BLADES v. BURLINGTON COUNTY JAIL

JEROME SIMANDLE, District Judge

This matter comes before the Court upon Defendant's motion to dismiss Plaintiff Robert Blades's ("Plaintiff" or "Blades") Complaint pursuant to Fed.R.Civ.P. 12(b)(4), (5) and (6) for insufficiency of process, insufficiency of service of process and failure to state a claim upon which relief can be granted. Plaintiff also makes a cross-motion for leave to file a third amended complaint pursuant to Fed.R.Civ.P. 15(a).

Plaintiff was previously employed with the Burlington County Corrections Department ("BCCD"). Plaintiff's first claim, that he suffered discrimination at the county jail because of his disability, arises under Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112. His second claim, that he was sanctioned and wrongfully terminated by the BCCD in retaliation for his efforts to seek reasonable accommodations towards his disability, is brought under Title V, sec. 503 of the ADA, 42 U.S.C. § 12203. Blades raises additional claims for discrimination and retaliation under the New Jersey Law Against Discrimination ("NJLAD"), N.J.S. 10:5-13, the New Jersey Tort Claims Act ("NJTCA"), N.J.S. 59:1-1et seq., the New Jersey Conscientious Employee Protection Act ("CEPA"), N.J.S. 34:10-1, the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2917, and Title VII of the Civil Rights Act, 42 U.S.C.A. § 2000e et. seq. For the reasons herein, Defendant's motion to dismiss will be granted in part and denied in part while Plaintiff's motion to amend his Complaint will be denied.

BACKGROUND

Plaintiff Robert Blades was a corrections officer with the BCCD at the Burlington County Jail from January 18, 1994, to April 10, 2000. Plaintiff sustained back injuries while working and requested four weeks of light duty beginning on May 5, 1997. (Pl's. Br. in Opp'n to Defs.' Mot. to Dismiss ¶ 2.) This request was granted. Light duty consisted of desk work in lieu of the normal, more physical tasks required of a full duty corrections officer. At the end of the four week period, Plaintiff attempted to have his light duties extended for two more months. (Id. ¶ 6.) This request was only partially granted for two more weeks, however, as Plaintiff's superiors informed him that their policy was to grant a maximum of six weeks light duty. (Defs.' Mot. to Dismiss ¶ 6-9.) Defendants claim that this policy was instituted to balance the interests of employees and managers. (Id. ¶ 29-30.) They told Blades that he had to return to full duty or take an unpaid medical leave if his medical problems persisted. (Id. ¶ 10.) Defendants assert that this demand was made to ensure that Plaintiff could fulfill the essential functions of his job while he was on duty. (Id. ¶ 31-32.) Blades claims that the BCCD has accommodated other officers' long-term light duty requests in the past. (Pl's. Br. in Opp'n to Defs.' Mot. to Dismiss ¶ 24.) Blades' union also filed a grievance over the denial of light duty, which was subsequently denied by an arbitrator on March 5, 1998. (Defs.' Mot. to Dismiss ¶ 18.)

Plaintiff claims that he was sanctioned with a fifteen day suspension in February of 1998 for taking twelve weeks of medical leave. He alleges that his superiors purposely mishandled his request form to make it show he was only requesting four weeks of leave when he actually asked for twelve weeks, so that it appeared that he was absent for eight weeks without permission. (Pl's. Br. in Opp'n to Defs.' Mot. to Dismiss ¶ 17-18, 27.) Plaintiff was also suspended from duty for twenty days in March of 1998 for disobeying a direct order. An administrative law judge ruled on both charges and decided that while the twenty day suspension was valid, the fifteen day suspension was invalid because his superiors had violated the FMLA by failing to grant him the twelve weeks medical leave mandated by the Act. (Cole Aff., Ex. M.)

The BCCD served a Preliminary Notice of Disciplinary Action ("PDNA") on the Plaintiff on March 2, 1999, charging him with violations of departmental policy and procedure, incompetency and insubordination. (Cole Aff., Ex. N.) A second PDNA was served on Blades on November 17, 1999, charging him with resignation not in good standing for a failure to report to duty. (Cole Aff., Ex. O.) While these two charges were in the process of administrative appeal, Plaintiff left the country for family reasons from December 20, 1999, to March 8, 2000, without requesting leave from the BCCD. Plaintiff was terminated by mail on April 6, 2000, and in person on April 10, 2000, because of this extended absence. Plaintiff appealed the first PDNA and his termination to the highest level of administrative appeal, where the Merit System Board decided that the PDNA sanction was valid but reversed the termination in favor of a six month suspension.

Plaintiff filed a claim of disability discrimination with the office of Public Employees Occupational Safety and Health ("PEOSH"). PEOSH went to the jail for an on-site investigation, but determined that there was no evidence of discrimination. (Id. ¶ 19-20.) On July 14, 1997, Plaintiff filed a disabilities discrimination complaint with the New Jersey Division of Civil Rights ("NJDCR"). (Pl's. Br. in Opp'n to Defs.' Mot. to Dismiss ¶ 19.) This complaint was forwarded to the Defendants on January 20, 1998. (Id. ¶ 23.) On June 17, 1997, Plaintiff alleges that one of his superiors called him a racial slur. Plaintiff amended his complaint to include race discrimination in August of 1999. On April 10, 2000, Blades was verbally terminated by his supervisor. Plaintiff filed another amended complaint on June 21, 2000, alleging that he was wrongfully terminated. Blades later initiated his federal claim with the EEOC before the NJDCR had ruled on his state claim. The state complaint was dropped by the NJDCR on September 21, 2002, because of the commencement of his federal suit. (Id. ¶ 71.)

Plaintiff claims he was assaulted by his superiors on two separate occasions: January 26, 1998, and April 30, 1998. Plaintiff alleges that the first instance of assault was committed in retaliation for his complaining about the safety and health of his workplace. (Id. ¶ 24.)

