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DOCKET NO. A-6097-07T16097-07T1






E. BRUNO, Acting Commissioner of

Human Services; TRENTON STATE



Executive Officer for Trenton

State Psychiatric Hospital,




Submitted: May 28, 2009 - Decided:

Before Judges Axelrad and Parrillo.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2923-07.

John A. Klamo, attorney for appellant.

Anne Milgram, Attorney General, attorney for respondents (Lewis Scheindlin, Assistant Attorney General, of counsel; Jennifer M. Carlson, Deputy Attorney General, on the brief).


Plaintiff Lula Henry, an African American, appeals summary judgment dismissal of her complaint alleging racially discriminatory hiring practices and retaliation by her former employer pursuant to the New Jersey Law Against Discrimination (LAD) as time-barred by the two-year statute of limitations. Appellant argues the trial court failed to view the evidence in the light most favorable to her as the non-moving party and erred in determining the cause of action accrued in 2004, and not in 2006. Based on our review of the record and the applicable law, we reject appellant's arguments and affirm.

Viewed most favorably for appellant, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995), the motion record reveals the following. Appellant is a registered nurse with a masters degree in nursing. Appellant began her employment at Trenton State Psychiatric Hospital (Trenton Hospital) in an entry level nursing position in April 2004. She certified that she "developed initial concerns, uncorroborated by any firm evidence, in or about late Spring/early Summer 2004 when [she] was working at Trenton [Hospital], that racial discrimination was occurring." Appellant also explained that during the summer of 2004, a human resource representative overheard appellant talking with another person about her "concerns in advancing within state service" and stormed out of her office, yelling that appellant "could not seem to get it through [her] head that [she] ha[d] to be in the position for one year" before being promoted.

During that time period, appellant was also informed that there were only three nurses in the entire division possessing masters degrees in nursing, none of whom were then assigned entry level positions. Appellant therefore sent a letter to the Director of Nursing requesting that she be reclassified accordingly. Appellant certified that when she wrote the letter, she did "not then believe that [she] was the victim of racial discrimination; and instead, [she] believed the matter was merely an oversight which could be administratively remedied." Appellant, however, copied the letter to the hospital's human resource manager and to a state assemblyman. The Director of Nursing took no action. According to appellant's certification, during a chance meeting with the human resource manager, she was informed in a very nasty manner that she had stood a good chance of being reclassified "until he received a letter from some bureaucrat downtown" and to consider that her formal response to the letter.

On November 29, 2004, appellant resigned her position at Trenton Hospital to take a position at the Juvenile Justice Commission of the New Jersey Department of Law and Public Safety (Commission). When she commenced her employment there, she asked the administrator if she could be promoted and was informed that because she had "abandoned" her position at Trenton Hospital, she had to "start all over again as a new hiree."

In the spring of 2006, appellant learned that an "advanced position" at the Commission had been filled by a Caucasian nurse who had been hired around the same time as she had but who only held an associates degree. Around the same time, appellant also had a conversation with her union representative who opined that "racism was very wide spread throughout Trenton [Hospital]. . . ." Appellant certified that she also learned then that a Caucasian nurse with the same credentials as she possessed had been immediately hired into a higher job classification without having to first work as a charge nurse, as appellant did.

On July 24, 2007, appellant filed a complaint against the New Jersey Department of Human Services (DHS); Clark Bruno, the Acting Commissioner of DHS; Trenton Hospital; and Gregory Roberts, the CEO of Trenton Hospital. She alleged racial discrimination and retaliation in violation of the LAD.

Defendants moved for summary judgment dismissal of appellant's complaint, which was filed thirty-one months after she left defendants' employ. See Montells v. Haynes, 133 N.J. 282, 286 (1993) (claims under the LAD must be filed within two years of the alleged discriminatory or retaliatory act). Appellant responded that her cause of action accrued when she first discovered defendants' discrimination against her in 2006 and not when it first occurred, i.e., from April through November 2004, while she was employed as an entry level nurse at Trenton Hospital. According to appellant's certification, upon hearing of the Caucasian nurses' hiring in the spring of 2006 and placing it in the context of her conversation with the union representative, appellant "began to reassess [her] own experiences with Trenton" Hospital. Appellant stated that she then viewed the duties she was assigned there, which were customarily those performed by licensed practical nurses rather than by registered nurses who possessed higher degrees and greater qualifications, to be retaliation for her inquiring about disparate practices in hiring and questioning the advancement process.

