A unanimous panel of the Appellate Division of the New Jersey Superior Court ruled on April 13 that Ronald Savoie, an openly-gay teacher who had been forced to resign after more than twenty years at the Lawrenceville School, is entitled to a trial on his claims that the School violated his rights under the New Jersey Law Against Discrimination and the public policy of New Jersey. The appellate court reversed a decision by the trial court to grant summary judgment in favor of the employer.
Savoie began teaching at Lawrenceville, a private boarding school, in 1982. In 1991, his domestic partner, Richard Bierman, came to live with him in his school-provided house on the Lawrenceville campus. Savoie apparently had a good relationship with the school’s Head Master, Michael Cary, who promoted him, placed him in important administrative positions, and professed gratitude to him in writing. Bierman, however, claims to have encountered discrimination on campus, including a remark by the Dean of the Faculty, Catherine Boczkowski, that she “did not approve of your lifestyle.”
Events leading to Savoie’s forced resignation stem from a 2002 water main leak, which led the school’s building and grounds director and a crew of maintenance people to enter the house during the day while Savoie and Bierman were not present, in order to turn off the water and try to determine the location of the leak. There are different accounts of what they saw, including whether computers and a video camera were in the basement, but there is agreement that they saw objects hanging from chains from the ceiling, a tripod, KY brand lotion, and “overstuffed” leather furniture. They did not report their discovery to the administration at that time. However, a year later, when a new building and grounds director decided to inventory the mechanical systems in university-owned houses prior to replacing old condensing units and water heaters, two employees stated that they were “uncomfortable” about going to Lavoie’s house because of what they had seen there the year before.
According to the new building and grounds director, Gary Skirzinski, they told him that “there were shackles hanging from the center of the room around some sort of table that had newspaper directly under it and there were five work stations set up along a tripod, video equipment, a TV, a bed with mirrors, a café table with some chairs, very dark or black draperies surround the room and the ceiling painted black as well as some lighting that might have suggested theater lighting.” They also said they saw latex gloves and diapers in an open closet and video cassettes around the TV. At least, this was the description Skirzinski related to the Dean Boczkowski, although later in depositions the employees differed as to some of the details. After all, they were trying to remember what they had seen a year earlier.
Based on what Skirzinski told her, Boczkowski became concerned that Savoie and Bierman had some kind of studio set up in their basement to make sex videos, and she arranged to meet about it with Head Master Cary. Based on the description, Cary concluded that the basement was set up for “fisting” activities, according to the court’s summary of the record, that group sex might be occurring in the basement, and that these activities were “not private.” He consulted with some members of the school’s board of trustees, who cautioned him to “be very careful,” to “avoid being overly intrusive” into Savoie’s “private life,” and that he should investigate whether students or other employees were involved in Savoie’s activities. They also cautioned him that it didn’t matter whether Savoie was gay or straight, that the school should “apply the same standard” and determine “whether the conduct went beyond the bounds of private conduct in the basement or whether it went out either onto the Internet or in a more public forum,” according to deposition testimony presented to the court in support of the School’s motion for summary judgment. Cary asserted that the trustees told him that Savoie’s conduct posed a “risk to the name and reputation of the school” and that he should be discharged if he had transmitted sexual images over the Internet. Cary did check with the school physician and counselor, who had nothing negative to say about Savoie, and asked Boczkowski to have Skirzinski confirm what the grounds workers had told him, but there is no indication oint that anybody actually looked in Savoie’s basement before Cary and Boczkowski confronted him in Cary’s office the next day.
Accounts differ about what was said in that meeting. Cary asserted, based on “notes” he made during the meeting, that Savoie admitted that “images” had been transmitted “via the internet,” while Savoie asserts he made no such admission. What is not disputed is that Cary had prepared a letter of resignation for Savoie to sign before the meeting took place, and that without further investigation, he told Savoie during the meeting that if he did not resign immediately he would be discharged. Savoie signed the letter, but attempted to withdraw his resignation the next day. Boczkowski responded negatively to this in writing, asserting that he had admitted in the meeting “that you videotaped sex acts in the basement of your housing at Lawrenceville and sent pictures of these acts over the internet.” In her letter, she demanded that Savoie preserve all the apparatus in the basement as she described it and demanded that the school have access to his computers. Subsequent forensic analysis of the computers yielded various sexual images, which the court characterized as too indistinct to identify who was participating in the activities they depicted.
Savoie’s lawsuit led to intensely contentious discovery, during which the school’s law firm sought to discover “plaintiff’s financial records, including bank statements, credit card information and income tax returns; electronic data stored on plaintiff and Bierman’s personal computer; and communications between plaintiff and Bierman. Savoie later complained to the appellate court that that the trial court had failed to honor spousal privilege, which he said should apply as he and Savoie became civil union partners under New Jersey law when that status became available in 2008. Although the appellate court found no indication that the trial court had refused to respect spousal privilege, it added a section to its decision specifically noting that civil union partners under New Jersey law are entitled to assert spousal privilege to avoid disclosing personal communications to each other.
Savoie’s own discovery requests were also extensive, bringing to light a variety of instances of misconduct, sexual and otherwise, by other faculty members who did not suffer discipline or forced resignations as a result. In one egregious instance, Dean Boczkowski had failed to report her knowledge that a faculty member had resumed an adulterous heterosexual affair after being warned that he could be terminated if he did not end the affair.
The trial judge granted summary judgment to the defendants, finding that although Savoie had alleged facts sufficient to state a “prima facie case” of discrimination, the school had adequately rebutted the case by showing that Cary, the ultimate decision-maker, believed in good faith that Savoie had engaged in conduct that put the reputation of the school at risk. As Savoie and Bierman had lived together as an openly-gay couple in school housing since 1991, and Savoie had been promoted and effusively praised by Cary in the past, the trial judge evidently believed that the motivation for forcing Savoie’s forced resignation was not his sexual orientation or purely private conduct, but rather a genuine concern by Cary about the reputation of the school based on his belief that Savoie was making sex films and distributing them on the internet.
On appeal, Savoie successfully argued that he had alleged sufficient facts in opposition to the school’s summary judgment motion to create a fact issue about whether the school’s stated reason for acting against him was a pretext for anti-gay discrimination. He emphasized Boczowski’s role, and her prior statement of disapproval to Bierman about his (and by extension, Savoie’s) “lifestyle,” and the idea that Boczowski and Cary were acting based on stereotypes about gay men and sex. He also pointed out differential treatment of other staff members, some of which came to light through the discovery process.
The court of appeals found that Savoie’s allegations created factual issues that should not be resolved by the judge in a pre-trial motion as matter of law, but rather deserved to be settled after fact-finding in a trial. As happens with civil litigation, this case has already dragged on for almost a decade, and since back-pay would be the likely remedy to compensate for an unlawful forced resignation, the amount of money involved has become substantial, suggesting that this appellate ruling could lead the school to offer a settlement to Savoie in order to avoid a trial.
Savoie’s counsel on appeal is Alan H. Schorr. Thomas P. Weidner of Windles, Marx, Lane & Mittendorf argued for the school. The National Employment Lawyers Association (New Jersey chapter), which was allowed to participate in support of Savoie as amicus curiae, was represented at the argument by Bennet D. Zurofsky.