July 31, 2008
DAVID FIGUEROA, PLAINTIFF-APPELLANT,
PRINCETON UNIVERSITY AND KENNETH MILLS, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-0991-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 16, 2008
Before Judges Lisa, Lihotz and Simonelli.
Plaintiff David Figueroa was terminated from his position as associate director of the Program for Latin American Studies (PLAS) at defendant Princeton University. He alleges disparate treatment because of his national origin (Puerto Rican) and his disability (a pituitary tumor) in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Although not alleged in his complaint, plaintiff also claims he was subjected to a hostile work environment based on his national origin. Plaintiff appeals from the order of December 15, 2006, granting summary judgment to defendants dismissing his complaint with prejudice. We affirm.
The facts are summarized from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Plaintiff graduated from Princeton in 1992, and from Columbia Law School in 1996. He worked in administration at New York University before beginning his employment at Princeton in December 1999 as the associate director of the Program in Law and Public Affairs.
In February 2001, plaintiff became the associate director of PLAS. His job duties included assisting in the program's development; organizing conferences, lectures and symposia; reporting on meetings; editing the newsletter; assisting in grant-writing and fundraising; designing and maintaining internet-based communications; administering fellowships and short-term visits; collaborating in the development of a summer intern program; and promoting cooperation with Latin American studies programs and research. Jeremy Adelman, director of PLAS at the time plaintiff began his employment, noted problems with plaintiff's job performance. Adelman believed that plaintiff:
[D]id not have the communication skills that were necessary to conduct the business that PLAS conducts routinely. Grammatical, spelling, basic organizational mistakes, and a process that was really not up to the standard of Princeton communications, and it required a lot of correcting and revising and it's hard for a director to have to spend that much time correcting programs.
We hire staff to do the communicating.
In July 2001, defendant Kenneth Mills*fn1 replaced Adelman. Adelman advised Mills about plaintiff's job performance issues, specifically, that he "was concerned that [plaintiff] was not fulfilling the obligations that [PLAS] needed [plaintiff] to fulfill."*fn2
Mills' problems with plaintiff's job performance began almost immediately. In August 2001, Mills reprimanded plaintiff for sending an e-mail to students without final approval, and for sending a memorandum to the various Princeton faculty that contained typographical or grammatical errors. Despite admitting that Mills was entitled to expect that correspondence be grammatically correct, plaintiff dismissed the director's concern as invalid because "[t]ypos happen."
In September 2001, Mills spoke to Linda Biagas, Princeton's Human Resources Manager, about plaintiff's unsatisfactory job performance. Mills specifically expressed concern about plaintiff's written work, accuracy, care for detail, and problems with PLAS' program director, Rosalia Rivera, who was also Puerto Rican. Rivera was a thirty-year Princeton employee who worked for PLAS since 1990.*fn3
Mills also spoke about plaintiff's unsatisfactory job performance to Miguel Centeno, a Latino Princeton sociology professor who was also a PLAS Executive Committee member. Centeno concurred with Mills and said his impression of plaintiff's performance "was uniformly negative." Centeno had observed that plaintiff was not focused and did not run meetings smoothly, that plaintiff had arrived late to a meeting, and that plaintiff failed to prepare an agenda for another meeting. PLAS Executive Committee member, Arcadio Diaz-Quinones, a Puerto Rican, expressed his opinion to the Executive Committee that plaintiff's appointment as PLAS' associate director "had not been a good appointment to begin with."
Plaintiff admitted he did not get along with Rivera. One of Rivera's complaints was that plaintiff did not say "hello" or "goodbye" to her. Mills addressed this issue with plaintiff in or about September 2001. According to plaintiff, Mills asked plaintiff why he did not "say good morning every day [to Rivera], and that's something that we do among . . . your people."*fn4 Plaintiff understood that Mills was referring to Puerto Ricans. This is the first of four statements upon which plaintiff grounds his claims of disparate treatment and hostile work environment based on national origin.
