MATEO v. FIRST TRANSIT INC.

*NOT FOR PUBLICATION*

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

MILKO V. MATEO,

Plaintiff,

Civ. Action No. 19-17302 (FLW)

v.

OPINION

FIRST TRANSIT INC.,

Defendant.

WOLFSON, Chief Judge:

Before the Court is defendant First Transit Inc.’s (“Defendant”) Motion to Dismiss plaintiff

Milko Mateo’s (“Plaintiff”) Second Amended Complaint (“SAC”). Plaintiff’s SAC asserts claims for

wrongful discharge under Pierce v. Ortho Pharmaceutical Corporation, 84 N.J. 58 (1980), and

hostile work environment in violation of the New Jersey Law Against Discrimination (“NJLAD”),

N.J.S.A. 10:5-1 et seq. Defendant contends that both of Plaintiff’s claims are untimely and that his

NJLAD claim fails to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff

has opposed the Motion. Because I conclude that both of Plaintiff’s claims are timely and that he

adequately states an NJLAD claim, Defendant’s Motion is DENIED.

I. BACKGROUND AND PROCEDURAL HISTORY

The relevant facts are derived from Plaintiff’s SAC and assumed as true for the purposes of

this motion.

Defendant is a corporation with its headquarters in Ohio, and it operates a bus company that

conducts business at Rutgers University in New Brunswick, New Jersey. ECF No. 37 ¶2. Defendant

hired Plaintiff as a bus driver on August 20, 2015. Id. ¶3.

On February 15, 2016, Plaintiff discovered a defective windshield defroster on the bus he

was driving that night. ECF No. 37 ¶5-6. Due to the limited visibility, Plaintiff had to drive with

one hand while wiping off the windshield with his other hand. Id. ¶6. Plaintiff then placed the bus

out of service due to his concern that the defective defroster created a safety risk, and thereafter,

notified his supervisor, Kim Hale. Id. ¶¶5, 7. Mr. Hale allegedly told Plaintiff to continue driving

the bus and picking up passengers, to which Plaintiff objected. Id. ¶7. Plaintiff alleges that driving

the bus in this condition violated certain Department of Transportation (DOT) safety regulations

related to defogging systems. Id. ¶8. On February 16, 2016, Plaintiff was written up for

insubordination by “Mr. Kelly,” who was apparently an employee of Defendant. Id. ¶10.

Shortly thereafter, Plaintiff alleges that Defendant took certain actions to deprive Plaintiff

of access to bus routes. On February 23, 2016, Plaintiff alleges that he inquired about a posting for

an open route, at which point the posting listed only three names. Id. ¶12. Upon his inquiry, Plaintiff

alleges that Jose Vega, a member of Defendant’s management team, removed the posting and

“changed it to the route that was going to be given to the same driver who was driving that morning.”

Id. Plaintiff alleges that Mr. Vega took similar actions on March 2, 2016, and April 8, 2016,

removing route postings after Plaintiff inquired into their availability, allegedly “to keep the routes

from going to Plaintiff.” Id. ¶13. Plaintiff alleges that he was the only driver subjected to these

actions. Id.

Plaintiff alleges that he reported or objected to several other safety violations during his

employment with Defendant. For example, on August 30, 2016, Plaintiff reported a power outage

on a bus he was driving, which Defendant allegedly ignored. Id. ¶14. Additionally, on several

occasions during the summer and fall of 2016, Plaintiff called “Ethics[ P]oint,” Defendant’s hotline

for safety issues, to report certain violations, including: a student who fell out of his wheelchair after

a bus driver slammed on the brakes; drivers driving at night with defective headlights; and buses

with defective exhaust systems, which allegedly were not fixed following Plaintiff’s complaints. Id.

Plaintiff also objected, during the summer of 2016, to driving a bus with a defective fuel gauge,

which Defendant concluded did not give rise to an issue. And, on January 12, 2017, Plaintiff noticed

a slashed tire on the bus to which he was assigned, but safety supervisor George Oshiapem allegedly

told Plaintiff that another driver had driven the bus in the same condition that day, and that Plaintiff

should drive the bus, as well. Id.

After complaining about these incidents, Plaintiff alleges that Defendant retaliated against

him with “harassing behavior and refusal to give him work [or] routes.” Id. ¶15. On September 23,

2016, Mr. Oshiapem gave Plaintiff a “coaching session” in response to an incident in which Mr.

Oshiapem claimed that Plaintiff cut too close to pedestrians and another vehicle at a red light,

triggering a camera on the bus Plaintiff was driving. Id. ¶16. However, Plaintiff alleges that, on the

night of September 22, 2016 at 9:11 p.m., at the intersection where the incident occurred, there were

no pedestrians, and the bus never came close to any other objects. Plaintiff alleges that this is an

example of the incidents that Defendant “manufactured” in order to retaliate against Plaintiff for

reporting safety violations. Id.

Plaintiff also avers that “Defendant fabricated a fraudulent written warning [d]ocument”

alleging that a bus Plaintiff operated on October 24, 2016, had an “inner shredded tire.” Id. ¶18.

