X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
A fired employee may sue for retaliation under the N.J. Law Against Discrimination based on employer post-discharge conduct unrelated to the workplace, a New Jersey appeals court says. The judges also ruled that if the plaintiff can prove the retaliation occurred within two years of filing suit, the case will not be time-barred, by dint of the “continuing violation” doctrine. The ruling on July 7th in Roa, et al. v. LAFE, et al., follows a 2006 U.S. Supreme Court decision that similarly interpreted the anti-retaliation provision of Title VII of the Civil Rights Act of 1964. “We conclude that the Supreme Court’s essential holding . . . that Title VII’s anti-retaliation provision creates a distinct cause of action that need not be related to the workplace, applies with equal reasoning to construction of the LAD,” the Appellate Division said. “This is consistent with both the express language of the LAD, as well as its broad remedial purposes.” The ruling reverses a Hudson County judge’s dismissal of an LAD claim by Fernando Roa, a former employee of LAFE Foods New Jersey of Moonachie, a food distribution company. He alleged he was harassed and eventually fired because he complained that his brother, Marino Roa, a LAFE vice president, was engaged in extramarital affairs with the wives of two other LAFE employees. Fernando Roa was fired Aug. 23, 2003, and his wife, Liliana Roa, was fired Oct. 12, 2003. Superior Court Judge Joseph Charles dismissed the couple’s retaliation suit as time-barred because they did not file until Nov. 5, 2005, after the LAD’s two-year limitations period expired. Fernando Roa had submitted an affidavit recounting an alleged pattern of retaliation by the defendants that continued after he was terminated. Among the actions alleged were interference with Liliana Roa’s application for unemployment benefits and denial of a medical-benefits claim under the company policy. The latter event was stated to have occurred around Nov. 12, 2003, within the two-year limitations period. Charles found that the defendants’ post-firing actions could not serve as independent bases for Fernando Roa’s causes of action under the LAD because they were not related to current or prospective employment. As such, Charles found, Fernando Roa could not avail himself of the continuing-violation doctrine, which allows pursuit of a retaliation claim if a plaintiff can show a pattern of conduct with at least one of the actions occurring within the limitations period. But on appeal, Judges Carmen Messano, Francine Axelrad and Edith Payne found Charles had too narrowly read the U.S. Supreme Court’s opinion in Burlington Northern & Santa Fe Railway Co. v. White, which held that Title VII’s anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm. “Our courts have traditionally looked to federal precedent governing Title VII as a ‘key source of interpretive authority’ in construing the LAD,” Messano wrote. The panel observed that like Title VII, the LAD contains an anti-retaliation provision. N.J.S.A. 10:5-12(d) makes it unlawful for “any person to take reprisals against any person because that person has opposed any practices or acts forbidden under [the LAD] . . . 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 [the LAD].” Messano said that the LAD’s list of forbidden acts and practices include many things unrelated to a plaintiff’s employment, such as discrimination related to labor organization membership, employment agencies and public accommodations. “Additionally, by its terms, subsection (d) is not limited to one’s employer, but rather applies to the conduct of ‘any person,’” he said. The panel disagreed with Charles that the Roas’ firings amounted to a cut-off date for discrimination claims. “[If] that was the sole determinative factor in deciding whether the continuing violation theory applied, the doctrine could never apply to make post-termination conduct actionable under the LAD,” Messano wrote for the panel. “In this case, the actions plaintiffs complain of occurred in close proximity to their termination, were taken by defendants, it is alleged, in retaliation for plaintiff’s engaging in LAD-protected activity, and, thus, were violative of the LAD in and of themselves,” he added. Neither the Roas’ lawyer, Louis Zayas of Hackensack’s Ginarte O’Dwyer Gonzalez & Winograd, nor LAFE’s lawyer, Dena Epstein, of Morristown’s Jackson Lewis, returned a reporter’s calls seeking comment.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.