March 7, 2008
BHULESHWAR S. DARJI, PLAINTIFF-APPELLANT,
THE STATE OF NEW JERSEY (NEW JERSEY DEPARTMENT OF TRANSPORTATION), DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-2056-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 13, 2008
Before Judges Winkelstein and Yannotti.
Plaintiff Bhuleshwar Darji, a sixty-seven-year-old naturalized citizen, having emigrated from India in 1971, has been employed by the New Jersey State Department of Transportation (DOT) as a civil engineer since 1984. He appeals from a January 11, 2007 summary judgment dismissing his discrimination and retaliation complaint against the State. We affirm.
In 1995, plaintiff filed two complaints with the DOT's Division of Civil Rights and Affirmative Action (the Division), alleging that he was retaliated against because he testified against the DOT in a fellow employee's discrimination case. The affirmative action officer found no probable cause to support plaintiff's claims.
Throughout his tenure with the DOT, plaintiff received several promotions. His pending appeal arises out of a promotion that he was denied in 2002. The State advertised for a project engineer and plaintiff satisfied the educational and experience requirements of the job specifications. To qualify for the position, plaintiff was also required to take the Civil Service written examination, administered by the New Jersey Division of Personnel (DOP). N.J.S.A. 11A:4-1. The three test takers with the highest scores on the exam are interviewed for the position (the "Rule of Three"). N.J.S.A. 11A:4-8. Fifty-five applicants took the test and plaintiff received the highest score. Nicole Einthoven, a Caucasian woman who received the promotion, scored second. She has a bachelor's degree in mechanical engineering, which was not the degree called for in the job specifications, and she does not hold a professional engineer's license in this state.
Interviews of the three highest test takers were conducted by DOT managers Jack Mansfield, Roderick Lewis, and Harry Capers. Each candidate was asked the same technical questions and given points for correct answers. Points were also based on relevant experience and qualifications, and on five additional questions. Out of a possible 135 points, plaintiff received 49.5 points and Einthoven received 81.5 points.
In September 2002, plaintiff filed a complaint with the Division, alleging that he was discriminated against in the promotion process based on his race and age; he also claimed reprisal for his 1995 complaints. The Division determined that race, age, and reprisal were not factors in the DOT's failure to select plaintiff for the position; that plaintiff was not selected because he failed to correctly answer more than fifty percent of the standard interview questions.
Plaintiff filed the instant action against the DOT in August 2004, alleging violations of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42. He claims that he did not receive the promotion because of his race, national origin, age, religion, and sex. He also claims that he was retaliated against based upon his 1995 complaints against the DOT.
Following the close of discovery, the DOT moved for summary judgment. The court first heard argument on the motion on November 17, 2006, when the court found that plaintiff made a prima facie case of discrimination. The court found that plaintiff was a member of a protected class, that he applied for and was qualified for a position, and that he was rejected, despite his qualifications, and that the job remained open and the employer filled it with someone with lesser qualifications. The court did not make a final decision at that time, however. It provided plaintiff an additional opportunity to rebut defendant's argument that it had a legitimate, nondiscriminatory reason for not hiring plaintiff; specifically, his low interview score. Consequently, plaintiff submitted additional information to the court, which included statistical employee data from the DOT that plaintiff had not produced during discovery.
On January 11, 2007, the court held a second argument on defendant's motion. It granted summary judgment to the DOT, memorializing its decision in an order of that date. On the discrimination claim, the court found that plaintiff submitted no proof that the DOT's non-discriminatory reason for promoting Einthoven over plaintiff - her significantly higher score on the interview - was a pretext for discrimination. The court also dismissed plaintiff's retaliation claim because plaintiff did not establish a causal link between the 2002 employment decision and his 1995 activities.
The New Jersey Law Against Discrimination (LAD) prohibits an employer from discriminating against an employee based upon the employee's "race, creed, color, national origin, ancestry, [or] age." N.J.S.A. 10:5-12a. New Jersey has adopted the McDonnell Douglas*fn1 test as the standard for employment discrimination claims under the LAD. Peper v. Princeton Univ. Bd. of Tr., 77 N.J. 55, 82 (1978). That test requires that a plaintiff in an employment discrimination case make a prima facie case of discrimination by showing:
(i) that he belongs to [the protected group]; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicant's from persons of complainant's qualifications. [McDonnell Douglas Corp., supra, 411 U.S. at 802, 93 S.Ct. at 1824, 36 L.Ed. 2d at 677.]
After the plaintiff has demonstrated a prima facie case, the burden shifts to the employer to "articulate some legitimate, nondiscriminatory reason" for the adverse employment decision. Ibid., 93 S.Ct. at 1824, 36 L.Ed. 2d at 678. The burden then shifts back to the plaintiff to show that the employer's reasons for the adverse employment decision were a pretext for discrimination. Id. at 804, 93 S.Ct. at 1825, 36 L.Ed. 2d at 679.
