NOT FOR PUBLICATION WITHOUT THE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-1294-16T4
VICTORIA CRISITELLO,
Plaintiff-Appellant,
v.
ST. THERESA SCHOOL,
Defendant-Respondent.
____________________________
Argued December 14, 2017 – Decided July 24, 2018
Before Judges Simonelli, Rothstadt and
Gooden Brown.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Docket No. L-
3642-14.
Thomas A. McKinney argued the cause for
appellant (Castronovo & McKinney, LLC,
attorneys; Thomas A. McKinney, of counsel
and on the briefs; Megan Frese Porio, on the
briefs).
Christopher H. Westrick argued the cause for
respondent (Carella, Byrne, Cecchi, Olstein,
Brody & Agnello, PC, attorneys; Christopher
H. Westrick, of counsel and on the brief;
John V. Kelly, III, on the brief).
PER CURIAM
Plaintiff Victoria Crisitello is an elementary school
teacher who was previously employed by defendant St. Theresa
School, a Roman Catholic parochial school. Defendant terminated
plaintiff's employment after she disclosed that she was pregnant
and defendant's school principal determined plaintiff was
unmarried. According to the principal, defendant fired
plaintiff for engaging in premarital sex, a violation of
defendant's ethics code and policies. After her termination,
plaintiff filed suit against defendant under the New Jersey Law
Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.
Plaintiff now appeals from the Law Division's order barring
certain discovery, denying reconsideration of the discovery
order, granting defendant summary judgment and dismissing her
complaint. On appeal, she contends that, contrary to the trial
court's decision, her LAD claim was not barred by the First
Amendment or the LAD's "religious exemption[,]" and she was
entitled to discovery of "similarly situated employees."
We have reviewed the record in light of the applicable
principles of law. For the reasons that follow, we reverse each
of the orders under appeal.
The facts derived from the summary judgment record, viewed
"in the light most favorable to [plaintiff,] the non-moving
party[,]" Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016)
2 A-1294-16T4
(citing R. 4:46-2(c)), are summarized as follows. Defendant is
a Roman Catholic elementary school, owned and operated by the
St. Theresa Roman Catholic Church (Church), which is part of the
Archdiocese of Newark (Archdiocese). Defendant was established
by the Church to operate as a Roman Catholic institution,
committed to providing an education in a religious environment.
As part of defendant's effort to maintain a religious
environment, it adopted the religious policies on professional
and ministerial conduct espoused by the Archdiocese, including a
code of ethics. That code states: "Church personnel shall
exhibit the highest Christian ethical standard and personal
integrity," and "shall conduct themselves in a manner that is
consistent with the discipline, norms and the teachings of the
Catholic Church." The policies further preclude immoral conduct
by employees, which is defined as "[c]onduct that is contrary to
the discipline and teachings of the Catholic Church[,] and/or
which may result in scandal . . . or harm to the ministry of the
Catholic Church." They apply to clergy members and the "lay
faithful," which are defined as all "paid personnel whether
employed in areas of ministry or other kinds of
services . . . ." Defendant's faculty handbook also contains
numerous provisions aligning with the Church's tenets, including
a section labeled "Christian Witness[,]" which required teachers
3 A-1294-16T4
to practice a "value-centered approach to living and learning in
their private and professional lives."
None of the policies or provisions of the handbook
expressly identified premarital sex as a prohibited conduct.
According to the school's principal, Sister Theresa Lee, there
was no specific statement in any document that "would inform
someone that if they became pregnant while being unmarried that
they would be violating [any] policy."1 There was also no
1
The only specifically identified prohibited behavior was
contained in the Church's code of ethics, which included a
chapter entitled "Prevention of Immoral Conduct: Guidelines for
Ethical Behavior." Under that chapter, in a section entitled
"Standards for the Archdiocese as to Prevention of Immoral
Conduct," specific prohibited conduct was defined as:
a. Immoral conduct.
b. Procurement or participation in the
procurement of abortion, or committing
homicide or euthanasia.
c. Possession or distribution of
pornographic material.
d. Adultery, flagrant promiscuity or
illicit co-habitation.
e. Abuse of alcohol, drugs, or gambling.
f. Theft, fraud, or any other form of
misappropriation or misuse of Church
funds or property.
g. Sexual exploitation or abuse.
