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8 N.J.A.R. 537

Polcari, John v. Hackensack Board of Education
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Citation: 8 N.J.A.R. 537
Decision Date: 1983
Synopsis: Complainant filed an action with the Division on Civil Rights alleging that he had been denied a job promotion based upon his age in violation of N.J.S./I. 10:5-4 and N.J.S./I. 10:5-12. The adminsitrative law judge assigned to the case found that respon- dent had posted an opening for the position of supervisor of buildings and grounds. Complainant, who at the time was 61 years old and was employed by respondent as head custodian, applied for the position along with six other individuals. On the basis of test and interviews, complainant and two others were the highest rated candidates, each with equal scores. Acting on a staff recommendation, the respondent awarded the job to an equally rated, but younger, candidate. The staff recommendation which listed the age of the candidates had been based, in part, on which candidate would have the longer opportunity to serve in the position. The judge also found that complainant had been told that he had not been given the job because of his age. Finding that complainant was qualified for the job, the judge con- cluded that the reasons given for not promoting complainant had been pretextual and thus respondent had engaged in an act of discrimina- tion contrary to N.J.S./I. 10:5-4 and 10:5-12(a). The judge found in addition, however, that absent considerations of age, the complainant may not have been selected for the super- visor's job taking all other factors into account. Accordingly, the judge ordered that the position of supervisor be declared vacant and that respondent accept applications anew to be processed in conformity with the Law Against Discrimination. While denying an award of back pay, the judge did order respondent to pay damages for humili- ation, mental pain and suffering. Upon review, this initial decision was modified by the Director of the Division on Civil Rights. The Director determined Bat it was clear from the record that age was a factor in the failure of complainant to be given the position of supervisor. That being so, once it was established that discrimination was a substantial factor in respon- dent's failure to promote, it should have become respondent's burden to prove that complainant's qualifications were such that he would not have been promoted and thus would not have been entitled to back pay. The Director's examination of the record indicated that there was no credible evidence to support a defense by respondent that, absent discrimination, complainant would not have been promoted. Accordingly, the Director determined that complainant was entitled to an award of back pay. In addition, in order to protect the innocent party who had been promoted into the position of supervisor, the Director ordered that that position remain status quo but that the complainant be awarded a raise in salary the difference between what he would have earned had he received the promotion and what he was receiving in his current position. The Director adopted the judge's order concerning the award for humiliation damages. Susan L. Reisner, Deputy Attorney General, for complainant (Irwin I. Kimmelman, Attorney General of New Jersey, attorney) E.G. McGovern, Esq., for respondent
Statute(s) Cited: 10:5-12(d)