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July 31, 1992


The opinion of the court was delivered by: MARYANNE TRUMP BARRY


 This action is brought by the United States against the Board of Education of the Township of Piscataway ("Board") under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The United States alleges that the Board discriminated against Sharon Taxman by terminating or laying her off from her position as a school teacher at Piscataway High School on the basis of her race and by failing and refusing to take appropriate action to remedy the alleged discrimination. Complaint P 5. It further alleges that the Equal Employment Opportunity Commission ("EEOC") received a timely charge of discrimination filed by Taxman, that the EEOC investigated the charge and found that there was probable cause to believe that the charge of discrimination was true, and that all conditions precedent to filing suit had been met. Complaint PP 6-7.

 On April 15, 1992, the Hon. Stanley R. Chesler, U.S.M.J., granted Taxman's motion to intervene as a party plaintiff, pursuant to 42 U.S.C. § 2000e-5(f)(1), without prejudice to the Board's right to move to dismiss her claims brought pursuant to the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1 et seq., on statute of limitations grounds. Taxman filed a complaint on April 29, 1992, and an amended complaint on May 26, 1992, raising claims under Title VII and the NJLAD. Presently before the court are the Board's motion to dismiss Taxman's NJLAD claims as time barred as well as its motion for "an order: (a) determining that the applicable legal standards for determining defendant's liability are based on United Steelworkers of America v. Weber; and (b) barring relitigation of Sharon Taxman's seniority rights under New Jersey law." See Notice of Motion filed June 10, 1992.

 II. Background

 On June 8, 1989, Taxman filed a dual charge of discrimination with the EEOC and the New Jersey Division on Civil Rights ("NJDCR") *fn1" claiming that she was discharged from her position as a Business Education teacher by her employer, the Board of Education of Piscataway Township, on the basis of her race. Taxman's Br. in Opp. to Motion to Dismiss, Exh. A. Specifically, Taxman, who is white, alleges that she was terminated during a reduction in force which required that either she or another Business Education teacher, who is black, be terminated. The reason given for her termination, the charge alleges, was the Board's "commitment to affirmative action." Id. Taxman claims that she has been certified to teach Business Education for nine years, that she has taught a broader range and more advanced courses than the black teacher who was retained, that she is more experienced than the teacher retained, and that in every evaluation she received she was rated "excellent." Id.

 III. Statute of Limitations on NJLAD Claims

 The Board argues that Taxman's NJLAD claims should be dismissed because they are barred by a two-year limitations period which has expired. Taxman counters that the appropriate statute of limitations is six years and that even if the limitations period is deemed to be two-years, her claims should not be dismissed because the filing of her charge with the EEOC tolled the limitations period.

 The Board's alleged discriminatory conduct took place on May 22, 1989, while Taxman first brought an action asserting her NJLAD claims by way of the April 29, 1992 complaint. If the applicable limitations period is six years, Taxman's NJLAD claims were timely filed regardless of tolling. If, however, the statutory period is deemed to be two years, the NJLAD claims can survive only if the statute of limitations was tolled by the filing of the charge with the EEOC.

 Because the NJLAD does not specify a statute of limitations, courts have been left to choose between New Jersey's two general statutes of limitations applicable to tort actions. N.J.S.A. 2A:14-2 provides a two-year limitations period for actions arising from tortious injury to the person of another, while N.J.S.A. 2A:14-1 provides a six-year statute of limitations for actions claiming tortious injury to the rights of another. Because the New Jersey Supreme Court has not addressed the issue of the appropriate statute of limitations in NJLAD actions, the court must grapple with the task of predicting how that court would rule. Blum v. Witco Chemical Corp., 829 F.2d 367, 376 (3d Cir. 1987). In the absence of a pronouncement by the state's highest court, this court may look to the decisions of intermediate appellate courts. Aetna Casualty & Surety Co. v. Farrell, 855 F.2d 146, 148 (3d Cir. 1988). The decisions of these courts should be accorded proper regard and are presumptive evidence of state law. Commercial Union Ins. Co. v. Bituminous Casualty Corp., 851 F.2d 98, 100 (3d Cir. 1988). The resolution of the issue of how the Supreme Court would rule is both delicate and imprecise; indeed, even the courts of this district are split as to whether the two-year or six-year limitations period would be applied.

 The first case to rule on the issue was Leese v. Doe, 182 N.J. Super 318, 440 A.2d 1166 (Law Div. 1981). Although not an Appellate Division case, Leese set the stage for subsequent debate. Relying on Davis v. United States Steel Supply, 581 F.2d 335 (3d Cir. 1978), a Third Circuit case applying a six-year statute of limitations to an employment discrimination claim brought under 42 U.S.C. § 1981, Leese applied a six-year statute of limitations to NJLAD claims. The court stated that

 the present case, though brought under our Civil Rights Act, also involves employment discrimination and the injury to plaintiff's property rights which allegedly resulted. As such, the six-year limitation of N.J.S.A. 2A:14-1 governs the timeliness of plaintiff's action.

 Leese, 182 N.J. Super. at 321. Thus, the court in Leese agreed with the Third Circuit's characterization of employment discrimination as an injury to property rights and therefore applied the statute of limitations applicable to tortious injury to property rights.

 The Appellate Division first considered the issue in Nolan v. Otis Elevator Co., 197 N.J. Super. 468, 485 A.2d 312 (App. Div. 1984), rev'd on other grounds, 102 N.J. 30, 505 A.2d 580, cert. denied, 479 U.S. 820, 93 L. Ed. 2d 38, 107 S. Ct. 84 (1986). The court in Nolan adopted the six-year statute of limitations of N.J.S.A. 2A:14-1 without any analysis of the issue. See Nolan, 197 N.J. Super. at 473-74. *fn2"

 In 1987, however, the Supreme Court in Goodman v. Lukens Steel Co., 482 U.S. 656, 96 L. Ed. 2d 572, 107 S. Ct. 2617 (1987), affirmed the Third Circuit which, when Goodman was before it, had overruled Davis. The Court in Goodman held that the appropriate limitations period for employment discrimination claims under § 1981 is that applied to state personal injury actions. 482 U.S. at 661-62. In reaching this conclusion, the Court relied in large part on its prior analysis relating to § 1983 claims in Wilson v. Garcia, 471 U.S. 261, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985), in which it found § 1983 claims most analogous to personal injury claims. It rejected the argument that § 1981 claims are unique among civil rights actions in that they deal more with economic rights, particularly the right to contract. Id. Rather, the Court opined, the economic nature of § 1981 claims does not negate or dilute the statute's primary purpose of preventing racial discrimination, the nature of which is clearly akin to personal injury. Id. The clear mandate of Goodman was that employment discrimination claims brought under § 1981 were to be subject to the state limitations period for personal injury actions.

 The first case in this district to consider the statute of limitations issue post-Goodman was White v. Johnson & Johnson Prods., Inc., 712 F. Supp. 33 (D.N.J. 1989). Recognizing its obligation to determine how the New Jersey Supreme Court would decide the issue, the court in White set forth the theretofore unquestioned law of New Jersey as embodied in Leese.3 Noting Leese's use of Davis, and the subsequent change in Third Circuit law mandated by the Supreme Court's opinion in Goodman, the Hon. Alfred M. Wolin concluded that the reasoning of Leese had been undercut and that the New Jersey Supreme Court would, if presented with the ...

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