On August 16, 2002, Robert Blades filed a complaint alleging disabilities discrimination under Title I of the ADA, 42 U.S.C. § 12112, (Id. at 22.), and a retaliation claim under Title V, sec. 503 of the ADA, 42 U.S.C. § 12203. In addition, Blades filed a race discrimination and wrongful termination claim under Title VII of the Civil Rights Act of 1964. Blades has also made: 1) a tort claim under the NJTCA; 2) discrimination claims under the NJLAD and the NJ CEPA; and 3) an FMLA violation claim.

DISCUSSION

I. Jurisdiction

District courts have subject matter jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. As Plaintiff raises claims under 42 U.S.C. 12101 et seq. (ADA), 29 U.S.C. § 2601 et seq. (FLMA), and 42 U.S.C. § 2000 et seq. (Civil Rights Act of 1964), the "federal question" requirement is satisfied. Merit v. S.E. Pennsylvania Transit Auth., 276 F. Supp. 2d 382, 385 (E.D. Pa. 2003). This Court also has supplemental jurisdiction over Plaintiff's state law claims pursuant to 28 U.S.C. § 1367. See Rinehimer v. Cemcolift, Inc., 292 F.3d 375 (3d Cir. 2002) (holding that supplemental jurisdiction exists for state claims brought together with an ADA claim). Thus, Plaintiff's Complaint will be considered at this time.

II. Standard of Review

Under a Rule 12(b)(6) motion, this Court is "required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn from them after construing them in the light most favorable to the non-movant." Jordan v. Fox, 20 F. 3d 1250, 1261 (3d Cir. 1994). The presiding court should look "only to the facts alleged in the complaint and its attachments without reference to other parts of the record." Id. at 1261. A Court should not dismiss a complaint "unless it clearly appears that no relief can be granted under any set of facts that could be proved consistently with the plaintiff's allegations." Id. at 1261. But, "a pro se complaint must be liberally construed and held to a less stringent standard than formal pleadings drafted by an attorney." Merit, 276 F. Supp. 2d at 385. See also Estelle v. Gamble, 429 U.S. 97, 106 (1976).

III. Motion to Dismiss for Failure to State a Claim Upon Which Relief Can be Granted

Defendants argue that Plaintiff's ADA claims should be dismissed for failure to state a claim upon which relief can be granted because Plaintiff does not satisfy the prima facie requirements of his discrimination claim under Title I of the ADA, 42 U.S.C. § 12112, and his retaliation claim under Title V, sec. 503 of the ADA, 42 U.S.C. § 12203.

A. Plaintiff's Status Under the ADA, 42 U.S.C. § 12111(8)

Defendants contend that Plaintiff is not a "qualified individual with a disability" as defined under 42 U.S.C. § 12111(8). In order "to make out a prima facie case under the ADA, a plaintiff must establish that s/he (1) has a `disability,' (2) is a `qualified individual,' and (3) has suffered an `adverse employment decision' as a result of that disability." Skerski v. Time Warner Cable Co., 257 F.3d 273, 278 (3d Cir. 2001) (quotingDeane v. Pocono Med. Ctr., 142 F.3d 138, 142 (3d Cir. 1998) (en banc)).

Defendants do not deny, for the purposes of a prima facie claim under the ADA, that Plaintiff is disabled. Nor do Defendants raise the issue of whether there was an adverse employment decision. Instead, Defendants challenge whether Robert Blades is a "qualified individual with a disability." Id. at 278. A qualified individual must meet two requirements: first, whether the individual "satisfies the requisite skill, experience, education and other job-related requirements of the employment position," Deane, 142 F.3d at 145; and second, whether the individual can perform the "essential functions" of the position "with or without reasonable accommodations." Id.

Defendants claim that Plaintiff cannot satisfy the second requirement. The regulations in 29 C.F.R. § 1630.2(n)(2) provide a list of factors used in determining whether a particular function is a "fundamental" rather than "marginal" aspect of a job. See Skerski 257 F.3d at 279 (listing (1) whether the performance of the function is the reason the position exists; (2) whether there are a limited number of employees available among whom the performance of that function can be distributed; and (3) whether the function is highly specialized so that the incumbent in the position is hired for his or her expertise). Federal regulations provide further, non-exhaustive examples of evidence that can assist a court in identifying the "essential functions" of a position:

i) The employer's judgment as to which functions are essential;

ii) Written job descriptions prepared before advertising or interviewing applicants for the job;

iii) The amount of time spent on the job performing the function;

iv) The consequences of not requiring the incumbent to perform the function;

v) The terms of a collective bargaining agreement;

vi) The work experience of past incumbents in the jobs; and/or

vii) The current work experience of incumbents in similar jobs.

29 C.F.R. § 1630.2(n)(3).

Defendants correctly point out that the Third Circuit has yet to rule directly on the issue of who is a qualified individual with regards to employment in correctional facilities. Defendants cite to several appellate court decisions that have given correctional institutions considerable leeway in defining the essential functions of a job and providing justifications for those requirements. See, e.g., Hoskins v. Oakland County Sheriff's Dep't, 227 F.3d 719, 727 (6th Cir. 2000) (holding that even though a prison guard's function of physically restraining an inmate was an infrequent occurrence, the consequences of failing at the function made it an essential function of the job); Miller v. Illinois Dep't of Corrections, 107 F.3d 483, 485 (7th Cir. 1997) (denying a blind claimant's ADA suit where the court decided she jeopardized the security of the prison because could not fulfill the essential physical functions of her job); Allison v. Dep't of Corrections, 94 F.3d 494, 498 (8th Cir. 1996) (denying a claimant's ADA complaint against a correctional facility because she could not fulfill the essential job function of restraining an inmate).

