SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-4467-97T1
ROSEMARY WILLIAMS,
Plaintiff-Appellant,
v.
PEMBERTON TOWNSHIP PUBLIC
SCHOOLS and ELMER R. BROWN and
DR. ROBERT D. ELDER, individually
and in their official capacities,
Defendants-Respondents.
________________________________________
Argued: May 4, 1999 Decided: July 27, 1999
Before Judges Long, Wefing and Carchman.
On appeal from the Superior Court of New
Jersey, Law Division, Burlington County.
Louis C. Rosen argued the cause for appellant
(Patino-Treat & Rosen, attorneys; Mr. Rosen,
of counsel and on the brief).
Patrick J. Madden argued the cause for
respondents (Madden, Madden & Del Duca,
attorneys; Mr. Madden, of counsel and on the
brief).
The opinion of the court was delivered by
WEFING, J.A.D.
On June 17, 1997, plaintiff Rosemary Williams filed a two-count complaint in which she sought damages for employment
discrimination under N.J.S.A. 10:5-12 and for retaliatory
discharge under N.J.S.A. 34:19-3. Shortly after defendants filed
their answer, they moved for summary judgment. The trial court
granted defendants' motion, and plaintiff has appealed. After a
careful review of the record, we affirm.
In light of the nature of the questions presented, we
consider it important to set forth the factual background of this
matter in somewhat more detail than we might otherwise employ.
Plaintiff is an African-American woman who was hired by defendant
Pemberton Township Public Schools as a guidance counselor for the
1995-96 school year. She was primarily assigned to Fort Dix
Elementary School, at which defendant Elmer R. Brown, a white
male, is principal. She also spent one day a week at Brotherhood
Elementary, another Pemberton-Township school. The record
discloses neither the total number of teachers at those schools
nor the breakdown of tenured and nontenured teachers; it does
reveal, however, that two of Fort Dix's tenured teachers were
African-American. Defendant Robert D. Elder is the
superintendent of the Pemberton schools; he is a white male.
Plaintiff's relationship with defendant Brown was not
entirely amicable. The two met several times to discuss
plaintiff's performance and conduct. Their meeting of November
2, 1995, plays a critical role in plaintiff's case. That meeting
occurred following an incident that took place earlier that day.
On November 2, plaintiff met with K.D., whose two sons were
registered at Fort Dix. Ms. D. asked whether plaintiff met with
and counseled her older son, a first-grade student. Plaintiff
replied that she recently received a referral from the boy's
teacher and had therefore not yet scheduled an appointment. Ms.
D. was dismayed; she told plaintiff that she contacted the boy's
teacher at the beginning of the school year and asked the teacher
to refer her son for counseling because he was experiencing a
great deal of stress at home. They had only recently moved to
the area and her husband had undergone a severe illness which
left him with brain damage. Moreover, she informed plaintiff that
her son recently revealed thoughts of suicide. Plaintiff was
alarmed by that information and instructed Ms. D. to obtain
immediately a professional evaluation of her son's psychological
health. Plaintiff completed the necessary paper work and
assisted Ms. D. in locating her son for early dismissal.
After assisting Ms. D., plaintiff, believing that the boy's
teacher inappropriately responded to a serious situation,
notified and met with Brown on November 2. Brown also met with
the teacher in question on that day, but the record does not
disclose the results of that meeting. Plaintiff alleged that the
teacher refused to meet with her to discuss what occurred.
On November 7, 1995, Brown wrote plaintiff a memorandum in
which he summarized their meeting of November 2. He referred to
their several, performance-related meetings that took place over
the past few months and set forth specific areas in which
plaintiff's performance needed improvement. Specifically, Brown
directed plaintiff to: (1) provide timely feedback to the
teachers; (2) pick up the children at their classrooms rather
than expect the teacher to keep track of when a particular
student was expected to report to guidance counseling; and (3)
improve her rapport with the staff. Also in that memorandum,
Brown referred to a particular comment he made to plaintiff on
November 2. On that day, Brown told plaintiff that she needed to
"become more teachable"; he explained to her that he was
referring to her inability to receive directions or advice
"without giving a retort." He suggested that plaintiff meet with
Barbara Greco, the Director of Guidance and Counseling, for
assistance in those specified areas.
