                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1294-16T4

VICTORIA CRISITELLO,

        Plaintiff-Appellant,

v.

ST. THERESA SCHOOL,

     Defendant-Respondent.
____________________________

              Argued December 14, 2017 – Decided July 24, 2018

              Before   Judges       Simonelli,      Rothstadt      and
              Gooden Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Docket No. L-
              3642-14.

              Thomas A. McKinney argued the cause for
              appellant  (Castronovo   &   McKinney,  LLC,
              attorneys; Thomas A. McKinney, of counsel
              and on the briefs; Megan Frese Porio, on the
              briefs).

              Christopher H. Westrick argued the cause for
              respondent (Carella, Byrne, Cecchi, Olstein,
              Brody & Agnello, PC, attorneys; Christopher
              H. Westrick, of counsel and on the brief;
              John V. Kelly, III, on the brief).

PER CURIAM
      Plaintiff      Victoria      Crisitello       is   an     elementary      school

teacher who was previously employed by defendant St. Theresa

School, a Roman Catholic parochial school.                    Defendant terminated

plaintiff's employment after she disclosed that she was pregnant

and   defendant's         school    principal       determined       plaintiff      was

unmarried.          According      to   the       principal,     defendant       fired

plaintiff     for    engaging      in   premarital       sex,    a    violation       of

defendant's ethics code and policies.                    After her termination,

plaintiff filed suit against defendant under the New Jersey Law

Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.

      Plaintiff now appeals from the Law Division's order barring

certain     discovery,      denying     reconsideration         of   the     discovery

order, granting defendant summary judgment and dismissing her

complaint.     On appeal, she contends that, contrary to the trial

court's decision, her LAD claim was not barred by the First

Amendment    or     the   LAD's    "religious      exemption[,]"       and    she   was

entitled to discovery of "similarly situated employees."

      We have reviewed the record in light of the applicable

principles of law.          For the reasons that follow, we reverse each

of the orders under appeal.

      The facts derived from the summary judgment record, viewed

"in   the   light    most    favorable       to   [plaintiff,]       the   non-moving

party[,]" Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016)

                                         2                                    A-1294-16T4
(citing R. 4:46-2(c)), are summarized as follows.                         Defendant is

a Roman Catholic elementary school, owned and operated by the

St. Theresa Roman Catholic Church (Church), which is part of the

Archdiocese of Newark (Archdiocese).                     Defendant was established

by   the    Church    to    operate    as      a   Roman      Catholic    institution,

committed to providing an education in a religious environment.

       As   part    of   defendant's        effort       to   maintain    a     religious

environment, it adopted the religious policies on professional

and ministerial conduct espoused by the Archdiocese, including a

code   of   ethics.        That    code     states:       "Church   personnel         shall

exhibit     the    highest     Christian       ethical        standard    and    personal

integrity," and "shall conduct themselves in a manner that is

consistent with the discipline, norms and the teachings of the

Catholic Church."          The policies further preclude immoral conduct

by employees, which is defined as "[c]onduct that is contrary to

the discipline and teachings of the Catholic Church[,] and/or

which may result in scandal . . . or harm to the ministry of the

Catholic Church."           They apply to clergy members and the "lay

faithful,"    which      are   defined      as     all    "paid   personnel      whether

employed      in     areas        of      ministry         or     other       kinds      of

services . . . ."          Defendant's faculty handbook also contains

numerous provisions aligning with the Church's tenets, including

a section labeled "Christian Witness[,]" which required teachers

                                           3                                     A-1294-16T4
to practice a "value-centered approach to living and learning in

their private and professional lives."

       None    of       the   policies   or    provisions       of    the   handbook

expressly     identified       premarital     sex   as    a   prohibited    conduct.

According to the school's principal, Sister Theresa Lee, there

was no specific statement in any document that "would inform

someone that if they became pregnant while being unmarried that

they   would       be   violating   [any]     policy."1       There   was   also    no


1
    The only specifically identified prohibited behavior was
contained in the Church's code of ethics, which included a
chapter entitled "Prevention of Immoral Conduct: Guidelines for
Ethical Behavior."   Under that chapter, in a section entitled
"Standards for the Archdiocese as to Prevention of Immoral
Conduct," specific prohibited conduct was defined as:

              a.    Immoral conduct.

              b.    Procurement or participation in the
                    procurement of abortion, or committing
                    homicide or euthanasia.

              c.    Possession or distribution of
                    pornographic material.

              d.    Adultery, flagrant promiscuity or
                    illicit co-habitation.

              e.    Abuse of alcohol, drugs, or gambling.

              f.    Theft, fraud, or any other form of
                    misappropriation or misuse of Church
                    funds or property.

              g.    Sexual exploitation or abuse.

