In Okakpu v. Irvington Bd. of Education, 2022 N.J. Super. Unpub. LEXIS 1297 (decided July 18, 2022), our Appellate Division was asked to decide whether a triable issue was created by the Irvington Board of Education (“IBOE”) stating that one of the reasons it decided not to renew the contract of non-tenured Nkemdilum Okakpu was her conduct in displaying the flag of Nigeria, her country of origin, outside her classroom. In doing so, the Appellate Division reversed the trial court below which granted the IBOE’s motion for summary judgment on the basis that the plaintiff had “failed to establish that [the Board’s] decision to non-renew her was based on anything other than a bona fide evaluation of her job performance and disciplinary issues.”
On appeal the Plaintiff argued, in part, that the IBOE “listing the flag of Nigeria outside her classroom” on her non-renewal paperwork was “inherently discriminatory on its face” and, therefore, direct evidence of national origin discrimination which by itself should have been sufficient to defeat the IBOE summary judgment motion. In opposition, the IBOE argued “the plaintiff failed to prove their conduct was discriminatory toward Nigerians or created an animus towards her protected class.” The Appellate Division then reviewed the different analytic approaches a court must take depending on whether the employment claim is based on purely circumstantial evidence as opposed to the existence of direct evidence of discrimination. A review of the court’s insightful discussion in this regard is found to be edifying.
The Appellate Court began by explaining how an employee who commences an action seeking redress for an alleged violation of the LAD “may attempt to prove employment discrimination by either direct or circumstantial evidence.” Bergen Com. Bank v. Sisler, 157 N.J. 188, 208 (1999)). Determining which analytical framework controls an LAD claim “depends upon whether the employee attempts to prove employment discrimination by . . . direct or circumstantial evidence.” Grande v. Saint Clare’s Health Sys., 230 N.J. 1, 16 (2017).
Direct proof of discrimination has been described as “rare” and “hard to come by.” A.D.P. v. ExxonMobil Rsch. & Eng’g Co., 428 N.J. Super. 518, 531 (App. Div. 2012). The “key difference” between a direct evidence case and a circumstantial evidence case “is the kind of proof the employee produces on the issue of bias. ” Smith v. Millville Rescue Squad, 225 N.J.373, 396 (2016) Okakpu at *7
Direct evidence is the kind of evidence that, without inference or presumption, definitively shows the employer’s animus towards the protected class and its reliance on such when making the adverse employment decision . Sisler, 157 N.J. at 208. See also Smith, 225 N.J. at 394 (direct evidence “if true, must demonstrate not only a hostility toward members of the employee’s class, but also a direct causal connection between that hostility and the challenged employment decision.”). *7. It “may include evidence ‘of conduct or statements by persons involved in the [decision making] process that may be viewed as directly reflecting the alleged discriminatory attitude.'” Fleming v. Corr. Healthcare Sols., Inc., 164 N.J. 90, 101 (2000). A plaintiff has presented direct evidence of discrimination if the court determines that a statement made by a decisionmaker associated with the [decision making] process actually bore on the employment decision at issue and communicated [the] proscribed animus.” Smith at 394-95 (internal quotation marks and citations omitted). Okakpu at *8.
By contrast, circumstantial evidence typically includes statements such as “statements by non-decisionmakers, statements by decisionmakers unrelated to the contested employment decision, and other stray remarks[.]” (2003) (quoting Fakete v. Aetna, Inc., 308 F.3d 335, 337 n.2 (3d Cir. 2002)). But statements or even head nods made by those with decision making authority in tandem with the adverse employment action can be considered direct. See A.D.P., 428 N.J. Super. at 534 (“a scrap of paper saying, ‘Fire Rollins—she is too old’ was an example of direct evidence.”); see also McDevitt, 175 N.J. at 523 (decision maker’s head nod while his secretary informed plaintiff he was fired for being “too old” was direct evidence). Okakpu at *9.
If the employee’s claim is based on circumstantial evidence of discrimination, New Jersey courts apply the analytical framework established in McDonnell Douglas. See Victor v. State, 203 N.J. 383, 408 (2010). The McDonnell Douglas burden-shifting framework “suppl[ies] a tool for assessing claims, typically at summary judgment, when the plaintiff relies on indirect proof of discrimination.” Comcast Corp. v. Nat’l Ass’n of Afr. Am. – Owned Media, 140 S. Ct. 1009, 1019 (2020).
But in the rare case “where there is direct evidence of discrimination, the McDonnell-Douglas analysis does not apply.” Smith, 225 N.J. at 396. Instead, the Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), or mixed motive, framework is utilized. Under the mixed motive analytical structure, once direct evidence of discrimination has been shown, the burden automatically shifts to the defendant to show that it would have made the same decision regardless of the alleged bias. Smith at 395 (Once a plaintiff shows that an employer had a discriminatory animus, through direct evidence of discrimination, the employer has only an affirmative defense on the question of but for cause or cause in fact).
Although the Appellate Court in Okakpu disagreed with Plaintiff’s contention that the McDonnell Douglas circumstantial evidence of employment discrimination framework should not have been used by the trial court below to grant summary judgment, it did agree that with plaintiff that the IBOE’s inclusion of “hanging the flag of Nigeria outside her classroom” as a reason for plaintiff’s non-renewal “raised issues of fact as to whether plaintiff’s national origin was considered by decision makers when making the adverse employment decision” which needed to be decided by a jury. Okakpu at *10. Accordingly, the Appellate Division reversed that part of the decision of the trial court granting summary judgment to the IBOE on plaintiff’s national origin discrimination claim alleging a violation of New Jersey’s Law Against Discrimination.
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