August 20, 2013
AARON SANDERS, Plaintiff-Appellant,
UNIVERSITY OF MEDICINE & DENTISTRY OF NEW JERSEY,  Defendant-Respondent, and CATHERINE BOLDER, VP, Defendant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 20, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1877-09.
Susan E. Babb and Dennis K. Kuroishi, attorneys for appellant.
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Melissa Raksa, Assistant Attorney General, of counsel; Noreen P. Kemether, Deputy Attorney General, on the brief).
Before Judges Simonelli and Accurso.
In this employment matter, plaintiff Aaron Sanders appeals from the November 4, 2011 Law Division order, which granted summary judgment to defendant University of Medicine and Dentistry of New Jersey (UMDNJ) and dismissed with prejudice plaintiff's remaining claims of race discrimination-based failure-to-hire and retaliation in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. On appeal, plaintiff contends the trial judge did not properly apply the burden-shifting analysis applicable to his claims, the judge failed to afford him all reasonable inferences, and he presented adequate proof to withstand summary judgment. We disagree with these contentions and affirm.
The competent evidence in the record reveals the following. From approximately July 2000 to April 2007, plaintiff, an African-American, was employed in the at-will position of manager of the Affirmative Action/Equal Employment Opportunity (AA/EEO) Office at the School of Osteopathic Medicine (UMDNJ-SOM or the Stratford Campus). His responsibilities included investigating employee complaints of discrimination and harassment. UMDNJ's then Associate Vice-President of AA/EEO, Catherine Bolder (Bolder), an African-American, was plaintiff's direct supervisor. Her office was located at UMDNJ's Newark Campus. Until 2007, Bolder supervised all of UMDNJ's AA/EEO Offices, which were located on the Stratford and Newark Campuses and the New Brunswick Campus.
Plaintiff alleged that Bolder and the former Dean of UMDNJ-SOM, R. Michael Gallagher (Gallagher), conspired to eliminate all of the AA/EEO Offices and prevent plaintiff's re-hire in another UMDNJ position in retaliation for plaintiff's participation in a federal investigation involving Gallagher and reporting of discrimination complaints plaintiff had investigated and found meritorious. Plaintiff also claimed that UMDNJ failed to re-hire him based on race discrimination.
In December 2005, a federal monitor was appointed to investigate Medicaid fraud and other financial improprieties at UMDNJ. The investigation did not include the AA/EEO Offices. On September 18, 2006, the federal monitor issued a report, which revealed that Gallagher had arranged a salaried "no-show" job for former New Jersey State Senator Wayne Bryant in exchange for Bryant steering State funds to UMDNJ-SOM. As a result, in November 2006, UMDNJ began proceedings to revoke Gallagher's tenure and terminate his employment.
Plaintiff claimed that on November 28, 2006, he told attorneys involved in the de-tenure and termination proceedings about employee discrimination and harassment complaints involving Gallagher and Gallagher's attempt to influence the outcome of AA/EEO investigations. By this time, however, the federal monitor had already reported Gallagher's improper conduct and UMDNJ had begun proceedings to de-tenure and terminate him. In addition, plaintiff presented no evidence of the alleged complaints involving Gallagher and did not explain how his involvement in the de-tenure and termination proceedings constituted protected activity or resulted in retaliation against him.
After completing an investigation of an employee's complaint, plaintiff prepared a draft report summarizing his findings and conclusions, which he submitted to Bolder. Plaintiff claimed that on November 28, 2006, he reported to Jim DiGiulio (DiGiulio), who plaintiff said was a representative of the federal monitor, that Bolder was rejecting or delaying resolution of the draft reports that found merit to the claims until after the employee was terminated. However, DiGiulio was affiliated with a forensic accounting firm and there was no evidence he was a representative of the federal monitor or UMDNJ.
To support his allegation of Bolder's improper conduct, plaintiff pointed to the draft report of his investigation of a complaint filed by Gwendolyn Calder-Layne (Calder-Layne) in August 2005, alleging she was laid off in retaliation for her racial discrimination complaints against her supervisor. Calder-Layne also alleged that her layoff was contrived because her supervisor and Gallagher were aware of the complaints. Plaintiff found merit to Calder-Layne's complaint. He claimed that Bolder rejected the draft report and told plaintiff he was "on thin ice." However, Gallagher was not named as a respondent in the Calder-Layne complaint and plaintiff made no finding Gallagher had engaged in any wrongdoing. In addition, plaintiff did not submit the draft report to Bolder until November 7, 2006, which was after Calder-Layne was terminated.
