McKenna v. Pacific Rail Service ( 1994 )

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
8-17-1994
McKenna, et al. v. Pacific Rail Service
Precedential or Non-Precedential:
Docket 93-5253, 93-5277
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 93-5253, 93-5277,
93-5385 and 93-5386
___________
PETER MCKENNA; GREG SPINA; JACK RICCIARDI; JOHN OLIVER;
ANDREW HENNESSEY; AL ARMETTA; PINCUS COHEN; DAVE QUAID;
ADAM LUKASWESKI; WILLIAM HARPER; DORRANCE A. LINDH;
JOHN GUGLIOTTA; GEORGE WHITEHEAD; JOHN SHEA; ANTHONY
NAZARE; ROBERT TIGHE; DENNIS MCCARTHY; RICHARD
MONTACALVO; JEANETTE MCCAFFERTY; GEORGE MARTIN; RALPH
FERNANDEZ; PAUL NOETHE; PATRICIA BURWITZ; MICHAEL
DEMONE; EDDIE DECHERT; SALVATORE PETRUZZELLI; PHYLLIS
LINDH; JOSEPH K. PFEIL,
vs.
PACIFIC RAIL SERVICE,
Pacific Rail Service,
Appellant Nos. 93-5253
and 93-5385.
PETER MCKENNA; GREG SPINA; JACK RICCIARDI; JOHN OLIVER;
ANDREW HENNESSEY; AL ARMETTA; PINCUS COHEN; DAVE QUAID;
ADAM LUKASWESKI; WILLIAM HARPER; DORRANCE A. LINDH;
JOHN GUGLIOTTA; GEORGE WHITEHEAD; JOHN SHEA; ANTHONY
NAZARE; ROBERT TIGHE; DENNIS MCCARTHY; RICHARD
MONTACALVO; JEANETTE MCCAFFERTY; GEORGE MARTIN; RALPH
FERNANDEZ; PAUL NOETHE; PATRICIA BURWITZ; MICHAEL
DEMONE; EDDIE DECHERT; SALVATORE PETRUZZELLI; PHYLLIS
LINDH; JOSEPH K. PFEIL,
vs.
PACIFIC RAIL SERVICE,
Peter McKenna; Greg Spina; Jack Ricciardi; John Oliver;
Andrew Hennessey; Al Armetta; Pincus Cohen; Dave Quaid;
Adam Lukasweski; William Harper; Dorrance A. Lindh;
John Gugliotta; George Whitehead; John Shea; Anthony
Nazare; Robert Tighe; Dennis McCarthy; Richard
Montacalvo; Jeanette McCafferty; George Martin; Ralph
Fernandez; Paul Noethe; Patricia Burwitz; Michael
Demone; Eddie Dechert; Salvatore Petruzzelli; Phyllis
Lindh; Joseph K. Pfeil,
Appellants Nos. 93-5277
and 93-5386.
___________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Civil No. 91-00693)
___________
ARGUED MARCH 10, 1994
BEFORE: MANSMANN and LEWIS, Circuit Judges,
and MCKELVIE, District Judge.*
(Filed August 11, 1994)
___________
John W. Kyle
Roger D. Meade
Littler, Mendelson, Fastiff, Tichy, & Mathiason
World Trade Center, Suite 1653
Baltimore, MD 21202-3005
*
Honorable Roderick R. McKelvie, United States District Judge
for the District of Delaware, sitting by designation.
Gary P. Scholick (ARGUED)
Littler, Mendelson, Fastiff, Tichy & Mathiason
650 California Street, 20th Floor
San Francisco, CA 94108
Attorneys for Appellant/Cross-appellee, Pacific Rail Service
Louie D. Nikolaidis
Thomas M. Kennedy (ARGUED)
Lewis, Greenwald, Kennedy, Lewis,
Clifton & Schwartz
355 Murray Hill Parkway
East Rutherford, NJ 07073
Attorneys for Appellees/Cross-appellants, McKenna, Spina,
Ricciardi, Oliver, Hennessey, Armetta, Cohen, Quaid,
Lukasweski Harper, Lindh, Gugliotta, Whitehead, Shea,
Nazare, Tighe, McCarthy, Montacalvo, McCafferty,
Martin, Fernandez, Noethe, Burwitz, Demone, Dechert,
Petruzzelli, Lindh, and Pfeil
___________
OPINION OF THE COURT
___________
LEWIS, Circuit Judge.
Appellees/cross-appellants are 23 of 28 former yard and clerical
employees of Pennsylvania Truck Lines, Inc. ("PTL") who asserted
that appellant/cross-appellee Pacific Rail Services ("Pacific
Rail") engaged in age discrimination in violation of the New
Jersey Law Against Discrimination (the "LAD") by failing to hire
them in 1990. Since the trial in this case, the United States
Supreme Court has issued a decision clarifying the standards by
which federal employment discrimination cases are to be judged.
St. Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742 (1993). Because
we believe the New Jersey Supreme Court would adopt Hicks's
clarification of the test to be applied in federal discrimination
cases in interpreting the LAD, we will vacate the judgment that
was entered and remand for a new trial. To assist the district
court on remand, we will also decide several subsidiary issues
relating to individual claims and plaintiffs.
I.
Because our resolution of the legal issues will require a new
trial, it is not necessary to discuss the facts in great detail.
The following, however, provides some background to the dispute.
Beginning in 1960, PTL performed lift operations -- loading and
unloading freight from flat bed railroad cars -- for Consolidated
Rail Corporation ("Conrail") at its North Bergen, New Jersey,
terminal. In July, 1990, however, after solicitation of bids by
Conrail, Pacific Rail won the North Bergen contract, effective
September 1, 1990.
Upon learning that PTL had lost the North Bergen contract, PTL
employees at the North Bergen terminal became interested in
working for Pacific Rail at that site. Pacific Rail
representatives testified at trial, however, that even before
submitting its bid, Pacific Rail had decided not to simply hire
all of the PTL/North Bergen yard and clerical workers
"wholesale," because Pacific Rail was concerned about the
attitudes and work habits of some of the workers.1
1
. Plaintiffs at trial disputed both the sincerity of Pacific
Rail's concern and the accuracy of Pacific Rail's
characterization of the PTL employees at North Bergen.
Instead, upon winning the North Bergen contract, Pacific Rail
apparently undertook a three-step hiring process. First, Pacific
Rail offered positions to its own employees at Conrail's
Elizabeth, New Jersey ("E-Rail") terminal on a "promote from
within" theory. (Pay rates at North Bergen were higher than at
E-Rail, so a move to North Bergen was effectively a promotion,
according to the Pacific Rail representatives.) Testimony
indicated that one of the six yard and clerical employees
transferred from E-Rail on this basis was over 40 years old.
Pacific Rail next offered employment to three Conrail clerks and
two PTL employees from the nearby Conrail/PTL terminal at Kearny,
New Jersey. The three Conrail offerees (only two of whom
accepted their offers) were over 40. The two PTL offerees (both
of whom accepted) were under 40.
Finally, Pacific Rail hired all 11 applicants referred by the
union local that represented yard and clerical employees at E-
Rail. Of these, one was over 40.
As of September 1, only a limited number of positions in North
Bergen remained open. Pacific Rail apparently offered employment
to two former PTL/North Bergen yard employees who were over 40,
but both refused the offer. Then a former PTL supervisor working
for Pacific Rail recommended for hire four former PTL/North
Bergen yard employees, two of whom were in their 20s and two of
whom were over 40. Pacific Rail offered employment to the
younger two, and they accepted. To fill a remaining clerk
position, Pacific Rail made offers to two former PTL/North Bergen
clerical employees, both over 40, but both declined. Ultimately,
instead of simply filling the clerk position, Pacific Rail
transferred a person who was over 40 from E-Rail to assist with
clerical work and act as office manager.
To summarize, prior to September 1, Pacific Rail had apparently
hired 21 employees, none of whom came from the pool of PTL
employees at North Bergen. Only four of these 21 individuals
were over 40 years old. After September 1, Pacific Rail hired
either three or four more employees, at least two of whom were
under 40 and from PTL/North Bergen and at least one of whom was
over 40 and formerly with E-Rail.2 Thus, of the 25 yard and
clerical employees that the evidence showed Pacific Rail hired to
work at North Bergen, either 19 or 20 were under 40 years old.
The 28 former PTL/North Bergen yard and clerical employees who
filed this lawsuit were over 40. They alleged that Pacific
Rail's failure to hire them was due to age discrimination in
violation of the LAD. A jury found in favor of 18 of the 28
employees and awarded them a total of more than $7 million
($1,448,000 in back pay and $5,743,500 in front pay). Both
Pacific Rail and the 18 verdict winners, plus five plaintiffs
whose claims were dismissed by the district court, appeal and
cross-appeal several issues.
2
. Curiously, the record is somewhat ambiguous as to whether
three or four additional employees were hired after
September 1. Plaintiffs' Exhibit 10 indicates that Pacific
Rail hired a total of 25 persons. The parties agree that 21
were hired prior to September 1. That would leave four to
be hired after September 1, but, as discussed in the text,
the parties specifically discuss only three employees hired
after that date. The discrepancy is immaterial for our
purposes, as we are certain it will be clarified on remand.
II.
The primary issue presented involves the delicate task of
predicting how the New Jersey Supreme Court would interpret and
apply the LAD in the aftermath of the United States Supreme
Court's decision in St. Mary's Honor Ctr. v. Hicks, 113 S. Ct.
2742 (1993). As a federal court sitting in diversity, the
district court was, and we are, obliged to apply state
substantive law. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938);
Colantuno v. Aetna Ins. Co., 980 F.2d 908, 909 (3d Cir. 1992).
