Garcia et al v. Mascott Corporation et al

BRIEF in Opposition

D.N.J.March 20, 2017

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY --------------------------------------------------------X HECTOR GARCIA, DENNIS GEORGATOS Civil Action No. 16-cv-9027 and NATHALY ZAPATA-CHICA, (SDW) (LDW) Plaintiffs, Motion Returnable: April 3, 2017 -against- MASCOTT CORPORATION d/b/a Markers Restaurant and STEPHEN PARKER, in his individual capacity, Defendants. ---------------------------------------------------------X PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ PARTIAL MOTION TO DISMISS Akin Law Group PLLC 45 Broadway, Suite 1420 New York, New York 10006 (212) 825-1400 Counsel for Plaintiffs On the Brief: Robert D. Salaman Case 2:16-cv-09027-SDW-LDW Document 11 Filed 03/20/17 Page 1 of 12 PageID: 148 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ……………………………………………………….i PRELIMINARY STATEMENT …………………………………………………..1 FACTUAL BACKGROUND AND PROCEDURAL HISTORY ………………...2 ARGUMENT ………………………………………………………………………4 A. The Election of Remedies Does Not Bar the Plaintiffs from Proceeding with their NJLAD Claims in Federal Court – Plaintiffs’ Claims Are Not Pending Before the DCR ……………………………………………4 B. Plaintiffs’ NJLAD Claims Against Parker In His Individual Capacity Must Survive Dismissal ……………………………………………........6 CONCLUSION ……………………………………………………………………8 Case 2:16-cv-09027-SDW-LDW Document 11 Filed 03/20/17 Page 2 of 12 PageID: 149 i TABLE OF AUTHORITIES Page(s) Cases Cicchetti v. Morris Cnty. Sheriffs Office 947 A.2d 626, 645 (2008) ………………………………………………..6, 7 Hernandez v. Region Nine Hous. Corp. 146 N.J. 645, 684 A.2d 1385 (1996) ……………………………………..5, 6 Li v. Metropolitan Life Insurance Company Civ No. 16-4845 (KM) (Dist. Court, D. New Jersey, 2016) ……………..7, 8 Phillips v. Cnty. of Allegheny 515 F.3d 224, 231 (3d Cir. 2008) …………………………………………...2 Pinker v. Roche Holdings Ltd. 292 F.3d 361, 374 n.7 (3d Cir. 2002) ……………………………………….2 Roman v. Waste Mgmt. of New Jersey 2011 WL 1807642, at *3 (D.N.J. 2011) …………………………………….6 Rowan v. Hartford Plaza Ltd., No. A-10107-11T3, 2013 N.J. Super. Unpub. LEXIS 766, 2013 WL 1350095, at *8 (App. Div. 2013) …………………...7 Wilson v. Wal-Mart Stores 729 A.2d 1006 (N.J. Sup. Ct. 1999) ………………………………………...5 Yobe v. Renaissance Electric, Inc., Civ. No. 15-3121 (FLW) Dist. Court, D. New Jersey (2016) ……………………………………….....7 Case 2:16-cv-09027-SDW-LDW Document 11 Filed 03/20/17 Page 3 of 12 PageID: 150 ii Statutes Fed. R. Civ. P. 12(b)(6) ………………………………………………………....1, 2 New Jersey Law Against Discrimination (“NJLAD”) ...……………..1, 4, 5, 6, 7, 8 N.J. Stat. Ann. § 10:5-12(e) ………………………………………………………..6 Title VII of the Civil Rights Act of 1964 (“Title VII”) …..……………………..1, 4 Case 2:16-cv-09027-SDW-LDW Document 11 Filed 03/20/17 Page 4 of 12 PageID: 151 1 Plaintiffs Hector Garcia (“Garcia”), Dennis Georgatos (“Georgatos”) and Nathaly Zapata-Chica (Zapata-Chica) (collectively “Plaintiffs”) respectfully submit this Memorandum of Law in Opposition to the Partial Motion to Dismiss filed by Defendants Mascott Corporation d/b/a Markers Restaurant (“Markers”) and Stephen Parker (“Parker”) (collectively “Defendants”).1 PRELIMINARY STATEMENT Defendants’ Partial Motion to Dismiss Plaintiffs’ Complaint pursuant to Fed. R. Civ. P. 12(b)(6) should be denied in its entirety. Defendants base their motion on two facially flawed arguments. First, Plaintiffs’ NJLAD claims must survive dismissal since they are not currently pending before the New Jersey Division on Civil Rights (“DCR”). The DCR has indicated it has no record on file related to the Plaintiffs – it is not and has never investigated Plaintiffs’ claims. Even if the DCR had opened a file on the Plaintiffs (which it has not), it would adopt the finding of the U.S. Equal Employment Opportunity Commission (“EEOC”) which terminated the processing of the charges without making a finding. Second, Parker can be sued in his individual capacity under the New Jersey Law Against Discrimination (“NJLAD”).2 Parker aided and abetted his own unlawful conduct by engaging in discriminatory conduct, including but not limited 1 Submitted in support of Plaintiffs’ opposition to the motion is the Certification of Robert D. Salaman, which details multiple phone conversations with the DCR and Exhibit A – Plaintiffs’ EEOC Right to Sue Letters. 