Plaintiff claims that he has medical problems warranting his placement on light duty instead of full duty. Despite this physical inability to serve on full duty, he believes he is still a qualified individual with a disability capable of performing the essential functions of his job. Defendants argue that the position of corrections officer requires active physical duty along the lines of rapidly responding to prison emergencies and physically restraining inmates. (Cole Aff., Ex. E.) Both the job description and Plaintiff's superiors categorize these responsibilities as essential functions of a corrections officer. (Cole Aff. at ¶ 15.) They believe that Plaintiff's claimed physical disability clearly prevents him from fulfilling those essential functions. (Cole Aff., Ex. B.)

The record tends to support Defendants' analysis. Plaintiff cannot claim that he is capable of fulfilling the essential functions of his job and also claim that he can only work on a light duty assignment because of his disability. The two positions are mutually exclusive. The record shows that an employee is only given a temporary light duty assignment when he is incapable of performing the essential functions of a corrections officer for a short period of time. In this instance, demanding a permanent light duty assignment is akin to claiming that one is permanently incapable of performing the essential duties and functions of a corrections officer. The ADA does not compel this degree of permanent accommodation by reassignment to fundamentally different duties.

Certain physical tasks such as restraining prisoners and responding to prison emergencies are essential and fundamental functions of the job that Plaintiff seeks, and the inability to perform these duties is dispositive of his claim that he is a "qualified individual with a disability". Skerski, 257 F.3d at 278. Based on the claims alleged in Plaintiff's pleadings, he can prove no set of facts sufficient to satisfy the second element of a prima facie case of discrimination under the ADA.

B. Defendants' Reasonable Accommodations

Defendants claim that even though Plaintiff is not a qualified individual with a disability, they attempted to reasonably accommodate him by granting him 6 weeks of light duty. In addition, they allowed him to take an unpaid medical leave. After accepting all of Plaintiff's allegations as true for the purposes of the present motion to dismiss, the question before this Court is whether 6 weeks of light duty and an unpaid medical leave are sufficient to constitute reasonable accommodations.

Under the ADA, "both parties have a duty to assist in the search for an appropriate reasonable accommodation and to act in good faith." Buskirk v. Apollo Metals, 307 F.3d 160, 169 (3d Cir. 2002). But there are limits to how far an employer is obligated to go in order to accommodate a disabled employee. "An employer is not required to provide a reasonable accommodation if it would impose an `undue hardship,' if it would pose a `direct threat' to the safety of the employee or others, or if to do so would conflict with seniority rules." Id. at 168 (quoting 29 C.F.R. § 1630 et seq.; US Airways, Inc. v. Barnett, 535 U.S. 391, 122 (2002)). "[E]ven minor infringements on other employees' seniority rights impose unreasonable burdens on employers who . . . must face the consequences of violating the collective bargaining agreement." Kralik v. Durbin, 130 F.3d 76, 83 (3d Cir. 1997).

This language has been interpreted by the Third Circuit to mean that the ADA "does not require an employer to create a new position to accommodate an employee with a disability."Buskirk, 307 F.3d at 169. Nor is an employer required to "transform a temporary light duty position into a permanent position." Id. at 169. Furthermore, reasonable accommodations under the ADA have no temporal requirement, meaning that accommodations can be applied at the present even if the employee can only "perform his essential job functions in the near future." Conoshenti v. Public Service Elec. Gas Co, 364 F.3d 135, 150 (3d Cir. 2004).

In the instant case, the evidence shows that Defendants have provided Plaintiff with reasonable accommodations for his disability. Defendants granted Plaintiff 6 weeks of light duty even though he was not able to perform the essential functions of his job at the time he injured his back. Defendants' policy of granting only 6 weeks of light duty is clearly reasonable given the prison's security and seniority concerns. (Cole Aff. at ¶ 16-19, Ex. A.) In addition, the BCCD was under no legal obligation to extend Plaintiff's temporary light duty position indefinitely or to create a new light duty position specifically to accommodate the Plaintiff. See Buskirk, 307 F.3d at 169. Even giving every favorable factual inference to Plaintiff by assuming his allegations are true, the Court finds that Plaintiff's demand for a permanent light duty assignment is unreasonable because it would place "undue hardship" upon the prison, "pose a direct threat to the safety of the employee or others," and "conflict with seniority rules." Id. at 168.

Thus, Plaintiff fails to satisfy as a matter of law the second element of a prima facie case under the ADA because he can prove no set of facts in support of his claim that Defendants failed to provide him with reasonable accommodations for his disability.

C. Plaintiff's Retaliation Claim Under the ADA

Defendants argue that Plaintiff's retaliation claim fails for three reasons: 1) Plaintiff cannot establish a prima facie case of retaliation under 42 U.S.C. § 12203; 2) Plaintiff failed to exhaust administrative remedies with regards to his termination; and 3) part of Plaintiff's retaliation claim is barred by the principles of res judicata.

1. Plaintiff's Prima Facie Case for Retaliation

In order to establish a prima facie case of retaliation under the ADA, a plaintiff must show: "(1) protected employee activity; (2) adverse action by the employer either after or contemporaneous with the employee's protected activity; and (3) a causal connection between the employee's protected activity and the employer's adverse action."Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 187 (3d Cir. 2003). Formal complaints are not "the only acceptable indicia of the requisite `protected conduct.'" Abramson v. William Paterson Coll. of New Jersey, 260 F.3d 265, 288 (3d Cir. 2001) (quoting Barber v. CSX Distrib. Servs., 68 F.3d 694, 701-02 (3d Cir. 1995)). Protected activity can also include "informal protests of discriminatory employment practices, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry or society in general, and expressing support of co-workers who have filed formal charges." Id.

