MARION COHEN v. UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MARION COHEN,

Plaintiff-Appellant,

v.

UNIVERSITY OF MEDICINE AND

DENTISTRY OF NEW JERSEY,

Defendant-Respondent.

____________________________________________________

December 30, 2013

Argued December 3, 2013 Decided

Before Judges Fisher and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5031-09.

Kevin Barber argued the cause for appellant (Niedweske Barber Hager, LLC, attorneys; Mr. Barber, on the brief).

M. Karen Thompson argued the cause for respondent (Norris, McLaughlin & Marcus, attorneys; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Kathryn J.H. Boardman, Deputy Attorney General, on the brief1).

PER CURIAM

In this appeal, we consider the propriety of a summary judgment entered in favor of defendant University of Medicine and Dentistry of New Jersey dismissing plaintiff Marion Cohen's complaint, which alleged age discrimination in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, in defendant's failure to renew her contract. Because the trial judge took a too mechanical approach in determining whether plaintiff presented a prima facie case of discrimination, we reverse.

I

The record reveals that plaintiff was hired by defendant in 1994 as an associate professor of anatomy and cell biology and injury sciences; plaintiff's husband, Dr. Stanley Cohen, became the chair of the pathology department at the same time. Plaintiff started on the tenure-track, but later switched to "coterminous-status," meaning she was engaged for short "fixed period[s]." Plaintiff entered into a three-year contract with defendant in 1997; this was followed by five consecutive one-year contracts, a two-year contract in 2006, and another one-year contract in 2008.

In November 2008, allegedly because of budgetary concerns, defendant's interim dean informed departments that all contract employees were to be considered non-renewed unless there existed "sufficient justification" for renewal. On February 24, 2009, a few weeks after her sixty-ninth birthday, plaintiff was informed her contract would not be renewed and her employment terminated effective June 30, 2009.

Plaintiff commenced this age discrimination suit in June 2009. After a lengthy period of discovery, the trial judge granted defendant's summary judgment. Plaintiff appeals.

II

In this appeal, we apply the same standard the trial judge was required to apply, W.J.A. v. D.A., 210 N.J. 229, 237-38 (2012), and view the facts in the record in the light most favorable to the non-moving party here plaintiff to determine whether "the competent evidential materials . . . are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party," Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The propriety of summary judgment must be considered in light of the familiar burden-shifting standard pronounced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), which is applied in LAD actions, Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005).

McDonnell Douglas provides a method for proceeding where it is unlikely the aggrieved employee will have access to or ever obtain direct evidence let alone "the proverbial smoking gun" of an employer's discriminatory intent. Zive, supra, 182 N.J. at 446-47 (internal citation omitted). When utilized, the McDonnell Douglas framework first imposes on the plaintiff the burden of presenting a prima facie case of age discrimination with evidence of four elements: (1) plaintiff was a member of a protected group; (2) plaintiff's job performance met the employer's legitimate expectations; (3) plaintiff was terminated or not renewed; and (4) plaintiff was replaced or the employer sought a replacement. McDonnell Douglas, supra, 411 U.S. at 802, 93 S. Ct. at 1824, 36 L. Ed. 2d at 677-78; Zive, supra, 182 N.J. at 449-50. When established, such a prima facie case gives rise to a presumption of unlawful discrimination. Reynolds v. Palnut Co., 330 N.J. Super. 162, 167-68 (App. Div. 2000). This burden is not intended to be onerous, otherwise plaintiffs would be prevented from "accessing the tools . . . necessary to even begin to assemble a case." Zive, supra, 182 N.J. at 448. See also Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1093-94, 67 L. Ed. 2d 207, 215 (1981).

Once the plaintiff establishes a prima facie case, the burden shifts to the employer "to articulate a legitimate, nondiscriminatory reason for [its] actions." Zive, supra, 182 N.J. at 449. And, if the employer provides such a reason, the plaintiff must then demonstrate why the articulated reason "was merely a pretext for discrimination." Ibid. Pretext may be demonstrated with evidence that "(1) a discriminatory reason more likely motivated the employer than the employer's proffered legitimate reason, or (2) the defendant's proffered explanation is 'unworthy of credence.'" Reynolds, supra, 330 N.J. Super. at 168 (quoting Burdine, supra, 450 U.S. at 265, 101 S. Ct. at 1095, 67 L. Ed. 2d at 217).

