SYLLABUS
(This syllabus is not part of the opinion of the Court. It has
been prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not
have been summarized).
This matter comes before the Court on Stanley Roberts Inc.s appeal from a
denial of its motion for a directed verdict; therefore, the Court accepts as
true all the evidence supporting Stewart Zive and accords him all legitimate inferences.
Stanley Roberts, Inc. (SRI) is an importer of flatware for retail sale. SRI
hired Zive in May 1991 to head its new Homeworld division. Prior to
working for SRI, Zive had substantial experience as a sales executive. Between 1991
and 1994, Homeworlds sales steadily increased from $905,000 to $2 million. In 1995,1996,
and 1997, the sales figures declined below $2 million. Edward Pomeranz, the president
of SRI, told Zive that Homeworld needed $2.5 million in yearly sales to
justify keeping the division open. Zive, believing that Homeworld could earn that amount
in 1998 even though Homeworld had never had sales above $2 million, agreed
to meet the goal. Sales only reached $1.5 million that year. Although Zive
admitted he was unable to reach the sales goal imposed by Pomeranz, there
was never any suggestion that Zives job was in jeopardy.
Zive suffered a debilitating stroke on December 3, 1998 that paralyzed the left
side of his body. Zive worked from home during his rehabilitation. On March
8, 1999, Zive contacted Pomeranz to say he was ready to return to
work. At that time, Zive was told his services were no longer needed.
At the time of Zives firing, the effects of the stroke were still
evident, especially in gait and speech. Zive was offered a severance package and
medical insurance for one year. SRI thereafter issued a memorandum notifying Homeworld sales
representatives that Zive was no longer employed with the company and that the
division will continue under Zives assistant, Tom Garda. According to Zive, the Homeworld
division remained open, and another employee who performed essentially all of Zives former
job functions eventually replaced Garda.
On June 24, 1999, Zive sued SRI, alleging discriminatory discharge in violation of
the New Jersey Law Against Discrimination (LAD). At trial, SRI moved for a
directed verdict, claiming that Zive had not presented a prima facie case of
discrimination because he failed to prove that he met the legitimate expectations of
his employer under the test formulated in Clowes v. Terminix Intl, Inc., which
adapted McDonnell Douglas to an employment termination matter. The trial judge denied SRIs
motion and the matter proceeded to a jury. The trial court also denied
SRIs request that the jury be charged on the elements of the prima
facie case. The jury found for Zive, awarding $225,000 in compensatory damages and
$75,000 for pain and suffering. SRI appealed.
The Appellate Division affirmed, holding that a discharged employee in an LAD case
need not show that his performance met his employers subjective legitimate expectations. Instead,
the plaintiff must show that he was objectively qualified for the position. The
court equated objective qualification with basic performance, holding that Zive had worked for
SRI for eight years, had substantial experience and was objectively qualified for the
position. The court would not accept the $2.5 million sales goal as an
objective measure of Zives performance, finding it a subjective goal established to determine
whether Homeworld was worthy as a division of SRI. The appellate panel also
approved the trial courts decision not to instruct the jury regarding the burden-shifting
analysis of McDonnell Douglas and to pose only the ultimate issue of whether
Zive proved an act of discrimination by a preponderance of the evidence.
The Supreme Court granted certification.
HELD: So long as the employee shows that he has been performing in
the position from which he has been terminated, the second prong of a
prima facie case under McDonnell Douglas is fulfilled. The quality of the employees
performance does not come into play on the plaintiffs prima facie case.
1. The LAD is remedial legislation that should be construed liberally in order
to achieve the goal of eradicating discrimination in employment. The LAD prevents only
unlawful discrimination against disabled individuals; it does not prevent the termination of anyone
who is unable to perform adequately the duties of his job. Discriminatory intent
in termination cases is difficult to prove through direct evidence, which is often
unavailable. To address this difficulty, the burden-shifting scheme articulated in McDonnell Douglas was
adopted in New Jersey, enabling a plaintiff to make his or her case
through circumstantial evidence. Under McDonnell Douglas, a plaintiff in a failure to hire
case must prove a prima facie case of discrimination. To do so, a
plaintiff must prove that he: 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 plaintiffs qualifications.
