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NOT FOR PUBLICATION 

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

SOLY SERRANO,

 Plaintiff,

 v.

MARCAL PAPER MILLS, LLC,

 

 Defendants.

 Civil Action No. 11-03501

 (SDW) 

 OPINION

 January 30, 2012

WIGENTON, District Judge.

Before the Court is defendant Marcal Paper Mills, LLC‟s (“Defendant” or 

“Marcal”) motion to dismiss plaintiff Soly Serrano‟s (“Plaintiff” or “Serrano”) complaint 

pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Motion”).

The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331, 1441 

and 1446. The Court has supplemental jurisdiction over the state law claims pursuant to 

28 U.S.C. § 1367. Venue is proper under 28 U.S.C. § 1391. 

The Court, having considered the parties‟ submissions, decides the motion 

without oral argument pursuant to Federal Rule of Civil Procedure 78.

For the reasons stated below, the Court GRANTS IN PART AND DENIES IN 

PART Defendants‟ Motion. 

FACTUAL AND PROCEDURAL HISTORY

Plaintiff is “profoundly deaf and communicates primarily through American Sign 

Language.” (Compl. ¶ 1.) On March 11, 2009, Plaintiff attended an open house for 

Marcal with her job coach. (Id. ¶ 1.) She submitted her resume, completed an 

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application, and was listed for an interview for a production worker position. (Id.) 

Allegedly, when her name was called, she was informed by her job coach that “an 

individual named Francisco Pacheco from Marcal stated that Marcal would not hire 

individuals who cannot speak or write in English and she was denied an interview for the 

position solely based on her deafness.” (Id.)

Plaintiff claims that she received an email from a friend from Goodwill, Deborah 

Smith, regarding the position, which did not mention “that the requirement to write and 

speak English was absolutely essential for a production worker position with Defendant.” 

(Id. ¶ 2.) Allegedly, the email only specified the requirement that potential worker be 

“able to work in a fast paced environment, stand for long periods of time, able to lift a 

minimum of 25 lbs, have good hand-eye coordination and that previous production 

experience and good math skills [were] a plus.” (Id.) Plaintiff alleges that Defendant 

“failed to do any inquiry of plaintiff‟s qualifications solely based on her disability of 

deafness.” (Id.) Plaintiff claims that her background as an insurance worker, listed on 

her resume, would have made it obvious that Plaintiff could read and write English. (Id.) 

On March 31, 2011, Plaintiff was issued a right-to-sue letter from the EEOC. 

On May 5, 2001, Plaintiff filed a complaint in Superior Court, Essex County, Law 

Division (“Complaint”). On June 16, 2011, this matter was removed to federal court. On 

July 7, 2011, Defendant filed the instant Motion.

DISCUSSION

Plaintiff alleges that Defendant violated NJLAD and the ADA, Title I, 42 U.S.C. 

§ 12111. (See Compl.) She asserts that once Defendant realized she was disabled, 

Defendant did not accept her application or assess her qualifications, much less discuss 

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reasonable accommodations. (Id. ¶ 2.) Defendant filed the instant Motion seeking to 

dismiss Plaintiff‟s Complaint, asserting that both the ADA and NJLAD claims are timebarred.

I. The ADA Claim is not Subject to a Two-Year Statute of Limitations. 

When Congress creates a cause of action and has not specified the period of time 

within which it may be asserted, the courts have frequently inferred that Congress 

intended that a local time limitation should apply. Occidental Life Ins. Co. of Cal. v. 

EEOC, 432 U.S. 355, 367 (1977). State law acts as a guide in this area, but it is not an 

exclusive guide. Johnson v. Ry. Express Agency, 421 U.S. 454, 465 (1975). State 

statutes of limitations will not be borrowed if their application will be inconsistent with 

the underlying policies of the federal statute. Occidental, 432 U.S. at 369. Federal policy 

requires employment discrimination claims to be investigated by the EEOC and, 

whenever possible, administratively resolved before suit is brought in a federal court. 

Occidental, 432 U.S. at 368. In such instances, it is not appropriate to rely on state 

statute limitations. Johnson, 421 at 465. 

“If Congress explicitly puts a limit upon the time for enforcing a right which it 

created, there is an end of the matter. The Congressional statute of limitation is 

definitive.” Holmberg v. Armbrecht, 327 U.S. 392, 395 (1946). In such a case, there is 

no gap that must be filled by borrowing a state statute of limitations. EEOC v. Waffle 

House, Inc., 534 U.S. 279, 297-98 (2002). 

“Under Title I of the ADA, an employer is prohibited from discriminating against 

a qualified individual with a disability with regard to job application procedures, hiring, 

advancement, discharge, employee compensation, job training or other terms, conditions 

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and privileges of employment.” Saylor v. Ridge, 989 F. Supp. 680, 684 (E.D. Pa. 1998)

(citing 42 U.S.C. § 12112(a)). Title I incorporates the powers, remedies, and procedures 

of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 12117 (2006).

