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dismissing intentional infliction of emotional distress claim for failure to allege sufficiently outrageous conduct where complaint alleged, among other things, that defendant was rude to plaintiff and made degrading comments about her
Summary of this case from JAYME v. MCI CORPORATIONOpinion
Civil Action No. 99-664 (JBS)
December 1, 1999
Sally E. Heckeroth, Esquire, Fox, Rothschild, O'Brien Frankel LLP, for Plaintiff.
Joseph P. Paranac, Jr. Esquire, Jasinski Paranac, P.C., for Defendant.
OPINION
I. INTRODUCTION
In this diversity-based employment discrimination case, plaintiff Karen J. Bishop ("Bishop") has brought suit against her former employer, Inacom, Inc. ("Inacom") and several of its management-level employees, alleging, inter alia, breach of implied employment contract, hostile work environment and sexual harassment in violation of the New Jersey Law Against Discrimination ("NJLAD"), as well as common law claims of defamation and infliction of emotional distress. Specifically, the Complaint alleges that, two days after Bishop filed an in-house EEO charge alleging sexual harassment by her supervisor Helmut Kalman, Inacom retaliated by firing her on pretextual grounds.
Presently before the Court are: (1) defendants' motion to dismiss plaintiff's claims against defendants Joan Reinhardt and Kelly McKeever for lack of personal jurisdiction pursuant to Rule 12(b)(2), Fed.R.Civ.P.; and (2) defendants' Rule 12(b)(6), Fed.R.Civ.P., motion to dismiss plaintiff's Counts Three through Eight, Twelve, and Thirteen through Seventeen for failure to state a claim upon which relief can be granted. Defendants also move to strike plaintiff's demand for punitive damages in the breach of contract claims in Counts One and Two, and plaintiff's claim for attorneys' fees as requested in Counts One, Two, and Ten through Seventeen. For reasons stated herein, the Court determines that it may exercise jurisdiction over all defendants.
The primary issue to be decided is whether an allegation that a supervisor's crude warning to an employee not to share confidential workplace information with her boyfriend/co-worker is actionable under the NJLAD. For reasons stated herein, the Court will resolve this issue in favor of defendants, and holds that plaintiff's allegations fail to state a valid claim of sexual harassment or hostile work environment in violation of the NJLAD. Other aspects of the plaintiff's Complaint survive, however, and therefore defendants' motion will be granted in part and denied in part.
II. BACKGROUND
According to plaintiff's Complaint, this matter arises from Bishop's past employment with Inacom, a Nebraska Corporation doing business in Swedesboro, New Jersey. (Compl. ¶ 5.) Bishop, an experienced human resources professional, was hired as Inacom's Swedesboro Human Resources Manager in August 1997, but held that position for less than seven months before she was fired. (Id.) Her boyfriend, Joe Hatton, was also a co-worker, and was employed as Inacom's Configuration Supervisor for the Swedesboro facility. (Id. at ¶ 13.)
The important consideration in deciding a 12(b)(6) motion is whether the plaintiff has alleged facts which would constitute a legal claim, and not whether the alleged facts are true. The Court must accept as true all of the matters pleaded in the complaint, as well as reasonable inferences from those matters. Markowitz v. Northeast Land Co . , 906 F.2d 100, 103 (3d Cir. 1990). The facts here are therefore taken from plaintiff's complaint.
The events giving rise to this case began on March 13, 1998. On that date, plaintiff attended a meeting with Helmut Kalman, Inacom's Director of Operations, Loss Prevention Specialist Thomas Schlichtig, and Inventory Manager Howard Stranahan. During this meeting, which concerned another employee's suspected theft of an expensive camera, Bishop was told of the investigation into the theft and Kalman's plans to terminate the employee from employment. (Id. at ¶ 12.) At the conclusion of this meeting, Kalman turned to Bishop and specifically warned her not to share the information discussed at the meeting with her boyfriend/co-worker Joe Hatton, Inacom's Configuration Supervisor for the Swedesboro facility. (Id. at ¶ 13.) Although there is no company policy against employee dating, Bishop apparently was the only one at the meeting who was involved with a co-worker and the only one to receive such a warning.
After Kalman expressed his concern that Bishop would discuss sensitive matters with Hatton, plaintiff assured Kalman that she never leaked confidential information, even to Hatton. To this Kalman retorted, "whatever, but you know that pillow talk." Following Kalman's "pillow talk" comment, Stranahan stated "I don't want to hear this", to which Kalman again allegedly asserted that there was "pillow talk" between Bishop and Hatton. Bishop again allegedly told Kalman that at no time had she discussed confidential Inacom matters with Hatton. This second reassurance allegedly went unacknowledged by Kalman (Id. at ¶ 17.) While the statements about "pillow talk" were being made, the door to the meeting room was left open and at least five (5) other Inacom employees allegedly could hear Kalman's comments. (Id. at ¶ 16.)
