DocketNumber： A-69 September Term 2009
Judges： Stern, Rabner, Rivera-Soto, Hoens
Filed Date： 12/10/2010
Status： Precedential
Modified Date： 10/19/2024
(temporarily assigned) delivered the opinion of the Court.
In Montells v. Haynes, 133 N.J. 282, 627 A.2d 654 (1993), the Court held that the two-year statute of limitations applies to all claims idled under the New Jersey Law Against Discrimination, N.J.S.A 10:5-1 to ~49(LAD), in Superior Court. The complaint must be filed within two years of the date on which the cause of action “accrued.” N.J.S.A 2A:14-2. Montells, supra, 133 N.J. at 285, 627 A.2d 654. In this case we examine the impact of the “discovery rule” on LAD claims, and affirm the dismissal of plaintiffs retaliation claim against her former employer, the New
I.
On July 24, 2007, plaintiff, Lula Henry, an African American, filed a complaint against defendants alleging racial discrimination in “hiring practice” and retaliation in violation of the LAD, resulting in her resignation from her position at DHS. Defendants moved for summary judgment based on the statute of limitations. The motion judge determined that plaintiff’s action accrued in 2004, and was not tolled by the discovery rule. The case was, therefore, barred by the two-year statute of limitations, and the complaint was dismissed. The Appellate Division affirmed the judgment, and we granted certification. Henry v. Dep’t of Human Servs., 202 N.J. 348, 997 A.2d 232 (2010).
II.
Because this case arises on a motion for summary judgment, we consider the facts in the light most favorable to the plaintiff. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995); R. 4:46-2.
Plaintiff obtained an Associate in Applied Science Degree in Nursing from Mercer County Community College in 1995 and a Bachelor of Science Degree in Nursing from Delaware State University in 2000. While pursuing a Master of Science Degree in Nursing from Wilmington College, she worked part time at Anne Klein Forensic Hospital in Trenton. When she finished her master’s degree in 2004, plaintiff was licensed to practice in New
In April 2004, plaintiff secured a full-time entry-level nursing position at Trenton State. She asserts that the reason she was only given an entry level position and not reclassified thereafter was due to race. According to plaintiffs certification in opposition to the motion for summary judgment:
7. I developed initial concerns, uncorroborated by any firm evidence, in or about late Spring/early Summer 2004 when I was working at Trenton State, that racial discrimination was occurring. All state agencies post job vacancies, and any individual interested in same can make application. During this time period, I began exploring employment opportunities outside Trenton State by submitting various applications for posted vacancies.
10. During the Summer of 2004, while I was conversing with another individual as to my concerns in advancing within state service, a human resource representative, Marybeth Longo, overheard the conversation. She stormed out of her office yelling that I “could not seem to get it through my head that I have to be in the position for one year” in order to obtain advancement.
11. In late Summer 2004,1 wrote a letter to the Director of Nursing at Trenton State, Lenny Seeman, requesting that I be reclassified according to my qualifications. This letter was drafted in response to my conversation with Ms. Seeman’s secretary who told me that there were only three nurses in the entire division possessing a Masters Degree in Nursing at the time, none of whom were then assigned entry level positions. When I wrote such letter, I did not then believe that I was the victim of racial discrimination; and instead, I believed the matter was merely an oversight which could be administratively remedied. I copied this letter to both John Lubitsky, Trenton State’s Human Resource Manager, and to State Assemblyman Herb Conoway.
12. No response was received by me for over one (1) month. I then had occasion to inadvertently meet Mr. Lubitsky at a water fountain in the hall at Trenton State. I inquired as to whether Mr. Lubitsky received the copy of my letter addressed to Ms. Seeman. Mr. Lubitsky acknowledged, in a very nasty manner, that he had received such copy adding that I had stood a good chance of being reclassified “until he received a letter from some bureaucrat downtown.” When I inquired as to when I could expect a formal response, I was told by Mr. Lubitsky to “consider this your reply.”
