ILLAS v. GLOUCESTER COUNTY SHERIFF'S DEPARTMENT, ET AL.
OPINION FILED. Signed by Judge Noel L. Hillman on 2/24/15. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil No. 14-4061 (NLH/AMD)
GLOUCESTER COUNTY SHERIFF'S
DEPARTMENT and COUNTY OF
DANIEL M. KURKOWSKI
KURKOWSKI LAW, LLC
1252 ROUTE 109 S.
CAPE MAY, NJ 08204
On behalf of plaintiff
CHRISTINE P. O'HEARN
BROWN & CONNERY, LLP
360 HADDON AVENUE
PO BOX 539
WESTMONT, NJ 08108
On behalf of defendants
HILLMAN, District Judge
Presently before the Court is the motion of defendants to
dismiss three counts of plaintiff’s four-count complaint, which
alleges discrimination, hostile work environment, and violations
of her due process and equal protection rights, because those
counts are time-barred.
For the reasons expressed below,
defendants’ motion will be granted.
Plaintiff, Sharon Illas, was hired as a sheriff’s officer
with defendant Gloucester County Sheriff’s Department in March
In May 2009, plaintiff attended an after-work function
with her coworkers.
Plaintiff claims that she had too much to
drink, and she accepted a ride to her sister’s home from
Sergeant Donald Gentile, who is a relative of the Gloucester
Plaintiff claims that she was sexually
assaulted by Gentile in his car in her sister’s driveway.
that moment until she was forced to resign on November 1, 2012,
plaintiff claims that she suffered pervasive harassment in her
workplace, including unwarranted reassignments, disciplinary
write-ups, the failure to investigate her complaints, the
failure to accommodate her physical condition, and her
coworkers’ and superiors’ demeaning, embarrassing, and “nitpicking” treatment of her.
Plaintiff has filed a four-count complaint against
Gloucester County and the Sheriff’s Department 1 for violations of
the New Jersey Law Against Discrimination (“NJLAD”), N.J.S.A.
10:5–1, et seq., and for due process and equal protection
The County and its Sheriff’s Department are the same entity for
liability purposes. See Franks v. Cape May County, 2010 WL
3614193, *7 (D.N.J. 2010) (citing N.J.S.A. 40A:14–118 and
violations of the federal and state constitutions.
have moved to dismiss plaintiff’s complaint for claims that
arise under the NJLAD prior to May 22, 2012 because plaintiff’s
claims are time-barred under the two-year statute of
Plaintiff has opposed defendants’ motion, arguing
that her claims are not barred under the continuing violation
Subject matter jurisdiction
Plaintiff has brought her claims for violations of the
federal and New Jersey constitutions, as well as under New
Jersey state law.
This Court has jurisdiction over plaintiff’s
federal claims under 28 U.S.C. § 1331, and supplemental
jurisdiction over plaintiff’s state law claims under 28 U.S.C. §
Standard for Motion to Dismiss
When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted
pursuant to Federal Rule of Civil Procedure 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.
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005).
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.”
Under the liberal
federal pleading rules, it is not necessary to plead evidence,
and it is not necessary to plead all the facts that serve as a
basis for the claim.
446 (3d Cir. 1977).
Bogosian v. Gulf Oil Corp., 562 F.2d 434,
However, “[a]lthough the Federal Rules of
Civil Procedure do not require a claimant to set forth an
intricately detailed description of the asserted basis for
relief, they do require that the pleadings give defendant fair
notice of what the plaintiff’s claim is and the grounds upon
which it rests.”
Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S.
147, 149-50 n.3 (1984) (quotation and citation omitted).
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
Bell Atlantic 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, 556 U.S. 662, 684 (2009) (“Our decision in
Twombly expounded the pleading standard for ‘all civil actions’
. . . .”); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2009) (“Iqbal . . . provides the final nail-in-the-coffin for
the ‘no set of facts’ standard that applied to federal
complaints before Twombly.”). Following the Twombly/Iqbal
standard, the Third Circuit has instructed a two-part analysis
in reviewing a complaint under Rule 12(b)(6).
factual and legal elements of a claim should be separated; a
district court must accept all of the complaint's well-pleaded
facts as true, but may disregard any legal conclusions.
578 F.3d at 210 (citing Iqbal, 129 S. Ct. at 1950).
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.’”
Id. (quoting Iqbal, 129 S. Ct.
A complaint must do more than allege the plaintiff's
entitlement to relief.
Id.; see also Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (stating that 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”).