In so doing, we are not free to impose our own view of what state
law should be; we are to apply state law as interpreted by the
state's highest court. Id. In the absence of guidance from that
court we are to refer to decisions of the state's intermediate
appellate courts for assistance in determining how the highest
court would rule. Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107,
113 (3d Cir. 1992); Fisher v. USAA Casualty Ins. Co., 973 F.2d
1103, 1105 (3d Cir. 1992). In cases such as this, where neither
the state supreme court nor any intermediate appellate courts
have spoken to the issue at hand, our task of predicting state
law becomes even more complicated. Nevertheless, we must proceed
into these uncharted waters, using pronouncements from the New
Jersey Supreme Court on analogous issues as our compass.
A.
In Hicks, the Supreme Court considered "whether, in a suit
against an employer alleging intentional racial discrimination in
violation of [Title VII], the trier of fact's rejection of the
employer's asserted reasons for its actions mandates a finding
for the plaintiff." Hicks, 113 S. Ct. at 2746. Under the
familiar McDonnell Douglas shifting-burden analysis applicable to
federal employment discrimination cases involving indirect proof
of discrimination, the plaintiff bears the burden of proving a
relatively simple prima facie case, which the employer must rebut
by articulating a legitimate, non-discriminatory reason for its
actions. See generally Chipollini v. Spencer Gifts, Inc., 814
F.2d 893, 897 (3d Cir. 1987).3 Prior to Hicks, we had held that
a finding that a defendant employer had articulated false reasons
mandated entry of judgment for plaintiff. See Chipollini, 814
F.2d at 898; Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d
1393, 1395-96 (3d Cir. 1984). Hicks changed that: the Court
ruled definitively that a finding that an employer had
articulated a pretextual reason for its actions does not mandate
judgment for a plaintiff. Instead, "a reason cannot be proved to
be ``a pretext for discrimination' unless it is shown both that
the reason was false, and that discrimination was the real
reason." Hicks, 113 S. Ct. at 2752. Thus, "[t]hat the
3
. The McDonnell Douglas analysis was derived from McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See also
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248
(1981). Although McDonnell Douglas itself involved
allegations of intentional (disparate treatment)
discrimination in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e, the shifting burden
analysis with which the case name is now synonymous also
has been applied in section 1983 cases, section 1981 cases
and age discrimination cases. See Hicks, 113 S. Ct. at
2746-47 n.1; Seman v. Coplay Cement Co., slip op. at 8 n.7
No. 93-3544 (3d Cir. June 8, 1994); Geary v. Visitation of
the Blessed Virgin Mary Parish Sch., 7 F.3d 324, 329 & n.4
(3d Cir. 1993).
employer's proffered reason [for its actions] is unpersuasive, or
even obviously contrived, does not necessarily establish that the
plaintiff's proffered reason of race is correct." Id. at 2756
(emphasis added). In our most recent decisions addressing this
issue, we have followed this teaching that a finding of pretext
may lead to a reasonable inference of discriminatory motives, but
it does not automatically compel a finding of discrimination.
See Miller v. CIGNA Corp., slip op. at 19-20, No. 93-1773 (3d
Cir. June 28, 1994); Seman v. Coplay Cement Co., slip op. at 9,
No. 93-3544 (3d Cir. June 8, 1994); Geary v. Visitation of the
Blessed Virgin Mary Parish Sch., 7 F.3d 324, 329 n.4 (3d Cir.
1993).
B.
In this LAD case, the district court instructed the jury several
times that the plaintiffs bore the burden of proving that they
were not hired because of their age. See App. at 91-93. The
court also instructed the jury that in evaluating Pacific Rail's
asserted legitimate business reasons for its actions, they were
to decide whether those reasons were its true reasons or whether
they "ha[d] been presented to hide or avoid disclosure of the
true reason, namely: age discrimination." App. at 94. In
summarizing the charge, the court said:
If I may recap for you, if you find that plaintiff has
established . . . either, one, that his/her age was a
determining factor "but for" which he/she would have
been hired; or two, that the reasons advanced by the
defendant for not hiring plaintiff were a pretext, a
reason or reasons unworthy of credence, then plaintiff
will have established his/her claim of intentional age
discrimination and you must return a verdict in his/her
favor. If, however, he/she has failed to establish
either of those two propositions, then your verdict
must be in favor of the defendant.
App. at 94-95 (emphasis added). Clearly, these instructions
would be an incorrect statement of federal law after Hicks.4
C.
The question, however, is whether the New Jersey courts would
apply Hicks in an LAD case.5 Hicks, of course, involved the
United States Supreme Court's interpretation of federal anti-
discrimination statutes and case law. Whether the New Jersey
Supreme Court will decide that the same principles apply in cases
brought under the LAD is another question.
4
. Pacific Rail requested a jury instruction explaining that
even if the jury rejected Pacific Rail's rationale as
unsupported by the evidence or false, the jury would
nevertheless still need to find that the plaintiffs met
their burden of proving wrongful discrimination. Suppl.
App. at 2799. The district court did not give this
instruction.
5
. Pacific Rail contends that plaintiffs are estopped from
arguing that Hicks does not apply because the plaintiffs
contended throughout this litigation that New Jersey courts
generally follow federal law in this area. Plaintiffs
certainly have consistently taken the position that the
standards and allocations of proof applicable to federal
Title VII cases apply in cases involving the LAD. But on
these facts we cannot say plaintiffs are estopped from
arguing that Hicks does not apply. Trial took place in
September, 1992, and post-trial motions were decided in
March and April, 1993. Hicks was not decided until June,
1993. Until then, our position on this issue, which the
district court was bound to follow, was one the plaintiffs
believed the New Jersey Supreme Court would also follow.
The fact that the United States Supreme Court has since
disavowed our position should not foreclose the plaintiffs
from arguing that the New Jersey Supreme Court might
nonetheless decide to adopt the approach taken in Title VII
cases in this circuit before Hicks.
The LAD provides:
It shall be an unlawful employment practice, or,
as the case may be, an unlawful discrimination:
a. For an employer, because of the race, creed,
color, national origin, ancestry, age, marital status,
affectional or sexual orientation, sex or atypical
hereditary cellular or blood trait of any individual,
or because of the liability for service in the Armed
Forces of the United States or the nationality of any
individual, to refuse to hire or employ or to bar or to
discharge or require to retire, unless justified by
lawful considerations other than age, from employment
such individual or to discriminate against such
individual in compensation or in terms, conditions or
privileges of employment . . . .
N.J. Stat. Ann. 10:5-12(a). First enacted in 1945, well before
federal legislative attempts to eliminate discrimination in the
workplace, the LAD was intended by the New Jersey legislature to
eradicate "the cancer of discrimination." Jackson v. Concord
Co., 54 N.J. 113, 124, 253 A.2d 793, 799 (1969); see Lehmann v.
Toys ``R' Us, Inc., 132 N.J. 587, 600, 626 A.2d 445, 451 (1993).6
6
. The New Jersey legislature has provided:
All persons shall have the opportunity to obtain
employment . . . without discrimination because of
race, creed, color, national origin, ancestry,
age, marital status, affectional or sexual
orientation, familial status, or sex, subject only
to conditions and limitations applicable alike to
all persons. This opportunity is recognized and
declared to be a civil right.
N.J. Stat. Ann. 10:5-4. It has clearly stated the intent
behind the LAD within the statute itself:
The Legislature finds and declares that
practices of discrimination against any of its
inhabitants, because of race, creed, color,
national origin, ancestry, age, sex, affectional
or sexual orientation, marital status, familial
status, liability for service in the Armed Forces
The New Jersey Supreme Court has generally looked to standards
developed under federal anti-discrimination law for guidance in
construing the LAD. Lehmann, 132 N.J. at 600, 626 A.2d at 452.
The New Jersey Court has adopted the McDonnell Douglas framework,
(..continued)
of the United States, or nationality, are matters
of concern to the government of the State, and
that such discrimination threatens not only the
rights and proper privileges of the inhabitants of
the State but menaces the institutions and
foundation of a free democratic State; provided,
however, that nothing in this expression of policy
prevents the making of legitimate distinctions
between citizens and aliens when required by
federal law or otherwise necessary to promote the
national interest.
The Legislature further declares its
opposition to such practices of discrimination
. . . in order that the economic prosperity and
general welfare of the inhabitants of the State
may be protected and ensured.
The Legislature further finds that because of
discrimination, people suffer personal hardships,
and the State suffers a grievous harm. The
personal hardships include: economic loss; time
loss; physical and emotional stress; and in some
cases severe emotional trauma, illness,
homelessness or other irreparable harm resulting
from the strain of employment controversies;
relocation, search and moving difficulties;
anxiety caused by lack of information,
uncertainty, and resultant planning difficulty;
career, education, family and social disruptions;
and adjustment problems, which particularly impact
on those protected by this act. Such harms have,
under the common law, given rise to legal
remedies, including compensatory and punitive
damages. The Legislature intends that such
damages be available to all persons protected by
this act and that this act shall be liberally
construed in combination with other protections
available under the laws of this State.
N.J. Stat. Ann. 10:5-3.
although it has noted that it has never "embraced the McDonnell
Douglas test literally, invariably, or inflexibly." Grigoletti
v. Ortho Pharm. Corp., 118 N.J. 89, 97-98, 570 A.2d 903, 907
(1990). Instead, the New Jersey Supreme Court has demonstrated a
marked willingness, and has instructed New Jersey courts in
general, to treat the McDonnell Douglas test as "only a general
framework for analyzing unlawful discrimination claims" which
"must be modified where appropriate." Erickson v. Marsh &
McLennan Co., Inc., 117 N.J. 539, 550, 569 A.2d 793, 799 (1990);
see generally Carrington v. RCA Global Commun., Inc., 762 F.
Supp. 632, 644-45 (D. N.J. 1991) (noting that "[t]here is little
reason to believe that New Jersey courts will exhibit slavish
devotion to federal law in interpreting the NJLAD").
