Opinion
DOCKET NO. A-0104-12T2
07-19-2013
JOSEPH CANALE, Plaintiff-Appellant, v. STATE OF NEW JERSEY AND GREGORY ROBERTS, Defendants-Respondents.
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).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Lihotz.
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). PER CURIAM
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 every other day. It has been a pleasure working under your direction, and hopefully our career paths will some day cross again.Plaintiff began dividing his time and job duties between Ancora and Trenton, in an effort to perform both jobs.
Plaintiff insists he applied for the promotion to Business Manager at Trenton because he "did [not know] that the desk audit had been received back at Ancora[,]" and he would not have pursued this position had he known the DOP classification review determined his position could be reclassified as SGSS. Plaintiff maintains no one at Ancora told him of the desk audit results, which he learned when he contacted DOP. Ultimately, plaintiff's lack of a four-year college degree impeded his ability to be promoted to Business Manager at Trenton.
Around September 2008, plaintiff was "summoned" to Roberts' office by Lubitsky and was "told [he] would go to Trenton . . . permanently." According to plaintiff, despite not receiving the promotion to Business Manager at Trenton and never asking to go to Trenton permanently, Lubitsky and Roberts transferred him without giving him the choice to remain at Ancora. Plaintiff insists the transfer was involuntary, in retaliation for his refusal to assist Lubitsky and Roberts in their alleged plan to rid Ancora of its black administrators.
Plaintiff informed Lubitsky and Roberts he had no intention of reporting to Trenton full-time unless he received the Business Manager promotion. He explained: "If I wasn't to receive the promotion of Business Manager[,] I was going to stay working between the two [facilities] to help assist the facility out or I wanted my job back at . . . [Ancora] and I wasn't leaving." Plaintiff was told he did not have that choice. At his deposition, plaintiff recounted:
I did not agree with going to [Trenton] full-time. I also was told that I wasn't a team player because I wasn't providing [Lubitsky and Roberts] with information so that they could remove the black administrators.Roberts and Lubitsky told plaintiff "it [is] what it is, . . . you aren't a team player, go pack yourself and get out of your office." As a result of the transfer to Trenton, plaintiff's round-trip commute increased by approximately ninety miles, an increase in mileage for which plaintiff was compensated.
. . . .
I was called a nigger lover . . . [i]n the office[, b]ecause I wasn't helping them participate in compiling information to then
help them remove the black administrators. I was also told to take my head [out] of Mr. Morrison's ass.
. . . .
I was told I wasn't a team player. I was given an example of how Mr. Lubitsky helped promote Mr. Roberts' wife while they were at [Trenton] together and then allowed her to go work at the division while being on [Trenton]'s payroll for approximately seven years until Mr. Roberts retired.
. . . .
I wasn't given a reason why I had to go [to Trenton] as of that date.
. . . .
[When told I was not a team player, I responded:] "How am I not a team player?" I sat there and described all the different things I've done, the different responsibilities, the different projects I've completed for Mr. Lubitsky since he's been there for the past ten to [twelve] months and tried to basically, you know, say I'm a team player, I do what you guys ask me to do.
. . . .
[Their response was t]hat I was a nigger lover, that I can lick T[h]eresa McQuaide's . . . pussy.
. . . .
I said, "This is completely inappropriate. I don't understand why this is being done to me and I don't understand why I'm having to
deal with this and basically" -- I think I said animosity because I don't understand what I did.
Trenton's CEO.
Roberts and Lubitsky deny any of this occurred, and insist plaintiff had the option of remaining at Ancora full-time if he desired. They maintain, in September 2008, plaintiff voluntarily transferred to Trenton full-time in hopes of assuming the Business Manager title.
