(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued November 30, 1998 -- Decided May 3, 1999
O'HERN, J., writing for a majority of the Court.
In this appeal, the Court considers whether the exclusivity provision of New Jersey's Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -49, is a jurisdictional bar to the filing of a protective complaint in
the Law Division and whether the Law Division has jurisdiction over a LAD claim when its further
prosecution requires dismissal of the administrative action. In addition, the Court considers the issue of
successor liability when both predecessor and successor employers are alleged to have contributed to the
creation of a hostile work environment.
In August 1990, K-Mart hired Nancy Wilson as a sales representative in one of its warehouse stores.
By May 1992, she was promoted to warehouse marketing manager. During her employment at the Freehold
warehouse location, she was supervised by Rocco Gallo. Wilson claims that while K-Mart owned the
warehouse store, she endured crude and indecent remarks by Gallo. On January 10, 1994, K-Mart sold the
assets of the Freehold store to Wal-Mart. Gallo and Wilson continued to work at the store, which became
known as Sam's Club.
On March 1, 1994, some months after Wal-Mart took over the store, Gallo approached Wilson and
directed her to begin wearing a brassiere or face termination. Wilson refused to do so. The following day,
Gallo told her to disregard the prior day's conversation. Two days later, on March 4, 1994, Wal-Mart
terminated Wilson and replaced her with a male who was eleven years younger, but who had a marketing
degree and ten years of marketing experience. Wal-mart claimed that this action was part of a restructuring
design and was not based on any dress code for women.
Following her termination, Wilson filed a complaint with the Division of Civil Rights (DCR) alleging
that Wal-Mart discriminated against her on the basis of her age and sex. She did not name K-Mart as a
party. Thereafter, through no fault of her own, the action languished there. Just before the statute of
limitations was to expire, on March 4, 1996, she filed a complaint in the Superior Court under LAD against
Gallo, Wal-Mart and her predecessor employer, K-Mart. She withdrew her complaint from the DCR two
months later, on May 13, 1996. By that time, the DCR had not held any hearings or rendered any decision
in the matter.
Wal-Mart and K-Mart filed motions for summary judgment based on the LAD's exclusivity
provision, N.J.S.A. 10:5-27. K-Mart also asserted that Wilson's claim was barred because it was not filed
within the two-year statute of limitations and because K-Mart had not been her employer when she was
terminated by Wal-Mart. The trial court denied Wal-Mart and K-Mart's motions for summary judgment.
The Appellate Division reversed and remanded the matter for entry of judgment in favor of defendants,
concluding that Wilson's complaint should be dismissed because she had failed to withdraw her DCR
complaint before filing her complaint in the Superior Court, and further, that her claim against K-Mart was
time-barred because it was not filed within two years of employment with K-Mart. Because the two-year
statute of limitations had passed, the dismissal deprived Wilson of any remedy for the vindication of her
rights.
The Supreme Court granted Wilson's petition for certification.
HELD: Although Wilson failed to withdraw her Division of Civil Rights complaint before filing in Superior
Court, her complaint is not barred by the exclusivity provisions of the New Jersey Law Against
Discrimination; both Wal-Mart and K-Mart may be held liable on Wilson's claim if she is able to establish a
continuing course of discriminatory conduct.
1. The Legislature expressly confirmed the alternative enforcement mechanism of the LAD to assist the
DCR in reducing the DCR's costs and backlog of cases. Although the administrative remedy is exclusive
once a claimant chooses to proceed in that fashion, a pending complaint before the DCR may be withdrawn
at any time provided that the DCR has not made a final determination. (pp. 7-9)
2. Even though Wilson failed to withdraw her DCR complaint before filing in Superior Court, because the
DCR had done nothing other than docket the case, the purposes of N.J.S.A. 10:5-27 were not thwarted, and
Wilson's complaint thus is not barred by that provision. (pp. 9-11)
3. When an individual is subject to a continual, cumulative pattern of tortious conduct, the statute of
limitations does not begin to run until the wrongful action ceases. (pp. 11-14)
4. If Wilson can demonstrate that Gallo's discriminatory conduct represents a continuum of harassment that
began while both were employed by K-Mart and that continued through the period during which Wal-Mart/Gallo terminated plaintiff, her claim against K-Mart may not be extinguished. (pp. 14-15)
5. Because the claim of sexual harassment, if viewed as a continuing tort, is indivisible, an allocation of
damages between the two employers would be required, with due consideration for any agreement the
employers may have reached regarding predecessor/successor liability. (pp. 15-16)
Judgment of the Appellate Division dismissing the LAD claim is REVERSED and the matter is
REMANDED to the Law Division for proceedings consistent with this opinion.
JUSTICE POLLOCK filed a separate opinion dissenting in part from and concurring in part in the
Court's opinion. Specifically, Justice Pollock would have affirmed the Appellate Division's grant of
summary judgment in behalf of K-Mart on the basis of the Court's holding in Montells v. Haynes,
133 N.J. 282 (1993).
JUSTICE GARIBALDI also filed a separate opinion dissenting from the Court's opinion. Justice
Garibaldi would have found that pursuant to the exclusivity provisions of the LAD, Wilson was precluded
from filing a civil action while an action based on the same grievance was pending before the DCR. In
addition, like Justice Pollock, Justice Garibaldi also would have affirmed the Appellate Division's grant of
summary judgment in behalf of K-Mart on the basis of the Court's holding in Montells.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, STEIN and COLEMAN join in
Part II of JUSTICE O'HERN's opinion. JUSTICES HANDLER, STEIN, and COLEMAN join in Part III
of JUSTICE O'HERN's opinion. JUSTICE POLLOCK has filed a separate opinion dissenting in part and
concurring in part, in which CHIEF JUSTICE PORITZ and JUSTICE GARIBALDI join. JUSTICE
GARIBALDI has filed a separate dissenting opinion.
SUPREME COURT OF NEW JERSEY
A-
185 September Term 1997
NANCY WILSON,
Plaintiff-Appellant,
v.