Plaintiff also pointed to three other investigations and draft reports. Of these reports, only one contained a finding of discrimination against a low-level clerical supervisor. Plaintiff did not submit that report to Bolder until April 5, 2007, and thus, it could have not been the subject of his conversation with DiGiulio. The two other draft reports were incomplete and contained no findings of discrimination or any indication plaintiff had submitted them to Bolder.
UMDNJ was facing budgetary constraints brought about, in part, by the federal investigation. As a result, in April 2007, UMDNJ decided to reorganize its labor and personnel functions. UMDNJ established a centralized Office of Ethics and Compliance to receive and manage all types of internal complaints. Under the reorganization plan, all labor and employment-related matters would be directed to a newly-established Labor and Employment Group, a self-contained unit within the Office of Legal Management. The Labor and Employment Group reported to UMDNJ's General Counsel.
The reorganization resulted in the elimination of the AA/EEO Offices at all three campuses; the elimination of all staff positions at the Stratford and New Brunswick Campuses; and the elimination of all staff positions at the Newark Campus, except Bolder's position and a clerical position. In place of the AA/EEO Office, UMDNJ established the Office of Workplace Diversity, whose function was limited to "front-end recruiting, formulation of affirmative action plans and related reports and assisting with reasonable accommodation requests."
Following the reorganization, Bolder became the Associate Vice-President of the Office of Workplace Diversity. Of the ten AA/EEO employees whose jobs were eliminated as a result of the reorganization, four were re-hired in positions outside the AA/EEO field, one was re-hired in the Workplace Diversity Office, and two, who were attorneys, were re-hired in the Labor and Employment Group.
Plaintiff did not apply for the positions the re-hired employees acquired; he applied for two positions outside the AA/EEO field: Compliance Investigator, and Human Resources Generalist. The Compliance Investigator position included the following responsibilities:
independently conducting criminal, civil and administrative investigations and investigations involving suspected violations of University or civil regulations or laws. . . . Investigates violations of law leading to the apprehension and arrest of offenders. Prepares reports to prosecutors, and assists in the preparation of court cases.
UMDNJ hired Alan Roseman (Roseman) for the position. The record contains no pre-hiring document that indicated Roseman's race/ethnicity. The pre-hiring documents indicated that Roseman had over twenty-five years' experience as a workers' compensation/insurance investigator, including conducting field investigations and assisting in litigation and trial preparation.
The Human Resources Generalist position included the following responsibilities:
a variety of Human Resources services at the professional level . . . effective recruitment activities and functions as a business liaison and information resource for benefits, employee/labor relations, compensation administration, performance management, HRIS reports, terminations and layoffs.
UMDNJ hired "Adriana B." for the position. There is no document indicating "Adriana B.'s" race/ethnicity. The pre-hiring documents indicated that she had been employed at UMDNJ as a Human Resources Representative since 2004, where she assisted the Human Resource Generalists, and was also already performing several of the position's job responsibilities.
Plaintiff claimed he was qualified for the two positions but UMDNJ failed to hire him based on race discrimination. As proof he was qualified, he pointed to his experience working at UMDNJ and a computer printout of a ranking system used to assess job applicants. For plaintiff, the computer printout listed a score of 100% and a rank of "competitive" for the Compliance Investigator position, and a score of 67% for the Human Resources Generalist position, which was the same score attained by "Adriana B." However, the computer printout was merely a summary of data submitted by an applicant in an online application, and thus, was nothing more than the applicant's self-evaluation and personal belief that he/she was qualified for the position. The score and ranking were not the result of an objective evaluation by UMDNJ of the applicant's experience in comparison to the job description. In addition, the computer printout did not contain any information about an applicant's race, age, gender or other protected status.