The evidentiary burden is modest: it is to demonstrate to the court that
plaintiffs factual scenario is compatible with discriminatory intent. The prima facie case is
to be evaluated solely on the basis of the evidence presented by the
plaintiff, regardless of defendants efforts to dispute that evidence. (Pp. 7-13)
2. The establishment of the prima facie case creates an inference of discrimination.
At that point, the matter moves to the second stage of the McDonnell
Douglas test, where the burden of production shifts to the employer to articulate
a legitimate, nondiscriminatory reason for the employers action. In the third stage of
the burden-shifting scheme, 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. (Pp. 13-15)
3. In Clowes, the Court recognized the need to adjust the elements of
the prima facie case to account for the differences needed in approach between
a hiring case and a discharge case. Thus, in a discharge case, a
plaintiff must prove that: 1) he was in a protected group; 2) he
was performing his job at a level that met his employers legitimate expectations;
3) he nevertheless was fired; and 4) the employer sought someone to perform
the same work after he left. This standard was not meant to impose
a greater burden on the plaintiff; rather, it is an analogue to McDonnell
Douglas. (Pp. 15-16)
4. Of the forty-one jurisdictions with case law on this subject, only eight,
including New Jersey, have adopted the employers legitimate expectations standard. The remaining jurisdictions
use either objective qualifications or a combination of objective qualifications and some evidence
of performance as the second prong benchmark. There is a similar split in
the federal circuits, which, like the states, have generally rejected the employers legitimate
expectations standard. What is seen in these jurisdictions is the underlying unease over
making the second prong in a termination case greater than the second prong
in a hiring case and thus casting too great a burden on an
LAD termination case. (Pp. 16-21)
5. This Court previously held that the employers legitimate expectations is an objective
and not subjective standard, reserving the issue of the employers subjective expectations for
the pretext stage of an LAD case. To satisfy that objective standard, all
that is necessary is that plaintiff produce evidence showing that he was actually
performing the job prior to termination. Along with the remaining prongs of the
prima facie case, that evidence is sufficient to support the conclusion that the
plaintiffs claim of discrimination is plausible enough to warrant promotion to the next
step of the McDonnell Douglas test. In addition, only the plaintiffs evidence should
be considered. Performance markers like poor evaluations are properly debated in the second
and third stages of the burden-shifting test and do not come into play
as part of the second prong of the prima facie case. (Pp. 21-24)
6. In applying the standard adopted today, the Court is satisfied that Zive
established a prima facie case, including the second prong. He was a member
of a protected class; he worked for SRI for eight years; he had
significant experience as a sales executive prior to working at SRI; he was
actively engaged in administration and management of Homeworld; and, until his stroke, he
had never been told his job was at stake. In addition, the Homeworld
division and Zives job continued after Zives firing. (Pp. 24-25)
7. It is unnecessary to charge the jury on the elements of a
prima facie case. The fact that the jury is not so instructed does
not remove the issue of performance from the jurys consideration. The jury will
consider performance when it decides the ultimate question of whether the employee was
fired as a result of discrimination. (Pp. 25-27)
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA, ZAZZALI, ALBIN, WALLACE and RIVERA-SOTO join in
JUSTICE LONGS opinion.
SUPREME COURT OF NEW JERSEY
A-
82 September Term 2003
STEWART ZIVE,
Plaintiff-Respondent,
v.
STANLEY ROBERTS, INC.,
Defendant-Appellant.
Argued October 13, 2004 Decided February 24, 2005
On certification to the Superior Court, Appellate Division.
Carl A. Salisbury argued the cause for appellant (Killian & Salisbury, attorneys; Mr.
Salisbury and Steven R. Weinstein, on the briefs).
Neil H. Deutsch argued the cause for respondent (Deutsch Resnick and Pashman Stein,
attorneys; Mr. Deutsch and Jonathan I. Nirenberg, on the briefs).
Richard M. Schall argued the cause for amicus curiae National Employment Lawyers Association/New
Jersey (Schall & Barasch, attorneys).
Craig H. Livingston submitted a brief on behalf of amici curiae The New
Jersey Advisory Council on Safety and Health, The New Jersey Council of the
International Association of Machinists and Aerospace Workers, AFL-CIO (Ball Livingston, attorneys).
James R. Michael, Deputy Attorney General, submitted a brief on behalf of amicus
curiae New Jersey Division on Civil Rights (Peter C. Harvey, Attorney General of
New Jersey, attorney; Jeffrey Burstein, Assistant Attorney General, of counsel).
JUSTICE LONG delivered the opinion of the Court.
The appeal provides us with an opportunity to clarify an issue that has
dogged courts across the nation: on a Law Against Discrimination (LAD) termination claim,
what is the plaintiffs evidentiary burden that will satisfy the second prong of
the prima facie case under the McDonnell Douglas
See footnote 1
burden-shifting scheme. We hold that
so long as the employee shows that he has been performing in the
position from which he was terminated, the second prong is fulfilled. We further
hold that the quality of the employees performance does not come into play
on the plaintiffs prima facie case.
I.
Because the case comes to us on Stanley Robertss appeal from the denial
of its motion for a directed verdict, we accept as true all the
evidence supporting Zive and accord him all legitimate inferences. R. 4:40-1; Verdicchio v.
