Stacie Percella v. CITY OF BAYONNE, JOSEPH WAKS, individually

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
STACIE PERCELLA,
Appellant
v.
CITY OF BAYONNE,
JOSEPH WAKS, individually and RICHARD CENSULLO, individually
_______________
On Appeal from the United States District Court
for the District of New Jersey
(No. 2:14-cv-03695)
Honorable Kevin McNulty, U.S. District Judge
_______________
Argued
On May 25, 2022
Before: KRAUSE, PHIPPS, Circuit Judges and STEARNS*, District Judge.
(Filed: June 21, 2022)
* Honorable Richard G. Stearns, United States District Court Judge for the District
of Massachusetts, sitting by designation.
_____________
No. 21-1504
_____________

-- 1 of 8 --

2
Vincent F. Gerbino, Esq. (Argued)
Bruno Gerbino Soriano & Aitken
445 Broad Hollow Road
Suite 420
Melville, NY 11747
Counsel for Appellant
Nicholas A. Sullivan, Esq. (Argued)
Florio Perrucci Steinhardt Cappelli Tipton & Taylor
1010 Kings Highway South
Building 2
Cherry Hill, NJ 08034
Drew D. Krause, Esq. (Argued)
Chasan Lamparello Mallon & Cappuzzo
300 Lighting Way
Suite 200
Secaucus, NJ 07094
Counsel for Appellees
______________
OPINION∗∗
_______________
STEARNS, District Judge.
Appellant Stacie Percella challenges the District Court’s award of summary
judgment to Appellees, City of Bayonne, Joseph Waks, and Richard Censullo. Percella
worked for the City of Bayonne for fifteen years, beginning with her appointment as
∗∗ This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does
not constitute binding precedent.

-- 2 of 8 --

3
Deputy Registrar of the Health Department in 2006. Her relationship with her employer
was troubled: Percella repeatedly filed complaints with the City alleging misconduct by
other employees; she was suspended and transferred multiple times during her tenure,
primarily (according to the City) because of her unprofessional conduct. Percella contends
that she was disciplined in retaliation for exercising her First Amendment rights. Percella
also alleges that City officials had subjected her to harassment, specifically that Censullo
had directed sexually suggestive language to her and that Waks had habitually used profane
language in her presence, once threw a pencil at her, and had posted a sexually suggestive
and misogynistic kitchen magnet near her workspace.1
Percella’s Amended Complaint asserts multiple counts: (1) violation of 42 U.S.C.
§ 1983 against the City and Waks for retaliating against Percella in violation of her First
and Fourteenth Amendments rights; (2) discrimination and harassment, hostile work
environment, and retaliation against the City and Waks in violation of the New Jersey Law
Against Discrimination (“NJLAD”), N.J. Stat. Ann. §§ 10:5-1 et seq.; and (3) claims of
tortious contractual interference against Censullo and breach of the implied covenant of
good faith and fair dealing against the City.
1 There is a dispute of fact as to whether Waks posted one or multiple magnets, and
Percella asserts that the District Court overstepped in making the finding that there was
only one. We view this dispute as immaterial, however, because the presence of even
several magnets would not have changed the analysis of whether this rose to the level of a
“rare and extreme” case in which a single incident is so severe that it creates a hostile work
environment. See Taylor v. Metzger, 706 A.2d 865, 869 (N.J. 1998) (quoting Lehmann v.
Toys ‘R’ Us, Inc., 626 A.2d 445, 455 (N.J. 1993)).

-- 3 of 8 --

4
On August 5, 2019, Percella emailed seventy requests for admissions to the
Appellees. The Appellees did not respond to the requests. 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.2
We exercise plenary review over a district court’s order granting summary
judgment. See Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014). While
we review a district court’s decision whether to allow the withdrawal or amendment of
admissions for abuse of discretion, see Gwynn v. City of Phila., 719 F.3d 295, 298–99 (3d
Cir. 2013), our review of a district court’s interpretation of the Federal Rules of Civil
Procedure is de novo, see EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 264 (3d Cir.
2010).
During discovery, a party may serve on another party a request that it admit the truth
of matters relating to “(A) facts, the application of law to fact, or opinions about either; and
2 The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction
pursuant to 28 U.S.C. § 1291.

