# THEODORE v. NEWARK DEPARTMENT OF HEALTH AND COMMUNITY WELLNESS

> District Court, D. New Jersey · February 16, 2022

URL: https://www.frixlaw.com/law-library/cases/10272468

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** February 16, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10272468

## How later opinions describe it (automated extraction)

- affirming dismissal of §1981 gender discrimination claim because §1981, “on its face, is limited to issues of racial discrimination in the making and enforcing of contracts”
- recognizing retaliatory hostile environment claims
- noting that prima facie case for hostile work environment includes showing that plaintiff “suffered intentional discrimination because of race”

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

GESSY M. THEODORE Civ. No. 2:19-17726 (WJM)
Plaintiff,
OPINION
v.
NEWARK DEPARTMENT OF HEALTH
AND COMMUNITY WELLNESS, et al.
Defendants.

WILLIAM J. MARTINI, U.S.D.J.:
In this discrimination and retaliation suit by Plaintiff Gessy M. Theodore
(“Plaintiff”), Defendants Newark Department of Health and Community Wellness
(“NDH”), Mark Wade (“Wade”), and Michael Wilson (“Wilson”) (collectively
“Defendants”), move to dismiss the Third Amended Complaint pursuant to Fed. R, Civ. P.
12(b)(6). ECF No, 83, The Court decides the matter without oral argument. Fed. R, Civ. P.
78(b). After careful consideration of the parties’ submissions, and for the reasons set forth
below, Defendants’ motion to dismiss is granted in part and denied in part.
I. BACKGROUND
A, Facts
At the time of the original complaint,! Plaintiff was a 62-year-old woman of Haitian
decent. Third Amended Complaint (“TAC”), 4 16, ECF No, 80. She has worked at NDH as a
health inspector since 1997 and claims to be the most senior Registered Environmental
Health Specialist “REHS”) in her department. /d. at 915. Plaintiff alleges that since 2016,
her direct supervisor, Wilson, who is an African-American man, has overseen a campaign
of discrimination against her due to her age and national origin, including encouraging
conflict between her and her African-American co-workers based on their false perception
that she was speaking “Creole” in the office, /d. at $9 17-21, 25-27, 30-31. Plaintiff also
accuses Wilson of creating a hostile work environment in retaliation for her opposition to
his “attempts to control” and “dominate” the American Federation of State, County, and

! The facts of the initial Complaint are set forth in the Court’s March 25, 2020 Opinion. ECF No. 17, Because
Plaintiff has since amended her original Complaint, the Court includes a recitation of the facts contained in the
currently operative Third Amended Complaint.

