DEERING v. HACKENSACK BOARD OF EDUCATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

ERIC DEERING,

Plaintiff,

Civ. No. 20-3890 (KM) (JBC)

v.

HACKENSACK BOARD OF OPINION

EDUCATION AND JOHN/JANE DOES

A THROUGH D,

Defendants.

KEVIN MCNULTY, U.S.D.J.:

Plaintiff Eric Deering, a math teacher employed by Hackensack Board of

Education (“BOE”), has sued BOE for violations of Title VII of the Civil Rights

Act of 1964 and the New Jersey Law Against Discrimination. BOE now moves

to dismiss portions of the Complaint under Federal Rule of Civil Procedure

12(b)(6), arguing that certain allegations are time-barred. Deering does not

really dispute that certain individually actionable incidents occurred outside

the limitation period, but argues that the complaint states an ongoing hostile

work environment claim, extending into the limitation period.

For the reasons set forth below, the motion to dismiss is DENIED.

I. Background1

Deering has been employed by BOE as a mathematics teacher since

2006.2 (Compl. ¶ 14-15.) Deering, who is African American, alleges that BOE

discriminated against him based on his race. (Id. ¶ 54.) Among other

allegations, Deering asserts that he was “reprimanded for actions that his [non-

African American] colleagues took as well, though they faced no discipline” and

that he was “denied the opportunity for potential career advancements”

because white employees were given preferential treatment. (Pl. Brf. at 7.)

Many of the alleged incidents involve disciplinary memos entered into his

personnel file. Deering alleges that, on an unspecified date, Principal Andrea

Oates-Parchment “wrongfully” filed a disciplinary warning in Deering’s

personnel file regarding his tone with a co-worker. (Compl. ¶ 20.) On another

occasion, after Deering told two “out of control” students to “go sit down” and

“be quiet,” Oates-Parchment appeared to encourage the students to write a

complaint against Deering which was made part of his file. (Id. ¶ 21.) According

to Deering, students frequently make complaints against other teachers, but

those complaints are not entered into their personnel files. (Id. ¶ 21.) On a

third occasion, Deering’s Mathematics Supervisor wrote a memorandum

stating he had witnessed Deering handling situations in a “firm manner,” but

1 For ease of reference, certain key items from the record will be abbreviated as

follows:

“DE_” = Docket Entry in this Case

“Compl.” = Complaint (DE 1)

“Def. Brf.” = Memorandum of Law in Support of

Defendant’s Motion to Dismiss (DE 8)

“Pl. Brf.” = Memorandum of Law in Opposition to

Defendant’s Motion to Dismiss (DE 9)

2 The facts are described as alleged in the Complaint. For purposes of a Rule

12(b)(6) motion, the well-pleaded factual allegations of the Complaint are assumed to

be true. See Section II, infra.

these accusations were not reviewed and Deering had no opportunity to

respond. (Id. ¶ 22.)

After a February 2008 incident, a memorandum was entered into

Deering’s file, asserting that he was “arrogant and unprofessional” in

communicating with a coworker. (Id. ¶ 24.) Deering requested that the incident

be removed from his file, but the request was denied. He was advised to contact

his union representative and consider transferring districts. (Id. ¶ 26.)

In April 2010, an argument with a student which allegedly involved

“raised voices and raised hands to each other’s faces” was documented in

Deering’s personnel file. (Id. ¶ 29-30.) The New Jersey Department of Children

and Families investigated and deemed the accusation unfounded, but this was

not documented in Deering’s file. (Id. ¶ 32.)

In November 2014, a memorandum was issued against Deering stating

that he had compromised the confidentiality of three students’ grades by

disclosing them in front of other students. (Id. ¶ 34.) Deering refused to sign

the report and filed a grievance disputing the students’ accounts. (Id. ¶ 35.) A

memorandum was then added to Deering’s file stating that one of the three

students was being transferred out of Deering’s class and noting that this was

the third parent request that a student be transferred from Deering’s class. (Id.

