WILLIAM HENDRICKS v. NEW JERSEY DEPARTMENT OF HEALTH AND SENIOR SERVICES and JOSEPH KOMOSINSKI -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4965-07T14965-07T1

WILLIAM HENDRICKS,

Plaintiff-Appellant,

v.

NEW JERSEY DEPARTMENT OF

HEALTH AND SENIOR SERVICES

and JOSEPH KOMOSINSKI,

Defendants-Respondents.

 

 

Argued May 6, 2009 - Decided

Before Judges Axelrad, Parrillo and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-3196-05.

David Zatuchni argued the cause for appellant (Zatuchni & Associates, LLC, attorneys; Mr. Zatuchni, on the brief).

Ivo Becica, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Becica, on the brief).

PER CURIAM

Plaintiff William Hendricks appeals from the summary judgment dismissal of his complaint against defendants New Jersey Department of Health and Senior Services (DHSS) and Joseph Komosinski alleging retaliation in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to

-49. For the following reasons, we reverse.

The facts, viewed most favorably to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), are as follows. Plaintiff, currently sixty-two years old, began his employment with the DHSS in 1985 in the bureau of vital statistics and registration (bureau), where he functioned as a field representative directly under the State Registrar and bureau chief. Three years later, in 1988, plaintiff was promoted to the civil service title of senior field representative; and again, in 1992, he was promoted to the civil service title of administrative analyst II, although in both positions his working (functional) title was office manager of the bureau. He began reporting to Donald Lipira, the assistant chief of the bureau, and he was given responsibility for the day-to-day operations of the bureau and its six component units (customer service, births, deaths, marriages, corrections of records/modifications, and searches). In that capacity, he supervised approximately sixty people.

In 1997, he was promoted to the title of assistant chief of the bureau, still reporting to Lipira, who had been promoted to bureau chief. His job responsibilities remained essentially the same, although he was now considered "second-in-command" at the bureau, and he was supposedly being groomed to replace Lipira.

Lipira retired on July 1, 2002, and James Houston, then the assistant commissioner for management and administration, was responsible for hiring Lipira's replacement. In response to the posting for the position of chief of vital statistics and registration, Houston received resumes from, among others, plaintiff and Komosinski. Houston selected Komosinski to fill the position on a provisional basis, due to his experience with information technology and the perceived need for technological improvements in the bureau.

At the time of his promotion, Komosinski was thirty-six years old and had been with the DHSS for six years, then responsible for overseeing the operational aspect of the bureau, including the electronic death registration system, and for attempting to automate the work wherever possible. Unlike plaintiff, Komosinski had no college degree and supervised only one employee.

After Komosinski's provisional appointment, the title of the position was changed to "supervising administrative analyst," and a posting for that position occurred on February 1, 2003. Although Houston suggested he made the decision to change the position on his own based on the bureau's felt need for automation, other evidence suggested the new posting was dictated by a recommendation from the agency's Equal Employment Opportunity/Affirmative Action (EEO/AA) Office. In this regard, shortly after Komosinski's provisional appointment, two female employees of DHSS - Suzanne Ficara and Kay Knoblauch - filed internal complaints of gender discrimination on October 22, 2002 and November 20, 2002, respectively. The EEO/AA office investigated the women's complaints and interviewed a number of individuals, including Houston, Komosinski and plaintiff. In its final report, the EEO/AA office concluded there was some evidence of a failure to provide equal opportunity with respect to filling the state registrar position, stating:

On the surface the most qualified candidate for this job appeared to be Mr. William Hendricks, Assistant Chief of Vital Statistics who was not granted an interview although he applied and appeared qualified. He performed the duties of the State Registrar when his immediate supervisor (Mr. Don Lipira) was out of the office on business or sick leave. It appears that Mr. Houston favored Mr. Komosinski over the other applicants. . . . It cannot be confirmed that the necessary requirements were changed (downgraded) for Mr. Komosinski. However, it appears to be favoritism in that a person not fully meeting the qualifications was promoted to this position without others being interviewed.

