Alexander Nicolas v. Trenton Board of Education ( 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NOT FOR PUBLICATION WITHOUT THE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-4039-21
ALEXANDER NICOLAS,
Plaintiff-Appellant,
v.
TRENTON BOARD OF
EDUCATION, FREDERICK
H. MCDOWELL, JR., in his
individual and official capacity,
LISSA JOHNSON, in her
individual and official capacity,
Defendants-Respondents.
__________________________
Argued November 28, 2023 – Decided January 17, 2024
Before Judges Natali and Puglisi.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-1718-18.
Alexander Nicolas, appellant, argued the cause pro se.
Cherie Lee Adams argued the cause for respondents
(Adams Gutierrez & Lattiboudere, LLC, attorneys;
Cherie Lee Adams, of counsel and on the brief; Audra
A. Pondish, on the brief).
PER CURIAM
Plaintiff Alexander Nicolas appeals from an August 5, 2022 Law Division
order granting summary judgment to defendants Trenton Board of Education,
Frederick H. McDowell, Jr., and Lissa Johnson (collectively, defendants) and
dismissing with prejudice his complaint alleging employment discrimination in
violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5 -
1 to -50. We affirm.
I.
We begin by reviewing the facts in the summary judgment record, taken
in the light most favorable to plaintiff as the non-moving party. Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Plaintiff is a Spanish teacher in the Trenton School District with over
twenty years of education experience. He is a naturalized American citizen from
Panama and holds Bachelor of Science, Master of Education, and Doctor of
Philosophy degrees, as well as New Jersey certificates to be a world language
teacher, supervisor, principal, and school administrator; Florida certificates to
be a world language teacher and principal; and a Pennsylvania certificate to be
a principal. Defendant McDowell was the superintendent of schools for the
Board between July 2017 and August 2019, and defendant Johnson was the
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assistant superintendent overseeing the Board's human resources department
between June 2015 and June 2018.
The genesis of the parties' dispute arose in 2007 when plaintiff began
working as a teacher leader at Daylight/Twilight High School in Trenton. As he
testified at his deposition, his responsibilities included "scheduling, meeting
with the teachers, conducting staff meetings, [and] all the responsibilities [of]
the head administrator." Plaintiff also stated, however, the position was
essentially "powerless" because it "could not make administrative decisions to
restructure and run the school operation, or . . . on staff placement." He claims
to have "repeatedly attempted to contact administration" about problems at
Daylight/Twilight such as poor working conditions and lack of necessary
resources and staff, but the Board refused to address his complaints.
As a result, plaintiff averred he suffered physical, mental, and
psychological problems resulting in his hospitalization and eventually extend ed
sick leave. He filed a complaint with the Equal Employment Opportunity
Commission (EEOC) in 2008 which was "closed with a [n]o [c]ause
determination." The teacher leader position at Daylight/Twilight was eliminated
in the 2008-2009 school year.
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In November 2011, plaintiff and his wife, Vashti Nicolas, filed a Law
Division complaint against the Board, its then-current superintendent and two
assistant superintendents, which included LAD claims substantially similar to
those brought here. In that complaint, plaintiff asserted he applied for multiple
administrative positions between 2005 and 2007, and in 2010, but the Board
hired less qualified applicants outside his protected class.
In February 2016, the Board and plaintiff, while represented by counsel,
entered a settlement agreement covering "all claims between the parties arising
from [p]laintiff's employment with the Board . . . up to and through the date of
th[e] [a]greement, including, but not limited to, all claims arising under any
employment-related law . . . [and] all claims for discrimination . . . ." Plaintiff
further agreed to release all claims against the Board "resulting from anything
which has happened up until and through the date of execution of th[e]
[a]greement" and to dismiss the 2011 complaint with prejudice.
The Board denied any liability but agreed to waive its claim for
reimbursement of its contribution toward plaintiff's health insurance, provide
certain documents to plaintiff, and remove certain items from plaintiff's official
personnel file. Both parties also agreed "not to retaliate against each other," but
the agreement did not define the term "retaliate."
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Plaintiff alleged in his complaint the settlement agreement was entered
"under the preten[s]e that the new administration of the [Board] w[ould]
consider [p]laintiff for upcoming administrative positions." The language of the
agreement, however, includes no such provision and, in fact, expressly states it
"sets forth the complete understanding and entire [a]greement between the
[p]arties" and "[b]y executing this [a]greement, [p]laintiff represents and
acknowledges that he does not rely, and has not relied upon, any representation
or statement not set forth in this [a]greement . . . ."
Between 2011 and 2017, plaintiff claims he applied for numerous open
administrative positions with the Board, each of which he was qualified for, but
was not interviewed or hired due to his national origin and the past and current
litigation between the parties. Instead, plaintiff averred, the Board again hired
less qualified individuals outside his protected class. As a result, plaintiff filed
a second EEOC complaint in September 2017, again alleging the Board
discriminated against him. The EEOC found it was "unable to conclude that the
information [provided] established a violation of law" and informed plaintiff he
"had the right to initiate a private cause of action."
On August 3, 2018, plaintiff and his wife, acting pro se, filed the
complaint at issue here, asserting LAD claims based on racial/national origin
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discrimination, retaliation by failure to promote or hire, aiding and abetting
discrimination based on retaliation by failure to promote and refusal to
interview. Plaintiff sought compensatory and punitive damages, front-pay,
back-pay, and attorneys' fees and costs. Plaintiff later amended his complaint
to remove his wife as a plaintiff and add claims for breach of contract and
guaranty, based on defendants' alleged breach of the non-retaliation provision
of the settlement agreement, contrary to the LAD and Title VII of the Civil
Rights Act of 1964.
Before us, plaintiff argues he submitted "300 applications . . . for
administrative positions with the [Board]" and his claims are "not just based on
a few positions." In support, he submitted his application submission history
for Board positions and job descriptions for certain positions sought. His
complaint, however, provided specific details for only six positions.
Specifically, plaintiff stated he applied for two "[d]istrict [w]ide"
principal positions, one of which related to focus and priority schools,1 on July
1
Focus schools are those with "room for improvement in areas that are specific
to the school," including low graduation rates, large proficiency gaps between
student subgroups, and low subgroup proficiency rates compared statewide.
