Croce v. State, Office of Adjutant General

• Decision Date: 01 September 2005
• Docket Number: No. 2002-459-Appeal.,2002-459-Appeal.
• Citation: 881 A.2d 75
• Parties: Mary D. CROCE v. STATE of Rhode Island, OFFICE OF ADJUTANT GENERAL et al.
• Court: Rhode Island Supreme Court

881 A.2d 75

Mary D. CROCE v. STATE of Rhode Island, OFFICE OF ADJUTANT GENERAL et al.

No. 2002-459-Appeal.

Supreme Court of Rhode Island.

September 1, 2005.

Lewis J. Paras, for Plaintiff.

Brenda D. Baum, for Defendants.

Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.

OPINION

PER CURIAM.

In this age discrimination case, the plaintiff, Mary D. Croce, appeals from the Superior Court's grant of summary judgment in favor of the defendants (viz., "the State of Rhode Island, Office of Adjutant General" and "Major General Reginald Centracchio [as] Adjutant General"). The plaintiff contends that the Superior Court erred in granting summary judgment on statute of limitations grounds because (1) there was an allegedly continuing pattern of discriminatory conduct and (2) at least one of the allegedly discriminatory acts purportedly took place within the statute of limitations.

This case came before the Supreme Court for oral argument on February 1, 2005, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After hearing the arguments of counsel and examining the memoranda submitted by the parties, we are of the opinion that cause has not been shown and that this case should be summarily decided.

Facts and Travel

On September 15, 1995, when plaintiff was seventy-two years old, she was notified that she was to be laid off from her position as a fiscal clerk for the State of Rhode Island, Office of Adjutant General. To avoid being laid off, plaintiff exercised her contractual right to "bump" into another (albeit lower paying) position within the same department in the Adjutant General's office.

The plaintiff contends that a series of events that occurred after she assumed her new position constituted a continuing pattern of discriminatory conduct that related back to the layoff notice that she had received in September of 1995. According to plaintiff, from October 1995 to February 14, 1996, she performed the same duties in her new position as she had performed when she was a fiscal clerk, but she was compensated at a lower pay rate. She also alleges that it was necessary for her to climb stairs due to the fact that she was relocated to a fourth-floor office in a building that did not have an elevator. The plaintiff further points out that, on August 1, 1996, she was transferred to Camp Fogarty in East Greenwich, which transfer required her to undertake a thirty-mile roundtrip daily commute. The plaintiff also alleges that, in March of 2000, she was not given a pay upgrade when the younger clerks in her department received one and that, when her coworkers received new computers, she received only an old computer, which was not installed. She further says that her coworkers were offered computer training, but that she did not receive any such offer.

The plaintiff commenced the instant action by filing a complaint on December 22, 1998 (the original complaint).¹ Count 1 of that complaint was brought under the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. Count 2 alleged that plaintiff was a victim of age discrimination in violation of the Rhode Island Civil Rights Act of 1990 (RICRA). See G.L. 1956 chapter 112 of title 42. Count 3 contained an equal protection claim brought pursuant to the Rhode Island Constitution.

On April 5, 2000, a motion justice granted the state's motion to dismiss with respect to counts 1 and 3 of the original complaint. In October 2000, the state moved for summary judgment on count 2 of the original complaint.

On November 21, 2000 plaintiff's motion to amend her complaint was granted. In her amended complaint, plaintiff added Major General Reginald Centracchio in his official capacity as a defendant, and she asserted an additional claim of age discrimination under the State Fair Employment Practices Act (FEPA). See G.L. 1956 chapter 5 of title 28.

On January 23, 2001, a justice of the Superior Court conducted a hearing on the state's motion for summary judgment. The motion justice found that none of the events alleged to have occurred after plaintiff received her layoff notice was facially discriminatory. She then granted summary judgment in favor of the state with respect to the RICRA claim on the grounds that the claim was barred by the statute of limitations.²

Thereafter, defendants filed another motion for summary judgment with respect to the RICRA claim against Major General Centracchio and with respect to the FEPA claims against both defendants. In support of their motion for summary judgment, defendants submitted an affidavit indicating that plaintiff's entire unit had been transferred to Camp Fogarty to accommodate the space needs of the department.³ On the issue of plaintiff's performance of her former duties, defendants pointed out that, once it was learned that plaintiff had been continuing to perform her old duties, those duties were reassigned. The defendants also indicated that plaintiff had admitted in her deposition testimony that her pursuit of a pay upgrade was not related to an increase in job duties or responsibility, but rather was centered on her wanting to get her old job back. With respect to computer usage, defendants pointed out that plaintiff had further admitted in her deposition testimony that she had no problem finishing her work or having to share a computer with another employee and that having the use of a computer for one or two hours a day was sufficient. The defendants further indicated that plaintiff had received a new computer and had been given computer training before she filed the amended complaint.

