Woloshin v. New Jersey Transit Bus Operations et al

BRIEF in Opposition

D.N.J.August 1, 2016

Peter Kober, Esq. 006481979 Kober Law Firm, LLC 1876 Greentree Rd Cherry Hill, NJ 08003 856-761-5090 Attorney for Plaintiff, Mark Woloshin UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY ______________________________________________________________________________ | MARK WOLOSHIN, | | Civil Action No. 1:16-cv-01982-JHR-AMD Plaintiff | | v. | PLAINTIFF’S BRIEF | IN OPPOSITION TO NEW JERSEY TRANSIT BUS OPERATIONS | MOTION TO DISMISS and UNKNOWN OPERATOR OF BUS 6002, | | ________________Defendants_________|__________________________________________ DEFENDANT’S RULE 12(b)(6) MOTION TO DISMISS – MOTION DAY AUGUST 15, 2016 ______________________________________________________________________________ Peter Kober, Esq. On the Brief Case 1:16-cv-01982-JHR-AMD Document 16 Filed 08/01/16 Page 1 of 20 PageID: 119 TABLE OF CONTENTS TABLE OF AUTHORITIES……………………………………………………………………………………………………….. ii LEGAL ARGUMENT……………………………………………………………………………………………………………….. 1 (A) STANDARD OF REVIEW……………………………………………………………………………………………………. 1 A. Motion to Dismiss the Amended Complaint for Lack of Subject Matter Jurisdiction…… 1 B. Motion to Dismiss the Amended Complaint for Failure to State a Claim…………………….. 2 I NEW JERSEY TRANSIT IS AN ARM OF THE STATE………………………………………………………………… 2 II NEW JERSEY TRANSIT DOES NOT RETAIN ITS SOVEREIGN IMMUNITY……………………………….. 3 A. THE AMENDED COMPLAINT STATES A CLAIM UNDER TITLE II OF THE ADA…………………. 5 B. THERE IS A FOURTEENTH AMENDMENT VIOLATION…………………………………………………… 7 III THERE IS AN AVAILABLE REMEDY UNDER SECTION 504 OF THE REHABILITATION ACT AND TITLE II OF THE ADA……………………………………………………………………………………………………………….. 9 A. Punitive Damages Under Title II of the ADA and Section 504………………………………………… 9 B. Compensatory Damages Under Title II of the ADA and Section 504……………………………… 10 IV THE AMENDED COMPLAINT STATES A CLAIM UNDER SECTION 504 OF THE REHABILITATION ACT………………………………………………………………………………………………………………………………………… 11 A. The heightened causation standard under Section 504………………………………………………. 12 V THE AMENDED COMPLAINT STATES A CLAIM UNDER THE NJLAD……………………………………… 13 i Case 1:16-cv-01982-JHR-AMD Document 16 Filed 08/01/16 Page 2 of 20 PageID: 120 VI THE AMENDED COMPLAINT STATES A CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS……………………………………………………………………………………………………………………………….. 13 A. Vicarious Liability of Defendant, New Jersey Transit Bus Operations…………………………… 14 CONCLUSION………………………………………………………………………………………………………………………….. 15 TABLE OF AUTHORITIES CASES Ashcroft v. Iqbal, 556 U.S. 662 (2009)…………………………………………………………………………………….. 2 Barnes v. Gorman, 536 U.S. 181 (2002)………………………………………………………………………………… 10 Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356 (2001)………………………….. 4 Bowers v. National Collegiate Athletic Association, 475 F.3d 524 (3d Cir. 2007)…………………. 3,4,5 Buckley v. Trenton Savings Fund Society, 544 A.2d 857, 11 N.J. 355 (1988)………………………….. 13 Burstyn v. Miami Beach, 663 F.Supp.528 (S.D. Fla. 1987)………………………………………………………. 8 Calloway v. Boro of Glassboro Department of Police, 89 F.Supp.2d 543 (D.N.J. 2000)…………… 7 Chavarriaga v. State of New Jersey Dept. of Corrections, (3d Cir.)(Filed November 16, 2015)(Precedential)…………………………………………………………………………………………………………………. 8 City of Boerne v. P.F. Flores, 521 U.S. 507 (1997)…………………………………………………………………… 4 ii Case 1:16-cv-01982-JHR-AMD Document 16 Filed 08/01/16 Page 3 of 20 PageID: 121 Disability Rights New Jersey, Inc. v. Commissioner, NJ Department of Human Services, 796 F.3d 293 (3d Cir. 2015)…………………………………………………………………………………………………………………. 12 Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)…………………………………………………… 2 Gorman v. Bartch, 152 F.3d 907 (8th Cir. 1998)……………………………………………………………………….. 7 Horizon House Developmental Services, Inc., v. Township of Upper Southampton, 804 F.Supp. 683 (E.D. Pa. 1992)…………………………………………………………………………………………………………………… 8 Koslow v. Commonwealth of Pennsylvania, 302 F.3d 161 (3d Cir. 2002)……………………………….. 5 Leang v. Jersey City Board of Education, 198 N.J. 557 (2009)……………………………………………….. 13 Liese v. Indian River Cnty. Hosp. Dist., 701 F.3d 334 (11th Cir. 2012)………………………………………. 11 Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268 (2d Cir. 2009)………………………………………….. 11 Lombardo v. Commonwealth of Pennsylvania, Dept. of Public Welfare, 540 F.3d 190 (3d Cir. 2008)………………………………………………………………………………………………………………………………………… 1 Macfarlan v. Ivy Hill SNF, LLC, 675 f.3D 266 (3d Cir. 2012)……………………………………………………… 12 Malleus v. George, 641 F.3d 560 (3d Cir. 2011)………………………………………………………………………… 2 Muhammad v. Dept. of Corrections, 645 F.Supp.2d 299 (D.N.J. 2008)…………………………………3,4,5 Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721 (2003)…………………………………………….. 