Galarza v. Whittle-Kinard et al

BRIEF in Opposition

D.N.J.February 6, 2017

COSTELLO & MAINS, LLC By: Drake P. Bearden, Jr. 18000 Horizon Way, Suite 800 Mount Laurel, NJ 08054 (856) 727-9700 Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY MARIA GALARZA, Plaintiff(s), vs. ROZLYN WHITTLE-KINARD; LOTA HERRERA; DENNIS SPARKS; DAVID RICCI; DENNIS PETTIGREW; PRIME HEALTHCARE SERVICES - ST. MICHAEL’S, LLC and JOHN DOES 1-5 and 6-10, Defendant(s). : : : : : : : : : : : : : : : : CIVIL ACTION DOCKET NO: 2:16-cv-00764-ES-MAH PLAINTIFF’S BRIEF IN OPPOSITION TO DEFENDANT PRIME HEALTHCARE SERVICES - ST. MICHAEL’S, LLC’S MOTION TO DISMISS On the Brief: Drake P. Bearden, Jr. Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 1 of 127 PageID: 475 1 I. INTRODUCTION Defendant’s Motion should be denied because Plaintiff has alleged sufficient facts to establish a plausible claim that Defendant should be liable under the doctrines of successor liability and as a joint employer. The Third Circuit has held that the joint employer doctrine applies where one company exerts control over another company or works in conjunction with another company in controlling the employee’s work environment. Plaintiff alleged Defendant exerted such control over Saint Michael’s in every aspect of her employment, particularly after Saint Michael’s filed for bankruptcy. Therefore, she has alleged facts to establish Defendant was a joint employer at the time she was terminated. The doctrine of successor liability also holds a subsequent employer liable for discrimination and retaliation that occurred under the previous employer, where the new employer merges with or purchases the previous employer. The facts alleged by Plaintiff establish successor liability applies in this case. Furthermore, the Asset Purchase Agreement between Defendant and Saint Michael’s does not preclude successor liability, because the Plaintiff was fired after Saint Michael’s filed for bankruptcy, and Defendant took over control of Plaintiff’s employment. For all of the foregoing reasons, Plaintiff respectfully requests this Honorable Court Rule in her favor and deny Defendant’s Motion in its entirety. II. STATEMENT OF FACTS A. Saint Michael’s Filed for Bankruptcy After Plaintiff Filed a Claim On July 29, 2015, Plaintiff Maria Galarza filed a claim in the New Jersey Superior Court, Essex County against Saint Michael’s Medical Center for violation of the New Jersey Law Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 2 of 127 PageID: 476 2 Against Discrimination (“LAD”) alleging disability and/or perception of disability harassment, the Family Medical Leave Act (“FMLA”), the Fair Labor Standards Act as amended, 29 U.S.C. Section 201, et seq. (“FLSA”) and the New Jersey Wage and Hour Law (“NJWHL”). (See attached as Exhibit “A” Plaintiff’s Complaint Against Saint Michael’s.) Plaintiff’s Complaint was based on her employment that began in 1990. Her employment was still ongoing at the time. (Id.) Plaintiff specifically alleged she was harassed because of her disability and Saint Michael’s perception she was disabled, harassed in retaliation for requesting an accommodation, and harassed for exercising her FMLA rights. (Id. at 10-12, ¶¶ 86-93.) She also alleged Saint Michael’s failed to pay her overtime compensation for hours worked in excess of 40 hours. (Id. at ¶¶ 94-104.) On August 12, 2015, Saint Michael’s sent a letter to the court requesting the case be placed on administrative hold because Saint Michael’s filed for Chapter 11 Bankruptcy on August 10, 2015. (See Defendant’s Exhibit B, Doc. 36-3, p. 21.) B. Plaintiff was Fired After Filing her Complaint Approximately two months after Saint Michael’s filed for bankruptcy, on October 13, 2015, Plaintiff was terminated from her employment with Saint Michael’s. (See attached as Exhibit “B” Plaintiff’s Complaint filed Dec. 14, 2015, ¶¶ 75-81.) She was told she her job was being eliminated, but no other employee’s job was eliminated. (Id. at ¶¶ 81-82.) On December 14, 2015, as a result of the termination, Plaintiff filed a claim in the New Jersey Superior Court, Essex County, against Rozlyn Whittle-Kinard, Lota Herrera, Dennis Sparks, David Ricci and Dennis Pettigrew (hereinafter referred to as “Individual Defendants”). (Id. at ¶¶ 2-6.) Plaintiff alleged the Individual Defendants violated the LAD by retaliating against Plaintiff and firing her for “exercising her rights” under the LAD and FMLA, and failed to pay her overtime in violation Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 3 of 127 PageID: 477 3 of the FLSA and NJWHL. (Id. at ¶¶ 110-132.) The matter was removed to Federal Court by the Individual Defendants on February 12, 2016. (See Doc. 1.) C. Plaintiff Amended Her Complaint to Include Prime-St. Michael’s In May 2016, Plaintiff learned that Defendant Prime-St. Michael’s finalized its merger with or purchase of Saint Michael’s. (See attached as Exhibit “C” Plaintiff’s First Amended Complaint, Doc. 12, ¶ 109a.) Plaintiff filed a First Amended Complaint on August 22, 2016 adding Prime-St. Michael’s as a Defendant. (Id. at ¶ 6a.) The Complaint alleged that Prime-St. Michael’s was a business created on June 28, 2013, with its principal place of business at 111 Central Avenue, Newark, NJ 07102, the same address as Saint Michael’s. (Id. at ¶ 6a-6b.) The First Amended Complaint alleged that “Despite St. Michael’s filing for bankruptcy the facility continued to operate. Prime-St. Michael’s continued to operate the facility by itself or in conjunction with St. [Michael’s] in 2015 and continues to today.” (Id. at ¶¶ 74b-74c.) Plaintiff alleged Prime-St. Michael’s was liable under the doctrines of joint employer and successor liability. (Id. at ¶¶ 109i-109j.) Specifically, the Amended Complaint alleged the following: 109a. In May 2016, Defendant Prime-St. Michael’s finalized its merger with or purchase of St. Michael’s. 109b. Prime-St. Michael’s had notice of Plaintiff’s lawsuit prior to acquiring the business or assets of St. Michael’s . 109c. There has been a substantial continuity of business operations since Prime- St. Michael’s purchase of St. Michael’s. 109d. Prime-St. Michael’s uses the same facility at the same address that St. Michael’s used prior to the purchase. 109e. Prime-St. Michael’s uses substantially the same workforce that St. Michael’s used prior to the purchase. 109f. Prime-St. Michael’s uses the same or substantially the same supervisory personnel that St. Michael’s used prior to the purchase. Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 4 of 127 PageID: 478 4 109g. The same jobs exist under substantially the same working conditions at Prime-St. Michael’s as they did at St. Michael’s prior to the purchase. 109h. Prime-St. Michael’s uses the same machinery, equipment, and methods of services and provides the same services that were provided at St. Michael’s prior to the purchase. 109i. Prime-St. Michael’s is liable for retaliation under the FMLA and LAD because it was operating St. Michael’s at the time some or all of the discrimination, harassment and retaliation occurred. 109j. Prime-St. Michael’s is also liable for retaliation under the FMLA and LAD, and violations of the FLSA and NJWHL pursuant to the doctrine of successor- liability. (Id. at ¶¶ 109a-109j.) On October 19, 2016, Defendant filed a Motion to Dismiss Plaintiff’s First Amended Complaint. (See Doc. 23-1, Defendant’s Motion to Dismiss.) Defendant argued in its Motion that successor liability did not apply, because Prime St. Michael’s and Saint Michael’s entered into an asset purchase agreement on November 6, 2015 where Prime-St. Michael’s would purchase Saint Michael’s “free and clear of all Claims.” (Defendant Motion Brief, p. 6, Doc 23- 1, p. 10.) Defendant also argued in a footnote that Plaintiff’s joint employer claim should be dismissed because “Even accepting Plaintiff’s factual allegations as true . . . the FMLA and LAD impose liability on employers, not facility operators.” (Id. at 13, Doc 23-1, p. 17.) On October 26, 2016, Plaintiff sent Defendant a letter pursuant to Federal Rule of Civil Procedure 11(c)(2) demanding Defendant withdraw its Motion to Dismiss because it was not warranted by any existing law (See attached as Exhibit “D” Plaintiff letter, p. 1.) Plaintiff argued the Motion was not warranted for three reasons (1) Defendant included facts outside the pleadings; (2) Section 363 of the bankruptcy code cannot waive successor liability claims for incidents that occurred after the filing of the bankruptcy petition; and (3) Defendant can be liable under a joint-employer theory. (Id. at pp. 2-3.) Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 5 of 127 PageID: 479 5 On November 8, 2016, Defendant responded to Plaintiff’s letter. (See attached as Exhibit “E” Defendant’s Letter.) Defendant argued in its letter that Plaintiff’s complaint did not allege sufficient facts to establish Plaintiff is entitled to relief under the joint employer doctrine. (Ex. E, pp. 1-2.) Defendant argued “As you may know, determining joint employer liability under the FMLA requires considering ‘whether the defendant has the ability to fire the employee, to control the employee’s schedule, to determine the employee’s compensation rate, and to maintain employment records.’” (Id. at p. 2 (fn2) citing Carsetter v. Adams Cty. Transit Auth., 2008 WL 2704596 at *9 (M.D. Pa. July 8, 2008).) D. Plaintiff Filed a Second Amended Complaint On December 9, 2016, Plaintiff filed a Second Amended Complaint to include additional language as to the manner in which Defendant Prime-St. Michael’s controlled Plaintiff’s work environment. (See Attached as Exhibit “F,” Doc. 30, Plaintiff’s Second Amended Complaint.) Plaintiff included the following language to her Second Amended Complaint: 109l. Prior to Plaintiff’s termination from St. Michael’s, Prime-St. Michael’s and its employees took over control of operating St. Michael’s. 109m. At the time Plaintiff was terminated from her employment with St. Michael’s and for a period of time before that Prime-St. Michael’s and its employees exercised significant control over Plaintiff as an employee of St. Michael’s. 109n. At the time Plaintiff was terminated from her employment with St. Michael’s and for a period of time before that Prime-St. Michael’s and its employees had authority to hire and fire employees of St. Michael’s, promulgate work rules and assignments, and set conditions of employment including compensation, benefits and hours. 109o. At the time Plaintiff was terminated from her employment with St. Michael’s and for a period of time before that Prime-St. Michael’s and its employees had authority to supervise employees on a day-to-day basis, including disciplining and terminating employees of St. Michael’s. Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 6 of 127 PageID: 480 6 109p. At the time Plaintiff was terminated from her employment with St. Michael’s and for a period of time before that Prime-St. Michael’s and its employees had control over St. Michael’s employee personnel records including but not limited to payroll, insurance, and taxes. (Id. at ¶¶ 1091-109p.) On January 6, 2017, Defendant Prime-St. Michael’s filed a Motion to Dismiss Plaintiff’s Second Amended Complaint. (Defendant Motion, Doc. 36.) Defendant’s Motion should be denied, because Plaintiff’s Second Amended Complaint pleads facts sufficient to establish liability for Defendant Prime-St. Michael’s. III. LEGAL ARGUMENT A. Standard of Review The Federal Rules of Civil Procedure call for “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); accord Johnson v. City of Shelby, Miss., 135 S. Ct. 346, 347 (2014). A plaintiff “must plead facts sufficient to show that her claim has substantive plausibility.” Johnson v. City of Shelby, 135 S. Ct. at 347. The United States Supreme Court has specifically held that the court cannot require a “heightened pleading standard in employment discrimination cases.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002). Plaintiff’s Second Amended Complaint alleges sufficient facts to show her claims have substantive plausibility. Defendant’s brief argued primarily that Defendant is not liable under the theories of the joint employer doctrine and successor liability. (Defendant Brief, pp. 15-29.) Therefore, Plaintiff will address only the issues of Defendant’s liability. B. Joint Employer Plaintiff alleged in her Complaint Defendant Prime-St. Michaels was a joint employer with Saint Michael’s. (See Ex. F, Pl Second Am Complaint, 109k.) The Third Circuit Court of Appeals has held that “where two or more employers exert significant control over the same Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 7 of 127 PageID: 481 7 employees-whether from the evidence it can be shown that they share or co-determine those matters governing essential terms and conditions of employment-they constitute ‘joint employers.” In re Enter. Rent-A-Car Wage & Hour Employment Practices Litig., 683 F.3d 462, 468 (3d Cir. 2012).1 The court reasoned that “a joint employment relationship will generally be considered to exist where the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with another employer.” Id. (internal citations omitted) (emphasis added). “Ultimate control is not necessarily required to find an employer-employee relationship . . . and even indirect control may be sufficient. “ Id. The specific factors the court considers to establish joint employer liability are (1) which entity paid plaintiff; (2) who hired and fired plaintiff; and (3) who had control over the plaintiff's daily employment activities. Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 119 (3d Cir.2013). 1. Plaintiff Has Alleged Sufficient Facts To Establish Her Claim That Defendant Was A Joint Employer Because Saint Michael’s Was Controlled By Or Under Common Control With Defendant Plaintiff alleged that Defendant’s business was created on June 28, 2013 as Prime-St. Michael’s with its principal place of business operating at the same exact facility as Saint Michael’s at 111 Central Avenue, Newark, NJ 07102 (hereinafter referred to as “The Facility”). (Ex. F, Pl Second Am Complaint, ¶¶ 6a-6b.) Plaintiff alleged that after Saint Michael’s filed for bankruptcy on August 12, 2015, Defendant Prime-St. Michael’s controlled The Facility either on its own or in conjunction with Saint Michael’s. (Id. at ¶¶ 74b-74c.) Plaintiff alleged that since 1 In re Enter. Rent-A-Car, involved a FLSA claim, but as Defendant acknowledged in its brief the standard for Joint Employer liability is the same for FLSA, LAD and FMLA claims. (Defendant’s Brief, pp. 29-31.) Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 8 of 127 PageID: 482 8 Prime-St. Michael’s began controlling The Facility it had authority to hire and fire employees of St. Michael’s (including Plaintiff), and promulgate work rules and assignments and set conditions of employment including compensation, benefits and hours. (Id. at ¶¶ 109m-109n.) Plaintiff further alleged that after Prime-St. Michael’s began controlling The Facility, it had authority to supervise employees on a day-to-day basis, including disciplining and terminating employees of St. Michael’s and had control over St. Michael’s employee personnel records including but not limited to payroll, insurance, and taxes. (Id. at ¶¶ 109o-109p.) These factual allegations are sufficient to establish Plaintiff’s joint employer claim has substantive plausibility. Defendant argued that Plaintiff’s allegations are a “mere conclusory recitation of the requisite legal elements.” (Defendant Brief, p.28.) Defendant cited to several unpublished, out- of-district cases to support its argument. (Id. at pp. 25-26, citing Gonzalez v. City of N.Y., 2015 WL 9450599 (E.D.N.Y. Dec. 22, 2015); Johnson v. Hix Corp., 2015 WL 7017374 (D. Kan. Nov. 10, 2015); Starkey v. Colquitt Cty. Bd. of Comm'rs, 2014 WL 6679117 (M.D. Ga. Nov. 25, 2014). Even these unpublished opinions do not support Defendant’s argument. For example, in Johnson, the plaintiff’s complaint alleged “that Defendant Hix controlled Plaintiff's work conditions and acted as an employer or joint employer with Manpower and otherwise interfered with Plaintiff's employment opportunities with Manpower such that Defendant Hix is an employer.” Id. at *2. The court reasoned that the complaint did not provide “any allegations as to how Defendant controlled Plaintiff's work conditions, who Manpower is, or what the relationship was between Manpower and Defendant.” Id. In Starkey, the plaintiff alleged she was jointly employed by the superior court as well as the county and/or board of commissioners. 2014 WL 6679117 at *5. The court held that the plaintiff did not plead sufficient facts to allege the county and/or board was her employer because she alleged only “that she filed complaints Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 9 of 127 PageID: 483 9 with the county, its name was on her pay checks, and it exercised other control over her work duties.” Id. The court reasoned the plaintiff’s complaint itself contradicted the joint-employer argument because it stated “that the county's human resources department told Plaintiff that it had no power to discipline the clerk of superior court because that person was a constitutionally- elected officer.” Id. In Gonzalez, the court did not even state what facts the plaintiff alleged, but only that they were “entirely conclusory and consist only of a recitation of the legal standard.” 