Alexander Cardillo v. State Operated School District for the City of Paterson ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-3397-21
ALEXANDER CARDILLO,
Plaintiff-Appellant,
v.
STATE OPERATED SCHOOL
DISTRICT FOR THE
CITY OF PATERSON,
PATERSON BOARD OF
EDUCATION, EILEEN SHAFER,
M.ED, in her official capacity and
individually, MONICA FLOREZ,
in her official capacity and
individually,
Defendants-Respondents.
_____________________________
Argued January 24, 2024 – Decided February 29, 2024
Before Judges Currier and Vanek.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Docket No. L-0820-20.
Juan Carlos Fernandez argued the cause for appellant
(Fernandez Garcia, LLC, attorneys; Michael Garcia and
Juan Carlos Fernandez, of counsel and on the briefs).
Kyle J. Trent argued the cause for respondents
(Apruzzese, McDermott, Mastro & Murphy, PC,
attorneys; Mark J. Blunda, of counsel and on the brief;
Kyle J. Trent, on the brief).
PER CURIAM
Plaintiff Alexander Cardillo appeals the April 8, 2022 order granting
summary judgment in favor of defendants, the Paterson Board of Education (the
Board) and the State Operated School District for the City of Paterson (the
District), as well as Monica Florez and Eileen Shafer, both in their official
capacities and individually, and dismissing his disability discrimination,
unlawful retaliation and wrongful termination claims under the New Jersey Law
Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50, as well as the May 27,
2022 order denying his motion for reconsideration. Because the trial court did
not err in finding plaintiff failed to establish a prima facie case or that the
District's reasons for terminating his employment by eliminating his position as
part of a reduction in force (RIF) were pretext, we affirm.
In reviewing whether summary judgment was improvidently granted, we
view the facts set forth in the record in the light most favorable to plaintiff, the
non-moving party. Harz v. Borough of Spring Lake, 234 N.J. 317, 329 (2018).
In doing so, we give plaintiff "the benefit of the most favorable evi dence and
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most favorable inferences drawn from that evidence." Gormley v. Wood-El,
218 N.J. 72, 86 (2014); see also R. 4:46-2(c).
Plaintiff worked for the District from 2015 until June 2019, when his
contract to work as a library media specialist (LMS) at the Martin Luther King,
Jr. School (the MLK School) was not renewed as part of a RIF. The MLK
School is one of more than fifty schools in the District. While plaintiff worked
at the MLK School, principal Monica Florez was his direct supervisor and Eileen
Shafer was the District superintendent, to whom Florez reported. During
Florez's December 18, 2018 to March 1, 2019 leave of absence, vice principal
Ramona Serrano was the acting principal and plaintiff's supervisor.
During the 2018-19 school year, plaintiff began mentoring Student E, 1 a
thirteen-year-old seventh-grade special education student at the MLK School
who had an individualized education program (IEP) as part of his curriculum.
Plaintiff asserts that at several points before and during Florez's leave of absence
he met with the MLK School's special education team and reported he did not
feel Student E's IEP was being adequately followed.
1
We identify Student E only by his initial in accordance with the motion record
and to preserve the confidentiality of the non-party minor.
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While Florez was on leave, Serrano received several reports concerning
plaintiff's interaction with Student E, including teachers observing plaintiff
alone in the library with Student E in violation of school policy . Serrano
addressed these issues with plaintiff, as well as the concern plaintiff was taking
Student E away from assigned in-class instruction time on a "constant" basis. In
February or March 2019, Serrano instructed plaintiff to stop taking Student E
out of his assigned classes. However, MLK School teachers and administrators
continued to observe plaintiff disregarding Serrano's instructions and spending
time alone with Student E. When Florez returned to work in March 2019, she
spoke with plaintiff about the reports of his inappropriate conduct relating to
Student E during her absence.