WAL-MART STORES, d/b/a SAM'S CLUB;
K-MART STORES, d/b/a PACE
MEMBERSHIP WAREHOUSE,
Defendants-Respondents,
and
ROCCO GALLO, Individually, jointly
and in the alternative,
Defendant-Respondent.
Argued November 30, 1998 -- Decided May 3, 1999
On certification to the Superior Court,
Appellate Division.
John W. Trimble, Sr., argued the cause for
appellant.
Brian D. Sullivan argued the cause for
respondent Wal-Mart Stores, d/b/a Sam's Club
(Roberts & Finger, attorneys; Joel L. Finger,
of counsel).
Rosemary Alito argued the cause for
respondent K-Mart Corporation, d/b/a Pace
Membership Warehouse (McCarter & English,
attorneys; Brenda C. Liss and Daniel J.
O'Donnell, on the brief).
The opinion of the Court was delivered by
O'HERN, J.
This is an employment-practices claim under New Jersey's Law
Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. The
plaintiff, a forty-nine-year-old woman, seeks redress for sexual
harassment and for age and sex discrimination in the workplace.
She first brought an action before the Division of Civil Rights
(DCR) against Wal-Mart Stores (Wal-Mart). Through no fault of
her own, the action languished there. Just before the statute of
limitations was to expire, she filed this complaint in the
Superior Court against Wal-Mart and her predecessor employer, K-Mart Stores (K-Mart). She then withdrew her administrative
action. The Appellate Division dismissed her LAD complaint on
the basis that she had not withdrawn her administrative action
prior to filing the Superior Court action. Because the two-year
statute of limitations has passed, the dismissal deprives her of
any remedy for the vindication of her rights. N.J.S.A. 10:5-27
states that "[t]he [administrative] procedure herein provided
shall, while pending, be exclusive; and the final determination
therein shall exclude any other action, civil or criminal, based
on the same grievance of the individual concerned." The
principal issue in this appeal is whether that exclusivity
provision is a jurisdictional bar to the filing of the protective
complaint in the Law Division or whether the Law Division has
jurisdiction over a LAD claim when its further prosecution
requires dismissal of the administrative action.
The secondary question is whether the claim against K-Mart
is barred by the statute of limitations because it was not
brought within two years of the last date of plaintiff's
employment with K-Mart. That question requires consideration of
the problem of successor liability when both predecessor and
successor employers are alleged to have contributed to the
creation of a hostile work environment. Resolution of that issue
hinges in part on the continuing tort doctrine and whether the
discriminatory conduct began before the succession and continued
until the worker's termination. Because the record does not
establish adequately the relationship between the successor
enterprises, we remand that issue for consideration after further
development of the record.
Because this case arises on a motion for dismissal, we must accept the facts as alleged by plaintiff. According to Wilson, her new position in Freehold was the "best job she ever had" in terms of compensation and potential advancement. Because she cherished this job, she endured Gallo's crude and indecent remarks, which began after her 1992 transfer to Freehold and while K-Mart ran the warehouse store. On March 1, 1994, some months after Wal-Mart took over the store, Gallo approached Wilson and asked her if she was wearing a brassiere. She said that she had not worn one in years. Gallo told Wilson either to begin wearing a brassiere or face termination. Wilson refused to wear a brassiere. The following day Gallo told Wilson to disregard the previous day's conversation. On March 4, 1994, Wal-Mart terminated Wilson. Wal-Mart replaced plaintiff with a male who was eleven years younger than plaintiff, but had a four-year marketing degree and ten years of marketing experience.
According to Wal-Mart, Wilson was not "laid off"; rather, her departure was based on a restructuring decision made after the January 1994 merger. Wal-Mart contends that the employment decision was based on valid business considerations other than a dress code for women and, further, that Wilson never expressed any complaints to Wal-Mart concerning harassment, noting that Wal-Mart had not maintained her personnel file prior to January 1994.
Within three months of her March 1994 termination, Wilson filed a pro se complaint with the DCR alleging that Wal-Mart discriminated against her on the basis of her age and sex. She did not name K-Mart as a party. Plaintiff hired an attorney, who filed an appearance with the DCR in August 1994. He and his client were unable to attend an initial fact-finding conference that was eventually postponed.
Plaintiff's attorney contacted the DCR investigator assigned to this case to find out when a new fact-finding conference would be scheduled. The attorney left a voice mail message requesting that the investigator return his call. Again, on October 19, October 26 and November 13, 1995, the attorney telephoned the investigator and left a message, but no action was taken. On November 13, 1995, the attorney also sent a letter to the investigator in an effort to determine the reason for the delay in scheduling a fact-finding conference. In that letter, the attorney mentioned his concern that Wilson could lose her "other rights" because of the statute of limitations running on her wrongful discharge claim. When the attorney finally reached the investigator on November 13, 1995, the investigator was unable even to estimate when the conference would be scheduled because of the "complete backlog" of work in the DCR.
On March 4, 1996, exactly two years after being terminated, plaintiff filed a civil action under LAD and named Wal-Mart, K-Mart, and Rocco Gallo as defendants. Plaintiff withdrew her complaint from the DCR on May 13, 1996. At that time, the DCR had not held a hearing or rendered any decision regarding the matter. K-Mart and Wal-Mart filed motions for summary judgment based on the LAD's exclusivity provision, N.J.S.A. 10:5-27. K-Mart also asserted that plaintiff's claim was barred by the two-year statute of limitations and because K-Mart had not been plaintiff's employer when she was terminated by Wal-Mart. After the trial court denied K-Mart's and Wal-Mart's motions for summary judgment, the Appellate Division reversed and remanded the matter for entry of judgment in favor of defendants. Gallo was not a party to this appeal. The Appellate Division concluded that plaintiff's complaint should be dismissed because she had failed to withdraw her DCR complaint before filing her complaint in the Superior Court, and further, that plaintiff's claim against K-Mart was time-barred because it was not filed within two years of employment with K-Mart.
