August 23, 2011
BRUCE M. SKOORKA, PLAINTIFF-APPELLANT,
KEAN UNIVERSITY AND BOARD OF TRUSTEES OF KEAN UNIVERSITY, DEFENDANTS-RESPONDENTS, AND STATE OF NEW JERSEY, WILLIAM M. KEMPEY, OFFICIALLY AND INDIVIDUALLY, RONALD L. APPLBAUM, AS PRESIDENT OF KEAN UNIVERSITY AND INDIVIDUALLY, FRANK J. ESPOSITO, AS INTERIM PRESIDENT OF KEAN UNIVERSITY AND INDIVIDUALLY, KEAN FEDERATION OF TEACHERS AND COUNCIL OF NEW JERSEY STATE COLLEGE LOCALS, DEFENDANTS.
On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-5247-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 11, 2011
Before Judges Fuentes, Ashrafi and Newman.
Plaintiff Bruce Skoorka, who is Jewish and a member of the faculty at defendant Kean University, appeals decisions in favor of the university and its board of trustees following a lengthy trial. The jury rejected plaintiff's discrimination and retaliation claims seeking money damages, and the trial judge rejected the counts of his complaint seeking injunctive relief against the university's board of trustees based on allegations that his rights had been violated under the First and Fourteenth Amendments of the United States Constitution and equivalent rights under the New Jersey Constitution.
His case always weak, and the jury and the judge having heard it and spoken, plaintiff nevertheless pursues a scattershot appeal before us challenging numerous adverse rulings during the lengthy litigation and even matters that were never presented to the trial judge for a ruling. We now affirm the trial court's rulings and judgment in all respects.
Plaintiff is a tenured associate professor at Kean University in the School of Business and Public Administration, Economics and Finance Department. He has an M.B.A. and a Ph.D. in economics from New York University (NYU). He previously taught at Columbia University, NYU, and Yeshiva University. He came to Kean in 1996 as an untenured assistant professor.
At Kean, untenured professors went through a review and reappointment process every year until they were granted tenure or not reappointed. Peer review was conducted by the department chair and other professors. The university had an Appointment, Retention, Tenure and Promotion Committee (ARTP committee) to review faculty performance and to make recommendations to the president of the university, who then reported to the board of trustees.
Plaintiff's peers and the department chairperson, defendant William Kempey, gave him positive reviews from 1996 through 1998. In September 1999, however, Kempey reported on a class observation conducted the previous April at which he found plaintiff's teaching deficient, with insufficient explanation of key concepts, lack of student response, and a negative student attitude. Kempey also said that plaintiff was late to class and that students said he was always late. Plaintiff disagreed with the review, commenting that it was inaccurate and malicious. Another professor from the department, Carol Condon, had reviewed plaintiff's teaching at the same time as Kempey and rated plaintiff's lecture excellent.
In 2000, the ARTP committee did not recommend plaintiff for retention and tenure. Nevertheless, on December 13, 2000, Ronald Applbaum, the president of the university, notified plaintiff that the board of trustees had reappointed him for the 2001-02 academic year and had awarded him tenure.
The process for promotion was separate from that for tenure. A faculty member applied by submitting a promotion folder to the department's ARTP committee. The committee reviewed the folder and voted on a recommendation for promotion. Regardless of the vote, the request for promotion was considered by the University Promotion Committee (UPC), which consisted of twelve elected faculty members who were full professors, three students, and a non-voting union observer. The UPC evaluated the applications for promotion and made recommendations to the university president, ranking its perception of the top third of applicants. The president evaluated all applications and made a final determination of faculty members he would nominate for promotion by the board of trustees.
Plaintiff first applied in November 2000 to become an associate professor for the following academic year. His application, however, was submitted about four weeks after the deadline. Kempey returned it without consideration, based on the majority view of the department ARTP committee. Plaintiff then submitted his application directly to the UPC without the signatures of Kempey or other members of the department ARTP committee. While the application was pending, plaintiff spoke publicly about matters of public concern. For example, he expressed his belief that an African-American colleague had not been treated fairly.
