Opinion
DOCKET NO. A-2056-11T4
05-02-2013
W. GERARD HARRIS, Plaintiff-Appellant, v. COUNTY OF ESSEX, Defendant-Respondent, and STATE OF NEW JERSEY, Defendant.
Gregory D. Winter argued the cause for appellant (Winter & Winkler, P.C., attorneys; Mr. Winter, on the brief). Alan Ruddy, Assistant County Counsel, argued the cause for respondent (James R. Paganelli, Essex County Counsel, attorney; Mr. Ruddy, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Nugent.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2178-07.
Gregory D. Winter argued the cause for appellant (Winter & Winkler, P.C., attorneys; Mr. Winter, on the brief).
Alan Ruddy, Assistant County Counsel, argued the cause for respondent (James R. Paganelli, Essex County Counsel, attorney; Mr. Ruddy, on the brief). PER CURIAM
Plaintiff, W. Gerard Harris, appeals from the trial court order granting summary judgment to defendant, County of Essex (County), in this age discrimination case. We affirm.
These are the facts, viewed most favorably towards plaintiff for summary judgment purposes. See R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Plaintiff is employed as an employment specialist. In January 2003, due to budgetary problems, the County terminated and laid off employees. The layoffs included employment specialists who were older and younger than plaintiff. At the time of the layoffs, plaintiff had taken the Civil Service examination for his position, later learning that he had passed. Within plaintiff's job title as an employment specialist, three employees older than plaintiff were not laid off, while two employees older than plaintiff and one employee younger than plaintiff were laid off along with plaintiff.
On February 5, 2003, the State of New Jersey, Department of Personnel (DOP), notified the laid-off employees, including plaintiff, that if they were interested in their old positions, they should notify the County. Plaintiff did not receive the notice. However, those former employees who responded to the notice were rehired in October 2003. Two of those rehires were older than plaintiff and one rehire was younger than plaintiff.
On January 3, 2004, plaintiff corresponded with DOP questioning the removal of his name from certification as an employment specialist and advising DOP he had faxed his response to the February 5, 2003 Notification of Certification (NOC) to the appointing authority. In response, DOP informed plaintiff his name had been removed after the appointing authority notified DOP it had not received plaintiff's response to the NOC. DOP further advised that it was restoring plaintiff's name to "symbol C0109D, Employment Specialist" but counseled plaintiff "that you must respond to all future certifications, by writing to the Appointing Authority indicated on the notice, or your name will be removed from the list."
Plaintiff's January 3, 2004 letter to DOP is not included in plaintiff's appendix.
The County rehired plaintiff in May 2004 at the minimum salary. The salary range for an employment specialist at that time was $38,096 to $52,095. Following his rehiring, plaintiff received every negotiated salary increase to which he was entitled. At the time the trial court considered defendant's summary judgment motion, plaintiff was earning $52,081.
Plaintiff filed a three-count complaint against the County and the State of New Jersey alleging that his compensation since his rehiring was less than the compensation paid to "employees with lower civil service grades and less experience." He attributed the disparity in his income to age discrimination and contended the discriminatory actions of the County created a hostile work environment. He additionally alleged that "[e]mployees who have not taken the civil service exam or have not passed the civil service exam are being paid higher salaries than Harris" and the County's failure to correct the disparity in his salary violated civil service law.
Plaintiff entered a stipulation of dismissal against the State of New Jersey. After the court vacated a proposed settlement between plaintiff and the County, the County filed a motion seeking summary judgment, arguing that plaintiff's wrongful termination claim was time-barred and that the NOC, to which he was required to respond, was sent out by DOP, not the County. The motion judge granted summary judgment, finding that four persons, including plaintiff, with titles as employment specialists were laid off. She noted the record established that two of the individuals were older than plaintiff, one of the individuals was younger than plaintiff, and these three individuals were rehired in October 2003, experiencing a nine-month break in service. She concluded there was no "age discrimination factor in the layoff situation, as well as the rehire situation." Additionally, the judge found plaintiff's contention, for purposes of the summary judgment motion, that he did not respond to the NOC sent in February 2003 because he never received the letter, was inexplicably inconsistent with his purported representation to DOP, in a January 3, 2004 letter, that he had faxed a response to the NOC. The present appeal followed.
