Opinion
DOCKET NO. A-0288-10T1
04-12-2013
RONALD SAVOIE, Plaintiff-Appellant, v. THE LAWRENCEVILLE SCHOOL, MICHAEL S. CARY and CATHERINE BOCZKOWSKI, Defendants-Respondents.
Alan H. Schorr argued the cause for appellant (Alan H. Schorr & Associates, P.C., attorneys; Mr. Schorr, on the brief). Thomas P. Weidner argued the cause for respondents (Windels, Marx, Lane & Mittendorf, L.L.P., attorneys; Mr. Weidner, of counsel and on the brief; Craig D. Gottilla, on the brief). Bennet D. Zurofsky argued the cause for amicus curiae National Employment Lawyers Association/New Jersey (Leslie A. Farber, and Mr. Zurofsky, attorneys; Ms. Farber and Mr. Zurofsky, on the joint brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Baxter and Nugent.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2215-03.
Alan H. Schorr argued the cause for appellant (Alan H. Schorr & Associates, P.C., attorneys; Mr. Schorr, on the brief).
Thomas P. Weidner argued the cause for respondents (Windels, Marx, Lane & Mittendorf, L.L.P., attorneys; Mr. Weidner, of counsel and on the brief; Craig D. Gottilla, on the brief).
Bennet D. Zurofsky argued the cause for amicus curiae National Employment Lawyers Association/New Jersey (Leslie A. Farber, and Mr. Zurofsky, attorneys; Ms. Farber and Mr. Zurofsky, on the joint brief). PER CURIAM
Plaintiff Ronald Savoie, a homosexual, was once a distinguished teacher at The Lawrenceville School. In 2003, he was forced to resign and thereafter the school refused to permit him to rescind his resignation. He claims that when those adverse employment actions were taken the school, its then Head Master, Michael S. Cary, and its Dean of Faculty and Associate Head Master, Catherine Boczkowski, discriminated against him based on his sexual orientation and sexual activity, thereby violating both the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -4a, and clear mandates of public policy. Defendants contend they demanded plaintiff's resignation because they reasonably believed he was sending sexually explicit pictures of activities taking place in the basement of his on-campus residence over the Internet.
We use the same terminology plaintiff used in his pleadings.
On February 7, 2011, another Appellate Division panel entered an order on defendants' motion to seal the record. The order stated: "Pending the decision of this matter by the panel that hears the merits, (which panel may determine to require some different or more limited approach), the appellate record including the briefs and appendices, shall be sealed, and the case shall be captioned as it was in the complaint, as 'R.S. v. L.S., M.C., C.B. and John Does'." Plaintiff did not request that the record be sealed. The parties referred to themselves by name during oral argument on the summary judgment motion and during oral argument on this appeal. Those proceedings were open to the public. Considering those circumstances, we see no reason to refer to the parties by initials. The record, however, shall remain sealed due to sensitive material concerning non-parties that the parties have included in the record. See R. 1:38-3, -7, and -11.
Plaintiff also alleged that defendants violated his right to privacy. That claim has been dismissed.
On appeal, plaintiff argues that defendants' motivation for forcing him to resign is a question of fact that must be decided by a jury, and the trial court erred by finding to the contrary. We agree, reverse, and remand for trial.
I.
A.
The summary judgment record discloses that plaintiff taught at The Lawrenceville School, an independent preparatory boarding school, from 1982 through June 6, 2003. During his tenure he received numerous awards, chaired a department for six years, and was promoted to Director of the Day Student Office, where, among other activities, he advised students, served as a liaison to parents, and oversaw disciplinary matters. The school's then Head Master, Michael Cary, was "grateful for the clear and constant example" plaintiff set in his dedication to teaching and thought that students, teachers, faculty, and administrators benefitted from plaintiff's wisdom. When Cary extended plaintiff's employment through the academic year beginning July 1, 2003, he wrote a personal note at the bottom of the letter: "Ron, only your friendship has meant more to me than your professionalism and judgment." Three months later, Cary forced plaintiff to resign.
Plaintiff lived in a school-owned house. His domestic partner, Richard Bierman, moved in with him in 1991 and thereafter they lived an openly gay lifestyle. During the years that followed, Bierman "encountered" what he perceived to be discrimination by three male faculty members and one administrator. He did not identify the male faculty members. He explained during his deposition that before meeting plaintiff in 1989, he "had seen privately off the [school] grounds in gay cruising areas" three men, all of whom were married, and all of whom were employed by the school. When Bierman encountered those individuals at the school, "they were very nasty . . . [and] didn't give [him] the time of day. They just totally avoided [him], looked down upon [him] with disdain." Bierman assumed they became phobic about him because they knew who he was and wanted to protect themselves.
Plaintiff and Bierman were joined in civil union in February 2007.
The administrator was Catherine Boczkowski, Dean of Faculty and Associate Head Master. In April 2000, Bierman met Boczkowski to update her on the status of plaintiff's recuperation from open heart surgery. When Bierman offered "to assist in any way possible to help make up for the time loss from [plaintiff]," Boczkowski "turned around and gave [him] the most dastardly look and said to [him], 'I do not approve of your lifestyle.'" Bierman "walked out and never saw that woman again."
Plaintiff offered no other competent evidence that either he or Bierman encountered discrimination before June 2002, when employees of the school's Buildings and Grounds (B&G) department entered his home. What two of those employees saw, and what they described to a supervisor a year later, would form the basis of both Cary's assumptions about plaintiff's sexual activity and Cary's decision to force plaintiff's resignation.
