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Johnson v. Gloucester County Improvement Authority

United States District Court, D. New Jersey

December 21, 2017


          THE O'HANLON LAW FIRM By: Stephen T. O'Hanlon, Esq. Counsel for Plaintiffs

          BROWN & CONNERY, LLP By: Christine P. O'Hearn, Esq. Benjamin S. Teris, Esq. Kathleen E. Dohn, Esq. Counsel for Defendants



         Plaintiffs Marcella Johnson, Betty Davis, Glenna Nichols, and Swardella Clark, all African American employees, two of whom are current, and two of whom are former employees of Defendant Gloucester County Improvement Authority, bring this suit alleging that they were subjected to disparate negative treatment because of their race, and that they suffered retaliation when they complained about the disparate treatment.

         Before the Court is Defendants' Partial Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons stated herein, the motion will be granted in part and denied in part.

         I. FACTS

         Defendant Gloucester County Improvement Authority allegedly operates Defendant Shady Lane Nursing Home. (Second Amended Complaint, “SAC”, ¶¶ 7-8) Plaintiffs Davis and Nichols presently work at Shady Lane. (SAC ¶¶ 19, 44, 20) Plaintiff Johnson worked at Shady Lane until she was terminated on April 3, 2017. (SAC ¶ 34) Plaintiff Clark worked at Shady Lane until “April, 2017” when she alleges she was “forced to resign.” (SAC ¶ 96) All four plaintiffs allege that they experienced continuous and pervasive discriminatory employment practices and a hostile work environment based on race, as well as retaliation, during their employment. Allegedly, the individual Defendants, Carmen Treffiletti, Shery Faulkner, Michelle Baylor, George Strachan, Sal Rocabaldi, Joe D'Angelo, Anthony Pepe, Megan Kerr, and Beth Higgins-- all allegedly supervisors at Shady Lane (SAC ¶¶ 9-17)-- individually acted in a discriminatory and retaliatory manner, and also allegedly conspired with each other to discriminate and retaliate against each Plaintiff. Each Plaintiff's specific factual allegations are set forth next in the order in which those allegations appear in the Second Amended Complaint.

         A. Plaintiff Johnson

         “Plaintiff Johnson started working at Defendant Shady Lane on August 4, 1999 initially as an environmental service / housekeeping employee.” (SAC ¶ 18)

         At some unspecified time “in 2011” “Plaintiff Johnson complained to the NAACP” about “all of the racist things that were going on at Defendant Shady Lane” including alleged “differential treatment” of African-American employees, and Caucasian employees allegedly using racial slurs. (SAC ¶ 22) In connection with that complaint, at some unspecified time, the president of the Gloucester County NAACP “met with” Defendant Strachan, the “head of EEO for Gloucester County” and Shady Lane's lawyer, and also “talked to” Plaintiffs Johnson and Davis. (SAC ¶ 23)

         “[B]y April 2, 2012, Plaintiff Johnson was laid off.” (SAC ¶ 24) She alleges she was laid off “in retaliation for” her NAACP complaint. (Id.)

         On July 27, 2012, Johnson returned to work at Shady Lane at “a lower paid position.” (SAC ¶ 25) After returning, Johnson alleges that she “was continually and pretextually written up for everything that Caucasian supervisors could get Plaintiff Johnson for.” (SAC ¶ 26) Specifically, Defendants Baylor, Treffiletti, and Pepe allegedly required Johnson to provide a “doctor's note” when she “called out sick.” (SAC ¶¶ 26-27) Then, allegedly, on September 5, 2013, “Defendants Baylor and Treffiletti called the doctor's office to see what kind of doctor he was.” (SAC ¶ 27)

         Johnson was “terminated” on September 27, 2013, but then she “won an arbitration and got her job back and she returned to work on January 15, 2015.” (SAC ¶ 27) Upon Johnson's return, allegedly Defendant Pepe “told Plaintiff Johnson that he was instructed to adversely treat Plaintiff Johnson and to pretextually terminate her by Defendants Baylor and Treffiletti.” (SAC ¶ 29)

         Johnson alleges that she continued to be “pretextually punished, ” “including Defendant Rocabaldi sending someone to Plaintiff Johnson's grandmother's funeral to see if Plaintiff Johnson was present.” (SAC ¶ 28) Johnson also alleges that Defendants Treffiletti, Kerr and Rocobaldi “would also write up Plaintiff Johnson for no reason in stark contrast to Caucasian employees.” (Id.)

