is within the two-year limitations period of N.J.S.A. § 2A:14-2.
Stewart argues evidence related to the decision to deny her Tenure in 1993 should also be considered because the relevant conduct amounts to a continuing violation. Opposition Brief at 13 (citing Ricks, 449 U.S. 250, 66 L. Ed. 2d 431, 101 S. Ct. 498). A statute of limitations is subject to equitable exceptions. One such exception is the continuing violation theory. Under that theory, evidence of discriminatory conduct occurring prior to the limitations period is admissible if a plaintiff can demonstrate that "the act is part of an ongoing practice or pattern of discrimination of the defendant." West v. Philadelphia Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995) (citing Bronze Shields, Inc. v. New Jersey Dep't. of Civ. Serv., 667 F.2d 1074, 1081 (3d Cir. 1981), cert. denied, 458 U.S. 1122, 73 L. Ed. 2d 1384, 102 S. Ct. 3510 (1982); Jewett v. International Tel. & Tel. Corp., 653 F.2d 89, 91 (3d Cir.), cert. denied, 454 U.S. 969, 70 L. Ed. 2d 386, 102 S. Ct. 515 (1981)).
The continuing violation theory has two prerequisites. First, a plaintiff must allege that at least one act occurred within the statutory period. West, 45 F.3d at 754-55 (citing United Airlines, Inc. v. Evans, 431 U.S. 553, 558, 52 L. Ed. 2d 571, 97 S. Ct. 1885 (1977)). Stewart has met that requirement here because she has alleged discriminatory acts by Defendants in 1995, which occurred well within the two-year period immediately preceding the filing of the Complaint. To apply the continuing violation theory, a plaintiff must also establish that the alleged wrongful acts are not merely sporadic or isolated. "The relevant distinction is between the occurrence of isolated, intermittent acts of discrimination and a persistent, on-going pattern." Id. at 755 (footnote omitted). Stewart has not met the second requirement.
The acts alleged in this case are isolated incidents: Seneca authored the 29 March 1993 Letter; shortly thereafter, Lawrence recommended that the Board deny Stewart tenure. Seneca also authored the 17 May 1995 Letter; shortly thereafter, Lawrence recommended that the Board deny Stewart tenure. Only the latter two acts fall within the two-year limitations period of N.J.S.A. § 2A:14-2. Accordingly, a cause of action based upon the former two acts is time-barred. See West, 45 F.3d at 755. As indicated below, however, even if the first two acts are considered, the Motion for Summary Judgment must be granted.
C. Section 1981 of Title 42
Stewart first alleges Defendants are liable for racial discrimination pursuant to Section 1981. Complaint, PP 24-25. Section 1981, which prohibits racial discrimination in the making and enforcement of private contracts, provides that "all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens...." 42 U.S.C. § 1981(a). Section 1981 further provides "the rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law." 42 U.S.C. § 1981(c).
Although Section 1981 once was limited to racial discrimination arising out of the making and enforcing of contracts, see Bermingham v. Sony Corp. of Am., Inc., 820 F. Supp. 834, 848 (D.N.J. 1992) (citing Patterson v. McLean Credit Union, 491 U.S. 164, 185, 105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989)), aff'd, 37 F.3d 1485 (1994), the Civil Rights Act of 1991 extended the reach of the statute to discrimination occurring after the formation of a contract, "including the modification and termination of contracts and the enjoyment of all terms and conditions of the contractual relationship." Id. (citing 42 U.S.C. § 1981(b)).
In this case, the Complaint alleges Defendants wrongfully withheld Tenure from Stewart, which is essentially a lifetime employment contract. See Hennessey v. National Collegiate Athletic Ass'n, 564 F.2d 1136, 1142 (5th Cir. 1977). Accordingly, the activity alleged concerns interference with contract within the scope of Section 1981. See Runyon v. McCrary, 427 U.S. 160, 172-73, 49 L. Ed. 2d 415, 96 S. Ct. 2586 (1976); Roebuck v. Drexel Univ., 852 F.2d 715, 725 (3d Cir. 1988); Bermingham, 820 F. Supp. at 848.
A plaintiff seeking recovery for employment discrimination pursuant to Section 1981 may prove a claim by way of either direct or circumstantial evidence. United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 714 n.3, 75 L. Ed. 2d 403, 103 S. Ct. 1478 (1983); Kralman v. Illinois Dep't of Veterans' Affairs, 23 F.3d 150, 153 (7th Cir.), cert. denied, U.S. , 115 S. Ct. 359 (1994).
"Direct evidence of discrimination would be evidence which, if believed, would prove the existence of the fact [in issue] without inference or presumption." Torre v. Casio, Inc., 42 F.3d 825, 829 (3d Cir. 1994) (emphasis in original) (citations and internal quotations omitted).
Stewart has not cited any direct evidence to support her claim of racial discrimination by Defendants and a review of the facts reveals no such evidence. Compare Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 120, 83 L. Ed. 2d 523, 105 S. Ct. 613 (1985) (policy of defendant airline was direct evidence of discrimination, where policy permitted pilots disqualified for any reason but age to transfer automatically to position of flight engineer, although age-disqualified pilots were required to bid for available flight engineer positions and retire if bids were unsuccessful before their sixtieth birthdays).
In the absence of direct evidence, a plaintiff may establish a prima facie case of racial discrimination by way of circumstantial evidence. Torre, 42 F.3d at 829 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973)). In McDonnell Douglas, the Court set out a four-part framework for a plaintiff seeking to raise an inference of discrimination. 411 U.S. at 802.
Under McDonnell Douglas, a employee must first demonstrate a prima facie case of discrimination by preponderance of the evidence. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993) (citing Texas Dep't of Comm. Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981)); Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994); Bennun, 941 F.2d at 170. Once established, a prima facie case creates a presumption of discriminatory intent by the defendant-employer. Hicks, 509 U.S. at 506 (citing Burdine, 450 U.S. at 254); Bennun, 941 F.2d at 170. At this stage, the McDonnell Douglas presumption places a burden upon the defendant to produce evidence that the adverse employment actions were taken "'for a legitimate, nondiscriminatory reason.'" Hicks, 509 U.S. at 507 (quoting Burdine, 450 U.S. at 254). "To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's rejection." Burdine, 450 U.S. at 255. The asserted reasons must support a finding, should a jury credit them as accurate, that unlawful discrimination was not the cause of the adverse employment action. Hicks, 509 U.S. at 507. At this stage, "the defendant bears only the burden of explaining clearly the nondiscriminatory reasons for its actions." Burdine, 450 U.S. at 260 (rejecting lower court decision holding defendant to a preponderance-of-evidence standard at this stage of the proceedings).
Once the employer satisfies this burden, the presumption raised by the prima facie case is "rebutted" and "drops from the case." Burdine, 450 U.S. at 255 & n.10; see Hicks, 509 U.S. at 509-11 (holding that jury's rejection of defendants' proffered reasons does not compel judgment as a matter of law in favor of plaintiff); Torre, 42 F.3d at 829 (indicating that, to rebut a prima facie case, a defendant must articulate "'a legitimate, non-discriminatory reason for its actions'") (quoting McKenna v. Pacific Rail Serv., 32 F.3d 820, 825 (3d Cir. 1994)). A plaintiff-employee must then prove "that the employer's proffered reasons [for terminating an employee]
are pretextual." Id. at 829; see Hicks, 509 U.S. at 507 (observing that under the McDonnell Douglas framework, the ultimate burden of persuasion remains with the plaintiff).
Once a plaintiff points to evidence sufficient to discredit a defendant's proffered reasons, the plaintiff need not also come forward with additional evidence of discrimination beyond his or her prima facie case to survive a summary judgment motion by the defendant. Waldron v. SL Indus., Inc., 56 F.3d 491, 495 (3d Cir. 1995); Fuentes, 32 F.3d at 764 ("to avoid summary judgment, the plaintiff's evidence rebutting the employer's proffered legitimate reasons must allow a factfinder reasonably to infer that each of the employer's proffered nondiscriminatory reasons ... was either a post hoc fabrication or otherwise did not actually motivate the employment action") (emphasis in original).
1. Stewart Has Established a Prima Facie Case
Stewart may establish a prima facie case by demonstrating by a preponderance of the evidence that she is within a protected class; that she applied for, was qualified for and was rejected for the position she sought and that non-members of the protected class were treated more favorably. Bennun, 941 F.2d at 170 (citing Roebuck, 852 F.2d 715); Kunda v. Muhlenberg Coll., 621 F.2d 532, 541 (3d Cir. 1980). "The nature of the required showing to establish a prima facie case of disparate treatment by indirect evidence depends on the circumstances of the case." Torre, 43 F.3d at 830. In this case, the Defendants have conceded the existence of a prima facie case. Reply Brief at 5.
The facts indicate Stewart has met the standard previously established by the Circuit for establishing a prima facie case in these circumstances:
In order to satisfy the qualifications element of [a prima facie case], plaintiff "need only show that [she] was sufficiently qualified to be among those persons from whom a selection, to some extent discretionary, would be made. That is, [she] need show only that [her] qualifications were at least sufficient to place [her] in the middle group of tenure candidates as to whom both a decision granting tenure and a decision denying tenure could be justified as a reasonable exercise of discretion by the tenure-decision making body."