A professor and co-founding director of the New Jersey City University (“NJCU”) School of Business Institute for Dispute Resolution (“IDR”) sued the university, alleging he was retaliated against and ultimately fired for reporting a student’s allegation of sexual harassment by a former high-ranking school official.

The plaintiff, David Weiss, is an attorney with an extensive legal career. He was the founding partner of a private New Jersey law firm and later served as managing director, general counsel, and a member of the board of directors of a Wall Street commercial real estate firm.[i] He is also on the board of directors of the International Mediation Institute and has lectured and written widely on the topics of international negotiation and mediation.[ii] According to the complaint, in July of 2013, Mr. Weiss was approached by the former President of NJCU with a proposal to develop an international institute for dispute resolution at NJCU.[iii]

Two years later in December of 2015, NJCU hosted an event celebrating the opening night for its School of Business.[iv] Three NJCU students who were accepted to an international mediation competition in Paris, France attended the event.[v] Mr. Weiss alleges that, at the end of the evening, one of the female students reported to him and another professor, the co-director of the IDR, that a high-ranking school official had made “unwanted sexually charged comments to her, which made her feel extremely uncomfortable.”[vi] Mr. Weiss and the other professor reported the incident to the university the following day.[vii]

Mr. Weiss alleges that, after reporting the incident to NJCU, the school retaliated against him “by, among other things, reducing, minimizing, and denying his academic rank job title and employment contracts in order to deprive him of a tenure position with NJCU.”[viii] For example, the complaint alleges that the school first relegated Mr. Weiss from a full-time position in the Department of Academic Affairs to a part-time administrative position which “was intended to and effectively [removed] him from consideration for a tenured faculty position.”[ix] He was then demoted to a consultant position, which eliminated his health insurance and 401K benefits and further lowered his academic rank toward tenure eligibility.[x]

The other professor who also reported the incident was terminated effective June of 2018.[xi] About one year later, that professor filed her own lawsuit against NJCU and others for retaliation for reporting the student’s sexual harassment claim, and further claimed that she herself had been sexually harassed by the same school official.[xii] Her case remains pending almost five years later. Notably, the school official accused of the harassment resigned from his position in the summer of 2018.[xiii]

Although Mr. Weiss continued to work at the university, he claims the school continued to retaliate against him and he continued to be demoted with each subsequent contract. In September of 2022, Mr. Weiss hired legal counsel and filed a claim of unlawful retaliation under the New Jersey Law Against Discrimination (“LAD”)[xiv] with the NJCU Office of Equal Employment Opportunity/Affirmative Action, which transferred the claim to the state Civil Service Commission’s office.

About three months after lodging the complaint, Mr. Weiss was notified that his employment would be terminated effective June of 2023 “based on budgetary projections” requiring the need for position eliminations.[xv] The school’s president since 2012 resigned in June of 2022 after NJCU’s Faculty Senate gave her a vote of “no confidence,” citing the school having over $101 million in surplus but, due to her decisions, had become overburdened with $67 million in debt.[xvi] In an effort to cut more than $12 million in expenses to balance its 2022-23 operating budget, the school eliminated 37% of its academic programs, including 28 graduate programs and one doctoral program, and laid off a number of faculty, including 30 tenured professors.[xvii] At one point, the school said it had only enough cash on hand to operate for 25 days, which spurred the New Jersey Comptroller’s Office to launch an investigation into the finances and operations of the university.[xviii] The school’s president was heavily criticized for overseeing ambitious and expensive projects, which many argued did not reflect the needs of the students it was designed to serve.[xix] This included a massive campus expansion project estimated to cost $400 million, despite enrollment declines due in part to tuition hikes and the pandemic.[xx]

Mr. Weiss filed suit against NJCU in February of 2024 alleging he was retaliated against and ultimately fired for reporting the student’s allegation of sexual harassment by the former school official in violation of the LAD.[xxi] In addition, Mr. Weiss claims that NJCU never paid him a $25,000 bonus which he was entitled to, in breach of contract.[xxii]

