STEVE WILSON VS. PAUL MESSINAÂ (L-1104-11, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3469-15T1
STEVE WILSON,
Plaintiff-Appellant,
v.
PAUL MESSINA, CITY OF TRENTON
by and through its POLICE
DEPARTMENT,
Defendants-Respondents.
_________________________________
Argued May 24, 2017 – Decided June 30, 2017
Before Judges Accurso and Lisa.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Docket No. L-
1104-11.
Rudie O. Weatherman argued the cause for
appellant (Polino and Pinto, P.C., and Mr.
Weatherman, attorneys; Joseph M. Pinto and
Mr. Weatherman, on the briefs).
John Morelli argued the cause for respondent
Paul Messina (John Morelli, P.C., attorneys;
Mr. Morelli, on the brief).
Douglas E. Burry argued the cause for
respondent City of Trenton (Saponaro Law
Group, attorneys; George R. Saponaro and
Justin J. Yost, on the brief).
PER CURIAM
Plaintiff Steve Wilson appeals from a March 15, 2016 order
for summary judgment dismissing his complaint under the Law
Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, against
his former employer, the City of Trenton Police Department, and
his superior officer, Paul Messina. Because we agree with the
trial judge that plaintiff's claims are barred by the statute of
limitations and not subject to equitable tolling, we affirm.
Wilson filed his complaint on April 19, 2011, claiming the
Department had "tolerated the racist remarks and discriminatory
conduct of Defendant Messina for approximately ten years."
Wilson asserted claims for race discrimination and retaliation
under the LAD, the Conscientious Employee Protection Act (CEPA),
N.J.S.A. 34:19-1 to -14, and the New Jersey Civil Rights Act,
N.J.S.A. 10:6-1 to -2. Discovery in the matter was protracted
for a variety of reasons, including the illness and death of the
lawyer filing the complaint on plaintiff's behalf.
At Wilson's deposition, which was not completed until July
2015, he testified to a host of allegedly discriminatory acts
committed by Messina against him beginning in 2005. Wilson
admitted, however, that his last contact with Messina had taken
place in August 2008, and nothing untoward had occurred between
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that time and the filing of his complaint three and one half
years later.
Following the deposition, Wilson moved in August 2015 to
amend his complaint to assert additional incidents of
retaliation he claimed occurred after the filing of his lawsuit.
The motion was granted and Wilson filed an amended complaint in
September 2015 asserting three new alleged retaliatory acts. He
claimed Messina, following his appointment as Patrol Division
Commander in September 2012, "would arbitrarily deny Plaintiff's
requests for earned vacation and sick days"; that in October
2012, "Plaintiff was transferred from the Vice Enforcement Unit
. . . to the Patrol Bureau's midnight shift," a transfer he
attributed to Messina; and that "[d]uring a dangerous hostage
situation in 2013, . . . Messina removed Plaintiff from duty in
favor of a Caucasian sergeant" and "ordered Plaintiff to go home
early, depriving Plaintiff of overtime compensation."
Defendants moved for summary judgment, contending the
claims raised in plaintiff's initial complaint were time-barred,
even considered under a continuous violation theory, and that
the supplemental claims were likewise barred as having been pled
more than two years after the occurrence of the alleged last act
of discrimination in 2013. Wilson withdrew his CEPA claim but
otherwise opposed the motion. Although he acknowledged the
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four-year gap between the 2008 acts and those occurring in 2012
pled in his amended complaint, he contended the continuous
violation theory or equitable tolling rendered all of his claims
timely. In the alternative, Wilson argued the supplemental
claims arising after he filed his initial complaint stated an
independent retaliation claim under the LAD, and were made
timely by the "relation back" doctrine under Rule 4:9-3.
After hearing argument, Judge Massi entered summary
judgment for defendants in a comprehensive opinion delivered
from the bench on March 15, 2016. The judge determined that
plaintiff's claims of discrimination occurring between 2005 and
2008 were time-barred even under a continuing violation theory
because the last act in that series occurred in August 2008, and
plaintiff did not file his complaint until April 2011. The
judge rejected Wilson's claim that the 2012 and 2013
discriminatory acts could sweep in all prior acts of
discrimination, finding those claims also time-barred because
filed outside the two-year limitations period.