2015 WL 9450599 at *3. Plaintiff’s Second Amended Complaint does not suffer from the same deficiencies as these cases. A plausible conclusion based on Plaintiff’s allegations is that Defendant was created for the sole purpose of taking over Saint Michael’s or merging with the entity, and that it did so prior to Plaintiff’s termination. See In re Enter. Rent-A-Car, 683 F.3d at 468 (“a joint employment relationship will generally be considered to exist where the employers . . . may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with another employer.”) Plaintiff alleged that in 2013, three years before her termination, Defendant created an entity that included Saint Michael’s name with its principal place of business at the exact same address. (Ex. F, Pl. Second Am Complaint, ¶¶ 6a-6b.) Plaintiff then alleged that after Saint Michael’s filed for bankruptcy in August 2016, Defendant assumed control over all of the operations of Defendant. (Id. at 74b-74c; 109l-109p.) This included supervision of employees on a day-to- day basis, disciplining and terminating employees, control over St. Michael’s employee personnel records including but not limited to payroll, insurance, and taxes. (Id. at ¶¶ 109l- 109p.) Plaintiff alleged Defendant controlled all of these aspects of Plaintiff’s employment up until the time she was fired on October 13, 2016. (Id.) Coincidentally, only three weeks after Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 10 of 127 PageID: 484 10 her termination, the official Asset Purchase Agreement (“APA”) was finalized between Defendant and Saint Michael’s. (See Defendant’s Brief, Ex. E, Doc 36-3, p. 23.) Finally, Defendant’s argument that Plaintiff’s allegations she was an employee of Saint Michael’s demonstrate that Saint Michael’s “was her only employer” are also without merit. (Defendant Brief, p. 28.) The entire essence of a joint employer claim is that there are “two or more employers.” In re Enter. Rent-A-Car, 683 F. 2d at 468. The fact that Plaintiff alleged Saint Michael’s was technically her employer, does not contradict her joint employer claim, but is instead a necessary element of such a claim. Therefore, Plaintiff has alleged sufficient facts to establish she is entitled to relief under the theory that Defendant was a joint employer for a period of Plaintiff’s employment, including prior to her termination. C. Successor Liability 1. New Jersey Courts Recognize The Doctrine Of Successor Liability Under Circumstances Similar To Those Alleged In Plaintiff’s Complaint In the context of employment discrimination, the doctrine of successor liability applies where the assets of the defendant employer are transferred to another entity. Rego v. ARC Water Treatment Co. of Pennsylvania, 181 F.3d 396, 401 (3d Cir. 1999). The doctrine allows an aggrieved employee to enforce against a successor employer a claim or judgment he could have enforced against the predecessor. Id. The doctrine is derived from equitable principles, and fairness is the prime consideration in application of the doctrine. Id. (citing Criswell v. Delta Air Lines, Inc., 868 F.2d 1093, 1094 (9th Cir.1989)). The policy underlying the doctrine is “to protect an employee when the ownership of his employer suddenly changes.” Id. Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 11 of 127 PageID: 485 11 Successor liability exists where the subsequent entity is “a mere continuation of its predecessor.” Id. at 402. “It has been said that in an employment discrimination case, a court should consider three principal factors before making a successor liability determination: (1) continuity in operations and work force of the successor and predecessor employers; (2) notice to the successor employer of its predecessor's legal obligation; and (3) ability of the predecessor to provide adequate relief directly.” Id. All of these factors are established by the facts alleged by Plaintiff in her complaint. (Ex. F, Pl Second Am. Complaint, ¶¶ 109a-109h.) 2. Plaintiff Has Not Waived Successor Liability Because She Was Fired After Defendant Filed For Bankruptcy Defendant argued in its brief that the Asset Purchase Agreement (“APA”) prohibits Plaintiff from brining a claim of successor liability. (Defendant Brief, pp. 15-16.) Defendant relied primarily on the matter of In re Trans World Airlines, Inc., 322 F.3d 283, 288-89 (3d Cir. 2003) to support its argument. (Defendant Brief, pp. 16-19.) The Third Circuit in Trans World denied the plaintiff’s objection to the sale of Trans World to American, and approved the sale and bankruptcy order. Id. at 293. The court held that under Section 363(f)(5) of the bankruptcy code property can be transferred free and clear of any “interest in property” including lawsuits filed before the bankruptcy petition. Id. at 288-89. The Second Circuit adopted the reasoning in Trans World, in In Matter of Motors Liquidation Co., 829 F.3d 135, 155-56 (2d Cir. 2016). The court in Motors Liquidation held that only claims that could have arisen at the time the bankruptcy petition was filed can be discharged under section 363(f)(5). The court reasoned that: [A] bankruptcy court may approve a § 363 sale “free and clear” of successor liability claims if those claims flow from the debtor's ownership of the sold assets. Such a claim must arise from a (1) right to payment (2) that arose before the filing of the petition or resulted from pre-petition conduct fairly giving rise to the Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 12 of 127 PageID: 486 12 claim. Further, there must be some contact or relationship between the debtor and the claimant such that the claimant is identifiable. Id. at 156. Other courts have held the same that section 363 may dispose of successor liability only for conduct that arose prior to the petition or resulted from pre-petition conduct. See Pension Ben. Guar. Corp. v. Oneida Ltd., 562 F.3d 154, 157 (2d Cir. 2009) cert denied Oneida Ltd. v. Pension Ben. Guar. Corp., 558 U.S. 1100, 130 S. Ct. 1022, 175 L. Ed. 2d 634 (2009); Rodriguez v. FCA US LLC, 2017 WL 278540, at *5 (N.D. Cal. Jan. 23, 2017) (“Indeed, a free and clear approval order cannot be extended to include claimants whom the record indicates were completely unknown and unidentified at the time the debtor filed its petition”) (citing Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1277 (5th Cir. 1994)). Unlike Trans World, and like the plaintiff in Motors Liquidation, Plaintiff’s claims for termination against Defendant occurred after Saint Michael’s filed its bankruptcy petition. The petition was filed on August 12, 2015, while Plaintiff was terminated over two months later on October 13, 2015. (See Defendant Brief, Ex. B); (see also Ex. B, Plaintiff’s Complaint, ¶¶ 75- 81.) Because she was terminated after the bankruptcy petition, claims related to her termination could not have possibly “arose before the filing of the petition or resulted from pre-petition conduct.” Motors Liquidation, 829 F.3d at 156. 3. Public Policy Favors Allowing Plaintiff To Bring A Claim Against Defendant Under The Successor Liability Doctrine The Third Circuit reasoned that the successor liability doctrine is “derived from equitable principles, and fairness is the prime consideration in application of the doctrine.” Rego, 181 F.3d at 401. Viewing the facts in a light most favorable to Plaintiff, which the Court must do when ruling on a R. 12(b)(6) motion, fairness requires the doctrine of successor liability be applied. Saint Michael’s filed for bankruptcy within weeks of Plaintiff filing a lawsuit against it. (Ex. A, Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 13 of 127 PageID: 487 13 Pl. Complaint, filing Complaint July 29, 2015); (see Defendant’s Brief Ex. B, (filing bankruptcy August 12, 2015).) Then on October 13, 2015, when Plaintiff returned from sick leave, her position was “eliminated.” (Ex. F, Pl Second Am. Complaint, ¶¶ 75-81.) Plaintiff was the only employee whose position was eliminated. (Id. at ¶ 82.) Coincidentally, the APA was finalized only weeks after Plaintiff was filed on November 6, 2015. (See Defendant’s Brief, Ex. E, Doc 36-3, p. 23.) A reasonable trier of fact could surmise Plaintiff’s termination was intentionally done before the finalization of the APA to allow Defendant to make the § 363 argument and avoid liability. Cf. Dinielli v. Tropicana Hotel & Casino, 2014 WL 87671 *3 (N.J. Super. App. Div. Jan. 10, 2014). The Dinielli court, which was cited by Defendant to support its argument, (see Def. Brief, p. 19), held that § 363 relieved the defendant of liability where “there is no actual or de facto consolidation or merger of the companies; defendant is not a mere continuation of [the predecessor company]; and the purchase was not undertaken fraudulently to avoid liability.” Id. Looking at the facts in a light most favorable to Plaintiff, in this matter there is evidence of an “actual or de facto” consolidation or merger of Saint Michael’s and Prime-St. Michael’s. (Ex. F. Pl Second Am Complaint ¶¶ 109a-109j.) Furthermore, Prime-St. Michael’s is a mere continuation of Saint Michael’s and the facts suggest that the purchase and specifically the timing of Plaintiff’s termination and the purchase were undertaken fraudulently or to avoid liability. (Id. at 86-93.) Therefore, public policy suggests Defendant should be held as a successor in liability for the purpose of Plaintiff’s claims. 