ROBERT MCCANN v. TRUMP MARINA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5029-07T35029-07T3

ROBERT MCCANN,

Plaintiff-Appellant,

v.

TRUMP MARINA and MARY LOU

SPATOLA,

Defendants-Respondents.

__________________________________

 

Submitted November 12, 2009 - Decided

Before Judges Payne and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-8180-02.

Robert McCann, appellant pro se.

Cooper Levenson April Niedelman & Wagenheim, P.A., attorneys for respondents (Gerard W. Quinn, on the brief).

PER CURIAM

Plaintiff Robert McCann appeals the dismissal on summary judgment of his employment discrimination action against defendants Trump Marina and Mary Lou Spatola, his manager. We affirm.

McCann was employed as a marketing representative by Trump Marina from March to November of 2001 or 2002, he was uncertain which. He and his entire department were laid off due to a financial crisis at Trump Marina, just before Thanksgiving of the same year. Some of his co-employees were subsequently either rehired to the same position or placed at other Trump properties. However, McCann offered no proof that he had ever applied for rehire or sought transfer to another Trump property.

McCann filed suit alleging that he had been terminated in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. He also alleged that he had been subjected to a hostile work environment during the term of his employment. He alleged discrimination based upon race, African-American, and gender, male. He also alleged that he was terminated in retaliation for filing a grievance concerning the hostile work environment.

After a period of discovery, defendants moved for summary judgment. McCann opposed the motion, arguing that there were genuine issues of material fact precluding a disposition of his claims on motion. After hearing oral argument on May 30, 2008, Judge Gwendolyn Blue granted summary judgment and dismissed McCann's claims. Judge Blue explained her reasons in a comprehensive oral decision, which sets forth her factual and legal conclusions. We affirm essentially for the reasons set forth by Judge Blue, adding only the following.

When reviewing a grant of summary judgment, we employ the same standards used by the motion judge. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts; we then decide whether the motion judge's application of the law was correct. Id. at 230-31. We apply the standards articulated by the Supreme Court in Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 540 (1995):

[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.

We are satisfied that Judge Blue applied the appropriate standard in deciding the motion before her.

In analyzing claims brought under the LAD, "[o]ur Supreme Court has adopted the three-step burden-shifting analysis first developed 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)." El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 166 (App. Div. 2005) (citing Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363, 382 (1988); Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 82 (1978)).

[T]he court first determines whether plaintiff has produced sufficient evidence to demonstrate the elements of his or her prima facie case. If so, then the burden shifts to the employer to produce evidence of "legitimate, non-discriminatory reasons" that support its employment actions. Once the employer has done so, the burden shifts back to plaintiff to prove that the stated reasons were a pretext for discrimination.
 
[Ibid. (internal citations omitted).]

A prima facie case of discrimination requires a showing that: (1) plaintiff is a member of a protected class; (2) plaintiff was performing the job consistent with the employer's expectations; (3) plaintiff suffered an adverse employment action; and (4) others not within the protected class did not suffer similar adverse employment actions. Maher v. N.J. Transit Rail Operations, Inc., 125 N.J. 455, 480-81 (1991); El-Sioufi, supra, 382 N.J. Super. at 167. Our Supreme Court has recognized that this burden is "rather modest." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005) (quoting Marzano v. Computer Sci. Corp., 91 F.3d 497, 508 (3rd Cir. 1996)).

The burden then switches to the defendant to put forth "a legitimate, nondiscriminatory reason for the employer's action." Id. at 449. At this stage, there is no credibility or truth assessment. All the employer is required to show is that there was a legitimate explanation for its action. McDonnell Douglas, supra, 411 U.S. at 802-05, 93 S. Ct. at 1824-25, 36 L. Ed. 2d at 677-79. The employer "must come forward with admissible evidence of a legitimate, non-discriminatory reason for its rejection of the employee." Bergen Commercial Bank v. Sisler, 157 N.J. 188, 210 (1999). When the employer does produce such evidence, the presumption of discrimination is overcome. Id. at 211.

The burden then shifts back to the plaintiff to establish "by a preponderance of the evidence that the reason articulated by the employer was merely a pretext for discrimination and not the true reason for the employment decision." Zive, supra, 182 N.J. at 449. "To prove pretext, however, a plaintiff must do more than simply show that the employer's reason was false; he or she must also demonstrate that the employer was motivated by discriminatory intent." Viscik v. Fowler Equip. Co., 173 N.J. 1, 14 (2002). The employee

does not qualify for a jury trial unless he or she can "point to some evidence, direct or circumstantial, from which a fact finder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action."