Mills wrote to plaintiff in October 2001 about problems with plaintiff's written work, including inconsistent information, "haste in [the] work, . . . basic writing errors," and a "lack of seamlessness in [his] expression." Mills asked plaintiff to "[p]lease begin a system immediately whereby all e-mail letters, reminders, documents, calendars, schedules, publications you are producing for mass-distribution and consideration receive at least one 'extra set of eyes' prior to release." Mills advised plaintiff, "[i]t's when errors in information and confusing grammar and misused words recur, and the risk of the clarity of your communications on behalf of PLAS and yourself and me, that it becomes my job to express concern and seek remedies." Mills implored plaintiff to take the time necessary to have his work reviewed, and assured plaintiff that "[t]hese are matters that you can remedy." Mills suggested that plaintiff take a class on "Business Writing & E-mail," and attached information about it. Plaintiff admitted that as of the date of this correspondence, Mills had never done or said anything to him that was in any way related to his national origin.
In November 2001, plaintiff drafted a PLAS newsletter. Mills made many corrections and revisions to the draft and returned it to plaintiff, but plaintiff ignored them. Mills complained that plaintiff did not make the corrections, that "there is little sign of careful proofreading"; and that "there are errors everywhere[.]" Mills described the text as "careless and problematic."
In late November 2001, Mills advised plaintiff that plaintiff was:
asking for a promotion that you don't deserve.*fn5 I know you went to Princeton. That doesn't mean anything to me, . . . although you clearly believe that changes things. You make too much money already. People like you get paid that kind of money by the Wilson School, but I don't agree with that.
This is the second statement upon which plaintiff grounds his claims of disparate treatment and hostile work environment based on national origin. Plaintiff admitted that Mills did not say anything about his ethnic background when making this statement. However, he concluded it was related because "[Mills] did not like having somebody of Puerto Rican descent being assertive in any kind of context," and because "[Mills] will not stand having an assertive person in that office that happened to be of my ethnicity or Puerto Rican." Plaintiff did not say that he did not receive the promotion because of his national origin. Rather, he claims that Mills' actions were demeaning.
In correspondence to plaintiff in late November 2001, Mills complained that plaintiff dropped several items from a newsletter without consulting Mills, and that the newsletter incorrectly designated plaintiff as the alumni contact. Plaintiff responded that he would keep Mills informed about publications and consult with Mills about decisions, proposals, new projects and expenses.
According to plaintiff, Mills was angry that plaintiff's name appeared in the newsletter as the alumni contact and said to plaintiff, "you are a helper, that's your job and not much else," that he "should not think of him as more than he really was," and the fact "that you went to Princeton does not mean or change much, so don't try to be someone you're not."
In correspondence to Biagas in December 2001, Mills stated that plaintiff's unsatisfactory job performance continued; that plaintiff's temporary improvement with his conduct toward Rivera did not last;*fn6 and that plaintiff was defensive. He advised Biagas that he had "[his] eye on some reorganization of duties, at least, that [plaintiff] may not like." Mills later wrote to Biagas that "I'm sorry to report that I'm still not able to get [plaintiff] to listen. I get verbiage from him, much self-defense, that is at a distance from reality."
In December 2001, plaintiff sought to go to San Juan during the week of January 28 to "resuscitate the Princeton Club in San Juan." Plaintiff took a trip to San Juan before January 28, without Mills' knowledge. Mills complained that plaintiff failed to inform him of this earlier trip and excluded Mills from conversations about alumni development and fund-raising opportunities. According to plaintiff, Mills said, "here I go again with Puerto Rico and obsessing, and me obsessing with Puerto Rico . . . ." This is the third statement upon which plaintiff grounds his claims of disparate treatment and hostile work environment based on national origin.
Peter Johnson, Princeton's bibliographer for Latin America, Spain and Portugal, and a PLAS Executive Board member, also complained about plaintiff's unsatisfactory job performance. He found that plaintiff's work "did not meet the needs and the expectations of [PLAS]," and that the work required constant "correcting and monitoring." Johnson noted deficiencies in plaintiff's writing, documentation, planning and organizing. He suggested to Mills that plaintiff's position be replaced with the former position of Executive Director.*fn7
Mills sought assistance from PLAS' Executive Committee. In a March 26, 2002 e-mail to the Executive Committee, Mills wrote about the problems between plaintiff and Rivera, and noted that:
I still do not believe [plaintiff] is performing well, or consistently at the level this busy Program needs. I have spoken to him a handful of times about my concerns, and presented him with two letters over the course of the last seven months [which] asked for greater care and effort, especially in his written communications, but also in his general performance of tasks. He always expresses surprise and he defends his every action rigorously. As is perhaps too much my style, I have also tried to encourage the best results from him [through] a positive attitude and praise for whatever looked good. Indeed, some things are commendable and fine: the Puerto Rican Symposium came off a success, the newsletters and student fora, for instance, are coming off, and (while with a lot, too much, of the basic writing and editorial input is done by me) the output is better . . . . But [plaintiff] is not anticipating the organizational and planning needs of the Program in the way someone in his position with his considerable salary, [should] be helping to do . . . . The rhythm of the academic calendar, and the needs of me and others around here, are things he has by now had time to master, and I don't see evidence that he has done so, or learned quickly [enough]. If anything, it is a latest reversion to a certain carelessness, and long lunches and shortened days when not supervised, and [Rivera's] now-once-again-open revolt against what, in her opinion, [plaintiff] is "getting away with," that move me to despair. And to ask for your advice, counsel, help at this time.