                                                                        (continued)

                                         4                                  A-1294-16T4
statement in the documents that a violation of any provision

would result in immediate termination from employment.

      In September 2011, when defendant hired plaintiff as a lay

teacher    for    toddlers,   plaintiff       signed       an    acknowledgement            of

receipt    and    understanding    of       defendant's         polices       and     ethics

code, and a similar acknowledgement for the faculty employment

handbook.         She   executed   similar       documents             a     year     later.

Plaintiff    was    already    familiar       with   the        Church's       teachings,

including its prohibition against premarital sex.

      In   mid-January     2014,   plaintiff         and    Lee        met    to    discuss

plaintiff taking on additional responsibilities at the school.

During     that    conversation,   plaintiff         told        Lee       that     she   was

pregnant and, if she were given additional work, she would like

to be paid more than her current salary.                   Lee informed plaintiff

that there would be no salary increase.                         She did not mention

anything about plaintiff being pregnant or unmarried.

      On January 29, 2014, after consulting with other clerical

and school personnel, Lee decided to fire plaintiff for engaging

in   premarital     sex.      Before    terminating         plaintiff,            defendant

(continued)
          h.      Physical assault and fighting.

             i.   Conduct which is illegal under the laws
                  of   our    country,   state   or   local
                  government.


                                        5                                           A-1294-16T4
hired a replacement.          The new employee, a woman, was married and

had children.

       At   a    meeting    attended     by    Lee,   a    priest,      who    did     not

otherwise       participate,     and    plaintiff,        Lee   told    plaintiff       to

either      resign   or    she   would    be    terminated       because       she     was

pregnant and unmarried.            Defendant's termination of plaintiff

was not based on any reason related to her job performance.

Rather,      according      to   Lee,    she     fired      plaintiff         when     she

determined        that     plaintiff     violated         the   Church's        ethical

standards.       As Lee explained:

                Plaintiff was terminated on January 29, 2014
                after I became aware that she was carrying a
                child   in    an   unmarried  state,   which
                necessarily meant that she had engaged in
                sex outside of marriage.     Sex outside of
                marriage is not permitted in the Catholic
                Church.    Sex outside of marriage violates
                the tenets of the Catholic church.     Thus,
                [plaintiff] violated her obligations under
                the [p]olicies, including the [c]ode of
                [e]thics. She has not exhibited the highest
                Christian ethical standards and personal
                integrity, which [were] required of her.
                Furthermore, she has not conducted herself
                in a manner that is consistent with the
                discipline, norms and teachings of the Roman
                Catholic Church.

       Lee asserted that the school "has nothing against pregnant

teachers" as long as they were "married at the time of being

with   child      . . . ."       Plaintiff      understood       that    "not        being



                                         6                                     A-1294-16T4
married     and    getting     pregnant       [violated]         the       rules      of     the

Catholic church."

       According to Lee, during her tenure as principal at the

school from August 2013 to June 2014, plaintiff was the only

employee that was fired based upon a violation of defendant's

ethics     code    or    policies.        Violations           that        would      warrant

terminating       an    employee,    according        to       Lee,        included        being

divorced.     However, Lee never made an inquiry of any employee as

to whether they were pregnant, unmarried, engaged in premarital

sex,     divorced,      or   otherwise       violated      any        of     the   Church's

doctrines.        According to Lee, she fired plaintiff only after

plaintiff told her about the pregnancy and Lee later determined

that plaintiff was not married.

       On October 8, 2014, plaintiff filed her complaint in this

action      alleging         "[d]efendant's       articulated                reason          for

terminating       [her]      employment       [was]        a    mere         pretext        for

discrimination on the basis of [p]laintiff's pregnancy" and "her

marital status" of being "unmarried."                      The following January,

defendant moved for summary judgment, which the court denied to

allow discovery "limited to similarly situated employees."2                                In a


2
   In support of its first motion for summary judgment, defendant
filed a certification from Deacon John J. McKenna who since 2001
has been the Archdiocese's Vice Chancellor and Executive
                                                      (continued)

                                         7                                         A-1294-16T4
certification filed in support of defendant's motion for summary

judgment, defendant disclosed the number of faculty members who

were married and not married.

       Plaintiff sought from defendant production of information

about    defendant's         other   pregnant         employees          and      divorced

employees dating back to 2004, as well as disclosure of any

discrimination       or   similar    complaints           made   since     2001      or   LAD

claims since 2004.           Defendant only produced information about

pregnant     teachers       who   worked       at   the    school    while        Lee     was

principal.       When       defendant      refused         to    produce       the      other

requested information, plaintiff filed a motion to compel.                                 In

response, defendant moved for a protective order, arguing that

the information was "confidential and protected by the First

Amendment, and therefore not discoverable."

