Many of us would like to believe that if we are the victims of discrimination in the workplace, we will be given the opportunity to one day prove that case before a jury of our peers. Unfortunately, sometimes a judge will step in and strip a deserving litigant of that opportunity. This is what recently happened to retired State Police Trooper Robert Repsha in a discrimination case filed in the New Jersey Superior Court entitled Robert Repsha v. New Jersey State Police, Docket No. A-0414-14T3 (App. Div. Mar. 24, 2016).

Trooper Repsha, a Caucasian, now-retired state trooper, filed a lawsuit against his former employer, the New Jersey State Police (NJSP), alleging he was repeatedly passed over for promotions during the period of 2010-2012 in retaliation for having filed a hostile work environment complaint with the Equal Employment Opportunity Commission (“EEOC”) against an African-American superior officer. Trooper Repsha also alleged that after he suffered a heart attack in October of 2010, the NJSP failed to accommodate him upon his return to work and he was otherwise retaliated against because he sought an accommodation.

No juror ever had the opportunity to hear these allegations of discrimination because a motion judge determined that, among other things, the promotions denied Trooper Repsha after 2010 were “too distant in time” from the 2006 EEOC complaint to be considered actionable. On March 24, 2016, the Superior Court of New Jersey, Appellate Division issued an opinion agreeing with the motion judge noting, “[t]he mere fact that adverse employment action occurs after the alleged protected activity is not alone sufficient to present or suggest a causal link between the two events.” Accordingly, no jury will never hear Trooper Repsha’s story of discrimination and retaliation.

In dismissing Trooper Repsha’s claims it does not appear the courts gave significant enough consideration to the fact that years may pass between a plaintiff/employee reporting of believed to be unlawful activity and the employer acting out in retaliation against the plaintiff/employee.  In a case involving a three (3) year delay between the reporting of illegality and retaliation for doing so, the Third Circuit held that a knowledgeable employer “might mask its reason for discharging an employee by delaying its action for a protracted period after a dispute.”  Radwawn v. Beecham Laboratories, 850 F.2d 147 (3d Cir. 1988); Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543 (App. Div. 1995).  Indeed, in Romano, supra., Judge Shebell found a causal connection after ten (10) years, noting that sophisticated employers rarely retaliate immediately after protected conduct, “. Id. at 550.  Judge Shebell aptly pointed out that an employer’s wounds caused by an employee disclosing unlawful conduct may fester until an opportunity to terminate the employee presents itself. Ibid.  It is unfortunate a jury in Trooper Repsha’s case was not given the opportunity to make such a connection.

At Mashel Law, we are well experienced in handling retaliation based legal claims. We will aggressively seek to discover the evidence required to get your claim to a jury. If you believe you have been the victim of unlawful discrimination or retaliation in the workplace, call the New Jersey Employment Lawyers at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. Mashel Law, located in Marlboro, New Jersey, is dedicated to exclusively protecting the rights of employees.

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