Ralph Mathews (not his real name) began employment with the City of Tinton (not the actual city) Board of Education in 1972. He was as a classroom teacher until 1986, interrupted by a stint in the military. Beginning 1986, Mr. Mathews served in three different administration positions. In 1994, the Board of Ed eliminated Mr. Mathews’s position and he became an in-school suspension teacher through 2000. In September 2000, he contracted viral Meningitis, causing permanent paralysis in his legs. He has been in a wheelchair ever since. He was out sick from September 2000 through March 2003. In early 2003, Mr. Mathews was cleared by his doctor to return to work with reasonable accommodation.

The Tinton Board of Education failed to accommodate Mr. Mathews and failed to return him to work in a wheelchair accessible building. Mr. Mathews filed a charge against the Board with the EEOC. In September 2003, the parties agreed to settle Mr. Mathews’s claim, as a result of which the Board of Ed paid Mr. Mathews a sum of money and agreed to provide him with a fully accessible work site.

Things were okay for a while. Mr. Mathews worked out of a school building where he served as a Teacher on Assignment. He remained in this position until approximately 2010, when the Board of Ed closed the building. After that, the Board reassigned Mr. Mathews to one school after another, each one lacking in the basic accommodations Mr. Mathews required. For example, the buildings did not have an entrance Mr. Mathews could use without assistance, and they did not have a lavatory he could use independently.

Mr. Mathews tried to explain what the problem was. He tried to work through his union. He met with representatives of the Board of Education to show them how the buildings were not ADA compliant. Each time, he was either reassigned to yet another school which lacked appropriate accommodations, or he was told that the issues had been remedied only to find out that they had not.

Finally, in December 2012, Mr. Mathews was told that if he did not return to work by January 2, 2013, he would be terminated. However, the school he was expected to work in did not have a restroom he could use. Mr. Mathews explained he could not return to work without having access to a handicap accessible restroom but the Board of Education refused to make any further accommodations and removed him from the payroll.

Mr. Mathews attempted to resolve his dispute with the Tinton Board of Education but was eventually forced to file suit against them. He sought damages under the New Jersey Law Against Discrimination. The Tinton Board of Education moved to dismiss Mr. Mathews’s lawsuit. They argued that his claim for failure to accommodate was outside the statute of limitations. The Board relied on Hall v. St. Joseph’s Hospital, 343 N.J. Super. 88 (App. Div. 2001), certif. den. 171 N.J. 336 (2002), for the proposition that the two year statute of limitations for bringing a claim for failure to accommodate under the LAD runs from the date the accommodation was first requested and denied.

In Hall, the Court did not make a blanket ruling for all cases involving failure to accommodate; rather, it ruled that the continuing violation doctrine did not apply to the facts in that case. The Court first described the continuing violation doctrine: “Under that doctrine, a plaintiff may get relief for a time-barred act by linking it with an act within the limitations period if the acts can be treated as one continuous course of conduct that ends within the limitations period.” Id. at 101, citing Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992). To assist in determining whether plaintiff had demonstrated a continuing violation, the court applied the Berry three-factor analysis relating to subject matter, frequency and degree of permanence. Berry v. Board of Supervisors, 715 F.2d 971,981 (5th Cir. 1983). In Hall, the plaintiff alleged that during ten separate hospital admissions over a nine year period, decedent and his family requested ASL interpreters and, each time, were denied. The court found that each denial had a degree of permanence which should have triggered a claim under the Rehabilitation Act. Thus, plaintiff could not avail himself of the continuing violation doctrine to include the earlier hospitalizations.

Unlike the facts in Hall which involved ten separate requests for accommodation, followed by ten separate denials, for ten separate hospital stays, Mr. Mathews’s case involved one ongoing effort to be accommodated in a new building following the closure of the building where he had worked from 2003 through 2010. Each request by him for reasonable accommodation was met not with a denial or refusal but with yet another inadequate assignment. Rather than a series of requests and denials as in Hall, there was a continuous back and forth effort to accommodate Mr. Mathews (however inadequate) for the period from 2010 until December 13, 2012. On that date, for the first time, the Board of Ed refused to make any further accommodations and, shortly thereafter, stopped paying Mr. Mathews.

In Richards v. CH2M Hill, Inc., 26 Cal.4th 798 (2001), the California Supreme Court addressed in comprehensive fashion the issue of the continuing violation doctrine in the context of an employee’s ongoing efforts to obtain reasonable accommodation for her disability. The Plaintiff in that case was a civil engineer who worked for a national engineering firm. Four years after she began, she was diagnosed with MS and began using a wheelchair. After a five-year period during which her employer failed to provide reasonable accommodation, Plaintiff resigned.

In that case, the trial court allowed Plaintiff to introduce evidence of and seek damages for the entire five year period of alleged harassment and discrimination culminating in her constructive discharge. The Court of Appeals reversed, finding that the trial court misapplied the continuing violation doctrine. It held that only the incidents of failure to accommodate which occurred within the limitations period were properly placed before the jury.

The California Supreme Court reversed. It first acknowledged that the continuing violation doctrine is “arguably the most muddled area in all of employment discrimination law.” Id. at 813, quoting 2 Lindemann & Grossman, Employment Discrimination Law 93d ed. 1996), p. 1351. The Court then reviewed four different approaches to the continuing violation doctrine, including the Berry approach relied upon by the Court in Hall. Id. at 812-817.

After noting that the statute at issue, like the LAD, was a remedial statute which should be construed liberally to accomplish its purposes, the Court then held, “[t]here is particularly good reason to view the failure over time to reasonably accommodate a disabled employee as a single course of conduct.” Id. at 189. That reason is that an appropriate reasonable accommodation “is best determined through a flexible, interactive process that involves both the employer and the [employee] with a disability.” Ibid, quoting 29 C.F.R. Appen. to 1630, Interpretive Guidance on Title I of the Americans with Disabilities Act, foll. §1630.9, Process of Determining the Appropriate Reasonable Accommodation (2000).) “Thus, reasonable accommodation is often an ongoing rather than a single action.” Ibid. For this reasons, the Court noted that “courts applying the Berry test to the area of reasonable accommodation, as well as courts applying a broader test, have found a continuing violation for the entire course of the employer’s unlawful conduct.” Id. at 822.

Rather than allow an employee to indefinitely delay the filing of a lawsuit based upon an employer’s ongoing failure to reasonably accommodate a disability, however, the Court in Richards stated that, “[i]f the employer has made clear in word and deed that the employee’s attempted further reasonable accommodation is futile, then the employee is on notice that litigation, not informal conciliation, is the only alternative for the vindication of his or her rights. Barring a constructive discharge, it is at that point that the statue of limitations for the violation begins to run.” Id. at 823.

In Mr. Mathews’s case, the City of Tinton did not make clear that further efforts to obtain reasonable accommodation were futile until December 13, 2012, when for the first time it informed Mr. Mathews that if he did not return to work by January 2, 2013, the Board would stop paying him. Until then, the parties were engaged in an ongoing process rather than a single action. The Judge in Mr. Mathews’s case agreed that his statute of limitations to bring suit alleging failure to accommodate did not begin to run until three years after he first sought reasonable accommodation and denied the City of Tinton’s motion to dismiss. Thereafter, the parties were able to resolve their dispute.