On December 5, 2000, the UPC returned plaintiff's application to the department for review and a recommendation. Kempey voted against recommending plaintiff for promotion because plaintiff had only one publication in the eight years since he earned his Ph.D. The department ARTP committee also voted against recommending promotion. On December 14, 2000, the UPC considered plaintiff's application on its merits and determined that he met the qualifications for promotion, but it did not place plaintiff in the top third of candidates.
On January 12, 2001, President Applbaum wrote to plaintiff that he would not be nominating plaintiff for promotion. Instead, Applbaum nominated twelve candidates for promotion to associate professor who he believed had better records than plaintiff.
Having been awarded tenure but not recommended for promotion, plaintiff filed a complaint with Kean's Affirmative Action Office on January 16, 2001. On April 16, 2001, he amended his complaint to add an allegation of religious discrimination.
For the next promotion opportunity, plaintiff wrote to Dean Charles Anderson on October 12, 2001, requesting the appointment of a special committee in accordance with the bylaws of the UPC to review his application for promotion to associate professor. Plaintiff asserted that Kempey could not be impartial. Anderson granted plaintiff's request and appointed five professors, including Condon, to a special committee to review plaintiff's application. Subsequently, two of those professors boycotted the special committee. The other three voted in favor of plaintiff's promotion.
The chair of the UPC at that time also supported plaintiff's application. On December 7, 2001, the chair wrote to plaintiff that the committee had determined he was qualified to be promoted to associate professor but had not placed him in the top third of candidates.
In January 2002, President Applbaum reviewed and rated the file of each candidate for promotion. He nominated nine candidates for associate professor out of the twenty who had applied. Plaintiff was not one of the nominees. On January 18, 2002, plaintiff wrote to Applbaum, accusing him of participating in continuing discrimination, harassment, and retaliation against plaintiff. On February 4, 2002, Applbaum wrote back that, although plaintiff was qualified, his record when compared to others in the pool of candidates did not warrant promotion.
Plaintiff's first complaint initiating a lawsuit in the Superior Court was filed before this last denial of promotion, on November 28, 2001. He alleged discrimination and retaliation under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, and violations of the United States and New Jersey Constitutions. In addition to the university and the board of trustees, he named Kempey and Applbaum as defendants. He later filed an amended complaint adding as defendants the Kean Federation of Teachers and its parent union, the Council of New Jersey State College Locals. He alleged the unions had acted in concert with university officials to discriminate and retaliate against him. A final amended complaint, filed in 2004, alleged nine counts:
Count 1: Defendants denied plaintiff a promotion in retaliation for his complaints, in violation of CEPA;
Count 2: Defendants discriminated against plaintiff because of his religion, in violation of the LAD;
Count 3: Defendants retaliated against plaintiff for objecting to their improper conduct, in violation of the LAD;
Counts 4 and 7: Defendants retaliated against plaintiff for speaking about matters of public concern, in violation of N.J.
Const. art. 1, ¶ 6 and U.S. Const. amend. I;
Counts 5 and 8: Defendants, under color of state law, retaliated against plaintiff for petitioning for redress of grievances, in violation of N.J. Const. art. 1, ¶ 18 and U.S. Const. amend. I;
Counts 6 and 9: Defendants abused their power and treated plaintiff disparately, which was "discriminatory and retaliatory," in violation of N.J. Const. art. 1, ¶ 1 and U.S. Const. amend. XIV.
The union defendants were eventually dismissed from the case by orders for summary judgment in their favor. In pretrial proceedings, the trial court denied discovery of the promotion and personnel files of some Kean faculty members and granted discovery pertaining to others. It also denied plaintiff's request to depose a former African-American faculty member. Subsequently, the court granted partial summary judgment to the Kean defendants on some counts of the amended complaint, and the case proceeded to trial in October 2005 on the remaining counts.
After some adverse rulings during the trial, plaintiff decided to dismiss the claims being tried and instead to appeal from the orders dismissing other claims before trial.
