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Scott v. Schindler Elevator Corporation

United States District Court, D. New Jersey

May 2, 2019


          MARCIA Y. PHILLIPS MARCIA Y. PHILLIPS, ESQ. LLM & ASSOC. PO BOX 625 Attorney for Plaintiff Theodore R. Scott.


          TIMOTHY MICHAEL MCCARTHY JACKSON LEWIS P.C. Attorneys for Defendants Schindler Elevator Corporation, Dave Durant, Kyle Rainwater, and Joe Zeilman.


          NOEL L. HILLMAN, U.S.D.J.

         This case concerns various federal and state employment discrimination claims, as well as state common law claims, relating to the termination of Plaintiff's employment with Defendants. Currently before the Court is Defendants' Motion to Dismiss the Second Amended Complaint (“Motion to Dismiss”) and Plaintiff's opposition, as well as various letters relating to a release allegedly signed by Plaintiff. Also before the Court is Defendants' Motion to Seal and Plaintiff's request for leave to amend and to strike. For the reasons that follow, this Court will grant Defendants' Motion to Dismiss, in part, and deny it, in part; grant, in part, and deny, in part, Defendants' Motion to Seal; deny, without prejudice, Plaintiff's requests to strike and for leave to amend.


         This Court takes its facts from Plaintiff's Second Amended Complaint (“SAC”). Plaintiff is Theodore R. Scott, an African-American over the age of forty who was an employee of Defendant Schindler Elevator Corporation (“Schindler”) for over twenty-two years. Defendants Dave Durant, a superintendent, Kyle Rainwater, a district manager, and Joe Zeilman, a district service manager (collectively, “Individual Defendants”), were also involved in Plaintiff's employment at Schindler.

         In 1989, Plaintiff was hired by Defendant Schindler to work as an elevator mechanic. During that time, it appears that Plaintiff worked in New Jersey. In 2011, Defendant Schindler is alleged to have laid off Plaintiff due to lack of work. Thereafter, Plaintiff filed a civil rights complaint against Defendant Schindler before the New Jersey Department of Civil Rights (“NJDCR”). Plaintiff claimed that he was not laid off due to lack of work, but due to discrimination on the basis of his race and age. Those claims, according to Plaintiff, were settled. (Pl.'s SAC ¶ 33.) After settling the claims, Defendant Schindler rehired Plaintiff. Plaintiff “work[ed] briefly in New Jersey.” (Pl.'s SAC ¶ 9.) Then, according to Plaintiff, he was transferred to “The Mellon Bank Center building located at 1735 market Street, Philadelphia Pennsylvania.” (Pl.'s SAC ¶ 10.) He worked there for eighteen months before he was terminated.

         The events giving rise to the current claims center around two areas: access to a company vehicle and access to water.[1]Plaintiff was informed at some point during his time with Defendant Schindler that he was eligible to apply for a company van, which was used to transport specialized tools and supplies to worksites. Notably, in Pennsylvania, union rules required elevator mechanics to use a company vehicle to transport this equipment. A company vehicle was not required in New Jersey. A company vehicle was coveted by mechanics because it represented an opportunity for increased earnings. Plaintiff requested a company vehicle, but was denied. Plaintiff claims he was the only person of his seniority without one (who had requested one) and that those who had company vehicles were (1) white and (2) sometimes with less seniority than Plaintiff.

         As for access to water, when Plaintiff started work in Philadelphia the building contained water fountains. But, these were removed by building management and a water cooler was placed in Defendant Schindler's onsite office. Although Defendant Schindler provided the water cooler, it did not provide any water. Without water, Plaintiff asked a building employee where he could get a water jug. The employee led Plaintiff to believe he could take water jugs from a storage area in the building. Plaintiff took those water jugs and used them - and so did other onsite Schindler employees. Plaintiff estimates this occurred between one and five times.

