JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.
In this appeal, the Court considers whether discriminatory conduct toward an employee by that employee's subordinate can result in liability on the part of the employer under New Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to-50. Specifically, the issue is whether an employee's claim that her subordinate's gender bias influenced her employer's decision to terminate her is sufficient to survive summary judgment and proceed to trial.
Plaintiff Michele Meade served as the Township Manager for Livingston Township for eleven years, from 2005 until her termination in 2016 by Resolution of the Township Council. The Council alleges that it terminated Meade because of her poor job performance. Meade, however, maintains that the Council terminated her to appoint a male replacement due to the gender bias of her male subordinate, Police Chief Craig Handschuch, contrary to the LAD.
The trial court granted summary judgment in favor of the Township of Livingston, and the Appellate Division affirmed. For the following reasons, we hold that sufficient evidence was present for a reasonable jury to find that what Councilmembers perceived to be Handschuch's discriminatory attitude toward Meade influenced the Council's decision to terminate her, in violation of the LAD. Accordingly, we reverse the grant of summary judgment and remand this matter for trial.
The summary judgment record reveals that Meade's employment as the Township Manager for Livingston began in July 2005 and ended in November 2016, when she was removed by the Township Council. The Council cited a number of performance areas in the Resolution removing Meade; Meade contests the accuracy or implications of those and other comments in her response to defendant's statement of undisputed material facts. She provides counter examples and further context for support.
A performance area central to this appeal was Meade's supervision of Police Chief Handschuch.
Meade testified in her deposition that she promoted Handschuch to the position of Chief of Police. It is not clear from the record when Meade or the Council first began to note problems with Handschuch's performance, although a 2011 memorandum from Meade to Handschuch notes that the Chief was "seriously behind in completing scheduled work." One particularly notable incident occurred during the school day on April 19, 2013. The incident was the subject of an independent investigation, and the report from that investigation reveals the following facts.
On the morning of April 19, pre-school teachers at the Livingston Community Center observed a man dressed in camouflage, carrying a rifle bag, in the building's parking lot. The teachers alerted their supervisor, who implemented lockdown procedures for the three pre-school classes then underway and called the Livingston Police Department (LPD).
The LPD immediately dispatched three patrol cars to the Community Center; at
About two minutes after dispatch, Handschuch — "on duty and overhearing the radio traffic" — "alerted the responding units that the camouflaged man
Following the identification of Officer Daly, the dispatched units returned to patrol. Chief Handschuch and Sergeant Hanna visited the pre-school classrooms to apologize for the incident, while the ESU continued their training. The law firm that conducted the independent investigation of the incident later concluded that Handschuch and the ESU were responsible; the investigator opined that the incident resulted from "a repeated failure to communicate the actions of the ESU to individuals and entities who needed the information."
It appears from the record that Meade went to the Community Center during or in the immediate aftermath of the ESU training incident. On May 2, 2013, Hanna signed a complaint-summons alleging that Meade had violated N.J.S.A. 2C:33-28 by using "unreasonably loud and offensive coarse or abusive language" in addressing him in a public place, including by asking him "what kind of f---ing operation are you running here."
On May 31, 2013, Meade emailed the investigation report to Chief Handschuch. Noting that the Township Council had — "[b]y unanimous consent" — directed her to take action, Meade in turn directed Handschuch "to take any and all disciplinary action against Sgt. Hanna that you feel is appropriate in light of the report's findings."
That same day, Sergeant Hanna signed a second complaint-summons against Meade, alleging that she had "purposely com[e] into physical contact with officers and civilians in an attempt to obstruct and stop an authorized ESU training exercise in violation N.J.S.[A.] 2C:29-1." That second charge was decided after a two-day trial in April 2014,
Between the filing of Hanna's second complaint and the resolution of the charges against Meade, Meade sent a November 18, 2013 memorandum to Handschuch that began as follows:
The memorandum discussed numerous areas of unsatisfactory performance and requested a full response. An email from Handschuch acknowledged receipt of the memorandum and noted that a response would be forthcoming, but the record suggests that no response was received. The following fall, a number of resident complaints came in about the conduct of a particular LPD officer and, in a memorandum to Handschuch about those complaints, Meade again requested materials that she had asked for in the November 2013 memo but never received.
Although it is not clear from the record what specifically prompted the remark, Councilmember Michael Silverman testified that he said, at a Democratic Executive Committee meeting held at his home in December 2014, that "Michele [Meade] would not be having this problem if her name was Michael." Six people were physically present at the meeting, including Councilmembers Alfred Anthony, Shawn Klein, and Rufino Fernandez, Jr.; Councilmember Edward Meinhardt and another person were on speakerphone.
