Since 1991, Tina Shipe worked as a meat wrapper and then as a meat cutter at ShopRite grocery stores located in Pennington, Hamilton, and Bordentown. Under a collective bargaining agreement (CBA) between certain ShopRite supermarkets and the meat cutter’s union, meat cutters could be rotated throughout the covered stores based on need. In 2007, while Shipe was on medical leave, Saker purchased the three ShopRite stores where Shipe had worked. Shipe was the first woman employed by Saker as a meat cutter.

When Shipe returned to work from her medical leave, pursuant to an agreement with the union and Saker, Shipe and other union members were classified as new employees, subject to a sixty-day probationary period.

After rotating between two other stores, Shipe was assigned to the Bordentown store as the evening meat cutter. On January 28, 2008, while still on probation, store manager Richard Trojan informed plaintiff that she failed to remove bone shavings from meat and placed meat in the wrong containers. This was in violation of Saker’s procedures. Shipe adamantly denied that she made the mistakes. Shipe claims that her direct supervisor, Chris Antimary, spoke to her in a nasty tone and an argument ensued. Shipe admits that she was loud and upset but denied using profanity. Shipe was later discharged for using profanity and being abusive. In March and May 2008 respectively, Saker hired two male meat cutters. Saker claimed that these males were not hired to replace Shipe because a meat manager in another location had been demoted and subsequently quit. The Bordentown ShopRite still did not have an evening meat cutter after Shipe’s termination.

After her discharge, Shipe subsequently worked in various odd jobs but was unsuccessful at finding employment at a comparable salary level. In November 2010, Shipe was hired as a food service manager for Hamilton Township Schools. As a meat cutter with Saker, Shipe earned approximately $46,000 a year. With the school district, Shipe earned approximately $11,000.

At trial, a jury found that Saker had wrongfully discharged Shipe because of her gender, in violation of the New Jersey Law against Discrimination (LAD). In May 2012, Shipe was awarded $198,894 in back pay, $486,200 in front pay, and $145,860 in damages for emotional distress, for a total of $830,954. Shaker appealed the jury award on a number of grounds. Most importantly, on appeal, the Court addressed (1) whether Shipe met her burden for the jury’s award of front pay and (2) whether Shipe had been replaced by the two male meat cutters.

In Quinlan v. Curtiss-Wright Corp.,425 N.J. Super. 335 (App. Div. 2012), the Court held that a plaintiff has not met her initial burden of proving lost income unless she presents evidence supporting three factors. First, she must prove what she would have earned had she not been fired. Second, she must prove how long she would have continued to receive those earnings. Third, she must show a reasonable likelihood that she will not be able to earn that amount in the future with alternative employment. However, Quinlan was only decided shortly before the trial began.

Here, Shipe’s testimony was limited to a discussion of the salary she lost after being discharged, her efforts to secure new employment and the net loss of income between her position as a meat cutter and her current job. However, the Appellate Division found that this was not enough to satisfy the Quinlan elements. For example, there should have been testimony on what Shipe’s future salary would have been, how long Shipe planned to remain at Saker, the average age of retirement for most meat cutters, and Shipe’s perception of her future ability to increase her wages in her field. However, since Quinlan was decided after the parties prepared for trial, the Court decided that the fairest remedy would be to allow both Shipe and Saker to address those factors during a new trial and reopened discovery to allow the parties to develop evidence on Shipe’s front pay claims.

Finally, Saker argued that the judgment should be overturned because there was insufficient evidence that Saker sought someone else to perform the same work after Shipe was terminated. The Appellate Court determined that sufficient evidence had in fact been presented on this issue. First, case law does not require that a plaintiff establish unfailingly that she was replaced by an individual outside of her protected class. Instead, a plaintiff must only prove that the employment decision took place under circumstances that give rise to an inference of unlawful discrimination. Moreover, the court found that even if proof of a replacement is required, Shipe had proven this. In rejecting Saker’s argument that Shipe was not replaced, the Court found it important that, under the CBA, Saker could and did rotate meat cutters between different locations. Thus, the location of where Shipe actually worked was not a critical fact in considering whether Saker replaced her. The simple fact that Saker fired Shipe and hired two males to perform the same work in other stores under Saker’s control was enough evidence to give rise to an inference of unlawful discrimination. However, the Appellate Court reversed the jury’s finding of liability because the trial court failed to provide the jury with appropriately tailored instructions on the issue of replacement.