On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2923-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Parrillo.
Plaintiff Lula Henry, an African American, appeals summary judgment dismissal of her complaint alleging racially discriminatory hiring practices and retaliation by her former employer pursuant to the New Jersey Law Against Discrimination (LAD) as time-barred by the two-year statute of limitations. Appellant argues the trial court failed to view the evidence in the light most favorable to her as the non-moving party and erred in determining the cause of action accrued in 2004, and not in 2006. Based on our review of the record and the applicable law, we reject appellant's arguments and affirm.
Viewed most favorably for appellant, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995), the motion record reveals the following. Appellant is a registered nurse with a masters degree in nursing. Appellant began her employment at Trenton State Psychiatric Hospital (Trenton Hospital) in an entry level nursing position in April 2004. She certified that she "developed initial concerns, uncorroborated by any firm evidence, in or about late Spring/early Summer 2004 when [she] was working at Trenton [Hospital], that racial discrimination was occurring." Appellant also explained that during the summer of 2004, a human resource representative overheard appellant talking with another person about her "concerns in advancing within state service" and stormed out of her office, yelling that appellant "could not seem to get it through [her] head that [she] ha[d] to be in the position for one year" before being promoted.
During that time period, appellant was also informed that there were only three nurses in the entire division possessing masters degrees in nursing, none of whom were then assigned entry level positions. Appellant therefore sent a letter to the Director of Nursing requesting that she be reclassified accordingly. Appellant certified that when she wrote the letter, she did "not then believe that [she] was the victim of racial discrimination; and instead, [she] believed the matter was merely an oversight which could be administratively remedied." Appellant, however, copied the letter to the hospital's human resource manager and to a state assemblyman. The Director of Nursing took no action. According to appellant's certification, during a chance meeting with the human resource manager, she was informed in a very nasty manner that she had stood a good chance of being reclassified "until he received a letter from some bureaucrat downtown" and to consider that her formal response to the letter.
On November 29, 2004, appellant resigned her position at Trenton Hospital to take a position at the Juvenile Justice Commission of the New Jersey Department of Law and Public Safety (Commission). When she commenced her employment there, she asked the administrator if she could be promoted and was informed that because she had "abandoned" her position at Trenton Hospital, she had to "start all over again as a new hiree."
In the spring of 2006, appellant learned that an "advanced position" at the Commission had been filled by a Caucasian nurse who had been hired around the same time as she had but who only held an associates degree. Around the same time, appellant also had a conversation with her union representative who opined that "racism was very wide spread throughout Trenton [Hospital]. . . ." Appellant certified that she also learned then that a Caucasian nurse with the same credentials as she possessed had been immediately hired into a higher job classification without having to first work as a charge nurse, as appellant did.
On July 24, 2007, appellant filed a complaint against the New Jersey Department of Human Services (DHS); Clark Bruno, the Acting Commissioner of DHS; Trenton Hospital; and Gregory Roberts, the CEO of Trenton Hospital. She alleged racial discrimination and retaliation in violation of the LAD.
Defendants moved for summary judgment dismissal of appellant's complaint, which was filed thirty-one months after she left defendants' employ. See Montells v. Haynes, 133 N.J. 282, 286 (1993) (claims under the LAD must be filed within two years of the alleged discriminatory or retaliatory act). Appellant responded that her cause of action accrued when she first discovered defendants' discrimination against her in 2006 and not when it first occurred, i.e., from April through November 2004, while she was employed as an entry level nurse at Trenton Hospital. According to appellant's certification, upon hearing of the Caucasian nurses' hiring in the spring of 2006 and placing it in the context of her conversation with the union representative, appellant "began to reassess [her] own experiences with Trenton" Hospital. Appellant stated that she then viewed the duties she was assigned there, which were customarily those performed by licensed practical nurses rather than by registered nurses who possessed higher degrees and greater qualifications, to be retaliation for her inquiring about disparate practices in hiring and questioning the advancement process.
Following oral argument on July 3, 2008, Judge Smithson granted defendants' motion for summary judgment, concluding that "I do not believe that the statute should be tolled in this case. I don't find a cause to do that." He continued:
She developed concerns, as she says [in her certification], uncorroborated by any firm evidence in 2004 as to racial discrimination. She talks about other things that would support a belief in her mind, whether it was a belief that was predicated on fact or on historical circumstances . . . is of no particular moment, but it was there. It was in the forefront of her thinking.
What does the law require? The law requires, when we're talking about a statute of limitations, the law requires that you do things within a given period of time. Here, two years from the time, you know that there's a cause of action, or should know through reasonable diligence that there is a cause of action. And that's the second part that we're really talking about and focusing on here, whether or not by an exercise of reasonable diligence and intelligence, a person should recognize that that person who's being discriminated against for one of the types of matters that are set forth in the . . . LAD law, in the State of New Jersey. You have someone who's obviously by [her] own statements, very bright, very able, very intelligent, and she has ...