NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4722-16T1
DANA S. REGISTER,
Plaintiff-Appellant,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS and LEON WILLIAMS,
Defendants-Respondents. _______________________________
Argued December 18, 2018 – Decided January 28, 2019
Before Judges Fisher and Firko.
On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-0303-16.
Luretha M. Stribling argued the cause for appellant.
Agnes I. Rymer, Deputy Attorney General, argued the cause for respondents (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Joel Clymer, Deputy Attorney General, on the brief).
PER CURIAM Plaintiff Dana Register appeals from the trial court's order granting
summary judgment dismissal of her complaint alleging gender discrimination,
hostile work environment, and aiding and abetting under the New Jersey Law
Against Discrimination, N.J.S.A. 10:5-12. Having reviewed plaintiff's
arguments in light of the facts and applicable principles of law, we reverse and
remand.
We derive the following facts from the record, extending to plaintiff all
favorable inferences. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995). On December 2, 2013, plaintiff, a Department of Corrections (DOC)
employee, was terminated from her position as a corrections officer at
Mountainview Youth Correctional Facility (MYCF) for conduct unbecoming an
employee and undue familiarity with an inmate. Plaintiff appealed from the
disciplinary actions to the Office of Administrative Law (OAL) and Civil
Service Commission (CSC), who recommended her termination for cause on the
grounds of severity and the impropriety of her relationship with an inmate. We
affirmed the CSC's determination that plaintiff was properly terminated and that
A-4722-16T1 2 she "participated in a highly inappropriate relationship with an inmate over an
extended period of time, and went to great lengths to conceal the relationship." 1
Within two years of her termination, plaintiff timely filed a complaint,2 as
a self-represented litigant, in the Law Division, asserting that her termination
was based on gender and race discrimination, a hostile work environment, and
alleging that defendant, Leon Williams, individually aided and abetted the
DOC's wrongful conduct. Plaintiff claims that Williams instigated an internal
investigation against her, motivated by racial bias.
Plaintiff is an African-American woman. According to her complaint,
Williams and the administrators at MYCF are Caucasian. On October 8, 2013,
she admitted to having a relationship with an inmate during a DOC Special
Investigation Division (SID) interview. That same day, she was suspended
pursuant to a Preliminary Notice of Disciplinary Action (PNDA), and later
terminated on December 2, 2013, pursuant to a Final Notice of Disciplinary
Action (FNDA). The Administrative Law Judge (ALJ) rejected plaintiff's claim
1 See In re Register, No. A-4323-13 (App. Div. Apr. 12, 2016) (slip op. at 12). 2 The initial complaint was filed on October 9, 2015. A substitution of attorney was filed on December 14, 2015. A prior judge denied defendants' motion to dismiss the complaint pursuant to Rule 4:6-2(e) on January 22, 2016, and ordered plaintiff to amend the complaint within twenty-five days. A first amended complaint and jury demand was filed on February 16, 2016. A-4722-16T1 3 that Williams was involved with the investigation and heard – but did not
adjudicate – her allegations based on discrimination.
During her testimony before the ALJ, plaintiff testified that Williams used
racial slurs and that he disliked people of color. She claimed that discrimination
and insults occurred daily in the workplace, and that DOC prisons housing
largely African-American inmates were referred to as "zoos" and "plantations."
Officers assigned to those prisons were called "zookeepers," and the inmates
were referred to as "animals." Plaintiff also testified that Williams referred to
African-Americans officers as "nigger[s]," and his reprehensible conduct was
well known to DOC administrators working at the prisons, yet they failed to
intercede and stop his contumacious behavior.
According to plaintiff, Williams made it clear that it was his "goal" to get
rid of African-American officers. She further contended that the investigation
was tainted by racial bias because of William's involvement, undertaken at his
own initiative, to "stalk" her and report to the SID. She alleged that he had no
training or authorization to act in this capacity, and he would "switch" vehicles
with those used by other officers when following her to avoid recognition.
Williams "bragged" about his surreptitious actions after plaintiff was suspended,
and he boasted about how "he had gotten rid of that nigger," as per her
A-4722-16T1 4 contention. A Sergeant Vargas ostensibly reported Williams' miscreant
behavior, including his rude and hateful epithets, to administrators, but no
reprimand or disciplinary action ensued.
The ALJ found that Williams did not participate in the DOC's
investigation, and that plaintiff's testimony constituted inadmissible hearsay.
The ALJ disagreed with plaintiff that her relationship with the inmate was
simply a friendship, concluding instead that there was "an intimacy greater than
the mere 'friendliness' claimed by [her]." Further, the ALJ found that "her
reckless disregard bears decisively on the appropriateness of removal as a
penalty."
