The Statute of Limitations dictates the time period in which a plaintiff must file a lawsuit. Failure to file a complaint in court within the statute of limitations will forever bar your ability to file a lawsuit no matter how legitimate your legal claim may have been had it been timely filed. In employment cases, the statute of limitations time begins to run upon the occurrence of a singular event or discrete act resulting in an adverse employment action being taken against an employee. An adverse action usually takes the form, among others, of discharge from employment, suspension, demotion, cut in pay or benefits, unfavorable shift assignment, failure to hire, and failure to promote. For statute of limitation purposes a discrete retaliatory or discriminatory act occurs on the day it happens. However, when the adverse employment action is a hostile work environment the task of identifying the date when the statute of limitations begins to run is much more difficult. This is because a hostile work environment typically results from a pattern of hostile acts which collectively viewed constitute one “unlawful employment practice”, that is, no single act alone is sufficiently severe enough to constitute by itself a hostile work environment. The Continuing Violation Doctrine can save an otherwise untimely filed hostile work environment claim so long as one of the hostile acts comprising the offending pattern of conduct falls within the applicable Statute of Limitations. The attempt to use the Continuing Violation Doctrine to stave off dismissal of an otherwise untimely filed lawsuit was recently discussed in Fujita v. Kingo Yamanashi.
Plaintiff Fujita was employed at Yama Seafood, Inc. from November 1988 until August 2011. Over the course of her employment, Fujita claimed Yama Seafood’s founder Kingo Yamanashi often insulted her about her age and sex. Yamanashi would frequently refer to Fujita as “baba,” meaning “old woman. On March 18, 2010, Yamanashi told Fujita, “You are already sixty (60) years old. Why are you here at this company now? You are such an old woman. You should not be working here.” Yamanashi added “Leave this company right now. Take your stuff and don’t leave anything here.” Fujita did not leave and continued working for Yama Seafood. However, Fujita eventually found the continuing insults to be intolerably hostile, and chose to submit her resignation in August 2011.
On August 6, 2012, Fujita filed a complaint in the New Jersey Superior Court against Yamanashi and Yama Seafood, Inc. alleging violations of the New Jersey Law Against Discrimination (“LAD”) and the New Jersey Equal Pay Act (“EPA”). LAD has a two (2) year statute of limitations. Fujita based her legal claims on discriminatory comments alleged to have occurred more than two years prior to the filing of her August 2012 lawsuit. Fujita argued that the comments could still form the basis of a viable discrimination case by application of the Continuing Violation Doctrine. To include events occurring before the two-year period in a hostile work environment claim, a plaintiff must show a continuum of harassment sufficient to show a continuing violation claim. Toto v. Princeton Twp., 404 N.J. Super. 604, 613 (App. Div. 2009). A plaintiff who experiences a “continual, cumulative pattern of tortious conduct” may pursue an action if at least one of the discriminatory acts occurred within the statutory period. Roa v. Roa, 200 N.J. 555, 556 (2010). However, “the doctrine does not permit . . . the aggregation of discrete discriminatory acts for the purpose of reviving an untimely act of discrimination that the victim knew or should have known was actionable.” Ibid. at 569. Fujita could not show a continuing violation sufficient in the eyes of the court to sustain the viability of her legal claims. Accordingly, her lawsuit was dismissed.