,

Plaintiff, Civil Action No. 11-01792 (CCC)

V.

OPINION

BAY STATE MILLING COMPANY;

BAKERY, CONFECTIONARY,

TOBACCO WORKERS, AND GRAINMILLERS INTERNATIONAL UNION;

JOHN DOE(S) 1,2,3; AND ABC CORP.,

Defendants.

CECCHI, District Judge.I. INTRODUCTION

This matter comes before the Court by way of two motions to dismiss Plaintiff’s First

Amended Verified Complaint (“Complaint”). The first motion was filed by Defendant Bay StateMilling Company (“Bay State”) pursuant to Federal Rule of Civil Procedure 12(b)(6). The

second motion was filed by Defendant Bakery, Confectionary, Tobacco Workers and GrainMillers International Union Local 53 (“Union”) pursuant to Federal Rule of Civil Procedure

12(c). The Court has considered the submissions made in support of and in opposition to the

instant motions. No oral argument was heard. Fed. R. Civ. P. 78. Based on the reasons that

follow, Defendants’ motions to dismiss are granted. Plaintiff is granted thirty (30) days in which

to file a Second Amended Complaint which cures the pleading deficiencies in those claimsdiscussed below.

1
10, 2008. he was struck on the top of his head and on his left arm with a mechanical boom while

performing his work duties. (Id. ¶ 3). Plaintiff claims that as a result of this accident, he

suffered injuries and had to receive medical treatment. (Id. ¶ 4 & Ex. C). The day after the

accident, Bay State completed an investigation report that contained a description of the incident

and the names of witnesses. (Id. Ex. B). Plaintiff did not file a workers’ compensation claim

following the accident. He claims Bay State, along with the Union, “commenced a course ofconduct and pattern of behavior towards [P]laintiff designed to inhibit him from filing his

rightful claim for compensation.” (Id. ¶ 5). He further claims that Defendants retaliated againsthim and “stifled and intimidated” him after his accident. (Id.).

Plaintiff also alleges that on May 18, 2010, December 2, 2010, and December 31, 2010,

defendants Bay State and the Union, “through their dominion and control over plaintiff as an

employee and a union member,” filed “false and concocted and bogus fabricated and meritlessand baseless and petty complaints against Plaintiff.” (Id. ¶J 6-7). He further claims thatDefendants subjected him to “verbal reprimands and unpleasant body language and gestures”

after the accident. (Id. ¶ 7). According to Plaintiffs coworker or supervisor, on May 17, 2010,Plaintiff failed to follow instructions and showed a lack of respect for his supervisor. (See E

mail from Greg Beyrle, May 18, 2010, Compl. Ex. D). Plaintiff received a verbal warning after

this confrontation and he was informed that this type of conduct could lead to disciplinary

actions or termination in the future. (Id.). On December 2, 2010, Plaintiff received a five-day

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responded in a vindictive rather than remorseful manner. (See Letter from “Josh,” Dec. 31,2010, Compi. Ex. D). On January 14, 2011,’ Bay State terminated Plaintiff’s employment for

violating a Bay State procedure. (Compl. ¶ 10; see also Letter from Mike Walsh, Jan. 14, 2011,

Compl. Ex. E).

Plaintiff claims that Defendants reprimanded, suspended, and ultimately terminated him

because he is a Polish immigrant and because he is handicapped as a result of his injuries. (Id. ¶

47). Plaintiff also alleges that that Defendants’ actions were intended to: (1) deter him from

seeking medical attention; (2) discourage him from filing a Workers’ Compensation claim prior

to the expiration of the statute of limitations on December 10, 2010; and (3) avoid “significant

legal exposure and responsibility and liability for the highly dangerous and potentially life

threatening accident that occurred to Plaintiff.” (Id. ¶J 5, 8).

III. BAY STATE’S MOTION TO DISMISS PURSUANT TO RULE 12(B)(6)

A. Legal Standard

For a complaint to survive dismissal pursuant to Federal Rule of Civil Procedure

l2(b)(6), it “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that

is plausible on its face.” Asheroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell All. Corp.v. Twombly, 550 U.S. 544, 570 (2007)). In evaluating the sufficiency of a complaint, the Court

According to Defendant Bay Street’s Brief, Plaintiff’s employment was terminated on

December 10, 2010. (Def.’s Br. 1).

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conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do. Nor does

a complaint suffice if it tenders ‘naked assertion [s]’ devoid of ‘further factual enhancement.”

Iqbal,129 S. Ct. at 1949.

The burden of proof for showing that no claim has been stated is on the moving party.

Hedges v. US., 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc.,

926 F.2d 1406, 1409 (3d Cir. 1991)). During a court’s threshold review, “[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). In

general, the Federal Rules of Civil Procedure should be construed liberally so as to encourage

ruling on the merits instead of technicalities: “This liberality is expressed throughout the Federal

Rules of Civil Procedure and is enshrined in a long and distinguished history . . . . Aninadvertant mistake in pleading will not be held against the pleader if another party has not been

misled by the mistake or otherwise prejudiced.” Lundy v. Adamar ofNew Jersey, 34 F.3d 1173,

1186 (3d Cir. 1994). Further, courts will not dismiss for failure to state a claim merely because

the complaint miscategorizes legal theories or does not point to an appropriate statute or law to

raise a claim for relief. See Lujan v. National Wildlife Fed’n, 497 U.S. 871, 909 n. 10 (1990).