Here, the trial judge based her ruling on the fourth element of the McDonnell Douglas prima facie case, concluding that plaintiff failed to present evidence that defendant sought to or in fact replaced plaintiff with "someone younger, or that in deciding which employees should not be renewed [defendant] disproportionately chose older people." Our review, thus, focuses on that fourth element, and we assume, as the trial judge apparently assumed, that the other three elements were satisfied.

The fourth element, as explained in Bergen Commercial Bank v. Sisler, 157 N.J. 188, 213 (1999) (quoting Kelly v. Bally's Grand, Inc., 285 N.J. Super. 422, 429 (App. Div. 1995)), may be satisfied by a showing of the plaintiff's replacement by "a candidate sufficiently younger to permit an inference of age discrimination." For example, had the sixty-nine-year-old plaintiff been replaced by a thirty-year-old, this element would have been satisfied. But, as our Supreme Court has made clear the fourth element, in an age discrimination case, is not governed by a "mechanistic application" of the ages of the relevant players because

[s]eldom will a sixty-year-old be replaced by a person in the twenties. Rather the sixty-year-old will be replaced by a fifty-five-year-old, who, in turn, is succeeded by a person in the forties, who also will be replaced by a younger person.

[Bergen Commercial Bank, supra, 157 N.J. at 212-13 (quoting McCorstin v. United States Steel Corp., 621 F.2d 749, 754 (5th Cir. 1980)).2]

Here, the judge considered the fourth element by simply comparing the ages of plaintiff and her alleged replacements. In opposing summary judgment, plaintiff had submitted her husband's two certifications. The first asserted that plaintiff's "teaching responsibilities were performed by several Pathology Department employees, including Dr. Raphael Mannino." Although Dr. Mannino's age was not revealed in the certification, the judge mentioned during oral argument that she believed he was likely about sixty-six years old at the time of the motion, which was heard more than three years after the complaint was filed.3 The second certification asserted that plaintiff's teaching responsibilities were also assumed by faculty members who were forty-seven, fifty, fifty-three and fifty-four years of age.

The judge explained her consideration of these factual assertions in the following way:

The [c]ourt finds that plaintiff has failed to make a prima facie case for age discrimination because she does not put forth any evidence suggesting that the non-renewal of her contract was motivated by a discriminatory animus. See Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super. 55, 76 (App. Div. 2004) (affirming decision of summary judgment). Plaintiff points to no evidence, circumstantial or otherwise, suggesting a discriminatory motive. There is no evidence suggesting that plaintiff was replaced by someone younger, or that in deciding which employees should not be renewed UMDNJ disproportionately chose older people. Plaintiff presents a certification of Dr. Stanley Cohen (apparently plaintiff's husband), which includes information about what a valuable employee plaintiff was and how important her contribution was to UMDNJ. Dr. Stanley Cohen specifically points to a Dr. Mannino, who, Dr. Stanley Cohen certifies, received unsatisfactory evalua-tions and who took over at least some of the plaintiff's teaching responsibilities. How-ever, as plaintiff does not disclose Dr. Mannino's age, there is nothing in Dr. Cohen's certification to support a finding of age discrimination.

Plaintiff devotes much of her argument to identifying what she considers to be weaknesses in the defendant's explanation for why the plaintiff was not renewed, which plaintiff construes as demonstrating that the defendant's explanation of budget cuts was a pretext for age discrimination. Even if the court were to agree that there were discrepancies, and that the discrepancies were relevant, they would be relevant to the issue of pretext, which is only addressed after plaintiff has presented a prima facie case. Plaintiff having failed to make the prima facie case, the issue of pretext is beside the point.

Even were we to agree the judge properly analyzed the fourth element by looking solely to the age of the alleged replacements, we would be required to conclude that their ages were sufficiently disparate from plaintiff's to permit a finding that the fourth element was satisfied. Our Supreme Court, in Bergen Community Bank, supra, 157 N.J. at 218, referred with approval to a decision of a federal court of appeals where it was held that to meet the fourth element the plaintiff

may point to a sufficient age difference between himself and his replacement such that a fact-finder can reasonably conclude that the employment decision was made on the basis of age. Nor is there any particular age difference that must be shown. Different courts have held, for instance, that a five year difference can be sufficient, but that a one year difference cannot.

[Sempier v. Johnson & Higgins, 45 F.3d 724, 729 (3d Cir.) (emphasis added; citations omitted), cert. denied, 515 U.S. 1159, 115 S. Ct. 2611, 132 L. Ed. 2d 854 (1995).4]

Here, plaintiff asserted she was replaced by faculty members anywhere from seven to twenty-two years younger. As a result, even the mechanical approach applied by the trial judge required a finding that plaintiff sustained the fourth element of her McDonnell Douglas prima facie case.

