9 A.3d 882 (N.J. 2010), Henry v. New Jersey Dept. of Human Services

Citation:9 A.3d 882, 204 N.J. 320
Opinion Judge:STERN, Judge (temporarily assigned).
Party Name:Lula M. HENRY, Plaintiff-Appellant, v. NEW JERSEY DEPARTMENT OF HUMAN SERVICES; Hon. Clark E. Bruno, Acting Commissioner of Human Services; Trenton State Psychiatric Hospital; Gregory P. Roberts, Chief Executive Officer for Trenton State Psychiatric Hospital, Defendants-Respondents.
Attorney:John A. Klamo, Cherry Hill, argued the cause for appellant. Jacqueline A. Augustine, Deputy Attorney General, argued the cause for respondents (Paula T. Dow, Attorney General of New Jersey, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel).
Judge Panel:Chief Justice RABNER, concurring. Justice RIVERA-SOTO, abstaining. Justice HOENS, dubitante.[1] For affirmance in part/reversal in part/remandment -Chief Justice RABNER, and Justices LONG, LaVECCHIA, ALBIN, HOENS, and STERN-6. Opposed -None. Abstaining -Justice RIVERA-SOTO-1.
Case Date:December 10, 2010
Court:Supreme Court of New Jersey
 
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Page 882

9 A.3d 882 (N.J. 2010)

204 N.J. 320

Lula M. HENRY, Plaintiff-Appellant,

v.

NEW JERSEY DEPARTMENT OF HUMAN SERVICES; Hon. Clark E. Bruno, Acting Commissioner of Human Services; Trenton State Psychiatric Hospital; Gregory P. Roberts, Chief Executive Officer for Trenton State Psychiatric Hospital, Defendants-Respondents.

Supreme Court of New Jersey.

December 10, 2010

Argued Sept. 28, 2010.

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John A. Klamo, Cherry Hill, argued the cause for appellant.

Jacqueline A. Augustine, Deputy Attorney General, argued the cause for respondents (Paula T. Dow, Attorney General of New Jersey, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel).

OPINION

STERN, Judge (temporarily assigned).

[204 N.J. 324] In Montells v. Haynes, 133 N.J. 282, 627 A.2d 654 (1993), the Court held that the two-year statute of limitations applies to all claims filed under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49(LAD), in Superior Court. The complaint must be filed within two years of the date on which the cause of action " accrued." N.J.S.A. 2A:14-2. Montells, supra, 133 N.J. at 285, 627 A.2d 654. In this case we examine the impact of the " discovery rule" on LAD claims, and affirm the dismissal of plaintiff's retaliation claim against her former employer, the New [204 N.J. 325] Jersey Department of Human Services (DHS) and officials thereof, 1 but remand for a hearing with respect to the date of accrual of the claim of racial discrimination.

I.

On July 24, 2007, plaintiff, Lula Henry, an African American, filed a complaint against defendants alleging racial discrimination in " hiring practice" and retaliation in violation of the LAD, resulting in her resignation from her position at DHS. Defendants moved for summary judgment based on the statute of limitations. The motion judge determined that plaintiff's action accrued in 2004, and was not tolled by the discovery rule. The case was,

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therefore, barred by the two-year statute of limitations, and the complaint was dismissed. The Appellate Division affirmed the judgment, and we granted certification. Henry v. Dep't of Human Servs., 202 N.J. 348, 997 A.2d 232 (2010).

II.

Because this case arises on a motion for summary judgment, we consider the facts in the light most favorable to the plaintiff. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995); R. 4:46-2.

Plaintiff obtained an Associate in Applied Science Degree in Nursing from Mercer County Community College in 1995 and a Bachelor of Science Degree in Nursing from Delaware State University in 2000. While pursuing a Master of Science Degree in Nursing from Wilmington College, she worked part time at Anne Klein Forensic Hospital in Trenton. When she finished her master's degree in 2004, plaintiff was licensed to practice in New [204 N.J. 326] Jersey and other states, and resigned from Anne Klein after being advised that she was " too qualified" for a full-time position there.

In April 2004, plaintiff secured a full-time entry-level nursing position at Trenton State. She asserts that the reason she was only given an entry level position and not reclassified thereafter was due to race. According to plaintiff's certification in opposition to the motion for summary judgment:

7. I developed initial concerns, uncorroborated by any firm evidence, in or about late Spring/early Summer 2004 when I was working at Trenton State, that racial discrimination was occurring. All state agencies post job vacancies, and any individual interested in same can make application. During this time period, I began exploring employment opportunities outside Trenton State by submitting various applications for posted vacancies.

...