3 Phillips v. County of Allegheny, 515 F.3d 224 (3d Cir. 2008)……………………………………………………… 8 Seal Tite Corp. v. Bressi, 712 A.2d 262, 312 N.J. Super. 532 (App.Div.), certif. denied 719 A.2d 643, 156 N.J. 411 (1998)………………………………………………………………………………………………………… 14 S.H. V. Lower Merion School District, 729 F.3d 248 (3d Cir. 2013)……………………………….. 10,11,12 Tennessee v. Lane, 541 U.S. 509 (2004)……………………………………………………………………………………. 4 iii Case 1:16-cv-01982-JHR-AMD Document 16 Filed 08/01/16 Page 4 of 20 PageID: 122 United States v. Georgia, 546 U.S. 151 (2006)………………………………………………………………… 3,4,10 Wojtkowiak v. New Jersey Motor Vehicle Commission, 106 A.3d 519, 439 N.J. Super. 1 (App.Div. 2015)…………………………………………………………………………………………………………………………………….. 13 STATUTES 28 U.S.C. Section 1447(c)………………………………………………………………………………………………………….. 1 42 U.S.C. Section 12101(b)(4)…………………………………………………………………………………………………… 3 42 U.S.C. Section 12133………………………………………………………………………………………………………… 10 N.J.S.A. 59:2-10…………………………………………………………………………………………………………………….. 14 REGULATIONS 28 C.F.R. Section 35.130(b)(7)…………………………………………………………………………………………….. 5,7 iv Case 1:16-cv-01982-JHR-AMD Document 16 Filed 08/01/16 Page 5 of 20 PageID: 123 LEGAL ARGUMENT (A) STANDARD OF REVIEW A. Motion to Dismiss the Amended Complaint for Lack of Subject Matter Jurisdiction In order to correctly evaluate Defendant’s Fed. R. Civ. Proc. 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, the court should first consider that “[p]laintiff filed his original complaint in the Superior Court of New Jersey, Special Civil Part, Camden County, on March 4, 2016. On March 11, 2016, Defendant NJ Transit removed this matter to the District Court of New Jersey. (Dkt. Entry #1).” Defendant’s brief at 3. It is clearly established law that Defendant, New Jersey Transit Bus Operations, waived its Eleventh Amendment immunity from suit in federal court “by voluntarily removing this matter from state to federal court.” Lombardo v. Commonwealth of Pennsylvania, Department of Public Welfare, 540 F.3d 190, 196-198 (3d Cir. 2008). Furthermore, “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. Section 1447(c). In the instant case, Defendant’s argument regarding lack of subject matter jurisdiction should be completely disregarded since “it submit[ted] its rights for judicial determination, and unequivocally invoke[d] the jurisdiction of the federal courts.” Id. at 198. 1 Case 1:16-cv-01982-JHR-AMD Document 16 Filed 08/01/16 Page 6 of 20 PageID: 124 B. Motion to Dismiss the Amended Complaint for Failure to State a Claim In order to evaluate a Fed. R. Civ. Proc. 12(b)(6) motion to dismiss, “courts accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). When considering a Rule 12(b)(6) motion, the court must conduct a three-step analysis. See, Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). “First, the court must ‘take note of the elements a plaintiff must plead to state a claim.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Second, the court must accept as true all of plaintiff’s well-pleaded factual allegations and construe the complaint in the light most favorable to the plaintiff. Fowler v. UPMC Shadyside, supra, 578 F.3d at 210-211. Finally, the court must determine whether the “facts are sufficient to show that plaintiff has a ‘plausible claim for relief.’” Id. at 211 (quoting Ashcroft v. Iqbal, supra, 556 U.S. at 679). I NEW JERSEY TRANSIT IS AN ARM OF THE STATE Plaintiff takes no position as to whether or not New Jersey Transit Bus Operations is an arm of the State, lacking discovery on this issue at this stage of the litigation. For the purposes of this motion, only, Plaintiff has no reason to believe that New Jersey Transit Bus Operations is anything other than an arm of the State. 2 Case 1:16-cv-01982-JHR-AMD Document 16 Filed 08/01/16 Page 7 of 20 PageID: 125 II NEW JERSEY TRANSIT DOES NOT RETAIN ITS SOVEREIGN IMMUNITY “Congress may abrogate states’ sovereign immunity ‘if it makes its intention to abrogate unmistakably clear in the language of the statute and acts pursuant to a valid exercise of its power under Section 5 of the Fourteenth Amendment.’” Muhammad v. Department of Corrections, 645 F.Supp.2d 299, 312 (D.N.J. 2008) (quoting Nevada Department of Human Resources v. Hibbs, 538 U.S. 721, 726 (2003)). “The first prong of this test is easily satisfied in this case, as Title II of the ADA provides that ‘[a] State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in [a] Federal or State court of competent jurisdiction for a violation.’ 