LANCE BROWN VS. RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY (NEW JERSEY DIVISION ON CIVIL RIGHTS) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-1518-18T1
LANCE BROWN,
Complainant-Appellant,
v.
RUTGERS, THE STATE
UNIVERSITY OF NEW JERSEY,1
Respondent-Respondent.
Submitted September 16, 2020 – Decided October 2, 2020
Before Judges Rose and Firko.
On appeal from the New Jersey Division on Civil
Rights, Docket No. EM14RE-65825.
Lance Brown, appellant pro se.
Backes & Hill, LLP, attorneys for respondent Rutgers,
The State University of New Jersey (Christine M.
Pickel, on the brief).
1
Improperly pled as New Jersey Rutgers University, University Correctional
Health Care.
Gurbir S. Grewal, Attorney General, attorney for
respondent New Jersey Division on Civil Rights
(Farng-Yi D. Foo, Deputy Attorney General, on the
statement in lieu of brief).
PER CURIAM
Lance Brown appeals a final agency determination of the New Jersey
Division on Civil Rights (Division) finding no probable cause supporting his
claim that Rutgers, The State University of New Jersey, engaged in racial
discrimination in violation of the New Jersey Law Against Discrimination
(LAD), N.J.S.A. 10:5-1 to -49. We affirm.
Brown is a licensed psychologist with master's degrees in two disciplines
of psychology and a Ph.D. in counseling psychology. In 2009, Brown was hired
as a forensic mental health clinician by the University of Medicine and Dentistry
of New Jersey, which operated the University of Behavioral Health Care
(UBHC). Brown was assigned to the Bayside State Prison as a part of UBHC's
University Correctional Health Care (UCHC) unit. UCHC professionals are
responsible for providing mental health, physical health, and sex offender
specific treatment services for residents, inmates, and parolees of the New Jersey
Department of Corrections, Juvenile Justice Commission, and the State Parole
Board. In 2011, Brown was promoted to mental health clinician supervisor of
the UCHC unit.
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In 2013, Rutgers assumed operations of the UBHC. Brown took an
approved medical leave of absence from April 26, 2015 to November 23, 2015.
When he returned to work, Brown requested and received a disability
accommodation, which included a temporary transfer to a position in a prison
located closer to his home. Brown informed Dr. Jeffrey Dickert, UCHC's Chief
Operating Officer, that he was interested in pursuing non-corrections positions
with UBHC. Because he was only responsible for UCHC positions, Dr. Dickert
informed Brown he would share Brown's resume with Dr. Rose Marie Rosati,
Dr. Dickert's counterpart at UBHC. Dr. Dickert also suggested that Brown apply
for any open UCHC positions via the online application system.
Vacant positions are typically posted on Rutgers's website for a minimum
of five business days; applications must be made online. Accordingly, the
reviewing staff is not provided with information about an applicant's
demographics, including race. 2 Thereafter, a list of qualified candidates is
forwarded to the Office of Employment Equity, which "ensures equal
opportunity and affirmative action in employment."
2
Because Brown's resume included his affiliation with the National Association
of Black Psychologists, the Division expressly declined to "conclude that hiring
managers were unaware of [Brown]'s race in selecting applicants for
interviews."
A-1518-18T1
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Between November 2015 and January 12, 2016, Brown unsuccessfully
applied for seven positions within Rutgers:
(1) Program Manager, UBHC Supportive Housing;
(2) Program Director, Robert Wood Johnson Medical
School – Office of Student and Multicultural Affairs;
(3) Program Coordinator, UBHC Club in Cherry Hill;
(4) Clinical Supervisor, UBHC – Brief Treatment;
(5) Clinical Care Coordinator, New Jersey Medical
School, Department of Pediatrics;
(6) Assistant Dean II Supervisor Transfer Services –
School of Engineering – Academic Affairs; and
(7) Clinician Supervisor, UBHC – Integrated Case
Management Services.
