NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

______________ No. 14

- 4184

______________ DEBORAH L. SHINE ,

Appellant

v.
BAYONNE BOARD OF EDUCATION ;

JOHN DOES 1

- 5; JANE DOES 1

- 5

______________ On Appeal from the Unite d States District Court for the District of N ew Jersey (D.C. No. 2

- 13

- cv
- 0 2784) District Judge: Honorable Susan D. Wigenton

______________ Submitted Under Third Circuit LAR 34. 1(a)

June 25, 2015
Before: CHAGARES, KRAUSE, and BARRY , Circuit Judges

(Fil ed : September 22, 2015 )

______________ OPINION *

______________

* This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent

.2

KRAUSE, Circuit Judge : Deborah Sh ine appeals the dismis sal with prejudice of her employment
discrimination and constitutional claims against the Bayonne Board of Education (the “Board”) , as well as the subseq uent gr ant of sanctions against her attorney. 1 B ecause Shine’s claims were time barr ed and her counsel compelled the Board to enga ge in wasteful, needless, and avoidable litigation, w e will affirm

. I. Background Because we write primarily for the parties, we recite only those facts necessary to
our conclusion. From 2005 to 2009, Shine served in various teaching and admi nistrative capacities for the Board

. She was then grant ed a year
- long leave of absence and returned to the Board as a spec ia l education te acher for the 2010

- 11 school year

. Upon her return , she sent a detailed letter t o the Superintendent of Schools , alleging that the Board had
failed to promote her to a permanent administrative position because of her sex and race. Though her letter was f

orwarded to the U.S. Equal Employ ment Opportunity Commission (“EEOC ”), she neither filed a formal charge of d is crimination nor received a

r ight to sue letter. Shine alleges that a t intermittent periods during the 2010

- 11 school year, she
served as acting principal at her school, but unlike similarly situated male employees, she

1 The District Court had jurisdiction to hear the case under 28 U.S.C. §§ 1331 and 1367. We have jurisdiction to he ar the appeal under 28 U.S.C. § 1291.3

was not compensated for this additional work. Shine submitted a letter of resignation to the Board on March 3, 2011, and worked her last day on May 6, 2011. Shine brought suit i n the District Court for the District of New Jersey on April 30, 2013, alleging violations of the First and Fourteenth Amendment s under 42 U.S.C. § 1983, Title VII of the Civil Rights Act of 1964, the Equal Pay Act (“EPA”), Title IX of
the Education Amendm ents of 1972, and the Conscientious Employment Protection Act (“CEPA”), as well as common law claims of constructive discharge and breach of the implied covenant of good faith and fair dealing. Shine withdrew her CEPA claim and t he
B oard moved to dismiss all remaining causes of action except the breach of implied covenant of good faith and fair dealing claim , arguing that they were time barred. The District Court largely agreed, dismissing all but the Title VII claim and providing Shine thirty days to ame nd. The Court also ordered that when filing her amended complaint , Shine needed to plead that she exhausted her Title VII administrative remedies. Finally,
the Court also ordered that to the extent Shine believed she was underpaid as a result of
discrimi nation, she needed to specifically allege when such underpayment occurred

. In the first step of a concerning pattern, Shine ’s counsel late filed a largely
identical First Amended Complaint (“FAC”) that did not attempt to remedy the myriad
deficiencies n oted by the District Court and that even included the CEPA claim Shine’s counsel previously had withdrawn

. In response , the Board made numerous requests to Shine’s counsel that he remedy his error , and Shine’s counsel admitted the filing was a
mistake and agreed to withdraw the pleading

. Despite these promises, however, he n ever4

d id so. T hus , thirty

- five days after initially notifying Shine’ s counsel of the deficient FAC, and after repeatedly warning him that it would move for sanctions if the filing was not withdrawn , the Board moved to strike and requested sanctions in the amount of the
fees and costs it incurred in doing so

. Continuing his troubling course of conduct , Shine ’s counsel late filed his r esponse to the Board’s motion

. In doing so, some fifty

- five days after first being notified of his

error, he effectively withdrew the FAC by a ttaching a proposed Second Amended Complaint (“ SAC ”) and requesting leave to file it. T hough t he SAC put forward new
claims under the Employee Retirement Income S ecurity Act (“ ERISA ”) and the New Jersey Wage Payment Law (“NJWPL”) , it again made few substantive additions and again failed to plead administrative exhaustion under Title VII. The District Court denied leave to amend, finding the SAC procedurally defic ient and substantively futile. I t dismissed with prejudice the § 1983 and discrimination
claims , and dismissed without prejudice t he breach of implied covenant of good faith and
fai r dealing, NJWPL , and ERISA c laims. 2 The District Court then granted the Board’s
motion for sanctions , awarding it fees and costs as a result of Shine’s c ounsel’s failure to withdraw an admittedly deficient, repetitive, and unresponsive pleading. Pursuant to the

