SANDRA TURNER-BARNES VS. CAMDEN COUNTY COLLEGE (L-2623-17, CAMDEN COUNTY AND STATEWIDE) ( 2019 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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-1639-17T3
    SANDRA TURNER-BARNES,
    Plaintiff-Appellant,
    v.
    CAMDEN COUNTY COLLEGE
    and WILLIAM THOMPSON,
    Defendants-Respondents,
    and
    CAMDEN COUNTY,
    Defendant.
    _______________________________
    Argued January 7, 2019 – Decided January 31, 2019
    Before Judges Messano and Gooden Brown.
    On appeal from Superior Court of New Jersey, Law
    Division, Camden County, Docket No. L-2623-17.
    LaTonya N. Bland-Tull argued the cause for appellant
    (Hagerty & Bland-Tull Law, LLC, attorneys; LaTonya
    N. Bland-Tull, on the briefs).
    Hannah M. Girer-Rosenkrantz argued the cause for
    respondents (Brown & Connery, LLP, attorneys;
    Christine P. O'Hearn and Tara L. Humma, on the brief).
    PER CURIAM
    Plaintiff Sandra Turner-Barnes appeals from a September 15, 2017 Law
    Division order, granting summary judgment to defendants, Camden County
    College and William Thompson (collectively defendants), and dismissing her
    complaint with prejudice. 1 She also appeals from a November 3, 2017 order
    denying her motion for reconsideration. In her complaint, plaintiff, a then sixty-
    seven-year-old African-American, alleged she was wrongfully terminated on the
    basis of race, age, and disability, in violation of the Law Against Discrimination
    (LAD), N.J.S.A. 10:5-1 to -49. In granting summary judgment, the motion judge
    rejected plaintiff's reliance on Alderiso v. Medical Center of Ocean County, 
    167 N.J. 191
     (2001), and concluded that plaintiff's complaint was barred by the
    applicable statute of limitations. On plaintiff's motion for reconsideration, the
    judge maintained his position.         Because we are convinced the judge
    misinterpreted Alderiso, we reverse.
    1
    In its merits brief, defendants assert that Camden County was neither named
    as a defendant in any of the underlying proceedings, nor served with any
    pleadings.
    A-1639-17T3
    2
    The operative facts are undisputed. Plaintiff worked as the College's
    Executive Director of the Camden County Cultural and Heritage Commission
    from June 1, 2012, until January 23, 2015. On January 23, 2015, plaintiff
    received a letter from defendant William Thompson, Vice President of the
    College's Institutional Advancement Division, notifying her that due to
    "declining enrollment and reduced funding," her position would be "eliminated
    effective . . . January 23, 2015," "in order to reduce costs." The letter stated that
    plaintiff would "remain on the payroll and receive [her] full salary through June
    30, 2015," and "[a]ny accrued, unused vacation [would] be paid to [her] no later
    than July 2015." According to the letter, "[a]ll benefits [would] cease effective
    June 30, 2015," except for "medical and prescription coverage which [would]
    cease on July 31, 2015." The letter instructed plaintiff that she could "apply for
    State unemployment compensation" and attached the required form "to facilitate
    [her] unemployment compensation claim." Finally, the letter directed plaintiff
    to "return all College issued keys, library card, College ID, computer equipment
    and any other College property in [her] possession immediately."
    On February 10, 2015, plaintiff filed a complaint with the New Jersey
    Division on Civil Rights (DCR), alleging that her discharge from the College
    violated the "[New Jersey] Law against Discrimination[,] N.J.S.A. 10:5-12a[,]"
    A-1639-17T3
    3
    the "Age Discrimination in Employment Act of 1967 (ADEA)," "Title VII [of
    the] Civil Rights Act of 1964," and the "Americans with Disabilities Act . . .
    (ADA)." In her DCR complaint, plaintiff denied that "she was discharged in
    order to reduce costs or that her position was eliminated, and allege[d] that she
    was replaced by . . . a younger, non-Black, non-disabled, less experienced
    individual." Plaintiff asserted in the complaint that the adverse employment
    action she suffered occurred when she was discharged on January 23, 2015.2
    On June 29, 2017, plaintiff filed a pro se complaint in the Superior Court,
    alleging that she was wrongfully terminated in violation of the LAD "as a result
    of on-going racial discrimination, age discrimination, and . . . discrimination due
    to [her] disability." On August 3, 2017, plaintiff withdrew her DCR complaint.
    On August 28, 2017, defendants moved to dismiss plaintiff's complaint pursuant
    to Rule 4:6-2(e), on the ground that the complaint was filed outside of the two-
    year statute of limitations for LAD claims, and therefore failed to state a claim
    upon which relief can be granted.3 Plaintiff opposed the motion, arguing that
    2
    In plaintiff's DCR complaint, she mistakenly stated that her discharge date
    was January 23, 2014, instead of January 23, 2015.
    3
    In the alternative, defendants sought "a more definite statement" as permitted
    under Rule 4:6-4(a).