42 U.S.C. Section 12101(b)(4)[.]” Id. (quoting Bowers v. National Collegiate Athletic Association, 475 F.3d 524, 550 (3d Cir. 2007)). “With regard to the second prong, the Supreme Court has held that Title II of the ADA validly abrogates sovereign immunity as to (1) state conduct that actually violates the Constitution, United States v. Georgia, 546 U.S. 151, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006), and (2) some classes of state conduct that do not facially violate the Constitution but are prohibited by Title II in order to ‘prevent and deter unconstitutional conduct.’” Id. at 312-313 (quoting Bowers v. National Collegiate Athletic Association, supra, 475 F.3d at 550-51. As to the first type, i.e., state conduct that actually violates the Constitution, “[u]nder United States v. Georgia, in order to determine whether Plaintiff may sue the [Defendant] for damages under Title II, the [c]ourt must assess on a claim-by-claim basis, (1) which aspects of the state’s alleged conduct violated Title II; (2) to what extent such misconduct also violated the 3 Case 1:16-cv-01982-JHR-AMD Document 16 Filed 08/01/16 Page 8 of 20 PageID: 126 Fourteenth Amendment[.]” Id. at 313. As to the second type, i.e., some classes of state conduct that do not facially violate the Constitution but are prohibited by Title II in order to prevent and deter unconstitutional conduct, “[u]nder United States v. Georgia, in order to determine whether Plaintiff may sue the [Defendant] for damages under Title II, the [c]ourt must assess on a claim-by claim basis, (3) insofar as such misconduct violated Title II but did not violate the Fourteenth Amendment, whether Congress's purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid.” Id. “[I]n making this determination [the court] seek[s] to identify: (1) with some precision the constitutional right at issue; (2) whether Congress identified a history and pattern of unconstitutional discrimination by the States against the disabled with respect to public services; and (3) whether the rights and remedies created by the statute are congruent and proportional to the constitutional rights it purports to enforce and the record of constitutional violations adduced by Congress.” Bowers v. National Collegiate Athletic Association, supra, 475 F.3d at fn. 34 (citing Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 365, 368, 372-73 (2001))(referring to the determination as the three- pronged Boerne test, 475 F.3d at fn. 35 (after City of Boerne v. P.F. Flores, 521 U.S. 507, 529-36 (1997)). Steps (1) and (2) in the Boerne test are conclusively established as to Title II by Tennessee v. Lane, 541 U.S. 509, 528-29 (2004). Bowers v. National Collegiate Athletic Association, supra, 475 F.3d at fn. 35. Only step (3) in the Boerne test, i.e., the congruence and proportionality of Title II to the constitutional right sought to be enforced, remains at issue for future case-by-case 4 Case 1:16-cv-01982-JHR-AMD Document 16 Filed 08/01/16 Page 9 of 20 PageID: 127 consideration. Id. In the instant case, Defendant, New Jersey Transit Bus Operations, has waived its eleventh amendment immunity from suit in federal court by voluntarily removing this case to federal court from state court. On the merits, Congress’s abrogation of this Defendant’s eleventh amendment immunity to this Title II suit in federal court was within Congress’s power under Section 5 of the fourteenth amendment since the amended complaint (1) states a claim under Title II and (2) states a claim under the equal protection clause of the fourteenth amendment to the Constitution of the United States. Furthermore, a state program or activity that accepts federal funds waives its eleventh amendment immunity to RA claims. Bowers v. National Collegiate Athletic Association, supra, 475 F.3d at 524 (citing Koslow v. Comm. of Pennsylvania, 302 F.3d 161, 168-76 (3d Cir. 2002)). A. THE AMENDED COMPLAINT STATES A CLAIM UNDER TITLE II OF THE ADA To state a claim under Title II of the ADA, a plaintiff must show that: “’(1) he is a qualified individual; (2) with a disability; (3) he was excluded from participation in or denied the benefits of the services, programs, or activities of a public entity, or was subjected to discrimination by any such entity; (4) by reason of his disability.’” Muhammad v. Department of Corrections, supra, 645 F.Supp.2d at 313 (quoting Bowers v. National Collegiate Athletic Association, supra, 475 F.3d at 533 fn. 32. “Under Title II, the failure of a public entity to provide disabled persons with reasonable modifications constitutes discrimination within the meaning of the Act.” Id. (citing 28 C.F.R. Section 35.130(b)(7)). 