According to Plaintiff, the employee who reported the shredded tire would not have been able to

see the tire in question based on the position from which he observed the tire. Id. ¶27. Plaintiff

further contends that the written warning he received contradicted the report with respect to the time

at which the shredded tire was observed. Id. ¶28-29. Plaintiff alerted Ethics Point about this incident.

Id. ¶33.

Plaintiff is a gay male, and he alleges that during 2016, “several derogatory words for

homosexuals were used freely throughout the work floor, including but not limited to the word

‘faggot.’” Id. ¶60. On February 16, 2016, Plaintiff alleges that Maria Thomas, an employee of

Defendant, asked Plaintiff why he had been yelling the word “faggot” at Mr. Hale, to which Plaintiff

responded that he had been speaking about a “foggy” windshield. Id. ¶61. Plaintiff alleges that Ms.

Thomas made this mistake “due to this slur being used constantly in the workplace.” Id. During the

summer of 2016, Plaintiff also overheard a radio conversation between Mr. Hale and a driver, Mr.

Maha, in which Mr. Maha yelled the word “faggot” at Mr. Hale. Id. ¶63. Plaintiff alleges that this

incident was never addressed and that Mr. Maha was never reprimanded, which made Plaintiff “feel

very uncomfortable.” Id.

Plaintiff also alleges that certain employees made sexual advances toward him during the

summer of 2016. In one instance, a driver—Mr. Waheeve—“kept asking Plaintiff for sexual

favors,” which Plaintiff reported to the Equal Employment Opportunities Commission (EEOC). Id.

¶62. In another incident, a driver made sexual advances toward Plaintiff, and when Plaintiff ignored

the driver, he made a derogatory comment to Plaintiff about his anatomy. Id. ¶64.

Plaintiff alleges that he reported the incidents involving derogatory slurs and alleged sexual

advances to Ethics Point in October 2016. Id. ¶¶62, 65. In response, Plaintiff alleges that Defendant

retaliated against him due to his sexual orientation and his reports to the EEOC and Ethics Point by

denying him driving shifts and imposing “other acts of hostility,” as described supra,1 which he

alleges created a “hostile work environment.” Id. ¶¶67-68.

1 Although the SAC does not specify these “other acts of hostility,” it refers to them as other acts

“described above,” which includes the allegedly fabricated safety warnings against Plaintiff in

Plaintiff alleges that he worked through April 30, 2017, the end of the spring semester. Id.

¶38. Starting on May 1, 2017, which was the first day of the summer semester, Plaintiff alleges that

Defendant refused to assign him any bus routes, resulting in a lack of work and income for Plaintiff

and commencing a “constructive discharge process.” Id. ¶39. In June 2017, Plaintiff met with Mr.

Oshiapem for a “turning and maneuvering” evaluation, during which Mr. Oshiapem purportedly did

not execute the evaluation as intended. Id. ¶40. That month, Emmanuel Wayne—the chairman of

Plaintiff’s union—held a meeting with Plaintiff and employees of Defendant to discuss Plaintiff’s

complaints and the shredded tire incident, but apparently no issues were resolved. Id. ¶41.

According to the SAC, Defendant thereafter continued to deny Plaintiff routes, leaving him without

work. Id. ¶42.

In August 2017, Plaintiff spoke by phone and email with Brad Byers, an employee with

Defendant’s human resources department, to address Defendant’s retaliatory actions. Id. ¶43. Mr.

Byers asked why Plaintiff was not working, and Plaintiff explained that Defendant refused to assign

him any bus routes in response to his complaints to Ethics Point. Id. ¶44, 46. Then, Plaintiff

requested a copy of the route schedule for the upcoming fall semester as well as his employment

history, neither of which were, allegedly, provided. Id. ¶¶45, 47.

On September 5, 2017, Plaintiff emailed Mr. Byers regarding the status of his warning

related to the shredded tire and requested that Defendant rescind the warning and restore Plaintiff’s

normal work schedule. Id. ¶49. Defendant allegedly did not take any action in response to these

requests. Id. Plaintiff also avers that, during his interactions with Mr. Byers, he provided information

related to his previous complaints, and that Mr. Byers did not take any action in response. Id. ¶52.

September and October 2016. ECF No. 37 ¶67.

Plaintiff claims that “[a]fter these meetings it was clear that the retaliation would not stop”

and that “[a]ll other drivers received routes for the summer and fall semesters except [Plaintiff].”

Id. ¶53. Plaintiff alleges that he “was constructively discharged on September 5, 2017,” as it was

“clear by that date that the defendant would not address his complaints [or] give him any routes.”

Id. Plaintiff notified Defendant on September 5, 2017, of his understanding that he had been

constructively discharged based on Defendant’s failure to assign him any routes during the summer

and fall 2017 semesters. Id. On September 11, 2017, Mr. Byers emailed Plaintiff that he had received

Plaintiff’s “email expressing his safety concerns” and thanked Plaintiff for his past service with

Defendant. Id. ¶54.2 Plaintiff alleges that Defendant’s actions caused him emotional distress,

depression, anxiety, and emotional anguish, and that he was diagnosed with posttraumatic

depression and bipolar manic disorder in April 2020. Id. ¶69.

