BEAN v. STATE OF NEW JERSEY JUDICIARY et al

Filing 26

OPINION. Signed by Judge Noel L. Hillman on 6/30/2014. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

LISA S. BEAN,

Civ. No. 12-5127 (NLH/KMW)
Plaintiff,
OPINION

v.
STATE OF NEW JERSEY JUDICIARY
CAMDEN VICINAGE, et al.,
Defendants.

APPEARANCES:
F. Michael Daily, Jr., Esquire
F. Michael Daily, Jr., LLC
Sentry Office Plaza
216 Haddon Avenue
Suite 100
Westmont, New Jersey 08108
Attorney for Plaintiff Lisa S. Bean
Kelly A. Samuels, Esquire
State of New Jersey
Office of the Attorney General
Division of Law
25 Market Street
P.O. Box 112
Trenton, New Jersey 08625
Attorneys for Defendants State of New Jersey Judiciary
Camden Vicinage, Peter Cupo, and Michael O’Brien

HILLMAN, District Judge
This matter comes before the Court by way of a motion to
dismiss [Doc. No. 20] by Defendants State of New Jersey
Judiciary Camden Vicinage, Peter Cupo, and Michael O’Brien

(collectively, “Defendants”) seeking to partially dismiss
Plaintiff’s first amended complaint (hereinafter, the “amended
complaint”) pursuant to Federal Rule of Civil Procedure 12(b)(6)
for failure to state a claim upon which relief can be granted.
Plaintiff opposes the motion to the extent Defendants seek to
dismiss several of Plaintiff’s Title VII claims but generally
concedes that her equal protection claims should be dismissed.
The Court has considered the parties’ submissions and decides
this matter pursuant to Federal Rule of Civil Procedure 78.
For reasons expressed below, Defendants motion for partial
dismissal will be granted.
I.

JURISDICTION
In the amended complaint, Plaintiff asserts claims for

discrimination and retaliation pursuant to: (1) 42 U.S.C. §§
2000e-2, 2000e-3 in violation of Title VII of the Civil Rights
Act of 1964; and (2) 42 U.S.C. 1983 for deprivations of her
equal protection rights afforded under the Fourteenth Amendment.
The Court exercises jurisdiction over Plaintiff’s claims
pursuant to 28 U.S.C. § 1331.
II.

BACKGROUND
Plaintiff is an African American female who has been

employed by Defendant State of New Jersey Judiciary Camden
Vicinage since July of 1998.
8).

(Am. Compl. [Doc. No. 15] ¶¶ 1,

Plaintiff’s amended complaint names two other Defendants in
2

this action: Peter Cupo and Michael O’Brien.

(Id. at ¶¶ 2-4.)

Defendants Cupo and O’Brien are being sued in their individual
capacities.

(Id. ¶¶ 3-4.)

In this matter, Plaintiff generally claims that her prior
participation as a witness in an Equal Employment Opportunity
Commission (“EEOC”) investigation into claims against Defendants
Cupo and O’Brien for racial discrimination made by another
Judiciary employee ultimately lead to her being discriminated
against and retaliated against by these same individuals.
Specifically, Plaintiff represents that beginning in 2003 and
ending in September of 2008, Plaintiff “offered information and
testimony in support a racial discrimination claim by a coworker” which eventually culminated in a law suit filed in this
District.

(Id. ¶ 11.)

Plaintiff asserts that she spoke with an

investigator in 2003 and subsequently authored an affidavit and
gave deposition testimony in that matter in June and September
of 2008, respectively.

(Id.)

Plaintiff claims that the

affidavit she authored in the prior matter “detailed various
hostile actions against African American females by ...
Defendant Cupo.”

(Id. ¶ 12.)

Plaintiff alleges that Defendants

Cupo and O’Brien were both named as defendants in the
discrimination law suit filed by her co-worker and “therefore
[they] had actual knowledge that [Plaintiff] had supported the
claims” of her co-worker in the prior suit.
3

(Id. ¶ 14.)

Based

on Plaintiff’s affidavit in that matter, Plaintiff contends that
both Defendant Cupo, and his supervisor, Defendant O’Brien
“would have been aware that [Plaintiff] claimed that ... Cupo
had a propensity to mistreat African American females.”