In his appeal brief, plaintiff asserts that a B&G employee, Paul Milligan, directed both a discriminatory act and a discriminatory epithet at Bierman. Plaintiff cites to nothing in the record to support his assertion. See R. 2:6-2(a)(4) (requiring parties to support factual assertions with references to the appendix and transcript). Moreover, we find no reference to the alleged event and statement in the Statement of Facts in Opposition to Summary Judgment plaintiff filed in the trial court.
In June 2 002, B&G employees responded to a report of a broken water main "outside of" plaintiff's home. They determined that the leak was on the house side of the main and that the shut-off valve for that section was in plaintiff's basement. Neither plaintiff nor Bierman was present, but because the situation was emergent no one attempted to notify them. During the course of the emergency, a B&G supervisor and eight employees entered the basement of plaintiff's home.
The employees who entered the basement gave varying reasons for doing so, such as shutting off the valve, checking the electrical box, and using a device to locate the leaking main. In contrast to the deposition testimony of those employees, Gary Skirzinski, who became the B&G Director after the incident, testified that with the exception of the employee who entered the basement to turn off the water spigot, no one else had a right to be there. And another employee, a supervisor, testified that it was unnecessary to go inside with a metal detector to fix the water main outside. He recalled nothing unusual that would have required an employee to use a pipe locator inside the house.
The employees also gave varying descriptions of the things they saw in the basement. When Paul Milligan entered the basement he saw "four pieces of apparatus hanging from the ceiling on chains," videotapes, "a computer on the shelf," a tripod without a camera, and KY brand lotion. Milligan's co-worker, Robert Smith, saw apparatus hanging from chains, a table and chairs, and some bookcases. No one saw any cameras. The B&G director, David Schorr, saw some overstuffed leather furniture and something hanging from the ceiling. According to Schorr, the other employees expressed no discomfort about the objects in the basement. He heard nothing more about the objects in plaintiff's basement, and he saw no reason to report what he observed to "management." Schorr retired later that month.
A year later, in June 2003, the new B&G Director, Skirzinski, decided to begin replacing old condensing units and water heaters in the houses on the street where plaintiff lived. When he spoke to employees about taking an inventory of the equipment in those houses, Milligan and Smith said they were uncomfortable about returning to plaintiff's home. They told Skirzinski what they had seen in the basement the previous year. According to Skirzinski, they said
there were shackles hanging from the center of the room around some sort of table that had newspaper directly under it and there were five work stations set up along a tripod, video equipment, a TV, a bed with mirrors, . . . a café table with some chairs, very dark or black draperies surrounding the room and the ceiling painted black as well as some lighting that might have suggested theater lighting[.]They also told Skirzinski they had seen latex gloves and diapers in an open closet, and video cassettes around the T.V.
Skirzinski assumed the work stations were computer work stations. He was wrong. Milligan explained during his deposition that when he referred to work stations he used the term in the sense that it might be used in a gym, that is, to designate different workout areas. He explicitly denied telling Skirzinski "that these were computer work stations." Milligan also testified that he never saw a camera. Skirzinski, who had never been inside plaintiff's home, would later tell Dean of Faculty and Associate Head Master Boczkowski that Milligan saw computer work stations and cameras in the basement.
Despite his concerns, Milligan went to plaintiff's home and then informed Skirzinski "that the stuff was still there." Within two hours, Skirzinski reported the substance of his conversations with Milligan and Smith to Boczkowski. He told her that the five work stations were computers. According to Boczkowski, Skirzinski also told her there was a tripod and video camera in plaintiff's basement.
Boczkowski, who had been an administrator at the school for many years, knew that plaintiff had taught at the school for twenty-one years, was a homosexual, and lived in campus housing with Bierman. When asked during her deposition whether she presumed plaintiff and Bierman had sexual relations, she responded, "I didn't even think along those lines one way or the other."
Boczkowski also testified that, if done in privacy, it is not a violation of school policy: for two unmarried men to live together on campus and have sexual relations; to own apparatus that assists people in having sexual intercourse; for a teacher to own or possess pornographic material that does not involve students or children; for a teacher to photograph himself or others engaging in sexual activity; or for a teacher to send through regular mail to another private, consenting individual, a photograph of himself or herself engaged in sexual activity. When asked whether it was a violation of this policy "for that same teacher to send that same photograph to another consenting adult via e-mail[,]" she responded, "[t]he circumstances of that would have to be investigated if it's using school computers and school property." She further explained that sending such photographs via e-mail might violate school policy if the e-mail "had the capability of being seen by other than the person who sent it and the person who's receiving it."
According to Boczkowski, when Skirzinski came to see her on June 4, 2003, he said that Milligan and Smith were disturbed about things they had seen in plaintiff's basement in June 2002. He said they had seen leather chairs hanging from the ceiling, adult diapers, latex gloves, sex toys, and a stash of pornographic videos. They also said "that there were stations set up and chairs in a semicircle with a screen in front." Skirzinski told Boczkowski that Milligan and Smith had seen a camera on a tripod.
Concerned that something egregious may be occurring in plaintiff's basement, Boczkowski arranged to meet the following morning with Cary and the school's Associate Head Master and Chief Financial Officer (CFO). At that meeting, Boczkowski explained that Skirzinski "had concerns about the set up" at plaintiff's house. She told them what Milligan and Smith told Skirzinski they had seen in plaintiff's basement a year earlier. Cary and the CFO were visibly surprised and said they would have to meet with plaintiff the following day.