5 Case 1:16-cv-01982-JHR-AMD Document 16 Filed 08/01/16 Page 10 of 20 PageID: 128 In the instant case, the only challenge to the amended complaint is whether it pleads that Plaintiff was excluded from participation in or denied the benefits of the services, programs, or activities of a public entity, or was subjected to discrimination by any such entity by reason of his disability. “Plaintiff claims that he was discriminated by the unknown bus operator and denied entry onto the bus because he could not hear the orally given directives of the operator and because he could not orally express himself to the operator ‘solely by reason of his being deaf.’ (Pl. Amend. Compl. Paragraph 24).” Defendant’s brief at 3. The plain meaning of ‘denied entry onto the bus’ is that he was excluded from participation in (lawfully riding the bus) a service (public transportation) provided by a public entity. If that is not enough to state a claim, then the plain meaning of ‘denied entry onto the bus’ is that he was denied the benefits (lawfully riding the bus) of a service (public transportation) provided by a public entity. Furthermore, the plain meaning of ‘because he could not hear the orally given directives of the operator and because he could not orally express himself to the operator solely by reason of his being deaf’ is that the aforesaid exclusion or denial was by reason of his disability. If that is not enough to state a claim, “[p]laintiff further alleges that the unknown bus operator had an obligation to ‘reasonably modify his method of communication with Plaintiff to effectively convey his instructions to Plaintiff once he learned or should have realized that Plaintiff was a deaf individual’ and ‘treated Plaintiff disparately from hearing riders of the bus.’ (Pl. Amend. Compl. Paragraphs 25-26).” Defendant’s brief at 3. The plain meaning of failure to 6 Case 1:16-cv-01982-JHR-AMD Document 16 Filed 08/01/16 Page 11 of 20 PageID: 129 ‘reasonably modify his method of communication with Plaintiff’ alleges the ‘subjection to discrimination’ by a public entity since the failure of a public entity to provide disabled persons with meaningful modifications constitutes discrimination within the meaning of the Act. 28 C.F.R. Section 35.130(b)(7). Defendant’s apparent attempt to distinguish between the acts of the unknown operator of the bus and New Jersey Transit Bus Operations, Defendant’s brief at 29, is misplaced. To the contrary, “[a]t the end of the day, ‘the [Rehabilitation Act and Title II] must be interpreted broadly to include the ordinary operations of a public entity in order to carry out the purposes of prohibiting discrimination.’” Calloway v. Boro of Glassboro Department of Police, 89 F.Supp.2d 543, 555 (D.N.J. 2000)(quoting Gorman v. Bartch, 152 F.3d 907, 913 (8th Cir. 1998))(certified deaf interpreter not provided for station house interrogation; police department denied summary judgment on Rehabilitation Act and Title II claims). In the instant case, based upon the principle enunciated in Calloway, the public entity cannot escape Rehabilitation Act and Title II liability by throwing its unknown operator under the bus. B. THERE IS A FOURTEENTH AMENDMENT VIOLATION Plaintiffs who do not allege under the equal protection clause that their membership in a protected group was the motivation for unfavorable treatment, but who nevertheless allege 7 Case 1:16-cv-01982-JHR-AMD Document 16 Filed 08/01/16 Page 12 of 20 PageID: 130 being arbitrarily singled out for this treatment, may claim they were singled out for this treatment as a class of one. Chavarriaga v. State of New Jersey Department of Corrections, (3d Circuit)(Filed November 16, 2015)(Precedential). “In order ‘to state a claim for a class of one denial of equal protection, a plaintiff must at a minimum allege that he was intentionally treated differently from others similarly situated by the defendant and that there was no rational basis for such treatment.’” Id. (quoting Phillips v. County of Allegheny, 515 F.3d 224, 243 (3d Cir. 2008)). “[U]nsubstantiated fear and prejudice cannot justify singling out one group for different treatment.” Burstyn v. Miami Beach, 663 F.Supp. 528, 534 (S.D. Fla. 1987)(exclusion of elderly from certain streets violated equal protection clause). A lack of a legitimate goal regarding the purpose for a public entity’s decision will cause the decision to be in violation of the equal protection clause. See, Horizon House Developmental Services, Inc. v. Township of Upper Southampton, 804 F.Supp. 683, 697 (E.D. Pa. 1992)(ordinance limiting handicapped persons’ choice of where to live violated equal protection clause). In the instant case, the amended complaint alleges that the unknown operator of the bus, by failing to reasonably modify his method of communication with Plaintiff, acted intentionally or with deliberate indifference towards Plaintiff and by so acting treated Plaintiff disparately from hearing riders of the bus. (Pl. Amend. Compl. Paragraph 26). The plain meaning of the words conveys that ‘plaintiff was intentionally treated differently from others similarly situated by the defendant.” 