The EEO/AA office recommended, among other things, that Houston be counseled on the laws against discrimination; that Houston's fitness to supervise the bureau of vital statistics be evaluated; that there be "a review of Komosinski's qualifications for the Chief of Vital Statistics"; and that a new promotional list for the position be promulgated by the Department of Personnel and interested candidates be interviewed.

Regardless of its genesis, plaintiff was not eligible to apply for the newly posted position because he did not hold one of the three civil service titles - administrative analyst I (data processing); administrative analyst I (accounting); administrative analyst I - designated in the posting. Consequently, in November 2003, Komosinski was permanently appointed to the position of supervising administrative analyst. While his working title was state registrar, he also performed the duties of the chief of vital statistics. As state registrar, Komosinski directly supervised plaintiff for about one-and-one-half years until October 2003 when the bureau was placed under the purview of the Office of Budget, Finance, and Information Technology and another individual, Rick Williams, stood between plaintiff and Komosinski in the chain of command.

On April 22, 2003, plaintiff filed a charge of age discrimination against DHSS with the Equal Employment Opportunity Commission (EEOC), alleging that he was discriminated against when DHSS, through Houston, denied him the promotion and instead promoted Komosinski, a younger, less qualified candidate. The EEOC investigated plaintiff's complaint and obtained a response from DHSS. On October 12, 2004, the EEOC issued a finding of discrimination. Although plaintiff had not earlier filed a written complaint with his employer under DHSS' policy against discrimination, he claims to have made a verbal complaint to the agency's equal employment opportunity/affirmative action (EEO/AA) officer, who supposedly ignored him.

According to plaintiff, he suffered retaliation within DHSS after he filed the EEOC charge. Prior thereto, plaintiff had received commendations, including one in 2001 or 2002 for his work in response to the terrorist attacks of September 11, 2001, aiding in the revision of New Jersey law to account for catastrophic deaths without a physician's pronouncement of death, and assisting families in processing death records. He also received an "employee of the year award" from Houston in 2003. And, he always earned evaluations of "exceptional" or "outstanding" from Lipira. Indeed, in Lipira's last evaluation of plaintiff just before his retirement, for the period between October 1, 2001 and September 30, 2002, he rated plaintiff as "exceptional." According to Lipira, plaintiff "was instrumental in working with [him] in setting policy for the Bureau and in implementing such policies." He "did his job extremely well, and as a result always received excellent performance ratings. [He] was a talented, motivated, and active Manager, and extremely knowledgeable regarding all aspects of vital statistics."

In stark contrast, in his first evaluation of plaintiff, for the same time period as Lipira's last evaluation (October 1, 2001 to September 30, 2002), Komosinski issued plaintiff a significantly less favorable rating on April 30, 2003, which was just eight days after plaintiff had filed his EEOC charge on April 22, 2003. And, on May 7, 2003, Komosinski issued an "interim" evaluation to plaintiff for the period between October 1, 2002 to September 30, 2003, again rating plaintiff significantly less favorably than Lipira had in previous years. Plaintiff disagreed with his ratings in both evaluations and he refused to sign the forms.

According to Komosinski, plaintiff was uncooperative and difficult to deal with prior to his EEOC charge but the situation deteriorated even further when he had not received the promotion. Komosinski documented the problems he was experiencing with plaintiff's performance, including a failure to communicate, and customer complaints that had been made about him. One customer complaint, dated January 15, 2003, resulted in the issuance of a notice of caution to plaintiff on April 25, 2003. On three or four other occasions, Komosinski sought formal discipline for plaintiff, but none was ever taken. Plaintiff, on the other hand, believed Komosinski's criticism unfair because customer complaints were common. He explained, "When you deal with about 50,000 people a year, that is inevitably going to happen." He did the best he could to respond to all of his voicemails, but he received too many to respond to them as quickly as Komosinski would have liked.

