NOT FOR PUBLICATION [Docket No. 18]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

RICHARD A. WILLIAMS,

 Plaintiff,

v.

ROWAN UNIVERSITY and

DONALD H. FARISH,

Defendants.

Civil No. 10-6542 (RMB/AMD)

OPINION

Appearances:

Fredric J. Gross

7 East Kings Highway

Mt. Ephraim, NJ 08059

Attorney for Plaintiff

 Jacqueline Augustine

Office of the NJ Attorney General

RJ Hughes Justice Complex

PO Box 112

Trenton, NJ 08625

 Attorneys for Defendant

BUMB, United States District Judge:

Plaintiff Richard A. Williams (the “Plaintiff”) is a former

employee of Defendant Rowan University (“Defendant Rowan”). 

Through his Amended Complaint1

 (the “Amended Complaint”), he

asserts causes of action related to alleged illegal retaliatory

action and racial discrimination by Defendant Rowan and Defendant

1 For purposes of the motion to dismiss, the allegations

in the Amended Complaint are accepted as true and

construed in the light most favorable to Plaintiff. 

See Phillips v. County of Allegheny, 515 F.3d 224, 233

(3d Cir. 2008). 

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Donald H. Farish (“Defendant Farish”), the president of Rowan

(collectively the “Defendants”). Defendants have moved to

dismiss Plaintiff’s federal causes of action based on statute of

limitations grounds.2 For the following reasons, Defendants’

motion is GRANTED, in part, and DENIED, in part.

I. Background

Plaintiff is an African-American male who worked as

Defendant Rowan’s Equal Opportunity/Affirmative Action Officer. 

As part of his duties, Plaintiff drafted a proposed affirmative

action plan for the University. University counsel and Defendant

Farish reviewed and approved the plan, which was then adopted by

the University. 

The plan was later produced in discovery in the matter of

DeSanto v. Rowan University, Civ. No. 99-3952 (Orlofsky, J.). 

Plaintiff was subsequently subpoenaed to testify, and testified,

at trial in the matter. Plaintiff alleges that his testimony at

trial was truthful. The plaintiff in that matter prevailed at

trial. 

Following the trial, Defendant Farish called Plaintiff to a

meeting, at which Plaintiff was blamed for the loss at trial. 

Plaintiff alleges that Defendants thereafter “embarked upon a

series of retaliatory actions against Plaintiff” including:

2 In briefing on the motion to dismiss, Plaintiff filed a

sur-reply brief. Plaintiff's filing of the sur-reply

brief, without permission of the Court, was improper

under the Local Rules. Plaintiff is cautioned that,

going forward, he is to obtain this Court's permission

before filing any supplemental briefing. 

2

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(1) denying Plaintiff a pay raise in December 2002;

(2) denying Plaintiff a pay raise in December 2003;

(3) reassigning Plaintiff’s duties to an interim

affirmative action officer while he was out on sick

leave from November 15, 2006 through late January 2007

and from February 7, 2007 until March 26, 2007; and

(4) when Plaintiff returned from sick leave, Rowan’s Vice

President told Plaintiff he should leave the University

by June 30, 2007.

In late April 2007, Plaintiff met with Defendant Farish to

discuss the fact that the planned termination of Plaintiff would

prevent Plaintiff from receiving retirement health benefits,

which Plaintiff needed to work one more year to secure. The next

month, in late May 2007, Defendant Farish told Plaintiff to

report to Eric Clark, Dean of Rowan’s Camden campus, and retire

in December 2008. When Plaintiff asked what would happen if he

did not want to retire in December 2008, Defendant Farish

indicated his retirement could be renegotiated, and told

Plaintiff to meet with Farish before June 30, 2008 if Plaintiff

wanted to renegotiate this arrangement. 

On July 1, 2007, Plaintiff was demoted to an Equal

Opportunity Fund (“EOF”) Counselor at the Camden campus. Almost

one year later, in early June 2008, Plaintiff called the

President’s Office to discuss working another year in Camden. 