Thus, the New Jersey Supreme Court has refused to apply the
McDonnell Douglas framework in LAD cases alleging gender
discrimination in the form of unequal pay, Grigoletti, supra;
modified the elements of the McDonnell Douglas prima facie case
in the context of reverse discrimination failure-to-hire cases,
Erickson, supra; and shifted to employers the burden of proving
the validity of their decisions in some handicap discrimination
cases. Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363,
541 A.2d 682 (1988). See also Jamison v. Rockaway Twp. Bd. of
Educ., 242 N.J. Super. 436, 445-47, 577 A.2d 177, 183 (1990)
(establishing a variation of the McDonnell Douglas framework to
apply in cases alleging a retaliatory failure to promote).
Plaintiffs point to this willingness to modify the McDonnell
Douglas framework as evidence that the New Jersey Supreme Court
would disregard Hicks and instead hold that a plaintiff asserting
a claim of employment discrimination pursuant to the LAD is
entitled to judgment as a matter of law if he or she has proven a
prima facie case and has demonstrated that the reason or reasons
the employer gave for the challenged employment action were
false.
It is true that the New Jersey Supreme Court has taken to heart
the legislature's expressed intention that the LAD is to be
construed liberally. See supra note 6. It is also true,
however, that the legislature has admonished New Jersey courts to
construe the provisions of the LAD "fairly and justly with due
regard to the interests of all parties," N.J. Stat. Ann. 10:5-27,
as the New Jersey Supreme Court itself recognized in Andersen v.
Exxon Co., 89 N.J. 483, 496, 446 A.2d 486, 492 (1982). Read
together, these admonitions are not inconsistent with one another
and are both significant to and instructive in our search for
guidance. As we explain more fully below, because the New Jersey
legislature intended to protect and compensate victims of
discrimination but not to relieve them of the burden of proving
unlawful discrimination, and because the New Jersey rule
regarding presumptions parallels the federal rule on presumptions
upon which the Hicks Court based its decision, we predict that
the New Jersey Supreme Court would endorse Hicks's view that a
plaintiff in a discrimination case is not entitled to judgment as
a matter of law simply because he or she proves a prima facie
case and that the reason or reasons asserted by his or her
employer for the challenged action were false.
Our decision is informed by a number of observations concerning
New Jersey law. First, under New Jersey law, as under federal
law, plaintiffs have always retained the ultimate burden of
demonstrating that the actions they challenged were due to
discrimination. See, e.g., Peper v. Princeton Univ. Bd. of
Trustees, 77 N.J. 55, 87, 389 A.2d 465, 478 (1978); Kearny
Generating Sys. v. Roper, 184 N.J. Super. 253, 445 A.2d 1159
(1982).7 Our understanding of the McDonnell Douglas framework
7
. We acknowledge that the New Jersey Supreme Court has not
always been entirely clear on this point. In Peper, the
case in which it decided to adopt the McDonnell Douglas
shifting burden scheme, the court stated in dicta that it
agreed with the statements of a federal judge who described
the McDonnell Douglas scheme as shifting the burden of
proof, rather than simply of production, to the defendant
once a prima facie case has been made out. Peper, 77 N.J.
at 84, 389 A.2d at 480. The focus of Peper, however, was
on the plaintiff's inability to establish a prima facie
case. That and numerous statements since by the New Jersey
Supreme Court and superior courts confirming that the
burden of proof does not shift (e.g., Goodman v. London
Metals Exch., Inc., 86 N.J. 19, 429 A.2d 341 (1981);
Kearny, supra), convince us that this single statement in
Peper cannot serve as a basis for concluding that the court
would refuse to incorporate the principles of Hicks into
the law of the LAD.
Similarly, statements in Jamison v. Rockaway Twp. Bd. of
Educ., 242 N.J. Super. 436, 577 A.2d 177 (1990), do not
sway our view of the burden placed on a plaintiff asserting
a straightforward LAD claim. In that case, the New Jersey
Superior Court referred extensively to a decision of the
Court of Appeals for the Ninth Circuit, Wrighten v. Metro.
Hosp., Inc., 726 F.2d 1346 (9th Cir. 1984), describing the
McDonnell Douglas formulation applicable in retaliatory
discharge cases. The Jamison court cited Wrighten as
providing that an employee asserting a retaliatory
discharge may "show by preponderating evidence that a
discriminatory intent motivated the employer's action" by
"proving that the articulated reason is a pretext for the
retaliation or that a discriminatory reason more likely
motivated the employer." Jamison, 242 N.J. Super. at 445,
before Hicks similarly required that the plaintiff bear the
ultimate burden of proving that the challenged employment action
resulted from unlawful discrimination. See, e.g., Billet v.
CIGNA Corp., 940 F.2d 812, 817 (3d Cir. 1991). Our decisions
finding that this burden could be borne merely by demonstrating
that the asserted legitimate, non-discriminatory reasons for the
employer's actions were incredible were based on the weight given
to the McDonnell Douglas prima facie case as a "presumption." In
other words, our (and other courts') reasoning that proving
pretext entitled plaintiff to judgment reflected a belief that
the presumption of discrimination raised by the plaintiff's
ability to make out a prima facie case had not been rebutted and
was only strengthened by the proven falsity of the reasons the
employer gave for its actions, thus mandating a decision that the
employer's actions had been motivated by unlawful discrimination.
See Hicks, 113 S. Ct. at 2762-63 (Souter, J., dissenting). Hicks
clarified that under federal law the presumption raised by
establishment of the prima facie case no longer exists once an
employer has articulated a legitimate, nondiscriminatory reason
for its actions. It does not hold that proving that reason false
(..continued)
577 A.2d at 182 (emphasis added). Doing so, the court
added, creates "a presumption . . . that the adverse
employment action was the product of improper retaliatory
intent. . . . Then, the employer must prove by the
preponderance of the evidence that the adverse action would
have been taken regardless of retaliatory intent." Id. at
445-46, 577 A.2d at 182. The shifting of the ultimate
burden in a retaliatory discrimination case does not
necessarily imply that the New Jersey Supreme Court would
advocate any shift or lessening of the burden in a
straightforward failure-to-hire case.
will never suffice to support a decision for a plaintiff; it
merely establishes that the plaintiff does not merit judgment as
a matter of law once falsity is proven.
In thus clarifying the law, the Court in Hicks referred to and
relied upon Federal Rule of Evidence 301, concerning
presumptions.8 Hicks, 113 S. Ct. at 2747; see also id. at 2749
("[T]he Court of Appeals' holding that rejection of the
defendant's proffered reasons compels judgment for the plaintiff
disregards the fundamental principle of Rule 301 that a
presumption does not shift the burden of proof, and ignores our
repeated admonition that the Title VII plaintiff at all times
bears the ``ultimate burden of persuasion.'"). The New Jersey
Supreme Court has similarly interpreted the LAD, describing the
prima facie stage of the McDonnell Douglas test as establishing a
"rebuttable presumption" of discrimination. Erickson, 117 N.J.
at 551, 569 A.2d at 799. It has also stated that when a
defendant rebuts the presumption by articulating a legitimate
nondiscriminatory reason for its actions, the inference of
discrimination which literally arose from the plaintiff's
evidence is destroyed. Goodman v. London Metals Exch., Inc., 86
8
. Rule 301 provides:
In all civil actions and proceedings not
otherwise provided for by Act of Congress or by
these rules, a presumption imposes on the party
against whom it is directed the burden of going
forward with evidence to rebut or meet the
presumption, but does not shift to such party the
burden of proof in the sense of the risk of
nonpersuasion, which remains throughout the trial
upon the party on whom it was originally cast.
N.J. 19, 33, 429 A.2d at 341, 348 (1981). Therefore,
corresponding reference to the New Jersey Rule of Evidence
regarding presumptions seems appropriate, and our reference
thereto provides further support for the conclusion that New
Jersey would clarify the law of the LAD as the Court in Hicks
clarified Title VII jurisprudence.
Like Federal Rule of Evidence 301, New Jersey Rule of Evidence
3019 provides that the introduction of evidence to rebut a
presumption destroys that presumption, leaving only that evidence
and its inferences to be judged against the competing evidence
and its inferences to determine the ultimate question at issue
(in an LAD case, the question of whether the defendant illegally
9
. The rule provides:
Except as otherwise provided in Rule 303 or
by other law, a presumption discharges the
burden of producing evidence as to a fact
(the presumed fact) when another fact (the
basic fact) has been established.
If evidence is introduced tending to disprove
the presumed fact, the issue shall be
submitted to the trier of fact for
determination unless the evidence is such
that reasonable persons would not differ as
to the existence or nonexistence of the
presumed fact. If no evidence tending to
disprove the presumed fact is presented, the
presumed fact shall be deemed established if
the basic fact is found or otherwise
established. The burden of persuasion as to
the proof or disproof of the presumed fact
does not shift to the party against whom the
presumption is directed unless otherwise
required by law. Nothing in this rule shall
preclude the judge from commenting on
inferences that may be drawn from the
evidence.
discriminated against the plaintiff). Specifically, it states
that "[i]f evidence is introduced tending to disprove the
presumed fact, the issue shall be submitted to the trier of fact
for determination unless the evidence is such that reasonable
persons would not differ as to the existence or nonexistence of
the presumed fact." The commentary to the rule provides that "a
valid presumption can be used to establish a prima facie case,
but the presumption normally disappears in the face of
conflicting evidence. Nevertheless, any logical inference which
can be drawn from the basic fact remains." N.J. R. Evid. 301,
1994 supplemental comment.10 Therefore, the rule states with
regard to state law exactly what Hicks has explained to be the
operation of federal anti-discrimination law under the McDonnell
Douglas shifting burden analysis. The New Jersey Supreme Court
may choose, as a policy matter, to interpret the LAD even more
broadly, so that the usual rules governing presumptions do not
apply in LAD cases, cf. N.J. R. Evid. 301 (rule governs "[e]xcept
as otherwise provided . . . by other law"), but in the face of
this explicit explanation of the operation of presumptions under
New Jersey law, we cannot make that state law policy decision for
it. Compare Schweigert v. Provident Life Ins. Co., 503 N.W.2d
225, 288-29 (N.D. 1993) (refusing to adopt Hicks formulation
because of different state rule on presumptions).