Tech. Overview of the Calc. of Priority, Focus, and Reward Schools, N.J. Dep't
of Ed.,
https://www.nj.gov/education/reform/PFRschools/TechnicalGuidance.pdf
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7, 2017. Next, plaintiff asserted he applied for the principal positions at Grant
and Robbins Elementary Schools on July 15, 2017. Finally, he stated he applied
to be a special education supervisor on November 4, 2017, and a "S[TEM]2
Elementary" supervisor on an unspecified date.
Following the amendment of the complaint, defendants removed the
action to federal court, asserting plaintiff's invocation of Title VII implicated a
federal question. Plaintiff moved to remand which the court granted after
finding plaintiff's claims sounded in state law and cited Title VII only as "one
of multiple sources for a standard of retaliation to support his state law claim."
On remand, defendants jointly moved to dismiss under Rule 4:6-2(e). In
support, they argued: (1) all claims accruing prior to February 22, 2016 were
barred by the release in the settlement agreement, (2) all claims accruing prior
to August 3, 2016 were time-barred by the LAD's two-year statute of limitations,
and (3) plaintiff failed to establish the necessary elements for any of his claims.
(visited Nov. 13, 2023). Priority schools are those "identified as among the
lowest-performing five percent of Title I schools in the state over the past three
years, or any non-Title I school that would otherwise have met the same
criteria." Ibid.2
STEM stands for science, technology, engineering, and mathematics.
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After hearing oral arguments, the court issued a written order on March
13, 2020 granting in part and denying in part defendants' motion. The court
agreed with defendants that the portions of plaintiff's claims accruing prior to
February 22, 2016 were barred by the settlement agreement and those accruing
prior to August 3, 2016 were barred by the statute of limitations. It also
dismissed the breach of guaranty claim without prejudice.3
Defendants thereafter jointly moved for summary judgment, reprising
many of the arguments presented in their Rule 4:6-2(e) dismissal motion.
Defendants asserted plaintiff was unqualified for the positions he sought and
therefore could not establish discrimination under a failure to hire or promote
theory. On this point, they noted plaintiff did not possess an educational
services or special education certificate, "five years of successful administrative
or supervisory experience in special education," or "an educational services
certificate as a child study team member," as required to be a special education
supervisor, or the mathematics or science certificate required to be a STEM
supervisor.
3
The court's order indicated it set forth its statement of reasons on the record,
but neither party included the transcript from that hearing in the record before
us.
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Defendants also maintained plaintiff lacked sufficient administrative or
supervisory experience, three years of which was required for any principal
position, and five years of which was required for principal at a focus and
priority school. Even if plaintiff were qualified, defendants explained, he
presented no evidence demonstrating he was more qualified than the applicants
selected, or that defendants took adverse action against him because of his
national origin.
Next, defendants contended plaintiff failed to establish his past complaints
were the reason he was neither interviewed nor promoted. They asserted the
human resources staff screening applications had "no knowledge of [p]laintiff's
prior concerns," and thus could not have excluded his applications on that
ground. Rather, defendants argued they screened his applications because he
was not qualified.
Defendants also asserted plaintiff's breach of contract claim based on the
settlement agreement was without merit because plaintiff failed to raise a
genuine and material question of fact that defendants retaliated against him.
Finally, defendants McDowell and Johnson argued they were not individually
liable for aiding and abetting because the motion record failed to create a factual
dispute that either engaged in "active or purposeful conduct."
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In her certification, Johnson specifically attested she oversaw the human
resources department but was not directly involved in screening applications or
determining whether applicants were qualified for an interview. Johnson stated
"[h]uman [r]esource generalists" initially reviewed applications for the Board,
comparing each applicant's qualifications to the criteria in each job posting "to
determine if the applicant met the basic requirements for the posted vacancy."
The candidate "would not move to the interview process" if they "did not meet
the qualifications of the position." Following an interview, Johnson explained,
the committee would recommend the successful candidate, who she "would
present . . . to the Superintendent." Johnson denied "at any time during [her]
employment in Trenton tak[ing] any action impacting the employment of
[plaintiff]."
In McDowell's certification, he similarly stated he "did not participate in
screening, reviewing qualifications or interviewing of potential candidates."
Rather, he explained "[i]nterviews for certified administrative positions were
generally conducted by a committee made up of administrative staff relevant to
the particular position." The committee's "recommended candidate would be
forwarded to [McDowell] for submission to the Board . . . for a vote on
appointment."
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McDowell also denied "provid[ing] an[y] input or hav[ing] any role in
determining whether [plaintiff] was interviewed for a particular position during
the time [he] served as [s]uperintendent in Trenton, . . . tak[ing] any action
involving the employment of [plaintiff]" or "handl[ing] any complaints filed by
[p]laintiff." He explained the superintendent role "does not entail conducting
investigations" and "[t]o the extent [p]laintiff copied [him] on any
correspondence regarding an employment concern, it was forward ed to human
resources to be handled and for any necessary actions to be taken." Finally, he
added he "was not personally aware of any prior disputes involving [plaintiff]
before" starting as superintendent in 2017.
In opposition, plaintiff relied upon many of the allegations in his
complaint and argued the statute of limitations did not bar his claims because
defendants' actions constituted continuous tortious conduct. Without further
explanation, plaintiff also noted defendants' summary judgment motion
contained a "procedural defect."
In arguing he established the prima facie elements of each of his claims,
plaintiff claimed defendants' "inadequate response to [his] whistleblowing"
demonstrated a causal connection between his EEOC and Law Division
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complaints and defendants' adverse action against him. 4 Plaintiff asserted
defendants' failure to meaningfully address his "letters and concerns" was a
violation of the duty of care defendants owed him as "the officers in charge" and
under the parties' contract. These same letters and other correspondence,
according to plaintiff, showed defendants were aware of his protected activity.