Ricca,
179 N.J. 1, 30 (2004)(noting that both Rule 4:40-1 and Rule 4:37-2(b)
are governed by same standard: [I]f, accepting as true all the evidence which
supports the position of the party defending against the motion and according him
the benefit of all inferences which can reasonably and legitimately be deduced therefrom,
reasonable minds could differ, the motion must be denied (citations omitted)).
So viewed, the following are the facts of the case: Stanley Roberts, an
importer of flatware for retail sale, hired Zive in May 1991 to head
its new Homeworld division. Prior to working for Stanley Roberts, Zive had substantial
experience as a sales executive.
Between 1991 and 1994, Homeworlds sales steadily increased from $905,000 to $2 million.
In 1995, sales declined for the first time to $1.7 million and in
1996, to $1.3 million. To help meet sales goals, Zive hired an assistant,
Tom Garda, and Homeworlds sales increased to $1.8 million in 1997.
Despite the fact that Homeworld had never earned more than $2 million, Edward
Pomeranz, the president of Stanley Roberts, told Zive that Homeworld needed $2.5 million
in yearly sales to justify keeping the division open. Zive thought that Homeworld
would earn that amount in 1998 and agreed to meet the goal. In
September 1998, Garda was asked to head another division and reduced the time
he spent with Homeworld. By October of 1998, it was apparent that Homeworld
would not achieve the sales goal; instead, it reached only $1.5 million. Those
numbers were not explained; however, sales for the entire company declined substantially in
1998.
Although Zive admittedly was unable to reach the $2.5 million sales goal imposed
by Pomeranz, and there was discussion of possibly closing Homeworld, neither Pomeranz nor
any other Stanley Roberts official ever suggested, even obliquely, that Zive was in
danger of losing his job. The only discussion of his employment occurred when
Pomeranz mentioned a potential move from a salaried to a commissioned position.
Zive suffered a debilitating stroke on December 3, 1998 that paralyzed the left
side of his body. According to Zive, Pomeranz visited him in the hospital
and told him to hurry up and get better and get back to
work and asked Zive to attend the Chicago Housewares show in January 1999.
After the stroke, he worked from home, talked to Garda and to his
secretary by phone, and reviewed business reports.
The last time Pomeranz actually saw Zive before the firing, which took place
by telephone, the effects of the stroke were still obvious. Zive was limping,
needed a cane, and had to speak slowly in order to be understood.
On March 8, 1999, after rehabilitation, Zive called Harold Pomeranz, the Chairman of
the Board of Stanley Roberts, to state that he was ready to return
to work. He was told that his services would no longer be required
and was offered a severance package of $20,000 plus medical insurance for a
year. Zive went to the office on March 15, 1999 but was unsuccessful
in saving his salaried position.
Stanley Roberts issued a memorandum on March 22, 1999, advising Homeworld Sales Representatives
that Zive was no longer with the company and instructing them to [c]ontinue
to direct all inquiries [regarding Homeworld] to Tom Garda and Tina Patterson, as
we are going to continue with the division. (emphasis added). According to Zive,
Stanley Roberts never closed Homeworld and subsequently replaced Garda with another employee, Mel
Rudy, who performed essentially all of Zives former job functions.
On June 24, 1999, Zive brought this action, claiming discriminatory discharge in violation
of the LAD. At trial, Stanley Roberts moved for a directed verdict, claiming
that Zive had not presented a prima facie case of discrimination because he
failed to prove that he had met the legitimate expectations of his employer
under the test formulated in Clowes v. Terminix Intl, Inc.,
109 N.J. 575,
597 (1988), to adapt McDonnell Douglas to a termination case. The trial judge
denied that motion, and the case proceeded to the jury. The trial judge
also denied Stanley Robertss request that the jury be charged on the elements
of the prima facie case. The jury found that Stanley Roberts terminated Zive
after his stroke, used the stroke or its effects as a determinative factor
in the firing, and awarded Zive $225,000 in compensatory damages and $75,000 for
pain and suffering. Stanley Roberts appealed.
The Appellate Division affirmed, holding that a discharged employee in a LAD case
need not show that his performance met his employers subjective legitimate expectations but
need only show that he was objectively qualified for the position. The court
equated objective qualification with basic performance, holding that because Zive had worked for
Stanley Roberts for eight years and had been actively engaged in the management
and administration of Homeworld, there was more than a scintilla of evidence that
he was objectively qualified for the position he held.