A court need not credit either “bald assertions” or “legal
conclusions” in a complaint when deciding a motion to dismiss.
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 142930 (3d Cir. 1997).
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) (citing Kehr Packages, Inc. v. Fidelcor,
Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).
A court in reviewing a Rule 12(b)(6) motion must only
consider the facts alleged in the pleadings, the documents
attached thereto as exhibits, and matters of judicial notice.
S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd.,
181 F.3d 410, 426 (3d Cir. 1999).
A court may consider,
however, “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.”
Pension Benefit Guar. Corp.
v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
If any other matters outside the pleadings are presented
to the court, and the court does not exclude those matters, a
Rule 12(b)(6) motion will be treated as a summary judgment
motion pursuant to Rule 56.
Fed. R. Civ. P. 12(b). 2
With regard to a motion to dismiss based on a statute of
limitations defense, the law of this Circuit (the so-called
“Third Circuit Rule”) permits a limitations defense to be raised
by a motion under Rule 12(b)(6), but only if the time alleged in
the statement of a claim shows that the cause of action has not
To support her opposition to defendants’ motion to dismiss,
plaintiff submits an affidavit, along with several other
documents, including doctors’ notes, that are outside of her
pleadings. Those items do not affect the Court’s analysis and
they will not be considered. As noted the Court accepts the
well-pleaded allegations in the complaint as true and views them
in the light most favorable to the plaintiff. Evancho v. Fisher,
423 F.3d 347, 351 (3d Cir. 2005).
been brought within the statute of limitations.
Johnson, 313 F.3d 128, 135 (3d Cir. 2002).
Defendants are seeking to dismiss Plaintiff’s NJLAD claims. 3
The NJLAD provides, “All persons shall have the opportunity to
obtain employment, . . . without discrimination because of race,
creed, color, national origin, ancestry, age, marital status,
affectional or sexual orientation, familial status, disability,
nationality, sex, gender identity or expression. . . .
opportunity is recognized as and declared to be a civil right.”
“Those commands provide the force underlying
the frequent case law refrain that the clear public policy of
[New Jersey] is to eradicate invidious discrimination from the
Alexander v. Seton Hall University, 8 A.3d 198, 202
(N.J. 2010) (quotations and citations omitted).
Plaintiff claims that she suffered such discrimination in
violation of the NJLAD from May 2009 through November 2012.
Defendants argue, however, that the NJLAD’s two-year statute of
limitations bars her NJLAD claims through May 22, 2012.
Defendants are not seeking to dismiss plaintiff’s claims for
violations of her due process and equal protection rights
arising out of claims that an internal affairs investigator
visited her home, despite knowing that she was represented by
counsel, and tried to threaten and manipulate her into dropping
her charges against Sergeant Gentile. (Pl.’s Compl. Count
Plaintiff’s complaint reveals that during her employment from
the incident in May 2009 through the date she resigned on
November 1, 2012, she took three leaves of absence, which
separate her employment into three time periods.
The first employment time period is May 2009 through
Plaintiff claims that the day after her alleged
sexual assault by Gentile, he personally had her transferred to
the warrants division, which is a plain clothes assignment.
the four years prior, plaintiff served as a uniformed sheriff’s
During the days after the alleged assault, plaintiff
claims that she told other sheriff officers what happened, and
in June 2009, plaintiff claims she reported the incident to her
superior officer, Sergeant Scott, who told her to forget about
it because people do stupid things when they are drunk.
Plaintiff claims that Sergeant Scott failed to investigate the
matter and returned to her prior duties as a sheriff’s officer.
Plaintiff also claims that she was subjected to a hostile work
environment, which she reported to Sergeant Scott to no avail.
Plaintiff also began to suffer from stomach pain, resulting
in a November 2010 surgery to remove her gall bladder.
doctor cleared her for “light duty” work in December 2010,
plaintiff claims that defendants failed to provide her any
accommodations by not giving her light duty assignments, which
further evidences a hostile work environment.
that she had no choice but to stay out of work until she could
work in her full capacity.
Plaintiff’s second employment time period spanned from
March 2011, when she was able to resume her normal work duties,
through July 19, 2011.
During this time, she claims that she
was subjected to a hostile work environment, including an
obscene text message and lewd comment from Sergeant Scott, and
her complaints to the second in command, Under-Sheriff Charles
O’Leary, were ignored.
She was also transferred to the adult
On May 6, 2011, Plaintiff was hospitalized for
stomach pain for four days.
