On certification to the Superior Court, Appellate Division, whose opinion is reported at 151 N.J. Super. 15 (1977).
For reversal and reinstatement -- Chief Justice Hughes, Justices Sullivan, Pashman, Clifford, Schreiber and Handler and Judge Conford. For affirmance -- None. The opinion of the court was delivered by Pashman, J.
The resolution of this action charging Princeton University with sex discrimination against one of its female employees requires our determination of the issues of subject matter jurisdiction, the proper scope of appellate review of a trial judge's findings of fact, and the selection of an appropriate standard for measuring the adequacy of a plaintiff's prima facie showing in an employment discrimination case. The plaintiff, Ilene Peper, complains that sex discrimination on the part of employees of Princeton University prevented her from being promoted. The appellant University challenges the propriety of the Appellate Division's reversal of the trial judge's finding of no discrimination. 151 N.J. Super. 15 (App. Div. 1977).
From August 1968 until her abrupt resignation on October 1, 1973, Peper was employed in the University Office of Personnel Services. There were four separate units in the Personnel Office: wage and salary, training and communications, benefits, and employment. She was assigned to the employment section of that office as one of three recruiters of employees for the nonacademic staff of the University, and given the title of Administrative Assistant.*fn1 Her direct supervisor during the four years she worked in the employment section was Bruce Edwards. On January 1, 1969 plaintiff
was promoted to the rank of Administrative Associate, with an attendant increase in salary. Her two peers in the employment section were James Barbour and Joseph Mignon, who were also recruiters. Peper had more work experience than the two men, as she had worked at the Accelerator Project at Princeton's Forrestal Campus from 1960 to 1965, when a family relocation had caused her to leave the employ of Princeton until August 1968. The two men, however, were college graduates which Peper was not. As of July 1969 all three held the rank of Administrative Associate. Later in 1969 Mignon was transferred to the wage and salary section. James Oliver was hired to take Mignon's place in the employment section as the rank of Administrative Assistant, one rank below Peper.
In 1970 Peper made her initial request to Edwards for a promotion. He denied the request due to budget limitations. In June 1971 she again requested a promotion. Edwards refused to single her out for promotion and indicated that she would not be promoted unless her peers in the employment section, Barbour and Oliver, were also promoted. At Edwards' request Peper prepared a memo to support her assertion that she had more experience than Barbour and Oliver and thus should be singled out for promotion. The memo outlined Peper's responsibilities at the Accelerator Project from 1960-1965. In January 1972 she received a raise but no promotion.
In early 1972 Peper volunteered to be transferred from the employment section to the training section of the Office of Personnel Services. She and Richard Horch, the Director of that office, contemplated that this temporary move of one to two years would broaden Peper's experience, enhancing her future promotability. This was a lateral transfer, not a promotion, and Peper several times testified that she did not expect a promotion during her tenure at the training section. Her new superior was Stanley Adelson, head of the Training section. Her overall employment goal was to become
a personnel manager. That position did not exist in the Office of Personnel Services. Apparently such a position did exist at both the Plasma Physics Plant and at the Accelerator Project. Peper's position in the employment section was taken by Barbara Smith, a college graduate, who started at the rank of Administrative Assistant.
Richard Horch left Princeton in September 1972, and Bruce Edwards was named acting Director of the Office of Personnel Services. When William Reed was appointed as the new Director in February 1973, Edwards was appointed to a new position, Associate Director of the Personnel Office. However, there was no discernible change in his duties. Nevertheless, Peper concluded that there was an opening for Edwards' former position of Assistant Director of the employment section. She was told there was no vacancy and that there would be none until the 1974 reorganization of the Office of Personnel Services. Peper was not satisfied with this explanation and alleges that this constituted an instance of sex discrimination against her. She left her employment in October 1973 prior to the planned reorganization of the office. The position of Assistant Director of the employment section was eventually filled after the 1974 reorganization, when it went to Barbour.
