On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6089-07.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 16, 2009
Before Judges Stern, Graves and J.N. Harris.
This is a pay discrimination case based on sex and age. Plaintiffs appeal from a "consent amended final order of dismissal,"*fn2 dismissing the balance of their complaint after the motion judge had previously, on May 2, 2008, dismissed "the allegations of [p]laintiffs' [c]omplaint that relate to wage decisions made prior to July 27, 2005, or the impact of those decisions upon plaintiffs' salaries following July 27, 2005," two years prior to the filing of the complaint on July 27, 2007. Plaintiffs argue "the refusal of the trial court to recognize the 'continuing violation' doctrine in plaintiffs' allegations of pay disparities was contrary to New Jersey law" and that the trial court "erred in holding that [the United States Supreme Court's opinion in] Ledbetter [v. Goodyear Tire & Rubber Co., 550 U.S. 618, 127 S.Ct. 2162, 167 L.Ed. 2d 982 (2007)] is controlling in the present case."
The suit was commenced by three long-time female Seton Hall University professors who alleged age and sex discrimination in pay in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 et. seq. As noted, the trial court dismissed all claims arising two or more years before July 27, 2005, the date on which the complaint was filed. Plaintiffs allege that, because discovery was not completed, they do not know when the disparity commenced, but believe it "continued" until within two years of the complaint. However, defendant Seton Hall,*fn3 in essence, contends that any pay discrimination was based on a "discrete act" as of the time any disparity commenced, which was outside the statute of limitations (that is more than two years before the complaint was filed), that the "continuing violation" doctrine is inapplicable, and that Ledbetter controls. We agree, and affirm the judgment substantially for the reasons stated by Judge Alfonse J. Cifelli in his oral opinion of May 2, 2008, as supplemented herein.
Because the dismissal, on statute of limitations grounds, was entered pursuant to R. 4:6-2(e), we treat the plaintiffs' allegations as true for purposes of this opinion. See Banco Popular v. Gandi, 184 N.J. 161, 165-66 (2005). Plaintiff Alexander began her employment at Seton Hall in 1976, has been a tenured Associate Professor in the Management Department of the Stillman School of Business since 1981, and was sixty-two years old at the time the complaint was filed. Plaintiff Coll began her employment at the University in 1981, became a tenured Full Professor, the highest rank at the University, in the Management Department of the Stillman School of Business in 1994, and was sixty-five at the time the complaint was filed. Plaintiff Thompson-Sard began her employment with Seton Hall in 1987, became a tenured Associate Professor in the College of Education and Human Services, Department of Professional Psychology and Family Therapy in 1991, and was sixty-one at the time the complaint was filed.
In the fall of 2004 and fall of 2005, Seton Hall compiled summaries of faculty information arranged by college, gender, rank, and salary. Plaintiffs obtained copies of these summaries. In their complaint plaintiffs claimed that, although they had "always suspected that men earned more" than women in the same position, they learned in August 2005, when they obtained the summaries, that this was true. They alleged that their salaries were disproportionately lower than male, "newer [and]  younger faculty members," holding similar positions for the same or shorter periods: "[p]laintiffs claim discriminatory discrepancies between their salaries and those earned by younger and by male employees" and that "the older, tenured, higher ranking professors have suffered lost income in order for the University to finance the salaries of younger, less experienced, newer professors--many even before becoming tenured."
Plaintiffs argue that their discrimination allegations are timely under the "continuing violations" doctrine, and that the doctrine applies to cases alleging discriminatory pay disparity. They further contend that Ledbetter, supra, 550 U.S. at 618, 127 S.Ct. at 2162, 167 L.Ed. 2d at 982, a pay discrimination case arising under Title VII, 42 U.S.C.A. § 2000e et. seq., is not controlling, and that the trial court misinterpreted Ledbetter by finding that any discriminatory pay decision is a "discrete act" that could trigger the two-year statute of limitations. Plaintiffs also assert that they could not have taken action before they became aware of the discriminatory pay decisions.*fn4
Plaintiffs further contend that the trial court failed to specifically identify any "discrete acts" of discrimination that it found to have triggered the limitations period.
Judge Cifelli determined that Ledbetter was applicable to this case because it involved the same issue: "whether and under what circumstances the plaintiff may bring an action alleging -- illegal pay discrimination when the disparate pay is received during the statutory limitations period but is the result of intentionally discriminatory pay decisions that occurred outside of the limitations period." He found "that once the statutory filing period is expired the present effects of a discriminatory salary decision have no present legal significance or consequences and therefore, such a decision cannot form the basis of a charge of discrimination." The judge added "that pursuant to Ledbetter, an employer's decision to set an employee's . . . pay or salary is a 'discrete act' that commences the running of the limitation's [sic] period." Thus, paychecks received as a result of discriminatory pay decisions occurring outside of the limitations period, which merely represented a continuing impact of those time-barred decisions, cannot form the basis for plaintiffs' complaint.
The judge further noted that allowing plaintiffs to recover for pay decisions more than two years old would defeat the purpose of the statute of limitations, especially since plaintiffs alleged they always suspected that disparities existed. Thus, the Law Division dismissed the complaint to the extent it was based on discrete discriminatory acts occurring prior to July 27, 2005, and to the extent it was based upon the present impact of those acts. As already noted, it later granted plaintiffs' motion to amend its order dismissing the complaint in its entirety because, as plaintiffs' certified, "[n]o 'discrete acts' of discrimination [we]re alleged during the statute of limitations period."
A trial court's dismissal of a complaint under Rule 4:6-2(e) for "failure to state a claim upon which relief can be granted" is reviewed under the same standard as that employed by the trial courts, Seidenberg v. Summit Bank, 348 N.J. Super. 243, 249-50 (App. Div. 2002), and the issue before us relating to the statute of ...