Plaintiff also claims he was retaliated against by effectively being demoted. Although he retained his title of assistant chief of vital statistics and registration, and continued to received pay increases, most of his job responsibilities were taken away from him, including: the hiring and firing of employees; attendance at meetings on policy, planning, education, and work productivity; teaching local registrars and writing manuals used by field staff; attendance at meetings of the National Center for Health Statistics; and responding to citizen communications with the Governor's office relating to vital statistics issues. Prior thereto, for about fifteen years, plaintiff had supervised six units within the bureau, with a total of fifty-six subordinates. Within a year of Komosinski's promotion, however, he supervised only one unit (counter operations) with just three subordinates, and he performed the work of a clerk. Responsibility for the units plaintiff formerly supervised was given to others. Consequently, plaintiff believed that his "career came to an end." Although he sought a transfer, and had applied for up to fifty other positions within DHSS, nothing materialized.

Komosinski, on the other hand, attributed these changes to "a number of reorganizations," "ongoing business changes," and changes in "business practices," although he never quite explained why any of them necessitated an alteration of plaintiff's job functions. Komosinski also disputed plaintiff's characterization of his job as merely clerical, maintaining that counter operations was an "operation," not a "unit," within the bureau, requiring oversight by an assistant state registrar, such as plaintiff, who reported directly to Komosinski, because certified copies of vital records had to be signed by either the state registrar or an assistant state registrar. Moreover, only plaintiff and three other assistant state registrars (appointed in 2004), had the authority to perform the duties of state registrar in Komosinski's absence. In Komosinski's opinion, counter operations

is a critical component of the program that brings in over one million dollars annually, it is the main focal point for many people and for some the only focal point in their dealing with the bureau. It is a highly visible office dealing with a large volume of people.

Others, however, disputed Komosinski's description of plaintiff's new job duties. Ficara and Knoblauch perceived plaintiff's new, diminished position and job duties as a retaliatory demotion. In their view, any reorganization of the bureau after Komosinski's promotion should not have resulted in changes to plaintiff's responsibilities. Similarly, Lipira believed that if plaintiff were now responsible only for counter operations, "it would constitute a significant reduction in [his] responsibilities and duties from when he was working under me."

Lastly, to disprove retaliatory motive, Komosinski claims that he had no knowledge of plaintiff's EEOC filing until after plaintiff filed this lawsuit in November 2005. Plaintiff counters that personnel at DHSS were aware of the age discrimination charges he filed with the EEOC and indeed that agency contacted DHSS employees in its investigation of plaintiff's complaints, which the EEOC ultimately substantiated. There was also inter-office communication between plaintiff and supervisory personnel regarding plaintiff's concerns about Komosinski. For instance, in an e-mail from plaintiff to Williams and Arnold Miller, DHSS's chief information officer, dated February 11, 2004, plaintiff complained of multiple forms of mistreatment by Komosinski, and he referenced prior discussions. Also, in an October 29, 2005 e-mail to Miller, plaintiff specifically complained of retaliation by Williams for his having filed an EEOC charge. And although he says he was not made aware of plaintiff's latter e-mail, Williams admitted that he learned about the EEOC charge in 2005 and that plaintiff "often" complained to him of retaliation. Furthermore, Houston also admitted that plaintiff complained to him about Komosinski.

As noted, on November 30, 2005, plaintiff filed a complaint against DHSS and his supervisor, Komosinski, alleging that defendants violated the LAD by retaliating against him for filing a charge of age discrimination with the EEOC. Defendants answered and, following discovery, moved for summary judgment. In granting defendants' motion, the judge concluded:

Plaintiff has not proven defendant's motivations for placing plaintiff as head of the new counter operations unit was motivated by discriminatory or retaliatory animus. And I conclude that a significant amount of support of that is the fact that Komosinski was not aware of the EEOC complaint which had to exist prior to the retaliation claim.

On appeal, plaintiff contends the trial court erred in granting summary judgment dismissing his retaliation claim because he made out a prima facie case of retaliation and presented proof of "pretext" to refute defendants' so-called legitimate non-retaliatory reasons for their adverse employment actions. We agree.

