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Nini v. Mercer County Community College

June 1, 2010

ROSE NINI, PLAINTIFF-RESPONDENT,
v.
MERCER COUNTY COMMUNITY COLLEGE, ROBERT ROSE, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES, VANESSA WILSON, IN HER INDIVIDUAL AND OFFICIAL CAPACITIES, BOARD OF TRUSTEES OF MERCER COUNTY COMMUNITY COLLEGE, AND ITS PERSONNEL COMMITTEE TRUSTEES, IN THEIR OFFICIAL CAPACITIES ONLY, DEFENDANTS-APPELLANTS.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 406 N.J. Super. 547 (2009).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The issue in this appeal is whether the over-age-seventy exception in the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-12(a), applies to the non-renewal of an existing employee's contract.

In 1979, Rose Nini began her employment with the Mercer County Community College. Nini was employed through a series of contracts governed by an agreement between the College's Board of Trustees (Board) and the College Professional Staff Federation. From 1979 to 2001, the College renewed Nini's employment contracts without incident. However, in 2001 she was advised by letter from the acting president that the Board was considering not renewing her contract that was set to expire in 2002. Nini's contract was ultimately renewed through June 30, 2005. In 2004 Nini met with the president of the College, Dr. Robert Rose, to discuss performance goals and objectives. Nini claims that Dr. Rose made several negative comments about her "working at [her] age." Also, according to Nini, at meetings Dr. Rose held with department heads, people discussed age and incompetence and being "dead wood," and made jokes about getting rid of the oldest employees.

On June 23, 2004, after working for the College for twenty-six years, Nini was advised by Dr. Rose that her contract that was set to expire in June 2005 would not be renewed. At the time Nini was over seventy-years of age. In September 2004, Nini sent a letter to the Board Chairman requesting the Board's review of the events surrounding her non-renewal. In it, she stated that she believed the reason for her non-renewal was her age, pointing to her strong twenty-five-year record. Nini did not receive a response to her September letter, and sent a second letter in October 2004 alleging that Dr. Rose took retaliatory measures against her because of her first letter. In March 2005, Dr. Rose sent Nini a letter confirming that her contract would not be renewed and would expire on June 30, 2005.

On September 7, 2005, Nini filed a complaint alleging age discrimination and retaliation by the College (collectively, several College-related defendants). The College filed a motion for summary judgment claiming, among other things, that Nini had no claim under New Jersey's LAD because N.J.S.A. 10:5-12(a) permits an employer to decline to renew an employment contract of an employee seventy years of age. In granting the motion, the judge found that because the contract's expiration date was clear, and the College followed policy by affording Nini one year's notice, she was not terminated; rather, she was not rehired. According to the judge, because Nini was over seventy, she was not protected by the LAD.

The Appellate Division reversed the grant of summary judgment on the ground that "the over-seventy exception of N.J.S.A. 10:5-12a should not be interpreted to equate contract non-renewals with a new hire." Nini v. Mercer County Cmty. Coll., 406 N.J. Super. 547, 558 (App. Div. 2009). Rather, the panel declared that a contract non-renewal should be considered termination and, therefore, outside the protection of the over-seventy exception. Thus, the court remanded the case for trial because material factual issues remained to be resolved.

The Supreme Court granted the College's petition for certification. After oral argument, the Court was advised that the matter had been settled and that a stipulation of dismissal was forthcoming. The Court, however, considered the matter of significant public interest, warranting its intervention.

HELD: The refusal to renew the contract of an employee over seventy years old, on the basis of age, is a prohibited discriminatory act under the New Jersey Law Against Discrimination (LAD).

