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Bisbing v. New Jersey Firemen's Home

January 8, 2007

HARRY W. BISBING, PLAINTIFF,
v.
NEW JERSEY FIREMEN'S HOME AND WILLIAM HUNT, INDIVIDUALLY AND AS DIRECTOR OF NEW JERSEY FIREMEN'S HOME, DEFENDANTS.



The opinion of the court was delivered by: Debevoise, United States Senior District Judge

OPINION

Defendants, New Jersey Firemen's Home ("NJFH") and William Hunt ("Hunt") (also collectively referred to as "Defendants"), removed to this Court the action that was filed in New Jersey Superior Court,*fn1 by Plaintiff, Harry W. Bisbing ("Bisbing").

Bisbing's eight-count action alleges that Hunt created a sexually hostile work environment in violation of the New Jersey Law against Discrimination ("NJLAD") and that NJFH retaliated against him for reporting the hostile work environment in violation of the New Jersey Conscientious Employee Protection Act ("NJCEPA"). Additionally, Bisbing's action alleges that the NJFH and Hunt deprived him of the equal protection of law and procedural and substantive due process, in violation of his Fourteenth Amendment rights.

Bisbing now moves before this Court to have the action remanded to the New Jersey Superior Court. For the reasons stated in the Opinion below, Bisbing's motion is denied.

BACKGROUND AND PROCEDURAL HISTORY

NJFH is a long term and residential care facility chartered in 1898 by the New Jersey State Legislature and located in Boonton. Bisbing, a homosexual male, became employed with NJFH in 1992 as a Housekeeping Supervisor, and he remains currently employed in that job title. Hunt, also a homosexual male, was employed by NJFH as the facility's Director and, as such, Bisbing's supervisor until NJFH terminated Hunt's employment in September 2005.

On September 26, 2006, Bisbing filed a civil action in New Jersey Superior Court, which was served on Hunt on October 7, 2006 and on NJFH on October 9, 2006. Without filing an answer, Defendants timely removed from state court based on this Court's original jurisdiction, pursuant to the provisions of 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331, 1441(b), over the federal question of the alleged deprivation of rights under the Fourteenth Amendment, which was raised by Bisbing in Count Three of his complaint. On December 4, 2006, Bisbing filed the instant motion for remand.

Bisbing's complaint alleges that between December 1996 and the termination of Hunt's employment in September 2005, Hunt, during working hours, both in private and in front of other employees, engaged in conduct toward Bisbing that was discriminatory, harassing and demeaning, such as making crude sexual remarks and invitations, grabbing and rubbing Bisbing's penis, and massaging Bisbing. As a result of Hunt's actions, Bisbing alleges that he was made to feel ashamed and embarrassed.

Under the doctrine of respondeat superior, Bisbing seeks to hold NJFH responsible for the acts of Hunt, alleging that it failed to provide Bisbing with a work environment free of sexual harassment and failed to take appropriate action when it knew, or should have known, that Bisbing was being sexually harassed. Bisbing claims that Hunt's acts and conduct are governed by the Policies and Procedures of NJFH.

DECISION

Jurisdiction of the District Court

A district court has original jurisdiction in those cases involving a federal question. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987). Federal question cases arise when the plaintiff's complaint raises issues arising under the Constitution, federal laws, or treaties of the United States. Id. See also 28 U.S.C. § 1331. Once it has been established that the district court has original jurisdiction, the district court may assume, pursuant to 28 U.S.C. § 1367(a), supplemental jurisdiction over the issues raised in the plaintiff's complaint which sound in state law.

Here, in addition to the violations of state law raised in his complaint, Bisbing, in Count Three, alleges violations of his rights to equal protection of laws and to procedural and substantive due process under the Fourteenth Amendment to the Constitution of the United States. Therefore, this Court has jurisdiction over the ...


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