(Id. ¶

15.)
According to Plaintiff, despite her “many years of service
she has never received a promotion” from her employer.
9.)

(Id. ¶

In November of 2008, Plaintiff attempted to seek a

promotion by requesting to be reclassified from her position of
Judiciary Clerk II to the position of Judiciary Clerk IV.
¶¶ 18-19).

(Id.

Plaintiff decided to seek this promotion after

Denise Gonzalez, a co-worker of hers, who possessed “a lower
educational level than Plaintiff[,]” was solicited by Defendant
Cupo for the same reclassification approximately five months
earlier.

(Id. at ¶¶ 15-16.)

Gonzalez successfully obtained her

reclassification on October 31, 2008.

(Id. at ¶ 17.)

Plaintiff alleges that compared to Gonzalez, Plaintiff was
the “‘lead worker’ when the supervisor was absent” and that
Plaintiff regularly “perform[ed] Gonzalez’s duties during her
frequent medical absences.”

(Id. at ¶ 16.)

Moreover, during

her employment, Plaintiff represents that she met or exceeded
her employer’s reasonable expectations by consistently earning
“satisfactory performance evaluations and maintaining an
unblemished disciplinary record.”
4

(Id. at ¶ 10.)

Yet, despite

“being similarly situation to ... Gonzalez and being better
qualified than her[,]” Plaintiff was later denied the
reclassification she sought – the same reclassification Gonzalez
sought at Defendant Cupo’s urging.

(Id. at ¶ 16.)

The denial

of Plaintiff’s reclassification was subsequently affirmed on
administrative appeal.

(Id. at ¶ 19.)

Plaintiff alleges that the decision to grant or deny her
the reclassification (i.e., promote her) rested on the
evaluations of Plaintiff’s immediate supervisor, Ms. Rosario,
and Defendant Cupo.

(Id. at ¶¶ 21-22.)

After Plaintiff’s

reclassification was denied, Plaintiff claims that Rosario told
Plaintiff that she was “very surprised” that Plaintiff did not
receive the promotion.

(Id. at ¶ 20.)

Plaintiff represents

that Rosario “thought that if Ms. Gonzalez was reclassified
there should have been no problem with Plaintiff being
reclassified.”

(Id.)

Plaintiff alleges that had she been

reclassified, she would have received “a 5% salary increase and
therefore ... Plaintiff sustained a tangible adverse employment
action as a result of her reclassification request” being
denied.

(Id. at ¶ 24.)

Based on these events, Plaintiff asserts that “the only
explanation for the rejection [of her reclassification request]
would have been negative input from Cupo with the concurrence of
O’Brien” given that she was “better qualified for
5

reclassification than Gonzalez and [Plaintiff’s] immediate
supervisory supported the reclassification[.]”

(Id. ¶ 22.)

Plaintiff further claims that Defendants Cupo and O’Brien did
not have a legitimate nondiscriminatory reason for objecting to
the reclassification and thus their negative input was a pretext
for discrimination.

(Id. ¶ 23.)

Approximately sixteen months after she sought
reclassification, in April of 2010, Plaintiff alleges that she
submitted a voluntary furlough request to her employer. 1
25).

(Id. ¶

Plaintiff claims that compared to the manner in which

“similar requests of white and Hispanic employees had been
treated by [Defendant] Cupo, ... Plaintiff’s request was
subjected to significant limitations.” 2

(Id.)

Over a year

later, in June of 2011, Plaintiff alleges that she was
subsequently “denied the right to perform her duties as a union
Chief Steward[.]”

(Id. ¶ 26.)

Plaintiff contends that she was

denied this right on the “pretext [that] the case in question
required [her to] travel to Cherry Hill[.]”

(Id.)

Plaintiff

1

The amended complaint does not set forth any specifics
regarding Plaintiff’s voluntary furlough request such as the
reason for the request, the number of days requested, or the
specific date on which her request was made in April of 2010.
2

Plaintiff does not describe the nature of the “significant
limitations” she was subjected to regarding her voluntary
furlough request.
6

maintains, however, that her predecessor in this position “had
always been allowed to travel.”