¶¶ 36-37.) Deering states that students are frequently transferred out of

teachers’ classrooms but that other teachers are not written up for it. (Id. ¶ 37.)

In September 2016, the Assistant Superintendent of Schools introduced

herself to Deering as though they had not met. (Id. ¶ 39.) Deering filed a

complaint over the comment, which he found condescending. (Id. ¶ 40.)

In October 2017, Deering verbally reprimanded a student. (Id. ¶ 43.) The

student alleged that Deering asked her “why are you walking around with that

ugly face?” and reported that one of her friends told her that Deering had said

“if it wasn’t for the law that he would hurt her.” (Id. ¶ 44.) Following the

incident, in November 2017, Deering was suspended with pay. (Id. ¶ 47.) In

January 2018, tenure charges were filed, and Deering was suspended without

pay. A tenure hearing was held in August 2019. (Id. ¶ 48.) The arbitrator ruled

that Deering was entitled to back pay, but mandated anger management

programming and the loss of Deering’s step and salary adjustment for 2018-

2019. (Id.)

Upon Deering’s return to the school, he faced inappropriate and

disrespectful conduct from “multiple parties,” including a student who told him

to shut up, using profane language and a racial slur; Deering reported the

incident, but the student was not disciplined. (Id. ¶ 51.) Deering also alleges

that on some unspecified date, he was assigned to teach social studies, while a

less-qualified white teacher was assigned to teach math. (Compl. at ¶ 55.)

Deering completed an Equal Employment Opportunity Commission

Questionnaire on January 3, 2020, and obtained a Right to Sue notice. (Id. ¶

11.)

II. Standard of Review

Federal Rule of Civil Procedure 8(a) does not require that a complaint

contain detailed factual allegations. Nevertheless, “a plaintiff’s obligation to

provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will

not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Phillips v.

Cnty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (Rule 8 “requires a

‘showing’ rather than a blanket assertion of an entitlement to relief.” (citation

omitted)). Thus, the complaint’s factual allegations must be sufficient to raise a

plaintiff’s right to relief above a speculative level, so that a claim is “plausible

on its face.” Twombly, 550 U.S. at 570; see also West Run Student Hous.

Assocs., LLC v. Huntington Nat. Bank, 712 F.3d 165, 169 (3d Cir. 2013). That

facial-plausibility standard is met “when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(citing Twombly, 550 U.S. at 556). While “[t]he plausibility standard is not akin

to a ‘probability requirement’ . . . it asks for more than a sheer possibility.” Id.

Rule 12(b)(6) provides for the dismissal of a complaint if it fails to state a

claim upon which relief can be granted. The defendant, as the moving party,

bears the burden of showing that no claim has been stated. Animal Science

Products, Inc. v. China Minmetals Corp., 654 F.3d 462, 469 n.9 (3d Cir. 2011).

For the purposes of a motion to dismiss, the facts alleged in the complaint are

accepted as true and all reasonable inferences are drawn in favor of the

plaintiff. New Jersey Carpenters & the Trustees Thereof v. Tishman Const. Corp.

of New Jersey, 760 F.3d 297, 302 (3d Cir. 2014).

The statute of limitations is an affirmative defense. See Fed. R. Civ. P.

8(c)(1). “Technically, the Federal Rules of Civil Procedure require a defendant to

plead an affirmative defense, like a statute of limitations defense, in the

answer, not in a motion to dismiss.” Schmidt v. Skolas, 770 F.3d 241, 249 (3d

Cir. 2014). Nevertheless, on a Rule 12(b)(6) motion, a complaint may be

dismissed on statute of limitations grounds, but “only when the statute of

limitations defense is apparent on the face of the complaint.” Wisniewski v.

Fisher, 857 F.3d 152, 157 (3d Cir. 2017) (citing Schmidt, 770 F.3d at 249).

“Since the applicability of the statute of limitations usually involves

questions of fact for the jury,” Van Buskirk v. Carey Can. Mines,

Ltd., 760 F.2d 481, 498 (3d Cir. 1985), “if the bar is not apparent

on the face of the complaint, then it may not afford the basis for a

dismissal of the complaint under Rule 12(b)(6)[,]” Schmidt, 770

F.3d at 249 (internal quotation marks, brackets, and citation

omitted).

