BROWN v. RAILROAD GROUP LIMITED LIABILITY COMPANY et al

Filing 13

OPINION. Signed by Judge Noel L. Hillman on 4/7/2017. (tf, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JESSE BROWN, JR.,
1:16-cv-04602-NLH-AMD
Plaintiff,
OPINION

v.
RAILROAD GROUP LIMITED
LIABILITY COMPANY, et al.,
Defendants.

APPEARANCES:
CAROLINE HOPE MILLER
DEREK SMITH LAW GROUP PLLC
1845 WALNUT STREET
SUITE 1600
PHILADELPHIA, PA 19004
On behalf of Plaintiff
JOSEPH G. ANTINORI
BROWN & CONNERY, LLP
360 HADDON AVENUE
PO BOX 539
WESTMONT, NJ 08108
On behalf of Defendants
HILLMAN, District Judge
This 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.

BACKGROUND & DISCUSSION
Plaintiff, 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.
Plaintiff 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. 1

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This Court has jurisdiction over Plaintiff’s federal claims
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Defendants 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 timebarred 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.
Plaintiff 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.’”
N.J. 555, 985 A.2d 1225 (N.J. 2010)).

Id. (quoting Roa v. Roa, 200
Here, all of Plaintiff’s

under 28 U.S.C. § 1331, and supplemental jurisdiction over
Plaintiff’s state law claims under 28 U.S.C. § 1367.
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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.
As this 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).
Moreover, Plaintiff has not articulated how any equitable
tolling principles would be applicable here.
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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

Plaintiff did not have counsel when the EEOC right-to-sue letter
was issued, and even if it was issued the day his NJLAD statute of
limitations expired, the statute of limitations for a NJLAD claim
is not affected by the administrative process.
Consequently, because Plaintiff’s NJLAD claims were filed
beyond the two-year statute of limitations, they must be
dismissed.

An appropriate Order will be entered granting

Defendants’ motion to dismiss those claims.

Date: April 7, 2017
At Camden, New Jersey

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

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