Defendants argue that before Plaintiff can proceed with his claim, "[a] basic requirement to establish a prima facie case of retaliation is that the employer must be aware of the employee's statutorily protected expression before the adverse action is taken against the employee." Hamner v. Cmty. Hosp. of Indiana, Inc., 92 F. Supp. 2d 803, 806-07 (S.D. Ind. 2000). The Third Circuit has recognized this line of reasoning. See McGorrian v. E.M.S.A., 85 Fed. Appx. 1 (3d Cir. 2001) (upholding a dismissal where the defendants did not know of the plaintiff's protected activity at the time they took action).

Defendants allege that they were unaware that Plaintiff had filed a complaint with the NJDCR until January 20, 1998, and that all sanctions administered prior to that point were undertaken without the knowledge that Plaintiff had engaged in statutorily protected behavior. Defendants claim that Plaintiff's retaliation claim must fail because they were unaware of Plaintiff's protected activity when they acted.

This argument would be valid if Plaintiff's Complaint with the NJDCR was his only statutorily protected action. However, Plaintiff complained of discrimination to his superiors and filed a grievance with his union right after his petition for permanent light duty was denied. (Defs.' Mot. to Dismiss ¶ 18.) These informal protests also count as statutorily protected activities and occurred well before Plaintiff was sanctioned by his superiors. See Abramson, 260 F.3d at 288. Furthermore, the record clearly shows that Defendants were aware of Plaintiff's attempts at informal statutorily protected activity. (Cole Aff. at ¶ 12.) Thus, Plaintiff's prima facie retaliation claim can proceed because Defendants were aware that Plaintiff had engaged in protected activity before any alleged adverse action took place.

2. Failure to Exhaust Administrative Remedies

Defendants contend that Plaintiff has not exhausted his available administrative remedies with regards to his retaliation claim. The normal administrative requirements for a Title V, 42 U.S.C. § 12203, retaliation claim follow the exhaustion guidelines outlined in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e)(5). See 42. U.S.C. § 12203(c) (citing to 42 U.S.C. § 12117(a) and then 42 U.S.C. 2000(e) for the proper remedies and procedures to be set forth in retaliation claims). In passing 42 U.S.C. § 12117(a), Congress "engrafted onto the ADA the full panoply of `procedures' described in section 2000e of Title VII, and decreed that those procedures `shall be' applicable to proceedings under . . . the ADA." Bonilla v. Muebles J.J. Alvarez, Inc., 194 F.3d 275, 278 (1st Cir. 1999) (quoting 42 U.S.C. § 12117(a)).

"Title VII requires plaintiffs to exhaust the administrative process prior to bringing suit." Freed v. Consolidated Rail Corp., 201 F.3d 188, 191 (3d Cir. 2000). Accordingly, Title VII "requires an aggrieved party to file, within 180 days of the alleged discriminatory practice, a charge with the EEOC and receive a `right to sue' letter before bringing an action against `the respondent named in the charge.'" Bishop v. Okidata, Inc., 864 F. Supp. 416, 424 (D.N.J. 1994) (quoting 42 U.S.C. § 2000(e)(5)).

If, after 180 days, the EEOC has not resolved the charge, it must notify the complainant . . . through the issuance of a "right-to-sue" letter, in which the EEOC states that it sees no reason to take action on the complaint. See Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir. 1984). After 180 days, the complainant on his own may also request a right-to-sue letter. The EEOC must issue the letter promptly on request. See 29 C.F.R. § 1601.28(a)(1). The receipt of the right-to-sue letter indicates that a complainant has exhausted administrative remedies, an essential element for bringing a claim in court under Title VII.

Burgh v. Borough Council of Borough of Montrose, 251 F.3d 465, 470 (3d Cir. 2001). The record shows that Plaintiff fulfilled these guidelines, (Pl's. Comp., Letter from the EEOC), and that he obtained a right-to-sue letter from the EEOC.

However, these exhaustion guidelines are not the basis for Defendants' claim. Instead, Defendants' actual argument is that Plaintiff failed to file an appeal of his termination in accordance with his union's collective bargaining agreement ("CBA"). Defendants believe that Plaintiff cannot proceed with his federal claim without having first fully arbitrated his claim. (Defs.' Mot. to Dismiss, 25.) This is an argument, separate from the principles of administrative exhaustion, that highlights the tension between two Supreme Court decisions covering the enforceability of arbitration agreements in employment discrimination cases. In Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), an employee filed a Title VII discrimination claim even though he was employed under a CBA calling for the mandatory arbitration of all claims. The defendants argued that the plaintiff had already waived his right to sue under the terms of the CBA. The Supreme Court disagreed, holding that the CBA only mandated compulsory arbitration for contractual claims, not statutory ones:

In submitting his grievance to arbitration, an employee seeks to vindicate his contractual right under a collective-bargaining agreement. By contrast, in filing a lawsuit under Title VII, an employee asserts independent statutory rights accorded by Congress. The distinctly separate nature of these contractual and statutory rights is not vitiated merely because both were violated as a result of the same factual occurrence.

Alexander, 415 U.S. at 49-50.

In Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), the Supreme Court faced a similar suit brought under the Age Discrimination in Employment Act. In Gilmer, the plaintiff had agreed to submit to compulsory arbitration on all grievances when he registered to work with several stock exchanges. However, he failed to follow this agreement when he filed his age discrimination claim in federal court. The Supreme Court ruled against the plaintiff, holding that "having made the bargain to arbitrate, the [plaintiff] should be held to it unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue." Gilmer, 500 U.S. at 26. The Court noted that Gilmer was different from theAlexander line of cases in that the latter "did not involve the issue of the enforceability of an agreement to arbitrate statutory claims." Id. at 35.

