Some important New Jersey employment law issues were explored in a recent opinion issued by the Appellate Division of the Superior Court concerning the New Jersey Law Against Discrimination in the case of Kazaba versus Randolph Township Board of Education.
The Kazaba Case
Charles Kazaba sued the Randolph Township Board of Education for age discrimination under the New Jersey Law Against Discrimination in Law Division of the State Superior Court for allegedly taking discriminatory actions against him because of his age. He was a security for the Board for more than 21 years and had no disciplinary record. For many years Kazaba was the only security guard, but at some point the Board hired additional, younger security guards with prior law enforcement experience (these were referred to as the “Ram Guards” after the high school’s mascot). At sixty years of age he was the oldest security guard. He claimed that his supervisors took a course of or actions favoring the younger Ram Guards and making his job more difficult because he was older.
After filing the lawsuit, his superiors took a series of actions that Kazaba alleged created a hostile work environment in retaliation for filing it. These actions included reducing his work year from twelve months to ten months and thereby reducing his income by one sixth, eliminating assignments that would have allowed him to earn overtime, refusing to pay him overtime for time spent testifying in court, terminating his ability to use his Board vehicle to travel to and from work, assigning him to the night shift while leaving the Ram Guards on the day shift, after never having any performance issues in more than twenty years placing him on a corrective action plan, reassigning his job of creating and posting messages on the high school marquee board (which Kazaba loved), issuing him “Rice” Notices and making public accusations of poor performance, his direct supervisor (defendant Ruiz) following Kazaba home and driving slowly and menacingly down in front of Kazaba’s home, Ruiz asking Kazaba about his age and recommending he “cut a deal for early retirement” and telling him to “leave your lawyer out of it,” assigning Kazaba to monitor the sixth grade boys’ bathroom, and taking numerous duties away from him.
After a trial, the jury returned a verdict finding that the Board had not discriminated against Kazaba because of his age, but had retaliated against him because he filed his age discrimination lawsuit. The jury awarded Kazaba $150,000 to compensate him for the emotional distress he suffered. Pursuant to the Law Against Discrimination, the judge ordered that the Board reimburse Kazaba for his attorneys fees, but reduced the amount sought because of Kazaba’s attorney’s poor record keeping. The judge also found that Kazaba had presented insufficient evidence to allow the jury to consider punitive damages.
The Board appealed to the Appellate Division of the Superior Court of New Jersey. Kazaba then cross-appealed the denial of the punitive damages and reduction of his attorneys fees. The Appellate Division rejected both their appeals and affirmed the trial judge’s and jury’s decisions.
The Appellate Division’s Opinion
In an unpublished decision, the Appellate Division highlighted several important points about the Law Against Discrimination.
- An employee doesn’t need to win a discrimination suit in order to recover for being retaliated against for filing it. Rather, he need only show that he had a reasonable, good faith belief that there was discrimination. Thus, the court upheld the jury’s finding that although there was no age discrimination, there was retaliation for his complaint about discrimination.
- Here, the evidence showed that the superintendent, principal and supervisor who took the actions all knew about the lawsuit beforehand included the fact that by the nature of their jobs they would have been informed and that the actions all took place immediately after the lawsuit was filed. The court explained that this was sufficient for the jury to draw an inference that they knew about the filing of the complaint and that their motive was retaliation. Moreover, the fact that for twenty one years before he filed the complaint Kazaba had no disciplinary record was also relevant to the jury’s inference. In other words, in the absence of direct evidence of discrimination (or in addition to direct evidence), a jury may consider facts and circumstances to infer discriminatory motive.
- Unlike suits in tort for infliction of emotional distress, the employee need not present expert medical testimony about the cause, nature or severity of his emotional distress. The New Jersey Supreme Court has explained that under the Law Against Discrimination, emotional distress is defined as suffering “humiliation, embarrassment and indignity.” Here, the nature of the acts, Kazaba’s and his wife’s testimony about how the retaliation effected him, and the public disparagement of his work performance, was sufficient for the jury to award damages for his claimed emotional distress.
- While the Law Against Discrimination provides for the award of punitive damages, in order to recover them an employee must show that upper management actually participated in the discrimination or was willfully indifferent, and that the acts were especially egregious. Especially egregious means that the acts must have been intentional or with willful or wanton disregard for the employee’s rights. This must be proved by the higher burden of proof of clear and convincing evidence.
- The Appellate Division upheld the trial judge’s reduction of the attorneys fee award. The takeaway is that meticulous records must be kept.
- And, as always, evidence is key. Preserve every document, keep notes of every conversation (when, where, who said what, who was there, etc.). However, make sure that only permissible records are kept – never take student records home.
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