Mills also stated that he no longer believed that "the situation could improve by talking it out," and suggested "bringing the matter before [Vice Provost] Joann Mitchell, the relevant officer in Nassau Hall."
Plaintiff admitted that Mills did not write this e-mail because of animus against plaintiff due to his national origin; that what Mills said was his objective assessment of plaintiff's performance; that nothing Mills wrote indicated he did anything based on plaintiff's ethnic background; that he had no facts indicating that Mills' writing was not a good-faith attempt to solicit advice; and that Mills had no knowledge of plaintiff's medical condition when he wrote the e-mail. Plaintiff also admitted that prior to the e-mail, Mills discussed with plaintiff that he was not satisfied with plaintiff's job performance.
In April 2002, the governor of Puerto Rico visited Princeton. Plaintiff had organized the trip and the Woodrow Wilson School paid for a dinner as a co-sponsor. Mills allegedly said to plaintiff, "well, once again with Puerto Rico and your thing, but at least the Woodrow Wilson School paid for the meal." This is the last statement upon which plaintiff grounds his claims of disparate treatment and hostile work environment based on national origin.
On April 1, 2002, Mills met with the Executive Committee and discussed plaintiff's poor job performance and the need to terminate him and restructure the program. The Executive Committee decided to terminate plaintiff because of his job performance. Mills then met with Mitchell, and complained that plaintiff was not present during the workday, had problems with his writing skills, had a conflict with Rivera, and could not carry out tasks independently. Mitchell noted that Mills expressed frustration because, when he attempted to communicate his concerns to plaintiff, plaintiff refused to accept responsibility and responded with explanations and counterarguments. Mitchell recommended that Mills proceed with a reorganization of PLAS.
Mills met with the PLAS Advisory Council*fn8 on April 20, 2002, and discussed plaintiff's poor job performance and plan to restructure PLAS to add an Executive Director and a Manager of Curriculum and Communications, to eliminate plaintiff's position, and to terminate plaintiff. Three days later, plaintiff informed Mills that he had a "serious condition [a pituitary tumor] that require[d] immediate surgery[,]" and that he needed three weeks for recovery and another few days for radiation therapy. Plaintiff admitted that nothing that had occurred prior to this time could be based in any way on his medical condition. However, he claims that after disclosing his illness, he was "subjected to demeaning treatment," he received "[a] devastatingly negative performance review," and the "reorganization was very quickly engineered" by Mills.
In May 2002, the Advisory Council recommended the reorganization. Plaintiff's position was eliminated in June 2002, and replaced by an Executive Director position.
Plaintiff contends that his termination was the result of disparate treatment based on his national origin and disability. He grounds this contention primarily on the four statements previously mentioned.*fn9
In granting summary judgment to Princeton, Judge Innes rejected plaintiff's claim that referring to Princeton as an "elite institution" evidences a culture of ethnic elitism "that allows discrimination to flourish." Regarding disparate treatment based on plaintiff's national origin, the judge found that plaintiff failed to establish that the reason for his termination was pretextual, reasoning that:
[M]any of the complaints against plaintiff were the outgrowth of his relationship with his co-worker, Ms. Rivera. Here, it's not enough for the plaintiff to demonstrate that Mills may have been a rude and insensitive person. It's just not enough to show that Mills may have even had some mode of racial bias. To prove the element, plaintiff must show that Mills' bias was shared by Princeton University and that the restructuring of PLAS was unnecessary and motivated solely by racial prejudice.