Plaintiff filed his initial Complaint in this Court on August 28, 2019, and an Amended

Complaint on December 17, 2019, both pro se. ECF Nos. 1, 10. Following Defendant’s Motion to

Dismiss the Amended Complaint, ECF No. 20, the Court issued an Opinion dismissing certain

claims with prejudice, but giving Plaintiff leave to file a second amended complaint with respect to

his NJLAD, common law fraud, and Pierce public policy claims. ECF No. 27. Plaintiff thereafter

retained counsel and filed his Second Amended Complaint, alleging claims under Pierce and the

NJLAD. ECF No. 37. On January 11, 2021, Defendant filed its Motion to Dismiss the SAC for

failure to state a claim pursuant to Rule 12(b)(6). ECF No. 38. Plaintiff filed his Opposition on

February 5, 2021, ECF No. 42, and Defendant filed its Reply on March 4, 2021. ECF No. 43.

2 Although not alleged in the SAC, Plaintiff attached, as an exhibit to his Opposition brief, the final

“Earnings Statement” he received from Defendant on September 22, 2017. ECF No. 42-2. The

Earnings Statement covers the period between September 3 and September 16, 2017, and it includes

only holiday pay during that period; no regular pay for that period is included. Id.

II. LEGAL STANDARD

In reviewing a motion to dismiss for failure to state a claim upon which relief can be granted,

pursuant to Rule 12(b)(6), “courts accept all factual allegations as true, construe the complaint in the

light most favorable to the plaintiff, and determine whether, under any reasonable reading of the

complaint, the plaintiff may be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d

Cir. 2009) (internal quotation marks and citation omitted). While Federal Rule of Civil Procedure

8(a)6 does not require that a complaint contain detailed factual allegations, “a plaintiff’s obligation

to provide the ‘grounds’ of his ‘entitle[ment] 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) (citation omitted). Thus, to survive a Rule 12(b)(6) motion to dismiss, the

complaint must contain sufficient factual allegations to raise a plaintiff’s right to relief above the

speculative level, so that a claim “is plausible on its face.” Id. at 570; Phillips v. Cty. of Allegheny,

515 F.3d 224, 231 (3d Cir. 2008). “A claim has facial plausibility 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).

To determine whether a plaintiff has met the facial plausibility standard mandated by

Twombly and Iqbal, courts within this Circuit engage in a three-step progression. Santiago v.

Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). First, the court must “outline the elements a

plaintiff must plead to state a claim for relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).

Next, the court “peel[s] away those allegations that are no more than conclusions and thus not entitled

to the assumption of truth.” Id. Finally, where “there are well-pleaded factual allegations, the court

should assume their veracity and then determine whether they plausibly give rise to an entitlement to

relief.” Iqbal, 556 U.S. at 679.

III. DISCUSSION

A. Pierce Claim

Plaintiff first alleges, under Pierce, that he was unlawfully discharged after objecting to, or

refusing to participate in, unsafe practices that he viewed as violations of federal regulations and

public policy. Defendant argues that Plaintiff’s Pierce claim is barred by the statute of limitations.

For the reasons which follow, I conclude that Plaintiff has satisfied the statute of limitations under

Pierce.3

The parties do not dispute that Plaintiff’s Pierce claim is subject to a two-year statute of

limitations. See ECF No. 38-1 at 12; ECF No. 42 at 18 (arguing that Plaintiff’s Pierce claim, filed on

August 28, 2019, satisfies the statute of limitations because he was discharged on September 5, 2017);

N.J.S.A. 2A:14-2 (establishing two-year statute of limitations for tort claims); Day v. Wells Fargo &

Co., Civ. No. 17-6237, 2018 WL 1891476, at *4 (D.N.J. Apr. 20, 2018) (finding plaintiff’s Pierce

wrongful termination claim sounds in tort and is subject to two-year statute of limitations). The

parties also do not appear to dispute that Plaintiff’s Pierce wrongful termination claim accrued on

the date of his discharge. See ECF No. 38-1 at 13-14; ECF No. 42 at 18 (describing accrual date as

the date of Plaintiff’s “final constructive discharge”); Day, 2018 WL 1891476, at *4 (concluding

plaintiff’s Pierce wrongful termination claim “accrued” on the “date of her alleged constructive

termination”).

Rather, the parties dispute only the date on which Plaintiff was discharged. Plaintiff alleges

that he was discharged at the earliest on September 5, 2017, which is the day he notified Defendant

of his perceived constructive discharge and departure from the company. ECF No. 42 at 18. Because

3 Defendant has not contested the merits of Plaintiff’s Pierce claim. Accordingly, in this Opinion, I

only address Defendant’s argument that Plaintiff’s Pierce claim is untimely.

Plaintiff filed his initial Complaint on August 28, 2019, he argues that his Complaint is timely.4

Defendant argues that Plaintiff was constructively discharged on May 19, 2017, which is the day he

received his last regular paycheck. ECF No. 38-1 at 14.

Defendant relies primarily on the Supreme Court of New Jersey’s holding in Alderiso v.

