Roa v. Roa

• Decision Date: 07 July 2008
• Docket Number: No. A-2588-06T3,A-2588-06T3
• Citation: 955 A.2d 930,402 N.J. Super. 529
• Parties: Fernando ROA Liliana Roa, husband and wife, Plaintiffs-Appellants, v. LAFE and Marino ROA, Defendants-Respondents.
• Court: New Jersey Superior Court

955 A.2d 930

402 N.J. Super. 529

Fernando ROA Liliana Roa, husband and wife, Plaintiffs-Appellants, v. LAFE and Marino ROA, Defendants-Respondents.

No. A-2588-06T3

Superior Court of New Jersey, Appellate Division.

Argued April 9, 2008.

Decided July 7, 2008.

Louis A. Zayas, Hackensack, argued the cause for appellants.

Dena E. Epstein, Morristown, argued the cause for respondents LAFE and Marino Roa (Jackson Lewis, LLP, attorneys; Ms. Epstein, on the brief).

Before Judges AXELRAD, PAYNE and MESSANO.

The opinion of the court was delivered by

MESSANO, J.A.D.

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.¹ 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.

I.

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,² 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 surreply on August 11, 2006, that, among other things, contained a request that the court grant plaintiffs leave to amend the complaint.³

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, 627 A.2d 654 (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, 638 A.2d 1341, (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, 642 A.2d 1006 (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 workplace or provide [plaintiffs] with an employee manual explaining anti-discrimination laws and their rights thereunder."

Defendants filed their reply brief with supporting certifications. Included therein was defense counsel's certification claiming that on behalf of LAFE she prepared a "notice of termination, severance agreement and release" for Fernando's signature on October 2, 2003. In response, she received a phone call from an attorney, Wilfredo Ortiz, who was representing Fernando, and who engaged in negotiations with her in an attempt to obtain greater severance benefits for Fernando.

The reply also included a certification from Leticia Martin, LAFE's human resources administrator, who certified that on October 27, 2003, a few weeks after Fernando's termination, she "inadvertently submitted an incorrect termination date" to Cigna, the company's health insurance provider. Martin was not directed to do so by anyone, and when she realized the mistake had been made, she contacted Cigna and rectified the problem.

Marino also filed a certification in reply to the opposition filed by plaintiffs. In that, he claimed that LAFE had indeed posted the required LAD poster in Spanish and English at the worksite, and attached a copy of the poster to his certification.

Defendants therefore argued that plaintiffs' complaint was still time-barred because Fernando knew of his potential claims in early October 2003 when he consulted an attorney regarding the severance package LAFE offered to him, and that Liliana's claim was similarly time-barred because she knew on October 21, 2003, when the appeals tribunal reversed the denial of her unemployment benefits, that LAFE's submission to the Department of Labor was the cause of the initial denial. Defendants also argued the statute should not be tolled because the required posters had been displayed at the workplace.

Apparently with the judge's permission, plaintiff filed a sur-reply accompanied by yet another certification from Fernando, in which he certified that the posters were not evident at the workplace, that Ortiz did not handle LAD cases and never advised him of his rights in that regard, and it was only upon retaining his present counsel, on October 15, 2005, that he was made aware of his rights. In his brief, plaintiffs' counsel reiterated the arguments he made earlier in opposition, and requested the opportunity, to amend the complaint if the judge found it insufficient.

Oral argument was held on defendants' motion on September 22, 2006, the judge issued the order under review on November 17, 2006, and followed on November 27, 2006, with an oral opinion explaining his ruling that we discuss below. This appeal ensued.

II.

Although originally framed as a motion to dismiss, the above discussion clearly establishes that there were contested facts presented outside of the pleadings. As a result, the motion was more appropriately considered as one seeking summary judgment. When reviewing a grant of summary judgment, we...