Following oral argument on July 3, 2008, Judge Smithson granted defendants' motion for summary judgment, concluding that "I do not believe that the statute should be tolled in this case. I don't find a cause to do that." He continued:

She developed concerns, as she says [in her certification], uncorroborated by any firm evidence in 2004 as to racial discrimination. She talks about other things that would support a belief in her mind, whether it was a belief that was predicated on fact or on historical circumstances . . . is of no particular moment, but it was there. It was in the forefront of her thinking.

What does the law require? The law requires, when we're talking about a statute of limitations, the law requires that you do things within a given period of time. Here, two years from the time, you know that there's a cause of action, or should know through reasonable diligence that there is a cause of action. And that's the second part that we're really talking about and focusing on here, whether or not by an exercise of reasonable diligence and intelligence, a person should recognize that that person who's being discriminated against for one of the types of matters that are set forth in the . . . LAD law, in the State of New Jersey. You have someone who's obviously by [her] own statements, very bright, very able, very intelligent, and she has these suspicions concerning, not just anything, but racial discrimination within a given context of factual circumstances that existed and that are spread out in this certification, itself.

In this Court's judgment, she should have done something. You can't simply do nothing and say, well, four or five years later, it could be ten years later, you know I talked to somebody who said that those people were all racists. Those people were terrible. Let me tell you some stories about that and all of a sudden, the statute of limitations, which is to be a statute of repose, is out the window. It simply can't work that way.

. . . .

I don't see this to be a close case . . . . In my judgment, it is unreasonable that certain other steps were not taken under the particular facts of this case by plaintiff in order to determine whether or not she had the basis, a reasonable basis, for a cause of action. She didn't take those under the law which requires a two year time period for taking affirmative action in filing the complaint. She simply was out of time. I see no reason to toll that. Consequently the application is granted. The matter should be dismissed.

This appeal ensued.

Our review of a grant of summary judgment is de novo, and we apply the same standard as the trial court under Rule 4:46-2. Trinity Church v. Atkin Olshin Lawson-Bell, 394 N.J. Super. 159, 166 (App. Div. 2007); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We first must decide whether there was a genuine issue of fact, and if there was none, whether the trial court ruled correctly on the law.

Summary judgment is appropriate where there is no genuine issue as to any material fact challenged and after viewing all competent evidential material presented in the light most favorable to the non-moving party, the evidence is so one-sided that a rational factfinder must resolve the disputed issue in favor of the movant. Brill, supra, 142 N.J. at 540. The "determination of the accrual of a cause of action is an issue for the court." Baird v. Am. Med. Optics, 155 N.J. 54, 65 (1998). A trial court's interpretation of the law, however, is not entitled to any "special deference." Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

We are satisfied that this case was ripe for summary judgment and that Judge Smithson applied the proper standard, viewing the competent evidentiary materials presented by the parties in the light most favorable to appellant. Our review of the record discloses that there was no genuine issue of material fact, and that the trial court correctly concluded that appellant's LAD claims were barred by the statute of limitations.

Our Supreme Court has held that all LAD claims are subject to a two-year statute of limitations similar to that for personal injury claims. Ali v. Rutgers, 166 N.J. 280, 282 (2000); Montells, supra, 133 N.J. at 286; see N.J.S.A. 2A:14-2. In the context of LAD claims, the cause of action accrues on either the day a discrete discriminatory act occurs or, for hostile work environment claims, on the date the last discriminatory act occurred. Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 21 (2002).

"Disparate treatment is demonstrated when a member of a 'protected group is shown to have been singled out and treated less favorably than others similarly situated on the basis of an impermissible criterion' under the antidiscrimination laws." Mandel v. UBS/Paine Webber, Inc., 373 N.J. Super. 55, 74 (App. Div. 2004) (internal citation omitted), certif. denied, 183 N.J. 214 (2005). To meet her prima facie burden, a plaintiff must show that it is more likely than not that her employer's actions were based on unlawful considerations. Id. at 75.