8 Case 1:16-cv-01982-JHR-AMD Document 16 Filed 08/01/16 Page 13 of 20 PageID: 131 Furthermore, the amended complaint alleges that the conduct of the unknown operator of the bus was outrageous. (Pl. Amend. Compl. Paragraph 29). Clearly, the plain meaning of ‘outrageous’ is close to the plain meaning of ‘without legitimate purpose.’ Equally clearly, no legitimate purpose has been proposed by the movant for the unknown bus operator’s acts. That is because there is none. The unknown bus operator’s acts were callous and cruel. As stated in the amended complaint, after denying Plaintiff and his young son entry onto the bus, the unknown operator of the bus closed the door, accelerated the engine, and pulled away from the curb, leaving Plaintiff and his young son standing on the curb. (Pl. Amend. Compl. Paragraph 22). No legitimate purpose for this callous and cruel act of prejudice against a deaf person could ever be gleaned by the movant. The amended complaint adequately states an equal protection claim. Just to be on the safe side, Plaintiff could easily cure any deficiency by amending Paragraph 29 of the amended complaint to allege that the unknown bus operator’s conduct was not only outrageous but also without rational basis and legitimate purpose. III THERE IS AN AVAILABLE REMEDY UNDER SECTION 504 OF THE REHABILITATION ACT AND TITLE II OF THE ADA A. Punitive Damages Under Title II of the ADA and Section 504 9 Case 1:16-cv-01982-JHR-AMD Document 16 Filed 08/01/16 Page 14 of 20 PageID: 132 “[P]unitive damages… may not be awarded in suits brought under Section 202 of the ADA and Section 504 of the Rehabilitation Act.” Barnes v. Gorman, 536 U.S. 181, 189-190 (2002). Plaintiff will not be claiming punitive damages under Title II of the ADA and Section 504 of the Rehabilitation Act. B. Compensatory Damages Under Title II of the ADA and Section 504 “Both [Title II of the ADA and Section 504 of the Rehabilitation Act] are enforceable through private causes of action.” Barnes v. Gorman, supra, 536 U.S. at 185. The scope of the damages remedy available under Title II of the ADA and Section 504 of the Rehabilitation Act includes compensatory damages. See, United States v. Georgia, supra, 546 U.S. at 154; Barnes v. Gorman, supra, 536 U.S. at 185-188; 42 U.S.C. Section 12133 (authorizing private lawsuits for money damages against public entities that violate its provisions). “[C]laims for compensatory damages under Section 504 of the RA and [Title II] of the ADA also require a finding of intentional discrimination.” S.H. v. Lower Merion School District, 729 F.3d 248, 262 (3d Cir. 2013). The requirement for a finding of intentional discrimination may be satisfied by a showing of deliberate indifference. Id. “[U]nder the more lenient standard of deliberate indifference, a plaintiff must prove that ‘the defendant knew that harm to a federally protected right was substantially likely and that the defendant failed to act on that likelihood.’” 10 Case 1:16-cv-01982-JHR-AMD Document 16 Filed 08/01/16 Page 15 of 20 PageID: 133 Id. (citing Liese v. Indian River Cnty. Hosp. Dist., 701 F.3d 334, 348 (11th Cir. 2012))(emphasis in original). “’[D]eliberate indifference must be a deliberate choice, rather than negligence or bureaucratic inaction.’” Id. (quoting Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 276 (2d Cir. 2009)). In the instant case, the amended complaint adequately alleges deliberate indifference on the part of the unknown driver of the bus by the plain meaning of its very words. (“[B]y so failing to reasonably modify his method [of communication with Plaintiff] [the unknown operator of the bus] acted intentionally or with deliberate indifference to the high degree of probability that emotional distress would follow, and treated Plaintiff disparately from hearing riders of the bus.”) (Pl. Amend. Compl. Paragraph 26). As explained in Point IIA, supra, the amended complaint adequately states a claim under Title II of the ADA. IV THE AMENDED COMPLAINT STATES A CLAIM UNDER SECTION 504 OF THE REHABILITATION ACT To state a claim under Section 504 of the Rehabilitation Act, a plaintiff must show (a) that he is a qualified individual who has a disability; (b) that he was either excluded from participation in or denied the benefits of some entity’s programs or activities, or subjected to discrimination under such program or activity by such entity, where that entity receives federal financial assistance; and (c) that such exclusion, denial of benefits, or discrimination was by reason of his 11 Case 1:16-cv-01982-JHR-AMD Document 16 Filed 08/01/16 Page 16 of 20 PageID: 134 disability. See, Disability Rights New Jersey, Inc., v. Commissioner, New Jersey Department of Human Services, 796 F.3d 293, fn. 3. (3d Cir. 2015). Title II of the ADA and Section 504 of the Rehabilitation Act have “core provisions [which] are substantively identical.” See, id. The two acts “have the same standard for determination of liability,” and “are to be interpreted consistently.” Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 274 (3d Cir. 2012). A. The heightened causation standard under Section 504 Movant’s brief asserts that plaintiffs must prove a heightened causation element under Section 504 (movant’s brief, page 34). Movant’s reliance on a heightened causation element under Section 504 is misplaced. Any requirement of a heightened causation element under Section 504 would be inconsistent with Third Circuit authority, which regards Section 504 and Title II of the ADA as having “the same standard for determination of liability.” See, e.g., S.H. v. Lower Merion School District, supra, 729 F.3d at 248; Macfarlan v. Ivy Hill SNF, LLC, supra, 675 F.3d at 274. In the instant case, the amended complaint states a claim under the RA for the same reasons that it states a claim under Title II of the ADA (see Point IIA, supra). 12 Case 1:16-cv-01982-JHR-AMD Document 16 Filed 08/01/16 Page 17 of 20 PageID: 135 V THE AMENDED COMPLAINT STATES A CLAIM UNDER THE NJLAD To state a claim under the NJLAD, a plaintiff must show (a) that he or she had a disability; (b) that he or she was otherwise qualified to participate in the activity or program at issue; and (c) that he or she was denied the benefits of the program or otherwise discriminated against because of his or her disability. See, Wojtkowiak v. New Jersey Motor Vehicle Commission, 106 A.3d 519, 527, 439 N.J. Super. 1 (App. Div. 2015). A plaintiff “must also show whether the accommodation was reasonable.” Id. In the instant case, the amended complaint states a claim under the NJLAD for the same reasons that it states a claim under Title II of the ADA (see Point IIA, supra). VI THE AMENDED COMPLAINT STATES A CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS To state a claim for intentional infliction of emotional distress, a plaintiff must show “intentional and outrageous conduct by the defendant, proximate cause, and distress that is severe. Leang v. Jersey City Board of Education, 198 N.J. 557 (2009). “[T]he emotional distress [must] be so severe that no reasonable person could be expected to endure it.” Id. “Liability will… attach when the defendant acts recklessly in deliberate disregard of a high degree of probability that emotional distress will follow.” Buckley v. Trenton Savings Fund Society, 111 N.J. 355, 366, 544 A.2d 857, 863 (1988). 13 Case 1:16-cv-01982-JHR-AMD Document 16 Filed 08/01/16 Page 18 of 20 PageID: 136 In the instant case, the amended complaint adequately alleges deliberate disregard by the unknown operator of the bus of a high degree of probability that emotional distress will follow by the plain meaning of its very words. (“[B]y so failing to reasonably modify his method [of communication with Plaintiff] [the unknown operator of the bus] acted intentionally or with deliberate indifference to the high degree of probability that emotional distress would follow…”) (Pl. Amend. Compl. Paragraph 26). Furthermore, “[the unknown operator’s] conduct was outrageous, and the resulting emotional distress suffered by Plaintiff was so severe that no reasonable person could be expected to endure such distress.” (Pl. Amend. Compl. Paragraph 29). The amended complaint adequately states a claim for intentional infliction of emotional distress. A. Vicarious Liability of Defendant, New Jersey Transit Bus Operations A plaintiff is barred from making a respondeat superior claim against the employer of the individual state actor for the commission of an intentional tort by the individual state actor by virtue of N.J.S.A. 59:2-10. See, Seal Tite Corp. v. Bressi, 312 N.J. Super. 532, 539, 712 A.2d 262 (App. Div.), certif. denied 156 N.J. 411, 719 A.2d 643 (1998). Plaintiff will not be making a respondeat superior claim against Defendant, New Jersey Transit Bus Operations, for the intentional tort of intentional infliction of emotional distress by its employee. 