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Devine v. Apollo Health Street

April 26, 2010


The opinion of the court was delivered by: Jones II, J.


This matter arises out of a series of incidents that occurred during the course of Plaintiff Mary Devine's ("Ms. Devine" or "Plaintiff") employment by Defendant Apollo Health Street, Inc. ("Apollo" or "Defendant"), which allegedly resulted in the discriminatory gender-based termination of Ms. Devine. Plaintiff brings claims for wrongful termination and sexual harassment pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Counts I and II, respectively), the Pennsylvania Human Relations Act, 43 P.S. § 951 et. seq. ("PHRA") (Count III) and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. ("NJLAD") (Count IV), as well as state law claims for breach of contract and breach of covenant of good faith and fair dealing (Counts V and VI)*fn1 . Presently before the Court is Defendant's Motion to Dismiss Count IV of the Complaint (Dkt. No. 2) and supporting Memorandum of Law (Dkt. No. 3) ("Def. Mem."), Plaintiff's Opposition thereto (Dkt. No. 5) ("Pl. Opp."), and Defendant's Reply (Dkt. No. 8) ("Def. Reply"). Having carefully considered the arguments advanced by counsel, the Court will grant the Motion to Dismiss for the reasons set forth below.*fn2


In deciding a motion to dismiss pursuant to Rule 12(b)(6), courts must "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." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotation and citation omitted). After the Supreme Court's decision in Bell Atl. Corp. v. Twombly, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. 544, 555 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556). This standard, which applies to all civil cases, "asks for more than a sheer possibility that a defendant has acted unlawfully." Id. See also Fowler v. UPMC Shadyside, 578 F.3d 203, 210-211 (3d Cir. 2009) ("All civil complaints must contain more than an unadorned, the-defendant-unlawfully-harmed-me accusation.") (internal quotation omitted).


Ms. Devine is a female citizen of New Jersey. (Compl. ¶ 1.) Apollo is a corporation engaged in the business of providing financial and administrative services to hospitals and medical practices across the United States, and maintains places of business in both Pennsylvania and New Jersey. (Compl. ¶ 2.) Ms. Devine was employed by Apollo from June 2006 to May 2008 as its Vice-President of Operations at Defendant's facility in Conshohocken, Pennsylvania. (Compl. ¶¶ 2, 11.) In October 2007, Plaintiff began to report to William Colgan, Senior Vice-President of Provider Solutions, who in turn reported to Andrew Devoe, chief executive officer. (Compl. ¶ 19.) Colgan and Devoe were based in Defendant's Bloomfield, New Jersey office. (Compl. ¶ 20.)

Beginning in October 2007, Plaintiff was excluded from operations meetings where the attendees were exclusively male; had her customer relations responsibilities transferred to a less experienced male employee; was refused permission to fill approved staff openings necessary for proper client service; and had two new clients transferred to other employees. (Compl. ¶ 22.) Both Devoe and Colgan made repeated remarks that were chauvinistic, demeaning and insulting to female employees. (Compl. ¶ 23.) On one occasion, after Plaintiff exited the coffee room at Defendant's Pennsylvania facility, Colgan was overheard saying to Devoe, "You know women should be at home. I would never let my wife work." (Compl. ¶ 27.) Devoe agreed. (Id.)

In April 2008, Colgan advised Plaintiff that he needed to make a change and that Plaintiff's position would be "phased out" in May 2008. (Compl. ¶ 28.) Shortly thereafter, Plaintiff was terminated and replaced with a less experienced and less qualified male employee. (Compl. ¶ 2.)


In Count IV, Plaintiff asserts a claim under the NJLAD. The NJLAD, in relevant part, prohibits private employers from discriminating against or harassing employees based upon gender. See N.J.S.A. 10:5-1 et seq. While employed by Apollo, Plaintiff lived in New Jersey but worked in Apollo's Pennsylvania office. Defendant moves to dismiss Plaintiff's NJLAD claim on the grounds that only the "law of the state of plaintiff's employment--where the employment-related activities occurred--[apply] to claims of workplace discrimination." Def. Mem. at 4. Plaintiff maintains that the NJLAD "affords a cause of action to a New Jersey resident who claims discrimination based on acts by her superiors in New Jersey, the effects of which were felt, at least in part, with respect to job duties performed in New Jersey" (emphasis added). Pl. Opp. at 1.

A. The Applicability of NJLAD

Despite Plaintiff's contentions to the contrary, courts in this Circuit "have consistently applied the law of the state of employment to claims of workplace discrimination, and therefore only apply the NJLAD if the claimant was employed in New Jersey." Weinberg v. Interep Corp., Civil No. 05-5458 (JBS), 2006 WL 1096908, at *6 (D.N.J. April 26, 2006). If a plaintiff's place of employment is Pennsylvania, she cannot avail herself of the NJLAD's protections--regardless of whether she is a New Jersey resident or even works from and travels to New Jersey.

As Defendant notes in its Motion, Peikin v. Kimmel & Silverman, P.C., 576 F. Supp. 2d 654 (D.N.J. 2008) provides perhaps the most instructive explanation of the Third Circuit's position on this question. In Peikin, the defendant maintained offices in both New Jersey and Pennsylvania during the relevant time period. The plaintiff in that case was a Pennsylvania resident hired as an associate attorney at the defendant's Ambler, Pennsylvania office, where she worked until she was terminated. The plaintiff alleged that while she was based out of Pennsylvania, approximately 90% of her work took place in New Jersey, concerned New Jersey-based clients and cases, and required her to work four out of five days per week in New Jersey.

The Peikin court explicitly asked if "New Jersey's antidiscrimination laws protect a Pennsylvania resident employed by a Pennsylvania professional corporation from discriminatory acts allegedly undertaken in Pennsylvania, if, over the course of her employment, the employee conducted business in New Jersey." Id. at 657. The question, according to the District of New Jersey, "must be answered in the negative." Id. The court went on to find the plaintiff was based out of Pennsylvania, "notwithstanding the fact that she worked on cases for New Jersey clients and frequently traveled to New Jersey." Id. at 658. All discriminatory acts alleged took place in the Pennsylvania office. After she was terminated, Plaintiff filed a charge with the Pennsylvania Human Relations Commission ("PHRC") and ...

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