SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4722-16T1

DANA S. REGISTER,

Plaintiff-Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS and

LEON WILLIAMS,

Defendants-Respondents.

_______________________________

Argued December 18, 2018 – Decided January 28, 2019

Before Judges Fisher and Firko.

On appeal from Superior Court of New Jersey, Law 

Division, Hunterdon County, Docket No. L-0303-16.

Luretha M. Stribling argued the cause for appellant.

Agnes I. Rymer, Deputy Attorney General, argued the 

cause for respondents (Gurbir S. Grewal, Attorney 

General, attorney; Melissa H. Raksa, Assistant 

Attorney General, of counsel; Joel Clymer, Deputy 

Attorney General, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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Plaintiff Dana Register appeals from the trial court's order granting 

summary judgment dismissal of her complaint alleging gender discrimination, 

hostile work environment, and aiding and abetting under the New Jersey Law 

Against Discrimination, N.J.S.A. 10:5-12. Having reviewed plaintiff's 

arguments in light of the facts and applicable principles of law, we reverse and 

remand.

We derive the following facts from the record, extending to plaintiff all 

favorable inferences. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 

(1995). On December 2, 2013, plaintiff, a Department of Corrections (DOC) 

employee, was terminated from her position as a corrections officer at 

Mountainview Youth Correctional Facility (MYCF) for conduct unbecoming an 

employee and undue familiarity with an inmate. Plaintiff appealed from the 

disciplinary actions to the Office of Administrative Law (OAL) and Civil 

Service Commission (CSC), who recommended her termination for cause on the 

grounds of severity and the impropriety of her relationship with an inmate. We 

affirmed the CSC's determination that plaintiff was properly terminated and that 
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she "participated in a highly inappropriate relationship with an inmate over an 

extended period of time, and went to great lengths to conceal the relationship." 1

Within two years of her termination, plaintiff timely filed a complaint,

2

as 

a self-represented litigant, in the Law Division, asserting that her termination 

was based on gender and race discrimination, a hostile work environment, and 

alleging that defendant, Leon Williams, individually aided and abetted the 

DOC's wrongful conduct. Plaintiff claims that Williams instigated an internal 

investigation against her, motivated by racial bias.

Plaintiff is an African-American woman. According to her complaint, 

Williams and the administrators at MYCF are Caucasian. On October 8, 2013, 

she admitted to having a relationship with an inmate during a DOC Special 

Investigation Division (SID) interview. That same day, she was suspended 

pursuant to a Preliminary Notice of Disciplinary Action (PNDA), and later

terminated on December 2, 2013, pursuant to a Final Notice of Disciplinary 

Action (FNDA). The Administrative Law Judge (ALJ) rejected plaintiff's claim 

 

1

 See In re Register, No. A-4323-13 (App. Div. Apr. 12, 2016) (slip op. at 12).

2

 The initial complaint was filed on October 9, 2015. A substitution of attorney 

was filed on December 14, 2015. A prior judge denied defendants' motion to 

dismiss the complaint pursuant to Rule 4:6-2(e) on January 22, 2016, and 

ordered plaintiff to amend the complaint within twenty-five days. A first 

amended complaint and jury demand was filed on February 16, 2016.
4

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that Williams was involved with the investigation and heard – but did not 

adjudicate – her allegations based on discrimination.

During her testimony before the ALJ, plaintiff testified that Williams used 

racial slurs and that he disliked people of color. She claimed that discrimination

and insults occurred daily in the workplace, and that DOC prisons housing 

largely African-American inmates were referred to as "zoos" and "plantations." 

Officers assigned to those prisons were called "zookeepers," and the inmates 

were referred to as "animals." Plaintiff also testified that Williams referred to 

African-Americans officers as "nigger[s]," and his reprehensible conduct was 

well known to DOC administrators working at the prisons, yet they failed to 

intercede and stop his contumacious behavior. 

According to plaintiff, Williams made it clear that it was his "goal" to get 

rid of African-American officers. She further contended that the investigation 

was tainted by racial bias because of William's involvement, undertaken at his 

own initiative, to "stalk" her and report to the SID. She alleged that he had no 

training or authorization to act in this capacity, and he would "switch" vehicles

with those used by other officers when following her to avoid recognition. 

