EMPLOYMENT LAW ISSUES

In Order To Establish Pretext In Employment Discrimination Failure To Hire Cases, A Plaintiff Must Show That An Employer’s Departures From The Criteria Set Forth in the Job Announcement Were Inappropriate Or Irrational.

In Sarmiento v. Montclair State University, 2007 WL 1381755 (D.N.J. May 9, 2007), Plaintiff, Esteban Sarmiento filed an employment discrimination action against Montclair State University (“MSU”), alleging violations of Title VII, §1981 (Age Discrimination in Employment Act) and the New Jersey Law Against Discrimination, based upon MSU’s failure to hire Mr. Sarmiento for a tenure-track position as an Assistant Professor of Biological Anthropology. Specifically, Plaintiff Sarmiento alleged discrimination based on age, sex and national origin.

The claims for age and sex discrimination were dismissed by way of Motion for Partial Summary Judgment. Defendant MSU then filed a Motion for Summary Judgment on the final claim, which the District Court has granted herein.

In 2001, Defendant MSU issued two position announcements, one short and one longer, for the position of tenure track Assistant Professor of Biological Anthropology, which position was to commence in September 2002. In October 2001, Plaintiff submitted his curriculum vitae, a list of references, and selected publications for consideration by the Personnel Advisory Committee (“PAC”).

PAC received approximately 52 applications for the position. From that group, PAC selected 3 candidates to invite for interviews, of which Plaintiff Sarmiento was not one. Rather, PAC selected three females, one of whom was Caucasian, the other two African-American. Following the interview process, MSU hired the Caucasian for the position.

In July 2002, Plaintiff Sarmiento filed a complaint with the EEOC, alleging discrimination. Thereafter, a right to sue letter was issued by the EEOC, and Plaintiff brought the within action. The Court decided Defendant’s Motion for Summary Judgment, using the burden-shifting framework set forth in McDonnell Douglas Corp. v Green, 411 U.S. 792, 802-04 (1973).

Under McDonnell Douglas, Plaintiff first had to make out a prima facie case of discrimination by showing that (1) he is a member of a protected class; (2) he sought and was qualified for the job; (3) despite his qualification, he was rejected for the position; and (4) a non-member of plaintiff’s class was treated more favorably. Defendant asserted that plaintiff was unable to meet this burden because he cannot establish that he met the qualifications for the job. However, because the burden at this step is slight, the Court found that Plaintiff had made out his prima facie case.

Next, Defendant MSU had to demonstrate a legitimate, non-discriminatory reason for its employment decision. In support thereof, MSU asserted Plaintiff Sarmiento did not survive the first stage of the process because PAC felt that the research interests and experiences of the three women more closely fit with the position. In noting that the Defendant’s burden at this level was of production, not persuasion, the Court found that MSU has met its burden in establishing a legitimate non-discriminatory reason for not hiring Plaintiff Sarmiento, that being other candidates better suited for the position.

Finally, Plaintiff Sarmiento was left to establish that the reason articulated by Defendant MSU was not true reason for decision, but was merely a pretext for discrimination. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). “The question is not whether the employer made the best, or even a sound, business decision; it is whether the real reason is discrimination.” Sarmiento, 2007 WL 1381755 at *7, quoting Keller v. Ortiz Credit Alliance, 130 F.3d 1101, 1109 (3d Cir. 1997). Hereunder, Plaintiff Sarmiento argued that his qualifications exceeded those of the three female candidates to such an extent that the trier of fact could reasonably conclude that the reasoning provided by MSU must have been pretextual. However, as MSU consistently argued, although Plaintiff was highly qualified, his areas of specialty did not match with the position they sought to fill. Further, MSU noted that PAC viewed the criteria listed on the job notice as an inclusive “package”, rather than as individual criteria to be used for elimination purposes. Accordingly, while Plaintiff may have been stronger than other candidates in certain areas, overall the other candidates were better suited.

The Court, in finding that Plaintiff failed to establish pretext, noted, “absent some evidence tending to show that the Committee’s departures from the baseline criteria were inappropriate or irrational, such departures do not support an inference of pretext.” Sarmiento, 2007 WL 1381755 at *12. The Court further stated, “The Court’s role is to determine whether [the employer’s] decision was rational and non-discriminatory. It is not the function of [the] Court to second-guess hiring decisions. . . .” Id.

