On certification to the Superior Court, Appellate Division, whose opinion is reported at 402 N.J. Super. 529 (2008).
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
The Court considers whether the two-year statute of limitations applicable to the antiretaliation provision of New Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5-12(d), bars a retaliation claim based both on an employee's discharge and on a post-discharge retaliatory act, where the former is beyond the limitations period and the latter is not. The Court considers also whether a claim of post-discharge retaliation must relate to present or future employment to be actionable.
In 2003, Fernando and Liliana Roa were employed by Gonzalez and Tapanes Foods, Inc. (G&T), which was doing business as LAFE Foods. Fernando's brother Marino Roa supervised them. Marino allegedly asked Fernando to lie to Marino's wife by telling her that a gift left by a woman for Marino was instead meant for him. Although Fernando agreed, at some point he revealed to Marino's wife the true story behind the gift. Marino began to harass Fernando and Liliana and threatened to fire both of them. The owner and president of G&T, Carlos Pena, refused Fernando's request to intervene. Thereafter, Marino's harassment of Fernando and Liliana intensified.
Liliana's employment was terminated on or about August 24, 2003. On September 15, 2003, Liliana received notice that she was ineligible for unemployment compensation benefits because G&T had stated that it terminated her for misconduct. Liliana appealed that determination, contending that Marino simply asked her to leave the premises, told her not to return to work, and provided no reason for the discharge. The Appeal Tribunal determined that Liliana was entitled to unemployment benefits. Liliana was notified of that decision on October 21, 2003, but did not begin to receive benefits until approximately February 2004.
Fernando's employment was terminated on or about October 3, 2003. On October 2, 2003, Liliana underwent surgery. Fernando expected the surgery to be covered by his employer-provided health insurance. On or about November 11, 2003, Fernando received a letter from his health insurer refusing to pay for the surgery because he was not covered at the time the services were rendered. G&T had terminated Fernando's benefits effective September 30, 2003, while he was still employed. Eventually, the premature termination of Fernando's health insurance was corrected and the claim was paid around February 2004.
The delay in unemployment and medical benefits created financial problems for Fernando and Liliana, causing stress and anxiety. On November 3, 2005, they filed a complaint alleging that G&T engaged in unlawful retaliation in violation of the LAD, and that Marino aided and abetted in that conduct. Defendants filed a motion to dismiss the complaint, alleging that the claim was time-barred by the two-year statute of limitations applicable to violations of the LAD. The trial judge dismissed the complaint, with prejudice, reasoning that the retaliatory discharges were time-barred, the post-employment claims were not adverse employment actions, and because the terminations were discrete acts they could not sweep in prior time-barred discrete acts on a "continuing violation" theory.
The Appellate Division affirmed in part and reversed in part. 402 N.J. Super. 529 (2008). The panel found that Liliana's claim was time-barred because she knew that defendants had engaged in retaliatory conduct in August 2003 when she was discharged, and at the latest in October 2003 when she received notification of the Appeal Tribunal's decision on her unemployment benefits. The panel ruled that Fernando's post-discharge claim on the cancellation of his health insurance was actionable even though the conduct was not related to current or prospective employment, and that the claim could be timely if Fernando did not become aware of the cancellation until November 11, 2003. The panel held also that the insurance cancellation could constitute the last in a series of retaliatory acts under the continuing violation theory. The Supreme Court granted certification. 197 N.J. 477 (2009).
HELD: Under New Jersey's Law Against Discrimination, the statute of limitations begins to run on a discrete retaliatory act, such as a discharge, on the date on which the act takes place, and a timely claim based on post-discharge retaliatory conduct does not sweep in a prior untimely discrete act which the victim knew or should have known gave rise to a retaliation claim. However, a discrete post-discharge act of retaliation is independently actionable even if it does not relate to present or future employment, and evidence relating to barred claims may be admissible in the trial of the timely claim.
1. The LAD's two-year statute of limitations bars a claim that is filed more than two years after the complained-of-discriminatory act. However, a judicially-created doctrine known as the continuing violation theory has developed as an equitable exception. That doctrine provides that when an individual experiences a continual, cumulative pattern of tortuous conduct, the statute of limitations does not begin to run until the wrongful action ceases. In analyzing federal law, the United States Supreme Court has explained that discrete acts, such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify, and that each constitutes a separate actionable unlawful employment practice that, for limitations purposes, accrues on the day it happens. A continuing violation, on the other hand, is a series of separate acts that collectively constitute one unlawful employment practice, and it accrues on the date on which the last component act occurred. Discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete act starts a new clock for filing charges alleging that act. The existence of past acts and the employee's prior knowledge of them, however, do not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are timely filed. Nor is an employee barred from using the prior acts as background evidence in support of a timely claim. Because New Jersey looks to federal case law as the key source of interpretative authority in connection with the LAD, this Court has adopted the United States Supreme Court's analytical framework. (Pp. 8-13).