13. Shortly thereafter, circa November 2004,1 became discouraged and sought transfer from Trenton State to the New Jersey Juvenile Commission (hereinafter “Juvenile Justice”). In connection therewith, I had understood that it was necessary for me to resign from Trenton State in order to obtain employment position with Juvenile Justice; and I took such action.
16. In Spring 2006, during a conversation with my union representative, Ray Marks, I learned that a black/Nigerian nurse, Okechi Ikpeama, had commenced (or threatened) litigation contesting the placement of a less qualified Caucasian nurse into a job position. Although Mr. Marks indicated to me that this litigation was, upon information and belief, settled out of court, he opined that racism was very widespread throughout Trenton State with allegations of impropriety only then being presented to him. The bargaining unit represented by Mr. Parks includes Trenton State employees.2
17. I also learned in or about Spring 2006 that Ellen Gelker, a Caucasian nurse with the same credentials as J, did not have to start as charge nurse with Trenton State; and instead, she had been immediately hired into a higher job classification. This was directly contrary to the representations made to me concerning my initial placement; and I can only conclude that the discriminating factor involved race. Prior to Spring 2006,1 had no[t] known of any individual, possessing qualifications equal to myself, having been hired by Trenton State into a non-entiy level position. Consequently, there was no factual basis to substantiate any previous suspicion that I, too, should have been hired by Trenton State into a “non-entry level” position.
20. I incurred personal injuries while working at Juvenile Justice circa January 27, 2005. Following that date, I required periods of hospitalization and recuperation causing me grave anxiety and clinical depression. Hence, I did not pursue this matter in a more timely manner after Spring 2006.3
The Law Division granted defendant’s motion for summary judgment. The motion judge determined that plaintiff’s complaint
The Appellate Division affirmed the Law Division’s grant of summary judgment. Reviewing the trial court’s decision de novo, because the “determination of the accrual of a cause of action is an issue for the court,” Baird v. Am. Med. Optics, 155 N.J. 54, 65, 713 A.2d 1019 (1998), the panel in an unpublished opinion concluded that “there was no genuine issue of material fact and that the trial court properly determined that [plaintiffs] LAD claims were barred by the statute of limitations.” The panel found that the cause of action accrued upon the alleged “discrete act” of “disparate treatment” that occurred in April 2004 when plaintiff was hired in an entry-level position, and “[s]ince appellant had suspicions of discrimination while working at the Hospital, she should have investigated further ... because she was aware of or should have been aware of the possible injury caused to her.”
Similarly, the panel concluded that any adverse employment action taken by the hospital in response to plaintiff’s requests and complaints concerning her circumstances occurred while she was working at Trenton State, and her retaliation claim accrued, at the latest, “when she resigned her position” from Trenton State in 2004. In affirming the trial court, the Appellate Division also determined that the discovery rule did not apply because plaintiff “knew enough, or should have known through reasonable diligence, back in the spring or summer of 2004, that she had a cause of action for racial discrimination,” and “should have investigated further.”
Plaintiff contends that her cause of action against defendants for violations of the LAD did not accrue until 2006, and thus her complaint filed on July 24, 2007 was not timebarred, that the trial court erred in granting summary judgment because there exists a genuine issue of material fact as to when she discovered she had a cause of action, and that had she pursued her claim in 2004 upon a mere “suspicion of racial discrimination,” she could not have made out a prima facie case of discrimination because she was not aware of that fact until 2006. Therefore, plaintiff argues that the statute of limitations should not have begun to run until she had some measure of corroboration of her concerns in 2006.
Defendants counter that the trial court and Appellate Division correctly held both plaintiffs discrimination and retaliation claims were time-barred. They further contend that the discovery rule should not apply to LAD cases, but that even if it does, it would not be appropriate to apply it to the facts of this case. Defendants assert that plaintiffs certification in opposition to summary judgment demonstrates that she had sufficient “knowledge” of racial discrimination in 2004 and that any adverse employment action occurred while she was employed at Trenton State Hospital before she resigned in November 2004.
