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Alexandra Chavarriaga v. Ross Public Affairs Group

July 14, 2011

ALEXANDRA CHAVARRIAGA, PLAINTIFF-APPELLANT,
v.
ROSS PUBLIC AFFAIRS GROUP, INC., STEPHEN ROSS AND ELIZABETH WALLACE, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-2161-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 8, 2011

Before Judges Carchman and Waugh.

Plaintiff Alexandra Chavarriaga appeals from the dismissal of her amended complaint against defendants Ross Public Affairs Group, Inc. (Ross PAG), Stephen Ross and Elizabeth Wallace. The complaint alleged that Ross violated the New Jersey Racketeer Influenced and Corrupt Organizations Act (RICO), N.J.S.A. 2C:41-1 to -6.2; the New Jersey Wage Payment Act (Wage Act), N.J.S.A. 34:11-1 to -67 as well as the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. In addition, plaintiff alleged that Wallace retaliated against plaintiff for reporting the violations of the LAD. The motion judge dismissed both the RICO and Wage Act claims, concluding that they were barred because the allegations, even if true, failed to state a cause of action. As to the LAD claims, the judge dismissed the claims without prejudice to permit plaintiff to plead the claims with more specificity. Rather than file amended pleadings to adhere to the judge's ruling, plaintiff voluntarily dismissed the claims with prejudice.

We affirm the dismissal of the RICO and LAD claims and reverse and remand the Wage Act claim for further proceedings.

These are the facts adduced from the record before the judge on the motions to dismiss.

Plaintiff was employed as a part-time bookkeeper at Ross PAG in Somerville from June 26, 2006 until December 5, 2007, when she was fired by Ross. According to Ross PAG's company records, plaintiff received payment for the time she worked between November 16, 2007 and November 30, 2007, and for the time she worked during the following pay period, from November 30 until her termination on December 5, 2007.

After terminating plaintiff's employment at Ross PAG, Ross discovered numerous unauthorized purchases totaling $87,644.64. The purchases were made with a Ross PAG company business account credit card obtained by plaintiff. Ross reported plaintiff to the Somerset County Prosecutor's Office and an investigation ensued. The investigation resulted in a Somerset County Grand Jury issuing a twenty-four count indictment against plaintiff, including multiple counts of third-degree forgery and third-degree uttering a forged instrument, as well as one count of third-degree fraudulent use of a credit card and second-degree theft by deception.

Plaintiff pled guilty to all twenty-four counts of the indictment, and on May 21, 2009 was sentenced to a term of seven years imprisonment. Plaintiff was also ordered to pay $279,159.71 in restitution to defendants.

On November 30, 2009, plaintiff, who was incarcerated at the time, filed a three-count complaint against Ross and Ross PAG alleging the RICO and LAD claims. A four-count amended complaint including Elizabeth Wallace as a defendant and alleging reprisal under the LAD was filed thereafter.

As to the RICO count, plaintiff alleged that she was required to travel "for the benefit of Ross PAG" during her employment, and that Ross repeatedly declined to reimburse her for travel expenses despite her entitlement to reimbursement. She also alleged that Ross failed to compensate her for overtime. These were the allegations supporting the RICO claim. The Wage Act claim was based on plaintiff's allegation that "Ross PAG's failure to pay earned wages" violated the Wage Act, N.J.S.A. 34:11-4.4.

As to the LAD claims, plaintiff alleged that Ross created a hostile work environment for plaintiff based on her gender, and that he ultimately raped plaintiff, causing her to suffer from post-traumatic stress disorder (PTSD). Plaintiff further alleged that Ross's conduct constituted unlawful sex discrimination in violation of the LAD, N.J.S.A. 10:5-12(a). In a separate count, she alleged that she had been verbally and physically attacked by Ross's wife, Wallace, after she told Wallace about the alleged rape. She maintained that these acts constituted unlawful reprisal by both Ross PAG and Wallace in violation of LAD, N.J.S.A. 10:5-12(d) and (e).

On March 9, 2010, plaintiff filed a claim petition with the Division of Workers' Compensation. In the petition, she alleged that Ross had raped her at work and that she suffered PTSD and other psychological and physical manifestations as a result. Although the alleged date of injury is illegible,*fn1 the petition indicates that plaintiff reported the rape to Elizabeth Wallace in October 2007, and stopped work in November 2007.

Defendants filed a motion to dismiss the amended complaint for failure to state a claim upon which relief can be granted. Rule 4:6-2(e). In support of its motion, defendants argued that plaintiff's complaint was deficient due to the failure to plead dates of the alleged illegal conduct, and that the complaint was time-barred. In opposition to defendants' motion, plaintiff's counsel averred that although he first met with plaintiff on September 15, 2009, delays in filing the complaint and responding to defendants' motion occurred due to plaintiff's naivety concerning litigation procedure and communication difficulties due to plaintiff's imprisonment. Counsel also stated his "belief" that plaintiff suffers from PTSD but did not provide any expert diagnostic or report.

The judge dismissed both the RICO and Wage Act claims with prejudice. As to the violations of the LAD, the judge found that plaintiff's complaint failed to state when the alleged rape occurred and instead "urge[d] that the two-year statute of limitations should be equitably tolled because the rape caused the plaintiff to suffer [PTSD], which . . . interfered with her ability to timely bring her claim." The judge declined to rule on the statute of limitations issue but found that the complaint failed to put defendants on notice of the allegations. The complaint failed to specify the dates on which the alleged events occurred. The judge then dismissed the LAD counts without prejudice "to allow plaintiff to specify [the dates] and re-file."

Plaintiff appealed and notified the motion judge that it refused to file an amended complaint with the specific dates. In counsel's letter to the judge, he said: "Plaintiff has no intention of seeking leave to amend in the future, although assuming reinstatement, she does not waive the right to have the pleadings conform to the proofs." Instead of ...


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