Plaintiff also argued McDowell and Johnson should be considered his
employer because, under CEPA, an employer includes a "person or group of
persons acting directly or indirectly on behalf of or in the interest of an employer
with the employer's consent," N.J.S.A. 34:19-2(a), and Title VII defines
employer as "one or more individuals" and agents of "a person engaged in an
industry affecting commerce who has fifteen or more employees," 42 U.S.C. §
2000e(b). As to his qualifications, plaintiff asserted several of his certificates
are "above" the certificates required for the positions he sought; he had the
required administrative experience between an internship, his teacher leader
4
Before us, as he did before the trial court, plaintiff often relies upon the
Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14;
however, his complaint did not assert any CEPA claims. Although courts have
occasionally interpreted LAD and CEPA together, they are "statutes that have
their own distinct purposes and are worded differently to achieve those
purposes." Sauter v. Colts Neck Volunteer Fire Co. No. 2, 451 N.J. Super. 581,
595 (App. Div. 2017) (quoting Donelson v. DuPont Chambers Works, 206 N.J.
243, 261-62 (2011)).
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position, and work in Panama; and he was "more educated than other
candidates."
The court issued an order granting defendants summary judgment and
explained its reasons in an oral decision placed on the record after considering
the parties' submissions and oral arguments. The court stated its role was not
"to substitute its judgment as to how to run a . . . school system" but "to
determine whether any of the claims articulated by plaintiff are such that they
require the matter to go before a jury," citing the applicable standard under Brill,
142 N.J. at 528-29. It further noted "a certain commonality among all these
remaining counts in the complaint in that they are based upon the legal theory
. . . that plaintiff alleges he was discriminated [against] by retaliating," which
plaintiff characterized as "not being called for interviews . . . for positions he's
applied and not being selected [for those positions]."
First, although the court found plaintiff "feels that he has the equivalent
of certain of these criteria" in the job postings, it concluded "nothing in this
record," including plaintiff's deposition testimony, showed plaintiff "has the
actual criteria that are set forth in the specific postings." Next, the court found
plaintiff's applications did not make it past the screening stage, and thus "did not
give rise to aiding and abetting liability on the two individual defendants
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because in this motion record, there's no genuine issue . . . as to their having any
role in th[e] screening process."
Finally, the court noted plaintiff's breach of contract claim was "based on
clear contract terms in the settlement agreement that require that there will be
no retaliation" but found plaintiff had not shown retaliation and had "attribute[d]
certain events to a retaliatory motive that is not warranted in this motion record."
This appeal followed.
II.
Before us, plaintiff argues the court erred by granting summary judgment
and dismissing his complaint. In support, he reprises many of his arguments
made before the court. Since he has established the prima facie elements of his
claims, plaintiff contends, "the burden shifts to the employer [defendants]," who
he claims "never submitted any evidence showing that the decision not to call
[p]laintiff for [an] interview, retaliate, and ignore [p]laintiff['s] correspondences
were made because of a nondiscriminatory and legitimate reason." As to the
individual defendants, he again relies upon the definitions of "employer" used
in CEPA and federal law to contend they are liable on each claim.
In requesting we affirm, defendants similarly reprise their arguments
made before the court. They argue plaintiff failed to establish a prima facie case
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of discrimination on each of his claims because he was not qualified for the
positions he identified in his complaint. Relying on Chou v. Rutgers, State
Univ., 283 N.J. Super. 524, 540 (App. Div. 1995), defendants contend "no
inference of discrimination can be drawn" if a hiring decision "is reasonably
attributable to an honest even though partially subjective evaluation of [the
applicant's] qualifications." Even assuming he were qualified, defendants
further argue, plaintiff offered no evidence showing he was more qualified than
the applicants ultimately selected, or that any hiring decisions were made based
on discriminatory animus.
We first address the applicable standards of review guiding our analysis
followed by a discussion of the applicable legal principles. In subsections III.A-
E, we address plaintiff's specific arguments challenging the court's summary
judgment order.
"We review decisions granting summary judgment de novo," C.V. v.
Waterford Twp. Bd. of Educ., 255 N.J. 289, 305 (2023), applying the same
standard as the trial court, Townsend v. Pierre, 221 N.J. 36, 59 (2015). Like the
motion judge, we "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
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favor of the non-moving party." C.V., 255 N.J. at 305 (quoting Samolyk v.
Berthe, 251 N.J. 73, 78 (2022)). "Summary judgment is appropriate if 'there is
no genuine issue as to any material fact' and the moving party is entitled to
judgment 'as a matter of law.'" Ibid. (quoting R. 4:46-2(c)).
Materials considered include "the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any."
Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting R. 4:46-2(c)).
"[S]elf-serving assertions, unsupported by documentary proof in the[ party's]
dominion and control, '[are] insufficient to create a genuine issue of material
fact.'" Miller v. Bank of Am. Home Loan Servicing, L.P., 439 N.J. Super. 540,
551 (App. Div. 2015) (second alteration in original) (quoting Heyert v. Taddese,
431 N.J. Super. 388, 414 (App. Div. 2013)).
Our review of the application of a statute of limitations period to bar a
cause of action is de novo. Save Camden Pub. Schs. v. Camden City Bd. of
Educ., 454 N.J. Super. 478, 487 (App. Div. 2018). The construction of contract
language is also a question of law subject to de novo review unless its "meaning
is both unclear and dependent on conflicting testimony." Celanese Ltd. v. Essex
Cnty. Improv. Auth., 404 N.J. Super. 514, 528 (App. Div. 2009). Under the de
novo standard, the "trial court's interpretation of the law and the legal
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consequences that flow from established facts are not entitled to any special
deference." Rowe v. Bell & Gossett Co., 239 N.J. 531, 552 (2019) (quoting
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378
(1995)).
"It is well-established that the LAD's overarching goal is the 'eradication
of the cancer of discrimination.'" Battaglia v. United Parcel Serv., Inc., 214 N.J.
518, 546 (2013) (quoting Fuchilla v. Layman, 109 N.J. 319, 334 (1988)). To
achieve that goal, courts "have recognized and given effect to the LAD's broad
remedial purposes." Ibid. It is a violation of the LAD "for an employer, because
of the race, . . . [or] national origin . . . of any individual . . . to refuse to hire or
employ . . . such individual or to discriminate against [them] in compensation
or in terms, conditions or privileges of employment." N.J.S.A. 10:5-12(a).
Additionally, the LAD makes it unlawful "for any person to take reprisals
against any person because that person has opposed any practices or acts
forbidden under [the LAD] or because that person has . . . filed a complaint . . .
under [the LAD]," N.J.S.A. 10:5-12(d), or for "any person, whether an employer
or an employee or not, to aid, abet, incite, compel or coerce the doing of any of
the acts forbidden under [the LAD], or to attempt to do so," N.J.S.A. 10:5-12(e).