Although Cary believed that "just the very existence of this room in [plaintiff's] basement" was a very serious matter, he concluded that "fisting," which he understood to be a homosexual practice, and group sex were occurring in plaintiff's basement; and that the activities were "not private." He decided that the matter demanded investigation, not merely a consultation. Before meeting with plaintiff, Cary discussed the matter with three members of the school's Board of Trustees. One of the trustees, who was also a lawyer, told Cary the school
had to be very careful . . . [to avoid being] overly intrusive into [plaintiff's] personal life, that there were limits in terms of what [they] could or should ask him, that [they] ought to determine whether [they] had any reason to believe . . .The same trustee also advised Cary that it did not
students were involved, and in that regard [believed they] ought to talk to . . . the school physician and counselor.
matter in the eventual result whether [plaintiff] was gay or whether he was heterosexual, [and] that [the school] ought to apply the same standard that [it] would apply to a heterosexual . . . and that [the school] ought to try to determine whether the conduct went beyond the bounds of private conduct in the basement . . . or whether it went out either onto the Internet or in a more public forum.
The trustees believed plaintiff's conduct posed a "risk to the name and reputation of the school," and that plaintiff's employment should be terminated if he had transmitted sexual images over the Internet. Cary was to make the decision whether to terminate plaintiff.
Cary asked Boczkowski to have Skirzinski confirm that Milligan and Smith were sure that what they reported was what they saw. According to Cary, he was later told that Skirzinski had confirmed what Milligan and Smith reported, but Cary did not know what he did to confirm it.
Cary's priorities were to determine whether minors had been involved and whether plaintiff's activities were made public. To make those determinations, he spoke with the school physician and with the Director of Counseling. They had no information that suggested students knew about plaintiff's basement. Cary later admitted that he had never received any complaints from any of plaintiff's neighbors. He took no other steps to determine if the allegations were true.
On June 6, 2003, two days after Milligan and Smith told Skirzinski about their 2002 observations of objects in plaintiff's basement, Cary and Boczkowski met with plaintiff. According to plaintiff, he responded to Cary's questions by acknowledging that he had sex in his basement, owned a camera, and had taken sexual images, but emphatically denied that students or other faculty members had participated in any sexual activity. When Cary asked if he had ever transmitted images "out there," plaintiff did not answer because he did not understand what the phrase "out there" meant.
Boczkowski's version of the meeting differed somewhat from plaintiff's version. She recalled Cary saying it had come to his attention from B&G "that the basement of [plaintiff's] house was set up in such a way that sex acts were taking place down there"; and describing the apparatus, chairs, and other things identified by Skirzinski. In response, plaintiff admitted the basement was set up for sex acts, denied students or faculty were involved, and insisted that "what he did with his partner in the privacy of his basement was his business and not anybody else's." When Cary asked plaintiff, "can you look me straight in the eye and tell me that you did not send images out on the Internet of these sex acts," plaintiff replied, "no, I cannot."
Cary made the following notes of the meeting:
Meeting with [plaintiff] 1:45 Friday, June 6th [Boczkowski] present.According to Cary, there was silence after plaintiff signed the resignation. He remembered plaintiff apologizing before leaving.
. . . .
Told [plaintiff] that report had come to me that basement of his townhouse arranged for the filming of sex acts and transmission of films over Internet. Asked if true. [Plaintiff:] no, not true. No films. Basement not arranged that way.
. . . .
Responded that it would be necessary for me to confirm that [Boczkowski], that is, [Boczkowski] and I would accompany him to his townhouse, see the basement, confiscate computers and deliver them for a hard drive or file search. [Plaintiff:] no computers in basement. He would take us.
. . . .
I asked [plaintiff] how or why such a specific report would have come to me. Then repeated the details of that report; sex apparatus, ([plaintiff] at that point acknowledged apparatus and said it was a sling), rubber gloves, adult diapers, video cameras, four or five computers.
. . . .
I then asked are you saying that no sex acts have been performed? No [was plaintiff's answer].
. . . .
No images of any kind produced? [Plaintiff:] No, images were produced.
. . . .
Images transmitted in any way beyond the premises of the townhouse? [Plaintiff:] Yes ... [v]ia the Internet.
. . . .
Any members of the school community, again, the were is understood, involved in any way in these activities? [Plaintiff] responded no students or any minors ever involved at any time.
. . . .
[Plaintiff] asked where I was drawing the line [in] respect [to] his privacy . . . [and] I responded that I was not policing faculty - - that's FAC . . . faculty bedrooms but that this was not a bedroom but, rather, something quite different . . . . Filming sex acts in any form then transmitting those to others via the Internet was profoundly incompatible with the standards of professionalism for the [school] faculty. Parents who entrust us with their children would react severely to the knowledge of this. My obligation to the welfare of the school community compelled me to ask for his resignation.
. . . .
[Plaintiff:] Do I have a choice? No. Resign or be dismissed. [Plaintiff was] collected, but emotional.
. . . .
[Plaintiff:] what if you knew of other faculty who visited certain websites or had similar materials stored on computers? I
responded that I would take each case as I became aware of it.
When deposed, Cary acknowledged that he did not ask plaintiff about the nature of the images plaintiff had transmitted, whether the people were identifiable, or with whom and in what manner plaintiff shared them. Cary also acknowledged he never asked if plaintiff had thrown "sex parties" in his basement. Nevertheless, he felt he "had good reason to believe that this was not, in fact, the activity strictly of two consenting adults and committed partners . . . ." Cary testified that even if plaintiff had not transmitted any images, he likely would have terminated plaintiff's employment because "word of [plaintiff's] sex activity was already out in the school community via the [B&G] staff."
At the conclusion of the meeting, Cary produced a pre-prepared resignation letter and told plaintiff that he would be terminated if he did not resign. According to plaintiff, when he asked why he was being fired, Cary said that plaintiff had "crossed the line" by transmitting images, and that he could no longer be entrusted with students. Plaintiff signed the letter and left.
