Jamison v. Rockaway Tp. Bd. of Educ.

• Decision Date: 11 July 1990
• Citation: 242 N.J.Super. 436,577 A.2d 177
• Parties: , 57 Fair Empl.Prac.Cas. (BNA) 1886, 61 Ed. Law Rep. 971 Felicia B. JAMISON, Complainant-Appellant-Cross Respondent, v. ROCKAWAY TOWNSHIP BOARD OF EDUCATION, Respondent-Respondent-Cross Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 436

242 N.J.Super. 436

577 A.2d 177, 57 Fair Empl.Prac.Cas. (BNA) 1886,

61 Ed. Law Rep. 971

Felicia B. JAMISON, Complainant-Appellant-Cross Respondent, v. ROCKAWAY TOWNSHIP BOARD OF EDUCATION Respondent-Respondent-Cross Appellant.

Superior Court of New Jersey Appellate Division.

Argued June 11, 1990.

Decided July 11, 1990.

Stephen B. Wiley, for complainant-appellant-cross respondent (Wiley, Malehorn & Sirota, attorneys (Stephen B. Wiley, of counsel) Robert Goldsmith and Arthur L. Raynes, Morristown, on the brief and reply brief)

Jacob Green, for respondent-respondent-cross appellant (Green & Dzwilewski, attorneys; (Jacob Green, of counsel) Paul H. Green, East Orange, on the brief and letter reply brief).

Before Judges J.H. COLEMAN, BRODY and MUIR, Jr.

The opinion of the court was delivered by

MUIR, JR., J.A.D.

It is well settled that discrimination based on the color of one's skin is a profound wrong of tragic dimension. See Patterson v. McLean Credit Union, ---U.S. ----, ----, 109 S.Ct. 2363, 2379, 105 L.Ed.2d 132, 158 (1989). This appeal from a final decision of the Director of the Division on Civil Rights deals with one of the more invidious, subtle aspects of such The Director found retaliation occurred and ordered remedies and a penalty. In so doing, he applied proof standards appropriate to circumstances where employment termination, rather than denial of promotion, was the product of the retaliatory intent. We hold those proof standards should have been refined to deal with denial of promotion circumstances.

discrimination--denial of a promotion as retaliation for an employee's prior pursuit of an employment discrimination claim.

Accordingly, we affirm the Director's decision (1) to the extent he found, or the record supports a holding, that petitioner presented prima facie proof that she was denied promotion as the result of retaliatory action by her employer, and (2) to the extent he found, or the record supports a holding, that petitioner is entitled to a presumption that she was rejected for promotion by the school superintendent due to the latter's retaliatory intent. However, we reverse the remainder of the Director's final decision and remand for further proceedings consonant with this opinion.

I.

Dr. Felicia Jamison, a black employee of the Rockaway Township School District, first encountered racial discrimination in Rockaway Township when she applied for a vice-principalship in the school system, but was not appointed. While we need not review in their entirety the events that followed, it is sufficient to state that Jamison pursued a successful claim of racial discrimination against the School Board. In April 1987, the Director found racial discrimination and, among other relief, ordered Jamison's appointment to the position of vice-principal. The Director's order also contained a provision that neither the Board nor any of its employees should retaliate against Jamison for asserting her civil rights claim. In April of this year, we affirmed the Director's findings and ordered Jamison's appointment, but made certain modifications in other remedies awarded.

After the April 1987 order of the Director, the Board acted on School Superintendent Fanning's recommendation to reorganize its administrative structure to eliminate vice-principalships in the Township. On July 1, 1987, when Jamison arrived for work at her new position, her principal told her to go home because the Board had obtained a stay of the Director's placement order. The next day, Jamison again reported to work, at which time Fanning told her to go home and Jamison complied. The record discloses no evidence of a stay being granted to the Board. Fanning testified he knew the Board made only an application for a stay, but acknowledged he ordered Jamison to go home, saying "it will all get worked out."

In July 1988, the Board established the position of Director of Curriculum. In the position vacancy notice, it described the certification and experience needed and identified the salary range. Under the category experience needed, the notice read:

Minimum of five years of teaching experience. Minimum of one year as supervisor of subject area, or central office position. Minimum of one year experience in a position which required the formal observation and evaluation of staff.