Despite Kalman's vocal concerns about Bishop's ability to keep secrets, it is not alleged that Bishop was ever excluded from any meetings or confidential discussions. Apparently, Kalman nevertheless continued to cast doubt on Bishop's ability to keep silent. Bishop learned from several other Inacom employees that Kalman allegedly had on other occasions remarked to management-level employees that Bishop and Hatton were "bed buddies" and that they engaged in "pillow talk." (Id. at ¶ 18.)
On March 19, 1998, Bishop complained of Kalman's comments to Reinhardt, Inacom's Regional Human Resource Manager and McKeever, Inacom's Corporate Human Resource Manager. In a meeting held in Bishop's office, plaintiff requested that the sexually harassing statements cease and desist. Without investigating Bishop's complaint or preparing an incident report, Reinhardt and McKeever told plaintiff that Kalman's statements were not sexual harassment. (Id. at ¶ 20.) Significantly, on the same day Bishop complained about Kalman's inappropriate comments, Reinhardt and McKeever informed Ms. Bishop that she was under investigation for certain company "concerns". (Id. at 22.) It is unclear from the Complaint whether these suspicions were voiced at the same meeting during which Bishop complained of Kalman's comments, or whether Reinhardt and McKeever informed plaintiff of their concerns at a second, separate meeting.
Dissatisfied with McKeever and Reinhardt's treatment of her complaints, plaintiff sent a March 21, 1998 e-mail to Inacom's Vice-President of Corporate Resources, Larry Fazzini, and Director of Technical Integration, John Galan, again complaining about Kalman's "pillow-talk" statements and requesting that such comments cease. (Id. at ¶ 23.) On March 23, Fazzini responded to Bishop's e-mail, stating that he was referring Bishop's complaints to McKeever. Later that afternoon, McKeever chided plaintiff for advancing such picayune complaints, stating that Bishop was not "being part of the team." McKeever did not indicate that she had investigated Bishop's complaints, but did advise that she told Kalman to apologize, which he later did. (Id. at ¶¶ 23-24.)
Still unhappy with the lack of official action on Kalman's comments, on March 24, 1998, Bishop filed an in-house EEO charge. Two days later, on March 26, 1998, Reinhardt and McKeever entered Bishop's office and informed her that she was fired, effective immediately. This firing came without warning or disciplinary action, an alleged violation of the contract of employment implied in Inacom's employee handbook, which provides that Inacom employees will not be fired except for just cause and after receiving progressive discipline. (Id. at ¶ 7.) The two informed Bishop that the reasons for her termination were due to breaches of confidence, authorization of illegal background searches for all employees of the facility, and performance issues involving the customer service department and payroll. (Compl. ¶ 26.)
Plaintiff filed the present Complaint on December 15, 1998 in the Superior Court of New Jersey. On January 4, 1999, defendants timely removed to this Court, which has jurisdiction based on diversity of citizenship and amount in controversy. 28 U.S.C. § 1332(a)(1). Defendants filed the present motion in lieu of an answer on May 9, 1999.
III. DISCUSSION
A. Personal Jurisdiction
Defendants first raise the threshold issue of whether this Court has personal jurisdiction over McKeever and Reinhardt. They argue that, because McKeever and Reinhardt's contacts with New Jersey were solely in their corporate capacity, plaintiff cannot demonstrate contacts with New Jersey sufficient to give this Court in personam jurisdiction. Plaintiff responds that this Court may exercise specific jurisdiction over McKeever and Reinhardt because this controversy relates to and arises out of the incidents which occurred in New Jersey in mid to late-March 1998.
In cases such as this one, where a defendant has raised a jurisdictional defense, the plaintiff bears the burden of demonstrating contacts with the forum state sufficient to give the Court in personam jurisdiction. Wright v. Xerox Corp., 882 F. Supp. 399, 403 (D.N.J. 1995). "However, upon a Rule 12(b)(2) attack on personal jurisdiction, the Court must accept as true the allegations in the Complaint, and resolve the disputed issues of fact in favor of the plaintiff." Id.