         On May 29, 2014, Plaintiff was told to report to Defendant Schindler's main office in Moorestown, New Jersey. When he arrived, he was confronted by Individual Defendants and he was told that he had been seen stealing water jugs. Plaintiff admitted he had replaced a water jug in the manner indicated supra, and it was only then that he realized the water jugs were not for him to take. Plaintiff offered to pay for the water jugs. Without further investigation, Defendant Schindler fired Plaintiff, reasoning that Plaintiff's comments, supra, were an admission of theft and that theft violated its zero-tolerance policy. Plaintiff alleges that he was treated differently than those who were not African-Americans and that, in doing so, Defendant Schindler did not follow its progressive discipline policy. Those individuals were given warnings or transferred, but rarely fired.

         Thereafter, Plaintiff filed discrimination charges before the NJDCR and the Equal Employment Opportunity Commission (“EEOC”) on July 16, 2014. After 250 days of investigation, Plaintiff withdrew all claims on March 23, 2015. Defendant Schindler allegedly appeared in the administrative action and fully participated. Plaintiff received a notice of his right to sue from NJDCR, but never received - and has never received - a notice of a right to sue from the EEOC. Plaintiff “was told by the Director of NJDCR that it would not be forthcoming from the EEOC agency because the later [sic] did not investigate the claim.” (Pl.'s SAC ¶ 25.)

         In May 2016, Plaintiff initially filed a complaint in the New Jersey Superior Court, Law Division, Camden County which was dismissed. It was reinstated on April 6, 2017. Defendant Schindler removed the renewed case to this Court on April 26, 2017. Defendant Schindler answered this complaint on May 16, 2017. Discovery began. Plaintiff moved for leave to amend on December 15, 2017. After full briefing, Magistrate Judge Karen M. Williams granted in part and denied in part Plaintiff's first Motion for Leave to Amend on May 23, 2018. Plaintiff filed a second Motion for Leave to Amend on June 29, 2018 and Plaintiff filed his First Amended Complaint on June 30, 2018. Defendant Schindler filed its Motion to Dismiss Plaintiff's First Amended Complaint on July 30, 2018.

         Thereafter, Judge Williams granted Plaintiff's second Motion for Leave to Amend on August 13, 2018. Plaintiff filed his SAC on August 20, 2018. The SAC contains seven counts: (1) for retaliation under federal and state discrimination laws and the federal and New Jersey constitutions; (2) for creation of a hostile work environment and retaliation (the basis in law is unclear); (3) for discrimination against Plaintiff on the basis of age under the Age Discrimination in Employment Act (“ADEA”); (4) for wrongful termination (the basis in law is unclear); (5) for racial discrimination, under the New Jersey Law Against Discrimination (“NJLAD”) and federal and state constitutions; (6) for New Jersey common law breach of contract; and (7) “wrongful discharge as a result of negligent investigation” (the basis in law is unclear).

         It is the SAC which is the subject of Defendants' (here including both Defendant Schindler and Individual Defendants) Motion to Dismiss presently before the Court, and filed on September 7, 2018. Plaintiff opposed Defendants' Motion to Dismiss. Defendants filed a reply on October 9, 2018, under seal. Attached to that reply is a document entitled “Negotiated Settlement Agreement and General Release” (the “Release”), which was purportedly signed by the parties in June 2012 and concerns the first charge of discrimination brought by Plaintiff after he was laid off in 2011. It is this document that is the subject of Defendants' Motion to Seal, filed on October 23, 2018, Plaintiff's November 3, 2018 letter requesting the Court to strike this document from the record, and various other letters filed by both parties. As all of these matters have been fully briefed by the parties, they are ripe for adjudication.


         A. Subject Matter Jurisdiction

         This Court has subject matter jurisdiction over the case pursuant to 28 U.S.C. §§ 1331 and 1367.

         B. Motion to Dismiss Standard

         When considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), a court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the plaintiff. Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). It is well settled that a pleading is sufficient if it contains “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).

