On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. MER-L-1376-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, C.S. Fisher and Messano.
In this appeal, we review the adequacy of a summary judgment that dismissed plaintiff's discrimination claim against defendant New Jersey Department of Human Services, her employer from July 29, 2002 to September 3, 2002.
Plaintiff was born with Arthrogryposis Multiplex Congenital, a condition that caused significant deformity in her legs and resulted in the amputation of her legs at the knee when plaintiff was fourteen years old. Plaintiff has since been confined to a wheelchair. She graduated from college and, thereafter, from Columbia University School of Law in 1980. In 1993, plaintiff received a presidential appointment to the United States Department of Education and served as the representative to the President and the Secretary of Education in a region that encompassed New Jersey, New York, Puerto Rico and the Virgin Islands, until the final day of President Clinton's administration in 2001.
In the Spring of 2002, plaintiff sought an appointment in Governor McGreevy's administration. She was contacted and eventually employed by defendant as a custodian of records. Plaintiff was terminated slightly more than one month after commencing employment with defendant.
Plaintiff commenced this action, alleging that defendant violated the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, by (1) terminating her employment without a legitimate, articulated, non-discriminatory reason, (2) subjecting her to disparate treatment, (3) failing to participate in the interactive process required by the LAD to provide reasonable accommodations, and (4) creating a hostile work environment. The trial court granted defendant's summary judgment motion as to all aspects of the complaint and plaintiff appealed. We affirm.
Plaintiff's claim that there were no legitimate non-discriminatory reasons for her termination required application of the burden-shifting analysis established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d 668 (1973), which our courts apply to LAD claims, Clowes v. Terminix International, Inc., 109 N.J. 575, 595 (1988).
The record demonstrates that plaintiff was a member of a protected class. And we assume for present purposes that the other aspects of plaintiff's initial burden of production, see Zive v. Stanley Roberts, Inc., 182 N.J. 436, 450 (2005); Clowes, supra, 109 N.J. at 597, were met as well. Indeed, this burden has been described as being "rather modest," because its purpose is to demonstrate "that plaintiff's factual scenario is compatible with discriminatory intent -- i.e., that discrimination could be a reason for the employer's action." Marzano v. Computer Sci. Corp., 91 F.3d 497, 508 (3d Cir. 1996) (quoted with approval in Zive, supra, 182 N.J. at 447). The establishment of this prima facie case creates an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949-50, 57 L.Ed. 2d 957, 967 (1978).
Plaintiff having provided evidence of a prima facie case of discrimination, the burden of production shifted to defendant to "articulate a legitimate, non-discriminatory reason for the adverse employment action." Zive, supra, 182 N.J. at 449. Here, in terminating plaintiff's employment, defendant's representatives cited her persistent lateness, claiming that plaintiff arrived late for work seven of the twenty-two days she was employed, even though she was permitted to arrive at 9:30 a.m., instead of 9:00 a.m. In her deposition, plaintiff acknowledged that she arrived one hour late for work on her third day of employment, that she arrived at 12:15 p.m. on another day, and that she arrived after 10:00 a.m. on three other occasions.
In addition, defendant asserted that plaintiff was absent without authorization for two days despite having applied for and been denied permission to be away from work for those same days. Plaintiff acknowledged the truth of these assertions at her deposition. Defendant also asserted plaintiff's failure to timely complete certain tasks and other evidence of plaintiff's failure to meet defendant's expectations.
We need not further delve into the details of the parties' factual arguments regarding what defendant claims were the inadequacies in plaintiff's job performance. We are satisfied that the trial judge accurately concluded that defendant had ...