JAMES D. PFLAUMER v. STATE OF NEW JERSEY, DIVISION OF STATE POLICE, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4725-05T54725-05T5

JAMES D. PFLAUMER,

Plaintiff-Appellant,

v.

STATE OF NEW JERSEY, DIVISION OF

STATE POLICE; LIEUTENANT JANICKY

and SERGEANT FIRST CLASS STOLL,

Defendants-Respondents,

and

JOHN J. FARMER, JR., ATTORNEY

GENERAL, LIEUTENANT COLONEL

MICHAEL FEDORKO and CAPTAIN

PROCCACINO,

Defendants.

________________________________________

 

Argued June 6, 2007 - Decided

Before Judges Winkelstein, Fuentes and Baxter.

On appeal from Superior Court of New Jersey,

Law Division, Mercer County, Docket No.

L-501-04.

Anthony M. Radice argued the cause for appellant

(Destribats, Campbell, DeSantis, Magee & Staub,

attorneys; Bernard A. Campbell, Jr., on the brief).

John C. Connell argued the cause for respondents

(Archer & Greiner, attorneys; Mr. Connell and

Vanessa A. Worm, on the brief).

PER CURIAM

Plaintiff, James D. Pflaumer, a former detective with the New Jersey State Police, commenced an action in the Law Division against his former employer alleging racial discrimination, hostile work environment, and retaliation under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Specifically, plaintiff contended that he was not promoted to his desired rank or positions because he is Japanese-American. According to plaintiff, the discrimination consisted of his superior referring to him as "Pflaumasaki" and "Sake." He also alleged that all minority detectives suffered disparate treatment.

The trial court granted defendants' motion for summary judgment, finding that plaintiff failed to demonstrate any adverse employment action. The trial court also found that plaintiff did not make out a prima facie case of hostile work environment because he could not demonstrate that the alleged conduct was related to race or national origin, and/or that this conduct was severe or pervasive.

Defendant now appeals from this ruling, arguing that the court erred in both its factual findings, and in the legal conclusions drawn therefrom. We reject these arguments and affirm.

I

Plaintiff considers himself to be of Japanese, German, and American ancestry. He joined the New Jersey State Police in 1979, and served as a General Road Duty Trooper through February 1984, when he was transferred to the Casino Gaming Bureau. This Bureau is comprised of multiple units, including the Casino Services Unit ("CSU"), the Special Investigations Unit ("SIU"), and the Casino Investigation Unit ("CIU"). Plaintiff served in the Casino Licensing Unit, which was later dissolved; and the CIU, before being transferred to the SIU in August 1987. He served in the SIU from August 1987 through November 1997.

Until 1995, the SIU was comprised of two squads. In early 1995, however, one squad leader left SIU, creating a vacancy for the position of squad leader. At this time, instead of naming a new squad leader, the two squads that comprised the SIU merged. Plaintiff, who held the rank of Detective I at the time, was not qualified for the squad leader position because squad leaders had to be Detective Sergeants, a rank superior to the rank of Detective I.

Sometime thereafter, the squads were split again. Plaintiff's superior, Lieutenant Thomas Janicky, appointed Detective Sergeant First Class ("DSFC") Gerald Stoll to lead plaintiff's squad. In early 1997, a squad leader was promoted out of the squad, resulting in another squad leader vacancy. According to plaintiff, the structure of the squads at the time began to change to "where you have DSFC as squad leader and the [Detective Sergeant ("DSG")] as assistant squad leader, then you have detective." As a Detective I, plaintiff was two ranks below the new preferred rank for squad leader.

While serving in Stoll's squad, plaintiff reported that his co-workers, including Stoll, referred to him as "Pflaumasaki" or "Sake." Plaintiff recalled that Stoll began using the nickname while he was temporarily attached to his squad, before Stoll was his supervisor. Although his co-workers referred to him by these nicknames on occasion as well, plaintiff claimed that Stoll used them consistently, and never referred to him by his real name. He believed that his co-workers of equal rank only referred to him as "Pflaumasaki" in jest, while Stoll used it in a derogatory manner. Other officers in plaintiff's unit had nicknames as well: Eddie Santiago was called "Rico"; Schulte was called "Swede"; and Watson was called "Wombat." Plaintiff acknowledged that he used these nicknames, but claimed that it was in jest.

