WILLIAMS et al v. ROWAN UNIVERSITY
Filing
23
OPINION. Signed by Judge Renee Marie Bumb on 03/09/2012. (tf, )
NOT FOR PUBLICATION
[Docket No. 18]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
RICHARD A. WILLIAMS,
Civil No. 10-6542 (RMB/AMD)
Plaintiff,
v.
ROWAN UNIVERSITY and
DONALD H. FARISH,
OPINION
Defendants.
Appearances:
Fredric J. Gross
7 East Kings Highway
Mt. Ephraim, NJ 08059
Attorney for Plaintiff
Jacqueline Augustine
Office of the NJ Attorney General
RJ Hughes Justice Complex
PO Box 112
Trenton, NJ 08625
Attorneys for Defendant
BUMB, United States District Judge:
Plaintiff Richard A. Williams (the “Plaintiff”) is a former
employee of Defendant Rowan University (“Defendant Rowan”).
Through his Amended Complaint1 (the “Amended Complaint”), he
asserts causes of action related to alleged illegal retaliatory
action and racial discrimination by Defendant Rowan and Defendant
1
For purposes of the motion to dismiss, the allegations
in the Amended Complaint are accepted as true and
construed in the light most favorable to Plaintiff.
See Phillips v. County of Allegheny, 515 F.3d 224, 233
(3d Cir. 2008).
1
Donald H. Farish (“Defendant Farish”), the president of Rowan
(collectively the “Defendants”).
Defendants have moved to
dismiss Plaintiff’s federal causes of action based on statute of
limitations grounds.2
For the following reasons, Defendants’
motion is GRANTED, in part, and DENIED, in part.
I.
Background
Plaintiff is an African-American male who worked as
Defendant Rowan’s Equal Opportunity/Affirmative Action Officer.
As part of his duties, Plaintiff drafted a proposed affirmative
action plan for the University.
University counsel and Defendant
Farish reviewed and approved the plan, which was then adopted by
the University.
The plan was later produced in discovery in the matter of
DeSanto v. Rowan University, Civ. No. 99-3952 (Orlofsky, J.).
Plaintiff was subsequently subpoenaed to testify, and testified,
at trial in the matter.
trial was truthful.
Plaintiff alleges that his testimony at
The plaintiff in that matter prevailed at
trial.
Following the trial, Defendant Farish called Plaintiff to a
meeting, at which Plaintiff was blamed for the loss at trial.
Plaintiff alleges that Defendants thereafter “embarked upon a
series of retaliatory actions against Plaintiff” including:
2
In briefing on the motion to dismiss, Plaintiff filed a
sur-reply brief. Plaintiff's filing of the sur-reply
brief, without permission of the Court, was improper
under the Local Rules. Plaintiff is cautioned that,
going forward, he is to obtain this Court's permission
before filing any supplemental briefing.
2
(1)
denying Plaintiff a pay raise in December 2002;
(2)
denying Plaintiff a pay raise in December 2003;
(3)
reassigning Plaintiff’s duties to an interim
affirmative action officer while he was out on sick
leave from November 15, 2006 through late January 2007
and from February 7, 2007 until March 26, 2007; and
(4)
when Plaintiff returned from sick leave, Rowan’s Vice
President told Plaintiff he should leave the University
by June 30, 2007.
In late April 2007, Plaintiff met with Defendant Farish to
discuss the fact that the planned termination of Plaintiff would
prevent Plaintiff from receiving retirement health benefits,
which Plaintiff needed to work one more year to secure.
The next
month, in late May 2007, Defendant Farish told Plaintiff to
report to Eric Clark, Dean of Rowan’s Camden campus, and retire
in December 2008.
When Plaintiff asked what would happen if he
did not want to retire in December 2008, Defendant Farish
indicated his retirement could be renegotiated, and told
Plaintiff to meet with Farish before June 30, 2008 if Plaintiff
wanted to renegotiate this arrangement.
On July 1, 2007, Plaintiff was demoted to an Equal
Opportunity Fund (“EOF”) Counselor at the Camden campus.