1. The LAD was enacted to ensure employment opportunities for all without discrimination based on, among other factors, age. Moreover, the Act unequivocally expresses a legislative intent to prohibit discrimination in all aspects of the employment relationship, including hiring and firing, compensation, the terms and conditions of employment, and retirement. Indeed, it is clear that under the LAD, an employer may not base any employment decisions on discriminatory reasons. However, the statute also contains a series of explicit exceptions providing, in part, that "nothing herein contained shall be construed to bar an employer from refusing to accept for employment or to promote any person over seventy years of age.." N.J.S.A. 10:5-12(a). All parties agree that hiring and promotion are insulated by the exception and that termination is not. Thus, if Nini had been an initial applicant or had sought a promotion, there is a consensus that she would have no LAD claim based on age because of the over-seventy exception. The parties also agree that, had Nini been fired mid-contract for age, the employer's decision would have been actionable because a termination is not protected by the exception. The parties' positions diverge over the status of a contract non-renewal in that scheme. (Pp. 8-11)

2. As always, the Court's main objective is to "determine and effectuate the Legislature's intent" by first looking at the plain language of the statute and, where necessary, using "extrinsic tools" such as legislative history, legal commentary, etc. Because this case involves the LAD, special rules of interpretation also apply. The LAD is remedial social legislation whose overarching goal is to eradicate the "cancer of discrimination." As such, it should be liberally construed. At the same time, the Court is faced with a specific exception in the Act: "[E]xceptions in a legislative enactment are to be strictly but reasonably construed, consistent with the manifest reason and purpose of the law." Serv. Armament Co. v. Hyland, 70 N.J. 550, 558-59 (1976). (Pp. 11-13)

3. The "differing interpretations" of the language of the over-seventy exception by the parties and by our courts in this matter suggest that it may not be "self-evident," at least as far as contract non-renewals are concerned. The language certainly does not address contract non-renewals explicitly and fair arguments can be made on both sides of the issue of a worker's status when her contract has expired. The legislative history of the New Jersey LAD, which the Court turns to for enlightenment, has been described as "scant at best." That history is silent regarding any specific interpretation of the over-seventy exception. Nevertheless, the Court takes from it a broad and evolving interest on the part of the Legislature to protect New Jersey's citizens from all forms of discrimination in employment and, in particular, to protect its older citizens from being forced out of the workplace based solely on age. (Pp. 13-16)

4. This is not an easy case. Nini could fairly be viewed through one of two lenses, as a new job applicant or as a long-term employee. The LAD does not expressly address this situation, which is not unusual. The Court concludes that Nini has the better argument. First, the Court notes that an interpretation that throws contract employees into the over-seventy exception at once narrows what should be the expansive coverage of remedial legislation like the LAD, and expands an exception in contravention of applicable principles of statutory construction. Further, to read the exception to permit the non-renewal of a contract employee based on age would undermine the remedial purposes of the LAD and create a loophole in the seamless coverage of the statute, permitting employers to place their aging employees under contract, thus precluding them from resorting to the salutary protections of the LAD. In addition, expanding the over-seventy exception to afford carte blanche to employers in the contract renewal realm would effectively create a two-tiered system in which fixed-term contract employees are afforded fewer rights than those serving at-will. Critical to the Court's conclusion is that the LAD prohibits both terminations and forced retirements based on age. Thus, the Court discerns in it a specific intention to protect those employees over seventy who have a pre-existing relationship with the employer from being pushed out of the workforce based on age. Mini, a twenty-six year employee, clearly falls within that category as a factual matter. In conclusion, the Court reads the "refusing to accept for employment" language as limited to initial hires and declines to expand to workers whose contracts have not been renewed. The reading of the over-seventy exception that the Court has here adopted more fully advances the aims of the LAD than the expansive interpretation advanced by the College. (Pp. 16-22)

The judgment of the Appellate Division is AFFIRMED.