Here, the court found that although plaintiff established a prima facie case of discrimination, he failed to show that the employer's reason for awarding the promotion to Einthoven was pretext. The DOT provided a legitimate, non-discriminatory reason for not hiring plaintiff. His score during the interview was significantly lower than Einthoven's. The question thus becomes whether plaintiff proffered sufficient evidence that the DOT's reason was a pretext for discrimination. To succeed, the plaintiff's evidence rebutting the employer's proffered legitimate reason must allow a factfinder reasonably to infer that . . . the employer's proffered non-discriminatory reason . . . was either a post hoc fabrication or otherwise did not actually motivate the employment action . . . [Greenberg v. Camden County Vocational & Technical Sch., 310 N.J. Super. 189, 200 (App. Div. 1998) (internal citation omitted).]
In support of his claim that the DOT's reason was pretext, plaintiff makes a number of arguments. He alleges that Harry Capers, one of the interviewers, had asked people to repeat themselves when he could not understand them because of their accents and he demanded that they speak in English in the workplace. Plaintiff claims that Salim Beig, one of plaintiff's supervisors, tipped off certain employees about test questions. He further asserts that Jack Mansfield, another of the interviewers, said: "We don't discriminate, we use professionals to do it." We agree with the trial judge that this evidence is not sufficient to defeat defendant's summary judgment motion.
Caper's requirement that English be spoken in the workplace is not evidence of discrimination. A language requirement is not discriminatory unless the plaintiff proves that the "rule was used as a surrogate for discrimination on the basis of national origin, ancestry, or any other prohibited grounds." Rosario v. Cacace, 337 N.J. Super. 578, 585 (App. Div. 2001). Plaintiff has made no such showing. To so infer based on the record would constitute speculation.
Plaintiff complains that Caper's requests of individuals to repeat themselves when he could not understand their accent is evidence of discrimination. Although Caper's requests may, under some circumstances, be considered insensitive, they are not evidence of discrimination and do not support plaintiff's claim that the DOT's reason for not promoting him was pretext. See Fuentes v. Perskie, 32 F.3d 759, 767 (3d Cir. 1994) (employer's "insensitivity and unprofessionalism" in asking the plaintiff to use the English version "Louis," instead of his given name "Luis" because he had "difficulty" saying it was not sufficient to withstand summary judgment as no reasonable factfinder could conclude that the defendant's comments were evidence of bias against Latinos).
Next, plaintiff asserts that he heard Beig tell someone that he was "tipping off" the examination questions. Yet plaintiff has not established that Beig did so to discriminate against any protected class. Although plaintiff claims that Beig's motivation for disclosing the test answers was "so the Asians [would be] left behind," that is plaintiff's opinion, unsupported by any factual basis.
As to Mansfield's statement, that "[w]e don't discriminate, we use professionals to do it," plaintiff claims that Mansfield meant that the affirmative action committee person who would be present during interviews would simply "rubber stamp their decision." Yet Mansfield made his statement in 2004, two years after plaintiff's interview. Plaintiff has failed to show a nexus between Mansfield's statement and the decision not to promote him. Indeed, when plaintiff was interviewed, no affirmative action person was present.
Plaintiff further claims that the interviewers conspired to score the interviews inaccurately with a purpose to discriminate against him. To infer pretext by this conduct, plaintiff must show that the interviewers either conspired together to give him low scores or each interviewer individually scored him low because of his protected status. He has shown neither. His allegation is conclusionary, lacking any factual basis in the record. See El-Sioufi v. St. Peter's Univ., 382 N.J. Super. 145, 175 (App. Div. 2005) (mere allegations are insufficient to withstand summary judgment); see also Bumbaca v. Twp of Edison, 373 N.J. Super. 239, 252(App. Div. 2004) (summary judgment granted to defendant where, to rebut the legitimate, non-discriminatory reason for hiring, the plaintiff was required to show that doctor and officials conspired to "rig" the outcome of psychological exam used to determine suitability for hiring), certif. denied, 182 N.J. 630 (2005).
In sum, no reasonable juror could conclude from the record that the DOT's proffered legitimate, non-discriminatory reason for not promoting plaintiff was merely a pretext for discrimination. Plaintiff's remaining reasons for claiming pretext are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Next, we turn to plaintiff's assertion that Einthoven was unqualified for the position. His argument ignores the fact that the decision as to who was qualified and constituted the top three candidates was not made by the DOT, but was made by the DOP when it named the applicants to sit for the civil service examination. The DOP is not a party to this lawsuit. Nor has plaintiff demonstrated that the interviewers were aware of, or relied on, the job specifications in their evaluation of the potential candidates' qualifications for the position. Put simply, plaintiff's argument on this issue is not supported by the record.
