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SKADEGAARD v. FARRELL

January 19, 1984

RASHMI C. SKADEGAARD, Plaintiff,
v.
THOMAS D. FARRELL, PHILIP H. WITT, HOWARD SILVERMAN and IRA MINTZ, Defendants



The opinion of the court was delivered by: ACKERMAN

 This is an action arising out of the alleged sexual harassment of plaintiff, Rashmi Skadegaard, who, after allegedly rebuffing her supervisor's advances, claims she was the subject of a retaliatory conspiracy perpetrated by the defendants to this lawsuit. Plaintiff was, for a period of approximately two years, the first and only female staff Clinical Psychologist to be hired by her employer, the Adult Diagnostic and Treatment Center [ADTC], a diagnostic, treatment and custodial facility operated by the New Jersey Department of Corrections [DOC] for recidivistic sexual offenders. The defendants in the instant action are Thomas Farrell (Assistant Superintendent of the ADTC) plaintiff's immediate supervisor until his dismissal from that position following the incidents recited herein, and his alleged co-conspirators, defendants Ira Mintz (Superintendent of the ADTC), Philip H. Witt (Head of the Department of Psychology at the ADTC), and Howard Silverman (Director of Outpatient Services at the ADTC).

 Plaintiff claims that her rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment as well as under 42 U.S.C. §§ 1983, 1985(3), and 1986 have been violated by the acts of defendants. Plaintiff also asserts various pendent state law claims including violations of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. and malicious interference with plaintiff's employment contract. The complaint was filed on March 16, 1983. This case is presently before me on the motions of each of the four defendants to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure as well as on Statute of Limitations and equitable grounds. For the reasons set forth below, I have decided to deny defendants' motions.

 The complaint alleges the following facts. Plaintiff was hired in May of 1976. Commencing in the summer of 1977, plaintiff was subjected to repeated "crude sexual advances and suggestive comments" of Assistant Superintendent Farrell. This treatment by Mr. Farrell persisted despite plaintiff's explicit and consistent rejection of his advances. On or about March 1, 1978, defendant Farrell authored a memorandum "seriously questioning . . . [plaintiff's] professional competence" and placed it in her personnel file. On June 4, 1981 defendant Farrell sexually assaulted plaintiff en route to a work-related meeting in a state owned vehicle. Defendant Farrell was suspended in November or December of 1982 and subsequently pleaded guilty to plaintiff's charges arising out of this incident in administrative proceedings on January 11, 1983. Defendant Farrell was ultimately transferred and demoted following the events described above.

 In addition to these specific acts of defendant Farrell, the complaint alleges a retaliatory conspiracy between and among all the defendants with the end of damaging plaintiff's professional reputation and driving her away from her job with the ADTC. In furtherance of this conspiracy, plaintiff alleged that defendants "bad-mouthed" her and other employees, accused her of incompetence and misuse of work time, failed to treat her as they treated similarly situated male employees, refused to allow her to resume work after a medical leave compelled by the above-described incidents, failed in their respective supervisory capacities to prevent further harassment of plaintiff and attempted to suborn perjury at the administrative proceedings resulting in defendant Farrell's demotion.

 Initially, I address defendant Silverman's claim that this action is barred as untimely under the applicable statute of limitations. Defendant Silverman's argument rests on the contention that at bottom plaintiff's claim is one for sexual harassment, a claim most appropriately brought pursuant to federal or state statutes prohibiting discrimination in employment. Mr. Silverman argues that plaintiff's claim is time barred under Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e et seq. (1976) (hereinafter Title VII) which makes the filing of a charge with the Equal Employment Opportunity Commission or analogous state agency within 180 days a jurisdictional prerequisite to federal court action under the Act. See id. at § 2000e-5(e); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Secondly, he argues that a suit under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (1976) would be time barred by that statute's requirement that a complaint be filed with the appropriate state agency or municipal office within 180 days. N.J.S.A. 10:5-18 (as amended effective 1980). Finally, he argues that the 180 day limitation period under the New Jersey Law Against Discrimination is applicable to plaintiff's claims under 42 U.S.C. §§ 1983, 1985(3) and 1986.

 It is settled that the applicable limitations period to a suit under the Civil Rights Acts is the one that would apply to an action seeking analogous relief under state law. See Board of Regents of the University of the State of New York v. Tomanio, 446 U.S. 478, 483-84, 64 L. Ed. 2d 440, 100 S. Ct. 1790 (1980); Aitchison v. Raffiani, 708 F.2d 96, 101 (3d Cir. 1983); Polite v. Diehl, 507 F.2d 119, 122 (3d Cir. 1974) (en banc). As plaintiff correctly notes, "selection of the appropriate forum state statute of limitation requires characterization of the essential nature of the federal claim within the scheme created by the various state statutes of limitation." Davis v. United States Steel Supply, 581 F.2d 335, 337 (3d Cir. 1978). The "essential nature" of the claim is determined from the facts alleged and the relief requested in the complaint. Id. at 338. The selection of the appropriate limitations period from state law for an action under the Civil Rights Acts is further guided by two competing principles. First, the Supreme Court has noted that state statutes of limitation are not merely "technical obstacle[s] to be circumvented if possible. In most cases they are binding rules of law." Tomanio, 446 U.S. at 484. Second, the Third Circuit has cautioned that in making the selection a federal district court should not be unmindful of the "remedial spirit of the federal Civil Rights Acts," Knoll v. Springfield Township School District, 699 F.2d 137, 143 (3d Cir. 1983), and the nature of "the federal interest sought to be vindicated." Id. at 145.