10
. Rule 301 replaced N.J. R. Evid. 14, cited by the PTL
employees, effective July 1, 1993. Commentary to it
indicates that Rule 301 reflects established New Jersey
law.
This is particularly true in light of the New Jersey courts'
general adoption of federal anti-discrimination law as their
guidepost. Indeed, the courts' willingness to depart from
federal precedent in the anti-discrimination area has occurred in
only three contexts, involving either modification of the
McDonnell Douglas framework to fit specific factual situations
(e.g., Erickson and Jansen), departure from that framework in
accordance with cases decided by various federal courts of
appeals (Grigoletti), or departure from the standards we apply in
favor of what it believes to be a more sensible interpretation of
United States Supreme Court precedent (Lehmann). It has never
rejected outright the United States Supreme Court's approach to
federal anti-discrimination law; to the contrary, it has noted
that there exists "an imputed but strong legislative intent to
harmonize the State's anti-discrimination statutes with the
dominant federal view to maximize the protections for the victims
of discrimination and . . . to benefit all of society by these
efforts." Grigoletti, 118 N.J. at 108, 570 A.2d at 913.
Finally, the New Jersey Supreme Court's decision in Goodman
provides further support for our decision, if only by
implication. In Goodman, the court considered a case in which a
company and its principals argued that a hearing examiner in the
New Jersey Division on Civil Rights had misapplied the burden of
proof. The complainant, a female job applicant, established a
prima facie case that she had not been hired because of her
gender. The respondents contended that she was not granted an
interview because her attitude had been unpleasant. The hearing
examiner nevertheless ruled for the complainant, stating that the
"``case ultimately turns on credibility'" and that he believed the
complainant. Goodman, 86 N.J. at 33, 429 A.2d at 348. The New
Jersey Supreme Court ruled that the hearing examiner had properly
applied the McDonnell Douglas shifting burden scheme:
The explanation given by respondents for
complainant's rejection was sufficient for the employer
to meet its burden of articulating a legitimate
nondiscriminatory reason for the rejection and thus
destroy ``the legally mandatory inference of
discrimination arising from the plaintiff's initial
evidence.' . . . However, the trier of fact may
nevertheless be persuaded by that evidence and its
inferences combined with that adduced from the
respondents that the employer's proposed explanation is
unworthy of belief and is nothing more than a mere
pretext for unlawful discrimination.
Goodman, 86 N.J. at 33, 429 A.2d at 348 (emphasis added). In
explaining why it believed the hearing examiner had correctly
applied McDonnell Douglas, the court stated not only that the
hearing examiner had said he found the plaintiff and her witness
to be truthful, but also that he had "concluded that the reason
given by the employer for [the plaintiff's] rejection was
pretextual and that the true reason for her rejection was
``because she was a woman.'" Id. at 33-34, 429 A.2d at 349
(emphasis added). Thus, the New Jersey Supreme Court did not
find that mere disbelief of the employer would support a decision
for the complainant; it affirmed the hearing examiner's decision
because he had disbelieved the employer and had decided that the
true reason for the employer's failure to hire the plaintiff was
unlawful discrimination. This is consistent with Hicks and
supports our belief that the New Jersey Supreme Court would
follow Hicks in interpreting the LAD.
In conclusion, we are persuaded that the New Jersey Supreme Court
would ultimately determine that plaintiffs in employment
discrimination cases under the LAD may not necessarily prevail
merely by proving a prima facie case and rebutting an employer's
asserted legitimate non-discriminatory reasons for its actions.
That level of proof may suffice if the factfinder believes that
the employer offered false reasons to conceal unlawful
discrimination, but it does not mandate entry of judgment for the
plaintiff. Instead, as provided in the New Jersey Rule of
Evidence governing presumptions and their operation, the case
must go to the factfinder for decision of the ultimate issue --
whether the employer had engaged in unlawful discrimination.
Thus, the trial court erred in propounding jury instructions that
would entitle the plaintiffs to judgment if they merely presented
a prima facie case and demonstrated that the defendant's asserted
grounds for decision were pretextual.
III.
Our conclusion that the New Jersey Supreme Court would
incorporate the Hicks principles into its LAD jurisprudence
requires that this case be retried. We do not believe that the
New Jersey Supreme Court would choose to apply this clarification
of New Jersey law only prospectively, as the PTL employees
argue.11 Nor do we accept either side's contention that this
case can be decided at the appellate level, without a remand.
Plaintiffs argue that the trial court's charge to the jury,
instructing that they at all times bore the burden of proving
that they were not hired because of their age, cured any error
that may have occurred when the court instructed that they would
win if they had proven that the reasons Pacific Rail advanced for
failing to hire them were false. We cannot agree, for while the
trial court correctly placed the burden of proving illegal
discrimination on the plaintiffs at all times, the statement
rendered incorrect in light of Hicks was direct and explicit and
served to summarize the charge for the jury. If there was any
portion of the charge that guided the jury's deliberations, it
was more than likely the portion we have held to be erroneous.
On the other hand, Pacific Rail contends that we need not remand
this case but instead may enter judgment for it because the
evidence was insufficient to support a verdict in the plaintiffs'
favor even under an appropriate charge. We cannot agree with
11
. The employees argue that, "[a]t a minimum, if the New
Jersey Supreme Court were to follow Hicks it would only
apply its holding prospectively." Appellees/Cross-
Appellants' Brief at 16. Unlike New Jersey law,
"Prospective application is appropriate when a decision
establishes a new principle of law by overruling past
precedent or by deciding an issue of first impression."
Montells v. Haynes, 133 N.J. 282, 295, 627 A.2d 654 (1993).
As explained above, the New Jersey Supreme Court would not
be overturning past precedent or deciding a new issue by
following the Hicks approach; it would merely be clarifying
prior decisions. There is no reason to believe that the
New Jersey Supreme Court would choose to apply such a
decision only prospectively.
this contention, either. Undeniably, plaintiffs' evidence was
aimed mainly at proving pretext, but that evidence, viewed in the
light most favorable to the verdict winner (Billet, 940 F.2d at
817), could conceivably have supported a decision for the
plaintiffs under the correct charge.
In light of our inability to divine whether the jury's verdict
was premised on correct or erroneous portions of the charge, we
will remand the case for retrial under the principles we have set
forth above.
IV.
Some of the issues the parties have raised have been rendered
moot by our decision thus far.12 Others, however, remain, for
they determine whether certain claims are still properly at issue
in this case and thus whether they should be addressed on remand.
12
. Specifically, given that the judgment will be vacated and
the case retried, we see no reason to decide whether the
trial court erred in (1) refusing to order remittitur of
some plaintiffs' backpay awards, (2) awarding plaintiffs
prejudgment interest, or (3) refusing to order
reinstatement.
We may quickly dispose of one issue raised by Pacific Rail
which still must be resolved. Pacific Rail argues that the
district court erred in refusing to dismiss the cases of
plaintiffs Phyllis Lindh, Sal Petruzzelli and Ed Dechert
for failure to establish a prima facie case. After
reviewing the record, we do not agree that the district
court erred. Depending upon credibility judgments, which
we are in no position to make, the evidence may be
sufficient to support a verdict for each of these
plaintiffs.
A.
Among these is a question which arose after trial as to whether
the plaintiffs were entitled to front pay awards. Plaintiffs
stated in their complaint that they sought "a judgment ordering
defendant to offer them employment and to pay back wages,
compensatory damages, punitive damages and attorneys' fees."
App. at 14. They alleged that as a result of Pacific Rail's
actions they had "lost income and otherwise suffered the effects
of discrimination on account of their age," App. at 20, and
sought judgment "[o]rdering defendant to offer employment to
plaintiffs and make them whole for all wages and benefits lost by
reason of defendant's unlawful discrimination; granting
compensatory damages to plaintiffs; . . . and [g]ranting any
further relief the Court deems just and proper." Id. at 21. The
final pretrial order, upon which the parties collaborated and
which the magistrate judge handling pretrial matters reviewed and
entered, said only that "[a]s a result of defendant's actions,
plaintiffs have lost income and otherwise suffered the effects of
discrimination on account of their age." Id. at 42. They were
ordered to quantify their damages by March 16, 1992 (id.), but
they did not do so. The first mention of "front pay," or
compensation for future lost earnings, surfaced two weeks prior
to trial, when plaintiffs submitted proposed jury instructions
requesting an instruction on front pay. Id. at 2689, 2702. Over
an objection from Pacific Rail, the district court decided to
charge on front pay, but after the jury returned a verdict of
more than $5 million in front pay, the court granted a post-trial
motion to strike the front pay award.
In light of the way this case developed, the district court did
not abuse its discretion in striking the plaintiffs' front pay
award as a sanction for having failed to claim front pay prior to
two weeks before trial (and even then only to mention it in
proposed jury instructions, which included many items not at
issue). Plaintiffs argue that their request for "compensatory
damages" encompasses an award of future lost earnings, but in the
context of the pleadings filed in this case, we cannot say that
their vague pleading style -- even under the lenient rules of
notice pleading -- sufficed to put Pacific Rail on notice of a
claim for front pay. Moreover, had there been any question, the
plaintiffs had every opportunity to clarify the damages they
sought in the pretrial order. When they failed to do so, the
magistrate judge ordered quantification of their damages by a
date certain -- an opportunity to put Pacific Rail on notice of
their claims which the plaintiffs simply did not seize.
In these circumstances, then, the district court did not abuse
its discretion in striking the plaintiffs' front pay awards at
the conclusion of the first trial. Rather than usurp the
district court's role as presider over the second trial, we hold
only that on remand it will be left to the sound discretion of
the district court to determine in the interests of fairness and
justice whether to allow any new claims.