Several days after receiving Brown's memo, plaintiff met
with Ms. Greco. Ms. Greco directed plaintiff to prepare a
written response to the four concerns Brown expressed. Within
her memo, Ms. Greco noted, "I also need to meet with you to
discuss specific rapport complaints Mr. Brown has shared with
me." The record contains no information regarding the nature of
those complaints.
On November 20, 1995, plaintiff forwarded to Brown a five-page, single-spaced memorandum in response to Brown's November 7
memorandum. She first addressed Brown's complaints concerning
her lack of feedback to the faculty; she wrote that she earlier
made a policy decision "not only [to] give the teachers who gave
me referrals verbal feedback but . . . also to give them a copy
of their referral with comments from me." She noted that "it is
my policy to give the teacher feedback as soon as the teacher's
and my schedule will allow." She did not include, however, a
single example of feedback that she had provided to a teacher in
the preceding three months. Regarding her responsibility to pick
up a student at the student's classroom, she told Brown that she
had begun doing so after he had so instructed her in early
September; she included in her memorandum the reasons underlying
her desire to have the teacher send the child to the guidance
office. She dealt with the issue of rapport by noting that she
always ate lunch in the faculty lounge and that she had given
three classroom presentations on self-awareness. She provided,
however, no specific examples of her individual interactions with
staff. Finally, she addressed Brown's comment that she needed to
be "more teachable":
I am appalled and offended by your use of
this term . . . time has long passed since
Black people were referred to as "not
teachable." It is unbelievable to think that
terms like "not teachable" and subservientSee footnote 1
would exist in anyone's vocabulary in 1995[.]
She concluded her memorandum by listing her activities at the
school since September and by expressing dismay at the manner in
which she had been treated.
Shortly after receiving plaintiff's November20 memorandum,
Brown revised the text of his November7 memorandum and requested
that the revised memorandum replace the original in plaintiff's
personnel file. In its original format, the memorandum read:
In our last meeting, on November 2, 1995, I
shared with you that you need to become more
"teachable." You reminded me that you have
both a B.A. and M.A. degree. I told you it
didn't mean you couldn't achieve academically
but rather being "teachable" has to do with
how you respond when you are given directives
and advice. You can't take direction or
advice without giving a retort. This is very
frustrating to me because as I have told you,
all I'm trying to do is to help you succeed
as a counselor.
In its revised format, the memorandum read:
In our last meeting, on November 2, 1995, I
shared with you that you need to learn to
take direction. Taking direction has to do
with how you respond when you are given
directives and advice. You can't take
direction or advice without giving a retort.
This is very frustrating to me because as I
have told you, all I'm trying to do is to
help you succeed as a counselor.
In requesting that the revised version replace the original,
Brown wrote to the Assistant Superintendent for Personnel and
explained that "[i]t was never my intention to appall or offend
Mrs. Williams with my words. It is not part of my character to
do that to anyone." The revised version was dated November 7,
1995, clearly marked "Revised," and then placed in plaintiff's
personnel file in lieu of the original.
On December 15, 1995, plaintiff was notified that she was
being placed on a Plan of Assistance because of her
unsatisfactory performance. Ms. Greco outlined six, specific
steps plaintiff was to take to improve her performance and
provided a time frame for each step. The steps included keeping
a daily log of contacts, polling the teachers for certain
information, rescheduling certain presentations, and continuing a
"mentor-mentee relationship" with a certain individual. The last
of Ms. Greco's steps was the following:
[s]taff confrontations will be avoided. You
are in the building to provide a service to
the students and this can be done most
effectively with the cooperation of the
staff. Team work with the teaching staff
must become a priority.
The record contains no indication whether or how plaintiff
attempted to comply with Ms. Greco's directives.
In March 1996, the Pemberton Board of Education (the Board)
notified plaintiff that the non-renewal of her contract was
scheduled for discussion at its upcoming meeting. On March 28,
1996, the Board voted not to renew her contract. Plaintiff was
notified of that decision by letter dated March 29, 1996. The
Board's decision set June 30, 1996, as the last day of
plaintiff's employment; plaintiff's employment contract was due
to expire on that day.
