Meeting applicable deadline(s) to file a lawsuit is critical to bringing a successful claim. If not timely filed within the “Statute of Limitations,” employment lawsuits, like other types of claims, are subject to dismissal. Statutes of limitations have been enacted for all causes of action in order to “promote repose by giving security and stability to human affairs.” Caravaggio v. D’Agostini, 166 N.J. 237, 245 (2001)(quoting Wood v. Carpenter, 101 U.S. 135, 139 (1879)).
The New Jersey Superior Court filing deadline for whistleblower retaliation claims under the “CEPA” statute is one year from the accrual date, and for statutory discrimination claims under the “LAD” is two years following accrual.
True to the remedial purpose of these statutes, the New Jersey Supreme Court held that CEPA’s one year filing deadline began to run on the last day a terminated employee was paid on regular payroll. Alderiso v. Medical Center of Ocean County, 167 N.J. 191, 199-202 (2001). The Court departed from the U.S. Supreme Court’s construction of federal anti-discrimination statutes, where the filing deadline runs from the first notification to the employee of an adverse employment action, even if the effective date is at a later time. As Justice Verniero explained:
. . . [w]e are satisfied that the date of discharge represents the appropriate accrual date, not the [earlier] date on which an employee receives notice of termination. We agree with Justice Stevens [dissenting in Ricks] that
[t]he most sensible rule would provide that the date of discharge establishes the time when a cause of action accrues and the statute of limitations begins to run. Prior to that date, the allegedly wrongful act is subject to change; more importantly, the effective discharge date is the date which can normally be identified with the least difficulty or dispute . .
Both the interest in harmonious working relations during the terminal period of the employment relationship, and the interest in certainty that is so important in litigation of this kind, support this result.
[Delaware State College v. Ricks, 449 U.S. 250, at 265, 266-67 (1980)(Stevens, J., dissenting)(footnotes omitted).]
Alderiso, 167 N.J. at 201-02 (emphasis added).
In Zacharias v. Whatman, 345 N.J. Super. 218, 227 (App. Div. 2001), certif. denied, 171 N.J. 444 (2002), the Appellate Division applied Alderiso’s accrual standard to LAD claims. However, in Toto v. Princeton Township, 404 N.J. Super. 604, 614-16 (App. Div. 2009), the court applied a different accrual test for hostile work environment (HWE) cases under the LAD.
In Toto, plaintiff claimed harassment by co-workers’ taunting and teasing him due to his speech impediment and “ADHD” disabilities. On January 9, 2002, Mr. Toto was involved in a verbal confrontation with two co-workers. He left the workplace on January 11, 2002 and never returned. His psychiatrist wrote a February 11, 2002 note excusing plaintiff from work effective January 25, 2002. In March 2002, plaintiff’s attorney, job coach, sister and psychiatrist met with representatives of the Township to discuss possible accommodations for his return to work. Yet, plaintiff did not return. He maintained that the Township took insufficient steps to remedy the harassment.
From January 11 through July 18, 2002, the Township paid Mr. Toto full salary on a paid sick leave. Upon his failure to return to work as requested at the expiration of his sick leave, the Township terminated Mr. Toto’s employment on July 19, 2002. Mr. Toto filed suit on March 25, 2004, within two years of his job termination. He brought two distinct LAD claims against the Township: 1) failure to accommodate his disability conditions; and 2) that he was subjected to a HWE based on his disabilities.
Given the Alderiso Court’s emphasis on establishing certainty of accrual dates, one might think that Mr. Toto was reasonably safe in filing his HWE claim within two years of the July 18, 2002 date he was last paid regular salary. The period of being paid full salary while on sick leave would seem to fall within Alderiso’s accrual standard. Indeed, Justice Verniero had commented in Alderiso that it was of no moment that plaintiff did not return to work after receiving an oral notice of discharge on January 14, 1997.
We conclude that the date of discharge [January 15, 1997] means the last day for which an employee is paid her regular wage or salary, notwithstanding her absence from work on that date.
Id. at 199. (emphasis added).
The motion judge in Toto found that plaintiff did not experience a HWE after he left the workplace on January 11, 2002, his last day at work. Therefore, his two year HWE claim was held to accrue on January 11th. On the other hand, since Mr. Toto had sought reasonable accommodations to return to work from the March 2002 accommodations meeting with the Township into June 2002, his LAD failure to accommodate claim accrued in June 2002. See Id. at 612.
The Toto court applied a special accrual standard for “continuing violation” HWE claims. Where “an individual is subjected to a continued cumulative pattern of tortious conduct, the statute of limitations does not begin to run until the wrongful action ceases.” Id. at 613, quoting Wilson v. Wal-Mart Stores, 158 N.J. 263, 272-74 (1999). Where a continuum of harassment is shown, “plaintiffs’ cause of action accrued on the date of the last act in the pattern or series of acts that compromise the continuing violation claim.” Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 21-22 (2002).
On appeal, Mr. Toto argued that his HWE claim should have accrued from the July 19th date he was terminated, not January 11th when he left the workplace. Under the seemingly bright line rule established in Alderiso, July 19th could be considered the “last day [Mr. Toto was] paid on regular payroll.” See Alderiso, 167 N.J. at 199.
The Appellate Division rejected Mr. Toto’s HWE claim accrual argument. It distinguished Alderiso and other discrete act, retaliatory termination cases, from the instant circumstances where the plaintiff, asserting a HWE claim, “voluntarily left the workplace without being discharged and thereafter was formally terminated for failing to return to work.” Toto, 404 N.J. Super. at 617.
The New Jersey Supreme Court recently revisited the accrual of LAD limitations periods in Roa v. Roa, 200 N.J. 555 (2010). The Court addressed a discharge where “a discrete discriminating act that places an employee on notice of the existence of a cause of action and of the need to file a claim. [There], the Statute of limitations begins to run on the day that act takes place.” Id. at 569.
A Synthesis of New Jersey CEPA and LAD Accrual Rules
We can synthesize the accrual of limitations deadlines for filing New Jersey CEPA and LAD claims:
a. Discrete adverse action cases – – runs from the day that the act of discrimination or retaliation was effective, typically the last day the employee was paid on regular payroll. However, the last date of employment does not include “any subsequent date on which severance, health or other extended benefits are paid.” See Alderiso, 167 N.J. at 194.
b. HWE cases – – runs from the last day that the plaintiff actually experienced harassment on the job. Under the continuing violation doctrine, “[w]hen an individual is subject to a continual cumulative pattern of tortious conduct, the statute of limitations does not begin to run until the wrongful action ceases.” Wilson v. Wal-Mart Stores, 158 N.J. 263, 272 (1999). The Toto court thus held that a HWE claim accrues on the last day the plaintiff experienced harassment in the workplace, not the later date on which his employment was terminated. See Toto, 404 N.J. Super. at 616-17.
The Cherry Hill, New Jersey Law Offices of Richard E. Yaskin, P.C. is celebrating 20 years of representing executives and employees in all types of employment rights and benefit claims in New Jersey and Pennsylvania. If you think that you might have a legal claim or the negotiation of a Separation Agreement to pursue, please contact us for a consultation appointment. As explained in the above post, you don’t want to miss a Statute of Limitations filing deadline.