In reviewing the disposition of a summary judgment motion, we apply the same legal standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We must determine 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 disputed issues in favor of the non-moving party. Brill, supra, 142 N.J. at 539-41. If there is a genuine issue as to any material fact, or credibility issues are presented, summary judgment should be denied. Id. at 540. On the other hand, if the evidence is "'so one-sided that one party must prevail as a matter of law,'" then summary judgment should be granted. Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

The LAD prohibits retaliation. It states that it is an unlawful employment practice

[f]or any person to take reprisals against any person because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act.

[N.J.S.A. 10:5-12(d).]

The LAD also allows for individual liability against those who "aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this act, or to attempt to do so." N.J.S.A. 10:5-12(e).

Retaliation claims are considered using a burden-shifting analysis, similar to that applied to discrimination claims. In order to state a prima facie case of retaliation, plaintiff must establish that: (1) he engaged in a protected activity known to defendants; (2) he was subjected to an adverse employment action by defendants after he engaged in the protected activity; and (3) there was a causal connection between the protected activity and the adverse employment action. Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 548-49 (App. Div. 1995). "The evidentiary burden at the prima facie stage is 'rather modest: it is to demonstrate to the court that plaintiff's factual scenario is compatible with [retaliatory] intent--i.e., that [retaliation] could be a reason for the employer's action.'" Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005) (quoting Marzano v. Computer Sci. Corp., 91 F.3d 497, 508 (3d Cir. 1996)).

If plaintiff makes out a prima facie case of retaliation, defendants bear the burden of articulating a legitimate, non-retaliatory reason for their actions. If defendants meet this burden of production, then plaintiff must prove that a retaliatory intent motivated defendants' actions, either directly, by proof that the proffered reason is pretext, or indirectly, by demonstrating that a retaliatory reason is more likely what motivated defendants' actions. Shepherd v. Hunterdon Developmental Ctr., 336 N.J. Super. 395, 418 (App. Div. 2001), aff'd in part, rev'd in part, 174 N.J. 1 (2002); Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 274 (App. Div. 1996); Romano, supra, 284 N.J. Super. at 549.

As to the first element of plaintiff's prima facie case, it is undisputed that he engaged in a protected activity on April 22, 2003, by filing an EEOC charge claiming age discrimination. N.J.S.A. 10:5-12(d). What is in dispute, for purposes of both the first and third (causal connection) elements of plaintiff's prima facie case is defendants' knowledge of plaintiff's protected activity. In this regard, defendants contend they had no knowledge of plaintiff's EEOC charge because plaintiff had never filed a written internal complaint of discrimination pursuant to DHSS policy and Komosinski only learned of the EEOC charge after this lawsuit was filed. The motion judge agreed, finding no evidence that Komosinski, the individual who allegedly retaliated against plaintiff, knew that plaintiff had filed an EEOC charge, and therefore no causal connection between such protected activity and the alleged retaliatory acts existed. We disagree. In granting summary judgment dismissal, the motion judge overlooked evidence and reasonable inferences from which a factfinder could conclude defendants' knowledge.

In the first place, it is simply implausible for DHSS to deny timely notice of the charge. When the EEOC receives a claim of age discrimination under the ADEA, it is legally obligated to "promptly notify all persons named in such charge as prospective defendants in the action and . . . promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion." 29 U.S.C.A. 626(d)(2). See also 29 C.F.R. 1626.11 ("Upon receipt of a charge, the Commission shall promptly notify the respondent that a charge has been filed."); 29 C.F.R. 1626.12 ("Upon receipt of a charge, the Commission shall promptly attempt to eliminate any alleged unlawful practice by informal methods of conciliation, conference and persuasion.").