In further distinguishing Alexander from Gilmer, the Court listed several factors for use in determining whether a mandatory employment arbitration agreement is enforceable. First, the Court looked to whether the claimant had individually agreed to arbitrate his statutory claims or whether the arbitration agreement was part of a CBA. Second, the Court considered whether the claimant was represented by his union in the arbitration, and if "the interests of the individual employee may [have been] subordinated to the collective interests of all employees in the bargaining unit." Gilmer, 500 U.S. at 34 (1991). The final factor used in the determination was whether the statute underlying the claim had a "liberal federal policy favoring arbitration agreements." Gilmer, 500 U.S. at 35.

Most courts of appeals have held that a mandatory arbitration clause in the context of a CBA does not bar an individual from litigating a Title VII claim. See, e.g., Johnson v. Bodine Elec. Co., 142 F.3d 363, 366 (7th Cir. 1998); Harrison v. Eddy Potash, Inc., 112 F.3d 1437, 1453 (10th Cir. 1998); Penny v. United Parcel Serv., 128 F.3d 408, 414 (6th Cir. 1997);Brisentine v. Stone Webster Eng'g Corp., 117 F.3d 519, 526 (11th Cir. 1997); Varner v. National Super Markets, Inc., 94 F.3d 1209, 1213 (8th Cir. 1996); Tran v. Tran, 54 F.3d 115, 117 (2d Cir. 1995). While the Third Circuit has yet to rule on this issue, the Supreme Court has applied this line of reasoning to an ADA case and held that even where a mandatory arbitration clause in the context of a CBA could be enforceable, it would only be enforced in disputes involving statutory claims if it contained a "clear and unmistakable waiver of the covered employees' rights to a judicial forum for federal claims of employment discrimination." Wright v. Universal Maritime Service Co., 525 U.S. 70, 82 (1998).

A divided Third Circuit originally agreed with a Fourth Circuit ruling that a CBA arbitration clause can bar an individual worker's statutory claim, but that decision was later vacated. See Martin v. Dana Corp., 114 F.3d 421 (3d Cir. 1997), vacated and rehearing en banc granted, 114 F.3d 428 (3d Cir. 1997). The en banc court referred the case back to the original panel to determine whether Martin could initiate arbitration on his own under the CBA. Finding that Martin could not, the panel reversed itself and ruled that the CBA did not bar Martin's suit. See Martin v. Dana Corp., 135 F.3d 765 (3d Cir. 1997) (unpublished order). The panel's later decision did not address the question whether a CBA grievance provision could ever bar a worker from bringing a Title VII claim in court.

The instant case more closely resembles Alexander thanGilmer. While Plaintiff's retaliation claim arises under the ADA, which does have a section encouraging arbitration and other means of alternative dispute resolution, see 42 U.S.C. § 12212, other factors weigh more heavily in favor of Alexander. First, the mandatory arbitration clause is part of a CBA and not an individual agreement between the Plaintiff and the Defendants. Second, Plaintiff pursued his grievance through his union and was represented by a union attorney during the arbitration. This occurrence creates a possibility of "the interests of the individual employee [being] subordinated to the collective interests of all employees in the bargaining unit." Gilmer, 500 U.S. at 34. Finally, the language of the arbitration agreement itself provides no clear and unmistakable waiver of Plaintiff's individual statutory rights. (Cole Aff., Ex. 9, art. xxi.) For these reasons, he should not be barred from pursuing his Title V retaliation claim due to any failure to fully arbitrate his claim.

3. Res Judicata

Defendants argue that one aspect of Plaintiff's retaliation claim is barred by the principles of res judicata because an arbitrator already ruled in favor of the BCCD over the sanction of March 2, 1999. A res judicata defense can be raised by a pre-answer motion or by an answer. Robinson v. Johnson, 313 F.3d 128, 135 n. 3 (3d Cir. 2002) (citing Williams v. Murdoch, 330 F.2d 745, 749 (3d Cir. 1964)).

In Alexander, the doctrines of res judicata and collateral estoppel were rejected in the context of a Title VII claim even though the claimant had previously raised the same job discrimination issue in arbitration. Alexander, 415 U.S. at 49, n. 10. See also Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728 (1981) (holding that plaintiff's claims under Fair Labor Standards Act were not precluded by his unsuccessful participation in grievance procedures mandated by a CBA). This reasoning was extended in subsequent cases, where the Court held that "a federal court should not afford res judicata or collateral-estoppel to effect an award in an arbitration proceeding brought pursuant to the terms of a collective bargaining agreement." McDonald v. City of West Branch, 466 U.S. 284, 292 (1984). Courts have applied this holding to other statutory claims. See, e.g., Bolden v. S.E. Pennsylvania Transp. Auth., 953 F.2d 807, 825-26 (3d Cir. 1991) (holding that a "grievance settlement in this case did not preclude [a] Section 1983 claim under the doctrines of res judicata or collateral estoppel"). See also Blakely v. USAirways, Inc., 23 F.Supp.2d 560, 568 (W.D.Pa. 1998) (citingAlexander, Barrentine, and McDonald for the proposition that "an arbitration award rendered pursuant to the machinery of a collective bargaining agreement is not to be afforded res judicata or collateral estoppel effect")

Although the Third Circuit has yet to specifically apply this principle to cases under the ADA, other courts of appeals have decided that the doctrine of res judicata does not apply in ADA discrimination cases where there is a CBA mandating arbitration over all discrimination claims. See, e.g., Pryner v. Tractor Supply Co., 109 F.3d 354, 361-62 (7th Cir. 1997) (holding that because plaintiffs' rights under a CBA are not as extensive as their statutory rights, both arbitration and trial might be necessary to preserve the latter).Accord, Rogers v. New York Univ., 220 F.3d 73 (2d Cir. 2000).