         In May, 2016 “Defendants GCIA, Shady Lane, Treffiletti, and Strachan” allegedly falsely accused Johnson of calling a coworker “Uncle Tom.” (SAC ¶ 31)

         On March 28, 2017 Defendant Pepe allegedly “called [Johnson] to a meeting” “purportedly because Plaintiff Johnson had made statements that a certain nurse was only hired because she was Caucasian.” (SAC ¶ 32) Johnson denies having made any such statement. (Id.)

         Allegedly, two days later, Defendants Pepe and Baylor informed Johnson that she “would be placed on paid leave.” (SAC ¶ 33)

         “On April 3, 2017, Plaintiff was terminated in a meeting with Defendants Pepe and Baylor.” (SAC ¶ 34)

         B. Plaintiff Davis

         “Plaintiff Davis began working at Defendant Shady Lane on October 13, 1988 as a certified nurse's aid.” (SAC ¶ 19)

         “Around May 30, 2010” Defendant Faulkner allegedly “falsely accused” Davis of “injuring a patient” and imposed “adverse discipline” as a result. (SAC ¶ 36-37)

         Allegedly, “[b]etween 2011 and 2015, Plaintiff Davis was intimidated by Defendants Faulkner, Baylor, Treffiletti, and Higgins, who attempted to force Plaintiff Davis to retire when Plaintiff Davis injured herself at work. . . . Caucasian workers were never adversely treated like this when injured at work.” (SAC ¶ 38)

         The Second Amended Complaint does not allege that Davis was ever laid off or terminated, however, the Court infers that she was because the Second Amended Complaint alleges, without further explanation or context, “Plaintiff Davis did eventually get her job back with back pay on October 13, 2011.” (SAC ¶ 39)

         Then, allegedly in January, 2015, Davis slipped on ice and injured herself at work, which appears to have temporarily interfered with her ability to perform certain physical tasks at work. (SAC ¶ 40) Defendant Faulkner allegedly “did nothing” when Davis “inform[ed]” him about her severe pain in the days immediately following her fall. (Id.)

         On July 20, 2015, Davis was allegedly medically cleared “to return to work on full duty.” (SAC ¶ 41) Davis alleges that upon returning to full duty, Defendant Treffiletti “cut Plaintiff Davis' pay by $3 per hour” and that “Caucasian workers were never similarly treated.” (SAC ¶ 41)

         Lastly, the Second Amended Complaint alleges: “[o]n January 30, 2017 and in direct retaliation for meritorious racial discrimination complaints and the present lawsuit, Plaintiff Davis was disciplined by Defendant Pepe because Plaintiff Davis used the word ‘the' to Robin Atkinson. Defendant Pepe said this was a threat and complaints to Defendant Treffiletti regarding racial motivation by Defendant Pepe were ignored.” (SAC ¶ 43)

         C. Plaintiff Nichols

         “Plaintiff Nichols started working at Defendant Shady Lane on November 7, 2005 initially as a certified nurse's aid.” (SAC ¶ 20)

         Beginning in 2005, allegedly Defendant Faulkner would “write up” Nichols for using her sick time and for reporting to work late. (SAC ¶ 46-47) Allegedly, Caucasian employees' use of sick time was not punished and their tardiness was excused. (SAC ¶ 47)

         In 2007, Nichols allegedly experienced many incidents of verbal harassment and “bullying” by her co-workers and Defendant Strachan. (SAC ¶ 48-49; see also SAC ¶¶ 57-59, 68) Some of those incidents Defendant Faulkner allegedly witnessed and failed to correct; on another occasion Nichols allegedly complained to “David Shields of Defendant GCIA” who instructed Defendant Strachan to “‘handle it, '” thereby allegedly “forc[ing] [Nichols] to meet with Defendant Strachan alone, the very person that Plaintiff Nichols had complained about.” (SAC ¶ 12)

         Also “continuously from 2007 to the present, ” rules concerning the conduct of certified nurse's aids were allegedly strictly enforced by Defendants Faulkner and Higgins against African American employees, while the same rule infractions allegedly were “never an issue when the Caucasian aides did it.” (SAC ¶ 50; see also SAC ¶¶ 55, 64)