The next day, plaintiff sent a letter withdrawing his resignation. Three days later, on June 10, Boczkowski rejected his attempt to rescind the resignation letter. She wrote:
You admitted to Michael Cary and me that you videotaped sex acts in the basement of your housing at Lawrenceville and sent pictures of these acts over the [I]nternet. As you know, Lawrenceville requires, among other responsibilities, that you "set the highest possible standards" and that faculty set a "standard in their personal as well as professional lives that is educative and worthy of imitation." Your admitted conduct does not meet that test.Boczkowski also insisted that plaintiff preserve "the four or five computers, two video cameras, any tapes, the leather chair, latex gloves, adult diapers, and sex toys," and make the computers available for inspection. She later admitted she was not sure where she had obtained the information that plaintiff had two video cameras in his basement. Plaintiff replied the same day, stating there were no computers or cameras in his basement, and denying Boczkowski's request to inspect his personal computer.
B.
Plaintiff filed his complaint on August 27, 2003, and thereafter amended it twice. In his second amended complaint, he alleged that defendants had: violated the LAD by terminating him because of his sexual orientation (count one) and by applying the school's policies in a discriminatory manner (count two); wrongfully terminated him in violation of public policy (count three); and invaded his right to privacy (count four).
Discovery was contentious. The parties' discovery disputes were the subject of extensive motion practice, more than ten court orders, and an interlocutory appeal.
To support his contention that the school had applied its "we teach by what we are" policy in a discriminatory manner, plaintiff attempted to discover disciplinary files of present and former faculty members. He "discovered" that a high ranking administrator had been warned by two trustees that he would be discharged if he did not end an adulterous affair. The administrator temporarily ended the affair, and then resumed it. When Boczkowski learned the administrator had resumed the affair, she did nothing. The administrator was never disciplined. During his deposition, the administrator admitted that his conduct violated school policy.
Plaintiff also discovered information about misconduct of faculty members over many years. For example, one had made offensive comments to a student resulting in a lawsuit, and also had developed a computer program to hack into the faculty e-mail system. His sanction was that he was required to meet regularly with Boczkowski. Two others, a homosexual and a heterosexual, who were arrested for driving under the influence of alcohol, were required to receive counseling. Another, who had directed two angry outbursts at students, was warned that he would be dismissed for violating the school's "we teach by what we are" policy if the situation recurred. He was directed to meet with the school psychiatrist weekly. When he subsequently lifted a student from his chair and held the student by the back of his neck, he was not dismissed.
Plaintiff also learned that another teacher had inappropriately intimate conversations with a female student and had committed acts of domestic violence against his girlfriend. He also had used the school's video equipment to film himself masturbating, and then mailed the videotape off-campus. However, school administrators were unaware of the videotape until, during the course of his lawsuit, plaintiff contacted the teacher's former girlfriend to obtain it.
Defendants aggressively pursued the discovery of personal information about plaintiff and Bierman. They sought to discover plaintiff's financial records, including bank statements, credit card information and income tax returns; electronic data stored on plaintiff and Bierman's personal computer; and communications between plaintiff and Bierman. As discovery progressed, defendants alleged that either plaintiff or Bierman had deliberately destroyed and altered their computer's data, including certain online profiles. According to defendants, that spoliated evidence would have corroborated their claim that plaintiff sent pictures of himself engaging in sex acts in his basement over the Internet.
Defendants' computer experts reported that plaintiff and Bierman had intentionally altered their computer by deleting images, "overwriting" the hard-drive with new data and multiple operating systems, and "planting" close-up images of sex acts to give the false impression that no personally identifiable pictures had ever been taken. One expert recovered several images purportedly depicting plaintiff and Bierman engaging in sex acts; however, the parties disagree as to whether the people depicted in those images are identifiable. The expert made no specific findings as to what images, if any, had actually been transmitted publicly.
The same expert recovered instant messages (IMs) between plaintiff and an unidentified person from another state in which they discussed meeting at plaintiff's home to have sex. The content of the IMs suggests plaintiff shared images with the individual, but it is not clear what the images depicted. The content of another computer "document" contains plaintiff's admission that he had previously used anonymous AOL screen names to transmit faceless still images to other anonymous AOL members.
Another defense expert claimed to have recovered several e-mails with attached images of sex acts. Because of poor image quality, however, it was not possible to determine what those images depicted. That expert's report did not clearly establish who sent the e-mails, or whether they had been received or sent from plaintiff's computer.
Plaintiff maintained that the computer belonged to Bierman, and that Bierman was the "the only person who ever took or kept x-rated pictures, and [that] they were only of himself." Plaintiff admitted that Bierman had installed a new operating system on the computer, but only because the computer would not "boot up." He said he also "may have sent one or two pictures via private e-mail to a friend[,]" but insisted that those communications did not impact his ability to teach and could not have harmed the school's reputation. Plaintiff also acknowledged sending explicit photos to an out-of-state contact who wanted to visit plaintiff, but claimed that all of the pictures were "headless and unidentifiable." Plaintiff retained his own computer expert to corroborate his testimony about the computer.
Following the completion of considerable discovery, defendants moved for summary judgment and for sanctions. They contended the evidence that they forced plaintiff to resign for legitimate, non-discriminatory reasons was overwhelming if not irrefutable; and that by making his sexual activities public, plaintiff jeopardized the school's reputation and violated its "we teach by what we are" policy. Defendants maintained that plaintiff's sexual orientation played no part in Cary's unbiased decision, as evidenced by plaintiff living an openly gay lifestyle while enjoying both a successful career and a positive relationship with Cary. Defendants disputed plaintiff's allegations that he was disciplined more harshly than heterosexual teachers, arguing, among other things, that his attempted comparison of his situation to the discipline of other teachers was invalid and unsound.