Plaintiff’s overture was rejected. Defendant Farish indicated

that the newly appointed Assistant Provost of the Camden campus,

Dr. McCombs, “was going in another direction.” 

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Plaintiff claims, as a fifth act of reprisal, that Defendant

Farish directed Plaintiff to send in his retirement letter. 

Plaintiff reluctantly complied, tendering his resignation. 

Plaintiff subsequently learned that, under the collective

bargaining agreement, he had the right to withdraw his retirement

letter up until the effective date of the proposed retirement if

his position still existed. Knowing that the EOF Counselor

position continued to exist, Plaintiff forwarded a letter to

Defendant Farish, retracting his pending retirement, on September

12, 2008. Plaintiff claims that, in contravention of the

operative Collective Bargaining Agreement and relevant retirement

policy and practice, the University, by and through Defendant

Farish, refused to honor Plaintiff’s retraction and forced

Plaintiff into retirement as of December 31, 2008. 

Defendants communicated their denial to Plaintiff in a

letter dated October 16, 2008.3

 The letter reads:

3 Though the letter was not attached to the Amended

Complaint, and was instead attached to Defendants’

moving papers, this Court may consider it because it

forms the basis of one of Plaintiff’s claims of

retaliation and, notably, Plaintiff does not dispute

its authenticity. Lum v. Bank of Am., 361 F.3d 217,

222 n.3 (3d Cir. 2004)(“In deciding motions to dismiss

pursuant to Rule 12(b)(6), courts generally consider

only the allegations in the complaint, exhibits

attached to the complaint, matters of public record,

and documents the form the basis of a claim.”); In re

Donald J. Trump Casino Sec. Litig.-Taj Mahal Litig., 7

F.3d 357, 368 n. 9 (3d Cir. 1993)(“[A] court may

consider an undisputedly authentic document that a

defendant attaches as an exhibit to a motion to dismiss

if the plaintiff's claims are based on the

document.”)(quotation and citation omitted). 

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Dear Mr. Williams:

This is in response to your letter, dated September 12,

2008, seeking to recontract for another year. 

Unfortunately, recontracting for another year is not

possible. I must inform you that as previously agreed, your

last day of employment at Rowan will be December 31, 2008.

 

As you know, you were provided with a terminal contract 

ending on December 31, 2008. My letter to you, dated June

5, 2007 confirmed that you will leave University employment

on that date. By letter, dated July 25, 2007, you confirmed

your understanding of the arrangement. You indicated that

you would let me know by June 30, 2008 if you requested a

renegotiation of your continuation at Rowan beyond December

31, 2008.

I received a letter from you, dated June 26, 2008,

stating your “formal indication” that you would be leaving

Rowan effective December 31, 2008. In reliance on your

letter, your name was forwarded to the Board of Trustees as

part of personnel actions. The Board formally accepted your

retirement from Rowan University at its September 10, 2008

meeting.

I wish you well in your retirement. 

 Very truly yours,

 Donald J. Farish

 President

Plaintiff alleges that the denial was another unlawful

retaliatory action and additionally, because Defendants had

permitted non-African American employees to withdraw from

retirement in the past, an unlawful discriminatory action.

Plaintiff filed his initial complaint on December 16, 2010

and filed the Amended Complaint on May 26, 2011. 

II. Standard 

“To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to state a claim to

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relief that is plausible on its face.” Sheridan v. NGK Metals

Corp., 609 F.3d 239, 263 n. 27 (3d Cir. 2010)(quoting Ashcroft v.

Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949 (2009)) (internal

quotation marks omitted). “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.” Id. (quoting Iqbal, 129 S.Ct. at 

1949). 

The Court conducts a three-part analysis when reviewing a

claim: 

First, the court must “tak[e] note of the elements a

plaintiff must plead to state a claim.” Iqbal, 129 S.Ct. at

1947. Second, the court should identify allegations that,

“because they are no more than conclusions are not entitled

to the assumption of truth.” Id. at 1950. Finally, “where

there are well-pleaded factual allegations, a court should

assume their veracity and then determine whether they

plausibly give rise to an entitlement for relief.” Id. 

Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010);

see also Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir.

2009)(“...[A] complaint must do more than allege the plaintiff's

entitlement to relief. A complaint has to “show” such an

entitlement with its facts.”).

III. Analysis

The Complaint alleges two federal claims. First, Plaintiff

claims that the series of retaliatory actions allegedly taken

against him violate 42 U.S.C. § 1983 (“Section 1983”). Second,

Plaintiff claims that Defendants’ refusal to allow Plaintiff to

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rescind his retirement violates 42 U.S.C. § 1981 (“Section

1981”), which, because there is no private right of action

against state actors pursuant to Section 1981, he asserts via

Section 1983. McGovern v. City of Philadelphia, 554 F.3d 114,

121-22 (3d Cir. 2009). Defendants have moved for dismissal of

both claims based on the statute of limitations. The Court

addresses each argument in turn. 

A. Plaintiff’s Section 1983 Retaliation Claim

“Actions brought under [Section 1983] are governed by the

personal injury statute of limitations of the state in which the

cause of action arose.” Marcum v. Harris, 328 F. App’x 792, 795

(3d Cir. 2009). In New Jersey, where this action arose, such

actions must be brought within two years. Id. While state law

provides the applicable time period for Section 1983 claims, 

federal law governs the accrual of the cause of action. Id.

“Accrual occurs when . . . the plaintiff knew or should have

known that his constitutional rights had been violated.” Id.

(quotation and citation omitted). Accrual is measured by notice

of the affirmative acts that give rise to the claimed injury, not

when the “lingering consequence[s]” of those decisions are felt. 

Id. Importantly, where an alleged act is “discrete,” a cause of

action based on that act accrues at the time the action occurred,

even if the act is part of a continuing series of violations. 

O’Connor v. City of Newark, 440 F.3d 125, 128-29 (3d Cir. 2008). 

Otherwise untimely claims based on discrete actions “cannot be

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resurrected by being aggregated and labeled continuing

violations.” Id. at 129. 

Here, Plaintiff claims that a cause of action based on the

Defendants’ refusal to rescind his retirement request accrued

when his retirement commenced on December 31, 2008. Plaintiff

argues that: (1) suit on that decision is timely; and (2) the

prior alleged retaliatory actions are part of the same continuing

course of conduct by the Defendants, delaying accrual on those

claims until December 31, 2008, and therefore timely. Plaintiff

is incorrect on both counts. 

Plaintiff’s alleged forced retirement was only a lingering

consequence of Defendants’ earlier actions and therefore

immaterial for statute of limitations purposes. Marcum, 328 F.

App’x at 795; Delaware State College v. Ricks, 449 U.S. 250, 258

(1980)(recognizing that the “proper focus is upon the time of the

discriminatory acts, not upon the time at which the consequences

of the acts became most painful.”)(quotation and citation

omitted)(emphasis in original). The latest alleged affirmative

retaliatory action was Defendants’ refusal to allow Plaintiff to

withdraw his retirement. Plaintiff was informed of that refusal

through Defendants’ October 16, 2008 letter. Though the letter

does not expressly indicate that Plaintiff’s request to withdraw

his retirement, made in his September 16, 2008 letter, was

“denied,” it nonetheless communicated that decision in no

uncertain terms. It indicated that: (1) it was written “in

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response to” Plaintiff’s September 16, 2008 letter; (2)

notwithstanding that letter, “recontracting for another year

[was] not possible”; and (3) “as previously agreed, [Plaintiff’s]

last day of employment at Rowan [would] be December 31, 2008.” 

Further, the letter wished Plaintiff “well in [his] retirement.” 

At that time, Plaintiff knew or should have known that Defendants

would not permit Plaintiff to withdraw his retirement and his

constitutional rights had been violated.4

 Because that alleged

retaliatory action occurred more than two years prior to the

December 16, 2010 filing of this action, it is time-barred. 

