Alan Schorr’s Employment Case of The Week ending April 4, 2014

Cappella v. City of Atlantic City, 2014 N.J. Super. Unpub. LEXIS 719 (App. Div. April 1, 2014)

The Appellate Division reinstated a CEPA case this week that never should have been dismissed in the first place. Good news for the plaintiff, Dominic F. Cappella, Sr. But, while reversing the CEPA dismissal, the Appellate Division upheld the dismissal of Mr. Cappella’s race discrimination on the basis that this was a reverse discrimination case and Cappella had not demonstrated that Atlantic City was the “unusual” employer which discriminates against the majority. The Appellate panel’s logic and reasoning are so outlandish and unsupportable as to make me wonder if this decision, issued on April 1, was just a bad joke. But unfortunately, it was just another in a line of bad decisions on so-called “reverse discrimination” cases. Permit me to rant.

Mr. Cappella suffered a long and tortured history of discriminatory and retaliatory actions in his public employment with Atlantic City. I am not going to spend space recounting all of the adverse actions taken against Mr. Cappella, and the only problem I have with the reversal of the CEPA dismissal is how an intellectually honest judge could have dismissed the claims in the first place. Most troubling for me is the “reverse discrimination” dismissal. In essence, Mr. Cappella is Caucasian, although referred to throughout the opinion as “white”, as opposed to the panel’s reference to those not “white” as “African-American”.

For purposes of race discrimination, African-American is an inappropriate term, because it refers to heritage and ancestry, and not to race. Black employees from Haiti and Great Britain, for example, are not “African Americans” They never refer to Mr. Cappella as an “Italian-American”, despite having a typically Italian surname. The inability of Courts to understand the difference between race and ancestry is a chronic problem. “Hispanic” is not a race – it is a culture. Having a race discrimination case in which “whites, blacks, and Hispanics” are listed as three racial groups completely confuses issues and leads to bad opinions like the one in this case.

Employment discrimination occurs under New Jersey law when an employee suffers an adverse action because that employee belongs to a protected class. N.J.S.A.10:5-12. Our law does not single out races or genders or nationality that are subject to the protection of the law. Our statute is clear that it is unlawful to discriminate against a person because of their race. But there is a line of cases, followed by this panel, that does not agree. This line of cases holds that if the employee is a member of the “majority”, the standard for proving discrimination is much higher, requiring the employee to “demonstrate that the employer is the unusual employer who discriminates against the majority.” See Erickson v. Marsh & McLennan Co., 117 N.J. 539, 550 (1990). It is my reasoned opinion that Erickson flies in the face of logic and the intent of the Law Against Discrimination. It is outdated, impossible to apply, and the term “reverse discrimination” no longer has a place in discrimination jurisprudence. This case is a perfect example.

In this case, there was a long pattern of discriminatory actions being taken against Mr. Cappella by those in charge, the vast majority of whom were not “white”. The panel ruled that “in reverse employment discrimination cases, the plaintiff bears a heavy burden of showing that the employer had some reason or inclination to discriminate against him on account of his majority status.” The problem is, how do you define majority status? According to Wikipedia, In Atlantic City, where Cappella was employed, less than 20% of the inhabitants are non-Hispanic whites, and only 26% total are “white”, including those Hispanic. More than 50% of Atlantic City’s population is African-American or Asian. So, by what criteria do we legally define Mr. Cappella as being a member of “majority white race”? Is majority only determined by viewing national censuses (where, by the way, only 49% of persons born are non-Hispanic whites)? Clearly, a more rational analysis needs to be made. There are many places where whites are not a “majority”. Take a look at the Atlantic City council, made up overwhelmingly of non-whites.

Even while recognizing that a “reverse discrimination” analysis should be made, our courts have rejected the notion of the fact that only minorities can be discriminated against. For example, although the Federal Age Discrimination in Employment Act only protects employees over the age of 40 from discrimination on the basis of older age, the New Jersey Law Against Discrimination protects persons of all ages. In Bergen Commer. Bank v. Sisler, 157 N.J. 188 (1999), the N.J. Supreme Court ruled that a 25 year old bank vice-president stated a claim under the New Jersey Law Against Discrimination because he was fired for being “too young”. Yet, the court still imposed the “reverse discrimination” requirement because somehow Mr. Sisler was part of the “majority”. The Supreme Court also overruled the Appellate Division in Cutler v. Dorn, holding that persons of the Jewish religion were entitled to less protection than persons claiming race discrimination. These cases are wrong. Discrimination is discrimination. Period.

Such nomenclature as “majority” are completely inapplicable in most, if not all, reverse discrimination cases. For example, if a man claims discrimination, it is a “reverse gender discrimination” or “reverse sexual harassment” case. The Bergen Commer. Bank case was referred to as a “reverse age” case. Since when are women and older workers a minority? They are not. The Court, in Cappella and other cases, defend the clearly erroneous monikers by defining “minority” as being in a group that has “historically been victimized by discrimination.” Erickson at 553. But, again, this definition of minority completely fails to take geography and demographics into consideration, as well as some sort of a logical temporal parameter. When you look at “historically”, do Christians merit special protection because they were once persecuted in a different era and continent? How far back do we go to determine what is historical? Are events from prior centuries relevant in determining the motives of individuals in today’s society?

The citizens of Atlantic City have an African-American U.S. President, elected by a majority of New Jerseyans, two New Jersey U.S. Senators, one African American and one Hispanic. The city council is overwhelmingly African-American. Non-Hispanic Caucasians account for less than 20% of the population. By what criteria is Mr. Cappella in the majority such that he should be denied the same protection against discrimination as everyone else?

Finally, the panel stated that one reason for ruling against reverse discrimination is because one of the mayors was also white. In a footnote the panel acknowledges that they “do not suggest that a white male cannot discriminate against another white male”, and then they affirmed summary judgment because they do not believe that a white male would discriminate against another white male.

It is my experience from twenty years of representing employees in discrimination suits that unlawful bias and discrimination knows no bounds. Men discriminate against men, Christians discriminate against Christians, older managers discriminate against older employees. The analysis of a discrimination case cannot fall upon, whether in some other place or some other time in history, a particular group found themselves in the downtrodden minority. The determination must be made according to the particular circumstances of the case. No group should have a higher or more difficult standard imposed upon them. If someone is discriminated against because of age, race, gender, or any of the other protected classes, then the case should be analyzed based only upon the circumstance in the particular case.

Unfortunately, this particular case probably will not make it to the Supreme Court because the reversal of the CEPA case makes it extremely likely that the case will be settled or tried rather than appealed. But, it is time for our Supreme Court to hold that reverse discrimination is, in and of itself, judicial discrimination, and it is time for it to become a relic of history.

Plaintiff’s attorney: Darren J. Del Sardo, Damico, Del Sardo & Montanari, L.L.C.

Defendants’ attorney: Dennis Mason, Eugene Robinson, William Marsh, Timothy Mancuso, George Tibbit, George G. Frino, Susan E. Volkert and Mark A. Bunbury, Jr., DeCoitis, Fitzpatrick & Cole, L.L.P.

Appellate Panel: Judges Parillo, Harris and Guadagno.

Trial Judge: Nelson C. Johnson, J.S.C.