In his opposition, plaintiff contended that defendants' legitimate reasons were merely pretextual, as evidenced by Cary's failure to investigate the hearsay allegations before directing him to sign a pre-prepared resignation letter. Plaintiff emphasized that he and Bierman had previously been the target of discriminatory remarks by Milligan and Boczkowski. Plaintiff also challenged defendants' right to rely on any evidence that defendants developed during discovery, because such evidence was unknown by Cary when he decided to terminate plaintiff's employment.
The trial court granted defendants' summary judgment motion. The court framed the dispositive question as whether "Carey [sic] had a good faith belief void of ill will towards homosexuality at the moment of his confrontation with [plaintiff] that the reports were credible, that the basement served as a photograph or film studio for sexual activity and [that] there were Internet transmissions of that activity." The court concluded that Cary's assumptions ultimately proved to be incorrect, but plaintiff had not produced evidence that Cary's assumptions were based on a discriminatory animus against plaintiff.
The court rejected plaintiff's assertion that heterosexual employees had been disciplined more leniently than he, and found that the acts of those other employees were significantly different from plaintiff's. As to Milligan and Boczkowski's anti-homosexual comments, the court ruled that such "stray remarks" were "insufficient to establish a hostile environment which permeated . . . Carey's [sic] decision." The court dismissed plaintiff's LAD claim and explained its reasoning:
In examining the totality of the record before this Court, there are insufficient
facts that, even in the light most favorable to [plaintiff,] . . . show he suffered adverse employment action because he is homosexual and . . . engaged in homosexual sex activity. There's no concrete evidence of any disparity of treatment of homosexuals by the defendants.
There is no showing that there was [sic] no employment opportunities or mistreatment of homosexuals at [t]he . . . School. In fact, the unequivocal evidence is that [plaintiff] was well-recognized, honored, held in high esteem at the school with the full awareness of homosexuality and on-campus living arrangements with his homosexual partner for [fourteen] years prior to his departure.
This is further reinforced by . . . the relationship between [plaintiff] and Carey [sic], the latter being the person who decided to demand his resignation. The record reveals that Carey [sic] had a deep friendship with [plaintiff] and held him in high respect knowing his sexual preferences. This belies any contention that [plaintiff's] homosexuality played a part in the employment decision, absent direct or circumstantial evidence to the contrary. Consequently, summary judgment dismissing [plaintiff's] LAD claims [is] granted.
The court denied summary judgment on count four, because it found material facts in dispute as to whether school employees intentionally invaded plaintiff's privacy. The parties later stipulated to the dismissal of that count of the complaint. The court also denied defendants' request for sanctions, finding insufficient evidence that plaintiff had intentionally or negligently spoliated evidence.
Plaintiff appealed. Thereafter, we granted the motion to participate as amicus curiae by the National Employment Lawyers Association/New Jersey (NELA/NJ).
II.
We first address plaintiff's contention that the trial court erred by granting summary judgment to defendants and dismissing the first two counts of his complaint alleging violations of the LAD. A trial court must grant a summary judgment motion if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529-30 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c). If the evidence submitted on the motion "'is so one-sided that one party must prevail as a matter of law,' the trial court should not hesitate to grant summary judgment." Brill, supra, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).
When a party appeals from a trial court order granting or denying a summary judgment motion, we "'employ the same standard [of review] that governs the trial court.'" Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010) (quoting Busciglio v. DellaFave, 366 N.J. Super. 135, 139 (App. Div. 2004)). Thus, we must determine whether there was a genuine issue of material fact, and if not, whether the trial court's ruling on the law was correct. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We review legal conclusions de novo. Henry, supra, 204 N.J. at 330.
As already noted, the first two counts of plaintiff's complaint allege causes of action under the LAD. The LAD provides that it shall be an unlawful employment practice, or an unlawful discrimination,
[f]or an employer, because of the race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait of any individual, ... to refuse to hire or employ or to bar or to discharge or require to retire, unless justified by lawful considerations other than age, from employment such individual or
to discriminate against such individual in compensation or in terms, conditions or privileges of employment[.]
[N.J.S.A. 10:5-12(a).]
In an employment discrimination lawsuit alleging a violation of the LAD, an employee-plaintiff must "show that the prohibited consideration . . . played a role in the decision making process and that it had a determinative influence on the outcome of that process." Bergen Commer. Bank v. Sisler, 157 N.J. 188, 207 (1999) (quoting Maiorino v. Schering-Plough Corp., 302 N.J. Super. 323, 344 (App. Div.), certif. denied, 152 N.J. 189 (1997)). The plaintiff may prove such employment discrimination under either a mixed-motive or pretext theory.
Historically, in mixed-motive cases, a plaintiff was required to offer direct evidence of the employer's discrimination. "If the employee does produce direct evidence of discriminatory animus, the employer must then produce evidence sufficient to show that it would have made the same decision if illegal bias had played no role in the employment decision." Fleming v. Corr. Healthcare Solutions, 164 N.J. 90, 100 (2000) (quoting Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1096 n. 4 (3d Cir. 1995)).
In Desert Palace, Inc. v. Costa, 539 U.S. 90, 92, 99, 123 S. Ct. 2148, 2150, 2154, 156 L. Ed. 2d 84, 90, 94 (2003), the Supreme Court held that a plaintiff need not present direct evidence of discrimination in order to obtain a mixed-motive jury instruction under Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, but could prove by either direct or circumstantial evidence that an impermissible or discriminatory reason was a motivating factor for the adverse employment decision.
