women with regard to employment in administrative positions, the evidence does not support such a conclusion. Defendants' answers to plaintiff's interrogatories indicate that women are hired or promoted into such positions with some regularity, and that since September of 1977 between 20 to 25% of all administrators employed by the Board have been women. If plaintiff has in fact been discriminated against, it has not been as a result of any systematically applied policy or informal practice of discrimination against women with respect to employment as administrators. Rather than focusing on the legality of a general policy or practice, the merits of plaintiff's claims must therefore necessarily turn upon the particular facts of each denial. As noted previously, Congress has chosen to relieve employers of the burden of defending against such claims unless they are filed within the statutorily allowed period.
Accordingly, with the exception of the claim relating to rejection of her application for assistant principal which was complained of in a timely manner, plaintiff's other claims under Title VII are time barred and must be dismissed. For the same reason plaintiff's state law claims under N.J.S.A. §§ 10:5-4 and 18A:6-6 must be dismissed, except the claim relating to the assistant principal position. Although New Jersey recognizes the continuing violation exception to its statutory 180 day filing period, Terry v. Mercer Co. Bd. of Chosen Freeholders, 173 N.J. Super. 249, 253 (App. Div. 1980), as held with respect to plaintiff's federal claims, the exception is inapplicable to this case.
When a continuing violation is not established to bring untimely charges within the Court's present jurisdiction, the allegedly discriminatory acts which formed the bases of those charges may only,
... constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, [they are] merely... unfortunate events in history which [have] no present legal consequences.
United Airlines v. Evans, supra, at 558.
Claim Under 42 U.S.C. § 1983
Defendants contend that plaintiff's claim alleging violations of 42 U.S.C. § 1983 should be dismissed because it was not filed within the period of the applicable statute of limitations. Because Congress has not supplied § 1983 with its own statute of limitations, state limitations governing analogous actions are borrowed. Bd. of Regents of Univ. of St. of N.Y. v. Tomanio, 446 U.S. 478, 483-84 (1980); Howell v. Cataldi, 464 F.2d 272 (3d Cir. 1972). Within the Third Circuit this borrowing is accomplished by looking beyond the cause of action alleged and seeking to characterize the facts underlying the plaintiff's claim in terms of traditional common law torts.
Ammlung v. City of Chester, 494 F.2d 811, 814 (3d Cir. 1974). See, e.g., Hughes v. Smith, 264 F.Supp. 767 (D.N.J. 1967), aff'd, 389 F.2d 42 (3d Cir. 1968) (per curiam) (assault by police officer governed by limit on actions for injury to the person, N.J.S.A. 2A:14-2); Page v. Curtiss-Wright Corp., 332 F.Supp. 1060 (D.N.J. 1971) (six year statute applied to breach of collective bargaining agreement, a contract, N.J.S.A. 2A:14-1). Accordingly, this Court must examine the nature of the conduct involved and match it to the most nearly analogous New Jersey statute of limitations. The parties offer three alternative statutes of limitation, which the Court treats separately as follows.
Defendants urge, albeit as an alternative position, that because the Board of Education is a "Public Entity" within the meaning of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq., that Act's two year statutory period should apply, N.J.S.A. 59:8-8. Defendant relies upon Gipson v. Twp. of Bass River, 82 F.R.D. 122 (D.N.J. 1979), and Lloyd v. Stone Harbor, 179 N.J.Super. 496 (Ch.Div. 1981).