Finally, the judge rejected Wilson's claim of equitable
tolling. Wilson claimed that when the head of Internal Affairs
told him in 2009 that the Department was finally going to look
into his claims against Messina, Wilson told the lieutenant,
"That's good because I am ready to hire an attorney." Wilson
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claimed the lieutenant replied, "Just don't, do me a favor, just
lay back, let it play out. Let's see what [the Internal Affairs
investigator] comes up with." Wilson claims he construed that
request as an order to wait until the conclusion of the internal
affairs investigation before hiring counsel or taking steps to
pursue litigation. The judge rejected Wilson's claim that the
conduct could support a claim of equitable tolling as a matter
of law.
Judge Massi issued an amplified written statement of
reasons supporting summary judgment on April 29, 2016. In it,
the judge reiterated his reasons for finding the complaint time-
barred under both the LAD and the Civil Rights Act and
elaborated on his reasons for rejecting equitable tolling.
Specifically, the judge found Wilson had "not put forth credible
evidence to suggest that he was 'induced or tricked by his
adversary's misconduct into allowing the filing deadline to
pass.'" See Dunn v. Borough of Mountainside, 301 N.J. Super.
262, 280 (App. Div. 1997), certif. denied, 153 N.J. 402 (1998).
Absent that sort of evidence, the judge concluded application of
the doctrine of equitable tolling was unwarranted.
Wilson appeals, claiming the trial court erred because 1)
his "post-lawsuit retaliation claims are independently
actionable"; 2) "the continuing violation theory renders
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Plaintiff's claims actionable"; 3) the trial court "acted under
a misconception as to the doctrine of equitable tolling"; and 4)
defendants waived any statute of limitations defense. We reject
those arguments.
We review summary judgment using the same standard that
governs the trial court. Murray v. Plainfield Rescue Squad, 210
N.J. 581, 584 (2012). Thus, we consider "whether the evidence
presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail
as a matter of law." Liberty Surplus Ins. Corp. v. Nowell
Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). In
considering application of the LAD to the facts adduced on the
motion, our review is de novo without deference to any
interpretive conclusions we believe mistaken; Nicholas v.
Mynster, 213 N.J. 463, 478 (2013); Manalapan Realty, L.P. v.
Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Applying that standard here makes plain summary judgment
was appropriate. Wilson does not dispute that at the time he
filed his initial complaint in April 2011, neither Messina nor
anyone else in the Department had engaged in any discriminatory
or hostile acts against him since August 2008. Accordingly, the
claims raised in his initial complaint are barred by the LAD's
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two-year statute of limitations.1 See Montells v. Haynes, 133
N.J. 282, 286 (1993) (establishing two-year statute of
limitations for LAD claims).
The continuing violation theory, which permits a plaintiff
to pursue a discrimination claim based on a pattern of
discriminatory conduct, does not alter that result because it
requires a plaintiff to prove that "at least one of [the
discriminatory] acts occurred within the statutory limitations
period." Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1,
7 (2002). Because Wilson did not demonstrate the existence of
any discriminatory acts in the two years preceding his
complaint, the continuing violation theory is not available to
save his claims for acts occurring prior to the April 2011
filing date.
We similarly reject Wilson's argument that the trial court
improperly rejected his equitable tolling claim. Judge Massi
was correct in ruling that equitable tolling may be applied
where "the complainant has been induced or tricked by his
1
Plaintiff has not briefed any claims under the Civil Rights
Act. We thus consider any such claim abandoned. See 539
Absecon Blvd., L.L.C. v. Shan Enters. Ltd. P'ship, 406 N.J.
Super. 242, 272 n.10 (App. Div.), certif. denied, 199 N.J. 541
(2009); see also Pressler & Verniero, Current N.J. Court Rules,
comment 5 on R. 2:6-2 (2017) ("It is, of course, clear that an
issue not briefed is deemed waived.").
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adversary's misconduct into allowing the filing deadline to
pass." Dunn, supra, 301 N.J. Super. at 280 (quoting Irwin v.