Plaintiff here has shown that there is a debate as to whether plaintiff's termination was 100 percent fair. He has shown that his work did benefit Princeton and that at times Mills was pleased with his performance. Unfortunately, this is not enough to survive this motion for summary judgment. Employers and supervisors are entitled to exercise business judgment and remove employees that they see as ineffective. As stated in Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509,  (3d Cir. 1992), pretext cannot be established by pointing to favorable comments about employee performance . . . . Plaintiff has also shown that, at most, only that Mills was an unpleasant supervisor who was overly harsh. Neither of these overwhelm the proffer of legitimate, non-discriminatory reason.
Regarding disparate treatment based on plaintiff's disability, the judge noted that the decision to restructure PLAS and eliminate plaintiff's position was made prior to plaintiff's disclosure of his disability, and "[i]t's impossible that the adverse employment action of termination to be a departmental restructuring was motivated by plaintiff's disabled status."
We use the same standard as the trial court when deciding a summary judgment motion. Jolley v. Marquess, 393 N.J. Super. 255, 267 (App. Div. 2007) (citing Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998)). In deciding a summary judgment motion, the trial court's "'function is not . . . to weigh the evidence and determine the truth . . . but to determine whether there is a genuine issue for trial.'" Brill, supra, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed. 2d. 202, 212 (1986)). To determine that, the trial judge must consider "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Ibid. If there is "a single, unavoidable resolution of the alleged disputed issue of fact," then the issue is not "genuine." Ibid. The thrust of Brill is that "when the evidence 'is so one-sided that one party must prevail as a matter of law,' . . . the trial court should not hesitate to grant summary judgment." Ibid. (quoting Liberty Lobby, Inc., supra, 477 U.S. at 252, 106 S.Ct. at 2512, 91 L.Ed. 2d at 214). If there is no genuine issue of fact, we must then decide whether the lower court's ruling on the law was correct. Prudential, supra, 307 N.J. Super. at 167. Applying these standards, we conclude that summary judgment was properly granted.
When a plaintiff claims disparate treatment and has no direct evidence of discriminatory intent, courts apply the burden-shifting analysis initially set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d 668 (1973). Bergen Commercial Bank v. Sisler, 157 N.J. 188, 209 (1999). First, the employee must establish a prima facie case that (1) he or she was in a protected class; (2) he or she was performing his or her job at a level that met the employer's reasonable expectations at the time of termination; (3) he or she was nevertheless discharged; and (4) the employer sought someone else to perform the same work after he or she left. Gerety v. Atl. City Hilton Casino Resort, 184 N.J. 391, 399 (2005) (citing Andersen v. Exxon Co., 89 N.J. 483, 492 (1982)); Zive v. Stanley Roberts, Inc., 182 N.J. 436, 450 (2005).
A prima facie case creates a presumption of discrimination, and the burden then shifts to the employer to produce evidence of a legitimate, nondiscriminatory reason for the employee's discharge. Zive, supra, 182 N.J. at 449; Mogull v. CB Commercial Real Estate Group, Inc., 162 N.J. 449, 462 (2000) (quoting Andersen, supra, 89 N.J. at 492-93); Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363, 380-81 (1988) (citing McDonnell Douglas, supra, 411 U.S. at 802, 92 S.Ct. at 1824, 37 L.Ed. 2d at 678). When the employer produces evidence of a legitimate reason for the discharge, the presumption of discrimination disappears, and the burden shifts back to the employee to prove that the employer's reason was a pretext for discrimination, i.e., it was false, and the real reason was discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 2751-52, 125 L.Ed. 2d 407, 422 (1993); Zive, supra, 182 N.J. at 449 (citing Clowes v. Terminix Int'l Inc., 109 N.J. 575, 596 (1988)); Bergen Commercial Bank, supra, 157 N.J. at 211 (citing Andersen, supra, 89 N.J. at 493). The ultimate burden of proof always remains with the employee. St. Mary's, supra, 509 U.S. at 518, 113 S.Ct. at 2753, 125 L.Ed. 2d at 423 (citation omitted); Zive, supra, 182 N.J. at 449 (citing Baker v. Nat'l St. Bank, 312 N.J. Super. 268, 287 (App. Div. 1998), aff'd, 161 N.J. 220 (1999)); Jason v. Showboat Hotel & Casino, 329 N.J. Super. 295, 304 (App. Div. 2000) (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed. 2d 207, 215 (1981)).
