TACHELLE WINKEY v. TACHELLE WINKEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0369-06T10369-06T1

TACHELLE WINKEY,

Plaintiff-Appellant,

v.

WEICHERT REALTORS and WEICHERT

RELOCATION,

Defendants-Respondents.

______________________________________________________

 

Submitted May 2, 2007 - Decided May 11, 2007

Before Judges C.S. Fisher and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. ESX-L-1117-05.

Killian & Salisbury, attorneys for appellant (Carl A. Salisbury, on the brief).

Ogletree, Deakins, Nash, Smoak & Stewart, attorneys for respondents (Sharon P. Margello, of counsel; Ms. Margello and Lynelle J. Slivinski, on the brief).

PER CURIAM

In this appeal, plaintiff seeks reversal of the summary judgment entered in defendants' favor in this action based upon the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -48.

Starting in January 1999, plaintiff, who is African-American, worked for defendant Weichert Relocation (hereafter "defendant") as an administrative assistant. The record reveals that plaintiff's performance appraisal in January 2000 characterized her work as "often unacceptable" with "frequent errors or rejections." In her February 2002 performance evaluation, it was indicated that plaintiff was not meeting defendant's expectations; she was also criticized for frequent tardiness, excessive use of company phones for personal telephone calls, and for spending too much time away from her desk for social reasons. The following year's performance evaluation indicated that plaintiff was told that her tardiness and absenteeism continued to be a problem, and that she was not meeting expectations. Plaintiff's January 2005 performance review indicated that plaintiff did not always apply herself, and that she would not be able to attain "her own personal goal of becoming a relocation counselor until she addresses her attitude, her ability to be a team player and a positive company employee" because "[t]hese items all have a big impact on her work."

In 2003, plaintiff first considered seeking a promotion to the position of renter counselor. An administrative assistant seeking a promotion to renter counselor was required to "be performing his/her current duties in an acceptable manner." Notwithstanding her poor evaluations, plaintiff twice applied for the position. On both occasions, the openings were given to Caucasian administrative assistants.

Plaintiff resigned from her position with defendant on May 1, 2005.

In granting summary judgment in favor of defendant, the trial judge applied the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), which our courts have adopted for ascertaining the discriminatory intent required by the LAD. See, e.g., Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005). This standard requires that the plaintiff first prove a prima facie case of discrimination by proving "that plaintiff (1) belongs to a protected class, (2) applied and was qualified for a position for which the employer was seeking applicants, (3) was rejected despite adequate qualifications, and (4) after rejection the position remained open and the employer continued to seek application for persons of plaintiff's qualifications." Ibid. This burden has been described as being "rather modest," because its purpose is to demonstrate "that plaintiff's factual scenario is compatible with discriminatory intent -- i.e., that discrimination could be a reason for the employer's action." Marzano v. Computer Sci. Corp., 91 F.3d 497, 508 (3d Cir. 1996) (quoted with approval in Zive, supra, 182 N.J. at 447). The establishment of the prima facie case required by McDonnell Douglas creates an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S. Ct. 2943, 2949-50, 57 L. Ed. 2d 957, 967 (1978); Zive, supra, 182 N.J. at 449.

Once such a prima facie case is presented, the burden shifts to the employer to "articulate a legitimate, non-discriminatory reason for the adverse employment action." Ibid.

The next and last stage of this process shifts the burden of production "back to the employee to prove by a preponderance of the evidence that the reason articulated by the employer was merely a pretext for discrimination and not the true reason for the employment decision." Zive, supra, 182 N.J. at 449; Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 596 (1988).

In weighing the sufficiency of the evidential materials presented against the standard applicable to motions for summary judgment, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the trial judge concluded that plaintiff had presented sufficient evidence of a prima facie case, but that defendant had also demonstrated it had a legitimate reason for passing plaintiff over for promotion. Finding no legitimate factual dispute regarding the better qualifications of the women who obtained the promotion sought by plaintiff, and finding no legitimate factual dispute about the content of the evaluations of plaintiff's performance, the judge concluded that plaintiff could not sustain her burden of proving that the choices made by defendant were pretextual.

We affirm substantially for the reasons set forth by Judge Marie P. Simonelli when she granted the motion for summary judgment.

 
Affirmed.

In light of our disposition of this appeal, it is not necessary that we determine whether defendant Weichert Realtors had additional defenses to this action.

For example, plaintiff acknowledged in her deposition that she logged 362.9 minutes in personal calls during April 2000.

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A-0369-06T1

May 11, 2007