In August 2007, a panel of this court affirmed in part and reversed in part the trial court's rulings. Skoorka v. Kean Univ., No. A-1654-05 (App. Div. Aug. 30, 2007) (slip op. at 14-15), certif. denied, 194 N.J. 269, cert. denied, 555 U.S. 817, 129 S. Ct. 71, 172 L. Ed. 2d 28 (2008). The panel held that those claims plaintiff had voluntarily dismissed could not be reinstated. Id. at 21-24. However, it reversed: (1) dismissal by summary judgment of plaintiff's claim of religious discrimination under the LAD for failure to promote him to associate professor; (2) dismissal by summary judgment of the claim against the board of trustees for injunctive relief arising out of plaintiff's First Amendment right to free speech, namely, that he was subject to retaliation for speaking out on matters of public concern and exercising his right of petition; (3) dismissal by summary judgment of the claim under the Equal Protection Clause of the Fourteenth Amendment based upon religious discrimination; (4) a May 28, 2004, order denying discovery of the promotion and personnel files of certain faculty; and (5) a March 18, 2005, order denying plaintiff's motion to depose the African-American former faculty member.
Id. at 64-65. Thus, this court's prior decision permitted some additional discovery on remand and then trial to resolve factual issues in dispute as to religious discrimination under the LAD and constitutional claims.
On remand, Judge Anzaldi made a number of discovery rulings, which plaintiff now challenges on this appeal. The second trial was held from April 28 to June 8, 2009, before Judge Chrystal and a jury. Near the end of the trial, Judge Chrystal dismissed the Fourteenth Amendment claim and found no ground for injunctive relief on the First Amendment claim. The jury's verdict found no religious discrimination and, therefore, no cause of action under the LAD.
In the first appeal, this court determined that defendants must produce promotional and personnel files of twenty-one candidates for promotion. Skoorka, supra, slip op. at 65. We also stated, however: "The trial court shall review the files in advance of disclosure to ensure that only materials relevant to plaintiff's promotion claims are released." Ibid.
After remand, defendants produced the files for the twenty-one faculty members who were recommended for promotion ahead of plaintiff. Judge Anzaldi reviewed files requested of five other faculty members and ordered certain documents to be disclosed to plaintiff. Plaintiff contends the ruling was error because he was entitled to all the materials he requested, not just peer reviews. Plaintiff asserts the withheld personnel files contain documents demonstrating he was more qualified than other faculty members for promotion and that some faculty members should not even have been hired or retained, let alone tenured and promoted.
Plaintiff's view of his discovery rights is distorted and self-serving. He is mistaken that disclosure ordered by Judge Anzaldi was limited to peer reviews; the judge also released other materials dealing with promotion and the alleged tampering of department chair Kempey with plaintiff's promotion file. Judge Anzaldi followed our directive in reviewing files and determining what was relevant to plaintiff's claims. He did not abuse his discretion in denying plaintiff's broad request for discovery of all personnel files of faculty members.
Plaintiff also sought the following discovery sanctions because the files had not been timely produced before the first trial: (1) that the court reinstate claims and defendants plaintiff had previously dismissed voluntarily and this court had ruled could not be reinstated; (2) that defendants' answer be suppressed; (3) that default judgment be entered in plaintiff's favor; (4) that attorneys' fees in the amount of $27,463.41 be awarded; and (5) that further proceedings be conducted only to determine an appropriate award of damages and other relief in plaintiff's favor.
On January 16, 2009, Judge Anzaldi issued a letter-opinion in which he stated that "some materials which would be relevant and discoverable in this case were in fact not previously provided by defendants," but "most of the relief sought is not warranted." On February 27, 2009, the judge ordered that defendants pay plaintiff $3,150 for attorney's fees resulting from the discovery violations.
We "generally defer to a trial court's disposition of discovery matters unless the court has abused its discretion or its determination is based on a mistaken understanding of the applicable law." Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 (2005). It is well-settled that the sanction of dismissal of a pleading with prejudice should be one of last resort, reserved for the most egregious violations of procedural rules. Kosmowski v. Atlantic City Med. Ctr., 175 N.J. 568, 575 (2003). The court must consider lesser sanctions unless it finds specifically that the delinquent conduct caused serious prejudice to an adverse party or the administration of justice. Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 116 (2005).