       On April 22, 2016, the trial court granted in part both

parties' motions.           In its written decision, the court stated

that    it   could    not    order   discovery        about       divorced        teachers

(continued)
Director of Human Resources.    In his certification, he stated
that he "was advised of a situation at [another school in the
Archdiocese] where an unmarried male teacher [was fired when he]
asked for temporary leave of absence because his 'girlfriend'
was at the hospital giving birth."     The certification and the
accompanying exhibit was referred to by the trial court in its
decision granting defendant's second motion for summary judgment
even though it was not part of defendant's supporting documents
for that motion and it was unrelated to defendant's actions.


                                           8                                      A-1294-16T4
because     it   would     require      a     determination     that    "divorced

teacher[s] and pregnant teacher[s] are similarly situated under

the tenets of the Catholic Church[,]" which "would involve an

intrusion into the religious dogma and polity[,]" of defendant

that   is   prohibited     by    the   First    Amendment.      It     found    that

"[n]othing in the record shows that [p]laintiff was terminated

based solely upon her marital status[, and] to conclude that a

divorced     employee    and     a     pregnant    employee     are    'similarly

situated,' the [c]ourt would need to determine that [the two]

are viewed equally within the Catholic Church."                      It therefore

limited     discovery    to     information     about    only   other    pregnant

employees or those who impregnated others during the preceding

three years.

       Plaintiff moved for reconsideration of the court's April 22

order, which the court denied on May 27, 2016, after considering

the parties' oral arguments.                In its oral decision, the court

found that plaintiff's motion was proper because it raised the

issue of the court having possibly overlooked the significance

of controlling case law and arguably persuasive opinions from

other jurisdictions.          Nevertheless, after considering the case

law argued by plaintiff, the court maintained that it would be

impermissible for it "to engage in a series of inquiries that

revolved    around   the      interpretation      of    defendant's     dogma    and

                                         9                                A-1294-16T4
polity[,]" if it were to decide whether divorced teachers were

similarly          situated       to    pregnant,        unwed     teachers     such      as

plaintiff.

       The discovery eventually provided to plaintiff indicated

that while other teachers were pregnant and therefore similarly

situated to her in that respect, none of the pregnant teachers

conceived          while     unmarried      and      they        all   retained        their

employment.          There was no discovery served that related to an

unmarried pregnant teacher or any male teachers.

       After discovery concluded, defendant renewed its motion for

summary judgment, which the court granted on November 10, 2016.

In its written statement of reasons, the court set forth the

history       of    plaintiff's         hiring     and    the     termination     of    her

employment.         It described the parties' contentions in detail and

began its analysis by addressing the religious exemption in the

LAD.    The court found that the LAD prohibits discrimination in

the    work    place,       but    noted    that     it     provided     for    "a     broad

exemption          for     religious      institutions"          utilizing      religious

criteria as part of their employment criteria.                          It applied the

exemption to the analysis for LAD claims stated in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), and concluded that

plaintiff          could     not       establish     a     prima       facie    case      of

discrimination.            The court determined that plaintiff could not

                                           10                                     A-1294-16T4
satisfy the second prong of the McDonnell Douglas test because

by being pregnant and unwed, she "became unqualified to hold her

position and therefore cannot demonstrate a prima facie case."

In determining plaintiff was not qualified, the court relied on

defendant's    policies       and     its      faculty        handbook,    as     well    as

plaintiff's deposition testimony that she was aware that the

church   did    not     condone       premarital         sex.          Relying    on     the

certification    filed       by    McKenna     in      defendant's      earlier     motion

about an incident in another school, it also found plaintiff

provided no evidence of pretext.

    Turning     to    the    application          of    the    First    Amendment,       the

trial court concluded that "even in the absence of the statutory

application     of     the    LAD, . . .          the    First        Amendment     bar[s]

[p]laintiff's claims."             Citing our opinion in Gallo v. Salesian

Soc'y, Inc. 290 N.J. Super. 616, 651-52 (App. Div. 1996), it

stated   "courts      may    not    define     the      scope    of    one's     religious

beliefs, or intrude upon the teachings of a recognized religious

institution."         Quoting      from     the     Supreme      Court's    opinion       in

McKelvey v. Pierce, 173 N.J. 26, 32-33 (2002), the trial court

stated that it was not permitted to "allow intrusive discovery

[into] or define religious dogma," but could resolve a dispute

so long as it was not required "to choose between competing



                                          11                                      A-1294-16T4
interpretations         of    religious    tenets       or   to    interfere       with    a

church's autonomy rights."