A. The LAD
When LAD was enacted in 1945, it explicitly provided only an administrative remedy. L. 1945, c. 169, § 26; see also Shaner v. Horizon Bancorp., 116 N.J. 433, 436 (1989). Although courts had found an implied judicial remedy, the express right to pursue a judicial remedy under the LAD did not exist until 1979. L. 1979, c. 404, § 12; see also Shaner, supra, 116 N.J. at 440 (discussing N.J.S.A. 10:5-13, which states in part that "[p]rosecution of such suit in Superior Court under this act shall bar the filing of a complaint with the division or any municipal office during the pendency of any such suit.").
The Legislature expressly confirmed the alternative enforcement mechanism to assist the DCR in reducing the DCR's "costs and backlog of cases." Shaner, supra, 116 N.J. at 442 (citing Governor Byrne's Statement on Signing S-3101 (L. 1979, c. 404, § 1)). Although plaintiffs are afforded a choice of forums, judicial relief under the LAD "is wholly comparable to and is at least as broad and far-reaching as that which is available in administrative actions under the LAD." Id. at 446.See footnote 1
In choosing the DCR as a forum, a complainant is "availing himself [or herself] of a means of redress normally swifter and less expensive than formal litigation." Sprague v. Glassboro State College, 161 N.J. Super. 218, 226 (App. Div. 1978). When that means of redress fails to achieve those goals, an injured party is entirely free to proceed in Superior Court. Once a plaintiff elects the administrative remedy, however, that proceeding "shall, while pending, be exclusive . . . ." N.J.S.A. 10:5-27. Although these remedies are "complementary" but "mutually exclusive," a pending complaint before the DCR may be withdrawn at any time provided that the DCR has not made a final determination. See Hernandez v. Region Nine Hous. Corp., 146 N.J. 645, 652, 656 (1996); Aldrich v. Manpower Temp. Servs., 277 N.J. Super. 500, 504-05 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995). Election of remedies under N.J.S.A. 10:5-27 of the LAD, however, is not the same as claim preclusion. Aldrich, supra, 277 N.J. Super. at 504.
Unlike the plaintiff in Aldrich, id. at 506, Nancy Wilson failed to withdraw her DCR complaint before filing the Superior Court complaint. Defendant asserts that because plaintiff's action was pending before the DCR and she failed to withdraw that complaint, plaintiff should not be permitted to pursue her LAD action.
have that effect. It would be a paradox if a legislative scheme intended to increase the choice of remedies for victims of discrimination had the unintended consequence of leaving a LAD complainant remediless. Defendants acknowledge that if Nancy Wilson had withdrawn her DCR complaint on March 3, 1994, she would have been able to proceed in the Superior Court. Conversely, defendants argue that if she had withdrawn her DCR complaint two days later, her complaint would have to be dismissed. We very much doubt that is the meaning of either the exclusivity or election-of-forum provisions. N.J.S.A. 10:5-27 is not a statute of limitations that by its nature must provide arbitrary results.
N.J.S.A. 10:5-27 basically seeks to prevent parties from having "a second bite at the apple" by pursuing the alternative route to relief. Ferrara v. Tappan Co., 722 F. Supp. 1204, 1205 (D.N.J. 1989). It seeks to prevent duplication of efforts and forum shopping. Although plaintiff failed to withdraw her DCR complaint before filing in Superior Court, her complaint is not barred by N.J.S.A. 10:5-27. The purposes of the provision were not thwarted. The DCR had done nothing other than docket the case; it was not actively investigating the complaint or expending resources. More importantly, as in Aldrich, supra, no administrative ruling had been rendered. Similarly, defendants have not expended additional resources or conducted discovery and, more importantly, would not be unfairly disadvantaged by being required to litigate this matter in Superior Court. Had plaintiff not promptly withdrawn the DCR action, the familiar common-law defense of “other action pending” would have quickly confined the dispute to one forum. Gilles v. Ware, 615 A.2d 533 (D.C. 1992). This interpretation is faithful to the words of the Act. It construes the LAD "fairly and justly with due regard to the interests of all the parties." N.J.S.A. 10:5-27. To hold otherwise would deprive Nancy Wilson of a single bite at the apple.
Continuing Tort - Successor Business Liability
When an individual is subject to a continual, cumulative pattern of tortious conduct, the statute of limitations does not begin to run until the wrongful action ceases. See, e.g., Cyrus v. Nero, 546 N.E.2d 328, 331 (Ind. Ct. App. 1989) (discussing continuing tort doctrine). Although some jurisdictions have asserted that the continuing tort doctrine should be applied broadly as a rule of equitable tolling, no consensus exists regarding whether the rule is one of accrual or of tolling. James R. MacAyeal, The Discovery Rule and the Continuing Violation Doctrine as Exceptions to the Statute of Limitations for Civil Environmental Penalty Claims, 15 Va. Envtl. L.J. 589, 623-24 (1996).
In Smith v. Tandy Corp., the court refused to expand the doctrine to harassment claims because the plaintiff "was fully aware of the tortious acts . . . , and she certainly could have filed the suit within the two-year limitations period." 738 F. Supp. 521, 523 (S.D. Ga. 1990). On the other hand, the Supreme Court of Louisiana recognizes that "it is the cumulation of acts and conduct, and the resulting cumulation of damages, that transforms the individual incidents of harassment into an actionable tort." Bustamento v. Tucker, 607 So.2d 532, 540 (La. 1992). The court noted that
hostile environment claims are often based on continuing violations because "[i]n a hostile environment, an individual feels constantly threatened even in the absence of constant harassment." . . . A logical corollary is that once a pattern of harassment has created a psychologically offensive work environment, the status quo of such continuous wrongful conduct can be based on the harasser's mere presence.