4. Defendant’s Motion Should Be Converted To One For Summary Judgment Because It Includes Facts Outside Of The Pleadings A proper 12(b)(6) Motion must be made only on the pleadings. Rule 12(d) makes clear that when “on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 14 of 127 PageID: 488 14 to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” The rule further states “All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” When a motion is converted from one to dismiss to one for summary judgment, the parties must be given adequate notice of the conversion and the opportunity to respond to any extraneous evidence. Bruni v. City of Pittsburgh, 824 F.3d 353, 360-61 (3d Cir. 2016); see In re Rockefeller Ctr. Properties, Inc. Securitites Litig., 184 F.3d 280, 287 (3d Cir. 1999). Defendant’s Motion contains a number of documents outside the pleadings that are not matters of public record or mentioned in the Complaint. (See Defendant Exhibits C, D, E and F.) It also appears some of the exhibits are not even included in their entirety, as Exhibit C on includes 24 of 162 pages. Given the rules, Defendant’s Motion should be converted to one for summary judgment. In the event the Court does so, Plaintiff requests pursuant to Fed. R. Civ. P. 56(d) (formerly Rule 56(f)) the converted motion be stayed until Plaintiff is permitted to conduct discovery to present facts essential to opposing the motion. A Rule 56(d) motion is “usually granted . . . as a matter of course” particularly when the information sought is “under the control of the moving party.” Doe v. Abington Friends Sch., 480 F.3d 252, 257 (3d Cir. 2007) In the event the court finds plaintiff’s complaint is insufficient plaintiff should be granted leave to amend the complaint. Johnson, 135 S. Ct. at 347 (“The court should freely give leave to amend a pleading when justice so requires.”) Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 15 of 127 PageID: 489 15 IV. CONCLUSION For all of the foregoing reasons, Plaintiff respectfully requests this Honorable Court Rule in her favor and deny Defendant’s Motion in its entirety. s/Drake P. Bearden, Jr. Drake P. Bearden, Jr. Dated: February 6, 2017 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 16 of 127 PageID: 490 EXHIBIT A Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 17 of 127 PageID: 491 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 18 of 127 PageID: 492 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 19 of 127 PageID: 493 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 20 of 127 PageID: 494 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 21 of 127 PageID: 495 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 22 of 127 PageID: 496 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 23 of 127 PageID: 497 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 24 of 127 PageID: 498 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 25 of 127 PageID: 499 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 26 of 127 PageID: 500 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 27 of 127 PageID: 501 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 28 of 127 PageID: 502 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 29 of 127 PageID: 503 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 30 of 127 PageID: 504 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 31 of 127 PageID: 505 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 32 of 127 PageID: 506 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 33 of 127 PageID: 507 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 34 of 127 PageID: 508 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 35 of 127 PageID: 509 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 36 of 127 PageID: 510 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 37 of 127 PageID: 511 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 38 of 127 PageID: 512 EXHIBIT B Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 39 of 127 PageID: 513 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 40 of 127 PageID: 514 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 41 of 127 PageID: 515 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 42 of 127 PageID: 516 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 43 of 127 PageID: 517 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 44 of 127 PageID: 518 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 45 of 127 PageID: 519 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 46 of 127 PageID: 520 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 47 of 127 PageID: 521 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 48 of 127 PageID: 522 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 49 of 127 PageID: 523 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 50 of 127 PageID: 524 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 51 of 127 PageID: 525 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 52 of 127 PageID: 526 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 53 of 127 PageID: 527 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 54 of 127 PageID: 528 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 55 of 127 PageID: 529 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 56 of 127 PageID: 530 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 57 of 127 PageID: 531 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 58 of 127 PageID: 532 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 59 of 127 PageID: 533 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 60 of 127 PageID: 534 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 61 of 127 PageID: 535 EXHIBIT C Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 62 of 127 PageID: 536 1 COSTELLO & MAINS, LLC By: Drake P. Bearden, Jr. 18000 Horizon Way, Suite 800 Mount Laurel, NJ 08054 (856) 727-9700 Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY MARIA GALARZA, Plaintiff(s), vs. ROZLYN WHITTLE-KINARD; LOTA HERRERA; DENNIS SPARKS; DAVID RICCI; DENNIS PETTIGREW; PRIME HEALTHCARE SERVICES - ST. MICHAEL’S, LLC and JOHN DOES 1-5 and 6-10, Defendant(s). : : : : : : : : : : : : : : : : CIVIL ACTION DOCKET NO: 2:16-cv-00764-ES-MAH PLAINTIFF’S FIRST AMENDED COMPLAINT Plaintiff, Maria Galarza, residing in Monroe Township, New Jersey, by way of Complaint against the defendants, says: Preliminary Statement Plaintiff brings this suit under the New Jersey Law Against Discrimination (“LAD”) alleging disability and/or perception of disability harassment and retaliation. Plaintiff further brings this suit under the Family Medical Leave Act (“FMLA”). Plaintiff further brings this Case 2:16-cv-00764-ES-SCM Document 12 Filed 08/22/16 Page 1 of 22 PageID: 69Case 2:16-cv-00764-ES- CM Document 39 Filed 02/06/17 Page 63 of 127 PageID: 537 2 Complaint for a violation of the Fair Labor Standards Act (“FLSA”) as amended, 29 U.S.C. Section 201, et seq. and the New Jersey Wage and Hour Law (“NJWHL”) REASON FOR AMENDMENT To include Defendant Prime Healthcare Services - St. Michael’s, LLC as a Defendant is this case. Identification of Parties 1. Plaintiff Maria Galarza is, at all relevant times herein, a resident of the State of New Jersey, and a former employee of Saint Michael’s Medical Center, Inc. (“Saint Michael’s”). 2. Defendant Rozlyn Whittle-Kinard is, at all relevant times herein, a resident of the State of New Jersey, an employee of Saint Michael’s, and plaintiff’s former Supervisor. 3. Defendant Lota Herrera is, at all times relevant herein, a resident of the State of New Jersey, an employee of Saint Michael’s, and plaintiff’s former Supervisor. 4. Defendant Dennis Sparks is, at all relevant times herein, the Human Resources Representative at Saint Michael’s. 5. Defendant David Ricci is, at all relevant times herein, a resident of the State of New Jersey and the Chief Executive Officer of Saint Michael’s, which is located at 111 Central Avenue, Newark, New Jersey 07102. 