In early March 2019, a member of the MLK School staff also reported
directly to Florez that they had seen inappropriate interactions between plaintiff
and Student E. While in Florez's office, the staff member called the New Jersey
Division of Child Protection and Permanency (DCP&P) to report the incident.
At DCP&P's request and with Serrano's knowledge, Florez took steps to ensure
plaintiff was not alone with Student E and advised other MLK School
administrators of the same instruction during the pendency of the DCP&P
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investigation. A school administrator was directed to be present whenever
Student E was in the library with plaintiff.
Despite these efforts, plaintiff's conduct toward Student E continued, and
Florez learned that while the DCP&P investigation was continuing, plaintiff
purchased a McDonald's lunch for Student E, gave the lunch to him in front of
other students, and continued to allow Student E into the library alone with him
in the mornings before school started. Plaintiff also allowed students in his book
club, including Student E, to go into the library during their scheduled lunch
time. Another teacher also complained that plaintiff entered and interrupted
their classroom to speak with Student E during class time. Florez again advised
plaintiff these situations were inappropriate and in violation of school policies.
Plaintiff alleges that around March 2019, Florez began harassing him.
According to plaintiff, he believed the harassment was retaliation because he
informed school administrators he believed Student E's IEP was not being
followed. Specifically, plaintiff alleges Florez followed him around the school
and he was uncomfortable when Florez spoke to him about being alone with
Student E. Plaintiff said Florez intensified her harassment and attacks on him
each time he reported student mistreatment.
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During the same time period, the MLK School administrators learned that
new classes of Pre-K students were being added to the MLK School student
population. Some staff members' schedules had to be changed to accommodate
the additional classes, the teachers' preparation periods and lunch. Since
plaintiff's classification as a LMS qualified him to cover the Pre-K classes,
plaintiff was assigned to assist another staff member in some of those classes.
Plaintiff contends this scheduling change was accomplished while the DCP&P
investigation was pending and that he was assigned to take on classes with non-
communicative students with autism as punishment for reporting the harassment
that Florez was subjecting him to. During this time, plaintiff informed his union
representative that some Pre-K students had removed their diapers and were
running around the classroom. Plaintiff told Florez the new assignment was
causing him anxiety and discomfort. Florez told him "[a]ll you need to do is go
in and read a book to the children."
Plaintiff asserts he has a history of depression and anxiety, for which he
received treatment from medical professionals before, during, and after his
employment at the MLK School. Although plaintiff contends he was
"forthcoming" by advising both Florez and the school nurse of his "well-known"
anxiety diagnosis, plaintiff only recounted two specific occasions during spring
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2019 when he informed staff members at the MLK School of his mental health
conditions.
Plaintiff contends Florez learned of plaintiff's anxiety after he experienced
an incident and went to see the school nurse. The only incident in the record
correlating to this description occurred in March 2019 when Florez scolded
plaintiff for allowing students in the library during lunch. Plaintiff says he
suffered a panic attack as a result of the scolding and had to be escorted to the
school nurse's office. Plaintiff took a sick day on March 15, 2019.
Plaintiff contends that Florez would not allow plaintiff to meet privately
with Shafer on March 18, 2019. On the same date, Florez instructed plaintiff to
remove two students from the library, one of whom was Student E, which
plaintiff felt was inappropriate.
At a meeting that same day, plaintiff told Florez that she was "the person
making [him] sick," he was anxious, and he felt targeted by her. Plaintiff
informed Shafer that Florez was following him around the school. Shafer
replied: "I don't want you to worry about what's going on over there, [Florez] is
retiring very soon and, you know, don't worry about what's happening."
Plaintiff claims that on March 19, 2019, he attempted to give Florez a
"doctor's note" making it clear "he was under duress." However, Florez would
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not accept the note. Plaintiff then provided the note to the school nurse and told
the nurse he had an anxiety disorder and the note was to go in his file at the
District's main office. Plaintiff asserts the nurse then gave the note to Florez.
