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NOT FOR PUBLICATION WITHOUT THE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-1366-20
JYOTSNA VIBHAKAR,
Plaintiff-Appellant,
v.
STATE OF NEW JERSEY,
STATE OF NEW JERSEY
DEPARTMENT OF HUMAN
SERVICES, ANN KLEIN
FORENSIC CENTER,
JENNIFER VELEZ, ELIZABETH
CONNOLLY, GLENN FERGUSON,
ANN KENYON, LINDA ELIAS,
and VALERIE BAYLESS,
Defendants-Respondents.
Submitted April 26, 2022 – Decided July 6, 2022
Before Judges Currier, DeAlmeida, and Smith.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-2276-16.
Law Office of Donald F. Burke, attorneys for appellant
(Donald F. Burke and Donald F. Burke, Jr., on the
briefs).
Matthew J. Platkin, Acting Attorney General, attorney
for respondents (Jane C. Schuster, Assistant Attorney
General, of counsel; Eric Intriago, Deputy Attorney
General, on the brief).
PER CURIAM
Plaintiff appeals from the trial court's December 11, 2020 order granting
defendants'1 motion for summary judgment and denying plaintiff's cross-motion.
In her complaint alleging a violation of the New Jersey Law Against
Discrimination (LAD), 2 plaintiff asserts she was passed over for several
promotions during her long tenure with defendants because of her race and
national origin—she was born in India and is Asian.3 Because the trial court did
not err in finding plaintiff could not demonstrate that defendants' proffered
legitimate reasons denying her the sought promotions were pretext, we affirm.
Plaintiff worked for the State of New Jersey in various positions for over
twenty-five years before retiring in August 2020. In 2002, she was hired as an
1
The named individual defendants are all state employees. We refer to all
defendants collectively.
2
N.J.S.A. 10:5-1 to -50.
3
Plaintiff's complaint also alleged defendants discriminated against her because
of her age. She was sixty-three at the time of the filing of the complaint.
Plaintiff does not contest the dismissal of her claims regarding age
discrimination.
A-1366-20
2
instructor counselor for the Ann Klein Forensic Center. She remained in that
position until she retired. Between 2007 and 2016, plaintiff applied for nine
promotions for positions within the facility. She was not selected for any of the
jobs. She asserts the State violated the LAD and the New Jersey Civil Rights
Act (CRA), N.J.S.A. 10:6-1 to -2, in denying her the promotions.
Plaintiff also alleged in her complaint that defendants denied her
promotions in 2015 and 2016 because she filed a complaint with the Equal
Employment Opportunity Commission (EEOC) in 2010 asserting discriminatory
behavior and harassment because she was not selected for certain positions
within the facility. She contends defendants retaliated against her because of
the complaint.
Plaintiff filed her complaint on November 18, 2016. The trial court found
that any alleged instances of discrimination that occurred prior to November 17,
2014, were barred under the two-year statute of limitations established under
N.J.S.A. 2A:14-2. See also Montells v. Haynes, 133 N.J. 282, 292 (1993).
Plaintiff does not challenge the court's ruling barring consideration of the denied
promotions that occurred between 2007 and 2014, but instead urges this court
to consider them as "a pattern that could support a jury's conclusion that the
A-1366-20
3
employer discriminated and retaliated against [her]." Therefore, we need not
address the time-barred allegations.
Plaintiff's resume indicates she was educated at DKV Arts and Science
College. She states she completed course work equivalent to an associate degree
in arts. She also obtained a certification in psychiatric rehabilitation.
We turn to the two promotions the court found timely as the postings
occurred in 2015 and 2016.
In May 2015, Anne Kenyon—Director of Human Resources at Ann
Klein—authorized the recruitment for a senior rehabilitation counselor position
to replace an employee retiring July 1, 2015. Under the Department of Human
Service's policy, a person could not be appointed to a position until it became
vacant. The personnel action form stated, "[R]ecruit after retirement 7/1/15
approved." In May 2015, plaintiff was the only candidate on the eligible civil
service list; the list expired on June 20, 2015.
The job opportunity was posted on July 31, 2015 and plaintiff submitted
an application. The candidate who was eventually chosen for the position was
employed as a rehabilitation counselor at another state facility and was
determined eligible on a different civil service list. The candidate was selected
on a provisional basis for the job, which rendered her eligible for permanent
A-1366-20
4
employment at Ann Klein. The successful candidate had a bachelor's degree in
psychology and was certified as a therapeutic options trainer and in psychiatric
rehabilitation. She had worked as a rehabilitation counselor since 2011.