[Zive, supra, 182 N.J. at 455-56 (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)).]

"To discredit the employer's proffered reason, however, the plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent." Fuentes, supra, 32 F.3d at 765. If the plaintiff fails to meet this obligation, the defendant is entitled to summary judgment. Zive, supra, 182 N.J. at 456.

With respect to the issue of termination, Judge Blue applied the appropriate legal standard and correctly determined that McCann had satisfied the first three prongs, but could not satisfy the fourth. There was no credible evidence that Trump Marina's broad-based staff reduction, 200 to 300 people according to McCann, was a ruse or screen for termination of McCann based on race or gender discrimination, or retaliation. While it is true that some employees were either rehired or placed elsewhere, Judge Blue correctly determined that there was no credible evidence that McCann requested either. We also note that one of McCann's eventual replacements was an African-American male.

In Cutler v. Dorn, 196 N.J. 419 (2008), the Supreme Court articulated the analysis necessary to establish a hostile work environment. The Court said:

When evaluating whether conduct is sufficiently severe or pervasive to create a hostile work environment, we focus on the "harassing conduct . . ., not its effect on the plaintiff or the work environment." Lehman [v. Toys 'R' Us, 132 N.J. 587, 606 (1993)]. That is because neither "a plaintiff's subjective response" to the harassment, id. at 613, nor a defendant's subjective intent when perpetrating the harassment, id. at 604-05, is controlling of whether an actionable hostile environment claim exists. Whether harassing conduct makes a work environment hostile is assessed by use of a reasonable person standard. See Lehmann, supra, 132 N.J. at 603-04. We adopted that objective standard to provide flexibility so that the definition of "harassment" would reflect evolving community standards. Id. at 612.

Thus, "severe or pervasive" conduct must be conduct that would "make a reasonable [person] believe that the conditions of employment are altered and [that the] working environment is hostile." Id. at 604. Making that assessment requires an examination of the totality of the circumstances.
 
[Id. at 431 (emphasis in original).]

See also Heitzman v. Monmouth County, 321 N.J. Super. 133, 147 (App. Div. 1999) (noting that "[a]n employment discrimination law such as the LAD is not intended to be a '"general civility" code' for conduct in the workplace.").

Again, we find that Judge Blue applied the appropriate legal standard and correctly determined that the facts, as opposed to assertions, presented by McCann, even when viewed most favorably to him, did not support a cause of action for hostile work environment. Judge Blue correctly noted that there was no evidence to permit a rational finder of fact to conclude that the security guard who disturbed McCann in the restroom was motivated by a discriminatory animus or that his conduct was the result of an action by his co-workers. "'[C]onclusory and self-serving assertions' in certifications without explanatory or supporting facts will not defeat a meritorious motion for summary judgment." Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 425-26 (App. Div. 2009) (quoting Puder v. Buechel, 183 N.J. 428, 440 (2005)). "[O]pposition requires 'competent evidential material' beyond mere 'speculation' and 'fanciful arguments.'" Id. at 426 (quoting Merchs. Express Money Order Co. v. Sun Nat'l Bank, 374 N.J. Super. 556, 563 (App. Div.), certif. granted, 183 N.J. 592 (2005), appeal dismissed Jan. 3, 2006); see also O'Loughlin v. Nat'l Cmty. Bank, 338 N.J. Super. 592, 606-07 (App. Div.) (stating opposition to summary judgment requires more than establishing abstract doubt of material facts), certif. denied, 169 N.J. 606 (2001). Therefore, "summary judgment cannot be defeated if the non-moving party does not 'offer[] any concrete evidence from which a reasonable juror could return a verdict in his favor[.]'" Housel v. Theodoridis, 314 N.J. Super. 597, 604 (App. Div. 1998) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 2514, 91 L. Ed. 2d 202, 217 (1986)).

The remaining issues raised on appeal do not warrant discussion in a written opinion, Rule 2:11-3(e)(1)(E), although we note that we find no merit in McCann's assertion that he was not permitted to take sufficient discovery.

 
Affirmed.

(continued)

(continued)

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A-5029-07T3

December 18, 2009