Plaintiff requested an explanation. By letter dated April
4, 1996, the Board explained that she "did not satisfactorily
meet the expectations and standards as a Pemberton Township
Elementary Guidance Counselor during the 1995-96 school year."
Plaintiff then requested a hearing, and the Board complied.
Plaintiff appeared at the hearing, accompanied by an attorney and
Ms. D. The Board made no change, however, in its decision.
Plaintiff's employment ended with the expiration of her
contract on June 30, 1996. Her former position as guidance
counselor at Fort Dix and at Brotherhood was immediately filled
by another African-American woman. On June 17, 1997,
approximately one year after the expiration of her employment
contract, plaintiff filed the underlying complaint.
Defendants moved for summary judgment on two grounds. They
first contended that plaintiff failed to establish a prima facie
case of racial discrimination because she was replaced by an
African-American woman. They then argued that the second count
of her complaint failed to state a cause of action under the
Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8;
according to defendants, the teacher's failure immediately to
refer Ms. D.'s son for guidance counseling violated neither a law
nor a clear mandate of public policy. In response, plaintiff
argued that she was not required to establish as part of her
prima facie case that she was replaced by someone outside her
protected class and that the serious risk of suicide implicated a
clear mandate of public policy. Although she noted in her brief
in opposition to summary judgment that discovery had not yet
commenced, she failed to demonstrate pursuant to R. 4:46-5 that
certain discovery was necessary before summary judgment was
appropriately considered. In apparent recognition that the
questions presented are purely legal, plaintiff makes no
contention on appeal that the summaryjudgment motion was
premature.
We first turn to the question whether plaintiff, replaced by another African-American woman, can establish a prima facie case of racial discrimination. Most analyses of the elements of a prima facie case of racial discrimination begin with McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). In that case, Green, an African-American mechanic, sued McDonnell Douglas when it discharged him pursuant to a reduction in force and then later refused to rehire him. Id. at 794-97, 93 S. Ct. at 1820-22, 36 L. Ed. 2d at 673-75. The Court in McDonnell Douglas was primarily concerned with allocating the parties' respective burdens of proof and production of evidence in a case of racial discrimination. Id. at 800, 93 S. Ct. at 1823, 36 L. Ed. 2d at 676. In its opinion, it noted, however, that a plaintiff could establish a prima facie case of racial discrimination
by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.
[Id. at 802, 93 S. Ct. at 1824, 36 L. Ed.
2d
at 677.]
Recognizing that it was confronted with only one of a myriad
possible discrimination claims, the Court added the following
footnote:
The facts necessarily will vary in Title VII
cases, and the specification above of the
prima facie proof required from respondent
(sic) is not necessarily applicable in every
respect to differing factual situations.
[Id. at 802 n.13, 93 S. Ct. at 1824 n.13, 36
L. Ed.
2d at 677-78 n.13.]
New Jersey courts have generally begun their analyses of the
elements of a discrimination claim by turning to McDonnell
Douglas and by then making appropriate adjustments in light of
the factual underpinnings of the particular plaintiff's claim.
Plaintiff contends that her racial-discrimination claim is
controlled by the New Jersey Supreme Court's decision in Clowes
v. Terminix Int'l, Inc.,
109 N.J. 575 (1988).
In Clowes, the Court recognized the following as the
components of a prima facie case:
The plaintiff must demonstrate by a
preponderance of the evidence that he or she
(1) belongs to a protected class, (2) applied
and was qualified for a position for which
the employer was seeking applicants, (3) was
rejected despite adequate qualifications, and
(4) after rejection the position remained
open and the employer continued to seek
applications for persons of plaintiff's
qualifications.
[Id. at 595-96 (quoting Andersen v. Exxon
Co.,
89 N.J. 483, 492 (1982)).]
The Court then adopted, for the circumstances presented by
Clowes's claim, the prima facie case employed in Loeb v. Textron,
Inc.,
600 F.2d 1003 (1st Cir. 1979). Clowes, supra, 109 N.J. at
596-97. The Loeb court established the following prima facie
case for a discriminatory-discharge claim:
that [the employee] . . . was in the
protected . . . group, that he was performing
his job at a level that met his employer's
legitimate expectations, that he nevertheless
was fired, and that [the employer] sought
someone to perform the same work after [the
employee] left.
