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Marisol Kuilan v. Sodexo Incorporated

May 31, 2012


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

Before the Court is Defendants Sodexo Incorporated*fn1 ("Sodexo"), Sodexho Food Services ("Food Services"), University Dining Services ("Dining Services"), Montclair State University ("Montclair"), Dora Lim ("Lim"), and Renee Cetrulo's ("Cetrulo") (collectively "Defendants") Motion to Dismiss Marisol Kuilan's ("Plaintiff" or "Kuilan") Complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted ("Motion"). This Court has jurisdiction over this matter pursuant to

28 U.S.C. §§ 1331 and 1343. Venue is proper in this District pursuant to 28 U.S.C. § 1391. This Motion is decided without oral argument pursuant to Fed. R. Civ. P. 78. For the reasons discussed below, this Court grants Defendants' Motion in part, and denies it in part.


On August 15, 2008, Kuilan applied for a kitchen position with Sodexo and specifically requested to work at Montclair. (Pl.'s Opp'n Br. Ex B, at 1.) The employment application inquired if Plaintiff had "ever been convicted of any felonies within the past seven (7) years." (Pl.'s Opp'n Br. Ex. B, at 1.)*fn2 Although Plaintiff pled guilty to two counts of aggravated assault in the fourth degree pursuant to N.J. Stat. Ann. § 2C:12-1b(3) and three counts of endangering the welfare of a child in the third degree under N.J. Stat. Ann. § 2C:24-4, she answered, "No" to that question because those convictions occurred twelve years before she applied for the position. (Pl.'s Opp'n Br. Ex. G, at 2; Pl.'s Opp'n Br. Ex. B, at 1; Compl. ¶ 19.) Thereafter, on August 18, 2008, Sodexo hired Plaintiff to work at Montclair. (Compl. ¶ 13.)

On August 29, 2008, Lim, the General Manager of the Montclair Dining Service and Cetrulo,*fn3 the Director of Resident Dining and the Red Hawk Diner at Montclair,*fn4 allegedly informed Plaintiff that she falsified information on her job application. (Id. ¶¶ 8, 9, 14.) As a result, Plaintiff was discharged. (Id. ¶ 14.) Kuilan alleges that Defendants informed her that she could return to work if she filed a request for expungement.*fn5 (Id. ¶ 20.)

Thereafter, Plaintiff retained an attorney to begin the expungement process. (Id. ¶ 21.) On September 2, 2008, Plaintiff's attorney sent a letter to Cetrulo informing her that Kuilan's convictions occurred twelve years ago and that she was entitled to an expungement. (Pl.'s Opp'n Br. Ex. C.)

Subsequently, on September 3, 2008, Plaintiff was briefly reinstated to her position. (Compl. ¶ 21.) Kuilan alleges that Defendants terminated her employment on September 11, 2008, "even though she had successfully shown that her conviction was being expunged." (Id.) On August 25, 2009, the New Jersey Superior Court granted Plaintiff's application for expungement. (Pl.'s Opp'n Br. Ex. D.)

On May 21, 2009, Plaintiff filed a complaint with the United States Equal Employment Opportunity Commission ("EEOC") against Sodexo alleging that it discriminated against her on the basis of national origin in violation of Title VII of the Civil Rights Act ("Title VII"), 42 U.S.C. §§ 2000(e) et. seq. (Palo Certification ("Certif.") Ex. C, at 2.) Sodexo, in response to the EEOC complaint, stated that it did not discriminate against Kuilan because she was terminated as a result of New Jersey Alcohol Beverage Control's ("NJABC") regulations. (Palo Certif. Ex. D, at 1.) Specifically, Sodexo argued that it holds a liquor license and NJABC prohibits it from employing any individual who has been convicted of a crime of moral turpitude. (Id.)

On May 6, 2010, the EEOC issued a determination letter concluding that based on evidence gathered during the investigation, Sodexo's "defense does not withstand scrutiny" and Kuilan "was subjected to discrimination on the basis of national origin." (Id. at 2.) The EEOC invited Plaintiff and Sodexo to initiate conciliation of the action. (Id.) However, the parties were unable to reach a settlement. (Compl. ¶ 18.) Consequently, on May 20, 2011, the EEOC issued a Notice of Right to Sue. (Id.)

Subsequently, on August 5, 2011, Kuilan initiated this action alleging that Defendants terminated her because of her race and/or national origin, (id. ¶ 21), in violation of Title VII and the New Jersey Law Against Discrimination ("LAD"), N.J. Stat. Ann. § 10:5-1 et. seq. Kulian also alleges that Defendants' conduct constitutes a breach of contract because they failed to enforce Sodexo's anti-discrimination policy. (Compl. ¶¶ 25-27.) Plaintiff seeks compensatory damages, punitive damages, attorney's fees, and interests and costs. (Id. ¶¶ 24, 28, 32.)


The adequacy of pleadings is governed by Fed. R. Civ. P. 8(a)(2), which requires that a complaint allege "a short and plain statement of the claim showing that the pleader is entitled to relief." See also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (stating that Rule 8 "requires a 'showing' rather than a blanket assertion of an entitlement to relief") (citation omitted). In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court must "'accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief."' Phillips, 515 F.3d at 231 (quoting Pinker v. Roche Holdings Ltd.,292 F.3d 361, 374 n.7 (3d Cir. 2002)). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). If the "well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct," the complaint should be dismissed for failing to "show[] that the pleader is entitled to relief" as required by Rule 8(a)(2). Iqbal, 129 S. Ct. at 1950 (internal quotation marks omitted).

According to the Supreme Court in Twombly, "[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[or her] '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." 550 U.S. at 555 (internal citations omitted). Furthermore, the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. The Third Circuit summarized the Twombly pleading standard as follows: "'stating . . . a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element." Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 556).


1. LAD Claim

a. Statute of ...

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