JOANN POWELL v. HUNTERDON CARE CENTER INDEPENDENCE MANOR AT HUNTERDON INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0251-08T20251-08T2

JOANN POWELL,

Plaintiff-Appellant,

v.

HUNTERDON CARE CENTER,

INDEPENDENCE MANOR AT HUNTERDON

INC., JAYNE SANTORA, MARIAN

PANASISECH,

Defendants-Respondents.

___________________________________

 

Submitted May 28, 2009 - Decided

Before Judges Parrillo and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1230-08.

Freeman and Bass, P.A., attorneys for appellant (Randall Bass, on the brief).

Simpkins and Simpkins, L.L.C., attorneys for respondents (Victoria Curtis Bramson and Darryl W. Simpkins, of counsel and on the brief).

PER CURIAM

Plaintiff Joann Powell appeals from the dismissal with prejudice of her wrongful discharge complaint against defendant Hunterdon Care Center, Inc. (defendant or Hunterdon) pursuant to Rule 4:6-2(e). We affirm.

By way of background, at the time of her termination on November 13, 2006, plaintiff, an African-American woman, was an assistant nurse at defendant's nursing care facility in Flemington, where she had been employed for four-and-one-half years. Her younger sister, Katherine Powell, had also been employed at the same facility during this time. On November 9, 2006, plaintiff was counseled by her supervisor for having fifteen unexcused absences from work. Four days later, on November 13, 2006, plaintiff was working at the facility, scheduled for a double shift, when she was notified by a co-worker that Katherine had suddenly became ill while on her way to work in Hunterdon's transport van and had lost consciousness. Plaintiff was initially granted permission from her immediate supervisor to leave work to attend to her sister, but that approval was rescinded by another supervisor who cited plaintiff's history of fifteen unexcused absences from work. The supervisor supposedly asked plaintiff whether this "was what she really wanted to do based on the counseling of November 9, 2006[,]" to which plaintiff responded "it's my sister." The supervisor then asked plaintiff if there were any other family members, and plaintiff explained she had another sister but that she had "to go" to find out what was wrong. The supervisor suggested plaintiff switch shifts; however, plaintiff did not respond. Plaintiff then left work without permission and was subsequently "terminated due to excessive absenteeism."

Plaintiff was later evaluated by psychiatrist Dr. Robert Latimer on December 14, 2006, complaining of severe depression, anger, high blood pressure, dizziness, headaches and back pain. Dr. Latimer diagnosed plaintiff as suffering from: (a) adjustment disorder with anxiety and depression and (b) high blood pressure and obesity, and opined that these conditions "are related to her job at Hunterdon and the way she was fired. She feels 'dehumanized.'"

On February 11, 2008, plaintiff filed a complaint against defendant and several of its named and unnamed managers and agents alleging wrongful termination and intentional and negligent infliction of emotional distress. In lieu of answer, defendant moved to dismiss under Rule 4:6-2(e) for failure of the complaint to plead a cause of action upon which relief could be granted. The motion judge dismissed plaintiff's complaint without prejudice, directing her to amend the complaint and refile within twenty days, reasoning as follows:

Which is that as far as I'm concerned neither the facts nor the law were sufficiently plead in the complaint. The complaint was simply too confusing for the Court to . . . analyze it on a motion to dismiss or determine whether there is a Workmen's Compensation bar.

The plaintiff's statement in the brief that the plaintiff purposely left the complaint vague so as to preserve all possible causes of action, the Court finds is inappropriate and the Court finds that the plaintiff at a minimum has to plead a complaint that is sufficiently comprehensible and specific to allow the defendant an opportunity to file a motion for failure to state a claim. And the Court finds that the claim -- complaint is not now in that shape.

As directed, plaintiff filed an amended complaint on May 27, 2008, alleging that defendant: (1) exercised economic coercion, causing her mental and physical anguish; (2) violated the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42; and (3) tortiously interfered with her "legitimate rescue instincts and humane instincts." Defendant once again moved to dismiss under Rule 4:6-2(e), arguing that with respect to the LAD claim, plaintiff failed to allege that as a member of a protected class, she was treated less favorably than employees not within that class, and that with respect to her tort claim, no such cause of action exists, as there is no legal duty on the part of an employer to provide "quality of life" employment. The motion judge agreed and, on August 6, 2008, dismissed plaintiff's amended complaint, concluding:

Although plaintiff again has established that she satisfied the first ground that she's a member of a protective class as an African American woman, and the third prong, which is that she suffered an adverse employment action, the plaintiff has failed to allege that she was performing her job, and has failed to allege, and has not provided any evidence that she was treated less favorably than other employees in her position, because she's an African American woman. The plaintiff has now had a chance to amend her complaint, and yet these allegations are still missing from it. The Court concludes from this that the plaintiff cannot make that allegation in good faith.

