On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5530-05.
The opinion of the court was delivered by: Messano, J.S.C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Payne and Messano.
Plaintiffs Fernando Roa and Liliana Roa, husband and wife, appeal from the November 17, 2006, order that dismissed their complaint with prejudice finding it to be time-barred.*fn1
Plaintiffs contend that the motion judge erred 1) by determining that defendants' alleged post-termination retaliatory conduct was not part of a continuing violation or otherwise actionable under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49 (LAD); and 2) by failing to equitably toll the expiration of the statute of limitations because of defendants' alleged failure to post statutorily-required notices in the workplace. We have considered these contentions in light of the record and applicable legal standards. We affirm the dismissal of Liliana's complaint with prejudice in its entirety; we reverse the dismissal of Fernando's complaint and remand the matter to the trial court for further proceedings consistent with this opinion. In doing so, we express no opinion about the ultimate merits of Fernando's complaint, concluding only that at this juncture in the litigation, its dismissal as untimely was inappropriate.
Because defendants' motion was granted prior to their filing of an answer and before discovery, we recount the facts as alleged in plaintiffs' complaint and the certifications that accompanied the motion and opposition. On November 3, 2005, plaintiffs filed a four count complaint against their former employer, defendant LAFE,*fn2 a New Jersey corporation that distributes "Hispanic food products," and its vice-president Marino. Plaintiffs claimed that Marino was involved in two extramarital affairs with employees of LAFE, and when his wife discovered this, on or near February 14, 2003, Marino attempted to shift blame from himself to Fernando by claiming that Fernando was actually the one involved in the trysts. Plaintiffs alleged that Fernando initially felt pressure to go along with this ruse because Marino was his supervisor, but he ultimately decided not to cooperate and confirmed Marino's affairs to Marino's wife. Plaintiffs alleged that as a result, Marino began a campaign of harassment against them. When Fernando told LAFE's president that Marino was engaging in sexual harassment of company employees, he was rebuffed. Plaintiffs alleged that they were both ultimately terminated by LAFE in retaliation for making the complaint regarding Marino's conduct.
Plaintiffs' complaint sought compensatory and punitive damages, as well as attorney's fees and costs 1) against LAFE and Marino based upon a violation of the LAD (count one); 2) against Marino on the theory that he aided and abetted LAFE in violating the LAD (count two); 3) against both defendants alleging that plaintiffs' termination violated public policy (count three); and against LAFE for its negligent supervision of Marino (count four).
On June 7, 2006, defendants filed a motion to dismiss the complaint pursuant to Rule 4:6-2 asserting that plaintiffs' claims were time-barred; plaintiffs opposed the motion, defendants filed a reply to plaintiffs' opposition and plaintiffs filed a sur-reply on August 11, 2006, that, among other things, contained a request that the court grant plaintiffs leave to amend the complaint.*fn3
Defendants' motion was supported by documents outside the pleadings, thus requiring the motion judge to apply summary judgment standards to consideration of the record. See R. 4:6-2 (requiring "[i]f . . . matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided by R. 4:46"). In particular, defendants attached two notices from the Department of Labor that indicated Liliana's last date of employment with LAFE was August 24, 2003, and Fernando's was October 12, 2003.
Defendants argued, therefore, that plaintiffs' LAD complaint was time-barred having not been filed within two-years of defendant's allegedly discriminatory conduct, i.e., the retaliatory discharge of both plaintiffs. Montells v. Haynes, 133 N.J. 282, 290 (1993). Defendants further contended that plaintiffs' public policy claims in the third count also must be dismissed because they were preempted by the LAD, see Catalane v. Gilian Instrument Corp., 271 N.J. Super. 476, (App. Div.) (concluding that "supplementary common law causes of action may not go to the jury when a statutory remedy under the LAD exists"), certif. denied, 136 N.J. 298 (1994), or was otherwise subject to the two-year statute of limitations contained in N.J.S.A. 2A:14-2(a). Lastly, defendants argued plaintiffs' fourth count should be dismissed because it was subject to the exclusivity bar of the workers' compensation statute, N.J.S.A. 34:15-8, or was otherwise barred by the same statute of limitations.
Plaintiffs' opposition was supported by Fernando's affidavit in which he claimed that when Liliana sought unemployment benefits after her termination, defendants "lied" by claiming she had been fired for "misconduct" when, in reality, her discharge was retaliatory. Fernando claimed that "[a]s a result of the false allegations" his wife did not receive her unemployment benefits until February 2004, causing the family financial hardship.
Furthermore, Fernando claimed that his wife had surgery on October 2, 2003, while Fernando was still employed at LAFE. On November 11, 2003, he received a letter from his medical insurance carrier advising that the operation was not covered because his insurance had been terminated by LAFE, effective September 30, 2003. Fernando claimed that defendants wrongfully terminated the insurance as further retaliation against him and his wife. He further alleged that the unpaid debt from the hospital bills adversely affected his credit, was not paid until February 2004 when LAFE took responsibility for paying the bills, and caused him "stress and anxiety."
Plaintiffs argued, therefore, that their complaint was not time-barred because defendants' discriminatory conduct continued post-termination, until November 11, 2004, when Fernando received the letter denying medical benefits, and until February 2004 when Liliana finally received her unemployment benefits. Plaintiffs also contended that the statute of limitations should be tolled because defendants "failed to post the relevant anti-discrimination laws in the ...