(Id.)

Plaintiff claims that the decisions to substantially limit
her voluntary furlough request and to deny her the ability to
conduct her duties as union Chief Steward were made by
Defendants Cupo and O’Brien “without any reasonable
justification and for the purpose to retaliate against ...
Plaintiff.”

(Id. ¶ 27.)

Plaintiff further alleges that these

decisions by Defendants Cupo and O’Brien were of such a nature
that they “would discourage a reasonable person from supporting
a charge of discrimination.”

(Id. ¶ 28.)

Relying on the facts sets forth above, Plaintiff now brings
claims for discrimination and retaliation pursuant to 42 U.S.C.
§§ 2000e-2, 2000e-3 in violation of Title VII of the Civil Rights
Act of 1964 and pursuant to 42 U.S.C. 1983 for deprivations of
her equal protection rights afforded under the Fourteenth
Amendment.
III. DISCUSSION
Defendants answered [Doc. No. 19] the amended complaint on
November 18, 2013, and subsequently filed the pending motion to
partially dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6).

Although Defendants seeks partial dismissal under

Rule 12(b)(6), a motion under Rule 12(b)(6) is improper at this
stage in the litigation because “[a] Rule 12(b) motion to
7

dismiss a complaint must be filed before any responsive
pleading.”

Turbe v. Gov't of Virgin Islands, 938 F.2d 427, 428

(3d Cir. 1991).

Rather, it is Federal Rule of Civil Procedure

12(c) that provides the proper vehicle for Defendants’ motion at
this time.

Rule 12(c) provides in pertinent part that “[a]fter

the pleadings are closed ... a party may move for judgment on
the pleadings.”

FED. R. CIV. P. 12(c).

However, “[t]he difference between a motion to dismiss
pursuant to Rule 12(b)(6) and Rule 12(c) motion for judgment on
the pleadings is only a matter of timing[.]”

Newton v.

Greenwich Twp., No. 12-CV-238, 2012 WL 3715947, at*2 (D.N.J.
Aug. 27, 2012).

That is because “[a] motion for judgment on the

pleadings based on the defense that the plaintiff has failed to
state a claim is analyzed under the same standards that apply to
a Rule 12(b)(6) motion.”

Revell v. Port Auth. of N.Y. & N.J.,

598 F.3d 128, 134 (3d Cir. 2010) (citing Turbe, 938 F.2d at
428).

Accordingly, because Defendants filed an answer to the

amended complaint before filing the instant motion, their motion
is properly construed as a motion for judgment on the pleadings
made pursuant to Rule 12(c), and the Court decides the motion
under the standard for motions to dismiss brought pursuant to
Rule 12(b)(6).
In considering a motion to dismiss a complaint for failure
to state a claim upon which relief can be granted pursuant to
8

Rule 12(b)(6), a court must accept all well-pleaded allegations
in the complaint as true and view them in the light most
favorable to the plaintiff.
350 (3d Cir. 2005).

Evancho v. Fisher, 423 F.3d 347,

It is well settled that a pleading is

sufficient if it contains “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
CIV. P. 8(a)(2).

FED. R.

A district court, in weighing a motion to

dismiss, asks “‘not whether a plaintiff will ultimately prevail
but whether the claimant is entitled to offer evidence to
support the claims[.]’”

Bell Atl. Corp. v. Twombly, 550 U.S.

544, 563 n.8 (2007) (quoting Scheuer v. Rhoades, 416 U.S. 232,
236 (1974)); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953
(2009) (“Our decision in Twombly expounded the pleading standard
for ‘all civil actions[.]’”) (citation omitted).
First, under the Twombly/Iqbal standard, a district court
“must accept all of the complaint’s well pleaded facts as true,
but may disregard any legal conclusions.”

Fowler v. UPMC

Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing Iqbal,
129 S. Ct. at 1949).

Second, a district court “must then

determine whether the facts alleged in the complaint are
sufficient to show that the plaintiff has a ‘plausible claim for
relief.’”
1950).

Fowler, 578 F.3d at 211 (citing Iqbal, 129 S. Ct. at

“[A] complaint must do more than allege the plaintiff’s

entitlement to relief.”