The plaintiff's opposition brief asserts that interference with legitimate rescue instincts, and humane instincts is a tort in the State of New Jersey, and citing to rescue doctrine, and workmen's compensation cases.

. . . .

However, these cases do not even remotely address the issue of firing an employee for leaving work without permission to tend to the needs of a sick relative. In the absence of any case law indicating that Hunterdon Care Center has a duty to permit its employees to leave work to tend to the needs of its relative, the Court declines to create any tort, and grants the plaintiff's motion to dismiss on that ground.

. . . .

Finally, the Court finds absolutely nothing to support that . . . defendant has a legal duty to provide plaintiff with humane employment, quality of life, and family life, and to create such a duty is, first of all, not a matter for the trial court to do, and, second of all, as a matter of public policy has extreme ramifications that are not welcome ones.

Accordingly, the Court finds that the plaintiff's case is dismissed for failure to state a claim again, because . . . defendant has not breached any common law duties to plaintiff, and because plaintiff has failed to establish a prima facie case that she was the victim under the law against discrimination.

On appeal, plaintiff raises the following issues:

I. Case law relied upon by the Motion Judge on August 6, 2008, was improperly applied.

II. Standards for application of R. 4:6-2(e) are more restrictive than the standards for application of R. 4:46 as explained by Judge Pressler's treatise.

III. It is error to prevent the common law from developing to fill the interstices of legislative actions.

We have considered these issues in light of the record and applicable law and deem them of insufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). Accordingly, we affirm substantially for the reasons stated by Judge Davidson in her oral opinion of August 6, 2008. We add, however, only the following comments.

The test for determining the adequacy of a pleading is whether a cause of action is "suggested" by the facts. Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989) (citing Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)). Where a party fails to state a claim upon which relief may be granted, the opposing party may move for dismissal of the complaint. R. 4:6-2(e). Our review of a motion to dismiss for failure to state a cause of action under R. 4:6-2(e) is governed by the same standard as that applied by the trial court. Donato v. Moldow, 374 N.J. Super. 475, 483 (App. Div. 2005) (citing Seidenberg v. Summit Bank, 348 N.J. Super. 243, 250 (App. Div. 2002)). Therefore, we consider and accept, as true, the facts alleged in plaintiff's complaint, to ascertain whether they set forth a claim against defendants upon which relief may be granted. Donato, supra, 374 N.J. Super. at 483.

In reviewing a complaint dismissed under R. 4:6-2(e), the court's inquiry is limited to "examining the legal sufficiency of the facts alleged on the face of the complaint." Printing Mart-Morristown, supra, 116 N.J. at 746 (citing Rieder v. Dep't of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987)). At this preliminary stage of the litigation, the court is not concerned with the ability of plaintiffs to prove the allegation contained in the complaint. Printing Mart-Morristown, supra, 116 N.J. at 746 (citing Somers Constr. Co. v. Board of Educ., 198 F. Supp. 732, 734 (D.N.J. 1961)). The reviewing court must search, in depth, and with liberality, to determine if a cause of action can be gleaned even from an obscure statement, particularly if further discovery is taken. Printing Mart-Morristown, supra, 116 N.J. at 746; see also Di Cristofaro v. Laurel Grove Memorial Park, 43 N.J. Super. 244, 252 (App. Div. 1957). In this regard, plaintiffs are entitled to every reasonable inference of fact. Printing Mart-Morristown, supra, 116 N.J. at 746 (citing Independent Dairy Workers Union v. Milk Drivers Local 680, 23 N.J. 85, 89 (1956)). Examination of a complaint's allegations of fact "should be one that is at once painstaking and undertaken with a generous and hospitable approach." Printing Mart-Morristown, supra, 116 N.J. at 746 (emphasis added).