Medical Center of Ocean City, 167 N.J. 191 (2001), for the proposition that “the date of discharge

means the last day for which an employee is paid her regular wage or salary, notwithstanding her

absence from work on that date.” Id. at 199.5 In Alderiso, the defendant notified the plaintiff—a

registered nurse—that she was being discharged for poor performance and requested that she report

to work the following day to close out her files. Id. at 195. The plaintiff did not report to work the

following day, but the defendant paid the plaintiff her regular salary through the day following the

date she received notice of her termination. Id. The Court explained that whether the plaintiff’s

complaint was timely depended on whether her claim accrued on “(1) the date . . . she received notice

of termination, (2) the last day for which she was actually paid, or (3) the first day on which she was

unemployed.” Id. at 198. The Court concluded that the plaintiff’s claim accrued on the last day for

which she was paid, making her complaint untimely. Id. at 199. In reaching that conclusion, the Court

rejected the argument that the claim accrued on the date the plaintiff received notice of her

termination, because the defendant had executed an unemployment insurance form indicating that

the plaintiff was discharged on the last day she received her regular salary. Id. The Court clarified,

4 In my Opinion addressing Defendant’s first Motion to Dismiss, I concluded that the Court will

analyze the statute of limitations period based on the date Plaintiff filed his initial Complaint. ECF

No. 27.

5 Alderiso was decided under the New Jersey Conscientious Employee Protection Act (CEPA),

N.J.S.A. 34:19-1 to -8, which protects against termination in retaliation for reporting violations of

law or public policy. However, courts have applied Alderiso’s holding regarding the accrual date of

a statute of limitations to a Pierce wrongful termination claim. Day, 2018 WL 1891476, at *4.

however, that “the date of discharge for limitations purposes does not include any subsequent date

on which severance, health, or other extended benefits are paid.” Id. (citing Bonham v. Dresser

Indus., Inc., 569 F.2d 187, 191-92 (3d Cir.1977)).

Contrary to Defendant’s contentions, Alderiso is distinguishable and does not govern this

case. In Alderiso, the defendant had already notified the plaintiff of her termination before paying

her last paycheck. Id. at 195. Thus, whether the plaintiff had been discharged on the day she received

her final paycheck was not in question. Here, other than refusing to assign routes to Plaintiff without

any explanation, thereby depriving Plaintiff of his hourly wages, Defendant provided no notice that

Plaintiff had been discharged until September 11, 2017, the date Mr. Byers responded to Plaintiff’s

September 5, 2017 email notifying Defendant of his constructive termination. In fact, between May

19 and September 5, 2017, Defendant continued to act in a way that allegedly demonstrated

Plaintiff’s continued employment. According to the SAC, in June 2017, Mr. Oshiapem administered

a turning and maneuvering evaluation to Plaintiff at one of Defendant’s facilities. ECF No. 37 ¶40.6

That same month, the chairman of Plaintiff’s union allegedly held a meeting with Plaintiff and certain

general managers employed by Defendant to discuss Plaintiff’s complaints and the shredded tire

incident. Id. ¶41. “Nothing was resolved at this meeting.” Id. Following this meeting, Plaintiff

continued seeking routes, but he was continually denied. Id. ¶42. In August 2017, Plaintiff

corresponded with Mr. Byers by phone and email. Id. ¶43. Mr. Byers allegedly inquired why Plaintiff

had not been working and why Defendant would retaliate against him, but based on Plaintiff’s

allegations, there is no indication that Mr. Byers communicated to Plaintiff that he had been

terminated. Id. Id. ¶¶44-46. Mr. Byers did not communicate his understanding that Plaintiff had been

6 Plaintiff’s Earnings Statement for the pay period ending September 16, 2017, suggests that Plaintiff

was in fact paid for attending this evaluation. ECF No. 42-2 at 1 (documenting that Plaintiff was paid

$42.00 for attending a “Safety Meeting” and $20.02 for attending a “Safety Training”).

terminated until September 11, 2017, when Mr. Byers thanked Plaintiff for his past service with

Defendant. Id. ¶54.

This conclusion is buttressed by the Supreme Court of New Jersey’s decision in Roa v. Roa,

200 N.J. 555 (2010). There, the Court confirmed that “a discharge is a discrete discriminatory act

that places an employee on notice of the existence of a cause of action and of the need to file a claim.”

Id. at 569. While Roa concerned the accrual of a retaliatory termination claim under the NJLAD, its

reasoning is equally applicable to Plaintiff’s wrongful termination claim under Pierce. In Roa, the

plaintiff sought to assert a wrongful termination claim under a “continuing violation theory,” which

“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.” Id.

The plaintiff had been terminated outside the limitations period, but he argued that the subsequent

denial of unemployment benefits in connection with his termination, which occurred within the

limitations period, made his retaliatory termination claim timely. Id. at 569-70. The Court held that

the plaintiff’s claim was untimely because “when [the plaintiff] was fired[,] he clearly knew, or

should have known, that he had been the subject of retaliation by defendants, and should have filed

his complaint within two years thereof.” Id. at 570. Thus, under Roa, notice of termination is highly

relevant for purposes of establishing the accrual date of a wrongful discharge claim.

Here, for the reasons discussed supra, Plaintiff was not on notice of his discharge until at least

September 5, 2017, when he communicated to Mr. Byers that, due to Defendant’s continuous refusal

to assign him any routes during the summer of fall of 2017, he had been constructively discharged.

