ROBYN KELLY v. RWJ BARNABAS HEALTH COMMUNITY MEDICAL CENTER
Annotate this CaseNOT 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-2182-20
ROBYN KELLY,
Plaintiff-Appellant,
v.
RWJ BARNABAS HEALTH/
COMMUNITY MEDICAL
CENTER,
Defendant-Respondent.
___________________________
Submitted January 20, 2022 – Decided March 16, 2022
Before Judges Hoffman, Whipple, and Susswein.
On appeal from the Superior Court of New Jersey,
Law Division, Ocean County, Docket No. L-2266-20.
Robyn Kelly, appellant pro se.
Apruzzese, McDermott, Mastro & Murphy, PC,
attorneys for respondent (Mark J. Blunda, of counsel
and on the brief; Kyle J. Trent, on the brief).
PER CURIAM
Plaintiff Robyn Kelly appeals from a February 25, 2021 order dismissing
her complaint with prejudice. We affirm.
Our review of the record informs us of the following facts. Plaintiff
worked for defendant RWJ Barnabas Health/Community Medical Center
(RWJ) from June 29, 2015, until September 25, 2017. Allegedly, in August
2019 plaintiff's one-time counsel, Gary Mason, sent a demand letter seeking
settlement from RWJ for purported legal claims regarding her employment.
That letter is not included in the record before us, but defendant's reply is.
RWJ investigated those claims and, by letter dated September 19, 2019,
responded "there is not a shred of evidence to support Ms. Kelly's claims
advanced in your letter." The letter concluded that RWJ would "entertain a
discussion for a nominal amount, purely for the purpose of avoiding the costs
associated with litigation."
On September 29, 2020, plaintiff filed a complaint against RWJ alleging
disability discrimination and constructive discharge under New Jersey's Law
Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -50. 1 She requested
compensatory damages for emotional distress, employment wage damages, and
punitive damages for defendant's actions in failing to accommodate her
1
Plaintiff asserts she was also pursuing a workers' compensation claim against
defendant but it is not part of the record.
A-2182-20
2
disability. Her complaint outlined RWJ's alleged ignoring of her requested
accommodation, resulting medical treatment, discriminatory return to work,
and constructive discharge. Her complaint did not include any reference to the
alleged settlement negotiations or RWJ's general counsel's failure to respond to
plaintiff's pro se communications. Besides the alleged discriminatory
treatment and constructive discharge, plaintiff states that an "[a]dditional
reason for filing" was "the New Jersey State Legislature recently introducing
Bill A4637, that if approved and retroactively [] enacted would extend the
statute of limitations [(SOL)] to three years."
On December 15, 2020, in lieu of an answer, RWJ filed a motion to
dismiss the complaint for failure to state a claim under Rule 4:6-2(e), asserting
that NJLAD's two-year SOL barred the claim because the complaint was filed
more than three years after plaintiff's alleged constructive discharge on
September 25, 2017. RWJ noted that Bill A4637 to extend the SOL had not
been enacted and that plaintiff's complaint would still be barred because it was
filed more than three years after September 25, 2017.
On December 30, 2020, plaintiff filed a certification in opposition to
RWJ's motion. As to the time-bar, she stated:
It is evident from the defendant's actions that they
intentionally [misled] the plaintiff into a bogus
A-2182-20
3
settlement, immediately prior to the statute of
limitations timeline. The defendant intentionally and
conveniently took a month to forward the settlement
release to the plaintiff. Upon receipt of the release, it
revealed the defendant[']s clever attempt to terminate
the existing active [w]orkers['] [c]ompensation case
directly related to the same issue (air freshener
exposure) in its entirety, if the document had been
signed by the plaintiff. The content of the release
verbiage was too broad and would deprive the plaintiff
of the benefits of her active [w]orkers[s]
[c]ompensation case in the [w]orkers[']
[c]ompensation [j]udicial [s]ystem, Toms River, New
Jersey. When opposing to sign the document, the
defendant, then abruptly and without warning,
transferred the [w]orkers['] [c]ompensation case to a
different law office and changed attorneys for future
handling. The defendant then informed the plaintiff
[it] would not settle the two claims separately, placing
the [e]mployment [l]aw [c]ase on the back burner at
[its] discretion, with no input from the plaintiff.
According to notification from the defendant, at that
time, effective immediately under [its] control and
command, the two matters would be settled together,
as well as addressed with the verbiage in the initial
settlement covering both claims.
Complexing this matter, the plaintiff's attorney is no
longer in business and closed his firm. At that point,
the plaintiff advised the defendant of her pro se status
pertaining to the employment law case matter. After
reaching out to the defendants and with no response
back, the plaintiff filed a complaint in Superior
[C]ourt . . . . [Defendants] have deliberately [and]
manipulatively navigated this claim out of the
[s]tatu[t]e of [l]imitations. . . . This should serve as
proof of the "continuing violation theory[,]"[] a
cumulative pattern of wrongful conduct and bad faith
A-2182-20
4
tactics that affected the statute of limitations in
question.