In ruling, the Appellate Division refused to accept the $2.5 million sales target
as an objective measure of Zives performance because it involved external and internal,
tangible and intangible factors, such as the market for the product, the market
share and reputation of the company, the economy, the competition, and the commitment
of the company to spend time and money to meet the target. Rather
than objectively measuring Zives performance, the Appellate Division viewed the $2.5 million as
a subjective goal established to determine whether Homeworld was worthy as a permanent
extension of defendants established lines of business.
Finally, the Appellate Division approved the trial judges decision not to instruct the
jury with regard to the burden-shifting analysis of McDonnell Douglas and to pose
only the ultimate issue of whether Zive proved an act of discrimination by
a preponderance of the evidence.
We granted Stanley Robertss petition for certification. Zive v. Stanley Roberts, Inc.,
179 N.J. 373 (2004)
. We also granted amicus curiae status to the New Jersey
Division on Civil Rights, the National Employment Lawyers Association/New Jersey, the New Jersey
Advisory Council on Safety and Health, and the New Jersey Council of the
International Association of Machinists and Aerospace Workers, AFL-CIO.
[Marzano, supra, 91 F.
3d at 507.]
To address the difficulty of proving discriminatory intent, New Jersey has adopted the
procedural burden-shifting methodology articulated in McDonnell Douglas Corp. v. Green,
411 U.S. 792,
93 S. Ct. 1817,
36 L. Ed.2d 668 (1973); Viscik, supra, 173
N.J. at 13-14; Clowes, supra, 109 N.J. at 595.
McDonnell Douglas enables a plaintiff to make his or her case through circumstantial
evidence. Marzano, supra, 91 F.
3d at 502-03. Under McDonnell Douglas, a plaintiff in
a failure to hire case must first prove a prima facie case of
discrimination; to do so, a plaintiff must prove the following: that plaintiff (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 plaintiffs qualifications. Andersen, supra, 89 N.J. at 492.
The evidentiary burden at the prima facie stage is rather modest: it is
to demonstrate to the court that plaintiffs factual scenario is compatible with discriminatory
intent i.e., that discrimination could be a reason for the employers action. Marzano,
supra, 91 F.
3d at 508; see also Texas Dept of Cmty. Affairs v.
Burdine,
450 U.S. 248, 253,
101 S. Ct. 1089, 1094,
67 L. Ed. 2d 207, 215 (1981)(describing burden of establishing a prima facie case as not
onerous); Torre v. Casio, Inc.,
42 F.3d 825, 829 (3d Cir. 1994)(describing prima
facie case as relatively simple)(quoting McKenna v. Pac. Rail Serv.,
32 F.3d 820,
825 (3d Cir. 1994); Massarsky v. Gen. Motors Corp.,
706 F.2d 111, 118
(3d Cir.)(describing prima facie case as easily made out)(cert. denied,
464 U.S. 937,
104 S. Ct. 348,
78 L. Ed.2d 314 (1983)); Peper v. Princeton
Univ. Bd. of Trustees,
77 N.J. 55, 81 (1978)(writing the standard for presenting
a [p]rima facie case cannot be too great lest rampant discrimination go unchecked.).
That consistent reaffirmance of the plaintiffs slight evidentiary burden acknowledges that requiring greater
proof would generally prevent a plaintiff from accessing the tools, i.e., evidence of
the employers motivation, necessary to even begin to assemble a case. Such a
result would not be consistent with the complex evidentiary edifice constructed by the
Supreme Court, and [would] impose on plaintiff the very burden that McDonnell Douglas
sought to avoid that of uncovering a smoking gun. Marzano, supra, 91 F.3d
at 510.
Procedurally, courts have recognized that the prima facie case is to be evaluated
solely on the basis of the evidence presented by the plaintiff, irrespective of
defendants efforts to dispute that evidence. Cline v. Catholic Diocese of Toledo,
206 F.3d 651, 661 (6th Cir. 2000); see also id. at 663 n.7 (citing
Freeman v. Package Mach. Co.,
865 F.2d 1331, 1335-36 (1st Cir. 1988) (looking
only at plaintiff's evidence that he was qualified for prima facie purposes and
considering defendant's contrary evidence at rebuttal stage); Siegel v. Alpha Wire Corp.,
894 F.2d 50, 54 (3d Cir.)(stating defendant's arguments rebutting plaintiff's prima facie case belong
in later stages of McDonnell Douglas and relying on plaintiff's evidence alone to
find prima facie case satisfied)(cert. denied,
496 U.S. 906,
110 S. Ct. 2588,
110 L. Ed.2d 269 (1990)); Yarbrough v. Tower Oldsmobile, Inc.,
789 F.2d 508, 512 (7th Cir. 1986) (stating defendant's argument that plaintiff refused job assignment
and thus failed to meet its legitimate expectations was not "appropriately brought as
a challenge to the sufficiency of [the] prima facie case," and considering only
plaintiff's testimony to find prima facie case)). Obviously, where as here, the employer
moves for a directed verdict based on the employees failure to establish a
prima facie case, the employees evidence is also entitled to all legitimate inferences
that derive therefrom. R. 4:37-2(b).
