O'Lone v. New Jersey Dept. of Corrections

• Decision Date: 22 June 1998
• Citation: 313 N.J.Super. 249,712 A.2d 1177
• Parties: , 74 Empl. Prac. Dec. P 45,520 Edward O'LONE, Plaintiff/Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, State of New Jersey, William H. Fauver, and Richard A. Seidl, Defendants/Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 249

313 N.J.Super. 249

712 A.2d 1177, 74 Empl. Prac. Dec. P 45,520

Edward O'LONE, Plaintiff/Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, State of New Jersey, William H. Fauver, and Richard A. Seidl,

Defendants/Respondents.

Superior Court of New Jersey,

Appellate Division.

Argued April 21, 1998.

Decided June 22, 1998.

Mario A. Iavicoli, Haddonfield, for plaintiff/appellant.

Edward J. Dauber, Newark, for defendants/respondents (Greenberg Dauber & Epstein, attorneys; Mr. Dauber and Sumeeta A. Gawande, on the brief).

Before Judges PRESSLER ¹, CONLEY and WALLACE.

The opinion of the court was delivered by

WALLACE, Jr., J.A.D.

Plaintiff Edward O'Lone appeals from the trial court's grant of summary judgment in favor of defendants, the New Jersey Department of Corrections (DOC), the State of New Jersey (State), DOC Commissioner William H. Fauver, and DOC Deputy Commissioner Richard A. Seidl, dismissing his wrongful discharge complaint.

On appeal, plaintiff urges that it was error to dismiss his claims under the Law Against Discrimination (LAD) against all defendants and his claim for violating public policy against the individual defendants. We hold it was error to dismiss the LAD count and affirm the dismissal of the claim for violating public policy.

I

Plaintiff began his employment with the DOC in 1973. Within six years he became the Superintendent of Leesburg State Prison. In December 1984, plaintiff was terminated.

Plaintiff commenced the instant action on November 24, 1990, alleging that the DOC wrongfully discharged him from his position as Superintendent in violation of public policy (Count One); wrongfully discharged him because of his relationship with an African-American woman in violation of LAD (Count Two); and similarly, alleged a violation of 42 U.S.C.A. § 1981, et seq. (Count Three).

Defendants moved for summary judgment on entire controversy and statute of limitations grounds. On November 4, 1994, the trial court granted summary judgment only as to Count Three, in favor of the State and the DOC, but not the individual defendants, and denied defendants' motion for summary judgment based upon the entire controversy doctrine and the statute of limitations for Counts One and Two. The trial court held that since Montells v. Haynes, 133 N.J. 282, 298, 627 A.2d 654 (1993), LAD causes of action arising before June 27, 1993, have a six year statute of limitations, and thus, plaintiff's LAD claim was not time-barred. The court also ordered the parties to provide supplemental material addressing "whether a cause of action exists for discrimination under Count Two (LAD) and Count Three (Section 1983) based upon the personal relationship between Plaintiff and an African-American woman."

On May 17, 1995, after receiving the supplemental briefs, the court granted summary judgment dismissing Count Two in its entirety and dismissing Count Three against the remaining defendants. The court further ordered the parties to confer and advise the court regarding any remaining claims. On August 17, 1995, defendants moved for summary judgment dismissing Count One. On January 16, 1997, the trial court granted summary judgment dismissing Count One, the public policy claim, and dismissed plaintiff's complaint in its entirety. This appeal followed.

II

At oral argument before us, counsel for plaintiff indicated that he did not contest the dismissal of Count III, the alleged violation of § 1983 of the Civil Rights Act, or the dismissal of the public policy claim against the State in Count I. However, counsel claims it was error to dismiss the public policy claim against the individual defendants and to dismiss the LAD claim against all defendants.

We turn first to plaintiff's contention that there were genuine issues of material fact which precluded the granting of summary judgment and urging that he proved a prima facie case of discriminatory discharge in violation of the LAD.

Our Supreme Court has recently refined the standard that a motion judge should apply in deciding a motion for summary judgment [A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. The "judge's function is not himself [or herself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Liberty Lobby, supra, 477 U.S. at 249, 106 S.Ct. at 2511, 91 L. Ed.2d at 212. Credibility determinations will continue to be made by a jury and not the judge. If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a "genuine" issue of material fact for purposes of Rule 4:46-2. Liberty Lobby, supra, 477 U.S. at 250, 106 S.Ct. at 2511, 91 L. Ed.2d at 213. The import of our holding is that when the evidence "is so one-sided that one party must prevail as a matter of law," Liberty Lobby, supra, 477 U.S. at 252, 106 S.Ct. at 2512, 91 L. Ed.2d at 214, the trial court should not hesitate to grant summary judgment.

[Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540, 666 A.2d

146 (1995).]

The LAD provides in pertinent part:

It shall be an unlawful practice, or as the case may be, an unlawful discrimination: a. For an employer, because of the race, creed, color, national origin, ancestry, age, ... [or] sex ... of any individual ... to refuse to hire or employ or to bar or to discharge ..., 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).]

The Legislature has directed "that this act shall be liberally construed in combination with other protections available under the laws of this State." N.J.S.A. 10:5-3; See Montells v. Haynes, 133 N.J. 282, 298, 627 A.2d 654 (1993). Our Supreme Court has consistently noted the remedial objectives of the LAD and has "described the goal of the LAD as being nothing less than the eradication 'of the cancer of discrimination.' " Hernandez v. Region Nine Hous. Corp., 146 N.J. 645, 651-52, 684 A.2d 1385 (1996)(quoting Fuchilla v. Layman, 109 N.J. 319, 334, 537 A.2d 652, cert. denied, 488 U.S. 826, 109 S.Ct. 75, 102 L. Ed.2d 51 (1988)). Further, the "LAD embodies this State's strong public policy to fight discrimination against any of its inhabitants, because of race, creed, color, national origin, ancestry, age, sex, affectional or sexual orientation, marital status, familial status, liability for service in the Armed Forces of the United States, or nationality ..." Hernandez, supra, 146 N.J. at 651, 684 A.2d 1385 citing N.J.S.A. 10:5-3.) Recently, the Court recognized that a single, severe incident of harassment may be sufficient to warrant a remedy under the LAD. Taylor v. Metzger, 152 N.J. 490, 706 A.2d 685 (1998)(holding that a factfinder could conclude that defendant engaged in discriminatory harassment by uttering a racial epithet that was sufficiently severe to have created a hostile work environment).

The specific test with regard to making a prima facie case of discriminatory discharge requires the employee to prove: " '(1) that he was in the protected group, (2) that he was performing his job at a level that met his employer's legitimate expectations (3) that he nevertheless was fired, and (4) that the [employer] sought someone to perform the same work after he left.' " See Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363, 382, 541 A.2d 682 (1988)(quoting Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 597, 538 A.2d 794 (1988)); Greenberg v. Camden County Vocational & Technical Schs., 310 N.J.Super. 189, 708 A.2d 460 (App.Div.1998). Once the employee has established a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employment action. Jansen, supra, 110 N.J. at 380-81, 541 A.2d 682. If the employer articulates a legitimate reason for the employment decision, the burden then shifts back to the employer to show that the employer's asserted nondiscriminatory reason " 'was not the true reason...