Meade alleged in her complaint that the conflict between her and Handschuch escalated in 2015, when she expressed concerns about the Police Chief's job performance to the Council. Meade submits that Livingston's labor attorney had counseled her against taking action against Handschuch while the criminal charges related to the ESU training were pending against her out of concern that Handschuch might then file a claim under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. Meade adds that, in late 2015, she endeavored to establish grounds for terminating the Chief's employment that would withstand challenge.
The complaint states that on June 30, 2015, Meade met with Councilmember and then-Mayor Silverman, as well as with the Deputy Mayor, the Human Resources Manager, and Livingston's labor counsel "to formulate a plan to address Handschuch's inadequate performance." Meade discussed the Chief's performance with attorney Jennifer Roselle, the "point person" from the law firm the Township of Livingston retained as counsel for labor and employment matters.
According to Roselle's deposition, Roselle found Meade's documentation regarding the Chief's performance likely sufficient to support disciplinary charges, but not termination. Roselle suggested to Meade that she should "try to strengthen a termination case" against the Chief and recommended an independent, outside investigation. Roselle also recommended that Meade ask the Council for its support in terminating the Chief, to have "a unified voice." When asked whether she had discussed with Meade "the effect the existence of [the] criminal case [against Meade] had on [Meade's] ability to manage the department that brought that criminal case," Roselle responded that she did not remember.
By letter dated October 30, 2015, the Township Clerk advised Handschuch "that the Township Council anticipate[d] discussing personnel matters related to [the Chief's] employment at its next meeting, scheduled for November 2, 2015." By email, Handschuch informed the Clerk that he would be unable to attend that
Shortly after receiving a forwarded copy of Handschuch's response, Silverman wrote an email to Meade:
Meade responded that she was similarly frustrated and added,
Silverman, copying the other members of the Council as well as Jennifer Roselle and the Township Attorney, responded, "Thank you," and asked the Clerk to "be sure that this is on the agenda [en]closed."
Despite such communications, however, Meade testified in her deposition that certain members of the Council "did not want to proceed with any adverse actions towards the chief" and that the Council did not authorize the hiring of "an outside investigator to conduct an investigation with an eye to potentially terminating the chief." Councilmember Shawn Klein explained that the Council's decision not to fund an independent investigation resulted from a fear that it "would cause things to drag on a lot longer" while being unlikely to uncover anything new. At the top of a list included in the summary judgment record and titled "Meade failures," Councilmember Shawn Klein noted that Meade "couldn't get rid of Chief; our new [Township Manager] did it in a couple of months... and he did it based on infractions that the Chief committed while [Meade] was at her position."
In addition to noting the lack of financial support for the investigation, Meade filed a certification stating that, "[a]t or around the beginning of 2016, Councilman Al Anthony (who had become Mayor of defendant Livingston at that time) suggested to me that maybe Chief Handschuch did not like reporting to a woman and should report to him as the Mayor instead," a claim that Anthony disputed in his deposition.
In November 2016, after a 4-1 vote, the Township Council passed a Resolution removing Meade from her position.
Meade does not appear to dispute that the Township Council took the procedural steps necessary to terminate her public employment. In their respective statements regarding the material facts of the case, the parties agreed that "[t]here is no dispute that Meade received the `Rice Notices,'
The November 16, 2016 Council Resolution explains the decision to terminate Meade's employment for cause as follows:
On the last point, Councilmember Klein testified to the following about Meade's difficulties in supervising Handschuch: Handschuch often failed to show up for work; that he picked favorites, leading to poor morale; that "there were tremendous problems with customer service"; that the Council asked Meade to ensure that the tint was removed from the windows of police cars, which "wasn't done"; and that the Council directed Meade to make sure the town's stray cat problem — for which the Chief and his staff were responsible "because the animal control officer is a police officer or under the aegis of the policed department" — but Meade "didn't take care of it, [and] the [C]hief didn't take care of it." In his list titled "Meade failures," Klein noted that Meade "[c]ouldn't fix Chief — our copy of legal does show Chief's failures over and over but she could not get him to shape up — that was her failure too." As noted above, Meade contests as false or misleading the reasons cited for her dismissal, including those related to her supervision of Handschuch, and argues that they were pretext.
After Meade's termination, Livingston used an outside headhunter to find a replacement, and there were women who applied for and were interviewed by Livingston for the Township Manager position. However, according to Councilmember Meinhardt, "[t]here [were] no qualified female employee[s] that were sufficient at that point ... to make a job offer to." The town hired Gregory Bonin in 2017 and — after Bonin's swift resignation, apparently to return to his former post, followed by a second search — the town awarded the position to Barry Lewis. Chief Handschuch retired voluntarily after Lewis became Township Manager. Meade was the only female Township Manager in Livingston's history, and the only Township Manager to be involuntarily terminated.