(continued)
4 A-1294-16T4
statement in the documents that a violation of any provision
would result in immediate termination from employment.
In September 2011, when defendant hired plaintiff as a lay
teacher for toddlers, plaintiff signed an acknowledgement of
receipt and understanding of defendant's polices and ethics
code, and a similar acknowledgement for the faculty employment
handbook. She executed similar documents a year later.
Plaintiff was already familiar with the Church's teachings,
including its prohibition against premarital sex.
In mid-January 2014, plaintiff and Lee met to discuss
plaintiff taking on additional responsibilities at the school.
During that conversation, plaintiff told Lee that she was
pregnant and, if she were given additional work, she would like
to be paid more than her current salary. Lee informed plaintiff
that there would be no salary increase. She did not mention
anything about plaintiff being pregnant or unmarried.
On January 29, 2014, after consulting with other clerical
and school personnel, Lee decided to fire plaintiff for engaging
in premarital sex. Before terminating plaintiff, defendant
(continued)
h. Physical assault and fighting.
i. Conduct which is illegal under the laws
of our country, state or local
government.
5 A-1294-16T4
hired a replacement. The new employee, a woman, was married and
had children.
At a meeting attended by Lee, a priest, who did not
otherwise participate, and plaintiff, Lee told plaintiff to
either resign or she would be terminated because she was
pregnant and unmarried. Defendant's termination of plaintiff
was not based on any reason related to her job performance.
Rather, according to Lee, she fired plaintiff when she
determined that plaintiff violated the Church's ethical
standards. As Lee explained:
Plaintiff was terminated on January 29, 2014
after I became aware that she was carrying a
child in an unmarried state, which
necessarily meant that she had engaged in
sex outside of marriage. Sex outside of
marriage is not permitted in the Catholic
Church. Sex outside of marriage violates
the tenets of the Catholic church. Thus,
[plaintiff] violated her obligations under
the [p]olicies, including the [c]ode of
[e]thics. She has not exhibited the highest
Christian ethical standards and personal
integrity, which [were] required of her.
Furthermore, she has not conducted herself
in a manner that is consistent with the
discipline, norms and teachings of the Roman
Catholic Church.
Lee asserted that the school "has nothing against pregnant
teachers" as long as they were "married at the time of being
with child . . . ." Plaintiff understood that "not being
6 A-1294-16T4
married and getting pregnant [violated] the rules of the
Catholic church."
According to Lee, during her tenure as principal at the
school from August 2013 to June 2014, plaintiff was the only
employee that was fired based upon a violation of defendant's
ethics code or policies. Violations that would warrant
terminating an employee, according to Lee, included being
divorced. However, Lee never made an inquiry of any employee as
to whether they were pregnant, unmarried, engaged in premarital
sex, divorced, or otherwise violated any of the Church's
doctrines. According to Lee, she fired plaintiff only after
plaintiff told her about the pregnancy and Lee later determined
that plaintiff was not married.
On October 8, 2014, plaintiff filed her complaint in this
action alleging "[d]efendant's articulated reason for
terminating [her] employment [was] a mere pretext for
discrimination on the basis of [p]laintiff's pregnancy" and "her
marital status" of being "unmarried." The following January,
defendant moved for summary judgment, which the court denied to
allow discovery "limited to similarly situated employees."2 In a
2
In support of its first motion for summary judgment, defendant
filed a certification from Deacon John J. McKenna who since 2001
has been the Archdiocese's Vice Chancellor and Executive
(continued)
7 A-1294-16T4
certification filed in support of defendant's motion for summary
judgment, defendant disclosed the number of faculty members who
were married and not married.
Plaintiff sought from defendant production of information
about defendant's other pregnant employees and divorced
employees dating back to 2004, as well as disclosure of any
discrimination or similar complaints made since 2001 or LAD
claims since 2004. Defendant only produced information about
pregnant teachers who worked at the school while Lee was
principal. When defendant refused to produce the other
requested information, plaintiff filed a motion to compel. In
response, defendant moved for a protective order, arguing that
the information was "confidential and protected by the First
Amendment, and therefore not discoverable."
