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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...