On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-3196-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Parrillo and Messano.
Plaintiff William Hendricks appeals from the summary judgment dismissal of his complaint against defendants New Jersey Department of Health and Senior Services (DHSS) and Joseph Komosinski alleging retaliation in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. For the following reasons, we reverse.
The facts, viewed most favorably to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), are as follows. Plaintiff, currently sixty-two years old, began his employment with the DHSS in 1985 in the bureau of vital statistics and registration (bureau), where he functioned as a field representative directly under the State Registrar and bureau chief. Three years later, in 1988, plaintiff was promoted to the civil service title of senior field representative; and again, in 1992, he was promoted to the civil service title of administrative analyst II, although in both positions his working (functional) title was office manager of the bureau. He began reporting to Donald Lipira, the assistant chief of the bureau, and he was given responsibility for the day-to-day operations of the bureau and its six component units (customer service, births, deaths, marriages, corrections of records/modifications, and searches). In that capacity, he supervised approximately sixty people.
In 1997, he was promoted to the title of assistant chief of the bureau, still reporting to Lipira, who had been promoted to bureau chief. His job responsibilities remained essentially the same, although he was now considered "second-in-command" at the bureau, and he was supposedly being groomed to replace Lipira.
Lipira retired on July 1, 2002, and James Houston, then the assistant commissioner for management and administration, was responsible for hiring Lipira's replacement. In response to the posting for the position of chief of vital statistics and registration, Houston received resumes from, among others, plaintiff and Komosinski. Houston selected Komosinski to fill the position on a provisional basis, due to his experience with information technology and the perceived need for technological improvements in the bureau.
At the time of his promotion, Komosinski was thirty-six years old and had been with the DHSS for six years, then responsible for overseeing the operational aspect of the bureau, including the electronic death registration system, and for attempting to automate the work wherever possible. Unlike plaintiff, Komosinski had no college degree and supervised only one employee.*fn1
After Komosinski's provisional appointment, the title of the position was changed to "supervising administrative analyst," and a posting for that position occurred on February 1, 2003. Although Houston suggested he made the decision to change the position on his own based on the bureau's felt need for automation, other evidence suggested the new posting was dictated by a recommendation from the agency's Equal Employment Opportunity/Affirmative Action (EEO/AA) Office. In this regard, shortly after Komosinski's provisional appointment, two female employees of DHSS -- Suzanne Ficara and Kay Knoblauch - filed internal complaints of gender discrimination on October 22, 2002 and November 20, 2002, respectively.*fn2 The EEO/AA office investigated the women's complaints and interviewed a number of individuals, including Houston, Komosinski and plaintiff. In its final report, the EEO/AA office concluded there was some evidence of a failure to provide equal opportunity with respect to filling the state registrar position, stating:
On the surface the most qualified candidate for this job appeared to be Mr. William Hendricks, Assistant Chief of Vital Statistics who was not granted an interview although he applied and appeared qualified. He performed the duties of the State Registrar when his immediate supervisor (Mr. Don Lipira) was out of the office on business or sick leave. It appears that Mr. Houston favored Mr. Komosinski over the other applicants. . . . It cannot be confirmed that the necessary requirements were changed (downgraded) for Mr. Komosinski. However, it appears to be favoritism in that a person not fully meeting the qualifications was promoted to this position without others being interviewed.
The EEO/AA office recommended, among other things, that Houston be counseled on the laws against discrimination; that Houston's fitness to supervise the bureau of vital statistics be evaluated; that there be "a review of Komosinski's qualifications for the Chief of Vital Statistics"; and that a new promotional list for the position be promulgated by the Department of Personnel and interested candidates be interviewed.
Regardless of its genesis, plaintiff was not eligible to apply for the newly posted position because he did not hold one of the three civil service titles -- administrative analyst I (data processing); administrative analyst I (accounting); administrative analyst I -- designated in the posting.*fn3
Consequently, in November 2003, Komosinski was permanently appointed to the position of supervising administrative analyst. While his working title was state registrar, he also performed the duties of the chief of vital statistics. As state registrar, Komosinski directly supervised plaintiff for about one-and-one-half years until October 2003 when the bureau was placed under the purview of the Office of Budget, Finance, and Information Technology and another individual, Rick Williams, stood between plaintiff and Komosinski in the chain of command.*fn4
On April 22, 2003, plaintiff filed a charge of age discrimination against DHSS with the Equal Employment Opportunity Commission (EEOC), alleging that he was discriminated against when DHSS, through Houston, denied him the promotion and instead promoted Komosinski, a younger, less qualified candidate. The EEOC investigated plaintiff's complaint and obtained a response from DHSS. On October 12, 2004, the EEOC issued a finding of discrimination. Although plaintiff had not earlier filed a written complaint with his employer under DHSS' policy against discrimination, he ...