Judge Anzaldi did not abuse his discretion in ordering limited counsel fees and costs. Furthermore, plaintiff has made no showing that late disclosure of the files would justify reinstatement of claims and defendants that he previously dismissed in order to avail himself of the right to the prior appeal. We conclude there was no reversible error in the trial court's pretrial discovery rulings.
Plaintiff raises numerous points of alleged error in Judge Chrystal's rulings on admission of evidence and other objections at the trial. The parties agreed at the beginning of trial that incidents that occurred after denial of plaintiff's applications for promotion, the second of which occurred shortly before February 2002, would not be admissible regarding the reasoning behind the two denials of promotion. Plaintiff presents ten instances where he contends the defense breached this agreement.
Several of the incidents were not the subject of objection at trial. As to them, the plain error standard of review applies. State v. Daniels, 182 N.J. 80, 95 (2004). Errors not of constitutional magnitude will be disregarded unless "clearly capable of producing an unjust result." R. 2:10-2.
Plaintiff complains that defense counsel asked him in cross-examination if he had investigated a faculty member named Tully. Defendants assert the cross-examination was proper to substantiate their contention that plaintiff had a negative work attitude and that he engaged in extreme office politics, often looking to have co-workers terminated. Plaintiff also contends it was error for defense counsel to ask plaintiff about changing a grade of an Asian student sometime after 2002. Defense counsel asked why plaintiff classified individuals by their racial, religious, or gender identification. Next, plaintiff complains that defense counsel asked Professor Condon, who testified on behalf of plaintiff, whether she had sued Seton Hall University for discrimination. Defense counsel also asked Condon if she had suggested to plaintiff that he pursue litigation as a tactic. Plaintiff now contends that the judge should have instructed the jury to disregard this testimony, but plaintiff's counsel did not object to the questioning now complained of. We find no plain error in permitting any of the questions on cross-examination that plaintiff challenges on appeal.
Next, plaintiff contends defense counsel attempted to use documents from the post-February 2002 period to raise inadmissible matters. Argument regarding the documents occurred outside the presence of the jury. It concerned three documents not placed in evidence, and the judge made no ruling. Because the jury did not see the documents, they could not have contributed to the result of the trial.
A number of evidentiary issues now raised on appeal were the subject of objection by plaintiff's attorney at trial, but the objections were overruled. "Traditional rules of appellate review require substantial deference to a trial court's evidentiary rulings." Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (1999) (quoting State v. Morton, 155 N.J. 383, 453 (1998)), certif. denied, 163 N.J. 79 (2000). Appellate review is limited "to examining the decision for abuse of discretion." Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008); see also Estate of Hanges v. Met. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010) (collecting appellate cases under several rules of evidence applying the abuse of discretion standard of review). A trial court can be said to have abused its discretion when "its finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).
Plaintiff contends it was error for the trial court to allow testimony in cross-examination of his witness Condon about the investigation plaintiff and Condon had conducted of faculty member Tully. Plaintiff's counsel objected and the judge held a sidebar conference. Defense counsel argued that he was not offering the evidence to prove or disprove plaintiff's qualifications for promotion, but to attack the credibility of plaintiff's allegations that Kempey was prejudiced against Jewish people because he was late in signing plaintiff's tenure file. Defense counsel alleged that if plaintiff had improperly inserted himself into the tenure process of a colleague, his complaint about the minor issue of the signing of his own tenure file by Kempey was a question of credibility. Judge Chrystal allowed the testimony as bearing on credibility of plaintiff's accusation against Kempey and also as rebuttal because plaintiff had testified on this topic. We discern no error in the judge's rulings.
Next, plaintiff asserts it was improper for Judge Chrystal to allow defense counsel to question Kempey about plaintiff's complaints of race discrimination against David Yamoah, an African-American former dean. Plaintiff objected to this questioning, contending it was false and concerned post-2002 matters. Judge Chrystal allowed the evidence for credibility purposes only in support of defendants' contention that plaintiff's allegations were not true that Kempey was prejudiced against African-Americans and disliked plaintiff because he sided with African-American faculty. The questioning was relevant to show that plaintiff was complaining about both Yamoah and Kempey, and thus, his complaints were not based on alleged racial discrimination by Kempey.