"The plaintiffs' rights under the collective bargaining agreements are not as extensive as their statutory rights, so that to obtain complete relief they may have to undergo two trials, one before the arbitrator and the other in the district court. And by being forced into binding arbitration they would be surrendering their right to trial by jury — a right that civil rights plaintiffs (or their lawyers) fought hard for and finally obtained in the 1991 amendments to Title VII, and that they also have under the age discrimination and disability acts." Pryner, 109 F.3d at 361-62 (emphasis added).

Defendants argue that the arbitrator's ruling on the sanction of March 2, 1999, is binding for the purposes of res judicata. However, this argument is unsupported by the case law because the instant case more closely follows Alexander and its progeny than Gilmer. Plaintiff's allegation is that his sanction constitutes retaliation under Title V of the ADA, 42 U.S.C. § 12112 et. seq. This challenge is distinct from the subject matter of his arbitration in that it involves his individual statutory rights and not his contractual rights under the union's CBA. As the Court noted in Alexander, statutory rights are "independent" and "separate" from contractual ones, and a single trial might not sufficiently preserve both sets of rights. Alexander, 415 U.S. at 49-50. Thus, while an arbitrator's findings on contractual claims might be binding, an arbitrator has no presumptively binding authority over federal statutory claims absent a personal and explicit waiver by the Plaintiff of his right to a judicial forum.

Any arbitration arising from the union's CBA, including the arbitration of March 2, 1999, is not binding for the purposes ofres judicata over Plaintiff's statutory ADA claim. While Plaintiff's retaliation claim is based on the same set of facts as the events arbitrated on March 2, 1999, a mandatory arbitration proceeding in the context of a CBA is more suited for the preservation of Plaintiff's contractual rights rather than his statutory rights. Without a personal, explicit and unmistakable agreement by the Plaintiff to submit and be bound by mandatory arbitration over all claims, his right to a federal judicial forum for his statutory claims is maintained — even where he has unsuccessfully arbitrated the same events in the past. Although Plaintiff's lack of success in the arbitration may foreshadow similar difficulties in attempting to prove retaliation here, the arbitration does not mandate dismissal of his ADA retaliation claim as a matter of law, absent his waiver of a federal judicial forum for such claims.

For these reasons, Defendants' motion to dismiss Plaintiff's retaliation claim for failure to state a claim upon which relief can be granted is denied.

IV. Statute of Limitations of Non-ADA Claims

Defendants raise the defense that Plaintiff's non-ADA claims should be dismissed for failure to meet the applicable statutes of limitations. Normally, the statute of limitations is a general defense that must be pleaded in the answer. See Fed.R.Civ.P. 8(c). However, the Third Circuit allows an exception if "the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations."Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651, 657 (3d Cir. 2003) (quoting Robinson, 313 F.3d at 135). A statute of limitations defense can be made in the context of a 12(b)(6) motion to dismiss "where the complaint facially shows noncompliance with the limitations period and the affirmative defense clearly appears on the face of the pleading." Robinson, 313 F.3d at 135 n. 3 (quoting Oshiver v. Levin, Fishbein, Sedran Berman, 38 F.3d 1380, 1385 n. 1 (3d Cir. 1994)).

Plaintiff's Complaint contains a detailed factual account of instances where he claims to have suffered discrimination and retaliation. This account lists the specific dates on which the events occurred, and those dates corresponding to several of Plaintiff non-ADA claims fall outside the applicable statutes of limitations. As Plaintiff's Complaint "facially shows non-compliance with the limitations period," this court will now consider the statutes of limitations defense in the 12(b)(6) motion to dismiss. Id.

Plaintiff's claims arising under the New Jersey Law Against Discrimination, N.J.S. 10:5-13, the New Jersey Tort Claims Act, N.J.S. 59:1-1 et. seq., the New Jersey Conscientious Employee Act, N.J.S. 34:10-1, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et. seq., as discussed below, fall outside the applicable statutes of limitations.

Plaintiff attempts to extend the statute of limitations by raising the continuing violations theory.

Application of the continuing violation theory requires proof of the existence of a discriminatory policy and of its application to plaintiff . . . The time for filing a charge runs from the most recent application of the policy to plaintiff, regardless of when he received notice of the policy and its prospective effect on him.

Courtney v. La Salle University, 124 F.3d 499, 506 (3d Cir. 1997). For the purposes of the present analysis, this court will toll the statute of limitations for each claim until the last possible "application of the [discriminatory] policy to the plaintiff." Id.

This Court also has the discretion to equitably toll the statute of limitations:

In appropriate cases, statutes of limitations in employment discrimination cases may be equitably tolled. In this circuit, there are three principal, though not exclusive, situations where equitable tolling may be appropriate . . . (1) [if] the defendant has actively misled the plaintiff, (2) if the plaintiff has `in some extraordinary way' been prevented from asserting his rights, or (3) if the plaintiff has timely asserted his rights mistakenly in the wrong forum.

Miller v. Beneficial Management Corp., 977 F.2d 834, 845 (3d Cir. 1992) (quoting Kocian v. Getty Ref. Mktg. Co., 707 F.2d 748, 753 (3d Cir. 1983)). None of these exceptions applies to this case, nor has Plaintiff addressed this issue in his response to Defendants' motion to dismiss or offered any reasons for his delay in filing his Complaint. Therefore this Court will not equitably toll the statute of limitations for any of his claims, for reasons now explained.

A. New Jersey Law Against Discrimination

Plaintiff raises a claim of discrimination pursuant to the New Jersey Law Against Discrimination, N.J.S. 10:5-13. The statute of limitations applicable to a claim under the NJLAD is two years.Rivera v. Continental Airlines, 56 Fed. Appx. 567, 571 (3d Cir. 2003) (citing to Ali v. Rutgers, 166 N.J. 280, 282 (2000)). Under the continuing violations theory, the two year statute of limitations is tolled until the last recorded application of the BCCD's alleged discriminatory policy to the Plaintiff. The last recorded interaction between the BCCD and Blades occurred on April 10, 2000, where Plaintiff was verbally terminated from his position. Plaintiff filed this complaint on August 16, 2002. Thus, even under the most liberal application of the continuing violations standard, Plaintiff's claim under the NJLAD falls outside the applicable two year statute of limitations.