Fowler, 578 F.3d at 211; see also
9

Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir.
2008) (“The Supreme Court’s Twombly formulation of the pleading
standard can be summed up thus: ‘stating . . . a claim requires
a complaint with enough factual matter (taken as true) to
suggest’ the required element.

This ‘does not impose a

probability requirement at the pleading stage,’ but instead
‘simply calls for enough facts to raise a reasonable expectation
that discovery will reveal evidence of’ the necessary element.”)
(citing Twombly, 550 U.S. at 556).

“The defendant bears the

burden of showing that no claim has been presented.”

Hedges v.

U.S., 404 F.3d 744, 750 (3d Cir. 2005).
IV.

ANALYSIS
Plaintiff’s amended complaint sets forth two counts.

Count

I alleges that Defendants discriminated and retaliated against
Plaintiff with respect to her compensation, terms, conditions,
and privileges of employment in violation of Title VII of the
Civil Rights Act of 1964 based on her race and her conduct in
supporting a prior charge of discrimination brought against her
employer.

Count II, brought pursuant to 42 U.S.C. § 1983,

alleges that Defendants denied Plaintiff equal protection of the
law in violation of the Fourteenth Amendment to the United
States Constitution.

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A.

Equal Protection Claims

Count II of Plaintiff’s amended complaint asserts that
“[o]n account of ... Plaintiff being an African American and on
account of her having supported a charge of discrimination, the
Defendants, Cupo and O’Brien, denied ... Plaintiff equal
protection of the law.”

(Am. Compl. ¶ 36.)

Defendants seek to

dismiss Plaintiff’s equal protection claims in Count II on the
basis that her equal protection claims, brought pursuant to 42
U.S.C. § 1983, are barred by the two year statute of limitations
governing such claims.

(Br. in Supp. of Defs.’ Mot. to Dismiss

[Doc. No. 20-1] (hereinafter, “Defs.’ Br.”), 10-11.)
Specifically, Defendants contend that the statute of limitations
bars these claims arising from Plaintiff’s 2008 reclassification
request and from her 2010 request for voluntary furlough.
at 10.)

(Id.

Plaintiff concedes that Count II of the amended

complaint alleging equal protection denials under Section 1983
“must be dismissed as the relevant statute of limitations is two
years” and the actions giving rise to these claims “occurred
more than two years prior to the filing of this complaint.”
(Pl.’s Resp. to Defs.’ Mot. to Dismiss [Doc. No. 23]
(hereinafter, “Pl.’s Resp.”), 11.)

Accordingly, Defendants’

motion will be granted with respect to Plaintiff’s equal
protection claims arising from her 2008 reclassification request

11

and her 2010 voluntary furlough request, and these claims will
be dismissed with prejudice.
Defendants also argue that Plaintiff’s claim for
retaliation is not actionable under the Equal Protection Clause
and must be dismissed.

(Defs.’ Br. 12-13.)

Citing Thomas v.

Independence Twp., 463 F.3d 285, 298 n.6 (3d Cir. 2006),
Defendants argue that Plaintiff’s claim for retaliation is not
cognizable under the Equal Protection Clause because a
retaliation claim simply does not implicate one’s equal
protection rights.

Plaintiff acknowledges that “‘a pure or

generic retaliation claim simply does not implicate the Equal
Protection Clause.’”

(Pl.’s Resp. 12.)

Plaintiff argues,

however, that the amended complaint alleges that Defendants Cupo
and O’Brien “engaged in a campaign of harassment and
intimidation in retaliation against [P]laintiff for
participating and supporting claims of discrimination.”

(Id. at

13.)
The facts alleged in the complaint, even taken as true,
amount to a claim for pure, generic retaliation and thus do not
implicate Plaintiff’s equal protection rights.

The Court is not

persuaded by Plaintiff’s attempts to turn a typical retaliation
claim into an equal protection violation.

As Defendants

correctly point out, a pure claim for retaliation is not

12

cognizable under the Equal Protection Clause, and this claim
must be dismissed with prejudice. 3
B.

