March 16, 2012
STEVEN SCHER, PLAINTIFF-APPELLANT,
STATE OF NEW JERSEY, STATE OF NEW JERSEY - OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF LAW AND PUBLIC SAFETY, ZULIMA FARBER, NANCY KAPLEN, AND STUART RABNER, IN HIS OFFICIAL CAPACITY ONLY, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1696-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 23, 2012 -
Before Judges Grall, Alvarez and Skillman.
Plaintiff appeals from a summary judgment dismissing his claims of discrimination on the basis of age and liability for military service, in violation of the Law Against Discrimination, N.J.S.A. 10:5-1 to -38, in the termination of his employment.
Plaintiff was employed as a Deputy Attorney General by the Division of Law, Department of Law and Public Safety, from 1983 until May 2006, when he was terminated as part of a reduction in force that also resulted in the termination of thirty-five other Deputy Attorney Generals. Plaintiff was fifty-eight years old when he was terminated. He was a member of the National Guard for the entire period of his employment.
The Division of Law is the civil division of the Attorney General's Office, which provides legal representation to all agencies of State government. When plaintiff was terminated, defendant Zulima Farber was the newly-appointed Attorney General and in this position the head of the Department of Law and Public Safety; defendant Nancy Kaplen was the Acting Director of the Division of Law; and Deputy Attorney General Melissa Raksa was the Section Chief primarily responsible for the evaluation that resulted in plaintiff's termination.
Jon Corzine became Governor of New Jersey in January 2006. Faced with a significant budget shortfall in the upcoming fiscal year, Governor Corzine, through the Office of Management and Budget, directed the departments of State government to reduce expenditures for their operations. In accordance with this directive, the Office of the Attorney General ordered the Division of Law to reduce its budget by $3 million through the termination of whatever number of deputy attorney generals was required to achieve this savings.
As the Acting Director of the Division of Law, Assistant Attorney General Kaplen had the responsibility for determining which deputy attorney generals would be terminated pursuant to this required reduction in force. Director Kaplen decided that an objective method should be used to make this determination. Consequently, she decided that the most recent evaluations of deputy attorney generals in the Division of Law, which were completed in April 2005, before the new administration ordered a reduction in the number of deputy attorney generals, should be used to determine which ones would be terminated.
The April 2005 evaluations were adapted from the ABA's Fair Measure: Toward Effective Attorney Evaluations, and covered the evaluation period of May 1, 2004 to April 30, 2005. It had a 5-point ranking system:
5 = Extraordinary 4 = Exceeds Expectations 3 = Meets Expectations 2 = Needs Improvement 1 = Substantially Below Expectations Deputy attorney generals were evaluated on lawyering, delivery of legal services, problem-solving, teamwork, and attitude and professionalism. Each quality had several subsections. After being ranked in each subsection, the deputy attorney generals were given an overall performance grade.
These evaluations were done in draft form by the chief of the section to which a deputy attorney general was assigned and later reviewed by the Assistant Attorney General responsible for the section and Director Kaplen before being finalized. When the evaluation was completed, it was given to the deputy attorney general, who could comment in a space provided for this purpose. Deputy Attorney General Melissa Raksa was the section chief who prepared the April 2005 evaluation of plaintiff.
Acting Director Kaplen determined that any deputy attorney general who had received a rating of "2 = Needs Improvement" or lower would be terminated. If any deputy attorney general did not receive a 2005 evaluation for any reason, the supervisor was asked at what level the employee had been performing. Any of those deputy attorney generals identified as a 2 or 1 on this basis would also be included in the terminations. If the required $3 million in savings could not be achieved by the termination of deputy attorney generals rated as 2s or 1s, then a sufficient number rated as 3s, "Meets Expectations," also would be terminated to achieve this savings.
The Division of Law eventually determined that a total of forty-one deputy attorney generals would have to be terminated to reduce its budget by $3 million. While the Division was engaged in the process of determining which deputy attorney generals would be terminated, six members of the staff resigned, thus reducing the number required to be terminated to thirty-five.
