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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-inforce that also resulted in the termination of thirty-four other DAGs. Plaintiff was forty-three years old at the time of her termination. "> Original Wordprocessor Version (NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version (NOTE: The status of this decision is Unpublished.) NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3190-10T4

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,
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and

DAVID DEMBE,

Defendant.

____________________________________ July 26, 2012 Submitted January 23, 2012 - Decided

Before Judges Grall, Alvarez and Skillman.

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

Francine Kaplan, appellant pro se.

Gibbons P.C., attorneys for respondents (Christine A. Amalfe, of counsel; Kristin D. Sostowski and Suzanne Herrmann Brock, on the brief).

PER CURIAM 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
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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

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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
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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 grow." The other DAGs rated as 3s were ranked in numerical order from the lowest to the highest, and the twenty-six with the lowest ratings were terminated. Plaintiff was one of those DAGs. One year after they were terminated in the reduction-in-force, plaintiff and four of the other DAGs brought this action under the LAD claiming that their terminations had been discriminatory. The trial court granted the defendants' motion to sever the claims of the five plaintiffs. Extensive discovery was conducted, 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 her claim of discrimination on the basis of age. Discrimination in employment on this basis 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, . . . 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 asserts claims of age discrimination on the basis of both disparate treatment and disparate impact.

I.

Plaintiff argues under the first point of her brief that the trial court erred in denying her motion for an extension of the discovery end date. Plaintiff contends that she needed additional time for discovery to support both her disparate treatment and disparate impact claims.
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When plaintiff's motion was made returnable, a trial date had already been scheduled. Thus, to obtain an extension of time for discovery, she had to show "exceptional circumstances." R. 4:24-1(c). Our review of the trial court's conclusion that plaintiff did not make this showing is limited to determining whether it constituted an abuse of discretion. Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 (2005). The trial court gave the following reasons for denying plaintiff's motion to extend the discovery end date:

. . . [T]he first issue to be addressed is that the discovery end date has already passed here. . . . The discovery end date was November 10th and this motion is returnable after that date, and we have a trial listing for March 21.

So, we're almost a month past the discovery end date. The motion fails to comply with Rule 4:24-1c, plaintiff has not demonstrated its exceptional circumstances and looking at the Rivers case, which cites the Vitti case, and those factors it's clear that the plaintiff's motion here is deficient.

This is a case that is very old. It's had numerous discovery extensions. Let me just find it here. The discovery end date has been extended on seven occasions, there's been 1,330 days of discovery. This litigation has been pending sine March 22, 2007. A large part of this delay was created as a result of what occurred a while ago which the plaintiff then sought to terminate her counsel which was granted. But prior to that there had to be a discovery master in place. So, as I mentioned here we are now over 1300 days into discovery. There's been seven extensions and now this motion is made after the discovery end date.

Frankly, the exceptional circumstances standard the plaintiff doesn't even come close to meeting it. There is no reason why this discovery, at least none presented to me, as to why this discovery could not have been pursued earlier.

Plaintiff's statements that the defendants are to blame for her seeking this request at this point lack merit and foundation in the record. . . . The court also noted that some of the additional discovery plaintiff sought involved privileged materials and that other parts of her discovery demands were overbroad and burdensome. We conclude, substantially for the reasons set forth in the trial court's opinion, that the court did not abuse its discretion in concluding that plaintiff did not make the showing of "exceptional circumstances" required
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to obtain an extension of time under Rule 4:24-1(c). We add the following brief supplemental comments. Plaintiff's argument that defendants deliberately concealed the role of John Traum, the Division of Law's Chief of Staff, in the reduction-in-force is without merit. Traum was identified as a person with knowledge in defendants' answers and objections to plaintiff's first set of requests for the production of documents and interrogatories, produced on July 9, 2008. Defendants identified Traum as having information about the "[c]riteria for May 12, 2006 reduction-in-force and the implementation of same; Plaintiffs' general job performance and performance issues; Division of Law's performance evaluation systems for Deputy Attorneys General." Plaintiff's assertion that defendants unilaterally refused to produce Traum until October 25, 2010 is likewise inaccurate. Based on the available record, it does not appear that plaintiff requested to depose Traum until her September 16, 2010 letter to defense counsel. At this point in time, there was a case management order in effect requiring plaintiff to complete her depositions by September 30. Defendants agreed to make Traum available for deposition on October 14, 2010, but plaintiff responded she could not depose him that day "due to court proceedings scheduled for each day of that week." Plaintiff then provided dates on which she would be available, including October 25. As she had been on notice that Traum had information since 2008 and had waited to request to depose him until fourteen days before the deposition deadline, plaintiff cannot now claim defendants did not make Traum available for a deposition in a timely manner.

II.

We turn next to plaintiff's appeal from the summary judgment dismissing her claim of age discrimination based on disparate treatment. "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]. Proof of discriminatory motive is critical . . . ." Gerety, supra, 184 N.J. at 398 (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,

