STANLEY MOLNAR v. STATE OF NEW JERSEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3278-10T3

STANLEY MOLNAR,

Plaintiff-Appellant,

v.

STATE OF NEW JERSEY, DIVISION OF

STATE POLICE, Superintendent, New

Jersey State Police DANIEL PILLA,

JOHN REPSHA, and JAMES CAMPBELL,

Defendants-Respondents,

 

and

NICHOLAS OLENICK, NICHOLAS

THEODOS, and MATTHEW HARTIGAN,

Defendants.

__________________________________________

March 1, 2013

 

Argued May 30, 2012 - Decided

 

Before Judges Baxter, Nugent and Carchman.

 

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1479-03.

 

Daniel Louis Grossman argued the cause for appellant.

 

Vincent J. Rizzo, Jr., Deputy Attorney General, argued the cause for respondents (Jeffrey S. Chiesa, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Rizzo, on the brief).

PER CURIAM

Plaintiff Stanley Molnar appeals from the summary judgment dismissing his complaint against the State of New Jersey, Division of State Police (NJSP), and his former superiors, Daniel Pilla, John Repsha, and James Campbell. In the complaint, plaintiff accused defendants of causing his constructive discharge from his employment as a New Jersey State Trooper in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, and the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -4a. The trial court dismissed the complaint on summary judgment after concluding plaintiff had not established a prima facie CEPA, LAD, or constructive discharge action. Having considered the record in light of plaintiff's arguments, we affirm.

I.

We derive the facts from the summary judgment record. The events relevant to this appeal began on February 28, 2002, when plaintiff was transferred from the Missing Persons Unit to the Auto Unit-Department of Motor Vehicles (DMV) Contingent.1 When transferred into the Auto Unit, plaintiff held the rank of Detective Sergeant First Class, having been promoted to that position on October 6, 2001.2 As the Auto Unit's Detective Sergeant First Class, plaintiff supervised other members of the unit, including Kenneth Johnson, an African-American, from March 2002 through May 2003. Plaintiff and Johnson "clicked." Plaintiff claims his superiors retaliated against him by failing to promote him to the rank of lieutenant after he supported Johnson's promotion and advancement in the NJSP.

Plaintiff expressed his support for Johnson in a memorandum, through his written evaluations of Johnson's performance, and by having Johnson assist him and accompany him to various meetings. On July 15, 2002, five months after his transfer to the Auto Unit, plaintiff sent a memorandum about Johnson to the Auto Unit's supervisor, Lieutenant Daniel Pilla. In his memorandum, plaintiff explained that as the supervisor of the Auto Unit's DMV Contingent, he felt the need to express his "concerns regarding the lack of promotion for [Johnson]." Plaintiff recounted Johnson's abilities and accomplishments, recommended him for a promotion, and explained that Johnson had personally assisted him:

I must also add that Detective Johnson also acts as my assistant in my absence fulfilling administrative assignments as well as the numerous interactions with [DMV] personnel. It is essential that he fulfills this duty also, due to his experience in the squad he is able to provide an intelligent and appropriate answer when queried by DMV officials.

 

Nowhere in the memorandum did plaintiff refer to Johnson's race, or suggest that Johnson had not been promoted due to his race; nor did the memorandum refer to Johnson's earlier guilty plea, to violating NJSP rules and regulations.

Three months later, on October 28, 2002, Pilla prepared a written performance evaluation of plaintiff for the period from April through October 2002. In the evaluation, Pilla rated plaintiff "exceptional" in job performance, initiative, judgment/decision making, interpersonal relationships, communications, readiness for duty, effectiveness under stress, leadership, and compliance with rules. In the sole remaining category, "job proficiency," Pilla rated plaintiff's performance as "above average," the second highest possible rating. Pilla testified at his deposition that the rating was "probably the highest [evaluation he had] ever given."

Sometime later, after Pilla had evaluated plaintiff, plaintiff evaluated Johnson's performance.3 Plaintiff rated Johnson "exceptional" in all categories. Pilla thought the evaluation should have included a reference to Johnson's suspension for breaking rules. Additionally, plaintiff had rated Detective-Sergeant Anthony Martin "above average" in the compliance-with-rules category, yet the detective had never been disciplined. Pilla notified Johnson and appended an addendum4 to plaintiff's evaluation of Johnson. The addendum noted that Johnson had pled guilty to a violation of NJSP rules and regulations for which he served a suspension from September 2 through September 6, 2002.

According to plaintiff, Pilla was not the only one that questioned his evaluation of Johnson. Captain John Repsha, Bureau Chief, and Lieutenant Nicholas Theodos, Section Commander, told him the evaluations should reflect that Johnson and Martin "are more closely matched as detectives." Plaintiff refused to change Johnson's evaluation; but admitted he was never told to rate Johnson "poorly," and that he was told to rate his subordinates "fairly."

Pilla not only questioned plaintiff's written evaluations of Johnson, but also thought plaintiff was showing favoritism towards Johnson by taking Johnson to numerous meetings. Plaintiff claims he took "a lot of detectives to the different meetings." He believed it was Repsha who thought he was not being "even-handed" in his behavior.

Pilla also took issue with plaintiff referring to Johnson as his "assistant," a term associated with a formal title. Pilla explained that "if you start giving somebody the impression that they're the assistant, then they start getting the impression that they're deserving of some promotion or they're next in line for some promotion." For that reason, Pilla told plaintiff to "cease and desist doing that especially on evaluations." According to Pilla, approximately one month later, plaintiff prepared a quarterly evaluation of Johnson and referred to Johnson as his trusted assistant. Although plaintiff denied this allegation, he referred to Johnson as "undoubtedly a loyal and trusted assistant" in his February 4, 2004 evaluation of Johnson.

In October 2002, plaintiff attended a meeting with representatives of the State Office of Counterterrorism. He did not tell Pilla about the meeting. The day after the meeting, Pilla sent a memo to plaintiff requesting information about the meeting. The memo stated that Pilla should be informed of such meetings so he could decide whether to attend, and that he should not have to hear about such meetings after they occurred. The memo also stated that when unit members attend meetings without first notifying Pilla, the members circumvent his authority. Plaintiff responded that the Assistant Director of Counterterrorism, Deborah Stone, a personal friend, had scheduled an impromptu meeting to introduce plaintiff to the Director. Plaintiff and Johnson met the Director and briefly explained their job functions to him.

Plaintiff disregarded Pilla's memo and the chain of command on at least two other occasions while he was in the Auto Unit. Repsha became aware that plaintiff had attended several meetings with DMV Director Diane Legreide, to whom plaintiff had expressed his understanding that he would be the next Lieutenant of the Auto Unit, and Johnson would be his assistant. Repsha told plaintiff to keep his superiors in the loop, and that plaintiff should not be meeting with the director of another agency when no one in the NJSP was aware of the meeting. According to plaintiff, at some point he was told he could no longer meet with the DMV Director.

Plaintiff also prepared a memo on June 30, 2003, addressed to the Director of the Office of Counterterrorism, in which he proposed reorganizing the Auto Unit-DMV Contingent. Plaintiff claimed he never sent the memo. When Pilla found the memo, he was upset. The memo included a table of organization for a new unit. Pilla testified at his deposition it was

incredible that [plaintiff] would put this together and not let me know what he was doing or what negotiations he was in . . . or even that he was thinking these kinds of ideas. . . . As a unit supervisor my responsibility is for the future of the Auto Unit and the direction it takes. . . . [H]ad he brought this to my attention, I would have run it up the chain of command and discussed it with the people that it needed to be discussed with.

 

Pilla also believed that if his superiors found the memo, he would have been "on the chopping block as to why [he] didn't know about [the memo] and [he] would have been held accountable for what [plaintiff] did here."

Pilla retired on March 12, 2003, thirteen months after plaintiff's transfer to the Auto Unit. Matthew Hartigan replaced Pilla. This upset plaintiff, who thought he was logically the next person in line to succeed Pilla. He admitted, however, that despite feeling that he was "heir apparent to that position," no one told him he was the next heir.

