Judith I. Dorfman v. Pine Hill Board of Education

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-4012
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JUDITH I. DORFMAN,
Appellant
v.
PINE HILL BOARD OF EDUCATION; KENNETH KOCZUR, Superintendent;
CYNTHIA GUARRACINO, Principal
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 06-cv-02988)
District Judge: Honorable Robert B. Kugler
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 27, 2009
Before: BARRY, SMITH and GARTH, Circuit Judges
(Opinion filed September 30, 2009 )
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OPINION
___________
PER CURIAM
Judith Dorfman appeals from the district court’s grant of summary judgment in
favor of appellees in her employment discrimination action. For the following reasons,
we will affirm the district court’s judgment.

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At various points in the record, Guarracino is referred to as “Cynthia Reid;” we will1
refer to her as Guarracino.
2
I. Background
The Pine Hill Board of Education (“Pine Hill”) hired Dorfman as a music teacher
at John H. Glenn School in New Jersey starting in 2001 and her contract was renewed for
each of the next two years. At the time of her hiring, Dorfman was fifty-six years old and
her principal and performance evaluator was Mark Durand. Durand retired at the end of
the 2002-2003 school year. At the end of the 2003-04 school year, upon the
recommendation of her new principal, Cynthia Guarracino, and the superintendent Dr.
Kenneth Koczur, Dorfman’s contract was not renewed for a third year and she did not
receive tenure. When Guarracino called Dorfman into the principal’s office to discuss1
the non-renewal, Koczur allegedly told her that there was a problem with her “fit” at the
school. (Supp. App. at 60.) Pine Hill replaced Dorfman with a teacher who is eleven
years younger.
On June 30, 2006, Dorfman filed a law suit alleging age-discrimination in
violation of the New Jersey Law Against Discrimination (“NJLAD”), N.J. Stat. Ann.
§ 10:5-12(a). Dorfman alleged that Pine Hill did not renew her contract because of her
age in violation of the NJLAD, and she alleged that Koczur and Guarracino aided and
abetted this violation. She also alleged that she was subject to harassment because of her
age. Appellees moved for summary judgment, arguing that Dorfman was not offered

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renewal because of her negative performance evaluations. The district court granted the
motion and Dorfman filed a timely notice of appeal.
II. Jurisdiction and Standard of Review
The district court had jurisdiction to entertain this matter under 28 U.S.C. § 1332.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the
district court’s grant of summary judgment. Alaska Elec. Pension Fund v. Pharmacia
Corp., 554 F.3d 342, 346 (3d Cir. 2009). On review, we apply the same standard as the
district court. United States ex rel. Kosenske v. Carlisle HMA, Inc., 554 F.3d 88, 95 (3d
Cir. 2009). Thus the district court properly granted summary judgment if “viewing the
record in the light most favorable to the non-moving party and drawing all inferences in
that party’s favor, there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.” Id. (citations omitted).
III. Analysis
A. Non-Renewal of Contract
Dorfman argues that appellees violated the NJLAD because they did not renew her
contract based on impermissible motives, namely her age. The NJLAD applies a three-
step burden shifting test which initially requires the employee to establish a prima facie
case. See Zive v. Stanley Roberts, Inc., 867 A.2d 1133, 1139 (N.J. 2005). After the
plaintiff satisfies her burden, the employer must “articulate some legitimate, non-
discriminatory reason for the employee’s” firing. Erickson v. Marsh & McLennan Co.,

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569 A.2d 793, 798 (N.J. 1990) (citation omitted). In the final step, the employee must
demonstrate that the employer’s reason was not the true reason for the employment
decision, but was a pretext for discrimination. Id. at 799.
Like the district court, we will assume that Dorfman established a prima facie case
inasmuch as she is a member of a protected class, Pine Hill did not renew her contract,
and it replaced her with a similarly qualified person. See Gerety v. Atl. City Hilton
Casino Resort, 877 A.2d 1233, 1237 (N.J. 2005) (citation omitted) (listing requirements
for a prima facie case of discrimination). The district court held that appellees met their
burden at the second step by pointing to Dorfman’s negative performance evaluations as a
legitimate non-discriminatory reason for not renewing her contract. Specifically, the
evaluations noted that Dorfman needed to improve her classroom management skills.
Dorfman asserts that the district court’s finding at the second step is erroneous
because the defendants failed to produce written evaluation policies and procedures as
required by N.J. Admin. Code § 6A:32-4.5. Dorfman, however, did not seek to compel
the production of any written policies and procedures during discovery and therefore
cannot now blame appellees for failing to produce them. In any event, Dorfman’s
argument that a genuine issue of material fact exists as to whether appellees’ practices
and policies comported with the requirements of New Jersey’s administrative code is
meritless. (Appellant’s Br. at 2) (citing Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035,
1040 (7th Cir. 1993)). In Sarsha, the employer fired the employee for violating a policy

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prohibiting managers from dating subordinates. Sarsha, 3 F.3d at 1039. The Court held
that there was a genuine issue of material fact concerning whether an official dating
policy existed. Id. at 1040. Here, appellees did not renew Dorfman’s contract because of
her deficiency in classroom management skills as reflected in her performance
evaluations and not for violation of a school policy. Therefore, this argument must fail.
Next, Dorfman contends that a genuine issue of material fact exists as to whether
appellees’ explanation at the second step was a pretext for age-based animus. An
employee may show pretext in two ways: 1) by discrediting the employer’s proffered
reasons, either circumstantially or directly, or 2) by producing evidence, either
circumstantial or direct, showing that discrimination was more likely than not the
motivating or determinative cause of the adverse employment action. See Fuentes v.
Perskie, 32 F.3d 759, 764 (3d Cir. 1994); see DeWees v. RCN Corp., 883 A.2d 387, 396-
97 (N.J. Super. Ct. App. Div. 2005) (noting New Jersey courts’ adoption of the standard
in Fuentes). We agree with the district court that Dorfman has failed on both fronts.
First, Dorfman points to evaluations that Durand performed which praised her
classroom management skills. Even those earlier evaluations, however, note that she
needed to secure the attention of all the students before beginning an activity and needed
to improve her classroom disciplinary procedures. (Supp. App. at 234, 239.) Dorfman
also argues that Koczur’s statement that she was not a good “fit” suggests an inference of
age-based discrimination. (Appellant’s Br. at 4-5) (citing Greene v. Safeway Stores, Inc.,

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98 F.3d 554, 561 (10th Cir. 1996)). In Greene, the supervisor’s statement that an older
employee did not “fit in with the new culture” was made against the backdrop of eight
top-level executives being replaced by younger persons. Greene, 98 F.3d at 560-61.
Here, Dorfman has not presented background evidence suggesting a pattern of contract
non-renewals based on age. Indeed, as the district court noted, of the six teachers whose
contracts were non-renewed while Koczur was Superintendent at Pine Hill, three were
replaced by older teachers and two were replaced by teachers less than two years younger.
Cf. Greenberg v. Camden County Vocational & Technical Schs., 708 A.2d 460, 469 (N.J.
Super. Ct. App. Div. 1998) (plaintiff established age-based pretext, in part, based on
evidence that all female teachers over the age of forty-five were terminated while all
younger teachers similarly situated were retained.) Therefore, Dorfman has not shown
that by using the word “fit” Koczur was suggesting any age-based animus.
Other circumstantial evidence Dorfman cites also does not establish that appellees’
motives were pretextual. In her deposition, Dorfman recounted an incident in which
Guarracino asked the faculty to bring in pictures of themselves for placement on the
school bulletin board. Dorfman showed Guarracino several photos, some of them taken
when Dorfman was younger. Guarracino then allegedly commented that several of the
older teachers were bringing in photos of themselves when they were “younger and more
glamorous.” (Appellant’s Br. at 7.) In light of the negative performance evaluations,
however, this incident alone could not lead a reasonable jury to believe that age was more

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likely than not a motivating or determinative cause of Pine Hill’s decision not to renew
Dorfman’s contract. Fuentes, 32 F.3d at 765 (“non-moving plaintiff must demonstrate
such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons . . . [to] infer ‘that the employer did not act for
[the asserted] non-discriminatory reasons.’”)
Dorfman further argues that her replacement, Rosemary McDevitt, was not as
qualified as she was, and, therefore, Pine Hill’s decision to hire her presents strong
circumstantial evidence of discrimination. Though McDevitt is slightly less experienced
and does not possess credits towards a master’s degree, as Dorfman does, her resume
reflects that she is qualified for a position of music teacher. (Supp. App. at 281.) We
agree with appellees that hiring a qualified candidate with less experience in light of
Dorfman’s job performance deficiencies does not constitute evidence of discrimination.
Dorfman urges us to consider the “overall scenario” of the incidents. (Appellant’s
Reply Br. at 1) (citing Bray v. Marriott Hotels, 110 F.3d 986, 991 (3d Cir. 1997)). Even
considering the totality of circumstances, however, Dorfman has failed to show that a
reasonable jury could find that age discrimination was a determinative factor in appellees’
decision not to renew her contract. Fuentes, 32 F.3d at 764.
B. Harassment
Dorfman claims that appellees’ conduct created a hostile work environment in
violation of the NJLAD. In order to establish harassment, an employee must show that

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the employer’s conduct: 1) would not have occurred but for the employee’s protected
characteristic; and the conduct was 2) severe or pervasive enough to make a 3) reasonable
person believe that 4) the conditions of employment are altered and the working
environment is hostile or abusive. Lehmann v. Toys R Us, Inc., 626 A.2d 445, 453 (N.J.
1993). In support of this claim, Dorfman points to Guarracino’s comments about the
photos and a statement that she (Guarracino) should get combat pay for working with her
secretary who was 62 years old. Dorfman also cites other incidents, namely Guarracino’s
failure to compliment her students over the public address system for their performance at
a senior citizen’s luncheon, her failure to advertise the spring concert and subsequent
audio-visual difficulties at the same concert. Further, Dorfman points to the involuntary
transfer of two teachers to “another assignment.” (Appellant’s Br. at 12.) Except for
possibly the comments about the photographs, there is no evidence that any of these
incidents were a result of age-based animus on the part of appellees. Even if the incidents
were a result of age-based animus, no reasonable jury could find that Dorfman’s working
environment was hostile or abusive. Therefore, the district court properly granted
summary judgment for the appellees on this claim.
C. Mixed-Motive
Finally, Dorfman argues that district court failed to analyze her claims under the
“mixed motive theory.” (Appellant’s Br. at 12.) Under that theory, when an employee
produces evidence that an employer placed substantial reliance on a proscribed

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discriminatory factor in making the adverse employment decision, the burden of
persuasion shifts to the employer to prove that even if it had not considered the proscribed
factor, the employment action would have occurred. McDevitt v. Bill Good Builders,
Inc., 816 A.2d 164, 168 (N.J. 2003). The district court did not err in this regard, however,
because Dorfman did not produce any evidence that appellees placed substantial reliance
on her age in deciding not to renew her contract.
IV. Conclusion
For the foregoing reasons, we will affirm the judgment of the district court.
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