4
that he harbored “a deep rooted fear that his livelihood would be taken away if he spoke out

against the defendant’s policies. . . or if [he] . . . reported or objected to any activity.” (Id. ¶ 11).He asserts that Defendants’ actions are in violation ofN.J.S.A. 26:2H-5.21 and the ConscientiousEmployer Protection Act (CEPA), N.J.S.A. 34:19-3. (Compl. ¶ 12). However, in his Opposition

to Bay State’s Motion to Dismiss, Plaintiff voluntarily dismissed these claims, stating that he

mistakenly cited N.J.S.A. 26:2H-5.21, which is inapplicable to his case; furthermore, Plaintiff’s

CEPA claim is superseded by his retaliation claims. (P1. Opp’n. 6). Therefore, Plaintiff’s claims

in count one are dismissed.

2. Counts Two and Four- Breach of Contract Claims

Plaintiff’s Amended Complaint contains two contract-related claims. In Count Two, he

alleges that Defendants breached the implied covenant of good faith and fair dealing. (Compi.

¶J 19-20). He claims that Defendants “have not complied with the binding duties and

procedures mandated by the manuals and documentation creating binding duties and obligations

on defendants in the case of termination procedures.” (Compl. ¶ 20). In Count Four, Plaintiffclaims that Defendants are liable for breach of contract because they violated the job security

provisions ofthe “manuals and documentation.” (Compl. ¶J 30-31).

Bay State makes three arguments as to why these two claims should be dismissed. The

Court will address each argument in turn. First, it argues that these contract claims are

preempted by Plaintiff’s CEPA claim in Count One. (Bay State Br. 7). Bay State argues that

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documentation” were allegedly breached. (Bay State Br. 7). Furthermore, it argues that Plaintiffdid not claim that these manuals and documents were a valid contract. (Id.). To state a claim for

breach of contract under New Jersey law, the plaintiff must allege facts demonstrating “(1) a

contract; (2) a breach of that contract; (3) damages flowing therefrom; and (4) that the [plaintiff]

performed [his] own contractual duties.” Video Pipeline, Inc. v. Buena Vista Home

Entertainment, Inc., 210 F. Supp. 2d 552, 561 (D.N.J. 2002). The plaintiff must also specifically

identify the portions of the contract that were allegedly breached. Skypala v. Mortgage

Electronic Registration Systems, Inc., 655 F. Supp. 2d 451, 459 (D.N.J. 2009) (dismissing breach

of contract claim where “the Complaint does not identify the provisions Plaintiff asserts were

breached”); see also Loceria C’olombiana, S.A. Zrike Company, Inc., No. 10-5329, 2011 WL

735715, at *3, 45 (D.N.J. Feb. 22, 2011) (dismissing breach of contract and good faith and fair

dealing claims when defendant failed to identify the contract that was allegedly breached).

All contracts include an implied covenant that the parties to the contract will act in good

faith. See Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 420 (1997); see also Wade v.

Kessler Inst., 343 N.J. Super. 338, 345 (App. Div. 2001) (“The obligation to perform in good

faith exists in every contract including where the contract is terminable at will.”). The parties

must have a valid contract in order for there to be a breach of an implied covenant of good faith

and fair dealing. Morelli v. County ofHudson, 10-5493, 2011 WL 843952, at *14 (D,N,J. March7, 2011) (finding that a non-party to an employment contract cannot breach the implied covenant

6
procedures prior to termination, may be contractually enforceable. Woolley v. Hofmann-La

Roche, Inc., 99 N.J. 284, 297 (N.J. 1985), rnodfiedon other grounds, 101 N.J. 10, 499 A.2d 515

(N.J. 1985). An implied contract between an employer and employee based on an employment

manual which alters an employee’s at-will status is referred to as a “Woolley contract.” Wade v.

Kessler Inst., 172 N.J. 327, 340 (N.J. 2002). Several courts have held that a Woolley contract

contains an implied covenant of good faith and fair dealing like any other employment

agreement. See id. at 340-41.

Here, Plaintiff alleges that the “{employmentj manuals and documentation” create

“binding duties and obligations on defendants.” (Compi. ¶fflJ 20, 30-3 1). In his Opposition toBay State’s motion to dismiss, Plaintiff claims that he “laid out what happened to him and his

causes of action in minute particularity.” (P1. Opp’n. 6). He further states that “[i]t is hard toimagine that there is any way to provide more detail than has already been provided on this causeof action.” (P1. Opp’n. 7). However, Plaintiff has not identified the contract that was allegedly

breached or the provisions of the contract that were allegedly breached. Without more

information, Plaintiff’s allegations are insufficient to sustain claims for breach of the impliedcovenant of good faith and fair dealing or breach of contract.

Finally, Bay State argues that because Plaintiff is a member of the Union, “his allegations

involve the interpretation of a collective bargaining agreement, and are therefore preempted by §

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analysis of the terms of an agreement made between the parties in a labor contract, that claim

must either be treated as a § 301 claim, or dismissed as preempted by federal labor contract law.”

