By Phillip Movaghar & Jeff Birren
It is unlikely that Congress had healthy white males in mind when it passed the 1964 Civil Rights Act. For Joseph Marino, a white male who coaches girls’ high school basketball, that Act has kept his claims alive. Marino was a “tenured physical education instructor” for the Westfield Board of Education in New Jersey. He coached the “girls’ team” “for approximately 14 years” (Marino v. Westfield Bd. of Educ., U.S. D. C., D. N. J, Case No. 16-361 (“Marino”) 2020 U.S. Dist. LEXIS 36190, 2020 WL 1032504 (3-3-20) at 3).
In 2014 the District Superintendent (“Superintendent”) “did not recommend” that Marino be reappointed, and he was not (Id. at 3/4). Marino was then “fifty-four or fifty-five years old” (Id. at 4). He was replaced by a younger woman (Id. at 3). This led to a protest by “fellow teachers, coaches, faculty, parents and his team defended him” (tapinto.net, Alexandria Addesco, “Supporters of Westfield Girls Basketball Coach Protest His Dismissal” (10-22-14)). In 2016, Marino was hired as the girls’ basketball coach at another New Jersey high school (tapinto.net, Daniel Collins, “New Coach, Fresh Start” (11-26-16)).
Marino filed a lawsuit in New Jersey state court on October 6, 2015 alleging claims based on age and gender discrimination and various torts (Marino, Opinion at 5 (5-18-16)). If Marino expected the case to go quickly, he was mistaken.
The defendants removed the case to federal court on January 21, 2016 (Id.). Motions to dismiss soon followed. Marino responded by filing “a letter” in opposition to the motions (Id. at 6). In May 2016 the Court dismissed many of Marino’s tort claims without prejudice and gave leave to amend (Id. at 20).
Given an inch, Marino took a mile. He filed his Second Amended Complaint on July 20, 2016 “without seeking leave to amend as required by the Court” (Marino, Opinion II at 6 (1-18-17)). In August, Marino filed a motion for leave to file a Third Amended Complaint. That was granted in November 2016 (Id.). The defendants responded with another motion to dismiss. In January 2017, the Court dismissed with prejudice: Marino’s claims for “libel and slander” (Id. at 11); the claims for infliction of emotion distress (Id. at 13/15); and a claim of invasion of privacy against one defendant (Id. at 15). The motion was denied as to the gender discrimination claim (Id. at 10). The defendants had not moved to dismiss the age discrimination claims (Id. at 8). Marino was again given leave to amend (Id. at 15).
Marino filed his Fourth Amended Complaint (“FAC”) on February 20, 2017 (Marino Doc. #45), and a month later he filed a motion for leave to correct or amend that complaint (Marino Doc. #56). That was granted on May 1, 2017 (Marino Doc. # 61), and a final FAC was filed on May 15, 2017 (Marino Doc. #63). Count One is “an age discrimination claim against Westfield and Count Two asserts a gender discrimination claim” (Marino at 4). That same day the sole remaining defendant, Westfield Board of Education (“Westfield”), filed an Answer (Marino Doc. #64). The FAC is the subject of a recent summary judgment ruling (Marino at 4).
The Motion for Summary Judgment
Westfield moved for summary judgment (“MSJ”) on July 1, 2019 (Marino Doc. #127). Marino filed his opposition on July 23 (Marino Doc. #130 & 131). True to form, the opposition “often failed to include supporting citations to the record for paragraphs that he denied” and consequently, the Court deemed “each paragraph that Plaintiff denied without providing proper support as admitted” (Marino at 3, FN 2). The opposition also “contains few citations to the factual record and includes purported facts” that were not in the motion papers. Consequently, Marino’s “Material Facts” “were disregarded by the Court” (Id.). Westfield Replied on July 29, 2019 (Marino Doc. # 134). The Court did not take oral argument (Marino at 3).
The Court began by stating the legal standard and burden-shifting involved in such cases and if “reasonable minds could differ as to the import of the evidence” then “summary judgment is not appropriate” (Id.). The Court then turned to its analysis.
Age Discrimination
The [Age Discrimination Act of 1967 (“ADEA”), 29 U.S.C. § 623(a)(1)] provides, inter alia, that “[i]t shall be unlawful for an employer . . . to fail or to refuse to hire or discharge any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” (Id.). Moreover, Title VII of the 1964 Civil Rights Act [28 U.S.C., §2000e-2], prohibits discrimination on the basis of an individual’s race, color, religion, sex, or national origin. Lastly, the [New Jersey Law Against Discrimination (“LAD”)] makes it illegal [for] an employer, because of the race, creed, color, age . . . disability . . . of any individual to refuse to hire or employ or to bar or to discharge or require to retire . . . from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of such appointment” (Id. at 5).
When a plaintiff does not provide direct evidence of discrimination, courts apply a three-step, burden-shifting standard set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this framework, a plaintiff must establish a prima facie case. If a plaintiff does so, there is a rebuttable presumption of unlawful discrimination. However, the defendant may rebut such a presumption by producing evidence of a legitimate-non-discriminatory reason for its decision. The plaintiff must then prove, by a preponderance of the evidence, that the employer’s articulated reason was not the real reason for the employment action, but rather was a mere pretext for discrimination (Id.).
