HENRY H. THOMAS, JR v. PRINCETON UNIVERSITY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

HENRY H. THOMAS, JR.,

Plaintiff-Appellant,

v.

PRINCETON UNIVERSITY, ANNE

ST. MAURO, and MARK BURSTEIN,

Defendants-Respondents.

November 23, 2016

Argued January 25, 2016 - Decided

Before Judges Fasciale, Nugent and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2468-09.

William J. Koy argued the cause for appellant.

Thomas J. Barton argued the cause for respondents (Drinker Biddle & Reath L.L.P., attorneys; Mr. Barton and Maria L.H. Lewis, on the brief).

The opinion of the court was delivered by

NUGENT, J.A.D.

This employment action returns after remand. Plaintiff Henry Thomas appeals from the Law Division's September 5, 2014 order granting summary judgment to defendants Princeton University, Anne St. Mauro, and Mark Burstein; and dismissing his claim of age discrimination in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, as well as his common-law causes of action. Having considered defendant's arguments in light of the record, controlling legal principles, and our standard of review, we affirm.

I.

A.

This case has a lengthy procedural history. On September 25, 2009, plaintiff filed a nine-count complaint against defendants, Princeton University; Anne St. Mauro, Director of Design and Construction; and Mark Burstein, Executive Vice President. The complaint alleged causes of action for breach of contract, breach of the covenant of good faith and fair dealing, negligent misrepresentation, promissory estoppel and detrimental reliance, age discrimination, defamation, tortious inference with plaintiff's economic gain, retaliation, and intentional infliction of emotional distress. The trial court dismissed the breach of contract, good faith covenant, tortious interference, retaliation, and emotional distress claims on defendants' Rule 4:6-2(e) motion for failure to state a claim upon which relief could be granted. Following discovery, the trial court dismissed plaintiff's remaining claims on summary judgment.

Plaintiff appealed. We reversed the Rule 4:6-2(e) dismissal order as to four claims, concluding the trial court had "applied a more stringent standard than is required" by that rule, but we affirmed the dismissal of plaintiff's retaliation claim. Thomas v. Princeton Univ., No. A-0744-12 (App. Div. June 14, 2013) (slip op. at 6). We also reversed the order granting defendants' summary judgment motion as to the remaining counts, the trial court having "failed to make requisite findings of fact and conclusions of law[.]" Id. at 13.

On remand, the trial court permitted plaintiff to conduct additional discovery. Following completion of discovery, defendants filed a summary judgment motion. The trial court granted the motion, dismissing all plaintiff's causes of action. Defendant appealed from the September 5, 2014 implementing order.

B.

We derive the following facts from the evidence on the summary judgment motion record, viewed in the light most favorable to plaintiff, the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c). Plaintiff was employed by Princeton University from July 15, 2003 through October 28, 2009. Princeton hired plaintiff as a construction manager for the Lewis Library construction project ("the library project"). Although the position was a term position ending February 28, 2007, plaintiff told St. Mauro he was interested in a permanent position, especially because he would be moving from Maryland to New Jersey. According to plaintiff, St. Mauro told him there was a possibility of regular employment and she would keep his request in mind. Princeton extended his employment term three times due to his favorable performance reports and the need to complete the library project.

Plaintiff received good performance appraisals from 2004 through 2008. Plaintiff's 2004 staff performance appraisal stated he was "a conscientious project manager and is committed to solid achievement in leading the management of the [project], a very complex and challenging assignment." In 2005, plaintiff received a rating of "highly effective" in most categories. This appraisal stated plaintiff "continues to meet the challenges presented on the [project]. His resourcefulness and resilience to changes on the project are exemplary. [He] is an accomplished, highly effective senior project manager."

In 2006, plaintiff received another positive appraisal. His supervisor noted plaintiff "remained committed to solid achievement and excellence in the management of the . . . project." In addition to the positive evaluation, plaintiff received a 3.5% salary increase based on the recommendation of his supervisors and the University's Merit Increase Program Guidelines. In 2007, plaintiff's supervisor gave plaintiff a rating of "highly effective" in most categories and stated that he "continues to be a valuable member of our office." In 2008, plaintiff was rated "exceptional" and "highly effective." His supervisor wrote in the 2008 appraisal, dated March 5, 2009: "This past year, [plaintiff] has successfully completed the [project], one of the most technically complex and challenging construction projects in the University's history. Job well done!"

Plaintiff alleged his supervisors represented to him that he would remain employed at Princeton in some capacity. Plaintiff also alleged that between 2004 and 2007, Princeton's Department of Design and Construction was being re-organized and other program manager positions were being created. According to plaintiff, St. Mauro discouraged him from applying for these positions because he was too valuable to the present project; "'they [could] look at other possibilities in the future.'" According to plaintiff, in January 2007 he asked St. Mauro about future assignments and she responded, "yes, there are going to be future assignments but you have to get through this project, it's very important and we need you here."