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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 she was in a "protected group" by establishing that she was forty-three years old. Plaintiff also established that she was performing the duties of a DAG, and she obviously was terminated. In addition, we conclude that plaintiff satisfied the fourth prong of a prima facie case by showing that the Division of Law retained younger DAGs after it terminated her. See Baker v. Nat'l State Bank, 312 N.J. Super. 268, 289-90 (App. Div. 1998). 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 her 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 DAGs and that it ultimately determined that thirty-five DAGs had to be terminated to achieve this savings. The Division also established that Director Kaplen decided to select the particular DAGs 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 the thirty-five lowest rated DAGs of the 590 total DAGs in the Division of Law. 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] and not the true
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reason for [plaintiff's termination]." Ibid. Plaintiff plainly failed to present any evidence that could support a finding that she carried this burden. Plaintiff did not present any direct or circumstantial evidence that any member of the supervisory staff involved in her evaluation had any motivation other than to conduct the same objective and fair evaluation of plaintiff as of every other DAG in the Division of Law. We reject plaintiff's argument that a trier of fact could find that the Division had a discriminatory motive in its selection of the DAGs to be terminated to achieve the required $3 million in savings because it excluded DAGs with a 3 rating who had been admitted to the bar three years or less from the reduction-in-force. We recognize that most recent admittees to the bar (though not all) are younger than attorneys who have been admitted for a longer period of time. However, Kaplen explained that she decided to exclude recently admitted DAGs with a 3 rating from the reduction-in-force because, in her view, "newly admitted attorneys need time to acquire basic lawyering skills while experienced attorneys do not," and "there is a tendency in the [Division of Law] to rate newly admitted attorneys lower on performance evaluations in order to give them room to grow." This constituted a reasonable nondiscriminatory explanation for the exclusion of such DAGs from the reduction-in-force that would preclude a finding that the selection of the DAGs to be terminated was motivated by discrimination on the basis of age. We also note that even if the Division had included DAGs rated 3 who had been admitted to the bar for less than three years in the reduction-in-force, plaintiff still would have been one of the DAGs who would have been terminated. Plaintiff was eighteenth in line to be terminated based on her 2005 evaluation. Six DAGs with evaluation scores lower than or the same as plaintiff's were exempted from the reduction-in-force due to their bar admission date. Id. However, even if those six DAGs had been included in the reduction-inforce, plaintiff still would have been the twenty-fourth of the thirty-five DAGs terminated. Plaintiff also argues that the Division should have considered factors other than just a DAG'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, 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
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intentional discrimination on the basis of age. 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 DAGs was motivated by discrimination on the basis of age.

III.

We next consider plaintiff's claim of age discrimination based on disparate impact. We reject defendants' argument that plaintiff failed to properly raise this claim. Although plaintiff's complaint, drafted by her then counsel, only set forth "age discrimination" as a cause of action, without specific mention of "disparate impact," the expert report prepared by Abraham Wyner, which plaintiff submitted to defendants in December 2009, approximately a year before the summary judgment motion, indicated that plaintiff was relying upon disparate impact as a basis for her claim, and the expert report Kevin Murphy prepared for defendants in response to the Wyner report also seemed to be directed at what defendants understood to be a disparate impact age discrimination claim. Therefore, plaintiff's claim of disparate impact age discrimination was sufficiently raised to warrant its consideration on the merits. An employment discrimination claim based on disparate impact involves employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity or other legitimate nondiscriminatory reasons. Gerety, supra, 184 N.J. at 398; Esposito v. Twp. of Edison, 306 N.J. Super. 280, 290-91 (App. Div. 1997), certif. denied, 156 N.J. 384 (1998); Giammario v. Trenton Bd. of Educ., 203 N.J. Super. 356, 363-64 (App. Div.), certif. denied, 102 N.J. 336 (1985); see also Smith v. City of Jackson, 544 U.S. 228, 241-43, 125 S. Ct. 1536, 1545-46, 161 L. Ed.2d 410, 422-23 (2005); Pippin v. Burlington Res. Oil & Gas Co., 440 F.3d 1186, 1199-1201 (10th Cir. 2006). To establish such a claim, "a plaintiff must show that a facially neutral policy 'resulted in a significantly disproportionate or adverse impact on members of the affected class.'" Gerety, supra, 184 N.J. at 399 (quoting United Prop. Owners Ass'n of Belmar v. Borough of Belmar, 343 N.J. Super. 1, 47 (App. Div.), certif. denied, 170 N.J. 390 (2001)). However, even if a plaintiff presents a prima facie disparate impact discrimination claim, this only shifts the burden to the employer to show that its employment action was not discriminatory on the basis of age or other proscribed considerations.
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Giammario, supra, 203 N.J. Super. at 363. Plaintiff relied primarily upon the Wyner expert report to establish a prima facie case of disparate impact age discrimination. However, defendants demonstrated through the Murphy report that Wyner's statistical analysis was based upon seriously flawed data, which excluded a substantial number of DAGs who were considered for the reduction-in-force from the analysis and included a substantial number of DAGs in the analysis who were no longer employed by the Division of Law at the time of the reduction-in-force.
2

Therefore, the Wyner report did not provide an adequate foundation to establish a prima facie case of disparate impact age discrimination. Moreover, even if plaintiff could be found to have presented a prima facie disparate impact claim based on Wyner's statistical analysis, plaintiff failed to raise a contested issue of fact concerning the reasonableness, and therefore absence of age discrimination, of the Division of Law's decision to use the most recent evaluations of DAGs to determine which ones would be terminated in the reduction-in-force.

IV.

Under the final point of her brief, plaintiff argues that she is entitled to relief under Article I, paragraph 1, of the New Jersey Constitution. Assuming, as we do, that a public employee who was discriminated against on the basis of age could maintain a claim under the New Jersey Constitution, plaintiff's constitutional claim was properly dismissed for the same reasons as her LAD claims. Affirmed.

1 Plaintiff had only been in her assignment for six months when the evaluation was conducted. 2 Wyner apparently made this error because he based his analysis on data produced in response to a request for production of documents under the Open Public Records Act, N.J.S.A. 47:1A-1 to -13, rather than documents produced in response to discovery requests in this litigation, which resulted in the production of out-of-date documents.

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