One court aptly described the prima facie burden as giving plaintiff
the right, as in a poker game, to require the employer to show
its hand that is, to offer an explanation other than discrimination why the
employee suffered an adverse employment action. It is as if plaintiff told the
employer, I cannot get into your mind to prove with certainty that you
acted against me based on a discriminatory motive. You, on the other hand,
know the reason why you acted against me. I have done the best
I can, which is to show that discrimination could have been the motive.
Therefore, it is your turn to prove me wrong by articulating the non-discriminatory
reason for your action. If the employer is unable to proffer a nondiscriminatory
reason, plaintiff is entitled to summary judgment or judgment as a matter of
law, as the case may be, if the employer proffers a reason and
the plaintiff can produce enough evidence to enable a reasonable fact finder to
conclude that the proffered reason is false, plaintiff has earned the right to
present his or her case to the jury.
[Marzano, supra,
91 F.
3d at 508.]
The establishment of the prima facie case creates an inference of discrimination, Furnco
Constr. Corp. v. Waters,
438 U.S. 567, 577,
98 S. Ct. 2943, 2949-50,
57 L. Ed.2d 957, 967 (1978), 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 employers
action. Clowes, supra, 109 N.J. at 596.
In the third stage of the burden-shifting scheme, 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. To prove pretext, a
plaintiff may not simply show that the employers reason was false but must
also demonstrate that the employer was motivated by discriminatory intent. Viscik, supra, 173
N.J. at 14. That burden merges with the plaintiffs ultimate burden of persuading
the court that she or he was subjected to intentional discrimination. Baker v.
Natl State Bank,
312 N.J. Super. 268, 287 (App. Div. 1998), affd,
161 N.J. 220 (1999). The burden of proof of discrimination does not shift; it
remains with the employee at all times. Clowes, supra, 109 N.J. at 596.
The McDonnell-Douglas division of intermediate evidentiary burdens serves to bring the litigants and
the court expeditiously to the ultimate question of whether the employer intentionally discriminated.
Burdine, supra, 450 U.S. at 253, 101 S. Ct. at 1093-94, 67 L.
Ed.
2d at 215. That is the overall backdrop on which our inquiry
must take place.
IV.
Because McDonnell Douglas arose in a hiring context, in Clowes, we recognized a
need to adjust the elements of the prima facie case to account for
differences in a discharge situation. Clowes, supra, 109 N.J. at 596-97. We were
concerned that although the objectively qualified standard is appropriate in a hiring case
in which performance has not yet occurred, a termination case necessarily involves a
different approach. Therefore, adopting the language from Loeb, supra, we stated that in
a discharge case, a plaintiff must prove that: (1) he was in the
protected group; (2) he was performing his job at a level that met
his employers legitimate expectations; (3) he nevertheless was fired; and (4) the employer
sought someone to perform the same work after he left. Id. at 597.
That standard was not intended to impose a greater burden on a plaintiff
in a termination case than that imposed in a hiring case; rather, it
was meant as an analogue to the McDonnell Douglas standard. It is the
second prong that is at issue here.
Zive contends that the Appellate Division correctly concluded that he proved the second
prong by showing his objective qualification for the job as revealed by his
eight year performance. Stanley Roberts counters that the words of Clowes mean exactly
what they say that on the prima facie case it is plaintiffs burden
to show that he did what his employer expected of him and that
because Zive conceded that he did not meet the $2.5 million sales goal,
he failed the second prong.
A.
Of the forty-one jurisdictions (forty states and the District of Columbia) with case
law on this subject, only eight (including New Jersey) have adopted the employers