In the Spring of 1997, Stoll prepared for plaintiff a standard Performance Evaluation Report (PER) for the period of November 1 to April 30, 1997. He gave plaintiff the highest rating of "competent" for all categories. In Section D of the report, Stoll described three "performance notices" that plaintiff received during the term for: (1) "failure to submit an initial investigation report in the prescribed period of time;" (2) "failure to submit supplementary reports when due;" and (3) "counseling concerning a deficiency in his attitude."

The comment regarding plaintiff's attitude explained that "[plaintiff's] attitude was argumentative and disrespectful. [Plaintiff], when counseled, appears to view suggestion and constructive assistance as criticism and becomes defensive. [Plaintiff] should work to accept direction and constructive critiquing of his actions." In Section C of the PER, however, Stoll acknowledged that "[plaintiff] has shown a noticeable improvement concerning the deficiencies as outlined in Section D of this report. [Plaintiff] has been successful in addressing the areas that required attention and bringing them to an acceptable level."

Plaintiff claimed that this final version of the PER was markedly different from the first version that Stoll attempted to submit. According to plaintiff, Janicky informed him that originally "Stoll typed up an evaluation so derogatory that it would have blocked [plaintiff's] promotion, and apparently Captain Proccacino [plaintiff's and Stoll's superior officer] saw the evaluation and told him to redo it." Plaintiff acknowledged, however, that Stoll's alleged first draft was never entered into his file, was never actually seen by plaintiff, and does not currently exist.

In June 1997, plaintiff was promoted from Detective I to DSG. Approximately four months later, on October 23, 1997, plaintiff and several of his co-workers were reprimanded by Lieutenant Janicky for various work-related issues. Plaintiff "felt" that only the minorities in the unit were rebuked, however. He alleged that Janicky even threatened him with a court martial because he was deputized by the Federal Bureau of Investigation at a federal building, but failed to inform the State Police.

On October 31, 1997, shortly after plaintiff was rebuked by Janicky, Major McPartland requested that plaintiff be transferred from the SIU to the CIU. The transfer was authorized on November 6, 1997. After this transfer, plaintiff retained his rank, his position as assistant unit supervisor, his responsibilities within the unit, and his compensation. In fact, plaintiff supervised a greater number of detectives in his new position in the CIU.

Despite the objective evidence indicating otherwise, plaintiff believed that his transfer from the SIU to the CIU was a demotion because detectives in the CIU were requested to wear a suit and tie, as opposed to jeans like SIU detectives; and CIU detectives had to work various shifts, including holidays and weekends, as opposed to SIU detectives, who worked regular weekday business hours. In his view: "Most people would consider it a demotion because in order to get to SIU you have to prove yourself in CIU to be an efficient detective, so it's a step backwards." Ultimately, however, plaintiff acknowledged that his transfer was essentially a lateral one.

On November 7, 1997, one day after his transfer was authorized, plaintiff filed a Discrimination Complaint Processing Form with the New Jersey Department of Personnel, Equal Employment Opportunity/Affirmative Action Unit (EEO/AA). The complaint covered the period from Spring 1995 to the time of filing.

Approximately one month thereafter, Sergeant Stoll prepared plaintiff's PER for the period of September 14 to December 13, 1997. Although he gave plaintiff a "competent" rating for most categories, Stoll gave the rating of "some improvement needed" for three categories, and "unsatisfactory" for one category. In the narrative sections of the report, Stoll acknowledged two performance notices received by plaintiff, in which he was commended for his performance in two specific cases. Stoll also noted, however, plaintiff's multiple deficiencies, mostly in the areas of meeting deadlines and attitude.

Once again, plaintiff claimed that Sergeant Stoll originally prepared a much more derogatory report that did not ultimately serve as the final draft. According to plaintiff, Sergeant Tom Spivey informed him that Stoll's original version was much longer. Plaintiff speculated that Sergeant Spivey feared that a long, derogatory report would look like retaliation for plaintiff's EEO/AA complaint, and he thus made Stoll amend it. Although plaintiff appealed the PER to the bureau captain, the report was upheld without modification. Although he did not experience any additional alleged acts of discrimination after his transfer, plaintiff believed that he experienced retaliation for the actions he had taken.

