TAMIKA COVINGTON VS. CENTRAL JERSEY DISTRICT BOARD 193 OF I.A.A.B.O. CORP. (L-1674-15, 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NOT FOR PUBLICATION WITHOUT THE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-2647-17T4
TAMIKA COVINGTON,
Plaintiff-Appellant,
v.
CENTRAL JERSEY DISTRICT
BOARD #193 OF I.A.A.B.O.
CORP., a/k/a INTERNATIONAL
ASSOCIATION OF APPROVED
BASKETBALL OFFICIALS,
BOARD 193, a New Jersey Non-
Profit Corporation; FRED DUMONT,
in his official and individual capacity;
HAMILTON SCHOOL DISTRICT,
a/k/a HAMILTON TOWNSHIP
BOARD OF EDUCATION,
Defendants-Respondents.
________________________________
Argued September 18, 2019 – Decided September 1, 2020
Before Judges Fuentes, Haas, and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-1674-15.
David Zatuchni argued the cause for appellant.
Andrew Lee Watson argued the cause for respondents
International Association of Approved Basketball
Officials Board 193 and Fred Dumont (Pellettieri,
Rabstein and Altman, attorneys; Andrew Lee Watson,
of counsel; Elyse Claudine Herman, on the brief).
Casey P. Acker argued the cause for respondent
Hamilton School District (Lenox Law Firm, attorneys;
Gregory J. Giordano, of counsel; Casey P. Acker, on
the brief).
PER CURIAM
Plaintiff Tamika Covington works as an official in high school basketball
games under the auspices of the International Association of Approved
Basketball Officials Board 193 (Board 193), a nonprofit organization. Board
193 has the exclusive authority to assign basketball officials to oversee games
in area high schools. Plaintiff filed a civil action in the Law Division against
the Hamilton Township School District Board of Education (Hamilton School
District), Board 193, and its president Fred Dumont, alleging gender
discrimination under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to
-49. Plaintiff claims defendants intentionally excluded her from officiating in
boys basketball games because of her sex.
Plaintiff appeals from an order entered by the motion judge granting the
Hamilton School District's summary judgment motion and dismissing her
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complaint as a matter of law. The motion judge found plaintiff cannot assert a
claim of gender discrimination against the Hamilton School District under the
LAD because she was not an employee. As a corollary of this reasoning, the
judge found that plaintiff's claims against Board 193 and Dumont, as aiders and
abettors of the Hamilton School District's alleged discriminatory policy, were
also not cognizable as a matter of law.
In this appeal, plaintiff argues the motion judge erred in finding plaintiff
was not an employee of the Hamilton School District. Alternatively, she argues
the judge misapplied principles of issue preclusion to bar her from asserting a
claim of gender discrimination against defendants in her capacity as an
independent contractor under N.J.S.A. 10:5-12(l). Defendants argue the judge
correctly granted their motions for summary judgment because plaintiff's claims
are barred by the United States District Court's ruling concerning her
employment status. Furthermore, even if we were to disagree with the
preclusion argument, Board 193 and Dumont argue plaintiff's LAD claims as an
independent contractor are barred by the two-year statute of limitations.
We hold that plaintiff's complaint alleging LAD claims against defendants
as an independent contractor are not barred by the doctrines of res judicata or
collateral estoppel based on the United States District Court's decision to deny
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plaintiff's motion to amend her federal complaint to include such a claim. We
nevertheless affirm the order granting defendants' motion for summary judgment
because plaintiff's LAD claims are barred by the two-year statute of limitations.
I.
Because the motion judge dismissed this case on summary judgment, we
will consider all of the relevant material facts in the light most favorable to
plaintiff, including any and all inferences that can be rationally drawn therefrom.
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c).
We review the court's order granting summary judgment de novo. Green v.
Monmouth University, 237 N.J. 516, 529 (2019).
Plaintiff asserted the following facts in a certification she submitted in
opposition to defendants' motions for summary judgment:
I joined Board 193 in or about 1996 because Board 193
was the association that exclusively and solely assigned
all the basketball officials for the Schools Districts
locally in central New Jersey where I lived, including
for Trenton, Princeton, Hamilton, Ewing, Hightstown,
Hopewell Valley, Lawrence, West Windsor,
Allentown, Robbinsville, as well as various local
private and preparatory schools. If I wanted to be
involved and participate as a basketball official in
central New Jersey, I had to become a member of Board
193 since the local Athletic Directors of the School
Districts used only Board 193 as their assigning
organization.
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[(emphasis added).]