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 Therefore, 

“Congress has directed the EEOC to exercise the same enforcement, powers, remedies, 

and procedures that are set forth in Title VII . . . when it is enforcing the ADA‟s 

prohibitions against employment discrimination on the basis of disability.” Waffle House, 

Inc., 534 U.S. at 285. 

A plaintiff alleging a claim under the ADA must file a Charge of Discrimination 

with the EEOC within 180 days of the alleged unlawful practice, or within 300 days if 

filed with a state agency. See 29 U.S.C. § 626(d)(1)(4) (2006) (providing 180 days for 

EEOC); 42 U.S.C. § 2000e-5(e)(1) (2006) (providing 300 days for state agency). 

Plaintiff must file a claim in court within ninety days of receiving a right-to-sue letter 

from the EEOC or state agency. See 42 U.S.C. § 2000e-5(f)(1) (2006); Churchill v. Star 

Enters., 183 F.3d 184, 190 (3d Cir. 1999) (explaining that Title VII procedures set out in 

42 U.S.C. § 2000e-5 apply to ADA claims); see also 42 U.S.C. § 12117. These filing 

requirements are treated as statutes of limitations. Zipes v. Trans World Airlines, Inc., 

455 U.S. 385, 393 (1982). 

The statute of limitations does not begin to run unless and until there is “final 

agency action,” such as the issuance of a right to sue letter. Waiters v. Parsons, 729 F.2d 

233, 237 (3d Cir. 1984) (“The statute of limitations begins to run, however, only in the 

 

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Section 12117(a) provides: The powers, remedies, and procedures set forth in sections 705, 706, 707, 709, 

and 710 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9) 

shall be the powers, remedies, and procedures this title provides to the Commission, to the Attorney 

General, or to any person alleging discrimination on the basis of disability in violation of any provision of 

this Act, or regulations promulgated under section 106 [42 USCS § 12116], concerning employment. 42 

U.S.C. § 12117 (2006).

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event that there is „final agency action.‟ Final agency action can take the form of a „right 

to sue‟ letter . . . .”) Title VII and Title I claims are different than Title II or Title VI 

claims because the procedural requirement to exhaust administrative remedies is different 

depending on the Title. Bracciale v. City of Phila., No. CIV. A. 97-2464, 1997 WL 

672263, at *8 (E.D. Pa. Oct. 29, 1997) (“Unlike Title I, adopting the procedures of Title 

VII, Title II adopts the remedies and procedures of § 505 of the Rehabilitation Act.”). In 

contrast to Title II, Title I adopts the procedures of Title VII and requires that a plaintiff 

must exhaust all administrative remedies before he or she can bring suit in court. 

Kramer v. Exxon Mobil Corp., No. CIV A 07-0436, 2009 WL 1544690, at *4 (D.N.J. 

June 3, 2009) (“Title I, which expressly incorporates the procedures and remedies 

provided by Title VII of the Civil Rights Act of 1964, includes a requirement that charges 

of employment discrimination must first be filed with and investigated by the EEOC . . . . 

Because [Plaintiff‟s] ADA claims are only viable under Title I of the ADA, he was 

required to exhaust administrative remedies prior to filing them with this Court.”); 

Saylor, 989 F. Supp. at 685 (“A plaintiff alleging a violation of Title I must exhaust 

administrative remedies available through the Equal Employment Opportunity 

Commission (“EEOC”) before instituting a private lawsuit . . . . Unlike Title I, there is no 

requirement that administrative remedies first be exhausted before suit may be 

commenced [for Title II].”)

2

 The statute of limitations does not begin to run in a Title 

 

2 The Third Circuit has discussed the different standards for accessing the statutes of limitations and 

procedures of the Titles of the ADA. Compare Burkhart v. Widener Univ., Inc., 70 F. App‟x 52, 53 (3d 

Cir. 2003) (“Because the ADA [Title III and Title IV case] does not contain a statute of limitations, we 

apply the most appropriate or analogous state statute of limitations.”), with Burgh v. Borough Council of 

Montrose, 251 F.3d 465, 472 (3d. Cir. 2001) (Congress‟ statutory limitations period for employment 

discrimination claims under Title VII “represent the congressional determination of the relevant and proper 

time limitations under Title VII. The imposition of an additional limitations period is inconsistent, and 

indeed in direct conflict, with the plain language of the federal statute.”); see also Waiters v. Parsons, 729 

F.2d at 237. 

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VII, and therefore Title I case, until there is a “final agency action.” See Waiters v. 

Parsons, 729 F.2d at 237. 