The untimeliness of this claim, the last alleged retaliatory

action, is fatal to Plaintiff’s claims of earlier retaliatory

actions, even accepting Plaintiff’s continuing violation theory.

That theory too is incorrect. The retaliatory actions Plaintiff

alleges - termination, demotion, denial of a pay raise, and

reassignment of duties - are all discrete actions. O’Connor, 440

F.3d at 127 (listing similar actions as qualifying as discrete

actions). For these claims, based on discrete actions, the

statute of limitations began to run on accrual and was not tolled

by later retaliatory actions. Id. at 129. Therefore, even if

Plaintiff’s claim based on the last alleged retaliatory action

was timely (and it is not), it would not save Plaintiff’s earlier

claims, which all occurred more than two years prior to

Plaintiff’s filing of the Complaint on December 18, 2010. 

4 Significantly, Plaintiff does not claim that he failed

to receive the letter in a timely fashion.

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Because all of Plaintiff’s claimed retaliatory actions are

time-barred, Plaintiff’s Section 1983 retaliation claim is

dismissed. 

B. Plaintiff’s Discrimination Claim 

Defendants contend that, because Plaintiff’s Section 1981

based claim is asserted through Section 1983, it too is subject

to a two-year statute of limitations and must be dismissed. 

Plaintiff, however, argues that his claim is timely under 28

U.S.C. § 1658 (“Section 1658”), which provides for a four year

statute of limitations for certain actions, and applies to his

Section 1981 based claim. 

Defendants claim that this statute of limitations issue was

resolved in their favor by the Third Circuit’s decision in

McGovern v. City of Philadelphia, 554 F.3d 114 (3d Cir. 2009). 

In McGovern, the Third Circuit concluded that there was no

independent Section 1981 claim against state actors and that any

such claim must instead be asserted through Section 1983.

McGovern, 554 F.3d at 121 (“[W]e hold that the express cause of

action for damages created by § 1983 constitutes the exclusive

federal remedy for violation of the rights guaranteed in § 1981

by state governmental units.”)(quotation and citation omitted). 

Because the plaintiff’s claim in McGovern was premised solely on

Section 1981, and was not asserted through Section 1983, the

Court concluded that the plaintiff had failed to state a viable

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cause of action. Id. at 121-22. Significantly, however, and

contrary to the Defendants’ position here, McGovern did not

address the applicable statute of limitations had the plaintiff

properly asserted his Section 1981 claims through Section 1983. 

See generally id.5 And, while at least one District Court in New

Jersey was confronted with the same arguments presented here and

5 The statute of limitations for a Section 1981 based

Section 1983 action was addressed in the Third

Circuit’s non-precedential opinion in N’jai v. Floyd,

386 F. App’x 141 (3d Cir. 2010). There, the Third

Circuit considered a pro se plaintiff’s appeal of

various civil rights claims, including a Section 1981

based Section 1983 claim. N’jai, 386 F. App’x at 144. 

The Circuit Court concluded that, because the Section

1983 claim was untimely and the Section 1981 claim

could only be asserted through Section 1983, it too was

time-barred:

N'Jai's claims against Wilkinsburg and the

Wilkinsburg Individuals under §§ 1981, 1983, 1985,

and 1986 are time-barred because they accrued, at

the latest, in September 2005, when she was

terminated from her job. . . . See McGovern v.

City of Philadelphia, 554 F.3d 114, 120 (3d

Cir.2009) (holding “that ‘the express cause of

action for damages created by § 1983 constitutes

the exclusive federal remedy for violation of the

rights guaranteed in § 1981 by state governmental

units' ” (quoting Jett v. Dallas Indep. Sch.

Dist., 491 U.S. 701, 733, 109 S.Ct. 2702, 105

L.Ed.2d 598 (1989))); Kost v. Kozakiewicz, 1 F.3d

176, 189-90 (3d Cir.1993) (stating that

Pennsylvania's two-year statute of limitations

applies to § 1983 actions)). Id.

There, unlike here, however, the Third Circuit does not

appear to have been presented with the argument that

Section 1658 may apply to a Section 1981 based Section

1983 claim. See generally id.