      In conclusion, the court rejected plaintiff's reliance on

the fact that due to her lay status, "she does not fall under

[the] 'ministerial test[,]'"               a religious exemption to the LAD,

and   decided      it    was    inapposite.           Instead,      the    court     found

dispositive the exemption's provision that "it shall not be an

unlawful practice . . . in following the tenets of its religion

in establishing and utilizing criteria for []employment of an

employee."      This appeal followed.

      We review a court's grant of summary judgment de novo,

applying   the     same       standard    as    the    trial      court.     Conley       v.

Guerrero, 228 N.J. 339, 346 (2017).                     Summary judgment must be

granted      "if        the      pleadings,          depositions,          answers        to

interrogatories         and    admissions       on     file,      together    with    the

affidavits, if any, show that there is no genuine issue as to

any   material     fact       challenged       and    that   the    moving    party       is

entitled to a judgment or order as a matter of law."                               Templo

Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pitt., 224

N.J. 189, 199 (2016) (quoting R. 4:46-2(c)).

      Applying our de novo standard of review, at the outset, we

concur with the trial court's explanation of the court's limits

when being asked to decide purely religious issues.                             We also

                                          12                                    A-1294-16T4
acknowledge a Catholic school's right to terminate a "teacher

who has publicly engaged in conduct regarded by the school as

inconsistent with its religious principles."                 Gallo, 290 N.J.

Super. at 641 (quoting Little v. Wuerl, 929 F.2d 944, 951 (3d

Cir. 1991)).

    The    prohibition     against    court    inquiry   and    involvement,

however, does not apply to civil adjudication of purely secular

legal questions that do "not entail theological or doctrinal

evaluations[,]" even if they "involv[e] some background issues

of religious doctrine . . . ."              Elmora Hebrew Ctr., Inc. v.

Fishman, 125 N.J. 404, 414-15 (1991).           "Only when the underlying

dispute turns on doctrine or polity should courts abdicate their

duty to enforce secular rights.           Judicial deference beyond that

demarcation    would     transform    our    courts   into    rubber     stamps

invariably favoring a religious institution's decision regarding

even primarily secular disputes."           Gallo, 290 N.J. Super. at 631

(quoting   Welter   v.    Seton   Hall    Univ.,   128   N.J.   279,     293-94

(1992)).

    In the context of an LAD claim of pretext,

           when the pretext inquiry neither traverses
           questions of the validity of religious
           beliefs nor forces a court to choose between
           parties' competing religious visions, that
           inquiry does not present a significant risk
           of   entanglement  [that   exists  when]   a
           plaintiff [seeks to] challenge the validity,

                                     13                                A-1294-16T4
               existence or "plausibility" of a proffered
               religious doctrine . . . .

               [Id. at 647-48 (quoting Geary v. Visitation
               of the Blessed Virgin Mary Par. Sch., 7 F.3d
               324, 330 (3d Cir. 1993)).]

    To be clear, in this case, plaintiff does not raise any

challenge to defendant's religious doctrines or its right to

specify    a    code    of   conduct   for       its   employees    based      on   that

doctrine.       Rather, she seeks an adjudication of her claim that

she has been singled out for application of that doctrine as a

pretext for impermissible discriminatory reasons.                        If proven,

such conduct by defendant would be a violation of secular law

protecting against discrimination.

    "[T]he        State's     interest      in    abolishing       age   and     gender

discrimination is compelling, beyond cavil, and that enforcement

of that interest does not constitute a substantial burden on

religion    in    the   circumstance     of      a . . .   lay     teacher . . . ."

Id. at 643-44 (citations omitted).                As we observed in Gallo:

               Our Supreme Court has asserted that "[t]he
               elimination of discrimination in educational
               institutions   is   particularly  critical."
               "The[re] . . . [is no] more sensitive area
               than educational institutions where . . .
               youth are exposed to a multitude of ideas
               that will strongly influence their future
               development.   To permit discrimination here
               would, more than in any other area, tend to
               promote misconceptions leading to future
               patterns of discrimination."


                                       14                                      A-1294-16T4
             [Id. at 641-42 (alterations                in   original)
             (citations omitted).]

       In    a     school      discrimination       case,     "intrusiveness         of

carefully measured discovery is no reason to exempt defendants

from LAD scrutiny where the school's spiritual functions are not

in issue.         Defendants are not entitled to a blanket exemption

from   all       secular    regulations       because   of   their    status    as    a

religious institution."           Id. at 652.

