Gallo v. Salesian Soc., Inc.

• Decision Date: 17 May 1996
• Citation: 290 N.J.Super. 616,676 A.2d 580
• Parties: , 75 Fair Empl.Prac.Cas. (BNA) 1475, 109 Ed. Law Rep. 1286 Eileen GALLO, Plaintiff-Appellant, Cross-Respondent, v. SALESIAN SOCIETY, INC., t/a Don Bosco High School, and James M. Scanlon, Defendants-Respondents, Cross-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 616

290 N.J.Super. 616

676 A.2d 580, 75 Fair Empl.Prac.Cas. (BNA) 1475,

109 Ed. Law Rep. 1286

Eileen GALLO, Plaintiff-Appellant, Cross-Respondent, v. SALESIAN SOCIETY, INC., t/a Don Bosco High School, and James M. Scanlon, Defendants-Respondents, Cross-Appellants.

Superior Court of New Jersey Appellate Division.

Argued April 3, 1996.

Decided May 17, 1996.

Kenneth Gallo, Ridgewood, argued the cause for appellants (Gallo and Gallo, attorneys).

Anand Agneshwar, argued the cause for respondents (McCarter & English, attorneys, Newark; Rosemary Alito, Newark, of counsel).

William H. Lorentz, Deputy Attorney General, argued the cause for amicus curiae Division on Civil Rights (Deborah T. Poritz, Attorney General of New Jersey, attorney; Alexander P. Waugh, Jr., Executive Assistant Attorney General, and Andrea M. Silkowitz, Assistant Attorney General, of counsel).

Nadine Taub, Newark, argued the cause for amici curiae The American Civil Liberties Union of New Jersey and The Women's Rights Litigation Clinic.

Before Judges KING, LANDAU and HUMPHREYS.

The opinion of the court was delivered by

KING, P.J.A.D.

I.

Plaintiff Eileen Gallo was employed by defendant Salesian Society, Inc. to teach English and history at Don Bosco High School, a private, all-boys parochial school in Ramsey, owned and operated by the defendant Society since 1915. Defendant James M. Scanlon was the school's principal. After plaintiff's employment was terminated in 1991 she sued for damages for age and sex discrimination. The jury found in her favor and awarded $24,000 in stipulated economic damages but nothing for emotional distress.

Plaintiff appeals from the amount of her attorney's fee award, $48,750, claiming that the judge arbitrarily reduced the hours expended, improperly considered the low verdict, and erred in refusing to increase the fee to compensate for its contingent nature. Plaintiff also claims error in denial of costs and prejudgment interest.

Defendants cross-appeal from the denial of their motions to dismiss the claim on First Amendment grounds. They claim that enforcement of the Law Against Discrimination against them violates their First Amendment rights under the Establishment and Free Exercise Clauses of the United States Constitution. Defendants also argue that N.J.S.A. 18A:6-6, allowing single-sex schools to have single-sex faculties, permits a gender preference, and that plaintiff's failure to pursue her contractual grievance procedure requires dismissal of her claim.

We find no error and affirm on the appeal and cross-appeal, except on the plaintiff's claim for costs and prejudgment interest. On those points plaintiff is correct and we reverse.

II.

Plaintiff filed this complaint on October 29, 1991 alleging that she was employed by defendant as a teacher from 1983 until her termination in June 1991 and that she performed her duties in a professional and competent manner. She claimed defendants' explanation that her position was eliminated due to budgetary constraints was a pretext for discrimination because of her age (53) and sex in violation of N.J.S.A. 10:5-12. Plaintiff asserted that defendants hired a young man to perform substantially the same teaching duties. Plaintiff also unsuccessfully claimed that defendant violated an implied contract of continued employment, based on personnel policies and oral representations, and made other claims not pertinent to this appeal.

On July 24, 1992 defendants moved for summary judgment on all of plaintiff's claims, arguing, in part, that the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, as applied to religious schools, violates the Establishment Clause of U.S. Const. amend. I, "in that it fosters excessive entanglement between religion and government." In support of their motion, defendants submitted an affidavit and a certification of Principal Scanlon; an affidavit of Father Timothy Ploch, a Roman Catholic priest and a leader of defendant Salesian Society, involved with the school's management; the school's statement of philosophy; its personnel policies; and its 1990-91 contract with plaintiff.

