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Buckley v. Power Windows & Siding

October 7, 2010

KATHLEEN BUCKLEY PLAINTIFF,
v.
POWER WINDOWS & SIDING, INC., ET AL. DEFENDANTS.



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

OPINION

This is a diversity action in which plaintiff, Kathleen Buckley ("Plaintiff") alleges violations of New Jersey's Law Against Discrimination ("LAD") and common law claims of intentional and negligent emotional distress against Power Window & Siding, Inc. ("Power Windows"), Jeffrey Kaliner, Adam Kaliner and Robert Borislow (collectively, "Defendants"). Presently before the Court is a motion by Defendants to dismiss the First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and to strike certain allegations pursuant to Rule 12(f). For the reasons below, Defendant's motion is granted as to Plaintiff's age discrimination claim, and denied in all other respects.

I. Background*fn1

Plaintiff, who at all times relevant to this action was over 40 years old and a lesbian, was employed by Power Windows between 1999 and 2008. Power Windows, a Pennsylvania corporation, had its principal place of business located in Brookhaven, Pennsylvania. Notice of Removal ¶ 9. Defendant Jeffrey Kaliner was the CEO and co-owner of the company, as well as Plaintiff's direct supervisor. Defendant Adam Kaliner was CFO and co-owner of the company, while defendant Robert Borislow was Senior Vice President of Operations.

Plaintiff began her employment with Power Windows in 1999 as a telemarketer. At that time Plaintiff was a Delaware resident. In 2003 she became Direct of Events, and was responsible for organizing and promoting offsite home shows, in-store demonstrations and other events throughout New Jersey, Pennsylvania, Delaware and Maryland. She was responsible for managing a team of employees who worked at these offsite locations.

In 2005, Plaintiff "was instrumental" in opening Power Windows' Cherry Hill, New Jersey office, and used this office as her "base office" until it closed at an unspecified date. First Amended Complaint ("FAC", also referred to herein as the "complaint") ¶ 22. In 2007, Plaintiff became a resident of New Jersey. In 2008, Plaintiff was again "instrumental" in opening up another Power Windows office in New Jersey (at an unspecified location), which she used as her base office until the time of her termination. Id. ¶ 27. Thereafter, Plaintiff worked approximately 4 days per week at a New Jersey office. Id. ¶ 28.

Plaintiff alleges that throughout the course of her employment, Jeffery Kaliner, Adam Kaliner and Robert Borislow "engaged in behavior against the Plaintiff which was harassing and discriminatory towards the Plaintiff on the basis of her age, gender, and sexual orientation on a continuing and recurring basis and created a hostile environment to the Plaintiff." Id. ¶ 29. By way of example, Plaintiff alleges that Jeffry Kaliner "would frequently comment on her flat chest, saying that all she has are nipples and that he know it[']s true because he had looked down her shirt when she bent over." Id. ¶ 49. The complaint details several other instances of behavior that Plaintiff alleges was harassing and discriminatory.

Count I of the complaint alleges that Plaintiff was subjected to a hostile work environment in violation of the LAD. She alleges she suffered intentional harassment because of her age, gender and sexual orientation in violation of the LAD, and Defendants knew of, aided and abetted, and participated in such harassment. Counts II, III, and IV allege gender discrimination, sexual orientation discrimination, and age discrimination, respectively, in violation of the LAD. Count V alleges that Defendants violated the LAD because they retaliated against her for lodging complaints of discrimination. Counts VI and VII are claims of intentional and negligent infliction of emotional distress.

Defendants have moved to dismiss the complaint. First, Defendants argue that Pennsylvania law applies to Plaintiff's discrimination and retaliation claims and Plaintiff has not exhausted her administrative remedies as required under that law. Second, Defendants assert that "any allegations of conduct occurring prior to May 28, 2007 are barred by the two-year statute of limitations" and therefore should be stricken under Rule 12(f). Def. Brf. at 21. Third, Defendants assert that Plaintiff's claims are conclusory and fail to meet the pleading standards as set forth in Twombly and Iqbal. Last, Defendants argue that Plaintiff's claims for intentional and negligent infliction of emotional distress fail to state a claim under either Pennsylvania or New Jersey law.

II. Analysis

A. Motion to Dismiss Standard

Under Federal Rule of Civil Procedure 12(b)(6), a court may grant a motion to dismiss if the complaint fails to state a claim upon which relief can be granted. The Supreme Court refashioned the standard for addressing a motion to dismiss under Rule 12(b)(6) in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Twombly Court stated that, "[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ... a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]" Id. at 555 (internal citations omitted); see also Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir.2007) (stating that standard of review for motion to dismiss does not require courts to accept as true "unsupported conclusions and unwarranted inferences" or "legal conclusion[s] couched as factual allegation[s]." (internal quotation marks omitted)). Therefore, for a complaint to withstand a motion to dismiss under Rule 12(b)(6), the "[f]actual allegations must be enough to raise a right to relief above the speculative level, ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact) ..." Twombly, 550 U.S. at 555 (internal citations and footnote omitted).

More recently, the Supreme Court has emphasized that, when assessing the sufficiency of a civil complaint, a court must distinguish factual contentions and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Ashcroft v. Iqbal, --- U.S. ---, ---, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). A complaint will be dismissed unless it "contain[s] sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. at 1949 (quoting Twombly, 550 U.S. at 570). This "plausibility" determination will be "a context-specific task that requires the reviewing ...


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