Opinion
DOCKET NO. A-0848-14T4
03-31-2016
ROBERT FERGUSON, Plaintiff-Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, CIVIL SERVICE COMMISSION, GARY M. LANIGAN, COMMISSIONER, KENNETH C. GREEN and RANDY VALENTIN (In Their Individual and Official Capacities), Defendants-Respondents.
Luretha M. Stribling argued the cause for appellant. Mark D. McNally, Deputy Attorney General, argued the cause for respondents (John J. Hoffman, Acting Attorney General, attorney; (Melissa H. Raksa, Assistant Attorney General, of counsel; Cheryl A. Citera, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2089-13. Luretha M. Stribling argued the cause for appellant. Mark D. McNally, Deputy Attorney General, argued the cause for respondents (John J. Hoffman, Acting Attorney General, attorney; (Melissa H. Raksa, Assistant Attorney General, of counsel; Cheryl A. Citera, Deputy Attorney General, on the brief). PER CURIAM
Plaintiff Robert Ferguson appeals from the August 8, 2014 Law Division order, which dismissed the first amended complaint with prejudice pursuant to Rule 4:6-2(e). Plaintiff also appeals from the September 23, 2014 Law Division order, which denied his motion for reconsideration. For the following reasons, we affirm.
We derive the following facts from the record. Plaintiff, an African-American, is employed as a corrections officer by defendant New Jersey Department of Corrections (DOC). Prior to 2011, he was assigned to the Adult Diagnostic Treatment Center (ADTC). In June 2009, the DOC initiated disciplinary proceedings against him for conduct unbecoming a public employee and undue familiarity with an inmate. The DOC sustained the charges and terminated him on August 31, 2009.
Plaintiff appealed to defendant New Jersey Civil Service Commission (Commission). On April 6, 2011, the Commission adopted the decision of an Administrative Law Judge reversing the termination and ordering plaintiff's reinstatement, effective August 25, 2009, with back pay, other accompanying employment benefits, and counsel fees. Upon plaintiff's reinstatement in April 2011, the DOC transferred him to Northern State Prison (NSP).
On March 15, 2013, plaintiff and others filed a complaint against the DOC, Commission, and other defendants, asserting violations of the federal constitution and 42 U.S.C.A. § 1983; the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -49; the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2; and the New Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -14. Plaintiffs alleged no specific facts supporting these claims. The complaint was never served on the defendants, and the matter was placed on the inactive list.
Plaintiff retained a new attorney, who had the complaint reinstated. On May 9, 2014, plaintiff alone filed a first amended complaint, asserting only claims of racial discrimination, harassment and hostile work environment in violation of the NJLAD (counts one and two); interference with economic advantage and future job prospects (count three); malicious prosecution (count four); and violation of the State constitution and NJCRA (count five). In support of these claims, plaintiff only asserted facts relating to the DOC's disciplinary action against him and his termination from employment on August 31, 2009. Plaintiff did not base his claims on his transfer to NSP following reinstatement.
On July 18, 2014, defendants filed a motion to dismiss the complaint pursuant to Rule 4:6-2(e) based on the applicable two-year statute of limitations and plaintiff's failure to comply with the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. Following oral argument by plaintiff's counsel, the trial judge entered an order on August 8, 2014, dismissing counts one, two and five based on the two-year statute of limitations. The judge also dismissed counts three and four for failure to comply with the TCA notice requirements, and dismissed all claims as to the Commission based on N.J.S.A. 59:2-3. In this appeal, plaintiff only challenges the dismissal of counts one, two and five.
Defense counsel did not appear for oral argument.
Plaintiff did not supply the transcript on appeal in violation of Rule 2:5-4(a).
Plaintiff filed a motion for reconsideration. For the first time, plaintiff asserted new facts relating to his transfer to NSP in April 2011 that were not alleged in his original or first amended complaint. He also argued for the first time that: (1) because his transfer constituted an adverse employment action, his original complaint filed in March 2013 was within the two-year statute of limitations; and (2) his NJLAD claims were tolled under the continuing violation theory. The judge denied the motion, finding that plaintiff improperly raised new facts relating to his transfer that were never asserted in his first amended complaint. On appeal, plaintiff reiterates the arguments made on the motion for reconsideration.
The judge also relied on arguments made in defendants' brief. Plaintiff has not supplied the brief on appeal. --------
Our review of a trial court's dismissal of a complaint pursuant to Rule 4:6-2(e) is de novo. Nostrame v. Santiago, 213 N.J. 109, 126-27 (2013). Our inquiry "'is limited to examining the legal sufficiency of the facts alleged on the face of the complaint.'" Green v. Morgan Prop., 215 N.J. 431, 451 (2013) (quoting Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)). Accordingly, the test is whether a cause of action is "'suggested'" by the facts. Printing Mart-Morristown, supra, 116 N.J. at 746 (quoting Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)). Thus, we must "'search[] the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary.'" Green, supra, 215 N.J. at 452 (quoting Printing Mart-Morristown, supra, 116 N.J. at 746).
As for the denial of the motion for reconsideration, we have determined that
[r]econsideration itself is a matter within the sound discretion of the [c]ourt, to be exercised in the interest of justice[.] It is not appropriate merely because a litigant is dissatisfied with a decision of the court or wishes to reargue a motion, but should be utilized only for those cases which fall into that narrow corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.Notably, a party is not permitted to use a motion for reconsideration as a basis for presenting new facts or arguments that could have been provided in opposition to the original motion. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). We will not disturb a trial judge's denial of a motion for reconsideration absent an abuse of discretion. Id. at 389.
[Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (citation omitted).]