Approximately one month after his transfer to Trenton, plaintiff asked Lubitsky if he could return to his former position at Ancora. Lubitsky "told [plaintiff] to go fuck [him]self, that [he] wasn't a team player again, that [he] did a horrible job, [he] sucked, everybody around [him] sucked, everybody that reported to [him] sucked and basically [he] wasn't coming back to Ancora[.]" Plaintiff was not provided any additional details, other than that all the departments "ran like crap," and plaintiff and everyone around him "suck[ed]." When asked at his deposition whether Lubitsky elaborated, plaintiff answered:
He just said the Food Service Department wasn't running properly, that the Storeroom had issues, this, that -- of course, you know, I was again trying to defend myself that I wasn't there full-time for the past seven or eight months so obviously things were going -- nobody actually covered me while I was missing. It would have been Mr. Lubitsky, so I tried to defend myself stating that I can't help it if [it] started to slip because I wasn't there all the time.
Plaintiff also had applied for an opening for SGSS at Ancora on three occasions. In response to each application, plaintiff received a letter from Lubitsky denying his request for an interview. According to Lubitsky, he declined plaintiff's request to return to Ancora based on his poor past performance. After plaintiff's transfer, Lubitsky temporarily assumed plaintiff's job responsibilities and took issue with a lack of internal controls, backed-up inventory, uncontrolled overtime costs, a lack of disciplinary protocols, and non-compliance with contract terms. Lubitsky provided additional details to Roberts in a July 2009 email, citing: "[o]ut of control overtime spending, [a] dysfunctional relationship and communications gap within the Business Office, . . . [l]aundry issues never resolved and CQI workgroup failure, [r]ampant misclassification and reassignments of staff/working out of title." These shortcomings, Lubitsky explained, precluded plaintiff's consideration for managerial positions at Ancora.
In April 2009, plaintiff had accrued the requisite experience to hold the title of SGSS, notwithstanding his lack of formal education. He was promoted that month.
A second issue raised by plaintiff stemmed from comments attributed to Roberts and made to McQuaide, plaintiff's supervisor in Trenton. At an unspecified time after plaintiff's transfer to Trenton, Roberts informed McQuaide of an alleged rumor at Ancora that plaintiff was involved with drugs. McQuaide recalled Roberts referring to plaintiff's physical appearance and loss of weight, mentioning the people with whom plaintiff was associating, and noting plaintiff's purchase of a new car. Although neither McQuaide nor Morrison remembers doing so, plaintiff states he was confronted about his alleged drug use. The record does not reveal, and plaintiff does not suggest, any further action was taken.
A third event identified as comprising defendants' retaliatory conduct occurred in the winter of 2009-2010. Because Trenton's Business Manager position remained unfilled, plaintiff continued to perform the duties of that position as well as those of his job as SDSS. In January 2010, Roberts placed Jamie Lemieux in the Business Manager position, despite Morrison's insistence plaintiff was able to fulfill the duties of that position. Lemieux's placement as Business Manager effectively removed plaintiff's oversight over Trenton's Business Services, except when Lemieux was absent. At his deposition, plaintiff admitted he no longer desired the Business Manager position and stated he was not upset by Lemieux's selection, but felt his administrative oversight and control over Business Services when Lemieux was absent was not very conducive to running a smooth and efficient operation.
Approximately one or two months after Lemieux was hired, plaintiff filed a discrimination complaint against Lubitsky and Roberts with the Equal Employment Opportunity (EEO) Office. In his complaint, plaintiff reported the prior, racially charged comments defendants made during conversations with plaintiff, their alleged design to remove the African-American administrators from Ancora, and plaintiff's refusal to assist that plan. He alleged "[f]rom that point forward I have been displaced, harassed, slandered and retaliated against [and] have had endless sleepless nights due to fear of further harassment and the physical well[-]being of my family and [self]." Following its investigation, the EEO concluded none of plaintiff's allegations were corroborated.
Plaintiff filed this LAD complaint on March 25, 2010. He alleged he "became the subject matter of significant acts of retaliation" because of his refusal to participate in defendants' racially motivated conduct. After discovery, defendants moved for summary judgment dismissal of plaintiff's complaint. Following argument, the judge determined plaintiff failed to demonstrate he suffered any adverse employment action under the anti-retaliation section of the LAD, and also failed to demonstrate the requisite causal link between his protected activity and the supposedly adverse employment action. The judge dismissed plaintiff's complaint and plaintiff appealed.
