This month, in Roa v. LAFE, A- 72-08, the New Jersey Supreme Court issued a decision barring employees from reviving time-barred retaliation claims under the continuing violations doctrine. The Court, however, also clarified that a discrete post-termination retaliatory act is independently actionable, even when it does not relate to present or future employment. Lastly, the Court held that evidence relating to time-barred retaliation claims can still be admissible in the trial of a timely claim.
Plaintiffs Fernando and Liliana Roa, who were employed by LAFE Foods, alleged they were harassed by their supervisor, Fernando Roa’s brother, Marino Roa. Plaintiffs alleged that they informed LAFE’s owner and president that Marino Roa had been sexually harassing two female subordinates, but he refused to intervene. Plaintiffs alleged that the harassment increased and that they were both eventually terminated in retaliation for making the complaint regarding Marino Roa’s conduct.
Mrs. Roa’s employment was terminated on or about August 24, 2003. Mr. Roa’s employment was terminated on or about October 3, 2003. The day before Mr. Roa’s termination, Mrs. Roa underwent surgery, expecting her surgical bills to be covered by Mr. Roa’s insurance. However, Mr. Roa received notice on or about November 11, 2003 that his health insurance was not in effect on the date of the surgery. LAFE had terminated Mr. Roa’s insurance on October 27, but effective September 30, leaving plaintiffs responsible for the unpaid surgical bill. Eventually, the premature termination of Mr. Roa’s health insurance was corrected and the claim was paid around February 2004. However, plaintiffs claimed that the delay created financial problems for them and caused stress and anxiety.
The Trial Court
On November 3, 2005, plaintiffs filed suit alleging, in part, that LAFE unlawfully terminated their employment in retaliation for complaining about Marino Roa’s conduct. Mr. Roa also claimed that LAFE engaged in post-termination retaliation by retroactively canceling his medical benefits. Defendants moved to dismiss the complaint, alleging that plaintiffs’ complaint was timebarred by the two-year statute of limitations. The trial judge dismissed the complaint in its entirety. He reasoned that the retaliatory discharge claims were time-barred and that the post-employment claims were not adverse employment actions. He further reasoned that because plaintiffs’ terminations were discrete acts, the continuing violation theory could not revive those claims.
The Appellate Division
The Appellate Division affirmed in part and reversed in part. The Court found Mr. Roa’s claim based on the cancellation of his insurance was actionable, even though it was not related to current or future employment. Furthermore, the Court found that the insurance cancellation was the last in a series of retaliatory acts under the continuing violation doctrine. Accordingly, it remanded Mr. Roa’s claim against LAFE for unlawful retaliation and his claim against Marino Roa for aiding and abetting in that conduct. The dismissal of Mrs. Roa’s claims was affirmed as time-barred.
The Supreme Court
On appeal, the Supreme Court considered whether the statute of limitations permits a retaliation claim based both on an employee’s termination and on post-discharge retaliatory conduct, where the termination is outside the limitations period but the post-discharge act is not.
The Court held that a timely claim based on post-discharge retaliation could not revive an untimely claim based on a discrete act, which the plaintiff knew or should have known gave rise to a retaliation claim. The Court explained that the continuing violation doctrine was developed to allow an aggregation of acts, which together show a pattern of discrimination but individually may not alert an individual to the existence of a claim. The Court found that when Mr. Roa was discharged he knew, or should have known, he had been subject to retaliation and should have filed his claim within two years.
The Court next considered whether Mr. Roa was barred from pursuing a timely claim based on post-discharge retaliation. The Court held that a discrete post-termination retaliatory act is independently actionable, even if it does not relate to present or future employment. The Court stated that, on its face, the LAD’s anti-retaliation provision is not limited to claims that harm an individual’s actual employment or proposed employment. The Court recognized that the Legislature intended the LAD to be liberally construed; therefore, reading a limitation into the statute would be inapposite.
In its analysis, the Court looked to relevant federal case law for guidance. The Court observed that the United State Supreme Court, in Burlington N. and Santa Fe Ry. Co. v. White, recently rejected a defendant’s claim that Title VII’s anti-retaliation provision prohibits only actions by an employer which result in harm related to employment or the workplace.
The Court stated the plaintiff’s burden, as expressed in Burlington, is to demonstrate a reasonable employee would have found the contested conduct “materially adverse” such that it would dissuade the worker from complaining about the discrimination. Applying this standard, the Court found Mr. Roa’s claim that defendants intentionally terminated his health insurance was “materially adverse” and unlike the petty slights or minor annoyances referred to in Burlington that would not deter victims of discrimination from complaining.
Further, the Court clarified that although a claim is time-barred, it still may be proffered as evidence at the trial of a timely claim if permitted under the standard of N.J.R.E. 404(b). The Court opined that, if admissible, Mr. Roa’s termination could be relevant on the issue of whether the insurance cancelation was deliberate or unintentional.
The Court affirmed the Appellate Division insofar as it found Mr. Roa’s post-termination claim was actionable, reversed on the application of the continuing violation theory in these circumstances, and remanded the case.
The Supreme Court’s decision in Roa v. LAFE makes clear that the continuing violation doctrine cannot be used to revive time-barred claims based on discrete acts of retaliation. Nonetheless, employers should be aware that employees are entitled to file a claim based on post-termination retaliation that does not relate to present or future employment. Employers should exercise caution in interactions pertaining to former employees because liability may result even after employment ends.