2 Plaintiffs voluntarily withdraw their Title VII claims against Parker, in his individual capacity. Case 2:16-cv-09027-SDW-LDW Document 11 Filed 03/20/17 Page 5 of 12 PageID: 152 2 to: (1) verbal sexual comments, (2) written sexual remarks and (3) unwelcome sexual touching. Accordingly, Defendants’ Partial Motion to Dismiss must be denied in its entirety. FACTUAL BACKGROUND AND PROCEDURAL HISTORY3 Garcia, Georgatos and Zapata-Chica were all formerly employed by Markers. Garcia – a Manager of Markers Express commenced his employment in April 2015; Georgatos (Markers General Manager) started in August 2015; while Zapata-Chica (Markers Cashier) began in September 2015 (¶22, 24, 264). Parker, the Managing Partner of Markers, had supervisory authority over all three Plaintiffs (¶18, 31). During the course of the Plaintiffs’ employment with Markers, Parker personally subjected them to numerous acts of sexual harassment (¶32). By way of example, Parker left a note for Garcia stating “Hector, this is for [you] to go buy a prostitute” (¶33). Parker also commented about sticking a large pepper shaker up Garcia’s butt (¶34). On a separate occasion, Parker told Garcia that he must have a big dick (¶38). Parker also often made sexual comments about the Markers female 3 In considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a Court must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff[s], and determine whether, under any reasonable reading of the complaint, the plaintiff[s] may be entitled to relief.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). 4 ¶ __ cites to the paragraph in Plaintiffs’ Complaint, a true copy of which is attached as Exhibit A to Defendants’ moving papers. Case 2:16-cv-09027-SDW-LDW Document 11 Filed 03/20/17 Page 6 of 12 PageID: 153 3 staff, including discussing how he slept with certain employees – going into great detail of his purported sexual conquests (including the oral sex he received) (¶36). The sexual harassment the Plaintiffs faced was not just limited to inappropriate comments, but also included unwanted touching. Parker touched Garcia’s thighs, butt, shoulders and hands, without consent (¶41, 42). Parker also hugged Zapata-Chica, without invitation, and rubbed his face and mouth on Zapata-Chica’s neck, attempting to kiss her (¶44, 45). On or about January 27, 2016, Parker’s pants fell down as he welcomed Zapata-Chica into the Markers common office (¶49). The next day – January 28, 2016, Parker shook his penis and made a fornicating posture behind Georgatos, holding his penis just inches from Georgatos’ ear (¶52). On January 29, 2016 and January 31, 2016, Georgatos complained both verbally and in writing about the sexual harassment at Markers (¶53, 54). On February 2, 2016 (within mere hours of their complaint), Markers terminated Garcia and Georgatos’ employment (¶55, 56). Procedurally, on or about March 1, 2016, all three Plaintiffs filed a Charge of Discrimination with the EEOC. The Plaintiffs did not intend to dual file with the DCR. In any event (even if they did), the DCR has not provided any communication (written or otherwise) to the Plaintiffs, Plaintiffs’ counsel, and upon sincere information and belief, to either Defendants or Defendants’ counsel. Case 2:16-cv-09027-SDW-LDW Document 11 Filed 03/20/17 Page 7 of 12 PageID: 154 4 There is no evidence in the record that the DCR is currently investigating (or ever investigated) Plaintiffs’ claims against Markers. Plaintiff’s counsel confirmed this point in multiple phone conversations with the DCR.5 On November 3, 2016, the EEOC sent the Plaintiffs’ their Right to Sue Letters, indicating that more than 180 days passed since their initial filing and the was therefore terminating its processing of the charges. On December 6, 2016, Plaintiffs collectively filed the instant lawsuit, setting forth claims under Title VII (Counts One through Three) and the NJLAD (Counts Four through Six). ARGUMENT A. The Election of Remedies Does Not Bar the Plaintiffs from Proceeding with their NJLAD Claims in Federal Court – Plaintiffs’ Claims Are Not Pending Before the DCR The NJLAD contains an election of remedies provision that bars individuals from bringing a judicial action while the DCR is pursuing its investigating or after the DCR has rendered its determination. Specifically, the provision states: “The procedure herein provided shall, while pending, be exclusive; and the final determination therein shall exclude any other action, civil or criminal, based on the same grievance of the individual concerned.” N.J.S.A. 10:5-27. 