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McCann v. NJ Dep't of Personnel

November 17, 2009

ROBERT MCCANN, PLAINTIFF,
v.
NJ DEPT OF PERSONNEL, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Simandle, District Judge

HON. JEROME B. SIMANDLE

OPINION

This matter is presently before the Court on a motion to dismiss filed by Defendants New Jersey Department of Personnel, Veteran's Haven, Cindy Leese, Robert Saulselin, Lean McCloskey (collectively, "Defendants") [Docket Item 10] and Plaintiff's motion to amend his complaint [Docket Item 12]. For the reasons set forth below, the Court will grant in part and deny in part Defendants' motion to dismiss and deny Plaintiff's motion to amend without prejudice to Plaintiff filing a second motion to amend.

I. BACKGROUND

A. Factual Allegations

Plaintiff's initial complaint and his proposed amended complaint set forth virtually identical factual allegations. According to Plaintiff, Defendants unlawfully fired him without a hearing. (Compl.; Proposed Am. Compl.) Plaintiff asserts that he was promoted from a temporary to a permanent part-time position after a probationary period and as a result his pay rose from $9 per hour to $11 per hour. (Id.) He claims that within one hour of this promotion, he was fired and another employee who had previously been fired "for numerous policy infractions" was re-hired to take his place. (Id.) Plaintiff further alleges that he was fired "based on allegations that [he] had fraud charges" pending against him, but that in fact he had brought his employers proof that there were no such charges. (Id.)

B. Procedural History

Plaintiff filed his initial complaint in October 8, 2008, alleging that Defendants violated his rights to due process and equal protection and seeking relief under the Fair Labor Standards Act ("FLSA"), Title VII of the Civil Rights Act of 1969, and "U.S. Title 28 part V U.S. Title 440, US Title 710 [sic]." He sought relief in the form of lost wages, punitive damages, and an order reinstating his job. On April 27, 2009, Defendants filed the present motion to dismiss, in which they argue that (1) Plaintiff's due process claim must be dismissed because he was an at-will public employee with no due process rights, (2) Plaintiff's equal protection claim must fail because he did not allege discrimination based on membership in a protected class, (3) Plaintiff's Fair Labor Standards Act claim has no factual basis, (4) Plaintiff's Title VII claim must be dismissed for failure to exhaust administrative remedies, and (5) all remaining claims for relief are without legal or factual basis. Defendants attached to their reply brief a certification and a letter regarding Plaintiff's employment status.

Plaintiff opposed Defendant's motion to dismiss, but also submitted a motion to amend his complaint, to which he attached a proposed amended complaint. Plaintiff's proposed amended complaint, as discussed above, includes virtually identical factual allegations, but drops Plaintiff's claims under Title VII, the FLSA (generally, instead alleging a specific violation of the Equal Pay Act), and the miscellaneous statutes listed at the end of his first complaint. Instead, he seeks relief under 42 U.S.C. §§ 1981, 1982, and 1983, the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623, the Equal Pay Act, 29 U.S.C. § 206(d), and the New Jersey Law Against Discrimination ("NJLAD"), N.J. Stat. Ann. §§ 10:5-1 to - 49. The relief he seeks in the amended complaint, however, remains the same.

Defendants opposed Plaintiff's motion to amend, arguing in essence that he has similarly failed to state a claim under NJLAD, Sections 1981, 1982, and 1983, the ADEA, or the Equal Pay Act.

Plaintiff having voluntarily dismissed his Title VII and FLSA claims by way of his proposed amended complaint, his remaining claims are for constitutional violations of his right to due process and equal protection, presumably pursuant to 42 U.S.C. § 1983. He seeks to add claims under Sections 1981 and 1982, the ADEA, NJLAD, and the Equal Pay Act.

II. DISCUSSION

A. Standard of Review

In its review of Defendants' motion to dismiss, the Court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d ...


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