-- 4 of 8 --

5
(B) the genuineness of any described documents.” Fed. R. Civ. P. 36(a)(1). A matter is
admitted unless a party responds or objects within thirty days of being properly served.
See Fed. R. Civ. P. 36(a)(3). An admitted matter is conclusively established unless the
district court, “on motion,” allows the withdrawal or amendment of the admission. Fed.
R. Civ. P. 36(b). The district court may permit withdrawal or amendment, subject to Rule
16(e), “if it would promote the presentation of the merits of the action and if the court is
not persuaded that it would prejudice the requesting party in maintaining or defending the
action on the merits.” Id.
Appellees do not deny that they (1) never responded to Percella’s requests for
admissions and (2) never filed a formal motion to withdraw or amend the resulting
admissions. The plain language of Rule 36 permits a district court to withdraw admissions
upon a party’s motion. See Fed. R. Civ. P. 36(b). Thus, we hold, as have at least two of
our sister circuits, that a district court errs when it withdraws admissions without any
prompting by the parties. See Goodson v. Brennan, 688 F. App’x 372, 375 (6th Cir. 2017)
(holding that sua sponte withdrawal of admissions “contravenes the plain language of Rule
36.”); Am. Auto. Ass’n (Inc.) v. AAA Legal Clinic of Jefferson Crooke, P.C., 930 F.2d 1117,
1120 (5th Cir. 1991) (same).
While Rule 36 does not authorize a district court to unilaterally withdraw or amend
an admission, 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. The letter brief objected inter alia to the fact that Percella

-- 5 of 8 --

6
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.”
App. 1155-56.
The letter brief then drew the court’s attention to Rule 36 and, citing Sunoco, Inc.
(R & M) v. MX Wholesale Fuel Corp., 565 F. Supp. 2d 572 (D.N.J. 2008), argued that the
court had the authority to deem the admissions withdrawn in deference to the principle
“that a disposition on the merits is preferred over a decision based upon procedural
technicalities.” App. 1156 (quoting Sunoco, 565 F. Supp. 2d at 577). 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].” App. 1156 (quoting Hungerford v. Greate Bay Casino Corp., 517
A.2d 498, 501 (N.J. Super. Ct. App. Div. 1986)). Finally, Appellees 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 in their Answer to the
Complaint and response to Percella’s Rule 56.1(a) Statement of Material Facts. App. 1158-
59.
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. For example, Request 23 states, “Defendant City of Bayonne
has failed to abide by its own procedures and those required by law when suspending or
otherwise disciplining Plaintiff.” App. 847. Some requests sought information that was

-- 6 of 8 --

7
not material to any claim pled by Percella in the Amended Complaint. See, e.g., Request
19 (“Plaintiff was offered an opportunity for required training by the State of New Jersey,
but Defendant failed to take the necessary steps in order for Plaintiff to obtain the
training.”). App. 846. Most others, as Appellees had pointed out, were addressed in their
legally binding answers to the Complaint. 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.3
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.” Tearpock-Martini v. Borough of
Shickshinny, 756 F.3d 232, 236 (3d Cir. 2014) (quoting Brenner v. Local 514, United Bhd.
of Carpenters & Joiners of Am., 927 F.2d 1283, 1295 (3d Cir. 1991)). We have 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
3 While we conclude the District Court did not err in its ultimate ruling, we note
that, as a general matter, it would accord with best practices for a district court, upon receipt
of a request for the court to withdraw admissions on its own motion, to invite the requesting
party to make its own motion under Rule 36(b) or at least give the parties notice of its intent
to treat the request as a Rule 36(b) motion and to invite a response from the affected party.

-- 7 of 8 --

8
training, [and] wrongful accusation.” O’Connor v. City of Newark, 440 F.3d 125, 127 (3d
Cir. 2006). Percella’s pre-limitations period suspensions and transfer were discrete actions
not subject to the continuing violations doctrine.
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.
For the foregoing reasons, we will affirm the judgment of the District Court.

-- 8 of 8 --