    A-1639-17T3
    4
    under Alderiso, her claim accrued on June 30, 2015, and thus was not barred by
    the statute of limitations.
    On September 15, 2017, following oral argument, the motion judge
    considered evidence outside the pleadings, including defendants' January 23,
    2015 termination letter, and plaintiff's DCR complaint.          The judge treated
    defendants' motion as one for summary judgment as permitted under Rule 4:6-
    2, and granted defendants summary judgment in an oral decision he later
    memorialized in an order. See Giannakopoulos v. Mid State Mall, 
    438 N.J. Super. 595
    , 599 (App. Div. 2014) ("In fact, because the court considered
    documents outside the pleadings in deciding the . . . motion [to dismiss,] it is
    . . . treated as a summary judgment motion."). The judge posited that the issue
    central to the motion was "whether the date of [plaintiff's] termination [was]
    when [she] w[as] notified not to return [on January 23, 2015,] or the date on
    which payments to [plaintiff] ceased [on June 30, 2015]."
    The judge recited the undisputed facts as follows:
    Plaintiff was terminated from her position . . . by
    letter dated January 23, 2015 . . . . That letter indicates
    that plaintiff's position with the [C]ollege was
    terminated effective the date of the letter, January 23,
    2015. She remained on the payroll through June 30,
    2015.
    A-1639-17T3
    5
    On February 10, 2015, plaintiff filed a . . .
    complaint with the [DCR] alleging discrimination
    based on age, race[,]and disability . . . . The [DCR
    complaint] which plaintiff filed . . . specifically alleges
    that plaintiff was discharged from employment on
    January 23, 2015. The complaint in this case was not
    filed until [June 29, 2017].
    In his legal analysis, the judge explained:
    The [LAD] is subject to a two[-]year statute of
    limitations under N.J.S.A. 2A:14-2(a) and as . . .
    discussed in [Alexander v. Seton Hall University, 
    204 N.J. 219
    , 228 (2010)]. An action seeking recovery
    under the LAD must involve[] adverse employment
    action which occurred within two years of the filing of
    suit. Where the adverse employment action occurred
    more than two years prior to the filing of suit, the matter
    is barred by the statute of limitations . . . [, Roa v. Roa,
    
    200 N.J. 555
    , 566 (2010)].
    Here, plaintiff's certification, as part of her filing
    with the [DCR], admits that the employment action
    occurred on [January 23, 2015]. . . . Accordingly, no
    issue of fact exists with respect to the last date and time
    in which the alleged discrimination could have
    occurred since employment terminated as of that date
    and the decision to terminate plaintiff for any adverse
    employment action occurred on or before January 23,
    2015.
    Thus, the judge concluded that "[b]ased upon the case law, . . . [plaintiff's]
    complaint on its face reflect[ed] the claim [was] barred by the applicable statute
    of limitations" because it was filed almost five months after the expiration of
    A-1639-17T3
    6
    the two-year statute of limitations. The judge addressed plaintiff's reliance on
    Alderiso as follows:
    Plaintiff cites to . . . [Alderiso], a 2001 Supreme
    Court decision in support of her claim that the actual
    date which controls is the date on which her pay . . .
    ended, since she was paid through . . . [June 30, 2015]
    and, in particular, the letter terminating her indicated:
    "In order to reduce costs further, your
    position will be eliminated effective . . .
    January 23, 2015. You will remain on the
    payroll and receive your full salary through
    June 30, 2015. Any accrued, unused
    vacation will be paid to you no later than
    July[] 2015."
    In Alderiso, [
    167 N.J. at 199-200
    ,] the Supreme Court
    . . . stated the following:
    "For clarity, we also note that the date of
    discharge for limitation purposes does not
    include any subsequent date on which
    severance, health or other . . . extended
    benefits are paid."
    The judge found that it was "clear, based upon . . . the termination letter
    of January 23, 2015, that plaintiff's termination occurred on [January 23, 2015 ,]
    and plaintiff herself acknowledge[d] that [date] in . . . her filing with the [DCR]."
    Thus, in rejecting plaintiff's reliance on Alderiso, the judge concluded "[t]he
    adverse employment decision . . . from which this claim [arose]" had "already
    A-1639-17T3
    7
    occurred" at "the point of termination[,]" despite the fact that plaintiff
    "receive[d] pay after that date[.]" 4
    On November 3, 2017, in an oral decision, the judge denied plaintiff's
    motion for reconsideration for the reasons articulated in his initial decision. The
    judge stated that the new information submitted by plaintiff in support of her
    reconsideration motion was available to her at the time the summary judgment
    motion was heard and "[a] party may not . . . obtain reconsideration on the basis
    of information that could have been provided earlier, but . . . was not provided
    or otherwise overlooked[.]" 5 Likewise, the judge rejected plaintiff's newly
    minted "judicial estoppel" argument, based on defendants' invocation of the June
    30, 2015 termination date before various tribunals, and plaintiff's "interests of
    justice" argument, based on the purported absence of prejudice to defendants.