B.
Although the plaintiffs cannot claim front pay on remand, they
will be permitted to seek emotional distress damages, contrary to
the rulings of the magistrate judge and district court. This
case was originally bifurcated so that liability would be tried
separately from damages. The parties initially prepared their
pretrial order with that in mind, but for some reason, presumably
discussed during a pretrial conference with the magistrate judge,
it was decided that the case would not be bifurcated. App. at
64. Because they had apparently only envisioned a trial on
liability prior to this, plaintiffs then sought permission to
list exhibits regarding damages and to amend the pretrial order
to list additional witnesses, who happened to be doctors, to
support their claims of emotional distress damages. App. at
2746, 2761. The magistrate judge permitted plaintiffs to include
additional exhibits to support their claims for pecuniary damages
(to which Pacific Rail did not object), but denied plaintiffs'
request to name the doctors as witnesses. In conjunction with
that decision, the magistrate judge struck the plaintiffs' claims
for emotional distress damages because he believed that
"competent medical testimony of an expert nature . . . as to the
causation of any emotional distress" was required.13 App. at
13
. Significantly, the plaintiffs were not offering the doctors
as expert witnesses, for they had no expert reports from
which the doctors could state expert opinions. App. at
2759. Instead, they intended that the doctors would
testify as lay witnesses describing what they had observed.
Thus, this is not a case in which a denial of a motion to
amend to add the doctors as witnesses resulted in the lack
of evidence for which the claims were dismissed. Refusing
2762. The district court affirmed this ruling when plaintiffs
appealed.
Plaintiffs argue that their claims for emotional distress damages
should not have been stricken. In reviewing the magistrate
judge's decision to this effect, the district court had to
determine whether that decision was "clearly erroneous or
contrary to law." 28 U.S.C. § 636(b)(1)(A); Cipollone v. Liggett
Group, Inc., 785 F.2d 1108, 1120 (3d Cir. 1986). The question
before the magistrate judge, the district court and us does not,
as Pacific Rail argues, arise in the context of Rule 701 of the
Federal Rules of Evidence (regarding opinion testimony by lay
witnesses) but is instead a matter of New Jersey law concerning
whether expert evidence is needed to prove emotional distress
damages in this type of case. We will thus determine whether the
magistrate judge's decision to strike plaintiffs' claims for
emotional distress damages was contrary to law. Cf. Bolden v.
Southeastern Pennsylvania Transp. Auth., 953 F.2d 807, 829 n.30
(3d Cir. 1991) (whether district court properly dismissed
punitive damages request is question of law subject to plenary
review).
"Emotional stress" damages may be recovered under the LAD. N.J.
Stat. Ann. 10:5-3; Milazzo v. Exxon Corp., 243 N.J. Super. 573,
580 A.2d 1107 (1990). New Jersey courts require expert testimony
to prove the causal link between a claimed injury and the
(..continued)
to permit the doctors to testify merely lessened the number
of lay witnesses who would be testifying for plaintiffs.
It did not deprive them of expert testimony.
tortious act alleged when the plaintiff is claiming that he or
she suffered subjective injury (such as pain, humiliation,
emotional distress) that is not obviously related to an
identifiable injury. Kelly v. Borwegen, 95 N.J. Super. 240, 243-
44, 230 A.2d 532, 534 (1967). This requirement is based on a
concern that "a jury should not be allowed to speculate on the
issue of causation. If the question of causal relation is so
esoteric that lay minds cannot form any intelligent judgment
about it without expert aid an opinion from an expert may be
required." Bushman v. Halm, 798 F.2d 651, 659 (3d Cir. 1986)
(applying New Jersey law and citing 2 F. Harper & F. James, Jr.
The Law of Torts § 20 at 15-16, § 21 at 1116-17 (1956)).
The requirement is not without boundaries, however. In Bushman,
for example, we held that a "plaintiff is not required under New
Jersey law to submit expert medical opinion on the element of
legal causation to establish a prima facie case of negligence."
Bushman, 798 F.2d at 653. In that case, a plaintiff whose truck
had collided with a United States Postal Service jeep sued the
government under the Federal Tort Claims Act alleging negligence.
The trial court granted summary judgment to the government
because the plaintiff had alleged only "soft tissue injuries"
(i.e., he was seeking recovery only for pain and suffering
related to an injury to his knees, which had struck the dashboard
in the accident), and his expert witness had not opined that his
pain was caused by the accident. We reviewed Kelly and Menza and
determined that New Jersey law requires a case-by-case analysis
to determine when expert testimony is required to buttress
subjective complaints of pain and suffering. The key question is
whether there is evidence tending to show some objective basis
for the pain. If there is, no expert testimony is needed because
a jury is competent to decide whether there exists a causal
connection.
In Bushman,
plaintiff testified that his legs were pain-free prior to
the accident. However, he stated that he experienced
recurrent pain in his knees and surrounding soft
tissues after they contacted his truck's dashboard
during the accident. . . . Plaintiff has adequately
drawn into question the objective nature of his pain
and suffering through his own sworn statements. The
pain and suffering plaintiff experienced immediately
after the accident is directly linked to objectively
identifiable symptoms of soft tissue injury verified in
the medical evidence. Thus, the lower court erred when
it concluded that plaintiff's injuries were "not
obviously related to an identifiable injury."
Bushman, 798 F.2d at 660.
Here, we are not apprised of any objective evidence supporting
the plaintiffs' claims of emotional distress. Neither the
magistrate judge, nor the district court, nor this court has been
presented any evidence of "objectively identifiable symptoms"
upon which the plaintiffs rely to support their claims. Absent
such evidence, the alleged emotional distress in this case seems
to resemble Menza and Kelly. (In Menza, the plaintiff claimed
chest pain 21 months after a fall, and in Kelly, the plaintiff
alleged permanent difficulty in sleeping, walking, climbing steps
and breathing after a car accident.) Plaintiffs allege
subjective claims of emotional distress, but we have no
objectively identifiable, medically verified symptoms as the
plaintiff had in Bushman.
On the other hand, the magistrate judge's decision was made well
before trial, when no evidence had yet been presented. Some of
the plaintiffs may be able to establish objectively identifiable
symptoms from which a jury could infer causation even in the
absence of an expert witness. If, as to some or all plaintiffs,
there exists other evidence tending to establish causation, such
as objectively identifiable symptoms appearing close in time to
Pacific Rail's takeover at North Bergen, then the plaintiffs who
presented such evidence might not need to present expert evidence
to reach the jury. Thus, the magistrate judge's wholesale
dismissal of all the plaintiffs' claims for emotional distress
damages without knowing anything more about each plaintiff's case
was "contrary to law." 28 U.S.C. § 636(b)(1)(A). Plaintiffs'
claims for emotional distress damages are to be reinstated on
remand.
C.
To further assist the district court on remand, we will also
review plaintiffs' allegations that the court erred in dismissing
the cases of five former PTL workers. We will affirm its
dismissal of all but one of those plaintiffs. On remand, that
one plaintiff's claims are to be reinstated for consideration of
whether his cause of action survived his death.
1.
Four of these plaintiffs' cases are easily addressed. The
district court properly dismissed the cases of David Quaid, John
Gugliotta, Andrew Hennessey and Adam Lukasweski because the
evidence was insufficient to support judgment for them as a
matter of law.
Quaid's case falters because of insufficient evidence from which
a jury could conclude that he was injured. Evidence at trial
revealed that a Pacific Rail representative called Quaid three
times to offer him a job, but Quaid did not accept. The first
time, September 1, Quaid told the representative that he was
"number ten" on the list (presumably the union's seniority list)
and that Pacific Rail would have to ask the nine men or women
above him on the list before he would accept a job. App. at 729-
30. The second time, September 3, Quaid reiterated this and told
the Pacific Rail representative he would get back to him. App.
at 730-31. The third time, in the third week in September, the
representative again told Quaid that Pacific Rail would like
Quaid to work for the company. Quaid said that he would work for
Pacific Rail but did not accept the job because of ongoing union
proceedings. Specifically, he stated that he did not want to
"jump[] before [he] knew where [he] was going to land and then
wind[] up in limbo." App. at 737. Quaid stated at trial that he
"never, never refused employment," "[n]ever turned [Pacific Rail]
down," that "[Pacific Rail understood] that I wanted the job,"
and that "[a]ll I did was to ask [Pacific Rail] for time. But
there was [sic] never any refusals." App. at 728. Quaid's
explanations, however, fail to negate the fact that he did not
accept employment that was offered to him and cannot be
considered to have been injured by Pacific Rail's actions when
Pacific Rail actually offered him employment.
Gugliotta, Hennessey and Lukasweski present similar situations.
These three plaintiffs were receiving workers' compensation
payments for medical conditions at the time Pacific Rail took
over at North Bergen. They could not have been denied jobs
because of their age; they were not available to occupy positions
when Pacific Rail needed them. The only argument the plaintiffs
advance in opposition to this reasoning is a contention that
Pacific Rail would have offered them jobs even if they were
injured but for age discrimination. As evidence for this
proposition, they note that a Pacific Rail representative, upon
seeing Gugliotta in early September, asked Gugliotta if he was
ready to work, thus impliedly offering him a job. The
representative's statement, however, was not exactly a job offer
but was more in the nature of an inquiry about when Gugliotta
might be ready to work. App. at 1356. Moreover, Gugliotta
refused (id.), so even if it was a job offer, that merely
transforms his particular case into one which resembles Quaid's
more than Hennessey's and Lukasweski's. Dismissal of their cases
was not error.
2.
Finally, we address the case of the estate of plaintiff Al
Armetta, who passed away in December, 1991, after commencement of
this lawsuit. Plaintiffs' attorneys apparently learned of
Armetta's death in August, 1992, and defense counsel was notified
either then or on the first day of trial in mid-September, 1992.