Florez denies ever seeing a note and testified that if she had received a note
asserting an anxiety disorder, she would have given it to the District and a
determination would be made if she could meet the accommodation. Plaintiff's
District personnel file does not contain a document mentioning an anxiety
disorder.
The note plaintiff references is a February 13, 2019 letter from social
worker, Carole M. Pasahow, DSW, LCSW, stating that "Mr. Alexander Cardillo
has been a patient of mine since January 2014 for treatment of anxiety and
depression." Plaintiff never provided any proof that he was diagnosed with
anxiety and depression by a qualified physician. Plaintiff testified he was not
seeking an accommodation when he gave the note to the nurse.
On April 15, 2019, plaintiff went to the hospital for an anxiety attack.
When he returned to work, he contends that Florez was standing at the front door
and said: "I need your book club list." Plaintiff states that he walked around
Florez and handed a secretary a doctor's note regarding his absence.
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The DCP&P investigation concluded in April or May 2019. At Florez's
deposition, she testified DCP&P "called to tell [her] that the case was finalized
and there were no findings." Plaintiff's union representative learned of the
DCP&P investigation when DCP&P officials went to Student E's house to
conduct an interview. Plaintiff testified at his deposition that he learned of the
then-closed DCP&P investigation on September 27, 2019.
In May 2019, the Board "eliminated hundreds of positions in the District
through a [RIF] due to … [a] budgetary shortfall." The 2019 RIF was one of
several RIFs that occurred in the District almost annually due to financial issues.
The District's initial 2019 RIF plan called for the elimination of all nontenured
LMS positions, including plaintiff's. Only three of the fifty-two schools in the
District were able to keep a non-tenured LMS by substituting other positions,
increasing class sizes or not filling a vacancy which existed in that school.
Twelve LMS positions were among the hundreds of positions eliminated by the
RIF.
The MLK School was required to eliminate three positions. Plaintiff's
position was one of those that Florez recommended be eliminated, as were the
positions of a second-grade teacher and a fourth-grade teacher. The District has
posited there are State requirements as to how many teachers and nurses must
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be kept on staff based on student population size, but no such requirement exists
for the LMS position. Additionally, "[p]laintiff's schedule had the most open
spaces and he covered significantly [fewer] classes than any other non-tenured
staff member."
After Florez submitted a recommended plan for accomplishing the RIF at
the MLK School, the Board voted to accept the proposal and eliminate the LMS
position. Plaintiff was notified that his employment contract for the following
year was not being renewed and his employment officially ended in June 2019.
Plaintiff argues that Florez unilaterally made the decision as to which
positions to eliminate and that the Board, in retaining three LMS positions in the
District with less seniority than him, improperly applied District Policy 3146,
which states, in part: "When two or more nontenured teaching staff members
are employed within the category affected by a [RIF], the nontenured teaching
staff member(s) shall be retained in that category who has demonstrated greater
competence."
Neither plaintiff nor his union representative filed a grievance or petition
regarding his non-renewal and plaintiff did not request a hearing before the
Board. Plaintiff also did not file a grievance or complaint with the District's
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Affirmative Action Office or human resources department claiming harassment
or discrimination while employed by the District.
On March 11, 2020, plaintiff filed an eight-count complaint alleging the
following: disability discrimination in violation of the LAD (count one);
negligent supervision and training (count two); respondeat superior (count
three); hostile work environment in violation of the LAD (count four); aiding
and abetting as to Florez (count five); retaliation (count six); wrongful
termination (count seven); and aiding and abetting as to Shafer (count eight).
After discovery concluded, defendants filed a motion for summary judgment.
On April 8, 2022, the court granted defendants' motion and dismissed the
entirety of the complaint with prejudice for the reasons set forth in a written
decision.
