NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

LAMONICA CROSS, :

: CIVIL ACTION NO. 11-3726 (MLC)

Plaintiff, :

: MEMORANDUM OPINION

v. :

:

STATE OF NEW JERSEY, :

DIVISION OF CRIMINAL JUSTICE, :

:

Defendant. :

 :

COOPER, District Judge

The plaintiff, Lamonica Cross (“plaintiff”), brought this

action alleging claims under Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”), and

the New Jersey Law Against Discrimination, N.J.S.A. § 10:5-1 et

seq. (“NJLAD”). (Dkt. entry no. 1, Compl. at ¶¶ 4-5.) The

defendant, State of New Jersey, Division of Criminal Justice

(“DCJ”), now moves to dismiss (1) the Title VII claim insofar as

it pertains to alleged discrimination occurring before 2009, on

the basis that such claim is barred by the applicable statute of

limitations, and (2) the NJLAD claim, on the basis that DCJ is

immune from suit under the NJLAD. (Dkt. entry no. 6, Mot. to

Dismiss at 2.) 

The plaintiff opposes the motion with respect to the Title

VII claim, but concedes that her NJLAD claim must be dismissed

because the DCJ has raised its entitlement to immunity from suit

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under the Eleventh Amendment. (Dkt. entry no. 9, Pl. Br. at 1.) 

The Court determines the motion on the briefs without an oral

hearing, pursuant to Local Civil Rule 78.1(b). For the reasons

stated herein, the Court will grant the motion.

BACKGROUND

 The plaintiff, who identifies herself as an “African

American female,” was hired by the DCJ as a State Investigator II

in August 2000. (Compl. at ¶¶ 8-9.) The title of this position

was changed to Detective I in 2008. (Id. at ¶ 10.) She alleges

that prior to her employment at DCJ, she worked as a municipal

police officer for over ten years, and when she left that

position, she “was on a Civil Service List of Eligibles for the

title of Sergeant.” (Id. at ¶ 11.)

The plaintiff alleges that “from 2007 to February 2008 [she]

was harassed and treated in a disparate fashion by her immediate

supervisor, who was a white male.” (Id. at ¶ 12.) She further

states that “after [she] protested to a second line supervisor

the aforesaid treatment, an internal EEO [Equal Employment

Opportunity] complaint . . . was filed pursuant to a formal EEO

policy that was a term and condition of her employment.” (Id. at

¶ 13.) The plaintiff asserts that despite her repeated inquiries

as to the status of the internal EEO complaint, “on account of

[her] race and gender . . . the complaint was never

investigated.” (Id. at ¶ 14.)

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The plaintiff further alleges that prior to 2008, DCJ made

promotion decisions without open competition, such that “many

times . . . white males” from outside agencies “would be brought

in and awarded . . . supervisory position[s],” resulting in “many

non-minority individuals with less qualifications and experience”

than, for instance, the plaintiff, being awarded promotions for

which the plaintiff would have been eligible. (Id. at ¶¶ 15-18.)

The plaintiff asserts that in 2008, concurrent with the

renaming of her position, DCJ “announced that promotions to

Sergeant, would be subject to open competition.” (Id. at ¶ 20.) 

She alleges that on July 23, 2009, she applied for the position

of Sergeant-State Investigator, in the first implementation of

the “open competition” procedure. (Id. at ¶¶ 21-22.) She

alleges that while she passed the first and second stages of the

four-stage process, a credential review and a written interview,

the third stage, a panel interview, did not go well for her. 

(Id. at ¶¶ 23-25.) Specifically, she notes that: (1) the panel

consisted of ten persons, of whom eight were white males; (2) the

questions asked by the panel were “very general” and “would not

be reflective of a candidate’s credentials or knowledge or

abilities and would permit the panelists to make subjective

determinations of each candidate”; and (3) certain questions were

designed to disclose whether the candidate had previously made

any complaints, such as EEO complaints, against the DCJ. (Id. at

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¶¶ 26-29.) The plaintiff was informed on September 29, 2009,

that she had not passed the third stage and therefore was no

longer under consideration for the promotion to Sergeant. (Id.

at ¶ 30.)