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Our Supreme Court has held "the plain meaning of the definition of
employer in the LAD does not include a supervisor." Cicchetti v. Morris Cnty.
Sheriff's Off., 194 N.J. 563, 594 (2008); see also Tarr v. Ciasulli, 181 N.J. 70,
83 (2004). Accordingly, "individual liability of a supervisor for acts of
discrimination . . . can only arise through the 'aiding and abetting' mechanism
[set forth in N.J.S.A. 10:5-12(e)] that applies to 'any person.'" Cicchetti, 194
N.J. at 594 (quoting N.J.S.A. 10:5-12(e)).
New Jersey has adopted the "procedural burden-shifting methodology"
originally set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-
04 (1973), to analyze employment discrimination claims under the LAD. Meade
v. Twp. of Livingston, 249 N.J. 310, 328 (2021). Under this framework, the
plaintiff must first "come forward with sufficient evidence to constitute a prima
facie case of discrimination." Ibid. (quoting Henry v. Dep't of Human Servs.,
204 N.J. 320, 331 (2010)). At this stage, the plaintiff's burden 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
[defendant]'s action." Id. at 329 (quoting Zive v. Stanley Roberts, Inc., 182 N.J.
436, 447 (2005)).
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Once the plaintiff has met this burden, "a presumption that the employer
unlawfully discriminated against the employee" arises, ibid. (quoting Bergen
Com. Bank v. Sisler, 157 N.J. 188, 211 (1999)), and "the defendant must then
show a legitimate nondiscriminatory reason for its decision," id. at 328 (quoting
Henry, 204 N.J. at 331). Upon that showing, "the presumption of unlawful
discrimination disappears." Id. at 329. Finally, the burden shifts back to the
plaintiff "to show that defendant's stated reason was merely a pretext or
discriminatory in its application." Id. at 328. "Although the burden of
production shifts throughout the process, the [plaintiff] at all phases retains the
burden of proof that the adverse employment action was caused by purpose ful
or intentional discrimination." Id. at 330 (quoting Bergen Com. Bank, 157 N.J.
at 211).
Here, we are satisfied plaintiff failed to establish a prima facie case of
discrimination on any of his claims. Further, and as detailed in our opinion,
defendants presented a legitimate, nondiscriminatory reason for their actions—
plaintiff's lack of qualifications for the positions he sought and the relatively
stronger qualifications of the successful candidates identified.
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III.
A. Statute of Limitations
As an initial matter, plaintiff argues the court erred in determining the
portions of his claims involving applications submitted prior to August 3, 2016
were barred by the statute of limitations. 5 In support, he asserts defendants'
actions were part of a "continual, cumulative pattern of tortious conduct" which
tolled the limitations period "until the wrongful conduct ceases," under the
continuing violation doctrine. Roa v. Roa, 200 N.J. 555, 566 (2010) (quoting
Wilson v. Wal-Mart Stores, 158 N.J. 263, 272 (1999)). We disagree.
As the court correctly noted, the statute of limitations for the LAD is two
years. Henry, 204 N.J. at 332. The continuing violation doctrine permits a
plaintiff to "pursue a claim for discriminatory conduct if he or she can
demonstrate that each asserted act by a defendant is part of a pattern and at least
one of those acts occurred within the statutory limitations period." Shepherd v.
Hunterdon Dev. Ctr., 174 N.J. 1, 6-7 (2002). The doctrine "was developed to
allow for the aggregation of acts, each of which, in itself, might not have alerted
5
Plaintiff did not identify the court's March 13, 2020 order finding his claims
were time-barred in his notice of appeal as required under Rule 2:5-1(f)(2)(ii).
Nevertheless, we consider his arguments in keeping with the court's practice of
affording a certain degree of leeway to pro se litigants. See Rubin v. Rubin, 188
N.J. Super. 155, 159 (App. Div. 1982).
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the [plaintiff] of the existence of a claim, but which together show a pattern of
discrimination." Roa, 200 N.J. at 569. It does not, however, allow "the
aggregation of discrete discriminatory acts for the purpose of reviving an
untimely act of discrimination that the [plaintiff] knew or should have known
was actionable." Ibid.The Court explained "some discrete acts, 'such as termination, failure to
promote, denial of transfer, or refusal to hire are easy to identify.'" Id. at 566-
67 (emphasis added) (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 114 (2002)). Simply put, "individually actionable allegations cannot be
aggregated" for purposes of the continuing violation doctrine and must be
asserted within their individual limitations periods. Id. at 567 (quoting
O'Connor v. City of Newark, 440 F.3d 125, 127 (3d Cir. 2006)).
Although plaintiff alleges defendants' actions constitute a pattern of
discrimination and retaliation against him, at bottom his claims assert multiple
discrete acts of failure to promote. Plaintiff knew these allegedly discriminatory
acts could be actionable, as demonstrated by his filing the 2011 Law Division
complaint and multiple EEOC complaints regarding similar if not identical
claims. The continuing violation doctrine simply does not apply to these fact s.
See, e.g., Smith v. Twp. of E. Greenwich, 519 F. Supp. 2d 493, 505-06 (D.N.J.
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2007) (holding continuing violation doctrine inapplicable to claim alleging
several failures to promote under LAD and 42 U.S.C. § 1983); Rush v. Scott
Specialty Gases, Inc., 113 F.3d 476, 483-84 (3d Cir. 1997) (declining to apply
continuing violation doctrine to Title VII failure to promote claim); Chin v. Port
Auth. of N.Y. & N.J., 685 F.3d 135, 157 (2d Cir. 2012) (finding continuing
violation doctrine does not apply to claim alleging pattern of failures to promote
under Title VII); Heath v. Bd. of Supervisors for the S. Univ. & Agric. & Mech.
College, 850 F.3d 731, 741-42 (5th Cir. 2017) (holding Title VII retaliation
claims based on discrete acts cannot rely on continuing violation doctrine).
