July 14, 2008
PAUL J. CARR, PLAINTIFF-APPELLANT,
THE TOWNSHIP OF STAFFORD, A MUNICIPAL CORPORATION AND THE MAYOR AND COUNCIL OF THE TOWNSHIP OF STAFFORD, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, L-1763-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 8, 2008
Before Judges Coburn, Fuentes and Chambers.
Plaintiff Paul J. Carr appeals from the order of February 16, 2007, granting summary judgment in favor of defendant Township of Stafford ("Stafford"). Plaintiff alleges that Stafford discriminated against him on the basis of his disability and his age in violation of the Law Against Discrimination, N.J.S.A. 10:5-1 to 49 ("the LAD"), when it failed to reappoint him as its municipal court judge. Plaintiff also has brought a breach of contract claim against Stafford for terminating his medical benefits while he was working as its municipal court judge.
Many of the facts are not in dispute. Plaintiff began his service as a municipal court judge in Stafford in 1984 to complete the unexpired term of another judge. He was thereafter appointed to several successive three-year terms through December 31, 2002. He was not reappointed for the term beginning January 1, 2003.
Plaintiff suffered serious medical problems in 1998 due to a motor vehicle accident. He was diagnosed with congestive heart failure and left-sided polyneuropathy, and these medical conditions form the basis of plaintiff's claim that he is disabled. Defendant was able to resume his duties as a municipal court judge in 1999. He indicates that he needed only two accommodations upon his return: transportation to and from the job (which his family provided), and a normal, and not accelerated, pace of courtroom business. He was reappointed to the municipal court judge position for the term from January 1, 2000, to December 31, 2002. In 2001, the municipality terminated medical coverage for all of its part-time employees, including plaintiff.
The municipality declined to reappoint plaintiff to the position of municipal court judge in January 2003, when his term expired, due to complaints it had received about his performance. Complaints against plaintiff were made by the Stafford municipal court administrator who contended he made mistakes. Plaintiff at his deposition explained that he believed the administrator felt a bitterness toward him because he had represented her husband in her divorce and because he refused to corroborate her discrimination claim against the police department. The municipal prosecutor testified at his deposition that plaintiff could not handle the work and that he was making mistakes, for example, marking dispositions on the wrong tickets. Plaintiff was replaced by a judge who was fifty-four years old. At the time, plaintiff was fifty-six years old.
After replacing plaintiff, Stafford continued its former practice of accepting the county wide list of municipal court conflicts judges. If a conflict arose, its municipal judge would chose someone from the list. Since plaintiff was on that list, he could be selected as a conflicts judge for Stafford.
Plaintiff brought this lawsuit contending that he was not reappointed due to his age and physical disability in violation of the LAD. Among the relief sought in the complaint was reinstatement, retroactive pay, and other damages. The trial court granted summary judgment in favor of Stafford and noted that the reappointment of a municipal court judge is entirely within the discretion of the municipality under N.J.S.A. 2B:12-4 (providing for the appointment of municipal judges), and does not constitute a discharge under the LAD. The trial judge also found that even if the LAD applied, plaintiff could not prove his claim. Plaintiff now appeals that decision.
When reviewing a decision on a motion for summary judgment, this court employs the same standard applied by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). In order for a motion for summary judgment to be granted, the movant must show "that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). When considering the motion, the court must give the non-moving party all of the legitimate favorable inferences that may be drawn from the evidence. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 535 (1995). If, under those circumstances, a rational factfinder could find in favor of the non-movant, the motion must be denied. Ibid.
In pertinent part, the LAD prohibits an employer from discriminating based on disability or age when discharging an employee. N.J.S.A. 10:5-12(a). The LAD's definition of employer includes municipalities. See N.J.S.A. 10:5-5(e) (including as employers "all public officers, agencies, boards or bodies"). Plaintiff contends that he was an employee of Stafford and that its failure to reappoint him was equivalent to a discharge.*fn1
The trial judge found, and Stafford argues, that the LAD does not govern the appointment or reappointment of municipal court judges. Indeed, our review of the law reveals no case where the LAD has been applied to the appointment or reappointment of a judge. We suspect that this is due to the general assumption, as the trial judge stated, that the appointment of municipal judges rests "entirely within the discretion of the elected municipal government."
Certainly, any attempt to apply the LAD to the appointment or reappointment of a Chief Justice or Associate Justice to the Supreme Court or to a judge to the Superior Court would raise issues of a constitutional dimension, since the New Jersey Constitution expressly provides for the manner of appointment and reappointment of Supreme Court justices and Superior Court judges. N.J. Const. art. VI, § 6, ¶ 1 ("The Governor shall nominate and appoint, with the advice and consent of the Senate, the Chief Justice and Associate Justices of the Supreme Court, [and] the judges of the Superior Court."); see generally De Vesa v. Dorsey, 134 N.J. 420 (1993) (considering, in a split decision, whether the exercise of senatorial courtesy over a particular judicial reappointment was a justiciable political question); Clark v. Byrne, 165 N.J. Super. 98, 110 (Law Div.) ("[T]he matter of appointment of judges and other public officers by the Governor and their confirmation by the Senate is a political question, committed to the exclusive discretion of the Executive and Legislative Branches."), aff'd, 165 N.J. Super. 16 (App. Div. 1978).
