LYDIA ANDERSON VS. IRVINGTON BOARD OF EDUCATION (L-3535-16, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-3379-17T4
LYDIA ANDERSON,
Plaintiff-Appellant,
v.
IRVINGTON BOARD OF
EDUCATION, WALTER RUSACK,
RICHARD GRAVES, SUZANNE
STEEL, and ERNEST SMITH,
Defendants-Respondents.
_______________________________
Submitted September 23, 2019 – Decided October 7, 2019
Before Judges Vernoia and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-3535-16.
Lydia Anderson, appellant pro se.
Respondents have not filed a brief.
PER CURIAM
Plaintiff Lydia Anderson appeals from a Law Division order dismissing
with prejudice her complaint alleging defendants Irvington Board of Education,
Walter Rusack, Richard Graves, Suzanne Steel and Ernest Smith 1 violated the
New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and the
Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, by
creating a hostile work environment and failing to renew her contract of
employment as a school teacher. Based on our review of the limited record
provided by plaintiff on appeal, we are convinced the claims asserted in the
complaint are barred by the applicable statutes of limitations and affirm the
court's dismissal of the complaint with prejudice.
In November 2016, 2 plaintiff filed a pro se complaint alleging she was
"hired by [d]efendant Irvington Board of Education as a contract teacher in
September 2000," and her contract was later renewed for the following 2001-
2002 school year. The complaint also alleges plaintiff received a letter in
August 2002 advising that her contract was not renewed for the 2002-2003
1
Defendants have not participated in this appeal.
2
It is not possible to discern the precise date in November 2016 that the
complaint was filed from the copy of the complaint included in plaintiff's
appendix.
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school year.3 The complaint further asserts that plaintiff's employment by the
Board of Education ended in 2002 and that she was subjected to a hostile work
environment and her contract was not renewed because of her national origin
and in retaliation for her complaints about discriminatory treatment. Broadly
read, the complaint asserts claims under the LAD and CEPA.
On April 2, 2018, the court entered an order dismissing the complaint with
prejudice. The order was entered as a result of the court's disposition of
defendants' motion in limine and the court's consideration of "the arguments of
[the] parties." In her brief on appeal, plaintiff asserts the court entered the order
during pre-trial proceedings on defendants' request to "bar [plaintiff's] case
based on statute of limitations." Plaintiff also represents in her brief on appeal
that the court granted defense counsel's request and entered an order dismissing
the complaint with prejudice based on statutes of limitations grounds. This
appeal followed.
Plaintiff presents the following arguments for our consideration:
3
We rely on the facts asserted in the complaint. We note that in plaintiff's
submissions to this court, she supplies a May 14, 2002 letter purportedly from
the Superintendent of the Irvington Board of Education advising that he did not
recommend the renewal of plaintiff's employment contract for the "2002 -2003
school year." The letter is not supported by an affidavit or certification
establishing its authenticity. See R. 1:6-6.
A-3379-17T4
3
[POINT] I
THE TRIAL COURT ERRED IN DISMISSING
APPELLANT'S COMPLAINT WITH PREJUDICE
FOR STATUTE OF LIMITATION[.]
[POINT] II
APPELLANT WAS TERMINATED BASED ON
NATIONAL ORIGIN DISCRIMINATION IN
VIOLATION OF THE LAW AGAINST
DISCRIMINATION[.]
In her pro se brief, plaintiff argues the court erred by dismissing her 2016
complaint based on its determination that her LAD and CEPA claims are barred
by the applicable statutes of limitations. Plaintiff contends she filed an identical
complaint on August 30, 2005, and "[t]he court erred that [she] did not pay the
filing fee" on that date. Plaintiff asserts that a court supervisor "informed [her]
that the court had dismissed and destroyed [her 2005] complaint" and, as a result,
she was required to pay another fee to file her 2016 complaint. Plaintiff argues
that the court erred by dismissing the 2016 complaint based on statutes of
limitations grounds because her original, and allegedly timely, complaint was
filed on August 30, 2005.
Annexed to plaintiff's pro se brief on appeal is a copy of a complaint that
is marked "received/filed" by the Superior Court on August 30, 2005, and a
personal check of the same date made payable to the Superior Court. Also
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annexed is an "Archival Management Information System" summary, which
plaintiff asserts she obtained from the Superior Court Clerk. The summary
shows that a complaint in the matter of "Anderson vs. Irvington . . . Bd. of Ed."
was filed on August 30, 2005, and dismissed by the court on March 17, 2006.
Plaintiff claims the records establish she filed a complaint making the identical
allegations against defendants in 2005, the court erred by dismissing the
complaint in 2006, and, as a result, the court erred by dismissing her 2016
complaint as time-barred.
Plaintiff fails to present the record required to facilitate appropriate
appellate review of her claim that the trial court erred by dismissing her 2016
complaint. Plaintiff does not provide the record presented to the trial court in
support of, and in opposition to, defendants' motion that resulted in the dismissal
of the 2016 complaint. See R. 2:6-1(a)(1)(A) and (I) (requiring the appellant to
include in his or her appendix the pleadings in a civil case, as well as "such other
parts of the record . . . as are essential to the proper consideration of the issues").
Plaintiff also fails to provide the transcript of the court proceeding during which
defendants' motion for dismissal was argued and decided. See R. 2:5-3(a)
(requiring appellant to request and obtain a verbatim record of the proceedings
from which the appeal is taken). Moreover, plaintiff's factual allegations, and
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her reliance on documents annexed to her brief on appeal, are untethered to a
certification, affidavit, or other competent evidence. See R. 1:6-6 (requiring
that motions "based on facts not appearing of record or not judicially noticeable"
be determined "on affidavits made on personal knowledge, setting forth only
facts which are admissible in evidence").