[Loeb, supra, 600 F.
2d at 1014.]
Plaintiff argues that because the Clowes Court failed to
require a showing that the plaintiff was replaced by one outside
the protected class, she has established a prima facie case. We
disagree. Clowes is silent on the question presented here. The
Clowes Court concluded that Clowes failed to satisfy his prima
facie burden because he failed to establish either his membership
in a protected class or his acceptable job performance. Clowes,
supra, 109 N.J. at 601. The Court did not therefore consider
whether Clowes satisfied the prima facie test's fourth prong.
We recognize that in Clowes, the Court adopted the elements
of a prima facie case for discrimination articulated in Loeb.
Id. at 596-97. We recognize further that the Loeb court refused
to hold that a plaintiff was required to show that he was
replaced by one outside the protected class as part of the prima
facie case. Loeb, supra, 600 F.
2d at 1012-14. Although the New
Jersey Supreme Court has not directly considered the question,
several of the Court's opinions indicate that the Clowes Court
did not intend to incorporate that aspect of Loeb. Those
opinions, which precede and succeed Clowes, indicate that the
Court may indeed, in certain instances, view replacement by an
individual outside the protected class as part of a prima facie
case of employment discrimination.
Peper v. Princeton Univ. Bd. of Trustees,
77 N.J. 55, 61
(1978), involved a discriminatory, failure-to-promote claim based
on gender. Within its opinion, the Court noted that plaintiff,
as part of her prima facie case, was "required . . . to show that
similarly situated males were promoted while she was not." Id.
at 84.
In Dixon v. Rutgers, The State Univ. of N.J.,
110 N.J. 432,
435-36 (1988), a African-American female assistant professor
claimed that she was denied tenure because of discriminatory
animus. She first commenced a proceeding before the Division on
Civil Rights. Id. at 436. The Division found probable cause of
gender discrimination because the two professors who received
tenure in the year that plaintiff applied were male and possessed
qualifications inferior to Dixon's; however, the Division found
no probable cause of racial discrimination because the two male
teachers were both members of racial minorities. Id. at 438.
The matter thereafter proceeded as a claim of gender
discrimination. Id. at 439. The Court chose not to disagree
with the Division's analysis.
In Erickson v. Marsh & McLennan Co., Inc.,
117 N.J. 539, 549
(1990), plaintiff, a white male, brought suit for wrongful
discharge, gender discrimination, and libel. The Court ruled
that he failed to establish the fourth element of a prima facie
case of gender discrimination because he
offered no evidence that [defendant] had
sought a woman to perform the same work after
he left. He relied instead on the fact that
prior to his discharge there had been three
account executives in the department and at
the time of trial there were four. Such a
change in personnel, without a more specific
showing that [defendant] sought to replace
Erickson with . . . [a] qualified female
account executive is insufficient to satisfy
the fourth element of our test.
[Id. at 554.]
Plaintiff attempts to distinguish Erickson by stressing that it
involved a claim of reverse discrimination. We consider that
distinction immaterial.
Finally, in Bergen Commercial Bank v. Sisler,
157 N.J. 188
(1999), the Court recognized that in cases of age discrimination
brought under New Jersey law, courts have modified the fourth
element to require a showing that the plaintiff was replaced with
"a candidate sufficiently younger to permit an inference of age
discrimination." Id. at 213 (quoting Kelly v. Bally's Grand,
Inc.,
285 N.J. Super. 422, 429 (App. Div. 1995)).
Federal courts construing Title VII have similarly struggled
with the proper formulation of the fourth element of a prima
facie case of discrimination, particularly whether replacement by
an individual outside the protected class is a necessary element.