       We,   therefore,        part   company       with     the     trial   court's

application of the First Amendment and the limits it identified

in determining whether plaintiff should have been precluded from

discovery as to defendant's treatment of other employees who

violated     any    of     defendant's    religious     ethical      standards,      or

whether defendant was entitled to summary judgment.                     Contrary to

the trial court's repeated statement that plaintiff sought for

the court to make determinations about defendant's "dogma and

polity[,]" neither allowing broader discovery nor considering

plaintiff's         position     on   summary       judgment       required       such

determinations, especially in light of defendant's principal's

position that other behavior or marital status – i.e., being

divorced - were the equivalent of plaintiff's alleged violation.

Under these circumstances, the only issue the trial court had to




                                         15                                  A-1294-16T4
consider     related     solely    to    defendant's            conduct      rather       than

defining or determining the propriety of its "dogma and polity."

       As the Supreme Court has observed, "[t]he Free Exercise

Clause [of the First Amendment] protects religious freedom by

'embrac[ing] two concepts, -- freedom to believe and freedom to

act.      The first is absolute but, in the nature of things, the

second cannot be.        Conduct remains subject to regulation for the

protection     of     society.'"        McKelvey,         173    N.J.     at    40     (third

alteration in original) (quoting Cantwell v. Connecticut, 310

U.S. 296, 303-04 (1940)).              "[A] discrimination claim brought by

a   lay    employee    against     a    religious         employer,       without       more,

generally does not run the risk of excessive entanglement, as

such an inquiry constitutes only the sort of 'routine regulatory

interaction      which     involves           no     inquiries        into      religious

doctrine . . . .'"           Redhead          v.    Conference          of     Seventh-Day

Adventists, 566 F. Supp. 2d 125, 133 (E.D.N.Y. 2008) (citations

omitted).

       Having determined that the First Amendment does not bar

plaintiff's claim or our involvement, we turn to our analysis of

plaintiff's      claim     under        the        LAD.         The     LAD      prohibits

discriminatory employment practices.                      Viscik v. Fowler Equip.

Co., 173 N.J. 1, 13 (2002).             "[I]t is not the purpose of the LAD

'to prevent the termination or change of the employment of any

                                         16                                          A-1294-16T4
person who in the opinion of the employer, reasonably arrived

at,     is      unable     to     perform          adequately          the     duties        of

employment . . . .'"            Jason v. Showboat Hotel & Casino, 329 N.J.

Super. 295, 302-03 (App. Div. 2000) (quoting N.J.S.A. 10:5-2.1).

Rather,       "[i]n      order        to    sustain        a     claim       of   unlawful

discrimination under [the LAD], there must be proof of an intent

to discriminate for an unlawful purpose."                              Kearny Generating

Sys., Div. of Pub. Serv. v. Roper, 184 N.J. Super. 253, 261

(App. Div. 1982); see also Jones v. Coll. of Med. & Dentistry,

155    N.J.   Super.     232,     236      (App.    Div.       1977)    ("Discrimination

involves the making of choices.                   The statute does not proscribe

all    discrimination,          but     only     that    which     is     bottomed      upon

specifically enumerated partialities and prejudices.").                                Thus,

discriminatory        motive     or    intent      "is   a     crucial       element    in   a

discrimination case . . . ."                   Goodman v. London Metals Exch.,

Inc., 86 N.J. 19, 30 (1981).                     "The establishment of the prima

facie case creates an inference of discrimination . . . ."                              Zive

v.    Stanley    Roberts,       Inc.,      182    N.J.   436,     449    (2005)    (citing

Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)).

       Discriminatory intent or any other element of an LAD claim

cannot be established by a religious institution's requiring an

employee to follow the tenets of its religion as a condition of

employment.       The LAD specifically states:

                                            17                                     A-1294-16T4
            it shall not be an unlawful employment
            practice . . . for a religious association
            or   organization   to    utilize   religious
            affiliation as a uniform qualification in
            the employment of clergy, religious teachers
            or other employees engaged in the religious
            activities    of    the     association    or
            organization, or in following the tenets of
            its religion in establishing and utilizing
            criteria     for     employment     of     an
            employee . . . .

            [N.J.S.A. 10:5-12(a) (emphasis added).]

    To    prove     employment      discrimination          under        the   LAD,    New

Jersey    courts      have     adopted       the   burden-shifting             analysis

established in McDonnell Douglas, 411 U.S. at 802.                          See Viscik,

173 N.J. at 13-14.          Under that analysis, a plaintiff must first

present sufficient evidence to establish a prima facie case of

unlawful discrimination.           Dixon v. Rutgers, 110 N.J. 432, 442

(1988).     "The evidentiary burden at the prima facie stage is

'rather     modest:    it     is   to    demonstrate        to       the    court     that

plaintiff's factual scenario is compatible with discriminatory

intent--i.e.,      that     discrimination     could    be       a   reason     for    the

employer's action.'"         Zive, 182 N.J. at 447 (citations omitted).