A.
It is well established that summary judgment must be granted if “the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.” R. 4:46-2. The “judge’s function is not himself [or herself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial” in viewing the facts in the light most favorable to the non-moving party. Brill v. Guardian Life Ins. Co. of Am., supra, 142 N.J. at 540, 666 A.2d 146 (citation omitted). “An issue of fact is genuine
In an appeal of an order granting summary judgment, appellate courts “employ the same standard [of review] that governs the trial court.” Busciglio v. DellaFave, 366 N.J.Super. 135, 139, 840 A.2d 897 (App.Div.2004). As only a legal issue is involved in the absence of a genuine factual dispute, that standard is de novo, and the trial court rulings “are not entitled to any special deference.” Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378, 658 A.2d 1230 (1995). See also Baird, supra, 155 N.J. at 65, 713 A.2d 1019 (“the determination of the accrual of a cause of action is an issue for the court”). Thus, the appellate court should first decide whether there was a genuine issue of material fact, and if none exists, then decide whether the trial court’s ruling on the law was correct. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.Super. 162, 167, 704 A.2d 597 (App.Div.), certif. denied, 154 N.J. 608, 713 A.2d 499 (1998).
B.
As already noted, plaintiff alleges violations of the LAD based on racial discrimination and retaliation. Due to the inherent “difficulty of proving discriminatory intent,” this Court has adopted the McDonnell Douglas “procedural burden-shifting methodology” to determine whether an employer has engaged in unlawful discrimination when there is only “circumstantial evidence” of that discrimination. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 446-47, 867 A.2d 1133 (2005); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See also, e.g., Gerety v. Atl. City Hilton Casino Resort, 184 N.J. 391, 399, 877 A.2d 1233 (2005) (discussing McDonnell Douglas burden-shifting framework as applied to LAD disparate impact claim); Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363, 380, 541 A.2d 682 (1988) (directing use of McDonnell
(1) the plaintiff must come forward with sufficient evidence to constitute a prima facie case of discrimination; (2) the defendant then must show a legitimate nondiscriminatory reason for its decision; and (3) the plaintiff must then be given the opportunity to show that defendant’s stated reason was merely a pretext or discriminatory in its application.
[Dixon v. Rutgers, The State Univ. of N.J., 110 N.J. 432, 442, 541 A.2d 1046 (1988) (citations omitted).]
The first step in the McDonnell-Douglas methodology requires that the plaintiff establish a prima facie case of discrimination, the elements of which "will “vary depending on the particular employment discrimination claim being made.” Victor v. State, 203 N.J. 383, 409-10, 4 A.3d 126 (2010). In the context of a claim alleging discrimination in hiring and placement, the plaintiff may establish a prima facie case by showing:
(1) that she is a member of a class protected by the anti-discrimination law; (2) that she was qualified for the position or rank sought; (3) that she was denied promotion, reappointment, or tenure; and (4) that others ... with similar or lesser qualifications achieved the rank or position.
[Dixon, supra, 110 N.J. at 443, 541 A.2d 1046.]
The evidentiary burden at the prima facie stage is “ ‘rather modest: it is to demonstrate to the court that plaintiffs factual scenario is compatible with discriminatory intent—i.e., that discrimination could be a reason for the employer’s action.’ ” Zive, supra, 182 N.J. at 447, 867 A.2d 1133 (citations omitted). “The establishment of the prima facie case creates an inference of discrimination [after which] ... the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employer’s action.” Id. at 449, 867 A.2d 1133. Subsequently, “the burden of production shifts back to the employee to prove by a preponderance of the evidence that the reason articulated by the employer was merely a pretext for discrimination and not the true reason for the employment decision.” Ibid. To do so, the plaintiff must show that the employer’s reason was both false and “motivated by discriminatory intent.” Ibid. The burden of
A claim of retaliation follows essentially the same burden-shifting approach, Jamison v. Rockaway Bd. of Ed., 242 N.J.Super. 436, 445-47, 577 A.2d 177 (App.Div.1990), and requires the following three traditional elements to establish a prima facie case: “(1) [plaintiff] engaged in a protected activity known by the employer; (2) thereafter [the] employer unlawfully retaliated against [her]; and (3) [her] participation in the protected activity caused the retaliation.” Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 125, 961 A.2d 1167 (2008) (internal quotation marks and citations omitted). Now, “a plaintiff must also bear the burden of proving that he or she had a good faith, reasonable basis for complaining about the workplace behavior.” Ibid. See also Victor v. State, supra, 203 N.J. at 409, 4 A.3d 126 (setting forth “prima facie elements of a retaliation claim under the LAD”).
