New Jersey Employment Lawyer Blog

In a noteworthy unpublished employment law decision, earlier this month New Jersey's Appellate Division upheld a jury award to an employee on a retaliation claim where the primary evidence of retaliation was the fact that the employee's supervisors were unfriendly to him after he complained about discrimination.

Anthony Onuoha, who is African American, worked for Roche Molecular Systems. In 2006, he complained to Roche's management because he believed the company discriminated against him by giving him unfair performance reviews and raises. The company's human resources department investigated his claim, but concluded that his performance reviews and salary were fair.

After Mr. Onuoha complained about discrimination, his supervisors became unfriendly toward him. For example, one supervisor stopped speaking to him. Mr. Onuoha also received an even worse performance review in 2007. Further, the company denied Mr. Onuoha's request to take a two-week vacation after he took a 6-week medical leave, claiming there was too much work.

A few years later, in 2009, Roche chose to include Mr. Onuoha in a reduction-in-force and terminated his employment. He then sued, claiming the company discriminated against him because he is an African American, and fired him in retaliation for his complaint about race discrimination, in violation of the New Jersey Law Against Discrimination (LAD).

After a trial, a jury found that Roche had not discriminated against Mr. Onuoha based on his race. However, it found the company fired Mr. Onuoha in retaliation for the complaint he made about discrimination in 2006. He was awarded $512,000 in economic damages, $250,000 in emotional distress damages, plus $305,653.07 for his attorney's fees and legal costs, for a total judgment of more than a million dollars.

On appeal, Roche argued it was improper for the jury to find Roche retaliated against Mr. Onuoha because of his complaint about discrimination since the jury found the company did not discriminate against him. In Onuoha v. Roche Molecular Systems, the Appellate Division rejected that argument since an employee does not have to win his discrimination claim to prove his employer fired him in retaliation for complaining about discrimination. Rather, an employee only has to prove he reasonably believed in his discrimination complaint, and the employer retaliated against him because he made the complaint.

The appellate court also found there was enough evidence of retaliation to support the jury's verdict, despite the fact that there was a two year gap between his discrimination complaint and the company's decision to fire Mr. Onuoha. It primarily focused on the evidence that Mr. Onuoha's supervisors became unfriendly toward him after he complained about discrimination. The Court also relied on the fact that, although the company could have considered a broader group of employees for potential layoff, it insisted on firing someone from Mr. Onuoha's group. Accordingly, the court affirmed the jury's verdict in favor of Mr. Onuoha.

Continue reading "Court Upholds Employee's Retaliatory Termination Claim Based on Supervisor's Unfriendliness" »

Last week, the Third Circuit Court of Appeals ruled that statistical evidence could be enough to prove that Newark's residency requirement for its non-uniformed employees has a disparate impact based on race. A disparate impact claim is when someone claims that a seemingly neutral policy has a disproportionately negative impact on a particular legally protected group.

Specifically, in Meditz v. City of Newark, Gregory Meditz sued Newark after it refused to hire him as its Housing Development Analyst because he lives in Rutherford, rather than in Newark, New Jersey. He claims the Newark's residency requirement for its non-uniformed employees is illegal because it has a disparate impact on non-Hispanic whites, since the population of Newark does not reflect the racial mix of the relevant job market. He alleges that fewer non-Hispanic white employees work for Newark as non-uniformed employees because of the residency requirement.

To support his claim, Mr. Meditz used statistics showing there is a much lower percentage of non-Hispanic white employees who work for Newark in non-uniformed positions (1) than there are in the general population of Newark, (2) than work for Newark in uniformed positions than non-uniformed positions, (3) than work for the government and private companies in Bergen, Essex, Hudson, Morris, Passaic, and Union Counties, and (4) than work for the Essex County government in Newark.

Despite this evidence, the District Court dismissed Mr. Meditz's employment discrimination lawsuit, finding his statistical evidence was not enough to prove that Newark's residency requirement has a disparate impact based on race. The lower court relied on the fact that "Newark is New Jersey's largest city with over 270,000 residents, 38,950 of whom are White." It concluded that "[g]iven its diversity and large population, there is no need to redefine the relevant labor market past city limits for purposes of Title VII analysis." Title VII is a federal employment law that prohibits employers from discriminating based on an employee's race, color, national origin, or gender.