On January 31, 2017, Meade filed a complaint against Livingston asserting that she had been terminated based on her
Livingston filed a motion for summary judgment, which the trial court granted on April 11, 2019. In its decision, the trial court noted that "the only alleged discrimination — this arguable discrimination comes from plaintiff's conflict with the Chief of Police." The court stressed that "the Chief was subordinate to the plaintiff" and that "[p]laintiff and plaintiff alone had the authority to terminate the Chief of Police." Rejecting "[p]laintiff[`s] argument [that] the decision makers were explicitly aware that gender bias played a role in creating the situation that was causing them to consider Miss Meade's dismissal," the court found "no evidence of any pretextual behavior" and "no legitimate explanation regarding the grievances or commentary with regards to her performance as Town Manager." The court concluded, "We have a situation where an employee was terminated because of poor work performance after [eleven] years of service in the position, [and] the record is devoid of any gender discrimination related to this termination."
Meade appealed, and the Appellate Division affirmed in an unpublished opinion. The Appellate Division found that Meade failed to discipline or correct the Chief's behavior and rejected her argument that "she was impeded by the Council in taking action against the Chief because the Council did not authorize an expenditure for an independent investigation of the Chief's performance." The court reasoned that "an outside investigation corroborating such shortcomings ultimately may have been helpful for defending, after the fact, a decision to remove or discipline the Chief'; it stressed, however, that "such an investigation was not mandatory. The Council had the discretion to not allocate public funds from the municipal budget for this purpose. Plaintiff already possessed the sole authority to discharge or discipline the Chief."
The appellate court also found that Meade's theory of liability under the LAD was "upside down," noting that Meade failed to allege that the Chief created a hostile work environment or that the Council failed to address such a situation. In the court's view, "any discrimination here came from below plaintiff, not above her. She had the authority to eliminate the problem herself." The Appellate Division held that under the circumstances presented, "the trial judge appropriately found Meade's LAD claim unviable." Emphasizing the Township's "ample non-pretextual reasons that justified ending [Meade's] tenure as Township Manager," the court found that "[t]he Council did not engage in gender discrimination by letting her go."
We granted Meade's petition for certification. 245 N.J. 591, 247 A.3d 403 (2021). We also granted the National Employment Lawyer's Association of New Jersey (NELA) leave to appear as amicus curiae.
The parties and NELA make the following arguments regarding Livingston's liability under the LAD and whether summary judgment was improperly granted.
NELA, as amicus, echoes Meade's arguments that summary judgment was improperly granted. Additionally, both Meade and NELA urge this Court to adopt the cat's paw theory
Livingston posits that this is not a case for the Court to adopt the cat's paw theory of liability because Meade cannot show that Handschuch had the ability to, and did indeed, influence the Council in their decision to terminate Meade. Livingston contends that summary judgment was appropriate because Meade was terminated for her poor performance and failure to discipline Handschuch and argues that Meade failed to show that Livingston's reasons for her termination were pretextual.
Because the trial court dismissed Meade's claim on summary judgment, we review that decision de novo and apply the same standard that governs the trial court.
"The court's function is not `to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'"
Meade brought her claim against Livingston under the LAD. The LAD's goal is "nothing less than the eradication of the cancer of discrimination."
"The law is thus intended to protect `the civil rights of individual aggrieved employees' as well as `the public's strong interest in a discrimination-free workplace.'"
To analyze employment discrimination claims brought under the LAD, New Jersey has adopted the "procedural burden-shifting methodology" set forth in
It is thus the plaintiff who bears the burden to establish a prima facie discrimination claim.
Significantly, "[t]he evidentiary burden at the prima facie stage is `rather modest: it is to demonstrate to the court that plaintiff's factual scenario is compatible with discriminatory intent — i.e., that discrimination could be a reason for the employer's action.'"
Once the plaintiff makes that prima facie showing, the burden then shifts to the employer.
Finally, "[i]n the third stage of the burden-shifting scheme," the employee must "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."
"Although the burden of production shifts throughout the process, the employee at all phases retains the burden of proof that the adverse employment action was caused by purposeful or intentional discrimination."
Considering the facts of this case in the light most favorable to Meade as the party opposing this motion,
First, based on the evidence, Meade established a prima facie case of gender discrimination.