10. During the Summer of 2004, while I was conversing with another individual as to my concerns in advancing within state service, a human resource representative, Marybeth Longo, overheard the conversation. She stormed out of her office yelling that I " could not seem to get it through my head that I have to be in the position for one year" in order to obtain advancement.

11. In late Summer 2004, I wrote a letter to the Director of Nursing at Trenton State, Lenny Seeman, requesting that I be reclassified according to my qualifications. This letter was drafted in response to my conversation with Ms. Seeman's secretary who told me that there were only three nurses in the entire division possessing a Masters Degree in Nursing at the time, none of whom were then assigned entry level positions. When I wrote such letter, I did not then believe that I was the victim of racial discrimination; and instead, I believed the matter was merely an oversight which could be administratively remedied. I copied this letter to both John Lubitsky, Trenton State's Human Resource Manager, and to State Assemblyman Herb Conoway.

12. No response was received by me for over one (1) month. I then had occasion to inadvertently meet Mr. Lubitsky at a water fountain in the hall at Trenton State. I inquired as to whether Mr. Lubitsky received the copy of my letter addressed to Ms. Seeman. Mr. Lubitsky acknowledged, in a very nasty manner, that he had received such copy adding that I had stood a good chance of being reclassified " until he received a letter from some bureaucrat downtown."

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When I inquired as to when I could expect a formal response, I was told by Mr. Lubitsky to " consider this your reply."

13. Shortly thereafter, circa November 2004, I became discouraged and sought transfer from Trenton State to the New Jersey Juvenile Commission (hereinafter " Juvenile Justice" ). In connection therewith, I had understood that it was necessary for me to resign from Trenton State in order to obtain employment position with Juvenile Justice; and I took such action.

[204 N.J. 327] Plaintiff accepted a nursing position at the Juvenile Justice Commission (" JJC" ) but had to " start all over again as a new hire." The plaintiff's certification also stated:

16. In Spring 2006, during a conversation with my union representative, Ray Marks, I learned that a black/Nigerian nurse, Okechi Ikpeama, had commenced (or threatened) litigation contesting the placement of a less qualified Caucasian nurse into a job position. Although Mr. Marks indicated to me that this litigation was, upon information and belief, settled out of court, he opined that racism was very widespread throughout Trenton State with allegations of impropriety only then being presented to him. The bargaining unit represented by Mr. Parks includes Trenton State employees.2

17. I also learned in or about Spring 2006 that Ellen Gelker, a Caucasian nurse with the same credentials as I, did not have to start as charge nurse with Trenton State; and instead, she had been immediately hired into a higher job classification. This was directly contrary to the representations made to me concerning my initial placement; and I can only conclude that the discriminating factor involved race. Prior to Spring 2006, I had no[t] known of any individual, possessing qualifications equal to myself, having been hired by Trenton State into a non-entry level position. Consequently, there was no factual basis to substantiate any previous suspicion that I, too, should have been hired by Trenton State into a " non-entry level" position.

...

20. I incurred personal injuries while working at Juvenile Justice circa January 27, 2005. Following that date, I required periods of hospitalization and recuperation causing me grave anxiety and clinical depression. Hence, I did not pursue this matter in a more timely manner after Spring 2006.3

The Law Division granted defendant's motion for summary judgment. The motion judge determined that plaintiff's complaint [204 N.J. 328] was barred by the two-year statute of limitations. In the court's oral

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decision, the judge determined that plaintiff " developed concerns" of racial discrimination in 2004, but waited until 2007 to file the complaint. The court also found that plaintiff's action was not tolled by the discovery rule, citing Lopez v. Swyer, 62 N.J. 267, 300 A.2d 563 (1973). The court concluded that plaintiff's cause of action accrued in 2004 when she had a " reasonable suspicion" of racial discrimination and should have taken action to investigate and determine whether she had a basis for legal action.

The Appellate Division affirmed the Law Division's grant of summary judgment. Reviewing the trial court's decision de novo, because 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, 713 A.2d 1019 (1998), the panel in an unpublished opinion concluded that " there was no genuine issue of material fact and that the trial court properly determined that [plaintiff's] LAD claims were barred by the statute of limitations." The panel found that the cause of action accrued upon the alleged " discrete act" of " disparate treatment" that occurred in April 2004 when plaintiff was hired in an entry-level position, and " [s]ince appellant had suspicions of discrimination while working at the Hospital, she should have investigated further ... because she was aware of or should have been aware of the possible injury caused to her."

Similarly, the panel concluded that any adverse employment action taken by the hospital in response to plaintiff's requests and complaints concerning her circumstances occurred while she was working at Trenton State, and her retaliation claim accrued, at the latest, " when she resigned her position" from Trenton State in 2004. In affirming the trial court, the Appellate Division also determined that the discovery rule did...

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