The Hamilton School District pays a fee to the basketball officials
assigned by Board 193. The amount of monetary compensation is determined
by the school districts and is non-negotiable. Officials are paid through a
voucher system and are not entitled to receive any benefits. The Hamilton
School District does not deduct income taxes from an official's compensation
nor issue W-2 tax forms to document the amount of compensation it paid in a
given tax-year. Instead, school districts provide officials with a 1099
independent contractor form only if the amount of compensation it paid to the
official exceeds $600 in a given tax-year.
As a high school basketball official, plaintiff is required to wear a uniform
to referee a game. The Hamilton School District does not provide the official's
uniforms. The games take place within the school district at a time and location
determined by the school district. Coaches and athletic directors who are
employed by school districts may request Board 193 not to assign a particular
official. The Hamilton School District has never exercised this prerogative.
Board 193 is exclusively responsible to train, evaluate, and assign officials to
area high school basketball games.
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Plaintiff initially filed her complaint against Board 193 and Dumont in the
United States District Court for the District of New Jersey on July 21, 2008. She
alleged gender discrimination and retaliation in violation of federal and state
law. Plaintiff amended this complaint in June 2009 to add the Hamilton School
District as a defendant. Plaintiff's current counsel became involved in this case
in 2010. Plaintiff filed a second amended complaint on September 25, 2010. In
this second amended complaint, plaintiff included the following factual claims
relevant to the issues raised in this appeal:
32. Board 193 operates as a closed shop "assignor" of
basketball officials in the Central New Jersey area to
schools, conferences, and tournaments.
....
34. The persons who assign basketball officials on
behalf of Board 193 are Board 193 members and
officers that hold the formal title of "Assignor."
35. The Assignors of Board 193 were placed into this
role and position by President Fred Dumont and/or the
governing committee of the Board.
36. The Assignors at all relevant times understood
themselves to be acting on behalf of Board 193, and
were at all relevant times held out by Board 193 as
Assignors acting on behalf of the Board.
37. It is the job of the Assignors of Board 193 to
provide schools, conferences, and tournaments with
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basketball officials and to match officials with
officiating employment opportunities at schools.
38. Accordingly, Board 193 qualifies as an
"employment agency" pursuant to 42 U.S.C. 2000e-
2(b). This provision of Title VII makes it unlawful "for
an employment agency to fail or refuse to refer for
employment, or otherwise to discriminate against, any
individual" on the basis of sex.
In an order dated July 29, 2011, United States District Judge Garrett
Brown granted defendants' motion to dismiss plaintiff's federal law claims stated
in her second amended complaint. Judge Brown also declined to assert
supplemental jurisdiction over plaintiff's state law claims and dismissed these
state claims without prejudice. Plaintiff appealed Judge Brown's order to the
Third Circuit Court of Appeals. The Third Circuit reversed Judge Brown's
decision and remanded the case to the District Court to permit plaintiff to
provide additional facts in support of her federal claims. Covington v. Int'l Ass'n
of Approved Basketball Officials, 710 F.3d 114, 119 (3d Cir. 2013).
At this stage of the litigation, plaintiff asserted federal legal claims against
Board 193; the New Jersey State Interscholastic Athletic Association (NJSIAA),
the entity that controls and supervises post-season tournament games and
assigns officials to referee those games; the International Association of
Approved Basketball Officials (IAABO), and the Colonial Valley Conference
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(CVC). The Third Circuit noted, however, that plaintiff had not made any
federal claims against Dumont. Id. at 117 n. 2. The Third Circuit upheld the
District Court's decision to dismiss with prejudice plaintiff's claims against
IAABO and CVC, and remanded the "matter to the District Court to give
Covington an opportunity to provide more facts as to her claim against [the]
Hamilton [School District], Board 193, and NJSIAA." Id. at 120.
On remand, the District Court conducted a scheduling conference. While
discovery was still ongoing, plaintiff sought to file a third amended complaint.
In a letter dated April 24, 2013 addressed to the Magistrate Judge, plaintiff's
counsel stated:
Defendants in this matter claim that Ms. Covington is
an independent contractor rather than an employee in
the provision of her basketball officiating services, and
therefore there can be no liability under her federal
cause of action under Title VII.
The purpose of the proposed amendment is to clarify in
the pleadings that even if [d]efendants are correct that
Ms. Covington is an independent contractor rather than
an employee, this does not dispose of their liability
under Ms. Covington's State law supplemental claims
under the LAD.