C.
As already noted, this Court has determined that the appropriate statute of limitations for filing a LAD claim in Superi- or Court is two years. Montells v. Haynes, supra, 133 N.J. at 292, 627 A.2d 654.
[u]nswerving, mechanistic application of statutes of limitations would at times inflict obvious and unnecessary harm upon individual plaintiffs without advancing these legislative purposes. On numerous occasions we have found such particular circumstances as to dictate not the harsh approach of literally applying the statute of limitations but the application of the more equitable and countervailing considerations of individual justice. A just accommodation of individual justice and public policy requires that in each ease the equitable claims of opposing parties must be identified, evaluated and weighed. Whenever dismissal would not further the Legislature’s objectives in prescribing the limitation, the plaintiff should be given an opportunity to assert his claim.
[Galligan v. Westfield Ctr. Serv., 82 N.J. 188, 192-93, 412 A.2d 122 (1980) (internal quotation marks, footnotes, and citations omitted).]
There is nothing new about applying equitable principles to toll the statute of limitations for LAD claims, just as it has been done in other areas of the law, see Roa v. Roa, 200 N.J. 555, 566, 985 A.2d 1225 (2010) (applying discovery rule to retaliation claim); Shepherd v. Hunterdon Dev. Ctr., 174 N.J. 1, 6-7, 803 A.2d 611 (2002) (applying “continuing violation doctrine” in LAD action); see also, e.g., Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 2072, 153 L.Ed.2d 106, 122 (2002) (applying same concept in Title VII cases); Martinez v. Cooper Hospital, 163 N.J. 45, 747 A.2d 266 (2000); Mancuso v. Neckles, 163 N.J. 26, 747 A.2d 255 (2000); Baird v. Am. Med. Optics, supra, 155 N.J. at 54, 713 A.2d 1019; Lynch v. Rubacky, 85 N.J. 65, 424 A.2d 1169 (1981); Lopez v. Swyer, supra, 62 N.J. at 267, 300 A.2d 563; Fernandi v. Strully, 35 N.J. 434, 173 A.2d 277 (1961) (medical malpractice cases); Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 543 A.2d 443 (1988) (Tort Claims Act); O’Keeffe v. Snyder, 83 N.J. 478, 492, 416 A.2d 862 (1980) (replevin action); Burd v. New Jersey Tel. Co., 76 N.J. 284, 386 A.2d 1310 (1978) (products liability).
With respect to LAD claims, Roa, supra, decided earlier this year, involved a retaliation case. In Roa, supra, we confronted
The Court held first that the continuing violation theory did not encompass the plaintiffs retaliatory discharge claim. Id. at 570, 985 A.2d 1225. That is because “the doctrine does not permit ... the aggregation of discrete discriminatory acts for the purpose of reviving an untimely act of discrimination that the victim knew or should have known was actionable.” Id. at 569, 985 A.2d 1225. The Court differentiated continuing violations from discrete acts for statute of limitations purposes, explaining that discrete acts include primarily “termination, failure to promote, denial of transfer, or refusal to hire.” Id. at 566-67, 985 A.2d 1225. Upon the discrete act of discharge, the plaintiff in Roa “clearly knew, or should have known, that he had been the subject of retaliation by defendants, and should have filed his complaint within two years thereof,” despite the additional unlawful acts that occurred after the discharge. 200 N.J. at 566-67, 985 A.2d 1225. Similarly, a discrete act of resignation also terminates the employment relationship and obligates the former employee to take action relevant to any retaliatory cause of the resignation.