Almost
one year later, in early June 2008, Plaintiff called the
President’s Office to discuss working another year in Camden.
Plaintiff’s overture was rejected.
Defendant Farish indicated
that the newly appointed Assistant Provost of the Camden campus,
Dr. McCombs, “was going in another direction.”
3
Plaintiff claims, as a fifth act of reprisal, that Defendant
Farish directed Plaintiff to send in his retirement letter.
Plaintiff reluctantly complied, tendering his resignation.
Plaintiff subsequently learned that, under the collective
bargaining agreement, he had the right to withdraw his retirement
letter up until the effective date of the proposed retirement if
his position still existed.
Knowing that the EOF Counselor
position continued to exist, Plaintiff forwarded a letter to
Defendant Farish, retracting his pending retirement, on September
12, 2008.
Plaintiff claims that, in contravention of the
operative Collective Bargaining Agreement and relevant retirement
policy and practice, the University, by and through Defendant
Farish, refused to honor Plaintiff’s retraction and forced
Plaintiff into retirement as of December 31, 2008.
Defendants communicated their denial to Plaintiff in a
letter dated October 16, 2008.3
3
The letter reads:
Though the letter was not attached to the Amended
Complaint, and was instead attached to Defendants’
moving papers, this Court may consider it because it
forms the basis of one of Plaintiff’s claims of
retaliation and, notably, Plaintiff does not dispute
its authenticity. Lum v. Bank of Am., 361 F.3d 217,
222 n.3 (3d Cir. 2004)(“In deciding motions to dismiss
pursuant to Rule 12(b)(6), courts generally consider
only the allegations in the complaint, exhibits
attached to the complaint, matters of public record,
and documents the form the basis of a claim.”); In re
Donald J. Trump Casino Sec. Litig.-Taj Mahal Litig., 7
F.3d 357, 368 n. 9 (3d Cir. 1993)(“[A] court may
consider an undisputedly authentic document that a
defendant attaches as an exhibit to a motion to dismiss
if the plaintiff's claims are based on the
document.”)(quotation and citation omitted).
4
Dear Mr. Williams:
This is in response to your letter, dated September 12,
2008, seeking to recontract for another year.
Unfortunately, recontracting for another year is not
possible. I must inform you that as previously agreed, your
last day of employment at Rowan will be December 31, 2008.
As you know, you were provided with a terminal contract
ending on December 31, 2008. My letter to you, dated June
5, 2007 confirmed that you will leave University employment
on that date. By letter, dated July 25, 2007, you confirmed
your understanding of the arrangement. You indicated that
you would let me know by June 30, 2008 if you requested a
renegotiation of your continuation at Rowan beyond December
31, 2008.
I received a letter from you, dated June 26, 2008,
stating your “formal indication” that you would be leaving
Rowan effective December 31, 2008. In reliance on your
letter, your name was forwarded to the Board of Trustees as
part of personnel actions. The Board formally accepted your
retirement from Rowan University at its September 10, 2008
meeting.
I wish you well in your retirement.
Very truly yours,
Donald J. Farish
President
Plaintiff alleges that the denial was another unlawful
retaliatory action and additionally, because Defendants had
permitted non-African American employees to withdraw from
retirement in the past, an unlawful discriminatory action.
Plaintiff filed his initial complaint on December 16, 2010
and filed the Amended Complaint on May 26, 2011.
II.
Standard
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
5
relief that is plausible on its face.”
Sheridan v. NGK Metals
Corp., 609 F.3d 239, 263 n. 27 (3d Cir. 2010)(quoting Ashcroft v.
Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949 (2009)) (internal
quotation marks omitted).
“A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.”
Id. (quoting Iqbal, 129 S.Ct. at
1949).
The Court conducts a three-part analysis when reviewing a
claim:
First, the court must “tak[e] note of the elements a
plaintiff must plead to state a claim.” Iqbal, 129 S.Ct. at
1947. Second, the court should identify allegations that,
“because they are no more than conclusions are not entitled
to the assumption of truth.” Id. at 1950. Finally, “where
there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they
plausibly give rise to an entitlement for relief.” Id.
Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010);
see also Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir.
2009)(“...[A] complaint must do more than allege the plaintiff's
entitlement to relief.
A complaint has to “show” such an
entitlement with its facts.”).
III. Analysis
The Complaint alleges two federal claims.
First, Plaintiff
claims that the series of retaliatory actions allegedly taken
against him violate 42 U.S.C. § 1983 (“Section 1983”).
Second,
Plaintiff claims that Defendants’ refusal to allow Plaintiff to
6
rescind his retirement violates 42 U.S.C. § 1981 (“Section
1981”), which, because there is no private right of action
against state actors pursuant to Section 1981, he asserts via
Section 1983.
McGovern v. City of Philadelphia, 554 F.3d 114,
121-22 (3d Cir. 2009).
Defendants have moved for dismissal of
both claims based on the statute of limitations.
The Court
addresses each argument in turn.
A.
Plaintiff’s Section 1983 Retaliation Claim
“Actions brought under [Section 1983] are governed by the
personal injury statute of limitations of the state in which the
cause of action arose.”
(3d Cir. 2009).
Marcum v. Harris, 328 F. App’x 792, 795
In New Jersey, where this action arose, such
actions must be brought within two years.
Id.
While state law
provides the applicable time period for Section 1983 claims,
federal law governs the accrual of the cause of action.
Id.
“Accrual occurs when . . . the plaintiff knew or should have
known that his constitutional rights had been violated.”
Id.
(quotation and citation omitted). Accrual is measured by notice
of the affirmative acts that give rise to the claimed injury, not
when the “lingering consequence[s]” of those decisions are felt.
Id.
Importantly, where an alleged act is “discrete,” a cause of
action based on that act accrues at the time the action occurred,
even if the act is part of a continuing series of violations.
O’Connor v. City of Newark, 440 F.3d 125, 128-29 (3d Cir. 2008).
Otherwise untimely claims based on discrete actions “cannot be
7
resurrected by being aggregated and labeled continuing
violations.”
Id. at 129.
Here, Plaintiff claims that a cause of action based on the
Defendants’ refusal to rescind his retirement request accrued
when his retirement commenced on December 31, 2008.
Plaintiff
argues that: (1) suit on that decision is timely; and (2) the
prior alleged retaliatory actions are part of the same continuing
course of conduct by the Defendants, delaying accrual on those
claims until December 31, 2008, and therefore timely. Plaintiff
is incorrect on both counts.
Plaintiff’s alleged forced retirement was only a lingering
consequence of Defendants’ earlier actions and therefore
immaterial for statute of limitations purposes.
Marcum, 328 F.
App’x at 795; Delaware State College v. Ricks, 449 U.S. 250, 258
(1980)(recognizing that the “proper focus is upon the time of the
discriminatory acts, not upon the time at which the consequences
of the acts became most painful.”)(quotation and citation
omitted)(emphasis in original).
The latest alleged affirmative
retaliatory action was Defendants’ refusal to allow Plaintiff to
withdraw his retirement.
Plaintiff was informed of that refusal
through Defendants’ October 16, 2008 letter.
Though the letter
does not expressly indicate that Plaintiff’s request to withdraw
his retirement, made in his September 16, 2008 letter, was
“denied,” it nonetheless communicated that decision in no
uncertain terms.
It indicated that: (1) it was written “in
8
response to” Plaintiff’s September 16, 2008 letter; (2)
notwithstanding that letter, “recontracting for another year
[was] not possible”; and (3) “as previously agreed, [Plaintiff’s]
last day of employment at Rowan [would] be December 31, 2008.”
Further, the letter wished Plaintiff “well in [his] retirement.”
At that time, Plaintiff knew or should have known that Defendants
would not permit Plaintiff to withdraw his retirement and his
constitutional rights had been violated.4
Because that alleged
retaliatory action occurred more than two years prior to the
December 16, 2010 filing of this action, it is time-barred.