Fried v. JP Morgan Chase & Co., 850 F.3d 590, 604 (3d Cir. 2017). In an

appropriate case, a statute of limitations dismissal must take into account the

the applicability of tolling doctrines. See Wisniewski, 857 F.3d at 157–58

(reversing dismissal and remanding for consideration of whether time spent in

exhausting administrative remedies tolled the § 1983 limitation period).

III. Discussion

The Complaint alleges discrimination and retaliation under Title VII of

the Civil Rights Act of 1964 of the New Jersey Law Against Discrimination

(“NJLAD”). (Compl. at ¶¶ 52-60.) “Title VII prohibits discriminatory employment

practices based upon an individual’s race, color, religion, sex, or national

origin.” Shahin v. Delaware, 424 F. App'x 90, 92–93 (3d Cir. 2011) (citations

omitted). In NJLAD actions for employment discrimination, courts generally

follow Title VII precedent. Tourtellotte v. Eli Lilly & Co., 636 F. App'x 831, 842

(3d Cir. 2016) (“This Court’s discrimination inquiry is the same for claims filed

under Title VII and the NJLAD ....”) (citing Armstrong v. Burdette Tomlin Mem’l

Hosp., 438 F.3d 240, 249 (3d Cir. 2006)). The Complaint does not specifically

use the term “hostile work environment,” but Deering characterizes the claims

as such in his opposition brief. (Pl. Brf. at 7, 8.) BOE moves to dismiss all

allegations that are outside the federal and state statutes of limitations. (Def.

Brf. at 5-9.)

Title VII requires an aggrieved party to file a complaint with the EEOC

within 300 days after an actionable employment-related violation. 42 U.S.C. §

2000e-5(e)(1). NJLAD has a two-year statute of limitations. See Thomas v. Care

Plus of New Jersey, Inc., 484 F. App'x 692, 693 (3d Cir. 2012). Deering invokes

the continuing violations doctrine, which “allows a plaintiff to pursue a claim

for discriminatory conduct if he or she can demonstrate that each asserted act

by a defendant is part of a pattern and at least one of those acts occurred

within the statutory limitations period.” Sarno v. Wal-Mart Stores E., L.P., No.

CIV.A. 12-002075 JAP, 2012 WL 5880361, at *4 (D.N.J. Nov. 20, 2012)

(quoting Smith v. Twp. of E. Greenwich, 519 F. Supp. 2d 493, 505 (D.N.J. 2007)

(quotations and citations omitted)); see also Roa v. Roa, 985 A.2d 1225, 1231

(N.J. 2010) (applying the continuing violations doctrine to analogous claim

under NJLAD).

A hostile work environment claim is one such continuing violation. In

Morgan, the Supreme Court held that, while discrete discriminatory acts are

not actionable if they are time-barred, a hostile work environment claim is “a

series of separate acts that collectively constitute one ‘unlawful employment

practice.’” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). The

Supreme Court recently elaborated on Morgan, describing its holding as

follows: “[A] hostile-work-environment claim is a single ‘unlawful employment

practice’ that includes every act composing that claim, whether those acts are

independently actionable or not.” Green v. Brennan, 136 S. Ct. 1769, 1778

(2016). The entire hostile environment claim may be considered timely, then,

“[p]rovided that an act contributing to the claim occurs within the filing

period.” Morgan at 117. “[E]ven if a claim of discrimination based on a single

discriminatory act is time barred, that same act could still be used as part of

the basis for a hostile-work-environment claim, so long as one other act that

was part of that same hostile-work-environment claim occurred within the

limitation period.” Green, 136 S. Ct. at 1781 n.7 (citing Morgan, 536 U.S. at

117).

“To allege a continuing violation, the plaintiff must show that all acts

which constitute the claim are part of the same unlawful employment practice

and that at least one act falls within the applicable limitations period.” Mandel

v. M & Q Packaging Corp., 706 F.3d 157, 165–66 (3d Cir. 2013). The conduct

that occurred prior to the limitation period must have involved similar conduct

by the same individuals, suggesting a consistent ongoing pattern. Id. at 167.