B. Discrimination Claim Under the LAD
1. Plaintiff's Qualifications
As noted, plaintiff also claims the court improperly determined he was
unqualified for the positions he sought and thus failed to establish a prima facie
case of discrimination. He specifically asserts he had "three or more years of
administrative experience," and as to the special education and STEM positions,
"clearly articulated during oral argument [before the court] that an ed ucational
manager will not be certified in every content area when it pertains to a school
operation." We disagree with each of these arguments.
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To state a prima facie case, a plaintiff asserting a claim of discrimination
based on a failure to promote must establish they: (1) are a member of a class
protected by the LAD; (2) are "qualified for the position . . . sought"; (3) were
"denied promotion"; and (4) "others with similar or lesser qualifications" were
selected for the position. Chou, 283 N.J. Super. at 538. As our Supreme Court
noted, "[i]t would be impossible to list all the criteria that are included in
qualifications for promotion in all jobs." Peper v. Princeton Univ. Bd. of Trs.,
77 N.J. 55, 85 (1978). Examples include "educational level, job experience and,
most importantly, the quality of work performed." Ibid.Further, the LAD "do[es] not permit courts to make personnel decisions
for employers [but] simply require[s] that an employer's personnel decisions be
based on criteria other than those proscribed by law." Jason v. Showboat Hotel
& Casino, 329 N.J. Super. 295, 308 (App. Div. 2000) (quoting Peper, 77 N.J. at
87). The evaluation of an employee's qualification is based upon objective
criteria. Pilkington v. Bally's Park Place, Inc., 370 N.J. Super. 140, 168 (App.
Div. 2003) (Wecker, J., dissenting), rev'd on dissent, 180 N.J. 262 (2004); cf.
Viscik v. Fowler Equip. Co., 173 N.J. 1, 21 (2002) (noting "in addressing the
second prong of McDonnell Douglas, as modified [for a termination case], the
standard is an objective one"); see also Zive, 182 N.J. at 454 (stating "although
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the second prong in a termination case necessarily requires refinement to address
the differences between failing-to-hire and firing, it is not intended to impose a
heavier burden on the plaintiff").
Even considering the motion record in the light most favorable to plaintiff,
as required under Brill, 142 N.J. at 540, we are satisfied plaintiff failed to create
a genuine and material factual question regarding his qualifications for the
STEM or special education supervisor positions. Indeed, plaintiff does not
dispute he did not possess the certificates clearly required by the Board for
STEM supervisors (certificate in mathematics, required, and in science,
preferred) or special education supervisors (certificate in educational services
or special education.) Instead, he argues his certificates are "above" the
requirements and an administrator is not typically "certified in every content
area."
Here, the record fully supports the Board's position it required
certification in the subject areas at issue in addition to a supervisory or
administrative certification. Indeed, the job descriptions in the record clearly
state a candidate "shall . . . [h]old a New Jersey standard certificate in
Mathematics (required) and Science (preferred)" and "[m]ust possess
appropriate New Jersey Educational Services Certification as related to Child
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Study Teams or Special Education Teacher Certificate or Certificate of
Eligibility," respectively. Plaintiff points to no competent evidence indicating
the descriptions submitted were incorrect or the Board did not adhere to these
descriptions in its hiring decisions.
We are not persuaded by plaintiff's claim his certificates were "above" the
stated requirements for each position. Different certificates "represent distinct
and separate areas spanning the entire field of public education, and the different
certificates relate to discrete and distinctive categories of functions, duties, and
responsibilities of educators." Dennery v. Bd. of Educ., 131 N.J. 626, 637
(1993). Consequently, the requirements for each type of certificate vary. See,
e.g., N.J.A.C. 6A:9B-9.1 (instructional certificate in particular subject area
requires at least thirty credits of "courses appropriate to the subject area" with
at least twelve "at the advanced level of study" and "appropriate State test(s) of
subject matter knowledge"); N.J.A.C. 6A:9B-12.4 (administrator certificate
requires master's degree in educational leadership, 150-hour internship, a "State-
approved examination" and "five years of successful educational experience");
N.J.A.C. 6A:9B-14.1 (educational services certificate requires "appropriate
degree," "Department-required test(s)," and college-level educational services
program). Accordingly, we disagree with plaintiff and are satisfied the
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educational services, math, and science certificates are not subsumed by the
administrative certificate.
Next, plaintiff asserts he has the requisite administrative experience,
pointing to his one-year administrative internship, "experience as a [t]eacher
[l]eader and [h]ead administrator, experience as adjunct professor, and
administrative experience overseas." We are again unpersuaded.
Although we are satisfied plaintiff has shown he possessed twenty-nine
months of relevant administrative experience between his teacher leader
position and administrative internship, the record does not reflect he had the
requisite three years' experience, even considering the motion record in the light
most favorable to him. Plaintiff presented no competent evidence establishing
his "administrative support" or adjunct professor positions were relevant
administrative experience, nor that the Board should have made an exception to
its policy of not considering international experience.
Plaintiff specifically contends he possessed administrative or supervisory
experience as: principal of a "middle senior high school" in Panama from
December 1992 to September 1993 (ten months), vice principal of the same
school from September 1993 to June 1994 (ten months), "administrative
support" at Holland Middle School from September 2002 to December 2003
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(fifteen months), principal internship at Holland Middle School from January
2004 to June 2005 (eighteen months), teacher leader at Daylight/Twilight High
School (no dates provided), and head administrator at Daylight/Twilight High
School from October 2007 to 2008 (no month provided). Plaintiff also notes he
"[s]upervise[d] and evaluate[d] graduate student teaching" and "[e]valuate[d]
teaching by colleagues" in his position as adjunct professor at Mercer County
Community College from September 2015 to 2018 (no month provided).
Despite being listed twice on his resume, plaintiff's position at
Daylight/Twilight was officially teacher leader, not head administrator. In the
complaint, he states he "was sent as a [t]eacher [l]eader to run or operate as a
school principal Daylight/Twilight" in 2007. In his deposition, plaintiff
confirms "the dates that [he was] what [he] refer[red] to as head administrator,
but [his] title was teacher leader . . ., w[ere] October 2007 to 2008." Plaintiff
also noted the teacher leader position was "eliminated" in the 2008-2009 school
year and provided in his appendix a "Personnel Action Request" form indicating
his extended medical leave began September 1, 2008. Thus, accepting plaintiff's
claim he started as teacher leader in October 2007, he would have held this
position for no more than eleven months.