There were only eight deputy attorney generals who had been rated as 2s or 1s in the April 2005 evaluation and one deputy attorney general who had not been part of that evaluation whose supervisors concluded should be rated as a 2. Plaintiff was one of the eight deputy attorney generals who had been rated as a 2 in the April 2005 evaluations. Consequently, he and the other seven were included in the list of deputy attorney generals to be terminated in the reduction in force. The Division of Law also terminated twenty-six deputy attorney generals who were rated as 3s, "Meets Expectations," in order to achieve the required $3 million in savings. Because plaintiff was rated as a 2, there is no need in this opinion to describe how the Division identified the deputy attorney generals rated 3 who would be terminated.
One year after their terminations, plaintiff and four of the other deputy attorney generals brought this action under the LAD claiming that their terminations were discriminatory. The trial court granted the defendants' motion to sever the claims of the five plaintiffs.
Extensive discovery was conducted in this case, including depositions of plaintiff and Director Kaplen. After the completion of discovery, the trial court granted the defendants' motion for summary judgment.
Plaintiff argues that the trial court erred in granting summary judgment dismissing his claims of discrimination on the basis of age and liability for military service.*fn1 Discrimination in employment on those grounds is proscribed by N.J.S.A. 10:5-12(a), which provides in pertinent part:
It shall be an unlawful employment practice . . . [f]or an employer, because of . . .age, . . . or because of the liability for service in the Armed Forces of the United States . . . to discharge or require to retire, unless justified by lawful considerations other than age, from employment such individual . . . .
A discrimination claim under the LAD may be established by a showing of either disparate treatment or disparate impact. Gerety v. Atl. City Hilton Casino Resort, 184 N.J. 391, 398 (2005). Plaintiff does not assert a disparate impact claim; his only claims are that he was subject to disparate treatment because of his age and liability for military service.
"Disparate treatment . . . is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their [in this case, age or liability for military service]. Proof of discriminatory motive is critical . . . ." Ibid. (quoting Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 81-82 (1978)). To address the difficulty of proving discriminatory motive in a disparate treatment case, "New Jersey has adopted the procedural burden-shifting methodology articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005).
Under the McDonnell Douglas methodology, the plaintiff must first prove a prima facie case of discrimination. Ibid. "The establishment of the prima facie case creates an inference of discrimination and, at that point, the matter moves to the second stage of McDonnell Douglas, when the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employer's action." Id. at 449. "In the third stage of the burden-shifting scheme [established by McDonnell Douglas], the burden of production shifts back to the employee to prove by a preponderance of the evidence that the reason articulated by the employer was merely a pretext for discrimination and not the true reason for the employment decision." Ibid.
In order to prove a prima facie case of discrimination under McDonnell Douglas in a termination case, the plaintiff must prove that: (1) he was in the protected group; (2) he was actually performing his job prior to the termination; (3) he nevertheless was fired; and (4) the employer sought someone to perform the same work after he left. See id. at 450-55.
Plaintiff proved that he was in "protected group[s]" by establishing that he was fifty-eight years old and a member of the National Guard who was subject to military service through call-ups to active duty. Despite his negative evaluations, which are discussed later in this opinion, plaintiff established that he was performing the duties of a Deputy Attorney General prior to his termination. In addition, we conclude that plaintiff satisfied the fourth prong of a prima facie case by showing that the Division of Law retained younger deputy attorney generals who were not liable for military service after it terminated plaintiff. See Baker v. Nat'l State Bank, 312 N.J. Super. 268, 289-90 (App. Div. 1998). Moreover, the Division hired two additional deputy attorney generals within six months of plaintiff's termination in the fall of 2006. Therefore, plaintiff established a prima facie case of unlawful discrimination under the LAD, and the burden shifted to the Division to articulate a legitimate non-discriminatory reason for his termination.