On April 22, 2016, the trial court granted in part both
parties' motions. In its written decision, the court stated
that it could not order discovery about divorced teachers
(continued)
Director of Human Resources. In his certification, he stated
that he "was advised of a situation at [another school in the
Archdiocese] where an unmarried male teacher [was fired when he]
asked for temporary leave of absence because his 'girlfriend'
was at the hospital giving birth." The certification and the
accompanying exhibit was referred to by the trial court in its
decision granting defendant's second motion for summary judgment
even though it was not part of defendant's supporting documents
for that motion and it was unrelated to defendant's actions.
8 A-1294-16T4
because it would require a determination that "divorced
teacher[s] and pregnant teacher[s] are similarly situated under
the tenets of the Catholic Church[,]" which "would involve an
intrusion into the religious dogma and polity[,]" of defendant
that is prohibited by the First Amendment. It found that
"[n]othing in the record shows that [p]laintiff was terminated
based solely upon her marital status[, and] to conclude that a
divorced employee and a pregnant employee are 'similarly
situated,' the [c]ourt would need to determine that [the two]
are viewed equally within the Catholic Church." It therefore
limited discovery to information about only other pregnant
employees or those who impregnated others during the preceding
three years.
Plaintiff moved for reconsideration of the court's April 22
order, which the court denied on May 27, 2016, after considering
the parties' oral arguments. In its oral decision, the court
found that plaintiff's motion was proper because it raised the
issue of the court having possibly overlooked the significance
of controlling case law and arguably persuasive opinions from
other jurisdictions. Nevertheless, after considering the case
law argued by plaintiff, the court maintained that it would be
impermissible for it "to engage in a series of inquiries that
revolved around the interpretation of defendant's dogma and
9 A-1294-16T4
polity[,]" if it were to decide whether divorced teachers were
similarly situated to pregnant, unwed teachers such as
plaintiff.
The discovery eventually provided to plaintiff indicated
that while other teachers were pregnant and therefore similarly
situated to her in that respect, none of the pregnant teachers
conceived while unmarried and they all retained their
employment. There was no discovery served that related to an
unmarried pregnant teacher or any male teachers.
After discovery concluded, defendant renewed its motion for
summary judgment, which the court granted on November 10, 2016.
In its written statement of reasons, the court set forth the
history of plaintiff's hiring and the termination of her
employment. It described the parties' contentions in detail and
began its analysis by addressing the religious exemption in the
LAD. The court found that the LAD prohibits discrimination in
the work place, but noted that it provided for "a broad
exemption for religious institutions" utilizing religious
criteria as part of their employment criteria. It applied the
exemption to the analysis for LAD claims stated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), and concluded that
plaintiff could not establish a prima facie case of
discrimination. The court determined that plaintiff could not
10 A-1294-16T4
satisfy the second prong of the McDonnell Douglas test because
by being pregnant and unwed, she "became unqualified to hold her
position and therefore cannot demonstrate a prima facie case."
In determining plaintiff was not qualified, the court relied on
defendant's policies and its faculty handbook, as well as
plaintiff's deposition testimony that she was aware that the
church did not condone premarital sex. Relying on the
certification filed by McKenna in defendant's earlier motion
about an incident in another school, it also found plaintiff
provided no evidence of pretext.
Turning to the application of the First Amendment, the
trial court concluded that "even in the absence of the statutory
application of the LAD, . . . the First Amendment bar[s]
[p]laintiff's claims." Citing our opinion in Gallo v. Salesian
Soc'y, Inc. 290 N.J. Super. 616, 651-52 (App. Div. 1996), it
stated "courts may not define the scope of one's religious
beliefs, or intrude upon the teachings of a recognized religious
institution." Quoting from the Supreme Court's opinion in
McKelvey v. Pierce, 173 N.J. 26, 32-33 (2002), the trial court
stated that it was not permitted to "allow intrusive discovery
[into] or define religious dogma," but could resolve a dispute
so long as it was not required "to choose between competing
11 A-1294-16T4
interpretations of religious tenets or to interfere with a
church's autonomy rights."