Where, however, it is clear that the complaint states no basis for relief and that discovery would not provide one, dismissal of the complaint is appropriate. Pressler, Comment 4.1.1 to R. 4:6-2(e), Rules Governing the Courts of the State of New Jersey, 1302 (2009); Energy Rec. v. Dep't of Env. Prot., 320 N.J. Super. 59, 64 (App. Div. 1999), aff'd o.b. 170 N.J. 246 (2001); Holmin v. TRW, Inc. 330 N.J. Super. 30, 32 (App. Div. 2000), aff'd o.b. 167 N.J. 205 (2001); Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div. 2005) ("a court must dismiss the plaintiff's complaint if it has failed to articulate a legal basis entitling plaintiff to relief").

Here, plaintiff has failed to articulate a legal basis for her tort claim and her statutory (LAD) race discrimination claim is simply not suggested by her own pleading. As to the latter, the elements comprising the traditional formulation of the prima facie case for discrimination are that: (1) plaintiff belongs to a protected class; (2) she was performing her job at a level that met her employer's legitimate expectations; (3) she suffered an adverse employment action; and (4) others not within the protected class did not suffer similar adverse employment actions. See Maher v. N.J. Transit R.O., Inc., 125 N.J. 455, 480-81 (1991); Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363, 382 (1988); El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 167 (App. Div. 2005). In the present case, the motion judge concluded that because plaintiff's record of unexcused absences was undisputed, she could not claim - much less demonstrate - part two of the prima facie case, that is, that her job performance met the employer's legitimate or reasonable expectations. Furthermore, as the motion judge also found, plaintiff's complaint failed to articulate either that racial discrimination was more likely than not a motivating or determinative cause for her termination or that others not within her protected class did not suffer similar adverse employment actions. We agree that plaintiff's complaint, read most indulgently, states no basis for relief under LAD.

We make one final observation. Although not raised as error either below or on appeal, the court initially dismissed without prejudice plaintiff's original wrongful discharge claim that was never resurrected in her amended complaint. We find this action by the motion judge appropriate, as well.

Wrongful discharge is, in fact, a cognizable cause of action under New Jersey law. An employee in New Jersey has a cause of action for wrongful discharge "when the discharge is contrary to a clear mandate of public policy." Pierce v. Ortho Pharm. Corp., 84 N.J. 58, 72 (1980); accord Lawrence v. Nat'l Westminster Bank N.J., 98 F.3d 61, 73 (3d Cir. 1996). The sources of public policy to support a wrongful discharge in violation of public policy include legislation; administrative rules, regulations or decisions; and judicial decisions. Hennessy v. Coastal Eagle Point Oil Co., 129 N.J. 81 (1992); see also Mehlman v. Mobil Oil Corp., 153 N.J. 163, 187 (1998) ("[p]ublic policy is not concerned with minutiae, but with principles").

Here, plaintiff has alleged no statutory, common law or other public policy that her discharge supposedly violated. Indeed, neither state nor federal law - the New Jersey Family Leave Act, N.J.S.A. 34:11B-1 to -16; the Family and Medical Leave Act (FMLA), 29 U.S.C. 2601 to 2654 - provides the statutory "public policy" source needed to support plaintiff's original wrongful discharge claim.

In order to succeed on a cause of action under the New Jersey Family Leave Act alleging adverse employment action, a plaintiff must prove: (1) plaintiff was employed by defendant; (2) plaintiff was performing satisfactorily; (3) a qualifying member of plaintiff's family was seriously injured; (4) plaintiff took or sought to take leave from his employment to care for his injured relative; and (5) plaintiff suffered an adverse employment action as a result. DePalma v. Bldg. Inspection Underwriters, 350 N.J. Super. 195 (App. Div. 2002). A qualifying "family member" is defined as a child, parent, spouse, or partner in a civil union couple. N.J.S.A. 34:11B-3. Moreover, the injured family member must be (1) in inpatient care in a hospital, hospice, or residential medical care facility; or (2) undergoing continuing medical treatment or continuing supervision by a health care provider. Ibid. Notably, for present purposes, a qualifying family member does not include a sibling. Similarly, New Jersey's federal counterpart, the FMLA, also excludes siblings, allowing employees to take leave only to care for a son or daughter, spouse, parent or service member who is the employee's next of kin. 29 U.S.C. 2612. Thus, denying plaintiff in this instance leave to care for her ill sister violated no "clear mandate of public policy[,]" Pierce, supra, 84 N.J. at 72, as enunciated in either state or federal law. As such, plaintiff's original claim was properly dismissed as failing to state a cognizable cause of action for wrongful discharge grounded in any violation of the public policy principles of this State.

Affirmed.

 

Katherine, who had suffered a stroke, subsequently died on November 15, 2006.

(continued)

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A-0251-08T2

June 25, 2009