Diana Dimare v. METLIFE INSURANCE COMPANY Appeal from the United States District Court for the…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 09-1068
_____________
DIANA DIMARE,
Appellant
v.
METLIFE INSURANCE COMPANY
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 07-4268)
District Judge: Honorable Garrett E. Brown, Jr.
Submitted Under Third Circuit LAR 34.1(a)
November 20, 2009
Before: RENDELL, BARRY and CHAGARES, Circuit Judges
____________
(Filed: March 4, 2010)
____________
OPINION OF THE COURT
____________
CHAGARES, Circuit Judge.

-- 1 of 11 --

2
Appellant Diana DiMare filed a complaint against her former employer, MetLife
Insurance Company (“MetLife”), asserting claims under the New Jersey Law Against
Discrimination (“NJLAD”), N.J. Stat. Ann. § 10:5-1 et seq., and tort claims under New
Jersey common law. DiMare appeals the District Court’s decisions to grant MetLife’s
motion to dismiss certain claims and motion for summary judgment on the remaining
claims. For the reasons set forth below, we will affirm.
I.
Because we write solely for the benefit of the parties, we will recite only the facts
essential to our analysis. DiMare joined MetLife as a financial associate in August 1991.
She held various positions there until February 2006. On February 10, 2006, DiMare
went on short-term disability leave due to a diagnosis of breast cancer. In August 2006,
DiMare transitioned to long-term disability leave. In late January 2007, DiMare informed
MetLife that she would return to work on February 12, 2007. However, DiMare’s
previous position had been filled during her absence by Paula Fitzgibbon, another female
employee. Prior to DiMare’s return, MetLife notified her that her position had been filled
and that she was eligible for the MetLife Plan for Transition Assistance for Officers
severance package, or in the alternative, she could attempt to find another position within
MetLife. MetLife further advised DiMare that if she was unsuccessful in securing
another job within thirty days, she would be terminated and immediately eligible for the
severance package. From early February 2007 until March 15, 2007, DiMare did not

-- 2 of 11 --

3
receive a salary. She instead utilized her outstanding paid time off while she attempted to
find another position within MetLife. DiMare failed to secure another position, and on
March 15, 2007 MetLife terminated her employment.
On August 9, 2007, DiMare filed a complaint against MetLife in New Jersey
Superior Court. MetLife removed the action to the District Court on September 7, 2007.
DiMare’s complaint alleged employment discrimination based on medical disability and
gender and reprisal in violation of the NJLAD, breach of express contract, breach of
implied contract, breach of implied covenant of good faith and fair dealing, negligent
infliction of emotional distress, intentional infliction of emotional distress, and fraudulent
misrepresentation.
MetLife filed a motion to dismiss on October 8, 2007. The District Court
dismissed the reprisal claim because DiMare failed to establish that a medical leave of
absence is a protected activity under the NJLAD and even if it were, DiMare failed to
establish a causal link between her medical leave of absence and her termination. The
District Court dismissed both breach of contract claims, as well as the claims for breach
of implied covenant of good faith and fair dealing, negligent infliction of emotional
distress, and intentional infliction of emotional distress as preempted by the NJLAD
claims. The District Court dismissed the fraudulent misrepresentation claim because it
failed to allege the specific facts required to withstand a motion to dismiss.
On September 12, 2008, MetLife moved for summary judgment on the remaining

-- 3 of 11 --

4
causes of action, discrimination based on medical disability and gender. MetLife asserted
that it terminated DiMare because of the “elimination of her position and her failure to
secure another position within 30 days after returning from a leave of absence in
accordance with MetLife’s Leave Discontinuance Procedure [the “Procedure”].”
Appellant’s Appendix (“Appellant’s App.”) 18. The District Court held that DiMare
failed to demonstrate that MetLife’s proffered explanation was a pretext for
discrimination, and granted MetLife’s motion for summary judgment. DiMare appealed
to this Court.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. § 1332. This Court has
jurisdiction pursuant to 28 U.S.C. § 1291.
We review the District Court’s grant of summary judgment de novo, applying the
same standard that it used. Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir.
2008). We will view the evidence in the light most favorable to DiMare and draw all
justifiable, reasonable inferences in her favor. Id. We will affirm if “there is no genuine
issue as to any material fact” and the defendant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c).
We exercise plenary review of the District Court’s dismissal of DiMare’s claims
under Fed. R. Civ. P. 12(b)(6). See Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d
187, 190 (3d Cir. 2009). We must “‘accept all factual allegations as true, construe the

