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April 28, 1989

JOHNSON & JOHNSON PRODUCTS, INC., et al., Defendants

The opinion of the court was delivered by: WOLIN

 Plaintiff Mary E. White has brought this action for alleged racial discrimination under 42 U.S.C. § 1981; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; and the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. § 10:5-1 et seq. White, a black woman, was employed from 1975 until her discharge on August 27, 1984 as a scientist with defendant Johnson & Johnson Products, Inc. (JJP). She alleges that JJP discriminated against her with respect to job promotions, denied her terms and conditions of employment equivalent to those offered to similarly situated white males, subjected her to harassment because of her race, and fired her in retaliation for her bringing administrative charges of discrimination before the New Jersey Division of Civil Rights and the federal Equal Employment Opportunity Commission. Plaintiff has also named as defendants Drs. John V. Scibelli and Thomas Gerding, who were, respectively, her direct and indirect supervisors at JJP. White seeks legal and equitable remedies, including compensatory and punitive damages, retroactive reinstatement and promotion, backpay and frontpay. Defendants deny that they engaged in racial discrimination and allege that all actions taken against plaintiff were based on legitimate business reasons having nothing to do with race. Defendants further deny that plaintiff's discharge was retaliatory, citing instead plaintiff's alleged falsification of scientific data pertaining to the testing of JJP products.

 In their answer defendants raise various statute-of-limitations defenses that allegedly bar each of plaintiff's claims in part. The allegedly discriminatory acts took place from October 1982 until plaintiff's discharge on August 27, 1984; plaintiff did not file suit until April 11, 1985. The parties have addressed the validity of these defenses in their pre-trial memoranda. Having carefully considered the parties' arguments, the Court finds the statute-of-limitations defenses with respect to the § 1981 and NJLAD claims to be unavailing and will thus strike those defenses.


 I. Section 1981 Claims

 Defendants argue that plaintiff's claims under 42 U.S.C. § 1981 are partially time barred by virtue of Goodman v. Lukens Steel Co., 482 U.S. 656, 107 S. Ct. 2617, 96 L. Ed. 2d 572 (1987). In Goodman the Supreme Court held that because § 1981 does not contain a statute of limitations, federal courts should select and apply "the most appropriate or analogous state statute of limitations." Id. at 660, 107 S. Ct. at 2620. The Court went on to hold that the applicable statute of limitations for § 1981 claims is the state statute pertaining to personal injury claims. Id. at 661, 107 S. Ct. at 2621. In so holding the Supreme Court rejected an argument that the (generally longer) contract statute of limitations should apply. Id.

 N.J.S.A. § 2A:14-2 provides a two-year limitations period for claims involving tortious injury to the person of another. Plaintiff was discharged on August 27, 1984 and filed suit on April 11, 1985. Defendants contend that the application of the two-year statute of limitations would bar any acts of discrimination that occurred prior to April 11, 1983. For example, plaintiff alleges that her removal from the managerial ladder and placement on the technical ladder by defendant Scibelli in January 1983 was a racially motivated demotion. She also alleges that she was excluded from a departmental meeting convened by Scibelli on April 5, 1983 on the basis of her race. Defendants would have this Court exclude evidence of these acts and all other alleged acts of racial discrimination occurring before April 11, 1983.

 As plaintiffs point out, however, the rule in Goodman does not necessarily apply to this particular case. Although the Goodman Court recognized that the usual rule is that federal cases should be decided under the law as it stands at the time of decision, the Court noted that nonretroactivity is necessary to avoid injustice where the decision "overrule[s] clear Circuit precedent on which the complaining party was entitled to rely, because the new limitations period [was] occasioned by a change in the substantive law the purpose of which would not be served by retroactivity." Id. 107 S. Ct. at 2621 (citing Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S. Ct. 349, 30 L. Ed. 2d 296 (1971)). The Goodman Court nevertheless did not grant petitioners the benefit of nonretroactivity, but its refusal to do so was based on the fact that at the time their cause of action arose (and until four years thereafter) there was no circuit court authority holding in petitioners' favor on which they were entitled to rely. Id. 107 S. Ct. at 2621-22. The Court cited with approval and went out of its way to distinguish Al-Khazraji v. St. Francis College, 784 F.2d 505 (3d Cir. 1986), aff'd, 481 U.S. 604, 107 S. Ct. 2022, 2025-26, 95 L. Ed. 2d 582 (1987), a case in which the Third Circuit refused to apply the personal injury statute of limitations retroactively in a § 1981 action because at the time appellant's cause of action arose there was reliable authority holding that the (longer) contract statute of limitations applied in § 1981 claims. Id. at 512-14 (citing Meyers v. Pennypack Woods Home Ownership Ass'n, 559 F.2d 894 (3d Cir. 1977) and other cases); see Goodman, 107 S. Ct. at 2621-22. Indeed, one month before its opinion in Goodman the Supreme Court had affirmed the Third Circuit's ruling in Al-Khazraji, although for some reason the Goodman opinion makes no mention of that affirmance.

