United States District Court, D. New Jersey
CAROLINE HOPE MILLER DEREK SMITH LAW GROUP PLLC On behalf of
G. ANTINORI BROWN & CONNERY, LLP On behalf of Defendants
L. HILLMAN, U.S.D.J.
matter concerns Plaintiff's claims of race discrimination
and retaliation by his employer. Presently before the Court
is the motion of Defendants to dismiss Plaintiff's claims
for violations of the New Jersey Law Against Discrimination
(“NJLAD”), N.J.S.A. 10:5-1, et seq., because they
are time-barred. For the reasons expressed below,
Defendants' motion will be granted.
Jesse Brown, Jr., is an African-American male who began
working at Defendant, collectively “Railway
Construction, ” as a laborer in April 2010. Plaintiff
alleges that during his time at Railway Construction, he was
discriminated and retaliated against because of his race, and
that Defendants did not address any of his complaints,
including a disproportionate number of “random”
drug tests as compared to white employees, white employees
being notified ahead of time of “random” drug
tests, a noose hanging from a trailer he was directed to
clean, suspension for an unprovoked physical altercation when
the white employee involved was not disciplined, unwarranted
bad reviews, and being singled out in front of other
employees because he accepted prevailing wage jobs over
non-prevailing wage jobs when this was not true. Because of
these, and other, incidents, Plaintiff claims that the
humiliation and discrimination he suffered resulted in his
constructive discharge on June 2, 2014.
has brought claims pursuant to Title VII of the Civil Rights
Act of 1964, as codified, 42 U.S.C. §§ 2000e to
2000e-17 (amended in 1972, 1978 and by the Civil Rights Act
of 1991, Pub. L. No. 102-166 (“Title VII”)), 42
U.S.C. § 1981, 42 U.S.C. § 1983 and the New Jersey
Law Against Discrimination (“NJLAD”), N.J.S.A.
10:5-1, et seq.
have moved to dismiss Plaintiff's Fourth, Fifth, and
Sixth Counts, which are for violations of the NJLAD.
Defendants argue that the alleged NJLAD violations occurred
between April 2010 and June 2, 2014, and those claims are
time-barred because Plaintiff's July 29, 2016 complaint
is beyond the two-year statute of limitations for NJLAD
claims. In response, Plaintiff argues that his NJLAD claims
should not be dismissed because he waited patiently while the
EEOC investigated his Title VII claims, and by the time he
received his right-to-sue letter, it would have been nearly
impossible for Plaintiff to secure adequate representation to
bring this action. Plaintiff further argues that it would be
illogical to assert that a work-share agreement between the
state and federal government was intended to foreclose
protections to an employee.
does not directly dispute that NJLAD claims are subject to a
two-year statute of limitations. Illas v. Gloucester
County Sheriff's Dept., 2015 WL 778806, at *4
(D.N.J. 2015) (citing Montells v. Haynes, 627 A.2d
654 (N.J. 1993) (concluding a two-year statute of limitations
of N.J.S.A. 2A:14-2(a) applies to NJLAD claims)).
“‘A discrete retaliatory or discriminatory act
occurs on the day that it happens.'” Id.
(quoting Roa v. Roa, 200 N.J. 555, 985 A.2d 1225
(N.J. 2010)). Here, all of Plaintiff's claims occurred on
or before June 2, 2014. Because Plaintiff's July 29, 2016
complaint is clearly beyond the June 2, 2016 statute of
limitations deadline, Plaintiff's claims are time-barred.
Plaintiff's arguments for this Court to hold otherwise do
not change this result.
Court previously explained:
Unlike Title VII, the NJLAD does not require the claimant to
seek an administrative remedy before proceeding with a
judicial remedy for his claims. Hernandez v. Region Nine
Hous. Corp., 146 N.J. 645, 684 A.2d 1385, 1389
(N.J.1996). While a plaintiff may elect to seek redress
administratively instead of, or prior to, seeking judicial
redress, the statute of limitations for filing judicial
claims is not tolled by the filing of an administrative
claim. See Sylvester v. Unisys Corp., 1999 WL
167725, at *6 (E.D. Pa. Mar. 25, 1999) (holding that
“filing a DCR complaint does not toll the statute of
limitations for filing an NJLAD suit in court”). Thus,
even assuming that the EEOC had initiated a state charge on
Plaintiff's behalf with the New Jersey Division on Civil
Rights (“NJDCR”) according to its worksharing
agreement with the NJDCR, this would not change the fact that
Plaintiff would have had to withdraw any such administrative
charge and file suit prior to the expiration of the two-year
limitations period on May 24, 2008. This was not done.
As the statute of limitations for making a judicial claim is
the same regardless of whether or not an administrative
charge was made, Plaintiff is barred from proceeding with an
action filed outside the period of limitations.
Plaintiff's claim was not made until this suit was filed
on August 6, 2008, past the two year statute of limitations,
and his NJLAD claims are therefore barred.
Omogbehin v. Dimensions Intern., Inc., 2009 WL
2222927, at *3 (D.N.J. 2009).
Plaintiff has not articulated how any equitable tolling
principles would be applicable here. Equitable tolling
applies where a plaintiff is misled and as a result fails to
act within the prescribed time limit, or where a plaintiff is
prevented from timely asserting his or her claims because of
gross attorney error. Mungiello v. Federal Express
Corporation, 2016 WL 6833070, at *5 ( N.J.Super. App.
Div. 2016) (citing Villalobos v. Fava, 342
N.J.Super. 38, 50 (App. Div.), cert. denied, 170 N.J. 210
(2001)); Seitzinger v. Reading Hosp. & Med.
Ctr., 165 F.3d 236, 240 (3d Cir. 1999)) (other citations
omitted). Plaintiff argues that it would have been nearly
impossible to obtain counsel and file suit after waiting for
the conclusion of the EEOC process on his federal claims, but
Plaintiff does not say whether he already had counsel
assisting him on his EEOC claims, or when the EEOC
right-to-sue letter was issued. Nonetheless, even if