Briones v. Ron Secours Health Sys., 69 Fed. Appx. 530, 534 (3d Cir. 2003); see also AllisChalmers v. Lueck, 471 U.S. 202, 211 (1985) (“The interests in interpretive uniformity and

predictability that require that labor-contract disputes be resolved by reference to federal law also

require that the meaning given a contract phrase or term be subject to uniform federal

interpretation.”); Griesmann v. Chemical Leaman Tank Lines, Inc., 776 F.2d 66 (3d Cir.1985)(“It is well recognized that individual employees can bring suit against their employers in federalcourt for breach of a contract between an employer and a union.”).

Here, Plaintiff is a member of the Bakery, Confectionary, Tobacco Workers and Grain

Millers International Union Local 53. (Compl. ¶ 3). While he has asserted contract law claimsunder state law, it is not clear that these claims require analysis of the collective bargaining

agreement, as he has not identified the manuals or contracts Defendants allegedly violated.

Therefore, the Court grants Defendant Bay State’s motion to dismiss Plaintiff’s breach of

implied covenant of good faith and fair dealing and breach of contract claims.

3. Counts Three and Five- Retaliation and Wrongful Discharge Claims

Count Three of Plaintiff’s Complaint alleges that Bay State discriminated against him

because he “claimed or attempted to claim workmen’s compensation benefits” in violation of

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specific judicial decisions, and in certain cases professional code of ethics.” (Compl. ¶ 36).Plaintiff further alleges that Defendant violated N.J. S .A. 40A: 14-151. (Compl. ¶ 39).

Pursuant to N.J.S.A. 34:15-39.1:It shall be unlawful for any employer or his duly authorized agent to discharge or

in any other manner discriminate against an employee as to his employment

because such employee has claimed or attempted to claim workmen’s

compensation benefits from such employer...“[T]he policy of the retaliatory discrimination act [is] so firmly grounded in public

interest as to require assiduous protection and enforcement.” Lally v. Copygraphics, 173 N.J.

Super. 162, 179 (App. Div. 1980) (holding that both administrative and judicial remedies are

available for retaliatory discharge). The N.J. Supreme Court also stated that “[t]he statutory

declaration of the illegality of such a discharge underscores its wrongful and tortious characterfor which redress should be available.” Lally v. Copygraphics, 85 N.J. 668, 670 (1981). In

Lally, the plaintiff had sustained minor injuries in a work-related accident. Lally, 173 N.J. Super.

at 166-67. When plaintiff presented her employer with the bills from her medical treatment, sheclaimed that her employer advised her that if she continued to make “this kind of trouble” byattempting to obtain workers’ compensation benefits, she would be discharged. Id. She

persisted with her claims and she was subsequently discharged. Id.

Unlike the plaintiff in Laily, Plaintiff here asserts that he did not file a workers’

compensation claim “because he feared retaliation.” (P1. Opp’n. 6). He states that he waited the

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file a worker’s compensation claim. (P1. Opp’n. 6). Furthermore, Plaintiff does not assert any

facts that indicate that his injury or potential workers’ compensation claim factored into BayState’s decision to discharge him. According to the Complaint, he was discharged on or about

January 14, 2011, more than two years after his on-the-job accident. (Compl. ¶ 10); see also

Galante v. Sandoz, Inc., 192 N.J. Super. 403 (Law Div. 1983), affd by 196 N.J. Super. 568

(App. Div. 1984) (dismissing plaintiffs claim where the employer discharged the employee

eight months after the employee filed a workers’ compensation claim). Moreover, it appears

from the Complaint that Plaintiffs termination was based on his violation of a workplace policy.

(Compl. Ex. E). The Complaint further indicates that his suspensions and/or reprimands were

based on well-documented reasons unrelated to Plaintiffs injury or potential workers’

compensation claim. (Compl. Ex. E); see also Galante v. Sandoz, Inc., 192 N.J. Super. 403 (LawDiv. 1983), affd by 196 N.J. Super. 568 (App. Div. 1984) (dismissing Plaintiffs claim andfinding that employee was discharged because his absences exceeded the number of absences

permitted by his employer’s absentee policy, although defendant claimed that some of those

absences were related to his work related injury). Based on these findings, Defendant’s motion

to dismiss this claim is granted.

With regard to Count Five of the Complaint, it appears that Plaintiff has simply reiterated

his retaliation claim as stated in Count Three. (Compl. ¶ 36). While Plaintiff cites to a multitudeof additional sources of law, including the United States Constitution, he has not pled with

10
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or dismissal, provided a written application therefor shall be filed with the

municipal clerk within [thirty] days afier such judicial determination.

Because Plaintiff has not alleged that he is a police officer, this statute is inapplicable.

Defendant’s motion to dismiss this claim is therefore granted.