When she asked for light duty work,
Sergeant Scott denied her request, which was also denied by two
After this, plaintiff claims that she was
subjected to more unspecified harassment by Gentile and another
On July 19, 2011, plaintiff required additional
surgery to drain a bile duct.
When she was cleared for light
duty on August 11, 2011, plaintiff claims that defendants
refused to accommodate her with light work.
She remained out of
work until May 22, 2012.
On May 22, 2012, plaintiff returned to work in a civilian
modified duty clerical position, and she reported to the head
secretary for the Sheriff.
Plaintiff claims that she was made a
pariah in the workplace, and was harassed and demeaned.
the constant stress, plaintiff went on medical leave on July 10,
2012, and she had no choice but to eventually resign on November
Defendants argue that plaintiff’s claims relating to the
alleged conduct that took place prior to May 22, 2012 are time
barred under the NJLAD’s two-year statute of limitations because
plaintiff did not file her complaint until May 13, 2014.
Plaintiff counters that, under the continuing violation
doctrine, the two-year statute of limitations did not begin to
run until the day she was forced to resign, because from May
2009 until her constructive termination on November 1, 2012, she
suffered from one long continuous string of discriminatory and
retaliatory conduct by defendants. 4
The parties do not dispute that NJLAD claims are subject to
To support the application of the continuing violation
doctrine, plaintiff cites to Berry v. Board of Supervisors, 715
F.2d 971 (5th Cir. 1983), which provided a non-exhaustive list
of three factors to aid in distinguishing between the occurrence
of isolated acts of discrimination and a persistent, ongoing
pattern, and which was adopted by the Third Circuit in Rush v.
Scott Specialty Gases, Inc., 113 F.3d 476 (3d Cir. 1997). The
U.S. Supreme Court’s decision in National Railroad Passenger
Corp. v. Morgan, 536 U.S. 101 (2002) has superseded the Berry
test. See Mandel v. M & Q Packaging Corp., 706 F.3d 157, 16667 (3d Cir. 2013) (“It is clear that there is no longer a
permanency requirement under the continuing violation doctrine
and that the Supreme Court's decision in Morgan thus supersedes
our opinions in West and Rush to the extent that we adopted
Berry.”). Since 2002, the New Jersey courts have followed
Morgan in the context of NJLAD cases. See Alexander v. Seton
Hall University, 8 A.3d 198, 203 (N.J. 2010) (explaining that
the New Jersey Supreme Court in Shepherd v. Hunterdon
Developmental Center, 803 A.2d 611 (N.J. 2002) adopted Morgan in
the NJLAD context).
a two-year statute of limitations.
Montells v. Haynes, 627 A.2d
654 (N.J. 1993) (concluding two-year statute of limitations of
N.J.S.A. 2A:14-2(a) applies to NJLAD claims).
To determine when
the limitations period begins, the nature of the conduct said to
violate the NJLAD must be considered.
termination and other similar abrupt, singular adverse
employment actions that are attributable to invidious
discrimination generally are immediately known injuries, whose
two-year statute of limitations period commences on the day they
Alexander, 8 A.3d at 202 (citing Roa v. Roa, 985 A.2d
1225 (N.J. 2010) (“A discrete retaliatory or discriminatory act
occurs on the day that it happens.”)).
When, however, “the complained-of conduct constitutes a
series of separate acts that collectively constitute one
unlawful employment practice, the entire claim may be timely if
filed within two years of the date on which the last component
Id. at 203 (citation and internal quotation
The “continuing violation” doctrine,
recognized under federal Title VII law as an appropriate
equitable exception to the strict application of a statute of
limitations, has provided the analytic framework that has been
used in the assessment of a NJLAD hostile workplace environment
Id. (citations omitted) (explaining that the New Jersey
courts “turned to the equitable doctrine for assistance in
addressing the thorny factual circumstances of an ongoing
workplace harassment claim that involved alleged incidents of
both discrete and non-discrete acts of discriminatory workplace
“[T]he continuing violation theory was developed
to allow for the aggregation of acts, each of which, in itself,
might not have alerted the employee of the existence of a claim,
but which together show a pattern of discrimination.”
204 (citation omitted).
The doctrine does not permit, however,
“the aggregation of discrete discriminatory acts for the
purposes of reviving an untimely act of discrimination that the
victim knew or should have known was actionable.”