The untimeliness of this claim, the last alleged retaliatory
action, is fatal to Plaintiff’s claims of earlier retaliatory
actions, even accepting Plaintiff’s continuing violation theory.
That theory too is incorrect.
The retaliatory actions Plaintiff
alleges - termination, demotion, denial of a pay raise, and
reassignment of duties - are all discrete actions.
O’Connor, 440
F.3d at 127 (listing similar actions as qualifying as discrete
actions).
For these claims, based on discrete actions, the
statute of limitations began to run on accrual and was not tolled
by later retaliatory actions.
Id. at 129.
Therefore, even if
Plaintiff’s claim based on the last alleged retaliatory action
was timely (and it is not), it would not save Plaintiff’s earlier
claims, which all occurred more than two years prior to
Plaintiff’s filing of the Complaint on December 18, 2010.
4
Significantly, Plaintiff does not claim that he failed
to receive the letter in a timely fashion.
9
Because all of Plaintiff’s claimed retaliatory actions are
time-barred, Plaintiff’s Section 1983 retaliation claim is
dismissed.
B.
Plaintiff’s Discrimination Claim
Defendants contend that, because Plaintiff’s Section 1981
based claim is asserted through Section 1983, it too is subject
to a two-year statute of limitations and must be dismissed.
Plaintiff, however, argues that his claim is timely under 28
U.S.C. § 1658 (“Section 1658”), which provides for a four year
statute of limitations for certain actions, and applies to his
Section 1981 based claim.
Defendants claim that this statute of limitations issue was
resolved in their favor by the Third Circuit’s decision in
McGovern v. City of Philadelphia, 554 F.3d 114 (3d Cir. 2009).
In McGovern, the Third Circuit concluded that there was no
independent Section 1981 claim against state actors and that any
such claim must instead be asserted through Section 1983.
McGovern, 554 F.3d at 121 (“[W]e hold that the express cause of
action for damages created by § 1983 constitutes the exclusive
federal remedy for violation of the rights guaranteed in § 1981
by state governmental units.”)(quotation and citation omitted).
Because the plaintiff’s claim in McGovern was premised solely on
Section 1981, and was not asserted through Section 1983, the
Court concluded that the plaintiff had failed to state a viable
10
cause of action.
Id. at 121-22.
Significantly, however, and
contrary to the Defendants’ position here, McGovern did not
address the applicable statute of limitations had the plaintiff
properly asserted his Section 1981 claims through Section 1983.
See generally id.5
And, while at least one District Court in New
Jersey was confronted with the same arguments presented here and
5
The statute of limitations for a Section 1981 based
Section 1983 action was addressed in the Third
Circuit’s non-precedential opinion in N’jai v. Floyd,
386 F. App’x 141 (3d Cir. 2010). There, the Third
Circuit considered a pro se plaintiff’s appeal of
various civil rights claims, including a Section 1981
based Section 1983 claim. N’jai, 386 F. App’x at 144.
The Circuit Court concluded that, because the Section
1983 claim was untimely and the Section 1981 claim
could only be asserted through Section 1983, it too was
time-barred:
N'Jai's claims against Wilkinsburg and the
Wilkinsburg Individuals under §§ 1981, 1983, 1985,
and 1986 are time-barred because they accrued, at
the latest, in September 2005, when she was
terminated from her job. . . . See McGovern v.
City of Philadelphia, 554 F.3d 114, 120 (3d
Cir.2009) (holding “that ‘the express cause of
action for damages created by § 1983 constitutes
the exclusive federal remedy for violation of the
rights guaranteed in § 1981 by state governmental
units' ” (quoting Jett v. Dallas Indep. Sch.
Dist., 491 U.S. 701, 733, 109 S.Ct. 2702, 105
L.Ed.2d 598 (1989))); Kost v. Kozakiewicz, 1 F.3d
176, 189-90 (3d Cir.1993) (stating that
Pennsylvania's two-year statute of limitations
applies to § 1983 actions)). Id.