In conclusion, the court rejected plaintiff's reliance on
the fact that due to her lay status, "she does not fall under
[the] 'ministerial test[,]'" a religious exemption to the LAD,
and decided it was inapposite. Instead, the court found
dispositive the exemption's provision that "it shall not be an
unlawful practice . . . in following the tenets of its religion
in establishing and utilizing criteria for []employment of an
employee." This appeal followed.
We review a court's grant of summary judgment de novo,
applying the same standard as the trial court. Conley v.
Guerrero, 228 N.J. 339, 346 (2017). Summary judgment must be
granted "if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact challenged and that the moving party is
entitled to a judgment or order as a matter of law." Templo
Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pitt., 224
N.J. 189, 199 (2016) (quoting R. 4:46-2(c)).
Applying our de novo standard of review, at the outset, we
concur with the trial court's explanation of the court's limits
when being asked to decide purely religious issues. We also
12 A-1294-16T4
acknowledge a Catholic school's right to terminate a "teacher
who has publicly engaged in conduct regarded by the school as
inconsistent with its religious principles." Gallo, 290 N.J.
Super. at 641 (quoting Little v. Wuerl, 929 F.2d 944, 951 (3d
Cir. 1991)).
The prohibition against court inquiry and involvement,
however, does not apply to civil adjudication of purely secular
legal questions that do "not entail theological or doctrinal
evaluations[,]" even if they "involv[e] some background issues
of religious doctrine . . . ." Elmora Hebrew Ctr., Inc. v.
Fishman, 125 N.J. 404, 414-15 (1991). "Only when the underlying
dispute turns on doctrine or polity should courts abdicate their
duty to enforce secular rights. Judicial deference beyond that
demarcation would transform our courts into rubber stamps
invariably favoring a religious institution's decision regarding
even primarily secular disputes." Gallo, 290 N.J. Super. at 631
(quoting Welter v. Seton Hall Univ., 128 N.J. 279, 293-94
(1992)).
In the context of an LAD claim of pretext,
when the pretext inquiry neither traverses
questions of the validity of religious
beliefs nor forces a court to choose between
parties' competing religious visions, that
inquiry does not present a significant risk
of entanglement [that exists when] a
plaintiff [seeks to] challenge the validity,
13 A-1294-16T4
existence or "plausibility" of a proffered
religious doctrine . . . .
[Id. at 647-48 (quoting Geary v. Visitation
of the Blessed Virgin Mary Par. Sch., 7 F.3d
324, 330 (3d Cir. 1993)).]
To be clear, in this case, plaintiff does not raise any
challenge to defendant's religious doctrines or its right to
specify a code of conduct for its employees based on that
doctrine. Rather, she seeks an adjudication of her claim that
she has been singled out for application of that doctrine as a
pretext for impermissible discriminatory reasons. If proven,
such conduct by defendant would be a violation of secular law
protecting against discrimination.
"[T]he State's interest in abolishing age and gender
discrimination is compelling, beyond cavil, and that enforcement
of that interest does not constitute a substantial burden on
religion in the circumstance of a . . . lay teacher . . . ."
Id. at 643-44 (citations omitted). As we observed in Gallo:
Our Supreme Court has asserted that "[t]he
elimination of discrimination in educational
institutions is particularly critical."
"The[re] . . . [is no] more sensitive area
than educational institutions where . . .
youth are exposed to a multitude of ideas
that will strongly influence their future
development. To permit discrimination here
would, more than in any other area, tend to
promote misconceptions leading to future
patterns of discrimination."
14 A-1294-16T4
[Id. at 641-42 (alterations in original)
(citations omitted).]
In a school discrimination case, "intrusiveness of
carefully measured discovery is no reason to exempt defendants
from LAD scrutiny where the school's spiritual functions are not
in issue. Defendants are not entitled to a blanket exemption
from all secular regulations because of their status as a
religious institution." Id. at 652.
