A recent decision from the District Court of New Jersey provides important guidance for both employers and employees regarding the continuing violations theory in employment discrimination claims based on a hostile work environment theory.
Background on the Case
In early 2016, Plaintiff Eric J. Handelman (“Handelman” or “Plaintiff”) filed suit alleging he had been discriminated against in the course of his employment with the New Jersey Department of Transportation (“NJDOT”). His suit, filed against the NJDOT, the state of New Jersey, and certain individuals (collectively, the “Defendants”), contained counts based on both federal and state laws, many resting on a hostile work environment (“HWE”) theory. In Handelman v. New Jersey, Civil Action No.: 16-2325 (JLL)(JAD) (D.N.J. July 12, 2016,), the District Court of New Jersey evaluated the Defendants’ Partial Motion to Dismiss several of these claims.
Timeliness and the Continuing Violation Theory in Hostile Work Environment Claims
One of the Defendants’ primary arguments was that Handelman’s claim under the New Jersey Law Against Discrimination (“NJLAD”) were barred by the statute of limitations. While the statute of limitations for NJLAD claims is typically two years, the continuing violations doctrine is an equitable exception that may apply in HWE cases. Citing the Supreme Court of the United States, the Court recognizes that “[t]he continuing violation doctrine is premised on the nature of a hostile work environment claim, which is composed of a series of separate acts that collectively constitute one unlawful employment practice and cannot be said to occur on any particular day” (citing National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) (internal quotations removed)). The District Court goes on to explain “discriminatory acts that are not individually actionable may be aggregated to make out a hostile work environment claim; such acts can occur at any time so long as they are linked in a pattern of actions which continues into the applicable limitations period.’” (citing Mandel v. M & Q Packaging Corp., 706 F.3d 157, 165-66 (3d Cir. 2013)). In sum, an HWE claim may be deemed timely even if only a single action that contributes to the claim occurred in the two-year limitations period as long as that action is part of the same unlawful practice.
Plaintiff’s Hostile Work Environment Claim under NJLAD Deemed Untimely
Applying this rule, the Court finds that, as pled, Handelman’s NJLAD claim was untimely. First, the Court notes that Handelman did not specifically invoke the continuing violations theory in his Complaint. Although, the District Court concludes that it is unsettled law in the Third Circuit whether a continuing violation theory must be specifically pled, the Court finds persuasive the line of cases that require the clear pleading of the continuing violations doctrine in the complaint. “[W]ithout such an allegation, there is merely continuity of employment with what may be no more than sporadic instances of discriminatory conduct, and mere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination” (internal citations removed).
Further, the Court finds it is unclear whether the Plaintiff’s claim would be timely even if he had specifically invoked the continuing violations doctrine with respect to the discrimination claim under the NJLAD. There are two important points in this discussion. First, the Court holds that it is unclear whether a plaintiff can use acts characterized as retaliatory conduct in support of a HWE claim. Second, the Court looks at a specific action characterized as a "tangible adverse employment action" and, while noting this is likely an “individually actionable discrete act,” finds it is unclear whether it can support a continuing violation theory under an HWE claim. “To allege a continuing violation, the plaintiff must show that all acts which constitute the claim are part of the same unlawful employment practice and that at least one act falls within the applicable limitations period” (citing Mandel, emphasis added by Handelman court).
While the Court finds Handelman’s claims time-barred as pled, the Court grants the Plaintiff leave to amend, noting that it is possible the Complaint could be amended to sufficiently invoke the continuing violations doctrine.
Lessons from Handelman
Although it is not the only issue discussed in the recent Handelman ruling, employment litigators should take note of the District Court’s in-depth analysis of timeliness under the continuing violations theory. The District Court strongly suggests courts may be leaning toward requiring specific pleading of a continuing violations theory. Practitioners should also pay close attention to the facts in hostile work environment cases and determine whether cited acts are part of chain of events that support an HWE claim versus discrete instances of discrimination or examples of retaliation.