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Swift v. United Food Commercial Workers Union Local 56


July 11, 2008


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

Per curiam.


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 perceived the plaintiff as being disabled.

14. The defendants' refusal to accommodate the plaintiff's disability compelled the plaintiff to attend the union rally, as the plaintiff feared he would be retaliated against if he did not attend, and forced the plaintiff to walk on his injured foot; thereby substantially aggravating and causing great pain and suffering, thus violating plaintiff's rights under the LAD, based upon the defendants' failure to accommodate his disability, despite the fact that the plaintiff could have been reasonably accommodated but for the defendants' lack of good faith.

15. Thereafter, the defendants began a campaign of retaliation against the plaintiff because of plaintiff's protected conduct under the LAD; that being the plaintiff's request for a reasonable accommodation of his disability. The defendants retaliated against the plaintiff by: (1) taking job responsibilities away from him; (2) ostracizing the plaintiff; (3) undermining the plaintiff's reputation and relationship with Union members and their employers; and (4) constructively discharging the plaintiff.

In addition to these claims, plaintiff's proposed second amended complaint also contained specific examples of conduct which allegedly demonstrate unlawful retaliation in violation of N.J.S.A. 10:5-12(d). Thus, plaintiff's proposed second amended complaint alleges: (1) he was disabled due to his fractured foot; (2) he requested an accommodation for his disability----non-attendance at the union rally; (3) the union refused to accommodate him by allowing him to not attend the union rally; and (4) thereafter, defendants began a campaign of retaliation because of his request for an accommodation, including the taking away of job responsibilities resulting in a "defacto demotion," and harassment to the point that he felt compelled to resign. See, e.g., Mancini v. Twp. of Teaneck, 349 N.J. Super. 527, 564-65 (App. Div. 2002) (assignment to different or less desirable tasks may constitute adverse employment action and establish prima facie case of retaliation), aff'd as modified, 179 N.J. 425 (2004). Accordingly, we conclude the trial court erred in denying plaintiff's cross-motion to file a second amended complaint as to these claims.

Plaintiff also contends the trial court erred in dismissing his claim for invasion of privacy. We do not find this argument persuasive. To establish a prima facie case of invasion of privacy by an unreasonable intrusion upon the seclusion of another, plaintiff must demonstrate: (1) an intentional intrusion; (2) into the solitude, seclusion, or private affairs of another; (3) that is highly offensive to a reasonable person. Kinsella v. Welch, 362 N.J. Super. 143, 156 (App. Div. 2003) (citing Restatement (Second) of Torts § 652B (1977)). "The intrusion itself makes the defendant subject to liability . . . ." Bisbee v. John C. Conover Agency, Inc., 186 N.J. Super. 335, 339-40 (App. Div. 1982) (internal quotations omitted); see also Hart v. City of Jersey City, 308 N.J. Super. 487, 493 (App. Div. 1998) (acts complained of need to be established as unreasonably and offensively intrusive). "The thrust of this aspect of the tort is . . . that a person's private, personal affairs should not be pried into." Bisbee, supra, 186 N.J. Super. at 340.

In his first amended complaint, plaintiff alleged the following:

[E]mployees, including plaintiff, were told that they were being followed, watched, and recorded by video, that plaintiff's cell phones and home phones were bugged . . . all of which was reasonably believed by plaintiff to be in violation of the laws of the State of New Jersey and other laws, including the right to privacy . . . .

Plaintiff made similar claims in his proposed second amended complaint. These allegations, however, are insufficient to entitle plaintiff to relief for invasion of privacy, because:

(1) he never alleged that defendants actually intruded upon his seclusion, or delved into his private affairs; and (2) he never supported his claims with any basic and essential facts. See Glass v. Suburban Restoration Co., 317 N.J. Super. 574, 582 (App. Div. 1998) ("It has long been established that pleadings reciting mere conclusions without facts and reliance on subsequent discovery do not justify a lawsuit."); see generally R. 4:5-2 (pleading requires statement of facts upon which claim is based.).