The plaintiff alleges that ninety-six people applied for the

promotion in question, of whom six were black women, and that “no

black female made the final promotional list.” (Id. at ¶ 31.) 

She alleges that “less qualified male applicants” as compared to

the plaintiff’s qualifications were “moved forward in the process

and eventually promoted.” (Id. at ¶ 32.) The plaintiff suggests

that, based on a conversation she had with one of the panel

interviewers, the plaintiff may have been perceived unfavorably

due to the plaintiff previously filing a complaint that her

supervisor was harassing her. (Id. at ¶¶ 33-35.) She states

that at the time she was rejected for a promotion, only one out

of seventy-two superior officers was a “black female.” (Id. at ¶

37.)

The plaintiff filed a complaint of discrimination based on

both the original allegations regarding her supervisor that she

claims were never investigated, as well as the allegations

regarding the failure to promote. (Id. at ¶ 38.) She alleges

that although the complaint “was acknowledged as received by the

EEO office on December 30, 2009,” it was not investigated within 

120 days, as required by formal administrative regulation

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applicable to the DCJ as a state agency. (Id. at ¶¶ 38-41; see

also Pl. Br. at 9 (citing N.J.A.C. § 4A:7-3.2).)

The plaintiff asserts that DCJ violated Title VII by

discriminating against her by altering the terms and conditions

of her employment on account of her sex and race. (Compl. at ¶

45.) She seeks, inter alia, compensatory damages, including

front and back pay; injunctive relief compelling DCJ to maintain

an environment free from discriminatory treatment and to afford

the protections of its EEO policy to all persons, regardless of

race and gender; and injunctive relief awarding the plaintiff a

promotion to a superior title. (Id. at 8.)

DISCUSSION

I. 12(b)(6) Motion to Dismiss Standard

In addressing a motion to dismiss a complaint under Rule

12(b)(6), the Court must “accept all factual allegations as true,

construe the complaint in the light most favorable to the

plaintiff, and determine, whether any reasonable reading of the

complaint, the plaintiff may be entitled to relief.” Phillips v.

Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). At this

stage, “a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible

on its face.’ 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

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misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556

(2007)). “[W]here the well-pleaded facts do not permit the court

to infer more than the mere possibility of misconduct, the

complaint has alleged—but it has not ‘show[n]’—that the ‘pleader

is entitled to relief.’” Iqbal, 129 S.Ct. at 1950 (quoting Rule

8(a)(2)).

The Court, in evaluating a Rule 12(b)(6) motion to dismiss

for failure to state a claim, may consider the complaint,

exhibits attached thereto, matters of public record, and

undisputedly authentic documents if the plaintiff’s claims are

based upon those documents. See Pension Benefit Guar. Corp. v.

White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993).

II. Title VII

Title VII makes it unlawful for an employer “to fail or

refuse to hire or to discharge any individual, or otherwise to

discriminate against, any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual’s race, color, religion, sex, or

national origin.” 42 U.S.C. § 2000e-2(a)(1). Further, it is

unlawful for an employer to “limit, segregate, or classify his

employees or applicants for employment in any way which would

deprive or tend to deprive any individual of employment

opportunities or otherwise adversely affect his status as an

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employee, because of such individual’s race, color, religion,

sex, or national origin.” 42 U.S.C. § 2000e-2(a)(2).

III. Analysis

A. Equitable Tolling of Harassment Claim

1. Parties’ Arguments

DCJ asserts that because Title VII requires a plaintiff to

first pursue certain administrative remedies, which the plaintiff

here did by filing an EEO complaint on June 8, 2010, any

allegations occurring prior to August 12, 2009, are untimely

pursuant to the 300-day statute of limitations. (See dkt. entry

no. 6, DCJ Br. at 4 (citing 42 U.S.C. § 2000e-5(e)(1); Cortes v.

Univ. of Med. & Dentistry of N.J., 391 F.Supp.2d 298, 310 (D.N.J.