Municipal Employees, Council 52, AFL-CIO Local 2299 (“AFSCME” or “the Union”) by
“running for [a Union] office during the 2016 election.” /d. at 9 21-23. Plaintiff also
contends that Wilson denied her requests to take continuing education classes and
prevented her from challenging disciplinary actions against her, learning about
opportunities for promotion, and voting in union elections. fd. at Ff] 33, 51-52. Although
Defendant Wade, the Director the NDH, was inforined of Plaintiffs complaints in July and
August 2017, neither he nor NDH investigated or corrected any of the unlawful conduct.
Id, at Jf 34, 35, 84-85.
On November 22, 2016, Plaintiff notified NDH in writing about the hostilities she
faced based on her national origin and thereafter, Berlyne Vilcant and Martha Duque, two
younger, less qualified inspectors were promoted over her. Id. at 4 32-33, 47. Plaintiff
claims Ms. Vilcant was promoted to provisional Assistant Chief Inspector in 2016 and then
to Health Officer for the City of Newark (“Newark”) in September 2021. Jd. at 99 41, 44.
Plaintiff fails to specify what promotion Ms. Duque received. On or about March 1, 2018,
Plaintiff surmises that because of her age, Wilson reassigned her from the predominantly
Spanish speaking East Ward of Newark to a far smaller area under the pretext of a language
barrier despite her fluency in Spanish. /d. at {J 17-18, 46.
Additionally, Plaintiff insists Wilson caused her to be expelled from the Union and
prevented her from receiving money in the settlement of a 2015 state court action instituted
by Plaintiff and 7 other inspectors against Newark (“State Court Action”) over a salary
dispute. Jd, at 7 52. At the same time, Plaintiff avers that she refused to settle her claims
believing that the settlement unfairly benefitted Defendant Choi Eng-Ferrell’s (“Eng-
Ferrell”)? white husband at the expense of Plaintiff and the other plaintiffs who were all
non-white. Jd. at | 56-58, 60-61, On August 7, 2017, Newark adopted a resolution
approving the settlement of the State Court Action with the other 7 plaintiffs. See id. at §
62, Additionally, Plaintiff claims that Wilson coerced the Union to assist him “in receiving
a pre-litigation settlement ratified by the City of Newark on July 7, 2018 from what appears
to be [settlement] funds set aside for Plaintiff.” /d. at 52-53.
On March 2, 2018, Wilson tried to terminate Plaintiff for failing to attend two
mandatory events scheduled between November 2017 and January 2018 while other non-
non-Haitian inspectors who did not attend were not disciplined. at 9] 63-65, 91. The
Union declined to represent Plaintiff during the subsequent May 31, 2018 disciplinary
proceeding, which Plaintiff posits was due to Wilson’s membership in the Union. /d. at {
66, 69. Plaintiffs hearing was conducted before Eng-Ferrell, whom Plaintiff insists was
not a neutral third party. Jd. at ff 71, 73. As a result of the hearing, Plaintiff’s termination
was downgraded to a 60-day suspension. Jd. at □ 74-75. Despite the reinstatement,
Plaintiff contends that Wilson makes customers believe she no longer works for NDH and
“continues to impose daily and hostile conditions upon Plaintiffs employment which have
included verbal harassment, name calling, imposing responsibility for other employees’
errors, and unequal pay and opportunity, and regular threats (nearly once a week as of the
? Ene-Ferrell is the Deputy Chief of Staff to the Mayor of Newark. TAC, J 13.

filing of the original Complaint) that she will be disciplined for insubordination.” Jd. at □□
75-76.
B. Administrative Filings
On or about May 30, 2018, Plaintiff filed an Affirmative Action Complaint with the
City of Newark. Jd. at § 67. On November 28, 2018, Plaintiff filed a charge of
discrimination with the Equal Employment Opportunity Commission (“EEOC”), alleging
violations of Title VI of the Civil Rights Act of 1964, 42 U.S.C § 2000¢e et seq. (Title
VIP’), id. at § 4, Ex. A. After NDH “failed to exercise its right to rebut Plaintiffs
allegations,” the EEOC issued a right to sue notice on June 17, 2019. Jd. at { 6, Ex. C.
On February 8, 2019, Plaintiff filed an Unfair Practice charge with the New Jersey
Public Employment Relations Commission (“PERC”) alleging, inter alia, the continued
harm she faces due to the Union’s failure to represent her in securing a wage adjustment
and in the loss of pay resulting from a 30-day suspension that she has since appealed to the
New Jersey Office of Administrative Law. Jd. at § 77.
C. Federal Action
Plaintiff initially filed this suit on September 6, 2019. ECF No. 1. Since then,
Plaintiff has filed four motions to amend and Defendants have now filed six motions to
dismiss. On August 13, 2020, Plaintiff voluntarily dismissed without prejudice her claims
against the Union. ECF No. 46. Currently, the Third Amended Complaint contains five-
counts in which Plaintiff alleges: 1) retaliation, hostile work environment, and
discrimination based on age and national origin pursuant to 42 U.S.C. § 1983 for violation
of 42 U.S.C. § 1981 by NDH; 2) discrimination based on race, language, and national
origin in violation of Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. §
2000e-2(a), by NDH; 3) retaliation in violation of Title VII of the Civil Rights Act of 1964,
as amended 42 U.S.C. § 2000e-3, by NDH; 4) discrimination in violation of the New Jersey
Law Against Discrimination, N.J.S.A. 10:5-1, et seg. (“NILAD”) by all Defendants; and
5) retaliation in violation of NILAD by ali Defendants.
In the present motion, Defendants move to dismiss arguing that this Court lacks
subject matter jurisdiction pursuant to the New Jersey Employer-Employee Relations Act.
Defendants also seek dismissal of the Third Amended Complaint based on principles of
res judicata, collateral estoppel, and New Jersey’s Entire Controversy Doctrine. Finally,
Defendants assert that Plaintiff fails to state a claim upon which relief can be granted. Each
contention will be addressed in turn.
Il. DISCUSSION
A. Subject Matter Jurisdiction

