Earlier this year, the New Jersey Supreme Court held in Roa v. LAFE that employers may be liable for retaliatory conduct that takes place after the employment relationship has come to an end. New Jersey's highest court also ruled in Roa--which was hailed as a partial victory for employers--that a timely claim for post-discharge retaliatory conduct does not revive a time-barred retaliation claim based on a discrete discriminatory act, such as termination.
The plaintiffs in Roa, a married couple working for the same employer, were terminated in 2003 after Mr. Roa allegedly complained about a supervisor's conduct. (Mrs. Roa was terminated in August and Mr. Roa in October.) Around Nov. 11 2003, the plaintiffs learned their insurance company had denied coverage for a surgical procedure performed on Mrs. Roa just before the company terminated Mr. Roa. On Nov. 3, 2005, plaintiffs sued their employer for retaliation under New Jersey's Law Against Discrimination (LAD), alleging retaliatory discharge. In opposition to a motion dismiss, plaintiffs alleged post-discharge retaliatory conduct.
The trial judge dismissed plaintiffs' retaliation claims as time-barred by the LAD's two-year statute of limitations. The plaintiffs appealed to the Appellate Division, where Mr. Roa argued that his claims were timely because he discovered the company's post-discharge retroactive termination of his health insurance benefits less than two years before initiating the lawsuit. Not only was his post-discharge retaliation claim timely, Mr. Roa maintained, his retaliatory discharge claim was also timely under the continuing violation theory, which allows for the aggregation of acts that reveal a pattern of discrimination when viewed together. The Appellate Division agreed.
While the New Jersey Supreme Court found the company's post-discharge conduct to be actionable, it rejected Mr. Roa's continuing violation theory. Citing the 2006 case Burlington N. & Santa Fe Ry. Co. v. White (discussed in a previous column), which the New Jersey Supreme Court reiterated that harms unrelated to employment or the workplace may still be actionable if they "might have 'dissuaded a reasonable worker from making or supporting a charge of discrimination.'" "[T]he fact that [plaintiff's] insurance cancellation claim is not directly related to his present or future employment is not disqualifying and he may pursue a retaliation claim based thereon," the court concluded.
However, the court said, a discharge is "a discrete discriminatory act that places an employee on notice of the existence of a cause of action and of the need to file a claim." A timely charge of post-discharge retaliatory conduct does not revive a time-barred claim based on a discrete discriminatory act, such as the termination itself, the court concluded.
The court also held that evidence regarding such untimely claims may be introduced, among other things, to establish that the defendant's post-discharge conduct was intentional.
Roa serves as a reminder that post-discharge actions taken by an employer, such as denial of unemployment benefits or premature termination of health insurance benefits, even if due to an administrative error, can still constitute retaliatory conduct.
Vincent A. Cino is a partner in the Morristown, N.J., office of Jackson Lewis LLP. He is the firm's National Director of Litigation.