In affirming the CSC, which adopted the ALJ's decision, we agreed that
"[t]he record indisputably reveals that [plaintiff] engaged in a highly
inappropriate relationship with an inmate, and in doing so recklessly disregarded
known rules and regulations." See In re Register, slip op. at 11. We did not
address any discrimination-related claims since none were before us.
Nonetheless, the trial judge held that collateral estoppel barred plaintiff's
civil claims, concluding:
the [i]ssues raised in this Superior Court action are identical to the issues raised in the prior administrative proceedings. The First Count of [plaintiff's] [c]omplaint alleges, among other things, that Williams
A-4722-16T1 5 acted improperly in the events leading to her termination. The record shows that [plaintiff] previously raised these allegations in the administrative proceedings. As in Winters,[3] [plaintiff] raises the argument that the issues in each forum are not identical. See [] id. at 84-85. [Plaintiff] claims that the administrative proceedings only concerned the issue of "just cause" for her termination. However, as in Winters, where the plaintiff raised the issue of retaliation, [plaintiff] raised racial discrimination as a central theme of her defense. Id. at 88.
Second, the lengthy procedural history shows that the circumstances of [plaintiff's] termination have been heavily litigated. The ALJ, Joseph Lavery, and the Appellate Division both wrote detailed decisions that thoroughly explored the facts of this case. Both found that [plaintiff's] termination was lawful and not discriminatory because she had "violat[ed] those civil service rules and department regulations cited by DOC in the PNDA and FNDA. Public safety concerns and the good order of the facility justify termination." In the Matter of Dana S. Register, No. CSR 17778-13 2014-1551, at *16 (OAL April 7, 2014).
The trial judge determined "all five elements of collateral estoppel have
been satisfied . . . ." He also found that the doctrine of estoppel applied to
plaintiff, a "party to all of the prior administrative proceedings[,]" in dismissing
her claims of unlawful, race-based discrimination under the LAD (counts one
and four).
3 Winters v. N. Hudson Reg'l Fire and Rescue, 212 N.J. 67, 85 (2012). A-4722-16T1 6 Next, the trial judge concluded that plaintiff's race and gender
discrimination, as well as her hostile work environment claims, were barred by
the LAD's two-year statute of limitations, stating:
For statute of limitations purposes, termination is considered a "discrete" discriminatory act. Shepherd v. Hunterdon Dev. Ctr., 174 N.J. 1, 19 (2002) (citing AMTRAK v. Morgan, 536 U.S. 101, 114 (2002)). Discrete acts are different from hostile work environment claims. [Ibid.] A discrete act occurs on the day that it happens. [Ibid.] Our Supreme Court in Shepherd drew a distinction between the two types of claims:
Hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct. The "unlawful employment practice" therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own. Such claims are based on the cumulative effect of individual acts.
[Id. at 19-20 (citing Morgan, 536 U.S. at 114-118).]
Here, [plaintiff] filed her initial complaint with the court on October 9, 2015. Both parties agree that [plaintiff] last worked at MYCF on October 8, 2013. [Plaintiff] notes that she was served a PNDA on October 11, 2013, and suspended from employment. Afterwards, she interacted with personnel at Human Resources and some supervisory staff. However, there
A-4722-16T1 7 is no evidence before the court that she ever returned to work. As defendants persuasively point out, a plaintiff cannot suffer from a hostile work environment or unlawful discrimination if she is not present in the work environment. [Plaintiff] does not allege any discriminatory incidents after October 8, 2013. Thus, all of [plaintiff's] allegations, unrelated to her termination, as set forth in the [s]econd, [t]hird, and [f]ourth [c]ounts, are barred by LAD's two-year statute of limitations.
Finally, the trial judge concluded that plaintiff's "aiding and abetting
claims fail for the same reasons as her other claims," and he dismissed them as
"moot."
Plaintiff argues that: (1) the trial court erred by finding her alleged
adverse employment action was barred by the two-year statute of limitations;
(2) summary judgment was prematurely granted because plaintiff was not
provided with discovery responses served on defendants and no depositions
were conducted; (3) collateral estoppel was wrongfully applied; (4) improper
consideration was given to her claim that Williams had no authority to
investigate her and turn over his tainted findings to SID; and (5) the trial judge
failed to apply the controlling law on discrimination, hostile work environment,
and aiding and abetting, and that she satisfied the criteria for consideration of
the cumulative effect of defendants' actions bearing on her claims.
A-4722-16T1 8 I.
We review a ruling on a motion for summary judgment de novo, applying
the same standard governing the trial court. Templo Fuente De Vida Corp. v.
Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016) (citing Mem'l Props., LLC,
v. Zurich Am. Ins. Co., 210 N.J. 512, 525 (2012)). Thus, we consider, as the
trial judge did, "whether the competent evidential materials presented, when
viewed in the light most favorable to the non-moving party, are sufficient to
permit a rational factfinder to resolve the alleged disputed issue in favor of the
non-moving party." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406
(2014) (quoting Brill, 142 N.J. at 540). If there is no genuine issue of material
fact, we must then "decide whether the trial court correctly interpreted the law."
DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super.
325, 333 (App. Div. 2013) (quoting Massachi v. AHL Servs., Inc., 396 N.J.
Super. 486, 494 (App. Div. 2007)).
We review issues of law de novo and accord no deference to the trial
judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013). For
mixed questions of law and fact, we give deference to the supported factual
findings of the trial court, but review "de novo the lower court's application of
A-4722-16T1 9 any legal rules to such factual findings." State v. Pierre, 223 N.J. 560, 577
(2015) (quoting State v. Harris, 181 N.J. 391, 416 (2004)).
Plaintiff first argues that the trial judge erred by determining that her LAD
claims were barred by the two-year statute of limitations because her complaint
was filed within two years of her termination. We agree. "Determining when
the limitation period begins to run depends on when the cause of action accrued,
which in turn is affected by the type of conduct a plaintiff alleges to have
violated the LAD." Alexander v. Seton Hall Univ., 204 N.J. 219, 228 (2010).
"Discriminatory termination and other similar abrupt, singular adverse
employment actions that are attributable to invidious discrimination, prohibited
by the LAD, generally are immediately known injuries, whose two-year statute
of limitations period commences on the day they occur." Ibid. (citing Roa v.
Roa, 200 N.J. 555, 569 (2010)). Discrete acts are those "such as termination,
failure to promote, denial of transfer, or refusal to hire . . . ." Morgan, 536 U.S.
at 114.
With respect to hostile work environment claims, the continuing violation
theory, a judicially-created doctrine that serves as an equitable exception to the
statute of limitations in LAD cases in New Jersey, may apply. See Bolinger v.
Bell Atl., 330 N.J. Super. 300, 306 (App. Div. 2000). When an employee
A-4722-16T1 10 experiences a "continual, cumulative pattern of tortious conduct, the statute of
limitations does not begin to run until the wrongful act ceases." Wilson v. Wal-
Mart Stores, 158 N.J. 263, 272 (1999).
The court must address 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, 174 N.J. at 21 (alteration in original) (quoting Morgan, 536 U.S. at 117).]
The continuing violation theory may be applied to a discrete act, such as
termination. "Each discrete discriminatory act starts a new clock for filing
charges alleging that act." Roa, 200 N.J. 555, 567 (2010) (quoting Morgan, 536
U.S. at 113). "Nor does the statute bar an employee from using the prior acts as
background evidence in support of a timely claim." Ibid. (quoting Morgan, 536
U.S. at 113). This analysis was not undertaken by the trial judge, warranting
reversal.
A-4722-16T1 11 The record supports plaintiff's contention that summary judgment as to
the statute of limitations was inappropriate because an issue of material fact
exists as to the purported discriminatory impetus of her termination.
Methodically, plaintiff alleges a pattern of discriminatory conduct, such as
unauthorized investigations, stalking, and racially based comments, culminating
in her termination – the final, discrete act of discrimination that vested her claim
and triggered the running of the statute of limitations period.
II.
Plaintiff next argues that she was deprived of discovery that may have
supported her contentions and defeated the summary judgment motion.
Defendants' stance that plaintiff has failed to provide specific dates or proof that
the alleged interactions took place is belied by the fact they failed to serve
answers to interrogatories, turnover requested documents, or engage in
depositions. Indeed, defendants simply argue that plaintiff did not provide dates
when she "discovered" the effects of alleged discrimination. At oral argument,
counsel for defendants represented that their discovery responses were three
months overdue. Unless there is discovery exchanged, there can be no
determination as to whether plaintiff's claims are timely, accrued, tolled, or
otherwise actionable.
A-4722-16T1 12 III.
Next, plaintiff argues that the trial judge erred in finding that collateral
estoppel barred her discrimination claims and that he mistakenly interpreted the
holding in Winters by giving preclusive effect to her claims. The trial judge
held that plaintiff's civil claims "are identical to the issues raised in the prior
administrative proceeding," and allegations that Williams "acted improperly in
the events leading to her termination" were "heavily litigated" before the ALJ
and addressed by this court. We disagree.