4. Count Six- Hostile Work Environment

In Count Six of his Complaint, Plaintiff alleges that Bay State “engaged in a course of

conduct and pattern of behavior of harassing the Plaintiff in his place of employment . . . to the

point where the work environment became and continues to be hostile.” (Compl. ¶ 42). Plaintiff

claims that Defendants’ actions violated the New Jersey Law Against Discrimination (NJLAD),

N.J.S.A. 10:5-1 to -42. (Compi. ¶ 48). The LAD prohibits discrimination “because of race,

creed, color, national origin, ancestry, age, sex, affectional or sexual orientation, marital status,familial status, liability for service in the Armed Forces of the United States, or nationality.”

N.J.S.A. 10:5-3. In order to prevail on a claim for hostile work environment, the plaintiff must

show that “the complained of conduct (1) would not have occurred but for the employees

[protected status]; (2) and it was severe or pervasive enough to make a (3) reasonable [person]

believe that (4) the conditions of employment are altered and the working environment is hostile

or abusive.” Lehrnann v. Toys R Uc, Inc., 132 N.J. 587, 603—04 (1993) (emphasis omitted).

“When evaluating whether conduct is sufficiently severe or pervasive to create a hostile

work environment, we focus on the ‘harassing conduct. . . , not its effect on the plaintiff or the

11
including “the frequency of the discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfereswith an employees work performance.” Id. at 432 (quoting Green v. Jersey City Rd. ofEduc.,

177 N.J. 434, 447(2003)); see also Mentor Say. Bank. v. Vinson, 477 U.S. 57, 67 (1980) (finding

that plaintiff’s allegations, “which include[d] not only pervasive harassment but also criminal

conduct of the most serious nature—[were] plainly sufficient to state a claim for ‘hostileenvironment”); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21(1993) (requiring plaintiff to show

that his workplace “permeated with ‘discriminatory intimidation, ridicule, and insult” that was so

severe or pervasive that it altered the conditions of his employment). Therefore, “simple

teasing,’ off-hand comments, and isolated incidents (unless extremely serious) will not amount todiscriminatory changes in the ‘terms and conditions of employment.” Faragher v. City ofBoca

Raton, 524 U.S. 775, 788 (1998).

Plaintiff fails to allege any specific offensive conduct by Bay State, much less “severe or

pervasive” conduct. Instead, Plaintiff alleges generalized behavior without any other details. He

claims that Defendants harassed him because he “does not speak English as his first languageand is an immigrant from Poland and is handicapped because of his worker’s compensationinjuries.” (Compi. ¶ 47). He further alleges that Defendants intimidated him, made meritless

complaints against him, and subjected him to “unpleasant body language and gestures.” (Compl.

¶j 6-7). Plaintiff does not allege any specific comments or any threatening conduct that was

12
work environment claim. See Feeney v. Jefferies & Co., No. 09-2708, 2010 U.S. Dist. LEXIS

64033, at * 16 (finding that plaintiff’s allegation that his supervisor “repeatedly” made racial slurs

related to his Irish ancestry was not enough to maintain a hostile work environment claim); Doe

v. Sizewise Rentals, LLC, No. 09-3409, 2010 WL 4861138, at *6 (D.N.J. Nov. 22, 2010)(granting a motion to dismiss because plaintiff’s general allegations of “harassment,

backstabbing, depriving minority workers employment,. . . [and] falsifying evidence. . . for the

purpose of termination, demotion, and reprimand” was not enough to sustain a hostile work

environment claim). Therefore, the Court grants Defendant Bay State’s motion to dismiss

Plaintiff’s hostile work environment claim.

5. Counts Eight 2and Nine 3-Conspiracy

Count Eight of Plaintiff’s Complaint alleges that Defendants “are members of a common

plan or design to commit a tort upon Plaintiff.” (Compl. ¶ 57). In Count Nine, Plaintiff claims

that defendant “entered into an agreement to inflict a wrong or wrongs or injury to and against

Plaintiff.” 4(Compl. ¶ 64).2 Seven of Plaintiff’s Complaint pertains only to the Union Defendant.

Bay State’s Motion to Dismiss did not specifically mention Count Nine, but did discuss

conspiracy, which is the basis for Plaintiff’s claim in Count Nine.

Plaintiff further alleges that Defendants’ conduct is in violation of Shackil v. Lederle Labs., 116

N.J. 155 (1989) and LoBiondo v. Schwartz, 199 N.J. 62 (2009). (Compl. ¶f 60, 66). In Schackil, plaintiffs filed products liability claims related to injuries that allegedly resulted from the use of

13
defendants’ motion to dismiss when the plaintiffs “alleged a number of overt acts committed byone or more of the conspirators in furtherance of the conspiracy”). “An agreement to commit a

wrongful act does not, by itself, support a civil conspiracy claim. Instead, at least one of the

conspirators must commit a tortious act in furtherance of the conspiracy.” D & D Assocs. v. Rd.

OfEduc., No. Civ. 03-1026, 2007 WL 4554208, at * 29 (D.N.J. Dec. 21, 2007) (internal citations

omitted). (granting defendants’ motion for summary judgment when the plaintiff made “only thevague and conclusory allegation that the defendants entered into ‘a real agreement’ with the

intent of depriving D & D of its property and destroying its business ‘by unlawful means”).