However, the Court of Appeals disagreed and allowed Mr. Meditz to proceed with his case. It found his statistical evidence might be enough to prove that Newark's residency requirement has a disparate impact based on race. However, it ruled that the District Court has to determine the relevant labor market before it can determine whether Mr. Meditz's statistics prove his claim. The Third Circuit concluded that the District Court must consider factors including geographic location, available transportation to Newark, commuting patterns, and where employees working for private companies in Newark live.

If Mr. Meditz can prove that Newark's residency requirement has a disparate impact based on race, then Newark's only defense would be that it has a "business necessity" for having a residency policy. That means Newark would have to prove that the hiring criteria "must effectively measure the minimum qualifications for successful performance of the job in question." Otherwise, its residency requirement would have an illegal disparate impact based on race, in violation of Title VII.

Continue reading "Third Circuit Finds Newark Hiring Practice Might Discriminate Based on Race" »

On August 29, 2011, in Bowers v. New Jersey Judiciary, Superior Court of New Jersey, Monmouth Vicinage, New Jersey's Appellate Division reversed a trial court's decision dismissing Thomas Bower's lawsuit against his former employer, the New Jersey Judiciary. Thomas Bowers, an African-American, worked for the New Jersey Judiciary as an Information Technology Analyst. He claimed the Judiciary failed to promote him to Acting IT Manager and subjected him to a hostile work environment because of his race. Mr. Bowers was the only African-American in Monmouth County's IT Division. In fact, there were no other African-American IT managers in the entire New Jersey Judiciary, and only one other racial minority, an Asian Indian.

Beginning in July 2005, Mr. Bowers' supervisor took an extended medical leave. Shortly after, the Judiciary asked Mr. Bowers to take over the duties of IT Manager. This decision was subsequently recommended by Monmouth County's Assignment Judge. Mr. Bowers performed the duties of the IT supervisor for approximately 8 months.

But when the Judiciary sought to formally appoint him as its Acting IT Manager, the Assistant Director of Technical Services and Operations, Jonathon Massey, gave a very negative opinion of Mr. Bowers, including claiming he "doesn't understand simple technical things," he "is lazy and stands around and watches others do the work," and that another supervisor described him as a "cocky, arrogant, lazy, weasel, creep" who "does what he wants, doesn't tell the truth" and has a "chip on his shoulder." Not surprisingly, Mr. Bowers was not formally named the Acting IT Manager. However, informally he continued to perform the responsibilities of the IT Manager until April 2006, when the Judiciary named Troy Fitzpatrick its new permanent IT Manager.

After Mr. Fitzpatrick became the IT Manager, he gave Mr. Bowers assignments that were normally given to lower level and less senior IT employees, like answering Help Desk calls and creating a Help Desk manual. Mr. Fitzpatrick told Mr. Bowers that he could not assign work to anyone else, and also told him he could not leave his desk for any reason unless he found someone else to cover the Help Desk. Mr. Fitzpatrick also sought information from other employees about Mr. Bowers' work ethic, and was always short and curt when he spoke to Mr. Bowers, as if he did not want to speak to him. In comparison, Mr. Fitzpatrick treated a newly hired white male employee much better than Mr. Bowers, such as giving him less work and not limiting his ability to leave his desk.

The trial court dismissed Mr. Bowers' race discrimination and harassment claims because he was not subject to racial epithets and there was no direct evidence of race discrimination, he did not have enough evidence to prove either of those claims. But the Appellate Division disagreed. It explained that "discrimination rarely rears its ugly head directly. Rather, it typically manifests itself in subtle ways." In particular, it found that a jury could find that Mr. Massey's extremely negative recommendation was false and discriminatory. It noted that Mr. Massey admitted he knew very little about Mr. Bowers. Instead, it ruled that only a jury can decide whether the Judiciary's decision not to make Mr. Bowers its Acting IT Manager was discriminatory.
Next week, I will discuss Mr. Bowers' retaliation claim. In a subsequent article, I will discuss his claim that the judiciary failed to accommodate his disability.

