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NOT FOR PUBLICATION

 

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

__________________________________________

:

WILSON J. CAMPBELL, :

:

Plaintiff, :

v. : CIVIL ACTION NO. 11-642 (ES) 

:

SEDGWICK, DETERT, MORAN & ARNOLD, : OPINION

MICHAEL TANENBAUM, AND JAMES :

KEALE, THOMAS ROBERTSON, ET AL :

:

Defendants. :

_________________________________________ :

SALAS, District Judge.

Now pending before this Court is a motion filed by Defendants Michael Tanenbaum, 

Thomas Robertson, James Keale, and Sedgwick, Detert, Moran & Arnold, LLP (“the Firm”)

(collectively referred to as “Defendants”) to (1) dismiss Plaintiff‟s Complaint in its entirety as to 

Mr. Tenenbaum and (2) dismiss Count Three of the Complaint as to all Defendants, pursuant to 

Fed. R. Civ. P. 12(b)(6). The Court has considered the papers submitted in support of and in 

opposition to the motion and decides this matter without oral argument pursuant to Rule 78 of 

the Federal Rules of Civil Procedure. For the reasons set forth below, Defendants‟ motion to 

dismiss is DENIED.

I. BACKGROUND

Count One alleges that the Defendants violated the New Jersey Law Against 

Discrimination, N.J.S.A. 10:5-1 et seq (“NJLAD”), by treating Plaintiff less favorably than his 

white counterparts and terminating his employment for his relationship with a white female who 

has no connection to the Plaintiff‟s employment at [the Firm].” (Compl. ¶ 32). Count Two 

alleges that the Defendants violated the NJLAD “by retaliating against plaintiff for his 

complaints about unfavorable treatment of black attorneys within [the Firm].” (Compl. ¶ 35). In 

Count Three, Plaintiff asserts a Pierce doctrine claim. (Compl. ¶ 38).

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II. LEGAL STANDARD

On a motion to dismiss pursuant to Rule 12(b)(6), “courts are required to accept all wellpleaded allegations in the complaint as true and draw all reasonable inferences in favor of the 

non-moving party.” Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir.2008). But, 

“[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell 

Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 (2007). Courts are not required to credit bald 

assertions or legal conclusions draped in the guise of factual allegations. See In re Burlington 

Coat Factory Sec. Litig., 114 F.3d 1410, 1429 (3d Cir. 1997). A pleading that offers “labels and 

conclusions” or a “formulaic recitation of the elements of a cause of action will not do.” Ashcroft 

v. Iqbal, ––– U.S. ––––, ––––, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 

550 U.S. at 555). Thus, “ „stating ... a claim requires a complaint with enough factual matter 

(taken as true) to suggest‟ the required element[s].” Wilkerson v. New Media Tech. Charter Sch. 

Inc., 522 F.3d 315, 322 (3d. Cir.2008) (quoting Twombly, 550 U.S. at 556).

III. ANALYSIS

The Court will first address Defendants‟ arguments as they pertain to Mr. Tenenbaum

and will then move to Count Three.

a. Defendants’ motion to dismiss Plaintiff’s Complaint in its entirety as to Mr. 

Tanenbaum

Defendants argue that “since none of the allegations in Plaintiff‟s Complaint are directed 

at Mr. Tanenbaum, Plaintiff has failed to state a claim against Mr. Tanenbaum and Plaintiff‟s 

claims against him should be dismissed in their entirety.” (Defs. Reply Br. 2).

Plaintiff‟s Complaint alleges that “Defendant Michael Tanenbaum (“Tanenbaum”) is an 

adult white male residing in New Jersey. At all relevant times, Tanenbaum served as the Chair 

of the Management Committee for [the Firm]. In the aforementioned capacity for [the Firm],

Tanenbaum was responsible for the policies and procedures enforced by employees in the firm. 

As the Chair of [the Firm], Tanenbaum was responsible for hiring and firing attorneys for the 

firm.” (Compl.¶ 3). Count One alleges that the Defendants violated the New Jersey Law Against 

Discrimination, N.J.S.A. 10:5-1 et seq (“NJLAD”), by treating Plaintiff less favorably than his 

white counterparts and terminating his employment for his relationship with a white female who 

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has no connection to the Plaintiff‟s employment at [the Firm].” (Compl. ¶ 32). Count Two 

alleges that the Defendants violated the NJLAD by retaliating against plaintiff for his complaints 

about unfavorable treatment of black attorneys within [the Firm].” (Compl. ¶ 35). Count Three

asserts a Pierce doctrine claim.” (Compl. ¶ 38). 