legitimate expectations standard. Chang v. Inst. for Pub.-Private Pships, Inc.,
846 A.2d 318,
324 (D.C. 2004); Barnes v. Goodyear Tire & Rubber Co.,
48 S.W.3d 698,
708 (Tenn. 2000); Town v. Mich. Bell Tel. Co.,
568 N.W.2d 64, 69
(Mich. 1997); Haroldsen v. Omni Enter., Inc.,
901 P.2d 426, 430 (Alaska 1995);
Surry v. Cuyahoga Cmty. Coll.,
778 N.E.2d 91, 97 (Ohio Ct. App. 2002);
Koulegeorge v. Ill. Human Rights Commn,
738 N.E.2d 172, 180 (Ill. App. Ct.
2000), appeal denied,
744 N.E.2d 285 (Ill.), cert. denied,
534 U.S. 886,
122 S. Ct. 195,
151 L. Ed.2d 138 (2001); Excel Corp. v. Kan.
Human Rights Commn,
864 P.2d 220, 225 (Kan Ct. App. 1993).
The remaining
jurisdictions utilize either objective qualifications or a combination of objective qualifications and some
evidence of performance as the second prong benchmark. See, e.g.,
Guz v. Bechtel
Natl, Inc.,
8 P.3d 1089, 1113 (Cal. 2000)(stating plaintiff must show he was
performing competently in position he held); Shoppe v. Gucci Am., Inc.,
14 P.3d 1049, 1059 (Ha. 2000)(stating plaintiff must show she was qualified for position from
which she was discharged); Feges v. Perkins Rests., Inc.,
483 N.W.2d 701, 711
(Minn. 1992) (stating plaintiff must be qualified for position from which she was
discharged); Cates v. Regents of New Mexico Institute of Mining & Technology,
954 P.2d 65, 70 (N.M. 1998)(stating plaintiff must be
qualified to continue in position).
There is a similar split in the federal circuits, which, like the states,
have generally rejected the employers legitimate expectations standard. The Court in Bienkowski v.
Am. Airlines, Inc.,
851 F.2d 1503 (5th Cir. 1988) explained why:
Although the
Loeb approach has some appeal as a matter of principle, we
cannot reconcile it with the Supreme Courts attempts, in McDonnell Douglas and Burdine,
to simplify presentation of an employment discrimination case. Placing a plaintiffs qualifications in
issue at both the prima facie case and pretext stages of a termination
case is an unnecessary redundancy. Courts have struggled with the bifurcated analysis that
results from Loeb. The requirement that a plaintiff prove he is meeting his
employers reasonable expectations represents an imperfect attempt at analogy with McDonnell Douglas. .
. . Consequently, a plaintiff challenging his termination or demotion can ordinarily establish
a prima facie case of age discrimination by showing that he continued to
possess the necessary qualifications for his job at the time of the adverse
action. The lines of battle may then be drawn over the employers articulated
reason for its action and whether that reason is a pretext for age
discrimination.
[Id. at 1505-06 (citations omitted); see also Carter v. Three Springs Residential Treatment,
132 F.3d 635, 643 (11th Cir. 1998)(holding plaintiff must show only that he
had minimum requirements or qualifications for job to establish prima facie case).]
The Third Circuit adopted the same approach in Sempier v. Johnson & Higgins,
45 F.3d 724, 729 (3d Cir.), cert. denied,
515 U.S. 1159,
115 S.
Ct. 2611,
132 L. Ed.2d 854 (1995), denying an employers summary judgment
motion because plaintiff had the objective experience and education necessary to qualify as
a viable candidate for the positions he held. See also Weldon v. Kraft,
Inc.,
896 F.2d 793, 797-99 (3d Cir. 1990)(denying summary judgment to employer because
plaintiff had both the intelligence and the ability required for the position). Approaching
the issue slightly differently, in Jalil v. Avdel Corp.,
873 F.2d 701, 707
(3d Cir. 1989), cert. denied,
493 U.S. 1023,
110 S. Ct. 725,
107 L. Ed.2d 745 (1990), the Court equated performance and qualification and held
that an employees long-term performance of duties, leading to a promotion, clearly established
his qualifications for the job.
The Ninth Circuit has adopted a position midway between objectively qualified and legitimate
expectations, requiring evidence of satisfactory job performance sufficient to create a jury question.
Douglas v. Anderson,
656 F.2d 528, 533 n.5 (9th Cir. 1981). Likewise, in
Crimm v. Mo. Pac. R.R. Co., the Eighth Circuit has held that a
plaintiff need not prove compliance with all of his employers rules and regulations
in order to establish a prima facie case but only that his performance
was satisfactory, at least until the incident in question.
750 F.2d 703, 711-12,
(8th Cir. 1984). But see Miller v. Citizens Sec. Group, Inc.,
116 F.3d 343, 346 (8th Cir. 1997)(approving district courts articulation of second prong as performance
of the job at a level that met the employers legitimate expectations).
Interestingly, the Second Circuit has accepted the performing satisfactorily language but interprets it
as objectively qualified:
Thus a mere variation in terminology between "qualified for the position" and "performing
... satisfactorily" would not be significant so long as, in substance, all that
is required is that the plaintiff establish basic eligibility for the position at
issue, and not the greater showing that he satisfies the employer. The qualification
prong must not, however, be interpreted in such a way as to shift
onto the plaintiff an obligation to anticipate and disprove, in his prima facie
case, the employer's proffer of a legitimate, non-discriminatory basis for its decision.