In the spring of 2007, plaintiff met with Princeton's President to give her a tour of the library project. Plaintiff claims the president told him she realized he had been handling a lot, she appreciated what he was doing, and he should just get through the project and then he would move on to other projects. In 2008, according to plaintiff, St. Mauro told plaintiff there would be future projects for him, but he needed to stay on the current project to finish it. Additionally, in an August 28 meeting in St. Mauro's presence, St. Mauro's boss told plaintiff no one had any intention "to sideline" plaintiff and "we plan to have you continue and do other projects[.]"

The assurances of plaintiff's continued employment notwithstanding, Princeton terminated plaintiff's employment in October 2009. St. Mauro testified at her deposition that she made the decision to terminate plaintiff, not based on plaintiff's performance or skills, but because of budgetary cutbacks and fewer available projects. She explained that in order to have funding available to pay people, her department needed projects. "If we don't have projects, I don't have revenue to pay people. So the reason we went to the term basis of hiring was to ensure that we kept a balance on the revenue to pay people and that we had our books balanced." St. Mauro also explained that it was not Princeton's intention to terminate an employee at the end of his or her term. She recalled during her deposition that three term employees had left because their term expired: plaintiff and another man, who were both over fifty, and a person she believed was "maybe [thirty-five]."

St. Mauro testified the decision to terminate plaintiff was made in late January or early in 2009. She made the decision. She explained why

I had come out of a process of capital plan downsizing where we went from 3.1 billion dollars of work planned to 2.1 billion worth of work that would be ongoing. And a number of the projects that were in the midst of being designed, or hadn't been designed yet were either scrapped, or pushed out three or four years, in some cases five years as we can't afford to do them right now. We're going to stretch them out and push them to the end of the capital plan. So I sort of had a hole in the middle of my work plan. And I said I had about a two or three-year gap here where nothing is happening and I need to redo staff.

In a certification she submitted in support of defendant's summary judgment motion, St. Mauro added that the only way to retain plaintiff and two others "was to end, prematurely, the term of one or more of the other [nineteen] Project Managers or Construction Managers[, which would] upset the consistency of one or more of the other on-going construction or renovation projects at Princeton. . . ." When asked at her deposition who replaced plaintiff, St. Mauro, responded, "[n]obody." She claimed he was never replaced. The projects had simply ended, plaintiff's job duties were no longer necessary, and now she and two other Princeton employees spent "a couple hours a month dealing with [library project] issues."

In contrast, plaintiff testified at his deposition that St. Mauro expressed on numerous occasions that she was hoping older people would retire so she could hire younger people.1 According to plaintiff, St. Mauro referred to another employee she wanted to leave as "one of those old guys."

Based on information he obtained in discovery, plaintiff further alleged from 2002 through 2011 "there have been approximately seventy-seven . . . 'term' appointments or extensions up to October 28, 2009" and only "three [employees] have been terminated due to 'end of term'"; him, age sixty, and two other men, ages sixty-four and sixty-one. He further alleged that since the termination of his employment in October 2009, no one has been terminated due to the end of their employment term; yet, there have been twenty-one extensions, one promotion of a thirty-eight-year-old, one new "hire" as "term" employment to project manager, and two changes to "regular" status in lieu of extension.

Plaintiff also contends of twenty-one similarly situated employees, only the two oldest he and another employee were not renewed or replaced elsewhere. In contrast, younger people were either hired as field managers or engineers within the Department of Design and Construction. Plaintiff claims the positions of field and project managers are similarly situated.

Based on the foregoing evidence, the trial court granted summary judgment to defendants and dismissed plaintiff's complaint. In dismissing plaintiff's LAD age discrimination claim, the court found nothing "in the record to refute . . . defendant['s] business reasons for not renewing the contract in October [2009]"; namely, plaintiff's employment was based on budget cutbacks and fewer construction projects. Specifically, the court found nothing in the record to support plaintiff's assertions during oral argument that other projects were available. Nor did the court find anything in the record to refute the certifications of Princeton employees that there were fewer projects and budget cutbacks at the time Princeton terminated plaintiff's employment. To the contrary, the documents and certifications "unassailably establish[ed] that there were budget cutbacks and fewer projects in October 2009."

In dismissing plaintiff's negligent misrepresentation and promissory estoppel claims the court determined a reasonable factfinder, resolving all inferences favorable to plaintiff, could not conclude plaintiff reasonably relied upon defendant's statements concerning his future employment, particularly in light of his status as a term employee.

