is made of UMDNJ or Dr. Prockop. Neither the UMDNJ nor Prockop have an interest identical to Dr. Layman's. Moreover, the record does not show that UMDNJ and Prockop told the plaintiff to communicate with them through Dr. Layman, nor can I reach this conclusion by drawing all reasonable inferences in favor of the plaintiff. Therefore, I find that plaintiff's formal charge naming defendant Prockop and UMDNJ dated Dec. 7, 1983 will not relate back to the date of plaintiff's letter to the EEOC. Moreover, plaintiff may not bring an action against these unnamed parties in this case under the exception detailed in Glus v. G.C. Murphy Co. cited supra.
Plaintiff argues that if these claims do not relate back to the original charge, they must still be considered as timely under the continuing violation theory. An action may be brought by one who has suffered one or more discriminatory acts as long as the plaintiff establishes that the offending practice is an ongoing one. Jewett v. International Telephone & Telegraph Corp., 653 F.2d 89, 91 (3d Cir.), cert. denied, 454 U.S. 969, 70 L. Ed. 2d 386, 102 S. Ct. 515 (1981). To succeed on this theory, plaintiff must show a series of related acts, one or more of which falls within the limitations period, or the maintenance of a discriminatory system both before and during the [limitation] period." Valentino v. United States Postal Service, 218 U.S. App. D.C. 213, 674 F.2d 56, 65 (D.C.Cir. 1982) (quoting B. Schlei & P. Grossman, Employment Discrimination Law 323 (Supp. 1979)). Before determining whether the continuing violation theory applies, the court must first identify precisely the "unlawful employment practice" of which the plaintiffs complain. Delaware State College v. Ricks, 449 U.S. 250, 257, 66 L. Ed. 2d 431, 101 S. Ct. 498 (1980); Bronze Shields Inc. v. New Jersey Dept. of Civil Service, 667 F.2d 1074, 1083 (3d Cir. 1981). Each defendant must be considered separately.
Here, plaintiff's theory must fail as to Dr. Prockop. Plaintiff alleges that Dr. Prockop, after learning of plaintiff's employment discrimination suit filed in state court in October 1982 against Dr. Layman, engaged in retaliatory conduct against her, including threatening her with adverse employment consequences, refusal to advance her and deprecation of her work. Plaintiff does not specify precisely when this conduct occurred by affidavit or other sworn statement. However, the "Request for Personnel Action" contained in Defendants' Appendix shows that plaintiff took a medical leave of absence from February 9, 1983 to May 6, 1983. Defendants' Appendix at 42. Since plaintiff does not allege that she was harassed in any way after her leave of absence began, the latest date defendant Prockop's conduct could have occurred, for purposes of this summary judgment motion, was February 8, 1983, the last work day before February 9, 1983.
Plaintiff's sworn charge against Dr. Prockop was filed December 7, 1983, 302 days after the date the last discriminatory act by Prockop could have occurred. Thus, assuming that there were a series of discriminatory acts, no act occurred within the 300-day time limit, and accordingly, plaintiff's claims against defendant Prockop are time barred.
Turning now to plaintiff's claims against UMDNJ, plaintiff's complaint alleges two kinds of discriminatory treatment: (1) sexual harassment and (2) retaliation. Reading plaintiff's complaint somewhat liberally, it appears that plaintiff is alleging that UMDNJ is liable vicariously or on a respondeat superior theory for the alleged sexual harassment by Dr. Layman claiming that UMDNJ knew of her previous relationship but failed to investigate Layman's alleged conduct. Amended Complaint para. 11. As to the retaliation claim, plaintiff apparently alleges a series of acts. First, plaintiff contends that UMDNJ knew of but failed to correct Dr. Prockop's alleged retaliatory conduct. Amended Complaint para. 18. Second, she contends defendant UMDNJ discharged her in retaliation for her opposition to sexual harassment. See Amended Complaint paras. 19, 22.