A district court's deliberation on a motion to dismiss for lack of personal jurisdiction is governed by Rule 4(e), Fed.R.Civ.P., which provides that a district court sitting in diversity may assert personal jurisdiction over non-resident defendants to the extent allowed by the applicable statute or rule of the state in which the district court sits.See Bane v. Netlink, Inc., 925 F.2d 637, 639 (3d Cir. 1991). In New Jersey, the New Jersey Long-Arm Statute, Rule 4:4-4, has been construed to extend personal jurisdiction "to the uttermost limits permitted by the United States Constitution." Charles Gendler Co. v. Telecom Equipment Corp., 102 N.J. 460, 469 (1986). Thus, this Court may exercise personal jurisdiction over defendants McKeever and Reinhardt if it is clear that they have certain "minimum contacts" with New Jersey such that the exercise of jurisdiction would not offend the "traditional notions of fair play and substantial justice" contemplated by the Due Process Clause of the Fourteenth Amendment. International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
Minimum contacts exist when a defendant performs certain acts by which she purposefully avails herself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Hanson v. Denckla, 357 U.S. 235, 253 (1958). The contacts with the forum state must be of a nature such that the non-resident defendant "should reasonably anticipate being haled into court there." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985).
According to the Complaint, McKeever and Reinhardt heard plaintiff's complaints of Kalman's harassment while in New Jersey, aided and abetted Kalman's harassment by failing to act on it while in New Jersey, and retaliated against plaintiff for her filing of a EEO complaint against Kalman by coming to Bishop's New Jersey office and firing her. Thus, the Complaint alleges that, while in New Jersey, these defendants' actions directly harmed the plaintiff. Defendants' argument that McKeever and Reinhardt are somehow insulated by their status as employees of Inacom in unavailing. Conduct which took place in this state confers in personam jurisdiction, notwithstanding the status of these defendants' as employees of an out of state business. Moreover, even if the above conduct had not taken place in New Jersey, it is clear that these allegedly tortious acts were directed at a plaintiff who was in New Jersey. This alone would be sufficient to give rise to specific jurisdiction under "effects test" of Calder v. Jones, 465 U.S. 783 (1984). See also, Bryan v. ACT, 837 F. Supp. 633 (D.N.J. 1993) (jurisdiction proper over New Zealand defendant based on allegation that negligently packed cargo harmed New Jersey plaintiff). In sum, as plaintiff has pleaded causes of action against McKeever and Reinhardt that arise out of their contacts with New Jersey, the Court finds that sufficient minimum contacts are present to give rise to specific, in personam jurisdiction over these defendants.
Therefore, jurisdiction is proper over McKeever and Reinhardt on the grounds that they directed acts affecting a New Jersey plaintiff and that they were in New Jersey while engaging in this conduct. The Court finds that, under these circumstances, McKeever and Reinhardt should reasonably have anticipated being haled into Court in New Jersey and that the exercise of specific personal jurisdiction over them would not offend any traditional notions of fair play or substantial justice. Accordingly, the Court denies defendants' motion to dismiss plaintiff's claims against McKeever and Reinhardt for lack of in personam jurisdiction.
B. Standards for Rule 12(b)(6) Motions to Dismiss
Having decided that the exercise of personal jurisdiction over McKeever and Reinhardt is proper, the Court next turns to consider defendants' motion to dismiss for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6), Fed.R.Civ.P. The Supreme Court has instructed that a Rule 12(b)(6) motion must be denied "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A district court must accept any and all reasonable inferences derived from those facts. Unger v. National Residents Corp. v. Exxon Co., U.S.A., 761 F. Supp. 1100, 1107 (D.N.J. 1991); Gutman v. Howard Sav. Bank, 748 F. Supp. 254, 260 (D.N.J. 1990).
However, a Complaint should be dismissed if, accepting all plaintiff's allegations and the reasonable inferences to be drawn therefrom, no relief could be granted under any set of facts to be proved. Watts v. Internal Revenue Service, 925 F. Supp. 271, 275 (D.N.J. 1996). Although this Court must for the purposes of a Rule 12(b)(6) motion read the Complaint indulgently, the Court is not required to accept as true unsupported conclusions and unwarranted inferences. Schuykill Energy Resources v. PPL, 113 F.3d 405, 417 (3d Cir. 1997). There must be an actual, actionable claim underlying the Complaint's allegations. Hishon v. King Spalding, 467 U.S. 69, 73 (1984).
C. Motion to Dismiss Counts Three and Five through Eight
In Counts Three and Five through Eight, plaintiff alleges that the comments of defendant Kalman, who referred to plaintiff and her boyfriend/co-worker as "bed buddies" who engaged in "pillow talk", created a sexually hostile work environment at Inacom. Defendants respond that, even assuming such remarks were made, Kalman's comments were benign and cannot reasonably be viewed as having been made because of plaintiff's gender, thus precluding a finding of harassment. Moreover, defendants argue, such comments are certainly not so pervasive as to create a hostile work environment actionable under the New Jersey Law Against Discrimination ("NJLAD").