Continue reading "IT Professional Given Second Chance in Race Discrimination Case Against New Jersey Judiciary" »

On February 28, 2011, New Jersey's Appellate Division issued an unpublished opinion ruling that a jury should decide whether the New Jersey Department of Corrections ("DOC") retaliated against one of its employees, Bienvenido Montalvo.

Mr. Montalvo Filed a National Origin Discrimination Complaint With the EEOC

Mr. Montalvo worked for DOC as a senior corrections officer at Northern State Prison ("NSP"). On October 5, 2004,he filed a complaint with the United States Equal Employment Opportunity Commission ("EEOC") in Newark, New Jersey. He claimed several superior officers harassed and retaliated against him because of his national origin, Hispanic/Puerto Rican. The EEOC sent Mr. Montalvo's Charge of Discrimination to DOC in Trenton on October 7. It is unclear exactly when NSP received a copy of Mr. Montalvo's Notice of Charge of Discrimination, but the evidence seems to indicate that DOC received it sometime in October 2004.DOC Unfairly Disciplined Mr. Montalvo After He Complained About Discrimination

On November 4, 2004, Mr. Montalvo received a notice of disciplinary action charging him with conduct unbecoming and other sufficient causes for allegedly assaulting a prisoner on October 28. DOC suspended him without pay pending a hearing, and told him he was subject to potentially being fired. However, after a hearing in December 2004, the charges against Mr. Montalvo were dismissed because DOC failed to present any evidence to support them. Mr. Montalvo was then reinstated to his job with full back pay.

The Trial Court Dismissed Mr. Montalvo's Retaliation Claim

Mr. Montalvo sued DOC and six of its employees alleging national origin discrimination and retaliation in violation of the New Jersey Law Against Discrimination ("LAD"), among other claims. However, the trial court dismissed his retaliation claim, finding he did not have enough evidence to support it.

The Appellate Division Reinstated Mr. Montalvo's Retaliation Claim

The Appellate Division disagreed, and instead ruled that Mr. Montalvo is entitled to a trial. It concluded that he suffered an "adverse employment action" because a reasonable employee might not file a discrimination claim if he knew his employer would respond by falsely accusing him of committing an assault, suspending him without pay, and forcing him to defend himself at a disciplinary hearing. It further found it is possible for a jury to find from the evidence that DOC knew about Mr. Montalvo's EEOC complaint when it disciplined him. The Court concluded that a reasonable jury could believe the discipline was retaliatory, based on evidence including the fact that (1) DOC suspended him less than a month after he filed his Charge of Discrimination with the EEOC; (2) the officers who brought the disciplinary charges against him told him he had a target on his back and they wanted to fire him in October 2004; and (3) DOC sought to discipline him despite a videotape and several reports from the day of the alleged assault which confirmed he had done nothing wrong. Accordingly, the Appellate Division sent Mr. Montalvo's case back to the trial court for a jury trial.

Continue reading "New Jersey Appellate Division Reinstates Retaliation Claim Against Department of Corrections" »

The statute of limitations under the New Jersey Law Against Discrimination ("LAD") is two years. Ordinarily, that means you must file your lawsuit within two years after (1) a "discrete act" of discrimination such as being fired, demoted, or suspended, or (2) the last act of a pattern of harassment. But on December 10, 2010, the New Jersey Supreme Court ruled that an exception called the "discovery rule" can extend the LAD's statute of limitations. The discovery rule applies when an employee is unaware that he suffered an injury, or unaware that someone else is at fault for causing his injury, until after the statute of limitations has expired.

The case, Henry v. New Jersey Department of Human Services, involves an African American employee, Lula Henry, who was hired for an entry-level nursing position with Trenton State Psychiatric Hospital in April 2004. Ms. Henry claims Trenton State did not place her in a more senior position because of her race, in violation of the LAD.

