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).