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Diana May v. the Borough of Pine Hill

December 17, 2010


The opinion of the court was delivered by: Honorable Joseph E. Irenas

IRENAS, Senior District Judge:

This action arises out of Plaintiff Diana May's allegations of sexual harassment by Defendants Fred Costantino and John Kearney (the "Individual Defendants") and of retaliatory dismissal by the Individual Defendants and Defendant The Borough of Pine Hill ("Pine Hill").*fn1 Plaintiff asserts against all Defendants claims of sexual harassment under the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. § 10:5-12(A), (Count One), breach of implied covenant of good faith (Count Three), intentional infliction of emotional distress (Count Four), negligence (Count Five), violation of the New Jersey Conscientious Employee Protection Act ("CEPA"), N.J.S.A. § 34:19-1, et seq. (Count Six), violation of N.J.S.A. § 40A:9-145.8 (Count Seven), violation of federal employee rights (Count Eight), and defamation (Count Ten). Plaintiff also brings a claim of breach of employment contract against Defendant Pine Hill alone (Count Two).*fn2

Defendants move to dismiss Count One as to Defendant Kearney, and Counts Two, Three, Four, Five, Seven and Ten in their entirety, pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons stated herein, Defendants' Motion will be granted.


The facts outlined below and relied upon by the Court when deciding the instant Motion were alleged by Plaintiff in the Complaint.

Plaintiff was appointed as a tax collector for Pine Hill in 1991. (Complaint ¶ 11). She was an unclassified civil servant and had received tenure. (Id.) In January 2007, Defendant Kearney was appointed to serve as the solicitor of Pine Hill, and reappointed to that position in January 2008 and again in January 2009. (Id. at 13) Defendant Costantino was elected as mayor of Pine Hill on November 6, 2007. (Id. at 12)

Plaintiff alleges that she was sexually harassed by both Defendants Costantino and Kearney. The alleged harassment by Defendant Costantino occurred between November 2007 and August 2009. (Id. at 14) Plaintiff alleges that Defendant Costantino made sexual advances and sexually explicit comments towards her on multiple occasions during this period, as well as made sexually inappropriate comments about Plaintiff to co-workers while in Plaintiff's presence. (Id.) Defendant Costantino allegedly warned Plaintiff that "she should get used to this type of conduct on a continuous basis." (Id.) Plaintiff further alleges that when Defendant Costantino realized she would not welcome his advances, he "began to engage in a course of conduct which made it difficult, if not impossible for her to perform her duties" and caused her anguish which required medical treatment. (Id.)

The entirety of the alleged harassment by Defendant Kearney occurred in November 2007, when Defendant Kearney allegedly made sexually explicit comments towards Plaintiff at a meal while on a business trip in Atlantic City, New Jersey. (Id. at 15)

In addition to the sexual harassment, Plaintiff alleges that throughout 2008 and 2009 Defendant Kearney was "improperly and illegally" vacating judgments on properties in Pine Hill, and selling those properties to a personal acquaintance rather than putting them up for public auction. (Id. at 17). When Plaintiff confronted Defendant Kearney about these transactions, Defendant Kearney allegedly warned Plaintiff that "she better follow his instructions and keep these activities quiet if she wanted to keep her employment. . . ." (Id. at 18) When Plaintiff told Defendant Costantino about the transactions, Defendant Costantino allegedly made a similar warning to Plaintiff. (Id. at 19)

In August 2009, Defendant Pine Hill filed criminal charges against Plaintiff.*fn3 (Id. at 21) Plaintiff was also told not to return to work at that time, and has not received any salary or benefits since then. (Id.)

On December 14, 2009, Defendant Pine Hill filed a complaint against Plaintiff with the Director of the Division of Local Services. (Plaintiff's Response in Opposition to Defendants' Motion to Dismiss (Pl.'s Opp.) p. 3) The New Jersey Office of Administrative Law was designated to adjudicate the matter. (Id.)*fn4

Plaintiff initiated this action by filing her Complaint in the Superior Court of New Jersey, Law Division, Camden County, on April 23, 2010.

On May 21, 2010, Defendants filed a Notice of Removal with the Court. On June 4, 2010, Defendants filed the present Motion to Dismiss.


Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint "for failure to state a claim upon which relief can be granted." In order to survive a motion to dismiss, a complaint must allege facts that raise a right to relief above the speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Fed. R. Civ. P. 8(a)(2). While a court must accept as true all allegations in the plaintiff's complaint, and view them in the light most favorable to the plaintiff, Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008), a court is not required to accept sweeping legal conclusions cast in the form of factual allegations, unwarranted inferences, or unsupported conclusions. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). The complaint must state sufficient facts to show that the legal allegations are not simply possible, but plausible.

Phillips, 515 F.3d at 234. "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 ...

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