As set forth in the margin, the plain language of the NJLAD provides formidable protections against discrimination in the workplace. The legislative history of the act is silent, however, on the subject of sexual harassment. Lehman v. Toys `R' Us, Inc., 132 N.J. 587, 600 (1993). The basic formula for establishing whether certain comments are actionable as harassment is a judicial construct, established by the New Jersey Supreme Court in Lehman, supra. In that case, the court determined that a female plaintiff alleging that conduct in the workplace constitutes invidious discrimination in violation of the NJLAD must show by a preponderance of evidence that the "complained-of conduct (1) would not have occurred but for the employee's gender; and it was (2) severe or pervasive enough to make a (3) reasonable woman believe that (4) the conditions of employment and the working environment is hostile or abusive." Id. at 603-04 (emphasis in original). Of course, as this Court now considers defendants' motion to dismiss pursuant to Rule 12(b)(6), all the plaintiff need do is properly allege each of these four elements to survive the present motion.
The NJLAD, originally enacted in 1945, provides (as amended) in relevant part:
It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination: a. For an employer, because of the race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, genetic information, [or] sex . . . of any individual to refuse to hire or employ or to bar or to discharge or require to retire, unless justified by lawful considerations other than age, from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment;
In addition to setting forth a general framework for determining sexual harassment, the Lehman court elaborated upon what constitutes gender-based harassment, declaring that mere name calling is not considered conduct actionable under the LAD: Common sense dictates that there is no LAD violation if the same conduct would have occurred regardless of the plaintiff's sex. For example, if a supervisor is equally crude and vulgar to all employees, regardless of their sex, no basis exists for a sex harassment claim. Although the supervisor may not be a nice person, he is not abusing a plaintiff because of her sex.
Id. at 604. Thus, under the sexual harassment framework provided inLehman, the NJLAD does not create a cause of action for comments that are simply rude or not nice.
In the event that plaintiff cannot show that the form of harassment is obviously sex-based, the victim must make a prima facie case showing that the harassment occurred because of her sex. Id. at 605. For example, a prima facie case might be made by showing that only women suffered the non-facially sex-based harassment. In any event, all that is required to satisfy the first prong of the Lehman test is a showing that it is more likely than not that the harassment would not have occurred but for the plaintiff's sex. Id.
Federal courts, to which the New Jersey courts sometimes look for guidance in sexual harassment matters, Lehman 132 N.J. at 600-01, have generally held that crude or unkind comments are not actionable as sexual harassment. The Supreme Court has instructed that courts judging hostility should "filter out complaints attacking `the ordinary tribulations of the workplace, such as the sporadic use of gender-related jokes, and occasional teasing.'" Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (citing Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75, 80 (1998)). This screening is in place to ensure that Title VII does not become trivialized as a "general civility code." Id. In particular, courts should filter out simple teasing, offhand comments, and isolated incidents (unless extremely serious). Id. (citingOncale, 523 U.S. at 82.)
An example of such filtering can be seen in a case from this District,Reyes v. McDonald Pontiac-GMC Truck, Inc., 997 F. Supp. 614 (D.N.J. 1998). There, a plaintiff sued her employer and a co-worker for violation of the NJLAD, alleging that she was sexually harassed when, on three occasions during a seven day period her co-worker verbally abused her, using obscenities and calling her a "bitch", and "Miss f****** Queen Bee." The court in that case held that such name-calling did not occur because of the sex of either party. Without establishing that the conduct occurred because of the parties' gender, the court held, plaintiff fell short of alleging an NJLAD violation. Furthermore, the court held, the name calling was insufficiently severe or pervasive to create a hostile working environment. Id. at 617. See also Holtz v. Marcus, 31 F. Supp.2d 1139 (E.D.Wis. 1999) (no Title VII hostile work environment claim where supervisor yelled at female employees).
In this case, plaintiff claims that a hostile work environment was created when Kalman twice used the phrase "pillow talk" to refer to her private conversations with Hatton, and commented to other Inacom employees that plaintiff and Hatton were "bed buddies" who engaged in "pillow talk". The Court finds that plaintiff's complaint does not allow a conclusion that Kalman's remarks, while crude, are anything other than gender neutral. There is nothing to suggest that the phrases "pillow talk" or "bed buddies" carry additional meaning for female listeners. Clearly, these phrases would have the same meaning whether directed at male or female listeners. Thus, plaintiff's complaint does not warrant the inference that Kalman's conduct was obviously sex-based. Because the comments were gender neutral, plaintiff must overcome the statements' neutrality by alleging surrounding circumstances showing it to be more likely than not that Kalman directed his comments at Bishop because of her sex.
