Before Judges Conley, Wallace and Carchman.
The opinion of the court was delivered by: Conley, J.A.D.
 Argued April 21, 1998
This is an employment discrimination case involving a female teacher who, at the age of forty-eight and in her third year of employment, was not rehired and, thus, was denied tenure. Plaintiff, Evelyne Greenberg, filed a complaint against defendant, Camden County Vocational and Technical Schools, claiming that the decision not to rehire her violated the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. She appeals from the trial Judge's grant of summary judgment in favor of defendant dismissing her complaint. We reverse.
Plaintiff was born on July 9, 1946. She received her Bachelor of Arts degree from the University of Miami, majoring in English and minoring in Spanish. She also received a Masters degree in bilingual bicultural studies from Marywood College. Thereafter plaintiff obtained her teaching certificates for Pennsylvania and New Jersey in 1989 and 1990, respectively. Prior to working for defendant, plaintiff taught at several high schools and educational institutions from February 1986 to June 1991, but never gained tenure.
On January 11, 1993, defendant hired plaintiff, then forty-five, as a non-tenured high school teacher in the English department at the Pennsauken campus for the period of January 20, 1993 to June 30, 1993. The school district reviews and evaluates teachers annually for rehire using observations, teacher evaluation forms and annual written performance reports in accordance with N.J.S.A. 18A:27-3.1 and N.J.A.C. 6:3-4.1.
Plaintiff's written performance evaluations for her first year of employment with the district, conducted on February 1, 1993 and May 25, 1993, were all positive. The evaluator noted "the instructor's enthusiasm and positive dialogue that appears to have affected this class" and "[a] good teaching/learning situated existed . . . ." However, during that year plaintiff received four "memos of concern" from Robert Morelli, the principal of the Pennsauken school. Three memos were for improperly filling out the sign in/out log and absence forms, and one memo was for submitting verification sheets late. Nevertheless, the district renewed plaintiff's employment for the 1993-94 school year.
Overall, Ms. Greenberg's written performance evaluations during the 1993-94 school year were positive, with few exceptions. Her October 25, 1993 evaluation, however, identified two areas in which her preparation performance was graded "NO" or "currently not acceptable." Her preparation plans failed to "make maximum use of technicians" and she failed to record her schedule in the long range section of her planning book. Yet, the evaluator noted that "[o]ne key element of the class observed was the teacher enthusiasm for the material and her support for the participation of the students." Plaintiff's November 23, 1993, December 20, 1993 and February 2, 1994 evaluations were all positive in every respect.
However, again plaintiff received "memos of concern" from Mr. Morelli during the 1993-94 school year. They were similar to the earlier "memos of concern." Four memos addressed her failure to properly sign in/out and complete an absence form. One memo stated that she had submitted untimely verification sheets. And so, while her June 27, 1994 performance evaluation was overall positive and listed her strengths as "[r]apport with students, [i]nstructional techniques, [c]lassroom management," it identified as needing improvement areas of "Management (Sign in/out sheets . . . absence slip . . .) and Preparation." The only professional improvement objectives listed were for plaintiff "[t]o complete all school records accurately" "[t]o maintain a complete long range plan" and "[t]o include how you use your technicians in the management plan."
The district rehired plaintiff for the 1994-95 school year. During her third and final year with the school district, plaintiff received four written performance evaluations. In the first, a September 30, 1994 evaluation, the only negative evaluation was an "NI" or "performance is marginally acceptable, improvement is needed," for the required elements of her lesson plan. Plaintiff contends, however, that by letter dated October 14, 1994, Dr. O'Hara acknowledged that her lesson plans were individualized, and thus, the deficiency was corrected.
The second evaluation for the 1994-95 school year, conducted on November 22, 1994, identified plaintiff's performance as deficient in two areas. One was in the category of preparation for her failure to read an entire play prior to presenting it to the students. Plaintiff contends that she read the complete summary of the play contained in the teacher's guide as well as the teaching recommendations prior to presenting it to her class. The second criticism was in the category of class management, in that students stood up and put on jackets before the dismissal bell. Plaintiff asserts that only one student was involved and he put on his jacket only after the evaluator had already stood up and put on his jacket.