In January 2000, approximately two years after being promoted to Detective Sergeant, and while still assigned to the CIU, plaintiff was promoted to DSFC. Approximately one year after being promoted to DSFC, on January 4, 2001, plaintiff received a letter from the Attorney General explaining the results of the EEO/AA investigation, which began with plaintiff's complaint in 1997. The investigators concluded that "there was probable cause to substantiate the claim that DSFC Gerald Stoll called [plaintiff] by the nicknames 'Sake' and 'Pflaumasaki.' This constituted a violation of the State's Anti-Discrimination Policy."

The Attorney General recommended that Stoll receive counseling regarding the Anti-Discrimination Policy. Although in the course of the investigation plaintiff indicated that he took no offense to his co-workers calling him by the same nicknames, the Attorney General recommended that plaintiff's former units also receive counseling. However, the investigators found insufficient evidence to substantiate plaintiff's other allegations of discriminatory conduct. These unsubstantiated allegations included disparate treatment by Stoll, disparate treatment by Janicky, and authorization of a secret investigation of plaintiff by Detective Lindsey.

After his promotion to DSFC in 2000, plaintiff alleged that he was deliberately passed over for "promotion" opportunities as retaliation for his EEO/AA complaint. However, most of the positions to which plaintiff was not appointed cannot be clearly characterized as "promotions" because these positions did not involve a raise in rank to lieutenant.

Notwithstanding this evidence, plaintiff alleged that, in the Summer of 2003, he missed the following opportunities for promotion: (1) Assistant Unit Supervisor Casino Services, which was given to DSFC Frank Murawski; (2) Assistant Unit Supervisor Casino Investigation Unit, which went to DSFC Joey Hahn, who had been promoted to DSFC at the same time as plaintiff; and (3) Assistant Unit Supervisor in Special Investigation Unit, which was given to Sergeant Lindsay. Plaintiff claims that Lindsay "was far junior to [him] in time in grade, time in State Police and also time in rank."

Plaintiff further claims that he was passed over for promotion in the Fall and Winter of 2003. Specifically, he was not "promoted" to Criminal Case Manager. That position was filled instead by DSFC John Zelowski. In the Winter of 2003, plaintiff did not receive a "promotion" to Assistant Unit Supervisor in Special Investigation Unit. The position went to DSFC Joey Hahn.

According to plaintiff, this pattern of discrimination continued in 2004. In January, he claims to have been passed over for the following four separate "promotions": (1) Assistant Unit Supervisor Casino Services, which went to DSFC Rich Martin; (2) Assistant Unit Supervisor Intelligence Services, which went to DSFC George Wren; (3) a position in Witness Protection, which went to DSFC John Zelowski; and (4) a lieutenant's position in Casino Services, which was given to George Chadwick, an African-American DSFC.

In June 2004, plaintiff alleges that he was not "promoted" to Criminal Case Manager. The position was given instead to Joey Hahn. In July 2004, plaintiff failed to receive a "promotion" to Assistant Unit Supervisor of the Casino Investigation Unit, which was given to Bernard Woods, an African-American Sergeant. Finally, in August 2004, plaintiff was not "promoted" to Assistant Unit Supervisor in the Financial Investigation Unit.

Of all the positions to which plaintiff claims he was intentionally not appointed, only the lieutenant's position in Casino Services would have entailed a definite promotion in rank. An appointment to one of two other positions -- in Witness Protection, available in January 2004, and Assistant Unit Supervisor in Financial Investigation Unit, available in August 2004 -- would have made plaintiff an "acting lieutenant." While acting in this capacity, plaintiff would have officially retained his rank of DSFC. All the remaining positions were for the rank of DSFC, and thus would have entailed no promotion in rank. Finally, plaintiff conceded that the only actual promotion he did not receive was a promotion to lieutenant.

In July 2005, plaintiff voluntarily retired from the State Police at the rank of DSFC.