Prima Facie Case
Westfield contended that Marino’s claims should be dismissed as he could not make out a prima facie claim of age or gender discrimination under the ADEA, Title VII, or the LAD because “he was not qualified for the position of coach of the girls’ varsity basketball team” (Id.). To establish such an age discrimination claim a plaintiff must show that he/she: (i) was a member of a protected class; (ii) was qualified for the position at issue; (iii) suffered an adverse employment action; and (iv) was replaced by a sufficiently younger person, thus raising an inference of age discrimination (Id.). A prima facie claim for gender discrimination is the same except that the fourth element must pertain to an individual’s gender rather than age (Id.).
In claiming that Marino was unqualified, Westfield largely relied on two performance evaluations from 2012-2013 and 2012-2014 which alone did not suggest that he was unqualified (Id.). Of the 25 areas of review, Marino received mostly “proficient or “excellent,” while receiving a mere four “areas for improvement” notations in the 2013-2013 school year and five “areas for improvement” notations in the 2013-2014 respectively (Id.).
Westfield also argued that Marino was terminated because of complaints from parents but offered no direct evidence, merely the Superintendent’s statement that “there had been a number of parental complaints over several seasons” (Id. at 6). Consequently, the Court found when one considers the Superintendent’s statement about parental complaints and compares that to his positive performance evaluations, there is a genuine issue of material fact as to whether Marino was qualified (Id.). Moreover, when a plaintiff alleges a reverse discrimination claim, it has a modified burden under the first prong of the McDonnell- Douglas test to show “background circumstances supporting the suspicion that [the] defendant is the unusual employer who discriminates against the majority” (Id.).
Marino coached the girl’s high school basketball team for approximately fourteen years and coached in the district over twenty-five years. Furthermore, his last two seasons were deemed successful as illustrated by Marino’s performance evaluations. In contrast, his replacement had little coaching experience (Id.). While she had been “around and involved in athletics for her entire professional career,” she had only coached girls’ basketball for merely one year, and that as a volunteer assistant coach for Marino during the 2013-2014 season (Id.). With such a sizeable disparity in coaching experience between Marino and his replacement, the Court found a reasonable juror could conclude that Marino was more qualified for the position, and thus it found genuine issues of material fact remained as to whether he established a prime facie reverse gender discrimination claim or age discrimination claim under Title VII, the ADEA, or LAD (Id.).
Westfield’s Non-Discriminatory Reason for the Adverse Employment Decision.
The Court next turned to the McDonnell-Douglas second step where an employer can satisfy its burden by “introducing evidence, which, if taken as true, would permit the conclusion that there was a non-discriminatory reason for the unfavorable employment decision” (Id.). Westfield maintained that the Superintendent did not recommend Marino’s reappointment because of parental complaints over several seasons that included, inter alia, lack of player development and focusing only on his top performing players for skill development (Id.). The Court found this non-discriminatory motive sufficiently satisfied the low threshold requirement of the second step of McDonnell-Doulas (Id. at 7).
Proffered Reason is Pretextual
Turning to the final step of the McDonnell-Douglas framework, a plaintiff may defeat summary judgement by “pointing ‘to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer’s articulated reason; or (2) believe that an invidious discriminatory reason was more likely than not a motivating determinative cause of the employer’s action” (Id.). Marino alleged that after Athletic-Director Mamary’s hiring, Mamary told him that “she wanted to start replacing the older coaches with younger coaches, with young blood” (Id.). With this evidence, the Court found that both prongs of the third step of McDougall-Douglas framework were satisfied with respect to Marino’s age discrimination claims under the LAD and ADEA, and therefore denied Westfield’s MSJ (Id.).
As to Marino’s gender discrimination claim, the Court found his prima facie claim alone was sufficient to create a genuine dispute of material fact as to whether Westfield’s adverse employment decision was motivated by gender (Id.). As previously mentioned, after two successful seasons, Marino was replaced by a female coach with significantly less coaching experience (Id.). The Court thus found a reasonable juror could infer, “solely based on this evidence,” that Westfield actually decided not to reappoint him as the head coach because he was a man (Id.). Accordingly, the Court also denied Westfield’s MSJ with respect to Marino’s gender discrimination claim under Title VII and the LAD (Id.).
Conclusion
There is no trial date set and the parties will have to think long and hard about settling. Marino found another job and that will considerably reduce any potential damages, and Westfield may not want to take the risk of a large damage award at trial, not to mention attorney’s fees and costs going through such a trial. But for now, the case continues.
Mr. Movaghar just graduated from Southwestern University School of Law in Los Angeles where he was a member of the Biederman Institute’s Entertainment & the Arts Legal Clinic. He received his B.A. from UCLA.
Birren is the former general counsel of the Oakland Raiders and is an adjunct professor of law at Southwestern.
