NKEMDILUM OKAKPU v. IRVINGTON BOARD OF EDUCATION (L-0926-18, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1967-20
NKEMDILUM OKAKPU,
Plaintiff-Appellant,
v.
IRVINGTON BOARD OF
EDUCATION, DR. DENIESE
COOPER,
Defendants-Respondents.
__________________________
Submitted April 26, 2022 – Decided July 18, 2022
Before Judges Currier and Smith.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Docket No. L-0926-18.
Christopher C. Roberts, attorney for appellant.
Hunt, Hamlin & Ridley, attorneys for respondents
(Ronald C. Hunt, of counsel and on the brief).
PER CURIAM
Plaintiff Nkemdilum Okakpu held a non-tenured teaching position with
defendant, Irvington Board of Education. The Board elected not to renew her
contract, and she brought suit, alleging, among other things, violation of her
rights under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-
1 to -50. After defendants successfully moved for summary judgment on all
counts, she appealed.
We affirm the trial court's dismissal of plaintiff's First Amendment,
employer retaliation, and New Jersey Civil Rights Act 1 claims. However, we
find plaintiff presented sufficient evidence of employment discrimination to
defeat summary judgment on her LAD claim. For this reason, we reverse in part
the trial court's order granting defendants summary judgment, and remand.
I.
From January 2014 to June 2017, plaintiff was employed as a full-time
non-tenured elementary school teacher. In January 2017, Dr. Denise Cooper,
school principal, emailed plaintiff regarding complaints from parents of children
in plaintiff's class. The email detailed plaintiff's repeated late dismissals of her
pupils and cited her failure to follow directives.
1
N.J.S.A. 10:6-2(c).
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Subsequently, Dr. Cooper recommended the Board terminate plaintiff's
employment. On the non-renewal form, Dr. Cooper listed several reasons,
including plaintiff's "continuous discord and conflict with members of the staff,"
such as "placing the flag of Nigeria on the steps outside her classroom" and
"attempt[ing] to engage in inappropriate and unprofessional conversatio ns with
the principal . . . ."
The non-renewal form cited other proscribed conduct by plaintiff,
including her: solicitation of money from parents for classroom supplies in
violation of school policy; inability to "work cohesively" with co-workers;
"disrespectful" response to document requests from her employer; excessive
tardiness; failure to adhere to protocol and timelines; receipt of warning and
reprimand letters; and overall unprofessional attitude.
Plaintiff filed suit in the Law Division, alleging, among other things, that
defendants fired her for being Nigerian and placing her country's flag outside of
her classroom. She alleged, among other things, that this discharge was an
unlawful employment action under the LAD.
Defendants moved for summary judgment, arguing plaintiff's dismissal
was based on her poor performance, not her country of origin. After oral
argument, the trial court granted summary judgment for defendants as to all
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counts. The court determined that plaintiff was "attempting to prove unlawful
discrimination by circumstantial evidence . . . ." As such, it applied the
McDonnell Douglas2 burden-shifting test.
Initially, the court found that plaintiff met the elements of a prima facie
case of discrimination. However, the court found plaintiff could not
demonstrate that the legitimate, non-discriminatory reasons for her non-renewal
offered by defendant were pretextual. Specifically, the court stated that plaintiff
"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, plaintiff makes the following arguments:
POINT ONE
THE MOTION JUDGE ERRED IN ITS
APPLICATION OF THE PRICE WATERHOUSE
ANALYSIS IN LIGHT OF THE FACT THAT [THE
BOARD] THROUGH ITS DECISION MAKER
TERMINATED PLAINTIFF, WHO IS OF NIGERIAN
DESCENT, BECAUSE SHE DISPLAYED A
NIGERIAN FLAG OUTSIDE HER CLASSROOM.
POINT TWO
THE MOTION JUDGE ERRED IN FINDING THAT
DEFENDANTS DID NOT VIOLATE PLAINTIFF'S
2
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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FIRST AMENDMENT RIGHT IN LIGHT OF THE
FACT THAT [THE BOARD] THROUGH ITS
DECISION MAKER TERMINATED PLAINTIFF,
WHO IS OF NIGERIAN DESCENT, BECAUSE SHE
DISPLAYED A NIGERIAN FLAG OUTSIDE HER
CLASSROOM.
POINT THREE
THE MOTION JUDGE ERRED IN DISMISSING
PLAINTIFF'S COMPLAINT WHEN [THE BOARD]
IS LIABLE FOR RETALIATION UNDER THE
NJLAD WHEN IT TERMINATED PLAINTIFF FOR
ENGAGING IN A PROTECTED RIGHT.
POINT FOUR
THE MOTION JUDGE ERRED IN DISMISSING
PLAINTIFF'S NJCRA CLAIM WHEN DEFENDANT
DEPRIVED PLAINTIFF HER FIRST AMENDMENT
RIGHT BY TERMINATING HER FOR DISPLAYING
A FLAG FROM HER COUNTRY OF ORIGIN.
II.