On June 21, 2002, a motion justice granted defendants' motion for summary judgment in its entirety. Judgment was entered on July 2, 2002, and plaintiff timely appealed.⁴

The plaintiff raises only one issue on appeal — namely, the appropriateness of the Superior Court's having granted summary judgment on statute of limitations grounds with respect to her FEPA and RICRA claims.

Analysis

When we review the granting of summary judgment by the Superior Court, we do so on a de novo basis. Kells v. Town of Lincoln, 874 A.2d 204, 209 (R.I.2005). In conducting that review, we adhere to the same criteria as did the motion justice in the Superior Court. O'Sullivan v. Rhode Island Hospital, 874 A.2d 179, 182 (R.I.2005). We will affirm the granting of summary judgment "only if, after reviewing the evidence in the light most favorable to the nonmoving party, we conclude that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law." Tanner v. Town Council of East Greenwich, 880 A.2d 784, 791 (R.I.2005); see also O'Sullivan, 874 A.2d at 182

. At the same time, the party opposed to a motion for summary judgment has "the burden of proving by competent evidence the existence of a disputed material issue of fact and cannot rest on allegations or denials in the pleadings or on conclusions or legal opinions." Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1225 (R.I.1996).

The plaintiff asserts that the motion justice erred in granting summary judgment in favor of defendants. She asserts that her case was not time-barred because there was a pattern of continuing discriminatory acts and that at least one of those discriminatory acts occurred within statute of limitations period.⁵ The FEPA contains a one year statute of limitations. Section 28-5-17(a). See Roadway Express, Inc. v. Rhode Island Commission for Human Rights, 416 A.2d 673 (R.I.1980)

; Ferguson Perforating and Wire Co. v. Rhode Island Commission for Human Rights, 415 A.2d 1055 (R.I.1980).

However, with respect to the RICRA, we have never had occasion to hold what limitations period is applicable. In the case of Rathbun v. Autozone, Inc., 361 F.3d 62, 70 (1st Cir.2004), the United States Court of Appeals for the First Circuit addressed the issue and held that "RICRA actions are governed by Rhode Island's three-year residual statute of limitations for injuries to the person, namely, R.I. Gen. Laws § 9-1-14(b)."⁶ Although the question of what statute of limitations applies to RICRA actions is one of obvious importance to bench and bar, it has not been briefed by the parties to this case and we will not pass upon this issue without thorough briefing and argument. Therefore, since it will not affect the result in this particular instance, for the purposes of this case, we have assumed the applicability of the three-year statute of limitations, which the First Circuit concluded in Rathbun is the proper limitations period for RICRA claims.

It is clear that the allegedly discriminatory act which lies at the core of plaintiff's case occurred, if at all, more than three years before plaintiff filed the complaint.

The layoff of September 1995 constituted a discrete act. The limitations period began to run at that time, and plaintiff has failed to show why the continuing violation exception should be available to her in this case. See Goldman v. Sears, Roebuck & Co., 607 F.2d 1014, 1018 (1st Cir.1979)

("A continuing violation is not stated if all that appears from the complaint is that the plaintiff continues to suffer from the ongoing effects of some past act of discrimination."); see also Gilbert v. City of Cambridge, 932 F.2d 51, 58-59 (1st Cir.1991) (distinguishing "between a continuing act and a singular act that brings continuing consequences in its roiled wake."); Altair Corp. v. Pesquera de Busquets, 769 F.2d 30, 32 (1st Cir.1985) ("[Plaintiff's] argument concerning the continuing violation exception to the general rule confuses a continuing act with a single act that has continuing consequences."); Berry v. Board of Supervisors of L.S.U., 715 F.2d 971, 979 (5th Cir.1983) ("[A plaintiff] may not employ the continuing violation theory `to resurrect claims about discrimination concluded in the...