The other alleged act of unlawful discrimination occurred in 1973, when Mignon and Barbour were promoted to Administrative Officers effective July 1. These promotions were announced in April. Peper, who was still in the training section, was not promoted. Oliver, who was still in the employment section, also failed to receive a promotion. Barbara Smith was promoted to Administrative Associate in the employment section. It is this disparate treatment of Peper as compared to her male peers which she claims constitutes a prima facie showing of sex discrimination.
In early August 1973 Peper talked with Reed about her non-promotion. He told her that not all of her evaluations were good, and that she should be patient. He noted that
she was to be one of the four regional representatives in the "Plan A" reorganization which would take place in 1974, and that she should speak with Edwards concerning her new position under the reorganization. This position entailed more responsibility.
On August 17, plaintiff talked to Edwards about her lack of promotion rather than the planned reorganization and its likely effect on her responsibilities. Peper testified that Edwards told her that while her work was of excellent quality, he and others had some difficulty in working with her. Although dissatisfied with the lack of action toward her promotion, Peper continued working in the training section.
Peper's resignation was precipitated by an unrelated incident involving the temporary assignment of a male Administrative Officer from the Plasma Physics Plant to the Personnel Office for the period of time necessary for him to become familiar with the procedures there. The idea was to familiarize him with the central personnel office so he could more easily work with it during the reorganization, which apparently did not include the Plasma Physics Plant. Peper was offended by this -- she somehow concluded that this man did not know his job but outranked her. Nothing in the record supports this contention.
Plaintiff resigned as of October 1, 1973, complaining of Barbour's July promotion to Administrative Officer and Edwards' comments about her. Reed reluctantly accepted her resignation, claiming that Edwards' views had nothing to do with her lack of promotion. After the 1974 reorganization, all four regional representatives were Administrative Officers.
Testimony by William Reed indicated that Mrs. Peper, while unhappy at not being promoted, had never indicated that she attributed her non-promotion to sex discrimination. He testified that she had never complained to him of such discrimination and that none of his co-defendants had ever informed him that plaintiff had made any such complaints to them. Peper admitted that the charge of sex discrimination
was wholly the product of her consultations with an attorney, which took place after her resignation.
Peper filed a complaint in the Superior Court, Law Division, on February 1, 1974, charging Princeton University as an entity and several of its officers individually with sex discrimination. Jurisdiction was alleged under twelve different theories. At the conclusion of plaintiff's trial presentation the defense moved for dismissal of the complaint as to all defendants, and in the alternative, as to the individual defendants. Disposition of the motion was deferred until the conclusion of defendant's case. At that time the trial judge granted the motion to dismiss as to the individual defendants. Disposition of the motion was deferred until Plaintiff objected to the dismissal of the complaint as to the individual defendants.
The trial judge ruled that plaintiff had failed to prove sex discrimination on the part of Princeton University with respect to the two specific alleged incidents of which she complained. Judgment dismissing her complaint was entered on June 4, 1976. On Peper's appeal, the Appellate Division reversed, 151 N.J. Super. 15 (1977). The appeals court held that the trial judge was correct in dismissing the complaint against the individual defendants but that the evidence proved sex discrimination on the part of Princeton University in not promoting Peper to the position of Administrative Officer on July 1, 1973. The court found the discrimination to be violative of New Jersey's Law Against Discrimination. N.J.S.A. 10:5-1 et seq. This Court granted the University's petition for certification, 75 N.J. 24 (1977).
The principle is well established that a court cannot hear a case as to which it lacks subject matter jurisdiction even though all parties thereto desire an adjudication on the merits. State v. Osborn, 32 N.J. 117, 122 (1960); Abbott
v. Beth Israel Cemetery Ass'n of Woodbridge, 13 N.J. 528, 537 (1953); Peterson v. Falzarano, 6 N.J. 447, 454 (1951). Such jurisdiction must be granted to the court by the Constitution or by valid legislation, as it "cannot be vested by agreement of the parties." Id. Likewise, subject matter jurisdiction cannot be conferred by waiver resulting from a party's failure to interpose a timely objection to the assumption of jurisdiction. Lay Faculty Ass'n of Regional Secondary Schools of Archdiocese of Newark v. Roman Catholic Archdiocese of Newark, 122 N.J. Super. 260, supplemented 124 N.J. Super. 369 (App. Div. 1973), cert. den. 64 N.J. 153 (1973). Objection to jurisdiction of the court over the subject matter is effective whenever made. McKeeby v. Arthur, 7 N.J. 174 (1951). Of the 12 grounds of jurisdiction alleged by plaintiff, we find that only a few are colorable.