In a motion for summary judgment under Rule 4:46-2(c), a judge is required to analyze and sift through evidential materials, including "pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any," R. 4:46-2(c), to determine whether there exists "a "genuine issue as to any material fact challenged," ibid., and "determine 'the range of permissible conclusions that might be drawn,'" Brill, supra, 142 N.J. at 531 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 596, 106 S. Ct. 1348, 1361, 89 L. Ed. 2d 538, 558 (1986)). See also Tomeo v. Thomas Whitesell Constr. Co., 176 N.J. 366, 370 (2003) (stating summary judgment necessitates some weighing of the evidence) (citation omitted); Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 167 (1985) (requiring a motion judge to make a "discriminating search" of the evidence). If no material factual disputes exist, the judge then considers whether the moving party is entitled to judgment as a matter of law. Brill, supra, 142 N.J. at 540 (citation omitted). Inevitably, the judge must consider not just the quantum of proof, but the quality of evidence as well. Costello v. Ocean Cnty. Observer, 136 N.J. 594, 614 (1994) (citing Schiavone Constr. Co. v. Time, Inc., 847 F.2d 1069, 1089 (3d Cir. 1988)).
Employing the same standards as the motion judge, Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.) (citations omitted), certif. denied, 154 N.J. 608 (1998), we review a grant or denial of summary judgment de novo. We determine whether the moving party demonstrated there were no genuine disputes as to any material facts, and then whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). However, we accord no deference to the motion judge's conclusions on issues of law, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citations omitted), which we review de novo, Trinity Church v. Lawson-Bell, 394 N.J. Super. 159, 166 (App. Div. 2007).
Plaintiff's claims are addressed to the LAD's anti-retaliation provision, which makes it an unlawful employment practice "to take reprisals against any person because that person has opposed any practices or acts forbidden under th[e LAD.]" N.J.S.A. 10:5-12d. "All employment discrimination claims require the plaintiff to bear the burden of proving the elements of a prima facie case." Victor v. State, 203 N.J. 383, 408 (2010). "[T]he elements of the prima facie case vary depending upon the particular cause of action." Ibid.
"Identifying the elements of the prima facie case that are unique to the particular discrimination claim is critical to its evaluation." Id. at 410. The elements of a retaliation claim under the LAD "are that the employee 'engaged in a protected activity known to the [employer,]' the employee was 'subjected to an adverse employment decision[,]' and there is a causal link between the protected activity and the adverse employment action." Battaglia v. United Parcel Serv., Inc., __ N.J. __, __ (2013)(slip op. at 33)(quoting Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 274 (App. Div. 1996)).
Once a plaintiff establishes these elements of a prima facie case, the burden shifts to the defendants, who "must articulate a legitimate, non-retaliatory reason" for the employment action. Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 549 (App. Div. 1995) (citing Jamison v. Rockaway Twp. Bd. of Educ, 242 N.J. Super. 436, 445 (App. Div. 1990)). If the defendants successfully do so, the burden returns to the plaintiff to then demonstrate retaliatory intent motivated the defendants' actions, rather than the legitimate reason proffered. Id. at 549, 551. This may be done "either indirectly, by proving that the proffered reason is a pretext for the retaliation, or directly, by demonstrating that a retaliatory reason more likely than not motivated [the] defendant[s'] action." Woods-Pirozzi, supra, 290 N.J. Super. at 274 (citing Romano, supra, 284 N.J. Super. at 551). We have explained:
All that is needed is some evidence from which a factfinder could infer that the employer's proffered reason was either a post hoc fabrication or otherwise did not actually motivate the decision. A plaintiff must demonstrate weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered reason such that a rational factfinder could find the reason unworthy of credence.
[Svarnas v. AT&T Commc'ns, 326 N.J. Super. 59, 82 (App. Div. 1999) (internal citations omitted).]
