New Jersey Appellate Division Finds that State Employer’s Decision to Remove Employee Was Authorized by Statute and Enough to Overcome an Inference of Discrimination
On June 24, 2024, the New Jersey Appellate Court (“Court”) affirmed the motion judge’s decision to dismiss plaintiff’s New Jersey Law Against Discrimination (“NJLAD”) claims in Norris v. State of New Jersey, Department of Corrections, et al. The Court’s decision was based in part on the fact that the decision-maker had express authority to appoint an individual to plaintiff’s position and replace her.
In relevant part, plaintiff was a deputy commissioner for the Department of Corrections (“DOC”). In 2019, plaintiff, then sixty-five years old, took a medical leave of absence to undergo hip replacement surgery. During her leave, the acting DOC commissioner, Marcus Hicks, assigned plaintiff’s deputy commissioner responsibilities to Michelle Ricci, then fifty-five years old. Upon plaintiff’s return, Ricci continued to take on the deputy-commissioner responsibilities. Hicks was confirmed DOC commissioner on January 30, 2020, and the following day, he appointed a new deputy commissioner. Hicks reassigned plaintiff to a position which came with a significant pay cut and loss in status. Plaintiff filed for retirement that day.
Plaintiff argued that she was discriminated against because of her disability and age, and that Hicks aided and abetted the discrimination.
While the Court found that plaintiff established a prima facie showing of disability and age discrimination under the NJLAD, plaintiff could not overcome the defendant’s legitimate, non-discriminatory reason for appointing a new deputy commissioner. Hicks stated that it was always his intention to appoint a deputy commissioner of his choice. The Court highlighted the fact that Hicks was authorized by statute, N.J.S.A. 30:1B-5, to appoint a new deputy commissioner and in effect, remove plaintiff. Plaintiff did not present any persuasive evidence to refute defendants’ legitimate reasons for Hicks’s employment actions.
The Court’s opinion sparks the question of how a decision-maker’s written authority to appoint, hire, terminate, or otherwise alter an employee’s position has any impact on whether the challenged action is non-discriminatory. Employers may wonder how this Court’s rationale applies to situations where the decision-maker’s authority is not specifically governed by statute, like in Norris, but rather by a private employer’s internal policies and procedures. Going forward, Courts may distinguish Norris from cases involving private employers, on the basis that the employment action in Norris was expressly authorized by a statute rather than an internal policy.
Nevertheless, employers can be guided by the Court’s opinion in Norris – Hicks’s longstanding intention to remove plaintiff weighed in defendants’ favor. While an employee may assert that there was an inference of discrimination, evidence of a longstanding legitimate, non-discriminatory reason supporting the employer’s decision can be enough to overcome that inference.
Please contact an NFC team member if you have any questions or seek further assistance.