Gordon & Rees New Jersey partner Michael Hanan and associate Jeremi Chylinski recently obtained a voluntary dismissal, with prejudice, of a case asserting New Jersey state law claims for race-based hostile work environment, race-based discriminatory discharge and retaliatory discharge in which Plaintiff, during his deposition, conceded under oath that he falsified the vast majority of the allegations in his complaint. Plaintiff filed his complaint almost two years after his discharge, i.e., just days before the expiration of the statute of limitations on his discriminatory discharge claims, in New Jersey State Superior Court. The complaint also contained several egregious allegations of race based hostile work environment harassment, but they all were time-barred.
After removing the case to federal court on diversity grounds, Hanan and Chylinski conducted the Plaintiff’s deposition, on the first day of which he testified as to an incident related to his race-based hostile work environment claim. He further testified that this incident occurred just days before his discharge – the one incident that would have potentially fallen within the statute of limitations and enable Plaintiff to invoke the Continuing Violation doctrine (i.e., if one incident is timely, all time-barred incidents can be brought into the case if they can be considered part and parcel of the hostile work environment claim). This was, of course, quite surprising given that Plaintiff had no documentation of the alleged incident or any incidents before that time, and could not recall the dates of any of the prior incidents, at all; but somehow he was miraculously able to recall that this incident occurred on a date certain, and within the 2-year statute of limitations. Further, that same incident was in fact contained as an allegation in the complaint, as well as in a preceding Attorney Demand Letter that his attorney sent on his behalf to the defendant-employer, but Plaintiff alleged it occurred eighteen months earlier. When confronted with the complaint and ADL, Plaintiff testified that he had never seen either document before his deposition, and had no idea how the information was contained in them. The final dagger came when he was confronted at his deposition with the documented fact that Plaintiff was out of the office, and on vacation, on the new date that he alleged the incident occurred.
This, combined with the fact that Plaintiff re-canted the vast majority of his other allegations in the complaint after also being confronted with them at his deposition, caused the Plaintiff’s attorney to raise the white flag and notify the District Court that his client authorized him to voluntarily withdraw the case. The firm’s client will be filing an application for costs against the Plaintiff, which will include the cost of removal and both deposition dates, for the court reporter and videographer.