In reviewing an order granting summary judgment, we apply the same standard as employed by the motion judge. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Accordingly, we must determine whether "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). "If there exists a single unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a genuine issue of material fact." Brill, supra, 142 N.J. at 540 (internal citation and quotation omitted). Thus, when the evidence is so one-sided that one party must prevail as a matter of law, summary judgment should be granted. Ibid.
In this matter, we are satisfied summary judgment was appropriately granted. We conclude, however, that although we agree, as the Law Division judge found, plaintiff raised no genuinely disputed issue of fact that the circumstances surrounding his layoff and rehire established a prima facie case of age discrimination under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, summary judgment was also appropriate because plaintiff's discrimination claim was barred by the two-year statute of limitations governing LAD claims.
"LAD claims are subject to the two-year statute of limitations contained in N.J.S.A. 2A:14-2(a)." Alexander v. Seton Hall Univ., 204 N.J. 219, 228 (2010). When the two-year period commences to run depends upon the nature of the discriminatory conduct alleged. Ibid. Where, for example, the conduct represents a discrete event, such as termination, failure to hire, or failure to promote, the cause of action accrues on the day the discriminatory conduct occurs. Roa v. Roa, 200 N.J. 555, 567 (2010). On the other hand, where the discriminatory conduct represents a series of separate discriminatory acts "that collectively constitute one unlawful employment practice[,]" the entire claim may be timely if filed within two years of "the date on which the last component act occurred." Id. (citation and internal quotation marks omitted).
Here, plaintiff was laid off in 2003. This constitutes a discrete act for which a complaint alleging wrongful termination should have been filed no later than 2005. The complaint, however, was not filed until 2007. Likewise, plaintiff claims he was rehired in 2004 at the minimum salary range, earning less than similarly situated persons younger and less experienced than he. Yet, he failed to file his complaint until three years later. Thus, plaintiff's age discrimination claims are time-barred.
Moreover, assuming his complaint was timely filed, the claims asserted, as a matter of law, fail to establish a prima facie case of age discrimination under the burden-shifting methodology in discrimination cases articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and adopted by New Jersey courts as guidance. Bergen Commer. Bank v. Sisler, 157 N.J. 188, 209-10 (1999). We have stated:
The familiar elements of that analytical framework, often referred to as the burden-shifting or pretext analysis, are (1) proof by plaintiff of the prima facie elements of discrimination; (2) production by the employer of a legitimate, non-discriminatory reason for the adverse employment action; and (3) demonstration by plaintiff that the reason so articulated is not the true reason for the adverse employment action, but is instead a pretext for discrimination.
[Myers v. AT & T, 380 N.J. Super. 443, 452 (App. Div. 2005), certif. denied, 186 N.J. 244 (2006) (citing McDonnell Douglas, supra, 411 U.S. at 802, 93 S. Ct. at 1824, 36 L. Ed. 2d at 677).]
To establish a prima facie case of age discrimination, plaintiff was required to demonstrate (1) he was a member of a protected class; (2) he was performing his position as an employment specialist; (3) he was laid off; and (4) the County sought another to perform the same work after he was laid off from his position. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 457-58 (2005). Once a plaintiff establishes a prima facie case, a presumption is created that the employer has engaged in unlawful discrimination against the employee. Andersen v. Exxon Co., 89 N.J. 483, 492-93 (1982). It is undisputed plaintiff established the first three requirements of age discrimination. It is the fourth requirement for which plaintiff's discrimination claims fall short.