We, therefore, part company with the trial court's
application of the First Amendment and the limits it identified
in determining whether plaintiff should have been precluded from
discovery as to defendant's treatment of other employees who
violated any of defendant's religious ethical standards, or
whether defendant was entitled to summary judgment. Contrary to
the trial court's repeated statement that plaintiff sought for
the court to make determinations about defendant's "dogma and
polity[,]" neither allowing broader discovery nor considering
plaintiff's position on summary judgment required such
determinations, especially in light of defendant's principal's
position that other behavior or marital status – i.e., being
divorced - were the equivalent of plaintiff's alleged violation.
Under these circumstances, the only issue the trial court had to
15 A-1294-16T4
consider related solely to defendant's conduct rather than
defining or determining the propriety of its "dogma and polity."
As the Supreme Court has observed, "[t]he Free Exercise
Clause [of the First Amendment] protects religious freedom by
'embrac[ing] two concepts, -- freedom to believe and freedom to
act. The first is absolute but, in the nature of things, the
second cannot be. Conduct remains subject to regulation for the
protection of society.'" McKelvey, 173 N.J. at 40 (third
alteration in original) (quoting Cantwell v. Connecticut, 310
U.S. 296, 303-04 (1940)). "[A] discrimination claim brought by
a lay employee against a religious employer, without more,
generally does not run the risk of excessive entanglement, as
such an inquiry constitutes only the sort of 'routine regulatory
interaction which involves no inquiries into religious
doctrine . . . .'" Redhead v. Conference of Seventh-Day
Adventists, 566 F. Supp. 2d 125, 133 (E.D.N.Y. 2008) (citations
omitted).
Having determined that the First Amendment does not bar
plaintiff's claim or our involvement, we turn to our analysis of
plaintiff's claim under the LAD. The LAD prohibits
discriminatory employment practices. Viscik v. Fowler Equip.
Co., 173 N.J. 1, 13 (2002). "[I]t is not the purpose of the LAD
'to prevent the termination or change of the employment of any
16 A-1294-16T4
person who in the opinion of the employer, reasonably arrived
at, is unable to perform adequately the duties of
employment . . . .'" Jason v. Showboat Hotel & Casino, 329 N.J.
Super. 295, 302-03 (App. Div. 2000) (quoting N.J.S.A. 10:5-2.1).
Rather, "[i]n order to sustain a claim of unlawful
discrimination under [the LAD], there must be proof of an intent
to discriminate for an unlawful purpose." Kearny Generating
Sys., Div. of Pub. Serv. v. Roper, 184 N.J. Super. 253, 261
(App. Div. 1982); see also Jones v. Coll. of Med. & Dentistry,
155 N.J. Super. 232, 236 (App. Div. 1977) ("Discrimination
involves the making of choices. The statute does not proscribe
all discrimination, but only that which is bottomed upon
specifically enumerated partialities and prejudices."). Thus,
discriminatory motive or intent "is a crucial element in a
discrimination case . . . ." Goodman v. London Metals Exch.,
Inc., 86 N.J. 19, 30 (1981). "The establishment of the prima
facie case creates an inference of discrimination . . . ." Zive
v. Stanley Roberts, Inc., 182 N.J. 436, 449 (2005) (citing
Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)).
Discriminatory intent or any other element of an LAD claim
cannot be established by a religious institution's requiring an
employee to follow the tenets of its religion as a condition of
employment. The LAD specifically states:
17 A-1294-16T4
it shall not be an unlawful employment
practice . . . for a religious association
or organization to utilize religious
affiliation as a uniform qualification in
the employment of clergy, religious teachers
or other employees engaged in the religious
activities of the association or
organization, or in following the tenets of
its religion in establishing and utilizing
criteria for employment of an
employee . . . .
[N.J.S.A. 10:5-12(a) (emphasis added).]
To prove employment discrimination under the LAD, New
Jersey courts have adopted the burden-shifting analysis
established in McDonnell Douglas, 411 U.S. at 802. See Viscik,
173 N.J. at 13-14. Under that analysis, a plaintiff must first
present sufficient evidence to establish a prima facie case of
unlawful discrimination. Dixon v. Rutgers, 110 N.J. 432, 442
(1988). "The evidentiary burden at the prima facie stage is
'rather modest: it is to demonstrate to the court that
plaintiff's factual scenario is compatible with discriminatory
intent--i.e., that discrimination could be a reason for the
employer's action.'" Zive, 182 N.J. at 447 (citations omitted).
