Roa v. Roa

• Decision Date: 14 January 2010
• Docket Number: A-72 September Term 2008
• Citation: 200 N.J. 555,985 A.2d 1225
• Parties: Fernando ROA and Liliana Roa, Plaintiffs-Respondents, v. Lafe and Marino ROA, Defendants-Appellants.
• Court: New Jersey Supreme Court

985 A.2d 1225

200 N.J. 555

Fernando ROA and Liliana Roa, Plaintiffs-Respondents, v. Lafe and Marino ROA, Defendants-Appellants.

A-72 September Term 2008

Supreme Court of New Jersey.

Argued September 14, 2009.

Decided January 14, 2010.

Dena E. Epstein, Morristown, argued the cause for appellants (Jackson Lewis, attorneys; Ms. Epstein and Robert M. Pettigrew, on the brief).

Louis A. Zayas, Newark, argued the cause for respondents (Ginarte O'Dwyer Gonzalez Gallardo & Winograd, attorneys).

Justice LONG delivered the opinion of the Court.

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.

I.

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,¹ 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, at some point thereafter, he spoke with Marino's wife, revealing the true story behind the Valentine's Day gift.

In response, Marino began to harass and threaten plaintiffs, making "life at work miserable." That harassment included threats to fire both of them. After enduring that treatment for an unspecified amount of time, Fernando spoke with Carlos Pena, the owner and president of G & T, about Marino's sexual harassment of the two women with whom Marino was involved and asked that Pena intervene. Pena refused to take any action and, following Fernando's complaint, Marino's harassment of plaintiffs intensified.

Liliana's employment was terminated on or about August 24, 2003. Several weeks later, on September 15, 2003, Liliana received notice that she was ineligible for unemployment compensation benefits because G & T had stated that it terminated her employment due to misconduct. Liliana appealed that determination on September 22, 2003, contending that Marino simply asked her to leave the premises, told her not to return to work, and provided no reason for the discharge. Crediting Liliana's testimony, 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, 2003.² While he was still employed, on October 2, 2003, Liliana underwent surgery, incurring, according to plaintiffs, approximately $6,000 in medical bills. Plaintiffs expected those bills to be covered by Fernando's health insurance. But, on or about November 11, 2003, Fernando received a letter from his health insurer informing him that it would not pay for the surgery because Fernando was not covered by the policy at the time the medical services were rendered. (On October 27, 2003, 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 to reflect a termination date of October 3, 2003, and the claim was paid around February 2004.

As a result of the delay in receiving unemployment and medical benefits, plaintiffs claim that they experienced financial problems, their credit rating was damaged, and they received constant calls from debt collectors, which caused them a "tremendous amount of stress and anxiety."

On November 3, 2005, plaintiffs filed a complaint that alleged that G & T engaged in unlawful retaliation in violation of New Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5-12(d) (count one); that Marino aided and abetted in that unlawful conduct (count two); that defendants' conduct violated the public policy of New Jersey (count three); and that G & T negligently supervised Marino (count four).

Defendants moved to dismiss the complaint for failure to state a claim, alleging that it was time-barred by the two-year statute of limitations applicable to violations of the LAD. The trial judge dismissed the complaint in its entirety, with prejudice, reasoning that the retaliatory discharges were time-barred, that plaintiffs' post-employment claims were not adverse "employment" actions, and that because plaintiffs' terminations were themselves 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, declaring 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 regarding the denial of her unemployment benefits. Roa v. Roa, 402 N.J.Super. 529, 542, 955 A.2d 930 (App.Div.2008). In respect of Fernando's post-discharge claim concerning defendants' cancellation of his health insurance, the panel ruled that that claim was actionable irrespective of the fact that 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. Id. at 540, 542, 955 A.2d 930.

Further, according to the panel, the insurance cancellation could constitute the last in a series of retaliatory acts under the continuing violation theory. Id. at 542-43, 955 A.2d 930. Accordingly, the panel remanded counts one and two of Fernando's complaint to the trial judge for further proceedings.

We granted defendants' petition for certification, 197 N.J. 477, 963 A.2d 846 (2009),³ and now affirm in part and reverse in part.

II.

Defendants argue that, to the extent that Fernando's retaliation claim is based on his discharge, which occurred more than two years before the filing of suit, the claim is time-barred. They further contend that the post-termination cancellation of Fernando's insurance is not independently actionable because it is unrelated to his present or future employment and trivial. Finally, defendants contend that even if the post-termination conduct is actionable, it would not "sweep in" the termination under the continuing violation doctrine because the termination was an untimely discrete act not subject to that doctrine.

Fernando counters that the post-termination cancellation of his insurance is independently actionable and timely and that it also constitutes the last act in a continuing violation, thus reviving his otherwise moribund termination claim.

III.

The antiretaliation provision of LAD declares it to be unlawful retaliation:

[f]or any person to take reprisals against any person because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act.

[N.J.S.A. 10:5-12(d).]

The statute of limitations for LAD claims is two years. Montells v. Haynes, 133 N.J. 282, 292, 627 A.2d 654 (1993). That statute operates as do all limitations periods, to cut off a claim that is filed more than two years after the complained-of discriminatory act. "For causes of action arising under...