"[I]t is only the judgment or orders designated in the notice of appeal which are subject to the appeal process and review."
How later courts described this case
- "[I]t is only the judgment or orders designated in the notice of appeal which are subject to the appeal process and review."
- finding disposition of a summary judgment motion should not be delayed to permit additional discovery where the discovery "will patently not chang e the outcome" of the court's ruling on the motion
- explaining our de novo review of a summary judgment record does not require that we decide pertinent issues in the first instance
- finding "[i]n interpreting the LAD, the federal law has consistently been considered for guidance"
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION WITHOUT THE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-5368-18
ROBERT WILLIAMS,
Plaintiff-Appellant,
v.
CASINO REINVESTMENT
DEVELOPMENT AUTHORITY,
a/k/a CRDA, DANIEL MACK,
and ROSILAND KINCADE,
Defendants-Respondents.
____________________________
Submitted March 24, 2021 – Decided July 13, 2021
Before Judges Ostrer, Vernoia, and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. L-1500-16.
Timothy J. McIlwain, attorney for appellant.
Riker Danzig Scherer Hyland & Perretti, LLP,
attorneys for respondents (Adam J. McInerney, of
counsel and on the brief).
PER CURIAM
Plaintiff Robert Williams appeals from an order granting defendant
Casino Reinvestment Development Authority (CRDA or defendant) summary
judgment on plaintiff's claims defendant terminated his employment in violation
of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50.
More particularly, plaintiff contends the motion court erred by granting
summary judgment on his claims defendant unlawfully terminated his
employment because of his race—Caucasian—and in retaliation for engaging in
protected activity under the LAD. We find no merit to plaintiff's arguments and
affirm.
I.
Following approximately four years of employment with defendant,
plaintiff filed a complaint alleging defendant violated the LAD by terminating
his employment because he was Caucasian and in retaliation for engaging in a
"protected activity"—filing a complaint with defendant concerning a co-
employee, defendant Daniel Mack.1 Defendant terminated plaintiff's
employment following Mack's report of plaintiff's workplace misconduct and an
outside law firm's investigation into the allegations. Plaintiff also claimed Mack
1
In our summary of the allegations, we refer to plaintiff's second amended
complaint because it was the operative pleading when the court entered the
summary judgment order challenged on appeal.
A-5368-18
2
and another co-worker, Rosalind Kincade, aided and abetted in defendant's
retaliation against him.2 In the complaint, plaintiff asserted LAD claims against
defendant for reverse race discrimination, disability discrimination, and
retaliation, and against Mack and Kincade for aiding and abetting retaliation.3
The trial court set an initial discovery end date of December 28, 2017.
The court later granted the parties' joint request for a sixty-day discovery
extension. Plaintiff moved for a second sixty-day extension, which the court
granted, setting a new end date of May 30, 2018. On May 3, 2018, plaintiff
moved for another sixty-day extension, asserting defendant had not provided
documents requested orally during depositions; "[p]laintiff ha[d] very recently
2
In the record before the motion court, Rosalind Kincade is also referred to as
Rosalind Kincaid. We use the surname Kincade because it is the one by which
she was identified in the complaint, the captions of the pleadings filed in the
trial court, and the captions of the papers filed on appeal.
3
The court granted defendant summary judgment on the disability
discrimination claim and granted Mack and Kincade summary judgment on the
aiding and abetting claim. In his brief on appeal, plaintiff does not challenge
the court's order granting summary judgment on those claims. We therefore do
not address any issues related to those claims, and we affirm the court's order
granting summary judgment on each of them. See Sklodowsky v. Lushis, 417
N.J. Super. 648, 657 (App. Div. 2011) (finding "[a]n issue not briefed on appeal
is deemed waived"); Jefferson Loan Co. v. Session, 397 N.J. Super. 520, 525
n.4 (App. Div. 2008) (same).
A-5368-18
3
served a formal [r]equest" for documents on defendant; and defendant had not
yet conducted its court-ordered redeposition of plaintiff.
Defendant completed the redeposition of plaintiff on May 8, 2018. On
May 17, defendant served its response to plaintiff's formal demand for
documents and filed opposition to plaintiff's motion to extend discovery. One
week later, defendant moved for summary judgment, and plaintiff thereafter
cross-moved for summary judgment.
The Summary Judgment Record
Prior to addressing the facts relied on by the parties in support of their
motions, we note that "[w]e review de novo the trial court's grant of summary
judgment, applying the same standard as the trial court." Abboud v. Nat'l Union
Fire Ins. Co., 450 N.J. Super. 400, 406 (App. Div. 2017). This standard
mandates the grant of summary judgment "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).
A-5368-18
4
In our review of a summary judgment record, we limit our determination
of the undisputed facts to those properly presented in accordance with Rule 4:46-
2. Under the Rule:
[A] party moving for summary judgment is required to
submit a "statement of material facts" . . . "set[ting]
forth in separately numbered paragraphs a concise
statement of each material fact as to which the movant
contends there is no genuine issue together with a
citation to the portion of the motion record establishing
the fact or demonstrating that it is uncontroverted."
[Claypotch v. Heller, Inc., 360 N.J. Super. 472, 488
(App. Div. 2003) (quoting R. 4:46-2(a)).]
"[A] party opposing a motion for summary judgment [must] 'file a responding
statement either admitting or disputing each of the facts in the movant's
statement.'" Ibid. (quoting R. 4:46-2(b)). "[A]ll material facts in the movant's
statement which are sufficiently supported will be deemed admitted for purposes
of the motion only, unless specifically disputed by citation conforming to the
requirements of paragraph (a) demonstrating the existence of a genuine issue as
to the fact." R. 4:46-2(b).
Rule 4:46-2's requirements are "critical" and "entail[] a relatively
undemanding burden." Housel v. Theodoridis, 314 N.J. Super. 597, 604 (App.
Div. 1998). They were "designed to 'focus [a court's] . . . attention on the areas
of actual dispute' and [to] 'facilitate the court's review' of the motion."
A-5368-18
5
Claypotch, 360 N.J. Super. at 488 (second alteration in original) (quoting
Pressler & Verniero, Current N.J. Court Rules, cmt. 1.1 on R. 4:46-2 (2003)).
As such, a trial court must decide a motion for summary judgment based only
upon the "factual assertions . . . that were . . . properly included in the motion
[for] and [in opposition to] . . . summary judgment" pursuant to Rule 4:46-2.
Kenney v. Meadowview Nursing & Convalescent Ctr., 308 N.J. Super. 565, 573
(App. Div. 1998); see also Lombardi v. Masso, 207 N.J. 517, 549 (2011)
(Rivera-Soto, J., dissenting) (stating a trial court must decide a summary
judgment motion "[b]ased on the [Rule]-defined, specifically tailored summary
judgment record before it"). Thus, we will only consider "those [properly
included] factual assertions" on appeal. Kenney, 308 N.J. Super. at 573; see
also Lombardi, 207 N.J. at 549 (Rivera-Soto, J., dissenting) ("That limitation—
that a summary judgment determination is defined and limited by the summary
judgment record—also applies on appeal."). Therefore, in our review of the
court's summary judgment order, we rely solely on the undisputed facts
A-5368-18
6
established by the parties' Rule 4:46-2 statements.4 See Kenney, 308 N.J. Super.
at 573.