Plaintiff's failure to abide by the Rules renders it impossible to determine
whether the documents and records upon which she now relies were presented
to the trial court in the first instance. See, e.g., Wallach v. Williams, 52 N.J.
504, 505 (1968) (finding that consideration of issues "must be confined to the
record made in the trial court"); Donnelly v. Donnelly, 405 N.J. Super. 117, 130
n.6 (App. Div. 2009) (explaining factual assertions not properly presented
before the trial court "have no rightful place in the record in [the] appeal"). We
are not obligated "to attempt review of an issue when the relevant portions of
the record are not included," Cmty. Hosp. Grp., Inc. v. Blume Goldfaden
Berkowitz Donnelly Fried & Forte, P.C., 381 N.J. Super. 119, 127 (App. Div.
2005), and plaintiff's failure to provide the required record limits our ability to
consider her claim the trial court erred by dismissing her complaint.
In any event, we consider the merits of the court's dismissal of plaintiff's
2016 complaint based on statutes of limitations grounds because we review a
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court's order and not its reasoning, Do-Wop Corp. v. City of Rahway, 168 N.J.
191, 199 (2001), we review legal issues de novo, Manalapan Realty, L.P. v.
Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), and our review of the
allegations in the 2016 complaint permits a finding the asserted causes of action
are time-barred. The 2016 complaint alleges defendants created a hostile work
environment during plaintiff's two years of employment with the Irvington
Board of Education and on August 17, 2002 unlawfully declined to renew her
contract for the 2002-2003. Even accepting the complaint's allegation it was not
until February 26, 2003, that plaintiff first learned of the purported
discriminatory reason for the non-renewal of her contract on February 26, 2003,4
the 2016 complaint is time-barred.
The statute of limitations for an LAD claim is two years. Montells v.
Haynes, 133 N.J. 282, 292 (1993). The limitations period for a CEPA cause of
action is one year. N.J.S.A. 34:19-5; see also Green v. Jersey City Bd. of Educ.,
177 N.J. 434, 437-38 (2003). Plaintiff's 2016 complaint was filed more than
fourteen-years after her employment with the Board of Education ended and
almost thirteen and one-half years after the complaint suggests she first learned
4
The complaint alleges that "[o]n February 26, 2003, [p]laintiff was given the
real reason for the non-renewal of [her] employment contract" when the Board
of Education president allegedly referred to plaintiff as a "foreigner."
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the Board of Education acted with discriminatory intent. The claims asserted in
the 2016 complaint are clearly barred by the respective statutes of limitations
for LAD and CEPA claims. We therefore affirm the court's order dismissing the
2016 complaint on statutes of limitations grounds.
Plaintiff seeks refuge from the court's proper application of the statutes of
limitations, arguing she timely asserted her claims in the 2005 complaint, which
she acknowledges the court dismissed in 2006. Even if we accept plaintiff's
representations concerning the filing of the 2005 complaint, and the authenticity
of the complaint, the "Archival Management Information System" summary and
other documents annexed to her brief on appeal, her filing of the 2005 complaint
does not render the 2016 complaint timely. The record is bereft of evidence
plaintiff took any action to reinstate the 2005 complaint when it was dismissed
in 2006 or thereafter, or that she timely appealed the 2006 dismissal of the
complaint. Indeed, plaintiff's brief does not address or explain her delay in
prosecuting her claims during the ten-year period following the 2006 dismissal
of the 2005 complaint and prior to the filing of the 2016 complaint.
The record plaintiff provides on appeal does not reveal the precise reason
for the 2006 dismissal of plaintiff's first complaint or include any competent
evidence establishing the reason. Plaintiff contends, without citation to any
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competent evidence, that the dismissal resulted from an erroneous determination
that she did not pay the required filing fee. Plaintiff's recourse for the alleged
improper dismissal of the 2005 complaint was either to request relief from the
dismissal and reinstatement of the 2005 complaint, see, e.g., R. 1:5-6(c), R. 1:7-
4, R. 4:49-2 and R. 4:50-1, or appeal, either by right or by request for leave to
appeal,5 see, e.g., R. 2:2-3(a)(1), R. 2:2-4. The refiling of the identical claims
nine years later in her 2016 complaint did not revive or reinstate the dismissed
2005 complaint and did not render timely her LAD and CEPA claims which, for
the reasons noted, are barred by the applicable statutes of limitations.
Plaintiff also argues the evidence would otherwise show defendants
unlawfully terminated her employment by failing to renew her contract for the
2002-2003 school year based on her national origin. Plaintiff did not move for
summary judgment on her national origin claim, and, based on the limited record
provided on appeal, the court did not dismiss the complaint based on a finding
that plaintiff could not establish national origin discrimination. Thus, plaintiff's
assertion that the evidence would demonstrate national origin discrimination is
irrelevant to our consideration of whether the court correctly determined the
5
The scant record provided by plaintiff in support of her appeal does not permit
a determination as to the actual reason for the dismissal of the 2005 complaint
or whether the dismissal was by final or interlocutory order.
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claims asserted in the 2016 complaint are time-barred. We therefore do not
address or decide plaintiff's claim that defendants terminated her employment
because of her national origin.
Affirmed.
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