Notably, Defendant does not argue that Plaintiff was, or should have been, on notice of his

termination on May 19, 2017, or at any time before September 5, 2017. Defendant merely contends

that “Alderiso does not limit itself to situations where an employee receives notice of his

termination.” ECF No. 43 at 8. However, Alderiso simply had no occasion to consider the issue of

notice, as the plaintiff was given notice of her termination before receiving her final paycheck.

Moreover, Plaintiff was paid an hourly wage, not a regular salary. Thus, whether he received

his “regular” paycheck depended on whether his supervisors assigned bus routes to him on a regular

basis. If mere receipt of what turns out to be a plaintiff’s final paycheck, without further notice of

termination, is sufficient to trigger the statute of limitations in a wrongful termination claim,

employers could—as evidently occurred here—simply stop assigning employees any work, stringing

them along while the statute of limitations runs without providing any indication that the employee

has in fact been terminated.

Accordingly, I conclude that the statute of limitations applicable to Plaintiff’s wrongful

discharge claim accrued on September 5, 2017, the date he sent his notice of constructive discharge.

Thus, Plaintiff’s Pierce claim, filed on August 28, 2019, was timely.

B. NJLAD Claim

Plaintiff’s second claim alleges that Defendant created a hostile work environment that led to

Plaintiff’s ultimate discharge, in violation of the NJLAD. Specifically, Plaintiff alleges that

Defendant’s employees freely used homophobic slurs in the workplace and that Plaintiff was subject

to unwanted sexual advances accompanied by derogatory language. Plaintiff further alleges that

Defendant retaliated against him after he lodged complaints related to these incidents with the EEOC

and through Defendant’s system for reporting ethics violations. Defendant contends that Plaintiff’s

NJLAD claim is untimely and otherwise fails to state a claim. Because I conclude that Plaintiff’s

claim satisfies the statute of limitations and states a hostile work environment claim under the

NJLAD, Defendant’s Motion to Dismiss Plaintiff’s NJLAD claim is denied.

1. Plaintiff’s NJLAD Claim Satisfies the Statute of Limitations

Claims under the NJLAD are subject to a two-year statute of limitations. Montells v. Haynes,

133 N.J. 282, 292 (1993). In determining the accrual date, the Supreme Court of New Jersey has

adopted the approach that the U.S. Supreme Court announced in National Railroad Passenger Corp.

v. Morgan, 536 U.S. 101 (2002) with respect to claims under Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq. Shepard v. Hunterton Developmental Ctr., 174 N.J. 1, 20-21 (2002).

In Morgan, the Court held that for “discrete discriminatory acts,” such as “termination, failure to

promote, denial of transfer, or refusal to hire,” the statute of limitations begins to run on the day the

act occurs. 536 U.S. at 110, 114. In contrast, for claims alleging a hostile work environment, the

employee may satisfy the statute of limitations by filing his complaint within the requisite time period

running from the day of any act that comprises the hostile environment. Id. at 118. The Court adopted

this rule because a hostile work environment “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.” Id. at

115.

Applying Morgan to claims under the NJLAD, Shepard developed the following approach:

first, if the plaintiff has alleged “one or more discrete acts of discriminatory conduct[,] . . . then [his

or her] cause of action would have accrued on the day on which those individual acts occurred”;

second, if the plaintiff has “alleged a pattern or series of acts, any one of which may not be actionable

as a discrete act, but when viewed cumulatively constitute a hostile work environment[,] . . . then [his

or her] cause of action would have accrued on the date on which the last act occurred, notwithstanding

‘that some of the component acts of the hostile work environment [have fallen] outside the statutory

time period.’” Shepard, 174 N.J. at 21 (quoting Morgan, 536 U.S. at 117). Courts refer to the second

prong of this approach as the “continuing violation theory.” Roa, 200 N.J. at 569. In Roa, the Court

clarified that the continuing violation theory does not permit plaintiffs to “aggregate[e] . . . discrete

discriminatory acts for the purpose of reviving an untimely act of discrimination that the victim knew

or should have known was actionable.” Id. “Each such ‘discrete discriminatory act starts a new clock

for filing charges alleging that act.’” Id. at 569-70 (quoting Morgan, 536 U.S. at 113).

Here, Plaintiff has “alleged a pattern or series of acts, any one of which may not be actionable

as a discrete act, but when viewed cumulatively constitute a hostile work environment.” Shepard,

174 N.J. at 21. Plaintiff alleges that, during 2016, “several derogatory words for homosexuals were

used freely through the work floor, including by not limited to the word ‘faggot.’” ECF No. 37 ¶60.

