HENRY VIERA VS. NEW JERSEY INSTITUTE OF TECHNOLOGY (L-8382-14, ESSEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3453-16T4
HENRY VIERA,
Plaintiff-Appellant,
v.
NEW JERSEY INSTITUTE OF
TECHNOLOGY,
Defendant-Respondent,
and
BORIS SHAPIRO,
Defendant.
_______________________________
Submitted May 7, 2018 – Decided July 18, 2018
Before Judges Accurso and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No.
L-8382-14.
David H. Kaplan, attorney for appellant.
Jackson Lewis, PC, attorneys for respondent
(Gregory T. Alvarez, of counsel and on the
brief; Jessica L. Sussman, on the brief).
PER CURIAM
Plaintiff Henry Viera appeals from the entry of summary
judgment dismissing his complaint against defendant New Jersey
Institute of Technology, alleging national origin
discrimination, a hostile work environment and retaliation, all
in violation of the Law Against Discrimination (LAD), N.J.S.A.
10:5-1 to -49, stemming from the University's failure to promote
him in 2013. We affirm.
We present the facts in the light most favorable to
plaintiff and give him the benefit of all legitimate inferences
in support of his claim. R. 4:46-2(c); Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 540 (1995). Plaintiff, born and
educated in Peru, was hired by the University in 2001 as an HVAC
mechanic in the Physical Plant department. HVAC mechanics at
the University are represented by AFSCME (American Federation of
State, County and Municipal Employees). Plaintiff's position is
classified as a range 16 position within the bargaining unit.
In April 2013, the University advertised internally for a
control specialist in the Technical Services department, who
would, under the direction of the Director of Technical
Services, be "responsible for the installation, modification,
repair, calibration and overhaul of all control systems
installed at NJIT campus facilities." The position required a
Bachelor of Science in mechanical engineering but allowed that
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related work experience could be substituted for the degree on a
three to one basis. In other words, twelve years of related
work experience would qualify one for the position in the
absence of a mechanical engineering degree. Control specialists
at the University are represented by PSA (Professional Services
Association), a different union from the HVAC mechanics. A
control specialist is classified as a range 25 position within
that bargaining unit.
Plaintiff completed the online application and submitted
his resume and cover letter in response to the posting. His
application and resume reflected his graduation from high school
in Peru and the absence of a mechanical engineering, or indeed,
any college degree. Although plaintiff's resume reflected he
had been employed by HBC Electric, Inc. for two years prior to
his employment by the University, that position was not listed
in his online application. Moreover, in his cover letter,
plaintiff noted he had "11+ years of experience in the field."
The Director of Technical Services responsible for
reviewing the applications did not recommend plaintiff for an
interview because he "did not meet requirements." Defendant
Boris Shapiro,1 then Assistant Vice President of Technical
1
Plaintiff voluntarily dismissed his claims against Shapiro,
and he is not a party to this appeal.
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Services and Construction, asked the Director "to give
[plaintiff] a chance," and he was thereafter invited to
interview for the position along with three other candidates,
two other HVAC mechanics at the University, one white and one
Hispanic, and one external candidate, also white. All the
candidates were male. Plaintiff had a "good working
relationship" with all three members of the Technical Services
department who interviewed him and had no concerns going into
the interview.
Afterwards, however, he felt they tried to make him "look
bad" in the interview in order to have an excuse not to hire
him. The interview committee determined plaintiff was not
qualified for the job based on his not having twelve years'
experience and his poor performance at the interview. They
recommended the two white candidates for hire, ranking the
outside candidate their first choice. After Shapiro advised him
the University had extended an offer to the outside candidate,
plaintiff filed a grievance with the assistant vice president in
Human Resources.
The grievance form plaintiff signed, states his grievance
as follows:
Henry feels like he was denied a promotion
even though he has the field experience for
the job. Henry feels that the job selection
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process violates AFSCME collective
bargaining agreement Article XVIII(A)2 also
NJIT Promotion Policy and NJIT Affirmative
Action Plan, as well as others.
Although the grievance notes plaintiff's belief the selection
process violated the University's affirmative action plan, it
did not allege plaintiff was discriminated against because of
his national origin. The assistant vice president who took
plaintiff's complaint testified at deposition that plaintiff was
upset that "friends keep getting hired" and mentioned "Binsky &
Snyder," an outside mechanical contracting firm that does
business with the University.
The following day, plaintiff and his union representative
met with Shapiro for an informal "grievance discussion."
Plaintiff's supervisor and a member of the search committee,
both of whom testified at deposition that plaintiff was a good
HVAC mechanic and a capable employee with good potential, were
also in attendance. Shapiro explained to plaintiff the
committee concluded he was not qualified for the position
because he did not have twelve years' experience, had never
designed or been responsible for installation of small HVAC and
controls projects and had never supervised or performed
2
This provision relates to grievance procedures.
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installations from engineering or architectural drawings.