Municipal court judges are on a different constitutional footing than Supreme Court Justices or Superior Court judges, since the position of a municipal court judge is not set forth in the Constitution. The Legislature has provided for the creation of municipal courts pursuant to the constitutional provision allowing for the establishment of other courts. N.J. Const. art. VI, § 1, ¶ 1; N.J.S.A. 2B:12-1.*fn2
The Constitution requires that if the jurisdiction of a court extends to more than one municipality, then the judge must be nominated and appointed by the Governor with the advice and consent of the Senate. N.J. Const. art. VI, § 6, ¶ 1; N.J.S.A. 2B:12-4(b), (c). Thus, the same constitutional concerns regarding application of the LAD to the appointment and reappointment of Supreme Court Justices and Superior Court judges applies to municipal court judges with jurisdiction extending to more than one municipality. The Constitution is silent on the appointment process for judges whose jurisdiction is confined to one municipality. The appointment of those municipal judges is thus governed by statute.*fn3 N.J.S.A. 2B:12-4.
Whether the legislature intended the LAD to cover the appointment and reappointment of municipal judges, given the constitutional issues that would be raised and the disparity that may result between the treatment of certain municipal court judges and other members of the judiciary, is a question we need not reach because summary judgment was warranted on the merits of plaintiff's LAD claims.
The LAD prohibits an employer from discriminating against prospective employees based on certain factors, including their age or disability. N.J.S.A. 10:5-12(a).
Under the so called "McDonnell Douglas test," to prove a discrimination case, plaintiff must first come forward and prove a prima facie case. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed. 2d 668, 677-79 (1973); Viscik v. Fowler Equip. Co., 173 N.J. 1, 13-14 (2002). Once that is done, the employer must then come forward and show a legitimate nondiscriminatory reason for the adverse employment action. Ibid. At that point, the plaintiff then must come forward with proof that the nondiscriminatory reason is a pretext for discrimination. Ibid.
To make out a prima facie case of wrongful termination, plaintiff must show (1) that he is in a protected class; (2) that he was performing his job at a level that met his employer's legitimate expectations; (3) that he was discharged; and (4) that the employer sought to hire someone else to perform the same work after he left. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 597 (1988). In the case of a claim of age discrimination, to satisfy the fourth prong, plaintiff must have been replaced by "someone sufficiently younger to give rise to an inference of unlawful age discrimination." Warner v. Fed. Express Corp., 174 F. Supp. 2d 215, 220 (D.N.J. 2001).
The facts alleged by plaintiff do not support a prima facie case of age discrimination. Plaintiff alleges age discrimination, contending that he was replaced by a younger person. Plaintiff was fifty-six and his replacement was fifty- four years old. This age differential of two years is de minimis, and does not give rise to an inference of unlawful age discrimination. Hence, plaintiff's claim based on age discrimination fails.
Regarding plaintiff's claim of discrimination due to his disability, since plaintiff must be given the benefit of all the favorable inferences on defendant's motion for summary judgment, we will assume that plaintiff has made out a prima facie case of discrimination based on his disability.
Stafford has come forward with proofs that it had a nondiscriminatory reason for not reappointing plaintiff, namely, the complaints it had received regarding his performance. At this point, plaintiff must come forward with proof that this nondiscriminatory reason was a pretext for the discrimination. This plaintiff has not done.
At this juncture, plaintiff may defeat Stafford's motion for summary judgment by either "(i) discrediting the proffered reasons [for the adverse employment action], either circumstantially or directly, or (ii) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action." DeWees v. RCN Corp., 380 N.J. Super. 511, 528 (App. Div. 2005) (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)). In order to meet the first standard, plaintiff must show "such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them 'unworthy of credence' and hence infer 'that the employer did not act for [the asserted] non-discriminatory reasons.'" Ibid. (citations omitted).
Plaintiff has not come forward with the necessary proof to discredit Stafford's proferred reasons, nor has he presented evidence to show that discrimination was more likely than not a motivating or determinative factor in Stafford's decision not to reappoint him. He attributes the complaints from the court administrator to animus she had toward him because he had represented her husband in her divorce case and he had declined to back up her claims of harassment against the police. This assertion does not show a discriminatory motive. Plaintiff also argues that Stafford did not accommodate his disability because it ignored his request to slow down the pace of court proceedings.*fn4 We reject this argument since plaintiff, as the judge, had control over the pace of proceedings in the courtroom. We find nothing in this record that would allow a rational factfinder to hold that Stafford declined to reappoint plaintiff for any reason other than the complaints about his performance, or that Stafford's decision was motivated in any way by discriminatory animus.
Plaintiff also presses a mixed motive theory. This theory recognizes that an employment decision may be based on more than one reason. Myers v. AT&T, 380 N.J. Super. 443, 456-57 (App. Div. 2005), certif. denied, 186 N.J. 244 (2006). Under a mixed motive theory, if one of those reasons is discriminatory, then plaintiff must demonstrate that the discriminatory reason was a motivating factor for the adverse employment decision. Ibid. If that burden is sustained, then to avoid liability, the employer must prove that its decision would have been the same even if that factor were not present. Ibid.
In this case, plaintiff contends that the following evidence proves that improper discrimination was a motivating factor in defendant's decision not to reappoint him: (1) plaintiff's requests to have court staff and the prosecutor proceed at a slower rate; (2) the unwillingness of Stafford's business administrator to reveal the source of complaints; (3) the fact that Stafford listed him as a conflicts judge; and (4) credibility issues regarding the court administrator, municipal prosecutor and business administrator. None of this evidence directly or indirectly proves a discriminatory motive.
Dismissal of the LAD claim is affirmed.
We also affirm the dismissal of plaintiff's breach of contract claim concerning the medical benefits plaintiff lost. Those benefits ended when the municipality terminated medical coverage for all part-time employees. Plaintiff has failed to establish that the municipality had a contractual or quasi-contractual obligation to provide those benefits to him.