2005)).) See also Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.

101 (2002); Bishop v. New Jersey, 84 Fed.Appx. 220, 225 (3d Cir.

2004) (rejecting “continuing violation” doctrine and holding that

because plaintiffs’ EEOC charge was not filed within 300 days of

promulgation of list of eligible applicants for supervisory

position, it was time-barred, and discrimination claims brought

under, inter alia, Title VII, were properly dismissed).

The plaintiff acknowledges that “obviously the plaintiff’s

charges were filed with the EEOC more than 300 days after the

asserted acts of harassment by a supervisor.” (Pl. Br. at 6.) 

However, she contends that she is entitled to equitable estoppel

of the statute of limitations because “she was promised her

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complaint concerning the harassment would be investigated but

that promise was never kept in spite of numerous inquiries from

her,” and she suggests that “as a law enforcement officer,” she

was reasonable in taking the “promise of a full and fair

investigation from her superiors seriously” and being reluctant

to “move [the investigation] ‘out of house.’” (Pl. Br. at 7.) 

DCJ contends that the plaintiff has not established that she is

entitled to equitable tolling under the applicable standard. 

(Dkt. entry no. 10, DCJ Reply Br. at 2-5.) 

The parties do not dispute that the plaintiff’s failure-topromote claim, based on a discrete act occurring when she was

informed she would not be considered eligible for the supervisory

position on September 29, 2009, is timely. 

2. Court’s Ruling

The time limitations set forth in Title VII are subject to

equitable tolling. Oshiver v. Levin, Fishbein, Sedran & Berman,

38 F.3d 1380, 1387 (3d Cir. 1994); see also Zipes v. Trans World

Airlines, Inc., 455 U.S. 385, 393 (1982). The doctrine of

equitable tolling “functions to stop the statute of limitations

from running where the claim’s accrual date has already passed,”

and applies in three principal situations: “(1) where the

defendant has actively misled the plaintiff respecting the

plaintiff’s cause of action; (2) where the plaintiff in some

extraordinary way has been prevented from asserting his or her

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rights; or (3) where the plaintiff has timely asserted his or her

rights mistakenly in the wrong forum.” Oshiver, 38 F.3d at 1387. 

In the employment discrimination context, “the equitable tolling

doctrine may excuse the plaintiff’s non-compliance with the

statutory limitations provision at issue when it appears that (1)

the defendant actively misled the plaintiff respecting the reason

for the [adverse employment action], and (2) this deception

caused the plaintiff’s non-compliance with the limitations

provision.” Id. (emphasis added).

The Court finds that the plaintiff’s vague allegations that

she “made repeated inquiries” as to the status of her EEO

complaint do not support a plausible inference that she is

entitled to the benefit of equitable tolling of her Title VII

claim insofar as it concerns conduct allegedly occurring prior to

the limitations period. The allegations make clear that the

plaintiff knew of the alleged harassment and disparate treatment

at the time they occurred in 2007 and 2008, and nothing about her

“inquiries” regarding the internal investigation should have

prevented her from actively pursuing her claim in a timely

manner. Moreover, she does not actually allege any

misrepresentation made by DCJ; she simply alleges that “the

complaint was never investigated even though the Plaintiff made

repeated inquiries as to its status.” (Compl. at ¶ 14.) This

does not amount to the type of active deception required to

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invoke equitable tolling. See, e.g., Hill v. U.S. Gen. Servs.

Admin., No. 05-2092, 2008 WL 4371761, at *4 (D.N.J. Sept. 17,

2008); see also Robinson v. Dalton, 107 F.3d 1018, 1023 (3d Cir.

1997) (stating that plaintiff-initiated phone call inquiring

about pending EEO complaint did not entitle plaintiff to

equitable tolling, because it did not prevent him “in an

‘extraordinary way’ . . . from asserting his rights”). 

Accordingly, the Court will grant the motion insofar as it seeks

to dismiss the plaintiff’s Title VII claim as to allegations of

conduct occurring prior to August 12, 2009.