As to plaintiff's first claim, it is difficult to determine when such a cause of action accrued against UMDNJ because it is an action
of omission rather than commission. However, the Court must strive to determine precisely this, as the liability of employer under Title VII cannot exist indefinitely. Here, I find that plaintiff's cause of action against UMDNJ regarding Dr. Layman's conduct accrued, at the latest, in July of 1982, when plaintiff commenced at her new position following her transfer to the Biochemistry Department at the Piscataway Campus. Plaintiff's filing of her formal complaint against UMDNJ with the EEOC thus occurred well beyond the 300-day limit as to this claim. Accordingly, this claim is time barred.
Plaintiff's next claim of retaliation against UMDNJ stands in a different posture. Plaintiff contends that UMDNJ is responsible for defendant Prockop's alleged retaliatory conduct during the time she worked for him, as well as its alleged retaliatory termination of her employment. As I found previously, the record indicates that defendant Prockop's alleged conduct did not occur beyond February 8, 1983. Similarly, defendant UMDNJ's responsibility for such conduct cannot last beyond that time. Therefore, this claim, by itself, would be time barred. However, the alleged retaliatory discharge occurred in June of 1983, which is clearly within 300 days of plaintiff's filing if the charge with the EEOC. If these acts can be said to be related, then plaintiff's claim of retaliation based on both contentions may be brought under a continuing discrimination theory. If not, plaintiff may only bring that claim which occurred within the filing period, namely, the discharge.
I find that plaintiff has adequately alleged a pattern of continuing discrimination based upon these two incidents, and I thus find that plaintiff's claim of retaliation based upon both is timely. These incidents are "related acts" in that they both allegedly arise out of acts of discrimination taken against her in retaliation for her exercise of her right to bring an action against an employee of UMDNJ based upon sexual harassment. Accordingly, plaintiff's claims based upon these alleged acts of retaliation are not time barred.
In conclusion, plaintiff's Title VII claims against Dr. Prockop and plaintiff's Title VII claims against UMDNJ based upon alleged sexual harassment are time barred. Plaintiff's Title VII claims against UMDNJ based upon retaliation are timely filed.
B. § 1983 Claims
Defendants also argue that plaintiff's § 1983 claims are time barred. In their moving brief, defendants contend that the New Jersey two year statute of limitations for personal injury actions should be applied to bar § 1983 claims based upon all acts other than the retaliatory discharge. Plaintiff contends that the proper statute of limitation is the six-year statute governing contract claims.
In Wilson v. Garcia, 471 U.S. 261, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985), the Supreme Court determined that the proper statute of limitations to apply in an action under § 1983 is the state statute of limitations governing actions for personal injury. Since plaintiff's action was filed before the Supreme Court decided Wilson, the court must determine whether its rule may be applied retroactively. This determination relies on consideration of whether (1) the rule overrules clear past precedent upon which the litigants may have relied; (2) retroactive application will affect the prior history and purposes of previously applied rules; and (3) retroactive application will cause inequitable results. Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 30 L. Ed. 2d 296, 92 S. Ct. 349 (1971); see also Smith v. City of Pittsburgh, 764 F.2d 188 (3d Cir. 1985), cert. denied, 474 U.S. 950, 106 S. Ct. 349, 88 L. Ed. 2d 297 (1985).
Regarding the first considerations, the Third Circuit has held that where the courts have been erratic and inconsistent in their application of a statute of limitations, a subsequent Supreme Court decision cannot be said to have overruled clear past precedent upon which the parties to an action may have relied. Smith, 764 F.2d at 194-95. The issue of which statute of limitations governs employment discrimination actions against public entities and public officials has previously divided the district courts. Compare Erdmann v. Board of Education of Union County Regional High School District No. 1, 541 F. Supp. 388 (D.N.J. 1982) (if employment rejections constituted failure to promote, six year contract statute of limitations applied; if rejections were viewed as denials of employment, the 180-day limitation of the New Jersey Law Against Discrimination applied) and Skadegaard v. Farrell, 578 F. Supp. 1209 (D.N.J. 1984) (six-year contract statute of limitations applied in sex discrimination claim against officials at the Adult Diagnostic and Treatment Center) with Peltack v. Borough of Manville, 547 F. Supp. 770 (D.N.J. 1982) (recognizing that where municipality or other public entity is a defendant, the two-year statute of limits of the NJTCA has been applied). Moreover, in § 1983 actions predicated on other types of discrimination claims, the district courts have been likewise split. See, e.g., Gipson v. Township of Bass River, 82 F.R.D. 122, 129 (D.N.J. 1979) (statute of limitations in § 1983 action alleging discriminatory conduct of zoning officials); Peters v. Township of Hopewell, 534 F. Supp. 1324 (D.N.J. 1982), aff'd mem., 729 F.2d 1448 (3d Cir. 1984) (applying six-year contract statute of limitations against municipality and its officials in action alleging unconstitutional taking).