6. Defendant Dennis Pettigrew is, at all relevant times herein, a resident of the State of New Jersey, and the Treasurer for Saint Michael’s. 6a. Defendant Prima Healthcare Services - St. Michael’s, LLC (hereinafter referred to as “Prime-St. Michael’s”) is a Corporation registered in the State of New Jersey with its principal place of business at 111 Central Avenue, Newark, NJ 07102. Case 2:16-cv-00764-ES-SCM Document 12 Filed 08/22/16 Page 2 of 22 PageID: 70Case 2:16-cv-00764-ES- CM Document 39 Filed 02/06/17 Page 64 of 127 PageID: 538 3 6b. Defendant Prime-St. Michael’s originally registered with the State of New Jersey as a business operating at that address on June 28, 2013. 7. Defendants John Does 1-5 and 6-10, currently unidentified, are individuals and/or entities who, on the basis of their direct acts or on the basis of respondeat superior, are answerable to the plaintiff for the acts set forth herein. General Allegations 8. Plaintiff began working for Saint Michael’s on or around May 6, 1990. 9. Plaintiff is currently an employee at Saint Michael’s and holds the position of Section Head of a laboratory running the Coagulation Studies. 10. As an employee at Saint Michael’s, plaintiff works directly under Dr. Guron who is the Director of the Hemophilia Lab. 11. Plaintiff’s direct supervisor is, at all times relevant herein, Lota Herrera. 12. The Lab Director at all times relevant herein was Roslyn Whittle-Kinard. 13. On or around October 25, 2013, plaintiff underwent surgery for arterial repairs to her pelvis. 14. As a result of this surgical procedure, plaintiff was out-of-work for approximately four weeks until November 2013. 15. While plaintiff was out of work, Saint Michael’s was having a new piece of lab equipment installed by Lab Equipment, a company working with Saint Michael’s (hereinafter referred to as “Company A”). 16. Because plaintiff was out on leave during the time the equipment was installed, plaintiff was not present for the training on the equipment. Case 2:16-cv-00764-ES-SCM Document 12 Filed 08/22/16 Page 3 of 22 PageID: 71Case 2:16-cv-00764-ES- CM Document 39 Filed 02/06/17 Page 65 of 127 PageID: 539 4 17. In December 2013, after plaintiff had returned, there was a meeting with plaintiff, Herrera, Whittle-Kinard, and a representative of Company A. 18. During that meeting, Herrera stated to plaintiff that Saint Michael’s was not able to “do anything” regarding the new piece of equipment because the client was out on medical leave. 19. Herrera further stated that the whole process was delayed because the plaintiff was out on medical leave. 20. During that meeting, the representative of Company A stated to plaintiff “Yeah, Lota told us you’re on a sick leave - female problems.” 21. Plaintiff was embarrassed to learn that her personal medical information was being shared with employees of Company A. 22. On or around March 13, 2014, plaintiff was injured at work when she fell out of her chair. 23. On or around March 18, 2014, plaintiff went out on medical leave for four weeks as a result of injuries she sustained on March 13, 2014. 24. Plaintiff returned to work on April 25, 2014. 25. On the 25th, plaintiff and Lota were scheduled to attend a meeting in Boston, Massachusetts. Plaintiff met Herrera at the airport and Herrera stated to the plaintiff “Oh, you made it? It seems like you are out all the time.” 26. At the time Herrera made this statement, she was aware that plaintiff was returning on that day. 27. On or around June 19, 2014, plaintiff went out of work for four weeks to undergo surgery for pelvic adhesions. Case 2:16-cv-00764-ES-SCM Document 12 Filed 08/22/16 Page 4 of 22 PageID: 72Case 2:16-cv-00764-ES- CM Document 39 Filed 02/06/17 Page 66 of 127 PageID: 540 5 28. When plaintiff returned to work in July 2014, Herrera stated to the plaintiff that because she was not present and went out for medical leave, other employees were giving Herrera a hard time. 29. Herrera stated to the client that “Because you weren’t here, I got in trouble for all of this.” 30. Herrera was in fact reprimanded by Dr. Guron and Whittle-Kinard because Hererra failed to get her job done; not because of anything having to do with plaintiff taking leave. 31. Plaintiff told Herrera that she had medical issues that were beyond her control and she thought it was inappropriate for Herrera to blame plaintiff for not being at work when she had to take off time for her medical condition. 32. In July 2014, plaintiff presented paper work to Herrera regarding an August 11, 2014, rotator cuff surgery she had scheduled. 33. The surgery was required as a result of a workplace injury plaintiff sustained. 34. When plaintiff gave this paperwork to Herrera, Herrera commented to plaintiff, “Oh, you’re going to be out of work again? More surgery?” 35. Whittle-Kinard then asked plaintiff whether plaintiff could postpone the surgery, to which plaintiff responded she could not. 36. As a result of the surgery, plaintiff was out of work from August 11, 2014, until December 21, 2014. 37. During that time, plaintiff provided regular updates as to her medical condition to Herrera. Case 2:16-cv-00764-ES-SCM Document 12 Filed 08/22/16 Page 5 of 22 PageID: 73Case 2:16-cv-00764-ES- CM Document 39 Filed 02/06/17 Page 67 of 127 PageID: 541 6 38. When plaintiff contacted Herrera, Herrera would comment to plaintiff, “Oh, let me guess, you’re going to be out for longer? You’re not coming back right now.” 39. In September 2014 during one of these conversations, Herrera commented to plaintiff that maybe plaintiff should not come back at all since she is out of work all the time. 40. Plaintiff responded to Herrera that it is not her decision, it is her doctor’s decision as to when she can return to work. 41. Plaintiff also told Herrera that the comment about plaintiff not returning to work was inappropriate and that she was going to report that comment. 42. Plaintiff, in fact reported Herrera’s comments to Whittle-Kinard the following week, but Whittle-Kinard did not take any action regarding plaintiff’s complaint of harassment. 43. At the end of December 2014, Dr. Guron stated to plaintiff “Don’t be out anymore because they are giving me a hard time upstairs about your absences and you know they are trying to get rid of you.” 44. In January 2015, plaintiff was working on a new piece of equipment that was installed while she was out on medical leave. 45. Plaintiff worked on this project from January 2015 through March 2015. 46. While plaintiff was learning how to operate the piece of equipment, Herrera commented to plaintiff “Well, if you were here all the time, you wouldn’t be struggling” to learn how to use the equipment. 47. In or around February 2015, plaintiff participated in a meeting with Herrera, Whittle-Kinard and a representative from Company A. 48. During that meeting Whittle-Kinard criticized plaintiff and accused her of not being able to operate a new piece of equipment. Case 2:16-cv-00764-ES-SCM Document 12 Filed 08/22/16 Page 6 of 22 PageID: 74Case 2:16-cv-00764-ES- CM Document 39 Filed 02/06/17 Page 68 of 127 PageID: 542 7 49. Whittle-Kinard further stated to the representative from Company A that the reason they brought him there was because plaintiff was having a problem with the new equipment. 50. Herrera stated to plaintiff that she did not know why plaintiff was having a problem with the new equipment because when plaintiff was out on medical leave, Claudell Faustin, another employee at Saint Michael’s, did not have any problem with the equipment. 51. This was not true, as when Faustin was operating the equipment, she in fact made errors as well. 52. Whittle-Kinard then commented to the plaintiff that “It’s probably because you were out so many times that you are confused with what you are doing.” 53. Plaintiff was embarrassed by Whittle-Kinard’s comments not only because these were made by her superiors but they were made in front of a representative from Company A. 54. The client responded to Whittle-Kinard that she was aware that she has been out on medical leave and “You don’t have to continue repeating it.” 55. The plaintiff continued that the issues with the equipment had nothing to do with plaintiff being out of work, and insisted that the conversation should not have taken place in front of the representative from Company A and Whittle-Kinard was simply trying to make plaintiff “feel incompetent.” 56. In March 2015, plaintiff was explaining a failed survey to Herrera, when Herrera replied to plaintiff “You probably made that mistake and the survey failed because you were always on medical leave.” 