NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 30, 2013
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1998-07.
Daryl Murray, appellant, argued the cause pro se.
Anthony B. Haller, of the Pennsylvania Bar, admitted pro hac vice, argued the cause for respondents (Blank Rome, LLP, attorneys; Mr. Haller, Stephen M. Orlofsky, Jennifer Hale Eagland and Julie E. Reid, on the brief).
Before Judges Fuentes, Fasciale and Haas.
Plaintiff, an African-American, appeals from an order granting summary judgment to Beverage Distribution Center, Inc. (BDCI) and Nancy Rodriguez (collectively referred to as "defendants") dismissing his complaint alleging racial and sex discrimination and unlawful retaliation in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Plaintiff also appeals from several interlocutory orders. We affirm.
Plaintiff alleged that BDCI failed to hire him as an EDI Coordinator, an AS400 Operator, and a MIS Project Manager. Plaintiff also alleged that defendants retaliated against him, and that Rodriguez (a former BDCI employee) aided and abetted the alleged LAD violations. Defendants denied these allegations and moved for summary judgment. The court granted the motion and concluded that plaintiff failed to demonstrate a prima facie case under the LAD and dismissed plaintiff's case.
On appeal, plaintiff argues primarily that there are disputed issues of material fact that preclude summary judgment. After a thorough review of the record and consideration of the controlling legal principles, we conclude that plaintiff's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.
In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the trial court. Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 564 (2012). We must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Against this standard, we conclude that the judge did not err.
To present a prima facie case of discrimination under the LAD, plaintiff must show, by a preponderance of the evidence, that: (1) he is a member of a protected class; (2) he applied and was qualified for the job for which BDCI was seeking applicants; (3) despite his qualifications, he was rejected; and (4) after his rejection, the position remained open and BDCI continued to seek applicants with plaintiff's qualifications. Andersen v. Exxon Co., U.S.A., 89 N.J. 483, 492 (1982); Williams v. Pemberton Twp. Pub. Sch., 323 N.J.Super. 490, 498 (App. Div. 1999). BDCI must then rebut the presumption of undue discrimination by articulating some legitimate, nondiscriminatory reason for its rejection of plaintiff. Anderson, supra, 89 N.J. at 493. Upon such a showing by BDCI, plaintiff must then prove by a preponderance of the evidence that the reason articulated by BDCI was not the true reason for the employment decision, but a mere pretext for discrimination. Ibid.
The record demonstrates that plaintiff did not apply for the EDI Coordinator position. Rather, he wrote BDCI and stated that
[a]t first glance of the enclosed resume, you might question why I would consider a position paying far below my experience and expertise. The answer to your question is that I would not unless your ...