Shapiro also advised the University's promotion plan was not
applicable as it did not apply to positions above range 23 and
that plaintiff could not invoke the University's affirmative
action policy as he did not meet the qualifications for the
position he was seeking. Plaintiff testified at deposition that
his union refused to pursue his grievance because the promotion
policy in the collective bargaining agreement did not apply to
positions outside his bargaining unit.
In response to plaintiff's grievance, the University
undertook a review of the selection process, assigning the
assistant vice president for Human Resources and the Ethics
Liaison Officer to the task. In the course of their
investigation, they learned that members of the interview
committee had previously worked at Binsky, the firm plaintiff
mentioned, and that one of the applicants also currently worked
for the company. Although finding no actual conflict, the
investigators acknowledged the situation could certainly present
an appearance of bias and recommended a new search. They
further recommended the new search committee be independent,
meaning there should be no past or present relationships between
members and applicants or vendors, that interviews be conducted
using consistent questions and a uniform evaluation process,
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that the position be posted internally and externally to expand
the applicant pool and that a member of Human Resources be
included on the committee to ensure compliance with acceptable
recruitment standards. Shapiro accepted the recommendations,
the offer to the outside candidate was rescinded and the search
begun again.
When Shapiro's assistant attempted to schedule an interview
for plaintiff with the new committee, however, he declined to be
interviewed. Instead, he sent the following email to Shapiro:
Dear Mr. Boris Shapiro:
I received a call from [your assistant]
today 07/18/2013 to setup an interview with
you relating to the control specialist
position that I applied for. I will only be
willing to attend a congratulatory interview
and not a job interview for the following
reasons:
1. I have done two (2) interviews
before for this position in which you
came to a conclusion that I was not
qualified for this position.
2. I would prefer to have an interview
for this position whenever a promotion
policy that applies to me and this
position is available, since you stated
the existing promotional policy doesn't
apply to this job position.
3. You also mentioned in the grievance
informal discussion to look for a job
in the position in question elsewhere
outside of the university.
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Please be informed that a grievance on this
matter is already filed with NJIT human
resources whom I will inform of your request
by a copy of this letter.
After plaintiff declined to participate further in the
process, the second search committee re-interviewed the other
candidates the first committee interviewed, as well as an
additional external candidate who applied in response to the new
posting. The new committee recommended the same top two
candidates from the first selection process. The new process,
however, narrowed the differences between the two candidates,
whom the committee awarded "virtually the same" scores. Human
Resources recommended that preference should be given to the
internal candidate. Shapiro accepted that recommendation and
offered the job to the internal candidate in July 2013.
That promotion created an open HVAC mechanic position. As
one other HVAC mechanic position was also open, Shapiro
requested and obtained approval to eliminate both and create
another control specialist position, and to hire from the list
of the recruitment just completed. Based on the results of that
recruitment, Shapiro offered the second position to the top-
ranking external candidate, who accepted in August 2013.
Following discovery, the University moved for summary
judgment based on those undisputed facts. Plaintiff opposed,
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arguing he was equally or better qualified than the two white
men hired, that he never withdrew his candidacy, that the
University never informed him a second search committee was
formed in response to his grievance, that the University
retaliated against him by cutting his overtime and created a
hostile environment by forcing him to work for a department head
who had repeatedly discriminated against him. He claimed
disputes of fact as to the University's motivation for the hires
precluded summary judgment.
The trial judge disagreed, finding plaintiff, by refusing
to re-interview, could not establish a prima facie case of
employment discrimination. The judge also concluded plaintiff
required expert testimony, which he did not present, to
establish he was qualified for the position. Finally, the judge
concluded plaintiff could not establish a retaliation claim
because he could not establish his grievance was based on
protected activity, and he presented no proof of a hostile
environment. Plaintiff appeals, reprising the arguments he made
to the trial court and adding that the court failed to accord
him all favorable inferences from the facts.
We review summary judgment using the same standard that
governs the trial court. Murray v. Plainfield Rescue Squad, 210
N.J. 581, 584 (2012). Thus, we consider "whether the evidence
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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., Inc. v. Nowell
Amoroso, PA, 189 N.J. 436, 445-46 (2007) (quoting Brill, supra,142 N.J. at 536). In considering application of the LAD to the
facts adduced on the motion, our review is de novo without
deference to any interpretive conclusions we believe mistaken.
Nicholas v. Mynster, 213 N.J. 463, 478 (2013); Manalapan Realty,
LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Our courts review claims of discrimination under the LAD
using the familiar burden-shifting analysis of McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973). In a suit alleging
unlawful discrimination for failure to promote under the LAD, a
plaintiff's prima facie case consists of demonstrating that: (1)
he "is a member of a class protected by the anti-discrimination
law"; (2) he "was qualified for the position or rank sought";
(3) he "was denied promotion"; and (4) others "with similar or
lesser qualifications achieved the rank or position." Dixon v.
Rutgers, 110 N.J. 432, 443 (1988).
Once the plaintiff establishes his prima facie case, the
burden of production shifts to the employer to articulate a
legitimate, non-discriminatory reason for the plaintiff's
rejection. Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 83
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(1978). If the employer does so, thus overcoming the
presumption of an unlawful motivation, the burden shifts back to
the plaintiff to prove the employer's proffered reason for the
termination was merely a pretext for discrimination. See Bergen
Commercial Bank v. Sisler, 157 N.J. 188, 211 (1999). "Although
the burden of production shifts throughout the process, the
employee at all phases retains the burden of proof that the
adverse employment action was caused by purposeful or
intentional discrimination." Ibid.We agree with the trial court that plaintiff's prima facie
case foundered on the second prong, i.e. that he was qualified
for a promotion he sought. Although we are not inclined to
concur that plaintiff needed an expert to establish he was
qualified for the position, see Zive v. Stanley Roberts, Inc.,
182 N.J. 436, 448 (2005) (explaining the "slight evidentiary
burden" borne by the plaintiff in establishing a prima facie
case "evaluated solely on the basis of the evidence presented by
the plaintiff, irrespective of defendants' efforts to dispute
that evidence"), that disagreement is of no moment because no
reasonable jury could find plaintiff continued to seek the
control specialist position after he declined to participate in
the new search. Plaintiff's email to Shapiro that he would
"only be willing to attend a congratulatory interview and not a
11 A-3453-16T4
job interview" established that fact beyond any doubt. Because
plaintiff cannot establish he continued to seek the promotion
when the University reconstituted the search committee and began
the search anew, he cannot establish a prima facie case of
discrimination.
But even were it possible to find that plaintiff remained
willing to compete for the position, and thus that he
established a prima facie case, we could not find the trial
court erred in entering summary judgment on this record. In
addition to arguing that plaintiff withdrew his application for
the control specialist job, the University claimed he lacked the
requisite twelve years' experience and the two applicants
selected were better qualified, satisfying its burden to
articulate a legitimate, non-discriminatory reason for not
promoting plaintiff. Although plaintiff certainly disputed
that, he failed to produce any evidence on the motion that those
reasons were a pretext for invidious discrimination based on his
nationality.
In order to prove pretext in a promotional context, it is
not enough for a plaintiff to simply show he was as good or
better than the employees chosen in his stead, the focus of
plaintiff's proofs on the motion. He "must also demonstrate that
the employer was motivated by discriminatory intent." Zive, 182
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N.J. at 449. Plaintiff's failure to evince even a shred of
evidence that the University acted out of discriminatory animus
doomed his case on summary judgment. See Clowes v. Terminix
Int'l, Inc., 109 N.J. 575, 600 (1988).
Plaintiff's claims of retaliation and hostile work
environment suffered from similar insufficiencies of proof. A
plaintiff's prima facie case for retaliation is similar but not
identical to one for discriminatory failure to promote. A
plaintiff alleging he was subject to retaliation in the
workplace must demonstrate: (1) that he "engaged in protected
activity"; (2) the activity was "known to the employer"; (3) he
suffered "an adverse employment decision"; and (4) there existed
"a causal link between the protected activity and the adverse
employment action." Battaglia v. United Parcel Serv., Inc., 214
N.J. 518, 547 (2013) (quoting Woods-Pirozzi v. Nabisco Foods,
290 N.J. Super. 252, 274 (App. Div. 1996)).
Plaintiff claimed that after he filed his grievance he was
denied overtime in retaliation for his complaint of
discrimination. We agree with the trial court that plaintiff
failed to establish a prima facie case of retaliation because
his grievance did not allege discrimination on the basis of
nationality. Accordingly, he could not establish that he was
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engaged in protected activity known to the employer. See
Battaglia, 214 N.J. at 547.
Even assuming for sake of argument that plaintiff's
grievance alleged discrimination based on national origin,
thereby establishing the first two prongs of his necessary
proofs, he produced absolutely no evidence on the motion from
which a fact-finder could infer a causal link between his
grievance and the curtailment of his overtime hours.
Plaintiff conceded he actually made more money in overtime in
the two years after he filed the grievance than before. He also
admitted the University did not single him out but instead cut
overtime for the entire Physical Plant department.
Because plaintiff failed to establish the University did
not promote him on the basis of his nationality or that it
retaliated against him after he complained, he likewise could
not establish that his continued supervision by individuals who
had discriminated against him constituted a hostile environment.
See Cutler v. Dorn, 196 N.J. 419, 431 (2008) (quoting Lehmann v.
Toys 'R' Us, Inc., 132 N.J. 587, 606 (1993)) ("When evaluating
whether conduct is sufficiently severe or pervasive to create a
hostile work environment, we focus on the "harassing conduct
. . ., not its effect on the plaintiff or the work
environment."). We accordingly agree with the trial judge that
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plaintiff's remaining claim for punitive damages, likewise
premised on his unsupported belief that the University failed to
promote him based on his national origin, was properly
dismissed. Plaintiff's arguments to the contrary are without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
Affirmed.
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