He alleges particular examples of the use of the word “faggot,” including a bus driver, Mr. Maha,

yelling that word at Mr. Hale over Defendant’s radio system. Id. ¶63. Plaintiff also alleges that two

different drivers made sexual advances toward him during the summer of 2016. One of those

drivers—Mr. Waheeve—made continuing advances, and the other “made a derogatory comment to

[Plaintiff] about his anatomy” after Plaintiff ignored the driver. Id. ¶¶62, 64. Plaintiff reported the

incident involving Mr. Waheeve to the EEOC, and he reported the use of derogatory slurs and the

sexual advances to Ethics Point. Id. ¶¶62, 65. Thereafter, Plaintiff alleges that Defendant retaliated

against him by denying him shifts and imposing “other acts of hostility,” thereby creating a hostile

work environment. Id. ¶¶66-68. Plaintiff refers to the “other acts of hostility” as those “described

above” in his SAC, which includes Defendant’s alleged fabrication of safety infractions against

Plaintiff in September and October 2016. Id. ¶¶16-18, 32. Plaintiff also alleges that he was denied

bus routes beginning on May 1, 2017, and that Defendant continued to deny him any routes during

the summer and fall of 2017. Id. ¶¶38, 42, 45, 49. Taken together, the derogatory slurs, sexual

advances, and retaliatory actions taken in response to Plaintiff’s complaints regarding these incidents,

state a claim for hostile work environment. That environment persisted through Defendant’s denial

of bus routes in September 2017 and Plaintiff’s corresponding notice of constructive discharge.

Defendant’s arguments to the contrary are unpersuasive. First, Defendant’s contention that

the final allegation related to Plaintiff’s hostile work environment claim occurred in the summer of

2016 is inconsistent with Plaintiff’s allegations. ECF No. 38-1 at 14. Rather, Plaintiff alleges that

Defendant’s retaliatory actions in response to his EEOC and Ethics Point complaints pertaining to

the use of derogatory slurs and sexual advances, including the denial of bus routes, continued during

the summer and into the fall of 2017. See ECF No. 37 ¶¶38, 41-42, 49; see also Shepard, 174 N.J. at

21-22 (considering retaliatory actions taken after plaintiffs complained about a racially hostile work

environment to all comprise the hostile environment underlying the plaintiffs’ NJLAD claim).

Second, to the extent that Defendant argues in the context of Plaintiff’s NJLAD claim that

Plaintiff has merely alleged “discrete” acts, which Plaintiff may not “aggregate[e] for the purpose of

reviving an untimely act of discrimination,” Roa, 200 N.J. at 569, that argument is without merit.

Morgan described “discrete discriminatory acts” as including “termination, failure to promote, denial

of transfer, or refusal to hire.” 536 U.S. at 114. Here, only Plaintiff’s ultimate termination in

September 2017 would qualify as a discrete act under Morgan. Yet, Plaintiff bases his hostile work

environment claim on the cumulative effects of the derogatory slurs, sexual advances, and retaliatory

actions—including route denials—allegedly taken in response to Plaintiff’s complaints regarding

these incidents. ECF No. 37 ¶¶67-68 (noting that “[a]fter these such complaints [related to the

derogatory slurs and sexual advances], as well as the previously mentioned safety complaints,

plaintiff was retaliated against by not receiving shifts and other acts of hostility as described above[,]”

which “created a hostile work environment”).

Thus, Plaintiff’s “cause of action accrued on the date of the last act in the pattern or series

of acts that comprise the continuing violation claim.” Shepard, 174 N.J. at 21-22. Here, that date is

September 5, 2017, when Plaintiff alleges that he requested the reinstatement of his routes a final

time, in response to which Defendant took no action, leading Plaintiff to submit notice of his

perceived discharge. ECF No. 37 ¶¶49, 53. Accordingly, Plaintiff’s August 28, 2019 Complaint is

timely, and I turn next to the merits.

2. Plaintiff has Stated a Claim Under the NJLAD

Plaintiff’s hostile work environment claim is based on the cumulative effect of the following

incidents and circumstances: employees’ “free[]” use of derogatory slurs in the workplace; unwanted

sexual advances against Plaintiff, which in one situation was accompanied by derogatory language;

and Defendant’s retaliatory actions against Plaintiff, including the fabrication of safety infractions

and the denial of bus routes, in response to Plaintiff’s complaints to Ethics Point and the EEOC in

connection with the derogatory slurs and unwanted advances. See ECF No. 37 ¶67. Defendant moves

to dismiss Plaintiff’s claim primarily on grounds that the derogatory slurs and unwanted advances,

by themselves, do not amount to a hostile work environment. ECF No. 38-1 at 15-17.

To state a hostile work environment claim under the NJLAD, Plaintiff must allege “that the

complained-of conduct (1) would not have occurred but for the employee’s protected status, and was

(2) severe or pervasive enough to make a (3) reasonable person believe that (4) the conditions of

employment have been altered and that the working environment is hostile or abusive.” Shepard, 174

N.J. at 24 (citing Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 603-04 (1993)).

In determining whether conduct is sufficiently severe or pervasive, courts must “look[] at all

the circumstances,’ including the ‘frequency of the discriminatory conduct; its severity; whether it is

physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably

interferes with an employee’s work performance.’” Faragher v. City of Boca Raton, 524 U.S. 775,

788 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). “[S]imple teasing, offhand

comments, and isolated incidents (unless extremely serious) will not amount to” severe or pervasive

conduct. Id.; Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir. 2005). However, even where “many

of [a] plaintiff[’s] allegations, standing alone, would be insufficient . . .,” the allegations may be

sufficient to state a claim when “[v]iewed cumulatively.” Shepard, 174 N.J. at 25-26. In Shepard,

the plaintiffs had protested against racially discriminatory treatment their supervisors had inflicted

on other employees, which led to a discrimination lawsuit against the supervisors. Id. at 8-9. The

plaintiffs alleged that their supervisors retaliated against them for supporting the lawsuit.