The trial court found plaintiff had failed to present an opinion from an
expert that he had a disability recognized under the LAD and, therefore, plaintiff
had not set forth a prima facie case of disability discrimination. Further, the
trial court rejected plaintiff's retaliation claims as unsubstantiated, unrelated to
any adverse employment actions, and without a causal link to any alleged
protected activities. The trial court also concluded plaintiff did not establish he
was engaged in LAD-protected activities, he lacked standing to bring a case on
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behalf of a special-needs student, and he improperly failed to exhaust
administrative remedies as to his wrongful termination claim.
On May 27, 2022, the court denied plaintiff's motion for reconsideration
finding that plaintiff had not met the standard set forth in D'Atria v. D'Atria, 242
N.J. Super. 392, 401 (Ch. Div. 1990), to warrant reconsideration of a final order.
On reconsideration, the trial court found that plaintiff did not set forth a prima
facie claim for discriminatory discharge since he did not establish that his LMS
position was filled by someone else after the RIF. Although in reply to
opposition to his motion for reconsideration, plaintiff did supply the court with
copies of an advertisement for a District job fair in which the LMS position was
listed as one of the positions being hired for, the court stated it did not consider
any additional evidence submitted on the reconsideration motion that could have
been provided in opposition to defendants' summary judgment motion.
The trial court also found that plaintiff failed to establish causation since
plaintiff admitted it was his belief Florez took action against him for his
relationship with Student E, not as the result of disability discrimination. The
trial court found plaintiff only mentioned an allegation that he was retaliated
against for complaining that Pre-K students with autism were being treated
improperly in a conclusory fashion by way of counsel's argument in opposition
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to summary judgment without making the allegation anywhere in his complaint.
Finally, the trial court found on reconsideration that plaintiff did not establish
any evidence of pretext under the McDonnell Douglas2 burden-shifting
framework. This appeal followed.
On appeal, plaintiff argues the trial court erred in finding he had not
established he had a disability nor that he was advocating on behalf of those
with disabilities. Further, plaintiff alleges the trial court improperly relied on
evidence not established in the record to grant summary judgment and that he
has standing to bring each of the claims in his eight-count complaint. Plaintiff
additionally asserts that the trial court incorrectly found the elimination of his
position resulting from a District-wide RIF was not pretextual.
We review a trial court's grant or denial of a motion for summary judgment
de novo, applying the same standard applied by the trial court. Samolyk v.
Berthe, 251 N.J. 73, 78 (2022). As a result, we are tasked with determining
"'"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."'" C.V. v. Waterford Twp. Bd. of Educ., 255 N.J. 289, 305 (2023)
2
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).
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(quoting Samolyk, 251 N.J. at 78) (quoting Brill v. Guardian Life Ins Co. of
Am., 142 N.J. 520, 540 (1995)).
We broadly construe and apply the protections of the LAD to allow for
the greatest available antidiscrimination impact. Richter v. Oakland Bd. of
Educ., 246 N.J. 507, 537 (2021). "The LAD's worthy purpose is no less than
eradication of '"the cancer of discrimination" in our society.'" Ibid. (quoting
Smith v. Millville Rescue Squad, 225 N.J. 373, 390 (2016) (quoting Nini v.
Mercer Cnty. Cmty. Coll., 202 N.J. 98, 115 (2010))).
In a discrimination claim under the LAD, it is the plaintiff who bears the
burden to establish a prima facie case. Victor v. State, 203 N.J. 383, 408
(2010). To succeed in proving a prima facie case, the evidentiary burden is
"'rather modest.'" Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005)
(quoting Marzano v. Comput. Sci. Corp., 91 F.3d 497, 508 (3d Cir. 1996)). It is
sufficient that the plaintiff is able "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." Ibid. (emphasis
omitted) (quoting Marzano, 91 F.3d at 508).
Given that claims under the LAD are to be interpreted broadly and the
standard for summary judgment requires facts to be viewed in the light most
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favorable to the non-moving party, the trial court's task is not to determine the
strength of the case, but rather if plaintiff's "allegations, if true, can establish
that defendant[] violated the LAD." Beneduci v. Graham Curtin, P.A., 476 N.J.