We have carefully considered the Rule 4:46-2 statements of the parties
and glean the following undisputed facts. 5 Defendant, located in Atlantic City,
"is an independent authority in, but not of, the New Jersey State Department of
Treasury." Plaintiff, a Caucasian male, began working for defendant in April
2011.6 He was first employed as a construction manager and, in that position,
4
As a result, we reject plaintiff's frequent reliance, in the terse statement of
facts in his brief on appeal, on deposition testimony asserting purported facts
that were never presented to the motion court in accordance with Rule 4:46-2.
5
Our review of plaintiff's responses to defendant's statement of material facts
reveals that most of the responses were either not supported by any citation to
competent record evidence or were supported only by citation to plaintiff's
statement of facts. Additionally, many of plaintiff's denials that are supported
by citation to plaintiff's statement of material facts refer to purported facts that
do not refute defendant's factual assertions to which the response is made. It is
unnecessary that we detail the manner in which each of plaintiff's responses to
defendant's statement of material facts do not provide a denial in accordance
with Rule 4:46-2, but we note that based on our analysis of the parties' Rule
4:46-2 statements, we deem the material facts set forth in defendant's statement
admitted for purposes of defendant's summary judgment motion. See R. 4:46-
2(b) ("[A]ll material facts in the movant's statement which are sufficiently
supported will be deemed admitted for purposes of the motion only, unless
specifically disputed by citation [to the record] . . . .").
6
Although not supported by citation to the record, plaintiff asserts in his Rule
4:46-2 statement, and defendant admits, plaintiff was employed by the Atlantic
City Special Improvement District (SID) from 2000 until his employment with
A-5368-18
7
"he supervised eleven employees and was responsible for building parks and
performing building maintenance and landscaping services within Atlantic
City's tourism district." Defendant had an anti-harassment and anti-
discrimination policy, which plaintiff received in approximately October 2014.
In December 2014, defendant promoted plaintiff to the position of
Operations Manager. As a result of the promotion, plaintiff became responsible
for the supervision "of approximately [sixty] employees, including [eight]
supervisors in the General Maintenance department of [defendant]'s Special
Improvement District Division [(SIDD)]." Mack, an African American male,
was a supervisor in the SIDD. He reported to Maurice Cherry and Angel
defendant. The SID was created pursuant to The Pedestrian Mall and District
Improvement Act, N.J.S.A. 40:56-65 to -89, which authorizes the creation of
municipal SIDs and management corporations to administer the SIDs, with the
goal of encouraging "self-help programs to enhance . . . local business
climates." N.J.S.A. 40:56-65(b). After passage of the Atlantic City Tourism
District Act in 2011, N.J.S.A. 5:12-218 to -233, which "prohibited" the city
"from 'designat[ing] the tourism district or any portion thereof as an area in need
of redevelopment or an area in need of rehabilitation, or adopt[ing] a
redevelopment plan for any property within the tourism district,'" Casino
Reinvestment Dev. Auth. v. Birnbaum, 458 N.J. Super. 173, 179 (App. Div.
2019) (alterations in original) (quoting N.J.S.A. 5:12-220(f)), defendant
"acquired most of the assets and specifically enumerated liabilities of the [c]ity
SID, and hired many, but not all, of the employees who previously worked for
the . . . SID," including plaintiff.
A-5368-18
8
Torres—two SIDD assistant managers who reported to plaintiff. Plaintiff
reported to the director of the SIDD, Rick Santoro, another Caucasian male.
Kincade, an African American woman, was defendant's Human Resources
(HR) Director. Kincade's duties included "investigat[ing] complaints of
discrimination and harassment, . . . interviewing witnesses, making findings,
reporting her findings to upper management[,] and making recommendations for
discipline."
Prior to or on about March 3, 2015, Mack told Cherry plaintiff had
directed certain offensive conduct to him. Cherry advised Mack to contact HR.
On or about March 3, Mack called Kincade "and asked for a meeting with
[her], . . . Santoro[,] and [plaintiff] regarding [plaintiff's] inappropriate conduct
toward him." Mack met with Kincade and Santoro, and informed them plaintiff
"made comments to him questioning his sexuality, accusing him of raping his
foster children[,] and making a racial comment related to white being pure like
clouds and black being like crows, death and grungy." Mack later testified he
did not say plaintiff "insulted African Americans," but he considered plaintiff's
statement concerning white and black to be "racist." HR had not received any
prior complaints concerning plaintiff.
A-5368-18
9
Santoro and Kincade met with plaintiff and Mack on March 9, 2015. At
this meeting, plaintiff "admitted making comments [to Mack] about race and
sexuality . . . but denied making a comment about Mack abusing his foster
children." Santoro informed plaintiff "his comments and behavior were
unacceptable in the workplace." Plaintiff did not make any complaints to
Santoro or Kincade concerning Mack prior to or during the meeting. Following
the meeting, Kincade questioned Lance Hamilton—a General Maintenance
supervisor—and Cherry "about Mack's allegations."
Hamilton told Kincade "he witnessed [plaintiff] make a disparaging
comment to Mack in the [company] lunchroom" to the effect of, "[Y]ou can tell
you're the type of person who rapes his kids when he goes home." "Hamilton
[also] told [Kincade] that [plaintiff] constantly [made] biased statements about
race and religion in the lunchroom." Hamilton further stated plaintiff
"questioned 'how come black people do most of the crime and white people do
less[,]' and that [plaintiff] made jokes about Hamilton being Muslim related to
bombs and terrorism."7
7
This factual assertion in defendant's Rule 4:46-2 statement is denied by
plaintiff, but the denial is unsupported by a citation to competent record
evidence. In support of the denial, plaintiff cites to "#18-22, 44-47" of his own
statement of facts—a range to which he cites multiple times in support of his
A-5368-18
10
"Cherry told [Kincade] that Mack told him he was hurt and embarrassed
by [p]laintiff's conduct and that he told Mack to document everything and to set
up a meeting with Santoro and Human Resources." Further, Cherry advised
Kincade "that a lot of the SID[D] employees do not like to deal with [p]laintiff
because they believe he creates a hostile work environment."
Kincade prepared a memorandum concerning her findings and relayed the
findings to Santoro and defendant's general counsel, Paul G. Weiss. On March
12, 2015, defendant "suspended [p]laintiff pending the outcome of its
investigation for making unprofessional and inappropriate statements to his
subordinates." "The decision to suspend [p]laintiff was made by Santoro with
the approval of Weiss and [defendant]'s then[-e]xecutive [d]irector, John
Palmieri," all three of whom are Caucasian. Kincade and Mack "were [not]
consulted []or otherwise involved in the decision to suspend [p]laintiff." At the
denials—but the cited statements of fact are unrelated to Hamilton's report
concerning plaintiff's questions about race and "jokes" about Hamilton's
religion. In any event, each of plaintiff's denials is required to be accompanied
by "a citation to the portion of the motion record establishing the fact or
demonstrating that it is uncontroverted." R. 4:46-2(a) to (b). Otherwise,
defendant's "sufficiently supported [facts] will be deemed admitted for purposes
of the motion." R. 4:46-2(b). The Rule mandates that each statement and denial
of fact be accompanied by citation to the record. R. 4:46-2(a) to (b). Plaintiff's
citations to his own statement of facts, aside from being unresponsive to the
factual assertions plaintiff attempts to deny, do not otherwise conform with the
requirements of the Rule.