Upon a review of the Complaint, it is apparent that plaintiff has not alleged sufficient surrounding circumstances to warrant the inference that Kalman's statements were gender-based. While she does allege that she was the only female at the loss-prevention meeting, and that she was the only person admonished not to share the sensitive information being discussed, there is no indication that there were other individuals present who were dating co-workers. From these circumstances, it cannot reasonably be inferred from the circumstances of the meeting that Kalman isolated his comments to Bishop because of her sex. Rather, the only inference to be drawn is that Kalman's comments were a simple, albeit crude, request for discretion directed to the only employee present who was dating a co-worker, and that this discretion involved a sensitive work-place investigation. Indeed, plaintiff admits as much in her brief when she concedes that "the statement might not have been made if she was not dating a fellow employee." (Pl's Br. in Opp'n at 11.) While Kalman's statements might be interpreted as an obnoxious reference to the sex life of a co-worker couple, such references are not prohibited by the NJLAD, especially when germane to the legitimate need for workplace confidentiality and security.
The Court finds that plaintiff has not presented facts from which one could infer that Kalman's comments would not have been made but for plaintiff's gender, nor facts showing that the totality of circumstances shows that Kalman's comments and subsequent actions created a hostile work environment. Besides Kalman's two "pillow talk" comments directed towards plaintiff, the only other hostile acts alleged are Kalman's "bed buddies" remarks made to other employees. The Court finds that the "bed buddies" comments amount to mere gossip, and even assuming that the comments were harmful, there is no indication that the comments — uttered a few times to a few employees — were pervasive. The NJLAD should not be read so broadly as to create a cause of action for casual workplace chatter.
Even if these comments were gender-specific, they would at most amount to "second-hand harassment" the impact of which is not as great as comments directed at a plaintiff. See Gleason v. Mesirow Financial, Inc., 118 F.3d 1134 (7th Cir. 1997). Moreover, plaintiff has not alleged that she was demoted, transferred, or suffered other harm to the quality of her employment. Because plaintiff has only alleged indirect gossip about her relationship with a co-worker who was her boyfriend, and has not alleged circumstances showing that the conditions of her employment were altered by such comments, the Court finds that plaintiff could not reasonably have believed that her working environment was hostile. For this reason, even assuming that Kalman's comments were gender-based, plaintiff also fails to satisfy the second, third and fourth prongs of theLehman test. Accordingly, the Court will grant defendants' motion to dismiss plaintiff's Counts Three and Five, which allege sexual harassment by Kalman.
In addition, because plaintiff has failed to state an actionable claim against Kalman, the Court finds that neither Reinhardt nor McKeever may be held individually liable for aiding and abetting a non-violation of the NJLAD. Accordingly, the Court will also dismiss plaintiff's Count Eight, which alleges that these defendants aided and abetted an NJLAD violation. Finally, with respect to plaintiff's argument that Counts Six and Seven state a valid claim against McKeever and Reinhardt for failure to investigate a violation of the NJLAD, the Court finds no support for such a claim in case law or in the NJLAD itself. Certainly, the Act cannot be read to create a cause of action against employers who do not investigate even frivolous claims. At best, the allegations of failure to investigate should be considered incorporated into the now-dismissed Aiding and Abetting allegations in Count Eight.
C. Plaintiff's Slander Claim
Defendants next argue that plaintiff's Count Ten should be dismissed because her claim of defamation is not reasonably susceptible to a defamatory meaning. This Count alleges that Kalman's public remarks concerning "pillow talk" with her "bed buddy" Hatton tended to "blacken the . . . morality and reputation of the plaintiff, . . . and exposed her to ridicule and contempt." In her opposition brief, plaintiff urges the Court to find that Kalman's statements are actionable both as slander per se, or in the alternative as traditional slander.
Under New Jersey law, unless Kalman's statements are reasonably susceptible of a defamatory meaning, plaintiff has failed to state a claim of slander. See Kotlikoff v. the Community News, 89 N.J. 62, 67 (1982); cf. Beverly Enterprises v. Trump, 182 F.3d 183, 191 (3d Cir. 1999) (citing similar provisions in Pennsylvania law). Courts must judge both the content and context of the statement in determining whether the statement is capable of a defamatory meaning. Ward v. Zelikovsky, 136 N.J. 516, 532 (1994).
Although in traditional slander the plaintiff must also establish that she was harmed by the defamatory statement, the damages are presumed if the statement is slander per se. Defamatory statements are slanderous per se when they charge a commission of a crime; impute certain loathsome diseases; strike at a person in his business, trade, profession, or office; or impute unchastity to a woman. Hoagburg v. Harrah's Marina Hotel Casino, 585 F. Supp. 1167, 1170 (D.N.J. 1984). When alleging defamation under these four categories, the damages element is waived because damage to reputation is presumed to flow from such statements.Ward, 136 N.J. at 541.
