On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5190-07.
The opinion of the court was delivered by: Cuff, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: February 25, 2009
Before Judges Cuff, Fisher and C.L. Miniman.
Plaintiff Rose Nini filed a complaint alleging age-based discrimination when her employment contract with defendant Mercer County Community College (MCCC) was not renewed in 2005. Nini had been employed by MCCC for over twenty-five years; she was seventy-three years old when her employment ceased. We review an order granting summary judgment in favor of the college. The motion judge held that the college did not violate the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-4 to -49, because the statute allows an employer to refuse to renew an employment contract of an employee over seventy years of age. We disagree and reverse.
In reviewing an order granting summary judgment, we apply the same standard as employed by the motion judge. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). The motion judge must determine whether the evidence, "when viewed in the light most favorable to the non-moving party," is "sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Rule 4:46-2(c) requires a court to grant summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, 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." The facts viewed in the light required by Brill are as follows:
Plaintiff commenced her employment at MCCC in 1979 as an executive assistant to the president of the college. Prior to this time, she was a member of the Board of Trustees of MCCC (Board). In 1982, she became Dean of the Division of Corporate and Community Programs (DCCP),*fn1 a position she held until her final contract expired on June 30, 2005. In late 2002, in addition to her regular duties, she also assumed management of the college's conference center.
As a non-faculty employee, plaintiff was employed through a series of contracts. In accordance with an agreement between the Board and the MCCC Professional Staff Federation, terms of appointment for contract employees correspond with the number of years the employee has worked for MCCC. Employees who have continuously held positions at MCCC for ten or more years are entitled to three-year reappointments. Contract employees, who, like plaintiff, have worked for MCCC for six or more years, are entitled to a full year's notice of non-reappointment.
On June 27, 2001, plaintiff, then sixty-nine years old, received a letter from acting president Eric M. Perkins informing her that the Board was considering non-renewal of her contract. Although Perkins admitted that he considered plaintiff a successful manager overall, recent problems and questions about her performance caused Perkins and the Board to decide against renewal. A new president, Robert Rose, appointed in approximately July 2001, requested renewal of plaintiff's contract.
Three years later, on June 23, 2004, Rose sent plaintiff a letter informing her that she was "not recommended for reappointment as Dean" and that her "current contract [would] expire June 30, 2005." Plaintiff was surprised by the decision because she had never received poor evaluations, and believed non-renewal was generally confined to poor performance.
In the June 23, 2004 letter, Rose told plaintiff that together they would establish a "performance plan" for her department for the following six months, and that her non-renewal would be reviewed by February 2005. Despite the fact that plaintiff had never received notice of performance deficiencies prior to notice of her non-renewal, during a meeting Rose provided her with three performance-related reasons for the decision: (1) her tendency to micromanage caused discontent among her staff; (2) her inconsistent and unclear financial reporting had a negative effect on the budgeting process and other financial aspects of the college as a whole; and (3) he believed that plaintiff was untrustworthy.
Although plaintiff never received a performance improvement plan, she did have several one-on-one meetings with Rose following notice of non-renewal. Plaintiff claims that in an August 2004 meeting, Rose complimented her on her success with the conference center, but then "made it very clear to [her] that he thought [she] had no right to be working at [her] age." He told her that employees of similar age were considering retirement and suggested she take early retirement as well.
Prior to receiving notice of non-renewal, plaintiff claims that at meetings Rose held with department heads several people discussed "age and incompetence and being dead wood" and made jokes about getting rid of the oldest employees. Additionally, plaintiff says she was told that MCCC Human Relations Director Vanessa ...