Plaintiff’s complaint here is an amalgam of discrete acts
and general allegations of hostile work environment and
During plaintiff’s first period of employment,
plaintiff alleges what can be considered four discrete acts of
conduct said to violate the NJLAD: (1) the May 2009 sexual
assault; (2) her transfer to the warrants division; (3) Sergeant
Scott’s refusal to investigate her complaints; and (4)
defendants’ refusal to provide her with light duty work. 5
Defendants argue that they cannot be held liable for the
conduct of its employees after work hours in circumstances
completely unrelated to work. Defendants also argue that they
were not required to provide light duty work to plaintiff.
Because the Court will dismiss plaintiff’s claims based on
events prior to May 2012, the Court does not need to address
National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 110
(2002) (explaining that “discrete acts” are easy to identify as
discriminatory, such as termination, failure to promote, denial
of transfer, or refusal to hire).
In addition to these discrete
acts, plaintiff makes a general allegation that she was
“subjected to a hostile work environment by Sgt. Gentile and
other superior officers and employees of Defendants,” but she
does not provide any more specificity as to how they were
(Compl. ¶ 17.)
During plaintiff’s second time period of employment from
March 2011 through August 2011, plaintiff alleges what could be
construed to be a series of discrete and non-discrete
discriminatory acts by various actors, including disciplinary
write-ups, transfer to the adult probation unit, unwarranted
discipline, an obscene text message, and a lewd comment.
plaintiff became ill again and her request for light duty work
was rejected, plaintiff suffered an alleged discrete act of
discrimination for failure to accommodate.
Plaintiff essentially concedes that many of the alleged
acts of her superiors were discrete acts that were independently
actionable, including defendants’ failure to accommodate her.
(See Pl. Opp. Br. at 14.)
It appears, however, that plaintiff
these arguments at this time.
views the defendants’ alleged refusal to provide her with light
duty work to be acts in violation of the NJLAD which persisted
every day even during her time out of work from December 2011
through March 2011 and again from August 2011 through May 22,
This serves, she contends, to link the two employment
periods together into one continuous violation not barred by the
statute of limitations.
Plaintiff’s position is untenable.
The defendants’ alleged
discrimination by failing to accommodate her physical condition
is a discrete act, actionable at the time the act occurred. 6
“‘Discrete discriminatory acts are not actionable if time
barred, even when they are related to acts alleged in timely
Each discrete discriminatory act starts a new
clock for filing charges alleging that act.
therefore, must be filed within the [statutorily prescribed]
time period after the discrete discriminatory act occurred.’”
Roa, 985 A.2d at 1231-32 (quoting Morgan, 536 U.S. at 113); see
also Johnson v. State, 2013 WL 3329400, *2 (N.J. Super. App.
To state a claim under the NJLAD for failure to accommodate, a
plaintiff “must show that he or she (1) had a disability; (2)
was otherwise qualified to participate in the activity or
program at issue; and (3) was denied the benefits of the program
or otherwise discriminated against because of his or her
disability.” Wojtkowiak v. New Jersey Motor Vehicle Com'n, --A.3 ---, 2014 WL 7403848, *5 (N.J. Super. App. Div. 2015)
(explaining that the plaintiff must also show whether the
accommodation was reasonable).
Div. 2013) (“Because plaintiff concedes that each of the
discrete acts alleged in his complaint are independently
actionable, his argument that these acts ‘trigger’ the
continuing violation doctrine must fail.”); Diaz v. Lezanski,
2011 WL 2115671, *8 (D.N.J. 2011) (explaining even though the
plaintiff alleged a continuing failure to accommodate that
started at the beginning of the 2006–2007 school year and
continued throughout the remainder of her employment, the
complaint pleaded only two discrete instances of failure to
accommodate, the first being in September of 2006, when she
claimed her requests for an elevator key and to have a single
work station for the upcoming school year were denied, and
holding that any claim for this first alleged failure to
accommodate was time-barred by the applicable two-year statute
of limitations because she should have known of any constructive
or actual failure by September 2006, but she did not file her
action until January 1, 2009, well after the two-year period had
run); Durham v. Atlantic City Elec. Co., 2010 WL 3906673, *9
(D.N.J. 2010) (finding that plaintiff’s NJLAD failure-toaccommodate claims accrued no later than November 21, 2005
because that was when the defendant unequivocally informed the
plaintiff that it was denying his request for an accommodation
as an eight-hour dispatcher, removing his pay and job
protection, and transferring him to a non-union position);
Pisarz v. PPL Corp., 2010 WL 4942536, *3 (M.D. Pa. 2010)
(holding that the defendant's alleged failure to accommodate the
plaintiff by denying his request for a special chair is a
discrete act of discrimination) (citing Tobin v. Liberty Mutual
Ins. Co., 553 F.3d 121, 129 (1st Cir. 2009) (holding that when
an employee's request for accommodation is refused, “the refusal
is a discrete discriminatory act triggering the statutory
limitations period”); Zankel v. Temple Univ., 245 F. App'x 196,
197 (3d Cir. 2007) (affirming the district court's dismissal of
the plaintiff's complaint where plaintiff filed her EEOC
complaint more than three hundred days after she made her final
request for accommodation)); Mercer v. Southeastern Pennsylvania
Transit Authority, 26 F. Supp. 3d 432, 442 (E.D. Pa. 2014)
(employer's denial of a request for a reasonable accommodation
is a discrete act of discrimination that is an independently
actionable unlawful employment practice under the ADA).