Neither of these cases constitute strong support for defendants' position. At least one Court in this district has recently taken issue with the holding in Gipson. Peters v. Township of Hopewell, et al., 534 F.Supp. 1324 (D.N.J. No. 78-3108, March 19, 1982). Citing Donovan v. Reinbold, 433 F.2d 738 (9th Cir. 1970), which the opinion in Gipson attempted to distinguish, J. Debevoise in Peters v. Twp. of Hopewell noted that a state's concept of its own sovereign immunity is essentially irrelevant to limitations under § 1983, since whether or not a state waives its sovereign immunity -- as New Jersey has by means of its Tort Claims Act, N.J.S.A. 59:1-2 -- it is nonetheless subject to suit under § 1983. In addition, application of the Tort Claim Act's two year period would require that the Court look to the character of the entity engaged in the allegedly illegal conduct, rather than examining the nature of the conduct itself as required within the Third Circuit when borrowing a state statute of limitations under § 1983. The New Jersey courts have adopted the view that the state's Tort Claims Act is generally inapplicable to § 1983 actions. Woodsum v. Pemberton Twp., 172 N.J. Super 489, 521 (Law. Div. 1980), aff'd, 177 N.J. Super. 639 (App. Div. 1981). This Court is in agreement with the Peters opinion that this generalization extends also to the time provisions of the Act. Accordingly, the two year limitation will not be applied to plaintiff's claim under § 1983.
As between the two remaining statutory time limitations proffered -- six years for actions sounding in contract, N.J.S.A. 2A:14-1, or, 180 days for actions alleging employment discrimination under N.J.S.A. 10:5-4, New Jersey's Law Against Discrimination, N.J.S.A. 10:5-18 -- the choice turns on the characterization given to defendants' rejection of plaintiff's applications. If the rejections constitute failures to promote, then the six year contract statute applies. If the rejections are viewed as denials of employment -- i.e., refusals to hire into positions not available by way of promotion -- then the 180 day period is applicable. While the distinction between hiring and promotion is, in this instances, a subtle one, and its application yields a severe practical difference, this resolution is the only reasonable one left to the Court in this muddle of overlapping state and federal constitutional, statutory, and common law protections and concommitant limitations.
Implicit in the rulings of other courts is a finding that movement from a teaching position to an administrative one can be a promotion. See e.g., Webster v. Redmond, 599 F.2d 793 (7th Cir. 1979); Lee v. Conecuh County Board of Education, 464 F.Supp. 333 (S.D.Ala. 1979). However, whether administrative positions within the defendant's school system are available to teachers such as plaintiff as promotional opportunities, or whether, as defendants contend, teachers must apply for administrative jobs on the same basis as non-employee candidates, is a disputed issue of fact which cannot be resolved on the evidence presently before the Court.
In the event that plaintiff can substantiate her contention that defendants' actions were denials of promotion, then the applicable statute would be0 N.J.S.A. 2A:14-1, New Jersey's six year period for actions alleging breach of contract. If defendants have discriminatorily and illegally denied plaintiff promotion, then such actions would constitute breaches of the implied contractual provision that plaintiff's employer not act illegally with respect to obligations, such as appropriate promotion, within the employment relationship. In McNeil v. McDonough, 515 F.Supp. 113 (D.N.J. 1980), aff'd., 648 F.2d 178 (3d Cir. 1981) (per curiam), the Court, applying New Jersey's six year statute of limitations to an action brought under Section 1981 which alleged that a failure to promote was racially motivated, stated:
The claim may be read as asserting that the employment relation, which is contractual in nature, is to be regarded as though it contained a provision that the employer would not act contrary to applicable law. Such a reading analogizes the claim as one for breach of contract, to which New Jersey's 6-year statute of limitations, N.J.S. 2A:14-1 would apply. That statute will be taken as governing all claims encompassed by 42 U.S.C. § 1981, et seq., as well as claims said to arise directly under the U.S. Constitution in respect to which the same underlying considerations apply.
Id. at 120. Similarly, in Kyriazi v. Western Electric Co., 461 F.Supp. 894 (D.N.J. 1978), the Court held that plaintiff's action under 42 U.S.C. § 1985(3), for alleged conspiracy to discriminate against plaintiff due to her sex, was governed by New Jersey's statute of limitations on contract actions. See also, Liotta v. National Forge Co., 629 F.2d 903 (3d Cir. 1980) cert. den., 451 U.S. 970 (1981); Davis v. U.S. Steel Supply, 581 F.2d 336 (3d Cir. 1978); Page v. Curtis-Wright Corp., supra, at 1065.