Consequently, the court held that in an emotional distress claim
stemming from sexual harassment, "when the acts or conduct are
continuous on an almost daily basis, by the same actor, of the
same nature, and the conduct becomes tortious and actionable
because of its continuous, cumulative, synergistic nature," the
statute of limitations period does not commence until the final
act has occurred or the conduct has ceased. Id. at 542; see also
Paine v. Department of Mental Health Servs., No. C-92-2953-SC,
1
995 WL 56588 at *6 (N.D. Cal. Feb. 7, 1995) (noting that "sexual
harassment can involve a series of acts which only cumulatively
alert one to a legitimate claim for sexual harassment."); Hubbard
v. United Press Int'l, Inc.,
330 N.W.2d 428, 448 n.11 (Minn.
1983) (finding continuing violation "when the discriminatory acts
of an employer over a period of time indicate a systematic
repetition of the same policy and constitute a sufficiently
integrated pattern to form, in effect, a single discriminatory
act."); Cyrus, supra, 647 N.E.
2d at 331 (observing that when
wrong is continual, “statute of limitations is tolled so that it
does not commence running until the wrongful act ceases.");
Collins v. Willcox, Inc.,
600 N.Y.S.2d 884, 886 (Sup. Ct. 1992)
(recognizing that continuing sexual harassment claim's aggregate
effect can give rise to a claim of emotional distress). Thus, a
significant number of courts recognize that the cumulative effect
of a series of discriminatory or harassing events represents a
single cause of action for tolling purposes and that the statute
of limitations period does not commence until the date of the
final act of harassment.
Our Appellate Division has reached a similar conclusion.
See Terry v. Mercer County Bd. of Chosen Freeholders,
173 N.J.
Super. 249, 253 (App. Div. 1980) (relaxing filing requirement
under N.J.S.A. 10:5-18 of LAD, which requires that complaint be
filed in DCR within 180 days of alleged tortious conduct, "[i]f
the discriminatory conduct can be said to constitute a continuing
violation . . . .") (citations omitted), modified by,
86 N.J. 141
(1981).
In this case, the relevant final date of harassment is March
4, 1994, the day when Wal-Mart terminated Wilson. If plaintiff
can demonstrate that Gallo's discriminatory conduct represents a
continuum of harassment that began prior to January 10, 1994,
while both were employed by K-mart, and continued through March
4, 1994, when Wal-Mart/Gallo terminated plaintiff, her claim
against K-Mart may not be extinguished. Her complaint filed on
March 4, 1996 may have been timely because it was filed within
two years of the last act of continuous harassment.
Obviously, that conclusion raises difficulties. Because the
claim of sexual harassment (if viewed as a continuing tort) is
indivisible, it would be unfair to require Wal-Mart or K-Mart to
pay all of the damages. An allocation of damages would be
required. Although difficult, the allocation issues are not
unmanageable. See Olah v. Slobodian,
119 N.J. 119, 131-34 (1990)
(discussing allocation of damages between pre-existing and new
causes of harm). In some circumstances, a successor will be held
liable as a matter of law for the employment discrimination of a
predecessor. See Musikiwamba v. ESSI, Inc.,
760 F.2d 740, 750
(7th Cir. 1985) (describing nine factors for determining whether
successor corporation is liable for civil rights violation of
predecessor); but see Forde v. Kee Lox Mfg. Co.,
584 F.2d 4, 5-6
(2d Cir. 1978) (finding no substantial continuity of identity
before and after change); cf. Akef v. BASF Corp.,
140 N.J. 408,
415-16 (1995) (holding that to apportion liability to prior
employer in context of workers' compensation, plaintiff must
demonstrate that underlying condition was discoverable and
measurable). In other contexts, we have considered significant
the allocation that the parties themselves have made for
successor and predecessor liabilities. See Mettinger v. Globe
Slicing Mach. Co.,
153 N.J. 371, 386, 390-91 (1998) (holding it
is not unfair for distributor of defective product to maintain
action for indemnification against successor to product-line
manufacturer).
If the parties have provided for predecessor/successor
liability for employment discrimination claims, the trial court
should give effect to such provisions and simply explain to the
jury that the parties have agreed on the issues of allocation and
that it should return a single sum of damages for the injury for
any period of sexual harassment that it finds compensable.See footnote 3 If
the parties have not made provision for such allocation of
liabilities, the factfinder may be requested to apportion the
single sum of damages between the wrongdoers on each of the
theories of liability claimed. Obviously, there can be no double
counting.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, STEIN
and COLEMAN join in Part II of JUSTICE O'HERN's opinion.
JUSTICES HANDLER, STEIN, and COLEMAN join in Part III of JUSTICE
O'HERN's opinion. JUSTICE POLLOCK has filed a separate opinion
dissenting in part and concurring in part, in which CHIEF JUSTICE
PORITZ and JUSTICE GARIBALDI join. JUSTICE GARIBALDI has filed a
separate dissenting opinion.
SUPREME COURT OF NEW JERSEY
A-
185 September Term 1997
NANCY WILSON,
Plaintiff-Appellant,
v.
WAL-MART STORES, d/b/a SAM'S CLUB;
K-MART STORES, d/b/a PACE
MEMBERSHIP WAREHOUSE,
Defendants-Respondents,
and
ROCCO GALLO, Individually, jointly
and in the alternative,
Defendant-Respondent.
POLLOCK, J., concurring and dissenting.
With one exception, I concur in the majority opinion. The exception is that I
would affirm the Appellate Division's grant of summary judgment for K-Mart Stores (K-Mart).
In August 1990, K-Mart hired plaintiff, Nancy Wilson, to work in its Deptford
location; in May 1992, K-Mart transferred her to Freehold. On January 10, 1994, K-Mart sold the assets of several stores, including the Freehold store, to a competitor, Wal-Mart Stores (Wal-Mart). Wal-Mart continued to employ both Wilson and her
supervisor, Rocco Gallo. Wilson claims that Gallo harassed her during their mutual
employment by Wal-Mart and K-Mart. She also claims that Wal-Mart wrongly
terminated her employment on March 4, 1994.
On June 9, 1994, Wilson filed a pro se complaint in the Division of Civil Rights
(DCR) against Wal-Mart, but not Gallo or K-Mart. Thereafter she retained a lawyer.