Super. 73, 82 (App. Div. 2023). "Rather than considering each incident in
isolation, courts must consider the cumulative effect of the various incidents,
bearing in mind 'that each successive episode has its predecessors, that the
impact of the separate incidents may accumulate, and that the work environment
created may exceed the sum of the individual episodes.'" Lehmann v. Toys 'R'
Us, Inc., 132 N.J. 587, 607 (1993) (quoting Burns v. McGregor Elec. Indus. Inc.,
955 F.2d 559, 564 (8th Cir. 1992)).
For plaintiff to succeed in demonstrating that he was improperly
discharged because of his disability, he must establish the four factors set forth
in Viscik v. Fowler Equipment Co., 173 N.J. 1, 14 (2002):
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 that (4) the employer
sought to, or did fill the position with a similarly-
qualified person.
We turn first to the trial court's determination that plaintiff failed to
establish that he was disabled pursuant to the standards set forth by our LAD
decisional law. The trial court found plaintiff must establish a prima facie
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showing of a disability by way of expert opinion as a prerequisite to the viability
of counts one (disability discrimination in violation of the LAD), four (hostile
work environment in violation of the LAD), and five (aiding and abetting as to
Florez). We affirm the trial court and add that establishing a disability is also
dispositive as to count eight (aiding and abetting as to Shafer).
Plaintiff argues that the trial court's determination that he failed to
establish a disability was predicated on the erroneous conclusion that he failed
to produce expert medical testimony. Plaintiff claims he did provide expert
testimony, but the court discredited it after improperly making credibility and
validity determinations in place of the trier of fact.
Under the LAD, an employee who has a disability is a member of a
protected class. N.J.S.A. 10:5-12. Disability is defined in the LAD under
N.J.S.A. 10:5-5(q). "Pursuant to N.J.S.A. 10:5-5(q), there are two specific
categories of handicap: physical and non-physical. The physical and non-
physical clauses of the statute are distinct from each other and provide separate
ways of proving handicap." Viscik, 173 N.J. at 15. "To meet the physical
standard, a plaintiff must prove that he or she is (1) suffering from physical
disability, infirmity, malformation or disfigurement (2) which is caused by
bodily injury, birth defect or illness including epilepsy." Ibid.A-3397-21
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To meet the non-physical standard, a plaintiff
must prove that he or she is suffering (1) from any
mental, psychological or developmental disability (2)
resulting from an anatomical, psychological,
physiological or neurological condition that either (a)
prevents the normal exercise of any bodily or mental
functions or (b) is demonstrable, medically or
psychologically, by accepted clinical or laboratory
diagnostic techniques.
[Id. at 16.]
"Where the existence of a handicap is not readily apparent, expert medical
evidence is required. Accordingly, courts place a high premium on the use and
strength of objective medical testimony in proving the specific elements of each
test contained in the statute." Ibid. (internal citations omitted).
The trial court found that plaintiff alleged in response to the summary
judgment motion he had two disabilities: high blood pressure 3 and anxiety.
Under the standards set forth in Viscik, 173 N.J. at 15-16, the court determined
that high blood pressure and anxiety are not disabilities that are readily apparent
and, therefore, expert testimony was required.
On appeal, plaintiff asserts there is "ample, competent evidence" of his
disability in the record based on the note, which lacks a diagnosis from a
qualified physician, and contains a conclusory sentence stating plaintiff "has
3
Plaintiff does not argue on appeal that high blood pressure is a disability.
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been a patient of [hers] since 2014 for treatment of anxiety and depression." In
deciding the summary judgment motion, the trial court recognized the note was
the only "unverified" evidence in the record proffered on this issue.
We conclude the trial court did not err in concluding the note was not
expert testimony sufficient to establish a disability under the LAD. Since
"psychiatric diagnoses are generally outside the competence of psychiatric
social workers, appellate courts have sustained the discretion of trial courts that
excluded such testimony." State v. Zola, 112 N.J. 384, 422 (1988) (emphasis
omitted). Additionally, pursuant to Viscik, 173 N.J. at 16, the note fell short of
establishing plaintiff's anxiety "either (a) prevents the normal exercise of any
bodily or mental functions or (b) is demonstrable, medically or psychologically,
by accepted clinical or laboratory diagnostic techniques." The single
substantive sentence in the note fails to meet these standards and does not
address any function that plaintiff's anxiety prevents him from undertaking or
the demonstrability of plaintiff's anxiety. The note does not contain an actual
diagnosis from a qualified expert predicated on facts but rather merely sets forth
in generic terms that there was treatment.
We find no error in the trial court's conclusion that plaintiff has not
established a prima facie showing that he has a disability under the LAD. This
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is sufficient basis alone to affirm the trial court's order dismissing all claims
contingent on plaintiff establishing membership in a protected class under the
LAD – counts one, four, five, and eight.
Next, we turn to plaintiff's argument that the trial court improperly
dismissed all claims for retaliation against plaintiff for LAD-protected activities
contained in counts two (negligent supervision and training), three (respondeat
superior), and six (retaliation).
"[A] person engages in protected activity under the LAD when that person
opposes any practice rendered unlawful under the LAD." Young v. Hobart W.
Grp., 385 N.J. Super. 448, 466 (App. Div. 2005); see also Jamison v. Rockaway
Twp. Bd. of Educ., 242 N.J. Super. 436, 445 (App. Div. 1990).
[T]he prima facie elements of a retaliation claim under
the LAD requires plaintiff to demonstrate that: (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) that there is a causal
link between the protected activity and the adverse
employment consequence.
[Victor, 203 N.J. at 409.]
Plaintiff asserts that his "advocacy for special needs students" constitutes
a protected activity under the LAD, and, therefore, any retaliation for those
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actions is unlawful. Even if plaintiff's conduct was a protected activity, we
nonetheless affirm the trial court's dismissal of counts two, three, and six since
plaintiff has failed to produce prima facie evidence of a causal nexus.
As part of establishing a prima facie case, a LAD claimant must
demonstrate "there is a causal link between the protected activity and the adverse
employment consequence." Ibid. "[C]ausal connection may be demonstrated
by evidence of circumstances that justify an inference of retaliatory motive."
Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 550 (App.
Div. 1995). There is "no case that stands for the proposition that proximity is
the only circumstance that justifies an inference of causal connection." Ibid.The only proffered adverse employment action in the record is the
elimination of the LMS position that plaintiff held as a non-tenured District
employee through the mandatory RIF. On reconsideration, the trial court found
that "pretext cannot exist without causation" and there was "was no showing in
the [original] motion how the RIF's financial considerations were retaliatory."
We agree that plaintiff failed to establish prima facie evidence of a causal
relationship between any disability or LAD-protected activity and the
elimination of the LMS position.
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The only evidence in the record as to the reason for the elimination of the
LMS position that plaintiff held was the RIF. No intention to discriminate
against plaintiff through adverse employment action was proffered or
demonstrated. The undisputed evidence in the motion record established that
plaintiff's position was eliminated under the RIF, along with hundreds of other
District employee contracts that were not renewed as the result of budgetary
constraints. We agree that plaintiff failed to proffer prima facie evidence of
causation.
While we conclude the trial court properly found that plaintiff did not
establish a prima facie LAD case and the analysis could end there, we also agree
with the trial court's determination that plaintiff failed to present evidence
defendants' proffered reasons for the employment action were pretext to obscure
true discriminatory intentions towards plaintiff. Under McDonnell Douglas,
after the defendant has shown "a legitimate nondiscriminatory reason for its
decision," "the plaintiff must then be given the opportunity to show that
defendant's stated reason was merely a pretext or discriminatory in its
application." Dixon v. Rutgers, The State Univ. of N.J., 110 N.J. 432, 442
(1988).
