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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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