2. Fernando was discharged on October 3, 2003, more than two years prior to the filing of his complaint; therefore, his retaliatory discharge claim, standing alone, is barred by the statute of limitations. The continuing violation theory cannot be applied to sweep in an otherwise time-barred discrete act. The continuing violation theory was developed to allow for the aggregation of acts, each of which, in itself, might not have alerted the employee of the existence of a claim, but which together show a pattern of discrimination. However, the doctrine does not permit the aggregation of discrete discriminatory acts for the purpose of reviving an untimely act that the victim knew or should have known was actionable. When Fernando was fired he clearly knew, or should have known, that he had been the subject of retaliation and he should have filed his complaint within two years thereof. When he did not do so, the termination, as a claim, was lost. (Pp. 13-15).
3. Although Fernando's health benefits were canceled on October 27, 2003, which is more than two years prior to the filing of his complaint, he contends that his complaint is timely because he only became aware of his insurance cancellation on November 11, 2003. The discovery rule postpones the accrual of a cause of action so long as a party reasonably is unaware either that he has been harmed, or that the harm is due to the fault of an identifiable individual. Assuming without deciding that Fernando was unaware of the cancellation of his insurance until November 11, 2003, his claim regarding the cancellation of his insurance is not barred by the statute of limitations. (Pp. 15-18).
4. The Court rejects the argument that the insurance cancellation did not involve harm to Fernando's actual employment or proposed employment elsewhere, and therefore is not actionable under the antiretaliation provision of the LAD. The statute itself does not create such an exclusion, and the United States Supreme Court has held that limiting federal antiretaliation law to employment and workplace-related conduct would permit employers to engage in a range of retaliatory conduct that would undermine the law. As such, the fact that Fernando's insurance cancellation claim is not directly related to his present or future employment is not disqualifying and he may pursue a retaliation claim based thereon. The Court also rejects the argument that the insurance cancellation did not rise to the level necessary to invoke the LAD's protection and therefore was not independently actionable. Fernando's claim that the insurance cancellation at least in part caused him and his wife to experience financial problems, damaged their credit rating, subjected them to constant calls from debt collectors, and caused them stress and anxiety is sufficient to meet the threshold for an independent cause of action under the LAD. (Pp. 18-23).
5. In sum, the retaliatory discharge of Fernando is not actionable, but the claim based on the cancellation of his insurance may proceed. At trial, Fernando's and Liliana's time-barred claims may be evidential in the proceedings. N.J.R.E. 404(b) allows evidence of other wrongs to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. It will be for the judge, as the gatekeeper, to determine whether the evidence of the untimely claims satisfies this standard. (Pp. 23-24).
The judgment of the Appellate Division is AFFIRMED, in part and REVERSED, in part. It is AFFIRMED insofar as it declared Fernando's retaliation claim based on the insurance cancellation to be actionable and subject to a discovery rule analysis. It is REVERSED insofar as it recognized the applicability of the continuing violation theory in these circumstances. The matter is REMANDED to the trial court for proceedings consistent with this opinion.
The opinion of the court was delivered by: Justice Long
Argued September 14, 2009
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO and HOENS join in JUSTICE LONG's opinion.
At issue on this appeal are several questions centering on the operation of the two-year statute of limitations applicable to the antiretaliation provision of New Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5-12(d). In particular, we are asked to declare whether the statute of limitations bars a retaliation claim based both on an employee's discharge and on a post-discharge retaliatory act, where the former is beyond the two-year limitations period and the latter is not. Critical to that question is the issue of whether the post-discharge retaliatory act can constitute the last act in a "continuing violation," thus sweeping in the untimely discharge claim. Also before us is the matter of whether the post-discharge retaliation must relate to present or future employment to be actionable.
We hold that the limitations clock begins to run on a discrete retaliatory act, such as discharge, on the date on which the act takes place. We further hold that a timely claim based on post-discharge retaliatory conduct does not sweep in a prior untimely discrete act which the victim knew or ought to have known gave rise to a retaliation claim. We likewise hold that a discrete post-discharge act of retaliation is independently actionable even if it does not relate to present or future employment. Although not actionable, evidence relating to barred claims may be admissible under N.J.R.E. 404(b) in the trial of the timely claim.
This case comes to us upon the grant of defendants' motion to dismiss the complaint for failure to state a claim upon which relief can be granted. R. 4:6-2(e). Such a motion must be based on the pleadings themselves. Here the motion was based upon evidence, including certifications, outside of the pleadings. We therefore view the record in a light most favorable to the non-moving party, which is the standard applicable to summary judgment. See R. 4:6-2 ("If . . . 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 . . . ."). Further, because the motion was filed prior to an answer and before the completion of discovery, we derive the facts from the complaint and from the certifications supporting and opposing the motion.
In 2003, Fernando and Liliana Roa (collectively plaintiffs) were employed by Gonzalez and Tapanes Foods, Inc. ("G&T"), dba LAFE Foods (collectively defendants). Fernando's brother Marino Roa,*fn1 a vice president at G&T, supervised Fernando and Liliana.
At that time, Marino is alleged to have been romantically involved with two female subordinates. On Valentine's Day, 2003, one of those women left a gift for him. When Marino's wife found the gift and confronted him about it, Marino asked Fernando to lie, to claim that the gift was intended for Fernando, and to confirm that Marino was not having an extramarital affair. Although Fernando apparently initially agreed to assist Marino, ...