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While characterizing the teacher leader position as administrative on his
resume, plaintiff described it in his complaint as "powerless" because "it could
not make administrative decisions to restructure and run the school operation,
or . . . on staff placement." In his deposition, plaintiff indicated he was
responsible for "scheduling, meeting with the teachers, conducting staff
meetings, [and] all the responsibilities [of] the head administrator," but
conceded he did not have "an administrative title at that time" and the position
was covered by the teachers' contract. Neither party submitted the job
description of the teacher leader as set by the Board. However, viewing the
evidence in the light most favorable to plaintiff, we are satisfied this position
could fairly be considered administrative or supervisory and we thus find he had
at least eleven months of administrative experience.
In contrast, plaintiff presented no evidence creating a material and factual
question as to why the Board should have accepted his Panamanian experience.
He confirmed in his deposition he had graduated high school "less than four
years" prior to his position as vice principal and principal in Panama, he "did
not yet even have a bachelor's degree," and no certifications were required for
either position. Plaintiff explained "in Panama . . . everything works a little
different, not like here." As plaintiff acknowledged, Johnson informed him the
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Board does not consider international experience. In light of the qualification
differences for the Panamanian positions and the Board's practice of excluding
international experience, the record does not support plaintiff's contention this
experience should have been considered toward his qualification for the
principal positions.
Next, as to the administrative support role at Holland Middle School, in
his deposition, plaintiff stated his official position at that time was "just teacher
of Spanish" but he was "working with the school principal" and "they would
give [him] assignments . . . to complete regarding administrator, administrative
assignments." He provided no further details as to what these assignments were
or why completing extra work in his position as a Spanish teacher should be
considered relevant administrative experience. Indeed, "conclusory and self-
serving assertions by one of the parties are insufficient to overcome the
[summary judgment] motion." Puder v. Buechel, 183 N.J. 428, 440-41 (2005).
Finally, plaintiff has provided no support beyond conclusory statements
for his assertion that adjunct professor is a supervisory or administrative
position. He did not testify about this experience in his deposition, nor did he
provide an affidavit, certificate, or documentary support. Neither of the letters
in the record from Mercer County Community College's Vice President for
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Academic Affairs and Assistant Dean refer to any administrative or supervisory
duties plaintiff performs, nor do they provide competent support for plaintiff's
contention that supervising graduate students teaching at a college level is
equivalent to running a K-12 school and supervising licensed teachers such that
this experience should be considered for his qualifications.
In sum, even viewing the evidence in the light most favorable to plaintiff,
the record does not demonstrate a material and factual question about plaintiff's
supervisory or administrative experience. He has not provided competent
evidence to prove his Panamanian experience, "administrative support" while
working as a Spanish teacher, or adjunct professor experience should be
considered in this calculation. Between plaintiff's eighteen-month internship
and eleven months as teacher leader, he demonstrates only twenty-nine months
of supervisory or administrative experience, almost a year short of the three-
year minimum requirement. Accordingly, we are satisfied plaintiff has failed to
demonstrate a material and factual question about his qualification for the
principal positions he sought and thus has not stated a prima facie discrimination
claim.
While plaintiff maintains before us he has submitted "300 applications . . .
for administrative positions with the [Board]" and his claims are "not just based
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on a few positions that [he] has applied for," he failed to identify those
applications in his complaint, or any information as to the candidates who
eventually were hired for the positions. See Bauer v. Nesbitt, 198 N.J. 601, 610
(2009) (noting "[t]he basic function of a complaint is to 'fairly apprise an adverse
party of the claims and issues to be raised at trial'" (quoting Dewey v. R.J.
Reynolds Tobacco Co., 121 N.J. 69, 75 (1990))). The record further contains
no evidence regarding the qualifications for many of the positions listed in
plaintiff's job application history, such as substitute principal, chief academic
officer, or "administration – curriculum and instruction." 6
2. Qualifications of Successful Applicants
Even assuming plaintiff was qualified for any of the positions to which he
applied, he presented no competent evidence to show the successful candidates
for any of those positions had lesser or similar qualifications. Indeed, he failed
to provide any evidence identifying those individuals or their qualifications.
Instead, plaintiff relied on the allegations in his complaint, in which he asserted
the candidates hired were "outside [his] protected class," did not "possess
6
We note the exhibits included in plaintiff's appendix are not labeled
consistently with the "exhibit chart" accompanying his opposition to summary
judgment. See R. 2:6-1(b) (providing "[t]he filing date of each included paper
[in the appendix] shall be stated at the head of the copy as well as its subject
matter (e.g., Pretrial Order, Notice of Appeal)").
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certificates from the [s]tate of New Jersey to serve as [p]rincipals, [s]upervisors,
or [s]chool [a]dministrators" and did not have "previous teaching or
administrative experience."
Not only are those allegations insufficient to defeat a properly supported
summary judgment motion, see Miller, 439 N.J. Super. at 551 and Puder, 183
N.J. at 440-41, they are simply belied by the competent proofs in the record.
Johnson attested in her certification the positions were given to qualified
applicants and provided those individuals' resumes. For example, defendants
explained Zebbie Belton was chosen for principal of Robbins Elementary. Her
resume reveals she possessed principal and supervisor certificates and served in
administrative positions, including vice principal, literacy leader, and summer
school coordinator, since 2012. Additionally, Terry Lane, who was chosen for
principal of the focus and priority school Grant Elementary, held principal and
supervisor certificates and had been a vice principal since 2008, serving as
summer school principal for three summers and interim principal for six months.
Each of these candidates possessed the necessary certificates and had more
administrative experience than plaintiff.
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C. Retaliation Claims Under the LAD
Plaintiff next argues the court erred in concluding he failed to establish
the elements of his claim for retaliation. He asserts his protected conduct
included filing an EEOC complaint, filing a lawsuit, and communicating with
supervisors about the discrimination to which he was subjected. Because "an
employer's inadequate response to an employee's whistleblowing can be
construed as evidence, albeit indirect, of a causal connection between the
employee's complaint . . . and the employer's [adverse] action," he concludes
defendants' knowledge of his EEOC complaints and failure to respond to his
correspondence proves the causal connection between his protected conduct and
defendants' failure to promote him. Again, based on competent proofs in the
motion record, we disagree.
