MAGARGAL v. STATE OF NEW JERSEY et al

Filing 74

MEMORANDUM OPINION. Signed by Judge Michael A. Shipp on 4/26/2013. (gxh)

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ROBIN MAGARGAL,
Plaintiff,
Civil Action No. 07-3531 (MAS) (TJB)

v.
STATE OF NEW JERSEY,
DEPARTMENT OF MILITARY AND
VETERANS AFFAIRS,

MEMORANDUM OPINION

Defendant.

SHIPP, District Judge
This matter comes before the Court upon Defendant State of New Jersey, Department of
Military and Veterans Affairs'! ("Defendant") Motion for Summary Judgment filed on
September 21, 2012. (Def.'s Mot., ECF No. 57.) The motion seeks dismissal of Plaintiffs
Complaint in full. On October 15, 2012, Plaintiff Robin Magargal ("Plaintiff') filed Opposition.
(Pl.'s Opp'n, ECF No. 66.) Defendant filed aReply on October 19, 2012. (ECF No. 68.) The
Court has carefully considered the Parties' submissions and decided the matter without oral
argument pursuant to Federal Rule of Civil Procedure ("Rule") 78. For the reasons stated below,
and for other good cause shown, Defendant's Motion for Summary Judgment is GRANTED and
Plaintiffs Complaint is DISMISSED with prejudice.

1 The docket reflects that, in addition to the Department of Military and Veterans Affairs, the
State of New Jersey is also named as a defendant. The parties, however, seemingly exclude the
State of New Jersey from their filings. Therefore, and because it is irrelevant to the analysis, the
Court will refer only to the Department of Military and Veterans Affair as a defendant.

I.

Background
The pertinent facts required to resolve this case are undisputed and rather straightforward.

Plaintiff was employed with the New Jersey Department of Military and Veterans Affairs as a
Secretarial Assistant from 1998 until her termination on November 13, 2007. (Def.'s Mot. Ex.
C.) Generally, Plaintiff alleges that beginning on or about February 24, 2006, Defendant
committed numerous acts of discrimination and harassment, including sexual harassment,
retaliation, and other similar acts. (Am. CompI.

~~

8-9, ECF No.1 0.)

On July 27, 2007, Plaintiff, initially appearing pro se, filed a one-page handwritten
Complaint. (Compl., ECF No. 1.) In the Complaint under the heading "Jurisdiction," Plaintiff
listed "ADA of 1990 Title I, 42 US.C. 12111, et seq., [and] Title V, Section 503 of the Act, 42
U .S.C. 12203." (Id.

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2.) In the next paragraph, under the heading "Cause of Action," Plaintiff

alleged:
The State of [New Jersey] through the Department of Military [and] Veterans
Affairs and it's [sic] actors, perpetrated severe and long-term harassment against
Plaintiff, and terminated Plaintiffs 25 year employment in violation of above
jurisdictional citations.
(Id. ~ 3.)

Subsequently, Plaintiff retained counsel who, on March 19, 2008, filed an Amended
Complaint and Jury Demand on her behalf. (Am. CompI.) The Amended Complaint included the
causes of action contained in the initial Complaint but added causes of action arising under 42
US.C. § 1983 and Title VII of the Civil Rights Act of 1964,42 US.C. § 2000e, et seq. (Id.

~~

1,

11.)
Prior to filing the initial Complaint with the Court, Plaintiff filed a Charge of
Discrimination with the Equal Employment Opportunity Commission ("EEOC"). The United
State Department of Justice, Civil Rights Division ("DOJCRD") issued two "Notice of Right to

Sue" letters, dated April 18, 2007, permitting Plaintiff to proceed with a civil action within
ninety (90) days.2 (Def. 's Mot. Ex. TT.) The Parties disagree as to the exact date that Plaintiff
received the letters and when the statue of limitations period commenced. They are in agreement,
however, that the relevant period began on May 1, 2007, at the latest. 3 (PI. ' s Opp'n 5.)

II.

Legal Standard
Summary judgment is appropriate if the record shows "that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a). A district court considers the facts drawn from the "materials in the record, including
depositions, documents, electronically stored information, affidavits ... or other materials" and
must "view the inferences to be drawn from the underlying facts in the light most favorable to
the party opposing the motion." Fed. R. Civ. P. 56(c)(1)(A); Curley v. Klem, 298 F.3d 271, 276­
77 (3d Cir. 2002) (internal quotations omitted). The Court must determine "whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it is so one-sided
that one party must prevail as a matter of law." Anderson v. Liberty Lobby , 477 U.S. 242, 251-52
(1986). More precisely, summary judgment should only be granted if the evidence available
would not support a jury verdict in favor of the nonmoving party. Id. at 248-49. " [T]he mere
existence of some alleged factual dispute between the parties will not defeat an otherwise

2 Plaintiff disputes the exact amount, or composition, of the EEOC Notices she received. (PI. 's
Opp'n at 6.) Nevertheless, the record indicates that she received two Notice of Right to Sue
letters, dated April 18, 2007. One letter permits Plaintiff to initiate a civil action under Title I and
Title V of the Americans with Disabilities Act of 1990 ("ADA"). (Pi. 's Opp'n to Summ. J. Ex.
K, ECF No. 66.) The second letter permits her to do the same under Title VII. (PI. 's Opp'n to
Mot. to Dismiss Ex. A, ECF No. 44.) Additionally, each letter contains Plaintiffs handwritten
annotation "received (Tuesday), May 1,2007."
3

See n. 1, supra.

properly supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact." !d. at 247-48.

III.

Analysis
A.

