Alan Schorrs Employment Case of The Week ending April 12, 2013
Savoie v. The Lawrenceville School, 2013 WL 1492859 (App. Div., April 12, 2013)
The long-overdue decision in Savoie v. The Lawrenceville School was gratefully received by my client, Ronald Savoie (pronounced sav-WAH), and I. This incredibly hard-fought lawsuit is almost ten years old, having been filed in June 2003. The appeal was filed in October 2010. There was nothing extraordinary about this appeal, and it is unknown why, and frankly unacceptable, that a party should have to endure two and a half years to have our court adjudicate an appeal. Ultimately, the good news for my client and I is that the Appellate Division reversed the grant of summary judgment and we are now headed back to the trial court. In the meantime, this case has articulated some very important and novel points of law that merit discussion here.
Despite the very long time taken to issue this decision, the Appellate Division did not do a good job accurately stating the facts. The opinion is replete with factual inaccuracies and mistakes. Unfortunately, I feel restrained in making factual corrections because the Court has impounded the record in order to protect the identities of certain non-parties. Therefore, I will stick close to the record, as I believe that some of the factual errors may have been intentional by the Court for the very purpose of being able to publicly release the opinion while keeping identities of non-parties protected.
Ronald Savoie was a highly respected, decorated, and distinguished faculty member at the prestigious Lawrenceville School for 21 years. He was also a homosexual and lived in a private home on the campus of the school with his domestic partner. He was terminated from his position days after it was reported to the administrator that he and his domestic partner had sexual apparatuses in the basement of their home. As the Appellate Division recounts, a buildings and grounds person who entered Savoies basement to shut off the water reported to his new supervisor about a year after the event that:
there were shackles hanging from the center of the room around some sort of table that had newspaper directly under it and there were five work stations set up along a tripod, video equipment, a TV, a bed with mirrors, ... a caf矴able with some chairs, very dark or black draperies surrounding the room and the ceiling painted black as well as some lighting that might have suggested theater lighting[.]
From this report, the supervisor assumed that there were computer work stations. He was wrong. The Building and grounds worker meant that there were different areas set up like there might be in a gym. The supervisor then reported to his supervisor that there were computer work stations set up and a video camera. That supervisor then further embellished that there were numerous cameras, and then upper management further embellished until everyone believed that the plaintiff was doing all sorts of public activities from his basement, such as filming videos and sending them over the Internet. Mr. Savoie has, at all times, denied that there was ever any video camera or computer equipment in the basement, and has maintained that the basement was an area used for sexual activities with his then domestic partner, now civil union partner.
Ultimately, without ever speaking to Mr. Savoie or inspecting his basement, the headmaster prepared a resignation and called Mr. Savoie in for a meeting. The account of the final meeting differs greatly, especially in the most important factors. The School insists that Mr. Savoie admitted capturing images of sex in the basement and sending them over the Internet, while Mr. Savoie denies ever making any such admission. It is undisputed that Mr. Savoie was given the ultimatum to resign or be fired. Mr. Savoie signed the resignation but tried to rescind it the following day. The administration refused to recognize the rescission.
Mr. Savoie promptly filed suit. There were three counts: violation of the New Jersey Law Against Discrimination for wrongful termination on the basis of sexual orientation; violation of the Law Against Discrimination for discriminatory application of the Schools disciplinary policy; and a Pierce common law claim for wrongful termination in violation of public policy based upon Savoies sexual activities. The litigation was highly contentious with many motions and interlocutory appeals. There were at least 8 different judges assigned at one time or another, including one judge that agreed to step aside after I made a recusal motion because the Judge had published an article in the New Jersey Law Journal which included homophobic and discriminatory jokes.
At the end of discovery, the Defendants filed for summary judgment, which unbelievably was granted. The Trial Court erroneously held that there was no evidence that the headmaster did not have a reasonable non-discriminatory belief that Savoie was sending images of sex over the Internet, which, in the trial judges analysis, was enough to justify granting summary judgment. The Trial Court also ruled that, although many other faculty members had violated the Schools conduct policy, none of the infractions were close enough to Mr. Savoies situation to be considered. This ruling was made despite the fact that a heterosexual faculty member had taken a video of himself masturbating and sent a copy off-campus. Finally, the Court threw out the Pierce claim because the Court concluded that the headmaster harbored no discriminatory animus and therefore could not have terminated the plaintiff due to his sexual activity.
The Appellate Division reversed on all Counts and remanded the entire case for trial. In doing so, there were several important rulings which are of first impression. First, the Court, in upholding the Pierce claim, recognized that the right to engage in private sexual behavior is public policy. Therefore, employers may not enter an employees bedroom and terminate based upon sexual activity. Second, this is the first case I am aware of where a Pierce claim for termination on the basis of sexual practices was permitted to be tried alongside a LAD claim for sexual orientation discrimination. Usually, plaintiffs are required to decide at the time of summary judgment whether the plaintiff is pursuing a LAD or Pierce claim, but not both. Here, the causes of action are pleaded differently enough for them both to stand alone. Finally, the Court confirmed that the spousal privilege extends to homosexuals in a civil union.
There were many discovery issues raised on appeal, but they were not addressed in detail by the Appellate Court. For the same reasons as set forth above, I am not going to go beyond the opinion of the Court except to say that the issues were complex and I am disappointed that they were not addressed.
This case is a significant victory for employment plaintiffs. Not just because of its importance in the realm of gender orientation and sexual freedom law, but also because of the support this case gives for summary judgment motions where the motion judge fails to give proper and fair weight to the plaintiffs arguments. This case may not be approved for publication due to the privacy issues and the problems that caused, but this case will nevertheless be an important one to cite in similar cases.
I would also like to acknowledge the excellent advocacy of Bennet D. Zurofsky and Leslie A. Farber, who entered the appeal as amicus on behalf of NELA-NJ (National Employment Lawyers Association - New Jersey). NELA-NJ is the most important organization in this State for the protection of employees rights, and their support was invaluable and greatly appreciated.
Plaintiff/Appellants counsel: Alan H. Schorr, Alan H. Schorr & Associates, P.C.
Defendants/Respondents counsel: Thomas P. Weidner, Craig D. Gottilla, Windels, Marx, Lane & Mittendorf, L.L.P.
Amicus NELA-NJ - Bennet D. Zurofsky, Leslie A. Farber.
Trial Judge - Thomas W. Sumners, Jr.
Appellate Judges: Fisher, Baxter and Nugent.