Those courts have reached varying results; indeed, in some
instances, different panels within the same federal circuit have
reached different conclusions. See, e.g., Brown v. McLean,
159 F.3d 898, 905 (4th Cir. 1998) (holding that male, replaced by
another male, could not make out a prima facie case of gender
discrimination), cert. denied, ___ U.S. ___,
119 S. Ct. 1577, ___
L. Ed.2d ___ (1999); Chock v. Northwest Airlines, Inc.,
113 F.3d 861, 863 n.1 (8th Cir. 1997) (ruling that it does "not require a
plaintiff to demonstrate replacement by a person outside any
protected class for a prima facie case"); Carson v. Bethlehem
Steel Corp.,
82 F.3d 157, 159 (7th Cir. 1996) (announcing that
"[t]hat one's replacement is of another race, sex, or age . . .
is neither a sufficient nor a necessary condition" to
establishing a prima facie case); De La Cruz v. New York City
Human Resources Admin. Dep't of Soc. Servs.,
82 F.3d 16, 20 (2d
Cir. 1996) (finding that the plaintiff satisfied the fourth prong
because he was replaced by one outside of the protected class);
Davenport v. Riverview Gardens Sch. Dist.,
30 F.3d 940, 944 (8th
Cir. 1994) (explaining that "[w]hile proof of replacement by a
person outside the protected class will satisfy the fourth
element, it is now well-settled that such proof is not
required"); Cumpiano v. Banco Santander Puerto Rico,
902 F.2d 148, 154 (1st Cir. 1990) (holding that a woman claiming
discriminatory discharge based on pregnancy does not have to
show that she was replaced by a nonpregnant woman); Meiri v.
Dacon,
759 F.2d 989, 996 (2nd Cir.) (declaring it "inappropriate"
to require an employee to demonstrate that she was replaced by
one outside the protected class), cert. denied,
474 U.S. 829,
106 S. Ct. 91,
88 L. Ed.2d 74 (1985). See generally Elizabeth
Clack-Freeman, Comment, Title VII and Plaintiff's Replacement: A
Prima Facie Consideration?,
50 Baylor L. Rev. 463 (1998).
The United States Supreme Court has not yet resolved the
conflict among the federal circuit courts on this issue, although
it addressed it inferentially in O'Connor v. Consol. Coin
Caterers Corp.,
517 U.S. 308,
116 S. Ct. 1307,
134 L. Ed.2d 433
(1996). In O'Connor, plaintiff alleged age discrimination. Id.
at 309, 116 S. Ct. at 1309, 134 L. Ed.
2d at 437. Defendant
employer argued that plaintiff failed to establish a prima facie
case because he was replaced by a forty-year-old individual who
thus fit within the protected age group established by the Age
Discrimination in Employment Act,
29 U.S.C.A.
§621 to § 634 (the
ADEA). Id. at 309-13, 116 S. Ct. at 1309-10, 134 L. Ed.
2d at
437. The Court rejected that argument and concluded:
Because the ADEA prohibits discrimination on
the basis of age and not class membership,
the fact that a replacement is substantially
younger than the plaintiff is a far more
reliable indicator of age discrimination than
is the fact that the plaintiff was replaced
by someone outside the protected class.
[Id. at 313, 116 S. Ct. at 1310, 134 L. Ed.
2d at 439.]
A fair reading of O'Connor indicates, however, that the
Court recognized the unique nature of an age-discrimination claim
under the ADEA for the statute defines by age the protected
class. Its opinion cannot therefore serve as an indication of
how the Court would treat other types of discrimination claims.
In light of the various contexts in which
employmentdiscrimination claims arise, we consider it unwise to
require a plaintiff to establish unfailingly as part of the prima
facie case that plaintiff was replaced by an individual outside
the plaintiff's protected class. The appropriate fourth element
of a plaintiff's prima facie case requires a showing that the
challenged employment decision (i.e., failure to hire, failure to
promote, wrongful discharge) took place under circumstances that
give rise to an inference of unlawful discrimination. Texas
Dep't of Community Affairs v. Burdine,
450 U.S. 248, 253,
101 S.
Ct. 1089, 1094,
67 L. Ed.2d 207, 215 (1981); Chertkova v.
Connecticut Gen. Life Ins. Co.,
92 F.3d 81, 91 (2d Cir. 1996);
Quaratino v. Tiffany & Co.,
71 F.3d 58, 65 (2d Cir. 1995). That
formulation permits a plaintiff to satisfy the fourth element in
a variety of ways. Chertkova, supra, 92 F.