         Allegedly from 2007 through 2012, Nichols “repeatedly and constantly complain[ed] to Defendant Faulkner that Caucasian nurses and aids . . . mishandle[d] and verbally and physically abuse[d] residents[, ] . . . but nothing was done and it was just covered up.” (SAC ¶¶ 52-53; see also SAC ¶¶ 56, 61, 70, 72-73)

         In September 2009, Defendant Higgins allegedly disparately enforced rules concerning smoking and cell phone use by employees which, Nichols alleges, effectively created “segregated smoking areas based upon race between 2009 and 2012.” (SAC ¶ 63) During this time period Nichols alleges that she “frequently complained to Defendant Higgins about a segregated smoking area that was set up by Defendant Higgins but nothing was done.” (SAC ¶ 67)

         Allegedly, “[o]n October 28, 2009 . . . Plaintiff Nichols was falsely accused of verbally abusing [a resident] and was suspended for five days pending an investigation. Defendant Strachan believed coworkers' lies.” (SAC ¶ 69) Allegedly as a result, Defendant Faulkner imposed “progressive discipline.” (Id.)

         “[B]etween 2012 and 2017” Defendants Faulkner and Higgins allegedly instructed Caucasian employees to double-check the work of Plaintiffs Nichols and Clark “in hope of exacting discipline.” (SAC ¶ 75)

         During 2015, two Caucasian employees allegedly “began smacking Plaintiff Nichols on her butt once or twice a month.” (SAC ¶ 80) The Second Amended Complaint alleges that on September 29, 2015, Nichols “sent an email complaining to Defendants Baylor and Treffiletti.” (SAC ¶ 80) The Second Amended Complaint does not allege what happened after Nichols sent the email.

         Allegedly on November 26, 2015 Plaintiff Nichols complained to Defendant Treffiletti about verbal harassment by Caucasian coworkers. (SAC ¶ 81) Defendant Treffiletti allegedly “yelled at Plaintiff Nichols ‘all this craziness stops now.'” (Id.)

         D. Plaintiff Clark

         “Plaintiff Clark began working at Defendant Shady Lane on January 14, 2014 as [a] certified nurse's aid.” (SAC ¶ 21) Throughout 2014 and into February, 2015, Clark was allegedly “summoned to the office, ” “disciplined” and/or “censured” by Defendants Faulkner and Higgins many times for various rule infractions, whereas Caucasian employees who violated the same rules allegedly were not disciplined. (SAC ¶¶ 84-89, 91-92)

         Allegedly, “[i]n April of 2017, Plaintiff Clark was forced to resign because of repeated racism and pretextual discipline and retaliation. Even after Plaintiff Clark's resignation notice, Defendants Faulkner and Baylor cited Plaintiff Clark for insubordination when Plaintiff Clark was falsely accused of not signing a patient shower sheet and these Defendants suspended Plaintiff Clark for five days for false accusations of cumulative discipline.” (SAC ¶ 96)

         The Second Amended Complaint asserts the following claims: § 1983[1] claims against the individual defendants, as well as Gloucester County Improvement Authority and Shady Lane; § 1981[2] claims against the individual defendants, as well as Gloucester County Improvement Authority and Shady Lane; conspiracy claims against all Defendants; and New Jersey Law Against Discrimination (“LAD”)[3] claims against Gloucester County Improvement Authority and Shady Lane.[4]


         To withstand a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 663. “[A]n unadorned, the defendant-unlawfully-harmed me accusation” does not suffice to survive a motion to dismiss. Id. at 678. “[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 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

         In reviewing a plaintiff's allegations, a district should conduct a three-part analysis:

First, the court must take note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Third, when there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.

Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) (internal citations, quotations, and modifications omitted) (quoting Iqbal, 556 U.S. at 675, 679).

         Rule 12(b)(6) requires the district court to “accept as true all well-pled factual allegations as well as all reasonable inferences that can be drawn from them, and construe those allegations in the light most favorable to the plaintiff.” Bistrian, 696 F.3d at 358 n. 1. Only the allegations in the complaint and “matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case” are taken into consideration. Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir. 1994) (citing Chester Cty. Intermediate Unit. v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990)). A court may also “consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document.” Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).

         III. ...

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