Livingston asserted that its decision to terminate Meade was rooted in her poor performance in a number of areas for which she was responsible, including but not limited to her failure to supervise or discipline the Chief. In response, to survive defendant's motion for summary judgment, Meade was then required to show
Under the circumstances, Meade has presented sufficient evidence to enable a reasonable jury to reach such a finding. Both Meade and Livingston agree that Meade's relationship with the Chief was untenable. Meade offered some evidence that two of the four Councilmembers who voted to terminate her had expressed the view that the Chief refused to accept a woman as his supervisor and that one of them had shared that concern with the other members of the Council. Silverman acknowledged his view that the Chief took issue with reporting to a woman. Additionally, Councilmember Silverman told Councilmembers Anthony, Klein, Fernandez, and Meinhardt that "Michele [Meade] would not be having this problem if her name was Michael." Councilmember Anthony, who was the Mayor of Livingston at the time, also allegedly suggested to Meade that the Chief should report to him rather than to Meade because the Chief did not like reporting to a woman, an allegation he denied. Although the Councilmembers alleged a number of areas of dissatisfaction with Meade's performance, a reasonable jury could conclude — in the combined light of Meade's evidence challenging the legitimacy of the other cited areas of dissatisfaction and the Council's own focus on the ongoing difficulties with Handschuch — that Meade's gender played a role in the Council's termination of her employment, contrary to the LAD. A reasonable jury could conclude that the failure of the Council to authorize an investigation of the Chief fatally undermined Meade's ability to discipline the Chief, who had made clear to Councilmembers his gender-bias toward Meade.
We do not suggest that the intent or import of the alleged remarks by Silverman and Anthony — or even the existence of the remark attributed to Anthony — are beyond dispute. Shawn Klein, for example, testified that he viewed Silverman's comment as a joke, that he did not think it was true, and that he did not "think [Silverman] thought it was true, either," adding that "[t]he chief also didn't listen to us. We were calling him for meetings and he wouldn't — you know, we're a bunch of guys and the chief wouldn't listen to us, either, so he wouldn't listen to anyone." It is possible that a jury, upon weighing the evidence and making credibility determinations, may likewise find the remark unrelated to the Council's employment decision. But this is the summary judgment stage, and all conflicting inferences from the facts presented must be resolved in Meade's favor.
Meade was not expected to prove that gender was the "sole or exclusive" factor in her termination at this stage; rather she needed only to show "by a preponderance of the evidence that [her gender] made a difference" in that decision.
In reaching that determination, we take a different view of the importance of the Township Manager's statutory powers than the trial and appellate courts.
In addition to the Manager's statutory powers, the Livingston Township Code specifies that the Township Manager has "the power and authority to reprimand, suspend, dismiss, deduct pay [from] or reduce in rank ... any member of the Police Division for any violation of any of the rules and regulations," including those pertaining to "[w]illful disobedience of orders," "[a]bsence without leave" or "[r]efus[al] to perform any duty [or] evasion of any duty."
However, under N.J.S.A. 40A:14-147, a permanent member or officer of the police department, such as the police chief, can be removed only for cause, must receive written notice explaining the charges against him within a set amount of time, and is entitled to a hearing before the disciplining body to contest the charges against him.
The Appellate Division concluded that N.J.S.A. 40A:14-147's for-cause requirement had been satisfied by the record evidence of the Chief's "disobedience of rules and regulations established for the government of the police department and force." (emphasis removed). But Meade has presented testimony that the Township's labor counsel took a different view of the quantum of evidence that had been amassed in support of a potential employment action against Handschuch; that counsel recommended an independent investigation; and that the Council, while directing Meade to take action against the Chief and even to do so in consultation with the labor and employment attorney, declined to grant the funds necessary for that outside investigation. From that evidence, a reasonable jury could find that Livingston impeded Meade's efforts to terminate the Chief's employment.
The fact that the statutes and municipal code provisions that grant Meade the ability to discipline or terminate Township officers, including the Chief, confer that ability in absolute terms, without the contingency of an investigation, is not dispositive. Counsel retained by Meade's employer advised Meade that the cause component was wanting, and a jury could reasonably find that Meade's hesitance to disregard counsel's advice and to fire the Chief without demonstrable cause was reasonable, given the risk of a potential legal challenge.
In sum, the trial and appellate courts focused primarily on the fact that a Township Manager has the legal ability to unilaterally fire the Township's Police Chief and did not consider evidence presented about counsel's advice in the light most favorable to Meade.
To the extent that Meade and the NELA urge this Court to adopt the cat's paw theory of liability, we decline to do so because this is not a cat's paw case.
The cat's paw theory of liability applies to "a situation in which a biased subordinate, who lacks decisionmaking
The trial court ruled in favor of the employee, and the Appellate Division affirmed as to the CEPA claim but reversed on the LAD claim.
For the reasons set forth above, we reverse the judgment of the Appellate Division and remand for further proceedings in accordance with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, SOLOMON, and PIERRELOUIS join in JUSTICE FERNANDEZVINA's opinion.