Because Deering completed an EEOC questionnaire on January 3, 2020

(Compl. ¶ 11), the Title VII statute of limitations began running on March 9,

2019. Because Deering filed this lawsuit on April 9, 2020, the NJLAD limitation

period began on April 9, 2018.

For clarity, an abridged timeline of events alleged in the Complaint is

below, with events relevant to the limitation periods italicized:

February 2006: Deering’s employment begins (Id. ¶ 14)

February 2008: First dated instance of disciplinary memo in Deering’s

file (Id. ¶ 24)3

3 Deering alleges three similar events that are undated. Given the chronological

progression of the Complaint, it is likely these events occurred prior to February 2008.

(Compl. ¶¶ 20-22.)

November 2017: Most recent instance of disciplinary memo in Deering’s

file (Id. ¶ 46)

Deering suspended with pay (Id. ¶ 47)

January 2018: Tenure charges filed; Deering suspended without pay

(Id. ¶ 48)

April 9, 2018: NJLAD limitation period begins

August 2019: Tenure hearing; Deering lost step and salary adjustment

for the year (Id. ¶ 48)

March 9, 2019: Title VII limitation period begins

March 27, 2019: Incident with student who is not disciplined (Id. ¶ 51)

Only one incident, then, is alleged to have occurred within the Title VII

limitation period: On March 27, 2019, a student told Deering to shut up, using

derogatory language and a racial slur, but was not disciplined despite Deering’s

having filed a memorandum documenting the incident.4 (Compl. ¶ 51). That

incident, as well as the August 2019 tenure decision resulting in Deering’s loss

of his salary and step adjustment, occurred within the NJLAD limitation

period. (Id. ¶¶ 48, 49.)

The question, then, is whether the prior incidents are part of the same

pattern and can be deemed to be part of the same hostile work environment

claim. Deering makes the overall argument that he “has been subjected to a

racially hostile work environment for approximately twelve (12) years,” and that

over the years, he “has been reprimanded for actions that his colleagues took

as well, though they faced no discipline.” (Pl. Brf. at 7.) Taking the events

alleged in the Complaint in the light most favorable to the plaintiff, they set

forth an ongoing pattern of unfounded disciplinary action and unfair

treatment. Deering has listed at least 14 allegedly discriminatory acts since he

4 Deering also asserts that he “faced inappropriate and disrespectful conduct

from multiple parties” upon his return to Middle School (Compl. ¶ 50), but I am not

able to analyze that general allegation based on the facts provided in the Complaint.

began his employment in 2006. (Compl. at ¶¶ 20, 21, 22, 23-26, 27, 29-30, 31-

32, 34, 36-37, 39-40, 43-46, 47, 48, 51) These are plausibly alleged to amount

to “more than the occurrence of isolated or sporadic acts.” Cowell v. Palmer

Twp., 263 F.3d 286, 292 (3d Cir. 2001) (quoting West v. Philadelphia Elec. Co.,

45 F.3d 744, 755 (3d Cir. 1995); c.f. Carroll v. Delaware River Port Auth., No.

CIV.A. 13-2833 JEI, 2014 WL 116338, at *2 (D.N.J. Jan. 10, 2014) (finding no

continuous violation where plaintiff alleged only three acts over the course of

nine years). The March 2019 allegation is reasonably alleged to be sufficiently

connected to the earlier acts to constitute a continuing violation.