Defendant argues that the ADA claim is subject to a two-year statute of 

limitations. Defendant relies on Apionishev v. Columbia Univ., No. 09 Civ. 6471, 2011 

WL 1197637 (S.D.N.Y. Mar. 25, 2011), which involved claims under Title VII, ADA, 

and the New York City Human Rights Law. However, the case cited in Apionishev, was 

a Title II case, Pape v. Board of Educ. of Wappingers Central Sch. Dist., No. 07-CV8828, 2009 WL 3151200, at *8 (S.D.N.Y. Sept. 29, 2009). Title II of the ADA addresses 

public services and entities discrimination. 42 U.S.C. §§ 12131-65 (2006). The case 

before this Court is filed under Title I of the ADA, which incorporates the powers, 

remedies, and procedures of Title VII. Additionally, the plaintiff in Apionishev waited 

four years after the date of the discrimination to file a claim with the EEOC, thus barring 

the initial filing under the EEOC‟s filing requirements. Apionishev, 2011 WL 1197637, 

at *6.

Here, Defendant‟s reliance on a footnote in Connolly v. Mitsui O.S.K. Lines 

(America) Inc., No. 04-CV-5127, 2006 WL 2466848 (D.N.J., Aug. 24, 2006), is also 

misguided. In Connolly, the court noted that “since the ADA does not contain a statute of 

limitations provision, courts apply the most appropriate or analogous New Jersey statute 

of limitations.” Id. at *6 n. 2. However, that holding relied upon Goodman v. Lukens 

Steel Co., which concerned a § 1981 claim. Goodman v. Lukens Steel Co., 482 U.S. 656, 

660 (1987). Also, the main issue in Connolly did not involve the statute of limitations; 

but rather, notice and service.

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In the instant matter, Plaintiff‟s claim with the EEOC met the time limitations 

required, and as a result the ADA claim is not time-barred. The allegedly unlawful 

practice occurred on March 11, 2009 (Compl. ¶ 1.) Plaintiff filed a charge with the EEOC 

alleging disability discrimination on December 9, 2009. (Pl.‟s Letter Br. in Opp‟n to 

Def.‟s Mot. to Dismiss Ex. D) The EEOC issued a right-to-sue letter on March 31, 2011. 

(Compl. ¶ 4.) Plaintiff had to file in court within ninety days of receiving the right-to-sue 

letter. On May 5, 2011, Plaintiff filed a complaint in the Superior Court of New Jersey,

which the Defendant removed to federal court on the grounds of federal question 

jurisdiction. (Def.‟s Mot. to Dismiss 2.)

II. The NJLAD Claim is Time-Barred by the Two-Year Statute of 

Limitations.

NJLAD, like the ADA, prohibits unlawful discrimination against employees on 

the basis of disability. See N.J.S.A. 13:13-2.5(b). Unlike the ADA, the NJLAD does not 

require a plaintiff to exhaust administrative remedies before filing a complaint in court. 

Hernandez v. Region Nine Hous. Corp. 146 N.J. 645, 654, 684 A.2d 1385, 1389 (1996). 

A plaintiff may pursue a claim of discrimination in court if the complaint is filed within 

two years of the allegedly unlawful conduct. See Montells v. Haynes, 133 N.J. 282, 292,

627 A.2d 654, 659 (1993) (holding that two-year statute of limitations for personal injury 

claims applies to all NJLAD claims). However, if a plaintiff pursues an administrative 

remedy, he or she may not simultaneously pursue a claim in court, and the two-year

statute of limitations is not tolled by the administrative proceeding. Omogbehin v. 

Dimensions Int’l, Inc., No. 08-3939, 2009 WL 2222927, at *3 (D.N.J. July 22, 2009). 

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The New Jersey Supreme Court has adopted the federal framework for 

determining when an NJLAD claim accrues. See Roa v. Roa, 200 N.J. 555, 568, 985 

A.2d 1225, 1232 (2010). Discrete acts of discrimination accrue “the day on which those 

individual acts occurred.” Shepherd v. Hunterdon Dev. Ctr., 174 N.J. 1, 21, 803 A.2d 

611, 623 (2002). 

The alleged act of unlawful discrimination occurred on March 9, 2009. Plaintiff‟s 

claim therefore accrued on March 9, 2009. Plaintiff filed her complaint on May 5, 2011, 

more than two years after the statute of limitations expired. New Jersey applies the 

federal framework regarding accrual of NJLAD claims; therefore this Court finds that

Plaintiff‟s claim regarding the NJLAD is time-barred. 

CONCLUSION

For the foregoing reasons, Defendant‟s Motion is DENIED IN PART AND 

GRANTED IN PART. 

s/ Susan D. Wigenton, U.S.D.J.

Orig: Clerk

cc: Parties

Magistrate Judge Arleo 

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