Appellant's claim of disparate treatment is that she was hired into an entry level position because of her race. This was a discrete act that occurred in April 2004. Thus, appellant's cause of action accrued in April 2004. Nevertheless, her complaint was not filed until July 2007, over three years later. Appellant asserts that the court improperly granted summary judgment because under the discovery rule her cause of action did not accrue until 2006, when she claims she received evidence of disparate treatment. The discovery rule postpones the accrual of a cause of action "in an appropriate case . . . until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he [or she] may have a basis for an actionable claim." Szczuvelek v. Harborside Healthcare Woods Edge, 182 N.J. 275, 281 (2005); see also Lopez v. Swyer, 62 N.J. 267 (1973).

Even if the discovery rule did apply in LAD cases and appellant were entitled to toll the statute of limitations for her disparate treatment claim beyond her hiring date, there is no factual basis to toll the two-year limitations period to any time after appellant resigned from Trenton Hospital in 2004. Appellant knew enough, or should have known through reasonable diligence, back in the spring and summer of 2004, that she had a cause of action for racial discrimination. Appellant certified she knew at that time she was the only nurse with a masters degree who was in an entry level position at the Hospital and acknowledged she had "developed initial concerns" then that racial discrimination was occurring there. Appellant even inquired about the "disparate practice in hiring" while employed there and was supposedly subjected to harassment and retaliation as a result. These statements by appellant directly contradict her claim that she was first alerted to discriminatory hiring practices by Trenton Hospital during her conversation with a union representative and upon learning of incidents involving other nurses two years after she was hired.

Since appellant had suspicions of discrimination while working at the Hospital, she should have investigated further - not because she is intelligent, well-educated or has any knowledge of the law - but because she was aware of or should have been aware of the possible injury caused to her. The accrual point for a statute of limitations is not when all the evidence to support a claim has been gathered, but when the plaintiff knew or should have known of the underlying injury in the cause of action. See Grunwald v. Bronkesh, 131 N.J. 483, 492-93 (1993) ("The limitations period begins to run when a plaintiff knows or should know the facts underlying those elements, not necessarily when a plaintiff learns the legal effect of those facts.") (internal citation omitted). Although appellant may not have had concrete information of discrimination, she did feel strongly enough about her treatment at Trenton Hospital because she resigned on November 29, 2004. Therefore, accepting appellant's certification as true for the purposes of summary judgment, the trial court properly concluded that a cause of action accrued in 2004 when she became concerned with racial discrimination and discriminatory hiring practices.

Appellant's retaliation claim is also barred by the statute of limitations because it accrued, at the latest, in November 2004, when she resigned her position at the Hospital. The LAD makes it unlawful "[f]or any person to take reprisals against any person because that person has opposed practices or acts forbidden under [the LAD] or because that person has filed a complaint, testified or assisted in any proceeding under [the LAD]." N.J.S.A. 10:5-12(d). To establish a prima facie case of retaliation under the LAD, a plaintiff must show that she was engaged in a protected activity the employer knew about, she was subjected to a subsequent adverse employment action, and there was a causal connection between the two. Romano v. Brown & Williamson and Tobacco Corp., 284 N.J. Super. 543, 548-49 (App. Div. 1995).

Appellant argues that after beginning her investigation in 2006 while at the Commission, she first realized in hindsight that she had been retaliated against while employed at the Hospital after she questioned the disparate hiring practice and advancement process. Appellant contends that in retrospect she realized that the undefined job duties assigned to her after engaging in this protected activity were those commonly assigned to a lower position nurse.

As discussed with regard to appellant's discriminatory hiring practice claim, any adverse employment action that she may have been subjected to necessarily must have occurred while she was employed by Trenton Hospital. Appellant was clearly aware of what her job duties were during the term of her employment at the Hospital and was clearly not happy with her assignment. She also detailed in her certification instances in which the Hospital's representatives treated her disrespectfully and she was subjected to potentially adverse employment action - the human resource representative yelled at appellant when she heard her conversing with another person about her concerns in advancing within state service, appellant's letter to the Director of Nursing requesting reclassification went unanswered, and the human resource manager orally dismissed in a perfunctory and nasty manner her request for a formal response to the letter. Again, based on appellant's own certification, it is clear appellant knew or should have known the state of facts equating to her cause of action for retaliation during the term of her employment at the Hospital. Thus, as a matter of law, appellant was required to file her LAD complaint within two years of that date. The fact that appellant did not put all the pieces together in her mind until 2006 to determine that there might be legal ramifications to her employer's conduct does not toll the statute of limitations to enable her to file an LAD complaint in July 2007.






July 21, 2009


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