Here, plaintiff did not advance a mixed-motive theory, but rather relied upon a pretext theory. Additionally, the trial court analyzed plaintiff's proofs under a pretext theory when it decided defendants' summary judgment motion. We review pretext cases under the construct developed by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668, 677 (1973).
That framework requires the plaintiff to demonstrate a prima facie case of discrimination, following which the burden shifts to the defendant to demonstrate a legitimate business reason for the employment decision. If the employer does so, the burden shifts again and the plaintiff is required to demonstrate that the reason proffered is a mere pretext for discrimination.
[Victor v. State, 203 N.J. 383, 408 n.9 (2010).]
To establish a prima facie case of discriminatory discharge, a plaintiff must demonstrate: "(1) that plaintiff is in a protected class; (2) that plaintiff was otherwise qualified and performing the essential functions of the job; (3) that plaintiff was terminated; and (4) that the employer thereafter sought similarly qualified individuals for that job." Id. at 409. The parties do not dispute that plaintiff established a prima facie case.
Plaintiff argues that after correctly determining he had established a prima facie case, the trial court erroneously concluded defendants had proffered a legitimate business reason for their decision to either accept his resignation or terminate his employment. We disagree. Defendants proffered as their reason for forcing plaintiff to resign their belief that he was sending sexually explicit images taken in his basement over the Internet. That reason may have justified their decision. Whether the reason was believable was not relevant until the burden shifted to plaintiff to demonstrate that it was pretextual. See Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S. Ct. 1089, 1095, 67 L. Ed. 2d 207, 217 (1981) (explaining that a defendant need not persuade the court that it was actually motivated by the proffered reasons, but must produce through admissible evidence an explanation that would be legally sufficient to justify a judgment in its favor); Kelly v. Bally's Grand, Inc., 285 N.J. Super. 422, 430-431 (App. Div. 1995) (explaining that once a plaintiff establishes a prima facie case of discrimination, a defendant must articulate a facially legitimate decision for its employment decision).
The parties dispute whether plaintiff sent images to the private e-mail address of one or more consenting adults, or to a "public" Internet forum. They also dispute whether the images were identifiable. The evidence on these issues is far from clear.
Generally, an employer may discharge an at-will employee for a good or bad reason, or no reason at all, provided the discharge is not motivated by intentional discrimination. Maiorino, supra, 302 N.J. Super. at 345. "[T]he courts have no business telling [employers] . . . how to make personnel decisions, which may be objectively or subjectively based." Id. at 346 (internal quotation marks and citations omitted). Even when an employee has an employment contract, unless otherwise stated in the contract, the employee is "subject to a duty not to conduct himself with such impropriety that he brings disrepute upon the principal or upon the business in which he is engaged." McGarry v. St. Anthony of Padua Roman Catholic Church, 307 N.J. Super. 525, 534 (App. Div. 1998)(quoting Restatement (Second) of Agency, §380 (1957)). "When the duty of good conduct is violated by an employee, the employer has good cause to terminate a contract[.]" Ibid.
According to their proffer, defendants believed plaintiff had engaged in inappropriate conduct that jeopardized the school's reputation. Whether their belief was subjective, objective, or a combination of both, the belief satisfied their burden of articulating what may be a facially legitimate business reason for forcing plaintiff to resign.
Plaintiff having demonstrated a prima facie case of discrimination, and defendants having articulated what may be a facially legitimate business reason for their employment decision, the burden shifted back to plaintiff to demonstrate that the reason proffered was a mere pretext for discrimination. To carry that burden, plaintiff was required to raise a genuine factual dispute as to whether defendants' true reason for defendants' employment decision was their "resonabl[e] belie[f] that [his] conduct was not purely private because he admitted sending sexually explicit images taken in his basement over the Internet," or whether that stated reason was merely a pretext for discrimination. See Bumbaca v. Twp. of Edison, 37 3 N.J. Super. 239, 251 (App. Div. 2004), certif. denied, 182 N.J. 630 (2005).
To raise a genuine factual dispute as to whether an employer's facially legitimate employment action is a pretext for discrimination, a plaintiff "need only point to sufficient evidence to support an inference that the employer did not act for its proffered non-discriminatory reasons." Kelly, supra, 285 N.J. Super. at 431-432. A plaintiff cannot however,
simply show that the employer's decision was wrong or mistaken, since the factual disputeNevertheless, "a decision foolish, imprudent, or incompetent by comparison to the employer's usual mode of operation can render it implausible, inconsistent, contradictory, or weak." Id. at 765, n.8.
at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent . . . [;] [r]ather, the non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them "unworthy of credence," . . . and hence infer "that the employer did not act for [the asserted] non-discriminatory reasons."
[Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994) (alteration in original)(internal citations omitted).]
A plaintiff may raise a genuine factual dispute as to pretext by producing evidence that similarly situated employees were treated differently. Jason v. Showboat Hotel & Casino, 329 N.J. Super. 295, 304 (App. Div. 2000). In employment discipline cases, the positions and the infractions of the plaintiff and similarly situated employees need not be identical to permit an inference of discriminatory intent from disparate treatment. See id. at 305. "[T]here is no bright-line rule for determining who is a 'similarly situated,' employee[;]" rather, the trial judge must determine what criteria is most relevant after making a sensitive appraisal of the facts. Ibid.
A plaintiff may also raise a genuine factual dispute as to pretext by producing evidence that certain employees have made discriminatory remarks directed toward a person or persons protected by the LAD. "[C]omments by individuals outside the decision making process are considered stray remarks, which on their own are inadequate to support an inference of discrimination." Grasso v. W. N.Y. Bd. of Educ., 364 N.J. Super. 109, 118 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). However, "discriminatory comments made by one with input into the decision-making process are not stray remarks." Ibid.