Here, the Court finds that Plaintiff‟s complaint alleges “„enough factual matter (taken as 

true) to suggest‟ the required element[s]” of his NJLAD claims and his Pierce doctrine claim. 

Wilkerson, 522 F.3d at 322 (quoting Twombly, 550 U.S. at 556). At this stage, “[t]he issue is not 

whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to 

support the claims.” In re Rockefeller Ctr. Props., Inc., 311 F.3d 198, 215 (3d Cir. 2002).

Plaintiff‟s complaint alleges that Mr. Tanenbaum, as “the Chair of the Management Committee 

... was responsible for the policies and procedures enforced by employees in the firm . . . [and] 

was responsible for hiring and firing attorneys for the firm.” (Compl.¶ 3). Each of Plaintiff‟s 

three claims are predicated on, or related to, Plaintiff‟s allegations that he was improperly 

terminated from the Firm. Therefore, when accepted as true, the Court finds that Plaintiff‟s 

allegations that Mr. Tanenbaum ultimately “was responsible for hiring and firing attorneys for 

the firm” (Compl. ¶ 3) sufficiently “raise[s] a right to relief above the speculative level.” 

Twombly, 550 U.S. at 555 (2007). As such, Defendants‟ motion with respect to Mr. Tanenbaum 

is DENIED.

b. Defendant’s motion to dismiss Count Three of the Complaint as to all Defendants.

Defendants argue that Count Three of Plaintiff‟s complaint should be dismissed because 

Plaintiff‟s claim is preempted by his NJLAD claims. In Count Three, Plaintiff asserts a Pierce 

doctrine claim which alleges that he was wrongfully discharged from the Firm “for engaging in a 

private dating relationship with a white female who was not employed by [the Firm].” (Compl., 

Count Three, ¶ 38).1 Under New Jersey common law, “an employee has a cause of action for 

wrongful discharge when the discharge is contrary to a clear mandate of public policy.” 

Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 961 A.2d 1167, 1179 (N. J. 2008) (quoting 

Pierce v. Ortho Pharma. Corp., 84 N.J. 58, 417 A.2d 505, 510 (N.J.1980)). Sources of public 

policy include the United States and New Jersey Constitutions; federal and state laws and 

 

1 A Pierce doctrine claim asserts wrongful discharge in violation of public policy and derives its name from the 

seminal New Jersey Supreme Court case, Pierce v. Ortho Pharm. Corp., 84 N.J. 58, 417 A.2d 505 (1980).

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administrative rules, regulations, and decisions; the common law and specific judicial decisions; 

and in certain cases, professional codes of ethics. Hennessey v. Coastal Eagle Point Oil Co., 129 

N.J. 81, 92-93, 94-95; Pierce, 84 N.J. at 72. The NJLAD, however, provides plaintiffs with all 

remedies available in common law tort actions. See N.J.S.A. § 10:5-3; Catalane v. Gilian 

Instrument Corp., 271 N.J.Super. 476, 492, 638 A.2d 1341 (App. Div. 1994) (“Our Legislature 

has declared the remedies available under the LAD and ... have expressed the view that ... the 

statute should be read broadly enough to encompass those claims and damages previously 

available at common law”). The exclusivity of the NJLAD remedies thus preempts any common 

law claims based on the same factual predicate. Toscano v. Borough of Lavallette, No. 04-4412, 

2006 WL 1867197, at *9 (D.N.J. June 30, 2006) (“A supplementary cause of action is not 

allowed when the NJLAD provides a remedy for the wrong”); Quarles v. Lowe's Home Ctr., No. 

04-5746, 2006 WL 1098050, at *4 (D.N.J. March 31, 2006) (dismissing plaintiff‟s claim for 

intentional infliction of emotional distress because it was “based on the same allegations 

supporting [p]laintiff's LAD claim”); Catalane, 271 N.J.Super. at 492, 638 A.2d 1341 

(“supplementary common law causes of action may not go to the jury when a statutory remedy 

under the LAD exists”). 