Title VII Statute of Limitations

Defendants also argue that Plaintiff’s Title VII claim is
barred by the statute of limitations to the extent her claim
arises out of her April 2010 voluntary furlough request.
(Defs.’ Br. 7-9.)

Defendants contend that Plaintiff’s

allegations, and specifically her 2010 voluntary furlough
request, are based on separate, discrete acts.

(Id. at 9.)

Accordingly, Defendants assert that Plaintiff was required to
file a complaint with the EEOC within 300 days – by February 24,
2011 – regarding the significant limitations placed on her April
2010 furlough request.

(Id.)

However, Plaintiff did not file

her complaint regarding this incident until July 27, 2011, which
was 456 days after her claim accrued.

(Id.)

Thus, Defendants

maintain that this portion of Plaintiff’s Title VII claim must
be dismissed.
Apparently conceding that her Title VII claim arising out
of the April 2010 furlough request is time barred if the Court
considers it a discrete act, Plaintiff counters Defendants’
argument by claiming instead that she is alleging a continuing

3

Given the dismissal of Plaintiff’s purported claim for
retaliation under the Equal Protection Clause, the Court need
not address Defendants’ argument that Cupo and O’Brien are
entitled to qualified immunity.
13

violation of her rights over a period of time.
10.)

(Pl.’s Resp. 8-

Plaintiff asserts that she was discriminated against and

retaliated against and therefore her claims should stand.

(Id.

at 9-10.)
Specifically, Plaintiff cites to Howze v. Jones & Laughlin
Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984) for the
proposition that “the parameters of the civil action in the
district court are defined by the scope of the EEOC
investigation which can reasonably be expected to grow out of
the charge of discrimination, including new acts which occurred
during the pendency of the proceedings before the Commission.”
(Pl.s’ Resp. 9.)

Relying on this narrow excerpt from Howze,

Plaintiff argues she filed an initial charge with the EEOC and
“this action by [D]efendants [regarding her 2010 furlough
request] followed the filing[,]” making it unnecessary under
Howze to file a new complaint with the EEOC alleging another act
of discrimination.

(Id. at 9-10.)

Thus, Plaintiff contends

that Defendants are incorrect in their assertion that Plaintiff
needed to file a new charge alleging another unlawful employment
practice regarding the limitations placed on her 2010 furlough
request.

(Id. at 10.)

In New Jersey, claims brought pursuant to Title VII must be
filed with the EEOC “within 300 days after the alleged unlawful
employment practice occurred.”

Bihler v. Singer Co., 710 F.2d
14

96, 97 n.2 (3d Cir. 1983) (explaining that “[p]rospective
[employment discrimination] plaintiffs have 300 days to file a
charge with the EEOC in states that have a procedure for
conciliation by state agencies, and 180 days to file if the
allegedly discriminatory act took place in a state without such
a parallel mechanism.

New Jersey falls within the former

category.”) (internal citation omitted). In employment
discrimination actions such as this, the limitations period
begins with the “time of the discriminatory act.”

Miller v.

Beneficial Mgmt. Corp., 977 F.2d 834, 842 (3d Cir. 1992).
However, where the discriminatory conduct constitutes a
“continuing violation,” “the statute of limitations begins to
run on the date of the last occurrence of discrimination, rather
than the first.”

Id.; see also West v. Philadelphia Elec. Co.,

45 F.3d 744, 754 (3d Cir. 1995) (applying a continuing violation
theory to Title VII action).

Under this doctrine, “when a

defendant’s conduct is part of a continuing practice, an action
is timely so long as the last act evidencing the continuing
practice falls within the limitations period.”

Cowell v. Palmer

Twp., 263 F.3d 286, 292 (3d Cir. 2001).
By contrast, “[e]ach discrete discriminatory act starts a
new clock for filing charges alleging that act.”

Nat'l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).

In order

for the “clock” to start, the specific discriminatory or
15

retaliatory practice must be identified.
v. Ricks, 449 U.S. 250, 257 (1980).

Delaware State Coll.

“Discrete acts such as

termination, failure to promote, denial of transfer, or refusal
to hire are easy to identify.

Each incident of discrimination

and each retaliatory adverse employment decision constitutes a
separate actionable ‘unlawful employment practice.’”
536 U.S. 101 at 114.