14 Case 1:16-cv-01982-JHR-AMD Document 16 Filed 08/01/16 Page 19 of 20 PageID: 137 CONCLUSION The defendant has waived its eleventh amendment immunity from suit in federal court. On the merits, the amended complaint states a claim for a fourteenth amendment violation thereby supporting Congress’s power to abrogate Defendant’s eleventh amendment immunity by statute. If there is a defect in the amended complaint, it can easily be cured by a second amended complaint. A proposed form of second amended complaint is attached as an exhibit. The amended complaint also states a cause of action under Title II of the ADA, the RA and the NJLAD. The amended complaint states a cause of action for intentional infliction of emotional distress. Plaintiff will not be claiming punitive damages under Title II of the ADA and under the RA. Plaintiff will not be making a respondeat superior claim against Defendant, New Jersey Transit Bus Operations for the tort of intentional infliction of emotional distress. Respectfully submitted, _s/ Peter Kober Pete Kober DATED: August 1, 2016 15 Case 1:16-cv-01982-JHR-AMD Document 16 Filed 08/01/16 Page 20 of 20 PageID: 138 Peter Kober, Esq. 006481979 Kober Law Firm, LLC 1876 Greentree Rd Cherry Hill, NJ 08003 856-761-5090 Attorney for Plaintiff, Mark Woloshin UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY | MARK WOLOSHIN, | | Civil Action No. 1:16-cv-01982-JHR-AMD Plaintiff | | v. | SECOND AMENDED | COMPLAINT NEW JERSEY TRANSIT BUS OPERATIONS | and UNKNOWN OPERATOR OF BUS 6002, | | Jury trial [x] yes [ ] no Defendants | PARTIES 1. Plaintiff, MARK WOLOSHIN, is an individual who resides at 421 State Street, Apartment B, in the City of Camden, County of Camden, and State of New Jersey, 08102 2. Defendant, NEW JERSEY TRANSIT BUS OPERATIONS, is a public entity, which has offices at 350 Newton Avenue, in the City of Camden, County of Camden, and State of New Jersey, 08103. 3. Defendant, UNKNOWN OPERATOR OF BUS 6002, is an individual who was employed by Defendant, NEW JERSEY TRANSIT BUS OPERATIONS, with offices at 350 Newton Avenue, in the City of Camden, County of Camden, and State of New Jersey, 08103. JURISDICTION 4. The basis for jurisdiction in this case is FEDERAL QUESTION, under 28 U.S.C. Section 1331 and Section 1343. STATEMENT OF THE CASE 5. Plaintiff, MARK WOLOSHIN, is and was at all times relevant to this cause of action a disabled individual as a result of being deaf of hearing. Case 1:16-cv-01982-JHR-AMD Document 16-1 Filed 08/01/16 Page 1 of 6 PageID: 139 2 6. On June 3, 2015, at 3:54 P.M., Plaintiff, MARK WOLOSHIN was at the bus stop on Broadway between Federal Street and Martin Luther King Boulevard, accompanied by his young son and in possession of a small child’s bicycle. 7. There he was awaiting the approach of the northbound 452 bus which he intended to board with his young son and ride home. 8. Bus No. 6002 pulled up to the curb at the bus stop at 3:54 P.M. which was the scheduled time. 9. Bus No. 6002 was operated by the Defendant, UNKNOWN OPERATOR OF BUS 6002, who was at the time an employee of Defendant, NEW JERSEY TRANSIT BUS OPERATIONS, which is a public entity charged with responsibility for the operation of buses for the public to ride in, and such buses and bus stops are therefore a public accommodation under federal and state law. 10. Plaintiff, MARK WOLOSHIN, knew how to load a small child’s bicycle onto the bicycle rack on the front of the bus, having done so many times previously. 11. On this occasion Plaintiff, MARK WOLOSHIN, started to load the small child’s bicycle onto the bicycle rack on the front of the bus. 12. When Plaintiff, MARK WOLOSHIN, started to load the small child’s bicycle onto the bicycle rack on the front of the bus, the Defendant, UNKNOWN OPERATOR OF BUS 6002 started berating him, not realizing he was deaf. 13. . Plaintiff, MARK WOLOSHIN, then showed the Defendant, UNKNOWN OPERATOR OF BUS 6002 a card that he carries, stating that he is deaf. 14. The Defendant, UNKNOWN OPERATOR OF BUS 6002 should have realized, by reading the card, that Plaintiff, MARK WOLOSHIN, was deaf. 15. After looking at the card, the Defendant, UNKNOWN OPERATOR OF BUS 6002 kept berating him, as if Defendant, UNKNOWN OPERATOR OF BUS 6002, did not realize or was deliberately indifferent to the fact that he was deaf. 16. The Defendant, UNKNOWN OPERATOR OF BUS 6002 made motions to indicate to him that he was not allowed to put the small child’s bicycle on the front of the bus, while continuing to berate him. 17. The Defendant, UNKNOWN OPERATOR OF BUS 6002 made no effort to attach the small child’s bicycle onto the front of the bus himself. Case 1:16-cv-01982-JHR-AMD Document 16-1 Filed 08/01/16 Page 2 of 6 PageID: 140 3 18. . Plaintiff, MARK WOLOSHIN then tried to carry the small child’s bicycle onto the bus himself. 19. The Defendant, UNKNOWN OPERATOR OF BUS 6002 made motions to indicate to him that he was not allowed to carry the small child’s bicycle onto the bus himself, while continuing to berate him. 20. The UNKNOWN OPERATOR OF BUS 6002 made no effort to carry the small child’s bicycle onto the bus himself. 