There, unlike here, however, the Third Circuit does not
appear to have been presented with the argument that
Section 1658 may apply to a Section 1981 based Section
1983 claim. See generally id.
11
agreed with the Defendants’ reasoning (See Barroso v. N.J.
Transit Corp., No. 07-3978, 2011 WL 111577, at *4 (D.N.J. Jan.
13, 2011)), the Supreme Court’s decision in Jones v. R.R.
Donnelly & Sons Co., 541 U.S. 369 (2004) compels this Court to
conclude that Plaintiff’s Section 1981 based Section 1983 claim
is subject to Section 1658’s four year statute of limitations.
In Jones v. R.R. Donnelly & Sons Co., the Supreme Court
examined the interaction of Section 1981 and Section 1658.
Jones, 541 U.S. at 372.
Section 1658 provides a “catch-all” four
year statute of limitations for any federal civil action, arising
under a federal law, that is enacted after December 1, 1990, and
that does not contain its own statute of limitations.
Id.;
Section 1658 (“Except as otherwise provided by law, a civil
action arising under an Act of Congress enacted after the date of
the enactment of this section may not be commenced later than 4
years after the cause of action accrues.”). The Supreme Court
interpreted the term “arising under” broadly to mean any claims
“made possible by a post-1990 enactment” and cautioned that it
should not be read to mean “based solely upon.”
Id. at 382-83.
The Supreme Court reasoned that this interpretation was
consistent with Congress’ intent, in enacting the statute, to
address the confusion, discriminatory impact, and litigation
costs associated with the prior “settled practice” of borrowing
12
state law statute of limitations for federal claims without their
own statutes of limitations.
Id. at 377-80.
Section 1981, originally codified in 1870 and recodified in
1874, was one such claim for which courts had engaged in
limitation borrowing.
Id. at 371-72.
It was, however, amended
in 1991 to expand the types of claims that could be asserted
following the Supreme Court’s decision in Patterson v. McLean
Credit Union, 491 U.S. 164 (1989), which interpreted the claim
narrowly.
Id. at 372-73.
Prior to the amendment, claims under
Section 1981 were confined to claims based on “the formation of a
contract” and claims of deprivation of access to “legal process.”
Patterson, 491 U.S. at 177-78.
It did not extend to claims based
on discriminatory treatment post-formation.
Id.
The amendment,
however, extended protection to claims based on discriminatory
treatment post-formation.
Jones 541 U.S. at 383.
Applying the
broad interpretation of “arising under” described above, the
Supreme Court held in Jones that causes of action made possible
by that amendment, which was enacted after December 1, 1990, were
subject to Section 1658’s four year statute of limitations. Id.
at 383.
Causes of action that were previously possible under
Section 1981 were subject to the state law borrowing analysis.
Id.
13
Unlike in Jones, where the plaintiff directly asserted a
Section 1981 claim, Plaintiff here is asserting his Section 1981
claim through Section 1983.
And, ordinarily, causes of action
under Section 1983, because that statute has not undergone
meaningful revision for this purpose post December 1, 1990, are
not subject to Section 1658.
Ortiz v. City of New York, 10 Civ.
3576, 755 F. Supp. 2d 399, 408 (E.D.N.Y. 2010).
But the same
reasoning that controlled in Jones controls here, warranting
application of Section 1658’s four year statute of limitations.
By its plain language, Section 1658 applies to all acts of
Congress enacted after December 1, 1990, “[e]xcept as otherwise
provided by law”.
Section 1658.
Neither Section 1981, nor
Section 1983, nor any other statute, contain any language
imposing a contrary statute of limitations on Section 1981 and
Section 1983 claims.
Ortiz, 755 F. Supp. 2d at 407-08.
Therefore, Section 1658 applies if the cause of action here
“arises under” a post December 1, 1990 amendment.
It does.
Plaintiff’s cause of action is predicated on post-formation
conduct.
Therefore, though it is denominated as a Section 1983
claim, it is only made possible through a post December 1, 1990
amendment to Section 1981.
Id. at 408.
Plaintiff’s claim
therefore arises under a post December 1, 1990 act and is subject
to Section 1658’s four year statute of limitations.