5 Plaintiffs’ counsel’s phone conversations with the DCR are detailed in the annexed Affirmation. The DCR has indicated that it will shortly provide written correspondence to confirm that it has no record of the Plaintiffs on file and is not investigating their claims. Plaintiffs respectfully request the right to supplement their opposition with the written correspondence from the DCR, upon receipt. Case 2:16-cv-09027-SDW-LDW Document 11 Filed 03/20/17 Page 8 of 12 PageID: 155 5 In this case, there is no evidence that Plaintiffs’ claims are currently pending before the DCR. Plaintiffs and Plaintiffs’ counsel have never received any communication from the DCR. Phone conversations (soon to be supplemented in writing) confirm that the DCR has no record of the Plaintiffs in their system and is not investigating their claims. And even if the DCR was investigating the Plaintiffs’ claims (which it is not), it would merely adopt the finding of the EEOC which terminated the processing of the charges. The primary purpose behind the election of remedies doctrine is to prevent parties from having a second bite at the apple – a double recovery for a single wrong. In this case, that is not a concern. In Wilson v. Wal-Mart Stores, 729 A.2d 1006 (N.J. Sup. Ct. 1999), the Court allowed the NJLAD claims to proceed since “the DCR had done nothing other than docket the case; it was not actively investigating the complaint or expending resources.” In this case, the DCR did even less – it did not even docket the case. No investigation took place; no administrative ruling has been rendered. The Defendants have not suffered any prejudice – they have not expended any additional resources or conducted any discovery related to Plaintiffs’ claims in the DCR. In Hernandez v. Region Nine Hous. Corp., 146 N.J. 645, 684 A.2d 1385 (1996), the Court permitted the Plaintiff’s NJLAD claims to proceed despite an EEOC finding of no probable cause. The Court wrote that “an adverse EEOC Case 2:16-cv-09027-SDW-LDW Document 11 Filed 03/20/17 Page 9 of 12 PageID: 156 6 determination should not collaterally estop a plaintiff from being able to litigate the issue of employment discrimination under the LAD…” Id. Here, there was not even an adverse EEOC finding. Therefore, the Plaintiffs should also be able to proceed with their NJLAD claims in Federal Court. Defendants’ reliance on Roman v. Waste Mgmt. of New Jersey, 2011 WL 1807642, at *3 (D.N.J. 2011) is misplaced. In Roman, the Court relied upon written communication from the DCR to the Defendants – it was undisputed that the DCR investigated Roman’s claims. That is not the case here. Rather, just the opposite is true, as the DCR has confirmed that it is not presently nor has ever investigated the Plaintiffs’ allegations. In sum, the Plaintiffs’ claims are not pending before the DCR and therefore the election of remedies doctrine does not bar the Plaintiffs from proceeding with their NJLAD claims in Federal Court. B. Plaintiffs’ NJLAD Claims Against Parker In His Individual Capacity Must Survive Dismissal Since Plaintiffs’ NJLAD claims against Mascott must survival dismissal, Plaintiff’s claims against Parker, in his individual capacity, must also survive. Supervisors, like Parker, can be held individually liable under the NJLAD for aiding and abetting, even if they aid and abet their own discriminatory conduct. The NJLAD makes it unlawful for “any person… to aid, abet incite, compel or coerce the doing of any of the acts forbidden under this act.” N.J. Stat. Ann. § 10:5-12(e). See also Cicchetti v. Morris Cnty. Sheriffs Office, 947 A.2d 626, 645 Case 2:16-cv-09027-SDW-LDW Document 11 Filed 03/20/17 Page 10 of 12 PageID: 157 7 (2008) (“individual liability of a supervisor for acts of discrimination or for creating or maintaining a hostile environment can… arise though the ‘aiding and abetting’ mechanism.”). New Jersey Courts have held that individual defendants can aid and abet their own wrongful conduct. See Yobe v. Renaissance