October 13, 2010
CHANDER KANT, PLAINTIFF-APPELLANT,
SETON HALL UNIVERSITY, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8638-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 15, 2010
Before Judges Cuff, Fisher and Fasciale.
Plaintiff appeals from an October 23, 2009 order granting summary judgment to Seton Hall University (SHU) dismissing his complaint, an October 23, 2009 order denying his motion for partial summary judgment, orders dated September 11 and October 23, 2009 denying his motion to amend the complaint, and a December 18, 2009 order denying his motion for reconsideration.
Because plaintiff failed to establish a prima facie case of employment discrimination or retaliation under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, we affirm.
SHU hired plaintiff, a native of India, in 1989 as an assistant professor in its Department of Economics, and he was later promoted to associate professor with tenure. Dr. John Dall was the Chair of the Department of Economics, and Dr. Karen Boroff was the Dean of the School of Business. Both made employment decisions that plaintiff challenged. During the past ten years, plaintiff filed three lawsuits against SHU, alleging primarily that Dall and Boroff discriminated and retaliated against him because of his national origin in violation of the LAD.*fn1
Here, plaintiff contends that Dall and Boroff discriminated and retaliated against him in three separate areas. He alleges that (1) Boroff examined his request for travel expenses "minutely"; (2) Dall refused to switch summer courses in 2006; and (3) Boroff provided unfavorable employment evaluations.
The motion judge granted summary judgment to SHU on three grounds. First, he found that plaintiff's claims were barred by the entire controversy doctrine.*fn2 Second, he concluded that plaintiff failed to establish a prima facie case of national origin discrimination and retaliation under the LAD. Third, he applied the statute of limitations and barred plaintiff's claim that his 2004-05 performance evaluation was conducted unlawfully.
On appeal, plaintiff contends that the judge failed to understand the difference between his request for travel funds and a request from another professor. He argues that the motion judge "incorrectly stated" that he failed to demonstrate how courses were assigned, and that an inference of retaliatory motive existed. Plaintiff also argues that the judge failed to recognize that Boroff misapplied performance evaluation criteria.
Before turning to plaintiff's substantive arguments, we briefly describe the legal principles governing plaintiff's claims.
When reviewing a grant of summary judgment, we employ the same legal standards used by the motion judge. Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 180 (App. Div.), certif. denied, 196 N.J. 85 (2008); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine whether the moving party has demonstrated that there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). We view the evidence in the light most favorable to the non-moving party and analyze whether the moving party was entitled to judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523, 529 (1995).
We accord no deference to the motion judge's conclusions on issues of law, Manalapan Realty, L.P. v. Township Committee of Manalapan, 140 N.J. 366, 378 (1995), which we review de novo. Spring Creek, supra, 399 N.J. Super. at 180; Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007).
New Jersey's LAD declares unlawful discrimination in employment based on national origin. N.J.S.A. 10:5-12a. To establish a prima facie case of discrimination under the LAD, plaintiff must demonstrate: "'(1) that he . . . is a member of a protected class; (2) that he . . . was qualified for the job; (3) that he . . . was negatively affected by [SHU's decisions]; and (4) that he . . . was treated less favorably than employees not within the protected class.'" Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super. 55, 70 (App. Div. 2004), certif. denied, 183 N.J. 213 (2005) (quoting Murphy v. Hous. Auth. & Urban Redevelopment Agency of Atl. City, 32 F. Supp. 2d 753, 763 (D.N.J. 1999), aff'd, 208 F.3d 206 (3d Cir. 2000). If plaintiff establishes a prima facie case of discrimination, then the burden shifts to SHU to produce evidence of a legitimate, non-discriminatory reason for its actions. Ibid. (citing Mogull v. CB Commercial Real Estate Group, Inc., 162 N.J. 449, 462 (2000)). If SHU produces evidence of legitimate reasons for its actions, then plaintiff must prove that the reasons were a pretext for discrimination. Mandel, supra, 373 N.J. Super. at 70.