This same employment contract rational cannot apply in the event that defendants' actions are determined to be refusals to hire. If plaintiff did not enjoy opportunity to attain administrative positions via promotion and was on the same footing as non-employee applicants, then defendants owed her no duty with respect to those jobs in the context of the parties' contractual employment relationship. The six year statute would not apply, and the most analogous limitation would be the 180 day period under N.J.S.A. 10:5-18. As defendants note, the cases cited in support of borrowing the six year statute all involve the breach of duties owed by employees under existing employment contracts, whether written or "at will." It would be inconsistent and contrary to this Circuit's method of choosing the state limitation to be borrowed, see pp. 9-10 supra, if this Court were to focus on the character of the plaintiff involved -- i.e., employee versus non-employee -- rather than on the nature of the defendants' actions underlying the cause -- i.e., failure to promote versus refusal to hire. Accordingly, the 180 day period should apply if defendants' decisions on plaintiff's applications were hiring rejections. Similar attenuated state limitations have been borrowed in § 1983 and § 1981 cases by courts in other circuits, even in situations where the employment contract view would be appropriate. See Burns v. Sullivan, 619 F.2d 99 (1st Cir.), cert. denied, 449 U.S. 864 (1980); McGill v. Gen. Elec. Co., 524 F.Supp. 1126 (D.Md. 1981).
One New Jersey state court has addressed precisely the issue of whether or not the 180 day limit may appropriately be borrowed in a § 1983 action. Lloyd v. Stone Harbor, 179 N.J. Super. 496 (Ch. Div. 1981). The state court held that it could not. In that case plaintiff, an employee of the municipal police department, applied for a job as a regular police officer, a position apparently not available through promotion. The issue of statute of limitations arose with respect to direct federal constitutional claims. The Court properly analogized to limitations decisions under § 1983. The state court relied upon Gipson v. Bass River, supra, (discussed at p.10 supra), with which this Court disagrees, in finding the two year Tort Claims Act limitation applicable against a municipality and the six year contract appropriate as against individual defendants. The state court rejected the possibility of borrowing the 180 day Law Against Discrimination period. The court stated:
This provision would be most appropriate for application here were it not for the language of § 27 of the law [10:5-27] which provides that it shall not 'bar, exclude, or otherwise affect any right of action, civil or criminal, which may exist independently' of that law. If the 180 day condition is applied here, it will 'bar, exclude, or otherwise affect' the constitutional suit of plaintiff.
179 N.J.Super, at 514 (emphasis supplied). Although this rational reflects laudable deference to plaintiff's federal civil rights, it proves too much. As noted earlier (supra, at p. 9), appropriate state limitations are borrowed to fill the void left by Congress when enacting § 1983. Thus, though plaintiff's rights under § 1983 are affected by application of the 180 day period, it is with the tacit approval of Congress. The Court is borrowing only the statute of limitations, which the Court in Lloyd agreed is a "most appropriate" limitation. The Court is not seizing upon New Jersey Law Against Discrimination as a limitation or bar to similar federal remedies, but rather is adopting the analogous state time limit, as it must, to define one parameter of the federal § 1983 cause of action. N.J.S.A. 10:5-27 does not prevent the borrowing of § 10:5-18.
Accordingly, the 180 day limit will apply in the event that later proofs demonstrate defendants' actions to be refusals to hire. Defendants' motion for dismissal of plaintiff's claim under § 1983 is denied without prejudice pending resolution of the dispositive factual issue.
Failure to State A Claim as to Certain Defendants
Finally, plaintiff's claims against defendants Merachnik and Bauman will not be dismissed at this time. Although defendants correctly point out that in deposition testimony plaintiff was unable to explain how Dr. Merachnik and Mr. Bauman discriminated against her, plaintiff has established that these two individuals occupy influential positions within the school district. Plaintiff should therefore be allowed to complete the discovery process to determine what role, if any, these individuals played in making appointments.
Counsel for defendants shall submit an order in conformance with this opinion within five (5) days.