This Court has federal question subject matter jurisdiction over Plaintiff's §1983
and Title VII claims, see 28 U.S.C, § 1331, and supplemental jurisdiction over the NILAD
claims, see U.S.C. § 1367. However, Defendant contends that this Court lacks subject
matter jurisdiction because Plaintiff has failed to exhaust her state administration remedies
by first filing a claim with PERC regarding her numerous allegations of unfair labor
practices, Although Plaintiff states that she has filed an unfair practice charge with the
PERC, Defendants argue that that PERC claim relates only to the Union’s alleged failure
to represent her following a 30-day suspension. TAC, § 77.
“Under NJ. Stat. Ann. § 34:13A-5.2,> New Jersey’s PERC has exclusive
jurisdiction over all labor matters.” Peterson vy. City of Long Branch, N.J., No. 08-3452,
2009 WL 749589, at #7 (D.N.J. March 19, 2009) (citing Del. River Port Auth, vy. FOP,
Penn-Jersey Lodge 30, 290 F.3d 567, 578, n.21 (3d Cir, 2002)). This includes unfair
employer practices such as discrimination,’ but “PERC can only remedy discrimination
regarding the exercise of rights guaranteed by the New Jersey Employer-Employee
Relations Act (“EERA”), N.J.S.A, §§ 34:13A~-1 to 13A-21.” □□□ at *9. Thus, PERC does
not have exclusive jurisdiction over NJLAD and federal constitutional claims. See
Peterson, 2009 WL 749589, at *9; Clayton v. City of Atlantic City, 722 F. Supp. 2d 581,
n.7 (D.N.J. 2010). Moreover, “there is no general requirement that plaintiffs exhaust state
administrative remedies before bringing a § 1983 action.” James v. Richman, 547 F.3d 214,
217 (3d Cir. 2008); Patsy vy. Bd. Of Regents of Florida, 457 U.S. 496, 516 (1982) (‘we
conclude that exhaustion of state administrative remedies should not be required as a
prerequisite to bringing a state action pursuant to § 1983’), Thus, Defendants’ motion to
dismiss for lack of subject matter jurisdiction is denied.
B. Failure to State a Claim
A complaint survives a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss
ifthe Plaintiff states a claim for relief that is “plausible on its face.” Bell Atlantic Corp. V.
Twombly, 550 US. 544, 547 (2007). The movant bears the burden of showing that no claim
has been stated, Hedges v. United States, 404 F.3d 744, 750 Gd Cir. 2005). Courts accept
all factual allegations as true and draw “all inferences from the facts alleged in the light
most favorable” to plaintiffs. Phillips v. County of Allegheny, 515 F.3d 224, 228 (3d Cir.
2008). But courts do not accept “legal conclusions” as true and “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555).

3 NS.A. § 34:13A-5.2 states in pertinent part that PERC “shall make policy and establish rules and regulations
concerning employer-employee relations in public employment relating to dispute settlement, grievance procedures
and administration including enforcement of statutory provisions concerning representative elections and related
matters and to implement fully all the provisions of this act.”
4NLIS.A. § 34:13A-5.4(a)(3) provides: “Discriminating in regard to hire or tenure of employment or any term or
condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by
this act,”