In addition to unlawful discrimination, retaliation against employees who file legal actions against their employers is actionable under the LAD. Jamison v. Rockaway Twp. Bd. of Educ., 242 N.J. Super. 436, 445 (App. Div. 1990). Pursuant to N.J.S.A. 10:5-12d, it is unlawful to "take reprisals against any person because that person has . . . filed a complaint, testified or assisted in any proceeding under [the LAD]. "[T]o establish a prima facie claim for retaliation under the LAD, plaintiff must demonstrate: (1) that he engaged in protected activity; (2) the activity was known to the employer; (3) plaintiff suffered an adverse employment decision; and (4) there existed a causal link between the protected activity and the adverse employment action." Young v. Hobart West Group, 385 N.J. Super. 448, 465 (App. Div. 2005) (citing Craig v. Suburban Cablevision, 140 N.J. Super 623, 629-30 (1995)). Like discrimination claims, if plaintiff establishes a prima facie case of retaliation, then SHU must "'articulate a legitimate, non-retaliatory reason for the decision.'" Ibid. (quoting Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 549 (App. Div. 1995)). "Thereafter, . . . plaintiff must come forward with evidence of a discriminatory motive of . . . [SHU], and demonstrate that the legitimate reason was merely a pretext for the underlying discriminatory motive." Romano, supra, 284 N.J. Super. at 549.
We now turn to plaintiff's argument that he established a prima facie case of employment discrimination and retaliation regarding his travel expenses, course reassignment, and performance evaluations. We do so looking at the facts and all reasonable inferences in the light most favorable to plaintiff, the non-moving party.
Plaintiff's first claim is that Boroff discriminated against him by "minutely" examining his request for travel funds. This claim arose from his trip to the University of Brunel in London to present a paper. He contends that she scrutinized his request more than those of any other professor at SHU. He produced no credible evidence demonstrating that Boroff examined his requests for travel funding differently than requests from other professors.
For this analysis, we accept that plaintiff demonstrated that he is a member of a protected class and was qualified for the job; however, he failed to demonstrate that he was affected negatively by Boroff's decisions and that he was treated less favorably than employees not within the protected class.
SHU required professors interested in travel funding to request it from its Institute for International Business. If requested timely, funding was available to professors for certain limited purposes. For example, funding was available to present new or substantially revised papers, not the same or very similar papers that had been presented previously. Plaintiff's request, however, was untimely and for the wrong purpose.
After he requested authorization for travel funding, Boroff determined that his proposed paper was not new or substantially revised, but rather, had been presented on more than one occasion. In a June 30, 2006 email to plaintiff, Boroff reminded him that his 2004-05 Faculty Annual Report and Plan (FARAP) provided him with notice of how travel funds were to be used.
Plaintiff admitted that he made several presentations of various versions of the same paper. He acknowledged that, at some point, SHU had no obligation to fund a professor's attempts to present a paper for publication.
Although he complained that Boroff discriminated against him by scrutinizing his request, she authorized that he be paid the balance available in his travel award for that year. He requested $776 and she approved $572. By the time he requested funding, there was no other money available for him. Boroff granted his request, even though it was untimely and he failed to present a new or substantially revised paper for the trip.
In opposition to SHU's summary judgment motion, plaintiff argued that he was the only professor whose request for funding was scrutinized. To show the purported disparate treatment, plaintiff compared how Boroff examined his request for travel funding with the way she reviewed requests made by Professor Lozada. However, unlike plaintiff, Lozada never requested travel reimbursement to present the same or similar paper for the fifth time. Plaintiff's comparison to Lozada is therefore misplaced.
On reconsideration, plaintiff argued for the first time that he was entitled to $204, the difference between his request of $776 and the $572 Boroff authorized; however, he failed to provide any credible evidence to suggest that he was entitled to $204.
Plaintiff's second claim is that Dall discriminated and retaliated against him by refusing to switch courses with him in the summer of 2006.
For our analysis of plaintiff's discrimination claim, we accept that plaintiff demonstrated that he is a member of a protected class and was qualified for the job. Plaintiff, however, failed to demonstrate the remaining elements of a prima facie case of discrimination. He did not prove that he was affected negatively by Dall's decision or was treated less favorably than employees not within the protected class.
Dall assigned the task of teaching summer 2006 courses to himself and to Dr. Ikpoh, the other full-time faculty member in the economics department. After the schedule was printed, plaintiff indicated his interest in teaching during that summer. Dall explained to plaintiff that there were no summer courses left to teach because they were all pre-assigned.
Thereafter, Dall learned that Ikpoh was no longer available to teach that summer, so he assigned Ikpoh's courses to plaintiff. Plaintiff demanded that SHU guarantee him $4,500 for each class. Dall was unable to meet that demand because plaintiff's summer salary depended on student enrollment, and the enrollment was unknown at the time. Plaintiff asked if Dall would switch courses with him, but Dall was unable to do so because his own schedule had been set for months.
Plaintiff contends that Dall was treated more favorably than he; however, the two were not similarly situated. Dall was the decision-maker and plaintiff a subordinate.