On appeal, plaintiff argues the trial court erred in dismissing the LAD age discrimination, promissory estoppel, and negligent misrepresentation claims.

II.

We "review[] an order granting summary judgment in accordance with the same standard as the motion judge." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014); Townsend v. Pierre, 221 N.J. 36, 59 (2015). We "must review the competent evidential materials submitted by the parties to identify whether there are genuine issues of material fact and, if not, whether the moving party is entitled to summary judgment as a matter of law." Bhagat, supra, 217 N.J. at 38; see Brill, supra, 142 N.J. at 540; R. 4:46-2(c). Once we agree no genuinely disputed fact exists, we "then decide whether the trial court's ruling on the law was correct." W.J.A. v. D.A., 210 N.J. 229, 238 (2012) (quoting Henry v. N.J. Dept. of Human Servs., 204 N.J. 320, 330 (2010)).

New Jersey courts considering summary judgment motions in LAD age discrimination cases follow the burden-shifting test developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668, 677-78 (1973). See Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005). To establish a prima facie case of age discrimination in a case involving termination of employment, a plaintiff must prove four elements, the first three of which are: (1) membership in a protected class; (2) actual performance prior to termination; and (3) termination from employment. Id. at 450. To establish the fourth element, a plaintiff must prove his or her age "in any significant way, 'made a difference' in the treatment he was accorded by his employer." Young v. Hobart W. Grp., 385 N.J. Super. 448, 459 (App. Div. 2005) (quoting Petrusky v. Maxfli Dunlop Sports Corp., 342 N.J. Super. 77, 82 (App. Div.), certif. denied, 170 N.J. 388 (2001)). "Under this approach, a showing that a plaintiff was replaced by an individual outside the protected class could support an inference of unlawful discrimination." Williams v. Pemberton Twp. Pub. Schs., 323 N.J. Super. 490, 503 (App. Div. 1999). Additionally, "a plaintiff who was replaced by an individual within the protected class but could show other circumstances indicating unlawful discrimination would not be unfairly precluded from presenting a case." Ibid.

If an employee establishes a prima facie case, the burden of production shifts to the employer to rebut the presumption of discrimination by articulating a legitimate, nondiscriminatory reason for the challenged employment action. Zive, supra, 182 N.J. at 449. Once the employer has done so, "the burden of production shifts back to the employee to prove 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." Ibid. (citing Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 596 (1988)).

"In the context of summary judgment, to sufficiently discredit the employer's reason, and thus to survive summary judgment, the plaintiff 'must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in' the proffered reason that a factfinder could reasonably find it incredible." Schiavo v. Marina Dist. Dev. Co., LLC, 442 N.J. Super. 346, 368-69 (App. Div. 2015) (citing Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994)), certif. denied, 224 N.J. 124 (2016); see also Zive, supra, 182 N.J. at 455-56 (quoting Fuentes, supra, 32 F. 3d at 764) ("plaintiff does not qualify for a jury trial unless he or she can 'point to some evidence, direct or circumstantial, from which a factfinder 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.'"). "Although the burden of production shifts throughout the process, the employee at all phases retains the burden of proof that the adverse employment action was caused by purposeful or intentional discrimination." Bergen Commercial Bank v. Sisler, 157 N.J. 188, 211 (1999) (citation omitted).

Plaintiff and defendants dispute whether plaintiff established a prima facie case of discrimination. We conclude he did.

Defendants apparently do not dispute plaintiff satisfied the first three elements of a prima facie case; rather, they argue he did not prove the fourth element. Defendants contend plaintiff is unable to refute St. Mauro's certification "that there were no available or appropriate projects to which [plaintiff] could transition after the [library project] in October 2009." We disagree with defendants' implicit assertion that St. Mauro's statement of a legitimate, non-discriminatory reason is a proper consideration when evaluating whether plaintiff has proved a prima facie case. In our view, such an argument overlooks the analytical distinction in two components of the McDonnell Douglas construct: a plaintiff's burden of demonstrating a prima facie case and a plaintiff's burden of demonstrating an employer's articulated, non-discriminatory reason for terminating plaintiff is pretextual.

"Procedurally, courts have recognized 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 (citations omitted). Moreover, "[t]he evidentiary burden at the prima facie stage is 'rather modest: it is to demonstrate to the court that plaintiff's factual scenario is compatible with discriminatory intent i.e., that discrimination could be a reason for the employer's action.'" Id. at 447 (emphasis in original) (quoting Marzano v. Computer Sci. Corp., 91 F.3d 497, 508 (3d Cir. 1996)).

