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Swift v. United Food Commercial Workers Union Local 56

July 11, 2008

JOHN J. SWIFT, JR., PLAINTIFF-APPELLANT,
v.
UNITED FOOD COMMERCIAL WORKERS UNION LOCAL 56, UNITED FOOD COMMERCIAL WORKERS INTERNATIONAL UNION, JEFFREY GREEN, PETER SMITH, JOHN ROBBINS, ANTHONY BENIGNO, AND ROBERT GORHAM, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Camden ounty, Docket No. L-2428-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 28, 2008

Before Judges Graves and Alvarez.

Plaintiff John J. Swift, Jr. appeals from: (1) an order entered on July 21, 2006, dismissing his initial complaint with prejudice for failing to state a claim upon which relief could be granted; (2) an order dated November 3, 2006, dismissing his first amended complaint with prejudice, but only as to defendant United Food and Commercial Workers Union Local 56 (Local 56); and (3) orders entered on December 1, 2006, dismissing his first amended complaint "in its entirety" with prejudice and denying plaintiff's cross-motion to file a second amended complaint. We affirm in part and reverse in part.

New Jersey is a notice-pleading state, which means only a short, concise statement of a claim need be given in the complaint. Velop, Inc. v. Kaplan, 301 N.J. Super. 32, 56 (App. Div. 1997), appeal dismissed, 153 N.J. 45 (1998). To be adequate, a pleading must contain "a statement of facts on which a claim is based, showing that the pleader is entitled to relief, and a demand for judgment for [that] relief." R. 4:5-2. "Pleadings must fairly apprise the adverse party of the claims and issues to be raised at trial." Spring Motors Distribs., Inc. v. Ford Motor Co., 191 N.J. Super. 22, 29 (App. Div. 1983), aff'd in part and rev'd in part on other grounds, 98 N.J. 555 (1985).

When a trial court reviews a motion to dismiss a complaint for failure to state a claim, "all the facts and all the reasonable inferences and implications therefrom are to be considered most strongly in favor of the plaintiff since the remedy sought by the defendant is a drastic one." City of Jersey City v. Hague, 18 N.J. 584, 587-88 (1955). "The test for determining the adequacy of a [complaint] is whether a cause of action is suggested by the facts." Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988). Consequently, trial courts must approach motions to dismiss under Rule 4:6-2(e) "with great caution." Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 771 (1989). "[S]uch motions, almost always brought at the very earliest stage of the litigation, should be granted in only the rarest of instances. If a complaint must be dismissed . . . the dismissal should be without prejudice to a plaintiff's filing of an amended complaint." Id. at 772.

Preliminarily, plaintiff contends the trial court erred in dismissing his initial complaint and his first amended complaint with prejudice, arguing that the "rulings are inconsistent with [Printing Mart-Morristown, supra, 116 N.J. at 746] which allows a party to amend his or her pleading to better articulate the causes of action contained therein." We agree. "[A] complaint should not be dismissed pursuant to Rule 4:6-2(e) so long as a cause of action is suggested by the facts. The appropriate remedy is to permit an amendment of the complaint." Lederman v. Prudential Life Ins. Co. of Am., 385 N.J. Super. 324, 349 (App. Div.) (citation omitted), certif. denied, 188 N.J. 353 (2006); see also Pressler, Current N.J. Court Rules, comment 2.1 on R. 4:9-1 (2008) ("[A]n amendment of a complaint should be allowed as of course if the litigation has just commenced and the complaint would otherwise be subject to dismissal for failure to state a claim.") (citing Muniz v. United Hosps. Med. Ctr. Presbyterian Hosp., 153 N.J. Super. 79 (App. Div. 1977)).

Applying these principles to the facts of this case, we are satisfied plaintiff's proposed second amended complaint sufficiently alleges two causes of action; one for disability discrimination (failure to accommodate), and the other for retaliation under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. "[A] prima facie case of failure to accommodate requires proof that (1) the plaintiff had a LAD [disability]; (2) was qualified to perform the essential functions of the job, with or without accommodation; and (3) suffered an adverse employment action because of the [disability]." Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 91 (App. Div. 2001). "To establish a prima facie case of retaliation, [a] plaintiff must show that 1) [he] was engaged in a protected activity known to the defendant; 2) [he] was thereafter subjected to an adverse employment decision by the defendant; and 3) there was a causal link between the two."

Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 274 (App. Div. 1996). "The evidentiary burden at the prima facie stage is 'rather modest: it is to demonstrate to the court that plaintiff's factual scenario is compatible with discriminatory intent----i.e., that discrimination could be a reason for the employer's action.'" Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005) (quoting Marzano v. Computer Sci. Corp., 91 F.3d 497, 508 (3d Cir. 1996)).

In his proposed second amended complaint, plaintiff alleges the following:

11. On Monday, November 22, 2004, plaintiff was told to cancel his entire schedule and report to a labor rally in Trenton, which plaintiff could not attend and walk around all day because of plaintiff's disability, a fractured foot; plaintiff explained his disability to a union representative, Anthony Benigno, and requested a reasonable accommodation for his disability which is required under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq.

12. The plaintiff supported his request for a reasonable accommodation with medical documentation provided by his physician. Nevertheless, the defendants told the plaintiff that his disability would not be accommodated even though they failed to make a reasonable effort to determine the appropriate accommodation for the plaintiff in direct violation of the LAD.

13. The defendants were clearly on express written notice that the plaintiff had a disability or at the very least, the defendants ...


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