Like any other LAD case, a plaintiff who is fired from a
position with a religious institution for breaching a religious
tenet is entitled to offer evidence relating to "whether unequal
treatment has occurred, intentionally or as a result of a
policy's impact on members of a protected group, [through] two
18 A-1294-16T4
approaches [that] have been generally accepted. . . .--disparate
treatment and disparate impact--and we acknowledge both as
cognizable under the LAD." Gerety v. Atl. City Hilton Casino
Resort, 184 N.J. 391, 398 (2005) (citing Peper v. Princeton
Univ. Bd. of Trs., 77 N.J. 55, 81-82 (1978)). Disparate
treatment is defined as where "[t]he employer simply treats some
people less favorably than others because of their race, color,
religion, sex, or national origin." Ibid. (quoting Peper, 77
N.J. at 81).
In order to establish a claim for disparate treatment under
the LAD:
[T]he plaintiff must demonstrate that he or
she (1) belongs to a protected class; (2)
applied for or held a position for which he
or she was objectively qualified;[3] (3) was
3
In order to satisfy the second prong, a
plaintiff [need only] produce evidence
showing that she was actually performing the
job prior to the termination. Along with
the remaining prongs of the prima facie
case, that evidence is sufficient to support
the conclusion that the plaintiff's claim of
discrimination is plausible . . . .
[A]lthough a plaintiff's acknowledgment of
performance deficiencies does not factor
into the second prong of the prima facie
case, it will generally lighten the
employer's burden on the second phase and
render more difficult plaintiff's ability to
prove pretext.
(continued)
19 A-1294-16T4
not hired or was terminated from that
position; and (4) the employer sought to, or
did fill the position with a similarly-
qualified person.
[Id. at 399 (citing Andersen v. Exxon Co.,
89 N.J. 483, 492 (1982)).]
After a plaintiff demonstrates the four elements
establishing a prima facie case, "[t]he burden then shifts to
the employer to prove a legitimate, non-discriminatory reason
for the employment action." Gerety, 184 N.J. at 399 (citing
Andersen, 89 N.J. at 493). If the employer meets that burden,
the plaintiff has an opportunity to show that the employer's
purported reason is merely pretext. Ibid.
"Evidence of pretext sufficient to permit the employee to
reach a jury may be indirect, such as a demonstration 'that
similarly situated employees were not treated equally.'" Jason,
329 N.J. Super. at 304 (citations omitted). "An inference of
discrimination may arise if similarly situated employees of a
different [gender] received more lenient treatment than that
afforded plaintiff." Ewell v. NBA Props., 94 F. Supp. 3d 612,
624 (D.N.J. 2015) (citing Simpson v. Kay Jewelers, Div. of
Sterling, Inc., 142 F.3d 639, 645 (3rd Cir. 1998)). A plaintiff
(continued)
[Zive, 182 N.J. at 454, 456.]
20 A-1294-16T4
must present evidence sufficient to prove that he or she is
"similarly situated" to his or her comparators, and that these
employees have been treated differently or favorably by their
employer. See Williams v. Morton, 343 F.3d 212, 221 (3d Cir.
2003).
"An 'inference of discrimination' does not [necessarily]
arise 'anytime a single member of a non-protected group was
allegedly treated more favorably than one member of the
protected group, regardless of how many other members of the
non-protected group were treated equally or less favorably.'"
Jason, 329 N.J. Super. at 307 (citations omitted). There must
be proof that the individuals being compared were similarly
situated. "[T]here is no bright-line rule for determining who
is a 'similarly situated' employee." Id. at 305. To determine
whether employees are similarly situated, "courts tend to
consider whether the plaintiff and the comparator had similar
job responsibilities, were subject to the same standards, worked
for the same supervisors, and engaged in comparable misconduct."
Ewell, 94 F. Supp. 3d at 624 (citations omitted). That does
"not mean to suggest that [the listed] aspects of "similarly
situated" status are exhaustive or of equal significance in
different employment contexts. The trial [court must] make a
sensitive appraisal in each case to determine the most relevant
21 A-1294-16T4
criteria." Jason, 329 N.J. Super. at 305 (first alteration in
original) (quoting Peper, 77 N.J. at 85).