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To guide the liberal application of the LAD, New Jersey has adopted the
"procedural burden-shifting methodology" set forth in McDonnell Douglas, 411
U.S. at 802-04. Under this burden-shifting analysis,
(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 defendant's stated reason was merely a
pretext or discriminatory in its application.
[Henry v. N.J. Dep't of Hum. Servs., 204 N.J. 320, 331
(2010) (quoting Dixon, 110 N.J. at 442).]
For the same reasons plaintiff did not establish causation, we find the
record lacking in evidence of pretext. The only evidence in the record as to the
elimination of the LMS position at the MLK School was that it was
accomplished under a mandatory RIF. The LMS position was one of three jobs
at the MLK School eliminated by the RIF, which included two elementary
school teachers. Plaintiff also does not refute defendants' submission that,
although the state requires a certain number of teachers and nurses at each
school, no such requirement exists for the LMS position. Also undisputed is
that the elimination of plaintiff's LMS position had the least disruptive impact
on the student population because he led fewer individual classes than other non-
tenured positions.
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Plaintiff's assertion that there were non-tenured employees holding LMS
positions in the District whose contracts were renewed despite having less
experience than him is not supported by any evidence in the record. Conversely,
defendants point to evidence in the record that twelve LMS positions in the
District were eliminated as part of the RIF, in addition to hundreds of other staff
positions. Plaintiff's assertion at oral argument before us that the District has
since rehired for his position is not substantiated by any proofs in the record
before the trial court. See Scott v. Salerno, 297 N.J. Super. 437, 447 (App. Div.
1997).
We conclude the legitimate reason for the reassignment of plaintiff to
newly added Pre-K classrooms is not disputed by any competent evidence in
both motion records. We also reject plaintiff's argument that the non-party
DCP&P investigation was a fiction created by defendants to justify separating
plaintiff from Student E and changing his classroom assignment.
Despite acknowledging that he learned of the DCP&P investigation in
September 2019 and his union representative learned of the investigation when
DCP&P visited Student E at home, plaintiff makes the unsupported argument
that Florez fabricated the existence of any investigation in order to generate a
pretextual reason for his termination. This unsupported belated assertion does
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not create a genuine question of material fact as to pretext. DCP&P
investigations are confidential and plaintiff had no right to notification from
defendants and, in fact, advising plaintiff would be contrary to statute. N.J.S.A.
9:6-8.10a(a).
Even under the liberal application of the LAD, "[t]o 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. Plaintiff did not present any facts
in the record evidencing a discriminatory intent by defendants or their
representatives. Accordingly, we see no error in the trial court's conclusions
that plaintiff has failed to produce evidence to raise a genuine issue of pretext.
We affirm the trial court in dismissing counts two, three, and six.
Although we find plaintiff's remaining arguments lack merit, we will
nonetheless briefly address each one in turn. We substantially agree with the
trial court's determination that in order for Shafer or Florez to be liable
individually and in the official capacities, as alleged in counts five and eight the
District must first be found liable. See Cicchetti v. Morris Cnty. Sheriff's Off.,
194 N.J. 563, 594 (2008). Since the District is not liable under the LAD, we
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shall not disturb dismissal of the aiding and abetting claims against the
individual defendants.
As to count seven, the trial court found plaintiff's claim for wrongful
termination pursuant to New Jersey's Education Law (NJEL), N.J.S.A. 18A:1-1
to 76-4, was not within the jurisdiction of the Law Division and could only be
adjudicated by the Commissioner of Education. See Campione v. Adamar, Inc.,
155 N.J. 245, 261 (1998). Plaintiff clarified on appeal that this litigation only
seeks relief for LAD-based claims that are not cognizable in a wrongful
termination action filed with the Commissioner. Thus, we affirm the dismissal
of plaintiff's wrongful termination claim pursuant to our LAD-based analysis.
Affirmed.
A-3397-21
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