21. . Plaintiff, MARK WOLOSHIN was denied entry onto the bus by the Defendant, UNKNOWN OPERATOR OF BUS 6002, as was his young son. 22. The Defendant, UNKNOWN OPERATOR OF BUS 6002 closed the door, accelerated the engine, and pulled away from the curb. Plaintiff, MARK WOLOSHIN, and his young son were left standing on the curb. 23. Plaintiff, MARK WOLOSHIN, was an otherwise qualified individual to ride Defendant, NEW JERSEY TRANSIT BUS OPERATIONS’ bus on June 3, 2015. 24. Plaintiff, MARK WOLOSHIN, was discriminated against by the Defendant, UNKNOWN OPERATOR OF BUS 6002 on June 3, 2015, by being denied entry onto the bus, because he could not hear the orally given directives of the Defendant, UNKNOWN OPERATOR OF BUS 6002, and because he could not express himself orally to the Defendant, UNKNOWN OPERATOR OF BUS 6002, all solely by reason of his being deaf. 25. Defendant, UNKNOWN OPERATOR OF BUS 6002, had an obligation under federal and state law to reasonably modify his method of communication with Plaintiff to effectively convey his instructions to Plaintiff once he learned or should have realized that Plaintiff was a deaf individual. 26. Defendant, UNKNOWN OPERATOR OF BUS 6002, failed to meet his obligation under federal and state law to reasonably modify his method of communication with Plaintiff to effectively convey his instructions to Plaintiff and by so failing to reasonably modify his method, acted intentionally or with deliberate indifference to the high degree of probability that emotional distress would follow, and treated Plaintiff disparately from hearing riders of the bus. 27. Defendant, NEW JERSEY TRANSIT BUS OPERATIONS is vicariously liable for the failures, violations of law, and tort(s) committed by its employee, Defendant UNKNOWN OPERATOR OF BUS 6002. 28. Defendant, NEW JERSEY TRANSIT BUS OPERATIONS, was a recipient of federal funds. Case 1:16-cv-01982-JHR-AMD Document 16-1 Filed 08/01/16 Page 3 of 6 PageID: 141 4 29. Defendant, UNKNOWN OPERATOR OF BUS 6002’s conduct was outrageous, and had no rational basis or legitimate purpose, and did violate the equal protection clause of the fourteenth amendment to the Constitution of the United States, and the resulting emotional distress suffered by Plaintiff was so severe that no reasonable person could be expected to endure such distress. INJURIES 30. As a direct and proximate result of the acts of Defendants, NEW JERSEY TRANSIT BUS OPERATIONS and UNKNOWN OPERATOR OF BUS 6002, Plaintiff, MARK WOLOSHIN, has suffered substantial mental and emotional distress and anguish, so severe that no reasonable person could be expected to endure such distress. COUNT I SECTION 504 VIOLATIONS OF DEFENDANT NEW JERSEY TRANSIT BUS OPERATIONS 31. The acts of Defendant, NEW JERSEY TRANSIT BUS OPERATIONS violated Plaintiff, MARK WOLOSHIN’s rights under the laws of the United States, particularly his rights under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Section 794. COUNT II TITLE II VIOLATIONS OF DEFENDANT NEW JERSEY TRANSIT BUS OPERATIONS 32. The acts of Defendant, NEW JERSEY TRANSIT BUS OPERATIONS violated Plaintiff, MARK WOLOSHIN’s rights under the laws of the United States, particularly his rights under Title II of the Americans with Disabilities Act, 42 U.S.C. Section 12,131 et seq. Case 1:16-cv-01982-JHR-AMD Document 16-1 Filed 08/01/16 Page 4 of 6 PageID: 142 5 COUNT III NJLAD VIOLATIONS OF DEFENDANTS NEW JERSEY TRANSIT BUS OPERATIONS AND UNKNOWN OPERATOR OF BUS 6002 33. The acts of Defendants, NEW JERSEY TRANSIT BUS OPERATIONS and UNKNOWN OPERATOR OF BUS 6002 violated Plaintiff, MARK WOLOSHIN’s rights under the laws of New Jersey, particularly his rights under the Law Against Discrimination, N.J.S.A. 10:5-4 and N.J.S.A. 10:5-12f.(1). COUNT IV INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS BY DEFENDANTS NEW JERSEY TRANSIT BUS OPERATIONS AND UNKNOWN OPERATOR OF BUS 6002 34. The acts of Defendants, NEW JERSEY TRANSIT BUS OPERATIONS and UNKNOWN OPERATOR OF BUS 6002 constituted the tort of intentional infliction of emotional distress for which the Defendants, NEW JERSEY TRANSIT BUS OPERATIONS and UNKNOWN OPERATOR OF BUS 6002 are liable in damages. RELIEF SOUGHT WHEREFORE, Plaintiff, MARK WOLOSHIN, requests judgment against Defendant, NEW JERSEY TRANSIT BUS OPERATIONS for compensatory damages, punitive damages, reasonable attorney’s fees, and costs of suit. Case 1:16-cv-01982-JHR-AMD Document 16-1 Filed 08/01/16 Page 5 of 6 PageID: 143 6 JURY DEMAND Plaintiff requests a trial by jury of all issues which are triable by a jury. Respectfully submitted, DATED: 8/1/2016 s/ Peter Kober Peter Kober, Esq. Case 1:16-cv-01982-JHR-AMD Document 16-1 Filed 08/01/16 Page 6 of 6 PageID: 144 Case 1:16-cv-01982-JHR-AMD Document 16-2 Filed 08/01/16 Page 1 of 1 PageID: 145