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Francine Kaplan v. State of New Jersey

July 26, 2012

FRANCINE KAPLAN, 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, AND DAVID DEMBE, DEFENDANT.



On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1697-10.

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 her claim of discrimination on the basis of age, in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, in the termination of her employment.

Plaintiff was employed as a Deputy Attorney General (DAG) by the Division of Law, Department of Law and Public Safety, from 1988, with a three-year break in service from 1999 to 2002, until May 2006, when she was terminated as part of a reduction-in-force that also resulted in the termination of thirty-four other DAGs. Plaintiff was forty-three years old at the time of her termination.

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 thus the head of the Department of Law and Public Safety, and defendant Nancy Kaplen was the Acting Director of the Division of Law.

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 DAGs 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 DAGs 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 DAGs in the Division, which were completed in April 2005, before the new administration ordered a reduction in the number of DAGs, 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 DAGs 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 DAGs were given an overall performance grade.

These evaluations were done in draft form by the chief of the section to which a DAG 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 DAG, who could comment in a space provided for this purpose. When these evaluations were prepared, none of the participants were aware that the Division of Law would be required a year later to accomplish a reduction-in-force of DAGs and that those evaluations would be used to determine which DAGs would be terminated.

Acting Director Kaplen determined that any DAG who had received a rating of "2 = Needs Improvement" or lower would be terminated. If any DAG did not receive a 2005 evaluation for any reason, the supervisor was asked at what level the employee had been performing. Any of those DAGs 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 DAGs 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 DAGs would have to be terminated to reduce its budget by $3 million. While the Division was engaged in the process of determining which DAGs would be terminated, six members of the staff resigned, thus reducing the number required to be terminated to thirty-five.

There were eight DAGs who had been rated as 2s or 1s in the April 2005 evaluation and one DAG who had not been part of that evaluation whose supervisors concluded should be rated as a 2. All of those DAGs were terminated in the reduction-in-force.

However, those terminations were insufficient to achieve the required $3 million reduction in the Division of Law budget. Consequently, the Division also had to terminate twenty-six DAGs who were rated as 3s, "Meets Expectations," to achieve that reduction. The DAGs rated as 3s who had been admitted to the bar for three or less years when the 2005 evaluations were conducted (i.e., admitted in 2002 or later) were excluded from the reduction-in-force because, in Acting Director Kaplen's view, "newly admitted attorneys need time to acquire basic lawyering skills while experienced attorneys do not," and "there [was] a tendency in the DOL to rate newly admitted attorneys lower on performance evaluations in order to give them room to ...


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