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Godfrey v. Giubardo

United States District Court, Third Circuit

November 5, 2013

JOHN GODFREY, Plaintiff,
v.
THERMCO and PHILIP GIUBARDO, Defendants.

OPINION

JOSE L. LINARES, District Judge.

This matter comes before the Court by way of Defendant Thermco and Defendant Philip Giubardo (collectively "Defendants")' Motion for Partial Dismissal of Plaintiff's Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). The Court has considered the submissions made in support of and in opposition to the instant motion. No oral argument was heard pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth below, Defendants' motion to dismiss is granted in part and denied in part.

I. BACKGROUND

A. Procedural History

On March 15, 2013, Plaintiff filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission ("EEOC") alleging violations of the Age Discrimination in Employment Act ("ADEA") and Americans with Disabilities Act ("ADA"). (Def. Mot. Exhibit A.) On August 8, 2013, Plaintiff filed the instant Complaint in this Court. [CM/ECF No. 1.] Plaintiffs Complaint is comprised of thirteen counts of discrimination under the New Jersey Law Against Discrimination ("NJLAD") and the ADEA. Against Defendant Thermco, Plaintiff alleges wrongful termination, hostile work environment, and retaliation on account of his age pursuant to the ADEA, and on account of his age and disability pursuant to NJLAD. (Compl. at ¶¶ 134-163.) Against Thermco's President, Philip Giubardo ("Giubardo"), Plaintiff asserts claims of retaliation, aiding and abetting disability discrimination, and aiding and abetting age discrimination under NJLAD. (Compl. at ¶¶ 164-172.)

Defendants filed a motion for partial dismissal of Plaintiffs Complaint on September 17, 2013. [CM/ECF No. 7.] Specifically, Defendants moved to dismiss all counts in the Complaint, with the exception of those for wrongful termination, because they are time-barred. Defendants also moved to dismiss the aiding and abetting counts against Giubardo because "as the alleged principal wrongdoer identified in the Complaint, it is legally impossible for him to have aided and abetted' his own allegedly improper conduct."[1] (Def. Mot. at 1.) On October 21, 2013, Plaintiff responded to Defendant's motion and clarified that he was not seeking to recover for any events outside of the relevant statute of limitations periods. [CWECF No. 9.]

Defendants filed a reply on October 31, 2013.[2] Defendants contend that Plaintiff should be forced to replead the allegations contained in the Complaint in a manner consistent with the Federal Rules of Civil Procedure and to make it clear which facts support which claims. [CM/ECF No. 10.] Defendants also assert that eleven of thirteen counts in Plaintiff s Complaint fail to state a prima facie cause action under either the ADEA or NJLAD against Defendants Thermco or Giubardo.

B. Relevant Facts[3]

Plaintiff is a 65-year-old male. (Compl. at ¶ ¶ 11-12.) He was employed as an outside salesman by Thermco beginning in 1991. ( Id. ¶¶ 24, 26.) In 2002, Defendant Giubardo discussed with Plaintiff the possibility that he could be promoted to Sales Manager. ( Id. ¶ 31.) That same year, during a business trip to a trade convention, Plaintiff experienced pain and discomfort due to arthritis in his hip and was unable to walk through the exhibition center. ( Id. ¶¶33-36.)

As a result, Plaintiff asked Giubardo to be excused from the convention for a short time to return to the hotel to rest, which Plaintiff contends was a request for a reasonable accommodation. ( Id. ¶¶ 36, 38.) Plaintiff went to the hotel gym to "stretch and try to loosen his hip." ( Id. ¶ 39.) When Giubardo returned and found Plaintiff in the gym, Giubardo was furious and refused to speak to him. ( Id. ¶¶ 40, 41.)

Plaintiff states that "after the hip incident" in 2002, he was never offered the promotion to Sales Manager. ( Id. ¶¶ 59, 60). Plaintiff asserts that after 2002, Giubardo was hostile towards him and excluded him from company trips. ( Id. ¶¶ 46-48.) Prior to the 2002 incident. Plaintiff was almost always included on business trips. ( Id. ¶ 46.) Unbeknownst to Plaintiff, after the 2002 incident, Defendants also "began spying on [his] accounts" and co-workers began conducting business on those accounts. ( Id. ¶¶ 52-54). Plaintiff "regularly suffered the embarrassment of being told by his own customers that important business had been conducted without his knowledge, " despite Plaintiff having asked to be included in the customer meetings or "at least informed as to their contents and results." ( Id. ¶¶ 54-55.) After the hip incident, Giubardo never discussed the Sales Manager position with Plaintiff again. ( Id. ¶ 159.) According to Plaintiff, such actions constitute unlawful disability discrimination and retaliation for the "incident with the hip" in 2002, and also constitute age discrimination. ( Id. ¶¶ 57-58).

In 2006, Defendants reorganized management personnel. ( Id. ¶¶ 61.) Several employees who joined the company between 2000 and 2002, all of whom were younger than Plaintiff, were promoted and given new titles. ( Id. ¶¶ 62-63.) One co-worker told Plaintiff that Giubardo had decided to go with "the younger guys." ( Id. ¶ 67.) Plaintiff states he was qualified for these positions and had more seniority than his younger co-workers who were promoted. ( Id. ¶ 70.) Plaintiff alleges that he was not promoted "because of his age and disability, " and that this nonpromotion constituted "continuing retaliation against [him] for having requested a reasonable accommodation for the arthritis in his hip." ( Id. ¶ 71.)

In 2009, Plaintiff was informed by Mr. Giubardo that instead of exclusively serving as an outside salesman, he would now "work as an inside radiant heat specialist three days per week and remain as an outside salesman for two days per week." ( Id. ¶ 73.) Plaintiff asserts that working as an inside salesman "is less desirable than working outside, " and made him feel humiliated and degraded because he had to cover the telephones and work for the younger, less experienced outside salesmen. ( Id. ¶¶ 73, 77, 78, 80.) Plaintiff "objected to and resisted this change because it was a demotion and because it was discriminatory based on his age and based on Giubardo's retaliation for Plaintiff's prior request to be accommodated during the 2002 business trip." ( Id. ¶ 74.) Plaintiff responded by "explain[ing] to management that he did not want this inside sales job, that he wanted it to be temporary, and that he would never work inside for more than 3 days per week." ( Id. ¶ 79.) Plaintiff also contends that he suffered a "loss of collegiality" when colleagues stopped inviting him to lunch after his demotion, which contributed to a hostile work environment. ( Id. ¶¶ 88, 91.)

As a result of the demotion, Plaintiff developed "stress-related autoimmune health problems and was prescribed medications by his doctors." ( Id. ¶ 81.) Plaintiff states that management was aware of his health problems. ( Id. ¶ 83.) On one occasion, "Giubardo commented that Plaintiff was standing crooked with one shoulder lower than the other." ( Id. ¶ 86.) Plaintiff contends that this comment was designed to humiliate him because of his medical conditions. ...


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