September 26, 2011
G. SATEESH MAHARAJ,
SAINT BARNABAS HEALTH CARE SYSTEM, ALBERT R. GAMPER, JR., RONALD DEL MAURO, SIDNEY SELIGMAN, ARNOLD MANZO, NEWARK BETH ISRAEL MEDICAL CENTER, DR. JOHN BRENNAN, ZACHARY LIPNER, R. DIBRIENZA, NANCY FALIK, CRAIG DOLAN, DEBBIE MIGTON, JUDY ESTOK, HANY ELZIND, SUNNY JUNG AND MARK HARRIS, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6364-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2011
Before Judges Carchman and Nugent.
Plaintiff G. Sateesh Maharaj appeals from the dismissal of his complaint for failure to state a claim upon which relief can be granted. R. 4:6-2(e). On appeal, he raises two new issues for consideration. First, he asserts that the pro se complaint form was deficient and fundamentally flawed. He also alleges that the judge erred by denying him an opportunity to amend his complaint to set forth claims of discrimination, harassment and retaliation. We reverse and remand. The issues raised by plaintiff are now moot. We determine that although styled as a motion to dismiss for failure to state a cause of action, the judge considered facts beyond the four corners of the complaint. As such, the motion was not properly decided as a motion under Rule 4:6-2.
These are the relevant facts. From June 1982 until February 5, 2010, plaintiff was employed as a pharmacist by defendant Newark Beth Israel Medical Center (NBIMC). Plaintiff's employment was terminated because of allegations that he violated numerous human resource policies regarding violence in the workplace as well as intimidating and disruptive behavior. NBIMC provides terminated employees with the opportunity to contest their termination through a peer review process. Although plaintiff underwent this process, he claims that it was "flawed" and "unfair and biased." He asserts that although he was told he was fired for violating specific policies, no evidence of these violations was ever presented to him.
After plaintiff filed his complaint, defendants Saint Barnabas Health Care System, Albert R. Gamper, Jr., Ronald DelMauro, Sidney Seligman, Arnold Manzo, NBIMC, Dr. John Brennan, Zachary Lipner, R. DiBrienza, Nancy Falik, Craig Dolan, Debbie Migton, Judy Estok, Hany Elzind, Sunny Jung and Mark Harris moved to dismiss. The text of defendants' motion stated that it was a motion to dismiss under Rule 4:6-2(e), for failure to state a claim upon which relief can be granted. Accompanying the motion were two attorney's certifications attesting to the authenticity of two of NBIMC's documents.
In his colloquy with defendant, the judge recognized the distinction between a Rule 4:6-2 motion and a motion for summary judgment under Rule 4:46 and said:
This is St. Barnabas' motion to dismiss the complaint under [Rule 4:6-2] alleging failure to state a cause of action or, in the alternative, a motion for summary judgment. I don't want to get into the summary judgment alternative because then we get into where everybody is, the discovery and everything else because I think your argument really is that it doesn't state a cause of action and it doesn't state a cause of action because, given the best interpretation for his papers, he was an at-will employee and as an at-will employee, if in fact he was an at-will employee, there's no grounds to contest [his] being let go. [(Emphasis added.)]
Yet in relating the relevant facts, the judge considered matters contained in the certifications and beyond the pleadings.
The motion judge concluded that because plaintiff was an at-will employee, he was not owed any explanation for the termination. The judge further found that the actions of plaintiff's employer and its failure to properly follow its own protocol implied that plaintiff had no contract with defendant NBIMC because the employment handbook explicitly stated that nothing contained therein could be construed as establishing a contract or constituting any promise to employees.
In response to the motion to dismiss, plaintiff filed a brief implying that he should be given an opportunity to amend his complaint to allege specific conduct as to various named defendants as well as to allege additional causes of action. The motion judge did not address these arguments but focused on defendant's at-will status. Plaintiff's arguments notwithstanding, the judge granted defendants' motion to dismiss for failure to state a claim.
We first address the issue of the dismissal of the complaint for failure to state a cause of action. R. 4:6-2(e). The motion judge concluded that because plaintiff was an at-will employee and the employee handbook disclaimed any employment contract, plaintiff had no basis for pursuing his cause of action. In addition, defendants raised the issue that as to the named defendants, no mention was made of the individuals in the body of the complaint, and no cause of action was set forth in the complaint. We have commented on the judge's consideration of these facts, but there are other issues.
We agree that the complaint gave scant notice of a cause of action, yet plaintiff alleged "wrongful termination," violation of his Weingarten*fn1 rights and a flawed peer review process, as well as other claims of misdeeds by defendants. The complaint is silent as to plaintiff's employment status - whether he is a contract or at-will employee. In fact, the first mention of his at-will status appears in defendants' second certification in support of their motion to dismiss. Because the judge considered this submission as a motion on the pleadings, neither certifications nor facts beyond the complaint may be considered. See R. 4:6-2; Pressler & Verniero, Current New Jersey Court Rules, comment 4.1.2 on R. 4:6-2 (2011).
The judge recognized that a motion for summary judgment at this early stage of the proceedings was problematic. There had been no discovery; accordingly, consideration of a dismissal on that basis would have been premature.
On its face, and granting to plaintiff the most generous reading of his allegations, the complaint may set forth a cause of action. We use the term "may" as there appear to be issues raised as to the employment practices of defendants. For example, although defendants cite IBM Corp., 341 NLRB 1288 (2004), for the proposition that Weingarten rights do not attach to employees in a nonunion setting, a policy identified as defendants' HR Policy 96, as quoted but not provided by plaintiff, appears to extend Weingarten rights to non-union and non-represented employees in defendants' workplace. If plaintiff's characterization of the policy is accurate, this issue requires further inquiry.
At the time of receipt of the complaint, defendants had, among other options, the right to file a motion to dismiss under Rule 4:6-2 or to file for a more definite statement pursuant to Rule 4:6-4, a procedure used with increasing frequency due to the recent proliferation of pro se filings. We do not fault defendants for choosing the former procedural route; however, our consideration of the nature of the pleadings and allegations raised convinces us that the procedures under Rule 4:6-4 were more appropriate here.
We reject any suggestion that the motion judge denied plaintiff an opportunity to be heard as to his various arguments. The motion judge demonstrated unfailing courtesy to plaintiff at all times during the hearing.
We are constrained to reverse and remand. On the remand, defendant may renew its motion for summary judgment. Plaintiff may, if he chooses, move to amend his complaint to set forth any additional facts or causes of action that may be relevant. We offer no opinion as to the merits as they will be determined by the motion judge.
We do not deem this a "second bite at the apple," see Bauer
v. Nesbitt, 198 N.J. 601, 610 (2009), because our mandate reflects those issues of which defendants complained in their submission to the motion judge in the first instance.
Finally, we reject plaintiff's argument that the Pro Se Packet provided to him by the judiciary was the source of his deficient pleadings. Aside from urging the benefits of being represented by counsel, the packet, in plain language, described for plaintiff that the "[c]omplaint is a document in which the plaintiff tells the court his or her version or perspective [of] the facts of a case and states what relief is sought." In his complaint, plaintiff identified the various defendants named in the caption. He had the obligation to set forth relevant facts related to those named defendants.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.