1. Res Judicata, Collateral Estoppel, Entire Controversy Doctrine
Res judicata is a common-law doctrine that “provides that a cause of action between
parties that has been finally determined on the merits by a tribunal having jurisdiction
cannot be relitigated by those parties or their privies in a new proceeding.” Velasquez y.
Franz, 123 NJ. 498, 505 (1991). Res judicata precludes “not only claims that were
brought in a previous action, but also claims that could have been brought.’” Marmon Coal
Co. v. Dir., Off, of Workers' Comp. Programs, 726 ¥F 3d 387, 394 (3d Cir, 2013) (citing
Duhaney v. Att'y Gen., 621 F.3d 340, 347 (3d Cir, 2010) (internal quotation marks and
citation omitted)). Under the Entire Controversy Doctrine, which is codified at New Jersey
Rule of Court 4:30A and is essentially New Jersey’s application of traditional res judicata
principles, “‘the adjudication of a legal controversy should occur in one litigation in only
one coutt.’” Rycoline Prod., Inc. v. C & W Unlimited, 109 F.3d 883, 885 (3d Cir. 1997).
(citing DiTrolio v. Antiles, 142 □□□ 253, 267 (1995)). “The primary consideration in
determining if successive claims are part of the same controversy is whether the claims
“arise from related facts or from the same transaction or series of transactions,’” Mason v.
US Bank, 2016 WL 7189828, at *4 (D.NJ. Dec. 12, 2016) (citing DiTrolio, 142 at
267),
The affirmative defense of collateral estoppel precludes parties from re-litigating
issues where: “(1) the identical issue was previously adjudicated; (2) the issue was actually
litigated; (3) the previous determination was necessary to the decision; and (4) the party
being precluded from relitigating the issue was fully represented in the prior action.’” Smith
v. Borough of Dunmore, 516 F. App'x 194, 199 (3d Cir. 2013) Ginternal cites omitted),
Defendants urge the Court to dismiss this entire matter based on res judicata,
collateral estoppel, and the Entire Controversy Doctrine because 1) there was a final
judgment in the State Court Action 2) involving the same parties, and that 3) many of her
claims in this lawsuit either arise out of the same transaction or occurrence as her claim in
the prior action or could have been raised in that action, Defendants are mistaken. While
Plaintiff and the City of Newark were parties to an action in which there was a final
judgment, the 2015 State Court Action arose out of a salary dispute between NDH and 8
REHS inspectors. Plaintiffs current claims, in contrast, are discrimination and retaliation
claims arising out of instances of purported disparate treatment based on age and race
including a settlement approved in 2017 that she argues unfairly benefitted the only white
plaintiff. See Peterson v. City of Long Branch, N.J., No. 08-3452, 2009 WL 749589, at *7
(D.N.J. Mar. 19, 2009) (The [D]octrine does not apply to bar component claims that are
unknown, unarisen, or unaccrued at the time of the original action.”) (citing Mystic Isle
Dev. Corp. v. Perskie & Nehmad, 142 N.J.310, 323)). The cause of action in this case does
not arise from the same facts as the prior state action. Nor are the issues in a discrimination
and retaliation claims the same as those in a wage dispute. Accordingly, Defendants’
motion to dismiss on the basis of res judicata, collateral estoppel, and the Entire
Controversy Doctrine is denied.

2 42 U.S.C. § 1983 Claim for Violation of § 1981 Against NDH (First Cause
of Action)
In Count I, Plaintiff seeks to hold NDH liable under 42 U.S.C § 1983? for violations
of 42 ULS.C. § 1981° by discriminating against her due to her race and national origin,’ see
e.g., | 81, 82, 86, 91, creating a hostile work environment due to her national origin, and
retaliating against her for opposing Defendants’ discriminatory conduct, see e.g., 9 81, 82,
94. These claims against NDH for municipal liability fail as a matter of law.
Section 1983 “provides the exclusive federal damages remedy for the violation of
the rights guaranteed by § 1981 when the claim is pressed against a state actor,” Jett v.
Dallas Independent School Dist., 491 U.S. 701, 736 (1989), To prevail on such a claim, a
plaintiff “must show that the violation of his ‘right to make contracts’ protected by § 1981
was caused by a custom or policy within the meaning of Monell and subsequent case.” Id.
Under Monell, liability against local governing bodies cannot be on a theory of respondeat
superior, and instead attaches only when “execution of a government’s policy or custom,
whether made by its lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury.” Monell v. New York City Department of Social
Services, 436 U.S. 658, 694 (1978); McGovern v. City of Philadelphia, 554 F.3d 114, 121
Gd Cir. 2009). That is, municipal liability “must be founded upon evidence that the
government unit itself supported a violation of” federal constitutional or statutory rights,
Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990) (citing Monell, 436 U.S. at 691-
95). A plaintiff must demonstrate that through its deliberate conduct, the municipality was
the moving force behind the plaintiffs injury. Monell, 436 U.S. at 689.

