NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 7, 2013
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1573-10.
Richard M. Pescatore argued the cause for plaintiff.
Kathryn J.H. Boardman, Deputy Attorney General, argued the cause for respondents (Jeffrey S. Chiesa, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Boardman, on the brief).
Before Judges Messano and Lihotz.
Plaintiff Joseph Canale, an employee of the State Department of Health and Human Services, alleged defendant State of New Jersey and his supervisor, defendant Gregory Roberts, committed retaliation prohibited by the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. On defendants' motion for summary judgment, the trial court dismissed plaintiff's complaint. Plaintiff appeals, arguing genuine issues of material fact were overlooked by the judge in concluding plaintiff failed to establish a prima facie case of retaliatory discrimination. We disagree and affirm.
The facts are taken from the summary judgment record, viewed in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Plaintiff, a white male, began working as a Therapy Aide at Ancora Psychiatric Hospital (Ancora), which is managed by the Department of Human Services, Division of Mental Health Services (DHS). Over the next fifteen to twenty years, plaintiff applied for and received several promotions, advancing from an Accountant 3 to an Analyst 2, Health Care Facilities, for another DHS-operated facility, Trenton Psychiatric Hospital (Trenton). In November 2004, plaintiff applied for and received another promotion, returning to Ancora as a provisional Administrative Analyst 1, a position he retained over the next four years.
In 2007, John Lubitsky, the Human Resources Director at Trenton, was hired as Deputy CEO, Support Services, at Ancora, thereby becoming plaintiff's supervisor. During his employment at Trenton, plaintiff had occasional interactions with Lubitsky, during which he never had problems.
However, in October 2007, shortly after Lubitsky became plaintiff's supervisor at Ancora, Lubitsky told plaintiff "he was placed there by Roberts[, Assistant Director of Mental Health, and then-acting CEO] to remove all the black administrators[, ]" which included plaintiff's former supervisor, CEO Latonya Wood El, and union president Anita Martin. When plaintiff asked what the problem was with the administrators, Lubitsky responded, "the niggers ran [Ancora] into the ground." Plaintiff stated he did not understand the problem with management operations and was "very uncomfortable to have the conversation" with Lubitsky. Plaintiff told Lubitsky he believed the administrators had done the best they could with the limited resources available, a notion which Lubitsky dismissed. Following the conversation, plaintiff told Wood El what Lubitsky said, and cautioned her to "be careful."
Plaintiff explained that from that point forward, his relationship with Lubitsky "didn't really go very well." Plaintiff and Lubitsky "had a few heated arguments . . . in reference to work stuff where [plaintiff] didn't necessarily agree with [Lubitsky's] comments or direction[s.]" However, plaintiff's primary issue related to three or four additional conversations with Lubitsky and Roberts regarding their alleged plan.
In November or December 2007, while plaintiff and Roberts were in Lubitsky's office discussing routine, work-related issues, Lubitsky and Roberts asked plaintiff, who had been on the CEO staff before Lubitsky and Roberts were transferred to Ancora, "to provide them with information to help them get rid of the black administrators." Specifically, they requested plaintiff provide them with the minutes from the CEO staff meetings prior to September 2007. Plaintiff told them he was not comfortable with the conversation, to which they replied, "Come on, be a team player, help us out, we need information, we need to know what was going on before we got here in order to help remove [the black administrators]." Although plaintiff was uncomfortable, though not "annoyed, " with the conversation, he did not object to their intentions, but rather stated he did not have any information to provide them.
Within two weeks following the office conversation, plaintiff told Deputy CEO of Clinical Services, Tracey Lavallis, he had overheard "they are going to try to get rid of some of the administration" and Lavallis should "be careful." Lavallis asked if it was because he is black, and plaintiff nodded. Plaintiff did not discuss Roberts and Lubitsky's plan with anyone else.
During his deposition, other than these two conversations, plaintiff did not relate "any other problems . . . with Mr. Lubitsky while he was [plaintiff's] supervisor at Ancora, " until September 2008. In fact, plaintiff admitted he liked Lubitsky and Roberts, and believed Lubitsky was a good supervisor.
In early 2008, plaintiff applied for permanent appointment as Administrative Analyst 1 (AA1). Plaintiff did not satisfy the minimum education or experience requirements for the AA1 promotion, and a desk audit revealed his then-current duties and responsibilities were inconsistent with his correct title, but were consistent with a different position — Supervisor, General and Support Services (SGSS). The State Department of Personnel (DOP) required plaintiff's assigned duties and responsibilities to be commensurate with his permanent title, or his position would be reclassified to SGSS. After a more detailed review, it was determined plaintiff's limited education and work experience was also insufficient for the SGSS position. As a result, plaintiff could not be promoted while at Ancora.
Plaintiff continued to actively seek promotional opportunities at other DHS facilities. In October 2007, he sent Lubitsky an email explaining his "current Strategic Plan [wa]s to become the Business Manager at [Trenton.]" In early 2008, plaintiff applied for that position, and on April 9, 2008, emailed Lubitsky, stating:
It is with great regret that I must inform you that I have accepted the position of Business Manager at Trenton Psychiatric Hospital. I would appreciate if we could work out a transition period between the two facilities, so I may finish some major projects that I am currently working on at Ancora and I may get adjusted to my new duties and responsibilities at Trenton. . . . I have talked to [Christopher] Morrison[, Deputy CEO] at Trenton . . . and he has agreed to me working there ...