Here, it can be inferred that in both content and context Kalman's "pillow talk" and "bed buddies" comments may be construed as slander per se. First, Kalman's warning to Bishop not to speak to others about the theft investigation could reasonably be taken to imply that Bishop could not be trusted with sensitive information an important aspect of any managerial position. These remarks can therefore be construed as tending to sully her professional reputation. Such a denigration of an employee's trustworthiness fits squarely within the third category of slander per se. Likewise, Kalman's remarks about Bishop's intimate relationship with Hatton could be construed as implying that Bishop was unchaste. Such allegations of unchastity directed towards a female plaintiff fits within the fourth category of slander per se. Therefore, plaintiff has stated a claim for slander per se upon which relief may be granted and defendants' motion will be denied with respect to Count Ten.
D. Plaintiff's Self-Defamation Claim
Defendant next moves this Court to dismiss plaintiff's Count Twelve, which alleges that Bishop was harmed when she was compelled to repeat Reinhardt's defamatory statements when explaining the reasons for her termination from Inacom to prospective employers, and her bank. (Compl. ¶ 109.) As accurately pointed out by defendants, New Jersey has not recognized the tort of self-defamation. In response, plaintiff argues that, because New Jersey has not specifically rejected such a cause of action, this Court should find that the New Jersey Supreme Court could decide to follow the jurisdictions that have recognized self-defamation, and that Count Twelve therefore states a viable claim.
Here, plaintiff states a claim for self-defamation that is not actionable under New Jersey law. As no relief may be granted on this claim it is due to be dismissed. Undeterred, plaintiff in her brief asks this Court to predict that the New Jersey Supreme Court will someday recognize such a claim. However, plaintiff has provided no New Jersey authority showing a trend towards recognizing claims of self-defamation. Nor has she provided the Court with any cogent policy reasons why such an adoption would be beneficial. A determination of whether such a claim is viable should be deferred until the Courts of New Jersey have had an opportunity to consider the issue. As there is at present no claim upon which relief can be granted for plaintiff's allegations of self-defamation, plaintiff's Count Twelve will be dismissed.
E. Plaintiff's Claims of Intentional Infliction of Emotional Distress
Next, defendants argue that the Court should dismiss plaintiff's Count Sixteen which alleges that all defendants intended to inflict emotional distress on the plaintiff and/or recklessly inflicted such distress. (Compl. ¶ 127.) Because plaintiff has not alleged behavior that is outrageous, defendants argue, plaintiff has not stated a proper claim of intentional infliction of emotional distress ("IIED").
In claims of IIED, New Jersey courts have adopted the definition of theRestatement (Second) of Torts § 46 (1965). Obendorfer v. Gitano Group, Inc., 838 F. Supp. 950 (D.N.J. 1993) (citing Buckley v. Trenton Saving Fund Soc., 111 N.J. 355 (1988)). Under this definition, at this stage a plaintiff must allege conduct "`so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Buckley, 111 N.J. at 366 (quoting Restatement (Second) of Torts § 46, cmt. d). This standard is exceedingly difficult to meet in the employment context, where courts have been particularly reluctant to allow claims of IIED by discharged employees against their employers.Pitak v. Bell Atlantic Network Services, Inc., 928 F. Supp. 1354, 1372 (D.N.J. 1996).
Defendants argue that the conduct alleged in the Complaint does not rise to the level of outrageousness and thus does not state an actionable claim of IIED. The Court agrees and finds Count Sixteen deficient in that it fails to allege conduct that is sufficiently outrageous, atrocious, or indecent to state a claim of IIED under Buckley. At most, the Complaint alleges that Kalman was rude to Bishop and made degrading comments about her, (Compl. ¶ 13); that plaintiff was chagrined when McKeever told her that she was not being part of the team, (Compl. ¶ 24); that she was fired in retaliation for her complaints about Kalman, (Compl. ¶ 26); and that Inacom breached an implied employment contract, (Compl. ¶ 31-35). Even read in the most generous light, this behavior is not sufficiently outrageous to go beyond all possible bounds of decency. The Court therefore finds that plaintiff has failed to state an actionable claim of IIED, and will dismiss Count Sixteen.