14
Baker v.
Birmingham Bd. of Educ., 531 F.3d 1336, 1338 (11th Cir. 2008);
Allstate Sweeping, LLC v. City and County of Denver, No. 10-CV00290, 2011 WL 6729334, at *4 (D.Colo. Dec. 23, 2011);
Padilla
v. City and County of Denver, No. 09-cv-02930, 2011 WL 3876589,
at *12 (D.Colo. Sept. 2, 2011); Moore v. City of Jackson,
Mississippi, Civ. No. 3:10cv454, 2011 WL 3022525, at *2
(S.D.Miss. July 22, 2011);
Ortiz, 755 F. Supp. 2d at 407-08;
Thomas v. City of Shreveport, No. 06-1078, 2008 WL 4291211, at *4
(W.D.La. Sept. 15, 2008); Knox v. City of Monroe, 551 F. Supp. 2d
504, 512 (W.D.La. 2008); Williams v. Hawkeye Community College,
494 F. Supp. 2d 1032, 1041 (N.D.Iowa 2007).
That the claim
cannot stand entirely on the post December 1, 1990 amendment to
Section 1981 and instead also depends on Section 1983 is
immaterial, given the Supreme Court’s admonition that the
“arising under” language not be read to mean “based solely upon.”
Williams, 494 F. Supp. at 1041; See also City of Rancho Palos
Verdes, Cal. v. Abrams, 544 U.S. 113, 123 n.5 (2005)(observing
that Section 1658 “would seem to apply” to a Section 1983 claim
predicated on the violation of a federal law passed after
December 1, 1990)6.
6
The court in Ortiz viewed subsequent language in Abrams
as undercutting this otherwise clear language. Ortiz,
755 F. Supp. 2d at 407-08. In Abrams, the parties
contested the statute of limitations applicable to a
cause of action under Section 1983 for a violation of a
provision of the Telecommunications Act. Id. at 406.
The provision provided its own statute of limitations
15
Because Plaintiff’s Section 1981 based Section 1983 claim
accrued within four years of Plaintiff’s filing of the Complaint,
it is not time-barred.
Therefore, the Court declines to dismiss
Plaintiff’s Section 1981 based Section 1983 claim.
IV.
Conclusion
and the defendant in Abrams argued that that
limitations period controlled and that the longer
limitations periods provided under Section 1983 and
Section 1658 did not apply. Abrams, 544 U.S. at 12425. The Supreme Court held, however, that the
provision’s statute of limitations did not displace the
general rule applicable to Section 1983 actions that
the statute of limitations for such actions does not
depend on the underlying substantive right being
asserted. Id. Neither, however, did it displace the
potential applicability of Section 1658 because the
provision’s specific statute of limitations language
applied solely to actions under that provision and not
to other actions to enforce the rights created under
the provision. Id. at 125. The Supreme Court’s
holding that the statute of limitations for Section
1983 claims does not depend on the underlying right
being asserted could be taken to suggest disapproval of
utilizing Section 1981’s statute of limitations while
formally making a Section 1983 claim. However, the
prior and subsequent discussion by the Supreme Court of
Section 1658’s potential availability militate against
that interpretation. The discussion in Abrams is best
read as establishing the following. Section 1983
claims are generally subject to state law statutes of
limitations, even when they are based on the violation
of a federal statute that contains its own statute of
limitations. However, as an exception to that general
rule, these claims may be subject to Section 1658’s
statute of limitations where: (1) the federal statutory
violation that makes possible the claim was enacted
after December 1, 1990; and (2) the statute of
limitations for the alleged violation is written
narrowly, such that it is not intended to apply to “any
action to enforce the rights created by” the statute.
Abrams, 544 U.S. at 125.
16
For all these reasons, Defendants' motion to dismiss is
DENIED, in part, and GRANTED, in part.
retaliation claim is dismissed.
Plaintiff's Section 1983
Plaintiff's Section 1981 based
Section 1983 claim may proceed.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: March 9, 2012
17
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