Plaintiffs' counsel never filed a "suggestion of death" or served
formal written notice of the death on defense counsel or the
court.
At trial, upon learning of Armetta's death, the district court
ruled that Armetta should be stricken from the case. At the
close of plaintiffs' case, in discussing directed verdict
matters, plaintiffs' counsel argued that Armetta's estate should
be considered a plaintiff for purposes of claiming damages until
the time of his death. The court refused because "there ha[d]
been no substitution of Mr. Armetta's estate in this matter."
App. at 964. The district court judge stated that he did not
"know that [Armetta's] estate has an interest in this matter,"
and pointed out that there was no "motion nunc pro tunc or . . .
to relax the rules" about Armetta. App. at 1018. Plaintiffs'
counsel stated that he had spoken with Armetta's widow, who had
said she wanted to continue the lawsuit. Id. The court refused
to accept this representation and, the next day, denied counsel's
oral motion to substitute Mrs. Armetta for her husband, saying
that plaintiffs had produced no proof that Mrs. Armetta was the
executrix of Armetta's estate. It rejected plaintiffs' counsel's
offer to supply such proof. Id. at 1023-26. Specifically, the
district court denied the motion because (1) it questioned
whether this cause of action survived Armetta's death,
(2) "[t]here has been no showing of excusable neglect . . . [or]
actions on the part of the defendant which would put the
plaintiff in a prejudicial position," (3) there was no proof that
Mrs. Armetta was the executrix of Armetta's estate, and (4) it
was too late to move to substitute Armetta's estate as a
plaintiff because the defendant had had no chance to conduct
discovery concerning "whoever the estate is" or "to do anything
that is necessary to prepare for trial." Id. at 1029-30.
Rule 25(a)(1) provides:
If a party dies and the claim is not thereby extinguished,
the court may order substitution of the proper parties.
The motion for substitution may be made by any party or
by the successors or representatives of the deceased
party and, together with the notice of hearing, shall
be served on the parties as provided in Rule 5 and upon
persons not parties in the manner provided in Rule 4
for the service of a summons, and may be served in any
judicial district. Unless the motion for substitution
is made not later than 90 days after the death is
suggested upon the record by service of a statement of
the fact of the death as provided here for the service
of the motion, the action shall be dismissed as to the
deceased party.
Fed. R. Civ. P. 25(a)(1). Thus, if a party dies, ideally his or
her attorney will file a "suggestion of death" with the court and
serve it upon all parties. After the suggestion of death is
filed, a 90-day countdown begins. Within 90 days, some other
party or the executor or administrator of the deceased must move
for substitution of the estate for the deceased, or the
deceased's case will be dismissed. Decisions on the motion for
substitution are within the trial court's discretion. Fed. R.
Civ. P. 25(a) ("the court may order substitution"); Advisory
Committee Note to 1963 Amendments.
Nothing was ideal here. Plaintiffs' counsel served neither a
formal suggestion of death nor a formal motion for substitution.
That does not mean, however, that the district court properly
denied the motion made at trial to substitute Armetta's estate as
the plaintiff claiming damages on his behalf. Nothing in Rule 25
says that a suggestion of death must be made or sets forth a time
frame for doing it. In circumstances in which the deceased's
counsel only recently learned of the death, failure to file a
suggestion of death within a particular period of time does not
constitute sufficient grounds for refusing such a motion.
Moreover, the district court's denial on the basis that the
plaintiff did not make a formal motion, filed and served in
accordance with Rule 25, also was, in our view, an overly strict
interpretation of the rule. We have indicated a willingness to
permit lesser attempts to suffice. See Anderson v. Republic
Motor Inns, Inc., 444 F.2d 87 (3d Cir. 1971) (reversing a
district court's dismissal of a case for failure to comply with
Rule 25(a) because the plaintiff's attorney had noted in his
pretrial memorandum that the wife, as executrix of the estate,
intended to continue as substitute plaintiff). In doing so, we
have emphasized that our lenient view would apply only in "an
extraordinary case, and that departure from the requirements of
the Federal Rules is not to be permitted routinely," Anderson,
444 F.2d at 89, but this case strikes us as extraordinary. Here,
the district court ruled that plaintiffs' counsel had failed to
move for substitution within an appropriate time, yet the time
period for so moving had not yet begun to run because death had
not yet been suggested on the record. Cf. 7C C. Wright, A.
Miller & M. Kane, Federal Practice and Procedure § 1955 at 544
(2d ed. 1986) ("the time does not run until the death is
suggested on the record"). Concerns about prejudice to the
defendant are not well-placed in this instance, for the record
reveals that defense counsel was notified of Armetta's death very
shortly after plaintiffs' counsel became aware of it. And,
contrary to the district court's view, Rule 25 contains no
"excusable neglect" standard by which the district court is to
gauge its exercise of discretion. We fully understand why the
court might desire some written proof of Armetta's death and of
the estate's desire to proceed with his case, but we see no
reason not to permit plaintiff's counsel an opportunity to
produce such proof before deciding the motion.
Thus, we cannot find that the district court exercised sound
discretion on this issue. Armetta's claims should be re-examined
on remand, and plaintiffs' counsel is to be given an opportunity
to provide written proof of Armetta's death, his widow's
relationship to his estate and the estate's wishes with regard to
proceeding in this lawsuit. Also on remand, however, the parties
are to address the district court's first concern, namely whether
Armetta's LAD claim survived his death. See Fed. R. Civ. P.
25(a)(1) (substitution permitted "[i]f a party dies and the claim
is not thereby extinguished"). This issue is a matter of state
law, cf. Ransom v. Brennan, 437 F.2d 513, 520 (5th Cir. 1971);
see N.J. Stat. Ann. 2A:15-3, which we decline to resolve at this
stage because the parties have neither briefed nor argued it
either here or before the district court.
V.
In conclusion, we predict that the New Jersey Supreme Court would
accept the Supreme Court's decision in Hicks as clarifying LAD
law, just as Hicks did federal anti-discrimination law. Our
conclusion to that effect necessitates a remand of this case for
retrial in accordance with this opinion. On remand, although
plaintiffs may not seek front pay, they may assert claims for
emotional distress damages. In addition, the claims of deceased
plaintiff Al Armetta are to be reinstated so that the district
court may consider whether Armetta's claims survived his death
and, if so, so that his claims may be tried along with those of
the other plaintiffs.
Peter McKenna, et al. v. Pacific Rail Services, Nos. 93-5253,
93-5277, 93-5375 and 93-5386
MANSMANN, J., dissenting.
I.
I agree with the majority that our role is to determine
whether the New Jersey Supreme Court would adopt for the LAD the
Supreme Court's analysis in Hicks. Commissioner v. Estate of
Bosch, 387 U.S. 456, 465 (1966); McKenna v. Ortho Pharmaceutical
Corp., 622 F.2d 657, 661-62 (3d Cir. 1980), cert. denied, 449
U.S. 976 (1980). It is without doubt, as the majority holds,
that were the New Jersey Supreme Court to apply the Hicks rule of
law to the LAD, this case would require a new trial because the
jury instructions did not provide the Hicks framework.14 See
14
. Hicks settled conflicting decisions found among the
courts of appeals regarding whether the jury's finding of
employer pretext mandates the finding of illegal discrimination
in Title VII cases. Hicks, 113 S. Ct. at 2750. The burdens of
production and the order for the presentation of proof were set
forth mainly in McDonald-Douglas Corp. v. Green, 411 U.S. 792
(1973), and then revisited in Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248 (1981). Contrary to what we stated in
Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393, 1395-96
(3d Cir. 1984), Hicks states that after a plaintiff makes a prima
facie case of discrimination and the defendant rebuts that with
legitimate non-discriminatory reasons, the presumption raised by
the prima facie case drops from the case, and the plaintiff now
must show that the defendant's proffered reasons were not the
true reasons for the employment decision and that the
discriminating characteristic was. Hicks, 113 S. Ct. at 2747.
No longer is it sufficient for the plaintiff to show that the
defendant's proffered reasons were pretextual.
Pacific Rail argues, first, that because the New Jersey
courts have consistently applied the principles and analysis
developed by the federal courts in Title VII age and sex
discrimination claims, they would continue to do so in this
Majority slip op. at 13. It is in the majority's prediction of
what the New Jersey Supreme Court would hold that we part ways,
and because I believe it will not adopt the Hicks analysis for
the LAD, I respectfully dissent.15
We have, of course, previously articulated the proper
standard to be used in predicting state law:
In attempting to forecast state law we "must
consider relevant state precedents, analogous
decisions, considered dicta, scholarly works,
and any other reliable data tending
convincingly to show how the highest court in
the state would decide the issue at hand."
McGowan v. University of Scranton, 759 F.2d 287, 291 (3d Cir.
1985) (quoting McKenna, 622 F.2d at 663). See also Blum v. Witco
Chemical Corp., 829 F.2d 367, 376 (3d Cir. 1987).
II.
Historically, as the majority correctly points out,
Majority slip op. at 15-16, New Jersey has generally followed
Title VII federal precedent in interpreting the LAD. For a list
of such cases, see Grigoletti v. Ortho Pharmaceutical Corp., 570
(..continued)
context. The error in this reasoning is simply that it fails to
consider that a new interpretation of the burden of proof has
been established. Second, Pacific Rail suggests that, because
the plaintiffs originally argued that federal precedent should
apply to this case, they are estopped now from changing their
position before this court. Such a contention is meritless, for
again it fails to consider that a new rule regarding the various
burdens has been established in the interim. See Majority slip
op. at 13 n.5.
15
. I join the court's analysis in Part IV.