The LAD makes it illegal “[f]or any person to take reprisals against any person because that person has opposed any practices or acts forbidden under this act[.]”[xxiii] In order to establish a prima facie case for retaliation under the LAD, the plaintiff must demonstrate: (1) that they engaged in protected activity; (2) the activity was known to the employer; (3) the plaintiff suffered an adverse employment decision; and (4) there existed a causal link between the protected activity and the adverse employment action.[xxiv] In addition, the plaintiff must also demonstrate that the original complaint was both reasonable and made in good faith.[xxv]

Once a plaintiff establishes a prima facie case of retaliation, the defendant must “articulate a legitimate, non-retaliatory reason for the decision.”[xxvi] Next, “the plaintiff must come forward with evidence of a discriminatory motive of the employer, and demonstrate that the legitimate reason was merely a pretext for the underlying discriminatory motive.”[xxvii]

The first prong and “[t]he central element of a retaliatory discharge claim under LAD is that the plaintiff be ‘engaged in a protected activity, which is known by the alleged retaliator.’”[xxviii] A person engages in protected activity under the LAD when that person opposes any practice rendered unlawful under the LAD.[xxix] It is well-settled that sexual harassment is a form of sex discrimination that violates the LAD.[xxx]

Based on the allegations of the complaint, Mr. Weiss was engaging in protected activity when he reported the student’s allegation to school officials. It appears his complaint was reasonable and made in good faith. Mr. Weiss alleges the school then retaliated against him by demoting him, denying him tenure, and ultimately firing him. NJCU has not responded to the lawsuit as of this writing. However, I would expect NJCU to argue that Mr. Weiss was just one of many faculty members, including 30 tenured professors, who were laid off due to the school’s financial crisis and could no longer afford expensive programs like the IDR amidst declining enrollment and massive debt. Indeed, it appears that the IDR was completely eliminated as part of the budget cuts. Mr. Weiss will in turn argue that the school’s financial situation was just a pretext for his termination, and that his demotions and other adverse employment actions only began after he reported the student’s claim.

Takeaways

Reporting activity like sexual harassment is protected activity under New Jersey’s Law Against Discrimination, and it is unlawful for an employer to retaliate against an employee for doing so. This case will really hinge on whether Mr. Weiss can prove his demotions and ultimate firing were in retaliation for making the report, and that NJCU’s financial woes were merely a pretext for his demotions and eventual termination.

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Sources

[i] Docket No.: MON-L-671-24, Trans ID: LCV2024464660

[ii] https://imimediation.org/member/david-weiss/

[iii] Ibid.

[iv] Ibid.

[v] Ibid.

[vi] Ibid.

[vii] Ibid.

[viii] Ibid.

[ix] Ibid.

[x] Ibid.

[xi] Ibid.

[xii] Docket No.: HUD-L-2596-19, Trans ID: LCV20191140671

[xiii] Docket No.: MON-L-671-24, Trans ID: LCV2024464660

[xiv] N.J.S.A. 10:5-1, et seq.

[xv]

[xvi] https://www.northjersey.com/story/news/education/2022/08/10/new-jersey-city-university-investigation-finances-murphy/65397477007/

[xvii] https://www.nj.com/hudson/2022/12/this-is-new-jersey-university-is-laying-off-30-professors-eliminating-37-of-academic-programs.html

[xviii] https://www.northjersey.com/story/news/education/2022/08/10/new-jersey-city-university-investigation-finances-murphy/65397477007/

[xix] Ibid.

[xx] Ibid.

[xxi] Docket No.: MON-L-671-24, Trans ID: LCV2024464660

[xxii] Ibid.

[xxiii] N.J.S.A. 10:5–12(d)

[xxiv] Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 629-30 (1995) (citations omitted)

[xxv] Carmona v. Resorts Int’l Hotel, Inc., 189 N.J. 354, 373 (2007)

[xxvi] Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 549(App. Div. 1995)

[xxvii] Ibid.

[xxviii] Erickson v. Marsh & McLennan Co., Inc., 117 N.J. 539, 560 (1990) (quoting Velantzas v. Colgate–Palmolive Co., 109 N.J. 189, 193 n. 1 (1988))

[xxix] Young v. Hobart West Group, 385 N.J. Super. 448, 466 (App. Div. 2005) (citing N.J.S.A. 10:5–12d)

[xxx] J.T.’s Tire Service, Inc. v. United Rentals North America, Inc., 411 N.J. Super. 236, 241 (App. Div. 2010)