57. Plaintiff responded that that was in fact not the case and her medical leave had nothing to do with the failed survey. Case 2:16-cv-00764-ES-SCM Document 12 Filed 08/22/16 Page 7 of 22 PageID: 75Case 2:16-cv-00764-ES- CM Document 39 Filed 02/06/17 Page 69 of 127 PageID: 543 8 58. Plaintiff then stated to Herrera that she thought Herrera’s comments about plaintiff being out of work were inappropriate and asked that Herrera stop making those comments. 59. In or around April 2015, Evelyn Santiago, an Assistant Administrator, was present in a meeting between Herrera and Whittle-Kinard when they discussed plaintiff’s performance evaluations. 60. During that conversation, Herrera asked Whittle-Kinard what she should do about plaintiff’s evaluation because she knew if she gave plaintiff an evaluation plaintiff would go out on medical leave like she did last time. 61. Whittle-Kinard responded by asking Herrera how she knew plaintiff would go out on medical leave, and Herrera responded that she knew plaintiff would. 61. Whittle-Kinard then asked Herrera what was wrong with her people in the hematology lab, and stated “They don’t know how to sit in a chair?” referring to the incident where plaintiff fell out of her chair an injured herself. 62. Whittle-Kinard then asked Herrera “What am I going to do about these people out on medical leave?” referring to plaintiff. 63. Santiago told plaintiff about the comments made by Herrera and Whittle-Kinard. 64. On or around April 27, 2015, Herrera told plaintiff that she would be training a new individual to work in the hematology lab. 65. Herrera told plaintiff that Whittle-Kinard told her that since plaintiff was not doing anything in the coagulation lab anyway and she was always out on medical leave that plaintiff was going to train in the hematology lab. Case 2:16-cv-00764-ES-SCM Document 12 Filed 08/22/16 Page 8 of 22 PageID: 76Case 2:16-cv-00764-ES- CM Document 39 Filed 02/06/17 Page 70 of 127 PageID: 544 9 66. Herrera told plaintiff that Faustin would take plaintiff’s place in the coagulation lab. 67. Upon learning this, plaintiff told Whittle-Kinard that she could not work in the hematology lab because that job would require her to bend down and she cannot bend due to her pelvic medical condition and lower back problems. 68. In response, Whittle-Kinard told plaintiff that she would be taking her to Human Resources the following day, and that Herrera had not approved overtime plaintiff worked and Whittle-Kinard would be taking plaintiff to Human Resources regarding the overtime. 69. Whittle-Kinard then asked plaintiff if plaintiff would be in the following day, to which plaintiff responded that she had a doctor’s appointment and did not know if she would be in on April 28, 2015. 70. Whittle-Kinard responded “Don’t tell me you’re going to be out again.” 71. Plaintiff then attempted to continue the conversation with Whittle-Kinard about transferring her from the coagulation lab to which Whittle-Kinard responded “I don’t have time for you. Maria, I’ve got to go.” 72. On July 23, 2015, plaintiff filed a Complaint in the New Jersey Superior Court against Saint Michael’s, alleging that she was subjected to harassment in violation of the LAD and FMLA. 73. In that Complaint, plaintiff further alleged that she was subjected to violations of the FLSA and NJWHL because defendants failed to pay her adequate overtime wages. 74. That Complaint was served on defendant St. Michael’s on August 12, 2015. Case 2:16-cv-00764-ES-SCM Document 12 Filed 08/22/16 Page 9 of 22 PageID: 77Case 2:16-cv-00764-ES- CM Document 39 Filed 02/06/17 Page 71 of 127 PageID: 545 10 74a. Upon St. Michael’s being served with the Complaint, St. Michael’s VP of Legal Services, Stewart A. Cunningham sent a letter to Plaintiff dated August 12, 2015, notifying her that St. Michael’s filed for Chapter 11 bankruptcy on August 10, 2015. 74b. Despite St. Michael’s filing for bankruptcy the facility continued to operate. 74c. Prime-St. Michael’s continued to operate the facility by itself or in conjunction with St. Mary’s in 2015 and continues to today. 75. Plaintiff returned from medical leave at St. Michael’s on or around October 13, 2015. 76. When plaintiff returned to work, she went to employee health in order to obtain the necessary release that would allow her to officially return to work. 77. However, when plaintiff attempted to enter her number to punch in, she was approached by a manager Melody Hasty and told that she needs to go to Human Resources. 78. Plaintiff was then told by defendant Herrera that she needed to meet with defendant Whittle-Kinard. 79. Plaintiff then met with defendant Whittle-Kinard and an HR representative. 80. Whittle-Kinard began the meeting by stating to the plaintiff that the reason she was there is because her position was being eliminated immediately. 81. Plaintiff asked Whittle-Kinard why her position was being eliminated and Whittle-Kinard simply responded that it had been eliminated. 82. To plaintiff’s knowledge, no other employees of Saint Michael’s had their position eliminated at that time. 83. All harassment herein is alleged to be severe and/or pervasive. Case 2:16-cv-00764-ES-SCM Document 12 Filed 08/22/16 Page 10 of 22 PageID: 78Case 2:16-cv-0 764-ES-SCM Document 39 Filed 02/06/17 Page 72 of 1 7 546 11 84. All harassment herein is alleged to have been because of plaintiff’s disability and/or defendant’s perception that plaintiff was disabled, and/or in retaliation for plaintiff making a request for an accommodation and complaining about the hostile work environment she was being subjected to. 85. All harassment set forth herein is such that a reasonable person in plaintiff’s position would have found her work environment altered to have become hostile, intimidating or abusive. 86. Plaintiff’s work environment did so alter. 87. The harassment was purposeful, intentional and willful, and was undertaken by members of upper management in fact and in law. 88. Because the harassment was intentionally egregious, and because it was participated in by members of upper management, punitive damages are warranted. 89. The entity is responsible for the harassment because it failed to reasonably promulgate a policy prohibiting the same. 90. The entity is further responsible for the harassment because members of upper management participated in and/or were willfully indifferent to the harassment. 91. The entity is further responsible for the harassment because plaintiff made complaints about the harassment and defendants failed to take prompt and effective remedial measures to stop the harassment. 92. Plaintiff is further a member of a protected class as an individual who advanced her LAD rights and/or who made complaint about harassment and made a request for an accommodation. Case 2:16-cv-00764-ES-SCM Document 12 Filed 08/22/16 Page 11 of 22 PageID: 79Case 2:16-cv-0 764-ES-SCM Document 39 Filed 02/06/17 Page 73 of 1 7 547 12 93. Plaintiff’s membership in one or more of the protected categories set forth above was a determinative and/or motivating factor in the harassment that she was subjected to. 94. From the period of 2012 until the present, plaintiff has regularly worked more than 40 hours a week. 95. From the period of 2012 until the present, defendant has failed to pay plaintiff overtime compensation for hours worked in excess of 40 hours per week. 96. Defendants are aware of the fact that plaintiff was not compensated for hours she worked in excess of 40 hours in a week because plaintiff made complaints about not being compensated, including but not limited to, making a complaint with the New Jersey Department of Labor (“DOL”). 97. Plaintiff was further a member of a protected class who engaged in protected activity pursuant to the LAD in making a request for an accommodation that she be allowed to take off time due to her medical condition. 98. Plaintiff was further a member of a protected class as an individual who exercised her rights pursuant to the FMLA in requesting leave due to her serious medical condition. 99. Plaintiff was further a member of a protected class as an individual who exercised her rights pursuant to the LAD, FMLA, FLSA and NJWHL in filing a Complaint against Saint Michael’s for violation of these laws. 100. A determinative and/or motivating factor in plaintiff’s termination was plaintiff’s engagement in this protected activity. 101. Defendants Whittle-Kinard, Hererra and Sparks were responsible, in whole or in part, for the decision to terminate plaintiff from her employment. Case 2:16-cv-00764-ES-SCM Document 12 Filed 08/22/16 Page 12 of 22 PageID: 80Case 2:16-cv-0 764-ES-SCM Document 39 Filed 02/06/17 Page 74 of 1 7 548 13 102. Individual defendants Whittle-Kinard, Hererra and Sparks (hereinafter referred to together as “individual defendants”) took reprisal against plaintiff for engaging in protected activity. 