542U.S.C. § 1983 states in relevant part: “Every person who, under color of any statute, ordinance, regulation, custom,
or usage, ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other proper proceeding for redress .. ..” Section 1983 “does
not confer any substantive rights.” Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1079 (3d Cir. 1990) (citing
Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 €1979)).
® 42 ULS.C. § 1981 provides equal rights “as is enjoyed by white citizens” to “all persons” to “make and enforce
contracts,” which is defined to include “the making, performance, modification, and termination of contracts, and the
enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.”
To the extent that Plaintiff secks remedy under §1983 for violations of §1981 based on national origin-based
discrimination, see TAC { 105, this Court has already noted that, “[s]ection 1981 prohibits discrimination on the basis
of race, not solely on the basis of national origin. See Saint Francis Coil. vy. Al-Khazraji, 481 U.S. 604, 613 (1987).”
March 25, 2020 Op, at 3; Anjeline vy. New York Times Co,, 200 F.3d 73, 98 Gd Cir. 1999) (affirming dismissal of
§1981 gender discrimination claim because §1981, “on its face, is limited to issues of racial discrimination in the
making and enforcing of contracts”); see also Wesley vy. Palace Rehab. & Care Ctr, L.L.C., 3 F. Supp. 3d 221, 229
(D.N.J. 2014) (“a majority of courts in the Third Circuit have held that § 1981 does net apply to claims based on
national origin discrimination.”).

“Policy is made when a ‘decisionmaker possess[ing] final authority to establish
municipal policy with respect to the action’ issues an official proclamation, policy, or
edict.” Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990) (citing
Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986)). “A course of conduct is
considered to be a ‘custom’ when, though not authorized by law, ‘such practices of state
officials [are] so permanent and well settled’ as to virtually constitute law.” /d. (citing
Monell, 436 U.S. at 690). “In either of these cases, it is incumbent upon a plaintiff to show
that a policymaker is responsible either for the policy or, through acquiescence, for the
custom,” /d.
Here, Plaintiff characterizes Defendants Eng-Ferrell, Wilson, and Wade as “policy
makers” for NDH, but does not identify any NDH official governmental “policy” that was
executed resulting in injury to Plaintiff. Moreover, the only improper “custom|[s]
attributable to the City of Newark” that Plaintiff pleads resulted in violations of § 1981 are
Wilson’s “domination of AFSCME” for unlawful discriminatory purposes and “the August
2, 2017 and June 7, 2018 resolutions passed by the City of Newark.” TAC, § 98. Then in
her opposition brief, Plaintiff argues that Defendants’ “discriminatory promotions and
failure to promote” her is another improper “custom.” Pl.’s Opp’n to Defs.’ Mot. to Dismiss
at 9, ECF No. 87,
None of Plaintiffs allegations of a custom or policy state a viable claim for
municipality liability under Monell. First, assuming that Wilson’s control over the Union
constitutes a “custom,” it can only arguably be the custom of the Union and not that of the
City or NDH. Second, apart from bald cursory conclusions, Plaintiff has not pled any facts
to show in what manner the State Court Action settlement unfairly benefitted Eng-Ferrell’s
husband nor has Plaintiff specified anywhere, whether in her brief or in her pleadings, how
Newark’s approval of State Court settlements is a “custom” so well-settled that it
constitutes law.
Finally, under the Mone// liability analysis, Plaintiff must also establish causation,
that is, a “plausible nexus” or “affirmative link” between the municipality’s custom and
“specific deprivation of constitutional rights at issue.” Bielevicz v. Dubinon, 915 F.2d 845,
850 (Gd Cir. 1990) (citing Estate of Bailey by Oare v. County of York, 768 F.2d 503, 507
(3d Cir.1985). Assuming Plaintiff had even properly pled that the failure to promote her
was a “custom,” Plaintiff does not allege any facts to adequately establish that any disparate
treatment she received was motivated by racial bias in deprivation of the rights guaranteed
by § 1981. See Brown v. Philip Morris Inc.,, 250 F.3d 789, 796 Gd Cir, 2001) (Section
1981 “prohibits racial discrimination in the making and enforcement of contracts and
property transactions.”); see supra, n.7. For example, nothing in the TAC supports
Plaintiff's conclusory statements that either the discipline she received for failing to attend
two mandatory meetings or that the failure to promote her was due to racial animus. See