A-5368-18
11
time of his suspension, plaintiff had not made any allegations of misconduct
against Mack.8
Following plaintiff's suspension and defendant's notification there would
be an investigation, plaintiff's counsel sent a March 17, 2015 "formal internal
complaint" letter to Weiss "requesting an investigation of certain conduct
allegedly committed by Mack." Specifically, the letter alleged Mack:
(1) admitted that he is racist against white people; (2)
accused [p]laintiff's "people of raping African-
American women and dragging them into slavery on
boats"; (3) stated to [p]laintiff that white people have
killed more black people than the amount of Jews killed
in the holocaust; and (4) showed [p]laintiff a video of
[Mack] firing an assault gun and hand guns.
Defendant retained outside counsel—the law firm of Dughi, Hewit &
Domalewski, P.C. (special counsel)—to investigate plaintiff's and Mack's
complaints. Two lawyers from the firm, both of whom are Caucasian, conducted
the investigation. They reviewed documentation pertaining to the complaints
and interviewed twelve witnesses.
8
Plaintiff denied this fact and asserted he "told Santoro about Mack being a
liar." To support this denial, plaintiff incomprehensively cites to "Doc 738,
739." The record presented to the motion court does not permit an identification
of the evidence to which the citation makes reference, and therefore does not
allow a determination as to whether whatever plaintiff intended to rely on to
support the denial constitutes competent evidence and, if so, whether it actually
supports the denial.
A-5368-18
12
One of those witnesses was Mack, who reported plaintiff:
(a) intimated in front of Mack's co-workers that Mack
engaged in homosexual activities at parties when he
was younger by stating that "Dingo was fucking you in
the ass" sometime between mid-January and mid-
February of 2015[;]
(b) asked employees in the company lunchroom "why
is everything black dirty and bad, and pure things are
white? White clouds, black crows" sometime between
mid-January and mid-February of 2015[; and]
(c) commented "Muslims like to blow people up and
Catholics like to fuck little boys. Mack is home fucking
his kids" in February 2015.
Mack also testified at his deposition that he had heard other employees using
inappropriate language while at work, including "the n-word" and the word
"faggot."
Special counsel also interviewed Hamilton, who stated plaintiff:
(a) came into the company lunchroom and questioned
why black people commit more crimes than white
people[;]
(b) commented in the company lunchroom that Mack
was the type of person who would molest his own
children[;]
(c) stated that "Muslims like to make bombs, Catholics
like to mess with little boys, and Latinos are into
Santeria"[; and]
A-5368-18
13
(d) made comments to [Hamilton] about his Muslim
faith over a period of years, including that Hamilton is
Al Qaeda and likes to make bombs.
Special counsel also interviewed Cherry, who advised "he ha[d] heard
comments about [p]laintiff being racist and having a terrible workplace
demeanor and that he ha[d] heard some Latino workers complain about
[p]laintiff being racist." Both Cherry and Santoro also reported "that during the
interview of a new hire in February 2015, [p]laintiff continued to say 'andale,
andale' when the candidate did not provide answers fast enough[,] and at one
point [plaintiff] said, 'Welcome to America.'"
"Kim Ward, [defendant]'s Human Resources Benefits Administrator, told
[s]pecial [c]ounsel that she [also] witnessed [p]laintiff say 'andale, andale,' and
'[w]elcome to America' to job candidates during interviews[;] . . . that both
candidates spoke English[;] and [that] one told [p]laintiff that he was born in
America." "Ward [additionally] told [s]pecial [c]ounsel . . . [p]laintiff
commented 'andale, andale, comprende' to another Hispanic job candidate and
that Santoro told [p]laintiff . . . his comments were inappropriate on both
occasions." Torres further corroborated this allegation, informing special
counsel "that [p]laintiff made comments to Hispanic employees such as[,]
'Welcome to America[,]' and directed Spanish curse words at Hispanic
A-5368-18
14
employees such as 'mamabicho' and 'cabron,' which [s]pecial [c]ounsel learned
mean[t] 'you fucking cocksucker' and 'asshole-fucker-bitch.'"
"Hassan Hameen, an [a]ssistant [m]anager in the SID[D], told [s]pecial
[c]ounsel that [p]laintiff 'doesn't know when to shut up' and likes to put fear in
people"; "that [p]laintiff ha[d] called . . . employees 'gay'"; and that plaintiff
"once referred to an employee's wife as a 'bitch.'" "Jose Caban, a General
Maintenance [s]upervisor, told [s]pecial [c]ounsel that he witnessed [p]laintiff
make inappropriate comments and use foul language." However, Caban "could
not recall any specific examples."
"Kelvin Speights, a General Maintenance seasonal employee," informed
special counsel "that [p]laintiff cursed and made racial slurs and inappropriate
comments for the entire six years he worked in the SID[D]," which resulted in
some "employees pass[ing] up opportunities to earn extra money working for
[p]laintiff because of how [he] talk[ed] to people, including calling them dumb
and stupid." Speights further advised that "[p]laintiff [would] walk into a room
where everyone [was] Spanish, looking to start with everyone[,] and would
comment about one racial group to another racial group." Speights provided as
an example "that [p]laintiff [once] commented 'Spanish workers work hard but
blacks are lazy; [forty] acres and a mule.'" "Speights [also] told [s]pecial
A-5368-18
15
[c]ounsel that [p]laintiff made a comment to him approximately three years prior
about not wanting black people to move to his neighborhood because of black
music and [barbecues] and stated that he has a shotgun if someone decides to
come through and get into his house." Additionally, "Mark Sharpe, a General
Maintenance employee, told [s]pecial [c]ounsel that [p]laintiff referred to him
as 'Crackie' and accused [him] of 'messing with the stuff' after [his] drug test
reported a false positive."
"Wilson Colon, a General Maintenance [s]upervisor, told [s]pecial
[c]ounsel . . . he did not witness any inappropriate comments or conduct by
[p]laintiff." However, Colon had only been employed in the SIDD since January
2015, two months before plaintiff's termination.
Special counsel also interviewed plaintiff, who said Mack made the
comments alleged in plaintiff's counsel's March 17 letter during one
conversation. However, Mack denied making the statements, and "Santoro,
Cherry, Hameen, Torres, Hamilton, Caban, Colon, Speights[,] and
Sharpe . . . all denied knowledge of Mack engaging in any such conduct."