As discussed above, where a plaintiff bases his or her common law Pierce claim on the 

public policy of the NJLAD and asserts a claim under both, the former claim is subsumed by the 

latter. Sturm v. UAL Corp., No. 98-264, 1998 WL 784615, at *10 (D.N.J. Oct.8, 1998) (“Courts 

of this district interpreting New Jersey Law have also consistently held the NJLAD to preempt 

duplicative common law discrimination claims”). Pursuant to Brosshard v. Hackensack Univ. 

Med. Ctr., 345 N.J.Super. 78, 90 (App. Div. 2001), a Pierce claim would also be barred if it does 

not seek to vindicate interests that are independent of those protected by the NJLAD. However, a 

plaintiff's Pierce claim is not preempted as coterminous with the NJLAD if the cause of action 

finds its basis in the New Jersey State Constitution. Cf. Ackerman v. The Money Store, 321 

N.J.Super. 308, 324-25, 728 A.2d 873 (App. Div. 1998). Therefore, so long as Plaintiff‟s Pierce 

claim is based in the New Jersey State Constitution it is not preempted by the NJLAD.

Here, although not contained in the actual language of Count Three, Plaintiff‟s Complaint

does allege that:

[u]nder New Jersey‟s Constitution and the United States Constitution, intimate 

decisions relating to personal matters between consenting adults are fundamental

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privacy rights protected under the law. Adverse action in response to exercising 

such fundamental rights is a violation of public policy.

Compl. ¶ 7. Thus, when the Complaint is read as a whole, Plaintiff‟s Pierce claim rests – at least 

in part – on the New Jersey State Constitution which, Plaintiff argues, recognizes the right to 

privacy under Article I, paragraph 1 of the New Jersey Constitution. Hennessey, 129 N.J. 81, 95-

96 (“[A] right to privacy can be found in Article I, paragraph 1 of the New Jersey 

Constitution.”).2

Defendants do not take a position as to whether the New Jersey Constitution affords 

protection to the Plaintiff under the specific facts alleged in this case, namely the Firm 

“terminating plaintiff from his employment for engaging in a private dating relationship with a 

white female who was not employed by [the Firm.]” (Compl. ¶ 38). Plaintiff, however, argues 

that Slohoda v. United Parcel Serv., Inc., 193 N.J. Super. 586 (App. Div. 1984) stands for the 

proposition “that a complaint alleging the discharge of an employee for a dating relationship with 

a co-worker adequately ple[ads] a claim for a privacy violation under New Jersey public policy.”

(Pl. Br. at 5). In Slohoda, the Appellate Division considered a plaintiff‟s appeal from a summary 

judgment in favor of his private sector employer. Although the Plaintiff had pleaded a Pierce

claim, the Appellate Division did not determine the Pierce issue because the trial judge had not 

ruled on it. Instead the Appellate Division remanded the action to the trial court to “decide 

whether the employer‟s policy . . . [was] violative of any right of privacy of the plaintiff and 

contrary to public policy.” In Hennessey v. Coastal Eagle Point Oil Co., 247 N.J.Super. 297, 307 

(1991), the Appellate Division explicitly held that Slohoda does not stand for the proposition that 

New Jersey Constitutional values may be applied to the private sector via a Pierce claim. Id. 307.

Yet, that being said, the Appellate Division commented that it was “reluctant to utilize 

constitutional values or privacy as a source of public policy under Pierce in a private 

employment context.” Id. 307. Thus, the Appellate Division did not unequivocally foreclose 

Plaintiff‟s private sector Pierce claim based on privacy as a source of public policy. Because 

Plaintiff‟s Pierce claim may “find[] its basis in the New Jersey State Constitution” the Court 

finds that it is not necessarily subsumed by his NJLAD claims and reserves such a determination 

 

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“All persons are by nature free and independent, and have certain natural and unalienable rights, among which are 

these of enjoying and defending life and liberty, or acquiring, possessing, and protecting property, and of pursuing

and obtaining safety and happiness.” N.J. Const. Art. 1, Para. 1.

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for the summary judgment stage. Cf. Ackerman v. The Money Store, 321 N.J. Super. 308, 324-25 

(App. Div. 1998). As such, Defendants motion to dismiss Plaintiff's Pierce claim is DENIED.

IV. CONCLUSION

For the foregoing reasons, Defendants‟ motion to dismiss is DENIED. An appropriate 

order shall accompany this opinion. 

Dated: November 2, 2011 /s/ Esther Salas _____

United States District Judge

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