The question of whether the allegations are sufficient, as opposed to

merely timely, is not before the court. It is also possible that discovery may

further narrow the claim or undercut the allegation that the pattern extended

into the limitation period. See Fried v. JP Morgan Chase & Co., 850 F.3d 590,

604 (3d Cir. 2017) (noting that the applicability of the statute of limitations

“usually” involves questions of fact) (quoting Van Buskirk v. Carey Can. Mines,

Ltd., 760 F.2d 481, 498 (3d Cir. 1985)). For now, suffice it to say that the

complaint alleges a continuing pattern, consisting of a hostile work

environment that extends into the limitation period. The hostile work

environment claim, as alleged, is therefore timely.5

5 I note that certain of Deering’s allegations set forth discrete incidents

that might be individually actionable as Title VII or NJLAD violations. Deering’s

suspension on November 20, 2017 (Compl. at ¶ 47), his suspension on January 25,

2018 (id. at ¶ 48), and his loss of step and salary adjustment on August 9, 2019 (id.)

are akin to the quintessentially discrete actions described in Morgan. See O'Connor v.

City of Newark, 440 F.3d 125, 127 (3d Cir. 2006) (“We can thus take from Morgan the

following non-exhaustive list of discrete acts for which the limitation period runs from

the act: termination, failure to promote, denial of transfer, refusal to hire, wrongful

suspension, wrongful discipline, denial of training, wrongful accusation.”) (emphasis

added). If sued upon individually after the expiration of the limitation period, they

would be time-barred. Here, however, they are plausibly alleged as part of the ongoing

hostile work environment claim.

It is possible to argue that independently actionable incidents should be sued

upon promptly, and not “saved up” for use in a hostile environment claim. To the

extent O’Connor may suggest such a doctrine (in dictum and by negative implication), I

think that would be an overreading of Morgan. Green, for example, read Morgan as

follows: “[A]hostile-work-environment claim is a single ‘unlawful employment practice’

that includes every act composing that claim, whether those acts are independently

actionable or not.” Green v. Brennan, 136 S. Ct. 1769, 1778 (2016) (emphasis added).

In stating that the acts were not independently actionable, O’Connor seems to have

been making the point that such acts may be included in a hostile environment claim

even if they are not independently actionable. That interpretation best harmonizes

with Green.

Mandel, a case that cites and discusses O’Connor, also suggests that failure to

assert a timely claim for a discrete incident does not preclude its later inclusion in a

hostile work environment claim:

It is precisely because the entire hostile work environment

encompasses a single unlawful employment practice that we do

not hold, as have some of the Circuits, that the plaintiff may not

base a suit on individual acts that occurred outside the statute of

limitations unless it would have been unreasonable to expect the

plaintiff to sue before the statute ran on such conduct. The statute

does not separate individual acts that are part of the hostile

environment claim from the whole for the purposes of timely filing

and liability. And the statute does not contain a requirement that

the employee file a charge prior to 180 or 300 days ‘after’ the

single unlawful practice ‘occurred.’ Given, therefore, that the

incidents constituting a hostile work environment are part of one

unlawful employment practice, the employer may be liable for all

acts that are part of this single claim. In order for the charge to be

timely, the employee need only file a charge within 180 or 300

days of any act that is part of the hostile work environment.

Morgan, 536 U.S. at 117–18, 122 S.Ct. 2061. It is clear that there

is no longer a permanency requirement under the continuing

violation doctrine . . . . Having clarified our continuing violation

doctrine following Morgan, we find that Mandel may proceed under

a continuing violation theory.

Mandel, 706 F.3d at 166–67. Mandel went on to state that concerns about

plaintiffs storing up grievances upon which they could have filed a prompt

claim could be adequately addressed by laches:

Furthermore, to address the concern that a plaintiff might

“unreasonably” delay filing a charge, Morgan explained that employers

would have recourse, including equitable defenses such as laches.

Morgan, 536 U.S. at 121–22, 122 S.Ct. 2061. M & Q raised the doctrine

of laches as a defense, but the District Court did not consider it. In light

of our clarified doctrine, M & Q should be given an opportunity to argue

the laches defense, and the District Court should consider whether it

applies.

Id. at 167. Much of this, at any rate, exceeds the scope of what may be considered on

a motion to dismiss.

IV. Conclusion

Defendant’s motion to dismiss (DE 8) is therefore denied. An appropriate

order follows.

Dated: February 11, 2021

/s/ Kevin McNulty

____________________________________

Kevin McNulty

United States District Judge