2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-30-2011

Talbert v. Judiciary of the State of NJ

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-2530

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Recommended Citation

"Talbert v. Judiciary of the State of NJ" (2011). 2011 Decisions. Paper 1570.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

No. 10-2530

_____________

PATRICIA MEDINA TALBERT, 

 Appellant

v.

THE JUDICIARY OF THE STATE OF NEW JERSEY,

DEBORAH T. PORITZ, JAMES R. ZAZZALI, STUART RABNER,

PATRICIA K. COSTELLO, JOSEPH A. FALCONE

_____________

 

On Appeal from the United States District Court

for the District of New Jersey 

(District Court No. 2-09-cv-02782)

District Judge: The Honorable Stanley R. Chesler

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

January 25, 2011

______________

Before: McKEE, Chief Judge, SMITH, Circuit Judge,

and STEARNS, District Judge*

(Filed: March 30, 2011)

_____________________

OPINION

_____________________

SMITH, Circuit Judge.

New Jersey Superior Court Judge Patricia Talbert was not reappointed to a 

 * The Honorable Richard G. Stearns, United States District Judge for the District of 

Massachusetts, sitting by designation.
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judgeship after her initial seven-year term expired in 2007. Talbert believes that the 

governor’s decision was the culmination of a years-long campaign of discrimination and 

retaliation waged against her by various colleagues and the judiciary as a whole. She

alleges that they conspired to thwart the advancement of her career by assigning her to 

undesirable divisions of the court and declining to support her renomination. The 

complaint she has filed invokes 42 U.S.C. §§ 1981 and 1983, as well as Title VII of the 

Civil Rights Act of 1964. 

The District Court dismissed the entirety of Talbert’s six-count complaint on the 

grounds that: (i) there was no proximate cause, as the decision not to reappoint was up to 

the governor alone; (ii) the decision to assign the plaintiff to another department was a 

lateral transfer and not an adverse employment action; and (iii) the statute of limitations 

had expired. The District Court had jurisdiction under 28 U.S.C. § 1331. We have 

jurisdiction, 28 U.S.C. § 1291, and exercise plenary review, Mayer v. Belichick, 605 F.3d 

223, 229 (3d Cir. 2010). We will affirm.

All claims against the state judiciary fail. The New Jersey court system is an 

unconsenting state entity entitled to immunity under the Eleventh Amendment. See Benn 

v. First Judicial Dist., 426 F.3d 233, 240–41 (3d Cir. 2005).

Insofar as Talbert’s claims against the individual defendants seek compensation 

for the consequences of the governor’s decision not to reappoint her—in the form of, for 

instance, lost wages and emotional injuries resulting from being forced to leave the 

bench—they must fail for a lack of proximate causation. All of the statutes invoked in 

the complaint demand that the plaintiff prove that the defendant was the legal cause of 
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her injuries. See Rivas v. City of Passaic, 365 F.3d 181, 193 (3d Cir. 2004) (a § 1983 suit

requires proof of proximate causation); McGovern v. City of Phila., 554 F.3d 114, 120–

21 (3d Cir. 2009) (rights guaranteed by § 1981 are enforceable against state governmental 

units only in an action under § 1983); Moore v. City of Phila., 461 F.3d 331, 340–41 (3d 

Cir. 2006) (plaintiff in a Title VII retaliation case must show, inter alia, that “there is a 

causal link between the protected activity and the discharge”); Pivirotto v. Innovative 

Sys., 191 F.3d 344, 352 (3d Cir. 1999) (prima facie case in a Title VII discrimination suit 

involves showing that the defendant took the challenged employment action). We agree 

with the District Court that the independence of the governor’s decision not to reappoint 

the plaintiff precludes holding the individual defendants responsible. See Troup v. 

Sarasota Cnty., 419 F.3d 1160, 1166 (11th Cir. 2005) (no causation in a § 1983 case 

where “the continuum between Defendant’s action and the ultimate harm is occupied by 

the conduct of deliberative and autonomous decision-makers”) (citation and internal 

quotation marks omitted). 

Most of the balance of Talbert’s complaint is barred by the applicable statutes of 

limitations.1

 1 The District Court identified one alleged adverse employment action occurring within 

the applicable period: the investigation of her discrimination claim by the Administrative Office 

of the Courts of New Jersey, and the requirement that the plaintiff participate in that 

investigation. We are in agreement with the District Court that such an investigation cannot 

constitute an adverse employment action. The court properly dismissed that claim on the merits.

 Title VII claims must be filed with the Equal Employment Opportunity 

Commission within 300 days of the occurrence of the complained-of employment action. 

42 U.S.C. § 2000e-5(e)(1); Burgh v. Borough Council of Montrose, 251 F.3d 465, 472 

(3d Cir. 2001). Talbert filed a complaint with the EEOC on December 14, 2005. 
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Assuming that the allegations in the EEOC complaint were actionable, the claims must 

have accrued no earlier than February 17, 2005. Acknowledging that no adverse action 

was affirmatively taken against her within the limitations period (the primary basis of her 

complaint is her assignment to the Family Part of the Superior Court in June 2004), 

Talbert seeks to invoke the “continuing violation” theory that we described in Rush v. 

Scott Specialty Gases, 113 F.3d 476, 481 (3d Cir. 1997). That theory, however, requires 

“that at least one discriminatory act occurred within the 300-day period.” Id. (citing West 

v. Phila. Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995)). Talbert argues that defendants’

failure to transfer her out of the Family Part constituted a continuously occurring adverse 

action, part of which occurred within the limitations period. We disagree. The alleged

adverse action was the transfer to an unfavorable position; the fact that Talbert was not

moved out of that position does not turn a single discrete act into a continuing practice of 

discrimination. To preserve her claim Talbert should have filed her EEOC complaint 

within 300 days of the reassignment.

The § 1983 claims are subject to a two-year limitations period. O’Connor v. City 

of Newark, 440 F.3d 125, 126–27 (3d Cir. 2006). The complaint was filed on June 8, 

2009, so claims accruing before June 8, 2007 are barred. As explained above, the 

plaintiff cannot maintain suit against the defendants named in this lawsuit for the 

governor’s decision not to renominate her, and the reassignment and other allegedly 

illegal acts all occurred well outside the two-year window. Talbert’s argument that she 

did not discover that she had been injured by the 2004 reassignment until the governor 

advised her that she would not be reappointed in 2007 is belied by the fact that she filed 
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an EEOC complaint in 2005—she clearly thought that she had suffered harm well before 

she lost her position, and should have brought her suit within the two-year period.

We will affirm the judgment of the District Court.