Nor was there error in the judge's denial of plaintiff's motion for a mistrial on the basis of that questioning. A trial court's denial of a motion for a mistrial is reviewed under the abuse of discretion standard. State v. Winter, 96 N.J. 640, 647 (1984). A mistrial may be required only if the prejudice cannot be cured by instruction to the jury or another remedy. Ibid. Here, plaintiff's counsel requested a short curative instruction that Kempey's testimony should only be considered for credibility and not on the merits of the promotion issue. Defense counsel did not object, and Judge Chrystal gave a curative instruction. Her decision to allow the evidence for credibility purposes was not a clear abuse of discretion, and the curative instruction was sufficient.
Plaintiff also complains about one incident where his objection was sustained. Defense counsel asked plaintiff about statements he had made indicating he would no longer serve on committees until his lawsuit was concluded. Plaintiff objected, Judge Chrystal sustained the objection, and defense counsel moved on. There was clearly no prejudicial error that requires a new trial.
Plaintiff raises matters on appeal that were resolved at trial through the agreement of counsel. Defense counsel asked plaintiff about September 2002 notes in which plaintiff wrote that a female faculty member "is a housewife first, and college teacher second." Plaintiff's counsel objected when he thought the note was being offered in evidence. The parties settled their dispute during a break and the court did not rule on the issue.
Next, plaintiff complains that defense counsel questioned him whether he believed the Montclair Police Department had conspired against him. Specifically, plaintiff's counsel objected to a question about an April 2002 parking ticket, which defense counsel asserted was relevant to plaintiff's state of mind concerning an accusation that the police issued the ticket in retaliation for plaintiff's lawsuit. Counsel did not agree on the admissibility of this testimony and defense counsel withdrew the question. The judge did not make a ruling.
Plaintiff alleges error in defense counsel's eliciting testimony from Yamoah that plaintiff accused him of harassment. Plaintiff objected, stating that the question would elicit post-2002 testimony. Defense counsel revised his question and limited it to the period before 2002. Yamoah answered that there was no accusation in that period and counsel moved on without further comment or question. Plaintiff complains that the judge did not strike testimony, but he did not move to strike or ask for a curative instruction.
While there is potential for prejudice simply by the asking of an improper question in the jury's presence, none of the alleged errors rises to the level of prejudicial error in the trial. Curative instructions were given when requested and addressed any potential prejudice. They would have served the same purpose if they had been requested on other issues now raised on appeal. In sum, we conclude that none of the several errors alleged as to defense counsel's questioning of witnesses about post-February 2002 matters requires reversal of the judgment and a new trial.
Plaintiff argues that Judge Chrystal erred in excluding from evidence promotion applications of faculty members who were less qualified than he but promoted ahead of him. He asserts these applications were highly relevant to proving his claims of discrimination because he is Jewish and because he exercised his First Amendment right to speak on issues of public concern.
Plaintiff attempted to offer materials from applications for promotion of five faculty members. He did not call any of these individuals to testify and did not identify them as witnesses in his pretrial disclosure. Instead, at trial plaintiff's counsel asked him to identify one of the promotion applications intending to elicit plaintiff's testimony as to whose qualifications were superior. At sidebar, Judge Chrystal ruled that plaintiff could not testify about why he was more qualified than other candidates by the use of other faculty members' promotion files. She viewed such evidence to be in the nature of expert testimony, which plaintiff was not qualified to provide. We find no abuse of the trial judge's discretion in that ruling.
"Lay testimony may not usurp the function of expert opinion." Alpine Country Club v. Borough of Demarest, 354 N.J. Super. 387, 394 (App. Div. 2002). N.J.R.E. 702 provides: "If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." N.J.R.E. 701 provides: "If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." A lay witness can offer an opinion regarding matters of common knowledge and observation. See, e.g., State v. Bealor, 187 N.J. 574, 586 (2006) (whether someone is under the influence of alcohol). But where specialized knowledge is required, such as which member of a faculty is more qualified for promotion, lay opinion testimony will not assist the jury, and it is therefore inadmissible.