In April 2016, the Civil Service Commission (CSC) posted a job
announcement seeking candidates to permanently fill the position of senior
rehabilitation counselor. The position required a bachelor's degree, "including
or supplemented by twenty-four" additional credits relevant to the
responsibilities of the position. A candidate had to supply a copy of the
transcript. The posting stated if a candidate held a foreign degree or transcripts,
the documents would be "evaluated by a recognized evaluation service." 4 The
posting further indicated that an individual lacking a bachelor's degree but
possessing the required twenty-four credits, "may substitute additional
experience for the remaining education on a year-for-year basis. One (1) year
of experience is equal to thirty (30) semester hour credits."
Plaintiff applied for the position. In August 2016, a Certification of
Eligibles for Appointment was signed by Kenyon indicating three eligible
candidates, one being the employee working in the position on a provisional
4
Numerous job postings plaintiff had previously applied to also listed the
degree evaluation requirement.
A-1366-20
5
basis. Plaintiff was not listed as an eligible candidate. Defendants assert that
the successful candidate was more qualified and was on the civil service list of
eligible candidates while plaintiff was not.
All parties moved for summary judgment. In a December 11, 2020 oral
decision, the trial court held that the alleged instances of discrimination that
occurred prior to November 17, 2014 were each a discrete act and, therefore,
barred by the two-year statute of limitations under N.J.S.A. 2A:14-2.
In considering the 2015 and 2016 allegations of discrimination and
retaliation, the court found that defendants provided "legitimate
nondiscriminatory reason[s]" for their employment decisions and plaintiff failed
to show the reasons were pretextual. In addressing the 2015 hiring decision, the
judge noted the successful candidate "not only had a Bachelor's degree in
psychology, but also had [twelve] years of rehabilitation experience. And more
significantly she had actually held a lower title of rehabilitation counselor of
mental health," which plaintiff lacked. In addition, plaintiff did not hold a
Bachelor's degree.
The 2015 job at issue then became available for a permanent position in
2016. The court found defendants did not discriminate against plaintiff by not
selecting her for the 2016 position "because the [CSC] had not placed plaintiff
A-1366-20
6
on the list of eligibles for the permanent promotion, whereas the incumbent was
on that list and was therefore chosen."
The judge stated that he had examined the record "many times" looking
for "any evidence of pretext," but found "not a shred of evidence of retaliatory
or discriminatory intent or evidence of impermissible motive." The court found
plaintiff only speculated that the selection of a different candidate for the 2015
and 2016 positions was due to discrimination or a retaliatory motive. She
presented no proofs to support her allegations.
The court concluded: "Plaintiff has not pointed to any record, fact
suggesting discrimination or retaliation other than the obvious fact of her Indian
national origin and age, as well as the . . . earlier EEO[C] complaint." And,
"[t]here is nothing to suggest any decision maker was motivated by a bias in
selecting another candidate for a senior rehabilitation counselor position."
In turning to the retaliation claims, the court noted the EEOC complaint
was made in 2010 and there was no "causal connection between the alleged
whistleblowing activity and the alleged adverse employment actions from 2015
and 2016." The court also found plaintiff had not established her claims of
aiding and abetting against the individual defendants.
A-1366-20
7
On appeal, plaintiff contends the court erred in granting summary
judgment. Our review of a trial court's grant or denial of a motion for summary
judgment is de novo. Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021).
We apply the same standard as the motion judge and consider "whether the
competent evidential materials presented, when viewed in the light most
favorable to the non-moving party, are sufficient to permit a rational factfinder
to resolve the alleged disputed issue in favor of the non-moving party." Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c).
The LAD guarantees that all citizens are afforded the civil rights promised
by our state constitution. N.J.S.A. 10:5-2; Viscik v. Fowler Equip. Co., 173 N.J.
1, 12 (2002). The purpose of the LAD "is to abolish discrimination in the work
place." Fuchilla v. Layman, 109 N.J. 319, 334 (1988).
Although the LAD forbids unlawful, discriminatory employment
practices, it "acknowledges the right of employers to manage their businesses as
they see fit." Viscik, 173 N.J. at 13. "What makes an employer's personnel
action unlawful is the employer's intent." Zive v. Stanley Roberts, Inc., 182 N.J.
