By:  Ty Hyderally, Esq., Francine Foner, Esq., and Tom Daly

From January 2014 to June 2017, Nkemdilum Okakpu (Okakpu) was employed as a full-time non-tenured elementary school teacher in Irvington, New Jersey. The Irvington School Board decided not to renew Okakpu’s contract for the 2017-2018 school year. The Board’s reasons for non-renewal included several alleged performance issues and parent complaints, as well as “placing the flag of Nigeria on the steps outside her classroom.”  Okakpu then sued the Irvington Board of Education, as well as Dr. Denise Cooper, school principal, who recommended the Board terminate Okakpu’s employment; Okakpu sued for, among other things, national origin discrimination in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50.

The trial Court dismissed all of Okakpu’s claims upon the defendants’ motion for summary judgment. Okakpu appealed to the Appellate Division. In an unpublished opinion issued on July 18, 2022, the Appellate Division reversed the lower Court’s dismissal of Okakpu’s national origin discrimination claim under the LAD.  Okakpu v. Irvington Bd. of Educ., 2022 N.J. Super. Unpub. LEXIS 1297 (App. Div. July 18, 2022).

On appeal, Okakpu argued that the trial court had erred in dismissing her LAD claim of national origin discrimination, because it applied the wrong standard to analyze her claim.  Okakpu contended that there was direct evidence of discrimination by virtue of the school’s reference to the Nigerian flag in its reasons for not renewing Okakpu’s employment contract.  Therefore, Okakpu claimed that the trial court should have used a less onerous “mixed-motive” framework found in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), rather than the burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which applies to discrimination cases based upon circumstantial evidence.

Price Waterhouse established the mixed-motive framework, enabling employees to prove discrimination when lawful reasons for an adverse employment action exist alongside discriminatory animus. Under this analysis, once the plaintiff provides direct evidence of discrimination, the defendant has the burden to show that it would have made the same decision, regardless of the alleged bias. As the Appellate Division explained, this analysis is to be used when there is direct evidence of discrimination, which,

is the kind of evidence that, without inference or presumption, definitively shows the employer’s animus towards the protected class and its reliance on such when making the adverse employment decision. * * * [b]y contrast, circumstantial evidence typically includes statements such as ‘statements by non-decisionmakers, statements by decisionmakers unrelated to the contested employment decision, and other stray remarks[.]’

Okakpu at *7-8 (citations omitted)

Where the evidence of discrimination is solely circumstantial, “New Jersey courts apply the analytical framework established in McDonnell Douglas.”  Id.  Under the McDonnell Douglas burden-shifting analysis, it is the plaintiff who has the initial burden to establish their prima facie claim of discrimination, after which the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse action. The plaintiff then must demonstrate that the employer’s stated reason was a pretext for discrimination. McDonnell Douglas, 411 U.S. at 802-804.

The Appellate Division agreed with Okakpu’s argument that the Price Waterhouse standard should be used to analyze the rare case in which direct evidence exists, and that the McDonnell Douglas analysis is properly applicable to cases based upon circumstantial evidence.   However, the Appellate Division disagreed with Okakpu’s assertion that there was direct evidence of discrimination in her case and thus that the Price Waterhouse mixed-motive framework applied. However, even under the stricter McDonnell Douglas standard, Okakpu still prevailed.

The Appellate Division affirmed the lower court’s use of the McDonnell Douglas analysis, finding that Okakpu’s evidence was purely circumstantial.  However, the Appellate Division disagreed with the trial court’s finding that Okakpu had failed to raise an issue of fact regarding pretext. Okakpu at *5*-6. Rather, the Appellate Division was satisfied that the Board’s inclusion of “hanging the flag of Nigeria outside her classroom” on Okakpu’s non-renewal form, while circumstantial, was sufficient to raise a question of fact as to whether national origin was considered as a factor in her termination. Id. at *9-10.  Therefore, the Appellate Division found that this was sufficient circumstantial evidence from which a reasonable jury could infer discriminatory animus, precluding summary judgment.  Id.

This decision reinforces that it is a rare discrimination case in which direct evidence exists and that in most employment discrimination cases, employees rely upon circumstantial evidence from which discrimination can be inferred. However, the Appellate Division has made clear that where there is sufficient circumstantial evidence of discrimination, the case must be decided by a jury.

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