Plaintiff's next claim, that the trial court erred in dismissing his claim for tortious interference with prospective economic advantage, is equally without merit. "An action for tortious interference with a prospective business relation protects the right to pursue one's business, calling or occupation free from undue influence or molestation." Printing Mart-Morristown, supra, 116 N.J. at 750 (internal quotations omitted). To establish a claim of tortious interference, plaintiff must establish: (1) a reasonable expectation of economic advantage; (2) defendants intentionally interfered with that interest; (3) injury or loss inflicted without justification or excuse; and (4) causation. Id. at 751.

Tortious interference requires meddling into the affairs of another. Cappiello v. Ragen Precision Indus., Inc., 192 N.J. Super. 523, 529 (App. Div. 1984). Thus, "fundamental" to that cause of action is that the claim must be directed against defendants who are not parties to the relationship giving rise to the economic interest. Printing Mart-Morristown, supra, 116 N.J. at 752. In other words, "[t]he tortious interference cause of action will only lie against defendants who are not parties to the contract." DiMaria Constr., Inc. v. Interarch, 351 N.J. Super. 558, 568 (App. Div. 2001), aff'd o.b., 172 N.J. 182 (2002). See also Silvestre v. Bell Atl. Corp., 973 F. Supp. 475, 486 (D.N.J. 1997) (claim of tortious interference can be waged only against third party that is not party to economic relationship at issue), aff'd o.b., 156 F.3d 1225 (3d Cir 1998).

At all relevant times to this litigation, Local 56 and the United Food Commercial Workers International Union were plaintiff's employer, i.e., a party to the economic relationship/employment at issue. Thus, plaintiff's claims against these defendants fail as a matter of law.

The dismissal of the tortious interference claim against the individual defendants is less straightforward. "[I]f an employee or agent is acting on behalf of his or her employer or principal, then no action for tortious interference will lie. If, on the other hand, the employee or agent is acting outside the scope of his or her employment or agency, then an action for tortious interference will lie." DiMaria Const., Inc., supra, 351 N.J. Super. at 568 (citations omitted). The question, therefore, is whether the acts allegedly performed by the individual defendants were outside the scope of their employment.

In the context of respondent superior liability, the New Jersey Supreme Court has stated that the "concededly imprecise" scope of employment standard "refers to those acts which are so closely connected with what the servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of the employment." Di Cosala v. Kay, 91 N.J. 159, 169 (1982) (internal quotations omitted). The Court added that conduct is generally considered to be within the scope of employment "if 'it is of the kind [that the servant] is employed to perform; it occurs substantially within the authorized time and space limits; [and] it is actuated, at least in part, by a purpose to serve the master.'" Ibid. (quoting Restatement (Second) of Agency § 228 (1957)) (alterations in original).

In a conclusory fashion, plaintiff alleges the individual defendants acted outside the scope of their employment. However, in light of the "scope of employment standard" established in Di Cosala, it is apparent the wrongful acts alleged in the amended complaint were committed within the scope of the individual defendants' employment. Indeed, the crux of plaintiff's tortious interference claim pertains to the manner in which the individual defendants handled labor negotiations with the union's signatory employers. Those acts, however, were closely connected to what the individual defendants were employed to do, and it is irrelevant that the methods chosen by the individual defendants to achieve their employment objectives were "improper." See ibid. (internal quotations omitted). Accordingly, the trial court correctly concluded that plaintiff failed to state a viable claim of tortious interference against the individual defendants.

To summarize: (1) we reverse the order entered on December 1, 2006, denying plaintiff's cross-motion to file a second amended complaint because plaintiff is entitled to pursue his "[h]andicap [d]iscrimination and [r]etaliation" claims, which are set forth in count two of his proposed second amended complaint; and (2) we affirm the trial court's decision to dismiss plaintiff's "[i]nvasion of [p]rivacy" and "[m]alicious [i]nterference [w]ith [p]rospective [e]conomic [a]dvantage" claims, which are set forth in counts one and three of plaintiff's proposed second amended complaint.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.


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