F. Plaintiff's Claims of Negligent Infliction of Emotional Distress
Defendants next move the Court to dismiss plaintiff's Counts Thirteen and Seventeen, which allege that plaintiff is entitled to recovery for defendants' negligent infliction of emotional distress. Defendants argue that these counts must be dismissed because plaintiff has not pleaded any of the elements necessary to establish such a cause of action. Under New Jersey law, a claim of Negligent Infliction of Emotional Distress involves a "bystander case" in which the necessary elements are "(1) the death or serious injury of another caused by defendant's negligence; (2) a marital or intimate, familial relationship between plaintiff and the injured person; (3) observation of the death or injury at the scene of the accident; and (4) resulting severe emotional distress." Williamson v. Waldman, 150 N.J. 232 (1997). It is clear from the face of plaintiff's Complaint that none of these elements are present. Not surprisingly, plaintiff in her Brief in Opposition agrees that her claim does not satisfy the necessary elements, and has withdrawn Counts Thirteen and Seventeen. (Pl's Br. in Opp'n at 34.) Accordingly, the Court will dismiss these Counts.
G. Plaintiff's "Prima Facie Tort" Claims
Defendants next move the Court to dismiss Counts Fourteen and Fifteen of plaintiff's Complaint. In Count Fourteen, plaintiff generally asserts that she was injured by the defendants' conduct, and that this conduct deprived her of "any opportunity again to become a Human Resources Manager employed by Inacom," (Compl. ¶ 119), and caused her "damage to her . . . reputation, physical and emotional distress, loss of income . . . pain and humiliation (Compl. ¶ 125.) In Count Fifteen, plaintiff asserts that defendants "acted with reckless indifference to the consequences that would flow from Kalman's behavior and defendants' failure to respond to that conduct. (Compl. ¶ 124.) Although these counts do not on their face state a distinct claim upon which relief may granted, plaintiff urges the Court to find that these Counts state a case of "prima facie tort", and should not be dismissed. (Pl.'s Br. in Opp'n at 29.)
Remarkably, plaintiff here asks the Court to recognize a prima facie tort cause of action despite the fact that the New Jersey Supreme Court has specifically forbidden plaintiffs from appending prima facie tort claims an NJLAD complaint. Taylor v. Metzger, 152 N.J. 490, 522-523 (1998). Indeed, as the court observed, "[e]ven if allegations of harassment [are] insufficient to state an LAD claim . . . a prima facie tort cause of action should not be used to overcome those deficiencies." A prima facie cause of action should be allowed, if at all, much as the doctrine of res ipsa loquitur, that is, in situations in which plaintiffs would have no other causes of action. Id.
Even if plaintiff was not barred by New Jersey law from asserting a prima facie tort cause of action, the Court finds that these claims suffer from basic deficiencies that would warrant their dismissal. It is axiomatic that the fundamental element of a tort is the violation of a duty owing the plaintiff. Black's Law Dictionary at 1496 (7th ed. 1999). Before a party may be held liable for breach of an obligation to another party, it must first be established that the party in fact owed a duty to act in a certain manner. Riggs v. Schappell, 939 F. Supp. 321, 329 (D.N.J. 1996). Under New Jersey law, a showing of tortious conduct "involves a demonstration by the plaintiff that there exists `some breach of duty, by action or inaction, on the part of the defendant to the individual complaining, the observance of which would have averted or avoided the injury.'" Id. (citing Brody v. Albert Lifson Sons, 17 N.J. 383 (1955)).
Although this Court must for the purposes of a Rule 12(b)(6) motion read the Complaint indulgently, the Court is not required to accept as true unsupported conclusions and unwarranted inferences. Schuykill Energy Resources, 113 F.3d at 417. The Court finds that even a liberal reading of Count Fourteen does not permit an inference that defendants owed plaintiff a duty to allow her to continue her employment with Inacom. Employers are free to terminate an employee at will barring a contractual agreement to the contrary. See Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980). As it lacks an allegation of duty, then, Count Fourteen fails to state a valid tort claim. In addition, there is not a suggestion of a duty of any sort in Count Fifteen. Instead, this Count simply alleges that "conduct of Inacom, Kalman, McKeever, and Reinhardt was in deliberate disregard for the rights of plaintiff." (Compl. ¶ 20.) This vague allegation to a violation of plaintiff's rights does not give adequate notice to the defendants what conduct is referred to, and fails to give notice of what "rights" of plaintiffs were violated. The Court finds that, rather than valid claims, Counts Fourteen and Fifteen merely allege unactionable harm caused by breach of an unspecified duty. Accordingly, these Counts will be dismissed.
H. Plaintiff's Demand for Punitive Damages
Next, defendants request that plaintiff's request for punitive damages be stricken from the contract claims in Counts One and Two. In these Counts, plaintiff alleges that defendants breached an implied employment contract that was in force at the time of her firing, and also that this firing breached the implied covenant of good faith and fair dealing. Defendants argue that punitive damages are not available in contract cases, plaintiffs claim for such damages must be dismissed.
