A federal magistrate in New York has recommended that an employment discrimination case survive a dismissal motion even though some of the claims relied on facts that occurred outside the statute of limitation. Grimes-Jenkins v. Consolidated Edison Company of New York, Inc., 16-cv-4897.  In Grimes, the Plaintiff alleged claims of discrimination and retaliation under various federal, state, and local laws.  In doing so, plaintiff alleged a course of conduct dating back to 1990.

The Court recommended that the bulk of Plaintiff’s claims be dismissed. However, the Judge ruled that any claim based on a supervisor’s alleged racist statements that Black employees were “going to the fields” should survive the motion to dismiss even though they were made more than three years before the filing of the complaint.  The Court determined that such allegations were relevant to Plaintiff’s claims of discrimination which allegedly lasted throughout the length of her employment.  The allegations also were considered because of the employer’s alleged refusal to address Plaintiff’s complaints.  Accordingly, the Court found that allegations regarding such conduct could be used to support her claims, regardless of when the conduct allegedly occurred.

Cases such as this illustrate an often overlooked factor that employers should consider in evaluating possible claims. Simply stated, employers cannot ignore comments that may have been made (or actions that were taken) even if they took place a long time ago.  When confronting situations that involve a long history of alleged harassment or discrimination, employers are advised to consult with counsel before taking adverse action.