Proofs necessary to demonstrate an adverse employment action include "actions that affect wages [or] benefits, or result in direct economic harm . . . . So too, noneconomic actions that cause a significant, non-temporary adverse change in employment status or the terms and conditions of employment would suffice." Victor v. State, 401 N.J. Super. 596, 616 (App. Div. 2008), aff'd in part, modified in part, 203 N.J. 383 (2010). However, "emotional factors alone cannot constitute adverse employment action." Shepherd v. Hunterdon Developmental Ctr., 336 N.J. Super. 395, 420 (App. Div. 2001), aff'd in part, rev'd in part, 174 N.J. 1 (2002). In other words, the employer's action "must rise above something that makes an employee unhappy, resentful or otherwise cause[s] an incidental workplace dissatisfaction." Victor, supra, 401 N.J. Super. at 616. "'[T]rivial harms,petty slights, minor annoyances, and simple lack of good manners'" are insufficient. Roa v. Roa, 200 N.J. 555, 575 (2010), (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 2415, 165 L. Ed. 2d 345, 359-60 (2006)). Therefore, "'unfavorable evaluation[s], unaccompanied by a demotion or similar action' or a job reassignment with no corresponding reduction in wages or status is insufficient." Victor, supra, 401 N.J. Super. at 615 (quoting El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 170 (App. Div. 2005)).
In addition to firings or demotions, adverse employment actions have been found to include the cancellation of an employee's health insurance, Roa, supra, 200 N.J. at 575, a thirty-seven-day suspension without pay, and reassignment to more arduous and less desirable duties, Burlington N., supra, 548 U.S. at 70-74, 126 S. Ct. at 2416-18, 165 L. Ed. 2d at 361-63.
Here, for purposes of appeal, defendants concede plaintiff engaged in a protected activity sufficient to establish the first element of a prima facie case of retaliation. Noting summary judgment was based on a finding plaintiff failed to show an adverse employment action, plaintiff identifies six actions he contends satisfy this second element and reveal defendants' retaliatory conduct. These include: (1) Roberts' and Lubitsky's use of abusive language; (2) Roberts' call to McQuaide to inform her of plaintiff's rumored drug use; (3) being forced to transfer to Trenton; (4) Lubitsky's refusal to permit plaintiff to return to Ancora; (5) Lubitsky's refusal to interview plaintiff for a job opening at Ancora; and (6) Lubitsky's deliberate withholding of the results of plaintiff's desk audit. Having considered each of these, we reject plaintiff's assertion of error and concur with the judge's findings that whether viewed individually or together, these actions fail to constitute adverse employment action under the LAD.
The ignorant language attributed to Roberts and Lubitsky is both inappropriate and offensive, but in and of itself does not demonstrate an adverse employment action against plaintiff. Interestingly, plaintiff acknowledges he did not react to these events when they occurred, and never filed an EEO complaint similar to the one initiated in 2010.
Discourtesy and rudeness should not be confused with harassment. Shepherd, supra, 174 N.J. at 25-26. The LAD "does not set forth a general civility code for the American workplace." Roa, supra, 200 N.J. at 575 (internal quotation marks and citations omitted). Therefore, epithets, insults, rudeness, and even severe personality conflicts are generally insufficient to establish a hostile work environment. Taylor v. Metzger, 152 N.J. 490, 500-02 (1998); Herman v. Coastal Corp., 348 N.J. Super. 1, 20-22 (App. Div.), certif. denied, 174 N.J. 363 (2002); Heitzman v. Monmouth Cnty., 321 N.J. Super. 133, 147 (App. Div. 1999), overruled on other grounds by Cutler v. Dorn, 196 N.J. 419 (2008).
Next, as found by the judge, plaintiff's lateral transfer to Trenton was voluntary, not retaliatory. The record does not support plaintiff's suggestion he was forced to transfer, and shows the only "adverse" aspect of the Trenton transfer was an increased commute, which was accompanied by financial compensation. Emphasizing plaintiff's role in requesting the transfer in the first place, the judge explained:
Albeit, he sought that transfer because he perceived he would have a different position, a position which he []now indicates he . . . doesn't want anymore.
But that was the basis for the transfer. And he sought the transfer and that transfer occurred. It in no way, shape or form can be deemed to be retaliation.