"Special [c]ounsel concluded that '[plaintiff]'s allegations against Mack [were]
uncorroborated and not credible' and that '[t]here [was] no evidence that Mack
violated [defendant]'s rules and policies.'"
A-5368-18
16
Based on the investigation, "[s]pecial [c]ounsel concluded . . . [p]laintiff
'consistently subjected his subordinates to inappropriate and racially or
religiously charged comments in the workplace that would likely constitute
more than random incidents and disagreements'"; "[p]laintiff 'initiated and
carried on conversations regarding religious and racial stereotypes'"; and
"[p]laintiff's 'behavior ha[d] been ongoing for some time and ha[d] only
increased due to his recent promotion to General Manager.'" "Special counsel
further concluded . . . '[t]he evidence against [plaintiff] support[ed] a pervasive
pattern of disparaging, inappropriate[,] and offensive comments made by
[plaintiff] in the workplace in the reported comments made to and about Mack,
in additional comments made to and about other SID[D] employees, and in
additional comments made to and about candidates during interviews.'"
Special counsel submitted a final report, and, on May 22, 2015, defendant
terminated plaintiff's employment based upon Santoro's recommendation and
Weiss and Palmieri's approval. Defendant notified plaintiff of his termination
by letter that same day. The full records of special counsel's investigation and
report were provided to plaintiff in discovery.
In opposition to defendant's summary judgment motion, plaintiff
submitted a certification of William Scull, a private investigator, that plaintiff
A-5368-18
17
identifies in his appendix on appeal as his "statement of facts." The certification
makes no mention of it constituting a supplement to plaintiff's statement of
material facts and, more importantly, it includes no citations to the record. See
R. 4:46-2(a) to (b). Further, and as the motion court noted, the certification sets
forth only assertions pertaining to the experience and beliefs of Holly Rosado,
a Caucasian female who was employed by defendant. Since Scull—not
Rosado—made the certification, it is not based on the personal knowledge of
the affiant. See R. 1:6-6 ("If a motion is based on facts not appearing of record
or not judicially noticeable, the court may hear it on affidavits made on personal
knowledge . . . ."); see also Wells Fargo Bank, N.A. v. Ford, 418 N.J. Super.
592, 599 (App. Div. 2011) (stating "[a] certification will support the grant [or
denial] of summary judgment only if the material facts alleged therein are based,
as required by Rule 1:6-6, on 'personal knowledge'").
Plaintiff also relied on an unsworn email from Scull attaching an unsworn
email from Rosado in which Rosado purportedly states the information provided
in Scull's certification was accurate. Plaintiff additionally relied on a separate
unsworn email from Scull to plaintiff's counsel attaching a purported email from
Rosado stating she reviewed a certification from Scull, which is not attached to
A-5368-18
18
either of the emails, and she "would testify, under the penalty of perjury, that
[the] statements [in the certification] are accurate as documented."
The record shows the emails were submitted by plaintiff's counsel in a
letter updating the court on the status of the matter. That is, the emails were
submitted as an attachment to counsel's letter, and they are untethered to an
affidavit based on personal knowledge establishing their authenticity. See R.
1:6-6; see also New Century Fin. Servs., Inc. v. Oughla, 437 N.J. Super. 299,
332 (App. Div. 2014) (providing that "[d]ocuments appended to [papers
submitted to the trial court,] . . . not authenticated in a certification[,] must be
rejected"); Ford, 418 N.J. Super. at 600 (finding "[t]he trial court should not
have considered [a] document" which was "simply attached" to papers submitted
to the court and not "authenticated by an affidavit or certification based on
personal knowledge"); Celino v. Gen. Accident Ins., 211 N.J. Super. 538, 544
(App. Div. 1986) (explaining the requirement that "critical documents" which
are purported to support facts upon which a motion for, or in opposition to,
summary judgment is based must be submitted "to the court by way of affidavit
or testimony" is "not merely formal," but "go[es] to the heart of procedural due
process"). Moreover, none of the statements of purported fact set forth in the
emails is supported by an affidavit based on personal knowledge as required by
A-5368-18
19
Rule 1:6-6. Rosado never provided an affidavit in accordance with Rule 1:6-6
and Rule 1:4-4 supporting the assertions of fact attributed to her by Scull in his
certification, and, for the reasons noted, the purported emails from Rosado upon
which plaintiff relies to support the veracity of Scull's representations
concerning Rosado do not constitute competent evidence.
Based on Scull's certification, plaintiff alleged "[Kincade] and [defendant]
created an atmosphere that favored the majority African American and Muslim
employees over Caucasians"; "[Kincade] and [defendant] reject[ed] qualified
Caucasian job applicants for less[-]qualified African American applicants"; and
"[a]fter passing over Caucasian job applicants, . . . [Kincade] and [defendant]
would then request . . . the Caucasian job applicants to train the African
American applicant[s] who undeservedly get the job or promotion." Plaintiff
further alleged, based on Scull's certification, that "[f]rom 2005 to
2017, . . . [defendant] would systematically either fail to hire or fail to promote
Caucasian applicants for positions due to race with the positions being filled by
African American candidates instead"; "[Kincade] would discriminate and
openly disparage Caucasian employees"; and, as a result, defendant "has become
a government entity . . . that is comprised of [ninety-five percent] African
American and Hispanic employees."
A-5368-18
20
Although the court correctly noted "the certification [was] arguably not
properly before the [c]ourt," it "nevertheless . . . assume[d] the allegations
[were] before the [c]ourt." We decline to do the same. "[C]ertification[s] will
support the grant [or denial] of summary judgment only if the material facts
alleged therein are based, as required by Rule 1:6-6, on 'personal knowledge.'"
Ford, 418 N.J. Super. at 599 (emphasis added). "[T]he trial court should not
have considered [purported facts] that [were] not 'authenticated by an affidavit
or certification based on personal knowledge,'" Deutsche Bank Nat'l Tr. Co. v.
Mitchell, 422 N.J. Super. 214, 225 (App. Div. 2011) (quoting Ford, 418 N.J.
Super. at 600), and we will not do so as part of our de novo review of the record
on appeal.
The Court's Decision
After hearing argument on the cross-motions, the court rendered an
opinion from the bench, finding plaintiff did not present evidence establishing a
prima facie case of reverse race discrimination. The court explained plaintiff
did not "raise an issue of material fact . . . demonstrat[ing] . . . [he] was targeted
and ultimately terminated because he was [w]hite," or that defendant was the
"unusual employer" who discriminates against the majority. The court likewise
found plaintiff did not establish a prima facie case of retaliation because he did
A-5368-18
21
not demonstrate a "causal link between the complaint" he made concerning
Mack "and [his] termination." The court entered a June 27, 2019 order granting
defendant summary judgment, dismissing plaintiff's claims, and denying
plaintiff's cross-motion for summary judgment, and a June 28, 2019 order
denying plaintiff's motion to extend discovery.
