United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
matter comes before the Court on Defendant's Motion to
Dismiss Count IV of Plaintiffs First Amended Complaint (FAC).
Beginning in May 1999, plaintiff Bernacine Barnes worked as a
clerk for the County of Monmouth, Division of Social Services
(hereinafter "MCDSS") in the Customer Care Center.
(ECF No. 18, at ¶ 7). Defendant Hetty Rosenstein was the
New Jersey Area Director for the Communications Workers of
America, AFL-CIO ("CWA"), a labor union.
(Id. at ¶ 5). Defendant Jenelle Blackmon was a
Staff Representative for the CWA. (Id. at ¶ 6).
working at the MCDSS, plaintiffs primary responsibilities
included assisting county residents with requests for cash
assistance, food stamps, emergency shelter and housing, and
medical benefits from county programs. (Id.)
Plaintiff is African American, a Jehovah's Witness, and
at the time of the filing of the FAC, was 55 years old.
(Id. at ¶ 8). While working at the MCDSS,
plaintiff received only cost of living raises, and did not
receive any merit raises or promotions. (Id. at
February 2012 to July 2017, plaintiff made a series of
complaints to defendant MCDSS wherein she complained that she
was being mistreated by her supervisors at MCDSS.
Specifically, she alleges that discriminatory treatment based
on her race and religion, and that MCDSS refused to provide
reasonable accommodations for a disability relating to her
spine. (See Id. at ¶¶ 10-22). In March
2017, she alleges that her supervisors humiliated her in
front of her colleagues. (Id. at ¶¶
18-23). When she wrote to her supervisor to memorialize the
incident, she copied her union official on the email, and was
subsequently written up for improper use of the computer to
communicate with the Union. (Mat ¶¶ 18-23).
March 30, 2017, plaintiff met with two Union Officials and
two supervisors from MCDSS to discuss the March 2017 events.
(Id. at ¶ 24). At that meeting, plaintiff
alleges that the supervisors from MCDSS accused her of using
inappropriate tones and language in her emails, and started
to unilaterally amend the final record of the meeting.
(Id.) On May 5, 2017, plaintiff alleges that
defendant Jenelle Blackmon refused to provide her union
representation during a disciplinary proceeding brought
against her. (Id. at ¶ 26). On June 18, 2017,
plaintiff alleges that defendant Hetty Rosenstein refused to
provide her union representation during a disciplinary
proceeding brought against her. (Id. at ¶ 28).
Finally, on August 17, 2017, plaintiff was suspended
indefinitely without pay, and terminated from MCDSS on
October 13, 2017. (Id. at ¶¶ 34-35). She
later filed a charge of discrimination with the Equal
Employment Opportunity Commission, and was issued a right to
sue letter. (Id. at ¶¶ 36-37).
filed her amended complaint on August 9, 2018, bringing the
following claims: Count I, Violation of the Americans with
Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213
against MCDSS; Count II, Violation of the Age Discrimination
in Employment Act of 1967, 29 U.S.C. § 623 against
MCDSS; Count III, Violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e against MCDSS; Count IV,
Breach of Duty of Fair Representation against the CWA
defendants; Count V, Violation of the New Jersey
Conscientious Employee Protection Act, N.J.S.A. §
34:19-1 against MCDSS (Count V); Count VI, Violation of the
New Jersey Law Against Discrimination ("NJLAD")
(age) N.J.S.A. § 10:5-1 against MCDSS; Count VII,
Violation of NJLAD (Disability/handicap), N.J.S.A. §
10:5-1 against MCDSS; and Count VIII, Violation of NJLAD
(Ancestry/descent/religion) N.J.S.A. § 10:5-1 against
before the Court is the CWA defendant's motion to dismiss
pursuant to Federal Rules of Civil Procedure 8(a) and
12(b)(6). Accordingly, the only claim before the Court is
Count IV, Breach of Duty of Fair Representation by against
the CWA defendants.
motion to dismiss for failure to state a claim pursuant to
Fed.R.Civ.P. 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 Bell Atl Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). The Third Circuit
set forth a three-part analysis for determining whether not a
complaint may survive a motion to dismiss for failure to
state a claim:
First, the court must "tak[e] 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." Finally, "where 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."
Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d
means that [the] inquiry is normally broken into three parts:
(1) identifying the elements of the claim, (2) reviewing the
complaint to strike conclusory allegations, and then (3)
looking at the well-pleaded components of the complaint and
evaluating whether all of the elements identified in part one
of the inquiry are sufficiently alleged." Malleus v.
George, 641 F.3d 560, 563 (3d Cir. 2011). 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). The question is whether the
claimant can prove any set of facts consistent with his or
her allegations that will entitle him or her to relief, not
whether that person will ultimately prevail. Semerenko v.
Cendant Corp., 223 F.3d 165, 173 (3d Cir.), cert,
denied, 531 U.S. 1149 (2001).
pleader is required to 'set forth sufficient information
to outline the elements of his claim or to permit inferences
to be drawn that these elements exist."" Kost
v. Kozakewicz,1 F.3d 176, 183 (3d Cir. 1993) (quoting
5A Wright & Miller, Fed. Practice & Procedure: Civil
2d § 1357 at 340). "While a complaint attacked by a
Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiffs obligation to provide the
'grounds' of his 'entitle[merit] to relief
requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do,
... . Factual allegations must be enough to raise a right to
relief above the speculative level, ... on the ...