Moreover, the record includes a determination by the EEOC, dated October 14, 2004, that plaintiff had been discriminated against based upon his age. In that determination, the EEOC referenced an investigation it conducted into plaintiff's allegations, including a response to the allegations received from the respondent, DHSS. The EEOC further stated that "conciliation of this matter has now begun" and it would consider reasonable offers to settle the claim. See 29 C.F.R. 1626.15(b) ("Whenever the Commission has a reasonable basis to conclude that a violation of the Act has occurred or will occur, it may commence conciliation under section 7(b) of the Act. Notice of commencement of conciliation will ordinarily be issued in the form of a letter of violation[.]"). Therefore, it is reasonable to infer that the EEOC notified DHSS officials of the charge promptly after it was filed on April 22, 2003, and that agency officials were questioned about plaintiff's allegations, both by the EEOC as part of its investigation, and by a representative of DHSS in order to prepare the agency's response.

Although it is unclear precisely with whom the EEOC communicated at DHSS, other evidence suggests both Houston and Komosinski knew of the EEOC charge at or about the time it was filed. By Houston's own admission, plaintiff voiced his complaints to him about Komosinski. Plaintiff also complained about Komosinski to Miller and Williams In February 2005. Significantly, plaintiff orally lodged an internal complaint of discrimination with DHSS's EEO/AA office, the same office that investigated Ficara's and Knoblauch's formal gender discrimination grievances shortly after Komosinski's provisional appointment to the state registrar position in June 2002. Indeed, the EEO/AA found there had been a denial of equal opportunity and recommended a second hiring process for the state registrar position, resulting, one might reasonably infer, in the February 1, 2003 posting. It is equally reasonable to infer from the panoply of discrimination complaints made and investigated during the time period between 2002 and 2004, that both Houston and Komosinski were interviewed with respect to them, and therefore were aware not only of plaintiff's protected activity, but most certainly, of their own agency's internal EEO/AA findings. These include that there had been a denial of equal employment opportunity, that plaintiff appeared to be more qualified for the state registrar position than Komosinski, and that Houston appeared to have selected Komosinski based upon favoritism because Komosinski appeared unqualified for the position. There is, we conclude, at the very least, a disputed factual issue of defendants' knowledge, and therefore plaintiff has met his burden of establishing the first element of his prima facie case.

There is also evidence that plaintiff suffered adverse employment actions after he engaged in protected activity. Recently, in interpreting the anti-retaliation provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. 2000e-3(a), the United States Supreme Court held that the provision "does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace"; it "covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant," meaning "that the employer's actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57, 126 S. Ct. 2405, 2409, 165 L. Ed. 2d 345, 353 (2006). It "is not limited to discriminatory actions that affect the terms and conditions of employment." Id. at 64, 67, 126 S. Ct. at 2412-14, 165 L. Ed. 2d at 357, 359. And, "the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters." Id. at 69, 126 S. Ct. at 2415, 165 L. Ed. 2d at 360.

In considering cases brought under the LAD, New Jersey relies upon analogous federal precedent. Viscik v. Fowler Equip. Co., 173 N.J. 1, 13-14 (2002). Because the LAD's anti-retaliation provision, N.J.S.A. 10:5-12(d), is broad and comparable to that of Title VII, 42 U.S.C.A. 2000e-3(a), we recently adopted the standard enunciated in Burlington Northern in interpreting the anti-retaliation provision of the LAD. Roa v. LAFE, 402 N.J. Super. 529, 540-41 (App. Div. 2008), certif. granted, 197 N.J. 477 (2009).

Moreover, the LAD's anti-retaliation provision is different than that of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. Under CEPA, "retaliatory action" is defined in a more restrictive manner, as "the discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment." N.J.S.A. 34:19-2(e). Thus, to be actionable under CEPA, retaliation must be severe, and it must be related to the terms and conditions of employment. See, e.g., Green v. Jersey City Bd. of Educ., 177 N.J. 434, 448 (2003); Klein v. Univ. of Med. & Dentistry of N.J., 377 N.J. Super. 28, 45-47 (App. Div.), certif. denied, 185 N.J. 39 (2005); Beasley v. Passaic County, 377 N.J. Super. 585, 606-09 (App. Div. 2005). The LAD, on the other hand, is more generous in determining what conduct qualifies as retaliatory action. N.J.S.A. 10:5-12(d); Roa, supra, 402 N.J. Super. at 540-41.