Therefore, based upon the above, the Court found in favor of Defendant, MSU, and granted the Motion for Summary Judgment.

NEW JERSEY MUNICIPAL LAW ISSUES

Where Plaintiff has Failed to File Notice of Claim within 90 Days in Accordance With the Tort Claims Act, Subsequent Correspondence from Defendant Pubic Entity Providing Supplementary Claims Forms Does Not Automatically act as a Waiver to Notice Defenses

In Corliss v. City of Hammonton, 2007 WL 1387957 (N.J. Super. A.D. May 14, 2007), Plaintiff brought a negligence suit against Defendant, City of Hammonton, after suffering injuries while walking along a fenced pedestrian path following an arts and crafts festival. Plaintiff appealed the granting of Defendant’s motion for summary judgment based upon Plaintiff’s failure to meet the notice requirements of the New Jersey Tort Claims Act (“TCA”) , N.J.S.A. 59:1-1 through 12-3.

On October 11, 2003, plaintiff was participating as a vendor at a craft fair held on public property in the City of Hammonton. When leaving the fair, plaintiff followed a designated pedestrian path. While on that path, plaintiff tripped over a speed bump and injured herself.

On May 27, 2004, 229 days after her accident, Plaintiff’s counsel filed a notice of claim with Defendant, City of Hammonton. Thereafter, on June 3, 2004, Defendant’s claims administrator sent a letter to Plaintiff’s counsel, which included supplementary forms to be completed by Plaintiff. After receiving no response, the claims administrator sent a second letter, dated July 1, 2004 , which letter advised that the claim had been denied. On September 3, 2004, Plaintiff returned the completed supplementary claims forms to Defendant.

On July 6, 2005, Plaintiff filed the within action. Shortly thereafter, on August 11, 2005, Defendant filed a motion for summary judgment, seeking dismissal of the complaint based upon Plaintiff’s failure to comply with the notice provisions of the TCA, which provides that notice must be filed within 90 days of the accrual of the claim, N.J.S.A. 59:8-8, and also upon Plaintiff’s failure to move for leave to file late notice within one year of the accrual of the claim, N.J.S.A. 59:8-9.

In opposition to the motion, Plaintiff argued that Defendant should be estopped from raising the notice defense because Defendant allegedly made representations to Plaintiff at the time of her fall that conveyed the impression that appropriate notice had been given, and also because the June 3, 2004 letter created the objective impression that Defendant had waived the notice provisions of the statute.

The trial judge granted Defendant’s motion, finding that any notice at time of accident did not represent substantial compliance with the notice requirements under the TCA, and despite Plaintiff’s reliance on the letter of June 3, 2004, Plaintiff was still required to establish “extraordinary circumstances” which would excuse Plaintiff’s failure to file notice within 90 days of accrual of claim.

Both parties then moved for reconsideration, with Plaintiff arguing that her reliance on the June 3, 2004, letter created an impression of waiver by Defendant, thus obviating the need to demonstrate extraordinary circumstances, and Defendant arguing that the June 3, 2004 letter was not a waiver, and Defendant should not be estopped from asserting any the notices.

The trial judge denied Plaintiff’s motion and granted Defendant’s motion. In so doing, the trial judge noted that Plaintiff had sufficient time, after receiving Defendant’s July 2004 letter denying the claim, to move for leave to file late notice, but that Plaintiff had failed to do so. Further, had Plaintiff moved for leave to file late notice, she would not have succeeded, because she could not demonstrate “extraordinary circumstances” for her failure to timely file notice. Plaintiff then appealed the above ruling by the trial judge.

On appeal, the Appellate Division noted that a failure to file notice within 90 days, pursuant to N.J.S.A. 59:8-8a of the TCA is an absolute bar to recovery. The Appellate Division found that Plaintiff failed to submit a notice of claim within 90 days of accrual of her injury. The Appellate Division further found that the late notice served by Plaintiff could not be deemed in substantial compliance with the TCA, where it was without leave of court. The Court concurred with the trial judge, finding that Defendant should not be estopped from asserting any notice defenses where, as here, Plaintiff had failed to seek leave of the court to file late notice.