On January 4, 2021, RWJ filed a reply brief, denying knowledge of a
workers' compensation matter and filed its motion to dismiss based solely on
the complaint plaintiff filed. On January 6, 2021, plaintiff replied, asserting
that she was "helpless against" defendant's "stand-alone decision" to "'kill two
birds with one stone' and settle both claims at one time in a shared Settlement
and Release document" and to "systematically place[] the employment law
matter on the back burner . . . ." Plaintiff used, for the first time, the phrase
that RWJ "lulled [her] into a sense of security" and asserted that she relied on
defendant's offer as a willingness to settle, before finding that the settlement
would terminate the workers' compensation claim.
On January 15, 2021, the court heard oral argument on RWJ's motion to
dismiss. The court asked plaintiff whether she was asserting that
defendant somehow led [her] down a garden path and
kept [her] from asserting [her] rights under the LAD
claim because they were making offers of settlement
and [brought it to her], or assuring [her] that the
matter would be – [that her] claims against them for
discrimination would be appropriately resolved in her
favor . . . .
Plaintiff answered yes, saying she had documentation. She added that she
thought the matter was settled on September 25, 2019, but that the damages
A-2182-20
5
would be encompassed in the workers' compensation case, which is why she
"took so long to encounter [the] employment law matter." The court inquired
about what correspondence plaintiff had. She asserted that she had
"[paperwork] where [her] attorney had a conversation where they wanted the
two attorneys to get together and make what they called a -- a global
settlement demand . . . prepared and put together in one document."
The court directed plaintiff to gather and submit any documentation she
had, including correspondence, "or a certification from [her] attorney" to
support her claim that she was "lulled" into believing the LAD claims would
be globally resolved with the other claims and "then [to] explain why [she]
still waited a substantial period of time in filing [her] claim . . . ." The court
advised that it would view the papers but would not need further oral
argument.
On January 22, 2021, plaintiff filed a supplemental submission but did
not include supporting documents or a certification from prior counsel . RWJ
filed a reply brief, asserting that plaintiff did not meet either path to invoke
tolling for two reasons. First, plaintiff did not file a timely pleading. Second,
plaintiff did not provide proof that RWJ acted to induce plaintiff to toll the
statute, and even if plaintiff's alleged events were true, plaintiff waited ten
A-2182-20
6
months after the "too broad" settlement to file a complaint without showing
defendant prevented such a filing.
Plaintiff submitted another brief, which included an unsigned Settlement
Release agreement, drafted by RWJ. That exhibit said:
SETTLEMENT AND RELEASE AGREEMENT
ROBYN KELLY, on her own behalf and on behalf of
her heirs, executors, administrators, and assigns
(collectively referred to as "Employee") and RWJ
BARNABAS HEALTH, INC. ("RWJBH" or
"Employer") on its own behalf and on behalf of its
affiliates, parents, subsidiaries and divisions, and their
respective successors and assigns have reached the
within Settlement, Release and Non-Disclosure
Agreement (hereinafter the "Agreement").
She also presented a letter from Marisa Kussoy, Senior Counsel at RWJ,
addressed to plaintiff's then-counsel, which said:
I write to you in response to your August 1,
2019 letter to . . . VP Human Resources, regarding . . .
Robyn Kelly. As advised, we have looked into Ms.
Kelly's allegations advanced in your letter. The
information obtained during our fact-finding bears out
a very different picture of the issues discussed in your
letter and does not support Ms. Kelly's purported legal
claims regarding her employment with RWJ []
Barnabas Health from June 29, 2015 to September 29,
2017.
All issues which Ms. Kelly brought to her
supervisors' attention were addressed. Prior to
rendering her resignation, she met with Human
A-2182-20
7
Resources on Friday the 22nd and expressed
appreciation for the prompt removal of all products
containing a fragrance. She did not bring forth any
additional concerns during the meeting nor did she
respond to the messages left for her after the facility
received her letter of resignation.
Unfortunately, when Ms. Kelly submitted her
resignation she raised new issues in her resignation
letter. We regret Ms. Kelly chose to resign and denied
us the opportunity to address her additional concerns.
In sum, there is not a shred of evidence to
support Ms. Kelly's claims advanced in your letter. I
note that your letter contains a settlement demand of
$30,000. Should your client be willing to entertain a
discussion for a nominal amount, purely for the
purpose of avoiding the costs associated with
litigation, I invite you to call me.
Plaintiff explained she rejected the release agreement because it would
have deprived her of her ability to pursue her active Workers Compensation
Case.
On February 25, 2021, the court dismissed plaintiff's complaint with
prejudice concluding that NJLAD's two-year SOL time-barred the complaint.
This appeal followed.
On appeal, plaintiff raises the same arguments as she presented to the
motion judge, and we find them to be meritless.