Considering this precedent, we reject defendants' implicit argument here that in establishing a prima facie case, plaintiff was required to address or refute defendants' articulated reason for terminating his employment. Plaintiff established a prima facie case of age discrimination. He belonged to a protected class, he was performing in the position from which he was terminated, and he was terminated.

To show he could have been terminated because of unlawful discrimination, plaintiff averred that on numerous occasions St. Mauro had expressed her hope that older people would retire so that she could hire younger people. According to plaintiff, St. Mauro referred to older workers as "old guys." Plaintiff also offered statistical data purporting to demonstrate that from July 2002 through September 2007 only three "term" employees were actually terminated because their employment "term" had expired, and those three were sixty years old or older. These proofs established that discrimination could have been a reason for defendants' action.

Defendants articulated a legitimate, non-discriminatory reason for their action - the library project was sufficiently complete that it no longer required anyone to perform plaintiff's job functions. Plaintiff contends St. Mauro's comments concerning older workers as well as the statistical data he developed during discovery satisfied his burden of demonstrating a factual issue as to whether defendants' articulated reason for his termination was merely a pretext for discrimination. We disagree.

To be sure, remarks such as those attributable by plaintiff to St. Mauro are relevant considerations. Although "comments by individuals outside the decision making process are considered stray remarks, which on their own are inadequate to support an inference of discrimination[,] . . . [t]here are occasions . . . when such remarks are considered 'relevant as probative of informal managerial attitudes[.]'" Grasso v. W. New York Bd. of Educ., 364 N.J. Super. 109, 118 (App. Div. 2003) (quoting Ryder v. Westinghouse Elec. Corp., 128 F.3d 128, 133 (3d Cir. 1997), cert. denied, 522 U.S. 1116, 118 S. Ct. 1052, 140 L. Ed. 2d 115 (1998)), certif. denied, 179 N.J. 312 (2004). Significantly, "discriminatory comments made by one with input into the decision-making process are not stray remarks." Ibid. In the case before us, St. Mauro was the decision-maker. Accordingly, her alleged remarks are evidence of pretext. Nonetheless, in view of the discrete reason given by St. Mauro for not extending plaintiff's term, the probative value of her remarks is insufficient to submit the issue of pretext to a jury.

Indisputably, plaintiff was hired in a managerial role for a specific project, namely, the library project. According to St. Mauro, the library project had been substantially completed by the time St. Mauro had to once again either extend plaintiff's employment term, or not extend it. Plaintiff has not produced evidence that the library project continued to require a manager with his skill set. Thus, we must evaluate St. Mauro's explanation that to assign plaintiff to another project would have required her to lay off someone working on such other project. Plaintiff's proofs fail to establish that St. Mauro's explanation was pretextual.

The difficulty with plaintiff's statistical analysis is that the number of projects the University was developing and the budget for those projects did not remain static from 2002 through October 2009. Plaintiff has offered no evidence to refute St. Mauro's testimony concerning the decrease in the budget. Plaintiff asserts he "was not considered while other individuals were being given extensions and other jobs[,]" but his citation to the record, namely, to an eight-page spreadsheet, does not on its face support that assertion. Moreover, there is nothing in the spreadsheet or the seven years of statistical data that suggests another employee, whose function on a specific project had ended, had his or her employment term extended or was transferred to another project; at least not within a reasonable period before or after plaintiff's employment term was not renewed.

Lastly, plaintiff has offered no evidence to refute St. Mauro's testimony that in order to laterally transfer plaintiff, she would have been required to terminate the employment of someone else. Plaintiff has not produced evidence of any instance of such a lateral transfer occurring.

In short, defendants' articulated, non-discriminatory reasons for not renewing plaintiff's employment term were discreet: plaintiff's services on the library project, for which he was hired, were no longer needed; the University's other construction projects in October 2009 were fully staffed; and there was no work for plaintiff. St. Mauro's alleged remarks concerning age refuted none of those assertions, nor did the statistical data in the spreadsheet plaintiff relied upon. Accordingly, we affirm the grant of summary judgment on the LAD claim.

III.

Plaintiff next argues the trial judge erred in dismissing his negligent misrepresentation and estoppel claims. We affirm the summary judgment as to those two claims substantially for the reasons explained by the trial court in its September 5, 2014 oral decision. Plaintiff's arguments concerning negligent misrepresentation and estoppel are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Plaintiff has not briefed the trial court's summary judgment dismissal on any other causes of action. Consequently, any arguments or issues concerning other claims have been abandoned. Grubb v. Bor. of Hightstown, 353 N.J. Super. 333, 342 n.1 (App. Div. 2002).

Affirmed.

1 Defendants denied this allegation.