Erdmann v. BD. OF EDUC. UNION CTY. REG. HIGH SCH.

Decision Date03 June 1982
Docket NumberCiv. A. No. 81-2114.
PartiesDiane C. ERDMANN, Plaintiff, v. BOARD OF EDUCATION UNION COUNTY REGIONAL HIGH SCHOOL DISTRICT NO. 1, Donald Merachnik, individually and as County Superintendent of Regional High School District No. 1, and Charles Bauman, individually and as Assistant County Superintendent of Regional High School District No. 1, Defendants.
CourtU.S. District Court — District of New Jersey

COPYRIGHT MATERIAL OMITTED

Anthony P. D'Alessio, Abraham Borenstein, Springfield, N. J., for plaintiff.

Franz J. Skok, Johnston, Skok, Loughlin & Lane, Westfield, N. J., for defendants.

OPINION

WHIPPLE, Senior District Judge.

This matter is before the Court on defendants' motion for summary judgment as to various portions of the complaint.

The facts relevant to this motion are summarized briefly as follows. The complaint charges that on five occasions plaintiff, Diane C. Erdmann, applied for various administrative positions within the Union County Board of Education Regional High School District No. 1, which employs her as a teacher. Plaintiff claims that although she was qualified for the positions, her applications were wrongfully rejected because of her gender, and that the vacancies were subsequently filled with male applicants. To be more specific, on August 3, 1974 plaintiff's application for the position of Athletic Director at Dayton Regional High School was rejected. Within the six month period between August of 1977 and the end of February, 1978, plaintiff applied to each of three regional high schools within the district for the newly created position of Director of Physical Education, Health, Driver Education and Athletics. Plaintiff was passed over for each of those jobs, apparently along with hundreds of other applicants. Lastly, in 1979 plaintiff applied to become Assistant Principal at Livingston Regional High School and was turned down on August 8, 1979.

On August 22, 1979 plaintiff filed charges with the E.E.O.C. and the New Jersey Division of Civil Rights alleging that the Board had discriminated against her illegally on the basis of her gender. Suit was instituted in this Court on July 7, 1981 following plaintiff's receipt of her Right to Sue notice from the E.E.O.C. In four separate counts, plaintiff alleges violations of the following statutory provisions: Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; the Civil Rights Act of 1871, 42 U.S.C. § 1983; the New Jersey Law Against Discrimination, N.J.Stat.Ann. § 10:5-1, et seq.; and the New Jersey Law Against Discrimination by Educational Institutions, N.J. Stat.Ann. § 18A:6-6.

Defendants make three arguments in support of their current motion. First, with regard to the Title VII and New Jersey statutory claims, defendants argue that, except for plaintiff's claim relating to her application for assistant principal, all others are barred because of her failure to file charges within the statutorily prescribed time limits. Second, defendants contend that plaintiff's claim under Title 42 U.S.C. § 1983 must also be dismissed for failure to bring the claim within the period provided by the applicable statute of limitations, which defendants argue extends 180 days from the date of the allegedly discriminatory incident. Third, defendants Merachnik and Bauman argue that the complaint fails to state a claim against them upon which relief can be granted.

Title VII and The New Jersey Statutory Claims

Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., an individual complaining of discrimination who has filed charges with a state agency must also file charges with the EEOC within 300 days of the occurrence of the allegedly wrongful act. Here, the charge that plaintiff was discriminated against with respect to her application for assistant principal was timely filed. The remaining charges, however, fall outside of the 300 day filing period. Defendants, therefore, contend that these claims must be dismissed.

Plaintiff acknowledges that all of her charges were not timely filed; however, she invokes the doctrine of "continuing violations" as a basis for extending the jurisdictional reach of this Court. The theory of continuing violation is consistent with the traditionally liberal application of the congressionally mandated filing periods under Title VII. This judicially created exception to the statutory filing limitations was developed in order to provide aggrieved employees the maximum benefit of Title VII's civil rights protections, and has gained Congressional approval. 118 Cong.Rec. 7167 (1972). The Third Circuit has recognized application of continuing violation theory in Title VII cases. Bronze Shields Inc., et al. v. N. J. Dept. of Civil Service, et al., 667 F.2d 1074 (3d Cir. 1981); Masco v. United Airlines, 574 F.2d 1127 (3d Cir. 1978); Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 246 (3d Cir.), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975).

