                                NOT FOR PUBLICATION WITHOUT THE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.




                                                         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
      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




                                                                        A-4722-16T1
                                       2
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.
                                                                            A-4722-16T1
                                          3
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


                                                                          A-4722-16T1
                                        4
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

                                                                           A-4722-16T1
                                          5
             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).
                                                                            A-4722-16T1
                                         6
      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

                                                                      A-4722-16T1
                                        7
            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.



                                                                          A-4722-16T1
                                        8
                                        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




                                                                          A-4722-16T1
                                        9
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


                                                                            A-4722-16T1
                                        10
experiences a "continual, cumulative pattern of tortious conduct, the statute of

limitations does not begin to run until the wrongful act ceases." Wilson v. Wal-

Mart 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.


                                                                         A-4722-16T1
                                       11
      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.


                                                                            A-4722-16T1
                                        12
                                         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




                                                                              A-4722-16T1
                                        13
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:


                                                                             A-4722-16T1
                                        14
             [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 employment-
             discrimination 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



                                                                           A-4722-16T1
                                        15
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

                                                                         A-4722-16T1
                                      16
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.




                                                                         A-4722-16T1
                                      17
