JACKIE ROBERTS v. V. EAST ORANGE BOARD OF EDUCATION, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2944-05T22944-05T2

JACKIE ROBERTS,

Plaintiff-Appellant,

V.

EAST ORANGE BOARD OF

EDUCATION, DR. KENNETH KING,

and IRENE NICHOLS,

Defendants-Respondents.

________________________________________________________________

 

Submitted September 20, 2006 - Decided October 24, 2006

Before Judges Wefing, Parker and C.S. Fisher.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County, Docket

No. ESX-L-645-04.

Christopher Roberts, attorney for appellant.

Nirenberg & Varano, attorneys for respondents

(Howard M. Nirenberg and Sandra N. Varano, on

the brief).

PER CURIAM

Plaintiff Jackie Roberts, an African-American teacher in the East orange School District (District), applied for numerous promotional positions within the District and was not appointed to any of them. She now appeals from an order entered on February 7, 2006 granting defendants' motion for summary judgment dismissing her complaint, which alleged breach of implied covenant of good faith and fair dealing, breach of contract, retaliation, conspiracy in violation of the Federal Civil Rights Act, 42 U.S.C.A. 1985(3) and 42 U.S.C.A. 1983, and discrimination under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1. We affirm substantially for the reasons stated by Judge Donald Merkelbach in his letter opinion dated February 7, 2006.

In this appeal, plaintiff argues that (1) summary judgment should not have been granted because issues of material facts and credibility exist; (2) she presented overwhelming evidence of the disparity in her qualifications compared to the men who received promotions; and (3) defendants breached the teachers' agreement, Title 18, the New Jersey Administrative Code and East Orange Board of Education (Board) policy.

Plaintiff has been employed by the District as a teacher since 1975. Between 2000 and 2003, she applied for numerous administrative and supervisory positions within the District:

In 2000 she applied for Vice Principal at Clifford J. Scott High School.

On April 4, 2002, she applied for Supervisor of Math 2-5, Supervisor of the Gifted and Talented Programs and East Orange Elementary Vice Principal.

On April 23, 2002, she applied for Department Head for Business and Technology.

On June 26, 2002, she applied for Vice Principal of Gordon Parks Academy, Sojourner Truth Middle School, Supervisor of Gifted and Talented and all Vice Principal positions that would open in the District.

On July 18, 2002, she applied for Vice Principal at East Orange Campus High School, Campus #9 School and Howard School.

In September 2003, plaintiff applied for Vice Principal at East Orange Campus High School.

On October 10, 2003, plaintiff applied for Vice Principal at Cicely Tyson Junior High School.

On January 23, 2004, plaintiff filed her complaint. As Judge Merkelbach noted, any claims arising from plaintiff's application and rejection for positions prior to January 23, 2002 are barred by the statute of limitation. N.J.S.A. 2A:14-2.

It is undisputed that plaintiff was not interviewed for most of the applications she made. Indeed, plaintiff claims that the applications made on June 26, 2002, July 18, 2002 and September 2003 were not even acknowledged.

Plaintiff was interviewed for Assistant Principal of the Cicely Tyson Junior High School on October 27, 2003. The interview committee for that position consisted of one African-American man and three African-American women: Dr. Kenneth King, Assistant Superintendent, Laura Trimmings, Principal of Cicely Tyson, Dr. Gloria Scott, Assistant Superintendent of Curriculum Services, and Irene Nichols, the Principal of Clifford Scott High School. None of the committee members deemed plaintiff qualified for the position because her answers to questions "lacked substance," she mispronounced certain words, exhibited "poor grammar," demonstrated "[n]o command of the English language [and had] [p]oor knowledge of administrative responsibilities." Although plaintiff maintains that she was better qualified than at least two of the individuals appointed to positions for which she applied, the record does not support her position.

With respect to her discrimination claims, in her deposition, plaintiff testified as follows:

Q. Yes. As you sit here today do you think you're being discriminated against?

A. Yes, I do.

Q. And what do you think the basis of that discrimination is?

A. To be honest, I don't know. Because this is what I've been searching for, trying to get someone to tell me why. Because they all know my record and I have not been fairly judged on my record and my experience.

. . . .

Q. In other words, what is your understanding of the discrimination? When you used the term discrimination, you told us that you think you've been discriminated against, but you don't know why?

A. No.

Q. You don't know why?

A. No.

Q. Or do you know what the basis of discrimination is?

A. All I know is that I applied for jobs, there's no response, no acknowledgment, no anything. And based on my experience it's not - you're not dealing with somebody that's new into the district, that they don't know, I've been searching for answers.

Q. Let me go back to my earlier question, in all the years that you've known Dr. King, have you ever known him to discriminate against anybody?

A. No. If you're saying discriminated, not care for a person that might be qualified for the position or did not acknowledge, I don't know. A letter application, I don't know.

Q. You equate that Dr. King didn't [ac]knowledge your application -

A. Um-hmm.

Q. -- with a form of discrimination. Is that fair?

A. If you want [to] say that, yes.

Q. It's not that I want to say. You brought a lawsuit, you've alleged discrimination and I'm trying to find out what the basis for your claim is. Now, Dr. Nichols is -

A. No, Mrs. Nichols.

Q. Mrs. Nichols is an Afican [sic] American woman?

A. Yes.

Q. Dr. King is a [sic] African American man, correct?

A. Yes.

Q. You're not claiming that it's racially motivated, are you?

A. No.

Q. You're not claiming that it's based on your age at all?

A. No.

Q. Okay. You're not claiming that it's based upon your religious beliefs?

A. No.

Q. Okay. You're not claiming that it's based upon your sex, correct?

A. Right, yes.

Q. What's left? What other form of discrimination are you aware of that applies to your situation, can you tell me?

A. I really don't know. I really don't.

Thus, plaintiff, herself, was unable to articulate any discriminatory basis for her claims and presented no proof thereof.

With respect to her contract claims, plaintiff argues that in failing to hire her for any of the positions for which she applied, defendants breached the teacher's agreement, Title 18, N.J.A.C. 6A, and Board personnel policy because they failed to acknowledge receipt of her applications for promotion. She contends that "[t]he breach, in essence, denies plaintiff an opportunity to be notified of new positions, which denies her the opportunity to apply for such positions, denies her the opportunity to be treated equally as the other applicants."

Defendants do not dispute that plaintiff's applications for certain positions were not acknowledged. Nevertheless, plaintiff presents no evidence to demonstrate that she was damaged by the District's failure to do so. All new positions in the District are posted and plaintiff has the opportunity to apply for any and all positions that are posted. As Judge Merkelbach noted in his decision, "[I]n light of the fact that plaintiff has failed to cite to a basis in fact for any damages arising out of this breach of contract claim, the Court grants defendants' motion for summary judgment as to this point."

Our role in employment discrimination actions is not "to second-guess an employer's business judgment as to who is more qualified for [a] job." Dungee v. Ne. Foods, Inc., 940 F. Supp. 682, 689 (D. N.J. 1966). "[A]n employer 'may have any reason or no reason for [not promoting] an employee so long as it is not a discriminatory reason.'" Johnson v. Penske Truck Leasing Co., 949 F. Supp. 1153, 1183 (D.N.J. 1996) (quoting Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 332 (3d Cir. 1995)).

In short, plaintiff's arguments are without merit. Judge Merkelbach's decision is supported by the record. R. 2:11-3(e)(1)(A); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Affirmed.

 

After filing the complaint, plaintiff again applied for
Vice Principal at the East Orange Campus High School, in September 2004.

(continued)

(continued)

8

A-2944-05T2

October 24, 2006