    Like any other LAD case, a plaintiff who is fired from a

position with a religious institution for breaching a religious

tenet is entitled to offer evidence relating to "whether unequal

treatment    has   occurred,       intentionally       or    as      a     result     of   a

policy's impact on members of a protected group, [through] two

                                        18                                      A-1294-16T4
approaches [that] have been generally accepted. . . .--disparate

treatment      and   disparate    impact--and     we    acknowledge    both    as

cognizable under the LAD."           Gerety v. Atl. City Hilton Casino

Resort, 184 N.J. 391, 398 (2005) (citing                 Peper v. Princeton

Univ.   Bd.    of    Trs.,   77   N.J.    55,   81-82   (1978)).      Disparate

treatment is defined as where "[t]he employer simply treats some

people less favorably than others because of their race, color,

religion, sex, or national origin."               Ibid. (quoting Peper, 77

N.J. at 81).

      In order to establish a claim for disparate treatment under

the LAD:

              [T]he plaintiff must demonstrate that he or
              she (1) belongs to a protected class; (2)
              applied for or held a position for which he
              or she was objectively qualified;[3] (3) was

3
    In order to satisfy the second prong, a

              plaintiff   [need  only]   produce    evidence
              showing that she was actually performing the
              job prior to the termination.      Along with
              the remaining prongs of the prima facie
              case, that evidence is sufficient to support
              the conclusion that the plaintiff's claim of
              discrimination is plausible . . . .

              [A]lthough a plaintiff's acknowledgment of
              performance deficiencies does not factor
              into the second prong of the prima facie
              case,   it   will   generally  lighten   the
              employer's burden on the second phase and
              render more difficult plaintiff's ability to
              prove pretext.
                                                         (continued)

                                     19                                A-1294-16T4
            not hired or was terminated from that
            position; and (4) the employer sought to, or
            did fill the position with a similarly-
            qualified person.

            [Id. at 399 (citing Andersen v. Exxon Co.,
            89 N.J. 483, 492 (1982)).]

      After     a   plaintiff       demonstrates      the    four    elements

establishing a prima facie case, "[t]he burden then shifts to

the employer to prove a legitimate, non-discriminatory reason

for the employment action."           Gerety, 184 N.J. at 399 (citing

Andersen, 89 N.J. at 493).          If the employer meets that burden,

the plaintiff has an opportunity to show that the employer's

purported reason is merely pretext.           Ibid.

      "Evidence of pretext sufficient to permit the employee to

reach a jury may be indirect, such as a demonstration 'that

similarly situated employees were not treated equally.'"                Jason,

329 N.J. Super. at 304 (citations omitted).                 "An inference of

discrimination may arise if similarly situated employees of a

different     [gender]   received    more   lenient   treatment     than   that

afforded plaintiff."       Ewell v. NBA Props., 94 F. Supp. 3d 612,

624   (D.N.J.   2015)    (citing    Simpson   v.   Kay   Jewelers,   Div.     of

Sterling, Inc., 142 F.3d 639, 645 (3rd Cir. 1998)).               A plaintiff

(continued)

            [Zive, 182 N.J. at 454, 456.]



                                     20                               A-1294-16T4
must present evidence sufficient to prove that he or she is

"similarly situated" to his or her comparators, and that these

employees have been treated differently or favorably by their

employer.      See Williams v. Morton, 343 F.3d 212, 221 (3d Cir.

2003).

      "An 'inference of discrimination' does not [necessarily]

arise 'anytime a single member of a non-protected group was

allegedly      treated     more    favorably       than    one     member     of    the

protected group, regardless of how many other members of the

non-protected group were treated equally or less favorably.'"

Jason, 329 N.J. Super. at 307 (citations omitted).                         There must

be   proof    that   the   individuals      being    compared       were    similarly

situated.      "[T]here is no bright-line rule for determining who

is a 'similarly situated' employee."                Id. at 305.        To determine

whether      employees     are    similarly    situated,          "courts    tend    to

consider whether the plaintiff and the comparator had similar

job responsibilities, were subject to the same standards, worked

for the same supervisors, and engaged in comparable misconduct."