For future guidance, we would also observe that a comparison of the plaintiff's age with her alleged replacements' ages is not the sole means of generating an inference of age discrimination. The fourth element is "flexible" and "can be satisfied differently in differing factual scenarios," including:

actions or remarks made by decisionmakers that could be viewed as reflecting a discriminatory animus, preferential treat-ment given to employees outside the pro-tected class, and, in a corporate down-sizing, the systematic transfer of a dis-charged employee's duties to other emp-loyees, or a pattern of recommending the plaintiff for positions for which he or she is not qualified and failure to surface plaintiff's name for positions for which he or she is well-qualified. A plaintiff might also rely upon the fact that the defendant, following plaintiff's termination, continued to seek applicants to fill the position, or, more generally, upon the timing or sequence of events leading to the plaintiff's termination.

[Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996)(citations omitted).]

III

In reviewing the record the parties placed before the trial judge, we conclude that plaintiff submitted enough evidence to survive summary judgment on the fourth element of the prima facie case the only element the trial judge found was in doubt and, for that reason alone, reverse. This holding, however, should not be interpreted as preventing resolution of this action through the summary judgment process upon a closer examination of the second and third stages of the McDonnell Douglas approach.

Reversed and remanded. We do not retain jurisdiction.

1Norris, McLaughlin & Marcus was substituted as counsel for respondent after original counsel, the Attorney General, filed respondent's brief on the merits.

2The Supreme Court has, in fact, held that McDonnell Douglas's fourth element has no proper application in actions based on the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.A. 621 to 634, reasoning:

The fact that one person in the protected class has lost out to another person in the protected class is thus irrelevant, so long as he lost out because of his age. Or to put the point more concretely, there can be no greater inference of age discrimination (as opposed to "40 or over" discrimination) when a 40-year-old is replaced by a 39-year-old than when a 56-year-old is replaced by a 40-year-old. Because it lacks probative value, the fact that an ADEA plaintiff was replaced by someone outside the protected class is not a proper element of the McDonnell Douglas prima facie case.

[O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312, 116 S. Ct. 1307, 1310, 134 L. Ed. 2d 433, 438 (1996).]

3During oral argument on August 6, 2012, the judge explained that she had examined "UMDNJ's website," which apparently disclosed Dr. Mannino received his bachelor's degree in 1967. From this the judge extrapolated that Dr. Mannino "would be about 66 years old today, so he's not significantly younger than the plaintiff." The judge improperly obtained and considered this "evidence." The factual record upon which summary judgment must rest is limited to the four corners of the parties' moving and opposing papers. See, e.g., Sellers v. Schonfeld, 270 N.J. Super. 424, 428-29 (App. Div. 1993). Judges are not permitted to use the product of their own independent factual research in disposing of a motion for summary judgment. Cf., Mazza v. Cavicchia, 15 N.J. 498, 514 (1954) (recognizing that unless "the basic principle of the exclusiveness of the record" is observed, "the one who decides the case may stray at will from the record in reaching his decision" and, consequently, "the right to present evidence and to argue its significance" becomes meaningless); Lazovitz v. Board of Adjust., Berkeley Heights, 213 N.J. Super. 376, 382 (App. Div. 1986) (finding permissible a judge's visit to a site of a proposed nursing home, but concluding the judge "could not go outside the record and base his ruling on facts gleaned from a personal inspection"). The judge here was obligated to consider whether there was or was not a triable factual issue by resorting to the record before her. That record actually provides the answer to the question that generated the judge's independent investigation. The birth dates of both plaintiff (February 14, 1940) and Dr. Manninno (January 28, 1947) were revealed in defendant's answers to interrogatories. Accordingly, the record required an assumption there was a seven-year difference in their ages.

4As noted earlier, the Supreme Court has concluded that the fourth element has no relevance in an ADEA case, O'Connor, supra, 517 U.S. at 312, 116 S. Ct. at 1310, 134 L. Ed. 2d at 438, obviating the need for examining the relevant individuals' ages. Plaintiff's action, however, is not based on the ADEA; in this LAD case we are obligated to apply Bergen Community Bank's binding requirement that plaintiff show she was replaced by "a candidate sufficiently younger to permit an inference of age discrimination." 157 N.J. at 213.