NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3223-24
BRENDA DE OLIVEIRA,
Plaintiff-Appellant,
v.
SUMMIT HEALTH,
Defendant-Respondent,
and
V.P. and MARY KAY O'CONNOR,
Defendants. ________________________
Submitted April 21, 2026 – Decided June 24, 2026
Before Judges Gilson and Perez Friscia.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-1844-22.
Maxwell, Tassini, & Gardner, LLC, attorneys for appellant (David Gardner, on the brief). Jackson Lewis PC, attorneys for respondent (Carla D. Macaluso and Stephanie E. Marshall, on the brief).
PER CURIAM
Plaintiff Brenda De Oliveira appeals from an April 2, 2025 order
dismissing with prejudice her complaint alleging that her former employer,
defendant Summit Health Management, LLC (Summit Health), violated the Law
Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50, by subjecting her to a
hostile work environment and retaliation. Plaintiff's hostile work environment
claim is barred by the applicable two-year statute of limitations, and she failed
to state a retaliation claim against Summit Health. Accordingly, we affirm.
I.
We summarize the relevant facts from plaintiff's second amended
complaint, giving plaintiff "the benefit of 'every reasonable inference of fact.'"
Baskin v. P.C. Richard & Son, LLC, 246 N.J. 157, 178 (2021) (quoting
Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 237
N.J. 91, 107 (2019)). We note, however, that this matter had been pending for
over three years and when the trial court made its ruling it pointed out the parties
had failed to engage in substantive discovery and the discovery period had
ended.
A-3223-24 2 Plaintiff worked for Summit Health from 2003 until January 2022. In
2018, she began working as a lab assistant at the Summit Health's Berkeley
Heights laboratory. Her supervisor at the laboratory was V.P., and the
laboratory director was Mary Kay O'Connor. V.P. is disabled and uses a
wheelchair.1
As part of her duties at the Berkeley Heights laboratory, plaintiff was
assigned to assist V.P. whenever she needed to go to the bathroom. She asserted
that she was directed to escort V.P. "to the bathroom, remov[e] [V.P.'s] clothing
and underwear, lift[] her from her wheelchair to get her onto the toilet, redress[]
[V.P.,] lift[] her off of the toilet to get her back into her wheelchair[,] and help
[V.P.] position herself to leave the bathroom." Plaintiff also alleged that it took
"roughly twenty (20) minutes" each time V.P. went to the bathroom, and she
assisted V.P. one to three times each workday for nearly two years.
In March 2020, plaintiff complained to the human resources office of
Summit Health concerning her bathroom assistant duties. Plaintiff alleges that
she verbally told a person in the human resources office that her bathroom duties
1 Because we discuss V.P.'s disabilities, we use initials to protect her privacy interests. A-3223-24 3 were "causing her extreme physical discomfort." 2 "Immediately" after plaintiff
complained to human resources, plaintiff was informed she no longer needed to
assist V.P. in going to the bathroom.
Plaintiff contends that "[s]hortly after her complaint," V.P. and O'Connor
intimidated lab employees to learn who had made the report to human resources.
She asserts that when V.P. and O'Connor learned it was plaintiff who
complained, they retaliated against her by increasing her workload.
Additionally, plaintiff alleges that the increased workload "exacerbated" a pre-
existing health condition, which required her to obtain medical treatment and
led to her becoming "permanently disabled in August of 2020." After becoming
permanently disabled, plaintiff was unable to return to work. Effective January
20, 2022, plaintiff's employment at Summit Health was terminated.
On June 24, 2022, plaintiff sued Summit Health, V.P., and O'Connor. In
her initial complaint, plaintiff asserted four counts alleging violations of the
LAD. In count one, she alleged that V.P. had violated the LAD by assigning
2 While this appeal was pending, we directed the parties to submit any written report made by plaintiff to the human resources office. Plaintiff's counsel confirmed the report was made verbally and counsel also confirmed that no discovery had been conducted concerning what the human resources office did in response to plaintiff's complaint. Plaintiff's counsel suggested that plaintiff should now be allowed to conduct discovery on how the human resources office responded. A-3223-24 4 her to assist V.P. when she went to the bathroom, which plaintiff contended was
gender discrimination and caused a hostile work environment. In her second
count, she alleged that O'Connor had violated the LAD by assisting V.P. in
discriminating against plaintiff and subjecting her to a hostile work
environment. In the third count, plaintiff asserted O'Connor and V.P. violated
the LAD by retaliating against her after she complained of her bathroom duties.
In the fourth count, plaintiff asserted that Summit Health was "vicariously"
liable for the actions of V.P. and O'Connor who were her "supervisors."
Plaintiff thereafter amended her complaint in December 2022. Almost a
year and a half later, on April 30, 2024, plaintiff filed a second amended
complaint, which was the complaint addressed by the trial court on the motion
to dismiss. In her second amended complaint, plaintiff asserted three causes of
action: (1) a hostile work environment claim against Summit Health (count one);
(2) a retaliation claim against O'Connor and V.P. (count two); and (3) a claim
that O'Connor aided and abetted V.P.'s discriminatory conduct (count three).
V.P. moved to dismiss the claims against her, arguing plaintiff failed to
comply with a prior court order and failed to state a claim for relief against her.
On May 10, 2024, the court granted that motion and dismissed the claims against
V.P. with prejudice. Plaintiff is not appealing from that order.
A-3223-24 5 Discovery in the case closed in February 2025. Thereafter, Summit Health
and O'Connor moved to dismiss plaintiff's second amended complaint under
Rule 4:6-2(e) for failure to state a claim. On April 2, 2025, after hearing
argument, the trial court issued a comprehensive written decision and order
dismissing plaintiff's second amended complaint with prejudice as to Summit
Health and O'Connor. Plaintiff is not challenging the dismissal of her claims
against O'Connor.
Addressing Summit Health's motion, the trial court initially noted that
Summit Health had previously moved to dismiss the initial complaint, and the
court had denied that motion and allowed plaintiff to amend her complaint. The
trial court then determined plaintiff's hostile work environment claim against
Summit Health was time-barred. The court pointed out that the LAD claims are
governed by a two-year statute of limitations. In her second amended complaint,
plaintiff asserted that the hostile work environment was based on her having to
perform bathroom assist duties for Pilhcik. Plaintiff admitted that those duties
ended in March 2020, "[i]mmediately" after she complained about those duties.
Because plaintiff's first complaint was filed on June 24, 2022, the court
dismissed the hostile work environment claim as time-barred.
A-3223-24 6 The trial court also rejected plaintiff's arguments that the hostile work
environment was part of a continuing pattern of discrimination related to her
retaliation claims. The court reasoned that the hostile work environment claim
was distinct and separate from the retaliation claims. Therefore, they were not
continuous claims under the LAD.
Next, the court analyzed plaintiff's retaliation claim. First, the court noted
that despite amending her complaint twice, plaintiff had not named Summit
Health in her retaliation claim in the second amended complaint. Nevertheless,
the court gave plaintiff every reasonable inference and went on to analyze the
retaliation claim on its substantive merits. The court determined plaintiff had
made no showing that Summit Health was aware of the alleged retaliation by
V.P. and O'Connor. Moreover, the court pointed out that plaintiff had not
articulated her complaint as one based on gender discrimination until she filed
her complaint in June 2022.
Plaintiff moved for reconsideration. The court heard further argument,
and, on May 23, 2025, the court entered an order and issued a written opinion
denying reconsideration. In denying reconsideration, the trial court also held
there was no basis for allowing plaintiff to try to amend her complaint for a third
time. In that regard, the court pointed out that plaintiff had opposed a previous
A-3223-24 7 motion to dismiss, and then amended her complaint a second time, but still had
not directly named Summit Health in the retaliation claim. The court also
pointed out that plaintiff had not asserted any allegations in her second amended
complaint to support a retaliation claim against Summit Health.
Plaintiff now appeals from the April 2, 2025 and May 25, 2025 orders,
challenging only the dismissal of her claims against Summit Health.
II.
Appellate courts use a de novo standard when reviewing an order
dismissing a complaint for failure to state a claim upon which relief can be
granted. Baskin, 246 N.J. at 171. When reviewing a motion to dismiss under
Rule 4:6-2(e), we assume that the allegations in the pleadings are true and afford
the pleader all reasonable factual inferences. Seidenberg v. Summit Bank, 348
N.J. Super. 243, 249-50 (App. Div. 2002). Legal sufficiency "requires
allegation of all the facts that the cause of action requires." Cornett v. Johnson
& Johnson, 414 N.J. Super. 365, 385 (App. Div. 2010), aff'd as modified, 211
N.J. 362 (2012). Accordingly, courts should search the complaint "thoroughly
'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.'" Baskin, 246 N.J. at 171 (quoting Printing Mart-
A-3223-24 8 Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)). "Where, however,
it is clear that the complaint states no basis for relief and that discovery would
not provide one, dismissal of the complaint is appropriate." J.D. ex rel. Scipio-
Derrick v. Davy, 415 N.J. Super. 375, 397 (App. Div. 2010) (quoting County of
Warren v. State, 409 N.J. Super. 495, 503 (App. Div. 2009)).
III.
On appeal, plaintiff raises a series of related arguments, essentially
presenting four contentions: (1) she alleged sufficient facts to demonstrate the
hostile work environment continued with and through the retaliation and none
of her claims against Summit Health were time-barred; (2) she adequately pled
retaliation under the LAD against Summit Health; (3) she should have been
allowed to amend her complaint a third time; and (4) she should have been
granted reconsideration and the April 2, 2025 order as it relates to Summit
Health should have been vacated. The record and law do not support these
arguments.
A. The Hostile Work Environment Claim.
In her second amended complaint, plaintiff asserts that she was subject to
a hostile work environment because she was a woman. Specifically, she alleges
A-3223-24 9 that she was singled out as a woman and assigned to assist V.P. go to the
bathroom.
The LAD prohibits unlawful employment practices and discrimination in
the form of harassment "based on race, religion, sex, or other protected status,
that creates a hostile work environment." Cutler v. Dorn, 196 N.J. 419, 430
(2008); N.J.S.A. 10:5-12(a). To state a hostile work environment claim under
the LAD, plaintiff must show "the complained-of conduct (1) would not have
occurred but for the employee's protected status, and was (2) severe or pervasive
enough to make a (3) reasonable person believe that (4) the conditions of
employment have been altered and that the work environment is hostile or
abusive." Shepherd v. Hunterdon Dev. Ctr., 174 N.J. 1, 24 (2002) (citing
Lehmann v. Toys R Us, Inc., 132 N.J. 587, 603-04 (1993)). In assessing a LAD
claim, a court should consider the totality of the circumstances, including "the
frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee's work performance." Green v. Jersey
City Bd. of Educ., 177 N.J. 434, 447 (2003) (quoting Shepherd, 132 N.J. at 19-
20).
A-3223-24 10 The LAD has a two-year statute of limitations. Montells v. Haynes, 133
N.J. 282, 292 (1993). Accordingly, for "discrete retaliatory or discriminatory
act[s]," the action accrues on the day the acts happen. Shepherd, 174 N.J. at 19
(adopting and applying the reasoning in National Railroad Passenger Corp. v.
Morgan, 536 U.S. 101, 120 (2002) regarding Title VII to claims under the LAD).
Plaintiff's allegations are clear that the hostile work environment was
based on her duties to assist V.P. in going to the bathroom. She admitted that
those duties ended in March 2020, "[i]mmediately" after she complained about
those duties to the human resources department. Her first complaint, however,
was not filed until more than two years later on June 24, 2022. Accordingly, the
trial court correctly dismissed the hostile work environment claim against
Summit Health based on the statute of limitations.
Plaintiff argues the limitation period had not expired because she was
subjected to ongoing discriminatory conduct beyond March 2020, when V.P.
and O'Connor retaliated against her. In that regard, her second amended
complaint asserts that the retaliatory conduct continued up to August of 2020.
There is an equitable exception to the two-year LAD statute of limitations
for "continual, cumulative pattern[s]" of discrimination. Roa v. Roa, 200 N.J.
555, 566 (2010). Consequently, when the discrimination continues over a period
A-3223-24 11 of time, the LAD violation may be deemed timely if it is part of a continuing
violation. Ibid. Continuing violations are "a series of separate acts that
collectively constitute one 'unlawful employment practice.'" Id. at 567 (quoting
Morgan, 536 U.S. at 117). When the violations continue, the LAD cause of
action accrues on the date of the last discriminatory act. Ibid. (quoting Morgan,
536 U.S. at 117).
Plaintiff's hostile work environment claims are distinct and separate from
her claims of retaliation. Even reading plaintiff's complaint in the most generous
light, she clearly alleges that the hostile work environment was based on her
duties to assist V.P. in going to the bathroom. The retaliation claims are separate
because they are actions that plaintiff alleged occurred after her bathroom duties
ended and after she complained of those duties. Accordingly, plaintiff was not
entitled to toll the statute of limitations under the continuing violation doctrine.
B. The Retaliation Claim.
To prove a claim of retaliation, a plaintiff must establish: (1) she engaged
in a protected activity known to the employer, such as making a good faith
complaint of unlawful discrimination; (2) an adverse employment action; and
(3) causation. Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 547 (2013);
Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 372-73 (2007). The key
A-3223-24 12 element of a retaliatory claim under the LAD is that the plaintiff has "engaged
in a protected activity, which is known by the alleged retaliator." Cohen v. B.H.