Because of delays in scheduling a “fact-finding hearing,” her lawyer wrote a letter to the
DCR on November 13, 1995. In the letter, he stated, “I am getting concerned that my
client may lose her other rights because of the statute of limitations if this matter goes
on much longer. My client was terminated on or about March 4, 1994.”
On March 4, 1996, precisely two years from the date that Wal-Mart fired her,
Wilson filed the within civil action in the Law Division. In addition to Wal-Mart, Wilson
named as defendants Gallo and K-Mart. Sometime in May 1996, Wilson withdrew the
DCR action against Wal-Mart.
The Law Division denied defendants' motions for summary judgment. The
Appellate Division reversed. In reversing, the Appellate Division specifically ruled that
both the exclusivity provision of N.J.S.A. 10:5-27 and the two-year statute of limitations
pertaining to personal-injury actions, N.J.S.A. 2A:14-2, barred Wilson's claims against K-Mart.
The Appellate Division's ruling comports with Montells v. Haynes,
133 N.J 282,
which this Court decided on July 27, 1993, approximately six months before K-Mart sold
the Freehold store to Wal-Mart. Montells held that a two-year period of limitations
governs discrimination claims. Because of a lack of clarity in prior law, we further held
that the decision should apply prospectively, “only to cases in which the operative facts
arise after the date of the decision.” Id. at 298. Underlying the prospective application
of the decision were considerations of equity and fairness to claimants who may have
relied mistakenly on the six-year limitations period provided by N.J.S.A. 2A:14-1.
Here, the two-year bar of N.J.S.A. 2A:14-2 precludes Wilson's action against K-Mart. First, K-Mart sold the Freehold store to Wal-Mart two years and two months
before Wilson instituted the within action. From that date forward, Wilson was no
longer a K-Mart employee. Montells, which was decided before K-Mart's sale to Wal-Mart, made clear that the two-year statute of limitations applied to discrimination and
harassment claims. It follows that the two-year statute clearly applied when K-Mart sold
to Wal-Mart as well as when Wal-Mart fired Wilson. See Standard v. Vas,
279 N.J.
Super. 251 (App. Div. 1995). Second, Wilson's lawyer knew that the two-year statute
applied to her claim. Both his letter of November 13, 1995, and his filing of the within
action on the second anniversary of Wilson's termination reflect his actual knowledge of
the applicability of the two-year bar. Finally, depriving Wilson of a claim against K-Mart
will not leave her without a remedy. Wal-Mart, a company listed on the New York
Stock Exchange, will remain as a defendant.
The majority's argument for "equitable tolling" of the statute of limitations
because of the DCR's failure to act on Wilson's claim against Wal-Mart does not justify
the late filing of her claim against K-Mart. Tolling the statute of limitations because of
the pendency of the DCR action, according to the majority, comports with the purpose of
the LAD. See ante at ___ (slip op at 9-11). Wilson, however, never named K-Mart or
Gallo in her DCR action. Tolling a civil action against K-Mart because Wilson sued
Wal-Mart in the DCR strikes me as both unreasonable and inequitable.
Contrary to the majority opinion, moreover, I find nothing “subtle and
demanding,” ante at ___ (slip op. at 11), about determining when the statute of
limitations began to run against K-Mart. The statute began to run no later than the date
on which K-Mart ceased to be Wilson's employer. The date of the sale of K-Mart's
assets to Wal-Mart marks the last time that K-Mart had anything to do with plaintiff as
her employer.
Finally, the argument that K-Mart's and Wal-Mart's alleged actions may
constitute a single continuing tort is one of the majority's own creation. See ante at
_____ (slip op. at 14-15). The Court would bring K-Mart within the two-year limitation
by placing its “final act,” initiating the running of the statute, during Wal-Mart's tenure.
Wilson never has argued that Wal-Mart's actions tolled the statute against K-Mart or
that any relationship so connected the two employers that torts allegedly committed by
each individually could be constituted one continuous tort.
The cases cited by the majority supporting application of the continuing tort
doctrine to sexual harassment actions each concern a single employer, a long history of
specifically alleged offenses, corroboration, and a record of reports to supervisors. See,
e.g., Paine v. Department of Mental Health Servs., No. C-92-2953-SC, 1
995 WL 56588
(N.D. Cal. Feb. 7, 1995); Bustamento v. Tucker,
607 So.2d 532 (La. 1992). None
addresses the novel aspect of the majority's decision in the present case: its finding that
a sexual harassment tort asserted against one employer extends to another.
I would affirm the dismissal of the complaint against K-Mart.
Chief Justice Poritz and Justice Garibaldi join in this opinion.
SUPREME COURT OF NEW JERSEY
A-
185 September Term 1997
NANCY WILSON,
Plaintiff-Appellant,
v.
WAL-MART STORES, D/B/A SAM'S CLUB,
K-MART STORES, D/B/A PACE
MEMBERSHIP WAREHOUSE, AND ROCCO GALLO,
INDIVIDUALLY, JOINTLY AND IN THE
ALTERNATIVE,
Defendants-Respondents.
GARIBALDI, J., dissenting.
I disagree with the majority, and find that plaintiff, Nancy Wilson, is precluded, pursuant to N.J.S.A. 10:5-27, from filing a civil action under the
New Jersey Law Against Discrimination, ("LAD" or the "Law"), N.J.S.A. 10:5-1 to -49, while an action based on the same grievance is pending before the
Division of Civil Rights ("Division" or "DCR"). Additionally, I find that plaintiff's complaint against K-Mart is barred by the two-year statute of limitations set
forth in Montells v. Haynes,
133 N.J. 282 (1993), because any purported reliance by plaintiff on the previous six-year statute of limitations was not reasonable.