Here, there is proof that after plaintiff filed his EEOC charge in April 2003, he was issued reports rating his performance unfavorably and, in his opinion, unfairly. Also, plaintiff's work responsibilities were significantly reduced and limited within the bureau as to effectively constitute, in his opinion, a demotion. From this evidence, we conclude that a reasonable jury could believe that such actions would dissuade a reasonable worker from filing a charge of discrimination. As for the performance appraisals, less than commendable evaluations could negatively affect plaintiff's salary, as well his future career prospects within the civil service. N.J.A.C. 4A:6-5.3. And, as for the reassignment of plaintiff's job duties, an "effective demotion" has been deemed sufficient to sustain a retaliation claim. See Burlington Northern, supra, 548 U.S. at 70-71, 126 S. Ct. at 2416-17, 165 L. Ed. 2d at 361-62 (reassignment of plaintiff to more arduous and less prestigious duties supported jury's finding of retaliation); Mancini v. Twp. of Teaneck, 349 N.J. Super. 527, 564-65 (App. Div.) (evidence of retaliation, considered cumulatively, amounted to "an 'effective demotion' sufficient to constitute adverse employment action"), aff'd, as modified, 179 N.J. 425 (2004). Consequently, plaintiff has sustained his burden of establishing the second element of his prima facie case.

We have already addressed evidence of the third element - causal connection - in our discussion of the first. Suffice it to say, the record should be considered as a whole, including, but not limited to, the temporal proximity between the protected activity and the alleged retaliatory conduct, any antagonism between the parties, and any other facts suggestive of a retaliatory motive. See, e.g., Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279-81 (3d Cir. 2000); Kachmar v. Sungard Data Sys., Inc., 109 F.3d 173, 177-79 (3d Cir. 1997); Young v. Hobart W. Group, 385 N.J. Super. 448, 467 (App. Div. 2005); El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 176-77 (App. Div. 2005); Romano, supra, 284 N.J. Super. at 550.

So viewed, plaintiff has also produced evidence of the third element of his prima facie case. The proximity in time between plaintiff's EEOC charge, filed on April 22, 2003, and the retaliatory acts that followed, as well as the very nature of those acts (Komosinski's rating plaintiff's performance more negatively than Lipira, and Komosinski's effective demotion of plaintiff, who had complained that he was more qualified than Komosinski for the promotion Komosinski received, and who the EEO/AA office also concluded was more qualified than Komosinski), and the admittedly contentious relationship between plaintiff and Komosinski, are all highly suggestive of retaliatory intent.

Lastly, while defendants may have articulated legitimate, non-discriminatory reasons for their alleged retaliatory acts, rebutting the prima facie case, plaintiff presented evidence of pretext. First, Komosinski's evaluations were inconsistent with the years of excellent ratings plaintiff had received from his former supervisor, Lipira. They were also inconsistent with Lipira's certification, which described plaintiff as a talented, motivated, and active manager, who was very knowledgeable about vital statistics. Moreover, although Komosinski found fault with plaintiff's level of customer service, and cited that fact in defending his performance ratings of plaintiff, he nevertheless decided to assign plaintiff primary responsibility for customer service in the bureau, casting serious doubt as to the legitimacy of his defense. Indeed, Komosinski described plaintiff's present assignment, counter operations, as a "highly visible" and "critical component" of the bureau because it entailed "dealing with a large volume of people," and it was "the main focal point for many people and for some the only focal point in their dealing with the bureau." Yet, if Komosinski truly believed that plaintiff's customer service skills were lacking, then this job assignment makes little sense.

Also significant on this score, Williams disagreed with Komosinski's criticism of plaintiff, insisting that plaintiff was actually very good at customer service. In fact, the record reflects only two customer complaints about plaintiff, out of upwards of 50,000 customers per year.