On March 3, 2016, Brown filed a verified complaint with the Division
alleging Rutgers discriminated against him by denying "several" promotions and
transfers based on his race. The Division investigated Brown's allegations. As
part of that investigation, the Division served a document and information
request on Rutgers, whose responses included a detailed written statement of
position, answers to the Division's information requests, and production of
defendant's personnel file. The Division also reviewed the records, including
letters and email exchanges between the parties.
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In sum, Rutgers denied the allegations, claiming Brown "was not selected
for the seven positions to which he formally applied for legitimate, non -
discriminatory reasons." Those reasons included: cancellation of the position;
submission of an application "too late in the hiring process"; the selection of
"more qualified" individuals; and Brown's failure to apply "for positions in
which he may have expressed interest."
In a detailed report, addressing each of the seven positions Brown
challenged, the Division found
of seven positions [Brown] applied for during the
relevant period, two were awarded to African-
American applicants. One position was never filled.
And for two positions, interviews had already been
conducted or a candidate had already been selected
when [Brown] applied. For the remaining positions,
[Rutgers] provided reasons unrelated to race for its
personnel decision. In some cases, the position was a
direct promotion from a position that the successful
candidate had performed for a significant amount of
time, giving that applicant experience that would be
particularly relevant to the position. In one case, the
selected candidate had been performing the position in
an acting capacity.
[Brown] argued that his Ph.D. and master's
degrees meant that he was a superior candidate over
those who held only master's degrees. [Brown]'s
education is impressive. Under the circumstances,
however, a higher level of education, without more,
was insufficient to support the conclusion that
[Rutgers]'s articulated reasons for selecting other
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candidates was a pretext for race discrimination. The
job postings made it clear that experience with the
particular subject area was required or preferred, and
the resumes showed that the successful candidates had
relevant experience. In this context, the investigation
could not conclude that valuing experience more highly
than a Ph.D. was evidence of race discrimination.
Ultimately, the Director [of the Division] takes
no position on the soundness of [Rutgers]'s hiring
criteria or selection process, but finds that race was not
a factor in the manner in which they were applied in
this case. A factfinder's role in an employment
discrimination case is not to "analyze the subjective
business decisions of an employer, nor to set its own
employment standards for the employer, unless there is
evidence of discrimination." . . . Here, the Director
finds that the [Division's] investigation uncovered no
persuasive evidence – and none was produced by
[Brown] – to show that the explanations proffered by
[Rutgers] for its personnel decisions were merely
pretexts and designed to mask unlawful motives.
Based on the investigation, and in the absence of
persuasive evidence of a discriminatory animus, this
case will be closed [based on a finding of no probable
cause].
Accordingly, on September 28, 2018, the Director "determined pursuant
to N.J.S.A. 10:5-14 and N.J.A.C. 13:4-10.2 that there [wa]s no probable cause
to credit the allegations of [Brown's] complaint" and closed the Division's file.
This appeal followed.
On appeal, Brown raises the following points for our consideration:
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I. AFTER INVESTIGATION FROM [MARCH 30,
2016 TO SEPTEMBER 28, 2018], THE [DIVISION]
CONCLUDED WITH A REVIEW OF SEVEN HAND-
SELECTED POSITIONS (THERE WERE MORE FOR
WHICH DR. LANCE BROWN HAD APPLIED) AND
GIVES NO RATIONALE AS TO WHY THE
SELECTED CANDIDATES WERE JUDGED TO BE
SUPERIOR, WHY DR. BROWN DID NOT MEET
MINIMAL QUALIFICATIONS FOR INTERVIEW
AND THE FACTORS THAT SUGGEST THAT DR.
BROWN WAS TREATED FAIRLY WITHOUT
REGARD TO HIS RACE.
(Not Raised Below).
