FATMATA KAMARA VS. STATE OF NEW JERSEY (L-0100-18, MERCER COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5038-17T2
FATMATA KAMARA,
Plaintiff-Appellant,
v.
STATE OF NEW JERSEY,
DEPARTMENT OF LAW AND
PUBLIC SAFETY, DIVISION
OF STATE POLICE,
Defendant-Respondent.
_____________________________
Submitted September 16, 2019 – Decided September 30, 2019
Before Judges Rothstadt and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-0100-18.
Fatmata Kamara, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Marvin L. Freeman, Deputy
Attorney General, on the brief).
PER CURIAM
Plaintiff Fatmata Kamara appeals the trial court's May 25, 2018 order
granting defendant State of New Jersey's motion to set aside entry of default and
granting defendant's motion to dismiss plaintiff's complaint as time-barred.
Having reviewed the record in light of the governing legal principles, we affirm.
We discern the following facts from the record. Plaintiff formerly worked
as a clerk typist for the New Jersey State Police (NJSP). She was terminated on
August 13, 2014 after a hearing regarding her behavior at work. 1 Plaintiff
participated in an arbitration with the State, and the arbitrator ruled in favor of
the State, issuing a report on October 11, 2017. 2
On January 9, 2018, plaintiff filed a complaint against the State, alleging
that the State subjected her to "retaliation, harassment, transfer and then sent
[her] for fitness for duty, that resulted [in] remo[val] without a just cause," after
she reported an overtime record that she believed was inappropriate. Plaintiff
served defendant at the NJSP headquarters on February 2, 2018. On April 4,
1
The facts leading to plaintiff's termination have not been verified. At the May
25, 2018 motion hearing, defendant's counsel stated, "The State takes no
position on the merits of [plaintiff's] termination."
2
Plaintiff states that she participated in arbitration to "seek[] restoration with
the State." Defendant has not verified the purpose of the proceeding, and there
is nothing else in the record that discusses it.
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2018, she requested entry of default after receiving no answer from defendant.
Default was entered on the same day.
On May 25, 2018, the trial judge entered an order vacating default because
plaintiff failed to effect service on the Attorney General's office as required by
Rule 4:4-4(a)(7). Regarding the motion to dismiss, the judge determined that
plaintiff's complaint asserted claims arising under the Conscientious Employee
Protection Act ("CEPA"), N.J.S.A. 34:19-1 to -8, and the Law Against
Discrimination ("LAD"), N.J.S.A. 10:5-1 to -42, based on the allegations of
harassment and retaliation. Applying the applicable statutes of limitations, the
judge concluded that plaintiff's claims were not timely filed, and dismissed
plaintiff's complaint. This appeal ensued.
On appeal, plaintiff contends that the trial judge's dismissal of her
complaint should be reversed because her union contract provided her with
access to arbitration procedures to seek reinstatement, and until the arbitration
was concluded, her claims for retaliation and harassment did not accrue .
This court reviews a grant of a motion to dismiss a complaint for failure
to state a claim de novo and applies the same standard under Rule 4:6-2(e) that
governed the trial court. Frederick v. Smith, 416 N.J. Super. 594, 597 (App.
Div. 2010). The court must "search[] the complaint in depth and with libera lity
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to ascertain whether the fundament of a cause of action may be gleaned even
from an obscure statement of claim . . . ." Printing Mart-Morristown v. Sharp
Elecs. Corp., 116 N.J. 739, 746 (1989) (quoting Di Cristofaro v. Laurel Grove
Mem'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957)). This review "is limited
to examining the legal sufficiency of the facts alleged on the face of the
complaint." Ibid.A claim alleging a CEPA violation must be brought within one year of the
alleged violation. N.J.S.A. 34:19-5. A claim alleging a LAD violation must be
brought within two years of the cause of action accruing. Rodriguez v.
Raymours Furniture Co., 225 N.J. 343, 356 (2016) (citing Montells v. Haynes,
133 N.J. 282 (1993)). The time of accrual depends on the type of conduct that
the plaintiff alleges violated the LAD. Alexander v. Seton Hall Univ., 204 N.J.
219, 228 (2010). "A discrete retaliatory or discriminatory act occurs on the day
that it happens." Ibid. (quoting Roa v. Roa, 200 N.J. 555, 567 (2010)). Such
acts include "[d]iscriminatory termination and other similar abrupt, singular
adverse employment actions" resulting from discrimination in violation of the
LAD. Ibid. (citing Roa, 200 N.J. at 569).
Plaintiff contends that her claims are timely because her union contract
permitted her to seek a remedy for her alleged wrongful termination through
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arbitration. Plaintiff argues that because she participated in arbitration with the
State on October 11, 2017, her claims accrued on that date. There is no legal
support for plaintiff's contention that her obligation to file a timely complaint
against the State had to await the outcome of the arbitration. Although based on
similar facts, her complaint in this case is independent of the arbitration
proceeding. We conclude that the trial judge correctly determined that plaintiff's
claims arose under CEPA and LAD, as there are no other supporting causes of
action, and properly applied those statutes of limitations to her complaint.
Plaintiff's retaliation and harassment claims arise out of conduct that
would have occurred through the end of her employment, which terminated on
August 13, 2014. Plaintiff's complaint does not allege any adverse employment
action that occurred after her termination. Consequently, under either CEPA or
LAD, plaintiff's claims accrued, at the latest, on August 13, 2014. Accordingly,
the trial court correctly concluded that when plaintiff filed her complaint on
January 9, 2018, both the one-year statute of limitations that applies to CEPA
claims and the two-year statute of limitations that applies to LAD claims had
expired.
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To the extent we have not specifically addressed any remaining arguments
raised by plaintiff, we conclude they lack sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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