Specifically, the plaintiffs alleged that their supervisors made veiled comments threatening

recrimination, gave Christmas presents to the entire staff except the plaintiffs, supervised the

plaintiffs more critically than other employees, and exhibited general unfriendliness toward the

plaintiffs. Id. at 9-15. In assessing whether these actions were “severe or pervasive,” the Court noted

that “many . . ., standing alone, would be insufficient to state a cause of action,” but that “[v]iewed

cumulatively,” the allegations were “sufficient to present a hostile work environment claim to a jury.”

Id. at 26.

Here, Defendant does not appear to contest “that the complained-of conduct . . . would not

have occurred but for [Plaintiff’s] protected status” as a gay man. Shepard, 174 N.J. at 24. Indeed,

Plaintiff alleges that “several derogatory words for homosexuals,” including “faggot,” “were used

freely throughout the work floor”; that two different drivers made sexual advances toward Plaintiff

and, in one instance, directed derogatory comments at him; that Plaintiff submitted complaints to the

EEOC and Defendant’s Ethics Point related to these incidents; and that Plaintiff thereafter

experienced retaliation in the form of fabricated safety violations and the denial of bus routes. These

allegations are sufficient to establish the first prong under Lehmann for purposes of Defendant’s

Motion to Dismiss.7

7 There is no question that the derogatory slurs and unwanted sexual advances are sufficiently

connected to Plaintiff’s protected status. However, the connection between Defendant’s retaliatory

actions and Plaintiff’s protected status is less clear. Plaintiff appears to allege that Defendant took

these retaliatory actions in response to both his safety complaints and his complaints related to

harassment based on his sexual orientation. Furthermore, Plaintiff’s allegations suggest that

Defendant did not resume its practice of denying bus routes to Plaintiff until approximately six

months after Plaintiff submitted his complaint related to the derogatory slurs and unwanted sexual

advances. ECF No. 37 ¶¶39, 62, 65. These facts may weaken the connection between Defendant’s

retaliatory actions and Plaintiff’s protected status. Nevertheless, Defendant has not contested this

element under Lehmann, and it is free to do so in a subsequent motion for summary judgment. For

purposes of this Motion, Plaintiff has adequately alleged a sufficient connection between Defendant’s

retaliatory actions and his protected status as a gay man.

Plaintiff has also adequately alleged that the complained-of conduct was “severe or

pervasive.” Shepard, 174 N.J. at 24. Plaintiff alleges that “several derogatory words for homosexuals

were used freely throughout the work floor,” ECF No. 37 ¶60, suggesting that this language was used

frequently and on a consistent basis. As one example, Plaintiff points to an employee’s use of the

word “faggot” over the radio system. Id. ¶ 63. He also claims that two different employees sexually

propositioned him. Id. ¶¶62, 64. One did so persistently, see id. ¶62 (alleging that the driver “kept

asking Plaintiff for sexual favors”), and the other used derogatory language against Plaintiff when he

rebuffed the driver’s advances. Id. Defendant argues that non-supervisory employees’ use of slurs

and sexual advances against Plaintiff, each taken in isolation, constitute “[s]imple teasing, offhand

comments, and isolated incidents,” which do not amount to “severe or pervasive” conduct. Faragher,

524 U.S. at 788; ECF No. 38-1 at 16-17. Yet, the Court must “look[] at all the circumstances.”

Faragher, 524 U.S. at 786-88. In addition to the slurs and sexual advances, Plaintiff alleges that he

submitted a complaint related to these incidents to Ethics Point and the EEOC, in response to which

Defendant allegedly took no corrective action and, instead, retaliated against Plaintiff. In the fall of

2016, Plaintiff’s supervisors allegedly concocted safety violations against him, and following

Plaintiff’s objections, his supervisors again began refusing to assign him any bus routes beginning in

the spring of 2017. ECF No. 37 ¶¶65-67. The latter action was particularly severe, as it prevented

Plaintiff from earning wages throughout the summer of 2017. Considering the “cumulative effect of

the[se] various incidents,” Lehmann, 132 N.J. at 607, at the motion to dismiss stage, Plaintiff’s

allegations are sufficient to establish that Defendant’s conduct was “severe” and “pervasive.” See

Shepard, 174 N.J. at 26 (concluding that persistent retaliatory action in response to plaintiffs’

complaint regarding a racially hostile work environment were sufficiently “severe or pervasive” to

state an NJLAD claim).

The parties dispute the applicability of Taylor v. Metzger, 152 N.J. 490 (1998), which held

that “a single utterance of an epithet can, under particular circumstances, create a hostile work

environment.” Id. at 501. In Taylor, an African American police officer brought a claim for racial

harassment under the NJLAD based on allegations that the supervisor called her a “jungle bunny,” a

derogatory racial slur. Id. at 495, 498. The Court concluded the single use of this racial slur by a

supervisor against his subordinate was “severe” enough to satisfy the Lehmann standard. Id. at 506-

07; cf. Ali v. Woodbridge Twp. Sch. Dist., 957 F.3d 174, 181-82 (3d Cir. 2020) (school principal’s

references to teacher as “Mufasa,” based on his middle name, Mostafa, and “Arabia Nights,” not

sufficiently severe or pervasive because, unlike Taylor, they did not involve “an unambiguous racial

epithet,” and they were “isolated incidents”). Here, however, Plaintiff has alleged more than the

“single use” of a derogatory slur. Rather, Plaintiff has alleged that “several derogatory words for

homosexuals were used freely throughout the work floor, including but not limited to the word

‘faggot.’” ECF No. 37 ¶¶60-61, 63. He also alleges that he experienced unwanted sexual advances

on multiple occasions, at least one of which involved derogatory language directed at him. Id. ¶¶62,

64. And, he alleges that when he complained about these incidences to Defendant, he experienced

ongoing retaliation. Thus, whether the single use of a derogatory slur could support Plaintiff’s claim

has no relevance, although the use of the slur “faggot” could potentially qualify as “severe” conduct

under Taylor.

Defendant cites to several other precedents establishing that isolated epithets do not constitute

“severe or pervasive” conduct, but none address the circumstances at issue here, where Plaintiff has

alleged the persistent use of derogatory slurs combined with retaliatory actions that effectively

terminated his employment. For example, in Caver v. City of Trenton, 420 F.3d 243 (3d Cir. 2005),

the plaintiff asserted a racially hostile work environment claim based on certain employees’ use of

racial epithets and expression of support for the Ku Klux Klan, as well as the placement of racist

graffiti and flyers around the police department. Id. at 263. The court held that these comments and

actions, none of which were directed at the plaintiff, amounted to “offhand comments and isolated

incidents” that were “insufficient[,] without more[,] to establish a hostile work environment.” Id.

(internal quotations omitted). However, unlike here, where Plaintiff personally experienced

unwanted advances accompanied by derogatory language, “no racist comment . . . was ever directed

at” the plaintiff in Caver. Id. at 263. Furthermore, Caver noted that these incidents combined with

other actions, such as the plaintiff’s allegations that his supervisors reported him for unnecessary

psychological evaluations, could have established a sufficiently hostile environment. Id. at 264.

Nevertheless, because a jury had already concluded in the context of the plaintiff’s separate

retaliatory discharge claim that the psychological evaluations were not racially motivated, the Court

of Appeals declined to reverse the district court’s decision—after two years of discovery—granting

summary judgment to the defendant on the plaintiff’s hostile work environment claim. Id. at 253,

263-64. Caver is distinguishable from this case, as it was decided on a motion for summary judgment

after a jury had already ruled on certain allegations pertaining to racial hostility. Id. Furthermore, as

Caver acknowledges, derogatory slurs in combination with other actions—such as the allegedly

concocted safety violations and denial of bus routes, here—may establish a sufficiently hostile

environment.8

Finally, Plaintiff has established that a “reasonable person [could] believe that . . . the

conditions of employment have been altered and that the working environment [wa]s hostile or

abusive.” Shepard, 174 N.J. at 24. Lehmann adopted this “standard to exclude an ‘idiosyncratic

8 Defendant similarly cites to Lulis v. Barnhart, 252 F. Supp. 2d 172 (E.D. Pa. 2003), which

concluded that nine incidents of unwanted sexual attention over seventeen months, many of which

the court concluded were not in fact sexually suggestive, were not sufficiently severe or pervasive to

establish a hostile work environment claim. Id. at 176-78. But, again, Lulis does not address the

circumstances at issue, here, where Plaintiff has alleged that the frequent use of derogatory slurs and

unwanted sexual advances, combined with persistent retaliation against him for complaining about

these incidents, amounted to a hostile work environment.

response of a hypersensitive plaintiff.’” Id. at 26 (quoting Lehmann, 132 N.J. at 614). Here,

Defendant does not argue that Plaintiff has exhibited an “idiosyncratic response” or that he has

otherwise failed to satisfy this element. Indeed, Plaintiff could have reasonably believed that the

conditions of his employment had been altered when, after complaining about the regular use of

homophobic slurs and unwanted sexual advances, Defendant took retaliatory action against him by,

inter alia, refusing to assign him any bus routes, thereby effectively depriving him of the ability to

earn a living from his employment. Cf. Lehmann, 132 N.J. at 610 (concluding that plaintiffs need not

prove economic loss to state a hostile work environment claim, thereby suggesting that economic

loss resulting from defendant’s actions could, nevertheless, contribute to such an environment).

Plaintiff’s allegations that he was “singled out for such treatment” reinforces his reasonable belief

that Defendant’s actions had altered the conditions of his employment. Shepard, 174 N.J. at 26; ECF

No. 37 ¶53.

Under these circumstances, Plaintiff has adequately stated a claim under the NJLAD

sufficient to survive Defendant’s Motion to Dismiss.

IV. CONCLUSION

For the reasons set forth above, Defendant’s Motion to Dismiss Plaintiff’s Second Amended

Complaint is DENIED. An appropriate form of Order is filed herewith.

Date: August 27, 2021 /s/ Freda L. Wolfson

Hon. Freda L. Wolfson

U.S. Chief District Judge