B. New Jersey Tort Claims Act

Plaintiff brings a claim under the New Jersey Tort Claims Act, N.J.S. 59:1-1 et seq. The statute of limitations for the NJTCA is two years. See Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 251 (3d Cir. 1999). The Act also "requires a prospective plaintiff to serve notice of suit on the public entity or official within 90 days of the date on which the cause of action began to accrue." Rolax v. Whitman, 53 Fed. Appx. 635, 637 (3d Cir. 2002). Neither of these requirements has been met. Even under the theory of continuing violations, the latest possible application of Defendant's alleged discriminatory policy was on April 10, 2000. The record shows that Plaintiff filed this complaint on August 16, 2002. Furthermore, Plaintiff did not "serve notice of suit" on the Jail "within 90 days of the date on which the cause of action began to accrue." Id. As Plaintiff took more than two year to file his Complaint and did not serve notice of his suit within the statutory time period, his claim under the NJTCA is barred by the applicable statute of limitations.

C. New Jersey Conscientious Employee Protection Act

Plaintiff also raises a retaliation claim pursuant to the New Jersey Conscientious Employee Protection Act, N.J.S. 34:19-1. The statute of limitations for CEPA claims is one year. Boody v. Township of Cherry Hill, 997 F. Supp. 562, 567 (D.N.J. 1997) (citing to N.J.S.A. 34:19-5). Plaintiff's last contact with Defendants was on April 10, 2000. This was also the last possible date on which Defendants could have committed retaliatory acts against Plaintiff under the theory of continuing violations. As Plaintiff did not file his claim until August, 16, 2002 — a delay of more than two years — his retaliation claim under CEPA is barred by the statute of limitations.

D. Title VII of the Civil Rights Act of 1964

In his claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et. seq., Plaintiff alleges that the BCCD discriminated against him because of his race. Under Title VII, the statute of limitations "requires an aggrieved party to file, within 180 days of the alleged discriminatory practice, a charge with the EEOC and receive a `right to sue' letter before bringing an action against `the respondent named in the charge.'"Bishop, 864 F. Supp. at 424 (quoting 42 U.S.C. 2000(e)(5)). Plaintiff has never filed a Title VII charge alleging discriminatory practices by his employer nor sought a "right to sue" letter from the EEOC. Thus, his Title VII claim falls outside the 180 day statute of limitations and must be dismissed.

E. Family and Medical Leave Act

Plaintiff claims a violation of the Family and Medical Leave Act, 29 U.S.C. § 2917(c), where he alleges his employers willfully refused to grant him 12 weeks of unpaid medical leave. "The normal limitations period for an action by an employee against an employer under the Family and Medical Leave Act is two years. 29 U.S.C. § 2617(c)(1). If the employer engages in a willful violation of the act, however, the limitations period is three years. 29 U.S.C. § 2617(c)(2)." Williams v. Schuller Intern. Inc., 29 Fed. Appx. 306, 308 (6th Cir. 2002). Plaintiff resolved his sanction relating to this incident on March 8, 1999. Under the theory of continuing violations, the latest possible application of Defendants' alleged discriminatory policy against the Plaintiff was on April 10, 2000. As this Court must accept as true Plaintiff's allegation that the Defendants' violation was willful for the purposes of a 12(b)(6) motion, Plaintiff should have three years from April 10, 2000, to file his Complaint. Continuing on this hypothetical, the appropriate statute of limitations on this claim could run until April 9, 2003. As Plaintiff filed his Complaint on August 18, 2002, Plaintiff's FMLA claim is not at this time barred by the applicable statute of limitations to the extent he alleges a willful violation by Defendants. Thus, the motion to dismiss Plaintiff's FMLA claim on this ground will be denied.

V. Relation Back Under Fed.R.Civ.P. 15(c)

Defendants argue that Plaintiff's FMLA claim should be barred for a failure to comply with Fed.R.Civ.P. 15(c), where Defendants allege that Plaintiff added an entirely new claim into his second amended Complaint. Rule 15(c)(2) permits the relation back of amendments to a pleading where "the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Fed.R.Civ.P. 15(c)(2). "If the amendment relates back to the date of the filing of the original complaint, the amended complaint is treated, for statute of limitations purposes, as if it had been filed at that time."Garvin v. City of Philadelphia, 354 F.3d 215, 220 (3d Cir. 2003). "The relation back provision of Rule 15(c) aims to ameliorate the harsh result of the strict application of the statute of limitations." Id. at 221.

Defendants contend that, although he had numerous opportunities to do so beforehand, Plaintiff only added the FMLA claim in a belated fashion when he filed his second amended Complaint. (Defs'. Mot. to Dismiss, 37.) Defendants argue that allowing the FMLA claim to proceed at this point would be unfair as they would have received insufficient notice of the claim.

These arguments have insufficient support in the record, however, as there is evidence that the Defendants had notice of the FMLA claim before Plaintiff filed his amended pleadings. Plaintiff's original Complaint clearly shows that he intended to file a claim under the FMLA. (Pl's. Compl., 4.) United States Magistrate Judge Ann M. Donio reached a similar conclusion that the FMLA claim is not a newly stated cause of action. (Judge Donio Op. of 3/16/2004.) As the FMLA claim was part of Plaintiff's original Complaint, there is no need to apply the relation back rule at this time.