Jamison applied for the position. She did not get the job. The job was given to someone who, shortly thereafter, resigned. In 1989, the Board abolished the Director of Curriculum position, only to create a similar position for an Assistant Superintendent of Curriculum and Instruction, the post at issue here.

The history of that position began in June 1989, when Fanning posted a vacancy notice for it. At the time, the Board had not officially adopted a job description although, apparently, it had informally authorized Fanning to conduct a search. The Board needed the position promptly filled to comply with directives of the State Education Commissioner.

The vacancy notice provisions matched, in many respects, the prior Director of Curriculum notice. In two respects, it differed significantly: (1) it contained no proposed salary and (2) it narrowed the required experience to "Minimum of [ten] years The need to fill the position promptly caused Fanning, with the Board's approval, to limit applicants to persons within the Rockaway Township system. Three people applied: Jamison, Dr. Thomas Parciak, the School Board Secretary and Business Administrator, and Sarah Zeigler, a principal in the system. Fanning had one of his assistants make a preliminary credentials review. In July 1989, after the assistant forwarded the names of all three applicants to Fanning, he conducted one-on-one interviews.

                of teaching experience.  Minimum of one year of Central Office Position."   It also noted the job would begin "As soon as possible."
                

Fanning used five questions in the interviews. He did not transcribe the interviews. Instead, he kept handwritten notes. The ALJ found the "notes were not kept in narrative form, but [were] simply a sequence of barely legible words and phrases which would presumably operate to refresh his memory as to the responses of each candidate...." The Director accepted those findings.

On August 29, 1989, Jamison filed a complaint with the Division on Civil Rights alleging an act of retaliation in the Board's attempt to abolish her assistant principalship.

On September 13, 1989, Fanning encountered Jamison in a school cafeteria and told her, among other things, he would not recommend her for the assistant superintendent position. The ALJ and Director found Jamison's version of this conversation more credible than Fanning's version. The ALJ found the encounter occurred as follows:

It is Jamison's testimony, and I FIND that on September 13, 1989, Fanning approached her in the cafeteria of the Copeland School and asked to speak with her. He took her to an area of the cafeteria where no one else was present and told her that he wanted her to know before it became public that he did not select her as a candidate for the position and would not recommend her to the Board. In response to her questions, he told her that she lacked certain qualifications and specified that central office experience was one of them.

When Jamison pointed out that Fanning made this decision without consulting anyone else and questioned his independence of the prior events which On September 26, 1989, based on the conversation with Fanning, Jamison filed an emergent notice of motion with the Director. The motion sought to restrain the Board from appointing any individual other than Jamison to the position of assistant superintendent pending a hearing on Fanning's conduct. The Director did not resolve the motion immediately.

transpired between herself and the Board, he stated that he did not want to talk about her case. When she repeated that he alone was making the decision, he said, 'so, you are an attorney', and she said, 'No, I'm not an attorney, but I've been involved in this situation for 11 years'. Fanning then proceeded to question the ethics of attorneys who keep a case going for that length of time and told Jamison that legislation was going to be introduced so that attorneys could no longer unduly prolong litigation. He began to discuss frivolous lawsuits, implying that [other employee cases] were frivolous, and said that the New Jersey Education Association lawyers would continue Jamison's case. Jamison told him that [the other employees'] legal fees were paid by the NJEA and that she was forced to pay her own counsel fees in order to protect herself. From Fanning's statement, Jamison was left in no doubt that she was denied the position of Assistant Superintendent, Curriculum and Instruction, based upon her civil rights litigation against the district.

The next day, the Board adopted the minimum criteria for the assistant superintendent position. The experience criteria matched those set forth in Fanning's June 1989 vacancy notice.

When, on October 11, 1989, the Director's office denied the restraint requested, Jamison applied to this court for a stay. During discussions on what action this court should take, counsel for the Board conceded that in the absence of a stay, the Board intended to appoint Parciak to the vacancy. We granted leave to appeal, entered a stay, and remanded to the Director "to conduct a hearing to determine whether Dr. Jamison has been discriminated against in the form of retaliation by Dr. John F. Fanning ... in failing to recommend Dr. Jamison for the position of Assistant Superintendent for Curriculum [and] Instruction."

After the hearing, the ALJ held Jamison made out a prima facie case of retaliatory discrimination and the Board did not articulate a non-retaliatory basis to overcome Jamison's proof. In reaching those conclusions, the ALJ referred to proof standards On the issue of remedy, the Director...