Despite the laudable aim served by continuing violation theory, its application is improper when an employee invokes it seeking to resurrect and litigate grievances long past by merely appending them to a current complaint. As noted by the Third Circuit in Bronze Shields, Inc., et al. v. N. J. Dept. of Civil Service, et al., supra,

The continuing violation theory, however, cannot be considered only in the expansive light of extending the filing period in order to protect a person's civil rights. Confronting and limiting the continuing violation theory is the explicit statutory ... limit, enacted by Congress.... citations omitted.

Id., at 1081-82. The circuit court in Bronze Shields relied principally upon Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), wherein the Supreme Court emphasized the congressional intent that an employer's liability for stale claims be limited. The Court stated:

The limitations periods, while guaranteeing the protection of the civil rights laws to those who promptly assert their rights, also protect employers from the burden of defending claims arising from employment decisions that are long past. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 463-464 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975); see United Air Lines v. Evans, 431 U.S. 553, 558 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977).

Id., at 256-57, 101 S.Ct. at 503.

When confronted with a claim of continuing violation, in order to determine the timeliness of EEOC complaints the district court must "identify precisely the `unlawful employment practice' of which plaintiff complains," Bronze Shields, supra, at 1083, quoting Ricks, supra, at 257, 101 S.Ct. at 503. Repeated denials of employment or promotion to an individual applicant such as plaintiff do not constitute a continuing violation unless the denials were based upon some allegedly discriminatory practice, policy or procedure utilized by the employer in making its employment decisions, and the plaintiff has brought a timely complaint of a present violation based on the employer's use of that same practice, policy or procedure. As the Third Circuit recently stated:

To prevail on a continuing violation theory, however, the plaintiff must show more than the occurrence of isolated or sporadic acts of intentional discrimination. The preponderance of the evidence must establish that some form of intentional discrimination against the class of which plaintiff was a member was the company's "standard operating procedure". Teamsters v. U.S., 431 U.S. 324 97 S.Ct. 1843, 52 L.Ed.2d 396 ... (1977).

Jewett v. I.T.T. Corp., 653 F.2d 89, 91 (3d Cir. 1981).

For example, in Jurinko v. Edwin L. Wiegand Co., 477 F.2d 1038 (3d Cir. 1973), the plaintiffs, two women, alleged in their complaint that their employer maintained a policy against hiring married women into its production department. In that case only the last of three distinct actions involving the policy was filed within the statutory period; nonetheless, the Court had jurisdiction under continuing violation theory to adjudicate claims based on each of the three acts. Id. at 1042. See also, Masco v. United Airlines, 574 F.2d 1127 (3d Cir. 1978) (company policy of treating pregnancy leave differently from other disability leave); Clark v. Olinkraft, Inc., 556 F.2d 1219, 1221 (5th Cir. 1977) (plaintiff contended that "... her employer had an established policy or practice of promoting to better paying jobs over qualified women, men with less seniority."), Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 759 (9th Cir. 1980) ("... allegations included a sweeping attack on Lockheed's systems of promotion, compensation and training."); Kyriazi v. Western Elec. Co., 461 F.Supp. 894 (D.N.J. 1978) (class action alleging regular and systematic practice of discriminating against women in areas of, inter alia, hiring, promotion, transfer, benefits, and training.) A company policy against employing married women as stewardesses was involved in United Airlines v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1976), although in that case plaintiffs had failed to make any timely complaint of United's use of the then abandoned discriminatory policy. The airline's use of a non-discriminatory seniority system upon rehiring the wrongfully terminated plaintiffs merely gave present effect to past wrongs, and therefore did not constitute a present instance of a continuing violation. Id. at 557, 97 S.Ct. at 1888. In Bronze Shields, supra, defendant's use of an eligibility roster compiled from the results of an allegedly discriminatory civil service examination was not a practice which constituted a continuing violation, since the roster itself was neutral in its effect. However, continued testing with the racially biased exam would have been a continuing violation.

The continuing violation theory can best be understood by reference to the practical consideration which justifies this...

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