II

Against this factual backdrop, the trial court found that plaintiff did not establish a prima facie case of hostile work environment because he (1) "failed to set forth facts to support claims that the alleged conduct was because of race or national origin;" and (2) "failed to point to conduct which was sufficiently severe or pervasive to establish a claim of hostile work environment based on race or national origin."

Judge Innes also found plaintiff's claim of employment discrimination wanting, because he "never suffered any adverse employment action." In particular, plaintiff: (1) was never demoted or disciplined; (2) was twice promoted; (3) when transferred, his rank and position remained the same; (4) many of his transfers actually increased his authority over a greater number of employees; and (5) plaintiff's compensation and benefits were never decreased.

With respect to the retaliation claims, Judge Innes again found that plaintiff did not provide sufficient evidence to support this cause of action. Specifically, Judge Innes noted that plaintiff failed to establish that he was subjected to an adverse employment action, or was denied a promotion because of his protected activities under the LAD. Finally, the court dismissed plaintiff's claims under our State Constitution, as incorporated under LAD claims; and dismissed plaintiff's contract claim because the proper remedy was the filing of the EEO/AA complaint.

III

When reviewing an order granting summary judgment, we must apply the same standards used by the trial court. Prudential Prop. and Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2.

In other words, "a determination whether there exists a 'genuine issue' of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Plaintiff argues that the trial court erred by finding that he failed to establish a prima facie case for discrimination because circumstantial evidence exists that supports his claim. Specifically, plaintiff contends that discrimination can be found through Stoll referring to plaintiff as "Pflaumasaki" or "Sake," and through his superiors' failure to promote him or place him in other positions of authority. We disagree.

The LAD was enacted in 1945 and "guarantees that all citizens be afforded the civil rights promised by the State Constitution." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 445-46 (2005). Our Supreme Court has held that "[t]he 'overarching goal of the [LAD] is nothing less than the eradication of the cancer of discrimination.'" Id. at 446 (quoting Fuchilla v. Layman, 109 N.J. 319, 334, cert. denied, 488 U.S. 826, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988)). Accordingly, the LAD should be construed liberally to serve its remedial purpose. Ibid.

Our Supreme Court has adopted the three-step burden-shifting analysis first articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), for addressing an LAD claim. El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 166 (App. Div. 2005). The McDonnell Douglas burden-shifting scheme requires a three-part analysis:

"(1) the plaintiff must come forward with sufficient evidence to constitute a prima facie case of discrimination; (2) the defendant then must show a legitimate non-discriminatory 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."

[Ibid. (quoting Dixon v. Rutgers, the State Univ. of N.J., 110 N.J. 432, 442 (1988)).]

First, to demonstrate a prima facie case of discrimination, a plaintiff must show that: "(1) plaintiff belongs to a protected class; (2) [he or] she was performing [his or] her job at a level that met [his or] her employer's legitimate expectations; (3) [he or] she suffered an adverse employment action; and (4) others not within the protected class did not suffer similar adverse employment actions." Id. at 167. Our Supreme Court has held that "the prima facie case is to be evaluated solely on the basis of the evidence presented by the plaintiff, irrespective of defendants' efforts to dispute that evidence." Zive, supra, 182 N.J. at 448.

By establishing a prima facie case, plaintiff creates a presumption of discrimination, which shifts the burden of production to the employer to articulate a legitimate, nondiscriminatory reason for the employer's action. Id. at 449. The burden then shifts back to the plaintiff to prove by a preponderance of the evidence that the reason given by the employer is merely pretext for discrimination. Ibid.

In the summary judgment context, "the plaintiff may discharge the burden [of proving that the given reason is pretext] either by producing circumstantial or direct evidence that discrimination was more likely than not a motivating or determinative cause of the action or by discrediting the reason offered by the employer as the legitimate and non-discriminatory one." El-Sioufi, supra, 382 N.J. Super. at 173.

Here, Judge Innes' findings that plaintiff failed to present a prima facie case because he did not suffer an adverse employment action is well-supported by the competent evidence in the record. As noted by the court, plaintiff "was never demoted or disciplined, was twice promoted, when transferred his rank and position remained the same with even greater authority over a greater number of employees, and plaintiff's compensation and benefits were never decreased."