With those principles in mind, we turn to the facts before us. It bears repeating that because plaintiff is the party opposing summary judgment, we must view these facts and reasonable inferences that can be deduced from them in the light most favorable to him. See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445 (2007). Viewed in that light, the facts developed by plaintiff create a triable issue as to whether defendants' stated reason for forcing plaintiff's resignation was legitimate and whether it was a pretext for discrimination based on his sexual orientation.
Significantly, the parties sharply dispute the content of the dialogue that occurred at the June 6 meeting. Although Cary and Boczkowski claim that plaintiff admitted that he transmitted sexually explicit images over the Internet, plaintiff denies making any such admission. Plaintiff claims that Cary merely asked if he had sent images "out there," to which he did not respond. And though plaintiff admitted that there were pictures of him having sex with his partner, there was evidence in the record that taking pictures of one having sex with a partner did not, without more, violate school policy.
Evident from Boczkowski's June 10 letter is her belief, and by implication Cary's as well, that plaintiff had "four or five computers" and "two video cameras" that he had used to transmit sexual acts he had recorded. That Cary shared that belief is evidenced by his preparing plaintiff's resignation letter in advance of the June 6 meeting. Yet none of the B&G workers had seen video cameras or computer work stations in plaintiff's basement. Stated differently, Cary and Boczkowski were relying on innuendo and twice removed hearsay. The only investigation Cary had personally conducted was his interview with the school physician and school counselor, both of whom had heard nothing negative about plaintiff. A jury could conclude that Boczkowski and Cary precipitously credited innuendo and hearsay, without an adequate investigation, over the protestations of a long-term, distinguished faculty member with an unblemished record; and infer from that evidence that Cary would not have reached the same conclusions nor reacted with such alarm had plaintiff been heterosexual.
A jury could also infer Boczkowski's prejudice from her comment about disapproving of Bierman's, and by implication plaintiff's, lifestyle. Additionally, she had treated a high ranking administrator differently from the way she treated plaintiff. Boczkowski had previously withheld from the school's trustees information that the administrator had resumed an affair that could adversely affect the school's reputation, knowing that such conduct was a dischargeable offense, because two trustees had said as much. And a jury could readily infer that Boczkowski played a significant role in the events that led to plaintiff's discharge. She was the Dean of Faculty and Associate Head Master; she had previously participated in the discipline of faculty members; she played a key role in transmitting information between Skirzinski and Cary about Milligan's statements; she attended and participated in the June 6 meeting; and she signed the letter rejecting plaintiff's rescission of his resignation.
To be sure, there is significant evidence and there are numerous inferences that both contradict plaintiff's evidence and support defendants' arguments that they acted reasonably, in the best interest of the school, and for entirely non-discriminatory reasons. But disputed material facts and credibility issues must be resolved by a jury, not a judge on a summary judgment motion. Brill, supra, 142 N.J. at 540.
Defendants argue that Boczkowski's comment to Bierman was a "stray" comment and the trial court correctly decided that it was not evidential. "Discriminatory comments made by one with input into the decision-making process are not stray remarks." Grasso, supra, 364 N.J. Super. at 118.
Defendants also argue that the misconduct of other faculty members is not sufficiently similar to that of plaintiff to permit an inference of discriminatory intent based on different discipline. In the case before us, Boczkowski reported the hearsay about plaintiff's conduct and played a significant role in the process leading to his forced resignation. In contrast, she did not report an administrator's misconduct, a dischargeable offense. Considering Boczkowski's upper-level administrative position, her comment about disapproving Bierman's lifestyle, and the role she played in the events resulting in plaintiff's discharge, her failure to take any action when the administrator resumed his affair may be considered by the jury, whether they accept it or reject it, as inferential of discriminatory intent.
We can discern no sufficiently similar criteria between the driving offenses and plaintiff's alleged conduct. The judge who presides over the trial must make a fact-sensitive analysis to determine whether other incidents of faculty misconduct and discipline are sufficiently similar to the alleged misconduct of plaintiff to admit such evidence at trial, and, if so, whether countervailing factors such as the risk of undue prejudice substantially outweigh the probative value of such evidence. See N.J.R.E. 403.
Lastly, defendants argue that sexually graphic images and e-mails they obtained from plaintiff's or Bierman's computer during discovery corroborate their non-discriminatory reason for forcing plaintiff to resign, and establish a spoliation case which serves as an independent basis for dismissing plaintiff's complaint. We fail to discern the relevance of the after-acquired evidence to the summary judgment motion. As we have previously explained, defendant articulated what may have been a legitimate, non-discriminatory reason for its employment decision. Under the McDonnell Douglas summary judgment construct, corroboration was unnecessary. Defendants' spoliation argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
III.
Plaintiff next contends the trial court erred by dismissing the third count of his complaint, which alleges that, in violation of public policy, defendants forced him to resign for having homosexual sex in his home and for engaging in constitutionally protected speech. In its decision granting summary judgment to defendants, the trial court stated that "if the defendants' actions were due to the fact that [plaintiff's] sexual activity was homosexual as opposed to heterosexual, this is a clear violation of public policy." The court found implausible, however, "that Cary as well as the other defendants, thought that prior to the summer of 2002, [plaintiff] and Bierman were not having sex during the decade plus time they lived on campus[,]" and reasoned, "[t]his further supports the conclusion that engaging in homosexual sex activity was not the reason for demanding [plaintiff's] resignation."