Ewell, 94 F. Supp. 3d at 624 (citations omitted).                           That does

"not mean to suggest that [the listed] aspects of "similarly

situated"     status     are   exhaustive     or   of     equal    significance      in

different employment contexts.              The trial [court must] make a

sensitive appraisal in each case to determine the most relevant

                                      21                                     A-1294-16T4
criteria."        Jason, 329 N.J. Super. at 305 (first alteration in

original) (quoting Peper, 77 N.J. at 85).

      In a case involving the firing of a pregnant employee,

evidence     of       how   male    employees      were    treated    is    particularly

useful      in    determining        whether     unmarried      pregnant        women   are

treated differently.               Absent evidence that men are treated the

same way as women who are terminated for engaging in premarital

sex, a religious institution violates LAD because if "'women can

become pregnant [and] men cannot,' it punishes only women for

sexual relations because those relations are revealed through

pregnancy."        Cline v. Catholic Diocese of Toledo, 206 F.3d 651,

667   (6th        Cir.      1999)    (alteration          in   original)        (citations

omitted).         "[A]      school [cannot] use the mere observation or

knowledge        of     pregnancy      as    its     sole      method      of   detecting

violations of its premarital sex policy."4                           Ibid..       "[W]omen

[cannot] be subject to termination for something that men would

not   be,    [as]      that   is    sex     discrimination,       regardless       of   the

justification put forth for the disparity."                          Vigars v. Valley


4
   In Cline, the Sixth Circuit vacated summary judgment in favor
of a Catholic school that fired a pregnant employee after it
correctly assumed that she engaged in premarital sex, and
therefore, violated its "Affirmations for Employment" that
prohibited   employees  from   "by  word   and   example[,  not]
reflect[ing] the values of the Catholic Church."     206 F.3d at
656, 669.


                                            22                                    A-1294-16T4
Christian Ctr. of Dublin, Cal., 805 F. Supp. 802, 808 (N.D. Cal.

1992)   (denying     summary      judgment    in   favor    of   defendant      in   a

pregnancy discrimination case in which the employer relied upon

a religious exemption).

    Applying these guiding principles here, we conclude that,

contrary    to      the     trial      court's     determination,       plaintiff

established a prima facie claim under the LAD.                     See Zive, 182

N.J. at 447-48.       The evidence presented by plaintiff established

that plaintiff through her marital status and pregnancy was a

member of a protected class, a pregnant woman.                    She proved her

qualification by relying upon her job history and the fact that

defendant asked her to assume additional responsibilities right

before terminating her.           See id. at 455 (stating that "only the

plaintiff's evidence should be considered").                  It was undisputed

plaintiff    suffered       an     adverse    employment      consequence        when

defendant    fired       her,    and   the    circumstances      of   her     firing

"give[s]    rise    to    an     inference    of   unlawful      discrimination."

Young v. Hobart W. Grp., 385 N.J. Super. 448, 463 (App. Div.

2005) (quoting Williams v. Pemberton Twp. Pub Schs., 323 N.J.

Super. 490, 502 (App. Div. 1999)).

    Contrary to the trial courts finding, defendant's proffered

"legitimate,       nondiscriminatory         reason   for    [its]    actions[,]"

Zive, 182 N.J. at 449 (citing Clowes v. Terminix Int'l, Inc.,

                                       23                                   A-1294-16T4
109 N.J. 575, 596 (1988)), cannot be the basis for finding that

plaintiff failed to establish she was qualified for the position

because   it    related       to   the   policy       that   plaintiff     argues    is

discriminatory in its application, rather than plaintiff's job

performance.      See Cline, 206 F.3d at 660.                      Under plaintiff's

proofs, it was undisputed she was not fired because of poor job

performance,      and     therefore,          she     met    her    obligation      "to

demonstrate 'that [s]he was "qualified" in the sense that [s]he

was doing h[er] job well enough to rule out the possibility that

[s]he   was    fired    for    inadequate      job     performance,      absolute    or

relative.'"      Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 514-15

(4th Cir. 2006) (citations omitted).5

      Defendant's        reliance        on         plaintiff's       violation      of

defendant's policy did not render her unqualified for purposes

of   determining       whether     plaintiff        established      a   prima    facie


5
    We reject as inapposite defendant's reliance on Warch's
criticism of Cline.    See Warch, 435 F.3d at 515-17.      Cline
involved, as here, an attempt by a defendant religious school to
rely upon its policy against premarital sex to defeat the
plaintiff's argument that she established a prima facie case.
206 F.3d at 655-56.    Warch addressed its plaintiff's argument
that the employer could not rely on its view that the plaintiff
was not qualified because he could not and did not meet the
employer's job performance requirements.   435 F.3d at 514.   As
discussed here, under Zive, the use of alleged discriminatory
policies does not undermine a plaintiff's prima facie case where
plaintiff establishes there is no issue as to her job
performance.


