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Klemp v. State

January 11, 2010

KATHERINE KLEMP, PLAINTIFF-APPELLANT,
v.
STATE OF NEW JERSEY, DEPARTMENT OF LAW AND PUBLIC SAFETY, NEW JERSEY STATE POLICE, NEW JERSEY OFFICE OF WORKPLACE POLICY ADMINISTRATION AND ENFORCEMENT, MICHAEL SOVEY, JAMES FISH, AND WALTER KAVANAUGH, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-945-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 20, 2009

Before Judges Skillman and Gilroy.

Plaintiff Katherine Klemp appeals from the December 5, 2008 order that dismissed her amended complaint for failure to state a claim upon which relief can be granted, R. 4:6-2(e). We affirm in part; reverse in part; and remand for further proceedings.

Plaintiff is employed as a detective by the Division of State Police (Division) of the New Jersey Department of Law and Public Safety, having been sworn in as a State Trooper in November 1998. In February 2004, the Division transferred plaintiff to the Organized Crime Central Unit (OCCU). Defendant Lieutenant James Fish was in charge of OCCU; defendant Sergeant First Class Michael Sovey was second in command; and defendant Sergeant Walter Kavanaugh was attached to the OCCU. Plaintiff remained in OCCU until reassigned to the Digital Technology Investigations Unit on April 30, 2005.

On April 17, 2007, plaintiff filed a complaint against the Division, the individual defendants, the New Jersey Department of Law and Public Safety, and the New Jersey Office of Workplace Policy Administration and Enforcement, alleging that defendants had violated the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, by subjecting her to hostile work environment gender discrimination, and retaliating against her for having cooperated with an anonymous complaint to the Division's Equal Employment Opportunity/Affirmative Action Office (EEO/AA) concerning the derogatory and abusive manner in which the individual defendants had treated her. In lieu of filing an answer, defendants filed a motion seeking to dismiss the complaint for plaintiff's failure to state a claim upon which relief can be granted, contending that her claims were time barred.

On August 17, 2007, the trial court granted defendants' motion. Plaintiff appealed, and we reversed, granting plaintiff leave to file an amended complaint "alleging with specificity the dates on which alleged incidents occurred, the identity of the actors involved in those incidents and the statutes allegedly violated." Klemp v. State of New Jersey, A-0064-07 (App. Div. July 18, 2008) (slip op. at 6).

On September 16, 2008, plaintiff filed an amended complaint alleging the same causes of action against defendants (counts one and two). Additionally, plaintiff sought an order compelling the Office of Workplace Policy Administration and Enforcement to complete its internal investigation of the individual defendants that it had commenced in March 2005 (count three). Lastly, plaintiff added a fourth count alleging that because of defendants' actions or omissions, she was receiving psychological counseling.

On October 7, 2008, defendants again moved to dismiss the complaint pursuant to Rule 4:6-2(e). Defendants contended that plaintiff had failed to state a claim of retaliation because she failed to allege she had suffered an adverse employment action. Defendant also asserted that plaintiff failed to state a claim for hostile work environment because the amended complaint failed to state that defendant's actions were gender based. On December 5, 2008, the trial court, agreeing with defendants' arguments, entered an order supported by an oral decision granting the motion.

On appeal, plaintiff argues that the trial court erred in granting defendants' motion to dismiss. Plaintiff contends that she sufficiently alleged that she was subjected to an adverse employment action in reprisal for engaging in protected activities under the LAD. Plaintiff also asserts that she sufficiently alleged specific instances of the individual defendants' discriminatory and harassing actions to support "a single cause of action for [gender] discrimination."

On a Rule 4:6-2(e) motion to dismiss a complaint for failure to state a claim, the court applies an indulgent standard. "[T]he plaintiff is entitled to a liberal interpretation of [the] contents [of the complaint] and to the benefits of all its allegations and the most favorable inferences which may be reasonably drawn" therefrom. Burg v. State, 147 N.J. Super. 316, 319 (App. Div.) (quoting Rappaport v. Nichols, 31 N.J. 188, 193 (1959)), certif. denied, 75 N.J. 11 (1977). Every reasonable inference is accorded the plaintiff, Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989), and the motion is "granted only in rare instances and ordinarily without prejudice." Pressler, Current N.J. Court Rules, comment 4.1.1 on R. 4:6-2(e) (2010).

While the "inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint," Printing Mart-Morristown, supra, 116 N.J. at 746, the reviewing court must "view the allegations with great liberality and without concern for the plaintiff's ability to prove the facts alleged in the complaint." Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div.), certif. denied, 185 N.J. 297 (2005). Accordingly, "the test for determining the adequacy of a pleading [is] whether a cause of action is 'suggested' by the facts." Printing Mart-Morristown, supra, 116 N.J. at 746 (quoting Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)). In applying this test, a court treats the plaintiff's version of the facts as set forth in his or her complaint as uncontradicted and accords it all legitimate inferences. Banco Popular N. Am. v. Gandi, 184 N.J. 161, 166 (2005). On appeal, our standard of review is the same as the trial court's. Donato v. Moldow, 374 N.J. Super. 475, 483 (App. Div. 2005). It is against these principles that we consider plaintiff's arguments.

Plaintiff first argues that the trial court erred in dismissing her retaliation claim set forth in count two of the amended complaint for failing to allege she ...


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