         “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, 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 . . . .” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) citations omitted) (first citing Conley v. Gibson, 355 U.S. 41, 47 (1957); Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994); and then citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).

To determine the sufficiency of a complaint, a court must take three steps. 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.” Third, “whe[n] 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) (alterations in original) (citations omitted) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 664, 675, 679 (2009)). A court may “generally consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record.” Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)).

         A district court, in weighing a motion to dismiss, asks “not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim.” Twombly, 550 U.S. at 563 n.8 (quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also Iqbal, 556 U.S. at 684 (“Our decision in Twombly expounded the pleading standard for ‘all civil actions' . . . .”); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (“Iqbal . . . provides the final nail in the coffin for the ‘no set of facts' standard that applied to federal complaints before Twombly.”). “A motion to dismiss should be granted if the plaintiff is unable to plead ‘enough facts to state a claim to relief that is plausible on its face.'” Malleus, 641 F.3d at 563 (quoting Twombly, 550 U.S. at 570).

         C. Defendants' Motion to Dismiss

         Defendants make several arguments[2] in their Motion to Dismiss. First, Defendants argue that the NJLAD does not apply to the set of facts presented by this case because Plaintiff worked in Pennsylvania, not New Jersey. Second, Defendants argue that Plaintiff has failed to exhaust his ADEA claim. Third, Defendants argue that Plaintiff has failed to exhaust his Title VII claims. Fourth, Defendants argue Plaintiff cannot bring state or federal constitutional claims because Defendants are not state actors. Fifth, Defendants argue Plaintiff has failed to adequately allege a 42 U.S.C. § 1981 claim. Sixth, Defendants argue Plaintiff's New Jersey and Pennsylvania common law claims are statutorily preempted by NJLAD and the Pennsylvania Human Relations Act (“PHRA”). Seventh, Defendants argue Plaintiff has failed to adequately allege a breach of contract claim. Eighth, and finally, Defendants argue any claims dismissed against Defendant Schindler must also be dismissed against Individual Defendants. The Court will address each argument in turn.

         a. Whether NJLAD Applies

         The threshold issue for the NJLAD claims is simply stated: may Plaintiff seek relief under it or not. The arguments of the parties can also be stated quite simply: Defendants argue that Plaintiff worked in Pennsylvania at the time of the alleged discriminatory conduct while Plaintiff argues discriminatory conduct was ongoing - stemming back pre-2011 - and occurred mostly while he was in New Jersey, with the final termination occurring only after he worked in Pennsylvania briefly. But, the facts are slightly more complicated than the parties indicate.

         It is best to start with the undisputed facts. In 1989, Plaintiff was hired by Defendant as an elevator mechanic. He was laid off, allegedly for lack of work, in 2011. Thereafter, Plaintiff filed a civil rights complaint. Before the civil rights complaint reached state or federal court, Defendant rehired Plaintiff. Plaintiff alleged that “Defendant settled that claim.” (Pl.'s SAC ¶ 33.) Both of these events occurred at some point in 2012. Plaintiff may have worked briefly in a New Jersey casino, apparently for just a couple of weeks, [3] and then spent the next eighteen months in Philadelphia, Pennsylvania working at a building at 1735 Market Street. On May 29, 2014, Plaintiff was “told to report to [Defendant]'s main office in Moorestown[, ] New Jersey” and was terminated for alleged “theft of a water jug.” (Pl.'s SAC ¶ 17.)

         There are also significant disputed facts, which complicate the legal analysis here. The most important disputed facts relate to the Release, purportedly signed in June 2012. Defendants assert this was signed by Plaintiff in June 2012 and that it means, for this case, that any allegations pre-2011 have been waived and cannot be considered. The legal implications of this fact is central to Defendants' argument, as presented. Plaintiff asserts, through his opposition brief and in a separate letter[4] to the Court, that he never signed the Release and that he has waived no ...

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