Law Against Discrimination
The University contends that prior to the June 6, 1977 effective date of the 1977 amendments to the Law Against Discrimination, L. 1977, c. 122, that Law did not apply to private*fn2 universities. The pre-amendment version of the Law's definitional section, which is applicable to Peper's suit, read as follows:
"Employer" does not include a club exclusively social or a fraternal, charitable, educational or religious association or corporation, if such club, association or corporation is not organized and operated for private profit.*fn3
Despite the plain and unambiguous exclusion of private universities from the ambit of the Law, the Appellate Division concluded, without citing any supporting authority, that Princeton was an "employer" within the meaning of the Law Against Discrimination. 151 N.J. Super. at 23. The appeals court properly found the University to constitute a public accommodation under N.J.S.A. 10:5-5(l), which read, and still reads, in pertinent part that "[a] place of public accommodation shall include, but not be limited to * * * a college and university * * *" To prevent the alleged anomaly of having the Law Against Discrimination apply to Princeton as a public accommodation, but not as an employer, the Appellate Division found that the specific exclusion of universities from the definition of employer could not apply to any facility which was itself a public accommodation. Id. We disagree.
The prohibition of discrimination in relation to public accommodation is functionally distinct from the ban on employment discrimination. The former deals only with facilities maintained for the use of the general public. See Blair v. Mayor and Council of Bor. of Freehold, 117 N.J. Super. 415, 417 (App. Div. 1971), certif. den. 60 N.J. 194 (1972); National Organization for Women v. Little League Baseball, 127 N.J. Super. 522, 530-532 (App. Div. 1974), affirmed 67 N.J. 320 (1974). Thus, Princeton could not legally discriminate in making its facilities available as an
educator. The Legislature could rationally choose not to exempt a private university in that respect, but to accord the exemption as an employer. Thus, the Appellate Division erred in considering plaintiff's case as one falling under the statutory prohibition of discrimination in relation to public accommodation.
In our view, the Appellate Division's holding effectively nullifies the specific exemption in N.J.S.A. 10:5-5(e) for private educational institutions as employers. A construction of a legislative enactment which would render any part thereof superfluous is disfavored. Abbotts Dairies v. Armstrong, 14 N.J. 319, 327-328 (1954); Hoffman v. Hock, 8 N.J. 397, 406-407 (1952). Moreover, despite the expansive general purpose of the Law Against Discrimination, announced in N.J.S.A. 10:5-4 to be that of making employment free from proscribed types of discrimination, a "civil right" in New Jersey, this Court may not ignore the plain meaning of the exemption of private educational institutions found in N.J.S.A. 10:5-5(e).
To put this problem in perspective, it is useful to view the history of the Law Against Discrimination. As originally enacted in 1945, L. 1945, c. 169, it had more limited coverage than it does at present. It is beyond dispute that the Law Against Discrimination was never intended to cover all differences in treatment of employees by employers. It has been amended over a dozen times as part of a gradual legislative response directed toward eliminating forms of discrimination not theretofore banned by statute. For example, sex discrimination was expressly proscribed for the first time in 1970, pursuant to L. 1970, c. 80.
While this Court has been scrupulous in its insistence that the Law Against Discrimination be applied to the full extent of its facial coverage, see Zahorian v. Russell Fitt Real Estate Agency, 62 N.J. 399 (1973); Jackson v. Concord Co., 54 N.J. 113 (1969), it has never found such coverage to exist in the face of an unambiguous exclusion. By any fair reading,
N.J.S.A. 10:5-5(e) was just that -- an unmistakable exclusion of private universities in their capacities as employers from the ...