In this case, Plaintiff has not asserted any basis for his conspiracy claim. In particular, he

has not alleged any facts suggesting that one or more of the Defendants entered into an

agreement to commit an unlawful act or engaged in any discussions that could be construed as anagreement. See id, He also does not provide any details indicating that any of the Defendantscommitted an unlawful act in furtherance of the alleged conspiracy, nor has he identified any

“special” damages. See iiIorganroth, 331 F.3d at 414. Instead, the Plaintiff alleges that

Defendants acted “jointly and severally” to discourage him from filing his workers’defendants’ vaccine and the court considered whether to adopt market-share liability. Shackil,

116 N.J. at 159-60. In LoBiondo, defendants filed counterclaims for malicious prosecution, and

malicious use of process and the court considered whether to accept an advice-of-counseldefense. LoBiondo, 199 N.J. at 1012-14. While the court in LoBiondo briefly addresses therequirements for a civil conspiracy, the Court finds both of these cases to be wholly irrelevant tothis matter.

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Count Ten of Plaintiffs Complaint alleges that Bay State “directed extreme and or

outrageous conduct toward Plaintiff intentionally and in a fashion to produce emotional distress

and or recklessly in deliberate disregard of a high degree of probability that emotional distress

will follow.” (Compl. ¶ 69). “[Tb establish a claim for intentional infliction of emotionaldistress, the plaintiff must establish intentional and outrageous conduct by the defendant,

proximate cause, and distress that is severe.” Buckley v. Trenton Say. Fund Soc., 111 N.J. 355,

365 (1988). First, a plaintiff must prove that the defendant intended “both to do the act and to

produce the emotional distress.” Id. Defendant will also be liable if he acted in “deliberate

disregard of a high degree of probability that emotional distress will follow.” Id. Second, thedefendant’s actions must be “so outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency. . . and utterly intolerable in a civilized community.” Id.

(quoting Restatement (Second) of Torts, § 46 comment d (1965) (Restatement)). Third,

defendant’s actions must have been the proximate cause of plaintiffs emotional distress. Id.

Fourth, the emotional distress suffered by plaintiff must be “so severe that no reasonable mancould be expected to endure it.” Id.

A court may dismiss if it cannot “imagine a set of facts that might demonstrate ‘extreme

and outrageous’ conduct on the part of the [djefendant[s].” Acevedo v. Monsignor Donovan

High Sc/i,, 420 F. Supp. 2d 337, 348 (D.N.J. 2006) (granting a motion to dismiss an intentional

infliction of emotional distress claim where plaintiff, a high school teacher, claimed that (1) the

15
recovery for intentional infliction of emotional distress.” Hiliburn v. Bayonne Parking Auth.,

No. 07-5211, 2009 U.S. Dist. LEXIS 6762, at * 32 (D.N.J. Jan. 29, 2009). Furthermore, “the

termination of an employee, whatever the secret motive underlying it, is the kind of event thathappens every day; such an act is not even a breach of modem-day business etiquette, much less

an uncivilized barbarism. Quite a bit more. . . must accompany a firing if it is to be deemed

‘outrageous.” Fletcher v. Wesley Medical Center, 585 F. Supp. 1260, 1262 (D.Kan.1984)

(finding that plaintiff’s claim “boils down to nothing more than defendants having fired her,ostensibly for legitimate reasons, but actually because of her age”); see also Borecki v. E. liii’ ‘1

Mgmt. Corp., 694 F, Supp. 47, 61 (D.N.J. 1988) (finding that the termination of a sixty-one year

old man, even if discriminatory, did not amount to outrageous conduct).

Here, Plaintiff has not alleged any conduct that might be considered “extreme or

outrageous.” Furthermore, he has not indicated that he suffered from distress “so severe that no

reasonable man could be expected to endure it.” Buckley, 544 A.2d at 863. He claims he

“suffered severe losses and damages” as a result of Defendants’ actions and requests lostdamages and restoration of his employment. (Compl. ¶J 73-74). Furthermore, in response to

Bay State’s motion to dismiss, Plaintiff states that he has “painstakingly and in minute detail set

forth his causes of action.” (P1. Opp’n. 7). Plaintiff did not, however, provide any additionalfacts to support a claim that Defendant’s behavior was outrageous or that he suffered from any

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(P1. Opp’n. 7; Compl. ¶ 68). “It is axiomatic that the complaint may not be amended by the

briefs in opposition to the motion to dismiss.” Pennsylvania cx rd. Zimmerman v. Pepsico, Inc.,

836 F.2d 173 (3d Cir.1988) (citing car carriers, Inc. v. Ford Motor co., 745 F.2d 1101, 1107

(7th Cir. 1984)). If Plaintiff wishes to add any additional claims, he should proceed in

accordance with Federal Rule of Civil Procedure 15(a). The Court will thus not consider

Plaintiff’s negligent infliction of emotional distress at this time. 5

7. Count Eleven- Unlawful Discrimination 6

In Count Eleven of his Complaint, Plaintiff alleges that Defendants committed “unlawful

discrimination and . . . unlawful employment practice[s] against [him] and that [D]efendants

aided and abetted the same acts.” (Compl. ¶ 76). Plaintiff claims that Defendants intimidated,

Even if Plaintiff had included a claim for negligent infliction of emotional distress in his

complaint, his claim would fail. A Plaintiff may maintain an action for negligent infliction ofemotional under two scenarios. First, “[a] plaintiff can demonstrate that the defendant’snegligent conduct placed the plaintiff in reasonable fear of immediate personal injury, whichgave rise to emotional distress that resulted in a substantial bodily injury or sickness.”

Jablonowcka v. Suther, 195 N.J. 91, 104 (2008). Second, a plaintiff may satisfy the four

elements set forth in Portee v. Jafee, 84 N.J. 88, 97, 101 (1980): “(1) the defendant’s negligencecaused the death of, or serious physical injury, to another; (2) the plaintiff shared a marital or

intimate, familial relationship with the injured person; (3) the plaintiff had a sensory andcontemporaneous observation of the death or injury at the scene of the accident; and (4) the

plaintiff suffered severe emotional distress.” Here, Iwanicki has not alleged any facts showing

that he was placed “in reasonable fear of immediate personal injury.” See Jablonowska, 195 N.J.

at 104. Furthermore, Plaintiff has not alleged any facts that would satisfy the elements set forthin Portee.

Defendant Bay State did not move to dismiss Count Eleven in particular, but does request

dismissal of all claims.

17
and language. [n order to assert a prima facie case of discrimination under the NJLAD, a

plaintiff must show that: (1) he was a member of a protected group; (2) his job performance met

the “employer’s legitimate expectations;” (3) he was terminated; and (4) the employer replaced

him or sought to replace him. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 867 A.2d 1133, 1141

(N.J. 2005); Clowes v. Terminix Int’l, Inc., 109 N.J. 575, 538 A.2d 794, 805 (1988). Once a

plaintiff establishes a prima facie case, “the burden of production shifts to the employer to

articulate some legitimate, nondiscriminatory reason for the employer’s action.” Zive, 867 A.2dat 1140. If the employer provides a legitimate, nondiscriminatory reason for the action, the

burden then shifts back to the plaintiff to demonstrate that “the reason articulated by the

employer was merely a pretext for discrimination and not the true reason for the employment

decision.” Id.

The Court finds that the Complaint fails to allege facts sufficient to constitute a plausible

claim of “ancestral” discrimination under the NJLAD. First, the Complaint alleges that Plaintiffis of Polish origin and that English is not his first language. (Compl. ¶ 78). Based on this

assertion, he is a member of a protected class under NJLAD. See N.J.S.A. § 10:5-12a; Feeney v.

Jefferies & Company, Inc.. No. 09-2708, 2011 WL 5157373 (D.N.J. Oct. 28, 2011) (finding that

plaintiff’s Irish heritage made him a member of a protected class under NJLAD). Second,

according to Plaintiff, he had a “long history of tireless and dutiful work for [D]efendant Bay

State as a miller for over [twenty] consecutive years.” (Compl. ¶ 6). Because a plaintiff need

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enough to warrant promotion to the next step.”). Plaintiff has also established the third prong

because Plaintiff’s employment was terminated on or about January 14, 2011. (Compi. ¶ 10).

Plaintiff has not, however, fulfilled the requirement under the fourth prong as he has failed to

allege that Bay Stated replaced him or sought to replace him. See Lawlor v. ESPN Scouts, LLC,

No. 10-5886, 2011 WL 675215 at *7(D.N.J, Feb. 16, 2011) (plaintiff alleged that the employer

replaced him with someone in his mid-twenties); Feeney, 2011 WL 5157373, at *5 (plaintiff

alleged that he was ultimately replaced by a new employee). Therefore, because Plaintiff failed

to allege facts sufficient to satisfy all four elements of a prima facie case of ancestral

discrimination under the NJLAD, Bay State’s motion to dismiss is granted.

In order to establish a prima facie case of discriminatory discharge on the basis of

disability under the NJLAD, a plaintiff must show that: “(1) he is disabled or perceived to have adisability; (2) he was otherwise qualified to perform the essential functions of the job, with or

without reasonable accommodation by the employer; (3) he was fired; and (4) the employer

sought someone else to perform the same work.” Muller v. Exxon Research & Eng’g. €o., 345

N.J. Super. 595. 786 A.2d 143, 148 (N.J. Super. Ct. App. Div. 2001) (citing Qowes, 538 A.2d at

805).

Plaintiff’s claim of disability discrimination under the NJ LAD fails because Plaintiff does

not allege any facts indicating that he was disabled after his on the job accident. Moreover, theComplaint fails to allege what disability Plaintiff possessed due to the accident. Instead, Plaintiff

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Moreover, Plaintiffs allegations fail to raise a reasonable inference that Defendants

perceived him to have a disability. See Incorvati v. Best Buy Co., No. 10—1939, 2010 WL4807062, at * (D.N.J. Nov. 16, 2010) (dismissing plaintiffs NJLAD perceived disability claim

because frequent teasing about his age and the heart attack he suffered did not establish that

defendant misperceived that plaintiff suffered from a substantially limiting impairment).Although the Complaint alleges that Defendants improperly terminated him, reprimanded him,

and retaliated against him, it fails to allege that any of the employees who made these decisions

believed he was disabled. (See Compl. ¶J 77-78). Therefore, because Plaintiff failed to allege

facts that indicate he is disabled or that are sufficient to raise the inference that any of theDefendants believed that he was disabled, Plaintiffs NJLAD claim is dismissed.IV. UNION’S MOTION TO DISMISS

The Court now turns to the Union’s motion for judgment on the pleadings pursuant to

Rule 12(c). Because Plaintiff has failed to allege any facts indicating how the Union or any of its

representatives harmed him, Plaintiffs Complaint as to the Union is dismissed. A full recount of

Plaintiffs claims is provided in Parts II and III, supra.