[Slattery v. Swiss Reinsurance Am. Corp.,
248 F.3d 87, 91-92 (2d Cir.), cert.
denied,
534 U.S. 951,
122 S. Ct. 348,
151 L. Ed.2d 263
(2001).]
Although the Sixth Circuit utilizes the employers legitimate expectations as the theoretical framework
for the second prong, in Cline, supra, 206 F.
3d at 661, that court
held that the district court improperly conflated the stages of McDonnell Douglas in
finding plaintiff had failed to satisfy the prima facie standard because she did
not exemplify the moral values expected by the employer. Similarly, the First Circuit
uses the employers legitimate expectations standard but found it satisfied when the plaintiff
functioned adequately in his position for several years and the defendants did not
challenge that he lacked the necessary skills to do his job. Suarez v.
Pueblo Intl, Inc.,
229 F.3d 49, 54 (1st Cir. 2000).
The Tenth Circuit melds all approaches by allowing a plaintiff to make out
the second prong of the prima facie termination case in three distinct ways:
by showing that she continued to possess the objective qualifications she held when
she was hired, by testifying that her work was satisfactory, even when disputed
by her employer, or by evidence that she had held her position for
a significant period of time. MacDonald v. E. Wyo. Mental Health Ctr.,
941 F.2d 1115, 1121 (10th Cir. 1991).
As their language reveals, at issue in all of those cases is not
the semantic difference between objectively qualified and satisfying the employers legitimate expectations. Indeed,
many of the cases interchange those terms by setting forth a paradigm in
which performance equals qualification. Slattery, supra, 248 F.
3d at 91-92; Jalil, supra, 873
F.
2d at 707. What is at the heart of the cases is an
underlying unease over making the second prong in a termination case greater than
the second prong in a hiring case and thus casting too great a
burden on a LAD termination plaintiff. That reluctance to accept the employers legitimate
expectations test at face value springs out of the subjective nature of expectations
and the difficulty an ordinary plaintiff would encounter in anticipating and bearing his
or her burden of producing evidence of what was in the employers mind.
We dealt with that problem in Viscik, supra, to some extent, where we
held that the employers legitimate expectations is an objective and not a subjective
standard and, as the vast majority of our sister jurisdictions have, reserved the
issue of the employers subjective expectations for the pretext stage of a LAD
case. Viscik, supra, 173 N.J. at 21.
Today we address what kind of evidence will satisfy that objective standard. We
continue to believe that Loeb, supra, and Clowes, supra, sensibly recognized the need
for a distinction between the prima facie standard in a hiring case and
in a termination case. We also reaffirm the obvious that although the second
prong in a termination case necessarily requires refinement to address the differences between
failing-to-hire and firing, it is not intended to impose a heavier burden on
the plaintiff.
That said, we recognize the language of Loeb, supra, and Clowes, supra, regarding
the second prong as, at best imprecise and at worst, misleading. All that
is necessary is that the plaintiff produce evidence showing that she was actually
performing the job prior to the termination. Along with the remaining prongs of
the prima facie case, that evidence is sufficient to support the conclusion that
the plaintiffs claim of discrimination is plausible enough to warrant promotion to the
next step of the McDonnell Douglas test. That is not a heavy burden
nor was it meant to be. Indeed, the opposite conclusion would have the
effect of precluding cases in which poor performance contributed to but was not
the determinative factor in the termination decision. See Bergen Commercial Bank v. Sisler,
157 N.J. 188, 207 (1999)(stating LAD plaintiff must show that prohibited consideration played
role in decision-making process and had determinative influence).
As we have indicated, only the plaintiffs evidence should be considered. That evidence
can come from records documenting the plaintiffs longevity in the position at issue
or from testimony from the plaintiff or others that she had, in fact,
been working within the title from which she was terminated. Because performance markers
like poor evaluations are more properly debated in the second and third stages
of the burden-shifting test, they do not come into play as part of
the second prong of the prima facie case. Greenberg v. Camden County Vocational
& Technical Schools,
310 N.J. Super. 189, 202 (App. Div. 1998). Thus, even
if a plaintiff candidly acknowledges, on his own case, that some performance issues
have arisen, so long as he adduces evidence that he has, in fact,
performed in the position up to the time of termination, the slight burden
of the second prong is satisfied. Simple proof of continued employment is not
enough. That formulation of the second prong is an apt analogy to the
second prong of McDonnell Douglas; any other interpretation would ratchet up the second
prong in a termination case and upend the complex evidentiary edifice built by
McDonnell Douglas. Marzano, supra, 91 F.
3d at 510.
