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Steven Scher v. State of New Jersey

March 16, 2012

STEVEN SCHER, PLAINTIFF-APPELLANT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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