436, 446 (2005) (citing Marzano v. Comput. Sci. Corp., 91 F.3d 497, 507 (3d
Cir. 1996)).
A-1366-20
8
To prove discriminatory intent, our Supreme Court adopted the burden-
shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973):
(1) the plaintiff must come forward with sufficient
evidence to constitute a prima facie case of
discrimination; (2) the defendant must then show a
legitimate nondiscriminatory reason for its decision;
and (3) the plaintiff must then be given the opportunity
to show that the defendant's stated reason was merely a
pretext or discriminatory in its application.
[Meade v. Twp. of Livingston, 249 N.J. 310, 328 (2021)
(quoting Henry v. Dep't of Hum. Servs., 204 N.J. 320,
331 (2010)).]
To prove a prima facie case, a plaintiff must show (1) they are a member
of a protected class, (2) they are "otherwise qualified" and can perform "the
essential functions of the job"; (3) they were terminated or not selected for a
position; and (4) "the employer thereafter sought similarly qualified individuals
for that job." Smith v. Millville Rescue Squad, 225 N.J. 373, 395 (2016)
(quoting Victor v. State, 203 N.J. 383, 409 (2010)).
To prove a prima facie case of retaliation under the LAD, a plaintiff must
demonstrate "(1) plaintiff was in a protected class; (2) plaintiff engaged in
protected activity known to the employer; (3) plaintiff was thereafter subjected
to an adverse employment consequence; and (4) there is a causal link between
A-1366-20
9
the protected activity and the adverse employment consequence." Victor, 203
N.J. at 409 (quoting Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 274
(App. Div. 1996)).
"The evidentiary burden at the prima facie stage is 'rather modest: it is to
demonstrate to the court that plaintiff's factual scenario is compatible with
discriminatory intent—i.e., that discrimination could be a reason for the
employer's action.'" Zive, 182 N.J. at 447 (emphasis in original) (citing
Marzano, 91 F.3d at 508). When a plaintiff has proven such, "a presumpti on
arises that the employer unlawfully discriminated." Grande v. St. Clare's Health
Sys., 230 N.J. 1, 18 (2017) (quoting Clowes v. Terminix Int'l, Inc., 109 N.J. 575,
596 (1988)).
After the plaintiff has established a prima facie case of discrimination,
"the burden of production shifts to the employer to articulate a legitimate,
nondiscriminatory reason for the adverse employment action." Henry, 204 N.J.
at 331 (citing Zive, 182 N.J. at 449). To rebut the presumption, "the defendant
must clearly set forth, through the introduction of admissible evidence, the
reasons for the plaintiff's rejection," Greenberg v. Camden Cnty. Vocational &
Tech. Schs., 310 N.J. Super. 189, 199 (App. Div. 1998), in such a way that would
"be legally sufficient to justify a judgment for the defendant." Slohoda v. UPS
A-1366-20
10
207 N.J. Super. 145, 154 (App. Div. 1986) (quoting Tex. Dep't of Cmty. Affs.
v. Burdine, 450 U.S. 248, 255 (1981)). "It is sufficient if the defendant's
evidence raises a genuine issue of fact as to whether it discriminated against the
plaintiff." Reynolds v. Palnut Co., 330 N.J. Super. 162, 167 (App. Div. 2000)
(quoting Burdine, 450 U.S. at 254).
When an employer has put forth such evidence, "the presumption of
unlawful discrimination disappears," Meade, 249 N.J. at 329 (citing Bergen
Com. Bank v. Sisler, 157 N.J. 188, 211 (1999)), and "the burden shifts back to
the [employee] to show the employer's proffered reason was merely a pretext
for discrimination." DeWees v. RCN Corp., 380 N.J. Super. 511, 527 (App.
Div. 2005) (quoting Viscik, 173 N.J. at 14).