Wilson was terminated by Wal-Mart on March 4, 1994. Subsequently, on June 9, 1994, plaintiff filed a pro se complaint against only Wal-Mart with the DCR. In that complaint, plaintiff alleged that Wal-Mart had discriminated against her on the basis of age and sex. Thereafter, she hired her present counsel, who filed an Appearance with the Division in August 1994. A fact-finding hearing was scheduled for October 25, 1994, at which time Wal-Mart requested a postponement. The hearing was rescheduled for April 6, 1995. Due to short notice, however, Wilson's counsel was unable to appear and requested a continuance that was granted. Although Wilson made numerous telephone calls and sent correspondence to the Division, she heard nothing back regarding a new hearing date. In a letter sent to the Division, which was dated November 13, 1995, her counsel expressed concern that his client might lose her rights because of the applicable statute of limitations. Subsequently, Wilson's counsel spoke with an individual from the Division who explained that, because of a backlog of cases, he was unable to advise or estimate when a fact-finding conference could be scheduled.
On March 4, 1996, without withdrawing her complaint from the Division, plaintiff filed an action under LAD in the Superior Court. The Law Division Complaint named Wal-Mart, and, for the first time, named Gallo and K-Mart as defendants. Subsequently, defendants K-Mart and Wal-Mart filed motions for summary judgment, seeking dismissal of the court action on the grounds that the exclusivity provision of LAD prohibited dual filings. In addition, K-Mart argued that summary judgment should be granted because Wilson's claim was barred by the two-year statute of limitations applicable to LAD actions. K-Mart further argued that plaintiff's claim should be dismissed because K-Mart was not her employer at the time of her termination.
The two motions were denied by the trial court. Subsequently, both K-Mart and Wal-Mart made separate motions for leave to appeal from the court's interlocutory order, which were granted. The Appellate Division summarily reversed the trial court's disposition and remanded this matter to the trial court for entry of judgment in favor of defendants, dismissing Wilson's complaint on the basis that her DCR complaint had not been dismissed prior to the filing of the Law Division complaint. In addition, citing Montells v. Haynes, supra, 133 N.J. 282, the Appellate Division found that Wilson's claims against K-Mart were barred by the applicable two-year statute of limitations. That conclusion was based on the fact that plaintiff's cause of action accrued on January 10, 1994, the last date that plaintiff had contact with K-Mart, and that she had not filed her complaint until March 4, 1996, two years and two months later.
Plaintiff filed two motions for reconsideration that were granted. However, the Appellate Division reaffirmed its prior ruling. Plaintiff filed a petition for certification, which we granted. ___ N.J. ___ (1997).
The LAD establishes a choice of remedies for complainants seeking redress for alleged discrimination. N.J.S.A. 10:5-27; Hernandez v. Region Nine Hous. Corp., 146 N.J. 645, 652 (1996). Complainants may pursue either an administrative remedy or a Superior Court remedy. Aldrich v. Manpower Temp. Servs., 277 N.J. Super. 500, 504 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995); Sprague v. Glassboro State College, 161 N.J. Super. 218, 225 (App. Div. 1978). Those remedies "are complementary," Shaner v. Horizon Bancorp., 116 N.J. 433, 440 (1989) (superseded by statute on other grounds as recognized by Milazzo v. Exxon Corp., 243 N.J. Super. 573 (Law Div. 1990)), but "mutually exclusive," Hernandez, supra, 146 N.J. at 652.
The exclusivity provision of LAD, N.J.S.A. 10:5-27, provides in pertinent part:
[T]he procedure herein provided shall, while pending, be exclusive; and the final determination therein shall exclude any other action, civil or criminal, based on the same grievance of the individual concerned.
See also N.J.S.A. 10:5-13 (mandating that "[p]rosecution of such suit in Superior Court under [LAD] shall bar the filing of a complaint with the division or any
municipal office during the pendency of such suit").
I conclude that the plain language of the statute as well as the legislative intent underlying the exclusivity provision compels the dismissal of
Wilson's discrimination action. It is well-established that in construing a statute, one must first consider its plain language. Merin v. Maglaki,
126 N.J. 430,
434 (1992). In light of that canon of statutory construction and looking solely to the language of N.J.S.A. 10:5-27, Wilson's Law Division complaint should
have been dismissed. New Jersey courts have long recognized that a case is pending, in accordance with the ordinary meaning of that term, from "'its
inception until the rendition of final judgment.'" State v. Duswalt,
153 N.J. Super. 399, 405 (App. Div. 1977) (citation omitted); see also Black's Law Dictionary
1134 (6th ed. 1990) (same); cf. State v. Blazanin,
298 N.J. Super. 221, 228 (App. Div. 1997) (finding case, in criminal context, is pending from "initial
prosecution of the offense up until final disposition on appeal").
Moreover, we have already interpreted the exclusivity provision at N.J.S.A. 10:5-27 to bar a judicial proceeding while an administrative proceeding
is pending. Fuchilla v. Layman,
109 N.J. 319 (1988). The Fuchilla Court explained:
[A]n aggrieved person may either file an administrative complaint with the Director of the Division on Civil
Rights or file a civil action in the Superior Court. Once the aggrieved party files a Superior Court action,
however, he or she may not file an administrative complaint with the Division during the pendency of the
suit. Likewise, if the complainant first files with the Division, he or she may not file a complaint with the
Superior Court while the administrative action is pending.
[109 N.J. at 336 (citations omitted, emphasis added).]
This Court reiterated that conclusion in Shaner, supra, stating that "an aggrieved victim of discrimination [has] the option of either filing an administrative
complaint with the Director of the Division on Civil Rights or filing a civil action with the Superior Court. . . . [A] claimant may pursue only one remedial route
at a time . . . ." Id. at 440. Lower courts have reached similar conclusions in other LAD cases. See Aldrich, supra, 277 N.J. Super. at 505 ("Once a forum is
chosen, then, and while the procedure is pending another forum may not be pursued."); Hermann v. Fairleigh Dickinson Univ.,
183 N.J. Super. 500-04 (App.
Div.), certif. denied,
91 N.J. 573 (1982)("Plaintiff could have elected to seek relief in the courts in the first instance. However, having chosen to pursue her
grievance administratively, that chosen remedy is exclusive while it is pending and when it has been concluded.") (citations omitted); Gray v. Serruto
Builders, Inc.,
110 N.J. Super. 297, 300 (Ch. Div. 1970) (noting that statutory language of LAD's exclusivity provision "makes the jurisdiction conferred by the
act exclusive . . . when an administrative proceeding [either] is pending or has been concluded").