Williams "bragged" about his surreptitious actions after plaintiff was suspended, 

and he boasted about how "he had gotten rid of that nigger," as per her 
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contention. A Sergeant Vargas ostensibly reported Williams' miscreant 

behavior, including his rude and hateful epithets, to administrators, but no 

reprimand or disciplinary action ensued.

The ALJ found that Williams did not participate in the DOC's 

investigation, and that plaintiff's testimony constituted inadmissible hearsay. 

The ALJ disagreed with plaintiff that her relationship with the inmate was 

simply a friendship, concluding instead that there was "an intimacy greater than 

the mere 'friendliness' claimed by [her]." Further, the ALJ found that "her 

reckless disregard bears decisively on the appropriateness of removal as a 

penalty." 

In affirming the CSC, which adopted the ALJ's decision, we agreed that 

"[t]he record indisputably reveals that [plaintiff] engaged in a highly 

inappropriate relationship with an inmate, and in doing so recklessly disregarded 

known rules and regulations." See In re Register, slip op. at 11. We did not 

address any discrimination-related claims since none were before us. 

Nonetheless, the trial judge held that collateral estoppel barred plaintiff's 

civil claims, concluding:

the [i]ssues raised in this Superior Court action are 

identical to the issues raised in the prior administrative 

proceedings. The First Count of [plaintiff's] 

[c]omplaint alleges, among other things, that Williams 
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acted improperly in the events leading to her 

termination. The record shows that [plaintiff] 

previously raised these allegations in the administrative 

proceedings. As in Winters,

[3]

[plaintiff] raises the 

argument that the issues in each forum are not identical. 

See [] id. at 84-85. [Plaintiff] claims that the 

administrative proceedings only concerned the issue of 

"just cause" for her termination. However, as in 

Winters, where the plaintiff raised the issue of 

retaliation, [plaintiff] raised racial discrimination as a 

central theme of her defense. Id. at 88.

Second, the lengthy procedural history shows 

that the circumstances of [plaintiff's] termination have 

been heavily litigated. The ALJ, Joseph Lavery, and 

the Appellate Division both wrote detailed decisions 

that thoroughly explored the facts of this case. Both 

found that [plaintiff's] termination was lawful and not 

discriminatory because she had "violat[ed] those civil 

service rules and department regulations cited by DOC 

in the PNDA and FNDA. Public safety concerns and 

the good order of the facility justify termination." In 

the Matter of Dana S. Register, No. CSR 17778-13 

2014-1551, at *16 (OAL April 7, 2014).

The trial judge determined "all five elements of collateral estoppel have 

been satisfied . . . ." He also found that the doctrine of estoppel applied to 

plaintiff, a "party to all of the prior administrative proceedings[,]" in dismissing

her claims of unlawful, race-based discrimination under the LAD (counts one 

and four).

 

3

 Winters v. N. Hudson Reg'l Fire and Rescue, 212 N.J. 67, 85 (2012).
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A-4722-16T1

Next, the trial judge concluded that plaintiff's race and gender 

discrimination, as well as her hostile work environment claims, were barred by 

the LAD's two-year statute of limitations, stating:

For statute of limitations purposes, termination is 

considered a "discrete" discriminatory act. Shepherd v. 

Hunterdon Dev. Ctr., 174 N.J. 1, 19 (2002) (citing 

AMTRAK v. Morgan, 536 U.S. 101, 114 (2002)). 

Discrete acts are different from hostile work 

environment claims. [Ibid.] A discrete act occurs on 

the day that it happens. [Ibid.] Our Supreme Court in 

Shepherd drew a distinction between the two types of 

claims:

Hostile environment claims are different in 

kind from discrete acts. Their very nature 

involves repeated conduct. The "unlawful 

employment practice" therefore cannot be 

said to occur on any particular day. It 

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. Such claims are 

based on the cumulative effect of 

individual acts.