VI. Insufficiency of Process and Insufficiency of Service of Process Under Fed.R.Civ.P. 12(b)(4) and (5)

Defendants argue that Plaintiff's Complaint should be dismissed pursuant to Fed.R.Civ.P. 12(b)(4) and (5) for failure to effectuate timely service and failure to serve a summons in proper form. For the purposes of Defendants' motion, Rule 4 of the Fed.R.Civ.P. sets out the time requirements whereby a Rule 12(b)(4) motion to dismiss can be reviewed. In pertinent part:

If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or its own initiative after notice to the plaintiff, shall dismiss the action without prejudice . . . provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.

Fed.R.Civ.P. 4(m). However, a Court has the discretion to grant or deny an extension on the time for service "in such a way as to promote justice." McCurdy v. Am. Bd. of Plastic Surgery, 157 F.3d 191, 197 (3d Cir. 1998).

Defendants' motion suffers from two deficiencies. First, Defendants clearly state that they believe the defects in Plaintiff's summons to be of a nature insufficient to warrant dismissal. (Def's. Mot. to Dismiss, 38.) The Court takes this language to mean that Defendants do not want to pursue their claim of failure to serve a summons in proper form. Second, they admit that this Court has already granted the Plaintiff an extension of time for service until January 12, 2004, and that Plaintiff met this requirement on January 8, 2004. (Def's. Mot. to Dismiss, 39.) As Defendants are not challenging the extension on the time for service, and the grant of the extension was clearly within the Court's discretion, McCurdy, 157 F.3d at 197, it is unclear on what basis the Defendants rest their argument that Plaintiff failed to effectuate service within the given period of time. For these reasons, Defendants' motion to dismiss for failure to effectuate timely service is denied.

VII. Plaintiff's Motion for Leave to File a Third Amended Complaint

Plaintiff has also filed a cross-motion for leave to file a third amended Complaint. The Federal Rules provide that a party may amend his pleading once before a responsive pleading is served, or thereafter upon leave of court or upon consent from his adversary. Fed.R.Civ.P. 15(a). "[L]eave should be freely given when justice so provides." Id. "If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits." Foman v. Davis, 371 U.S. 178 (1962).

While the grant of leave to amend should not be automatic,see Dover v. Hartford Accident and Indemnity Co., 151 F.R.D. 570, 574 (D.N.J. 1993), it should be granted absent a showing of "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of the allowance of the amendment, futility of amendment, etc." Foman, 371 U.S. at 182. The Third Circuit has set a liberal standard for amendment so that "a particular claim will be decided on the merits rather than on technicalities." Dole Arco Chemical Co., 921 F.2d 484, 486-87 (3d Cir. 1990) (citing 6 C. Wright, A. Miller M. Kane, Federal Practice and Procedure: Civil 2d § 1471 (West 1990)). However, amendment would be futile if the complaint as amended does not state a claim upon which relief can be granted. See In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1434 (3d Cir. 1997) (futility is judged by a Fed.R.Civ.P. 12(b)(6) standard).

In his opposition to Defendants' motion to dismiss, Plaintiff has not shown how a third amended complaint would cure the deficiencies in his claims. Indeed, Plaintiff's amended Complaint also failed to cure these deficiencies and Magistrate Judge Donio has already denied his motion for leave to file a second amended complaint. (Judge Donio Op. of 3/16/2004.) As stated above, Plaintiff's claim that he can only work in a light duty position is dispositive of his claim that he is a qualified individual with a disability. In addition, the statutes of limitations would continue to bar most of Plaintiff's state and federal claims no matter how much he elaborated on those claims. As further amendment could not cure these deficiencies and would be futile, Plaintiff's motion for leave to file a third amended Complaint is denied.

CONCLUSION

Plaintiff's discrimination claim under Title I of the ADA, 42 U.S.C. § 12112 et seq., is dismissed for failure to state a claim upon which relief can be granted. Plaintiff's additional claims under the NJLAD, the NJTCA, the NJ CEPA, and Title VII of the Civil Rights Act of 1964 are barred by the statute of limitations. However, Plaintiff's retaliation claim under Title V, sec. 503 of the ADA, 42 U.S.C. § 12203, and his claim under the Family and Medical Leave Act, 29 U.S.C. § 2917(c), survive the motion to dismiss and may proceed. As a result, Defendants' motion to dismiss pursuant to Rule 12(b)(6) will be partially granted and partially denied while Defendants' motion to dismiss pursuant to Rule 12(b)(4) and (5) is denied. Furthermore, Plaintiff's motion for leave to file a third amended Complaint is denied.

The accompanying Order is entered.

ORDER

This matter having come before the Court upon Defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 12(b)(4), (5) and (6); and the Court having reviewed the submissions of the parties; and for the reasons stated in the Opinion of today's date; and for good cause shown;

IT IS this 3^rd day of August, 2004, hereby

ORDERED that Defendants' motion to dismiss [Docket Item No. 20-1] shall be, and hereby is, GRANTED IN PART AND DENIED IN PART ; and

IT IS FURTHER ORDERED that Defendants' motion to dismiss shall be, and hereby is, GRANTED with respect to Plaintiff's claims arising under Title I of the Americans with Disabilities Act, 42 U.S.C. § 12112, the New Jersey Law Against Discrimination, N.J.S. 10:5-13, the New Jersey Tort Claims Act, N.J.S. 59:1-1 et. seq., the New Jersey Conscientious Employee Act, N.J.S. 34:10-1, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et. seq.; and IT IS FURTHER ORDERED that Defendants' motion to dismiss shall be, and hereby is, DENIED with respect to Plaintiff's claims arising under Title V, sec. 503 of the Americans with Disabilities Act, 42 U.S.C. § 12203, and the Family and Medical Leave Act, 29 U.S.C. § 2917 (for willful violation); and

IT IS FURTHER ORDERED that Plaintiff's cross-motion for leave to file a third amended Complaint shall be, and hereby is, DENIED.