-- 4 of 11 --

DiMare argues that the District Court erred in considering a motion for summary1
judgment so close to trial and without oral argument. We need not dwell on this
argument. Rule 56(a)(1) of the Federal Rules of Civil Procedure provides that a party
may move for summary judgment at any time once “20 days have passed from
commencement of the action.” Fed. R. Civ. P. 56(a)(1) (2008) (amended 2009). Further,
pursuant to Rule 78 of the Federal Rules of Civil Procedure and N.J. Civil Local Rule
78.1, motions may be decided on the briefs and without oral argument. The District
Court properly considered MetLife’s motion for summary judgment.
5
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.’” Grammer v.
John J. Kane Reg’l Ctrs.-Glen Hazel, 570 F.3d 520, 523 (3d Cir. 2009) (quoting Phillips
v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)).
III.
A.
DiMare appeals the District Court’s decision to grant summary judgment to
MetLife on her gender and disability discrimination claims. In the absence of direct1
evidence of discrimination, an employee asserting a claim under the NJLAD may prove
discrimination using the three-step burden-shifting inquiry established by McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Bergen Commercial Bank v.
Sisler, 723 A.2d 944, 954-55 (N.J. 1999). Under McDonnell Douglas, the plaintiff bears
the initial burden of establishing a prima facie case of unlawful discrimination. 411 U.S.
at 802. If the plaintiff succeeds, the burden of production shifts to the employer to
articulate a legitimate, nondiscriminatory reason for the employee's termination. Id.

-- 5 of 11 --

6
Once the employer meets its “relatively light burden,” the burden of production returns to
the plaintiff, who must show by a preponderance of the evidence that the employer's
proffered reason is pretextual. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). To
defeat summary judgment at the pretext stage, “the plaintiff must point to some evidence,
direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the
employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory
reason was more likely than not a motivating or determinative cause of the employer’s
action.” Id. at 764. Despite the burden-shifting, “[t]he ultimate burden of persuading the
trier of fact that the defendant intentionally discriminated against the plaintiff remains at
all times with the plaintiff.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253
(1981).
MetLife asserts that DiMare was terminated due to the elimination of her position
and her failure to secure another position within thirty days of her return from leave, in
accordance with the Procedure. Assuming, without deciding, that DiMare has established
a prima facie case of discrimination, she fails to come forth with any evidence whatsoever
that MetLife’s articulated reason for terminating her employment was a pretext for
discrimination.
The evidence shows that MetLife replaced and later terminated DiMare in
accordance with the Procedure. The Procedure states that “[an employee] may be
replaced if he/she does not return to work after FMLA/state law leave has been exhausted

-- 6 of 11 --

7
unless the manager grants a leave of absence. However, unless there is a significant
business need, Company practice is not to replace until such time that the [employee]
moves onto long term disability.” Appellant’s App. 461 (emphasis added). MetLife’s
practice is to hold a position open for an employee on an approved leave of absence for a
maximum of six months. Id. at 456. If MetLife has replaced an employee who was out
on long-term disability and that employee wants to return to work, the Procedure instructs
human resources to “put the [employee] on an unpaid leave of absence so equivalent
opportunities can be explored . . . . If no opportunity is found within about 30 days,
proceed with termination due to job elimination.” Id. at 461.
DiMare’s leave extended from February 2006 to January 2007, and her long-term
disability began in August 2006. Thus, MetLife’s decision to fill DiMare’s position was
consistent with the Procedure. Furthermore, the evidence shows that Gina Cochran of
MetLife Human Resources circulated DiMare’s resume to other departments of the
organization in which DiMare had expressed an interest. DiMare fails to proffer any
evidence whatsoever that MetLife’s decision not to hire her for another position was a
pretext for discrimination.
The undisputed evidence is that MetLife had in place a non-discriminatory policy
that allowed it to fill DiMare’s position while she was on leave and that it adhered to that
policy. In sum, DiMare has failed to establish a genuine issue of material fact sufficient
for a factfinder to reasonably either: 1) disbelieve MetLife’s assertion that it terminated

-- 7 of 11 --

DiMare does not appeal the District Court’s decision to dismiss her claims of2
breach of express contract, breach of implied covenant of good faith and fair dealing,
negligent infliction of emotional distress, and her reprisal claim under the NJLAD. Thus,
DiMare has “abandoned and waived” those issues and this Court need not address them.
See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993).
8
DiMare because her position had been filled while she was on long term disability and
she failed to secure another position within thirty days; or 2) believe that invidious
discrimination was more likely the motivating cause of MetLife’s actions. See Fuentes,
32 F.3d at 764. Accordingly, the District Court properly granted MetLife’s motion for
summary judgment on DiMare’s claims of gender and disability discrimination.
B.
DiMare also appeals the District Court’s Rule 12(b)(6) dismissal of her claims for
breach of implied contract, intentional infliction of emotional distress, and fraudulent
misrepresentation.2
1.
A fraudulent misrepresentation under New Jersey law “consists of a material
representation of a presently existing or past fact, made with knowledge of its falsity and
with the intention that the other party rely thereon, resulting in reliance by that party to his
detriment.” Violas v. Gen. Motors Corp., 170 F.3d 367, 376 (3d Cir. 1999) (internal
citations omitted). A party alleging fraud “must state with particularity the circumstances
constituting fraud.” Fed. R. Civ. P. 9(b). This Court has held that to satisfy Rule 9(b), a