Scanlon, a teacher at Don Bosco since 1966 and its principal since 1986, explained that the principal "has the final decision-making authority in the hiring and firing of teachers." In the 1990-91 school year, there were forty-one faculty members, including nine Salesian "priests/brothers," sixteen lay men, and eight lay women. Scanlon described a declining enrollment of 800 students in 1982 but only 692 in 1992. He explained that the school paid its own operating expenses from tuition and provided only the living expenses of the priests and brothers who lived on campus.

On April 15, 1991 Scanlon wrote to plaintiff advising her that, because of budget problems, he could not offer her a contract for the 1991-92 school year "at this time." "It is my hope that budgeting and scheduling matters for school year 1991-92 will be resolved in early May. Meanwhile, I ask for your patience and understanding."

Father Ploch, who held the position of Provincial, the highest post in this area's Province of the Salesian Society, explained that Reverend Kenneth McAlice, a teacher at Don Bosco, had requested and was granted a sabbatical in June 1991. Scanlon requested a replacement "from among the Salesian community so that there would not be an adverse impact on the budget for teacher salaries for the upcoming school year." Father Ploch said that he tried but could not find a Salesian replacement for Father McAlice and in late August 1991 advised Scanlon that "he would have to hire a lay person for that purpose." The facts pertinent to the hiring of the lay person were not described in the summary judgment affidavits but Scanlon testified at trial that he advertised for the position, interviewed candidates, and finally hired Brian Plunkett to teach English and history.

The statement entitled "The philosophy of Don Bosco Preparatory High School," distributed to parents of prospective students, provided in part:

A primary purpose of the educational program at Don Bosco lies in our dedication to the education of the total person through a Catholic philosophy of life. This philosophy endorses man's origin from God and his return to God through a sincere endeavor to cooperate with God's divine plan of individual salvation.

....

From the inception, Don Bosco Preparatory High School has been profoundly influenced by the system of education proposed and developed by the renowned 19th century educator, St. John Bosco. The system is called the PREVENTIVE SYSTEM, and it emphasizes REASON, RELIGION, and KINDNESS as the fundamental elements essential to the process of educating youth. The faculty of Don Bosco is committed to the implementation of his approach to education....

Thus, it is the intention of Don Bosco Preparatory High School to provide the students with an education which promotes and fosters interest in an understanding of the Catholic Church and their personal role therein, which ignites a lifelong commitment to intellectual pursuits, and which acknowledges and understands the concept of individual differences....

The guide to hiring teachers, "Characteristics of Teachers in Catholic Schools," provided in part:

1. The teacher understands and accepts the fact that the schools are operated in accordance with the philosophy of Catholic education.

2. The teacher accepts and supports the ongoing building and living of a Faith Community, not simply as a concept to be taught but as a reality to be lived in worship, service, and interpersonal relationships.

....

4. The teacher reflects in his personal and professional life a commitment to Gospel values and the Christian tradition.

5. The teacher acknowledges that faith commitment is a free gift of God that is both relational and intellectual.

6. The teacher accepts the responsibility for providing an atmosphere for fostering the development of a faith commitment by the students.

....

14. The teacher relates to the students in an adult Christian manner and contributes to the student's sense of self-worth as a Christian person.

....

17. The teacher fosters the apostolic consciousness of students by encouraging them to join in experiential learning activities that give witness to Christian justice and love.

18. The teacher motivates and guides the students in acquiring skills, virtues and habits of heart and mind required to address with Christian insight the multiple problems of injustice which face individuals and our pluralistic society.

Father Ploch testified at trial that Don Bosco Prep had teachers who were not Catholic. He said that profession and practice of the Catholic faith was not a qualification for employment.

In her "teacher contract" plaintiff agreed to "exemplify Christian principles and ideals in ... her teaching and in performance of all duties assigned to the Teacher by the School." Scanlon also explained that each teacher "is expected to begin each class with a prayer." The "teacher contract" further required plaintiff to "comply with and fully abide by ... [the] Policies on Personnel adopted by the School, which are hereby made part of this contract." Defendants' "Policies on Personnel" set forth a grievance procedure:

a. Any grievance a teacher has with the school should be expedited as soon as possible.

b. The normal order of appeal is as follows:

1) the Department Chairman, Dean, etc., as applicable;

2) the Principal

3) the Director

4) a fact-finding board made up of two faculty members of the teacher's choice and two other faculty members selected by the Director;

5) the School Board;

6) the Provincial Director of Education.

The defendants' policy also prohibited reprisals, provided for a separate grievance file for all documents, and required that grievance proceedings be conducted in private.

Judge Stark heard oral argument on October 16, 1992 and denied defendants' motion to...