In Winters, the plaintiff was a public employee who was terminated and
raised retaliation as a defense through the same administrative process as this
matter. After his defenses were rejected, he filed a complaint in the Law
Division alleging violations under the Conscientious Employee Protection Act
(CEPA). The Supreme Court held that Winters was collaterally estopped from
re-litigating the retaliation issue since he raised it as a defense and litigated same
at his administrative hearing. Collateral estoppel is an equitable principle that
arises "[w]hen an issue of fact or law is actually litigated and determined by a
valid and final judgment, and the determination is essential to the judgment, the
determination is conclusive in a subsequent action between the parties, whether
A-4722-16T1 13 on the same or a different claim." Winters, 212 N.J. at 85 (alteration in original)
(citing Restatement (Second) of Judgments § 27 (1982)).
The party asserting the bar must show that:
(1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.
[Ibid. (quoting Oliveri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 521 (2006)).]
"Fundamental to the application of estoppel is an assessment of
considerations such as 'finality and repose; prevention of needless litigation;
avoidance of duplication; reduction of unnecessary burdens of time and
expenses; elimination of conflicts, confusion and uncertainty; and basic
fairness.'" Ibid. (quoting Oliveri, 186 N.J. at 522.)
"In public employee discipline matters, the public interest in the finality
of the litigated disciplinary matter must weigh in the equitable application of
estoppel principles, for it is an unnamed party in interest to the efficient and fair
resolution of civil service discipline." Id. at 86. Winters stands for the
proposition that:
A-4722-16T1 14 [I]f in a disciplinary proceeding, an "employee raises a claim that employer retaliation at least partially motivated the decision to bring the charge or the level of discipline sought, then both the employee and the employer must live with the outcome, including its potential preclusive effect on the related employment- discrimination litigation . . . . [I]t is not unfair to require [plaintiff] to present the defense that he raised in the administrative forum and to accept the consequences of his strategy."
[Wolff v. Salem County Correctional Facility, 439 N.J. Super. 282, 294 (App. Div. 2015) (quoting Winters, 212 N.J. at 73).]
The dispositive fact in Winters was the plaintiff's "failure to make his case
on a claim he raised before the Commission." Winters, 212 N.J. at 91. The
Court was:
[F]ully convinced that the ALJ assessed his claim of retaliation, to the extent it was supported, when he rendered his findings and conclusion. That it was not addressed specifically is not fatal to the analysis in this particular case, where everything Winters pointed to, or at, was supposedly evidence of overall animosity and retaliatory bias by [defendant].
[Ibid.]
Unlike Winters, plaintiff argued a racial animus in the steps taken by the
DOC at her administrative hearing, but our careful review of the record does not
reveal that the ALJ, or anyone else in the administrative process, actually
A-4722-16T1 15 determined that defendants did not discriminate against her on the basis of race,
gender, or anything else. In its decision, the OAL stated:
Officer Vaillegas addressed a factual issue introduced in plaintiff's defense: the alleged behavior of another SCO, [Williams]. Officer Vaillegas stated that he had overhead Williams, who was white, using racist language in describing black officers. He referred to them as "niggers." With respect to [plaintiff], Officer Vaillegas stated that [Williams] described to him with satisfaction how he, Williams, had personally investigated and caused the firing of [plaintiff]. According to Correction Officer Vaillegas, [Williams] said he had supplied to SID information concerning money orders and letters, and had gone so far as to follow [plaintiff] from Phillipsburg to the Easton post office involved. Officer Vaillegas believed [Williams] was projecting himself as a one-man investigating entity, which is prohibited by DOC. Because of this, and because of [plaintiff's] discriminatory language, he reported his interactions with [Williams].
This is a summary of Vaillegas' testimony and not an adjudication on the
merits on the claims presented by plaintiff in her Law Division action.
Therefore, the trial judge erred by stating the issues were "identical." Because
collateral estoppel applies to issues previously raised and decided, the amended
complaint was improvidently dismissed.
IV.
Plaintiff seeks to change venue back to Warren County where the
complaint was initially filed, or alternatively, Mercer County because DOC is
A-4722-16T1 16 headquartered there. We see no merit to plaintiff's argument. No showing has
been made that "a fair and impartial trial could not be had" in Hunterdon County.
See Pressler & Verniero, Current N.J. Court Rules, cmt. on R. 4:3-3 (2019). In
light of our decision, these is no reason to address the other points raised by
plaintiff.
In conclusion, we reverse the order dismissing the Law Division amended
complaint and reinstate the matter for further proceedings. The trial court shall
conduct a case management conference within thirty days to address discovery
issues. This matter shall remain venued in Hunterdon County. We do not retain
jurisdiction.
A-4722-16T1 17