In Williams v. Pemberton Township Public Schools, we stated that to establish the fourth element of a prima facie case of age discrimination, a plaintiff need only show "that the challenged employment decision . . . took place under circumstances that give rise to an inference of unlawful discrimination, thereby permitting "plaintiff to satisfy the fourth element in a variety of ways." 323 N.J. Super. 490, 500- 03 (App. Div. 1999). Utilizing this approach, we stated that an inference of unlawful discrimination sufficient to satisfy the fourth prong may be established with proof that the terminated employee "was replaced by an individual outside the protected class[.]" Id. at 503. We also determined that where a plaintiff has been replaced by an individual within the plaintiff's protected class, demonstrating the existence of other circumstances indicative of unlawful discrimination may be sufficient to satisfy the fourth prong. Id. at 502-503. In short, the fourth element may be satisfied through the traditional manner, namely that someone outside of the protected class was hired to replace the discharged employee or in a non-traditional manner, namely, raising other inferences of discriminatory animus. Id. at 503; Reynolds v. Palnut Co., 330 N.J. Super. 162, 168 (App. Div. 2000).
Here, plaintiff failed to proffer any evidence establishing the fourth prong in either the traditional or non-traditional way. At the time of plaintiff's termination, two employment specialists older than plaintiff and one employment specialist younger than plaintiff were laid off along with plaintiff. Similarly, these same employment specialists were also rehired, meaning that at least two of the rehires were older than plaintiff. Moreover, once plaintiff contacted DOP to complain that his name had been removed from the list of certified employment specialists and DOP reinstated his name, plaintiff was rehired. Further, plaintiff proffered no competent evidence establishing other circumstances from which an inference of discrimination could be established. Thus, as a matter of law, plaintiff is unable to establish the fourth element of the prima facie case.
Nor, as the motion judge found, was evidence presented sufficient to rebut the County's legitimate, non-discriminatory reason for plaintiff's layoff, specifically, budgetary constraints. Assuming plaintiff had established all four prongs of a prima facie case of age discrimination, the burden then shifted to the County to rebut the presumption of discrimination by articulating a legitimate, non-discriminatory reason for the adverse employment action. Andersen, supra, 89 N.J. at 493. The County, however, only carries the burden of production, rather than persuasion, to show a legitimate, non-discriminatory reason for its action: "It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089, 1094, 67 L. Ed. 2d 207, 216 (1981) (footnote omitted). The defendant employer need not prove that its proffered reason actually motivated its behavior because throughout this burden shifting model, the burden of proving intentional discrimination always remains with the plaintiff employee. Martinez v. National Broadcasting Co., 877 F. Supp. 219, 228 (D.N.J. 1994).
After an employer articulates a legitimate, non-discriminatory explanation for its employment decision, a plaintiff has the burden of persuasion to show that the defendant's proffered reason is merely a pretext, i.e., that it was not the true reason for the employment decision. Andersen, supra, 89 N.J. at 493. A plaintiff may accomplish this by showing that (1) a discriminatory reason more likely motivated the employer than the employer's proffered legitimate reason, or (2) the employer's proffered explanation is unworthy of credence. Burdine, supra, 450 U.S. at 256, 101 S. Ct. at 1095, 67 L. Ed. 2d at 217.
Here, the motion judge correctly observed that plaintiff's age discrimination claims accrued at two points, his termination and the rehiring of his three colleagues. The judge then noted that the County demonstrated a legitimate basis for the layoffs, plaintiff failed to proffer any evidence to rebut the County's articulated basis for the layoffs, and because he was rehired, plaintiff also failed to proffer any evidence raising a genuinely disputed issue that the circumstances surrounding his rehire were motivated by a discriminatory animus based upon age. Plaintiff presented no competent evidence to rebut the County's articulated, non-discriminatory explanation for its actions. Thus, plaintiff's substantive claims of age discrimination lacked merit.
Finally, plaintiff claims the motion judge erred in finding plaintiff received the NOC in January 2003, as had the other employment specialists who were laid off and subsequently rehired. Plaintiff contends the DOP letter, which stated he claimed he had faxed the letter to the appointing authority, was not a letter he faxed in connection with the 2003 NOC. Rather, plaintiff alleges the letter references his response to instructions he received once he was certified. Even if we were to assume plaintiff never received the NOC, at best, such claim asserts a cause of action for negligence, but does not amount to age discrimination for the reasons stated above. Moreover, any claim based upon the County's alleged negligence is also time-barred pursuant to the New Jersey Tort Claims Act. See N.J.S.A. 59:8-8.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION