The opinion of the court was delivered by: Chesler, U.S.D.J.
This matter comes before the Court on the motion to dismiss filed by all Defendants [docket item #11]. Plaintiff has opposed this motion [docket item #19]. After consideration of the parties' briefing, the Court has determined that it will grant the motion to dismiss. In the following discussion, the Court gives its reasons for the decision.
Plaintiff's Complaint alleges that the New Jersey State Judiciary and various Justices and Judges of the New Jersey courts engaged in discriminatory and retaliatory conduct, which ultimately resulted in Plaintiff's failure to be re-appointed as a New Jersey Superior Court judge. The background for these claims, as set forth in the Complaint is as follows: On November 30, 2000, Plaintiff became the first and only Asian female jurist on the Superior Court of New Jersey. (Complaint ¶ 13). Unless given another seven-year term, or granted tenure, Plaintiff's appointment would, and did, end on November 29, 2007. (Id.) Upon being appointed, Plaintiff was first assigned to the Criminal Part, Essex County. (Id. at 15) On February 9, 2004, Plaintiff was re-assigned to the Landlord/Tenant division, Special Civil Part. (Id. at 17) Plaintiff alleges that "only judges of color" were being assigned to the Landlord/Tenant division. (Complaint ¶ 19) After expressing this concern, along with a concern regarding sexual harassment*fn1 , to then Assignment Judge Joseph A. Falcone, Plaintiff was ordered to remain in the Criminal Part.*fn2 (Id. at 20) Shortly thereafter, however, Plaintiff was reassigned to the Family Part. Plaintiff alleges that the rotation practices were discriminatory, as her white male counter-parts were not transferred to the Family Part until after receiving tenure. (Id. at 22) In 2004, Plaintiff informed then Assignment Judge Patricia Costello, that "there was a wide spread belief that the rotation practices in Essex County were discriminatory affecting only judges of color and women." (Complaint ¶ 23). Given the complexities of the Family Part, Plaintiff alleges that it is significantly more difficult to receive tenure when placed in the Family Part. (Id. at 26)
On February 25, 2005, the Presiding Judge of the Family Part informed Plaintiff of various complaints that could impact Plaintiff's career. (Id. at 29) Plaintiff was then ordered to attend a demeanor class based on the complaint of a pro se litigant. Plaintiff alleges that "no judge in Essex county has ever been directed to attend any demeanor class as a result of any complaint by a pro se litigant or from counsel." (Id. at 31). After attending the class, Plaintiff remained in the Family Part for another 3 years. While in the Family Part, Plaintiff received unfavorable reviews in the evaluations conducted by the attorneys practicing before her. (Id. at 39)
On May 2, 2005 the Director of the Administrative Office of the Courts of New Jersey, advised Plaintiff that the Administrative Office was investigating Plaintiff's claims of discrimination and required Plaintiff to submit to questions by an investigator. (Id. at 37) Subsequently, the Administrative Office "concluded the claim of discrimination, disparate treatment and retaliation was unfounded." (Id. at 37) On December 14, 2005, Plaintiff filed a Charge of Discrimination against the Judiciary with the New Jersey Division on Civil Rights. (Id.) Plaintiff further alleges that no one from the Judiciary assisted Plaintiff in seeking tenure, as, she contends, was the tradition with the other judges. (Id. at 41).
Under the New Jersey Court system, a Superior Court judge is appointed by the Governor for seven years. The appointment requires the approval of the State Senate. Upon the conclusion of seven years, the Governor has the option of reappointing the judge. If the Governor reappoints and the State Senate again confirms the reappointment, the Superior Court judge obtains tenure-effectively being appointed until the judge reaches the mandatory retirement age of seventy. On August 20, 2007, Governor Corzine's counsel informed Plaintiff that the Governor would not be re-nominating her. (Id. at 42) On October 10, 2007, Plaintiff sent a letter to Governor Corzine that she would not be seeking reappointment. (Id.)
Plaintiff's Complaint asserts six causes of action based on her status as a female and "her race and/or national origin": 1) disparate treatment in violation of 42 U.S.C. Section 1981; 2) retaliation in violation of 42 U.S.C. Section 1981; 3) disparate treatment in violation of 42 U.S.C. Section 1983; 4) retaliation in violation of 42 U.S.C. Section 1983; 5) disparate treatment under Title VII of the Civil Rights Act of 1964; and 6) retaliation under Title VII of the Civil Rights Act of 1964.
Defendant brings this motion pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss the claims asserted in the Complaint for failure to state a claim upon which relief may be granted. When evaluating the sufficiency of claims, the Court must apply the plausibility standard articulated by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). In Twombly and Iqbal, the Supreme Court stressed that a complaint will survive a motion under Rule 12(b)(6) only if it states "sufficient factual allegations, accepted as true, to 'state a claim for relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556.)
The cases are also clear about what will not suffice: "threadbare recitals of the elements of a cause of action," an "unadorned, the-defendant-unlawfully-harmed-me accusation" and conclusory statements "devoid of factual enhancement." Id. at 1949-50; Twombly, 550 U.S. at 555-57. While the complaint need not demonstrate that a defendant is probably liable for the wrongdoing, allegations that give rise to the mere possibility of unlawful conduct will not do. Iqbal, 129 S.Ct. at 1949; Twombly, 550 U.S. at 557. The issue before the Court "is not whether plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence in support of the claims." Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)); see also Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (relying on Twombly to hold that to survive a motion to dismiss a Complaint must assert "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element").
The Court must consider the Complaint in its entirety and review the allegations as a whole and in context. Iqbal, 129 S.Ct. at 1950. In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court may consider only the allegations of the complaint, documents attached or specifically referenced in the complaint if the claims are based upon those ...