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agreed with the Defendants’ reasoning (See Barroso v. N.J.

Transit Corp., No. 07-3978, 2011 WL 111577, at *4 (D.N.J. Jan.

13, 2011)), the Supreme Court’s decision in Jones v. R.R.

Donnelly & Sons Co., 541 U.S. 369 (2004) compels this Court to

conclude that Plaintiff’s Section 1981 based Section 1983 claim

is subject to Section 1658’s four year statute of limitations. 

In Jones v. R.R. Donnelly & Sons Co., the Supreme Court

examined the interaction of Section 1981 and Section 1658. 

Jones, 541 U.S. at 372. Section 1658 provides a “catch-all” four

year statute of limitations for any federal civil action, arising

under a federal law, that is enacted after December 1, 1990, and

that does not contain its own statute of limitations. Id.;

Section 1658 (“Except as otherwise provided by law, a civil

action arising under an Act of Congress enacted after the date of

the enactment of this section may not be commenced later than 4

years after the cause of action accrues.”). The Supreme Court

interpreted the term “arising under” broadly to mean any claims

“made possible by a post-1990 enactment” and cautioned that it

should not be read to mean “based solely upon.” Id. at 382-83. 

The Supreme Court reasoned that this interpretation was

consistent with Congress’ intent, in enacting the statute, to

address the confusion, discriminatory impact, and litigation

costs associated with the prior “settled practice” of borrowing

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state law statute of limitations for federal claims without their

own statutes of limitations. Id. at 377-80. 

Section 1981, originally codified in 1870 and recodified in

1874, was one such claim for which courts had engaged in

limitation borrowing. Id. at 371-72. It was, however, amended

in 1991 to expand the types of claims that could be asserted

following the Supreme Court’s decision in Patterson v. McLean

Credit Union, 491 U.S. 164 (1989), which interpreted the claim

narrowly. Id. at 372-73. Prior to the amendment, claims under

Section 1981 were confined to claims based on “the formation of a

contract” and claims of deprivation of access to “legal process.” 

Patterson, 491 U.S. at 177-78. It did not extend to claims based

on discriminatory treatment post-formation. Id. The amendment,

however, extended protection to claims based on discriminatory

treatment post-formation. Jones 541 U.S. at 383. Applying the

broad interpretation of “arising under” described above, the

Supreme Court held in Jones that causes of action made possible

by that amendment, which was enacted after December 1, 1990, were

subject to Section 1658’s four year statute of limitations. Id.

at 383. Causes of action that were previously possible under

Section 1981 were subject to the state law borrowing analysis. 

Id. 

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Unlike in Jones, where the plaintiff directly asserted a

Section 1981 claim, Plaintiff here is asserting his Section 1981

claim through Section 1983. And, ordinarily, causes of action

under Section 1983, because that statute has not undergone

meaningful revision for this purpose post December 1, 1990, are

not subject to Section 1658. Ortiz v. City of New York, 10 Civ.

3576, 755 F. Supp. 2d 399, 408 (E.D.N.Y. 2010). But the same

reasoning that controlled in Jones controls here, warranting

application of Section 1658’s four year statute of limitations. 

By its plain language, Section 1658 applies to all acts of

Congress enacted after December 1, 1990, “[e]xcept as otherwise

provided by law”. Section 1658. Neither Section 1981, nor

Section 1983, nor any other statute, contain any language

imposing a contrary statute of limitations on Section 1981 and

Section 1983 claims. Ortiz, 755 F. Supp. 2d at 407-08. 

Therefore, Section 1658 applies if the cause of action here

“arises under” a post December 1, 1990 amendment. It does.

Plaintiff’s cause of action is predicated on post-formation

conduct. Therefore, though it is denominated as a Section 1983

claim, it is only made possible through a post December 1, 1990

amendment to Section 1981. Id. at 408. Plaintiff’s claim

therefore arises under a post December 1, 1990 act and is subject

to Section 1658’s four year statute of limitations. Baker v.

