C. RetaliationSee footnote 1 (5/91) The plaintiff in this case has charged that the (put in factual assertion capsulizing adverse employment action, such as failure to promote, demotion, discipline, discharge, RIF) taken against him/her was taken because he/she asserted a claim(s) of discrimination against his/her employer. The New Jersey Law Against Discrimination states that: It shall be unlawful employment practice
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For any person to take reprisals against any person because he/she has opposed any practices or acts forbidden under this act or because he/she has filed a complaint, testified or assisted in any proceeding under this act.See footnote 2
In order to prove a claim under this provision of the New Jersey Law Against Discrimination, plaintiff must establish certain elements as follows: 1. Plaintiff engaged in a protected activity;
2. The employer knew that the plaintiff had engaged in the protected activity;
3. Plaintiff was thereafter subjected to an adverse employment decision by the employer; and
4. There was a casual link between the plaintiff engaging in a protected activity and the adverse action.See footnote 3
I charge you that plaintiff's [specify protected activity] constitutes a protected activity for the purposes of meeting the first of the four requirements. Therefore, to carry his/her burden, plaintiff must prove the remaining three elements by a preponderance of the evidence.See footnote 4 In assessing whether there is a casual connection between the protected activity and the adverse action, you are to determine whether there are circumstances that justify an inference of retaliatory motive, such as protected conduct closely
followed by adverse action.See footnote 5 Examples of casual connection, or lack of such a connection, are: after a plaintiff engaged in protected activities, plaintiff was treated differently and adversely from othersSee footnote 6; a passage of a period of time sufficient to negate any inference of a casual connection.See footnote 7 Once a plaintiff establishes these elements, the burden of going forward, but not the burden of persuasion, shifts to the employer to merely articulate some legitimate, non-retaliatory reason for the adverse action. The employer is not required to prove the validity of such a reason by a preponderance of the evidence, but need only articulate facts or produce evidence sufficient to raise a genuine issue of fact as to whether plaintiff was discriminated against. If the employer articulates such a reason, the claimant-employee is afforded a fair opportunity to show by a preponderance of the evidence that discriminatory intent more likely than not
motivated the employer's action. The claimant can accomplish this by proving that the articulated reason is a pretext for the retaliation or that a discriminatory reason more likely motivated the employer. In other words, plaintiff must prove that the articulated reason is unworthy of credence. If, and only if, plaintiff succeeds in meeting that burden, a presumption is created that the adverse employment action was the product of improper retaliatory intent. Then, the employer must prove by the preponderance of the evidence that the adverse action would have been taken regardless of retaliatory intent.See footnote 8
Footnote: 1 This charge is to be given when an employee asserts that he or she was retaliated against for asserting rights protected by the New Jersey Law Against Discrimination. The leading case is Jamison v. Rockaway Tp. Bd. of Educ., 242 N.J. Super. 421 (App. Div. 1990).
Footnote: 2 N.J.S.A. 10:5-12(d).
Footnote: 3 Jamison lists these as three elements by combining (1) and (2). Since "engaging in a protected activity" is usually a matter of law (i.e. the employer has filed a charge with an agency), but knowledge of that engagement is not, the first element has beenseparated into two parts.
Footnote: 4 There will be factual instances in which the court can charge that, as a matter of fact, knowledge exists (or can be imputed) and that an adverse decision was made, for example, if a complaint from an agency had been received and thereafter, plaintiff was demoted. The fourth element, the casual connection is, however, usually a fact question.
Footnote: 5 Bennen v. Rutgers, The State University, 737 F. Supp. 1393, 1399 (D.N.J. 1990).
Footnote: 6 Loiseau v. Department of Human Services, 567 F. Supp. 1211 (D. Or. 1983); DeCintio v. Westchester County Medical Center, 821 F.2d 111 (2d Cir.), cert. den., 484 U.S. 965.
Footnote: 7 There is no "bright line" as to the period of time which is sufficient. The cases indicate that time periods of three years [Burrus v. United Tel. Co., 683 F.2d 339, 343 (10th Cir.) cert. denied, 459 U.S. 1071 (1982) and Mills v. National Distillers Prod. Co., 17 Fair Empl. Prac. Cas. (BNA) 73, 77 (S. D. Ohio 1978)]; two years [Clark v. Chrysler Corp., 673 F.2d 921, 930 (7th Cir. 1978), cert. denied, 459 U.S. 873 (1982) and Ekanem v. Health & Hosp. Corp., 589 F.2d 316, 320 (7th Cir. 1978) cert. denied, 469 U.S. 821 (1984)]; one year [Jackson v. Pepsi Cola Dr. Pepper Bottling Co., 783 F.2d 50, 54 (6thCir. 1984), cert. denied, 478 U.S. 1006 (1986)]; and even two months [Eastern Eng'g & Elevator Co. v. NLRB, 637 F.2d 191 (3d Cir. 1980)] suffice to negate any inference of a casual connection between two events. Indeed, the New Jersey Appellate Division held in House v. Carter-Wallace, Inc., 232 N.J. Super. at 54, that an "alleged connection between [a plaintiff's] opposition...expressed in October 1982 and his discharge nearly three months later was wholly speculative."
Footnote: 8 Jamison at 445-446.
Model Civil Jury Charges