The Division carried this burden by establishing that it was directed by the Office of Management and Budget and the Attorney General's Office to achieve a savings of $3 million in its budget through a reduction in force of deputy attorney generals and that it ultimately determined that thirty-five deputy attorney generals had to be terminated to achieve this savings. The Division also established that Director Kaplen decided to select the particular deputy attorney generals who would be terminated by the objective test of their ratings on the most recent evaluations conducted by supervisory staff. Applying this objective test, plaintiff was one of only eight of the 590 deputy attorney generals in the Division who received a rating in one of the two bottom rankings of deputy attorney generals. This constituted "a legitimate, nondiscriminatory reason for [plaintiff's termination]." Zive, supra, 182 N.J. at 449.
Under the McDonnell Douglas test, the burden then shifted back to plaintiff to prove that "the reason articulated by the [Division] was merely a pretext for discrimination [on the basis of age or liability for military service] and not the true reason for [plaintiff's termination]." Ibid. Plaintiff plainly failed to present any evidence that could support a finding that he carried this burden. Plaintiff did not present any direct or circumstantial evidence that Deputy Attorney General Melissa Raksa, the section chief who was primarily responsible for plaintiff's April 2005 evaluation, or any other member of the supervisory staff involved in that evaluation, had any motivation other than to conduct the same objective and fair evaluation of plaintiff as of every other deputy attorney general in the Division of Law.
Moreover, even though the Division's reduction in force decisions were based solely on a deputy attorney general's numerical ratings on the April 2005 evaluations, without consideration of the narratives that accompanied those ratings, Deputy Attorney General Raksa's discussion of plaintiff's performance of his job responsibilities clearly supported his low numerical rating. That discussion stated in part:
[D]uring the rating period, SDAG Scher exhibited questionable judgment, failed to take action to advance certain cases, and has lacked responsiveness in some areas. While he was able to adequately handle some of the routine assignments such as OAL civil service and Health penalty matters which he was given, others were not handled appropriately given his level of experience. SDAG Scher seems to have particular difficulty in discerning which matters should be brought to the attention of or discussed with his supervisors. Specifically, after SDAG Scher transferred from the section, his supervisors uncovered a problem with [B.], a DDD eligibility matter, which he had been handling for a number of years (including during the rating period). Upon review of the file, we discovered that the testimony of DDD's expert witness was not allowed because although he requested that an expert personally evaluate the petitioner, SDAG Scher did not request that the expert prepare a report concerning the evaluation to be submitted to the adversary and court. Further, we learned that several arguments which could have been made in post-hearing briefs to support DDD's position were not made because SDAG Scher did not discuss the briefs with his supervisors before filing them. Considering that this was a case of first impression, we believe that an attorney of SDAG Scher's experience would have identified this case as one which should have been brought to his supervisor's attention for review of the briefs.
With respect to his judgment, SDAG Scher had difficulty with an MOU between DMAVA and the FBI relating to drug interdiction efforts. The draft MOU had come to the DOL in July 2004. SDAG Scher reviewed it and then forwarded it to his supervisor. After review by SDAG Scher's immediate supervisor, the MOU required further review. The matter was taken up the chain to AAG Lichtblau who forwarded it to DCJ.