 The case at bar falls squarely within the nonretroactivity exception recognized by the Supreme Court in Goodman and applied by the Supreme Court and the Third Circuit in Al-Khazraji. Plaintiff Mary White's cause of action arose after 1977, when the principle of Meyers was established, but before the Supreme Court's opinion in Goodman (and arguably Wilson v. Garcia, 471 U.S. 261, 266-68, 105 S. Ct. 1938, 1942-43, 85 L. Ed. 2d 254 (1985), which held that the state personal injury statute of limitations applies in actions under 42 U.S.C. § 1983) overruled that principle. Plaintiff was entitled to rely on Meyers in the period from when her cause of action arose until April 11, 1985, when she filed suit.

 Therefore the Court will apply N.J.S.A. § 2A:14-2, the New Jersey statute of limitations governing claims of tortious injury to the property or rights of another and claims of breach of contract. Under the six-year limitations period provided by that statute, plaintiff's claims are timely with respect to all of her allegations; the allegedly discriminatory acts took place from October 1982 to August 1984 and plaintiff filed suit in April 1985. *fn1" Accordingly, the Court will strike defendants' partial statute-of-limitations defense pertaining to the § 1981 claims. *fn2"

 Defendants next contend that plaintiff's claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., are limited to events subsequent to May 3, 1983. In support of this argument plaintiff notes that charges of employment discrimination under Title VII must be filed with the Equal Employment Opportunity Commission (EEOC) within 180 days of the allegedly unlawful practice, or, if proceedings were initially instituted before an authorized state agency, within 300 days of the allegedly unlawful practice (or within 30 days of receiving notice that the state agency has terminated the proceedings, whichever is earlier). 42 U.S.C. § 2000e-5(e). Failure to file within the applicable period bars the claim. EEOC v. Commercial Office Products Co., 486 U.S. 107, 108 S. Ct. 1666, 1674, 100 L. Ed. 2d 96 (1988); Masco v. United Airlines, 574 F.2d 1127, 1128-29 (3d Cir. 1978).

 Plaintiff filed her charges with the New Jersey Division of Civil Rights on February 10, 1984, and filed charges with the EEOC shortly thereafter, on February 28, 1984. Defendants concede that plaintiff has complied with the Title VII prerequisites, but argue that all alleged acts of discrimination predating May 3, 1983 (300 days before February 28, 1984) are time barred and should not be considered in support of plaintiff's claim. In response, plaintiff seeks to bring those earlier acts within the umbrella of the "continuing violation" exception to the strict time requirements of Title VII. See United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S. Ct. 1885, 1889, 52 L. Ed. 2d 571 (1977). Under this exception, plaintiff must show "'a series of related acts, one or more of which falls within the limitations period, or the maintenance of a discriminatory system both before and during the [limitations] period.'" Valentino v. United States Postal Service, 218 U.S. App. D.C. 213, 674 F.2d 56, 65 (D.C. Cir. 1982) (quoting B. Schlei & P. Grossman, Employment Discrimination Law 232 (Supp. 1979)); see also Olson v. Rembrandt Printing Co., 511 F.2d 1228, 1233-34 (8th Cir. 1975). Plaintiff's claim rests solidly within the "continuing violation" exception because she is alleging acts of discrimination both before and after May 3, 1983, all of which constitute an alleged continuum of discrimination leading to her discharge. Cf. Valentino, 674 F.2d at 65-66; Olson, 511 F.2d at 1234. As the Olson court noted, "for . . . a former employee the date of discharge or resignation is the controlling date under the statute, and a charge of employment discrimination must be timely filed in relation to that date." 511 F.2d at 1234. However, at the time she filed her administrative petitions, plaintiff was still a current employee of JJP. The continuing discrimination theory has particular validity with respect to present employees. Id. (citing Griggs v. Duke Power Co., 401 U.S. 424, 429-30, 91 S. Ct. 849, 853, 28 L. Ed. 2d 158 (1971)). Moreover, at the time of her discharge a present violation allegedly existed, so the Supreme Court's narrow interpretation of the continuing violation exception in United Air Lines, see 431 U.S. at 558, 97 S. Ct. at 1889, does not defeat the applicability of the exception to plaintiff's case. In other words, plaintiff has met her obligation of coming forth with "allegations connecting [the] remote claims to the ones for which timely complaints were filed." Milton v. Weinberger, 207 ...

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