May v. BOROUGH OF PINE HILL
755 F. Supp. 2d 623
D.N.J.2010Background
- Plaintiff Diana May alleges sexual harassment by Costantino and Kearney and retaliatory dismissal by the same Defendants and Pine Hill.
- May, appointed tax collector in 1991, was tenure-protected as an unclassified civil servant.
- Kearney became Pine Hill’s solicitor in 2007; Costantino was elected mayor in 2007.
- Harassment by Costantino allegedly occurred 2007–2009; harassment by Kearney allegedly occurred in November 2007 at a meal.
- Alleged improper property transactions by Kearney in 2008–2009 led May to be warned and, later, to confrontations.
- In August 2009 Pine Hill filed criminal charges against May; December 2009 Pine Hill filed a DLOs complaint; removal proceedings ensued.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is Kearney’s Count One time-barred? | May contends continuing violation extends period. | Kearney’s conduct was a single discrete act outside the period. | Count One against Kearney dismissed as time-barred. |
| Do Counts Two and Three require a contract with Pine Hill? | There was an oral contract memorialized by handbook and statute. | Effective at-will disclaimers negate any contract; no memorialization. | Counts Two and Three dismissed for lack of contract. |
| Have Counts Four, Five, and Ten satisfied notice of tort claim requirements? | Substantial compliance should toll notice requirements. | No substantial compliance; notices not provided. | Counts Four, Five, and Ten dismissed for failure to provide or substantially comply with notice. |
| Does Count Seven create a private right of action under 40A:9-145.8? | Statute creates private right of action for removal. | No private right of action; remedies exist via Title 11A and administrative process. | Count Seven dismissed for lack of private right of action. |
Key Cases Cited
- Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1 (2002) (test for continuing violation under NJLAD)
- Montells v. Haynes, 133 N.J. 282 (1993) (NJLAD statute of limitations framework)
- Roa v. Roa, 200 N.J. 555 (2010) (continuing violation theory applicable to pattern)
- Nicosia v. Wakefern Food Corp., 136 N.J. 401 (1994) (enforces at-will disclaimer effect in contracts)
- In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410 (3d Cir. 1997) (integral-document rule for motion to dismiss)
- Woolley v. Hoffmann-La Roche, 99 N.J. 284 (1985) ( handbook can memorialize contract with disclaimer relevance)
- Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003) (five-part substantial compliance test for notices)
- Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (pleading standard requires plausible claims)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for pleading)