July 29, 2013
LINDA TREVELISE, Plaintiff-Appellant,
JUDICIARY OF THE STATE OF NEW JERSEY, OCEAN COUNTY VICINAGE, Defendant-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 6, 2013
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3150-09.
F. Michael Daily, Jr., LLC, attorney for appellant (Amy B. Sunnergren, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Luanh L. D'Mello, Deputy Attorney General, on the brief).
Before Judges Grall and Accurso.
Plaintiff Linda Trevelise appeals from a February 1, 2012 order denying reconsideration of a summary judgment entered on December 16, 2011, dismissing her complaint for age discrimination against defendant Superior Court of New Jersey, Ocean Vicinage.
Plaintiff has worked in the vicinage since 1985 when she was in high school and enrolled in a cooperative office education program which allowed her to work part-time at the courthouse. Upon her graduation, she obtained full-time employment as a clerk typist. She was eventually promoted to senior clerk typist. Several years later her job title changed to Judiciary Clerk 2 (JC-2). In 2002, plaintiff was promoted to JC-3.
In 2006 and 2007, plaintiff applied five times for a promotion to Court Services Officer 1 (CSO-1). Although she was interviewed the first time she applied, she was not selected. She was neither interviewed nor selected for the other CSO-1 openings and remains employed as a JC-3.
When plaintiff was interviewed for promotion she was thirty-nine years old. By the time the second opening was advertised approximately six months later, plaintiff had turned forty. She contends that defendant's attitude towards her "changed after she attained the age of forty." She points out that neither her qualifications nor the requirements of the position changed between the first and second postings "but for each occasion thereafter, Trevelise was not selected for an interview." Plaintiff contends that the reason was age discrimination.
In a comprehensive opinion delivered from the bench, Judge Perri rejected that premise as devoid of proof. Employing the McDonnell Douglas framework, the judge concluded that plaintiff had established a prima facie case of discrimination, namely that she was a member of the protected class, that she was qualified for the position, that she was not selected, and that defendant selected younger applicants. See Nini v. Mercer Cnty. Cmty. Coll., 406 N.J.Super. 547, 554-55 (App. Div. 2009), aff'd, 202 N.J. 98 (2010).
Because plaintiff had turned forty years of age she was within the protected class. She also met the minimum qualifications for the position. Although the position required a four-year degree and one year of case management experience, relevant work experience was an acceptable substitute for the degree. Plaintiff's many years of experience thus qualified her for the position even though she possessed only a high school diploma. It was undisputed that plaintiff was not hired for any of the positions, and that defendant ultimately hired individuals aged twenty-five to thirty-five instead. Although noting that one of the persons hired was only five years younger than plaintiff, making the inference of age discrimination somewhat questionable, and one of the positions was offered to three people each significantly older than plaintiff, all of whom turned down the job, Judge Perri nevertheless concluded that plaintiff had made out a prima facie case for purposes of the summary judgment motion.
Judge Perri further concluded that defendant had articulated two legitimate non-discriminatory reasons for not selecting plaintiff for promotion. Defendant maintained that the candidates selected had either bachelor's or associate's degrees while plaintiff possessed only a high school diploma. Defendant also noted fifteen incidents, which Judge Perri reviewed in detail, in which plaintiff's supervisors had been compelled to discuss her demeanor in the workplace, all of which were documented in "significant event reports" included in plaintiff's personnel file. As defendant had met its burden of production on the motion, the judge found that the inference of discrimination created by the prima facie case had disappeared and the burden was on plaintiff to prove pretext. DeWees v. RCN Corp., 380 N.J.Super. 511, 523-24 (App. Div. 2005).
Plaintiff conceded before the trial court that she was without direct evidence that defendant discriminated against her because of her age. Thus, Judge Perri concluded that plaintiff must demonstrate that defendant's reasons - plaintiff's lack of formal education and her well-documented history of conflicts with coworkers and litigants - were unworthy of credence. Relying on Beatty v. Farmer, 366 N.J.Super. 69, 77 (App. Div. 2004), the judge noted that plaintiff "must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in the employer's proffered legitimate reason for its action that a reasonable fact finder could rationally find them unworthy of credence, and hence infer that the employer did not act for the asserted nondiscriminatory reasons."
Judge Perri found that while plaintiff was correct in asserting that a college degree was not a requirement for the position, "it is certainly a factor which can properly be considered by the employer." While other applicants without degrees were interviewed for the position, none was selected. The judge noted that plaintiff had never asserted that she was the most qualified person applying for any of the open positions. Moreover, Judge Perri found it significant that one of the positions plaintiff asserts she did not receive on account of her age was actually offered to three people, ages forty-eight, fifty-one, and fifty-four, before it was offered to the thirty-five year-old who accepted it.
As for defendant's second reason for rejecting plaintiff, her demeanor in dealing with litigants and co-workers, the judge acknowledged plaintiff's contention that she had never been disciplined for any of the incidents cited by her employer. Nevertheless, Judge Perri found that "[w]hile not sufficient to result in discipline, these incidents can be reasonably considered in determining whether plaintiff was the best candidate for promotion to a new position which included among its duties 'responding to inquiries from judges, attorneys and other interested parties regarding procedures and/or status of cases.'" The judge observed that while plaintiff believes that the incidents involving co-workers and litigants were not relevant to defendant's promotion decision, "she has presented no evidence that their motivations were discriminatory in any way. The panel had the right to rely on 'irrelevant' considerations when making its decision so long as the irrelevant considerations were nondiscriminatory."
After thoroughly reviewing all of plaintiff's proffered indirect evidence of pretext, Judge Perri concluded that plaintiff had been unable to identify any weaknesses, implausibilities or inconsistencies in defendant's proffered reasons and thus "failed to present evidence from which a reasonable jury could conclude that the decision not to promote her or grant her an interview was a pretext for discrimination based on plaintiff's age."
Plaintiff raises three issues on appeal:
I. THE PLAINTIFF ESTABLISHED A PRIMA FACIE CASE OF DISCRIMINATION.
II. DEFENDANT WAS NOT CONCERNED WITH PLAINTIFF'S DEMEANOR PRIOR TO HER REACHING THE AGE OF FORTY.
III. THE PLAINTIFF PRODUCED SUFFICIENT EVIDENCE FOR A FACT FINDER TO CONCLUDE THAT THE DEFENDANT['S] EXPLANATION FOR ITS DECISIONS [WAS] FALSE.
Judge Perri addressed each of these issues at length. We affirm the grant of summary judgment substantially for the reasons Judge Perri set forth in her thorough and thoughtful oral opinions of December 16, 2011 and February 1, 2012.