A.2d 903, 907 (N.J. 1990). Nonetheless, as the majority also
agrees, Majority slip op. at 16-17, New Jersey is not wedded to
federal precedent and applies it selectively. The New Jersey
Supreme Court has stated:
In construing the terms of the LAD, the court
has frequently looked to federal precedent
governing Title VII of the Civil Rights Act
of 1964, 42 U.S.C.A. § 2000e-2000e-17 ("Title
VII"), as "a key source of interpretative
authority." Although the "substantive and
procedural standards that we have developed
under the State's LAD have been markedly
influenced by the federal experience," we
have "applied the Title VII standards with
flexibility" and "have not hesitated to
depart" from federal precedent "if a rigid
application of its standards is inappropriate
under the circumstances."
Lehmann v. Toys ``R' Us, Inc., 626 A.2d 445, 452 (N.J. 1993)
(citations to quotations omitted). Grigoletti, 570 A.2d at 907
("[T]he court has never embraced the McDonnell Douglas test
literally, invariably or inflexibly."); Erickson v. Marsh &
Mclennan Co., 569 A.2d 793, 799 (N.J. 1990) ("We have recognized,
however, that the criteria announced in Peper, Goodman, and
Anderson provide only a general framework for analyzing unlawful
discrimination claims and must be modified where appropriate.");
Clowes v. Terminix Intern., Inc., 538 A.2d 794, 805 (N.J. 1988)
("Under [certain] circumstances the McDonnell Douglas analysis
should be used only to the extent that its application is
appropriate."); Peper v. Princeton University Board of Trustees,
389 A.2d 465, 479 (N.J. 1978) ("While we commend the McDonald-
Douglas standards to our trial courts as a starting point in
actions brought under the Law Against Discrimination or any other
State proscription against discrimination, it must be emphasized
that these tests are to be used only where and to the extent that
their application is appropriate.").
It is especially relevant that whenever federal
precedent establishes a standard that makes it more difficult for
the plaintiff to make its case, the New Jersey Supreme Court
departs. Lehmann v. Toys ``R' Us, Inc., 626 A.2d at 453
(denouncing the Andrews test from this circuit and creating a new
test for sexual harassment under the LAD); Montells v. Haynes,
627 A.2d 654, 661 (N.J. 1993) (disregarding United States Supreme
Court caselaw questioning prospective application of a new rule
of law in a sexual harassment case under the New Jersey LAD);
Grigoletti, 570 A.2d at 913 (adopting the EPA standard, which is
more burdensome on the defendant, rather than the Title VII
standard for gender discrimination claims); Anderson v. Exxon
Co., 446 A.2d 486, 494 (N.J. 1982) (declining to follow the
allocation of the burdens of proof established in McDonald-
Douglas to LAD claims for handicap discrimination); Castellano v.
Linden Board of Education, 386 A.2d 396, 402 (N.J. Super. Ct.
App. Div. 1978), mod. on other grounds, 400 A.2d 1182 (N.J. 1979)
(holding that pregnancy discrimination violated the LAD contrary
to the Supreme Court's decision in Gilbert).16
16
. Similarly, the district courts in New Jersey have also
recognized the independence of New Jersey courts in interpreting
the LAD.
There is little reason to believe that New
Jersey courts will exhibit slavish devotion
to federal law in interpreting the NJLAD.
Quite the contrary, in construing New Jersey
antidiscrimination law, enacted nearly twenty
years before the analogous federal statute
prohibiting employment discrimination, see,
Shaner v. Horizon Bancorp., 116 N.J. 433,
436, 561 A.2d 1130 (1989); Nolan v. Otis
Elevator Co., 102 N.J. 30, 48, 505 A.2d 580,
cert. denied, 479 U.S. 820, 107 S. Ct. 84, 93
L. Ed. 2d 38 (1986), New Jersey courts have
not considered themselves bound by federal
caselaw, "even though [the NJLAD] relates
essentially to the same subject matter as
parallel federal civil rights law. We are
free to apply our own concept of that which
is right and proper in the circumstances.
Castellano v. Linden Board of Education, 158
N.J. Super. 350, 360, 386 A.2d 396 (App. Div.
1978) (holding that pregnancy discrimination
violated NJLAD despite contrary United States
Supreme Court precedent), modified on other
grounds, 79 N.J. 407, 400 A.2d 1182 (1979).
Moreover, "mindful of the clear and positive
policy of our state against discrimination,"
New Jersey courts have consistently held that
"[e]ffectuation of that mandate calls for
liberal interpretation of any legislative
enactment designed to implement it."
Castellano, 158 N.J. Super. at 361, 386 A.2d
396.
Carrington v. RCA Global Communications, Inc., 762 F. Supp. 632,
644 (D.N.J. 1991). See also Abrams v. Lightolier, Inc., 841 F.
Supp. 584, 590 (D.N.J. 1994) ("This court is not persuaded that
the New Jersey State Supreme Court would disavow the standard
enunciated in Slohoda [v. United Parcel Service, Inc., 504 A.2d
53 (N.J. Super. Ct. App. Div. 1986)] to find that the NJLAD
In Castellano v. Linden Board of Education, 386 A.2d
396 (N.J. Super. Ct. App. Div. 1978), the New Jersey Superior
Court addressed whether requiring a pregnant female teacher to
take a mandatory maternity leave and refusing to permit her to
utilize accumulated sick leave during her childbirth absence
constituted impermissible gender discrimination. Id. at 354.
The United States Supreme Court, prior to the decision in
Castellano, held that a disability plan provided by an employer
for all its employees, which paid weekly non-occupational
sickness and accident benefits, but excluded from coverage
disabilities arising from pregnancy, did not violate Title VII of
the Civil Rights Act of 1964. General Electric Co. v. Gilbert,
429 U.S. 125 (1976). See also Nashville Gas Co. v. Satty, 434
U.S. 136 (1977) (holding that an employer's policy of
compensating employees for limited periods of time during which
the employee missed work because of a non-job related illness or
disability, but excluding sick leave paid to pregnant employees,
was legally indistinguishable from the disability insurance
(..continued)
warrants application of the ``sole motivating factor' test
[announced in Griffiths v. CIGNA Corp., 988 F.2d 457 (3d Cir.
1993)] in pretext cases."); United States v. Board of Educ. of
the Township of Piscataway, 798 F. Supp. 1093, 1099 (D.N.J. 1992)
("[T]here is nothing to indicate that the New Jersey Supreme
Court would exhibit a ``slavish devotion' to federal law.").
program in Gilbert).17 In response to Gilbert and Satty the New
Jersey Superior Court stated:
Clearly, we are not bound by those decisions
in construing our own statute, even though it
relates essentially to the same subject
matter as the parallel federal civil rights
law. We are free to apply our own concept of
that which is right and proper in the
circumstances.
Id. at 401 (citing Oakwood at Madison, Inc. v. Madison Tp., 371
A.2d 1192 (N.J. 1977); State v. Johnson, 346 A.2d 66 (N.J.
1975)). Cf. Robinson v. Cahill, 303 A.2d 273 (N.J. 1973), cert.
denied, 414 U.S. 976 (1973).
There have also been other areas where the New Jersey
courts have departed from federal precedent. In Lehmann v. Toys
"R" Us, Inc., 626 A.2d 445 (N.J. 1993), the New Jersey Supreme
Court did not adopt the test we set forth in Andrews v. City of
Philadelphia, 895 F.2d 1469 (3d Cir. 1990), for a sexual
harassment claim under the LAD. There we set forth a five factor
test to determine an actionable claim for sexual harassment under
Title VII, creating a test with both subjective and objective
standards. Andrews, 895 F.2d at 1482-83. The New Jersey Supreme
Court disavowed the Andrews test and found its own elements of a
17
. Notably, on October 31, 1978, Title VII of the Civil
Rights Act of 1964 was amended to include pregnancy-based
discrimination in its prohibition of sex discrimination. See
California Fed. Sav. & Loan Ass'n v. Guerra, 478 U.S. 272, 284-85
(1987).
hostile work environment for a sexual harassment cause of action
under the LAD. Lehmann, 626 A.2d at 451-54. The court stated:
We find that the standards expressed in the
EEOC Guidelines, while helpful, are
insufficiently structured to define the cause
of action at this stage in the development of
the law. However, we agree with the dissent
below that the Third Circuit's Andrews test
employed by the majority below contains too
many analytical difficulties and deficiencies
to be usefully employed here.
Rather than risking confusion by engrafting
major revisions to the Andrews test, we
announce a new test in the hope of creating a
standard that both employees and employers
will be able to understand and one that
employers can realistically enforce. We
cannot overstate the importance we place on a
test that allows employees to know their
rights in a given set of circumstances and
that allows employers to set policies and
procedures that comply with that test.
Id. at 453.18
III.
In Lehman, the New Jersey Supreme Court also discussed
the legislative intent and public policy behind the New Jersey
LAD:
The New Jersey law against discrimination was
first enacted in 1945. Its purpose is
"nothing less than the eradication ``of the
cancer of discrimination.'" The opportunity
to obtain employment "is recognized as and
18
. Notably, the United States Supreme Court has recently
undertaken to define the elements of a sexual harassment claim
under Title VII. Harris v. Forklift Systems, Inc., 114 S. Ct.
367 (1993).
declared to be a civil right." N.J.S.A.
10:5-4.
The LAD was enacted to protect not only the
civil rights of individual aggrieved
employees but also to protect the public's
strong interest in a discrimination-free
workplace. Freedom from discrimination is
one of the fundamental principles of our
society. Discrimination based on gender is
"peculiarly repugnant in a society which
prides itself on judging each individual by
his or her merits."