The Magistrate Judge denied plaintiff's motion to amend her complaint
for a third time. In a memorandum of opinion in support of his decision, the
Magistrate Judge first determined that the scope of the remand ordered by the
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Third Circuit did not confine him to only reviewing Title VII claims. The
District Court also had supplemental jurisdiction over plaintiff's state law claims
under 28 U.S.C. §1367(a). The Magistrate Judge noted that plaintiff sought to
amend her complaint for a third time to include a claim against the Hamilton
School District, in her role as an independent contractor, for engaging in alleged
discriminatory practices based on sex under N.J.S.A. 10:5-12(l)1 of the LAD.
The Magistrate Judge noted that "[w]hile such amendments are to be
liberally granted, such liberality does not extend to amendments that are unduly
delayed, prejudicial, made in bad faith or futile." The Magistrate Judge first
addressed the question of timeliness and noted the case was then "more than five
years old."2 Plaintiff had twice amended the complaint. Discovery was
complete and the parties were "on the eve of filing dispositive motions."
"[O]ther than the oversight of counsel[,]" plaintiff did not offer any grounds for
not including this theory of liability earlier.
1
Under N.J.S.A. 10:5-12(l), it is an unlawful employment practice or unlawful
for any person to refuse to contract with any person on a variety of bases,
including sex, gender identity or expression, and/or affectional or sexual
orientation.
2
The Magistrate Judge issued the decision on October 11, 2013.
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Finally, despite plaintiff's counsel then belated discovery of our then
three-year-old decision in J.T.'s Tire Service, Inc. v. United Rentals North
America, Inc., 411 N.J. Super. 236 (App. Div. 2010), we have repeatedly
reaffirmed the LAD's public policy that prohibits the refusal to do business with
an independent contractor based on sex. Id. at 240 (citing Nini v. Mercer County
Cmty. Coll., 406 N.J. Super. 547, 557 (App. Div. 2009); Rubin v. Forest S.
Chilton, 3rd, Mem'l Hosp., Inc., 359 N.J. Super. 105, 110-11 (App. Div. 2003);
Horn v. Mazda Motor of Am., Inc., 265 N.J. Super. 47, 63 (App. Div. 1993)).
In this light, the Magistrate Judge found that whether due to attorney oversight
or the result of a strategic decision, "the fact remains that it is incumbent on the
party seeking to amend to show that there has been no undue delay in bringing
the amendment before the [c]ourt." The Magistrate Judge found plaintiff did
not provide a reasonable explanation to justify this undue delay in seeking to
amend her complaint for a third time.
The Magistrate Judge next concluded that allowing plaintiff to amend her
complaint at this phase of the litigation would also prejudice defendants. He
emphasized that throughout more than five years of discovery, defendants'
defense strategy had been predicated on plaintiff's alleged employment
relationship. By the time plaintiff's motion to amend her complaint for a third
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time was ripe for disposition in November 2013, the discovery period had been
closed for five months. Against this backdrop, the Magistrate Judge found
defendants' claim of prejudice "compelling."
In large part, this is due to the fact that they built their
defense based upon evidence of their employment of
women. If the focus were to change to [p]laintiff as an
independent contractor, they, and particularly [the
Hamilton School District], would in turn want to shift
the evidence supporting their defenses, to include other
women with whom they have contracted over the years.
In the context of athletic relationships, and more
particularly women referees, they note that this would
entail reaching out to [Hamilton School District's]
former athletic directors, many of whom have retired
and some of whom have passed away in the ten years
since [p]laintiff's claim first arose. While that evidence
may have been available to them in 2008 when the
[c]omplaint was first filed, [most] of it is likely gone at
this late stage.
The Magistrate Judge thus denied plaintiff's motion to amend her
complaint for a third time "both because it is untimely at this late stage of the
litigation, and because allowing it would clearly impose substantial prejudice on
the [d]efendants remaining in the case."
II.
Plaintiff filed this LAD action in the Mercer County Law Division on July
13, 2015, alleging gender discrimination as an employee of the Hamilton School
District, and characterizing Board 193 and Dumont as aiders and abettors.
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Alternatively, plaintiff alleged she was entitled to relief as an independent
contractor under N.J.S.A. 10:5-12(l). The Hamilton School District moved for
summary judgment before the Law Division judge arguing plaintiff was not its
employee and was procedurally barred from relitigating her claims as an
independent contractor based on the Federal District Court's ruling.