II. THE [DIVISION] FAILS TO IDENTIFY[] HOW
AND WHY A LICENSED PSYCHOLOGIST WITH
SENIORITY AND A GOOD EMPLOYMENT
HISTORY (NO INFRACTIONS IN [SEVEN] YEARS)
IS UNABLE TO GARNER AN INTERVIEW FOR
ANY POSTED POSITION AND THE ROLE RACE
PLAYED IN DRS. CEVASCO AND GREEN
SUBMITTING BOGUS PERFORMANCE
EVALUATIONS FOR DR. BROWN TO CREATE A
NEGATIVE JOB HISTORY THAT DID NOT EXIST.
(Not Raised Below).
III. THE [DIVISION] RELIED SOLELY UPON
SUBJECTIVE AND "WORD OF MOUTH" DATA
WHEN WHOLLY OBJECTIVE INFORMATION
WAS READILY AVAILABLE THROUGH THE
ROCS ONBOARDING SYSTEM USED BY
RUTGERS UNIVERSITY IN ITS[] HIRING
PROCESS.
(Not Raised Below).
IV. [THE DIVISION] ACKNOWLEDGES THE
INACCURACIES CONTAINED IN THE FINDING
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OF NO PROBABLE CAUSE REPORT DATED
SEPTEMBER 28, 2018.
(Not Raised Below).
V. PERCEIVED FAILURE OF THE [DIVISION] TO
EMPLOY ADEQUATE RESOURCES AND TIME
INTO INVESTIGATING THE POTENTIAL
VIOLATIONS TO DR. BROWN'S CIVIL RIGHT BY
NOT EMPLOYING REASONABLE AND
EXPECTED EFFORTS.
(Not Raised Below).
Our limited review of an administrative agency's action is well settled.
Russo v. Bd. of Trs., Police & Firemen's Retirement Sys., 206 N.J. 14, 27
(2011); Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988) (recognizing
the appellate court's review of the Division's decision is circumscribed) . "The
Legislature established the Division to administer and enforce the LAD."
Wojtkowiak v. N.J. Motor Vehicle Comm'n, 439 N.J. Super. 1, 12 (App. Div.
2015) (citing N.J.S.A. 10:5-6). "The Division 'has expertise in recognizing acts
of unlawful discrimination, no matter how subtle they may be.'" Ibid. (quoting
Clowes, 109 N.J. at 588). Given that expertise, we "afford[] a 'strong
presumption of reasonableness' to [the Division]'s exercise of its statutorily
delegated responsibilities." Lavezzi v. State, 219 N.J. 163, 171 (2014) (quoting
Newark v. Nat. Res. Council, Dep't of Env't. Prot., 82 N.J. 530, 539 (1980)).
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"We may reverse the Director's decision only if 'the Director's finding is
clearly a mistaken one and so plainly unwarranted that the interests of justice
demand intervention and correction.'" Wojtkowiak, 439 N.J. Super. at 13
(quoting Clowes, 109 N.J. at 588). We "will not upset an agency's ultimate
determination unless the agency's decision is shown to have been 'arbitrary,
capricious, or unreasonable, or [] not supported by substantial credible evidence
in the record as a whole.'" Ibid. (quoting Barrick v. State, 218 N.J. 247, 259
(2014)). Nonetheless, we "must survey the record to determine whether there is
sufficient credible competent evidence in the record to support the agency head's
conclusions." Ibid. (quoting Clowes, 109 N.J. at 587).
Brown fails to direct us to any authority supporting his contentions, which
essentially challenge the sufficiency of the evidence upon which the Division
based its finding of no probable cause. See generally R. 2:6-2 (requiring a table
of citations of statutes, rules, caselaw and other authority). Further, most of
Brown's assertions were not raised before the Division, and as such we need not
review them on appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234
(1973).
We have nonetheless considered all of Brown's contentions in light of the
record and applicable legal principles and conclude they are without sufficient
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merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm
substantially for the reasons expressed in the Division's thorough written
decision, which "is supported by sufficient credible evidence on the record as a
whole." R. 2:11-3(e)(1)(D).
Affirmed.
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