                                         24                                  A-1294-16T4
claim.    See Geary, 7 F.3d at 331; Redhead, 440 F. Supp. 2d at

222;   Ganzy   v.   Allen   Christian   Sch.,   995   F.   Supp.   340,   359

(E.D.N.Y 1997).

       In Zive, our Supreme Court explained:

           All that is necessary is that the plaintiff
           produce   evidence   showing   that   she  was
           actually performing the job prior to the
           termination.      Along with the remaining
           prongs of the prima facie case, that
           evidence   is   sufficient   to   support  the
           conclusion that the plaintiff's claim of
           discrimination    is   plausible    enough  to
           warrant promotion to the next step of the
           McDonnell Douglas test. That is not a heavy
           burden nor was it meant to be. Indeed, the
           opposite conclusion would have the effect of
           precluding cases in which poor performance
           contributed to but was not the determinative
           factor in the termination decision.

                As   we   have   indicated,    only   the
           plaintiff's evidence should be considered.
           That   evidence   can   come   from    records
           documenting the plaintiff's longevity in the
           position at issue or from testimony from the
           plaintiff or others that she had, in fact,
           been working within the title from which she
           was terminated. Because performance markers
           like poor evaluations are more properly
           debated in the second and third stages of
           the burden-shifting test, they do not come
           into play as part of the second prong of the
           prima facie case. Thus, even if a plaintiff
           candidly acknowledges, on his [or her] own
           case, that some performance issues have
           arisen, so long as he [or she] adduces
           evidence that he [or she] has, in fact,
           performed in the position up to the time of
           termination, the slight burden of the second
           prong is satisfied.        Simple proof of
           continued employment is not enough.       That

                                   25                               A-1294-16T4
            formulation of the second prong is an apt
            analogy to the second prong of McDonnell
            Douglas; any other interpretation would
            ratchet up the second prong in a termination
            case and upend the "complex evidentiary
            edifice" built by McDonnell Douglas.

            [Zive,   182         N.J.     at    454-55      (citations
            omitted).]

       Having determined that plaintiff established a prima facie

claim under the LAD, the remaining issue on summary judgment

therefore   focuses       on   whether    defendant's    asserted        reason     for

firing plaintiff was pretextual.                 That determination requires

inquiry into material questions of fact relating to defendant's

conduct in either firing or retaining employees who are known to

have    violated    defendant's         code   of   ethics    and    whether        the

decision    has    been    applied      uniformly,    regardless         of   gender,

marital status or pregnancy.              See Redhead, 440 F. Supp. 2d at

223.

       On summary judgment, the only evidence of the policy being

violated    and    enforced       against      plaintiff      was    the      obvious

inference plaintiff engaged in premarital sex, based on Lee's

determination plaintiff was unmarried, the handbook and related

documents   that    did    not    mention      premarital    sex    as   prohibited

conduct, Lee's testimony that plaintiff's conduct was part of a

litany of behavior that would give rise to a violation, and,

plaintiff's statement that she understood premarital sex to be a

                                         26                                   A-1294-16T4
violation of Catholic tenets.                  There was no evidence, however,

of   how    male   or    not    pregnant       female   teachers    at   defendant's

school who engaged in premarital sex were detected or treated by

defendant, or how it responded to any other teacher who it knew

violated other tenets of the Catholic faith as determined by

defendant's school principal.                  Thus, there were questions of

material fact that should have prevented the award of summary

judgment to defendant.

      The    lack       of     evidence    on     summary    judgment       regarding

defendant's treatment of other teachers or employees suspected

of violating the Church's code is directly attributable to the

trial court's April 22, 2014 discovery order.                      The order barred

discovery of relevant information because of the trial court's

misapplication      of       First   Amendment        proscriptions.        For    that

reason, we conclude the trial court abused its discretion, see

Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371

(2011), and its order must be reversed so that plaintiff can

have discovery on the issue of defendant's treatment of all

"similarly     situated"         employees      who     defendant    knew   were     in

violation of its ethics code.                  For the same reason, the trial

court's denial of reconsideration was also an error.

      The order granting defendant summary judgment is reversed,

without prejudice to either party seeking the same relief after

                                          27                                 A-1294-16T4
the completion of discovery.        The orders denying reconsideration

and   limiting   plaintiff's    discovery     are   also    reversed.         The

matter   is   remanded   to   the   trial   court   for    entry   of    a   case

management order to permit discovery in accordance with this

opinion, consider any ensuing summary judgment applications and,

if necessary, trial.

      Reversed and remanded for further proceedings consistent

with our opinion.    We do not retain jurisdiction.




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