The third evaluation conducted on December 13, 1994, identified two areas of deficiency in preparation, one for failing to place a daily instructional objective in her lesson plan, and the second for failing to record the page numbers of the text being used that day in her plan book. She also received a deficiency in management for neglecting to give a copy of the text to the evaluator during the evaluation. Her performance was also found to be marginally acceptable in the category of follow-up "since [she] received notice on [her] evaluation of September 30, 1994 that [her] lesson plan entries for English IA and IIA were brief." To her credit, her evaluation reflected that "[a] good discussion [on Greek myths] followed and involved all students." The evaluation recommended that plaintiff meet with her staff development specialist for assistance with the unsatisfactory areas.
In the fourth evaluation on March 7, 1995, plaintiff received a deficiency in the category of professional qualities because she chewed gum during the evaluation. It was otherwise a positive evaluation. Plaintiff did not receive any "memos of concern" during the 1994-95 school year. She did, however, receive a "letter of concern" dated January 23, 1995 from Mr. Morelli listing the unsatisfactory areas in her evaluations and the "memos of concern" over the course of her employment with the district. He informed her that the unsatisfactory areas would "be considered in conjunction with your overall performance as a teacher during the months ahead when recommendations regarding your future employment status are made." Needless to say, plaintiff was not rehired and was not accorded tenure.
Plaintiff's proof of discrimination is primarily two-fold: 1) statistics that she claims show a pattern of excluding women over the age of forty-five, and 2) a comparison of the individual records of several other younger women teachers who were granted tenure when she was not. The records reflect that these younger teachers had, if not more, at least as many deficiencies in their evaluations and "memos of concern."
The statistics are as follows. At the end of the 1994-95 school year, nine teachers at the Pennsauken campus were evaluated for tenure. Three teachers, including plaintiff, all women over the age of forty-five, were terminated. Six teachers, four women and two men, all under the age of forty-five, were granted tenure. In 1993-94, two female teachers, age forty-five and forty-seven, were evaluated for tenure. The district granted the forty-five year old tenure but denied the forty-seven year old tenure. In 1992-93, two female teachers under the age of forty-five were both granted tenure. While no teacher was denied tenure, no teacher over forty-five was granted tenure. In 1991-92, a male teacher age fifty-two was granted tenure, while a female teacher age twenty-eight was denied tenure. Finally, in 1990-91, all six teachers under consideration received tenure with the oldest teacher being a forty-one year old female. Thus, plaintiff contends that of thirteen teachers at the Pennsauken campus evaluated for tenure over the past three years, every female over the age of forty-five has not been rehired and accorded tenure by the district, even though four women, between the ages of forty and forty-five, one forty-five, two forty-three and one forty-two, did receive tenure during this time frame. On the other hand, no male over forty-five, even one aged fifty-two, was ever denied tenure during this time period. *fn1 In contrast, defendant presented additional statistics for the Gloucester campus, not just Pennsauken. These statistics, excluding those for Pennsauken, revealed that at the end of the 1994-95 school year, of six teachers evaluated for tenure, five were accepted, of which one was a fifty-four year old female teacher. The only teacher denied tenure was a male, age forty-seven.
As to the evaluation records of the younger teachers, while several received "memos of concern," some for administrative infractions similar to plaintiff's and others for deficiencies of a more serious nature, these teachers were not rehired by the district. First, teacher A-1, a thirty-nine year old female, received eight "memos of concern" from January 1993 through April 1994. Like plaintiff, she incorrectly filled out an absence form and forgot to sign the in/out log. She also forgot to attend a meeting with the principal, permitted students to play cards during school, failed to provide a required list of students who were outside of the classroom when a fire alarm sounded and arrived late for class.
Teacher A-2, a female age thirty-eight, received seven "memos of concern" citing her failure to call in by a designated time to report her absence, to submit an updated meeting agenda, to properly fill out absence forms and to provide comments on ...