JUSTICE RIVERA-SOTO filed a separate, DISSENTING opinion, stating that the majority's conclusion is wrong in at least two separate respects. First, because this case is now moot -- and the majority tenders no rationale sufficient to justify rendering a decision in a patently moot case -- the proper, reasoned course would be for this Court to exercise decisional modesty, that is, judicial restraint, and vacate the grant of certification. Second, because the contractual nature of the employment at issue here was mandated by the Legislature itself, it is fundamentally improper to reason that, under the LAD, those employed pursuant to a contract are to be treated no differently than those employed at will.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, WALLACE, and HOENS join in JUSTICE LONG's opinion. JUSTICE RIVERA-SOTO filed a separate, dissenting opinion.

The opinion of the court was delivered by: Justice Long

Argued November 10, 2009

In 2004, after working for Mercer County Community College for twenty-six years as a contract employee, Rose Nini was advised that her contract that was set to expire in 2005 would not be renewed. At the time Nini was over seventy years of age. She then filed a complaint against several College-related defendants (collectively the College) alleging, among other claims, age discrimination.

The trial judge granted the College's motion for summary judgment, on the basis that the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-12(a), permits employers to "refus[e] to accept for employment" employees over the age of seventy. The Appellate Division reversed, declaring that the non-renewal of Nini's contract was the equivalent of a termination, an act that is squarely within the prohibitions of the LAD.

On this appeal we are asked to interpret the New Jersey LAD and determine whether the over-seventy exception applies to the non-renewal of an existing employee's contract. Like the Appellate Division, we conclude that the refusal to renew the contract of an employee over seventy, on the basis of age, is a prohibited discriminatory act under the LAD.

I.

This matter comes before us on the College's motion for summary judgment; as such, "we view the facts in the light most favorable to plaintiff." Sciarrotta v. Global Spectrum, 194 N.J. 345, 348 (2008) (citing Daidone v. Buterick Bulkheading, 191 N.J. 557, 560 n.1 (2007)); Soto v. Scaringelli, 189 N.J. 558, 564 (2007) (citing DiProspero v. Penn, 183 N.J. 477, 482 (2005)).

Nini began her employment at the College in 1979 as an executive assistant to the president. At the time, she was in her late forties and had previously been a member of the Board of Trustees of the College (Board). During her employment, Nini served in a number of capacities. Her last position was Dean of Corporate and Community Programs. In that role, Nini's areas of responsibility included business and community programs, training and development, and the corporate conference center.

Nini was employed through a series of contracts governed by an agreement between the Board and the College Professional Staff Federation.*fn1 Terms of appointment for contract employees correspond with the number of years the employee has worked for the College. Employees who hold positions for ten or more years are granted three-year contracts. Further, contract employees, who, like Nini, work for the College for at least six years, are entitled to a full year's notice of non-reappointment.

From 1979 to 2001, the College renewed Nini's employment contracts without incident. However, in 2001 she was advised by letter from the acting president that the Board was considering not renewing her contract that was set to expire in 2002. Nini's contract was ultimately renewed through June 30, 2005.

On June 23, 2004, the president of the College, Dr. Robert Rose, informed Nini by letter that she was "not recommended for reappointment as Dean" and that her "current contract [would] expire June 30, 2005." According to the letter, Dr. Rose was to meet with Nini by August 1, 2004, "to develop a performance plan including defining goals and objectives for the Conference Center and other departments within [Corporate and Community Programs] for the next six months."

Approximately one week later, Dr. Rose met with Nini and she presented her goals and objectives. At that meeting, Dr. Rose told Nini that he would prepare a performance improvement plan with her. Nini claims that during a subsequent meeting in August 2004, Dr. 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. Nini also claims that at that meeting Dr. Rose told her that people who have been in a job for twenty-five years "lose their effectiveness." Nini responded that she needed to work and intended to continue working, to which Dr. Rose asked what her husband would say to that. Also at that meeting, Dr. Rose told Nini that it was her last chance to get an early retirement and leave with dignity.

According to Nini, before she received notification of non-renewal, at meetings Dr. Rose held with department heads, people discussed age and incompetence and being "dead wood," and made jokes about getting rid of the oldest employees. She stated that she heard from another employee that College Human Relations Director ...


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