The next month, in April 2003, Repsha brought Hartigan to the Auto Unit's DMV Contingent to introduce him. Plaintiff attended. During the meeting, several troopers began to complain about the NJSP promotion system and how they were treated, and also questioned why other troopers had been promoted. Repsha terminated the meeting because, in his judgment, it was inappropriate to have a general gripe session where those present talked about troopers who were not present. He, Hartigan, and plaintiff walked into the hallway where Repsha admonished plaintiff and expressed his disappointment that plaintiff would facilitate such a discussion by "stand[ing] there with his arms folded[,] nodding in agreement." Repsha felt that he and Hartigan had been "put on the spot." Hartigan agreed. Plaintiff disagreed, expressing both astonishment and his opinion that he did not think it was a bad meeting.

A month later, in May 2003, plaintiff commenced the subject lawsuit. In June 2003, Hartigan transferred plaintiff to the Auto Unit's Edgewater Park office, which added an extra thirty minutes to plaintiff's commuting time. According to plaintiff, Hartigan transferred him to Edgewater Park so that Hartigan could take plaintiff's office at the DMV and be closer to home.

Plaintiff's performance in the Auto Unit was last evaluated by Hartigan in February 2004, for the period between April 5 and September 15, 2003. Hartigan rated plaintiff as exceptional in one category and above average in six other categories. Hartigan rated plaintiff's performance as "satisfactory" in four categories. In late September 2003, plaintiff was ranked twenty-fourth for ten vacancies for personnel holding the rank of lieutenant.

After his transfer to Edgewater Park in June, plaintiff went out on sick leave to undergo and recuperate from shoulder surgery. When he returned in September, he requested a transfer out of the Auto Unit investigation section. He thought the Internal Affairs Staff Inspection (IA) Unit "seemed to be like a nice choice," so he was transferred to that unit. In IA, plaintiff was no longer under the command of Hartigan, Repsha, or their supervisors. He was subsequently transferred to Applicant Investigations and retired out of that unit.

Plaintiff was very satisfied during the time he worked in IA. He also spoke highly of his supervisor in Applicants Investigation, but complained that he had nothing to do. He "was actually told that [his] work station was in the basement where [he] sat in an empty desk with no phone and had no work. [He] was told to sit there and at 5:00 o'clock [he] was allowed to leave."

Plaintiff felt that his supervisors had undermined his performance. In October 2003, he was interviewed as part of an NJSP equal employment opportunity (EEO) investigation. During the interview, he related that Pilla, Repsha, and Theodos had told him not to rate Johnson higher than Martin when plaintiff worked in the Auto Unit. After the interview, plaintiff began tape recording his conversations with supervisors. According to plaintiff, when the supervisors learned that he had been tape recording them, they became vicious and began to find fault with everything he and Johnson did.

On February 24, 2004, plaintiff retired, effective July 1, 2004. He stated in his resignation letter:

The undersigned respectfully requests to retire from the [NJSP] effective July 1, 2004. After twenty five years of service I am being forced to tender my retirement due to the treatment I have endured from my chain of command. This treatment has caused tremendous stress to myself and my wife and has impacted [] my health. I have so much to offer this organization, but unfortunately have been relegated to menial tasks which do little to advance my career or complete the necessary work of this organization.

 

As previously noted, defendant commenced his action in May 2003 against the NJSP and six of its employees who had supervised him.5 After the defendants removed the case to the United States District Court for the District of New Jersey, plaintiff filed a first amended complaint in which he deleted any federal causes of action. Consequently, on September 15, 2003, the federal court remanded the action to the Superior Court of New Jersey, Mercer County. There, on July 8, 2005, the court dismissed as time-barred plaintiff's claims that he had been denied timely promotion on three occasions between 1990 and 1996.

Eight months later, on March 28, 2006, plaintiff filed a second amended complaint in which he added a count for constructive discharge. Following the close of discovery, the remaining defendants moved for summary judgment. During oral argument, Molnar conceded that his LAD hostile work environment claim was barred by the statute of limitations. Three claims remained: he had been denied a promotion to lieutenant in the Auto Unit because he had supported Johnson; he had been constructively discharged; and defendants had violated his contract. The trial court granted defendants' summary judgment motion.

The trial court dismissed plaintiff's claim for contractual interference because he had not filed a claim against NJSP, a public entity, within one year of the accrual of his cause of action as required by the New Jersey Contractual Liability Act, N.J.S.A. 59:13-1 to -10; and because plaintiff had not specified in his pleadings the basis for this claim.

The court next noted "[t]he [plaintiff] has conceded that he really doesn't have a hostile work environment claim, he's really talking about retaliation." For that reason, the court granted defendants' summary judgment motion as to plaintiff's constructive discharge claim.

Because plaintiff's CEPA and LAD claims were based upon the same set of operative facts, the court analyzed plaintiff's retaliation claim under CEPA. The court noted that during the time plaintiff was eligible for a promotion -- October 2002 through June 2003 -- only one opportunity for promotion occurred. Plaintiff was not the only candidate eligible for the promotion. He was, however, in the bottom third of the ranking system. And though plaintiff claimed he would have received the promotion had he not "champion[ed]" Johnson for a promotion, the letter touting Johnson's performance made no reference to Johnson's race. Further, the court reasoned that Johnson's suspension, and plaintiff's overlooking Johnson's suspension, were factors that had to be considered in determining whether plaintiff had established a retaliation claim. Lastly, the court reasoned that plaintiff's going outside the command structure when meeting with the DMV, and continuing reference to Johnson as his "assistant," were legitimate reasons to question his judgment and leadership.

The trial court concluded plaintiff's retaliation accusations were based on nothing more than plaintiff's surmise and subjective beliefs. For those reasons, the trial court granted defendants' motion. This appeal followed.

II.

Plaintiff raises three points for our consideration:

POINT I

 

THE TRIAL COURT ERRED IN FINDING THAT PLAINTIFF WAS NOT ENTITLED TO GO TO A JURY ON THE RETALIATORY ACTION ALLEGED UNDER THE LAW AGAINST DISCRIMINATION FOR FAILING TO PROMOTE PLAINTIFF IN 2003.

 

 

 

POINT II

 

PLAINTIFF WAS CONSTRUCTIVELY DISCHARGED.

 

POINT III

 

PLAINTIFF STATED A CEPA CLAIM BUT NEED NOT MAKE AN ELECTION OF REMEDIES AT THIS STAGE.

 

A trial court must grant a summary judgment motion 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(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529-30 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c). If the evidence submitted on the motion "'is so one-sided that one party must prevail as a matter of law,' the trial court should not hesitate to grant summary judgment." Brill, supra, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

When a party appeals from a trial court order granting or denying a summary judgment motion, we "'employ the same standard [of review] that governs the trial court.'" Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010) (quoting Busciglio v. DellaFave, 366 N.J. Super. 135, 139 (App. Div. 2004)). Thus, we must determine whether there was a genuine issue of material fact, and if not, whether the trial court's ruling on the law was correct. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We review legal conclusions de novo. Henry, supra, 204 N.J. at 330.

Plaintiff first argues that he established a prima facie case of retaliation under LAD. The trial court decided the summary judgment motion based on its analysis of CEPA, not LAD. Nevertheless, its determination that plaintiff failed to produce evidence from which a jury could infer plaintiff was not promoted because he assisted Johnson, is dispositive of plaintiff's LAD claim. For that reason, we address plaintiff's LAD claim.

The LAD provides that it shall be an unlawful employment practice, or an unlawful discrimination,

[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. 10:5-12(d).]

 

When considering a party's appeal from the grant or denial of summary judgment in a LAD action, we typically analyze the case under the construct developed by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668, 677 (1973).

That framework requires the plaintiff to demonstrate a prima facie case of discrimination, following which the burden shifts to the defendant to demonstrate a legitimate business reason for the employment decision. If the employer does so, the burden shifts again and the plaintiff is required to demonstrate that the reason proffered is a mere pretext for discrimination.

 

[Victor v. State, 203 N.J 383, 408 n.9 (2010).]

 

To establish the prima facie elements of a LAD retaliation claim, a plaintiff must demonstrate: "1) he was engaged in a protected activity known to the defendant; 2) he was thereafter subjected to an adverse employment decision by the defendant; and 3) there was a causal link between the two." Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 548-49 (App. Div. 1995). Protected activities include "oppos[ing] any practices or acts forbidden under [the LAD;] . . . fil[ing] a complaint, testif[ying] or assist[ing] in any [LAD] proceeding[;] . . . [and] aid[ing] or encourag[ing] any other person in the exercise or enjoyment of[] any right granted or protected by [the LAD]." N.J.S.A. 10:5-12(d).

Plaintiff asserts that he was subject to two retaliatory actions: he was not promoted to lieutenant when Pilla retired from the Auto Unit; and he was placed in a "dead-end" job when he was transferred from IA to Applicant Investigations. Plaintiff did not oppose any practices or acts forbidden under LAD before Hartigan was promoted to the rank of Lieutenant. In his July 2002 memorandum to Pilla, plaintiff never mentioned Johnson's race or suggested that Johnson's advancement in the NJSP was being impeded because he was African-American. Nothing in plaintiff's evaluations of Johnson's performance could have reasonably been construed as an objection to a prohibited practice. And plaintiff's reliance upon Johnson as a valuable assistant, in the Auto Unit and during meetings with personnel of other agencies, was certainly not an objection or protest.

Plaintiff assisted in a LAD proceeding when he gave a statement in October 2003 during an EEO investigation. His participation in that investigation could not have resulted in the promotion of Hartigan, instead of him, because plaintiff did not give his statement during the EEO investigation until six months after Hartigan was promoted.

Plaintiff did promote and encourage Johnson's promotion and advancement in the NJSP. But in his opposition to defendant's summary judgment motion, plaintiff failed to establish a triable issue concerning the causal connection between his support for Johnson and Hartigan's promotion upon Pilla's retirement from the Auto Unit. Plaintiff thus failed to establish a prima facie case of retaliation under LAD.

Hartigan was promoted to lieutenant over plaintiff in March 2003. Major Kenneth Hess made that decision. When deposed in 2010, Hess had no recollection about his decision. He did remember plaintiff, however. He recalled that plaintiff was a competent trooper, but "instead of doing what he was supposed to be doing and doing it well, he would tend to always have a negative spin on someone else." Hess explained that when moved to one position, plaintiff thought he should be in another position. "It was always, this guy got this job." Hess thought that if plaintiff had "put all his energy into his work instead of his constant spin on things, that he would have been fine."

In making his decision, Hess considered that his captains had ranked plaintiff in the lowest of the three tiers of rankings of numerous candidates for a promotion to lieutenant. Repsha testified that he ranked plaintiff in the third tier because he did not think plaintiff was a good leader or motivator. Captain James Campbell, who also ranked plaintiff, did not think that plaintiff was ready to lead a unit. Campbell did not think plaintiff's paperwork was up to par, plaintiff did not support his unit supervisor, and plaintiff tended to create dissension in his units. Significantly, the four captains' rankings of the top candidate were consistent. Campbell did not even rank Hartigan. Plaintiff produced no evidence concerning the qualification of those troopers ranked ahead of him. In short, plaintiff's accusation that he was denied a promotion because he promoted Johnson's advancement is based on nothing more than sheer speculation.

Even if plaintiff established a prima facie case of retaliation, he produced no evidence to refute defendants' non-discriminatory explanation for why plaintiff was not promoted. The events that occurred after plaintiff wrote his memorandum to Pilla extolling Johnson's performance are significant. First, Pilla gave plaintiff the highest performance rating Pilla had ever given anyone. Next, plaintiff ignored the chain of command by attending meetings without informing Pilla. And by the time Pilla retired, plaintiff had prepared a document recommending restructuring of the Auto Unit without so much as mentioning the document to any of his superiors. Those undisputed facts demonstrate that defendants acted for non-discriminatory reasons when they ranked Hartigan higher than plaintiff and promoted Hartigan. Nothing in the record suggests that those reasons are pretextual.

III.

Plaintiff next claims that he was constructively discharged. The Supreme Court has explained the concept of constructive discharge in the context of the LAD:

[C]onstructive discharge requires not merely severe or pervasive conduct, but conduct that is so intolerable that a reasonable person would be forced to resign rather than continue to endure it . . . . More precisely, the standard envisions a sense of outrageous, coercive and unconscionable requirements.

 
[Shepherd v. Hunterdon Dev. Ctr., 174 N.J 1, 28 (2002) (internal quotation marks and citations omitted).]

 

The same analytical framework applies to a CEPA claim, because CEPA is an anti-discrimination statute. Zubrycky v. ASA Apple, Inc., 381 N.J. Super. 162, 166 (App. Div. 2005).

Plaintiff argues that two things occurred "that signaled the end of [his] career." First, he was passed over for lieutenant. Second, after his transfer to IA, he was detached to Applicant Investigations. Plaintiff claimed that everyone in NJSP knew that a trooper who was detached is "lost in space, . . . not going to get promoted[.]" Defendant asserts that "[l]ack of promotion led to forced retirement." Plaintiff concedes, however, that two troopers were promoted from the Applicant Investigations Unit.

Plaintiff's argument warrants little discussion. He has not identified, or even alleged, "conduct that is so intolerable that a reasonable person would be forced to resign rather than continue to endure it." Shepherd, supra, 174 N.J. at 28. The trial court correctly rejected his constructive discharge claim.

IV.

Finally, "plaintiff submits his memorandum of support concerning Johnson and the contents of his grievance satisfy the statutory requirements of objecting to institutional racist behavior." Plaintiff's reference to "the contents of his grievance" is unclear. It apparently refers to the content of the memorandum of support he wrote about Johnson.

CEPA prohibits an employer from taking

any retaliatory action against an employee because the employee does any of the following:

 

a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer . . . that the employee reasonably believes: (1) is in violation of a law, or a rule or regulation promulgated pursuant to law . . . (2) is fraudulent or criminal . . . .

 

. . . .

 

c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes: (1) is in violation of a law, or a rule or regulation promulgated pursuant to law; (2) is fraudulent or criminal . . .; or (3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.

 

[N.J.S.A. 34:19-3.]

 

Contrary to plaintiff's assertion, nothing in his memorandum extolling Johnson's performance suggested that he was objecting to institutional racist behavior. As we have previously explained, the memorandum never mentioned Johnson's race. The language in the memorandum was generally laudatory. Read objectively, the memorandum appeared to be a recommendation for Johnson's promotion, not an objection "to institutional racist behavior."

Defendant also argues he should not have been required to elect between his CEPA and LAD causes of action "either before the jury gets the case or by the [c]ourt thereafter." CEPA provides "that the institution of an action in accordance with this act shall be deemed a waiver of the rights and remedies available under any other . . . State law, rule or regulation or under the common law." N.J.S.A. 34:19-8. In view of our conclusion that plaintiff failed to establish a triable issue as to retaliation under LAD, we need not address his argument concerning the timing of his election of remedies under CEPA.

A

ffirmed.

1 The trial court dismissed as time-barred plaintiff's allegations of discrimination based on events that occurred more than two years before he filed his May 30, 2003 complaint. Plaintiff has not appealed from that decision. Nevertheless, plaintiff urges that the events that occurred on and after February 28, 2002, must be considered in light of NJSP being "under the constraints of a federal consent order on racial profiling." Plaintiff has not made the order part of the record before us.

2 The State represented at oral argument and repeats in its brief, that NJSP rules required troopers to remain in a specific rank for one year before becoming eligible for another promotion. Although plaintiff has not disputed that assertion, the State has not supported it with competent evidence. See R. 1:6-6 (requiring a party to a motion to establish facts not appearing of record by affidavits made on personal knowledge); see also Pressler & Verniero, Current N.J. Court Rules, comment on R. 1:6-6 (2013) (explaining that affidavits by attorneys asserting facts related to them by their clients constitute objectionable hearsay).

3 The record as to when plaintiff evaluated Johnson is confusing. The only written evaluation of Johnson by plaintiff is dated February 4, 2004, and purports to evaluate Johnson for the period of November 1, 2002 through June 1, 2003. Pilla recalled during his deposition that plaintiff evaluated Johnson three or four weeks after Johnson's suspension in September 2002. Plaintiff testified during his deposition that he rated Johnson in October 2002. When plaintiff opposed the summary judgment motion, he represented in his "Counterstatement of Undisputed Material Facts" that he had evaluated Johnson in November 2002.

4 The addendum is described as: "Supplemental Report to [] 2002 Periodic Evaluation[,] Section II Compliance with Rules[.]" The date in the addendum reflects the calendar year 2002, but the month is not reflected in the copy provided by the parties in the record before us. Plaintiff testified during his deposition that he rated Johnson in October 2002. When plaintiff opposed the summary judgment motion, he represented in his "Counterstatement of Undisputed Material Facts" that he had evaluated Johnson in November 2002.

5 Plaintiff voluntarily dismissed the complaint against Nicholas Olenick, Nicholas Theodos, and Matthew Hartigan.