The courts' interpretation of the exclusivity provision, under the facts of the preceding cases, comports with the legislative intent underlying the
1979 amendment to LAD, which provided complainants with the alternative judicial forum to pursue discrimination claims. Assembly Judiciary, Law, Public
Safety, and Defense Committee, Statement to Senate Bill No. 3101, at 1 (December 17, 1979) ("The bill makes explicit the right of complainants to initiate a suit
alleging discrimination in Superior Court without the filing of a complaint with the Division of Civil Rights. If such a suit is filed, the complainant may not
also file with the division while the suit is pending.") (emphasis added); see also Shaner, supra, 116 N.J. at 442-43 (noting "the available legislative history
shows that the primary reason for . . . the 1979 amendment of LAD [] was to reduce the agency backlog congestion and at the same time provide a judicial
alternative that would be comparable to the administrative action so that the society's war against discrimination would not slacken").
One commentator explains that such a procedural system, employed in a minority of jurisdictions,See footnote 4
is designed to streamline the adjudication process and to remove at least some of the burdens imposed on
courts and state . . . agencies alike. The central assumption underlying this approach is that a claimant will
weigh the associated costs, available remedies, speed of disposition, procedural hurdles, and other
considerations such as limitations periods, and will choose the path best suited to his or her type of claim
under the specific circumstances. As a result, . . . the plaintiff in the election of remedies system will appear
before only one body.
[46 Case W. Res. L. Rev. at 147-48 (footnotes omitted).]
All of the parties concede that at the time that Wilson filed her Law Division complaint, the matter was still pending, but unheard, in the DCR.
Nevertheless, Wilson contends that because there was no dispositive ruling at the administrative level, she was not restrained from filing a Law Division
complaint. In support of her contention, Wilson relies on Aldrich, supra,
277 N.J. Super. 500, and Hernandez, supra,
146 N.J. 645. Her reliance on both
cases, however, is misplaced.
In Aldrich, supra, the plaintiff initially filed her discrimination complaint with the DCR. After eighteen months had elapsed without any action on
the part of the agency, however, the plaintiff withdrew her complaint and filed a Law Division complaint based on the same acts and alleging the same LAD
claims. Aldrich, supra, 277 N.J. Super. at 503. In response, the defendant moved for summary judgment, asserting that plaintiff chose the administrative
remedy and was barred from pursuing a subsequent action in Superior Court. The trial judge granted the defendant's motion. The Appellate Division
reversed. Aldrich, supra, 277 N.J. Super. at 506. In its reversal, the court emphasized:
[W]e cannot agree [with the trial judge] that the Legislature has mandated that the mere exercise of a choice
of forum to pursue a LAD complaint, is preclusive. The focus, in terms of preclusive effect, is upon the
"pendency" of a proceeding in the chosen forum and, critically, a final determination.
Likewise, the Hernandez Court addressed the preclusive language of N.J.S.A. 10:5-27. 146 N.J. at 657. There, an employee brought an action against his employer, claiming national origin discrimination in violation of LAD. Prior to bringing that action, the employee received an adverse determination from the federal Equal Employment Opportunity Commission (EEOC) on his Title VII national origin discrimination claim. Id at 651. The employer sought summary judgment, which the Law Division granted, reasoning that the employee's claim was barred by the adverse EEOC determination. Ibid. The employee appealed and the Appellate Division affirmed. This Court granted certification and reversed. Ibid. The issue in that case, however, is inapposite to the one presented here. In Hernandez, supra, this Court held that the preclusive language of N.J.S.A. 10:5-27 did not apply because there was no prior DCR determination on the merits. Id. at 657. By relying on Aldrich, supra, and Hernandez, supra, plaintiff "has confused the issue of claim preclusion with the issue of a bar by an election of remedies statute." Harter v. GAF Corp., 150 F.R.D. 502, 515 n.20. (D.N.J. 1993). Although there was no final determination of plaintiff's claim by the DCR in this case, she did not comply with the procedural requirement of withdrawing her DCR complaint before filing an action in Superior Court.
The majority relies upon the public policy that LAD be interpreted liberally in favor of complainants in finding that Wilson's complaint should not be dismissed on a technicality. As this Court stated in Hernandez, "[t]he LAD embodies this State's strong public policy to fight 'discrimination against any of its inhabitants . . . .'" 146 N.J. at 651 (quoting N.J.S.A. 10:5-3); see also Shaner, supra, 116 N.J. at 438 (noting remedial nature of LAD and its "overarching purpose of eradicating discrimination").
I agree that "[t]he [LAD] is remedial and should be read with an approach sympathetic to its objectives.". National Org. for Women v. Little League Baseball, Inc., 122 N.J. Super. 522, 530 (App. Div.), aff'd, 67 N.J. 320 (1974). Nevertheless, this Court has also recognized that although "liberality of construction of remedial legislation is desirable, [the Court] cannot ignore the plain meaning of the language employed by the Legislature." Singleton v. Consolidated Freightways Corp., 64 N.J. 357, 362 (1974); see also Wormack v. Howard, 33 N.J. 139, 142-43 (1960) (same); In re Sussex County Mun. Utils. Auth., 198 N.J. Super. 214, 218 (App. Div.) ("It is clear, at least in New Jersey, that beneficence in the purposes of a remedial statute does not warrant liberality in construction which ignores the plain meaning of the language employed by the Legislature."), certif. denied, 101 N.J. 267 (1985).