Contrary to Stanley Robertss contention, the refinement we have here adopted will not
result in affording a jury trial to every aggrieved plaintiff in a protected
class. As stated in Fuentes v. Perskie,
32 F.3d 759, 764 (3d Cir.
1994), if the employer proffers a non-discriminatory reason, plaintiff does not qualify for
a jury trial unless he or she can point to some evidence, direct
or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's
articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more
likely than not a motivating or determinative cause of the employer's action. That
is a significant enough burden to relieve any practical concerns over the rule
we have limned today. If it is clear that that obligation cannot be
met, defendants will prevail at summary judgment. We note, incidentally, that although a
plaintiffs acknowledgment of performance deficiencies does not factor into the second prong of
the prima facie case, it will generally lighten the employers burden on the
second phase and render more difficult plaintiffs ability to prove pretext.
B.
Applying that standard, we are satisfied that Zive established a prima facie case,
including the second prong. Concededly, he was a member of a protected class.
He had significant experience as a sales executive prior to his employment with
Stanley Roberts. He had worked for Stanley Roberts for eight years and had
been actively engaged in the management and administration of Homeworld. Importantly, until the
time of his stroke, he had never been told that his job was
at stake. He was terminated shortly after the stroke, at which time Stanley
Roberts continued Homeworld with Tom Garda, and later another employee, performing Zives functions.
See footnote 2
That is all that is required.
It is true that Zive acknowledged that he had fallen short of the
$2.5 million dollar sales goal. However, as we have said, that was not
an issue on the prima facie case. Whether Pomeranzs goal was realistic or
merely aspirational, and whether reasons other than the nature of Zives performance affected
the outcome remained for full debate in the second and third phases of
the McDonnell Douglas paradigm, otherwise as part of plaintiff's case-in-chief, or as part
of defendant's substantive defense.
. . . [M]any courts which have considered the issue have determined that,
in an employment discrimination case, it is either unnecessary or incorrect to charge
the jury on the elements and burden-shifting of the prima facie case. See
Shattuck v. Kinetic Concepts, Inc.,
49 F.3d 1106, 1110 (5th Cir. 1995) (rejecting
the employer's contention that the jury charge was erroneous because it omitted an
element of the prima facie case, concluding that "the pertinent inquiry is whether
the plaintiff has proven discrimination, not whether he has made a prima facie
case."); Gehring v. Case Corp.,
43 F.3d 340, 343 (7th Cir. 1994), cert.
denied,
515 U.S. 1159,
115 S. Ct. 2612,
132 L. Ed.2d 855
(1995) ("burden-shifting model applies to pretrial proceedings, not to the jurys evaluation of
evidence at trial) . . . .
[Baker, supra, 312 N.J. Super. at 288.]
As we have said, the prima facie case on a termination claim
plaintiff's proof by a fair preponderance of the evidence that plaintiff (1) belongs
to a protected class, (2) was performing in the position from which she
was terminated, (3) nevertheless was fired, and (4) the employer sought someone to
perform the same work after she left serves essentially a gatekeeping function. Mogull,
supra, 162 N.J. at 471. Once the plaintiff overcomes that hurdle, the prima
facie case is no longer relevant. At that point, a presumption arises that
plaintiff's termination was discriminatory. The defendant then bears the burden of rebutting that
presumption by articulating a legitimate and non-discriminatory reason for the termination, and the
plaintiff is entitled to show that the reasons advanced by the defendant are
a pretext for discrimination. Once that paradigm has been satisfied, causation and damages
are all that remain.
It bears repeating that the fact that the jury is not instructed on
the prima facie case does not remove the issue of performance from the
jurys consideration. The jury will necessarily consider an employees performance when it decides
the ultimate question of whether the employee was fired as a result of
discrimination.
VI.
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA, ZAZZALI,
ALBIN, WALLACE, and RIVERA-SOTO join in JUSTICE LONGs opinion.
SUPREME COURT OF NEW JERSEY
NO. A-82 SEPTEMBER TERM 2003
ON CERTIFICATION TO Appellate Division, Superior Court
STEWART ZIVE,
Plaintiff-Respondent,
v.
STANLEY ROBERTS, INC.,
Defendant-Appellant.
DECIDED February 24, 2005
Chief Justice Poritz PRESIDING
OPINION BY Justice Long
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST
Footnote: 1
McDonnell Douglas Corp. v. Green,
411 U.S. 792,
93 S. Ct. 1817,
36 L. Ed.2d 668 (1973).
Footnote: 2
Although Stanley Roberts challenges that the fourth prong was satisfied, the March
22, 1999 memo it circulated after Zives termination amply supports this prong on
a directed verdict inquiry.
Footnote: 3
It may be that Viscik, supra, caused this issue again to rear its
head. There, the trial judge instructed the jury regarding the prima facie case.
That issue was not raised on appeal before us and therefore was not
addressed in our opinion.