IV.
In light of the Roa principles, we affirm the Appellate Division’s holding with respect to the retaliation claim.
V.
However, the discrimination claim cannot be similarly viewed, and is subject to evaluation by established “discovery rule” principles.
The discovery rule seeks to remedy inequity resulting when “an injured person, unaware that he has a cause of action, [is] denied his day in court solely because of his ignorance, if he is
Typically, triggered by a defendant’s motion for summary judgment or answer asserting a statute of limitations defense, the court will determine at a Lopez hearing prior to trial, when the plaintiff reasonably should have discovéred that he or she had a cause of action.
The discovery rule thus delays the accrual of the action until the plaintiff “discovers, or by exercise of reasonable diligence and intelligence should have discovered, facts which form the basis of a cause of action,” O’Keeffe v. Snyder, supra, 83 N.J. at 491, 416 A.2d 862, or provide “a basis for an actionable claim.” Lopez, supra, 62 N.J. at 272, 300 A.2d 563.
In Roa, we stated “[t]here is simply nothing about a LAD case that would militate against applying the equitable principles informing the discovery rule to allow pursuit of a claim of which the party was reasonably unaware.” Roa, supra, 200 N.J. at 572, 985 A.2d 1225. Although holding that plaintiffs retaliatory discharge claim was time-barred by the two-year statute of limitations, but the post-discharge claim regarding insurance was not, we said:
[w]hen a plaintiff knows or has reason to know that he has a cause of action against an identifiable defendant and voluntarily sleeps on his rights so long as to permit the customary period of limitations to expire, the pertinent considerations of individual justice as well as the broader considerations of repose, coincide to bar his action. Where, however, the plaintiff does not know or have reason to know that he has a cause of action against an identifiable defendant until after the normal period of limitations has expired, the considerations of individual justice and the considerations of repose are in conflict and other factors may fairly be brought into play.
[Id. at 571, 985 A.2d 1225 (internal quotation marks omitted) (citing Caravaggio v. D'Agostini, 166 N.J. 237, 245, 765 A.2d 182 (2001) (quoting Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 115, 299 A.2d 394 (1973); Fernandi v. Strully, 35 N.J. 434, 438, 173 A.2d 277 (1961))).]
Thus, we explained that “[a]t the heart of the discovery rule is the fundamental unfairness of barring claims of which a party is
Accordingly, the Court has approved use of the discovery rule in LAD cases when and where appropriate. This may well be such a case. Here, plaintiff discussed her concerns regarding her status as an entry-level nurse and desire for reclassification with her employer, and was informed, albeit informally and antagonistically by a human resources representative who had overheard plaintiffs complaints, that plaintiff needed to serve the requisite time period of one year before she would be considered for a higher level position. In addition, after making a request for reclassification commensurate with her qualifications, plaintiff was informed that she had been considered for reclassification to a higher level position until she sent a letter not only within Trenton State’s Human Resources Department but also to a member of the State Assembly. In other words, she was given a reason—albeit an unsatisfactory one—that had nothing to do with racial discrimination. That, in turn, may have led plaintiff not to pursue the issue, thereby requiring the tolling of her cause of action. “[E]quitable tolling of a statute of limitations occurs when a plaintiff is misled as to the real reason for [the job action] and as a result fails to act within the prescribed time limit.” Villalobos v. Fava, 342 N.J.Super. 38, 50, 775 A.2d 700 (App.Div.), certif. denied, 170 N.J. 210, 785 A.2d 438 (2001); see also Abboud v. Viscomi, 111 N.J. 56, 64, 543 A.2d 29 (1988) (remanding for “a new Lopez hearing” to “evaluate or weigh [plaintiffs] claim that defendant’s
No Lopez hearing was conducted in this case, but one is required to consider the issues presented on the discrimination claim. Plaintiff is entitled to assert that she had no “reasonable suspicion” of racial discrimination, even by the exercise of reasonable diligence, until 2006 when she learned that less qualified Caucasian nurses were hired into advanced positions, and was told by her union representative about other claims of racial discrimination at Trenton State and that racism pervaded that institution. Accordingly, plaintiff is entitled to demonstrate the facts as she alleges them and show that she acted reasonably in pursuing her claim of discrimination. See Lopez, 62 N.J. at 274-76, 300 A.2d 563 (procedure with burden on plaintiff). In that context the judge at the Lopez hearing must evaluate the employer’s proffered reasons for denying reclassification in terms of any impact on plaintiff’s duty to investigate the reasons for her classification. On the other hand, the totality of circumstances must be evaluated in assessing the reasonableness of plaintiffs conduct and determining when the cause of action “accrued.” Accordingly, we remand for consideration of these issues at a Lopez hearing.