When asked about the status of the MOU, SDAG Scher advised that he had told DMAVA it was approved although no one in his supervisory chain of command had conveyed any approval to him. Upon inquiry as to who[m] had given him the authority to advise DMAVA given the outstanding issues, he stated he did not know and would have to consult his file. Later SDAG Scher advised that he had received a call from a CJ DAG, Steve Monson, who informed him that the terms of the MOU had been approved long ago by another CJ DAG. SDAG Scher advised that after receiving this call, he told DMAVA to sign the MOU. However, neither DAG Monson nor anyone else at DCJ knew anything about the MOU. SDAG Scher acknowledged that he had not complied with his chain of command. This incident demonstrates a lapse in judgment in failing to report these developments to his supervisor and for failing to recognize that his direction comes from the DOL and not other agencies. In addition, he had difficulty keeping on top of some of his cases. Although the matter of [C.] v. DMAHS had been flagged as needing attention, SDAG Scher was unable to grasp the facts and issues in this case after 18 months to explain them adequately during a file review. Similarly, until he was pressed, he often was unfamiliar with his guardianship matters leading to problems with the files, particularly [Ch.], [P.] and
[F.]. SDAG Scher seemed to have difficulty determining how to advance the cases. In the [F.] matter, instead of seeking guidance, he floundered until the matter was dismissed by the court. In addition, he took an inordinately long time, with much prodding, to advance many of his Medicaid recovery matters such as IMO [G.B.], [A.M.] and [A.Y.].
As to issues of responsiveness and workload management, during file reviews, SDAG Scher often advised that he was "awaiting a response" on a settlement offer or proposal. Often, the initial request had gone to the client or adversary months before. SDAG Scher was counseled to develop a tickler system so if he did not receive a timely response, months would not pass before he followed up. Further, after noting a flurry of activity in his cases prior to the November file review, he was counseled that the file review was not a tool to catch up on his work but rather was to review what he had done and what was to be done in the future. All of the work that had preceded the file review should have been completed in the normal course, and not to prepare for the file review. Toward the end of the rating period, however, SDAG Scher was more attentive to outstanding issues with the clients and adversaries.
SDAG Scher had difficulty preparing a memorandum in response to an oral request for advice from DMAVA concerning a zoning issue arising from the Bridgeton Armory received in October 2004. SDAG Scher first raised the matter during a file review but could not articulate what the issues were. He was asked to prepare a memo summarizing the issue and the applicable law. He provided his supervisor with an incomprehensible "summary." After being advised that he had neglected to identify the issue, he failed to respond with the requested memo. During a December 2004 file review, he seemed to have a better handle on the issue and had made appropriate inquiries with the client but still had not prepared the memorandum requested in November. He indicated he was working on the memo. The completed memo was not submitted until April 2005.
Plaintiff did not dispute any of these comments regarding the performance of his job responsibilities either at the time of the evaluation or thereafter. Therefore, we conclude that no reasonable trier of fact could find that plaintiff's termination as part of a reduction in force of thirty-five deputy attorney generals in the Division of Law was motivated by discrimination on the basis of age or liability for military service.
Plaintiff asserts that the Division excluded from consideration for termination deputy attorney generals who had been admitted to the bar for three years or less when the 2005 evaluation was conducted, and that because such attorneys are generally younger than ones who have been admitted a longer period of time, this exclusion provided a basis for his age discrimination claim. However, this exclusion from consideration for termination was only applied to deputy attorney generals who were rated as "meet[ing] expectations," which was ranking 3; it was not applied to deputy attorney generals such as plaintiff who were rated as "need[ing] improvement," which was ranking 2. In fact, three of the other seven attorneys who were terminated based on this ranking had been admitted to the Bar three years or less; two of those deputies were twenty-seven when they were terminated and the third was thirty-one. Thus, there is no need in this appeal to consider the Division's reasons for excluding deputy attorney generals in ranking 3 who had been admitted to the bar for three years or less from consideration for termination.
Plaintiff also argues that the Division should have considered factors other than just a deputy attorney general's numerical ranking on the 2005 evaluation, such as the number of years he or she had been in their current assignment when the evaluation was made, his or her performance after the evaluation was completed, or a deputy attorney general's absence from work due to medical leave or military service during the evaluation period, in determining which ones to terminate. However, the consideration of such other factors would have made the decision-making process less objective and consequently would have exposed the Division to other discrimination claims. Therefore, even if reasonable arguments could be made for considering such factors, the Division's failure to do so does not provide a foundation for finding that plaintiff's termination as part of a reduction in force was merely a pretext for intentional discrimination on the basis of age or liability for military service.