According to Ms. Henry, she first suspected she was the victim of race discrimination in 2004, but did not have any concrete evidence at the time. It was not until 2006 that she learned that (1) another black nurse had filed a race discrimination lawsuit against Trenton State, and (2) Trenton State had hired a Caucasian nurse with the same credentials as her for higher level job classification, which was inconsistent with Trenton State's explanation for why it did not place her in a higher level position.

In July 2007, Ms. Henry filed a race discrimination lawsuit against the New Jersey Department of Human Services, its Acting Commissioner, Trenton State Psychiatric Hospital, and Trenton State's Chief Executive Officer. The trial court dismissed her case based on the statute of limitations since she filed her case more than two years after the alleged discriminatory actions. On appeal, the New Jersey Appellate Division affirmed the dismissal of her case.

But the New Jersey Supreme Court disagreed. It found the fact that Trenton State gave Ms. Henry a non-discriminatory explanation for why it placed her in an entry-level position may have led her not to pursue the issue until she learned new information that caused her to believe Trenton State's explanation was false. It found the circumstances could be enough that the LAD's two year statute of limitations would not begin until Ms. Henry learned the new information that supported her suspicion that Trenton State had discriminated against her because of her race. As a result, it sent her case back to the trial court to conduct a hearing. At that hearing, Ms. Henry will try to prove she did not have a "reasonable suspicion" of race discrimination, and that a reasonable person in her position could not have discovered a basis for a discrimination claim through reasonable diligence. If she is able to prove this, then she will be able to proceed with her discrimination case even though she filed it more than two years after the alleged discrimination occurred.

Continue reading ""Discovery Rule" Can Extend Statute of Limitations Under New Jersey Law Against Discrimination" »

What is a Disparate Impact Case?

A disparate impact case is one in which an employee claims the employer's policy has an unequal negative impact based on an unlawful reason. Unlawful factors include race, national origin, gender, age, pregnancy or disability among others. For example, an employer might use a test to decide which employees it hires or promotes. Even if the employer has no intent to discriminate, the test might disproportionately select fewer employees in a legally protected group. For example, if a significantly lower percentage of African-American or Hispanic job candidates are hired or promoted based on the test results, then the test might be considered to have a disparate impact based on race. A job criteria that has a disparate impact based on an illegal factor violates the law unless the company can prove it has a "business necessity" for using the criteria.

In Lewis, the Supreme Court discussed the filing deadline for a disparate impact case. As a starting point, the Court noted that federal law requires employees to file a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) within either 300 days after the discrimination occurred. Otherwise, the employee's claim will be dismissed. (Note: in some states the EEOC filing deadline is only 180 days).

Other anti-discrimination laws have different filing deadlines. For example, the New Jersey Law Against Discrimination has a 2 year statute of limitations, and both the New York Human Rights Law and the New York City Human Rights Law have 3 year statutes of limitations.

The Lewis Case

Lewis involves the Chicago Fire Department. The Department used a written exam to decide which job candidates it hired. The test undisputedly had a disparate impact against African-American job candidates. Six African-American job applicants filed Charges of Discrimination with the EEOC.

Each of the Charges of Discrimination was filed more than 300 days after Chicago announced how it planned to use the test results. However, Chicago continued to use the test results to hire job candidates for the next six years. At least one of the employees filed a Charge of Discrimination within 300 days after the Department hired a job candidate based on the test results. Accordingly, the trial court found that the Charge of Discrimination was timely.

After a trial, the Court found the test had a disparate impact on the basis of race. It also ruled that the employer did not prove a business necessity for the test. As a result, it ordered the Fire Department to hire 132 African-American employees who had applied for jobs.

On appeal, the Seventh Circuit Court of Appeals reversed. It found the Charge of Discrimination should have been filed within 300 days after the City announced how it planned to use the test results. As a result, it dismissed the case.

But the Supreme Court disagreed, and reinstated the trial judge's ruling. It found there was a continuing violation, and the Charge of Discrimination was filed on time because it was filed within 300 days after the City used the test results to make a hiring decision. As a result, it reversed the Seventh Circuit's decision.