United States District Court, D. New Jersey
Kevin McNulty, United States District Judge.
matter comes before the court on the motion of the defendant,
U.S. Foods, Inc., to dismiss Counts 1, 2, and 3 of the
complaint for failure to state a claim upon which relief may
be granted, pursuant to Fed.R.Civ.P. 12(b)(6). Because the
Complaint fails to allege that the plaintiff, Mr. Riconda,
had a condition that was or was perceived as a disability,
the motion to dismiss is granted.
12(b)(6) provides for the dismissal of a complaint if it
fails to state a claim upon which relief can be granted. The
defendant, as the moving party, bears the burden of showing
that no claim has been stated. Animal Science Products, Inc.
v. China Minmetals Corp., 654 F.3d 462, 469 n.9 (3d Cir.
2011). For the purposes of a motion to dismiss, the facts
alleged in the complaint are accepted as true and all
reasonable inferences are drawn in favor of the plaintiff.
New Jersey Carpenters & the Trustees Thereof v. Tishman
Const. Corp. of New Jersey, 760 F.3d 297, 302 (3d Cir. 2014).
Rule of Civil Procedure 8(a) does not require that a
complaint contain detailed factual allegations. Nevertheless,
"a plaintiffs obligation to provide the
'grounds' of his 'entitlement 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); see Phillips
v. Cnty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (Rule
8 "requires a 'showing' rather than a blanket
assertion of an entitlement to relief." (citation
omitted)). Thus, the complaint's factual allegations must
be sufficient to raise a plaintiffs right to relief above a
speculative level, so that a claim is "plausible on its
face." Twombly, 550 U.S. at 570; see also West Run
Student Hous. Assocs., LLC v. Huntington Nat Bank, 712 F.3d
165, 169 (3d Cir. 2013).
facial-plausibility standard is met "when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Twombly, 550 U.S. at 556). While
"[t]he plausibility standard is not akin to a
'probability requirement'... it asks for more than a
sheer possibility." Id.
ALLEGATIONS OF THE COMPLAINT
plaintiff, James Riconda, was formerly employed by the
defendant, U.S. Foods, Inc. (Cplt. ¶¶ 1-2). He
worked as a selector from June 15, 2015, until U.S. Foods
terminated his employment on July 9, 2017. (Cplt. ¶ 4).
initial events occurred during a work shift running from the
night of July 5 into the morning of July 6, 2017. On July 5,
2017, plaintiff became sick at work and vomited in the
bathroom. (Cplt. ¶ 6). At around 12 midnight, he advised
his supervisor, Estino, that he had become sick, and Estino
told him to take a break. (Cplt. ¶¶ 7-8). After the
break, Mr. Riconda's condition worsened; he vomited and
had diarrhea. (Cplt. ¶ 9). At around 1:30 a.m. (it was
now the morning of July 6), he told the night manager, Frank
Conrad, that he was going to the emergency room, despite
having no sick days left to use. Conrad said it was okay to
leave. (Cplt. ¶¶ 10-12).
hospital, Mr. Riconda was diagnosed with "a virus"
and was told not to return to work until July 9, 2017.
Therefore, on July 6, 2017, Mr. Riconda called in sick and
said he would return with a doctor's note on July 9,
2017. (Cplt. ¶ 14). On July 9, 2017, he returned to work
and gave the doctor's note to Mr. Conrad, who stated
"okay." (Cplt. ¶ 15).
next day, July 10, 2017, Conrad called Riconda into his
office and terminated his employment based on his absence
from July 7-9, 2017. The termination became official on July
complaint alleges that, because of catching this virus, Mr.
Riconda was disabled and perceived as disabled within the
meaning of the New Jersey Law Against Discrimination (NJLAD).
(Cplt. ¶¶ 19-20).
counts of the complaint relevant to this motion are as
Count 1 Disability discrimination (New Jersey Law Against