 In applying this analysis to the case before me, I find that the New Jersey limitations period which would apply to an analogous cause of action under state law is the residual six year period under N.J.S.A. 2A:14-1 and not the 180 day period for administrative filing under the Law Against Discrimination, N.J.S.A. 10:5-18. The essential nature of the federal claim in this case is sexual harassment in public employment, a claim which is legally cognizable as sex discrimination. The most closely analogous cause of action under the law of New Jersey is a suit pursuant to the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, 13.

 The limitations period applicable to a court action to redress violations of this state statute is not entirely settled as a matter of New Jersey law. However, employing the same analysis as that called for in the selection of a state statute of limitations for a federal action under the Civil Rights Acts by a federal court, the state court which has passed on the question, concluded that the six year period under N.J.S.A. 2A:14-1 was applicable. See Leese v. Doe, 182 N.J.Super. 318, 320, 440 A.2d 1166 (Law Div. 1981).

 In Leese, the court looked at two possible limitations periods in New Jersey law: first, the two year period for "injury to the person" contained in N.J.S.A. 2A:14-2 and second, the six year period for tortious property damage recovery on a contract not between merchants, or "for any tortious injury to the rights of another not stated in sections 2A:14-2 and 2A:14-3 of this Title" contained in N.J.S.A. 2A:14-1. See Leese, 182 N.J.Super. at 320. Relying on Davis cited supra, the court concluded that an action seeking damages for sex discrimination in employment was more akin to one involving property damage or interference with rights under the employment contract than to a personal injury action. See Leese, 182 N.J.Super. at 321; see also Davis, 581 F.2d at 338; Kyriazi v. Western Electric Co. et al., 461 F. Supp. 894, 902 (D.N.J. 1978), aff'd, 647 F.2d 388 (3d Cir. 1978), vacated in part, 473 F. Supp. 786 (D.N.J. 1979). Calling the question of the limitations period applicable to actions under the Law Against Discrimination "new", Leese, 182 N.J.Super. at 320, the court assumed that the 180 day statutory period contained in N.J.S.A. 10:5-18 governed only administrative filings under the Act. See my discussion of this point infra.

 I agree that the Law Against Discrimination does not set the limitations period for court actions to redress employment discrimination. The statute by its terms refers only to administrative filing in setting forth the limitations period. Although the provision for the initiation of a court action either before administrative filing or after a final administrative determination was first added to the statute in 1979, effective 1980, see N.J.S.A. 10:5-13, the section dealing with the limitations period was amended by the legislature in the same year. The amended section makes no mention of a separate limitations period for a court action pursuant to the Act nor does it make the 180 day limitations period applicable to the new statutory cause of action. Therefore, the limitations period applicable to this action must be selected from among those statutes of limitation available for actions seeking comparable relief at common law. *fn1"

 I also agree with the court's determination in Leese, that as between the two year period for personal injury, N.J.S.A. 2A:14-2, and the six year period for contractual or other tortious injury, N.J.S.A. 2A:14-1, the latter applies to a case such as the one before me. I need not decide whether an action for employment discrimination is more akin to contract or tort because in either case the six year period under N.J.S.A. 2A:14-1 applies to an action seeking the relief sought by plaintiff Skadegaard. See Leese, 182 N.J.Super. at 321; Davis, 581 F.2d at 341. While a sexual assault is among the facts alleged by plaintiff, making this case distinguishable from the facts alleged in Leese, this is not an action for personal injury. Plaintiff seeks relief for a broad spectrum of alleged conduct and does not focus on the physical assault or on the physical harm it may or may not have caused. The relief sought by plaintiff is the key to characterization of a cause of action for statute of limitations purposes and as in Davis, "in terms of legal relief, plaintiff's complaint does not seek damages for . . . bodily injury." Davis, 581 F.2d at 338. Instead, she seeks damages for "severe emotional distress, humiliation, loss of income and damage to her professional reputation." Having considered all possible limitation periods under New Jersey law in light of the essential nature of Ms. Skadegaard's complaint, I have determined that her action is governed by the six year period and is, therefore, timely.

 Defendant Silverman also raises the equitable defense of laches as to plaintiff's claims against him. He argues that because plaintiff never named him in her charges before the administrative tribunal she should be barred from naming him as a defendant in this action. Plaintiff had no duty to exhaust her administrative remedies before proceeding against Mr. Silverman in this action. Defendant's conclusory assertion that ". . . delay by the Plaintiff greatly prejudices the Defendant . . .", is insufficient ground for the exercise of this court's equitable power to bar an action as unduly delayed though it is timely under the applicable statute of limitations. "Laches, of course, requires more than a lapse of time; as an equitable defense it is determined in the light of all the existing circumstances and requires that the delay be unreasonable and cause prejudice to the adversary." Sobosle v. United States Steel Corp., 359 F.2d 7, 12-13 (3d ...


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