Our Supreme Court has held that in a failure-to-promote context, the "burden of demonstrating a prima facie case require[s] [a plaintiff] to show that similarly situated [co-workers outside of the protected class] were promoted while [he or] she was not. By 'similarly situated' we mean those persons possessing equivalent qualifications and working in the same job category as plaintiff." Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 84-85 (1978).

Here, as the trial court found, plaintiff was simply not satisfied with his failure to be promoted within his preferred timeframe. Plaintiff argues that, before 1997, he was not promoted to positions of leadership within his squad. Plaintiff presents no evidence that a significant number of his similarly-situated co-workers were promoted to squad leader positions while he was not. In fact, plaintiff acknowledges that he did not have the proper rank to fill the positions within his squad.

Although he contends that he could have been promoted in rank in order to receive one of the positions, there is no evidence that plaintiff formally applied for any of the promotions to which he refers, and there is no evidence that his similarly-situated co-workers received promotions in rank in order to fill leadership positions. Further, plaintiff conceded that Stoll, who received one of the squad leader positions that he desired, had leadership experience at the time the position became available, which plaintiff did not. More importantly, plaintiff was promoted to DSG and DSFC in 1997 and 2000, respectively, and therefore eventually gained the promotions in rank that he sought.

Plaintiff also alleges that his transfer from the SIU to the CIU was an adverse job action. Although he claimed that most people would consider it a demotion, he acknowledged that in reality it was a lateral transfer. He retained his rank, his unit position, his responsibilities, his compensation, and even received more subordinates than in the SIU. Although he was not pleased that he had to wear a tie to work, and had to work different hours, plaintiff presented insufficient evidence to support his claim that this transfer was an adverse employment action.

IV

Plaintiff's cause of action based on a hostile work environment is equally without merit. In a claim of hostile work environment under the LAD, a plaintiff must show that:

(1) the conduct complained of was unwelcome; (2) that it occurred because of the plaintiff's inclusion in a protected class under the LAD; and (3) that a reasonable person in the same protected class would consider it sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile, or offensive work environment.

[El-Sioufi, supra, 382 N.J. Super. at 178 (citing Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04)).]

Accordingly, a plaintiff must show that the alleged conduct would have occurred "but for" his or her race or national origin. Ibid. Additionally, the plaintiff must demonstrate that "a reasonable person of plaintiff's ancestry would consider the alleged [discriminatory] comments made by or in the presence of plaintiff's supervisors to be sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile or offensive working environment." Heitzman v. Monmouth County, 321 N.J. Super. 133, 147 (App. Div. 1999). Regarding the "severe or pervasive" requirement, "it is the harassing conduct that must be severe or pervasive, not its effect on the plaintiff or on the work environment." Lehman, supra, 132 N.J. at 606.

Although "'it will be a rare and extreme case,'" a single severe comment may be considered enough to create a hostile working environment if it is sufficiently severe. Taylor v. Metzger, 152 N.J. 490, 499-500 (1998) (quoting Lehman, supra, 132 N.J. at 606-07). More frequently, however, "a plaintiff seeks to demonstrate that an environment is hostile by relying on a variety of statements or behaviors directed to plaintiff and others." El Sioufi, supra, 382 N.J. Super. at 179-80.

Notably, rude or discourteous comments or actions should not be confused with racial or ethnic harassment. Heitzman, supra, 321 N.J. Super. at 147. "'[E]pithets or comments which are merely offensive will not establish a hostile work environment claim.'" El-Sioufi, supra, 382 N.J. Super. at 179 (quoting Hietzman, supra, 321 N.J. Super. at 147). Instead, the "'[c]onduct must be extreme to amount to a change in the terms and conditions of employment.'" Ibid. (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, 2284, 141 L. Ed. 2d 662, 677 (1998)).

Finally, when faced with a claim of hostile work environment, a court should consider the overall context and the circumstances, such as "'frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a merely offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Heitzman, supra, 3231 N.J. Super. at 147 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S. Ct. 367, 371, 126 L. Ed. 2d 295, 302-03 (1993)).

