July 27, 2007
ROBERT POLLOWITZ, PLAINTIFF-APPELLANT,
UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY, DAVID SEIDEN, INDIVIDUALLY AND AS ASSOCIATE DEAN OF ADMISSIONS AND STUDENT AFFAIRS, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4801-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 5, 2007
Before Judges Skillman and King.
This is an appeal from the dismissal for failure to state a claim of a complaint asserting claims of violations of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and of rights protected by the United States and New Jersey Constitutions.
Plaintiff was a medical student at defendant University of Medicine and Dentistry of New Jersey (UMDNJ). His complaint alleges that in 1996 a fellow student accused him of gender discrimination, as a result of which defendant David Seiden, UMDNJ's Associate Dean for Admissions and Student Affairs for the Robert Wood Johnson Medical School (RWJMS), required him to submit to a psychiatric evaluation without first securing the approval required by UMDNJ rules. Plaintiff alleges that Seiden disclosed the fact of this psychiatric examination to persons who were not authorized to receive the information.
Plaintiff then filed an administrative complaint against Seiden with UMDNJ's Office of Affirmative Action, which according to plaintiff's complaint eventually determined Seiden had breached plaintiff's medical confidentiality. Plaintiff alleges that this complaint precipitated a series of retaliatory actions by Seiden, which included preventing him from transferring from RWJMS to another UMDNJ facility, "assigning the plaintiff a failing grade in the anatomy course he taught even though he knew plaintiff had been diagnosed with a serious medical condition and was not matriculated at UMDNJ during that period," and "[p]lacing in plaintiff's permanent academic file a complaint of inappropriate conduct/sexual harassment received from a clinical teaching assistant without first conducting an independent investigation as to the veracity of same and having information that the allegations were not corroborated."
Plaintiff's complaint also alleges that he complained about Seiden's conduct, and that rather than addressing the substance of his complaint, "defendants convened a hearing of the Academic Standing Committee for the purpose of determining whether or not to dismiss the plaintiff from UMDNJ, even though he had never previously been placed on academic probation or warned of any academic deficiency[.]" Plaintiff alleges that this hearing "was convened in direct retaliation for plaintiff's prior complaints of defendants' illegal conduct, including his complaint to UMDNJ's Office of Affirmative Action that he had been discriminated against on the basis of his gender." Following the hearing, the Academic Standing Committee recommended plaintiff's dismissal from RWJMS. This recommendation was forwarded to Dean Harold Paz, who allegedly had final decision-making authority with respect to plaintiff's dismissal from RWJMS. Before Dean Paz acted upon this recommendation, plaintiff tendered his resignation as a student on January 14, 2004, which Dean Paz accepted on or about January 22, 2004. The complaint characterizes this resignation as a "constructive terminat[ion]" of plaintiff as a UMDNJ student "because of his opposition to, and complaint about the defendants' discriminatory and derogatory conduct."
Plaintiffs' complaint further alleges that "[d]efendants engaged in a pattern and practice of discrimination against [him], including repeatedly denying him his due process rights, failing to accommodate his disability, and repeatedly retaliating against him for his opposition to and complaints concerning defendants' discriminatory and illegal conduct."
On January 17, 2006, plaintiff filed his five count complaint, which asserts claims under the LAD and the United States and New Jersey Constitutions. The complaint names UMDNJ, David Seiden and various John Does as defendants. The LAD count asserts that "[d]efendants have discriminated against plaintiff based on his gender, his medical condition and based on his complaints of discrimination and retaliation[.]"
Less than a month after filing their answer, defendants filed a motion under Rule 4:6-2(e) to dismiss the complaint for failure to state a claim. The trial court initially denied the motion. However, the court subsequently granted defendants' motion for reconsideration and dismissed plaintiff's complaint for failure to state a claim. In reaching this conclusion, the court stated:
[T]he doctrine of exhaustion of remedies requires that parties pursue available internal proceedings to conclusion before seeking judicial intervention. . . .
Upon reconsideration of the issue, it is apparent that the plaintiff did not pursue the internal proceedings available to him to conclusion before seeking judicial intervention. Taking the allegations of the plaintiff's complaint as true, the plaintiff himself stated that "[t]he Academic Standing Committee's recommendation was not a final determination, and was subject to review and a final decision by Dean Paz (emphasis added)." Thus, by the terms of the plaintiff's complaint, no final decision was rendered by the defendants, and as such plaintiff did not exhaust his remedies.
The plaintiff's "resignation" was the only event noted in plaintiff's complaint which would fall within an applicable statute of limitations. Since that event cannot form the basis of a claim under these circumstances, any other claim which the plaintiff may have had is now time-barred. Plaintiff appeals from the summary dismissal of his complaint under Rule 4:6-2(e), and we now reverse.
In considering a motion under Rule 4:6-2(e) to dismiss a complaint for failure to state a claim, a court is required to "search the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary." Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989) (quoting Di Cristofaro v. Laurel Grove Memorial Park, 43 N.J. Super. 244, 252 (App. Div. 1957)). Therefore, "trial courts [should] approach with great caution applications for dismissal under Rule 4:6-2(e) for failure of a complaint to state a claim on which relief may be granted[,]" and such an application "should be granted in only the rarest of instances." Id. at 771-72. Courts should be especially hesitant to dismiss claims of discrimination or of retaliation for complaints of discrimination before an opportunity has been afforded for discovery of relevant facts. See Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192-94 (1988).
The trial court dismissed the part of plaintiffs' complaint that asserts claims arising out of his January 14, 2004 "resignation" as a UMDNJ student based on plaintiff's alleged failure to exhaust administrative remedies. The court dismissed plaintiff's other claims as barred by the statute of limitations. We conclude that the court erred in both rulings and that plaintiff's complaint should not have been summarily dismissed under Rule 4:6-2(e).
A party is not ordinarily required to exhaust administrative remedies before filing an action under the LAD. See Hernandez v. Region Nine Housing Corp., 146 N.J. 645, 652 (1996); Ensslin v. Twp. of N. Bergen, 275 N.J. Super. 352, 372 (App. Div. 1994). Nor is exhaustion of administrative remedies required to pursue a claim under 42 U.S.C.A. § 1983 for a violation of federal constitutional rights. See Patsy v. Bd. of Regents, 457 U.S. 496, 500-516, 102 S.Ct. 2557, 2559-68, 73 L.Ed. 2d 172, 177-88 (1982). And whether exhaustion of administrative remedies is required before pursuing a claim under the New Jersey Constitution depends on the circumstances of the individual case, see Abbott v. Burke, 100 N.J. 269, 296-303 (1985), which often will not be evident from the face of the complaint and thus not suitable for determination by a motion to dismiss under Rule 4:6-2(e).
Moreover, although the Academic Standing Committee recommended plaintiff's dismissal, plaintiff resigned before final action was taken on this recommendation, and plaintiff alleges that this resignation and Dean Paz's subsequent acceptance of this resignation constituted a "constructive terminat[ion]" of him as a student, based on defendant's course of discriminatory and retaliatory conduct. It is unclear any administrative remedy would have been available to plaintiff once his resignation was accepted.
Defendants argue that no action is maintainable for a plaintiff's alleged constructive termination as a student. However, a claim for constructive discharge is well accepted in employment discrimination cases under both the LAD and Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000(e). See, e.g., Pennsylvania State Police v. Drew, 542 U.S. 129, 141-43, 124 S.Ct. 2342, 159 L.Ed. 2d 204, 216-17 (2004); Derr v. Gulf Oil Corp., 796 F.2d 340, 343 (10th Cir. 1986); Goss v. Exxon Office Sys. Co., 747 F.2d 885, 887-88 (3d Cir. 1984); Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 27-29 (2002). Although plaintiff has not cited any case in which this concept has been applied to a student who has withdrawn from school as a result of the school's severe or pervasive discriminatory or retaliatory conduct, we see no reason why the concept could not apply in this context. Cf. L.W. v. Toms River Reg'l Sch. Bd. of Educ., 189 N.J. 381 (2007). At a minimum, the facts should be developed through discovery before the issue is addressed. Therefore, the trial court erred in dismissing plaintiff's claims arising out of the UMDNJ's acceptance of his resignation as a student based on plaintiff's failure to exhaust administrative remedies.
The court also erred in dismissing plaintiff's other claims as barred by the statute of limitations.*fn1 Although many of defendants' actions upon which plaintiff's other claims are based occurred well outside the applicable two-year limitations period, plaintiff asserts that defendants' actions constituted a "continuing wrong" that eventually resulted in his resignation as a student and therefore his claims based on those actions may be pursued at this time. The "continuing wrong" doctrine recognizes that "[w]hen an individual is subject to a continual, cumulative pattern of tortious conduct, the statute of limitations does not begin to run until the wrongful action ceases." Wilson v. Wal-Mart Stores, 158 N.J. 263, 272 (1999). This doctrine has been applied in cases brought under both the LAD and 42 U.S.C.A. § 1983. See 287 Corporate Ctr. Assocs. v. Twp. of Bridgewater, 101 F.3d 320, 324 (3d Cir. 1996); Mancini v. Twp. of Teaneck, 179 N.J. 425, 430-31 (2004); Shepherd, supra, 174 N.J. at 17-24; Wilson, supra, 158 N.J. at 271-75.
The applicability of the "continuing wrong" doctrine turns on the facts of the individual case. Therefore, discovery relevant to an assertion of a "continuing wrong" ordinarily should be conducted before a determination is made whether a claim based on acts occurring outside the applicable limitation period is barred by the statute of limitations. See Wilson, supra, 158 N.J. at 275.
Finally, we emphasize that the only issue before us is whether the allegations of plaintiff's complaint are sufficient to survive a motion under Rule 4:6-2(e) to dismiss for failure to state a claim. After appropriate discovery has been conducted, defendants may file a motion for a summary judgment for dismissal of plaintiff's claims based on conduct occurring outside the two-year limitations period as barred by the statute of limitations. Defendants also may seek summary judgment on the merits of any claims that are not time-barred.
Accordingly, the order dismissing plaintiff's complaint is reversed and the case is remanded to the trial court for further proceedings in conformity with this opinion.