For the conduct that occurred prior to May 22, 2012,
plaintiff has alleged, at most, two independent continuing
violation claims based on an aggregation of plaintiff’s
allegations of hostile work environment.
See Morgan, 536 U.S.
at 115 (explaining that a hostile work environment claim is
different in kind from discrete acts because “their very nature
involves repeated conduct,” and unlawful employment practice
“cannot be said to occur on any particular day. It occurs over a
series of days or perhaps years and, in direct contrast to
discrete acts, a single act of harassment may not be actionable
on its own”).
This classification of her claims does not save
them, however, because defendants’ alleged failure to
accommodate plaintiff in December 2010 and August 2011 caused
any claims for a hostile work environment up to those dates to
accrue on December 2010 and August 2011, at the time of
defendants’ last discriminatory act of allegedly failing to
accommodate her with light duty work.
See Morgan, 536 U.S. at
117 (explaining that a continuing violation is a series of
separate acts that collectively constitute one unlawful
employment practice, and that “[s]uch a cause of action accrues
on the date on which the last component act occurred”). 7
The Court does not question plaintiff’s contention that she
did not pursue her claims for defendants’ alleged discrete acts
prior to her November 2012 resignation because she feared the
Defendants cite to a series of cases that found that the
continuing violation doctrine does not apply to claims that
encompass periods of lengthy leaves of absence. (See Def. Reply
Br. at 3-5.) The Court views these cases to be distinguishable
on their facts, notes that most pre-date Morgan, and that they
fail to establish a bright-line rule that the continuing
violation doctrine cannot be implicated if a plaintiff takes a
leave of absence during a period of claims relating to a hostile
work environment. Accordingly, we do not determine that the
absences themselves preclude the finding of a continuing
violation. Rather, we simply hold that the failures to
accommodate were discreet acts triggering the running of the
statute of limitations.
loss of her job and because she held the belief that defendants
would handle the matter internally.
(Pl. Opp. Br. at 14.)
purpose of a statute of limitations, however, is to prevent the
litigation of stale claims, and “‘to stimulate activity and
punish negligence and promote repose by giving security and
stability to human affairs.’”
Kownacki v. Saddle Brook Bd. of
Educ., 2014 WL 1809579, *6 (N.J. Super. Ct. App. Div. 2014)
(quoting Gantes v. Kason Corp., 679 A.2d 106, 110 (N.J. 1996)).
“Once memories fade, witnesses become unavailable, and evidence
is lost, courts no longer possess the capacity to distinguish
valid claims from those which are frivolous or vexatious.”
Galligan v. Westfield Centre Service, Inc., 412 A.2d 122, 124
Those purposes are important here, as plaintiff’s
claims date back five years from when she filed suit, and they
concern allegations of many actors to be proven mainly from
Consequently, because plaintiff’s attempt to save her timebarred claims under the continuing violation doctrine is
unavailing, those claims that are based on event which occurred
prior to May 22, 2012 must be dismissed. 8
The Court points out that even though plaintiff’s NJLAD claims
prior to May 2012 are time-barred, the “existence of past acts
and the employee's prior knowledge of their occurrence,  does
not bar employees from filing charges about related discrete
acts so long as the acts are independently discriminatory and
charges addressing those acts are themselves timely filed. Nor
For the reasons expressed above, defendants’ motion to
dismiss plaintiff’s NJLAD claims prior to May 22, 2012 will
An appropriate Order will be entered.
February 24, 2015
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
At Camden, New Jersey
does the statute bar an employee from using the prior acts as
background evidence in support of a timely claim.” Roa, 985
A.2d at 1232 (quoting Morgan, 536 U.S. at 113).
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