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Birmingham Bd. of Educ., 531 F.3d 1336, 1338 (11th Cir. 2008);

Allstate Sweeping, LLC v. City and County of Denver, No. 10-CV00290, 2011 WL 6729334, at *4 (D.Colo. Dec. 23, 2011); Padilla

v. City and County of Denver, No. 09-cv-02930, 2011 WL 3876589,

at *12 (D.Colo. Sept. 2, 2011); Moore v. City of Jackson,

Mississippi, Civ. No. 3:10cv454, 2011 WL 3022525, at *2

(S.D.Miss. July 22, 2011); Ortiz, 755 F. Supp. 2d at 407-08;

Thomas v. City of Shreveport, No. 06-1078, 2008 WL 4291211, at *4

(W.D.La. Sept. 15, 2008); Knox v. City of Monroe, 551 F. Supp. 2d

504, 512 (W.D.La. 2008); Williams v. Hawkeye Community College,

494 F. Supp. 2d 1032, 1041 (N.D.Iowa 2007). That the claim

cannot stand entirely on the post December 1, 1990 amendment to

Section 1981 and instead also depends on Section 1983 is

immaterial, given the Supreme Court’s admonition that the

“arising under” language not be read to mean “based solely upon.” 

Williams, 494 F. Supp. at 1041; See also City of Rancho Palos

Verdes, Cal. v. Abrams, 544 U.S. 113, 123 n.5 (2005)(observing

that Section 1658 “would seem to apply” to a Section 1983 claim

predicated on the violation of a federal law passed after

December 1, 1990)6. 

6 The court in Ortiz viewed subsequent language in Abrams

as undercutting this otherwise clear language. Ortiz,

755 F. Supp. 2d at 407-08. In Abrams, the parties

contested the statute of limitations applicable to a

cause of action under Section 1983 for a violation of a

provision of the Telecommunications Act. Id. at 406. 

The provision provided its own statute of limitations

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Because Plaintiff’s Section 1981 based Section 1983 claim

accrued within four years of Plaintiff’s filing of the Complaint,

it is not time-barred. Therefore, the Court declines to dismiss

Plaintiff’s Section 1981 based Section 1983 claim. 

IV. Conclusion 

and the defendant in Abrams argued that that

limitations period controlled and that the longer

limitations periods provided under Section 1983 and

Section 1658 did not apply. Abrams, 544 U.S. at 124-

25. The Supreme Court held, however, that the

provision’s statute of limitations did not displace the

general rule applicable to Section 1983 actions that

the statute of limitations for such actions does not

depend on the underlying substantive right being

asserted. Id. Neither, however, did it displace the

potential applicability of Section 1658 because the

provision’s specific statute of limitations language

applied solely to actions under that provision and not

to other actions to enforce the rights created under

the provision. Id. at 125. The Supreme Court’s

holding that the statute of limitations for Section

1983 claims does not depend on the underlying right

being asserted could be taken to suggest disapproval of

utilizing Section 1981’s statute of limitations while

formally making a Section 1983 claim. However, the

prior and subsequent discussion by the Supreme Court of

Section 1658’s potential availability militate against

that interpretation. The discussion in Abrams is best

read as establishing the following. Section 1983

claims are generally subject to state law statutes of

limitations, even when they are based on the violation

of a federal statute that contains its own statute of

limitations. However, as an exception to that general

rule, these claims may be subject to Section 1658’s

statute of limitations where: (1) the federal statutory

violation that makes possible the claim was enacted

after December 1, 1990; and (2) the statute of

limitations for the alleged violation is written

narrowly, such that it is not intended to apply to “any

action to enforce the rights created by” the statute. 

Abrams, 544 U.S. at 125. 

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For all these reasons, Defendants' motion to dismiss is

DENIED, in part, and GRANTED, in part. Plaintiff's Section 1983

retaliation claim is dismissed. Plaintiff's Section 1981 based

Section 1983 claim may proceed. 

s/Renée Marie Bumb 

RENÉE MARIE BUMB

United States District Judge

Dated: March 9, 2012

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