Because the trial court dismissed plaintiff's claims on summary judgment,
"we review that decision de novo and apply the same standard that governs the
trial court. Meade v. Twp. of Livingston, 249 N.J. 310, 326-27 (2021) (citing
State v. Anderson, 248 N.J. 53, 67 (2021)).
"Summary judgment is appropriate 'if . . . there is no genuine issue as to
any material fact challenged and . . . the moving party is entitled to a judgment
or order as a matter of law.'" Id. at 327 (quoting R. 4:46–2(c)). In deciding
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"whether a genuine issue of material fact exists, the trial court must 'draw[] all
legitimate inferences from the facts in favor of the non-moving party.'"
Friedman v. Martinez, 242 N.J. 450, 472 (2020) (alteration in original) (quoting
Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016). The trial court must
"consider whether the competent evidential materials presented, when viewed
in the light most favorable to the non-moving party, are sufficient to permit a
rational factfinder to resolve the alleged disputed issue in favor of the non-
moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
The trial court's function on summary judgment is not to weigh the
evidence and determine the truth of the matter but to determine whether there is
a genuine issue for trial. Meade, 249 N.J. at 327. If "the evidence 'is so one-
sided that one party must prevail as a matter of law,'" summary judgment is
proper. Brill, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 252 (1986)). Summary judgment is not, however, intended to shut out
"'a deserving litigant from . . . trial.'" Friedman, 242 N.J. at 472 (quoting Brill,
142 N.J. at 540). See also Meade, 249 N.J. at 327.
III.
We begin by addressing plaintiff's challenge to the trial court's dismissal
of her LAD employment discrimination claim. Plaintiff argues that the court
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erred by applying the McDonnell Douglas test to her employment discrimination
claim. She contends the Price Waterhouse 3 framework should have been used
instead because "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.
Defendants argue plaintiff failed to prove their conduct was
discriminatory toward Nigerians or created an animus towards her protected
class. Plaintiff's evidence, according to defendants, was purely circumstantial,
and therefore the trial court properly used the McDonnell Douglas analysis.
A.
Under the LAD, it is unlawful
[f]or an employer, because of the race, creed, color,
national origin, ancestry, age, marital status, civil union
status, domestic partnership status, affectional or
sexual orientation, genetic information, pregnancy or
breastfeeding, sex, gender identity or expression, [or]
disability . . . to refuse to hire or employ or to bar or to
discharge . . . from employment such individual or to
discriminate against such individual in compensation or
in terms, conditions or privileges of employment . . . .
[N.J.S.A. 10:5-12(a) (emphasis added).]
3
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
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The LAD is intended "to protect the civil rights of individual aggrieved
employees as well as the public's strong interest in a discrimination-free
workplace." Meade, 249 N.J. at 328 (internal quotation marks and citations
omitted). It is remedial legislation that should be construed liberally to advance
its purposes. Ibid.
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." Smith, 225 N.J. at 394 (citing Bergen
Com. Bank v. Sisler, 157 N.J. 188, 208 (1999)); see also A.D.P. v. ExxonMobil
Rsch. & Eng'g Co., 428 N.J. Super. 518, 531 (App. Div. 2012). 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." Smith, 225 N.J. at 396; A.D.P., 428 N.J. Super. at 531. 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, 225
N.J. at 396 (internal quotations and citations omitted).
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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 (citation omitted) (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.").
Direct evidence "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.'" Smith, 225 N.J. at 394 (quoting
Fleming v. Corr. Healthcare Sols., Inc., 164 N.J. 90, 101 (2000)). See also,
Grande, 230 N.J. at 16 (proving discriminatory discharge by direct evidence
requires plaintiff to produce evidence that employer substantially relied on a
proscribed discriminatory factor in making its decision). 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." Id. at 394-95 (internal quotation marks and citations
omitted).
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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[.]" McDevitt v.
Bill Good Builders, Inc., 175 N.J. 519, 527 (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).
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, ___ U.S. ___, 140 S. Ct. 1009, 1019 (2020).
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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, 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 defendant to show that it would have
made the same decision regardless of the alleged bias. Id. 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).
B.
We disagree with plaintiff's argument that the trial court erred in analyzing
her claim under the McDonnell Douglas framework. However, we are satisfied
that the evidence of discrimination alleged here, namely the inclusion of
"hanging the flag of Nigeria outside her classroom" raised issues of fact as to
whether plaintiff's national origin was considered by decision makers when
making the adverse employment decision. While the legitimate, non-
discriminatory reasons provided by defendants were plentiful, we must consider
the evidentiary materials in the light most favorable to the non-moving party.
Brill, 142 N.J. at 540. Doing so leads us to conclude that a rational factfinder
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could find these reasons to be pretext and resolve the dispute in favor of plaintiff.
See Ibid.Our function in this de novo review "is not to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine
issue for trial." Meade, 249 N.J. at 327. This pivotal issue is appropriately left
to the jury on remand.
IV.
As to plaintiff's remaining arguments, she asserts that the trial court erred
in dismissing her wrongful termination, retaliation, and New Jersey Civil Rights
Act claims. We disagree on each of these points and affirm in part for the
reasons that follow.