This confusion was laid to rest, however, in Aitchison v. Raffiani, 708 F.2d 96 (3d Cir. 1983). In Aitchison, the Third Circuit held that the statute of limitations governing an action for wrongful discrimination brought against a municipality and certain of its officials was the two-year statute of limitations governing claims under the NJTCA. Id. at 105. In reaching this result, the Third Circuit analyzed the conflicting district court holdings cited supra as well as state law decisions.
The Aitchison decision was rendered near the time of plaintiff's alleged discharge. Assuming that plaintiff did not begin to consider filing her federal action until August, 1982 when she filed her first letter with the EEOC, plaintiff cannot have reasonably relied on the six-year statute of limitations because of the disagreement among the courts. In 1983, when the last alleged discriminatory act occurred, the Aitchison decision had become law. Thus, at least by 1983, plaintiff should have known that the two-year statute of limitations applied.
As the personal injury statute limitations is equal in length to the NJTCA limit, I cannot say that under the first Chevron factor that application of the personal injury statute of limitations overrules clear past precedent upon which plaintiff may have relied. Nor can I say that application of the personal injury statute of limitations would impede the purpose of previously applied rules or would be inequitable, the two remaining Chevron considerations. Thus, the two-year personal injury statute of limitations governs plaintiff's § 1983 claims. Since the only claim occurring within two years of the filing of the complaint is the claim of retaliatory discharge against UMDNJ, I find that plaintiff's § 1983 claims based upon other alleged incidents of discrimination are time barred.
EXCLUSIVITY OF TITLE VII
Defendants next argue that plaintiff's § 1983 claims must be dismissed because Title VII is the exclusive remedy for claims of employment discrimination. This argument need not detain me long because this court and others have held that relief under § 1983 is available notwithstanding the assertion of claims under Title VII in a case in which the § 1983 claim is based upon alleged violations of constitutional rights. See Trigg v. Fort Wayne Community Schools, 766 F.2d 299 (7th Cir. 1985); Day v. Wayne County Board of Auditors, 749 F.2d 1199 (6th Cir. 1984); Storey v. Board of Regents, 600 F. Supp. 838 (W.D. Wis. 1985); Zewde v. Elgin Community College, 601 F. Supp. 1237 (N.D. Ill. 1984); Skadegaard v. Farrell, 578 F. Supp. 1209 (D.N.J. 1984). Here, plaintiff alleges § 1983 claims based upon denial of the rights of due process and equal protection of the laws under the first and fourteenth amendments to the Constitution. These rights were secured to plaintiff as a state employee. Thus, as I find that Plaintiff § 1983 claims are based upon Constitutional rights independent of her statutory Title VII claims, I find that Title VII does not provide her exclusive remedy.
ELEMENTS CAUSE OF ACTION UNDER § 1983
Defendant UMDNJ next contends that plaintiff's claims under § 1983 must be dismissed because plaintiff has failed to state a cause of action under that statute. In support of its argument, defendant makes several arguments which will be treated seriatim. At the outset, I note that a cause of action under § 1983 requires proof of two elements; (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981).
A. Respondeat Superior Liability
Defendant UMDNJ first argues that it may not be held liable for the isolated acts of its employees.
It is well settled that a local governmental unit may not be held liable under a respondeat superior theory solely because it employs an alleged tortfeasor. Monell v. Department of Social Services of City of New York, 436 U.S. 658, 691, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). To be liable, the body's employees must have acted according to an unconstitutional official policy or custom of the governmental unit. Id. at 694. In order to prevail, a plaintiff must therefore establish:
(1) The existence of an officially promulgated authority, or (2) that the practices of [government] officials causing the alleged deprivation were "so permanent and well-settled" as to have the "force of law."