Plaintiff is correct that case law supports the admission of comparative evidence on the promotion of other candidates. See Dixon v. Rutgers, The State Univ. of N.J., 110 N.J. 432, 435-37 (1988); Baker v. Nat'l State Bank, 312 N.J. Super. 268, 296 (App. Div. 1998), aff'd in part and remanded in part, 161 N.J. 220 (1999); Rendine v. Pantzer, 276 N.J. Super. 398, 433 (App. Div. 1994), aff'd as modified, 141 N.J. 292 (1995); Kunda v. Muhlenberg College, 621 F.2d 532, 534-35, 538-39 (3d Cir. 1980). Judge Chrystal did not preclude plaintiff from presenting evidence that other candidates were promoted with lesser qualifications. Plaintiff simply failed to present an expert, or sufficient testimony from the decision makers, to prove his contention. He sought instead to present his own subjective opinion on why he was superior to other candidates.
To satisfy the requirement of personal knowledge, that the opinion be rationally based on the perceptions of the witness, the lay witness must establish "actual knowledge, acquired through his or her senses, of the matter to which he or she testifies." State v. LaBrutto, 114 N.J. 187, 197 (1989). Plaintiff's biased viewpoint was not actual knowledge and did not qualify him to give lay opinion testimony on the relative qualifications of candidates for promotion.
Plaintiff further claims that Judge Chrystal erroneously precluded Dean Anderson from testifying about qualifications of faculty who were promoted. That testimony was not admitted because Anderson had no involvement in the promotion process at Kean. Nor was he an expert in human relations or a witness with personal knowledge of the reasons certain faculty members were promoted and others were not.
Plaintiff also asserts that Judge Chrystal erroneously limited plaintiff's counsel from questioning a member of the UPC, Bert Wailoo, about candidates' promotion files. At sidebar, the judge said she would allow testimony about why individuals were recommended by the UPC to be in the top third of candidates and why plaintiff was not so placed. She limited questioning on that subject to a few questions about each candidate's qualifications because plaintiff had already testified he did not believe the UPC discriminated against him.
Although plaintiff contends now he was barred from fully exploring this line of questioning under the judge's prejudicial
"two question limit," the record shows that counsel was not cut off and did not follow up on Wailoo's answers. In addition, plaintiff's counsel also questioned Jose Sanchez, another former member of the UPC, who explained his reasons for voting in favor of plaintiff's application and his reason for his votes on other candidates. Condon, too, explained why she voted in favor of promoting plaintiff and her votes on other candidates. Thus, the jury and judge heard testimony about the plaintiff's qualifications and those of other candidates for promotion.
A trial judge is given wide discretion to control courtroom proceedings, circumscribed by the judge's responsibility to act reasonably. State v. Cusumano, 369 N.J. Super. 305, 311 (App. Div.), certif. denied, 181 N.J. 546 (2004). We discern no abuse of discretion in the judge's limiting of questioning pertaining to qualifications of other candidates for promotion.
Finally on this point, Judge Chrystal quoted the decision of the United State District Court in Sarmiento v. Montclair State University, 513 F. Supp. 2d 72 (D.N.J. 2007), aff'd, 285 Fed. Appx. 905 (3d Cir. 2008), cert. denied, 555 U.S. 1144, 129 S. Ct. 1015, 173 L. Ed. 2d 305 (2009):
Ultimately, Plaintiff's dissection of the finalists' applications reflects only his own post-hoc, subjective evaluation of their credentials relative to his own. . . .
[H]is arguments boil down to a disagreement with how the Committee should have viewed and evaluated their applications versus his own. However, "Plaintiff's subjective belief that he was more qualified for the job does not create an issue of fact for the jury." Dungee [v. Northeast Foods], 940 F. Supp. [682,] 689 [(D.N.J. 1996)]. The court's role is to determine whether [the employer]'s decision was rational and non-discriminatory. It is not the function of this court to second-guess hiring decisions concerning the relative qualifications of competing applicants and subjectively weigh factors that the plaintiff or the court considers important. See Keller [v. Orix Credit Alliance], 130 F.3d [1101,] 1109 [(3d Cir. 1997); . . .