To establish a prima facie retaliation claim under the LAD, the plaintiff
must show: (1) "they engaged in protected activity"; (2) "the activity was known
to defendant[]"; (3) plaintiff was subject to an adverse employment decision;
and (4) "there was a causal link between the protected activity and the adverse
action." Morris v. Rutgers-Newark Univ., 472 N.J. Super. 335, 352 (App. Div.
2022) (citing Battaglia, 214 N.J. at 547). "[T]he mere fact that [an] adverse
employment action occurs after [the protected activity]" generally will not
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"satisfy the plaintiff's burden of demonstrating a causal link between the two."
Young v. Hobart W. Group, 385 N.J. Super. 448, 467 (App. Div. 2005) (second
and third alterations in original) (quoting Krouse v. Am. Sterilizer Co., 126 F.3d
494, 503 (3d Cir. 1997)). "Only where the facts of the particular case are so
'unusually suggestive of retaliatory motive' may temporal proximity, on its own,
support an inference of causation." Ibid. (quoting Krouse, 126 F.3d at 503).
Here, plaintiff has failed to demonstrate the individuals involved in the
alleged retaliation knew of his protected activity. Cf. Young, 385 N.J. Super. at
466 (finding knowledge element not proven when plaintiff made complaints to
corporate executive but individuals who terminated plaintiff claimed no
knowledge of those complaints). In fact, he presented no competent evidence
establishing the human resources generalists who made the decision not to pass
his applications to the interview stage had any knowledge of his protected
activity. The record does not evidence plaintiff sent any of the emails regarding
his complaints to these generalists.
Plaintiff asserts Johnson and McDowell had knowledge of his protected
activity due to various emails he sent on the matter, but Johnson's and
McDowell's unrebutted certifications reflect they were not involved in
application screening. In response to the court's direct inquiry on this point,
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plaintiff pointed to no contrary evidence beyond bald assertions. Nothing in the
record suggests a reasonable inference that Johnson or McDowell had any role
in screening plaintiff's applications or declining to interview him. As noted in
their certifications, Johnson and McDowell did not become involved in the
hiring process until a successful candidate was recommended by the interview
committee. We agree with the court the record shows plaintiff's applications
were screened out by other staff prior to reaching the interview phase.
Additionally, plaintiff has not demonstrated a causal link between his
complaints and the Board's decision not to promote him. The fact that plaintiff
made complaints and subsequently was not promoted is not sufficient to prove
causation under the present facts. As noted, plaintiff was simply not qualified
for the positions he sought.
We are unpersuaded by plaintiff's argument the Board's "inadequate
response to [his] whistleblowing" is sufficient to establish a causal connection
under the LAD and plaintiff cites no case law in support. Even accepting
plaintiff's reliance on CEPA case law, we are not convinced the record supports
such a claim. McDowell's unrebutted certification indicates the correspondence
plaintiff sent about his concerns were "forwarded to human resources to be
handled and for any necessary actions to be taken." Further, as noted, nothing
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in the record supports a reasonable inference that the individuals responsible for
addressing plaintiff's complaints were also responsible for screening his
applications.
D. Aiding and Abetting Claims Under the LAD
As to the aiding and abetting claims against the individual defendants,
plaintiff argues he established McDowell and Johnson engaged in "active and
purposeful conduct" sufficient to establish individual liability because each
"performed a wrongful act that caused [p]laintiff to suffer economic loss by not
being promoted to an administrative job which will increase his yearly salary,"
they were "generally aware of [their] role[s] as part of an overall illegal activity
at the time [they] provided the assistance" and each "knowingly and
substantially assisted in the principal violation." Again, we disagree.
To prevail on an aiding and abetting claim under the LAD, the plaintiff
must demonstrate the defendant's "active and purposeful conduct." Cicchetti,
194 N.J. at 594 (quoting Tarr, 181 N.J. at 83). Specifically, "(1) the party whom
the defendant aids must perform a wrongful act that causes an injury; (2) the
defendant must be generally aware of [their] role as part of an overall illegal or
tortious activity at the time that [t]he[y] provide[] the assistance; [and] (3) the
defendant must knowingly and substantially assist the principal violation."
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Cowher v. Carson & Roberts, 425 N.J. Super. 285, 303 (App. Div. 2012) (last
alteration in original) (quoting Tarr, 181 N.J. at 84).
To determine whether the defendant provided "substantial assistance," the
court considers: "(1) the nature of the act encouraged, (2) the amount of
assistance given by the [defendant], (3) whether the [defendant] was present at
the time of the asserted [principal violation], (4) the [defendant]'s relations to
the others [involved], and (5) the state of mind of the [defendant]." Ibid.(quoting Tarr, 181 N.J. at 84).
Plaintiff's aiding and abetting claims against Johnson and McDowell fail
because he has not shown active or purposeful conduct on the part of either
defendant. Nothing in the record demonstrates either Johnson or McDowell
performed any wrongful act, was "generally aware" they were assisting an
illegal activity, or "knowingly and substantially assist[ed]" any violation. Ibid.As noted, plaintiff has presented no competent evidence, nor a reasonable
inference, showing Johnson or McDowell was involved in screening his
applications or refusing to interview him. To the contrary, each stated in their
respective certifications they did not "provide an[y] input or have any role in
determining whether [plaintiff] was interviewed for a particular position" or
"take any action impacting [plaintiff's] employment." Plaintiff's unsupported,
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self-serving claims of Johnson's and McDowell's involvement are insufficient to
create a genuine issue of material fact.
E. Breach of Contract Claim
Plaintiff next asserts the court erred in granting summary judgment to
defendants on his breach of contract claim because defendants "fail[ed] to
accurately refrain from retaliating against [him]" and "did not make a good faith
effort that actually achieved the essential purpose of the contract." Defendants
respond they did not breach the settlement agreement because they "fairly
viewed and analyzed [plaintiff's applications] in accordance with the
qualifications and experience set forth in the job posting." Further, they add
plaintiff alleged no damages related to any purported breach, or any malice or
bad motive demonstrating a breach of the duty of good faith and fair dealing.
Again, we agree with defendants.