On January 16, 2016, the Law Division judge granted the Hamilton School
District's motion and dismissed the case with prejudice. Applying this court's
twelve-factor test for determining the employment status of a litigant in
Pukowsky v. Caruso, 312 N.J. Super. 171, 182-83 (App. Div. 1998),3 the motion
judge concluded plaintiff has never been an employee of the Hamilton School
District. The Hamilton School District argues that based on the Federal District
Court's earlier ruling, plaintiff was precluded under res judicata from relitigating
the question of her employment status in the Superior Court. Alternatively,
defendants argue the motion judge correctly applied the test in Pukowsky to
conclude plaintiff was not an employee of the Hamilton School District.
3
Our Supreme Court has adopted the twelve-factor "hybrid" approach in
Pukowsky for determining whether a party seeking relief under the LAD is an
employee of the defendant. D'Annunzio v. Prudential Ins. Co. of America, 192
N.J. 110, 123 (2007); see also Estate of Kotsovska, ex rel. Kotsovska v.
Liebman, 221 N.J. 568, 594 (2015).
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We disagree that plaintiff was barred under res judicata from asserting this
LAD claim in the Superior Court.
The principle of res judicata has evolved principally in
the judicial system to prevent the same claims
involving the same parties from being filed and brought
before a court repeatedly. Velasquez v. Franz, 123 N.J.
498, 505 (1991). It is a salutary rule that respects the
finality of the initial decision, limits the burden of
litigation on adverse parties, and removes unnecessary
litigation from the courts.
[Ten Stary Dom Partnership v. Mauro, 216 N.J. 16, 39
(2013).]
Here, the Federal District Court exercised its supplemental jurisdiction to
review and deny plaintiff's motion to amend her complaint to assert a claim
against defendants under the LAD as an independent contractor. The Federal
Court's ruling denying the motion to amend did not reach the underlying merits
of plaintiff's claims. In Velasquez, the Court explained:
The rationale underlying res judicata recognizes that
fairness to the defendant and sound judicial
administration require a definite end to litigation. The
doctrine evolved in response to the specific policy
concerns of providing finality and repose for the
litigating parties; avoiding the burdens of re[-]litigation
for the parties and the court, and maintaining judicial
integrity by minimizing the possibility of inconsistent
decisions regarding the same matter.
[123 N.J. at 505.]
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The doctrine of res judicata contains three basic elements: "(1) the
judgment in the prior action must be valid, final, and on the merits; (2) the
parties in the later action must be identical to or in privity with those in the prior
action; and (3) the claim in the later action must grow out of the same transaction
or occurrence as the claim in the earlier one." Watkins v. Resorts Int’l Hotel &
Casino, 124 N.J. 398, 412 (1991). For a ruling to have preclusive effect, "it
must be a valid and final adjudication on the merits of the claim." Velazquez,
123 N.J. at 506.
Here, the issues before the Federal Magistrate Judge and the Law Division
judge were not identical. The federal court was asked to decide whether to grant
plaintiff's motion to amend her complaint for a third time. The Law Division
was asked to apply the standard codified in Rule 4:46-2(c), and determine
whether plaintiff's complaint was legally sustainable. Of particular relevance to
this analysis, the Federal Magistrate Judge did not conclude that plaintiff's
independent contractor claim was futile.
Despite its silence as to a limitations period, it is now well-settled that the
two-year limitations period of N.J.S.A. 2A:14-2 applies to LAD claims,
"regardless of the underlying factual nature of the particular LAD claim."
Rodriguez v. Raymours Furniture Co. Inc., 225 N.J. 343, 357 (2016) (citing
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Montells v. Haynes, 133 N.J. 282, 291-92 (1993)). Although this issue was
raised by defendants at oral argument, the motion judge did not decide the
summary judgment motion on this basis. However, it is long-settled that "[a]
judgment will be affirmed on appeal if it is correct, even if the judge provided
the wrong reasons for the decision." Neu v. Planning Bd. of Tp. of Union, 352
N.J. Super. 544, 551 (App. Div. 2002).
Plaintiff filed her Superior Court complaint on July 13, 2015. Every
deposition taken in this proceeding occurred prior to July 13, 2013. The last
basketball season plaintiff identified to demonstrate she was discriminated
because of gender occurred from November 2012 to April 2013. All the
certifications relied on by plaintiff were signed before July 13, 2013. In short,
there is no evidence in the record supporting that an alleged LAD violation
occurred after July 13, 2013. Plaintiff was not an employee of the Hamilton
School District and thus not protected by the LAD. We discern no basis to
overturn the Law Division's order granting defendants' motion for summary
judgment and dismissing as a matter of law plaintiff's claims as an independent
contractor under N.J.S.A. 10:5-12(l).
Affirmed.
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