In a case involving the firing of a pregnant employee,
evidence of how male employees were treated is particularly
useful in determining whether unmarried pregnant women are
treated differently. Absent evidence that men are treated the
same way as women who are terminated for engaging in premarital
sex, a religious institution violates LAD because if "'women can
become pregnant [and] men cannot,' it punishes only women for
sexual relations because those relations are revealed through
pregnancy." Cline v. Catholic Diocese of Toledo, 206 F.3d 651,
667 (6th Cir. 1999) (alteration in original) (citations
omitted). "[A] school [cannot] use the mere observation or
knowledge of pregnancy as its sole method of detecting
violations of its premarital sex policy."4 Ibid.. "[W]omen
[cannot] be subject to termination for something that men would
not be, [as] that is sex discrimination, regardless of the
justification put forth for the disparity." Vigars v. Valley
4
In Cline, the Sixth Circuit vacated summary judgment in favor
of a Catholic school that fired a pregnant employee after it
correctly assumed that she engaged in premarital sex, and
therefore, violated its "Affirmations for Employment" that
prohibited employees from "by word and example[, not]
reflect[ing] the values of the Catholic Church." 206 F.3d at
656, 669.
22 A-1294-16T4
Christian Ctr. of Dublin, Cal., 805 F. Supp. 802, 808 (N.D. Cal.
1992) (denying summary judgment in favor of defendant in a
pregnancy discrimination case in which the employer relied upon
a religious exemption).
Applying these guiding principles here, we conclude that,
contrary to the trial court's determination, plaintiff
established a prima facie claim under the LAD. See Zive, 182
N.J. at 447-48. The evidence presented by plaintiff established
that plaintiff through her marital status and pregnancy was a
member of a protected class, a pregnant woman. She proved her
qualification by relying upon her job history and the fact that
defendant asked her to assume additional responsibilities right
before terminating her. See id. at 455 (stating that "only the
plaintiff's evidence should be considered"). It was undisputed
plaintiff suffered an adverse employment consequence when
defendant fired her, and the circumstances of her firing
"give[s] rise to an inference of unlawful discrimination."
Young v. Hobart W. Grp., 385 N.J. Super. 448, 463 (App. Div.
2005) (quoting Williams v. Pemberton Twp. Pub Schs., 323 N.J.
Super. 490, 502 (App. Div. 1999)).
Contrary to the trial courts finding, defendant's proffered
"legitimate, nondiscriminatory reason for [its] actions[,]"
Zive, 182 N.J. at 449 (citing Clowes v. Terminix Int'l, Inc.,
23 A-1294-16T4
109 N.J. 575, 596 (1988)), cannot be the basis for finding that
plaintiff failed to establish she was qualified for the position
because it related to the policy that plaintiff argues is
discriminatory in its application, rather than plaintiff's job
performance. See Cline, 206 F.3d at 660. Under plaintiff's
proofs, it was undisputed she was not fired because of poor job
performance, and therefore, she met her obligation "to
demonstrate 'that [s]he was "qualified" in the sense that [s]he
was doing h[er] job well enough to rule out the possibility that
[s]he was fired for inadequate job performance, absolute or
relative.'" Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 514-15
(4th Cir. 2006) (citations omitted).5
Defendant's reliance on plaintiff's violation of
defendant's policy did not render her unqualified for purposes
of determining whether plaintiff established a prima facie
5
We reject as inapposite defendant's reliance on Warch's
criticism of Cline. See Warch, 435 F.3d at 515-17. Cline
involved, as here, an attempt by a defendant religious school to
rely upon its policy against premarital sex to defeat the
plaintiff's argument that she established a prima facie case.
206 F.3d at 655-56. Warch addressed its plaintiff's argument
that the employer could not rely on its view that the plaintiff
was not qualified because he could not and did not meet the
employer's job performance requirements. 435 F.3d at 514. As
discussed here, under Zive, the use of alleged discriminatory
policies does not undermine a plaintiff's prima facie case where
plaintiff establishes there is no issue as to her job
performance.
24 A-1294-16T4
claim. See Geary, 7 F.3d at 331; Redhead, 440 F. Supp. 2d at
222; Ganzy v. Allen Christian Sch., 995 F. Supp. 340, 359
(E.D.N.Y 1997).
In Zive, our Supreme Court explained:
All that is necessary is that the plaintiff
produce evidence showing that she was
actually performing the job prior to the
termination. Along with the remaining
prongs of the prima facie case, that
evidence is sufficient to support the
conclusion that the plaintiff's claim of
discrimination is plausible enough to
warrant promotion to the next step of the
McDonnell Douglas test. That is not a heavy
burden nor was it meant to be. Indeed, the
opposite conclusion would have the effect of
precluding cases in which poor performance
contributed to but was not the determinative
factor in the termination decision.
As we have indicated, only the
plaintiff's evidence should be considered.
That evidence can come from records
documenting the plaintiff's longevity in the
position at issue or from testimony from the
plaintiff or others that she had, in fact,
been working within the title from which she
was terminated. Because performance markers
like poor evaluations are more properly
debated in the second and third stages of
the burden-shifting test, they do not come
into play as part of the second prong of the
prima facie case. Thus, even if a plaintiff
candidly acknowledges, on his [or her] own
case, that some performance issues have
arisen, so long as he [or she] adduces
evidence that he [or she] has, in fact,
performed in the position up to the time of
termination, the slight burden of the second
prong is satisfied. Simple proof of
continued employment is not enough. That
25 A-1294-16T4
formulation of the second prong is an apt
analogy to the second prong of McDonnell
Douglas; any other interpretation would
ratchet up the second prong in a termination
case and upend the "complex evidentiary
edifice" built by McDonnell Douglas.
[Zive, 182 N.J. at 454-55 (citations
omitted).]
Having determined that plaintiff established a prima facie
claim under the LAD, the remaining issue on summary judgment
therefore focuses on whether defendant's asserted reason for
firing plaintiff was pretextual. That determination requires
inquiry into material questions of fact relating to defendant's
conduct in either firing or retaining employees who are known to
have violated defendant's code of ethics and whether the
decision has been applied uniformly, regardless of gender,
marital status or pregnancy. See Redhead, 440 F. Supp. 2d at
223.
On summary judgment, the only evidence of the policy being
violated and enforced against plaintiff was the obvious
inference plaintiff engaged in premarital sex, based on Lee's
determination plaintiff was unmarried, the handbook and related
documents that did not mention premarital sex as prohibited
conduct, Lee's testimony that plaintiff's conduct was part of a
litany of behavior that would give rise to a violation, and,
plaintiff's statement that she understood premarital sex to be a
26 A-1294-16T4
violation of Catholic tenets. There was no evidence, however,
of how male or not pregnant female teachers at defendant's
school who engaged in premarital sex were detected or treated by
defendant, or how it responded to any other teacher who it knew
violated other tenets of the Catholic faith as determined by
defendant's school principal. Thus, there were questions of
material fact that should have prevented the award of summary
judgment to defendant.
The lack of evidence on summary judgment regarding
defendant's treatment of other teachers or employees suspected
of violating the Church's code is directly attributable to the
trial court's April 22, 2014 discovery order. The order barred
discovery of relevant information because of the trial court's
misapplication of First Amendment proscriptions. For that
reason, we conclude the trial court abused its discretion, see
Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371
(2011), and its order must be reversed so that plaintiff can
have discovery on the issue of defendant's treatment of all
"similarly situated" employees who defendant knew were in
violation of its ethics code. For the same reason, the trial
court's denial of reconsideration was also an error.
The order granting defendant summary judgment is reversed,
without prejudice to either party seeking the same relief after
27 A-1294-16T4
the completion of discovery. The orders denying reconsideration
and limiting plaintiff's discovery are also reversed. The
matter is remanded to the trial court for entry of a case
management order to permit discovery in accordance with this
opinion, consider any ensuing summary judgment applications and,
if necessary, trial.
Reversed and remanded for further proceedings consistent
with our opinion. We do not retain jurisdiction.
28 A-1294-16T4