An agreement settling litigation "is 'governed by [the general] principles
of contract law.'" Globe Motor Co. v. Igdalev, 225 N.J. 469, 482 (2016)
(alteration in original) (quoting Brundage v. Estate of Carambio, 195 N.J. 575,
600-01 (2008)). To establish a breach of contract, the plaintiff must show, by a
preponderance of the evidence, the following: "first, that '[t]he parties entered
into a contract containing certain terms'; second, that 'plaintiff[s] did what the
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contract required [them] to do'; third, that 'defendant[s] did not do what the
contract required [them] to do' . . . ; and fourth, that 'defendant[s'] breach, or
failure to do what the contract required, caused a loss to the plaintiff[s].'" Ibid.(all alterations but ellipses in original) (quoting Model Jury Charges (Civil),
4.10A, "The Contract Claim – Generally" (May 1998)).
Plaintiff's breach of contract claim is based upon defendants' alleged
violation of the non-retaliation provision in the settlement agreement. Plaintiff
argues "retaliate" as used in the contract should be interpreted consistently with
CEPA and/or Title VII. Even accepting his interpretation as appropriate, the
record fails to support a causal connection between plaintiff's complaints and
the Board's decision not to promote him under LAD, CEPA, or Title VII.
To establish a prima facie retaliation claim under CEPA, a plaintiff must
demonstrate, inter alia, "a causal connection exists between the [employee's]
whistle-blowing activity and the adverse employment action." Allen v. Cape
May Cnty., 246 N.J. 275, 290 (2021) (quoting Dzwonar v. McDevitt, 177 N.J.
451, 462 (2003)). In determining whether such connection exists, the court may
evaluate an employer's or supervisor's response to whistleblowing because a jury
could infer inaction by these parties represents complicity or ratification of
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39
improper activities. Battaglia, 214 N.J. at 558-59; Estate of Roach v. TRW, Inc.,
164 N.J. 598, 614 (2000).
As noted, plaintiff presented no competent evidence, nor does the record
permit a reasonable inference, that the human resources staff responsible for
screening out his applications were aware of his complaints or were influenced
by same in their decisions not to pass plaintiff's applications to the next stage.
Similarly, despite plaintiff's contention defendants' alleged failure to adequately
respond to his complaints established causation, McDowell's unrebutted
certification indicates the correspondence plaintiff sent about his concerns were
"forwarded to human resources to be handled and for any necessary actions t o
be taken." We are unable to conclude defendants' response to his complaints
rises to the level of inaction that would constitute complicity or ratification , such
that we should consider it evidence of a causal connection.
Similarly, a prima facie retaliation claim under Title VII requires a
plaintiff establish, among other elements, "a causal connection between the
employee's protected activity and the employer's adverse action." Canada v.
Samuel Grossi & Sons, Inc., 49 F.4th 340, 346 (3d Cir. 2022) (quoting Daniels
v. Sch. Dist. of Phila., 776 F.3d 181, 193 (3d Cir. 2015)). Such connection
cannot be established "without some evidence that the individuals responsible
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40
for the adverse action knew of the plaintiff's protected conduct at the time they
acted." Daniels, 776 F.3d at 196. As noted, plaintiff has not shown the
individuals responsible for screening his applications had knowledge of his
complaints.
Next, "every contract in New Jersey contains an implied covenant of good
faith and fair dealing[, t]hat is, neither party shall do anything which will have
the effect of destroying or injuring the right of the other party to receive the
fruits of the contract[.]" Wood v. N.J. Mfrs. Ins. Co., 206 N.J. 562, 577 (2011)
(alterations in original) (quoting Kalogeras v. 239 Broad Ave., LLC, 202 N.J.
349, 366 (2010)). A claim that a party has breached this implied covenant
"should not be permitted to be advanced in the abstract and absent improper
motive." Wilson v. Amerada Hess Corp., 168 N.J. 236, 251 (2001).
We are satisfied plaintiff has similarly failed to create a factual question
that defendants acted in bad faith such that the implied covenant of good faith
and fair dealing was breached. The essential purpose of the settlement
agreement was to resolve the parties' outstanding dispute. Nothing in the
settlement agreement obligated the Board to promote plaintiff or interview him,
particularly where it determined he was not qualified for a position. As noted,
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plaintiff has not proven the Board acted with an improper motive in determining
he would not proceed to an interview because he was not qualified.
F. Recusal
Finally, plaintiff makes numerous additional factual and legal allegations
not raised in his pleadings or considered by the court. We generally "decline to
consider questions or issues not properly presented to the trial court when an
opportunity for such a presentation is available unless the questions raised on
appeal go to the jurisdiction of the trial court or concern matters of great public
interest." Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (quoting Nieder v.
Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Neither exception applies here.
However, we briefly address plaintiff's contention the court should have recused
itself because it: (1) "ignored or disregarded all [his] filings . . . including time
sensitive motions," (2) failed to order "supplemental briefing to clarify a specific
issue," which was not further specified, and (3) granted summary judgment
against him despite "present[ing] genuine evidence through 12,200 pages of
[discovery]."
To determine if an appearance of impropriety exists to justify recusal, the
court looks to whether "a reasonable, fully informed person [would] have doubts
about the judge's impartiality." DeNike v. Cupo, 196 N.J. 502, 517 (2008); see
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also Code of Jud. Conduct R. 2.1 cmt. 3. Although proof of actual prejudice is
not necessary, "before the court may be disqualified on the ground of an
appearance of bias, the belief that the proceedings were unfair must be
objectively reasonable." State v. Marshall, 148 N.J. 89, 279 (1997). That a
judge rendered decisions in a case that did not favor the party seeking recusal—
even a decision reversed on appeal—is insufficient grounds for recusal. Id. at
276; Hundred E. Credit Corp. v. Eric Schuster Corp., 212 N.J. Super. 350, 358
(App. Div. 1986).
We discern no objective appearance of unfairness in the record. Plaintiff
identified no specific filings the court ignored, and the record shows no bias
against him. The transcript of the hearing on defendants' summary judgmen t
motion clearly reveals the court considered plaintiff's arguments in its decision
and ultimately rejected them after applying the relevant law. That alone is not
sufficient to require the court's recusal.
To the extent we have not addressed any of plaintiff's arguments, it is
because we have concluded they lack sufficient merit to warrant extended
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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