Media Group, Inc., 419 F. Supp. 3d 831, 861 (D.N.J. 2019) (quoting Erickson
v. Marsh & McLennan Co., 117 N.J. 539, 560 (1990)).
"[A] person engages in protected activity under the LAD when that person
opposes any practice rendered unlawful under the LAD." Young v. Hobert W.
Grp., 385 N.J. Super. 448, 466 (App. Div. 2005). To be considered protected
activity, an employee's complaint "must concern discrimination" and must be
more than a general complaint of unfair treatment. Dunkley v. S. Coraluzzo
Petroleum Transporters, 437 N.J. Super. 366, 377 (App. Div. 2014), aff'd, 221
N.J. 217 (2015).
Read in the light most generous to plaintiff, her second amended
complaint does not demonstrate that she complained of a protected activity.
Plaintiff candidly acknowledges that she complained of her duties in assisting
V.P. to go to the bathroom. She also candidly acknowledges that when she made
her complaint to Summit Health, she did not claim that it was based on gender
discrimination. Instead, she complained that the duty caused her "extreme
physical discomfort." Indeed, assisting a handicapped person to go to the
bathroom is not an overtly discriminatory practice; many objectively reasonable
A-3223-24 13 people could view that duty as acts of kindness. Moreover, the duties would
have to be handled by a person of the same gender as V.P. Significantly,
plaintiff did not expressly claim the bathroom duty was gender discrimination.
Consequently, following the close of discovery in this matter, plaintiff has no
evidence to demonstrate that she claimed that she was subject to gender
discrimination and that she made that claim known to Summit Health.
In addition, plaintiff does not allege that she complained to Summit Health
concerning the retaliation she alleges V.P. and O'Connor engaged in after her
bathroom duties ended. Consequentially, plaintiff did not sufficiently plead
facts supporting a vicarious liability claim against Summit Health based on the
alleged retaliatory acts committed by V.P. and O'Connor.
The trial court also dismissed plaintiff's retaliation claim based on the
statute of limitations. The court pointed out that plaintiff had twice amended
her complaint and in her second amended complaint specifically chose to assert
the retaliation claim only against V.P. and O'Connor. Moreover, the alleged
retaliation ended in August 2020, when she went on medical leave. Because
discovery had closed, and because she filed her second amended complaint in
April 2024, we agree the statute of limitations was an alternative ground for
dismissing the claim of retaliation against Summit Health.
A-3223-24 14 C. The Request to Amend the Complaint a Third Time.
The decision of whether to grant leave to amend a complaint is left to "the
trial 'court's sound discretion,'" and a trial court's decision will only be disturbed
on a showing of abuse of that discretion. C.V. by C.V. v. Waterford Twp. Bd.
of Educ., 255 N.J. 289, 306 (2023) (quoting Kernan v. One Washington Park
Urb. Renewal Assocs., 154 N.J. 437, 456-57 (1998)). An abuse of discretion
occurs "when a decision is 'made without a rational explanation, inexplicably
departed from established policies, or rested on an impermissible basis.'" Flagg
v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez
v. Immigr. & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).
Normally, a motion to dismiss is granted without prejudice to a plaintiff's
right to amend the complaint. Smith v. SBC Commc'ns Inc., 178 N.J. 265, 282
(2004); Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006). Given the
proceedings in this matter, however, we discern no abuse of discretion in the
trial court's decision to deny plaintiff's request to amend the complaint a third
time. Plaintiff filed her action in June 2022. The trial court pointed out that
discovery had closed by the time it made its decision on Summit Health's second
motion to dismiss the second amended complaint for failure to state a cause of
action against Summit Health. The trial court also pointed out that plaintiff had
A-3223-24 15 failed to take any substantive discovery, and her complaint had previously been
dismissed for failure to prosecute the matter. Given that procedural history, the
trial court did not abuse its discretion by denying plaintiff permission to file yet
another amended complaint.
D. The Motion for Reconsideration.
Having determined that the trial court correctly dismissed all claims
against Summit Health, there is no basis to reverse the trial court's order denying
reconsideration. In short, plaintiff has not shown that the trial court made a
decision that was palpably incorrect or failed to consider relevant facts. See
Kornbleuth v. Westover, 241 N.J. 289, 301 (2020) (quoting Guido v. Duane
Morris LLP, 202 N.J. 79, 87-88 (2010)) (explaining the trial court will only grant
reconsideration when its decision rested on a "palpably incorrect or irrational
basis" or "failed to consider probative, competent evidence").
Affirmed.
A-3223-24 16