"To prove pretext . . . , a plaintiff must do more than simply show that the
employer's reason was false; he or she must also demonstrate that the employer
was motivated by discriminatory intent." Viscik, 173 N.J. at 14. Direct
evidence is not necessary, but the "plaintiff must demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the
employer's proffered legitimate reasons for its action that a reasonable factfinder
could rationally find them 'unworthy of credence,' . . . and hence infer 'that the
employer did not act for [the asserted] non-discriminatory reasons.'" Crisitello
A-1366-20
11
v. St. Theresa Sch., 465 N.J. Super. 223, 239-40 (App. Div. 2020) (quoting
DeWees, 380 N.J. Super. at 528). Plaintiff may "(i) discredit[] proffered reasons
[of the defendant], either circumstantially or directly, or (ii) adduc[e] eviden ce,
whether circumstantial or direct, that discrimination was more likely than not a
motivating or determinative cause of the adverse employment action." Id. at
239 (alterations in original) (quoting DeWees, 280 N.J. Super. at 528). "The
burden of proof . . . remains with the employee at all times," but she need only
show that the employment practice was discriminatory by a preponderance of
the evidence. Zive, 182 N.J. at 449-50.
Although the trial judge did not explicitly state it, we can presume he
found plaintiff established a prima facie case of discrimination. We will as well.
The burden then shifted to defendants to present a nondiscriminatory reason for
not selecting plaintiff for the two jobs. Defendants did so. The candidate chosen
to provisionally fill the position in 2015 had a bachelor's degree and twelve years
of experience working in a state psychiatric hospital. In addition, the candidate
had worked as a rehabilitation counselor for three years in the other facility.
Plaintiff never held the position of rehabilitation counselor. Simply put, the
chosen candidate was more qualified for the position than plaintiff. Moreover,
although plaintiff was on the eligible list for the position, the list expired on
A-1366-20
12
June 20. Defendants were not permitted to begin searching for candidates until
after the incumbent employee retired on July 1.
The 2016 hiring occurred under different circumstances. Plaintiff was not
on the CSC list of eligible candidates. The candidate holding the position
provisionally was on the list. Therefore, defendants followed the protocols
established by the CSC in filling the position.
We are satisfied defendants provided legitimate nondiscriminatory
reasons for not appointing plaintiff to the two positions. And plaintiff could not
demonstrate the reasons were pretextual. She only offered speculation that
defendants acted with a discriminatory motive.
Plaintiff also raises an issue regarding her education in arguing defendants
violated the LAD by not promoting her in 2015 and 2016. She alleges
defendants informed her by letter that she had to provide a foreign degree
evaluation for her credits received from the India institution. Plaintiff did not
produce the letter. Defendants denied sending a letter. Moreover, the postings
were generated by the CSC and the education requirement was promulgated by
the CSC. Moreover, defendants presented more than a lack of education in
explaining why another candidate was selected for both positions.
A-1366-20
13
In addition to having a bachelor's degree, which plaintiff lacked, the
successful candidate in 2015 was more experienced for the position and in 2016,
the candidate was on the eligible list. Plaintiff was not. Furthermore, mere
denial of a promotion that results in a dispute of qualifications is not sufficient
to show pretext. Bennum v. Rutgers St. U., 941 F.2d 154, 170-71 (3d Cir. 1991).
We also reject plaintiff's argument that we should consider the time-barred
allegations of employment discrimination because they could support a pattern
of discrimination and retaliation. Each of the employment actions listed by
plaintiff was a discrete and separate occurrence. Therefore, plaintiff had to
institute suit within two years of each allegation. Moreover, as stated above,
defendants provided legitimate reasons for not appointing plaintiff to the 2015
and 2016 positions.
Plaintiff has not demonstrated the employment actions fall within the
continuing violations doctrine, which permits a series of acts, not actionable as
discrete acts, to be viewed cumulatively as constituting a hostile work
environment. See Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 21
(2002). Each employment action here was a separate act.
Because we are satisfied defendants did not violate the LAD in failing to
promote plaintiff in 2015 and 2016, plaintiff cannot demonstrate any of the
A-1366-20
14
individual defendants aided and abetted the alleged acts of discrimination.
Moreover, none of the individual defendants was plaintiff's supervisor and all
certified they were not involved in the selection process for the positions to
which plaintiff applied.
On appeal, plaintiff does not address her allegations of retaliation with
any specificity other than a conclusory statement that defendants retaliated
against her because she filed a complaint with the EEOC in 2010.
To establish a prima facie claim of retaliation under the LAD, plaintiff
must show: (1) that she engaged in a protected activity known to defendant; (2)
that she was subjected to an adverse employment action; and (3) the existence
of a causal link between the two. Woods-Pirozzi, 290 N.J. Super. at 274.
Plaintiff presented no evidence to support the third prong. Therefore, we must
agree with the trial court that plaintiff failed to satisfy her burden to withstand
summary judgment.
Affirmed.
A-1366-20
15