Under New Jersey law, punitive damages generally are not available in actions for breach of contract. Buckley, 111 N.J. at 369-70. Although exceptions have been carved out of this rule, these exceptions have been premised on the finding of a special connection, such as a fiduciary relationship between the parties. These relationships impose a duty of trust on the contracting parties, and it is the breach of this duty of trust, rather than the breach of contract, which gives rise to an award of punitive damages. W.A. Wright, Inc. v. KDI Sylvan Pools, Inc., 746 F.2d 215 (3d Cir. 1984); Sandler v. Lawn-A-Mat Chem. Equip. Corp., 141 N.J. Super. 437, 448-49 (App.Div. 1976), cert. den., 71 N.J. 503 (1976).
Plaintiff has not alleged any such special relationship in her Complaint. Plainly, the relationship between Bishop and Inacom was that of employer and employee. Even assuming, as this Court must for this motion, that an employment contract existed between these parties, and that Inacom breached this contract and all implied covenants therein, this breach does not violate a special relationship of trust. Cf. Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980). Bishop's Complaint does not allow a reasonable inference of a fiduciary relationship between these parties, and therefore does not state an exceptional contract claim upon which punitive damages could be awarded. Accordingly, plaintiff's demand for punitive damages in Counts One and Two will be stricken.
I. Plaintiff's Demands for Attorneys' Fees
Finally, defendants move to strike plaintiff's demand for attorneys' in Counts One, Two, and Ten through Seventeen. Because the Court now dismisses Counts Thirteen through Seventeen, we need only consider the fee demand in Counts One, Two, Ten and Eleven. In these Counts, plaintiff includes in the demand paragraph a claim for attorneys' fees. The general rule in American jurisprudence is that each party shall bear the cost of their own attorney's fees, see Aleyska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247 (1975). While attorneys' fees may be awarded to the prevailing plaintiff as part of a statutory scheme such as the NJLAD, see e.g. N.J.S.A. 10:5-27.1, plaintiff's Counts One, Two, Ten and Eleven advance common law claims that contain no provisions for attorney's fees. Plaintiff concedes as much in her Brief in Opposition, and admits that there is no basis for awarding attorneys' fees in these non-LAD claims. Accordingly, the Court will strike plaintiff's demand for attorneys' fees in Counts One, Two, Ten, and Eleven.
CONCLUSION
For the reasons discussed above, the Court now denies defendants' Rule 12(b)(2), Fed.R.Civ.P., motion to dismiss for lack of personal jurisdiction over defendants McKeever and Reinhardt, and denies in part and grants in part defendants' motion to dismiss pursuant to Rule 12(b)(6), Fed.R.Civ.P. The accompanying Order is entered.
Although the Court now dismisses plaintiff's hostile work environment and sexual harassment claims in their entirety, other of plaintiff's Counts alleging NJLAD violations were not challenged in the present motion to dismiss. Thus, the present Opinion does not affect plaintiff's retaliation claim in Count Four, nor plaintiff's age discrimination claim in Count Nine.
OPINION
THIS MATTER having come before the Court on defendants' motion to dismiss the Complaint as to defendants McKeever and Reinhardt for lack of in personam jurisdiction pursuant to 12(b)(2), and to dismiss Counts Three, Five through Eight, Twelve, and Thirteen through Seventeen for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6), Fed.R.Civ.P.; and the Court having considered the submissions of the parties; and for the reasons stated in the Opinion of today's date;
IT IS this, 1st day of December, 1999, hereby
ORDERED that the motion of defendants' McKeever and Reinhardt to dismiss pursuant to Fed.R.Civ.P. 12(b)(2) be, and hereby is, DENIED; and
IT IS FURTHER ORDERED that defendants' motion to dismiss pursuant to Rule 12(b)(6), be, and hereby is, DENIED as to Count Ten; and
IT IS FURTHER ORDERED that defendants' motion to dismiss pursuant to Rule 12(b)(6), be, and hereby is, GRANTED as to Counts Three, Five through Eight, and Twelve through Seventeen of the Complaint, and that those Counts be, and hereby are, DISMISSED; and
IT IS FURTHER ORDERED that plaintiff's demand for punitive damages in Counts One and Two be, and hereby is, STRICKEN from the Complaint; and
IT IS FURTHER ORDERED that plaintiff's demand for attorneys' fees in Counts One, Two, Ten and Eleven be, and hereby is, STRICKEN from the Complaint.
* * * *
d. For any person to take reprisals against any person because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act. e. For any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this act, or to attempt to do so.
N.J.S.A. 10:5-12.