Dept. of Veterans Affairs, 498 U.S. 89, 96, 111 S. Ct. 453, 458,
112 L. Ed. 2d 435, 444 (1990)). He was also correct in finding,
as a matter of law, that the request to Wilson by the lieutenant
in charge of Internal Affairs to "do [him] a favor," and not
hire a lawyer while the internal investigation was pending, but
instead to "just lay back, [and] let it play out," is
insufficient to support such a claim. See Villalobos v. Fava,
342 N.J. Super. 38, 45 (App. Div.), certif. denied, 170 N.J. 210
(2001). There was no trickery or misconduct in the lieutenant's
request, and thus simply no basis for application of equitable
tolling. See R.A.C. v. P.J.S., Jr., 192 N.J. 81, 103 (2007)
(declining to apply the doctrine where a defendant had not
engaged in overt trickery or active deception that caused the
plaintiff to sleep on his rights).
We also agree the court was correct here to reject
plaintiff's attempt to rely on post-litigation acts to re-
animate his time-barred claims under a continuous violation,
relation-back theory. Plaintiff made no attempt to amend his
complaint to assert supplemental claims of discrimination until
after his deposition in 2015, when it was obvious there was no
basis for application of the continuous violation theory to save
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his claims for acts occurring between 2005 and 2008.2 By that
time, however, even those supplemental claims were similarly
time-barred, having accrued more than two years earlier.
Leaving aside the conceptual difficulty of applying the
relation-back doctrine to claims arising out of events that had
yet to occur on the filing date of the complaint,3 it is clear to
us the new claims were not independently actionable.
As the Supreme Court explained in Roa v. Roa, 200 N.J. 555,
569 (2011), the statute of limitations for a discrete
discriminatory act under the LAD "begins to run on the day that
2
We reject plaintiff's claim that defendants waived the defense
of the statute of limitations by not asserting it until they
filed for summary judgment nearly five years after the case was
filed. As already mentioned, discovery was extraordinarily
protracted here. Because of plaintiff's reliance on the
continuing violation doctrine and equitable tolling, defendants
obviously required plaintiff's deposition in order to move for
summary judgment on statute of limitations grounds. As that
deposition was delayed by the illness and death of plaintiff's
first lawyer, we cannot find waiver on this record.
3
That circumstance distinguishes this case from Notte v.
Merchants Mutual Insurance Company, 185 N.J. 490, 497 (2006).
There, the plaintiff sought leave to re-characterize his time-
barred CEPA claims as ones for wrongful discharge under the LAD
and the common law. Although by the time of the amendment, both
the common law and LAD claims would both have been time-barred,
the relation-back doctrine treated them as if originally filed
under those theories, thus making them timely as of the filing
date of the original complaint.
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act takes place." Wilson's complained of transfer from the Vice
Enforcement Unit to the Patrol Bureau's midnight shift in
October 2012 was plainly a discrete act that he knew or should
have known was actionable.4 Because the continuing violation
doctrine does not permit "the aggregation of discrete
discriminatory acts for the purpose of reviving an untimely act
of discrimination," ibid., Wilson's failure to assert the claim
until 2015 makes it untimely under the LAD's two-year statute of
limitations.
The remainder of Wilson's supplemental claims, Messina's
denial of Wilson's requests for vacation and sick days, which
Wilson admitted he took with approval by other supervisors, and
his being relieved of duty for several hours during a "dangerous
hostage situation" commanded by Messina in 2013, in addition to
being untimely filed, are simply too insignificant to be
actionable, even assuming they were retaliatory. See Burlington
Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 67, 126
S. Ct. 2405, 2414, 165 L. Ed. 2d 345, 359 (2006) (explaining
"[t]he anti[-]retaliation provision protects an individual not
from all retaliation, but from retaliation that produces an
4
Plaintiff's claimed loss of a "well-equipped, unmarked, take-
home vehicle" which was part and parcel of his untimely transfer
claim, is not itself separately actionable.
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injury or harm") (emphasis added). Because neither act by
Messina could be considered materially adverse under the
objective standard adopted by our Supreme Court in Roa, Wilson
could not establish a prima facie case of retaliation under the
LAD, even had the claims been timely pled. See Prager v. Joyce
Honda, Inc., 447 N.J. Super. 124, 139-41 (App. Div.), certif.
denied, 228 N.J. 408 (2016).
Because we agree that all of plaintiff's claims, those pre-
dating and post-dating the complaint, are time-barred, we affirm
the entry of summary judgment dismissing the complaint,
substantially for the reasons expressed by Judge Massi in his
written supplemental opinion of April 29, 2016.
Affirmed.
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