-- 8 of 11 --

9
plaintiff “must state the circumstances of the alleged fraud with sufficient particularity to
place the defendant on notice of the ‘precise misconduct with which [it is] charged.’”
Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir. 2007) (alteration in original)
(quoting Lum v. Bank of Am., 361 F.3d 217, 223-24 (3d Cir. 2004)). This requires a
plaintiff to either plead the date, time, and place of the alleged fraud, or inject precision
into the allegations by some alternative means. See id.
The District Court found that the fraud claim was supported only by a “conclusory
allegation” that “MetLife had expressly knowingly, intentionally, recklessly and/or
negligently misrepresented its intent to continue to gainfully employ Plaintiff . . . with the
intention/knowledge that Plaintiff would rely upon same.” Appellant’s App. 10-11 (citing
Compl. ¶ 32).
On appeal, DiMare argues that the complaint “describes the misrepresentation that
Plaintiff was promised her job position would be held open for her when she returned
from medical leave” and “the misrepresentation wherein Appellant was promised that she
would be continually employed.” DiMare Br. 22. In determining the sufficiency of
DiMare’s allegations under Rule 9(b), we look only to the complaint; we will not consider
the allegations in DiMare’s brief. See Frederico, 507 F.3d at 201-02 (refusing to consider
allegations in appellant’s brief that did not appear in the complaint).
The complaint does not support DiMare’s argument. In her complaint, DiMare
makes generic references to the fact that she was “welcomed back” to work at the

-- 9 of 11 --

10
Bridgewater facility and was “welcomed back” at a bi-annual meeting on January 30,
2007 before she was told that her job had been eliminated. Appellant’s App. 538. The
complaint does not describe any representations whatsoever made by MetLife either
before or after DiMare’s absence that DiMare’s job would be “held open for her” or that
she would remain “continually employed.” DiMare’s complaint also fails to disclose the
identity of the person who made the allegedly fraudulent misrepresentations.
Without such details MetLife was not placed “on notice of the precise misconduct
with which [it was] charged.” Frederico, 507 F.3d at 200-01 (quotations omitted) (noting
that plaintiff failed to place defendant on notice by neglecting to plead the substance of
the alleged misrepresentations, the circumstances surrounding the alleged fraudulent
statements and any information about the individual who made the statements); see also
Lum, 361 F.3d at 224 (“Plaintiffs also must allege who made a misrepresentation to
whom and the general content of the misrepresentation.”); Klein v. Gen. Nutrition Cos.,
Inc., 186 F.3d 338, 345 (3d Cir. 1999) (holding that Rule 9(b) “requires, at a minimum,
that the plaintiff identify the speaker of allegedly fraudulent statements”).
DiMare argues that this Court should apply a relaxed particularity standard
because the factual information relating to the fraud is peculiarly within MetLife’s
knowledge or control. This Court has held that in cases such as corporate fraud, a
plaintiff “cannot be expected to have personal knowledge of the details of corporate
internal affairs” and thus has “relaxed the rule when factual information is peculiarly

-- 10 of 11 --

11
within the defendant’s knowledge or control.” In re Craftmatic Sec. Litig., 890 F.2d 628,
645 (3d Cir. 1989). However, in such circumstances, the plaintiff must expressly allege
that the necessary information lies within the defendant’s exclusive control and provide
facts sufficient to indicate that the charges are not baseless. F.D.I.C. v. Bathgate, 27 F.3d
850, 876 (3d Cir. 1994). DiMare has done neither. Furthermore, information about the
person who made the allegedly fraudulent statements and the content of those statements
is not peculiarly within MetLife’s knowledge or control.
2.
DiMare’s argument that the District Court erred in dismissing her claims for
breach of implied contract and intentional infliction of emotional distress also fails. The
District Court, in dismissing these claims, held that they were preempted by the NJLAD.
DiMare’s opening brief argues that she set forth a prima facie case for both of these
claims, however, it completely fails to address the District Court’s determination that
these claims were preempted. Although DiMare argues in her reply brief that the claims
were not preempted, we conclude that her failure to bring the issue up in her opening
brief constitutes a waiver of this argument on appeal. See In re Surrick, 338 F.3d 224,
237 (3d Cir. 2003).
IV.
For the reasons stated above, we will affirm the decisions of the District Court.

-- 11 of 11 --