Regarding plaintiff's claim of retaliation for denying his request to switch courses with Dall, we accept that plaintiff satisfied two of the elements of a prima facie case. We presume that he was engaged in protected activity and the activity was known to SHU. Plaintiff inferred that because his lawsuit was pending a retaliatory motive existed. He filed Kant II years before May 2006 when Dall was unable to give him the summer course assignment he wanted. The motion judge held correctly that plaintiff cannot satisfy the required causal link between the protected activity, his filing the lawsuit, and an alleged adverse employment action, simply by showing temporal proximity existed between the two. Young, supra, 385 N.J. Super. at 467. "Only where the facts of the particular case are so 'unusually suggestive of retaliatory motive' may temporal proximity on its own, support an inference of causation." Ibid. (quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997)); accord Robinson v. City of Pittsburgh, 120 F.3d 1286, 1302 (3d Cir. 1997); see also Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989) (holding causal link established where "discharge followed rapidly, only two days later, upon Avdel's receipt of notice of Jalil's EEOC claim").
Plaintiff must establish other evidence to satisfy the causal link requirement. Young, supra, 385 N.J. Super. at 467. Here, the facts are not so "unusually suggestive of retaliatory motive." Therefore, plaintiff has not demonstrated a causal link between filing his lawsuit and Dall's summer 2006 teaching decisions.
Plaintiff's third claim is that Boroff retaliated against him by the way she interpreted his FARAP evaluations for academic years 2004-05, 2005-06, and 2006-07.*fn3 For this analysis, we accept that that he engaged in protected activity and the activity was known to the employer; however, he failed to produce any credible evidence that he suffered an adverse employment decision related to the protected activity.
The performance evaluations rate teachers in teaching, research and service. Plaintiff complained about the methodology Boroff used to rate him in the categories of teaching and research; however, Boroff employed the same standards for all faculty members that she used for plaintiff.
In the teaching category, students complete teacher course evaluations (TCEs) at the end of the semester for each course. According to the FARAP instructions, to "meet expectations" in teaching, a professor's TCE must meet the following criteria:
For item Number 24 of the TCE, 3.10 for all sections taught (Fall and Spring semesters). For each remaining item on the TCE, an AVERAGE of 3.10 across all sections for the Fall and Spring semesters.
The score on item number twenty-four is a compilation of responses from students. Higher TCE scores result in ratings of "exceeds expectations" and "outstanding." For the three academic years in question, plaintiff received a rating of "does not meet expectations" in teaching.
In the research category, the FARAP instructions designate several areas of scholarship for consideration over a two-year reporting cycle. To receive a "meets expectations" rating for research, a professor must have, in the past two years:
One article in an acceptable journal, OR two of the following: a conference presentation at a "top tier" conference; two presentations at above average or acceptable conferences; one academic book review or similar undertaking (perhaps a review of a text book for a publishing house); a proceeding publication. Both the content and the vehicle must be in the primary discipline.
For the three years he challenges, plaintiff received a "meets expectations" in the research category.
He produced no credible evidence that he suffered an adverse employment decision related to the protected activity. Plaintiff was not transferred, reassigned, demoted, fired or suspended, and suffered no reduction in rank, compensation or title. "[A] negative employment evaluation, unaccompanied by a tangible detriment, such as a salary reduction or job transfer, is insufficient to rise to the level of an adverse employment action." El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 176 (App. Div. 2005) (citing Cokus v. Bristol-Myers Squibb Co., 362 N.J. Super. 366, 378 (Law Div. 2002), aff'd, 362 N.J. Super. 245 (App. Div.), certif. denied, 178 N.J. 32 (2003). Plaintiff argues that his poor performance evaluations deprived him of teaching achievement grants, but he was ineligible to receive such grants because he failed to score "outstanding" on question twenty-four of the TCE.
Lastly, the judge applied the statute of limitations correctly and barred plaintiff's claim that his 2004-05 performance evaluation was conducted unlawfully. In August 2005 Boroff presented to plaintiff an unfavorable performance evaluation for the 2004-05 academic year. Plaintiff filed this complaint on October 26, 2007. The motion judge found that each performance evaluation was a discrete act and each was subject to a two-year statute of limitations under the LAD. "Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable 'unlawful employment practice.'" Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S.Ct. 2061, 2073, 153 L.Ed. 2d 106, 122 (2002).
After a thorough review of the record and consideration of the controlling legal principles, we conclude that plaintiff's remaining arguments*fn4 are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E).