On appeal from the New Jersey Division on Civil Rights.
J.h. Coleman, Brody and Muir, Jr. The opinion of the court was delivered by Muir, Jr., J.A.D.
[242 NJSuper Page 439] It is well settled that discrimination based on the color of one's skin is a profound wrong of tragic dimension. See Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363, 2379, 105 L. Ed. 2d 132, 158 (1989). This appeal from a final decision of the Director of the Division on Civil Rights deals with one of the more invidious, subtle aspects of such
discrimination -- denial of a promotion as retaliation for an employee's prior pursuit of an employment discrimination claim.
The Director found retaliation occurred and ordered remedies and a penalty. In so doing, he applied proof standards appropriate to circumstances where employment termination, rather than denial of promotion, was the product of the retaliatory intent. We hold those proof standards should have been refined to deal with denial of promotion circumstances.
Accordingly, we affirm the Director's decision (1) to the extent he found, or the record supports a holding, that petitioner presented prima facie proof that she was denied promotion as the result of retaliatory action by her employer, and (2) to the extent he found, or the record supports a holding, that petitioner is entitled to a presumption that she was rejected for promotion by the school superintendent due to the latter's retaliatory intent. However, we reverse the remainder of the Director's final decision and remand for further proceedings consonant with this opinion.
Dr. Felicia Jamison, a black employee of the Rockaway Township School District, first encountered racial discrimination in Rockaway Township when she applied for a vice-principalship in the school system, but was not appointed. While we need not review in their entirety the events that followed, it is sufficient to state that Jamison pursued a successful claim of racial discrimination against the School Board. In April 1987, the Director found racial discrimination and, among other relief, ordered Jamison's appointment to the position of vice-principal. The Director's order also contained a provision that neither the Board nor any of its employees should retaliate against Jamison for asserting her civil rights claim. In April of this year, we affirmed the Director's findings and ordered Jamison's appointment, but made certain modifications in other remedies awarded.
After the April 1987 order of the Director, the Board acted on School Superintendent Fanning's recommendation to reorganize its administrative structure to eliminate vice-principalships in the Township. On July 1, 1987, when Jamison arrived for work at her new position, her principal told her to go home because the Board had obtained a stay of the Director's placement order. The next day, Jamison again reported to work, at which time Fanning told her to go home and Jamison complied. The record discloses no evidence of a stay being granted to the Board. Fanning testified he knew the Board made only an application for a stay, but acknowledged he ordered Jamison to go home, saying "it will all get worked out."
In July 1988, the Board established the position of Director of Curriculum. In the position vacancy notice, it described the certification and experience needed and identified the salary range. Under the category experience needed, the notice read:
Minimum of five years of teaching experience. Minimum of one year as supervisor of subject area, or central office position. Minimum of one year experience in a position which required the formal observation and evaluation of staff.
Jamison applied for the position. She did not get the job. The job was given to someone who, shortly thereafter, resigned. In 1989, the Board abolished the Director of Curriculum position, only to create a similar position for an Assistant Superintendent of Curriculum and Instruction, the post at issue here.
The history of that position began in June 1989, when Fanning posted a vacancy notice for it. At the time, the Board had not officially adopted a job description although, apparently, it had informally authorized Fanning to conduct a search. The Board needed the position promptly filled to comply with directives of the State Education Commissioner.
The vacancy notice provisions matched, in many respects, the prior Director of Curriculum notice. In two respects, it differed significantly: (1) it contained no proposed salary and (2) it narrowed the required experience to "Minimum of [ten] years
of teaching experience. Minimum of one year of Central Office Position." It also noted the job would begin "As soon as possible."
The need to fill the position promptly caused Fanning, with the Board's approval, to limit applicants to persons within the Rockaway Township system. Three people applied: Jamison, Dr. Thomas Parciak, the School Board Secretary and Business Administrator, and Sarah Zeigler, a principal in the system. Fanning had one of his assistants make a preliminary credentials review. In July 1989, after the assistant forwarded the names of all three applicants to Fanning, he conducted one-on-one interviews.
Fanning used five questions in the interviews. He did not transcribe the interviews. Instead, he kept handwritten notes. The ALJ found the "notes were not kept in narrative form, but [were] simply a sequence of barely legible words and phrases which would presumably operate to refresh his memory as to the responses of each candidate . . . ." The Director accepted those findings.
On August 29, 1989, Jamison filed a complaint with the Division on Civil Rights alleging an act of retaliation in the Board's attempt to ...