As to the diminution in plaintiff's job duties, Komosinski explained that the changes were the result of reorganizations and ongoing changes in business practices mandated after the terrorist attacks of September 11, 2001. The motion judge accepted these representations, finding the Department-wide reorganization was not a pretext for retaliation. Once again, in so deciding, the judge ignored evidence suggestive of the contrary.

Viewing that evidence most favorably to plaintiff, the record shows that following September 11, 2001, on April 24, 2002, then-Governor McGreevey issued an executive order mandating that certain changes be made to vital statistics documents and to the criteria necessary for obtaining copies of such documents. However, nothing in the executive order suggests a need to alter the management or organizational structure of the bureau of vital statistics.

Even if, as Komosinski asserts, an assistant state registrar had to oversee counter operations in order to sign certified copies of vital records, it nonetheless remains unexplained why plaintiff was assigned exclusively to counter operations and his other job duties taken away from him. Indeed, there is evidence from which it may reasonably be inferred that the reorganization of the bureau consisted solely of diminishing plaintiff's job responsibilities by, in effect, demoting him from the second-in-command responsible for the bureau as a whole, to the supervisor of a single unit of the bureau - counter operations - which was perceived as the least desirable, and distributing his former responsibilities to other employees. We conclude therefore that a reasonable jury could accept plaintiff's view of the evidence and conclude that the negative performance appraisals and reduction in plaintiff's job duties were made in retaliation for his complaint of discrimination.

Finally, as to Komosinski's individual liability, there is evidence that, as plaintiff's supervisor, he engaged in intentional retaliatory acts. Thus, he could be held individually liable for aiding and abetting DHSS in its alleged retaliation against plaintiff. N.J.S.A. 10:5-12(e); Cicchetti v. Morris County Sheriff's Office, 194 N.J. 563, 594-95 (2008); Tarr v. Ciasulli, 181 N.J. 70, 82-85 (2004); Bonitsis v. N.J. Inst. of Tech., 363 N.J. Super. 505, 527 (App. Div. 2003), rev'd on other grounds, 180 N.J. 450 (2004); Herman v. Coastal Corp., 348 N.J. Super. 1, 26-28 (App. Div.), certif. denied, 174 N.J. 363 (2002); Shepherd, supra, 336 N.J. Super. at 424-26.

Reversed and remanded.

 

The job description for chief of vital statistics and registration states that the job requires a bachelor's degree and five years of professional public health experience, two years of which shall have been in supervisory experience. Applicants without the required education could substitute experience for education on a year-for-year basis.

Knoblauch and Ficara also filed complaints with the EEOC and in federal court, alleging that they were denied the promotion to state registrar/chief of vital statistics and registration/supervising administrative analyst because of their gender. In a September 24, 2004 determination, issued with respect to Ficara's charge, the EEOC found gender discrimination. The record does not contain the EEOC's determination of Knoblauch's charge.

The job description for supervising administrative analyst had similar education and experience requirements to that of chief of vital statistics and registration.

Williams's appointment resulted in a reduction in Komosinski's responsibilities for a period of time, but those responsibilities were ultimately returned to him in Spring 2006, when the bureau was again reorganized and moved under the purview of the assistant commissioner for management and administration.

It is undisputed that plaintiff's job duties were reduced and a comparison of organizational charts from May 2002 and March 2005 reflects the changes described by plaintiff, and for which Komosinski admits being responsible.

As noted, in October 2003, following Houston's retirement, the bureau of vital statistics and registration was moved under the purview of the Office of Budget, Finance, and Information Technology and was no longer under the Division of Management and Administration. And, an executive order dated April 24, 2002, issued by then-Governor McGreevey, mandated changes to the forms used by the bureau and to the qualifications necessary to obtain copies of vital statistics records.

The LAD contains no definition of retaliatory action in its definitional provision. N.J.S.A. 10:5-5.

(continued)

(continued)

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