It was certainly understandable that plaintiff turned to a judicial action after her case lingered in the Division for nearly two years. "In choosing the alternative administrative mechanism by filing the complaint with the Division on Civil Rights, [complainants are] availing [themselves] of a means of redress normally swifter and less expensive than formal litigation." Hermann, supra, 183 N.J. Super. at 504-05; see also Harter, supra, 150 F.R.D. at 513. Nevertheless, to allow plaintiff to circumvent the procedural requirement of withdrawing her DCR complaint before filing a civil action will open the door to all other applicants who may jump from the agency to the court system in an attempt to accelerate their cases.
Plaintiff's filing an action before the DCR was not a prerequisite to her filing a civil action. Rather, such filing constituted an election by plaintiff to proceed administratively rather than judicially. Fuchilla supra, 109 N.J. at 336. Therefore, plaintiff's initial DCR complaint created the procedural prerequisite that she discontinue the administrative proceeding before instituting an action in Superior Court. Although plaintiff made that election before she had secured counsel and may not have completely understood the ramifications of her decision, even after plaintiff retained an attorney, her counsel did not withdraw the matter from the DCR until after filing the Law Division complaint.
Although there may be some exceptional cases where a plaintiff's filing a complaint while her actions is pending before the Division should be allowed, this is not one. This is just a run-of-the-mill case where plaintiff and her attorney did not read the clear wording of the statute. Plaintiff was aware of the statute of limitations running and had ample time to withdraw her complaint before the Division. Unfortunately, however, plaintiff's counsel did not withdraw the DCR complaint before filing the Law Division complaint.
This Court established a two-year statute of limitations applicable to all LAD actions in Montells v. Haynes, supra, 133 N.J. 282 (1993). However, recognizing that the state of the law regarding the applicable statute of limitations under LAD was "sufficiently murky," the Court held that the two-year limitation period applied only to cases in which the "operative facts" arose after July 27, 1993, the date of the Montells decision. Id. at 298. In contrast, those actions based on operative facts that arose before July 27, 1993, fall under the general six-year statute of limitations, N.J.S.A. 2A:14-1. Montells, supra, 133 N.J. at 297-98. Although I agree with Justice Pollock's dissent, post at ___ (slip op. at ___), that the operative facts did not arise prior to the date of the Montells decision, I find that even if the operative facts arose prior to the date of the Montells decision, any purported reliance by Wilson on the previous six-year statute of limitations was no longer reasonable more than two years after that decision. See Standard v. Vas, 279 N.J. Super. 251, 256 (App. Div. 1995).
In Standard, supra, the plaintiff appealed after the Law Division entered summary judgment in favor of the defendants on limitations grounds. Id. at 252. That case involved the prospective application of the age-of-majority statute, which had lowered the age to eighteen. This Court held that the modified age applied prospectively in Green v. Auerbach Chevrolet Corp., 127 N.J. 591 (1992), which was decided on June 3, 1992. The plaintiff was injured at the age of nineteen in February 1991, and he commenced a personal injury suit when he was twenty-one in November 1993. The Appellate Division reversed the grant of summary judgment, finding that plaintiff filed his action well within the two-year limitations period. In dicta, however, the court noted that "in the future, we see no equitable or sound policy reason why youthful litigants who were injured prior to June 3, 1992 [the date of Green], must invariably be given until two years from their twenty-first birthday to commence suit if, in fact, they have two years notice of Green." 279 N.J. Super. at 256 (emphasis added).
Based on that reasoning, the court suggested that the proper limit be "two years from the date of Green, two years from the date of the accident, or two years from attaining the age of eighteen, whichever is later." Ibid. Applying an analogous rationale, I find that Wilson was time-barred in this case because she had more than two years notice of this Court's decision in Montells. An examination of the law at the time of Wilson's filing of her DCR complaint would have revealed the Montells decision and the applicable two-year statute of limitations.
Furthermore, it is evident from the record that plaintiff's counsel knew about the two-year limitations period. In his letter, which was dated November 13, 1995, plaintiff's counsel stated: "I am getting concerned that my client may lose her other rights because of the statute of limitations if this matter goes on much longer. My client was terminated on or about March 4, 1994." Moreover, plaintiff's counsel noted plaintiff's termination date as the crucial date that his client's cause of action accrued. In addition, plaintiff's filing of her Law Division complaint on the two-year anniversary of her termination indicates that she was trying to file her complaint within that limitations period.
Nevertheless, Wilson now contends that the general six-year statute of limitations should apply because her case may involve operative facts that occurred prior to the date of the Montells decision. The reasoning of the Appellate Division in Standard, supra, resonates in this case, where there appears to be "no equitable or sound policy reason" why plaintiff or others in her position should continue to rely on the six-year statute of limitations where it is clear that plaintiff had notice of the Montells decision in plenty of time to ensure that her rights were preserved.
I find that a two-year statute of limitations applies to this case. That finding is equitable, given that the record establishes that it is not plausible that plaintiff's counsel erroneously relied on the general six-year statute of limitations rather than the two-year period enunciated in Montells. Moreover, even if the Court declines to apply the two-year statute because of plaintiff's unreasonable reliance on the six-year statute of limitations, I recommend that the Court for the reasons stated by Justice Pollock in his dissent, post at ___
(slip op. at ___), find that the operative facts in this case occurred after the date of decision in Montells.
I would affirm the summary judgment in favor of K-Mart and Wal-Mart.
NO. A-185 SEPTEMBER TERM 1997
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
NANCY WILSON,
Plaintiff-Appellant,
v.
WAL-MART STORES, etc., et al.,
Defendants-Respondents,
and
ROCCO GALLO, etc.,
Defendant-Respondent.
DECIDED May 3, 1999
Chief Justice Poritz PRESIDING
OPINION BY Justice O'Hern
CONCURRING/DISSENTING OPINION BY Justice Pollock
DISSENTING OPINION BY Justice Garibaldi
REMAND
AFFIRM REVERSE & REMAND
AFFIRM CHIEF JUSTICE PORITZ X X JUSTICE HANDLER X X JUSTICE POLLOCK X X JUS