New Jersey Employment Lawyer Blog

In a decision released yesterday, the NJ Appellate Division upheld the dismissal of a discrimination claim brought by a NJ Transit employee. In Middleman v. New Jersey Transit, No. A-4203-08T2 (Sep. 13, 2010), the employee alleged she was discriminated against on the basis of her age, gender, and race when her employer failed to promote her to a foreman position. The court reviewed the promotion decision and found that NJ Transit had articulated several legitimate, non-discriminatory reasons for passing the employee over for promotion -- none of which the employee could effectively rebut.

On appeal, the employee argued that the trial court ignored evidence of a hostile work environment, which she claimed cast doubt on the employer's reasons for failing to promote her. The appellate court disagreed, finding that the employee had previously withdrawn her hostile work environment claim. The court focused solely on the claim that NJ Transit failed to promote the employee. On that claim, the employee failed to present any evidence to rebut the employer's argument that she performed poorly at the interview. Therefore her appeal was denied.

When companies are sued for discrimination, they have an obligation to explain themselves. They must come forward with legitimate reasons for decisions which otherwise seem discriminatory. This is not a heavy burden. In this case, the employer simply stated that the employee did not perform well at her interview. It then fell upon the employee to point to evidence which showed that reason to be false. She could have shown that the interview process was rigged from the start, or biased, or even overly subjective. She could have shown that other females were also rated poorly, while men were rated higher. Unfortunately for this employee, she could not present any evidence in her favor, and thus her case was dismissed.

If you are experiencing discrimination or harassment at work, it is imperative that you contact a knowledgeable employment attorney. Your career is at stake. Make sure the attorney you call is a specialist in this area.

When a Middlesex County judge dismissed her age discrimination case against Robert Wood Johnson University Hospital, Alice Michael was understandably upset. When the judge went on to rule that she had to pay the hospital over $120,000 in attorney fees because her case was “frivolous,” she was horrified. Ms. Michael is currently employed at the hospital as a low level computer operator making around $44,000 per year. The court’s decision would have bankrupted her. Fortunately, the Appellate Division intervened and reversed the decision, sending the case back to the trial court, where it was heard by a different judge. This time the court got it right, finding that Ms. Michael did not bring her claim in bad faith. The hospital, however, would not relent. It appealed the decision further. It was not until Ms. Michael’s husband passed away that the hospital withdrew its appeal, with nothing to show for the time and money it had spent trying to get Ms. Michael to pay.

At Ms. Michael's request, I reviewed the case of Alice Michael v. Robert Wood Johnson University Hospital and Michael Zegar, MID-L-10599-02, after the hospital withdrew its appeal. I was shocked to hear that a large, respected public institution like RWJ Hospital would be so aggressive and, quite frankly, vindictive, towards one of its employees. Although Ms. Michael’s claim was ultimately unsuccessful, there was no evidence that she brought it in bad faith. In my opinion, the hospital and its attorneys spent a lot of time and money trying to make an example out of Ms. Michael. They were trying to dissuade other employees who may feel they have been discriminated against from complaining. I am glad that the court saw through their plan and denied them the fees they were seeking. This case turned out to be a positive one for employees in New Jersey. It shows that employees will never be forced to pay their employer’s legal fees, unless the case is completely off-the-wall.

According to New Jersey Transit, the answer is yes. The public railroad agency recently terminated long-time employee Derek Fenton for burning pages of the Muslim holy book in front of the planned Muslim community center and mosque near Ground Zero on September 11, 2010. Mr. Fenton claimed to be inspired to stage his protest by Florida pastor Terry Jones, who had threatened to burn the Koran but then backed down. In a press release issued after the termination, New Jersey transit stated that "Mr. Fenton's public actions violated New Jersey Transit's code of ethics. . . . We concluded that Mr. Fenton violated his trust as a state employee and therefore [he] was dismissed."

From an employment law perspective, it's clear that an employer can fire an employee for any reason or no reason at all. This is the meaning of the term "at-will employment." Just as Mr. Fenton had a right to protest, New Jersey Transit had a right to terminate his employment at will. For this reason, New Jersey Transit has not violated New Jersey law by terminating Mr. Fenton.

The moral of this story is that employers can use your actions outside of work as a basis for terminating your employment. When you engage in an act of protest such as Derek Fenton's, you have to be prepared to suffer the consequences, which can include losing your job.