. . . .
His salary has not in any way been affected, in fact, it's been increased. While [plaintiff] complains about a commute that's approximately [forty] miles one way each day, in excess of what he would have incurred at Ancora, that's as a result of his request to be transferred. I can't find that that's retaliation.
"[A] purely lateral transfer, that is, a transfer that does not involve a demotion in form or substance, cannot rise to the level of a materially adverse employment action. A transfer involving no reduction in pay and no more than a minor change in working conditions will not do, either." Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996).
Further, plaintiff's subsequent satisfaction with his current position obviates a finding the transfer was a retaliatory one amounting to an adverse employment action. Shepherd, supra, 336 N.J. Super. at 419-20 (stating even an involuntary transfer will not constitute an "adverse employment action" where the transfer "ultimately work[s] out well for [the employee], and [the employee i]s happier in his new assignment"). Following review, we agree with the judge that plaintiff cannot now complain of a transfer occasioned by his own efforts.
Next, even if Roberts told McQuaide of a rumor regarding plaintiff's drug involvement stemming from some physical changes, including weight loss, some people he was known to be hanging out with, and that he was buying a number of cars,'" the record contains no evidence of any consequences emanating from this disclosure. Plaintiff cannot demonstrate an adverse employment action based on this conduct. See McKinnon v. Gonzales, 642 F. Supp. 2d 410, 429 (D.N.J. 2009).
We also reject plaintiff's third, fourth, and fifth suggestions that his transfer to Trenton and Roberts' subsequent failure to allow plaintiff to return to Ancora or interview him for open positions at that facility demonstrated retaliatory adverse employment consequences. Denial of these lateral transfers involved no significant changes in plaintiff's conditions of employment and cannot be construed to amount to an adverse employment action. Cf. Fallon v. Meissner, 66 Fed. Appx. 348, 351-52 (3d Cir. 2003) (holding an employer's denial of an employee's transfer request was not a "materially adverse employment decision" under the ADEA where the position sought was the same as the position already held, there would be no change in pay, benefits, or duties, and the sole basis for differentiation presented by the employee related to the shorter and cheaper commute accompanying the desired position).
As the judge found, defendants presented a non-pretextual, legitimate business reason to decline plaintiff's consideration for the open SGSS position at Ancora — first because of deficiencies in plaintiff's qualifications, and thereafter because Lubitsky discovered plaintiff's poor past performance while working at Ancora. Neither Lubitsky's refusal to interview plaintiff for a position for which plaintiff was not qualified, nor his refusal to interview plaintiff for a purely lateral transfer, constitutes adverse employment action.
Moreover, as the judge noted, plaintiff's salary in the new position was not less, but rather he had received an increase. The sole evidence supporting the suggestion defendants' explanation was pretextual comes from plaintiff's unsubstantiated allegations. Without citing specific evidence, plaintiff asserts: "[T]aking the substance of [plaintiff]'s statements as true for the purposes of [s]ummary [j]udgment, as any [c]ourt must, the proffered reason for the failure to promote or interview is pre-textual." Such a "rebuttal" is clearly inadequate. Young v. Hobart W. Group, 385 N.J. Super. 448, 467 (App. Div. 2005). "A plaintiff's self-serving assertion alone will not create a question of material fact sufficient to defeat a summary judgment motion." Pressler & Verniero, Current N.J. Court Rules, comment 2.3.1 on R. 4:46-2 (2013). Accordingly, plaintiff's assertion of pretext is belied by the facts established by the record.
Finally, plaintiff's sixth claim that he was not timely informed of the DOP's job classification audit lacks sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E). The record clearly demonstrates Ancora could not promote plaintiff to the SGSS position because he did not satisfy the education and experience requirements at that time.
Following our review, we conclude none of the claims identified by plaintiff support his allegation that he suffered an adverse employment action. Plaintiff neither was denied a promotion nor suffered any type of a loss of remuneration of benefits. Absent the necessary factual foundation, we need not consider his unfounded causation arguments. We find no error in the trial court's dismissal of his complaint.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION