ERIC RAZZANO v. TOWNSHIP OF NORTH BRUNSWICK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0534-10T1

ERIC RAZZANO,

Plaintiff-Appellant,

v.

TOWNSHIP OF NORTH BRUNSWICK,

GLENN SANDOR, individually

and in his capacity as a

Manager/Supervisor,

Defendants-Respondents.

_____________________________

Argued May 16, 2011 Decided June 13, 2011

 

Before Judges Reisner, Sabatino and Alvarez.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-9259-07.

 

Gregory S. Schaer argued the cause for appellant.

 

Susan K. O'Connor argued the cause for respondent Township of North Brunswick (Hoagland, Longo, Moran, Dunst & Doukas, L.L.P., attorneys; Ms. O'Connor, of counsel and on the brief).

 

Laura M. LoGiudice argued the cause for respondent Glenn Sandor (Post, Polak, Goodsell, MacNeill & Strauchler, P.A., attorneys; Frederick B. Polak, of counsel; Debra J. Surgan and Ms. LoGiudice, on the brief).

PER CURIAM

Plaintiff Eric Razzano appeals from two orders dated August 5, 2010 (granting defendants' motions for reconsideration and dismissing his complaint on summary judgment) and from an order dated August 6, 2010 (denying plaintiff's discovery motion as moot). We affirm.

I.

The factual background is set forth at length in the trial judge's written opinion dated August 5, 2010, and need not be repeated here in the same level of detail. To summarize, plaintiff was a truck driver with the Township of North Brunswick Department of Public Works (Department or DPW). He had a history of back problems, which the Department had accommodated by allowing him to drive light trucks rather than heavy trucks.

Plaintiff claims that on August 17, 2005, he was passed over for promotion to a provisional assistant supervisor position due to political considerations, in violation of Civil Service laws and the New Jersey Constitution. He asserts that the candidate who was chosen, Mark LaMonica, had a poor work ethic and a poor disciplinary record, and had no seniority in the Department, but was appointed because he was a political ally of the Mayor. Plaintiff also contends that he was improperly passed over for promotion when LaMonica was later promoted to permanent assistant supervisor and then to supervisor.

Instead of filing an appeal with the Civil Service Commission when LaMonica was promoted to provisional assistant supervisor and then to permanent assistant supervisor and supervisor, plaintiff filed a Law Division complaint on October 31, 2007, against the Township and Glenn Sandor, the DPW Director. Plaintiff's first amended complaint, filed in 2009, alleged that in passing him over for promotion, the Township violated the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2, and the State Constitution, by circumventing the requirements of the Civil Service Act and the clause of the New Jersey Constitution requiring that civil service appointments be made according to merit. N.J. Const. art. VII, 1, 2. He alleged that the same actions violated public policy.

He also asserted that the Township discriminated against him, and created a hostile work environment for him, because of his disability or perceived disability, in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.1 Notably, his complaint did not assert violations of any portion of the State Constitution other than the merit appointments clause. However, he later asserted a First Amendment claim, based on political affiliation, and the trial judge addressed that claim.

By the time defendants filed their summary judgment motions, there was no dispute that plaintiff's complaint about the 2005 promotion was barred by the statute of limitations. Therefore, plaintiff's legal claims were limited to the later decisions to promote LaMonica, and not plaintiff, to the positions of permanent assistant supervisor and then supervisor. However, plaintiff contended that the initial decision to promote LaMonica in 2005 was evidence of defendants' ongoing discriminatory intent.

In response to plaintiff's complaint, defendants produced evidence that LaMonica was qualified to be a provisional assistant supervisor, because he had six years of supervisory experience in the private sector. Defendants also produced evidence that the Mayor, who had previously served as a Township Council member, believed that the DPW was plagued by inefficiency and a generally poor work ethic among many of its employees. The Township Business Administrator, Robert Lombard, shared that view. As a result, in 2005, the Township appointed Glenn Sandor as Director of the DPW, with the mission to improve the Department's operations.

At his deposition, the Mayor testified that he thought LaMonica would make a good supervisor because, having been recently re-hired to the Department after a long absence, he was an outsider who would not be infected with the prevailing lackadaisical attitude. He also believed LaMonica had a strong personality and could "shake it up a little bit" as a supervisor. Sandor agreed that, based on what he observed of LaMonica's work, he was capable of being an effective supervisor.

Defendants produced legally competent evidence, in the form of contemporaneous recommendations from Sandor, and later deposition testimony, that LaMonica was highly rated as a provisional assistant supervisor. After he had served about ten months in that provisional position, he was appointed to permanent assistant supervisor, based on his good performance in the job.

Defendants also produced evidence that the Mayor was unaware of plaintiff's back problems at the time he recommended LaMonica for promotion, and that Sandor was not aware of defendant's previous history of back problems when he raised a question as to why defendant was refusing to drive heavy trucks. Defendants also produced documentation, pre-dating plaintiff's complaint, that his supervisors at the DPW were concerned about plaintiff's selective refusal to drive heavy trucks -- that is, he would sometimes drive heavy trucks when asked to do so, but other times he would refuse, claiming that he had a bad back. That concern led Sandor to require plaintiff to go for a functional capacity evaluation. Based on a November 13, 2007 evaluation, Kinematic Consultants, Inc. issued a report opining that plaintiff could return to work as a truck driver on "[f]ull unrestricted duty." Plaintiff did not obtain his own medical expert to refute that evaluation.

In his August 5, 2010 opinion, the motion judge concluded that the Township and Sandor were entitled to summary judgment. The judge focused his analysis on the only two employment actions that fell within the statute of limitations periods: (1) LaMonica's June 2, 2006 promotion to assistant supervisor; and (2) LaMonica's December 4, 2006 promotion to supervisor.

The judge rejected plaintiff's claims under the Civil Rights Act because he concluded LaMonica's promotions were based on merit. He found, based on undisputed evidence, that "LaMonica was the more qualified supervisor, not only because of the outside supervisory experience he gained during his six year absence from the DPW, but also due to the eleven months he spent as a provisional Assistant Supervisor." He further found that "[i]t was Sandor's favorable review of LaMonica's work performance, LaMonica's experience as a Supervisor, and Sandor's desire to promote all of the Assistant Supervisors to Supervisors that resulted in LaMonica's second promotion to Supervisor."

The judge rejected plaintiff's reliance on LaMonica's "negative personnel file entries" because they "were made some ten years before being promoted to Assistant Supervisor, or after promotion to Supervisor." He added "that Mayor Womack and Glen Sandor did not have any involvement with the DPW at the time all but one of the incidents occurred, and there is nothing that indicates that they had any firsthand knowledge of the incidents." He concluded that "[t]he record clearly establishes LaMonica as the more qualified candidate."

The judge dismissed plaintiff's claims under the LAD for similar reasons. He concluded that "the record does not support a finding that LaMonica's qualifications were less than or equal to those of Razzano." Rather, he found that "the record demonstrates that LaMonica's qualifications for promotion to the positions of Assistant Supervisor and Supervisor were superior to those of Razzano." He considered the fact that LaMonica "left the DPW and gained six years of management experience. This made LaMonica a good fit for Mayor Womack's ultimate goal of bringing in an 'outsider' who could reform the DPW by 'shak[ing] things up.'"

Based on the evidence, the judge further concluded that "while Razzano may have had slightly more years with the DPW than LaMonica, it was LaMonica who held the competitive advantage with his outside experience in management." Moreover, "LaMonica's qualifications to manage were already proven through both his performance as provisional Assistant Supervisor and permanent Assistant Supervisor." The judge concluded that LaMonica had a "qualitative edge" over Razzano, whom the documentary evidence showed "was viewed by his superiors as slow, uncommunicative, and part of the DPW culture that needed change."

Even assuming that plaintiff presented a prima facie case of discrimination, the judge found that he failed to "come forth with any evidence contradicting Mayor Womack's proffered reason of desiring to bring in an outsider to 'shake things up' and change the DPW's existing culture." In other words, plaintiff failed to produce evidence showing that defendants' explanation for promoting LaMonica was a pretext for discrimination based on handicap or political affiliation.

Finally, the judge dismissed plaintiff's hostile work environment claim "because the complaint of conduct is not 'severe or pervasive.'" Plaintiff claimed that he was subjected to a hostile work environment because he was twice asked to drive a heavy truck and because he was asked to accept a demotion to a public works repairer position. The judge concluded that those claims were insufficient, because asking plaintiff to drive a heavy truck "was not uncommon" for truck drivers at the DPW, and because the transfer request was "more akin to an effort to accommodate rather than discriminate."

II.

On this appeal, plaintiff raises these points for our consideration:

POINT I. THE COURT FAILED TO ACKNOWLEDGE OR APPLY THE APPROPRIATE STANDARD ON DEFENDANTS' MOTION FOR RECONSIDERATION.

 

POINT II. THE COURT ERRED IN ENTERTAINING AND GRANTING SUMMARY JUDGMENT WHERE THERE WAS A PENDING APPLICATION RELATING TO OUTSTANDING DISCOVERY THAT HAD NOT BEEN FULLY OR PROPERLY ADJUDICATED.

 

POINT III. THE COURT FAILED TO ACKNOWLEDGE NUMEROUS MATERIAL FACTS INCLUDING MANY MATERIAL FACTS THAT ARE IN DISPUTE AND WHICH SHOULD HAVE PRECLUDED SUMMARY JUDGMENT FROM BEING GRANTED.

 

POINT IV. THE COURT ERRED IN HOLDING THAT PLAINTIFF FAILED TO ESTABLISH A PRIMA FACIE CASE OF HANDICAP DISCRIMINATION UNDER THE NEW JERSEY LAW AGAINST DISCRIMINATION.

A. The Court Misapplied The Prima Facie Case, Viewed Plaintiff's Qualifications From A Subjective Rather Than Objective Standard And Engaged In An Improper Weighing Of The Evidence.

 

B. The Trial Court Applied An Incorrect Variation Of The Prima Facie Case To Plaintiff's Failure To Promote Claim and Misstated The Fourth Prong Of The Prima Facie Standard That It Did Apply.

 

POINT V. THE COURT ERRED IN DISMISSING PLAINTIFF'S DISCRIMINATION CLAIM WHERE THERE WAS EVIDENCE FROM WHICH THE TRIER OF FACT COULD CONCLUDE THAT DEFENDANTS' PROFFERED REASON FOR FAILING TO PROMOTE PLAINTIFF IS PRETEXTUAL IN VIOLATION OF THIS COURT'S MANDATE IN DEWEES V. RCN CORP., 380 N.J. Super. 511 (APP. DIV. 2005).

 

POINT VI. THE COURT ALSO VIOLATED ESTABLISHED PRECEDENT BY HOLDING THAT: (1) PLAINTIFF WAS REQUIRED, AND FAILED, TO PROFFER AFFIRMATIVE EVIDENCE OF DISCRIMINATORY INTENT (2) PLAINTIFF WAS REQUIRED TO PROVE AT THE SUMMARY JUDGMENT STAGE THAT DEFENDANTS' ACTIONS WERE MOTIVATED BY DISCRIMINATORY INTENT AND (3) THAT IT WAS THE ROLE OF THE COURT RATHER THAN THE TRIER OF FACT TO DETERMINE WHETHER DEFENDANTS' PROFFERED REASONS WERE PRETEXTUAL.

 

POINT VII. THE COURT ERRED IN FINDING THAT PLAINTIFF FAILED TO ESTABLISH A CLAIM FOR HOSTILE WORK ENVIRONMENT HARASSMENT IN VIOLATION OF THE NEW JERSEY LAW AGAINST DISCRIMINATION, N.J.S.A. 10:5-1 ET. SEQ. SUFFICIENT TO SURVIVE SUMMARY JUDGMENT.

 

POINT VIII. THE COURT ERRED IN ANALYZING AND DISMISSING PLAINTIFF'S CLAIMS ALLEGING VIOLATIONS OF THE NEW JERSEY CIVIL RIGHTS ACT, N.J.S.A. 10:6-2.

 

A. The Court Erred In Dismissing Plaintiff's Claim Based Upon The Interference Or Attempted Interference With Plaintiff's Statutory and Constitutional Rights By Failing To Promote Plaintiff On the Basis Of Merit.

 

B. The Court Erred In Dismissing Plaintiff's Claim Under The Civil Rights Act Premised Upon The Claim That The Promotional Decisions At Issue Were Influenced By Political Considerations.

 

POINT IX. THE COURT FAILED TO CONDUCT AN APPROPRIATE IN CAMERA REVIEW OF THE DOCUMENTS AT ISSUE AND FAILED TO ISSUE FINDINGS AS REQUIRED BY CASE LAW.

 

We have reviewed the record de novo, as required on an appeal from the trial court's grant of summary judgment, applying the standard set forth in Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 540 (1995). See Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010); Agurto v. Guhr, 381 N.J. Super. 519, 525 (App. Div. 2005). Based on that review, we agree that the case was ripe for summary judgment and we find no basis to disturb the judge's decision to dismiss the complaint.

A.

Plaintiff contends in Point I that the trial judge should not have entertained defendants' reconsideration motion. The issue arose in this context. Defendants moved for summary judgment. The judge denied summary judgment without allowing oral argument, even though one of the moving parties had requested it. He also issued no findings of fact or conclusions of law. Defendants moved for reconsideration. After hearing oral argument on that motion, the judge reconsidered his earlier decision and granted summary judgment. He issued a written opinion explaining his reasons for granting the motion.

Because the first motion was mistakenly granted without oral argument, we find no abuse of the trial court's discretion in granting reconsideration. Plaintiff's arguments on this point are without merit and warrant no further discussion here. R. 2:11-3(e)(1)(E).

B.

Our review of plaintiff's Points II, III, and IX reveals that the arguments set forth in those points are equally without merit. In Point II, plaintiff contends that the case was not ripe for summary judgment because discovery was not complete. But he does not explain the significance of the discovery he claims he still needed. A mere conclusory statement that discovery is incomplete will not serve to defeat the opposing party's right to move for summary judgment. See Auster v. Kinoian, 153 N.J. Super. 52, 56 (App. Div. 1977). Similarly, in Point IX, plaintiff contends that in deciding his discovery motion, the judge should have examined certain documents in camera. However, he provides no explanation as to the relevance of those documents or why they would, if admitted, have defeated defendants' right to summary judgment. Ibid.

In an equally conclusory Point III, plaintiff contends that there were disputed issues of material fact. But he fails to explain why any of the allegedly disputed facts were material. That point requires no further discussion. R. 2:11-3(e)(1)(E).

C.

Addressing plaintiff's points IV, V, and VI, and VIII, we agree with plaintiff that he presented a prima facie case of disability discrimination. But we agree with the trial judge that the employer presented proof of legitimate, non-discriminatory reasons for the failure to promote plaintiff, and plaintiff failed to present countervailing evidence of pretext.

In adjudicating cases of claimed discrimination under the LAD, our courts have adopted a three-step process:

(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.

 

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

In a case involving denial of promotion, the plaintiff must present a prima facie case consisting of four parts:

The initial burden of showing a prima facie case is met when the plaintiff shows that "it is more likely than not" that the employer's actions were based on unlawful considerations. This determination, in turn, is made by having the plaintiff meet the requirements of a four-part test: (1) that she is a member of a class protected by the anti-discrimination law; (2) that she was qualified for the position or rank sought; (3) that she was denied promotion, . . . ; and (4) that others [who are not members of plaintiff's protected class] with similar or lesser qualifications achieved the rank or position.

 

[Id. at 443.]

 

In presenting a prima facie case, however, plaintiff's evidentiary burden is "slight" and "is to be evaluated solely on the basis of the evidence presented by the plaintiff, irrespective of defendants' efforts to dispute that evidence." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 448 (2005).

In the context of a failure to promote, plaintiff must show that he was not promoted while similarly situated persons, who were not members of plaintiff's protected class, were promoted. Peper v. Princeton Univ. Bd. Of Trustees, 77 N.J. 55, 84 (1978). "By 'similarly situated' we mean those persons possessing equivalent qualifications and working in the same job category as plaintiff." Id. at 84-85.

In this case, plaintiff presented at least some evidence that he had a disability or was perceived as having a disability; that he had the basic qualifications for promotion to assistant supervisor as evidenced by his placement on a civil service promotion list; that he was passed over for promotion; and that a non-disabled employee (LaMonica) who worked in the same job category and was also rated as qualified by the Civil Service Commission, was promoted instead. Given the slightness of plaintiff's prima facie burden, this was sufficient. See Zive, supra, 182 N.J. at 455.

Disputes over the quality of plaintiff's job performance or over his relative merits as compared to the successful candidate "are more properly debated in the second and third stages of the burden-shifting test." Ibid. In holding that plaintiff had not presented a prima facie case, the judge conflated plaintiff's initial burden with the employer's subsequent burden to show legitimate reasons for its actions and plaintiff's burden to prove pretext. Nonetheless, we agree with the judge that on the second and third steps of the proof process, defendants presented evidence of legitimate, non-discriminatory reasons for the decision to promote LaMonica, and plaintiff failed to present evidence that those reasons were a pretext for discrimination based on his disability.

Defendants presented proof that at the time the decision was made to promote a candidate to provisional assistant supervisor, LaMonica was a more qualified candidate than plaintiff because LaMonica already had six years of supervisory experience in the private sector. With respect to that 2005 promotion, defendants also presented evidence that they believed LaMonica was more likely to be able to address longstanding problems in the DPW because he was an outsider.

In his response to the Township's statement of material facts, plaintiff did not dispute that Mayor Womack had a perception that there was a lack of productivity by DPW employees. He also did not dispute that Business Administrator Lombard agreed with the Mayor that there was a lack of accountability in the DPW department and that important tasks were not getting done in a timely manner. Plaintiff similarly did not specifically dispute, with references to record evidence, Sandor's evidence-based assertion that the Mayor told Lombard and Sandor that the DPW needed to promote an outsider who could change the perceived lackadaisical work culture in the department. The majority of plaintiff's responses to Sandor's additional factual assertions were not supported by any citations to record evidence. See R. 4:46-2(b).2

Plaintiff similarly did not prove that the Township's reasons for promoting LaMonica to permanent assistant supervisor were pretexts for discrimination. He did not dispute that after LaMonica had been acting assistant supervisor for about ten months, Sandor recommended his appointment as permanent assistant supervisor, citing the good job he had done as acting assistant. He also did not dispute that Lombard gave LaMonica a similar good recommendation based on his job performance as acting assistant. He did not dispute that in December 2006, Sandor recommended assistant supervisors Selover and LaMonica for appointment to supervisor and did not recommend plaintiff for promotion. At that point, plaintiff had no experience as an assistant supervisor and so was less qualified to compete for the supervisor position.

In summary, defendants produced legitimate business reasons for promoting LaMonica, and plaintiff failed to produce evidence from which a fact finder could conclude that those asserted reasons were a pretext for discrimination.

 

 

 

D.

We next address plaintiff's claims based on the Civil Rights Act, N.J.S.A. 10:6-2(c), which provides in pertinent part:

Any person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law, may bring a civil action for damages and for injunctive or other appropriate relief.

 

[Ibid. (emphasis added).]

 

Plaintiff first argues that in passing him over for promotions, defendants violated his "substantive rights" secured by the merit and fitness clause of the New Jersey Constitution. N.J. Const. art. VII, 1, 2, which provides:

Appointments and promotions in the civil service of the State, and of such political subdivisions as may be provided by law, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination, which, as far as practicable, shall be competitive; except that preference in appointments by reason of active service in any branch of the military or naval forces of the United States in time of war may be provided by law.

 

However, as the Supreme Court has recognized, the Legislature has adopted a specific statutory scheme, the Civil Service Act, N.J.S.A. 11A:1-1 to 11A:12-6, and has created a specialized administrative agency, to enforce this clause of the Constitution:

[T]he New Jersey Constitution reaffirms our long-standing commitment that appointments and promotions in the Civil Service shall be made "according to merit and fitness." N.J. Const. art. VII, 1, para. 2. The 1986 reform of the Civil Service Act (Act) recognizes that commitment. The Act created a Department of Personnel to replace the Civil Service Commission. The Department of Personnel consists of a Merit System Board, a Commissioner of Personnel, and other subdivisions.

 

[In re Vey, 124 N.J. 534, 538-39 (1991).]

 

While the CRA was adopted in 2004, long after Vey was decided, nothing in the history of the CRA or its judicial construction suggests that in adopting the CRA the Legislature intended to supersede or supplement the Civil Service Act.