[Id. at 19-20 (citing Morgan, 536 U.S. at 

114-118).]

Here, [plaintiff] filed her initial complaint with the 

court on October 9, 2015. Both parties agree that 

[plaintiff] last worked at MYCF on October 8, 2013. 

[Plaintiff] notes that she was served a PNDA on 

October 11, 2013, and suspended from employment. 

Afterwards, she interacted with personnel at Human 

Resources and some supervisory staff. However, there 
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is no evidence before the court that she ever returned to 

work. As defendants persuasively point out, a plaintiff 

cannot suffer from a hostile work environment or 

unlawful discrimination if she is not present in the work 

environment. [Plaintiff] does not allege any 

discriminatory incidents after October 8, 2013. Thus, 

all of [plaintiff's] allegations, unrelated to her 

termination, as set forth in the [s]econd, [t]hird, and 

[f]ourth [c]ounts, are barred by LAD's two-year statute 

of limitations.

Finally, the trial judge concluded that plaintiff's "aiding and abetting 

claims fail for the same reasons as her other claims," and he dismissed them as 

"moot."

Plaintiff argues that: (1) the trial court erred by finding her alleged 

adverse employment action was barred by the two-year statute of limitations; 

(2) summary judgment was prematurely granted because plaintiff was not 

provided with discovery responses served on defendants and no depositions 

were conducted; (3) collateral estoppel was wrongfully applied; (4) improper 

consideration was given to her claim that Williams had no authority to 

investigate her and turn over his tainted findings to SID; and (5) the trial judge

failed to apply the controlling law on discrimination, hostile work environment, 

and aiding and abetting, and that she satisfied the criteria for consideration of 

the cumulative effect of defendants' actions bearing on her claims. 
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I.

We review a ruling on a motion for summary judgment de novo, applying 

the same standard governing the trial court. Templo Fuente De Vida Corp. v. 

Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016) (citing Mem'l Props., LLC, 

v. Zurich Am. Ins. Co., 210 N.J. 512, 525 (2012)). Thus, we consider, as the 

trial judge did, "whether the competent evidential materials presented, when 

viewed in the light most favorable to the non-moving party, are sufficient to 

permit a rational factfinder to resolve the alleged disputed issue in favor of the 

non-moving party." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 

(2014) (quoting Brill, 142 N.J. at 540). If there is no genuine issue of material 

fact, we must then "decide whether the trial court correctly interpreted the law." 

DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 

325, 333 (App. Div. 2013) (quoting Massachi v. AHL Servs., Inc., 396 N.J. 

Super. 486, 494 (App. Div. 2007)). 

We review issues of law de novo and accord no deference to the trial 

judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013). For 

mixed questions of law and fact, we give deference to the supported factual 

findings of the trial court, but review "de novo the lower court's application of 
10 A-4722-16T1

any legal rules to such factual findings." State v. Pierre, 223 N.J. 560, 577 

(2015) (quoting State v. Harris, 181 N.J. 391, 416 (2004)).

Plaintiff first argues that the trial judge erred by determining that her LAD 

claims were barred by the two-year statute of limitations because her complaint 

was filed within two years of her termination. We agree. "Determining when 

the limitation period begins to run depends on when the cause of action accrued, 

which in turn is affected by the type of conduct a plaintiff alleges to have 

violated the LAD." Alexander v. Seton Hall Univ., 204 N.J. 219, 228 (2010). 

"Discriminatory termination and other similar abrupt, singular adverse 

employment actions that are attributable to invidious discrimination, prohibited 

by the LAD, generally are immediately known injuries, whose two-year statute 

of limitations period commences on the day they occur." Ibid. (citing Roa v. 

Roa, 200 N.J. 555, 569 (2010)). Discrete acts are those "such as termination, 

failure to promote, denial of transfer, or refusal to hire . . . ." Morgan, 536 U.S. 

at 114.

With respect to hostile work environment claims, the continuing violation 

theory, a judicially-created doctrine that serves as an equitable exception to the 

statute of limitations in LAD cases in New Jersey, may apply. See Bolinger v. 