A.
In New Jersey, an employee has a cause of action for wrongful discharge
when the discharge is "contrary to a clear mandate of public policy." Pierce v.
Ortho Pharm. Corp., 84 N.J. 58, 72 (1980). "[C]onduct that is directed against
constitutionally-protected activity may violate a clear mandate of public policy,
even though it may not offend any other statutory or legal standard."
MacDougall v. Weichert, 144 N.J. 380, 399 (1996). Additionally, "it is a well-
settled restraint upon the public employer's right to terminate an employee . . .
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that such termination cannot be solely predicated upon the exercise of a
constitutional right, particularly the First Amendment right of freedom of
speech." Grexa v. State, Dept. of Hum. Servs., 168 N.J. Super. 202, 209-10
(App. Div. 1978) (citations omitted).
However, a "bare assertion or generalized allegation of infringement of a
constitutional right" does not create a claim of constitutional dimension. Id. at
209 (quoting Winston v. S. Plainfield Bd. of Ed., 125 N.J. Super. 131, 144 (App.
Div. 1973)). Therefore, in order to prove retaliation for engaging in a
constitutional right, a plaintiff must show that his or her constitutionally
protected activities were a significant element of the employer's decision to
discharge or not renew. Ibid.Similarly, the LAD protects employees from employer retaliation in
certain circumstances. See Craig v. Suburban Cablevision, Inc., 140 N.J. 623,
629-30; Victor, 203 N.J. at 409. N.J.S.A. 10:5-12(d) makes it unlawful for
employers to engage in:
reprisals against any person because that person has
opposed any practices or acts forbidden under this act
or because that person has filed a complaint, testified
or assisted in any proceeding under this act or to coerce,
intimidate, threaten or interfere with any person in the
exercise or enjoyment of, or on account of that person
having aided or encouraged any other person in the
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exercise or enjoyment of, any right granted or protected
by this act.
[N.J.S.A. 10:5-12(d) (emphasis added).]
"[T]he prima facie elements of a retaliation claim under the LAD requires
plaintiff to demonstrate that: (1) plaintiff was in a protected class; (2) plaintiff
engaged in protected activity known to the employer; (3) plaintiff was thereafter
subjected to an adverse employment consequence; and (4) that there is a causal
link between the protected activity and the adverse employment consequence."
Victor, 203 N.J. at 409.
Moreover, the New Jersey Civil Rights Act provides, in relevant part:
[a]ny person who has been deprived of any substantive
due process or equal protection rights, privileges or
immunities secured by the Constitution or laws of the
United States, or any substantive rights, privileges or
immunities secured by the Constitution or laws of this
State, may bring a civil action for damages and for
injunctive or other appropriate relief.
[N.J.S.A. 10:6-2(c).]
The first task in asserting a substantive due process claim "is to identify
the state actor . . . that has caused the alleged deprivation" and the second task
"is to identify a right, privilege or immunity secured to the claimant . . . ."
Filgueiras v. Newark Pub. Schs., 426 N.J. Super. 449, 468 (App. Div. 2012).
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Applied to the employment context, "[a]n employee hired at will has no
protected interest in his employment and may not prevail on a claim that his or
her discharge constituted a violation of property rights." Id. at 469-70. See also
Nicholas v. Pa. State Univ., 227 F.3d 133, 142 (3d Cir. 2020) (concluding that
even tenured public employment is not a fundamental property interest entitled
to substantive due process protection).
B.
We address each claim in turn. At the outset, plaintiff has not established
that defendants discharged her solely for exercising a First Amendment right.
See Grexa, 169 N.J. Super. at 209-10. Indeed, "placing the flag of Nigeria" was
on her non-renewal form, but that was one of many reasons defendants relied on
when deciding to discontinue her employment. For example, the form also
referenced parent complaints, disciplinary issues, and her inability to work well
with her colleagues, among others. In light of this, we find the trial court did
not err in dismissing plaintiff's wrongful discharge claim on summary judgment.
Plaintiff's employer retaliation claim under the LAD also fails. Her
argument is flawed because it misconstrues the activities protected by the LAD's
retaliation provision. The protected activities designated in N.J.S.A. 10:5-12(d)
are: (1) opposing discriminatory practices, (2) filing a complaint, testifying, or
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assisting with a proceeding regarding discrimination, or (3) aiding or
encouraging another to exercise their LAD rights. The LAD's safeguard against
retaliation does not extend to protected rights outside this mandate, such as
freedom of speech. Accordingly, the motion judge properly dismissed plaintiff's
incognizable LAD retaliation claim.
Finally, plaintiff's employment with defendants was not guaranteed. Her
employment contract gave defendants the discretion to terminate plaintiff at any
time by giving sixty calendar days' notice. As an at-will employee, plaintiff had
no protected property interest in her position. See Filgueiras, 426 N.J. at 469-
70. As such, she cannot prevail on an NJCRA substantive due process claim
and summary judgment was properly granted in favor of defendants.
Affirmed in part; vacated and remanded in part for further proceedings
consistent with this opinion.
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