In order to determine meaningful qualifications, an applicant's resume had to be reviewed in comparison to the requirements of the position for which he or she applied. Plaintiff's resume indicated that his experience was limited to the AA/EEO field, where his duties included interpreting an AA plan, enhancing diversity and providing sensitivity training; his investigation experience was limited to charges of sexual harassment, racial discrimination, and other allegations of harassment; and he had never worked as a compliance officer, could not recall having ever conducted a compliance investigation regarding issues other than discrimination, and had no litigation or trial preparation experience. He also lacked experience with Human Resources functions other than AA/EEO.
Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Nicholas v. Mynster, 213 N.J. 463, 477-78 (2013); Tymczyszyn v. Columbus Gardens, 422 N.J.Super. 253, 261 (App. Div. 2011), certif. denied, 209 N.J. 98 (2012). Thus, we consider "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co., 142 N.J. 520, 536 (1995)). Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J.Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008). We review issues of law de novo and accord no deference to the trial judge's conclusions on issues of law. Nicholas, supra, 213 N.J. at 478 (citing Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009)).
New Jersey courts employ two methods to determine whether discrimination occurred: (1) the "burden-shifting" or "pretext" analysis under McDonnell Douglas v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668, 677-79 (1973); and (2) the "mixed motives" analysis under Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45, 109 S.Ct. 1775, 1787-88, 104 L.Ed.2d 268, 284 (1989). Under both methods, the plaintiff must first prove the prima facie elements of the discrimination claim asserted before burden-shifting occurs. Price Waterhouse, supra, 490 U.S. at 244, 109 S.Ct. at 1787-88, 104 L.Ed.2d 284-85; McDonnell Douglas, supra, 411 U.S. at 802, 93 S.Ct. at 1824, 36 L.Ed.2d at 677-78. After presenting a prima facie case under the "mixed-motive" method, the plaintiff must also prove that discrimination was a motivating factor in the employment decision. Price Waterhouse, supra, 490 U.S. at 244-45, 109 S.Ct. at 1787-88, 104 L.Ed.2d at 284.
To establish an LAD retaliation claim, the plaintiff must prove that: "(1) plaintiff engaged in a protected activity known by the employer; (2) thereafter the employer unlawfully retaliated against plaintiff; and (3) plaintiff's participation in the protected activity caused the retaliation." Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 332 (2010) (quoting Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 125 (2008)). In order to establish that the plaintiff was engaged in protected activity, the plaintiff must show that he/she opposed a practice "rendered unlawful under the LAD." N.J.S.A. 10:5-12d; see also Young v. Hobart West Group, 385 N.J.Super. 448, 466 (App. Div. 2005).
To establish a discriminatory failure-to-hire claim, the plaintiff must prove that: (1) plaintiff falls within a protected class; (2) plaintiff was qualified for the work for which he/she applied; (3) plaintiff was not hired; and (4) the employer continued to seek others with the same qualifications or hired someone with the same or lesser qualifications who was not in the protected status. Victor v. State, 203 N.J. 383, 408-09 (2010).
We are satisfied that affording plaintiff all favorable inferences from the evidence, he cannot prove either of his claims. As for his LAD retaliation claim, plaintiff cannot prove he was engaged in protected activity. Even assuming DiGiulio was connected to the federal monitor, there was no evidence that Bolder or Gallagher engaged in any activity or practice rendered unlawful under the LAD. Plaintiff also cannot prove that UMDNJ knew of his conversation with DiGiulio before plaintiff filed his complaint. Accordingly, summary judgment dismissing plaintiff's retaliation claim with prejudice was proper.
As for plaintiff's race-discrimination failure-to-hire claim, plaintiff cannot prove he was qualified for the positions for which he applied or that UMDNJ continued to seek others with the same qualifications or hired someone with the same or lesser qualifications who was not in the protected status; nor can he prove pretext. Plaintiff was not qualified for the Compliance Investigator or Human Resources Generalist positions. Even if he was minimally qualified, the successful applicants were more qualified, as they had experience and skills directly related to job responsibilities of the respective positions. In addition, plaintiff cannot prove that Adriana B. was not in the protected status or that UMDNJ knew that Roseman was Caucasian before it considered and hired him for the Compliance Investigator position. Plaintiff also cannot prove pretext. He presented no evidence that UMDNJ eliminated the AA/EEO Offices for anything other than economic reasons. Thus, summary judgment dismissing plaintiff's race discrimination claim with prejudice was also proper.