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Dismissal of former Bayonne employee’s hostile work environment suit upheld

An appeals court ruled in agreement with the lower court

Percella took the podium at the February meeting of the Bayonne City Council. Photo by Daniel Israel.

An appeals court has upheld the dismissal of a federal lawsuit by a former Bayonne city employee alleging a hostile work environment. The U.S. Court of Appeals for the Third Circuit upheld the dismissal of Stacie Percella’s lawsuit in a ruling on June 21.

The appellant, former deputy registrar for the Bayonne Health Department for nearly 15 years Stacie Percella, alleged that one of her past bosses and one of her past co-workers subjected her to a hostile work environment and sexual harassment.

In her suit, she alleged that former colleague Richard Censullo had used sexually suggestive language to her. Additionally, Percella alleged that her former boss Joe Waks had used profane language in her presence habitually, as well as threw a pencil at her in one instance and placed a “sexually suggestive and misogynistic” kitchen magnet near her workspace.

The United States District Court for the District of New Jersey dismissed the case in 2019, to which Percella appealed. However the court ruled in favor of the appellees, Censullo, Waks, and the City of Bayonne.

Appeals court agrees with lower court

The decision to uphold the dismissal was handed down by U.S. District Court Judge Richard G. Stearns for the District of Massachusetts. Prior to the ruling, the case was argued before U.S. District Judges Andrew E. Krause, Peter J. Phipps, and Stearns on May 25.

“On August 5, 2019, Percella emailed seventy requests for admissions to the Appellees. The Appellees did not respond to the requests,” Stearns said. “After discovery concluded, Appellees moved for summary judgment on all claims. District Court rejected Percella’s argument that Appellees’ failure to respond to her requests for admissions and their alleged failure to move to withdraw or amend the (constructive) admissions precluded entry of summary judgment in their favor.

“Instead, the District Court deemed the admissions withdrawn and granted summary judgment to Appellees on all counts except the state-law hostile work environment claim. The parties cross-moved for reconsideration, and the District Court, after a reexamination of the factual record underlying the hostile work environment claim, entered summary judgment for Appellees on this claim as well. We will affirm.”

Additionally, the Court of Appeals ruled that the appellees did not deny that they never responded to Percella’s requests for admissions and never filed a formal motion to withdraw or amend the resulting admissions. While Stearns also wrote that “a district court errs when it withdraws admissions without any prompting by the parties,” he continued that “it does not specify the precise form a motion to withdraw or amend must take.”

“In this case, Appellees raised the issue in a letter brief filed on July 20, 2020, in response to Percella’s opposition to their motion for summary judgment and her cross-motion for summary judgment,” Stearns wrote. “The letter brief objected inter alia to the fact that Percella had failed to properly notice the cross-motion and “ha[d] tried to base her entire argument [for brevis disposition] on [Appellees’] failure to answer [her] Requests for Admissions.”

Ruling in favor of appellees

According to the ruling, the appellees accused Percella of engaging in a disfavored litigation tactic, noting that “the only possible purpose of requesting an admission by [a party] contrary to [its] previously stated opinion was the hope that [it] would not answer and that [its] failure to answer could be used to seek judgment against [it].”

Stearns wrote that the “appellees also stated that there would be no prejudice to Percella in allowing the withdrawal of the admissions, because they had previously denied the statements in the requests for admissions… The District Court agreed, adding the observation that many of the seventy requests consisted of generalized calls for legal conclusions that, even if admitted, would not have any impact on the outcome.”

According to Stearns, the Court of Appeals agreed with the District Court.

“Under the circumstances, we discern no error in the District Court’s decision to treat the letter brief requesting that the admissions be withdrawn as a ‘motion’ that could trigger a withdrawal analysis under Rule 36(b), and likewise no error in its finding that the requirements of that rule were met here,” Stearns said.

“Percella’s additional claims of error lack merit. The District Court properly rejected her contention that the continuing violation doctrine applies to save her First Amendment retaliation claims. Under the continuing violation doctrine, ‘when a defendant’s conduct is part of a continuing practice, an action is timely so long as the last act evidencing the continuing practice falls within the limitations period.'”

Stearns said the court has previously held that certain discrete employment events are not subject to the continuing violation doctrine, including the following non-exhaustive list: “termination, failure to promote, denial of transfer, refusal to hire, wrongful suspension, wrongful discipline, denial of training, [and] wrongful accusation.”

Percella’s pre-limitations period suspensions and transfer were discrete actions not subject to the continuing violations doctrine, he wrote.

Stearns concluded: “We also agree with the District Court that Percella’s tortious interference claim against Censullo fails, as she is unable to prove that she had an independent employment contract with the City by virtue of her Employee Handbook, which explicitly disclaimed any such contractual intent. The good faith and fair dealing claim against the City also fails as the covenant does not support a cause of action independent of the contract to which it adheres. Finally, Percella’s contention that the District Court erred in holding that punitive damages could not be awarded on summary judgment is simply wrong as a matter of law.”

Percella to appeal

Percella plans to appeals this latest federal ruling. Meanwhile, she also has pending litigation against Mayor James Davis and his administration.

In that suit, Percella alleges Davis abused his office by offering to settle the federal lawsuit in exchange for a sexual relationship, as well as “sexting” her while she was still an employee. Back in March, a judge ruled that Davis and other city officials must give depositions in court regarding that case.

After being postponed twice, the “sexting” lawsuit currently has a trial date of January 3, 2023. This is the third active lawsuit against the city alleging some form of hostile work environment, sexual harassment, and or discrimination, including those by former clerk for the city Sincerrae Ross and now-outgoing Business Administrator Melissa Mathews.

For updates on this and other stories, check www.hudsonreporter.com and follow us on Twitter @hudson_reporter. Daniel Israel can be reached at disrael@hudsonreporter.com. 

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