Electric, Inc., Civ. No. 15- 3121 (FLW), Dist. Court, D. New Jersey (2016) (quoting Rowan v. Hartford Plaza Ltd., No. A-10107-11T3, 2013 N.J. Super. Unpub. LEXIS 766, 2013 WL 1350095, at *8 (App. Div. 2013)) (“while it is concededly an ‘awkward theory’ to hold an individual liable for aiding and abetting his own conduct, it would thwart the NJLAD’s broad and remedial purpose, and make little sense, to construe it as permitting ‘individual liability for a supervisor who encourages or facilitates another employee’s harassing conduct, while precluding individual liability for the supervisor based on his or her own discriminatory or harassing conduct”). Similarly, in this matter, Parker aided and abetted his own discriminatory conduct. Plaintiffs allege that their supervisor Parker made numerous inappropriate sexual comments while at the same time engaging in unwelcome touching. See Li v. Metropolitan Life Insurance Company, Civ No. 16-4845 (KM) (Dist. Court, D. New Jersey, 2016) (the Court denied the motion to dismiss the individual claims since the complaint alleged unwelcome sexual advances and Case 2:16-cv-09027-SDW-LDW Document 11 Filed 03/20/17 Page 11 of 12 PageID: 158 8 touching by a supervisor). Accordingly, Defendants’ motion to dismiss the NJLAD claims against Parker must be denied.6 CONCLUSION For the foregoing reasons, Plaintiffs respectfully request this Court DENY Defendants’ Partial Motion to Dismiss in its entirety, together with such other relief deemed just and proper. Dated: March 20, 2017 New York, New York Akin Law Group PLLC /s/ Robert D. Salaman ____________________ Robert D. Salaman 45 Broadway, Suite 1420 New York, New York 10006 (212) 825-1400 Counsel for Plaintiffs 6 In the event the Court dismisses any of Plaintiffs’ NJLAD claims, we respectfully request the right to replead, upon receipt of additional information from DCR, and dismissal be without prejudice. Pursuant to Fed. R. Civ. P. 15(a), leave to amend is ordinarily granted. Case 2:16-cv-09027-SDW-LDW Document 11 Filed 03/20/17 Page 12 of 12 PageID: 159 Case 2:16-cv-09027-SDW-LDW Document 11-1 Filed 03/20/17 Page 1 of 6 PageID: 160 Case 2:16-cv-09027-SDW-LDW Document 11-1 Filed 03/20/17 Page 2 of 6 PageID: 161 Case 2:16-cv-09027-SDW-LDW Document 11-1 Filed 03/20/17 Page 3 of 6 PageID: 162 Case 2:16-cv-09027-SDW-LDW Document 11-1 Filed 03/20/17 Page 4 of 6 PageID: 163 Case 2:16-cv-09027-SDW-LDW Document 11-1 Filed 03/20/17 Page 5 of 6 PageID: 164 Case 2:16-cv-09027-SDW-LDW Document 11-1 Filed 03/20/17 Page 6 of 6 PageID: 165 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY --------------------------------------------------------X HECTOR GARCIA, DENNIS GEORGATOS Civil Action No. 16-cv-9027 and NATHALY ZAPATA-CHICA, (SDW) (LDW) Plaintiffs, ORDER -against- MASCOTT CORPORATION d/b/a Markers Restaurant and STEPHEN PARKER, in his individual capacity, Defendants. ---------------------------------------------------------X AND NOW, on this _____ day of _______________, 2017, after consideration of Defendants’ Partial Motion to Dismiss and Plaintiff’s Response in Opposition thereto, it is hereby ORDERED and DECREED that Defendants’ Motion is DENIED in its entirety. __________________________ U.S.D.J. Case 2:16-cv-09027-SDW-LDW Document 11-2 Filed 03/20/17 Page 1 of 1 PageID: 166 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY --------------------------------------------------------X HECTOR GARCIA, DENNIS GEORGATOS Civil Action No. 16-cv-9027 and NATHALY ZAPATA-CHICA, (SDW) (LDW) Plaintiffs, Motion Returnable: April 3, 2017 -against- MASCOTT CORPORATION d/b/a Markers Restaurant and STEPHEN PARKER, in his individual capacity, Defendants. ---------------------------------------------------------X CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Plaintiff’s Brief in Opposition to Defendants’ Partial Motion to Dismiss, together with the Certification of Robert Salaman and the annexed exhibit, was sent via ECF to the opposing counsel of record, addressed as follows: Fox Rothschild LLP 75 Eisenhower Parkway, Suite 200 Roseland, New Jersey 07068 Dated: March 20, 2017 New York, New York Akin Law Group PLLC By: /s/ Robert D. Salaman ____________________ Robert D. Salaman Case 2:16-cv-09027-SDW-LDW Document 11-3 Filed 03/20/17 Page 1 of 1 PageID: 167