Finally, the Appellate Division found that it was not necessary to consider whether Plaintiff had demonstrated extraordinary circumstances that would warrant a late filing, based on its having found that Defendant did not waive, and was not estopped from asserting, any notice defenses.

INSURANCE COVERAGE ISSUES

The Third Circuit Predicts That the Pennsylvania Supreme Court Would Find that the Four-Year Statute of Limitations on Underinsured Motorist Coverage Begins to Run When the Insured Either Settles With or Obtains an Award From the Adverse Driver

In State Farm Mut. Auto. Ins. Co. v. Rosenthal, --- F.3d ---, 2007 WL 1160782 (C.A. 3 (Pa.) April 20, 2007), State Farm brought a declaratory judgment action against Defendant, Brian D. Rosenthal, alleging that Defendant Rosenthal’s underinsured motorist claim was time-barred by Pennsylvania’s four-year statute of limitations on contract claims. The Third Circuit then decided a matter not yet settled by the Pennsylvania Supreme Court, that being, when does the statute of limitations begin to run on underinsured motorist claims.

On June 8, 1998, Defendant Rosenthal, while insured by State Farm, was involved in a motor vehicle accident. As of August 1999, his loss of earnings capacity was estimated at $2,000,000.00, and his lost wages at $1,000,000.00. In June 2003, Defendant Rosenthal settled his claim with the adverse driver for $85,000.00. The total amount of the adverse driver’s policy was $100,000.00.

On July 9, 2003, Defendant Rosenthal’s attorney sent a letter to State Farm seeking approval for the settlement, and advising State Farm of Defendant Rosenthal’s intent to pursue an underinsured motorist claim against State Farm. State Farm approved the settlement, and continued to correspond with Defendant Rosenthal’s attorney for approximately one year thereafter regarding the underinsured motorist claim.

On July 22, 2004, Defendant Rosenthal’s attorney demanded underinsured motorist arbitration from State Farm. Thereafter, on March 11, 2005, State Farm filed the within action, seeking a declaratory judgment that Defendant Rosenthal’s underinsured motorist claim was time barred by Pennsylvania’s four-year statute of limitations

Thereafter, Defendant. Rosenthal filed a motion for summary judgment, and State Farm opposed this motion, and filed a cross-motion for summary judgment. The District Court ruled in favor of Defendant Rosenthal, finding that statute of limitations begins to run when the insurer denies the insured’s claim. State Farm then appealed that ruling to the Third Circuit.

In predicting how the Pennsylvania Supreme Court would rule, the Third Circuit looked to lower state court rulings. As a result, the Third Circuit determined that there were three possible dates when the statute of limitations could start running: “(1) the date of the accident []; (2) the date on which the insured settles with the adverse driver for less than the insured’s damages []; or (3) the date on which the insurer rejects the insured’s underinsured motorist claim [].”

The Third Circuit then turned to the state courts’ handling of uninsured motorist coverage. That case law establishes that the statute of limitations on an uninsured motorist claim begins to run “when the right to payment of a benefit accrues to the insured, i.e., when (1) the insured is in a motor vehicle accident; (2) the insured sustains bodily injury as a result of the accident; and (3) the insured knows of the uninsured status of the other owner or operator.”

The Third Circuit then looked to Wheeler v. Nationwide Mutual Insurance Company, 749 F. Supp. 660 (E.D.Pa. 1990), wherein the Court examined how the line of uninsured motorist cases would apply to underinsured motorists cases. The Wheeler Court held that, based upon the above criteria, the statute of limitations for an underinsured motorist claim does not begin to run until the underinsured status of the adverse driver is established, which is when the matter is actually settled.

In this matter, the Third Circuit ultimately affirmed the ruling of the District Court in favor of Defendant Rosenthal; however, the Third Circuit took a different position as to when the statute of limitations begins to run. While noting that an insured may bring a claim for underinsured motorist coverage prior to settling the claim with the adverse driver, so long as a credit is provided to the insurance company for the face value of the adverse driver’s liability policy, the Third Circuit stated that the insured is not required to do so at that time. Rather, the Third Circuit predicts that the Pennsylvania Supreme Court will find that the statute of limitations does not begin to run until “the date on which the underinsured settles with or obtained an award from the adverse driver for less than the value of his damages.” Accordingly, Defendant Rosenthal’s claim for underinsured motorist coverage was timely.