To defeat summary judgment where an employer alleges a legitimate reason for its adverse employment action, the employee must either discredit the proffered reason, either circumstantially or directly; or adduce evidence, whether circumstantial or direct, "that discrimination was more likely than not a motivating or determinative cause of the adverse employment action." Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir. 1994). "To discredit the employer's proffered reason,  the employee cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent." Id. at 765. Rather, the employee must submit sufficient evidence to "allow a factfinder to reasonably infer" that the employer's articulated, nondiscriminatory reason "was either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, the proffered reason is a pretext)." Id. at 764 (citing Anderson v. Baxter Healthcare Corp, 13 F.3d 1120, 1122-24 (7th Cir. 1994)); Washington v. Garrett, 10 F.3d 1421, 1433 (9th Cir. 1993)).
Here, defendants do not dispute the judge's finding that plaintiff established a prima facie case of disparate treatment based on national origin and disability. The issue is whether defendants' expressed reason for terminating plaintiff was the real reason, and not pretext for discrimination.
Based upon our careful review of the record, we conclude that plaintiff has failed to present facts creating a genuine issue that the reason for his termination was pretextual, and that discrimination was more likely than not defendants' motivation. Plaintiff was not terminated because of his national origin or disability. The evidence here is so one-sided that no rational fact-finder could conclude that plaintiff was terminated for anything other than his longstanding poor job performance.
Plaintiff also contends he was subject to a hostile work environment based on his national origin. Although Judge Innes did not specifically address this contention, he implicitly rejected that the four statements created a hostile work environment based on his national origin.
To state a claim for hostile work environment based on national origin, a plaintiff must show that the complained-of conduct "(1) would not have occurred but for [his or her] protected status, and was (2) severe or pervasive enough to make a (3) reasonable person believe that (4) the conditions of employment have been altered and that the working environment is hostile or abusive." Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 24 (2002) (citing Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04 (1993)).
"[A] hostile work environment claim cannot be established by epithets or comments which are 'merely offensive.'" Heitzman, supra, 321 N.J. Super. at 147 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L.Ed. 2d 295, 302 (1993)). A supervisor's rude and uncivil behavior does not qualify as a hostile environment, Shepherd, supra, 174 N.J. at 25, and offensive comments are insufficient to establish a hostile work environment. El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 179 (App. Div. 2005).
Ultimately, "whether an environment is 'hostile' or 'abusive' can be determined only by looking at all the circumstances," which "may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or merely offensive utterance; and whether it unreasonably interferes with an employee's work performance." [Heitzman, supra, 321 N.J. Super. at 147 (quoting Harris, supra, 510 U.S. at 23, 114 S.Ct. at 371, 126 L.Ed. 2d at 302-03).]
Viewing the evidence in a light most favorable to plaintiff, we are convinced that no rational fact-finder could conclude that Mills' statements were so severe or pervasive that a reasonable person of Puerto Rican ethnicity would believe that the conditions of employment had been altered and that the working environment was hostile or abusive. At worst, Mills' statements may have been demeaning and offensive to plaintiff, but they were not sufficiently extreme to create an abusive or hostile workplace.
Plaintiff also contends that Judge Innes erred in dismissing his claims against Mills. The judge concluded that, assuming Mills discriminated against plaintiff, he has no liability because "[a]n individual cannot aid or abet his own conduct." We agree.
Individual liability under N.J.S.A. 10:5-12(e) requires aiding a party who performs a wrongful act that causes an injury, awareness of an overall illegal activity, and knowing and substantial assistance in the principal violation. Tarr v. Ciasulli, 181 N.J. 70, 84 (2004) (quoting Hurley v. Atl. City Police Dep't, 174 F.3d 95, 127 (3d Cir. 1999), certif. denied, 528 U.S. 1074, 120 S.Ct. 786, 145 L.Ed. 2d 663 (2000)). "[T]he alleged principal wrongdoer, cannot aid and abet his own wrongful conduct." Newsome v. Admin. Office of the Court of the State of N.J., 103 F. Supp. 2d 807, 823 (D.N.J. 2000) (citing Hurley, supra, 174 F.3d at 126), aff'd o.b., 91 Fair Empl. Prac. Cas. (BNA) 1024 (3d Cir. 2002). Plaintiff has submitted no evidence that Mills aided or assisted Princeton in discriminating against him or in creating a hostile work environment.
Plaintiff's contention that the reference to Princeton as an "elite institution" evidences a culture of ethnic elitism at Princeton "that allows discrimination to flourish" is without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).