VI.
The judgment of the Appellate Division affirming the dismissal of the retaliation claim is affirmed. The judgment affirming the
Henry’s complaint named the following defendants: the Department of Human Services (DHS); Clark Bruno, Acting Commissioner of Human Services; Trenton State Psychiatric Hospital; Gregory Roberts, Chief Executive Officer of Trenton State Hospital; and unknown managers/representatives for DHS and Trenton State.
The last sentence of this paragraph is taken from a footnote in the certification.
At oral argument on the motion for summary judgment, defense counsel maintained that the JJC was not part of the same department of government as Trenton State Hospital and, therefore, any hiring practices at the JJC were irrelevant to the current action. Indeed, Trenton Slate is within the Department of Human Service, whereas the JJC is part of the Department of Law and Public Safety. See The State of New Jersey, Department of Human Services, Division of Mental Health Services, http://www.nj.gov/humanservices/dmhs/oshm/tph/; The State of New Jersey, Department of Law & Public Safety, Office of the Attorney General, http://www.state.nj.us/lps/jjc/index.html. Thus, because the JJC is not a party to this action, the claims against the JJC are noted herein only to the extent they are related to plaintiff's claims against Trenton State because the same bargaining unit representative is involved.
N.J.S.A. 10:5-13 provides that an employee aggrieved by unlawful employment discrimination may file a complaint with the Division on Civil Rights (Division) or municipal office, as well as the Superior Court. The LAD specifies that any complaint filed with the Division or municipality must be accomplished within 180 days of the alleged act of discrimination. N.J.S.A. 10:5-18. We need not address the administrative alternatives and procedures which were not pursued in this case. While not raised by the parties, however, we do note that Heniy also could have endeavored to appeal the denial of her reclassification to the Merit System Board in the Department of Personnel (now the Civil Service Commission). N.J.S.A. 11A:3-1, 11A:11-1; N.J.A.C. 4A:3-3.9. By doing so plaintiff could have claimed her classification was inappropriate and sought to ascertain the reason for her treatment by an independent classification review.
Plaintiff’s complaint in the Law Division alleges she was “damaged by Trenton State’s retaliatory actions taken in response to plaintiff's inquiry concerning disparate hiring practice-retaliatory treatment which the plaintiff initially understood as involving perhaps a personality conflict, but which the plaintiff now believes was motivated by racial antagonism contra the LAD.” However, as plaintiff's complaints to her employer about her classification were not premised on her treatment as an African American, there is a question as to whether her complaints constituted "protected activity” resulting in retaliation. See N.J.S.A. 10:5-12d. See also Tartaglia, 197 N.J. at 126-27, 961 A.2d 1167. In light of our disposition, however, we need not develop this concern.
A Lopez hearing is only required when the facts concerning the date of the discovery are in dispute. Dunn v. Borough of Mountainside, 301 N.J.Super. 262, 274, 693 A.2d 1248 (App.Div.1997), certif. denied, 153 N.J. 402, 709 A.2d 795 (1998).