On appeal, plaintiff argues he presented sufficient evidence establishing:
(1) defendant is the "unusual employer" who discriminates against the majority;
(2) plaintiff was terminated due to his race and replaced with a less-qualified
African American employee; and (3) there is a causal link between his complaint
concerning Mack and his termination. Plaintiff also contends the trial court
erred by denying his request for discovery of special counsel's itemized billing
records related to the investigation that preceded his termination based on the
attorney-client privilege.9 We are not persuaded.
9
Plaintiff's notice of appeal reflects an appeal only from the trial court's June
27, 2019 order granting defendant summary judgment. His notice of appeal does
not identify the June 28, 2019 order denying his motion to extend discovery as
one from which his appeal is taken. The order is thus not subject to our review.
See Nielsen v. Wal-Mart Store No. 2171, 429 N.J. Super. 251, 256 n.3 (App.
Div. 2013) (stating an order is "not preserve[d] . . . for review" when it is "not
identif[ied] . . . in [the] notice of appeal"); see also 1266 Apt. Corp. v. New
Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004) ("[I]t is only the
judgment or orders designated in the notice of appeal which are subject to the
appeal process and review."). Plaintiff also waived any challenge to the order
A-5368-18
22
II.
Plaintiff first argues the court erred by granting defendant summary
judgment on his reverse race discrimination claim. Under the LAD, it is
unlawful "[f]or an employer, because of the race . . . of any individual, . . . to
discriminate against such individual in compensation or in terms, conditions[,]
or privileges of employment." N.J.S.A. 10:5-12(a). "In LAD cases, we
'frequently look to federal precedent . . . as "a key source of interpretive
authority,"' unless 'that law sharply diverges from prior authority construing the
LAD [or does not] further[] the objectives of the LAD [or] comport[] with our
prior holdings.'" Crisitello v. St. Theresa Sch., 465 N.J. Super. 223, 228 n.2
(App. Div. 2020) (second, third, fourth, and fifth alterations in original) (quoting
Aguas v. State, 220 N.J. 494, 510 n.4 (2015)); see also Turner v. Wong, 363 N.J.
Super. 186, 210 (App. Div. 2003) (finding "[i]n interpreting the LAD, the federal
law has consistently been considered for guidance").
In our assessment of disparate treatment claims under the LAD, we
"conform[] our analysis in substantial measure to the burden-shifting framework
because he does not argue on appeal the court erred by denying his motion to
extend discovery. See Sklodowsky, 417 N.J. Super. at 657; Jefferson Loan Co.,
397 N.J. Super. at 525 n.4.
A-5368-18
23
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)."10
Gerety, 184 N.J. at 399. Under this approach, a plaintiff must first establish a
prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. A
plaintiff accomplishes this by demonstrating: "that he or she (1) belongs to a
protected class; (2) applied for or held a position for which he or she was
objectively qualified; (3) was not hired or was terminated from that position;
and (4) the employer sought to, or did fill the position with a similarly-qualified
[or less-qualified] person." Gerety, 184 N.J. at 399. "The burden then shifts to
the employer to prove a legitimate, non-discriminatory reason for the
employment action." Ibid. A "[p]laintiff can respond by showing the employer's
proffered reason was merely pretext for the discrimination." Ibid. "Although
the discrimination must be intentional," a plaintiff can prove discriminatory
10
"The [U.S.] Supreme Court has recognized two theories of relief under Title
VII—disparate treatment and disparate impact—and we acknowledge both as
cognizable under the LAD." Gerety v. Atl. City Hilton Casino Resort, 184 N.J.
391, 398 (2005). Disparate impact claims "involve[] employment practices that
are facially neutral in their treatment of different groups but that in fact fall more
harshly on one group than another," whereas disparate treatment claims arise
when "[t]he employer simply treats some people less favorably than others
because of their race, color, religion, sex, or national origin." Ibid. (quoting
Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 81-82 (1978)). Here, plaintiff
alleges he suffered from disparate treatment; he claims he was terminated
because of his race.
A-5368-18
24
intent through "either direct or circumstantial evidence." Bergen Com. Bank v.
Sisler, 157 N.J. 188, 208 (1999).
"In reverse discrimination cases"—where the plaintiff is a member of a
group "that has not historically been victimized by discrimination"—the first
prong of the McDonnell Douglas framework requires the plaintiff to
"substantiate . . . that the 'background circumstances support the suspicion that
the defendant is the unusual employer who discriminates against the majority.'"
Erickson v. Marsh & McLennan Co., 117 N.J. 539, 551-52 (1990) (citation
omitted).
"An employee can demonstrate 'background circumstances' sufficient to
raise an inference of discrimination" in one of two ways. Bergen Com. Bank,
157 N.J. at 214 (quoting Murphy v. Milwaukee Area Tech. Coll., 976 F. Supp.
1212, 1217 (E.D. Wis. 1997)). The first is "by establishing . . . that the plaintiff
was better qualified for the position than the minority candidate selected." Ibid.
"A rational employer can be expected to promote the more[-]qualified applicant
over the less[-]qualified, because it is in the employer's best interest to do so."
Harding v. Gray, 9 F.3d 150, 153 (D.C. Cir. 1993). "When an employer acts
contrary to its best interests, then it is proper to infer a discriminatory motive. "
DeCapua v. Bell Atl.-N.J., Inc., 313 N.J. Super. 110, 122 (Law Div. 1998). "As
A-5368-18
25
the Supreme Court has observed, 'we know from our experience that more often
than not people do not act in a totally arbitrary manner, without any underlying
reasons, especially in a business setting.'" Ibid. (quoting Harding, 9 F.3d at
154). Thus, "'[a]bsent a legitimate reason for the employer's action,' irrational
conduct by an employer raises an inference of discrimination against the
majority . . . employee." Ibid. (quoting Harding, 9 F.3d at 154). Alternatively,
the plaintiff may demonstrate "that the defendant had some reason or inclination
to discriminate against the majority class." Bergen Com. Bank, 157 N.J. at 214.
Plaintiff argues the court erred by finding he failed to establish a prima
facie case of reverse race discrimination. In support of his argument, he cites to
purported evidence he claims satisfies his burden of demonstrating a prima facie
case. For example, plaintiff argues in conclusory fashion that "the incident
causing his suspension and subsequent termination was either
orchestrated . . . or appropriated . . . by [Kincade] . . . to replace plaintiff in his
position with a less[-]qualified individual." We reject the argument because
"'conclusory and self-serving assertions' . . . without explanatory or supporting
facts will not defeat a meritorious motion for summary judgment." Hoffman v.
Asseenontv.Com, Inc., 404 N.J. Super. 415, 425-26 (App. Div. 2009) (quoting
Puder v. Buechel, 183 N.J. 428, 440 (2005)). Plaintiff's argument also fails
A-5368-18
26
because it is untethered to any facts supported by citations to competent
evidence that were presented to the court in the parties' Rule 4:46-2 statements.
Plaintiff similarly attempts to support his claim that "defendant is the
unusual employer who discriminates against the majority," Erickson, 117 N.J.
at 551 (citation omitted), by citing to special counsel's investigative report which
states "Santoro . . . described the SID[D] as being 'approximately 95% minority,
which he estimated at 50% [African American], 45% Hispanic[,] and 5%
white/other.'" Plaintiff correctly asserts "statistical evidence may be useful in
determining whether an act of discrimination has occurred," see Kunda v.