A. Count One- Whistleblower ClaimsAs discussed in Part lII.A, supra, Plaintiff has voluntarily dismissed count one of his

Complaint. Therefore, this claim is dismissed.

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duties and obligations on defendants in the case of termination procedures.” (Compi. ¶ 20). Itappears that the Plaintiff is referring to employment manuals and other documents related to hisemployment. Because the Union was not Plaintiff’s employer, this claim does not implicate the

Union Defendant. 7

C. Counts Three and Five- Retaliation and Wrongful DischargeIn Counts Three and Five, Plaintiff claims that Defendants wrongfully discharged him in

retaliation for attempting to file a worker’s compensation claim. (Compi. ¶J 23-27, 34-40). The

Union asserts that it was not the Plaintiff’s employer and as such, it was not involved in the

decision to terminate Plaintiff’s employment. (See Union Br. 4, 5). The Court agrees with theUnion Defendant and finds that in addition, Plaintiff has not alleged any facts suggesting, even at

a speculative level, that the Union had any influence on Bay State’s decision to terminate

Iwanicki. Therefore, these claims are dismissed as to the Union.

D. Count Four- Breach of Contract

In Count Four, Plaintiff claims that Defendants breached the job security provisions in

the employee handbooks. manuals and documentation. (Cornpl. ¶J 30-31). A breach of contract

claim requires (I) the existence of a valid contract; (2) a breach of that contract; and (3) resulting

damage to the plaintiff. Ramada Worldwide, Inc. v. Steve Young Kim, No. 09—4534, 2010 WL

To the extent that Plaintiff claims that the Union violated its duty of fair representation, the

Court addresses that claim in Part V, infra.

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recompense pursuant to the collective bargaining agreement. Furthermore, while Plaintiff claims

that the Union did not fully represent him, (see Iwanicki Aff. 5), it appears that the Union did in

fact advocate on behalf of Plaintiff on three separate occasions, (see Rodriguez Aff. ¶f 5-7).

Therefore, the Court finds that Plaintiff has failed to sufficiently plead a claim for breach of

contract.

E. Count Six- Hostile Work Environment

In Count Six, Plaintiff claims he was harassed due to his national origin and his alleged

disability. He claims that Defendants “failed to take measures to stop it.” (Compl. ¶ 45).However, Plaintiff failed to allege any specific harassing or offensive conduct on behalf of theUnion whatsoever. Therefore, for this reason and those elaborated in Part III.B.4, supra, this

claim is dismissed.

F. Count Seven- Violation of the Union’s Duty of Fair RepresentationIn Count Seven, Plaintiff claims that the Union conducted “itself in an arbitrary,

discriminatory, and or bad faith manner toward plaintiff who is a member of the collective

bargaining unit.” (Compi. ¶ 52). Plaintiff cites Brown v. Coil. OfMed. & Dentistry, 167 N.J.

super 532 (N.J. super. Ct. Law Div. 1979), which addresses the statute of limitations for analleged breach of duty to fairly represent a union member. Because several of Plaintiff’s claims

may be construed as claims that the Union violated its duty of fair representation, the Court

addresses that claim separately in Part V, infra.
dismiss to these claims.

H. Count Ten- Intentional Inifiction of Emotional DistressIn Count Ten, Plaintiff claims that Defendants acted intentionally to produce emotional

distress in the Plaintiff. (Compl. ¶J 68-74). However, he has not alleged that the Unioncommitted any intentional or outrageous act. Therefore, this claim is dismissed.

I. Count Eleven- Unlawful DiscriminationIn Count Eleven, Plaintiff claims that Defendants discriminated against him based on his

national origin and disability by wrongfully reprimanding and discharging him. (Compl. ¶J 75-

81). As previously discussed in Part IV.C, supra, the Complaint does not allege that that Union

had any part in the decision to reprimand or terminate Plaintiff.

Plaintiff also appears to claim that the Union aided and abetted Bay State in

discriminating against him. (Compl. ¶ 76). In order to establish a claim for aiding and abetting,

the plaintiff must prove: (1) the commission of a wrongful act; (2) knowledge of the act by the

alleged aider-abettor; and (3) the aider-abettor knowingly and substantially participated in thewrongdoing. Monsen v. C’onsol. Dressed Beef C’o., Inc., 579 F.2d 793, 799 (3d Cir. 1978);Elysian Fed. Savings Bank v. First Interregional Equity Corp., 713 F. Supp. 737, 760 (D.N.J.

1989); Morganroth & Morganroth, 331 F.3d 406, 414 (denying a motion to dismiss aiding and

abetting claims because the complaint provided “numerous allegations of defendants’ knowingassistance [with the] fraudulent schemes”).