103. Defendants Whittle-Kinard and Herrera aided and abetted the unlawful harassment in retaliation that was engaged in by Saint Michael’s. 104. Defendants Whittle-Kinard and Herrera were generally aware of their role in the overall illegal and unlawful activity at the time they aided and abetted such activity. 105. Defendants Whittle-Kinard and Herrera knowingly and substantially assisted Saint Michael’s in harassing and/or retaliating against plaintiff. 106. Defendant Whittle-Kinard had supervisory authority over plaintiff and was responsible in whole or in part for plaintiff’s termination. 107. Defendant Hererra had supervisory authority over plaintiff and was responsible in whole or in part for retaliation against plaintiff. 108. Defendants Ricci and Pettigrew were the managing officers of Saint Michael’s at all times relevant to plaintiff’s complaints, and as such were personally liable for any violations of the NJWHL. 109. As a result of defendants’ actions, plaintiff has been forced to suffer both economic and non-economic damages. 109a. In May 2016, Defendant Prime-St. Michael’s finalized its merger with or purchase of St. Michael’s. 109b. Prime-St. Michael’s had notice of Plaintiff’s lawsuit prior to acquiring the business or assets of St. Michael’s. Case 2:16-cv-00764-ES-SCM Document 12 Filed 08/22/16 Page 13 of 22 PageID: 81Case 2:16-cv-0 764-ES-SCM Document 39 Filed 02/06/17 Page 75 of 1 7 549 14 109c. There has been a substantial continuity of business operations since Prime-St. Michael’s purchase of St. Michael’s. 109d. Prime-St. Michael’s uses the same facility at the same address that St. Michael’s used prior to the purchase. 109e. Prime-St. Michael’s uses substantially the same workforce that St. Michael’s used prior to the purchase. 109f. Prime-St. Michael’s uses the same or substantially the same supervisory personnel that St. Michael’s used prior to the purchase. 109g. The same jobs exist under substantially the same working conditions at Prime-St. Michael’s as they did at St. Michael’s prior to the purchase. 109h. Prime-St. Michael’s uses the same machinery, equipment, and methods of services and provides the same services that were provided at St. Michael’s prior to the purchase. 109i. Prime-St. Michael’s is liable for retaliation under the FMLA and LAD because it was operating St. Michael’s at the time some or all of the discrimination, harassment and retaliation occurred. 109j. Prime-St. Michael’s is also liable for retaliation under the FMLA and LAD, and violations of the FLSA and NJWHL pursuant to the doctrine of successor-liability. COUNT I Retaliation Under the LAD 110. Plaintiff hereby repeats and realleges paragraphs 1 through 109, as though fully set forth herein. 111. For the reasons set forth above, defendants retaliated against plaintiff for exercising her rights under the LAD. Case 2:16-cv-00764-ES-SCM Document 12 Filed 08/22/16 Page 14 of 22 PageID: 82Case 2:16-cv-0 764-ES-SCM Document 39 Filed 02/06/17 Page 76 of 1 7 550 15 112. The retaliation that plaintiff was subjected to is actionable against Whittle-Kinard, Hererra and Sparks personally as a “person” who takes reprisal under the LAD. 112a. Defendant Prime-St. Michael’s is liable for the retaliation under the LAD pursuant to the doctrine of successor liability for the reasons stated in this Complaint. WHEREFORE, plaintiff demands judgment against the defendants jointly, severally and in the alternative, together with compensatory damages, including emotional distress and personal hardship, punitive damages, interest, cost of suit, attorneys’ fees, enhanced attorneys’ fees, equitable back pay, equitable front pay, equitable reinstatement, equitable instatement and/or promotion, and any other relief the Court deems equitable and just. COUNT II Aiding and Abetting 113. Plaintiff hereby repeats and realleges paragraphs 1 through 112, as though fully set forth herein. 114. For the reasons set forth above, defendant Whittle-Kinard, Hererra and Sparks should be individually and personally responsible for aiding and abetting the discrimination, retaliation and harassment plaintiff was subjected to by defendant Saint Michael’s. WHEREFORE, plaintiff demands judgment against the defendants jointly, severally and in the alternative, together with compensatory damages, including emotional distress and personal hardship, punitive damages, interest, cost of suit, attorneys’ fees, enhanced attorneys’ fees, equitable back pay, equitable front pay, equitable reinstatement, equitable instatement and/or promotion, and any other relief the Court deems equitable and just. COUNT III Case 2:16-cv-00764-ES-SCM Document 12 Filed 08/22/16 Page 15 of 22 PageID: 83Case 2:16-cv-0 764-ES-SCM Document 39 Filed 02/06/17 Page 77 of 1 7 551 16 Retaliation Under the FMLA 115. Plaintiff hereby repeats and realleges paragraphs 1 through 114, as though fully set forth herein. 116. For the reasons set forth above, defendants unlawfully subjected plaintiff to a hostile work environment retaliation for plaintiff exercising her rights under the FMLA in violation of the FMLA. 117. Furthermore, for the reasons set forth above, defendants unlawfully retaliated against plaintiff by terminating her in retaliation for plaintiff exercising her rights under the FMLA in violation of the FMLA. 118. Individual defendants Whittle-Kinard, Hererra and Sparks are liable for retaliating against plaintiff under the FMLA because they had supervisory authority over plaintiff and were responsible in whole or in part for the retaliation plaintiff was subjected to. 118a. Defendant Prime-St. Michael’s is liable for the retaliation under the FMLA pursuant to the doctrine of successor liability for the reasons stated in this Complaint. WHEREFORE, plaintiff demands judgment against the defendants jointly, severally and in the alternative, together with interest, cost of suit, attorneys’ fees, enhanced attorneys’ fees, equitable back pay, equitable front pay, equitable reinstatement, equitable instatement and/or promotion, and any other relief the Court deems equitable and just. COUNT IV FLSA Violation 119. Plaintiff hereby repeats and realleges paragraphs 1 through 118, as though fully set forth herein. Case 2:16-cv-00764-ES-SCM Document 12 Filed 08/22/16 Page 16 of 22 PageID: 84Case 2:16-cv-0 764-ES-SCM Document 39 Filed 02/06/17 Page 78 of 1 7 552 17 120. Plaintiff, during the course of her employment, regularly worked more than 40 hours in a work week. 121. Defendants failed to pay plaintiff overtime compensation for hours worked in excess of 40 in a week. 122. Defendants, by the above acts, violated 29 U.S.C. Section 207. 123. Said violations have been willful within the meaning of 20 U.S.C. Section 255(a). 124. Plaintiff has suffered irreparable injury and monetary damages as a result of defendants’ acts. 125. Individual defendants Whittle-Kinard and Hererra are liable individually under the FLSA because they independently exercised control over plaintiff’s work environment. 126. Furthermore, defendants Ricci and Pettigrew are liable individually for violating the FLSA as “officers” of Saint Michael’s. 126a. Defendant Prime-St. Michael’s is liable for violation of the FLSA pursuant to the doctrine of successor liability for the reasons stated in this Complaint. WHEREFORE, plaintiff respectfully requests that this Court enter a Judgment: (a) Declaring that the acts and practices complained of herein are in violation of the FLSA; (b) Declaring that the action practices complained of herein are willful violations within the meaning of 29 U.S.C. 255(a); (c) Enjoining and restraining permanently the violations alleged herein, pursuant to 29 U.S.C. Section 217; Case 2:16-cv-00764-ES-SCM Document 12 Filed 08/22/16 Page 17 of 22 PageID: 85Case 2:16-cv-0 764-ES-SCM Document 39 Filed 02/06/17 Page 79 of 1 7 5 3 18 (d) Directing defendants to make plaintiff whole for all unpaid wages due as a consequence of defendants’ violation of the FLSA, together with interest thereon from the dates such wages were due but unpaid; (e) Directing defendant to pay plaintiff an additional amount of liquidated damages as provided for in 29 U.S.C. Section 216(b); (f) Awarding plaintiff the costs of this action together with reasonable attorneys’ fees as provided in 29 U.S.C. Section 216(b); and (g) Granting such other further relief as this Court deems necessary and proper. COUNT V Violation of the NJWHL 127. Plaintiff hereby repeats and realleges paragraphs 1 through 126, as though fully set forth herein. 