B. Discovery Regarding Pre-Limitations Period Alleged

Discrimination

The plaintiff, in her opposition brief, requests a

declaration that she be permitted to obtain discovery as to

discrete acts occurring before the limitations period as relevant

to the failure-to-promote claim. (Pl. Br. at 8-9.) DCJ “takes

no position” regarding this point, but contends that the

plaintiff’s discovery argument is premature, as the current

motion does not involve discovery. (DCJ Reply Br. at 5.)

The Court concurs with DCJ’s assessment of this matter. Any

potential dispute regarding discovery should be presented to the

Magistrate Judge by formal motion at the appropriate juncture,

not preemptively addressed by this Court at the current

procedural posture.

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C. Standalone Claim for Failure to Investigate Internal

EEO Complaint

1. Parties’ Arguments

The plaintiff further argues that she has stated a claim for

a Title VII violation based upon the failure to process the

plaintiff’s EEOC complaint, filed on December 30, 2009,

concerning her allegations surrounding the failure to promote,

and that such claim should not be dismissed. (Pl. Br. at 9-10;

Compl. at ¶¶ 38-39.) She contends that insofar as the internal

investigation process constituted a term and condition of her

employment, the failure to receive a timely response to her

complaint was motivated by the fact that “its subject matter

raised issues of racial and gender discrimination in the form of

the preference for white males in respect to promotions,” such

that “Title VII was violated.” (Pl. Br. at 10.) 

DCJ argues that this claim is part of her time-barred

hostile work environment claim, and cannot constitute a separate

viable claim under Title VII. (DCJ Reply Br. at 5.) DCJ

contends that in any event, Plaintiff failed to exhaust

administrative remedies as to her claim, insofar as her EEO

complaint was investigated by the Attorney General’s Office of

Equal Employment Opportunity; that she was advised by letter

dated February 15, 2011, that the investigation had determined

that her claims were not substantiated; and that despite being

given notice of her right to appeal those findings, the plaintiff

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failed to pursue such appeal, instead filing the Complaint in

this action on October 24, 2011. (Id. at 6.)

2. Court’s Ruling

The Court finds that the plaintiff has not stated a

standalone claim for violation of Title VII based on the alleged

failure or delay of “the State . . . to process the plaintiff’s

second [EEO] complaint.” (Pl. Br. at 10.) The Complaint is

devoid of any attribution to the delay of a discriminatory motive

or animus; it simply states that (1) she “filed per State policy

a complaint of discrimination,” (2) the complaint “was

acknowledged as received by the EEO office on December 30, 2009”;

(3) the EEO policy of DCJ “requires that all complaints be

investigated within 120 days,” and (4) despite this requirement,

“the Plaintiff’s second EEO complaint was not investigated within

the promised period.” (Compl. at ¶¶ 38-41.) In the alternative,

such claim is subject to dismissal on the basis that the

plaintiff has failed to exhaust her administrative remedies with

respect to her second EEO complaint. (See DCJ Reply Br. at 5.) 

See Wilson v. MVM, Inc., 475 F.3d 166, 176 (3d Cir. 2007)

(stating that plaintiffs must exhaust grievance process available

to them under a collective bargaining agreement unless

“unavailable or patently inadequate” before seeking relief under

the Rehabilitation Act or 42 U.S.C. § 1983). Plaintiff has not

alleged facts showing that the internal EEO procedure was

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“unavailable or patently inadequate,” only that the investigation

was delayed, and further has not alleged that she exhausted

remedies available pursuant to that procedure. Therefore, to the

extent the plaintiff seeks in her opposition brief to have the

Court recognize a separate claim under Title VII for a delay in

investigating her second EEO complaint, the Court will decline to

do so. 

CONCLUSION

The Court, for the reasons stated supra, will grant the

motion. The Complaint will be dismissed, except with respect to

the plaintiff’s failure to promote claim. The Court will issue

an appropriate order.

 s/ Mary L. Cooper 

MARY L. COOPER

United States District Judge 

Dated: January 26, 2012

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