Morgan,

The Supreme Court has held that the

continuing violations doctrine is not applicable to Title VII
actions based on discrete discriminatory or retaliatory acts. 4
Id. at 114.

The Third Circuit has similarly recognized a non-

exhaustive list of discrete acts which includes “termination,
failure to promote, denial of transfer, refusal to hire,
wrongful suspension, wrongful discipline, denial of training,
[and] wrongful accusation.”

O'Connor v. City of Newark, 440

F.3d 125, 127 (3d Cir. 2006).
To the extent Plaintiff relies on Defendants placing
significant limitations on her voluntary furlough request as
part of her Title VII claim, the Court finds this conduct to be

4

The continuing violations doctrine is applicable and
frequently utilized in actions claiming, for example, a hostile
work environment because unlike the instant case, the hostile
work environment theory is “designed explicitly to address
situations in which the plaintiff's claim is based on the
cumulative effect of a thousand cuts, rather than on any
particular action taken by the defendant.” O'Connor v. City of
Newark, 440 F.3d 125, 128 (3d Cir. 2006).
16

discrete act, easily identifiable to Plaintiff.

This act was

also substantially separated in time from the 2008
reclassification request and the 2011 union Chief Steward issue.
Each of the three incidents alleged in Plaintiff’s amended
complaint constitutes a separate actionable unlawful employment
practice. 5

Thus, Plaintiff’s argument for the applicability of

5

Plaintiff’s argument that the Third Circuit’s ruling Howze
made it unnecessary for her to file a new charge regarding the
2010 furlough request is unavailing. Howze is not applicable to
the facts of this case. The proposition relied upon by
Plaintiff regarding the parameters of a civil action and the
scope of an EEOC investigation was not made with respect to a
determination of whether a specific claim was timely under the
300 day filing period. 750 F.2d at 1212. Rather, this concept
was articulated only in the context of deciding whether the
district court abused its discretion in denying Howze’s motion
to amend her complaint to add a claim for retaliation for her
involvement with the Jones & Laughlin Black Caucus. Id.
The only unlawful employment practice Howze alleged was a
failure to promote. Id. Because the district court did not
provide any reasons for denying leave to amend, the Third
Circuit separately analyzed whether amendment should have been
permitted, and concluded that there was no prejudice to Jones
and Laughlin as the employer. Id. The Third Circuit ultimately
permitted amendment and explained in a subsequent opinion that
"[t]he discrimination and retaliation claims [Howze sought to
bring] were alternative allegations regarding the employer's
failure to promote the plaintiff, and the facts supporting the
former allegation were the same as those supporting the latter."
Barzanty v. Verizon PA, Inc., 361 F. App'x 411, 414 (3d Cir.
2010) (citing Howze, 750 F.2d at 1212).
By contrast, Plaintiff here alleges three discrete unlawful
employment practices: (1) her 2008 reclassification request
being denied (failure to promote); (2) her 2010 furlough request
being substantially limited (wrongful denial of leave); and (3)
her inability to fully perform as the union Chief Steward
(wrongful denial of performance of duties). These are separate
discrete acts with different facts underlying each one, and
cannot be considered as “alternative allegations” for the same
unlawful employment practice as was the case in Howze.
17

the continuing violations doctrine is unconvincing here.
Plaintiff does not allege any facts sufficient to support her
contention that these three incidents were part of a continuing
violation.
Accordingly, in order for a charge related to the April
2010 voluntary furlough request to be timely filed under Title
VII, Plaintiff was required to file a charge on this particular
discrete act by February 24, 2011 at the latest (assuming April
30, 2010 was the date on which this conduct occurred).

As

Plaintiff concedes, she failed to file a timely EECO charge with
respect to her April 2010 furlough request.

Therefore, to the

extent Plaintiff’s Title VII claims arise out of the 2010
furlough request, this portion of her claim is barred by the
statute of limitations and must be dismissed with prejudice.
V.

CONCLUSION
For the reasons set forth herein, Defendants’ motion [Doc.

No. 20] for partial dismissal is granted.

An Order consistent

with this Opinion will be entered.

Date: June 30, 2014
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

18