MICHAEL CARTER v. LABORATORY CORPORATION OF AMERICA HOLDINGS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3337-08T3

MICHAEL CARTER,

Plaintiff-Appellant,

v.

LABORATORY CORPORATION OF

AMERICA HOLDINGS d/b/a

LABCORP, LABORATORY

CORPORATION OF AMERICA,

Defendant-Respondent,

and

KIRK McNEIL and DARLENE

HINES,

Defendants.

_____________________________________________________________

December 1, 2010

Submitted May 5, 2010 - Decided

Before Judges Stern and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Atlantic County, Docket No.

L-4897-06.

Michael Carter, appellant pro se.

Gibbons P.C., attorneys for respondents

(Madeline M. Sherry, of the Pennsylvania

bar, admitted pro hac vice, and Carla N.

Dorsi, of counsel; Ms. Dorsi, Ms. Sherry,

and Megan Frese Porio, on the brief).

The opinion of the court was delivered by

GRAVES, J.A.D.

Plaintiff Michael Carter, who describes himself as "a married black man," brought this action against his former employer, defendant Laboratory Corporation of America Holdings (LabCorp). Plaintiff alleged in his complaint that he was subjected to sexual harassment by a female co-worker and that his employment was terminated as the result of gender discrimination in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42.

Plaintiff appeals from a jury verdict in favor of defendant. He contends the use of peremptory challenges by defense counsel to excuse three qualified African American female jurors violated his constitutional right to a fair and impartial jury. We reverse and remand to afford defense counsel an opportunity to explain the reasons for excluding the potential jurors and for further findings by the trial court.

During jury selection, defendant exercised peremptory challenges to exclude four jurors, all of them female. LabCorp agrees that two of the females were African Americans. However, during a sidebar conference initiated by the court the trial judge suggested that defendant had excused three African American jurors:

THE COURT: Can I see everyone at sidebar one moment?

(At sidebar:)

THE COURT: Okay. You used four.

[DEFENSE COUNSEL]: Yes.

THE COURT: Or was it two or three that were on that African American juror? I want to know. Which was it? I think it was three.

[PLAINTIFF]: Three.

[DEFENSE COUNSEL]: No.

THE COURT: At least two. At least two.

[DEFENSE COUNSEL]: I don't even remember. I didn't

THE COURT: I do.

[PLAINTIFF]: Times?

THE COURT: Do Am I making myself clear?

[DEFENSE COUNSEL]: Yes, but that's not a factor,

THE COURT: Okay. Thank you, thank you.

[DEFENSE COUNSEL]: for us, Your Honor.

THE COURT: Okay.

(End sidebar discussion)

The record does not reveal any further objection to defendant's peremptory challenges by either plaintiff or the court. Although the composition of the jury ultimately selected is not reflected in the record, defendant does not dispute plaintiff's claim that the jury included six Caucasian males, one African American male, and one Caucasian female.

To establish a prima facie case of the discriminatory use of peremptory challenges, there must be sufficient evidence "'to permit the trial judge to draw an inference that discrimination has occurred.'" State v. Osorio, 402 N.J. Super. 93, 102 (App. Div. 2008) (quoting Johnson v. California, 545 U.S. 162, 170, 125 S. Ct. 2410, 2417, l 61 L. Ed. 2d 129, 139 (2005)), aff d, 199 N.J. 486, 502 (2009).1 In Osorio, this court adopted the Johnson modification of the first step of the analysis set forth in State v. Gilmore, 103 N.J. 508, 535-39 (1986). Osorio, supra, 402 N.J. Super. at 102. In addition, we noted that "the standard for establishing a prima facie case [of purposeful discrimination in the selection of a jury] has been relaxed by Johnson." Ibid.

In the present matter, defense counsel's use of peremptory challenges prompted the trial court to address the issue sua sponte at a sidebar conference. Moreover, the judge was sufficiently concerned to ask: "Am I making myself clear?" Under these circumstances, there was a sufficient showing to establish a prima facie case that discrimination may have infected the jury selection process. We therefore remand to allow defense counsel to state the reasons for each of the disputed peremptory challenges, and for the trial court to determine whether plaintiff has satisfied his ultimate burden of proving, by a preponderance of the evidence, that the defense "exercised its peremptory challenges on constitutionally-impermissible grounds of presumed group bias." Gilmore, supra, 103 N.J. at 539.

Reversed and remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.

1 Because the Supreme Court had not yet decided Osorio when jury selection took place on January 26, 2009, we refer to this court's decision, which was entered on August 4, 2008.