In Owens v. Feigin, 194 N.J. 607 (2008), the Court described the purpose of the CRA as filling any possible gaps in the laws prohibiting invidious discrimination and other recognized civil rights violations:

In 2004, the Legislature adopted the CRA for the broad purpose of assuring a state law cause of action for violations of state and federal constitutional rights and to fill any gaps in state statutory anti-discrimination protection. See L. 2004, c. 143; see also S. Judiciary Comm., Statement to Assemb. Bill No. 2073, at 1 (May 6, 2004) (stating that "to protect and assure against deprivation of the free exercise of civil rights which are guaranteed and secured under the New Jersey Constitution and federal Constitution, this bill provides a remedy when one person interferes with the civil rights of another . . . [and further] is intended to address potential gaps which may exist under [the New Jersey Law Against Discrimination (LAD) and bias crime statutory causes of action]").

 

[Id. at 611.]

 

Nothing in that discussion suggests that the Legislature had enforcement of the merit and fitness clause in mind when it adopted the CRA. The legislative history does not mention an intent to supplement the Civil Service Act, while it does specifically indicate an intent to supplement the LAD. And, in light of the highly specialized administrative scheme the Legislature created to enforce the merit and fitness clause, it seems unlikely that the Legislature intended to let grievants bypass that administrative process when their only claims are violations of the Civil Service Act and regulations. See Ferraro v. City of Long Branch, 314 N.J. Super. 268, 286 (App. Div. 1998) ("[W]e do not read the New Jersey statutes and rules which protect civil servants and classified public employees to suggest that their breach may give rise to a suit for money damages as opposed to administrative relief.").

However, we need not definitively decide the issue here because, even if we consider plaintiff's merit and fitness claim, along with his First Amendment claim, we agree that summary judgment was properly granted. The same evidence that defeats plaintiff's LAD claim also serves to defeat his claims that LaMonica's promotions were not based on merit, but instead were based on political considerations.

The only promotions that were within the two-year statute of limitations were the promotions to assistant supervisor and supervisor. See Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 17-18 (2002) (citing Montells v. Haynes, 133 N.J. 282, 292 (1993)). There was undisputed evidence that LaMonica did a good job as provisional assistant supervisor. Because LaMonica had successfully served in that position for almost a year, he was clearly more qualified than plaintiff was for the 2006 promotion to the permanent assistant supervisor position and the later promotion to the supervisor's job. Moreover, the record reflects that LaMonica was not singled out for promotion to supervisor. All three of the assistant supervisors were promoted to supervisor.3 This was done at Sandor's written request, based on his view that all three assistant supervisors were actually performing the work of supervisors.

Even if LaMonica supported the Mayor's election campaign years earlier, the record as a whole does not support a conclusion that LaMonica was promoted to the assistant supervisor and supervisor positions instead of plaintiff because of political considerations rather than merit. See Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1075 (3d Cir. 1990) (plaintiff must show that First Amendment-protected conduct was a substantial factor in the challenged employment decision).

E.

In Point VII, plaintiff contends that he presented adequate proof that his superiors harassed him, due to resentment over his need for accommodation due to his disability. The record does not support that contention. Rather, the record reflects that LaMonica and Sandor had legitimate concerns about whether plaintiff continued to need the accommodations he claimed. When they finally convinced plaintiff to go for a medical evaluation, the evaluators concluded that plaintiff no longer needed those accommodations.

Plaintiff's additional arguments were properly addressed by the trial judge and are without sufficient merit to warrant further discussion here. R. 2:11-3(e)(1)(E).

Affirmed.

 

1 The LAD uses the term "disability" rather than "handicap." See N.J.S.A. 10:5-5q; N.J.S.A. 10:5-12.

2 In fact, many of plaintiff's factual assertions are not supported by legally competent evidence. For example, an assertion in his statement of facts, that he had prior supervisory experience, is supported by a reference to a copy of his resume, a self-serving document that, in this context, constitutes hearsay and not legally competent evidence.

3 Plaintiff did not claim that the two other non-disabled employees who were made assistant supervisors (Selover and Chazar) were promoted for any illegitimate reasons. He conceded that they were good employees who deserved promotion. Nor does he question their promotion to supervisor.