    4
    Contrary to plaintiff's argument, the judge did not distinguish Alderiso on the
    ground that her remaining on the payroll until June 30, 2015, constituted
    severance payments. Indeed, such a contention is not supported by the facts in
    the record, viewed in the light most favorable to plaintiff. Angland v. Mountain
    Creek Resort, Inc., 
    213 N.J. 573
    , 577 (2013) (citing Brill v. Guardian Life Ins.
    Co., 
    142 N.J. 520
    , 523 (1995)).
    5
    The judge acknowledged that a certification filed with the New Jersey Division
    of Pensions and Benefits, listing plaintiff's discharge date as June 30, 2015, was
    unavailable to plaintiff when the summary judgment motion was decided, but
    noted that the certification "d[id] not change [his] analysis or . . . initial
    decision."
    A-1639-17T3
    8
    The judge concluded that "[n]ew theories [were] not proper for reconsideration"
    and entered a memorializing order. This appeal followed.
    We review a grant of summary judgment applying the same standard used
    by the trial court. Steinberg v. Sahara Sam's Oasis, LLC, 
    226 N.J. 344
    , 366
    (2016). That standard is well-settled.
    [I]f the evidence of record—the pleadings, depositions,
    answers to interrogatories, and affidavits—"together
    with all legitimate inferences therefrom favoring the
    non-moving party, would require submission of the
    issue to the trier of fact," then the trial court must deny
    the motion. On the other hand, when no genuine issue
    of material fact is at issue and the moving party is
    entitled to a judgment as a matter of law, summary
    judgment must be granted.
    [Ibid. (quoting R. 4:46-2(c)).]
    Applying these standards, we agree with plaintiff that the motion judge
    "misapplied Alderiso" to the undisputed facts pertinent to the issue on appeal.
    In Alderiso, our Supreme Court interpreted the accrual date for purposes of the
    statute of limitations provision of the Conscientious Employee Protection Act,
    N.J.S.A. 34:19-1 to -8 (CEPA), as follows:
    We must determine whether plaintiff's cause of action
    accrued on the date that she received notice of her
    termination or on some later date, such as the date of
    discharge or the first day of unemployment.
    A-1639-17T3
    9
    We hold that when the employer's alleged
    conduct consists of wrongful termination, the
    employee's cause of action under CEPA accrues on the
    date of actual discharge. We interpret that date to mean
    the last day for which the employee is paid a regular
    salary or wage. It does not include any subsequent date
    on which severance, health, or other extended benefits
    are paid. For computation purposes, the first day to be
    included in the . . . limitations period is the day after
    the date of discharge.
    [Id. at 194-95.]
    Stated differently, the Court interpreted the date of discharge "to
    encompass the first full day of unemployment, i.e., the day after the last day for
    which [the employee] was paid," rather than the date the employee received
    notice of termination. Id. at 198. As applied to the plaintiff in Alderiso, who
    was given oral notice of her termination on January 14, 1997, instructed "to
    return to work the following day to close out her files[,]" did not return as
    requested but was paid "her regular salary through and including January 15,
    1997[,]" id. at 195, plaintiff's date of discharge was January 15, 1997,
    "notwithstanding her absence from work on that date." Id. at 199. Further, the
    Court noted that a "dispute concerning [a] plaintiff's date of discharge represents
    a legal dispute, not a question of fact," and was thus subject to de novo review
    by an appellate court. Ibid.
    A-1639-17T3
    10
    Although Alderiso involved a claim under CEPA, in Zacharias v.
    Whatman PLC, 
    345 N.J. Super. 218
    , 227 (App. Div. 2001), "we [saw] no reason
    not to apply that holding to termination claims under the LAD as well." There,
    although the plaintiff was told in 1994 "that there would be no permanent place
    for him" following his employer's reorganization, but that he would be paid until
    1997 "when he reached the age of sixty-five[,]" 
    id. at 220
    , we held that the two-
    year statute of limitations on his LAD complaint based on age discrimination
    did not run until 1999. 
    Id. at 227
    . See also Holmin v. TRW, Inc., 
    330 N.J. Super. 30
    , 35-36 (App. Div. 2000), aff'd o.b., 
    167 N.J. 205
     (2001) (holding that
    the applicable statute of limitations period was measured from the date the
    plaintiff's cause of action accrued, and plaintiff's cause of action for fraud did
    not accrue when he was notified in writing that he would be laid off, but rather
    thirteen days later when his position would be eliminated).
    Here, since plaintiff was paid until June 30, 2015, for computation
    purposes, the first day to be included in the limitations period is the day after
    the date of discharge, or July 1, 2015. Thus, her June 29, 2017 complaint was
    timely. Accordingly, we reverse the order of dismissal entered on September
    15, 2017, and the order denying reconsideration entered on November 3, 2017,
    A-1639-17T3
    11
    and remand for further proceedings on the merits. Based on our decision, we
    need not address plaintiff's remaining arguments.
    Reversed and remanded for further proceedings.     We do not retain
    jurisdiction.
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    12