The court appears to have overlooked Boczkowski's testimony, when asked whether she presumed plaintiff and Bierman had sexual relations, that "I didn't even think along those lines one way or the other." A reasonable juror could conclude from that testimony that after receiving accounts of the objects in plaintiff's basement, Cary and Boczkowski for the first time had to consider the details of homosexual sex. In any event, for the reasons we have previously explained, if jurors believe plaintiff's version of the facts, they could infer defendants' decision was motivated by prejudice against plaintiff's sexual orientation and sexual practices.
The trial court dismissed the third count of plaintiff's complaint for the additional reason that it duplicated his LAD claims. However, as the Supreme Court has noted, "the existence of a unique, strong, and effective statutory cause of action under the LAD itself dispels the inference that it is the functional equivalent of a Pierce-type action[,]" Shaner v. Horizon Bancorp, 116 N.J. 433, 453 (1989), superceded by N.J.S.A. 10:5-13 on other grounds as recognized in Montells v. Haynes, 133 N.J. 282, 287 (1993); and that "a plaintiff in appropriate circumstances could pursue an independent action, such as in Pierce, to vindicate particular interests in addition to or aside from those sought to be protected by a LAD action." Id. at 454.
Based on the record before us, the Pierce claim appears to involve the manner and detail of plaintiff's conduct, while the LAD claims appear to involve his status as a homosexual. Whether that difference has any significance in terms of liability or damages is a question that must be resolved after a fact-sensitive analysis of a more fully developed record.
Plaintiff appears to argue for the first time on appeal that defendants violated his right to free speech by taking adverse action against him because he "communicated" to consenting adults over the Internet. As this issue was not properly raised before the trial court, we decline to reach it. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
IV.
The remaining issues raised by the parties are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following. Plaintiff and the NELA/NJ urge us to consider certain rulings the trial court made during discovery. Specifically, they contend the trial court erred and exacerbated the harm plaintiff suffered as a result of defendants' discrimination by permitting defendants to repeatedly access his computer and by compelling him to permit discovery of his financial records, including tax returns, bank records, and credit card information. Defendants counter that they not only engaged in appropriate discovery based on plaintiff's liability and damage claims, but actually obtained through the discovery process, evidence that refutes some of the damage claims.
We are sensitive to the fact that discovery abuses can occur in discrimination cases. Indeed, the United States Supreme Court has expressed its not insubstantial concern over such possible practices. See McKennon v. Nashville Banner Publ. Co., 513 U.S. 352, 362, 115 S. Ct. 879, 886, 130 L. Ed. 2d 852, 864 (1995). But because plaintiff has not provided the relevant documents the parties submitted to the trial court and has not specifically addressed the merits of each discovery issue in his brief, we cannot conduct a meaningful review of the numerous discovery rulings. See R. 2:6-1 (requiring an appellant to submit as part of the appendix parts of the record "essential to the proper consideration of the issues, including such parts as the appellant should reasonably assume will be relied upon by the respondent in meeting the issues raised"); Soc'y Hill Condo. Ass'n v. Soc'y Hill Ass'n, Inc., 347 N.J. Super. 163, 177-78 (App. Div. 2002) (failure to provide necessary documents rendered review on the merits impossible).
Additionally, plaintiff asserts that the trial court refused to recognize "spousal privilege" and requests that we recognize "the spousal privilege applies equally to homosexuals in civil unions as it does for married heterosexuals." The record belies plaintiff's assertion that the trial court refused to consider the privilege. Moreover, plaintiff has not identified, discussed with specificity, or included in his appendix the record pertaining to, specific instances in which he invoked the privilege. We nevertheless point out that N.J.S.A. 2A:84A-22 and N.J.R.E. 509 generally protect any person from having to "disclose any communication made in confidence between such person and his or her spouse[.]" The comment on N.J.R.E. 509 states that "it appears that this section should be read to include parties to a civil union, consistent with Lewis v. Harris, 188 N.J. 415 (2006) and the intent of [The Civil Union Act, N.J.S.A. 37:1-28 to -36] is to provide such parties with the same benefits and protections as spouses in a marriage." Biunno, Weissbard, and Zegas, Current N.J. Rules of Evidence, comment on N.J.R.E. 509 (2012). The comment further suggests that where the term "spouse" appears, the rule should be read to include parties to a civil union. Ibid. We have no reason to believe the judge who presides over the trial of this action will rule otherwise.
We also have an inadequate record of the proceedings below to properly evaluate plaintiff's claim that the trial court extended the attorney-client privilege to employees of defendant beyond its control group.
NELA/NJ additionally argues that the trial court erroneously failed to draw any inferences from the "cat's paw" of Gary Skirzinski's reports to Boczkowski about the "exaggerated hearsay account of what some of the workers that he had supervised had seen a year earlier in [p]laintiff's basement." This issue was not raised below. For that reason, we decline to address it. See Nieder, supra, 62 N.J. at 234.
See Staub v. Proctor Hosp., ___ U.S. ___, ___ n.1, 131 S. Ct. 1186, 1190, n. 1, 131 L.Ed. 2d 144, 151 n.1 (2011) ("The term 'cat's paw' derives from a fable conceived by Aesop, put into verse by La Fontaine in 1679, and injected into United States employment discrimination law by Posner in 1990 . . .[;] [i]n the fable, a monkey induces a cat by flattery to extract roasting chestnuts from the fire. After the cat has done so, burning its paws in the process, the monkey makes off with the chestnuts and leaves the cat with nothing. A coda to the fable . . . observes that the cat is similar to princes who, flattered by the king, perform services on the king's behalf and receive no reward.")
--------
Reversed and remanded for trial.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION