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Milano v. Federal Express Corporation

United States District Court, D. New Jersey

October 20, 2014



JOEL A. PISANO, District Judge.

Plaintiff Raymond Milano ("Plaintiff" or "Milano") has filed this action against his former employer, Defendant Federal Express Corporation ("Defendant" or "FedEx"), alleging numerous claims stemming from his termination from the company after twenty-six years of employment. This matter comes before the Court upon a Motion to Dismiss filed by Defendant FedEx [ECF No. 4]. Plaintiff opposes the Motion. The Court has considered the parties' submissions and held oral argument on October 9, 2014. For the reasons set forth below, the Court grants Defendant's Motion to Dismiss.

I. Background

The following allegations are summarized from the Complaint, and must be taken as true in deciding this Motion to Dismiss.[1]

Plaintiff was hired by FedEx on or about February 22, 1982. Plaintiff alleges he was a model employee throughout his twenty-six years of employment with FedEx. His reviews averaged 6.4 out of 7. He also won the "Pride Award, " a prestigious award given to only one employee a year. As an employee, he worked well over 59 hours a week. He had reached the top pay scale of approximately $26 per hour, and had five weeks of vacation per year. Plaintiff had also maximized his pension, and was building towards a second pension. At the time he was terminated, Plaintiff was approximately number five in seniority out of approximately 250 people at the Edison, New Jersey facility.

During his entire employment with FedEx, Plaintiff called out twice on Christmas Eve. The final time he called out was during his final year of his employment with FedEx, when, as a result of his father-in-law passing away, he took three days of bereavement leave. This leave included Christmas Eve. Plaintiff alleges that all employees are entitled to such bereavement leave, especially those whom are as senior as Plaintiff. Plaintiff alleges that FedEx management frowned upon the fact that he was missing Christmas Eve, despite his seniority and alleged entitlement to this bereavement leave.

Plaintiff alleges that the combination of his bereavement leave, his high pay scale, his five weeks of vacation, and his beginning of a second pension caused FedEx management, including David Lobell ("Lobell"), [2] to "conspire and fabricate" stories that Plaintiff was harassing ten employees of a Gap store that was only one of the hundreds of businesses to which Plaintiff made deliveries. This Gap store was managed by Lobell's son's girlfriend. Gap employees who were managed by Lobell's son's girlfriend made various complaints against Plaintiff. Plaintiff did not know most of these employees. While Plaintiff was out on bereavement leave, Lobell allegedly made false statements in front of Plaintiff's coworkers, telling Plaintiff's coworkers that Plaintiff had sexually harassed no less than ten women in one store. Lobell then threatened to kill Plaintiff for what he allegedly did at the Gap.

Upon Plaintiff's return to work, he was called into his manager's office, allegedly without any due process, and was escorted off the premises "pending investigation." Compl. ¶ 26. Plaintiff was told to return three days later, at which point he was given a termination letter from FedEx.

Plaintiff alleges that these statements by Lobell affected his position in the company, his reputation, his ability to work with other employees, his promotions and pay, and other aspects of his employment and personal life. Plaintiff alleges that Lobell was aware that the statements and representations he made about Plaintiff were false when he made them, and asserts that these false representations were made in an attempt to discredit him and cause him problems in the workplace, as well as to cause him emotional distress. He alleges that FedEx and Lobell planned and conspired to terminate Plaintiff as a result of his pay rate, vacation time, second pension, and for calling out on Christmas Eve, with knowledge that if they terminated Plaintiff they could replace him with a new employee who would make less money, have a different pension and less vacation, and would save them on overtime pay.

On January 7, 2014, Plaintiff filed an eight-count Complaint in the Superior Court of New Jersey, Middlesex County, Law Division. On February 14, 2014, FedEx removed to this Court based on diversity jurisdiction and federal question jurisdiction. In his Complaint, Plaintiff alleges the following claims: (1) "hostile work environment/wrongful termination" in violation of "public policy and various New Jersey and/or Federal statutes, " Compl. First Count, ¶ 4; (2) interference with prospective economic advantage; (3) intentional infliction of emotional distress; (4) libel/slander/defamation; (5) breach of fiduciary duty; (6) breach of contract; (7) breach of implied covenant of good faith and fair dealing; and (8) "concert of action." Compl. Eighth Count.

II. Standard of Review

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." Fed.R.Civ.P. 12(b)(6). When reviewing a motion to dismiss, courts must first separate the factual and legal elements of the claims, and accept all of the well-pleaded facts as true. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). All reasonable inferences must be made in the Plaintiff's favor. See In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010).

In order to survive a motion to dismiss, the plaintiff must provide "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This standard requires the plaintiff to show "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A "plaintiff's obligation to provide the grounds of his 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." Twombly, 550 U.S. at 555 (internal quotations and citations omitted). When assessing the sufficiency of a civil complaint, a court must distinguish factual contentions and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Iqbal, 556 U.S. at 678. Any legal conclusions are "not entitled to the assumption of truth" by a reviewing court. Id. at 679. Rather, "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id . See also Fowler, 578 F.3d at 210 (explaining that a proper complaint "must do more than allege a plaintiff's entitlement to relief").

A statute of limitations defense may appropriately be raised in a motion to dismiss under Fed.R.Civ.P. 12(b)(6) under the law of this Circuit (the so-called "Third Circuit Rule"). The Third Circuit Rule permits a limitations defense to be raised "if the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations.'" Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002) (quoting Hanna v. U.S. Veterans Admin. Hosp., 514 F.2d 1092, 1094 (3d Cir. 1975)). "If the [statutory] bar is not apparent on the face of the complaint, then it may not afford the basis for a dismissal of the complaint under Rule 12(b)(6)." Bethel v. Jendoco Constr. Corp., 570 F.2d 1168, 1174 (3d Cir. 1978 ). See also Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 1 (3d Cir. 1994) ("While the language of Fed.R.Civ.P. 8(c) indicates that a statute of limitations defense ...

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