On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. MER-L-2958-01.
Before Judges Pressler, Parker and Coleman.
The opinion of the court was delivered by: Coleman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 30, 2003
Plaintiff Paul S. Beatty is appealing from an order granting summary judgment in favor of defendants and dismissing his complaint based on alleged age discrimination. The defendants are the then Attorney General John J. Farmer, then Director of the Division of Law Jeffrey J. Miller, and then Assistant Attorney General Mark Fleming. The motion judge determined that defendants' proffered business reason for the decision not to hire was not rebutted by plaintiff nor shown to be pretextual. We affirm substantially for the reasons expressed by the Hon. Paulette Sapp-Peterson, J.S.C. in her oral opinion on the record on September 27, 2002. We add the following comments.
On March 23, 2001, plaintiff, who had practiced law for thirty-four years and who was then fifty-nine years old, wrote to defendant John J. Farmer, Jr., the Attorney General of the State of New Jersey, seeking a position as a Deputy Attorney General. On June 7, 2001, plaintiff was interviewed by defendant Assistant Attorney General Mark Fleming, after which Fleming wrote a memorandum to the then Director of the Division of Law, defendant Jeffrey J. Miller, recommending that Miller interview plaintiff. Miller, whose responsibilities included the hiring of Deputy Attorneys General, possessed the ultimate authority to hire acceptable candidates. After receiving Fleming's memorandum and reviewing plaintiff's application, including his writing sample, Miller decided not to schedule an interview.*fn1 Miller made a note in the margin of Fleming's memorandum,"No. Writing sample is awful" and he directed his secretary to have Fleming send plaintiff a rejection letter. Fleming had not reviewed the plaintiff's writing sample before making his recommendation to Miller.
The writing sample consisted of two appellate briefs plaintiff had filed with the Appellate Division on behalf of his ex-wife, then his wife. According to Miller's certification, he had concerns with the form and the tone of the writing sample. As to the form, the briefs contained one sentence paragraphs, the citation form was improper and the grammar was, at times, awkward. The tone was inappropriately accusatory and unprofessional, such as"[t]his Police Officer is a liar and if this lying under oath was done by an ordinary citizen he or she would be indicted by this same Prosecutor for perjury."
On June 28, 2001, Fleming sent plaintiff a rejection letter notifying him that the Attorney General's Office was not able at that time to offer him a position. Thereafter, plaintiff sent letters to Farmer dated July 2 and July 13, 2001. He suggested that Farmer should personally review his"subordinate's unreasonable rejection of [his] employment application." Reminiscent of the tone of his writing sample, the second of those letters was unnecessarily inflammatory. He wrote:
Maybe your review would have discovered that no one over fifty years old had been hired in the last decade as a deputy attorney general. Maybe all your attorney employees are less than fifty years old, etc. If so, possibly age discrimination exists in your hiring process.
In fact, the certification of Jeffrey Miller established that in the three year period between August 1998 when Miller became Director of the Division of Law and August 2001, he had hired one-hundred ninety-six Deputy Attorneys General. Of that number, thirty-four were over forty years of age - the protected class under N.J.S.A. 10:3-1, relating to employment in public service, and under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C.A. § 2000e-2, and the Age Discrimination in Employment Act (ADEA), 29 U.S.C.A. § 623(a) and § 631(a). Eighteen of the thirty-four were over fifty years of age. In the round of hiring in which plaintiff's application was considered, fifty-two Deputy Attorneys General were hired; nine of the fifty-two were over forty and three of those were over fifty-four. As of February 22, 2002, the date of Miller's certification, the Division of Law employed five-hundred twenty seven Deputy Attorneys General; one-hundred forty-nine of those employees were fifty years of age and older.
Despite those statistics, plaintiff asserts the hiring figures are not applicable because he is not alleging a claim of general age discrimination. He emphasizes he is alleging there was discrimination against him personally because during the period from April 20, 2001 to June 28, 2001 when his application was accepted, considered and rejected, three persons under forty years of age - one thirty-nine, one thirty-eight and one twenty nine - were hired while he, a fifty-nine year old, was not. On September 13, 2001, plaintiff filed his complaint in the Superior Court, Law Division, Mercer County, alleging age discrimination in violation of (a) the statute prohibiting, in the selection of persons for employment in the service of the State, discrimination against job applicants age forty or over, N.J.S.A. 10:3-1, and (b) the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-4 and N.J.S.A. 10:5-12(a).
Although we typically look to federal cases arising under Title VII and ADEA in analyzing discrimination claims, we note that the LAD, unlike ADEA, rests on an independent assessment of the language and purpose of N.J.S.A. 10:5-4 and -12(a). See Bergen Commercial Bank v. Sisler, 157 N.J. 188, 215 (1999) (holding that the LAD's prohibition against age discrimination is not limited to the protection of older workers but is broad enough to accommodate a twenty-five year old's claim of age discrimination based on youth). Despite that distinctive substantive difference between the LAD and the federal statutes addressing age discrimination, it is nevertheless, recognized that any claim of age discrimination is appropriately evaluated under the modified McDonnell Douglas standard adopted by the New Jersey Supreme Court in Erickson v. Marsh and McLennan Co., 117 N.J. 539, 550 (1990).*fn2
The requisite analysis involves a three-stage process, which was summarized in the opinion in Bergen Commercial Bank, supra, as follows:
The McDonnell Douglas standard is a three stage process, the first stage of which requires the plaintiff to prove, by a preponderance of the evidence, the four elements of a prima facie case of discrimination. A prima facie cause of action under the LAD is established when [t]he plaintiff  demonstrate[s] by a preponderance of the evidence that he or she (1) belongs to a protected class, (2) applied and was qualified for a position for which the employer was seeking applicants, (3) was rejected despite adequate qualifications, and (4) after rejection the position remained open and the employer continued to seek applications for persons of plaintiff's qualifications. Establishment of a prima facie case gives rise to a presumption that the employer unlawfully discriminated against the employee. ...