TAC 4] 65, 91. In fact, Plaintiff fails to even identify the race of those co-workers who
were not disciplined or of Ms. Vilcant and Ms. Duque, who were promoted instead of her.
See TAC 4 47; ¥ 55-56 (indicating that those employees are in fact, non-white). Likewise,
other than alleging that Eng-Ferrell’s husband is white, Plaintiff does not set forth any facts
to suggest that settlement of the State Court Action constituted disparate treatment based
on race, See id. at 457. In short, even if Plaintiff had specifically identified an unlawful
policy or well-settled custom, Plaintiff has not established a prima facie case of intentional
racial discrimination. See TAC { 87.
Absent an underlying § 1981 violation, Plaintiff's retaliation and hostile work
environment claims also fail as a matter of law. See Est. of Oliva ex rel. McHugh v. New
Jersey, 604 F.3d 788, 798 (3d Cir. 2010) (“In a retaliation case a plaintiff must demonstrate
that there had been an underlying section 1981 violation.”); see also Ocasio v. Lehigh
Valley Fam. Health Ctr., 368 F, Supp. 2d 370, 376 (E.D., Pa. 2003), affd, 92 F. App'x 876
(3d Cir. 2004) (noting that prima facie case for hostile work environment includes showing
that plaintiff “suffered intentional discrimination because of race”),
In sum, Plaintiff has not plead plausibly municipal liability for violation of § 1981
under Monell, Defendants’ motion to dismiss Plaintiffs §1983 race-based discrimination
claims against NDH in Count Lis granted. Plaintiff's § 1983 claims for violations of rights
afforded under § 1981 are dismissed.
3. Title VH Claims against NDH for Race-based, Language-based, National
Origin Discrimination (Second Cause of Action), Retaliation (Third Cause
of Action, ® and ADEA Claims against all Defendants (Fifth Cause of Action)
Except for hostile work environment claims,’ the Court has already dismissed with
prejudice Plaintiff's Age Discrimination in Employment Act (“ADEA”) and Title VII
claims associated with events occurring before February 1, 2018 because those claims
occurred more than 300 days prior to the EEOC filing on November 28, 2018, See March
25, 2020 and April 16, 2020 Opinions, ECF Nos. 17, 21. Consequently, Defendants move

VII of the Civil Rights Act of 1964 forbids employment discrimination against ‘any individual’ based on that
individual's ‘race, color, religion, sex, or national origin.’” Burlington N. & Santa Fe Ry, Co. v, White, 548 U.S. 53,
56 (2006) (citing 42 U.S.C, § 2000e-2(a)). “A separate section of the Act—its antiretaliation provision—prohibits an
employer from “discriminat[ing] against’ an employee or job applicant because that individual ‘opposed any practice’
made unlawful by Title VII or ‘made a charge, testified, assisted, or participated in’ a Title VII proceeding or
investigation,” /d. (citing § 2000e—2(a)).
° “Hostile work environments, . . . are made up of separate acts; even if the acts are not actionable in their own right,
they may collectively comprise a discriminatory employment practice, Smith v. RB Distribution, Inc., 498 F. Supp. 3d
645, 657 (ED. Pa. 2026) (citing National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115-117 (2002)), “Because
a hostile work environment ‘cannot be said to occur on any particular day,’ plaintiffs may recover for acts that predate
the statutory period if the acts are part of a ‘continuing violation.’” /d. (citing Morgan, 536 U.S. at 115-117).

to dismiss as time-barred Title VII claims in the TAC that relate to activity occurring before
February 1, 2018, specifically those set forth in 106, 107, 109, 110, 115, and 117.
While Plaintiff's pleading is far from the model of clarity or specificity, the Court
must draw all inferences in the light most favorable to Plaintiff on a motion to dismiss.
“The Third Circuit has recognized [Title VII] retaliatory hostile work environment claims
where an employee is subjected to a hostile work environment in retaliation for having
engaged in protected activity.” Smith v. RB Distribution, Inc., 498 F. Supp. 3d 645, 661
(E.D. Pa, 2020) (citing Jensen v. Potter, 435 F.3d 444, 448-450 (3d Cir. 2006), abrogated
on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct.
2405, 165 L.Ed.2d 345 (2006)); see also Komis y. Secretary of the United States
Department of Labor, 918 F.3d 289, 293 3d Cir. 2019) (recognizing retaliatory hostile
environment claims). Thus, Defendants’ motion to dismiss is granted only to the extent
that 9] 106-109, 115, and 117 are not part of Plaintiff's claim of a hostile work environment
that continued beyond February 1, 2018. See TAC J 106 (alleging creation of hostile work
environment “in the following ways”). Defendants’ motion to dismiss is granted as to §
110, which pertains to the 2017 distribution of settlement funds and does not appear to
have been not pled as part of a hostile work environment claim.
Next, Defendants seek dismissal of any untimely ADEA claims. In 133-141,
Plaintiff avers that in violation of the ADEA, 29 U.S.C. § 623(a)(1), which prohibits age
discrimination, and 29 U.S.C. § 623(d), which prohibits retaliating against an employee for
opposing a prohibited practice, NDH unlawfully promoted Ms. Vilcant to Assistant Chief
Inspector in 2016. /d. at {J 135-140. Insofar as Plaintiff is asserting an age or retaliation
claim under the ADEA based on the failure to promote her in 2016, that claim was already
deemed time-barred and dismissed with prejudice. See March 25, 2020 Op. at 3.
Accordingly, any age discrimination and retaliation ADEA claims in 9] 133-141 are
dismissed.
4, Violation of NJLAD as to all Defendants (Fourth Cause of Action) and
Retaliation in Violation of NJLAD as to all Defendants (Fifth Cause of
Action)
Defendants move to dismiss as time-barred any NJLAD claims contained in J 133-
142 relating to Ms. Vilcant’s purported discriminatory promotion in 2016. This Court has
already dismissed with prejudice NJLAD claims that are based on conduct occurring
outside of the applicable two-year statute of limitations except to the extent that that it is
part of a continuing hostile work environment. See March 25, 2020 Op. at 6. Plaintiff
commenced this action on September 6, 2019. Accordingly, absent equitable tolling, which
Plaintiff has not argued applies, any viable NJLAD age discrimination and retaliation

claims must have accrued prior to September 6, 2017.!° Thus, Defendants are correct that
Plaintiff's NJLAD age discrimination or retaliation claim based on Ms. Vilcant’s 2016
promotion is time-barred. See N.J.S.A. 2A:14-2(a), Defendants’ motion to dismiss the
NJLAD claims in TAC {ff 133-141 is granted, Defendants’ motion is denied as to 4142
as that appears to relate to Ms. Vilcant’s 2021 promotion.
Ill. CONCLUSION
For the reasons noted above, Defendants’ motion to dismiss is granted in part and
denied in part. Defendants’ motion to dismiss for lack of subject matter jurisdiction and
to dismiss based on res judicata, collateral estoppel, or Entire Controversy Doctrine is
denied. Defendants’ motion to dismiss Plaintiffs § 1983 claims for violations of § 1981 is
granted. Except for allegations that are not part of a continuing hostile work environment,
Defendants’ motion to dismiss is granted as to Plaintiffs Title VII and ADEA claims that
relate to activities occurring prior to February 1, 2018 and as to Plaintiff's NILAD age
discrimination and retaliation claims that accrued prior to September 6, 2017. Accordingly,
110 and 133-141 are dismissed. Any dismissal of claims granted in this Opinion and
accompanying Order is with prejudice. Plaintiff has already had ample opportunity to
amend her pleading to allege sufficient facts to support a claim for relief. See e.g., March
25, 2020 Op., ECF No. 17; July 28, 2020 Op., ECF 43; Feb. 10, 2021 Op., ECF No. 50;
Oct. 14, 2021 Op., ECF No. 64.
MM at”
ILLIAMAL MARTINI, U.S.D.J.
February 16, 2022

Section IILD, of the Court’s March 25, 2020 Opinion, ECF No, 17, is amended to state that those allegations that
occurred before September 6, 2017 (instead of November 28, 2016) are dismissed with prejudice except to the extent
the conduct is part ofa hostile work environment continuing beyond that date. See N.J.S.A. 2A:14-2 (requiring “action
at law” to be commenced within two years of accrual of cause of action). Defendants’ contention that claims occurring
prior to December 6, 2019 are barred by the two-year statute of limitations is clearly erroneous.
10

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10272468. Public record. Not legal advice.