In sum, under the circumstances of this case, the court cannot conclude that plaintiff's qualifications were so overwhelming that no rational factfinder could have failed to interview and hire him above the three finalists. See McCoy v. WGN Cont'l Broad. Co., 957 F.2d 368, 373 (7th Cir. 1992) (noting that a court does not function as a "super-personnel department" that reexamines an entity's business decisions). Plaintiff has not established that the strength of his credentials alone could serve as the basis for a finding that [the employer]'s decision was "so plainly wrong that it cannot have been the employer's real reason." Keller, 130 F.3d at 1109. [Id. at 89.]
We agree with this assessment of such testimony by a plaintiff in a discrimination case.
Plaintiff failed to present expert or fact witnesses with knowledge of criteria for promotion to testify about the applications of other faculty members who were promoted ahead of him. There was no abuse of discretion in Judge Chrystal's exclusion of parts of that evidence through plaintiff's own testimony.
Next, plaintiff argues Judge Chrystal erred in denying his request for an adverse inference instruction regarding alleged discovery violations by defendants.
The judge rejected the charge stating that without evidence that defendants intentionally hid or destroyed evidence pertaining to personnel or promotion files, the charge would be confusing and misleading to the jury, and this court had already addressed the claim. Our prior opinion addressed plaintiff's discovery motions and found the claims of spoliation were without sufficient merit to warrant discussion in a written opinion. Skoorka, supra, slip op. at 20, 55-61, 65. There was no abuse of discretion in Judge Chrystal's declining to give an adverse inference charge to the jury. See Gonzalez, supra, 185 N.J. at 113.
Plaintiff claims error in Judge Chrystal's bench decisions at the conclusion of trial dismissing his claims for relief under the First and Fourteenth Amendments and the New Jersey State Constitution.
In reviewing the evidence supporting the First Amendment claims, the judge determined that it was unrebutted that the board of trustees had no direct role in denying promotion and only acted on recommendation of the university president. Because the board of trustees had not denied promotion to plaintiff, injunctive relief against it was not warranted.
An appellate court does "not disturb the factual findings and legal conclusions of the trial judge unless . . . convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). Judge Chrystal's determination is supported by the record and statutory authority. Here, the board of trustees never acted and did not have the authority to act on plaintiff's promotion application because Applbaum did not recommend plaintiff for promotion.
N.J.S.A. 18A:64-6(i) provides that the board of trustees of a state college shall have the power and duty to: Upon nomination by the president, appoint, remove, promote and transfer such other officers, agents or employees as may be required for carrying out the purposes of the college and assign their duties, determine their salaries and prescribe qualifications for all positions, all in accordance with the provisions of Title 11, Civil Service, of the Revised Statutes[.]
Since the board of trustees took no action against plaintiff, plaintiff's claim for injunctive relief against the board had no merit.
Plaintiff argues that Judge Chrystal erred in dismissing his equal protection claim under the Fourteenth Amendment for religious discrimination. The judge may have misread our prior decision, which reinstated that claim. At the charge conference, plaintiff's attorney did not object when defense counsel stated the constitutional claim had been disposed of in the prior appeal and need not be separately included on the jury verdict sheet.
In considering plaintiff's LAD claim, the jury answered the following question on the verdict sheet: "Do you find that the plaintiff Bruce Skoorka has proven that it is more likely than not that Kean University engaged in intentional discrimination by not promoting him because he is Jewish, yes or no?" By vote of eight to zero, the jury answered "no." Thus, the merits of plaintiff's claims of religious discrimination were addressed by the jury. Because the jury found religious discrimination had not been proven, dismissal of the equal protection claim was not error.
Plaintiff raises yet several other issues, mainly pertaining to evidentiary matters at trial. We do not find sufficient merit in any other points of contention to discuss them in a written opinion. R. 2:11-3(e)(1)(E).
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