CONDOMINIUM LAW ISSUES

Homeowners’ Association Not Subject to the Constitutional Limitations Imposed on State Actors.

In Committee For A Better Twin Rivers (CBTR) v. Twin Rivers Homeowners’ Association (TRHA), 2007 WL 2127686 (N.J. July 26, 2007), residents of Twin Rivers, a planned unit development, who were attempting to change manner in which Twin Rivers was administered brought action against Twin Rivers's homeowners' association, seeking declaratory and injunctive relief regarding restrictions on residents' ability to campaign. The Superior Court found that Planned Real Estate Development Full Disclosure Act (PREDFDA) applied to homeowners' association, and found that homeowners' association was not subject to the constitutional limitations imposed on State actors. Residents appealed, and homeowners' association cross-appealed. The Superior Court, Appellate Division, affirmed in part, vacated in part, and reversed and remanded in part. Certification was granted.

The thrust of the complaint was that the Association had effectively replaced the role of the municipality in the lives of its residents, and therefore, the Association's internal rules and regulations should be subject to the free speech and free association clauses of the New Jersey Constitution. Plaintiffs sought to invalidate the Association's policy relating to the posting of signs, complained of the Association's policy in respect of the use of its community room, and alleged they were denied equal access to the Association's monthly newspaper, Twin Rivers Today (Today). The Association petitioned this Court for certification on whether the New Jersey Constitution applies to its internal rules and regulations.

The Court noted that:

our constitution's free speech provision is “broader than practically all others in the nation.” Consequently, we have not followed the approach of other jurisdictions to require some state action before the free speech and assembly clauses under our constitution may be invoked. Even in the absence of state action, we must determine whether the acts of a homeowners' association violated its members' free speech and association rights in the setting of this private housing association.

The Supreme Court applied the following test: (1) the nature, purposes, and primary use of such private property, generally, its “normal” use, (2) the extent and nature of the public's invitation to use that property, and (3) the purpose of the expressional activity undertaken upon such property in relation to both the private and public use of the property. This test is applied along with a balancing of expressional rights and private property interests.

With regard to the first prong, the Court held that the nature, purposes, and primary use of Twin Rivers' property is for private purposes and does not favor a finding that the Association's rules and regulations violated plaintiffs' constitutional rights.

In analyzing the second prong, the Court held that “a public invitation to use the premises may be express or implied. . . . an implied invitation can be inferred where the property owner permits and encourages public use of the property”. Here, the Association has not invited the public to use its property. Although Twin Rivers is not a gated community and its roads are accessible to public traffic, the Court agreed with the Association's position that the property and facilities are for the exclusive use of Twin Rivers residents and their invited guests. The Court noted that the mere fact that owners may sell or rent property to members of the public who are invited to come into Twin Rivers and inspect such property hardly implicates a public invitation. The Court concluded that the limited nature of the public's invitation to use the property did not favor a finding that the Association's rules and regulations violated plaintiffs' constitutional rights.

The third factor required that the Court examine “the compatibility of the free speech sought to be exercised with the uses of the property.” The Court must look to the fairness of the restrictions imposed by the Association in relation to plaintiffs' free speech rights. In this case, plaintiffs' expressional activities-posting political signs, free use of the community room, and access to the community newspaper-involve political-like speech aimed at affecting the manner in which Twin Rivers is managed. The Court concluded that plaintiffs' expressional activities were not unreasonably restricted stating that “Twin Rivers is a private, residential community whose residents have contractually agreed to abide by the common rules and regulations of the Association. The mutual benefit and reciprocal nature of those rules and regulations, and their enforcement, is essential to the fundamental nature of the communal living arrangement that Twin Rivers residents enjoy.” The Court further concluded that this factor did not weigh in favor of finding that the Association's rules and regulations violated plaintiffs' constitutional rights.

Finally, the Court held that

The outcome of the balancing of the expressional rights and the privacy interests is obvious . . . . We find that the minor restrictions on plaintiffs' expressional activities are not unreasonable or oppressive, and the Association is not acting as a municipality. The Association's restrictions concerning the placement of the signs, the use of the community room, and access to its newspaper are reasonable “concerning the time, place, and manner of” such restrictions . . . . Consequently, we conclude that in balancing plaintiffs' expressional rights against the Association's private property interest, the Association's policies do not violate the free speech and right of assembly clauses of the New Jersey Constitution.

However, the Court noted “[o]ur holding does not suggest, however, that residents of a homeowners' association may never successfully seek constitutional redress against a governing association that unreasonably infringes their free speech rights.” Moreover, the Court noted that common interest residents have other protections, e.g. the business judgment rule, the Planned Real Estate Development Full Disclosure Act (PREDFDA), and traditional principles of property law.