Id. at 451-52 (case citations to quotations omitted). See also
Shaner v. Horizon Bancorp, 561 A.2d 1130, 1131-32 (N.J. 1989);
Anderson v. Exxon Co., 446 A.2d 486, 490 (N.J. 1982) ("Our court
has repeatedly emphasized the strong public policy of New Jersey
against employment discrimination."). In Fuchilla v. Laman, the
New Jersey Supreme Court engaged in a similar discussion of the
public policy in New Jersey:
We begin by recognizing that the clear public
policy of this state is to abolish
discrimination in the workplace. Indeed, the
overarching goal of the law is nothing less
than the eradication "of the cancer of
discrimination." Jackson v. Concord Co., 54
N.J. 113, 124 (1969). As the Legislature has
declared, "discrimination threatens not only
the rights and proper privileges of the
inhabitants of the State but menaces the
institutions and functions of a free
democratic state." N.J.S.A. 10:5-3. The day
is long past when any employee need endure
discrimination because of his or her race,
religion, national origin, or gender.
Employment discrimination is not just a
matter between employer and employee. The
public interest in a discrimination-free
workplace infuses the inquiry. David v.
Vesta Co., 45 N.J. 301, 327 (1965).
Fuchilla v. Laman, 537 A.2d 652, 660 (N.J. 1988), cert. denied,
University of Medicine and Dentistry of New Jersey v. Fuchilla,
488 U.S. 826 (1988).19 These passages relied in part on the New
Jersey Legislature's declaration that employment in New Jersey
shall be free from discrimination. N.J. Stat. Ann. 10:5-3, 5-4.
For the full text, see Majority slip op. at 15 n.6. I find this
proclamation overwhelmingly persuasive.
I am cognizant of other New Jersey caselaw stating the
contrary:
In a sex discrimination case arising under
the N.J. L.A.D., our supreme court held that
the test for prima facie showing was the same
as that used in federal cases arising under
Title VII of the Civil Rights Act of 1964.
Because the provisions of the ADEA were
modeled after Title VII and are nearly
identical in wording and purpose, Title VII
standards are applied to ADEA cases. We thus
conclude, as did the judge below, that
plaintiffs' contentions should appropriately
be analyzed by examination of federal cases
arising under Title VII and the ADEA.
19
. Additionally, the New Jersey Supreme Court has led the
way in furthering the rights of employees in other areas. Shebar
v. Sanyo Business Systems Corp., 544 A.2d 377 (N.J. 1988) (oral
promise of discharge for cause only, even though employment was
terminable at will, may be enforceable); Woolley v. Hoffmann-
LaRoche, Inc., 491 A.2d 1257 (N.J. 1985) (a written implied
promise of discharge for cause only, even though employment was
terminable at will, may be enforceable); Pierce v. Ortho
Pharmaceutical Corp., 417 A.2d 505 (N.J. 1980) (adopting a
general public policy exception to employment at will recognizing
that an at-will employee cannot be discharged for reasons
contrary to public policy).
Giammarino v. Trenton Bd. of Educ., 497 A.2d 199, 202 (N.J.
Super. Ct. App. Div. 1985), cert. denied, 508 A.2d 212 (1985),
cert. denied, 475 U.S. 1141 (1986) (citations omitted). However,
in that case the court followed Supreme Court precedent because,
at the time, the Supreme Court was consistent with New Jersey
public policy. This does not lead to the conclusion that New
Jersey will continue to follow the Supreme Court. The above
passage was correct when stated, but is now doubtful. Cf. Clowes
v. Terminix Intern, Inc., 538 A.2d 794, 802 (N.J. 1988) (holding
that alcoholism is a handicap under the New Jersey LAD: "We
begin our analysis from the perspective that because the [LAD] is
remedial social legislation, it is deserving of a liberal
construction.").
IV.
The major premise of the majority's opinion is that the
New Jersey rule regarding presumptions parallels the federal rule
of presumptions upon which Hicks is based. Majority slip op. at
18. I am not persuaded that the New Jersey rule so closely
resembles the federal rule that it justifies serving as the basis
of this decision, particularly in light of the liberal anti-
discrimination policy adopted by both the New Jersey Legislature
and the New Jersey Supreme Court.
The Federal Rule of Evidence on presumptions states:
In all civil actions and proceedings not
otherwise provided for by Act of Congress or
by these rules, a presumption imposes on the
party against whom it is directed the burden
of going forward with evidence to rebut or
meet the presumption, but does not shift to
such party the burden of proof in the sense
of the risk of nonpersuasion, which remains
throughout the trial upon the party on whom
it was originally cast.
Fed. R. Evid. 301. The New Jersey rule on presumptions states:
Except as otherwise provided in Rule 303
or by other law, a presumption discharges the
burden of producing evidence as to a fact
(the presumed fact) when another fact (the
basic fact) has been established.
If evidence is introduced tending to
disprove the presumed fact, the issue shall
be submitted to the trier of fact for
determination unless the evidence is such
that reasonable persons would not differ as
to the existence or nonexistence of the
presumed fact. If no evidence tending to
disprove the presumed fact is presented, the
presumed fact shall be deemed established if
the basic fact is found or otherwise
established. The burden of persuasion as to
the proof or disproof of the presumed fact
does not shift to the party against whom the
presumption is directed unless otherwise
required by law. Nothing in this rule shall
preclude the judge from commenting on
inferences that may be drawn from the
evidence.
N.J. R. Evid. 301. A comparison of the two rules reveals that
the federal rule "bursts the bubble" of the presumption, while
the New Jersey rule creates an issue for the jury. Although the
New Jersey rule does not necessarily follow Morgan's theory of
presumptions20 that the party resisting the presumption must
20
. See generally 9 Wigmore, Evidence § 2493c (Chadbourn
rev. 1981).
introduce sufficient evidence to overcome the presumption, it is
certainly not an enactment of Thayer's "bursting bubble"21 -- it
falls somewhere along the continuum between the two. One
commentator has placed the New Jersey rule closer to Morgan's
theory than Thayer's because in New Jersey the evidence
supporting the presumption or possibly even the presumption
itself remains. Ralph N. Del Deo & John H. Klock, 2B New Jersey
Practice Ch. 3 at 334 (1987).22 Although the author was
commenting on the former New Jersey rule on presumptions, Rule
14, a comparison between Rule 14 and Rule 301 does not reveal any
substantial change. The text of the first sentence of the second
paragraph of Rule 301 is essentially the same as Rule 14. The
added language does not change the effect of the rule. Rule 14
states:
Except as provided by Rule 15, if
evidence to the contrary of a presumed fact
21
. See generally 9 Wigmore, Evidence § 2490 (Chadbourn
rev. 1981).
22
. The New Jersey Model Jury Charges - Civil (4th ed.
1992) for employment cases supports this interpretation. In the
section dealing with retaliation for a discrimination claim --
the only section that discusses the effect of the presumption --
the model charge cites to Jamison v. Rockaway Township Bd. of
Educ., 577 A.2d 177, 182 (N.J. Super. Ct. App. Div. 1990) (citing
Wrighten v. Metropolitan Hospitals, Inc., 726 F.2d 1346, 1354
(9th Cir. 1984)), for the proposition that once the plaintiff
proves that the defendant's articulated reason for the alleged
discriminatory action is false, a presumption is created that the
adverse employment action was the product of improper retaliatory
intent and the defendant is required to prove by a preponderance
of the evidence that the adverse action would have been taken
regardless of retaliatory intent. Model Jury Charges - Civil,
Ch. 2 § 22C.
is offered, the existence or nonexistence of
such fact shall be for the trier of fact,
unless the evidence is such that the minds of
reasonable men would not differ as to the
existence or nonexistence of the presumed
fact.
See also Majority slip op. at 23 n.10. Rule 14 and presently
effective Rule 301 do not follow the previous rule, which was
interpreted to be an enactment of Thayer's theory. In Dwyer v.
Ford Motor Co., 178 A.2d 161, 171 (N.J. 1962), the court held
that a presumption of fact is emptied of all probative force and
disappears from the case upon introduction of any proof to the
contrary. Cf. McGlynn v. Newark Parking Auth., 432 A.2d 99, 105
(N.J. 1981). When Rule 14 was enacted, the Commission Note
accompanying the new rule explained it this way:
This rule changes existing law. The rule has
been that if contrary evidence was
introduced, the presumption was gone . . . .
Under this rule a fact issue remains, with no
distinction between "logical" and
"artificial" presumptions. The effect of the
rule is that (a) if there is no evidence to
contradict either the underlying fact or the
assumed fact, the assumed fact must be taken
to exist and the jury should be so instructed
. . .; and (b) if there is evidence to
contradict either the underlying fact or the
assumed fact . . ., the jury is to determine
the existence of the assumed fact as on any
other contest issue.
Ralph N. Del Deo & John H. Klock, 2B New Jersey Practice Ch. 3 at
334 (1987).
Although this interpretation has not been formally
adopted by the New Jersey Supreme Court, its existence
demonstrates that reasonable minds can differ on the issue. That
being the case, I cannot conclude that the New Jersey Supreme
Court would follow the Supreme Court's analysis in Hicks,
particularly in light of New Jersey's public policy to eradicate
discrimination from the workplace. At least one other state
supreme court has chosen not follow Hicks because it has
interpreted its own rule of evidence on presumptions differently.
Schweigert v. Provident Life Ins. Co., 503 N.W.2d 225 (N.D.
1992).
V.
Because New Jersey is clearly dedicated to preserving a
low threshold for establishing a civil rights violation with
regard to employment discrimination,23 I would hold that the New
Jersey Supreme court will not adopt for the LAD the Supreme
Court's analysis in Hicks.
23
. In sum, the LAD provides a distinctive cause
of action arising from unlawful employment
practices and unlawful discrimination in
employment. The overarching goals of the LAD
are not only vindication for aggrieved
individuals victimized by discrimination.
Protection for other persons similarly
situated and the eradication of invidious
discrimination in the exercise of civil
rights are also paramount concerns of the
LAD. The LAD confers broad and extensive
remedial powers to fulfill these goals and to
counteract the practices and effects of such
unlawful practices and discrimination.
Shaner v. Horizon Bancorp, 561 A.2d 1130, 1136 (N.J. 1989).