Bell Atl., 330 N.J. Super. 300, 306 (App. Div. 2000). When an employee 
11 A-4722-16T1

experiences a "continual, cumulative pattern of tortious conduct, the statute of 

limitations does not begin to run until the wrongful act ceases." Wilson v. WalMart Stores, 158 N.J. 263, 272 (1999). 

The court must address two questions:

First, have plaintiffs alleged one or more discrete acts 

of discriminatory conduct by defendants? If yes, then 

their cause of action would have accrued on the day on 

which those individual acts occurred. Second, have 

plaintiffs 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? If yes, then their 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."

[Shepherd, 174 N.J. at 21 (alteration in original) 

(quoting Morgan, 536 U.S. at 117).]

The continuing violation theory may be applied to a discrete act, such as 

termination. "Each discrete discriminatory act starts a new clock for filing 

charges alleging that act." Roa, 200 N.J. 555, 567 (2010) (quoting Morgan, 536 

U.S. at 113). "Nor does the statute bar an employee from using the prior acts as 

background evidence in support of a timely claim." Ibid. (quoting Morgan, 536 

U.S. at 113). This analysis was not undertaken by the trial judge, warranting 

reversal.
12 A-4722-16T1

The record supports plaintiff's contention that summary judgment as to 

the statute of limitations was inappropriate because an issue of material fact 

exists as to the purported discriminatory impetus of her termination. 

Methodically, plaintiff alleges a pattern of discriminatory conduct, such as 

unauthorized investigations, stalking, and racially based comments, culminating 

in her termination – the final, discrete act of discrimination that vested her claim 

and triggered the running of the statute of limitations period.

II.

Plaintiff next argues that she was deprived of discovery that may have 

supported her contentions and defeated the summary judgment motion. 

Defendants' stance that plaintiff has failed to provide specific dates or proof that 

the alleged interactions took place is belied by the fact they failed to serve 

answers to interrogatories, turnover requested documents, or engage in 

depositions. Indeed, defendants simply argue that plaintiff did not provide dates 

when she "discovered" the effects of alleged discrimination. At oral argument, 

counsel for defendants represented that their discovery responses were three 

months overdue. Unless there is discovery exchanged, there can be no 

determination as to whether plaintiff's claims are timely, accrued, tolled, or 

otherwise actionable.
13 A-4722-16T1

III.

Next, plaintiff argues that the trial judge erred in finding that collateral 

estoppel barred her discrimination claims and that he mistakenly interpreted the 

holding in Winters by giving preclusive effect to her claims. The trial judge 

held that plaintiff's civil claims "are identical to the issues raised in the prior 

administrative proceeding," and allegations that Williams "acted improperly in 

the events leading to her termination" were "heavily litigated" before the ALJ 

and addressed by this court. We disagree.

In Winters, the plaintiff was a public employee who was terminated and 

raised retaliation as a defense through the same administrative process as this 

matter. After his defenses were rejected, he filed a complaint in the Law 

Division alleging violations under the Conscientious Employee Protection Act 

(CEPA). The Supreme Court held that Winters was collaterally estopped from 

re-litigating the retaliation issue since he raised it as a defense and litigated same 

at his administrative hearing. Collateral estoppel is an equitable principle that 

arises "[w]hen an issue of fact or law is actually litigated and determined by a 

valid and final judgment, and the determination is essential to the judgment, the 

determination is conclusive in a subsequent action between the parties, whether 
14 A-4722-16T1

on the same or a different claim." Winters, 212 N.J. at 85 (alteration in original) 

(citing Restatement (Second) of Judgments § 27 (1982)).

The party asserting the bar must show that:

(1) the issue to be precluded is identical to the issue 

decided in the prior proceeding; (2) the issue was 

actually litigated in the prior proceeding; (3) the court 

in the prior proceeding issued a final judgment on the 

merits; (4) the determination of the issue was essential 

to the prior judgment; and (5) the party against whom 

the doctrine is asserted was a party to or in privity with 

a party to the earlier proceeding.

[Ibid. (quoting Oliveri v. Y.M.F. Carpet, Inc., 186 N.J. 

