JYOTSNA VIBHAKAR v. STATE OF NEW JERSEY (L-2276-16, MERCER COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 6, 2022
• Docket: A-1366-20
• Status: Unpublished

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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