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In a decision generous to New Jersey Law Against Discrimination plaintiffs, the state’s Appellate Division ruled Thursday that the “mere presence” of a harasser in a place of employment might make for a continuing violation that keeps the deadline from passing on a hostile-workplace claim. The published decision, in Caggiano v. Fontoura, A-1001-00T3, restates and refines the bright-line rule for when the deadline passes for hostile-workplace claims. Such claims can be brought “as long as at least one of a series of acts, which together create the hostile environment, fell within the statutory period,” which is two years under the LAD, wrote Judge Barbara Byrd Wecker. The appeals court reversed summary judgment dismissing a suit by Essex County, N.J., Sheriff’s Officer Karen Caggiano against a supervisor, the sheriff, the county and the state. Caggiano alleges she was subjected to a series of vulgar remarks and incidents by her peers and bosses, including a fellow officer who exposed his penis to her and asked, “Don’t you want some of this?” She claims she was the target of such jokes because she is a lesbian. Later, Caggiano found herself scheduled to be in an anti-sexual harassment training class with one of her alleged tormentors. At the class, Essex County Sheriff Armando Fontoura told the officers, “Remember, guys, harass is one word, ha, ha, ha,” the ruling states. Since the alleged vulgar incidents were stated to have occurred more than two years before Caggiano sued, Union County, N.J., Superior Court Judge Edward Toy dismissed the complaint as time-barred. But the employment of the exposer continued into the two-year period and nothing was done to remediate the situation. The sheriff’s officer’s “‘mere presence’ may be enough to support a continuing violation based upon prior conduct even though the plaintiff does not claim any specific act by him after November 30 [1998],” two years before she filed the suit, Wecker wrote. The tolling of the limitations period also preserves Caggiano’s claims against a captain in the sheriff’s office and a fellow sheriff’s officer whose specific alleged hostile actions against Caggiano occurred outside the two-year limit. “It is disturbing to think that they can avoid liability while their employer cannot,” Wecker wrote. Wecker leaned heavily on the U.S. Supreme Court’s June 10 decision in National Railroad Passenger Corporation v. Morgan, 122 S.Ct. 2061, which held that a claim of hostile work environment will not be time-barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. The New Jersey Supreme Court had come to a similar conclusion in Wilson v. Wal-Mart, 158 N.J. 263 (1999), which Wecker said that Toy had misread. The court in Wilson had cited with approval the “mere presence” theory, first articulated in a Louisiana case. Both Essex County Counsel Steve Mannion and outside counsel Rosemary Alito, who represented Fontoura and the county, say the plaintiff has failed to identify a single hostile incident within the two-year period prior to the filing of her suit. On that basis, Mannion termed Wecker’s ruling “absolutely absurd.” Alito stresses that the ruling only reverses summary judgment, noting, “The court has not said that the complaint was timely filed but that there was a question of fact as to whether the complaint was timely filed.” Ditto for the “mere presence” issue. “They have not said that that is the law, but that question may be a factual issue,” says Alito, a partner at Newark, N.J.’s McCarter & English. Caggiano was represented by Nancy Erika Smith, of Montclair, N.J.’s Smith Mullin, who did not return calls for comment.

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