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The New Jersey Supreme Court made a ruling last Wednesday that may indicate that it is reshaping its views to become more sympathetic to plaintiffs suing for hostile-workplace discrimination. The ruling in Shepherd and Saylor v. Hunterdon Developmental Center, A-15-01, states that the two-year statute of limitations under the Law Against Discrimination starts with the last hostile act — not when the plaintiff first complains of hostility — and that the clock starts running anew with each discrete allegation of harassment. It is the second state court ruling in as many weeks to follow the U.S. Supreme Court’s June ruling in National Railroad Passenger Corp. v. Morgan, 122 S. Ct. 2061, which adopted a “continuing violation” theory in hostile workplace discrimination claims under federal law. The Shepherd decision, while generous to plaintiffs, isn’t as generous as one a week earlier from the Appellate Division, which said that in addition to the final act restarting the two-year clock for plaintiffs to sue, the last act can be defined as the “mere presence” in the workplace of someone who has harassed the plaintiff on previous occasions outside the two-year window. Caggiano v. Fontoura. “I am frankly disappointed but after the Morgan case … which I think is very distinguishable, I rather expected what we got,” said defense lawyer Cynthia Jacob, a partner at Collier, Jacob & Mills in Somerset, N.J., who represented two managers at the Hunterdon center. Jacob is particularly irked because the two plaintiffs had made a formal complaint about their treatment but still took more than two years to file. Under Morgan and Shepherd, “there is effectively no repose for the employer. The plaintiff can charge and collect for things that go back 20 years,” Jacob says. The court, led by Justice Peter Verniero, agreed that there was a continuing violation with each new alleged act and that the plaintiffs’ internal complaints did not restart the running of the two-year limit. The ruling also does substantial damage to the laches doctrine, Jacob says, noting, “All somebody has to come up with is some little thing.” Plaintiffs William Shepherd and Richard Saylor were employees who worked the night shift at a home for the mentally and physically disabled. It was Shepherd and Saylor’s job to check patients’ beds every 30 minutes to ensure they weren’t wet, and then shower the patients who had soiled themselves. The home had been the center of racial disputes before. Two black employees had successfully sued for racial discrimination. Shepherd and Saylor assisted the plaintiffs in that suit. As a result, they alleged, management at Hunterdon told them “what goes around, comes around,” and then set about making their working lives unbearable. In one alleged instance, a patient became uncontrollable and began yelling and urinating. Shepherd asked his supervisor to obtain the patient’s medication in order to subdue the man, but the medicine took three hours to arrive — a delay he claimed was deliberate. Shepherd and Saylor sued, but the case was thrown out on a summary judgment at trial that found their complaints were older than the two years permitted. The Appellate Division reversed and remanded for trial, but their split decision served to kick the case up to the high court. For employment defense lawyers, Verniero’s opinion actually has some good news: the rejection of Saylor’s constructive discharge claim. Verniero noted that Saylor had failed to show up to a grievance hearing prior to resigning. That, Verniero wrote, meant that Saylor had not done all he could to hold onto his job, and therefore the resignation did not form a constructive discharge. In dissent, Justices James Zazzali, Gary Stein and Virginia Long blasted Verniero for not being sympathetic enough to Saylor’s plight. “To be sure, one can view these facts through the semantic prism of employment law and argue that a reasonable juror in the workplace would find the situation tolerable. But that crimped view of the landscape ignores the realities of this workplace,” Zazzali wrote, describing the environment as “horrific.” The case was remanded for trial on the hostile workplace claims. The plaintiffs’ attorney, James Pfeiffer of Pfeiffer, Winegar, Wilhelm & Glynn in Phillipsburg, N.J., did not return a call for comment.

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