United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
before the Court is Defendant Bank of America's
(hereinafter, "BOA") motion to dismiss Plaintiff
Raymond Martin's Third Amended Complaint (hereinafter,
"Complaint") pursuant Federal Rule of Civil
Procedure 12(b)(6). (ECF No. 67). In his Complaint, Plaintiff
alleges claims of discrimination contrary to Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2OOOe et seq., and
the New Jersey Law Against Discrimination (NJLAD), N.J.S.A.
§ 10:5-12 et seq.
case arises from allegations of workplace discrimination. In
August 2013, Plaintiff, a Jamaican born male, was hired by SA
IT Services. (Complaint at ¶¶ 7-10). Thereafter, SA
IT contracted with BOA to provide information technology
services at their Pennington, New Jersey office.
(Id. at ¶ 11). Apparently, Plaintiff was
assigned to work on this contract and was to report to
training in Arizona beforehand. (Id. at ¶ 12).
However, when Plaintiff inquired about travel arrangements
for his training, he was allegedly told by an SA IT employee,
Christina Hause, that BOA did not want anyone with a Jamaican
accent working on the project and, as a result, SA IT fired
him. (A/at ¶ 13).
point later in August 2013, Plaintiff filed a charge with the
Equal Employment Opportunity Commission (hereinafter,
"EEOC"), alleging racial discrimination.
(Id. at ¶ 14). However, on November 4, 2013, S
A IT rehired Plaintiff to work as a refresh technician at
BOA's Pennington office. (Id. at ¶ 15).
According to Plaintiff, his "direct supervisor was
Angela Oberg who, using a BOA email address, corresponded
with Plaintiff and managed Plaintiffs day-to-day
activities." (Id. at¶l6).
claims that SA IT later contacted the EEOC to notify them
that the underlying charge had been resolved and, therefore,
sought to have the complaint dismissed. (Id. at
¶ 17). According to the Complaint, Plaintiff refused to
withdraw his EEOC complaint and, as a result, SA IT and BOA
responded by treating him differently than other employees
and creating a hostile work environment. (Id. at
¶ 18). Specifically, Plaintiff claims that while BOA
issued work cell phones and computers to its other employees,
he received neither. (Id. at ¶ 19). As such,
Plaintiff alleges that "SA IT and BOA conspired to
create a hostile work environment for Plaintiff by limiting
his administrative rights, access to outlook email and
prevented him from remotely accessing BOA's system in
order to perform his job." (Id. at ¶ 20).
According to the Complaint, SA IT fired Plaintiff some point
thereafter. (Id. at ¶ 21).
Complaint, Plaintiff alleges that SA IT was an agent of BOA,
when the purported discriminatory conduct occurred.
(Id. ¶¶ 23-24). As such, Plaintiff claims
that BOA is liable based on its principal-agent relationship
with SA IT. (Id. ¶ 32). BOA seeks dismissal of
Plaintiffs Complaint, since it was not his employer and,
alternatively, because he failed to exhaust his
motion to dismiss for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6), the Court is
required to accept as true all allegations in the Complaint
and all reasonable inferences that can be drawn therefrom,
and to view them in the light most favorable to the
non-moving party. See Oshiver v. Levin, Fishbein, Sedran
& Berman, 38 F.3d 1380, 1384 (3d Cir. 1994).
"To survive a motion to dismiss, 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 BellAtl. Corp. v. Twombfy, 550
U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). While
a court will accept well-pleaded allegations as true for the
purposes of the motion, it will not accept bald assertions,
unsupported conclusions, unwarranted inferences, or sweeping
legal conclusions cast in the form of factual allegations.
Iqbal, 556 U.S. at 678-79; see also Morse v.
Lower Merion School District, 132 F.3d 902, 906 (3d Cir.
1997). A complaint should be dismissed only if the
well-pleaded alleged facts, taken as true, fail to state a
claim. See In re Warfarin Sodium, 214 F.3d 395,
397-98 (3d Cir. 2000).
seeks dismissal of Plaintiffs Complaint since no employment
relationship existed between it and Plaintiff such that it
could be liable under either Title VII or NJLAD. Plaintiff
responds, contending that, as an agent of BOA, it is
protected under both statutes. The Court disagrees.
well-established that independent contractors are not
protected under Title VII or NJLAD. See Shah v. Bank of
Am., 346 Fed.Appx. 831, 833 (3d Cir. 2009) (stating that
independent contractors are not protected by Title VII);
see also Pukowsky v. Caruso, 711 A.2d 398, 402 (
N.J.Super.Ct.App.Div. 1998) ("The federal cases
interpreting Title VII, the LAD, and similar laws seem to
uniformly hold that independent contractors are not
'employees' within the meaning of anti-discrimination
statutes."). As such, to state a claim under either
statute, Plaintiff must first establish that he was employee
of BOA, not SA IT. Id. Here, fatal to Plaintiffs
Complaint against BOA is the fact that Plaintiff concedes
that he was SA IT's, not BOA's, employee. As such,
because there is no employment relationship between Plaintiff
and BOA, Plaintiffs Title VII and NJLAD claims fail.
attempt to cure the absence of an employment relationship,
Plaintiff relies on the statutory definition of
"employer, " in support of his assertion that Title
VII applies. Title VII defines an employer as "a person
engaged in an industry affecting commerce who has fifteen or
more employees for each working day in each of twenty or more
calendar weeks in the current or preceding calendar year, and
any agent of such a person." 42 U.S.C. §
2OOOe(b) (emphasis added). "The phrase 'and any
agent of such a person, ' was intended by Congress to
establish traditional respondeat superior liability. That is,
'the phrase.. .simply means that an employer is liable
for acts of those employees acting within the scope of their
employment, but does not extend liability beyond the employer
to the individual harasser."' Healy v.
Henderson, 275 F.Supp.2d 40, 45 (D. Mass. 2003);
(quoting Homey v. Westfield Gage Co., 95 F.Supp.2d
29, 33 (D. Mass. 2000)). Here, although the Complaint alleges
that SA IT was BOA's agent, the record is bereft of any
factual allegations that demonstrate the existence of an
agency relationship or the degree of control that BOA may
have had for this Court to even find respondeat superior
even assuming that Plaintiff sufficiently alleged the
existence of an agency relationship, the Court finds fatal to
his cause of action the fact that he failed to exhaust his
administrative remedies as required under federal law.
"A complaint does not state a claim upon which relief
may be granted unless it asserts the satisfaction of the
precondition to suit specified by Title VII: prior submission
of the claim to the EEOC for conciliation or
resolution." SeeRobinson v. Dalton,107 F.3d 1018, 1022 (3d Cir. 1997). "A complainant may
not bring a Title VII suit without having first received a
right-to-sue letter." Burgh v. Borough Council of
Montrose,251 F.3d 465, 470 (3d Cir. 2001). Moreover,
"[a] Title VII action ordinarily may be brought only
against a party previously named in an EEOC action."
Schafer v. Bd. of Pub. Educ. of the Sch. Dist. of
Pittsburgh, 903 F.2d. 243, 252-53 (3d Cir. 1990) (citing
42 U.S.C. § 2OOOe-5(f)(1)). This being said, a Title VII
suit will not necessarily be dismissed against an unnamed
party if it had notice and shared a common interest with the
named party in the EEOC Complaint. See Glus v. G.C.
Murphy Co.,629 F.2d 248, 251 (3d Cir. 1980),
vacated on other grounds,451 U.S. 935 (1981). Here,
it is undisputed that Plaintiff did not name BOA in his
August 2013 EEOC charge asserting discrimination. In
addition, there nothing in the Complaint to ...