Muhlenberg Coll., 621 F.2d 532, 542 (3d Cir. 1980) (stating "statistics as to [an
employer's] employment policy and practice may be helpful to a determination
of whether [the employer's action] . . . in [a given] case conform[s] to a general
pattern of discrimination" (quoting McDonnell Douglas, 411 U.S. at 805)), and
that a claim of discrimination in hiring by an African American applicant "would
be bolstered by evidence that the selection rate of qualified [African American]
applicants is significantly below the selection rate of qualified applicants of
other races, or that [African Americans] are significantly under-represented in
the employer's workplace given their availability in the qualified labor market,"
see Shea v. Kerry, 961 F. Supp. 2d 17, 28 (D.D.C. 2013) ("Statistically
A-5368-18
27
significant disparities between the percentage of minorities employed and the
percentage of qualified minorities in the labor market can be strong evidence of
a manifest imbalance."). We reject plaintiff's reliance on Santoro's purported
statement, however, because it is not set forth in an affidavit as required by Rule
1:6-6; plaintiff did not rely on Santoro's purported statement in his opposition
to the summary judgment before the motion court; and plaintiff did not present
the purported facts described in Santoro's statement to the motion court in
accordance with Rule 4:46-2. Additionally, we otherwise do not consider
plaintiff's argument based on Santoro's purported statement because it was "not
properly presented to the trial court," Nieder v. Royal Indem. Ins. Co., 62 N.J.
229, 234 (1973), and it does not "go to the jurisdiction of the trial court or
concern matters of great public interest,"11 ibid. (quoting Reynolds Offset Co. v.
Summer, 58 N.J. Super. 542, 548 (App. Div. 1959)).
11
In any event, we note that even assuming the statistical information was
properly presented to the motion court, plaintiff provides no evidence or law
supporting a conclusion or inference that defendant's "selection rate of qualified
applicants of other races" is higher than that of Caucasians, or that Caucasians
"are significantly under-represented in [defendant]'s workplace given their
availability in the qualified labor market." See Shea, 961 F. Supp. 2d at 28. The
statistical information attributed to Santoro in the investigate report merely
describes the racial and ethnic composition of the SIDD workforce. Thus, even
if plaintiff properly included the information attributed to Santoro in his Rule
4:46-2 statement, it does not give rise to an inference of discrimination. C.f.
A-5368-18
28
Plaintiff also argues he established the first prong of a prima facie case of
reverse race discrimination because he was "[r]eplaced . . . [w]ith [a l]ess[-
q]ualified African[] American." See Bergen Com. Bank, 157 N.J. at 214;
Harding, 9 F.3d at 153-54. Plaintiff claims "[t]he fact that he was promoted
over his successor, . . . Cherry, who had to be trained for the position by another
more[-]qualified Caucasian candidate[, Rosado,] who incidentally was passed
over for the position, certainly supports an inference that . . . plaintiff was better
qualified."
Plaintiff also suggests Cherry's promotion over the purportedly "more[-
]qualified" Rosado further establishes the required "background circumstances."
See Erickson, 117 N.J. at 551 (citation omitted). Again, plaintiff's Rule 4:46-2
statement does not present any facts demonstrating Cherry's qualifications, or
lack of them, or supporting a finding Cherry was less qualified than plaintiff.
Further, and more importantly, plaintiff's reliance on the "less-qualified
minority applicant" standard is misplaced. See Harding, 9 F.3d at 153-54. The
standard assumes employers are rational, and therefore, when an employer acts
Shea, 961 F. Supp. 2d at 28 (explaining "[s]tatistically significant disparities
between the percentage of minorities employed and the percentage of qualified
minorities in the labor market can be strong evidence of a manifest imbalance "
(emphasis added)).
A-5368-18
29
against its best interest in hiring or promoting a less-qualified minority
employee over a more-qualified member of the majority without "a legitimate
reason," discrimination is the only plausible motive. DeCapua, 313 N.J. Super.
at 122 (quoting Harding, 9 F.3d at 154).
Here, the undisputed facts in the parties' Rule 4:46-2 statements establish
defendant had "a legitimate reason" to terminate plaintiff. Ibid. (quoting
Harding, 9 F.3d at 154). After conducting interviews of twelve employees,
special counsel concluded plaintiff "consistently subjected his subordinates to
inappropriate and racially or religiously charged comments in the workplace,"
and his "behavior ha[d] been ongoing for some time and ha[d] only increased
[after] his . . . promotion to General Manager." Plaintiff does not dispute that
such conduct violates defendant's anti-harassment and anti-discrimination
policy, which plaintiff describes as "zero[-]tolerance."12 Thus, even if plaintiff
was more qualified for the position than Cherry—and plaintiff presented no
competent evidence that is the case—defendant's decision to replace plaintiff
does not give rise to an inference of discrimination because the termination of
12
The parties' Rule 4:46-2 statements do not specifically address the contents
of defendant's anti-harassment and anti-discrimination policy. However, the
allegations against plaintiff, if true, clearly constitute harassment and/or
discrimination.
A-5368-18
30
plaintiff's employment necessitated defendant filling the position with another
person. DeCapua, 313 N.J. Super. at 122; Harding, 9 F.3d at 153-54.
Plaintiff also claims Cherry was less qualified than Rosado for plaintiff's
position, but that assertion finds no support in the summary judgment record.
The information concerning Rosado that plaintiff presented in opposition to the
summary judgment motion is supported solely by the Scull certification which,
as noted, does not constitute competent evidence because it is not based on
Scull's personal knowledge. See R. 1:6-6. Thus, the record lacks any competent
evidence that was properly presented to the court supporting plaintiff's claims
concerning Rosado. See ibid.; Mitchell, 422 N.J. Super. at 225; Ford, 418 N.J.
Super. at 600.
In support of his argument that the summary judgment record established
a prima facie case of reverse race discrimination, plaintiff also generally relies
on the following: (1) the "disparate treatment" of Rosado; (2) "the treatment
afforded Dawn Messer," who plaintiff claims in his appellate brief "was
transferred from . . . [Kincade]'s supervision following an incident . . . that left
Ms. Messer visibly upset"; (3) defendant's failure to discipline Mack for
showing a video of himself at a gun range to co-workers; and (4) the fact that
plaintiff was punished for using offensive language while others in the SIDD
A-5368-18
31
were not. These broad claims find no support in the parties' Rule 4:46-2
statements.
As noted, the information concerning Rosado is not supported by
competent evidence. 13 Similarly, the parties' Rule 4:46-2 statements do not
include any facts pertaining to Messer, and, as a result, the record is devoid of
competent evidence supporting plaintiff's claims concerning her. See Kenney,
308 N.J. Super. at 573.
13
We also observe that even if we could properly accept as true the information
concerning Rosado that Scull provides in his certification, it does not provide
facts supporting a finding Rosado was the victim of the disparate treatment form
of reverse race discrimination. The certification details certain employment
actions taken at the SIDD that Rosado allegedly reported to Scull. The
certification reports little more than Rosado believed that the actions about
which she was dissatisfied were taken because of her race—Caucasian. For
example, the certification states Rosado was not appointed to several positions
during her tenure at SIDD, and that she "believes" she was rejected because of
her race. The certification similarly includes conclusory assertions, untethered
to any reported statements of fact, that the positions for which she applied were
awarded to less-qualified and less-experienced African American employees.