2 Shine does not appeal the dismissal of these claims.5

instructions of the District Court, the Board submitted a certifi cation of its costs. Shine’s counsel did not respond , and the Court granted sancti ons in the amount of $12,132.11. 3
II. Discussion Shine’s briefing is not a model of clarity. It appears, however, that she argues, first, that the § 1983 and discrimination cla ims in the SAC were not futile ; second, that the District Court erred in sanctioning her attorney ; and third, that the District Court
should have recused itself due to a perceived conflict. We address these issues in turn, reviewing the first two for abus e of discretion, s ee Great W. Mining & Mineral Co. v.
Fox Rothschild L.L.P. , 615 F.3d 159, 163 (3d Cir. 2010) (leave to amend); DiPaolo v.
Moran , 407 F.3d 140, 144 (3d Cir. 2005) (sanctions) , and the third for plain error, see Selkridge v. United of Omaha Life Ins. Co. , 360 F.3d 155, 166 (3d Cir. 2004).

A. Denial of Leave to Amend Shine first argues that the District Court abused its discretion in failing to allow her SAC. We disagree. After a party has amended its complaint once, it may do so again
“on ly with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). While leave to amend should be granted freely, a court may deny a motion to amend where there is “undue delay, bad faith or dilatory motive on the part of the

m ovant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of

3 The District Court ordered that sanctions be lodged against Shine’s counsel, rather than Shine.6

the amendment.” Foman v. Davis , 371 U.S. 178, 182 (1962); see also Budhun v. Rea ding Hosp. & Med. Ctr. , 765 F.3d 245, 259 (3d Cir. 2014) . A claim is futi le “if the amended complaint would not survive a motion to dismiss for failure to state a claim.” Budhun , 765 F.3d at 259. A nd a complaint , in turn, fails to state a claim where a plaintiff fails “ to plead ‘ enough facts to state a claim to relief that is plausible on its face. ’ ” Id. (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007) ). Here the District Court correctly
found that , considering the allegations of the SAC a long with the indisputably authentic documents upon which the complaint was based, see Pension Ben efit Guar. Cor p. v. White Consol. Indus. , 998 F.2d 1192, 1196 (3d Cir. 1993), Shine failed to state a claim. Shine’s § 1983, Title IX, and Title VII claims ce nter around the failure of the Board to provide her with a permanent administrative posi tion prior to her leave of
absence. 4 Because § 1983 and Title IX have no statute of limitations, such claims must be brought pursuant to New Jersey’s two

- year statute of limitations for personal injury

tort s
. See Dique v. N.J. State Police , 603 F.3d 181, 185 (3d Cir. 2010); Bougher v. Univ. of Pittsburgh ̧ 882 F.2d 74, 77

- 78 (3d Cir. 1989). T hat limitations period “begins to run[]

‘ when the plaintiff knew or should have known of the injury upon which its action is
based. ’ ” Kach v. Hose , 589 F.3d 626, 634 (3d Cir. 2009) (quoting Samer ic Corp. v. City

4 To the extent Shine also alleges an ongoing hostile work en vironment or constructive discharge, her complaint utterly fails to provide sufficient factual underpinnings for such a claim. See Twombly , 550 U.S. at 555 (“[A] plainti ff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires mor e than labels and conclusions, and a formulaic recitation of the elements of a cau se of action will not do [.]”) (second alteration in original).7

of Phila ., 142 F.3d 582, 599 (3d Cir. 1998) ). Here the limitations period began to run, at the latest, on August 26, 2010 , when Shine provided her detailed allegations of
discrimination to the Superintendent of Schools

. Her claims, brought more than two years later, therefore fail as a matter of law

. 5
Shine’s EPA claim , based upon her allegation that she was not properly

c ompensated when she intermittently assumed administrative duties, similarly fails.
The two

- year limitations period for a violation of the EPA begins when a plaintiff receives her last offending paycheck. See Cardenas v. Massey , 269 F.3d 251, 257 (3d
Cir . 200 1). Thus, Shine must have received her last offending paycheck after April 30,
2011

— the very end of her tenure with the Board

— in order for her claim to survive. 6 But
alt hough given numerous opportunities to specify when this unequal pay occurred, sh e

5 Shine’s argument that her claims are saved by the continuing violations doctrine is without merit. The con tinuing violations doctrine allo ws a plaintiff in limited circumstances to pursue a claim for discriminatory conduct that is otherwise time barred i f at least one act that constitutes the ongoing claim falls within the applicable limitations period. See M

andel v. M & Q Packaging Corp. , 706 F.3d 157, 165

- 66 (3d Cir. 2013)

. A discrete act , however, like Shine’s failure to promote claim, does not qualify for relief under the doctrine. See id. at 165

.

6 Shine did not adequately plead that the Board committ ed a willful violation that would extend the EPA’s statute of limitations to three years. 29 U.S.C. § 255(a). A violation is willful if the employer “knew or showed reckless disregard for the matter of whether its conduct was prohibited.” McLaughlin v. Richland Shoe Co. , 486 U.S. 128, 133 (1988). Shine pleaded no facts plausibly alleging that the Board acted with knowledge or reckless disregard of its legal obligation, and instead stated in a conclusory fashion that “Defendant violated the Equal Pay Act when it compensated Plaintiff [ at ] a rate of pay substantially below that paid to male counterparts, whose positions required the performance of substantially equal work.” App. A216.8

failed to do so , and the District Court thus did not abuse its discretion when it denied
leave to amend. Finally, while there were a number of bases for it do so, the District Court properly found Shine’s Title VII claims futile for failure to exhaust he r administrative
remedies

. Title VII requires a plaintiff to file a charge of discrimination with the EEOC within 180 days of the alleged discriminatory practice, or 300 days where there was an appropriate cross

- filing of a charge with a state agency. Se e Burgh v. Borough Council of Borough of Montrose , 251 F.3d 465, 472 (3d Cir. 2001) . F ailure to exhaust administrative remedies is generally fatal to a Title VII c laim. See , e.g. , W ebb v. City of
Phila. , 562 F.3d 256, 26 2

- 6 3 (3d Cir. 2009). Shine does n ot dispute that she failed to
exhaust her administrative remedies , and thus the District Court properly found that she
failed to state a claim. 7

B. Grant of Sanctions
The District Court was also within its discretion to sanction Shine’s counsel under
Rule 1 1. Rule 11 “ is intended to discourage pleadings that are frivolous, legally unreasonable, or without factual foundation, even though the paper was not filed in subjective bad faith.” Lieb v. Topstone Indu s . Inc. , 788 F.2d 151, 157 (3d Cir. 1986)

7 Shine focused much of her brief on whether or not administrative reme dies need to be exhausted under Title IX , rather than Title VII . While it is true that Ti tle IX has no such requirement , the District Court clarified for Shine that she needed to plead that she exhausted her Title VII claim

. In any event , both Shine’s Ti tle VII an d Title IX claims were time barred as a matter of law. See supra at 6

- 8.9

(interna l quotation marks omitted). Shine argues that her counsel’s submission of the nearly identical FAC was accidental. So it may have been. It is clear, however, that the District Court did not impose sanctions for counsel’s inadvertent filing, but rather f or his repeated refusal to withdraw an admittedly deficient document , despite numerous promises to do so. The District Court rightly determined that a s a result of this conduct , the Board was forced to file a motion to strike a document that all parties l ong understood
was deficient

. Rule 11 s anctions are meant to deter precisely this form of redundant and
avoidable litigat ion, and these sanctions were appropriate ly tailored by the District Court to the specific costs incurred by the Board in moving to st rike

. See Doering v. Union C ty

. Bd. of Chosen Freeholders , 857 F.2d 191, 193 (3d Cir. 1988) ( stating that Rule 11

“ provides for compensation to defendants to reimburse them for legal fees that they
shoul d not have been forced to incur ”).

C. Recusal Shine’ s final argument, that the District Court should have disclosed and recused
itself based on an alleged social relationship between the District Judge and an individual
who happens to share real estate with the President of the Board , fares no better

. S ect ion 455(a) of Title 28 of the United States Code provides that “any

. . . judge

.

. . of the United States shall disqualify [herself] in any proceeding in which [her] impartiality might reasonably be questioned.” The test for recusal is “whether a

reasona ble person, with knowledge of all the facts, would conclude that the judge’s impartiality might reasonably be questioned.” In re Kensington Int’l, Ltd. , 368 F.3d 289,10

296 (3d Cir. 2004) (internal quotation mark omitted). W here, as here, a party raises a recusal argument for the first time on appeal, we review the District Court’s decision not to recuse for plain error. See Selkridge v. United of Omaha Life Ins. Co. , 360 F.3d 155, 166 (3d Cir. 2004). Upon a careful review of the record, and in view of t he indirectness and remoteness of the relationship alleged, w e find nothing that would lead a reasonable person to question the District Court’s impartiality. See In re Kensington , 368 F.3d at 296; s ee also Cheney v. U.S. Dist. Ct. , 541 U.S. 913, 916 (200 4) (Scalia, J.) (in chambers) (noting that friendship , without more, is ordinarily not a grounds for recusal). Accordingly, the District Court did not plainly err in its failure to disclose or to recuse sua sponte.
* * * For the above stated reasons, we will affirm the District Court’s Orders dismissing
Shine’s § 1983 and discrimination claims with prejudice and sanctioning Shine’s counsel

. Finding no error whatsoever, we will also affirm the District Court’s decision not to sua sponte recuse itself fro m this matter.