3d at 91 (setting
forth the various ways in which plaintiffs have satisfied the
fourth prong).
Under this approach, a showing that a plaintiff was replaced
by an individual outside the protected class could support an
inference of unlawful discrimination. Similarly, a plaintiff who
was replaced by an individual within the protected class but
could show other circumstances indicating unlawful discrimination
would not be unfairly precluded from presenting a case. For
instance, that approach foresees the possibility that an
employer, as a defensive measure, may replace a plaintiff with an
individual from the plaintiff's protected class after the
commencement of litigation. Brown, supra, 159 F.
3d at 905-06.
That, of course, is not the situation here. When plaintiff's
contract expired, she was immediately replaced by another
African-American woman. She did not bring suit, however, until
nearly a year after the expiration of her contract.
We have examined the record to determine whether there are
other circumstances that give rise to the inference that the
Board did not renew plaintiff's contract as a result of unlawful
discrimination. That examination revealed no such circumstances.
Throughout her argument, plaintiff refers to Brown's use of
the word "teachable" and characterizes it as "overtly racial."
We do not agree. Brown employed that word to describe a
perceived characteristic of plaintiff's personality. Although
more appropriate words may have been available (irrespective of
the racial or ethnic background of the person to whom Brown was
speaking), the word "teachable" does not connote racial animus.
To accept plaintiff's characterization is to find a racial
overtone in every conversation between a supervisor and an
employee of different ethnic or racial backgrounds. It would
also permit an individual listener's subjective perception and
reaction determine the objective question of the speaker's
liability. The law should not find divisions where none exist.
II.
We turn now to plaintiff's claim that the trial court erred
in granting defendants' motion for summary judgment on the second
count of her complaint. That count was premised upon paragraphs
(a) and (c) of N.J.S.A. 34:19-3 of the Conscientious Employee
Protection Act (CEPA). The purpose of the statute is to provide
protection for workers who may be subjected to retaliatory
actions by their employers if they reveal "corrupt, illegal,
fraudulent, or harmful activity" by their employers. Abbamont v.
Piscataway Township Bd. of Educ.,
138 N.J. 405, 417 (1994)
(internal quotations and citation omitted).
The second count of plaintiff's complaint alleged that she
was terminated in retaliation for her complaints regarding the
teacher's failure to refer Ms. D.'s son for counselling in a
timely fashion. (Within her appellate brief, plaintiff also
contends that she was terminated in retaliation for her
complaints regarding discrimination. Plaintiff's complaint
evidences no attempt to plead that cause of action. We confine
our remarks, therefore, to her allegation that her termination
was in retaliation for complaints concerning the D. situation.)
We are satisfied that the trial court properly granted
summary judgment. Plaintiff contends that the child's teacher
did not properly respond to a child who was exhibiting symptoms
that carried a risk of suicide and that the teacher's failure to
act was in violation of a clear mandate of public policy for
purposes of CEPA. Even if we were to agree with the premise that
failing to refer a suicidal student for counseling does violate a
clear mandate of public policy, it is not supported by the
record.
There is no indication that Ms. D. ever advised her son's
teacher, at any time before her meeting with plaintiff on
November 2, that her son was contemplating suicide. Plaintiff
provides no factual support that such occurred. There is
therefore no support for plaintiff's allegations that the boy's
teacher was aware of a risk of suicide and ignored it for several
months. And, as we noted earlier, plaintiff made no assertion
that the lack of discovery hampered her in opposing defendants'
motion.
Plaintiff also contends that the teacher's actions in some
manner violated the Education of the Handicapped Act,
20 U.S.C.A.
§1400 to § 1491. There is no evidence in the record that the
child in question could be considered handicapped within the
meaning of that statute.
20 U.S.C.A.
§1401(a)(1).
Because we are satisfied that the trial court correctly
granted defendants' motion for the reasons we have stated, we are
not called upon to consider the impact, if any, of Higgins v.
Pascack Valley Hosp.,
158 N.J. 404 (1999).
Affirmed.
Footnote: 1 Brown did not utilize this word in his November 7 memorandum and the record does not contain any evidence that Brown ever used that word.