The certification, however, does not include a report of any facts supporting the
claim she was the more-qualified candidate or permitting the court to conclude
she was. In other words, the certification is devoid of any reported facts
allegedly made by Rosado that support either a finding or a reasonable inference
that defendant is the unusual employer who discriminates against the majority.
The certification also does not identify any African American employees
similarly situated to plaintiff; the certification does not identify an African
American employee who, like plaintiff, engaged in conduct violative of the anti-
harassment and anti-discrimination policy, and who was not terminated.
A-5368-18
32
We also consider plaintiff's claim defendant's disparate treatment in
punishment of its employees for "misconduct of comparable seriousness" gives
rise to an inference defendant is an unusual employer who discriminates against
the majority. He argues "that witnesses had heard offensive words[,] like '[the
n-word]' . . . and 'faggot,' for years, but . . . no one was ever reprimanded for it,
despite a known . . . zero[-]tolerance policy that was stated in every handbook
every employee at the SID[D] was required to acknowledge receiving."
Defendant's failure to take action in response to the use of offensive terms by
other employees does not support an inference of discrimination because the
undisputed facts show, and plaintiff acknowledges, "no one ever reported" the
other employees' offensive behavior. It cannot reasonably be concluded that
defendant enforced its "zero[-]tolerance policy" in a discriminatory manner by
imposing discipline for misconduct about which it had knowledge but failing to
impose discipline for misconduct about which it is undisputed defendant was
unaware.
We next address plaintiff's claim defendant's failure to punish Mack for
showing co-workers a video of himself at a gun range establishes racially
disparate punishment for infractions of similar seriousness. Plaintiff vaguely
claims, "In this era of reported mass shootings in the workplace, it is
A-5368-18
33
inconceivable that this kind of inappropriate behavior wouldn't at least merit a
reprimand in the file." However, he does not allege Mack made any threats
while showing the video, or that Mack violated any laws or any of defendant's
policies. In contrast, plaintiff's conduct, as reported by special counsel
following its investigation, constituted a blatant violation of defendant 's anti-
discrimination and anti-harassment policy.
In sum, the undisputed facts do not establish defendant terminated
plaintiff and hired a less-qualified employee without "a legitimate reason."
DeCapua, 313 N.J. Super. at 122 (quoting Harding, 9 F.3d at 154). Further,
plaintiff failed to present any competent evidence establishing "defendant had
some reason or inclination to discriminate against the majority class." Bergen
Com. Bank, 157 N.J. at 214. Because plaintiff did not "substantiate . . . that the
'background circumstances support the suspicion that . . . defendant is the
unusual employer who discriminates against the majority,'" Erickson, 117 N.J.
at 551 (citation omitted); see also Bergen Com. Bank, 157 N.J. at 214, the court
correctly determined he failed to satisfy the first prong of a prima facie claim of
discrimination, see Erickson, 117 N.J. at 551. For that reason alone, we affirm
the court's summary judgment award to defendant on plaintiff's reverse race
discrimination claim.
A-5368-18
34
Although unnecessary to our affirmance of the court's order granting
defendant summary judgment on the reverse race discrimination claim, we
briefly address the court's analysis of the second prong of a prima facie case of
race discrimination.
To satisfy the second prong of a prima facie discrimination claim, a
plaintiff must show he or she was "objectively qualified" for his or her position.
Gerety, 184 N.J. at 399. The plaintiff's burden is slight: "[a]ll that is necessary
is that the plaintiff produce evidence showing that [he or] she was actually
performing the job prior to the termination." Zive v. Stanley Roberts, Inc., 182
N.J. 436, 454 (2005). Furthermore, "only the plaintiff's evidence should be
considered." Id. at 455. "That evidence can come from records documenting
the plaintiff's longevity in the position at issue or from testimony from the
plaintiff or others that [he or] she had, in fact, been working within the title from
which [he or] she was terminated." Ibid. Facts that are "more properly debated
in the second and third stages of the burden-shifting test," such as issues with
the plaintiff's performance, "do not come into play as part of the second prong
of the prima facie case." Ibid.
Here, the court found defendant did not satisfy the second prong because
it did "not believe . . . plaintiff [could] establish . . . [he] was performing his job
A-5368-18
35
in a manner that met the employer's legitimate expectations" and "the
investigation conducted by [special] counsel [uncovered] that . . . plaintiff made
racist, religiously intolerant[,] and other derogatory comments to employees."
However, the alleged deficiencies in plaintiff's performance should not have
been considered in assessing the second prong. See ibid. In Zive, our Supreme
Court explained that language in prior cases defining the "legitimate
expectations" test was "at best imprecise and at worst, misleading," id. at 450,
454, and, as noted, held that a plaintiff satisfies the second prong by establishing
he or she was "performing the job prior to the termination," id. at 454-55. There
is no dispute plaintiff was "working within the title from which []he was
terminated" at the time of his termination. Id. at 455. As such, plaintiff's alleged
misconduct in making inappropriate statements to co-workers did not support
the court's finding plaintiff failed to satisfy the second prong of the prima facie
standard. See id. at 454-55. However, since plaintiff otherwise failed to present
evidence establishing the first prong of a prima facie case, the court's error is of
no moment.14
14
The court did not expressly address the issue of "pretext" in the context of its
decision granting defendant summary judgment on plaintiff's reverse race
discrimination claim. See Gerety, 184 N.J. at 399. Instead, it mentioned pretext
only in its discussion of plaintiff's cross motion for summary judgment, noting
A-5368-18
36
III.
Plaintiff next argues the court erred by "[d]enying [p]laintiff [d]iscovery
of" special counsel's itemized billing records based on attorney-client privilege.
"In general, we apply an abuse of discretion standard to decisions made by our
trial courts relating to matters of discovery." Pomerantz Paper Corp. v. New
Cmty. Corp., 207 N.J. 344, 371 (2011). "That is, '[w]e generally defer to a trial
court's disposition of discovery matters unless the court has abused its discretion
or its determination is based on a mistaken understanding of the applicable law.'"
Ibid. (alteration in original) (quoting Rivers v. LSC P'ship, 378 N.J. Super. 68,
plaintiff "moved for summary judgment[,] . . . arguing that [defendant]'s finding
that plaintiff created a hostile work environment was a pretext and the real
reason was discrimination and therefore plaintiff should be granted a motion for
summary judgment," and that "[p]laintiff devote[d] one short paragraph to this
argument." The court found it was "not . . . clear what . . . theory of plaintiff's
complaint . . . plaintiff [was] seeking . . . summary judgment on," but the court
concluded "there [was] no merit to [plaintiff's] argument" and it denied
plaintiff's cross motion. Although we review the summary judgment record de
novo, we do not determine if defendant is also entitled to summary judgment on
the reverse race discrimination claim based on plaintiff's failure to establish
defendant's legitimate nondiscriminatory reason for the termination was a
pretext for race discrimination, because the issue was not decided by the motion
court and resolution of the issue is unnecessary to our disposition of the
arguments presented on appeal. See Estate of Doerfler v. Fed. Ins., 454 N.J.