EMPLOYMENT LAW ISSUES

In An Age Discrimination Lawsuit, Courts Must Consider Not Only The Average Age Of Those Who Assumed The Plaintiff's Job Duties, But Also The Age Of Each Individual Co-Worker Who Took Over Some Portion Of Those Duties, As Well As What Portion Each Assumed.

In Steward v. Sears Roebuck & Co., 2007 WL 2310028 (3d. Cir. August 14, 2007), an unpublished opinion, Gunnar Steward sued his employer, Sears, Roebuck & Co., for terminating him in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 261 et seq.

Steward began working at Sears as a technician in March 1979. After a series of gradual promotions, he was named the technical manager in Sears' Wilmington, Del., facility in December 1998. After he was fired in July 2001, his job duties were distributed among four others - Tony Carter, 45, the only other technical manager in Wilmington; Joyce Sipple, 60, a technical manager in Dover; Brian Merkel, 35, who held the same post in Reading, and Mark DeWit, 33, who was ultimately given Steward's former job title. A jury concluded that Steward's firing was the result of age bias.

Sears argued in post-trial motions that the jury's verdict should be set aside. Sears argued that Steward never made out a prima facie case because the workers who replaced him were not sufficiently younger. In his ruling setting aside the verdict, the Magistrate Judge found that the age difference was not enough to make out a prima facie case under the Age Discrimination in Employment Act finding that “[t]he overwhelming body of cases in most circuits has held that age differences of less than 10 years are not significant enough to make out the fourth part of the age discrimination prima facie case."

In a case such as this, if there is no direct evidence of age discrimination, a plaintiff may prove age discrimination through the use of circumstantial evidence. In order to establish a prima facie case of age discrimination, a plaintiff must show that he: “(1) is over 40; (2) is qualified for the position in question; (3) suffered an adverse employment decision; and (4) was replaced by a sufficiently younger person to permit an inference of age discrimination.” Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 330 (3d Cir.1995). If the plaintiff establishes these four elements, this creates a presumption of age discrimination, which the employer can rebut by providing a legitimate, nondiscriminatory reason for the adverse employment decision. Id. If the employer has met its burden to offer a legitimate, nondiscriminatory reason for the decision, the burden shifts back to the plaintiff to prove that the employer's stated reason is pretextual. The plaintiff must present evidence “direct or circumstantial, from which a factfinder could reasonably either: (1) disbelieve the employer's articulated legitimate reason; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action. The factfinder may infer from the combination of the plaintiff's prima facie case, as well as its own rejection of the employer's proffered nondiscriminatory reason, that the employer unlawfully discriminated against the plaintiff and was merely trying to conceal its illegal act with the articulated reason.” Id. at 331 (internal citation omitted).

In this case, the parties did not dispute that Steward had proved the first three elements of his prima facie case. Accordingly, the members of the jury were instructed that they only had to determine whether Steward proved the fourth element of his prima facie case: that “someone substantially younger assumed plaintiff's duties or was treated more favorably.” The District Court concluded that Steward failed to establish the fourth element of a prima facie case of age discrimination and that, therefore, the evidence presented could not support the jury's ultimate conclusion that Sears' decision to terminate Steward was discriminatory. The Court considered the sufficiency of Steward's evidence to establish the fourth element of his claim, namely, that “someone sufficiently younger assumed his duties or was treated more favorably so as to create an inference of age discrimination.” The Court concluded that the jury could find that Steward's duties were assumed by the three remaining Technical Managers, Carter (45), Merkel (35) and Sipple (60), with some assistance from DeWit (33). The average age of these four comparators at the time Steward was terminated was 43.25 years old, or 6.75 years younger than Steward. The Court concluded that the 6.75 year average age difference between Steward and the comparators was insufficient to establish a prima facie case of age discrimination because the comparators were not “sufficiently younger” than Steward to permit an inference of discrimination.

The federal appeals court reinstated the jury's verdict finding that the trial judge erred when he set aside the verdict on the grounds that the plaintiff had failed to show he was replaced by workers who were "sufficiently younger." The Court noted that none of their prior decisions squarely addressed whether a 6.75 year average age difference between a plaintiff and those who assume his job duties is sufficiently large to give rise to an inference of age discrimination.

The Court declined “to adopt a brightline rule that a 6.75 year average age difference between a plaintiff and those who assume his job duties is, as a matter of law, insufficient to give rise to an inference of age discrimination. Rather, the Court held that courts must consider not only the average age of those who assumed the plaintiff's job duties, but also the age of each individual co-worker who took over some portion of those duties, as well as what portion each assumed. Further, the Court found that the jury could have properly focused on the two younger workers and concluded that they had assumed a greater portion of Steward's duties.