amount of $ 2,500.00 per month. Id. DeJoy, however, never received any disability payments. Id. When DeJoy continued to challenge the Defendants' actions, Comcast Cable's "Director of Employee Relations suggested that [DeJoy] could be restored to his regular salary if he agreed to leave the company quietly, so that they could have 'closure.'" Id., P 35d. In April of 1995, the Defendants stopped paying DeJoy's medical and hospital insurance coverage. Id., P 35e. "Under written protest, DeJoy began paying the weekly premium for insurance coverage to avoid the threatened termination of his benefits." Id.

 Defendants subsequently refused to return DeJoy to his position as Vice-President and General Manager of Suburban Cablevision when DeJoy's doctors cleared him to return to full-employment. Amended Complaint, P 36-37. Defendants also refused to appoint DeJoy to the position of Area Vice-President of Comcast Cable. Id. DeJoy, who was qualified for both positions, id., PP 38-39, was "constructively discharged from his employment with Comcast [Cable] at the conclusion of his medical leave of absence, on or about [23 May 1995]." Id., P 40.

 D. The Amended Complaint

 The Amended Complaint alleges thirteen counts. Only counts I, III, V, VI, XI and XII, however, are pertinent to the instant opinion. Moving Brief at 1.

 Counts I and III of the Amended Complaint allege ADEA and ADA violations against the Defendants. Amended Complaint, PP 41-44, 50-60. Doyle and Baxter are sued as individuals. Id. DeJoy alleges Doyle and Baxter "engaged in unlawful employment practices by aiding, abetting, inciting and/or compelling the unlawful acts of discrimination against [him] ...." Id., PP 42-43, 55-56. Count V alleges a retaliation ...


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