128. Plaintiff, during the course of her employment, regularly worked more than 40 hours in a work week. 129. Defendant failed to pay plaintiff overtime compensation for hours worked in excess of 40 in a work week. 130. Defendants, by the above acts, have violated the New Jersey Wage and Hour Law. 131. Plaintiff has suffered irreparable injury and monetary damages as a result of defendants’ acts. 132. Individual defendants Ricci and Pettigrew are individually liable for violating the New Jersey Wage and Hour Law as the managing officers of Saint Michael’s. 132a. Defendant Prime-St. Michael’s is liable for violation of the NJWHL pursuant to the doctrine of successor liability for the reasons stated in this Complaint. Case 2:16-cv-00764-ES-SCM Document 12 Filed 08/22/16 Page 18 of 22 PageID: 86Case 2:16-cv-0 764-ES-SCM Document 39 Filed 02/06/17 Page 80 of 1 7 554 19 WHEREFORE, plaintiff respectfully requests the Court enter a judgment: (a) Declaring that the acts and practices complained of herein are in violation of the NJWHL; (b) Directing defendant to make plaintiff whole for all unpaid wages due as a consequence of defendants’ violation of the NJWHL, together with interest thereon from the date such wages are due but unpaid; (c) Awarding plaintiff the cost of this action together with reasonable attorneys’ fees; and (d) Granting such other and further relief as this Court deems necessary and proper. COUNT VI Request for Equitable Relief 133. Plaintiff hereby repeats and realleges paragraphs 1 through 132 as though fully set forth herein. 134. Plaintiff requests the following equitable remedies and relief in this matter. 135. Plaintiff requests a declaration by this Court that the practices contested herein violate New Jersey law as set forth herein. 136. Plaintiff requests that this Court order the defendants to cease and desist all conduct inconsistent with the claims made herein going forward, both as to the specific plaintiff and as to all other individuals similarly situated. Case 2:16-cv-00764-ES-SCM Document 12 Filed 08/22/16 Page 19 of 22 PageID: 87Case 2:16-cv-0 764-ES-SCM Document 39 Filed 02/06/17 Page 8 of 1 7 555 20 137. To the extent that plaintiff was separated from employment and to the extent that the separation is contested herein, plaintiff requests equitable reinstatement, with equitable back pay and front pay. 138. Plaintiff requests, that in the event that equitable reinstatement and/or equitable back pay and equitable front pay is ordered to the plaintiff, that all lost wages, benefits, fringe benefits and other remuneration is also equitably restored to the plaintiff. 139. Plaintiff requests that the Court equitably order the defendants to pay costs and attorneys’ fees along with statutory and required enhancements to said attorneys’ fees. 140. Plaintiff requests that the Court order the defendants to alter their files so as to expunge any reference to which the Court finds violates the statutes implicated herein. 141. Plaintiff requests that the Court do such other equity as is reasonable, appropriate and just. WHEREFORE, plaintiff demands judgment against the defendants jointly, severally and in the alternative, together with compensatory damages, including emotional distress and personal hardship, punitive damages, interest, cost of suit, attorneys’ fees, enhanced attorneys’ fees, equitable back pay, equitable front pay, equitable reinstatement, equitable instatement and/or promotion, and any other relief the Court deems equitable and just. COSTELLO & MAINS, P.C. By: s/ Kevin M. Costello Dated: Kevin M. Costello Case 2:16-cv-00764-ES-SCM Document 12 Filed 08/22/16 Page 20 of 22 PageID: 88Case 2:16-cv-0 764-ES-SCM Document 39 Filed 02/06/17 Page 8 of 1 7 556 21 DEMAND TO PRESERVE EVIDENCE 1. All defendants are hereby directed and demanded to preserve all physical and electronic information pertaining in any way to plaintiff’s employment, to plaintiff’s cause of action and/or prayers for relief, to any defenses to same, and pertaining to any party, including, but not limited to, electronic data storage, closed circuit TV footages, digital images, computer images, cache memory, searchable data, emails, spread sheets, employment files, memos, text messages and any and all online social or work related websites, entries on social networking sites (including, but not limited to, Facebook, twitter, MySpace, etc.), and any other information and/or data and/or things and/or documents which may be relevant to any claim or defense in this litigation. 2. Failure to do so will result in separate claims for spoliation of evidence and/or for appropriate adverse inferences. COSTELLO & MAINS, P.C. By: s/ Kevin M. Costello Kevin M. Costello JURY DEMAND Plaintiff hereby demands a trial by jury. COSTELLO & MAINS, P.C. By: s/ Kevin M. Costello Kevin M. Costello Case 2:16-cv-00764-ES-SCM Document 12 Filed 08/22/16 Page 21 of 22 PageID: 89Case 2:16-cv-0 764-ES-SCM Document 39 Filed 02/06/17 Page 83 of 1 7 557 22 RULE 4:5-1 CERTIFICATION 1. I am licensed to practice law in New Jersey and am responsible for the captioned matter. 2. I am aware of no other matter currently filed or pending in any court in any jurisdiction which may affect the parties or matters described herein. COSTELLO & MAINS, P.C. By: s/ Kevin M. Costello Kevin M. Costello DESIGNATION OF TRIAL COUNSEL Kevin M. Costello, Esquire, of the law firm of Costello & Mains, P.C., is hereby- designated trial counsel. COSTELLO & MAINS, P.C. By: s/ Kevin M. Costello Kevin M. Costello Case 2:16-cv-00764-ES-SCM Document 12 Filed 08/22/16 Page 22 of 22 PageID: 90Case 2:16-cv-0 764-ES-SCM Document 39 Filed 02/06/17 Page 84 of 1 7 558 EXHIBIT D Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 85 of 127 PageID: 559 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 86 of 127 PageID: 560 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 87 of 127 PageID: 561 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 88 of 127 PageID: 562 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 89 of 127 PageID: 563 EXHIBIT E Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 90 of 127 PageID: 564 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 91 of 127 PageID: 565 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 92 of 127 PageID: 566 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 93 of 127 PageID: 567 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 94 of 127 PageID: 568 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 95 of 127 PageID: 569 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 96 of 127 PageID: 570 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 97 of 127 PageID: 571 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 98 of 127 PageID: 572 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 99 of 127 PageID: 573 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 100 of 127 PageID: 574 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 101 of 127 PageID: 575 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 102 of 127 PageID: 576 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 103 of 127 PageID: 577 EXHIBIT F Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 104 of 127 PageID: 578 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 105 of 127 PageID: 579 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 106 of 127 PageID: 580 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 107 of 127 PageID: 581 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 108 of 127 PageID: 582 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 109 of 127 PageID: 583 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 110 of 127 PageID: 584 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 111 of 127 PageID: 585 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 112 of 127 PageID: 586 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 113 of 127 PageID: 587 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 114 of 127 PageID: 588 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 115 of 127 PageID: 589 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 116 of 127 PageID: 590 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 117 of 127 PageID: 591 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 118 of 127 PageID: 592 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 119 of 127 PageID: 593 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 120 of 127 PageID: 594 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 121 of 127 PageID: 595 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 122 of 127 PageID: 596 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 123 of 127 PageID: 597 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 124 of 127 PageID: 598 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 125 of 127 PageID: 599 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 126 of 127 PageID: 600 Case 2:16-cv-00764-ES-SCM Document 39 Filed 02/06/17 Page 127 of 127 PageID: 601