Section 1983 Claim

In its motion for summary judgment, Defendant moves to dismiss Plaintiffs § 1983
claim because Defendant is not a "person" for purposes of liability. Section 1983 provides a
cause of action against "every person" who deprives another of any rights, privileges or
immunities secured by the Constitution. In general, a State or its agencies are not "person[s]"
against whom a § 1983 claim can be asserted. Lapides v. Bd. ofRegents ofUniv. Sys. of Ga. , 535
U.S. 6l3, 617 (2002) (citing Will v. Mich. Dept. of State Police, 491 U.S. 58, 66 (1989)).
Additionally, it is undisputed that defendant is a governmental entity. Hence, Plaintiff does not
present a valid claim against Defendant. Accordingly, Plaintiffs § 1983 Claim is DISMISSED
with prejudice.
B.

Claims Under Titles I and V of the ADA

Defendant moves for summary judgment dismissing Plaintiffs ADA claims on several
grounds. First, Defendant argues that any cause of action under either Title I or Title V must be
dismissed on the grounds of Eleventh Amendment sovereign immunity. (Def.' s Mot. 7.) Second,
it argues that Plaintiffs claims are barred because Plaintiff failed to timely file her claims. (Jd.
8.) Finally, it argues that Plaintiffs claim under Title V must be dismissed because Plaintiff does
not or cannot make out a prima facie case or establish a pretext. (Jd. 14.)
The Supreme Court held in Board of Trustees of the University of Alabama v. Garrett
that states enjoy Eleventh Amendment immunity from suits brought in federal court by private

individuals seeking damages under Title I of the ADA. 531 U.S. 356, 360 (2001). Plaintiffs
Title I claim, therefore, is barred.
The Third Circuit has not yet addressed whether the Eleventh Amendment bars retaliation
under Title V. Nevertheless, at least two courts in this district have noted that claims under Title
V of the ADA against the State of New Jersey are barred by the Eleventh Amendment. Foster v.
N. J. Dept. o/Transp., No . 04-101 (MLC), 2005 WL 3542462, at *5 n.7 (D.NJ. Dec. 27, 2005)

(collecting cases), ajJ'd on other grounds, 255 F. App'x 670 (3d Cir. 2007); Hughes v. New

Jersey, No. 11-1442, 2012 U.S. Dist. LEXIS 30607, at *10-11 (D.NJ. March 7, 2012). The
Court adopts the reasoning of Foster and Hughes and accordingly declines to find that Congress
abrogated sovereign immunity under Title V. The Court will not address Defendant's remaining
arguments because both of Plaintiffs claims under the ADA are barred by the Eleventh
Amendment and must therefore be DISMISSED with prejudice.

C.

Claim Under Title VII

Private actions brought under Title VII must be brought within ninety (90) days after
receiving notice from the EEOC. 42 U.S.c. § 2000e-5(f)(1). Accordingly, claims arising under
Title VII filed more than ninety (90) days after receipt of a Right to Sue letter are time-barred.
The Third Circuit has "strictly construed the 90-day period and held that, in the absence of some
equitable basis for tolling, a civil suit filed even one day late is time-barred and may be
dismissed." Burgh v. Borough Council o/Montrose, 251 F.3d 465, 470 (3d Cir. 2001).
Defendant contends that even if Plaintiffs initial Complaint was filed within the statutory
period, as Plaintiff asserts, Plaintiff s Title VII claim is, nevertheless, time-barred. (Def.' s Mot.
9-10.) This is so because 1) the initial Complaint did not contain any reference to Title VII or
assert claims thereunder, and 2) the length of time it took for Plaintiff to file her Title VII claim

must be measured with reference to the Amended Complaint, which was filed 324 days after
receipt of the Right to Sue letter. (Id.) The Court agrees.
Indeed, the Third Circuit recently addressed precisely this matter in Thompson v. Brandywine
Sch. Dis!., 478 F. App'x 718 (3d Cir. 2012). In Thompson, a pro se plaintiff initially filed a

timely complaint that only alleged Title VII violations based on religion and national origin,
although when filing with the EEOC the plaintiff alleged discrimination based on race. !d. at
719. Subsequently, and two years after receiving notice of a Right to Sue letter from the EEOC,
the plaintiff filed an amended complaint alleging he had been discriminated against based on his
race. Id. The district court concluded that the Title VII claim based on race was time-barred and
granted summary judgment. !d. The Third Circuit affirmed and noted that there was no
indication that any basis existed for tolling the limitations period. Id. at 720. Importantly, the
Thompson Court did not find that the plaintiffs earlier filing of the initial complaint featuring the

Title VII violation based on religion and national origin tolled the period during which the
plaintiff could file his race-based claim. !d. at 720. Stated differently, a party must file Title VII
claims tied to a notice of a Right to Sue letter within ninety (90) days of receipt; the filing of
related Title VII claims neither extends nor tolls that period.
Here, Plaintiff did not plead her Title VII claim within ninety (90) days of receipt of her
Notice of Right to Sue letter. The fact that her initial complaint contained factually related Title I
and Title V ADA claims does not cure that deficiency. The fact that Plaintiff is pro se does not
change that conclusion either. See Thompson, 478 F. App'x at 718. As such, Plaintiffs Title VII
claim is DISMISSED with prejudice.

IV.

Conclusion
For the reasons set forth above, and for other good cause shown, it is hereby ordered that

Defendant's Motion for Summary Judgment is GRANTED. Plaintiffs Complaint
DISMISSED with prejudice. An Order consistent with this Opinion will be entered.

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Dated: April~, 2013

UNITED STATES DISTRICT JUDGE

IS