We next address plaintiff's argument that the statistical data he submitted after the discovery end date and after the trial date had been fixed is evidence that defendant's actions were pretextual, and that the trial court erred by failing to consider this evidence. We agree with the court that plaintiff failed to show exceptional circumstances to warrant extension of the discovery end date; consequently, the court did not abuse its discretion in refusing to consider the statistical evidence plaintiff provided out of time.
Rule 4:24-1(c) provides that discovery may be extended on motion to the court, made returnable prior to the conclusion of the applicable discovery period. . . . The court may, for good cause shown, enter an order extending discovery for a stated period, and specifying the date by which discovery shall be completed. . . . Absent exceptional circumstances, no extension of the discovery period may be permitted after an arbitration or trial date is fixed.
To show "exceptional circumstances," a party must demonstrate that the "circumstances presented were clearly beyond the control of the attorney and the litigant seeking an extension of time." Huszar v. Greate Bay Hotel & Casino, Inc., 375 N.J. Super. 463, 473 (App. Div.) (internal citation omitted), certif. granted on other grounds, 185 N.J. 290 (2005). The factors to be considered include:
First, . . . any application should address the reasons why discovery has not been completed within [the] time [allotted] and counsel's diligence in pursuing discovery during that time. . . . Any attorney requesting additional time for discovery should establish that he or she did make effective use of the time permitted under the rules. A failure to pursue discovery promptly, within the time permitted, would normally be fatal to such a request. Second, there should be some showing that the additional discovery or disclosure sought is essential, that is that the matter simply could not proceed without the discovery at issue or that the litigant in question would suffer some truly substantial prejudice. Third, there must be some explanation for counsel's failure to request an extension of the time for discovery within the original discovery period. Finally, there generally must be some showing that the circumstances presented were clearly beyond the control of the attorney and litigant seeking the extension of time. [Ibid. (internal citation omitted).]
In the trial court, plaintiff did not submit the statistical data until after the time for discovery had expired and the trial date had been fixed. He has not explained why he failed to request an extension of the discovery end date during the discovery period. Nor has he provided any reason as to why timely submitting the statistical data was beyond his control or the control of his counsel. Though it is arguable that the statistical data is relevant to his claim, see Beatty v. Farmer, 366 N.J. Super. 69, 76-77 (App. Div. 2004) (statistical data regarding age permitted to be used by defendant to rebut plaintiff's prima facie case of age discrimination); Greenberg, supra, 310 N.J. Super. at 201 (statistical data allowed to be used by plaintiff to prove prima facie case of age discrimination), plaintiff has simply failed to satisfy the exceptional circumstances requirement to reopen discovery. Consequently, the court's decision not to consider the statistical data was not an abuse of discretion.
Finally, we address plaintiff's retaliation claim. He asserts that the interviewers were aware that he served as a witness against the DOT in 1995, and as a result retaliated against him. The DOT admitted that "at least one management person, who interviewed the [plaintiff] was aware that he had been a witness against the Department and that he had filed a complaint with the EEOC." For purposes of summary judgment, we accept as true that one of the interviewers knew that plaintiff had been a witness and had filed a complaint against the DOT. That said, the trial court found that plaintiff did not establish a causal link between his 1995 activities and the failure to promote him in 2002. We agree.
Under the LAD, it is unlawful discrimination:
For any person to take reprisals against any person because that person has opposed any practice or acts forbidden under this act or because that person has filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act. [N.J.S.A. 10:5-12d.]
In a retaliation claim involving a failure to promote, a claimant establishes a prima facie case by proving by the preponderance of the evidence that (1) the claimant engaged in a protected activity that was known to the alleged retaliator, (2) the promotion sought was denied, and (3) the claimant's engagement in the protected activity was a cause of the promotion denial. [Jamison v. Rockaway Twp. Bd. of Ed., 242 N.J. Super. 436, 447 (App. Div. 1990).]
Once a plaintiff has made a prima facie case of retaliation, the McDonnell Douglas burden shifting test applies. Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 549 (App. Div. 1995).
Here, plaintiff meets the first two criteria, but he has failed to establish the third criterion, the causal link between the DOT's failure to promote him and his 1995 activities. The causal link "may be demonstrated by evidence of circumstances that justify an inference of retaliatory motive." Id. at 550. Given the seven years between plaintiff's 1995 activities and the employment decision in 2002, to conclude that plaintiff's former activities had any impact upon the DOT's failure to promote him would be conjecture. Plaintiff has submitted no evidence to show that his 1995 activities were in any way related to the DOT's failure to promote him in 2002. He has not demonstrated any facts in the promotion process from which an inference of retaliatory motives may be drawn.
Plaintiff has made a number of additional arguments in his brief that we decline to substantively address, as they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).