On appeal from Superior Court of New Jersey, Law Division, Essex County.
Dreier, Bilder and Gruccio. The opinion of the court was delivered by Dreier, J.A.D.
[210 NJSuper Page 577] Plaintiff has appealed from a Law Division summary judgment dismissing her claims against her public employer, The University of Medicine and Dentistry of New Jersey (UMDNJ). She demanded damages for sexual harassment, asserting violations of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq., and the federal Civil Rights Act, 42 U.S.C.A. § 1983, as well as equitable relief. Plaintiff apparently failed, however, to comply with the 90-day notice provision of
the Tort Claims Act, N.J.S.A. 59:8-8.*fn1 Plaintiff asserted in the trial court that the Tort Claims Act filing provisions were inapplicable to claims made under both the Law Against Discrimination and 42 U.S.C.A. § 1983. The trial judge held to the contrary and dismissed her complaint. We disagree and reverse.
The Law Against Discrimination is directed at ending discrimination in employment and public accommodations, N.J.S.A. 10:5-3 and 10:5-4. The Act sets forth a detailed mechanism of procedures and remedies and envisions either utilization of conciliation and administrative law procedures or a Superior Court action, each generally exclusive of the other while pending. N.J.S.A. 10:5-13, 10:5-27.*fn2
N.J.S.A. 59:1-2, the legislative preamble to the Tort Claims Act, declares "to be the public policy of this State that public entities shall only be liable for their negligence within the limitations of this act. . . ." (Emphasis added). The Act is broader in scope than this initial legislative declaration, in that it includes redress for an "injury," defined in N.J.S.A. 59:1-3 as "death, injury to a person, damage to or loss of property or any other injury that a person may suffer that would be actionable
if inflicted by a private person." To determine whether the Legislature intended that a violation of the Law Against Discrimination would constitute an "injury" subject to the Tort Claims Act, we must analyze both the Law Against Discrimination and the Tort Claims Act.
We find that a discrimination claim is dissimilar to those envisioned by the Legislature to be included within the coverage of the Tort Claims Act.*fn3 In Lloyd v. Stone Harbor, 179 N.J. Super. 496, 511-12 (Ch.Div.1981), Judge Haines properly found that a tort claim based upon a violation of the New Jersey Constitution was subject to the notice provision of the Tort Claims Act. Such a finding, however, does not lead to the conclusion that a Law Against Discrimination claim is to be similarly constrained. The Law Against Discrimination's self-contained notice provisions, conciliation periods, mutual exclusivity of the judicial or administrative remedy while such remedy is being pursued, and the usual mixed injunctive and compensatory relief sought in an anti-discrimination suit govern those claims to the exclusion of any other time or notice provisions, including those of the Tort Claims Act.
We note also, that the Tort Claims Act provides no immunity for willful or malicious acts caused either by the employee or the entity itself. The Tort Claims Act in N.J.S.A. 59:3-14a and b permits personal liability and full recovery against a public employee for the results of actual malice or willful misconduct. N.J.S.A. 59:2-10 forbids only vicarious liability for such conduct on the part of a public entity. Discriminatory conduct actionable under the Law Against Discrimination is more akin to the malicious or willful acts exempted from the Tort Claims Act than the negligently or similarly inflicted injuries covered thereby.
We realize that our decision is in conflict with this court's recent opinion in Healey v. Dover Tp., 208 N.J. Super. 679 (App.Div.1986). Although it might be possible to distinguish Healey, we would have to strain to do so.*fn4 We, ...