511, 521 (2006)).]

"Fundamental to the application of estoppel is an assessment of 

considerations such as 'finality and repose; prevention of needless litigation; 

avoidance of duplication; reduction of unnecessary burdens of time and 

expenses; elimination of conflicts, confusion and uncertainty; and basic 

fairness.'" Ibid. (quoting Oliveri, 186 N.J. at 522.)

"In public employee discipline matters, the public interest in the finality 

of the litigated disciplinary matter must weigh in the equitable application of 

estoppel principles, for it is an unnamed party in interest to the efficient and fair 

resolution of civil service discipline." Id. at 86. Winters stands for the 

proposition that:
15 A-4722-16T1

[I]f in a disciplinary proceeding, an "employee raises a 

claim that employer retaliation at least partially 

motivated the decision to bring the charge or the level 

of discipline sought, then both the employee and the 

employer must live with the outcome, including its 

potential preclusive effect on the related employmentdiscrimination litigation . . . . [I]t is not unfair to 

require [plaintiff] to present the defense that he raised 

in the administrative forum and to accept the 

consequences of his strategy."

[Wolff v. Salem County Correctional Facility, 439 N.J. 

Super. 282, 294 (App. Div. 2015) (quoting Winters, 212 

N.J. at 73).]

The dispositive fact in Winters was the plaintiff's "failure to make his case 

on a claim he raised before the Commission." Winters, 212 N.J. at 91. The 

Court was:

[F]ully convinced that the ALJ assessed his claim of 

retaliation, to the extent it was supported, when he 

rendered his findings and conclusion. That it was not 

addressed specifically is not fatal to the analysis in this 

particular case, where everything Winters pointed to, or 

at, was supposedly evidence of overall animosity and 

retaliatory bias by [defendant].

[Ibid.]

Unlike Winters, plaintiff argued a racial animus in the steps taken by the

DOC at her administrative hearing, but our careful review of the record does not 

reveal that the ALJ, or anyone else in the administrative process, actually 
16 A-4722-16T1

determined that defendants did not discriminate against her on the basis of race, 

gender, or anything else. In its decision, the OAL stated:

Officer Vaillegas addressed a factual issue introduced 

in plaintiff's defense: the alleged behavior of another 

SCO, [Williams]. Officer Vaillegas stated that he had 

overhead Williams, who was white, using racist 

language in describing black officers. He referred to 

them as "niggers." With respect to [plaintiff], Officer 

Vaillegas stated that [Williams] described to him with 

satisfaction how he, Williams, had personally

investigated and caused the firing of [plaintiff]. 

According to Correction Officer Vaillegas, [Williams] 

said he had supplied to SID information concerning 

money orders and letters, and had gone so far as to 

follow [plaintiff] from Phillipsburg to the Easton post 

office involved. Officer Vaillegas believed [Williams] 

was projecting himself as a one-man investigating 

entity, which is prohibited by DOC. Because of this, 

and because of [plaintiff's] discriminatory language, he 

reported his interactions with [Williams].

This is a summary of Vaillegas' testimony and not an adjudication on the 

merits on the claims presented by plaintiff in her Law Division action. 

Therefore, the trial judge erred by stating the issues were "identical." Because 

collateral estoppel applies to issues previously raised and decided, the amended 

complaint was improvidently dismissed.

IV.

Plaintiff seeks to change venue back to Warren County where the 

complaint was initially filed, or alternatively, Mercer County because DOC is 
17 A-4722-16T1

headquartered there. We see no merit to plaintiff's argument. No showing has 

been made that "a fair and impartial trial could not be had" in Hunterdon County. 

See Pressler & Verniero, Current N.J. Court Rules, cmt. on R. 4:3-3 (2019). In 

light of our decision, these is no reason to address the other points raised by 

plaintiff. 

In conclusion, we reverse the order dismissing the Law Division amended 

complaint and reinstate the matter for further proceedings. The trial court shall 

conduct a case management conference within thirty days to address discovery 

issues. This matter shall remain venued in Hunterdon County. We do not retain 

jurisdiction.