Here, plaintiff never asserted in either his original complaint or amended complaint that his transfer to NSP following his reinstatement in April 2011 formed the basis of any of his claims. For the first time on reconsideration, plaintiff raised new facts and new arguments relating to his transfer to support his newly devised continuing violation theory. Because this was improper, the judge correctly denied the motion for reconsideration.
The judge also correctly dismissed this matter with prejudice based on the statute of limitations. The statute of limitations for NJLAD claims is two years. Montells v. Haynes, 133 N.J. 282, 292 (1993). This limitations period is a salutary equitable construct meant to "spare courts from litigating stale claims, penalize delay, and provide repose" after the passage of a certain amount of time, and it is supported by "both fairness and efficiency." Id. at 293 (citations omitted). In most NJLAD cases, the cause of action arises from a discrete act. "Discriminatory termination and other similar abrupt, singular adverse employment actions that are attributable to invidious discrimination . . . generally are immediately known injuries, whose two year statute of limitations period commences on the day they occur." Alexander v. Seton Hall Univ., 204 N.J. 219, 228 (2010). Discrete acts are those "such as termination, failure to promote, denial of transfer, or refusal to hire" and for purposes of a statute of limitations, a discrete act occurs on the day it happens. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110, 114, 122 S. Ct. 2061, 2070, 2073, 153 L. Ed. 2d 106, 120, 122 (2002).
Alternatively, a plaintiff may have a viable claim under the continuing violation theory, which is "a judicially created doctrine . . . [that] has developed as an equitable exception to the statute of limitations" in NJLAD cases. Bollinger v. Bell Atl., 330 N.J. Super. 300, 306 (App. Div.), certif. denied, 165 N.J. 491 (2000). The doctrine provides that when an individual experiences "a continual, cumulative pattern of tortious conduct, the statute of limitations does not begin to run until the wrongful action ceases." Wilson v. Wal-Mart Stores, 158 N.J. 263, 272 (1999). The premise underlying the doctrine is that conduct becomes actionable because of its "'continuous, cumulative, synergistic nature.'" Id. at 273 (quoting Bustamento v. Tucker, 607 So.2d 532, 542 (La. 1992)); see also Ali v. Rutgers, 166 N.J. 280, 286 (2000) (reaffirming "existing jurisprudence" as articulated in Wilson, supra, 158 N.J. 272).
To establish a continuing violation based on a series of discriminatory acts, the court must consider two questions:
First, have plaintiffs alleged one or more discrete acts of discriminatory conduct by defendants? If yes, then their cause of action would have accrued on the day on which those individual acts occurred. Second, have plaintiffs alleged a pattern or series of acts, any one of which may not be actionable as a discrete act, but when viewed cumulatively constitute a hostile work environment? If yes, then their cause of action would have accrued on the date on which the last act occurred, notwithstanding "that some of the component acts of the hostile work environment [have fallen] outside the statutory time period."
[Shepherd v. Hunterdon Dev. Ctr., 174 N.J. 1, 21 (2002) (alteration in original)
(quoting Morgan, supra, 536 U.S. at 117, 122 S. Ct. at 2074, 153 L. Ed. 2d at 124).]Drawing a distinction between aggregation of discrete, time-barred acts and a continuing violation, consisting of actions which do not individually rise to the level of a NJLAD violation, is one of the key determinations. The Court has made it clear that the continuing violation 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." Roa v. Roa, 200 N.J. 555, 569 (2010).
Plaintiff's first amended complaint asserted NJLAD claims of racial discrimination, harassment, and hostile work environment based solely on facts relating to the disciplinary action against him and the termination from employment on August 31, 2009. Thus, on its face, plaintiff's NJLAD claims accrued when he was terminated on August 31, 2009. Termination is a clear discrete act under case law which triggers the beginning of the two-year statute of limitations. Alexander, supra, 204 N.J. at 228. Accordingly, plaintiff's original complaint filed on March 15, 2013 was barred by the two-year statute of limitations.
For the sake of completeness, we conclude that plaintiff's NJLAD claims do not survive under the continuing violation theory. A continuing violation is a series of non-discrete acts which, when taken together, establish a pattern of conduct. However, plaintiff's situation is not a continuing violation. First, his termination from employment was clearly a discrete act whose cause of action accrued on the day it occurred. A termination is a classic example of a discrete act. Morgan, supra, 536 U.S. at 110, 114, 122 S. Ct. at 2070, 2073, 153 L. Ed. 2d at 120, 122. Similarly, a transfer is a discrete act in line with the examples cited in Morgan. See Morgan, supra, 536 U.S. at 114, 122 S. Ct. at 2073, 153 L. Ed. 2d at 122. Because a termination and transfer are two, individual discrete acts, plaintiff cannot combine the two in order to establish a continuing violation, as our case law expressly prohibits aggregation of time-barred discrete acts. Roa, supra, 200 N.J. at 567.
Next, the facts do not indicate a pattern that was "continuous, cumulative, [or] synergistic[.]" Wilson, supra, 158 N.J. at 273. Aside from his termination and transfer, the only other conduct plaintiff points to are two incidents in 2009: one involving African-American and Caucasian corrections officers who received different disciplinary actions for the same infraction; and the other involving a Caucasian corrections officer who, like plaintiff, was accused of improper conduct, but did not face disciplinary action and instead was allowed to retire. These two incidents, if true, did not directly involve plaintiff in any way. Thus, plaintiff himself did not experience a cumulative or continuous pattern of conduct rising to the level of a continuing violation based on these incidents. Instead, plaintiff is simply trying to use his April 2011 transfer to "sweep in" the other time-barred allegations of discriminatory conduct, which is not permitted. Roa, supra, 200 N.J. at 569.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION