On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1544-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 9, 2011 Before Judges Grall and LeWinn.
Plaintiff, a former employee of Harrah's Resort Atlantic City (Harrah's), appeals from the September 30, 2010 order granting Harrah's motion for summary judgment, dismissing his complaint brought pursuant to the Law Against Discrimination, N.J.S.A. 10:5-1 to -49 (LAD). We affirm.
On appeal from an order granting summary judgment, we must consider the evidence in the light most favorable to plaintiff and determine if Harrah's is entitled to summary judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c). Plaintiff filed his complaint on April 9, 2010. He alleged that his employment with Harrah's commenced "in or about May, 2006" and that he "was terminated in or about May, 2008." In its answer, however, Harrah's asserted that plaintiff's employment was "terminated effective March 29, 2008."
Two weeks after filing its answer, Harrah's moved for summary judgment on the basis that plaintiff had failed to file his complaint within the two-year statute of limitations applicable to LAD cases, citing Montells v. Haynes, 133 N.J. 282, 292 (1993) (the two-year statute of limitations "comports with the underlying purposes of statutes of limitations . . . and with the remedial purposes of [the] LAD in rooting out discrimination"); N.J.S.A. 2A:14-2. Harrah's submitted a certification from Debra Karver, its Employee Relations Manager, stating that she had reviewed plaintiff's personnel records and that his effective termination date was March 29, 2008.
In opposition, plaintiff asserted that he had requested production of his personnel file to ascertain his "actual date of termination." He also submitted documentation that he had suffered a stroke on February 24, 2010, and was hospitalized until late March; during that period his "speech was nearly incomprehensible, he couldn't walk [and] he couldn't understand . . . ."
At oral argument on August 6, 2010, plaintiff initially acknowledged that there was "no dispute that the complaint was filed beyond two years after" he was terminated. However, he subsequently contended that since Harrah's had not provided "any documentation" as to his termination other than the Karver certification, he considered his termination date to still be in issue. Plaintiff also contended that his stroke in February-March 2010 should toll the running of the statute of limitations.
The judge then gave both parties two weeks to "supplement the record" regarding plaintiff's termination date; he also afforded plaintiff the opportunity to submit medical documentation to support his "tolling" argument. The judge noted that the statute of limitations specifically provided that such tolling occurs only when and if a plaintiff is suffering a disability at the time his cause of action accrued, citing N.J.S.A. 2A:14-21 and Kyle v. Green Acres at Verona, Inc., 44 N.J. 100, 106-07 (1965).
Oral argument resumed on September 30, 2010. At that time, plaintiff was unable to provide any case law supporting his claim that the statute of limitations would toll when a period of disability commenced after the cause of action accrued.
Plaintiff then asserted, for the first time, a claim that Harrah's had failed to inform him of his right to continuing medical benefits following termination and this failure constituted a "post-discharge claim" that did not "necessarily . . . accrue and end at the time of discharge." Plaintiff acknowledged, however, that he had not asserted this claim in his complaint.
The issue of plaintiff's termination date was resolved at this hearing when his counsel described a conversation with plaintiff and his wife, in which his wife recalled that he had been terminated "just before" her birthday, which is on April 3. Therefore, the judge concluded that Harrah's termination date of March 29, 2008 appeared accurate and, in any event, plaintiff had been terminated no later than April 3, thus still rendering his complaint untimely under the statute of limitations. Plaintiff then conceded that he was terminated "prior to two years in advance of April 9, 2010."
The judge granted summary judgment to Harrah's, finding:
(1) plaintiff failed to file his complaint within two years of his termination date; (2) plaintiff's disability from the stroke between February and March 2010 did not toll the running of the statute as such disability did not exist at the time his cause of action accrued; (3) no case law supported plaintiff's contention that, in light of the remedial nature of the LAD, the statute "should be tolled during any disability period that [he] may have undergone"; (4) plaintiff never made a formal demand for production of his personnel file, notwithstanding that there had been "sufficient time to follow up with a motion if necessary" to obtain that file; and (5) in any event plaintiff's continuing demand for ...