A-2182-20
8
NJLAD has a two-year SOL. Montells v. Haynes, 133 N.J. 282, 286
(1993). The Court held that "[a]fter carefully considering the purpose of [the]
LAD and of statutes of limitations, we conclude that a single statute of
limitations should apply to all LAD claims" and that because "injuries under
LAD are most like personal-injury claims . . . the two-year personal-injury
statute of limitations should apply." Ibid. Thus, a claimant must file her
complaint "within two years of the date on which the cause of action
'accrued.'" Henry v. N.J. Dep't of Hum. Servs., 204 N.J. 320, 324 (2010). This
"encourage[s] prompt resolution of claims, particularly in discrimination cases
where evidence may be 'vulnerable to the passage of time.'" Id. at 332-33
(quoting Montells, 133 N.J. at 291, 293).
The SOL can equitably toll where a plaintiff shows a defendant engaged
in misconduct to let time expire. See Bustamante v. Borough of Paramus, 413 N.J. Super. 276, 299 (App. Div. 2010). Equitable tolling applies where "a
plaintiff is misled . . . and as a result fails to act within the prescribed time
limit," ibid. (alteration in original) (quoting Villalobos v. Fava, 342 N.J. Super.
38, 50 (App. Div. 2001)), and "only if plaintiff demonstrate[s] that he 'ha[d]
been induced or tricked by his adversary's misconduct into allowing the filing
A-2182-20
9
deadline to pass,'" ibid. (second alteration in original) (quoting Villalobos, 342 N.J. Super. at 50).
Courts apply equitable tolling sparingly. See Freeman v. State, 347 N.J.
Super. 11, 31 (App. Div. 2002). "[A]bsent a showing of intentional
inducement or trickery by a defendant, the doctrine of equitable tolling should
be applied sparingly and only in the rare situation where it is demanded by
sound legal principles as well as the interests of justice." Ibid. "[T]he
threshold factual predicate for plaintiff's equitable tolling claim is a finding
that defendant's misconduct contributed to expiration of the applicable
limitations period," so "[a]bsent this finding, there would be no basis for
equitable tolling." Bernoskie v. Zarinsky, 383 N.J. Super. 127, 136 (App. Div.
2006). The party "who seeks to invoke equitable tolling bears the burden of
establishing this factual foundation." Ibid.
We provide a plenary review of a motion to dismiss for failure to state a
claim. We do not defer to the trial court's decision. Rezem Fam. Assocs., LP
v. Borough of Millstone, 423 N.J. Super. 103, 114 (App. Div. 2011). Courts
should search the complaint "in depth and with liberality to determine if there
is any 'cause of action [] "suggested" by the facts,'" State of N.J. v. Cherry Hill
Mitsubishi, 439 N.J. Super. 462, 467 (App. Div. 2015) (alterations in original)
A-2182-20
10
(quoting Printing-Mart Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746
(1989)), even though "[t]he inquiry is limited to 'examining the legal
sufficiency of the facts alleged on the face of the complaint,'" ibid. (quoting
Printing-Mart, 116 N.J. at 746). Courts should dismiss a complaint for failure
to state a claim "where the pleading does not establish a colorable claim and
discovery would not develop one." Ibid. (citing Camden Cnty. Energy
Recovery Assocs. v. N.J. Dep't of Env't Prot., 320 N.J. Super. 59, 64 (App.
Div. 1999)).
When the trial court considers documents outside the pleadings in
deciding a motion to dismiss, appellate courts treat it as a summary judgment
motion under Rule 4:6-2(e), see Jersey City Educ. Ass'n v. City of Jersey City,
316 N.J. Super. 245, 254 (App. Div. 1998), and apply de novo review, see
Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013). Thus, we consider the
factual record in the light most favorable to the nonmoving party. Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Based on our review of the record, plaintiff's complaint is time-barred by
NJLAD's two-year SOL and may not be equitably tolled. The NJLAD has a
two-year statutory period which would have accrued following plaintiff's
alleged constructive discharge on September 25, 2017. Plaintiff has not met
A-2182-20
11
her burden to show that RWJ acted intentionally and wrongfully to induce her
to run out the SOL.
Plaintiff has not provided sufficient evidence to equitably toll her claim.
She did not provide correspondence between her counsel and RWJ's counsel
discussing a global settlement demand. She only provided the top of one page
of an alleged ten-page settlement offer. She provided the September 19, 2019
letter from RWJ in-house counsel, rejecting her claim, but that RWJ would
only consider a nominal amount rather than plaintiff's requested $30,000 in
damages.
RWJ's proposed settlement came a month later. Plaintiff avoids stating
that she rejected the settlement offer. But she has repeatedly said, then and
now, that it was "too broad" and deprived her of her workers' compensation
claim; that her then-attorney advised RWJ of the same in November 2019; and
that she did not sign the agreement. Thus, plaintiff's alleged reliance on an
unsigned, incomplete agreement she rejected does not constitute reasonable
reliance to forego timely filing.
Affirmed.
A-2182-20
12
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