Super. 298, 301-02 (App. Div. 2018) (explaining our de novo review of a
summary judgment record does not require that we decide pertinent issues in the
first instance). We also note plaintiff does not challenge on appeal the court's
denial of his cross-motion. See Sklodowsky, 417 N.J. Super. at 657; Jefferson
Loan Co., 397 N.J. Super. at 525 n.4.
A-5368-18
37
80 (App. Div. 2005)). "An abuse of discretion 'arises when a decision is made
without a rational explanation, inexplicably departed from established policies,
or rested on an impermissible basis.'" Kornbleuth v. Westover, 241 N.J. 289,
302 (2020) (quoting Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440
N.J. Super. 378, 382 (App. Div. 2014)).
Plaintiff does not explain how the trial court "[d]en[ied him d]iscovery of"
the itemized billing records. Plaintiff never moved to compel production of the
billing records, and, as noted, he does not appeal from the court's June 28, 2019
order denying his motion to extend discovery. See Nielsen, 429 N.J. Super. at
256 n.3 (finding an order is "not preserve[d] . . . for review" when it is "not
identif[ied] . . . in [the] notice of appeal"). We therefore interpret plaintiff's
argument to be that the court erred by granting defendant summary judgment
prior to plaintiff's receipt of the billing records he had requested.
Although the court found special counsel's itemized bills were protected
by the attorney-client privilege, the court more significantly concluded
production of the records would not impact its determination of defendant 's
summary judgement motion. The court explained defendant had "produced
nearly 900 pages of documents[,] . . . including [its] entire investigation file,"
and, based on its in camera review of the itemized bills, the court determined
A-5368-18
38
the billing records were "not germane to the issues in this case." More
particularly, the court found the records did "not disclose anything that would
suggest . . . this was some type of sham investigation as alleged
by . . . plaintiff," nor did they suggest "that the attorney investigators were
somehow directed to focus on certain evidence to the exclusion of other
evidence or to come to some particular conclusion."
Plaintiff argued before the motion court, and argues again on appeal, he
is entitled to the billing records because they will reveal whether special counsel
conducted LAD research and they will demonstrate that special counsel's
investigation was a sham. We reject the contention because he offers no basis
in law or logic to reverse the court's determination that whether special counsel
performed LAD research is simply not relevant to whether plaintiff could
establish a prima facie case of reverse race discrimination or any of his other
claims against defendant. Moreover, the court's independent review of the
billing records disclosed that they did not establish any facts supporting
plaintiff's claims of discriminatory or retaliatory treatment or that the
investigation was a sham. Plaintiff provides no basis supporting a reversal of
the court's findings, and we discern no grounds to conclude the court erred by
deciding the summary judgment motion without providing plaintiff access to the
A-5368-18
39
records. See Minoia v. Kushner, 365 N.J. Super. 304, 307 (App. Div. 2004)
(finding disposition of a summary judgment motion should not be delayed to
permit additional discovery where the discovery "will patently not chang e the
outcome" of the court's ruling on the motion); United Sav. Bank v. State, 360
N.J. Super 520, 525 (App. Div. 2003) (explaining "if further factual
development is unnecessary in light of the issues presented, then summary
judgment need not be delayed" to permit additional discovery).
IV.
Last, we address plaintiff's contention the court erred by granting
defendant summary judgment dismissing his retaliation claim. Under the LAD,
it is unlawful "[f]or any person to take reprisals against any person because that
person has opposed any practices or acts forbidden under this act or because that
person has sought legal advice regarding rights under this act . . . or filed a
complaint." N.J.S.A. 10:5-12(d). To establish an LAD retaliation claim,
plaintiffs must show: "(1) they engaged in a protected activity known by the
employer; (2) thereafter their employer unlawfully retaliated against them; and
(3) their participation in the protected activity caused the retaliation." Craig v.
Suburban Cablevision, 140 N.J. 623, 629-30 (1995).
A-5368-18
40
The third prong—causation between the protected activity and adverse
action—"may be demonstrated by evidence of circumstances that justify an
inference of retaliatory motive," and evidence which may establish pretext for
termination may also serve that function. Romano v. Brown & Williamson
Tobacco Corp., 284 N.J. Super. 543, 550-52 (App. Div. 1995). Temporal
proximity of protected activity and an adverse employment action will not, by
itself, support an inference of causation unless "the facts of the particular case
are so 'unusually suggestive of retaliatory motive.'" Young v. Hobart W. Grp.,
385 N.J. Super. 448, 467 (App. Div. 2005) (quoting Krouse v. Am. Sterilizer
Co., 126 F.3d 494, 503 (3d Cir. 1997)).
Plaintiff failed to present evidence to the motion court establishing a
causal link between his counsel's March 17, 2015 letter complaint concerning
Mack and his termination. The undisputed facts establish defendant suspended
plaintiff, and advised plaintiff it would perform an investigation concerning the
conduct which ultimately led to his termination, prior to his counsel's March 17
letter. On March 12, 2015, Santoro gave plaintiff an "[e]mployee [w]arning
[n]otice" stating plaintiff was suspended "pending [the] outcome of [an]
investigation." Special counsel conducted the investigation and provided a
comprehensive report to defendant on May 15, 2015, stating plaintiff
A-5368-18
41
"consistently subjected his subordinates to inappropriate and racially or
religiously charged comments." Defendant then terminated plaintiff's
employment on May 22. Plaintiff presented no evidence or facts to the motion
court, nor points to any on appeal, supporting an inference defendant's decision
to terminate plaintiff was due to plaintiff's complaint, and the undisputed facts
in the summary judgment record establish plaintiff was terminated because
special counsel's investigation revealed plaintiff's consistent violation of what
he admits is defendant's "zero[-]tolerance" anti-discrimination and anti-
harassment policy.
Finally, plaintiff argues defendant had a pre-determined plan to fire him
prior to the investigation. This factual assertion alone requires the dismissal of
plaintiff's retaliation claim because it is undisputed defendant decided to
conduct the investigation prior to plaintiff's counsel's letter complaint. If, as
plaintiff asserts, defendant resolved to terminate plaintiff prior to the
investigation and service of plaintiff's complaint, then defendant did not, and
could not have, decided to terminate plaintiff in retaliation for the complaint. In
any event, and putting plaintiff's illogical arguments aside, we are convinced the
court correctly determined plaintiff failed to present evidence establishing
A-5368-18
42
causation and properly granted defendant summary judgment on plaintiff's
retaliation claim.
To the extent we have not expressly addressed any of plaintiff's other
arguments, they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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43