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Mary Londono v. City of Elizabeth

January 23, 2012

MARY LONDONO, PLAINTIFF-APPELLANT,
v.
CITY OF ELIZABETH, DEFENDANT, AND ROMAN A. MONTES, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-000041-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 29, 2011 -

Before Judges Alvarez and Nugent.

Plaintiff Mary Londono appeals from the November 12, 2010 Law Division order granting summary judgment to defendant Roman A. Montes and dismissing plaintiff's intentional tort claims because she did not file notice as required by the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-8, and failed to comply with the statute of limitations. We affirm.

Plaintiff began working for the City of Elizabeth (the City) as a municipal court clerk in 2000 and was promoted to the position of senior clerk in 2004. According to her complaint and deposition testimony, between 2003 and 2006 she was harassed by defendant Montes, the municipal court judge. The factual underpinnings of plaintiff's claims are concisely summarized in our opinion concerning plaintiff's first appeal, Londono v. City of Elizabeth, No. A-1125-09 (App. Div. September 17, 2010) (slip op. at 2):

Londono asserts that on one occasion she was punching in her time card to clock in to work when Montes struck her buttocks with some papers he had in his hand. On another occasion, Montes threw rubber bands at her buttocks while she was discussing a case with the court administrator. On a third occasion, Montes grabbed scraps of paper from Londono's pant leg. She also claimed he spoke to her in an unsolicited, derogatory manner about her choice of men and about the style of underwear she wore. Further, when Londono was interviewed for the position of deputy court administrator, Montes questioned whether others would be able to understand her because of her accent.

During plaintiff's deposition she was questioned about the dates of the three incidents involving physical contact. Plaintiff testified that the first incident occurred when she was punching her time card in 2003 shortly after her transfer from the night shift to the morning shift.*fn1 The second incident involving the rubber bands occurred in 2005*fn2 and the third incident involving the shredded paper took place several months later.

On October 12, 2007, plaintiff filed a six-count complaint against the City and Montes, alleging causes of action under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and the TCA. Plaintiff alleged in the first five counts sexual harassment, national origin harassment, and discrimination under the LAD. The sixth count alleged, "the action of defendant, Montes, constitutes an intentional tort."

Montes filed an answer in which he denied plaintiff's allegations and pleaded, among other affirmative defenses, three defenses under the TCA:

5. Plaintiff's claim is barred by plaintiff's failure to comply with the notice provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et. seq. and 59:8-1 et. seq.

6. Plaintiff's claim against this defendant is barred by the immunity provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et. seq. and 59:3-1 et. seq.

7. Plaintiff's claim is barred or limited by the limitations contained in the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et. seq. and 59:9-1 et. seq.

Following discovery that included the depositions of plaintiff and Montes, the trial court granted defendants' summary judgment motions and dismissed plaintiff's complaint with prejudice. Plaintiff neither opposed nor appealed the dismissal of her claims against the City, but appealed the dismissal of her claims against Montes. In an unpublished opinion, we affirmed summary judgment on plaintiff's ...


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