The Port Authority of New York and New Jersey is asking a federal court to hold that it does not have to comply with New Jersey’s Law Against Discrimination.
It is relying on an unpublished decision by the U.S. Court of Appeals for the Third Circuit that affirmed without an opinion a ruling that the law does not apply to the bistate agency.
The judge in the case, Burke v. Port Authority, 11-cv-6853, District Judge Jose Linares, has already held that the plaintiff, Donald Burke, can proceed with his LAD claim, but the Port Authority wants him to reconsider.
Burke, the agency’s former New Jersey solicitor, served as counsel of record for all New Jersey litigation that was handled in-house and supervised large numbers of civil and workers’ compensation cases.
He alleges he was forced to take early retirement in 2010, at age 55, because of retaliation for his opposition to discrimination against older, female attorneys at the agency.
Burke alleges that when he refused a request from higher-ups in the general counsel’s office to downgrade job evaluations for two of the lowest paid women to make the pay disparity seem justified, the women, Shirley Spira and Dolores Ward, were fired instead to reduce the disparity.
Burke claims he was threatened with termination if he did not go along and instead, his job title was abolished. He remained counsel of record for many cases but lacked supervisory authority over the lawyers handling them and was deprived of the resources he needed for his own caseload.
He also allegedly drew retaliation by notifying supervisors that another Port Authority lawyer might have violated ethics rules by misleading a Hudson County judge about whether the New Jersey Tort Claims Act applies to the agency.
Burke’s complaint, filed in Hudson County Superior Court and removed to federal court in Newark last November, included constitutional, federal age discrimination, public policy and civil conspiracy claims.
Also named as defendants were three high-ranking Port Authority attorneys: General Counsel Darrell Bookbinder, First Deputy Counsel Christopher Hartwyk and Deputy Counsel James Begley.
The defendants, represented by Rosemary Alito of K&L Gates in Newark, have not yet filed an answer, but on Aug. 13, Linares denied most of their motion to dismiss.
Linares threw out only claims for civil conspiracy and for violation of Burke’s rights under the New Jersey and New York constitutions, leaving the rest of the suit intact.
On the LAD claim, he rejected the Port Authority’s view that the statute does not apply to bistate agencies, saying the Third Circuit had not yet addressed the issue while lower courts and New Jersey’s highest court had reached conflicting conclusions.
Although the LAD does not explicitly refer to the Port Authority, Linares inferred that it applied because its purpose is to prevent discrimination.
“Accordingly, absent some specific, clear indication intending to exclude a specific employer such as Defendant herein, it follows that the legislature did not intend to exclude any particular employer,” wrote Linares.
He also based his decision on a 1951 amendment to the 1921 compact between New York and New Jersey that established the Port Authority.
The amendment consented to “suits, actions, or proceedings of any form or nature at law in equity or otherwise” against the agency and also to “liability on the part of the Port Authority in such suits, actions or proceedings for tortious acts committed by it and its agents to the same extent as though it were a private corporation.”
Thus, “even if the New Jersey legislature did not originally intend to apply the NJLAD to the Port Authority, the plain language of its own contractual amendment consents to application of same,” stated Linares.
Alito wrote to U.S. Magistrate Judge Michael Hammer asking permission to file a motion to reconsider on account of Linares’ “inadvertent oversight” of the Third Circuit decision in King v. Port Authority, 909 F. Supp. 938 (D.N.J. 1995), aff’d, 106 F.3d 385 (3d Cir. 1996).
When Hammer did not respond, Alito filed the motion on Aug. 27.
The Third Circuit decision she relies on consists of one word, “Affirmed.”
It upheld a ruling by U.S. District Judge Nicholas Politan, who found the agency’s waiver of immunity had to be strictly construed and relied on two New Jersey Supreme Court opinions concerning whether New Jersey law applied to the Delaware River Port Authority, also a bistate agency.
Under those cases, the LAD would apply only if New York had concurrently adopted the same legislation or if both states had similar legislation purporting to apply to the Port Authority. Since neither of those conditions was satisfied, Politan tossed out the LAD claim in King.
Burke’s lawyer, Sarah Fern Meil, has not yet responded to the reconsideration motion. But in a letter urging Hammer not to allow it, she argued King was not controlling because there was no opinion.
Meil, a Milford solo, also contended that, unlike Linares, Politan and other district judges in cases cited by the Port Authority failed to consider the 1951 amendment.
Meil says the court has already decided the issue, but even if Linares changes his mind, the case will go forward because she plans to add federal discrimination claims now that the Equal Employment Opportunity Commission has closed its file on Burke’s complaint.
Alito did not respond by press time.
Roughly 60 percent of the Port Authority’s nearly 6,800 employees work in New Jersey.
A federal age-discrimination suit brought on behalf of Spira and Ward, EEOC v. Port Authority, 10-cv-7462, is pending in the Southern District of New York.