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V. THE UNION’S DUTY OF FAIR REPRESENTATION

As best as can be understood from Plaintiff’s Complaint, he claims that the Union

violated its duty of fair representation to him as a member of the Union. (See Compi. ¶J 2, 4, 7).

In order to support a claim for unfair representation, a plaintiff must show “actual bad faith or

arbitrary conduct” on the part of the union. Wright v. Boeing Vertol Co., 704 F. Supp. 76, 79(ED. Pa. 1989) aff’d, 879 f.2d 861 (3d Cir. 1989); see also Findley v. Jones Motor Fright, Div.

Allegheny Corp., 639 F.2d 953, 957 (3d Cir. 1981). It is not enough to show that the Union

decided not to proceed with a grievance or refused to take a complaint to arbitration. See

Findley, 639 F.2d 953, 958 (3d Cir. 1981) (holding that the union did not breach its duty of fair

representation by failing to call one witness, who said he would not have appeared before the

grievance panel, nor by failing to consult with former employee prior to the hearing). A union’sactions “are arbitrary only if, in light of the factual and legal landscape at the time of the union’sactions, the union’s behavior is so far outside a wide range ofreasonableness as to be irrational.”

Air Line Pilots Ass ‘n Int’l v. O’Neill, 499 U.S. 65, 67 (1991).

Here, Plaintiff appears to claim that the Union erroneously decided not to proceed to

arbitration. (Compl, ¶J 16-22, 28-33, 51-55). However, Plaintiff himself has provided

documentation of Bay State’s non-discriminatory reasons for terminating his employment. (See

Compl. Exs. D & E,) The e-mails and letters from the plant manager and other coworkers

indicate that he committed a serious safety violation, yelled at his supervisor, showed disrespect

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2010. (Rodriguez Aff. ¶J 5, 6). In addition, the Union had a meeting with Plaintiff and hisemployer Bay State regarding the disciplinary action taken against Plaintiff for a safety violation

that occurred on December 31, 2010. (Rodriguez Aff. ¶ 7).

Plaintiff also apparently claims that the Union conspired with his employer in

disciplining him and ultimately terminating him. (See Compi. ¶ 57). However, in order to

support a claim of conspiracy between a union and an employer, a plaintiff must allege that the

union itself imposed discipline or terminated an employee. See Gilmore v. Local 295, Inter ‘1

Brotherhood of Teamsters, 798 F. Supp. 1030, 1040-41 (S.D.N.Y. 1992). In Gilmore, the

plaintiff alleged that the Union conspired with his employer by “purposefully failing to give him

adequate representation at the arbitration hearings.” Id. at 1041. He claimed that the union and

his employer acted together to punish him for speaking out against racial discrimination, and

therefore the union should be liable for his wrongful termination. Id. The court dismissed his

claims, however, because the union itself did not implement discipline, nor did it fine him,suspend him, or terminate his membership in the union. Id; see also Camporeale v. Airborne

Freight Co., 732 F. Supp. 358, 365 (E.D.N.Y. 1990), aff’d 923 F.2d 842 (2nd Cir. 1990) (holding

that the union was not liable for wrongful termination when the union itself did not impose anydiscipline or terminate the plaintiff’s membership in the union after the plaintiff was repeatedlylate for work). But see Gross v. Kennedy, 183 F.Supp. 750, 755 (S.D.N.Y.1960) (finding the

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sserts that the Union conducted itself “in a[n] arbitrary, discriminatory and or bad faith manner

toward Plaintiff who is a member of a collective bargaining unit.” (Compi. ¶ 52). Furthermore,in his opposition to the Union’s motion, he simply claims that the Union “did not fully,completely and entirely represent [him] when trouble came to [his] door at work, as they should

under the collective bargaining agreement.” (Iwanicki Aff. ¶5). The Court finds that this is not

enough to support a claim against the Union and thus, grants the Union’s motion to dismiss.

VI. Res Ipsa Loguitur

In his Complaint, Plaintiff attempts to invoke the doctrine of res ipsa loquitur for all of

his claims. (Compl. ¶ 82). Under New Jersey law, a plaintiff may use res ipsa loquitur to prove

a negligence claim based on circumstantial evidence. See Myrlak v. Port Autho., 157 N.J. 84, 99(1999). It allows for an inference of defendant’s negligence where (a) the occurrence itself

ordinarily bespeaks negligence; (b) the instrumentality was within the defendant’s exclusive

control; and (c) there is no indication in the circumstances that the injury was the result of the

plaintiffs own voluntary act or neglect.” Id. (quoting Bornstein v. Metropolitan Bottling Co.,

26 N.J. 263, 269 (1958)). Here, Plaintiff has not alleged any claims of negligence such that the

doctrine of res zsa loquitur would apply.VII. Conclusion

Based on the reasons set forth above, Defendants’ motions to dismiss Plaintiffs

Complaint are granted and this matter is administratively terminated. To the extent the

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scheduling order which may be in place.

An appropriate Order accompanies this Opinion.

CLAIRE C. CECCHI, U.S.D.J.

DATED: December 7 , 2011

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