Here, plaintiff primarily relies on the use of the names "Pflaumasaki" or "Sake" by his superior, Stoll, to support his claim of hostile work environment. The trial court held that plaintiff failed (1) to support his claim that the alleged conduct was because of race or national origin; and (2) to demonstrate that the conduct was severe or pervasive.

Although Stoll referred to plaintiff by the nicknames, we need not decide whether the trial judge was correct when he concluded that the nicknames were not in reference to plaintiff's national origin, because we agree with his conclusion that the use of the nicknames did not rise to the level of being severe or pervasive. Plaintiff admitted that everyone in his unit referred to him by these names, and he believed it was in jest. Accordingly, he never objected to the use of the names and never asked anyone to stop using them. Further, the use of the nicknames never altered plaintiff's employment. In fact, plaintiff received mostly positive reviews from Stoll.

V

We now turn to plaintiff's claims of retaliation. Plaintiff argues that that trial court erred by finding that plaintiff failed to establish a retaliation claim because it did not consider circumstantial evidence. Specifically, plaintiff contends that the trial court failed to consider the fact that plaintiff was passed over for several promotions and transfers, many of which occurred after he filed his EEO/AA and Superior Court complaints. Again, we disagree.

The LAD makes it unlawful

[f]or any person to take reprisals against any person because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act.

[N.J.S.A. 5:10-12d.]

To address a claim of retaliation under the LAD, courts must apply a burden-shifting scheme similar to that of McDonnell Douglas. Jamison v. Rockaway Twp. Bd. of Educ., 242 N.J. Super. 436, 445 (App. Div. 1990). First, plaintiff must establish a prima facie case of discriminatory retaliation. Ibid. This court has held that

in a failure-to-promote context involving a claim of retaliation, a claimant establishes a prima facie case by proving by the preponderance of the evidence that (1) the claimant engaged in a protected activity that was known to the alleged retaliator, (2) the promotion sought was denied, and (3) the claimant's engagement in the protected activity was a cause of the promotion denial.

[Id. at 447.]

If the plaintiff succeeds in establishing a prima facie case of discriminatory retaliation, the burden shifts to the employer to articulate a legitimate non-retaliatory reason for the adverse action. Id. at 445. The plaintiff is then "afforded a fair opportunity" to show that the reason given "is a pretext for the retaliation or that a discriminatory reason more likely motivated the employer." Ibid. If plaintiff succeeds, a presumption of retaliatory intent is established. Id. at 445-46.

In a failure-to-promote context, the employer then "must prove by a preponderance of the evidence that the adverse action would have taken place regardless of the retaliatory motives of the employer" due to the qualifications of other employees. Id. at 447. As this court has held, "Engaging in protected activities should not place a claimant in a better position than the candidate would be otherwise." Ibid.

Here, the trial court concluded that the lack of an adverse employment action by the employer was fatal to plaintiff's retaliation claim. Because plaintiff only filed his EEO/AA claim in 1997, his retaliation claims are limited to actions that took place after that date. In this context, plaintiff's claim of retaliation is rebutted by the fact that he received two promotions -- to DSG in 1997 and DSFC in 2000 -- during the time that he claims he was the victim of retaliation. Plaintiff claims, however, that his failure to achieve the rank of lieutenant was the result of retaliation. In the context of this record, the facts do not support this claim.

Of all the positions that plaintiff pointed to as potential opportunities for promotion after 1997, only one would have resulted in a promotion to the rank of lieutenant. Plaintiff has presented no evidence to support his claim that he did not receive this promotion as a retaliation for his protected activities under the LAD. Further, plaintiff presents no evidence that he formally applied for the position, and thus merely argues that his superiors should have recognized his qualifications and given him the promotion instead of any other detective. Additionally, the remaining positions referred to by plaintiff did not entail a promotion to the rank of lieutenant.

VI

For the reasons stated herein, the order of the trial court granting defendants' motion for summary judgment is affirmed.

Affirmed.

 

Plaintiff's mother was Japanese, and was born in Japan. His father was German, but was born in the United States. According to plaintiff, his last name, Pflaumer, is German.

An EEO/AA memo prepared in January 2000, indicated that plaintiff "provided false and misleading information" concerning certain allegations. The Attorney General, however, did not reach this conclusion in his January 2001 letter.

(continued)

(continued)

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