KETAN PATEL v. TIFFANY & CO. and DIVISION ON CIVIL RIGHTS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0926-08T30926-08T3

KETAN PATEL,

Plaintiff-Appellant,

v.

TIFFANY & CO. and

DIVISION ON CIVIL RIGHTS,

Defendants-Respondents.

___________________________

 

Submitted January 26, 2010 - Decided

Before Judges Wefing, Grall and LeWinn.

On appeal from Superior Court of New Jersey,

Law Division, Morris County, No. L-53-07.

Ketan Patel, appellant pro se.

Gibbons P.C., attorneys for respondent

Tiffany & Co. (Kelly Ann Bird, of counsel;

Junea M. Williams, on the brief).

Paula T. Dow, Acting Attorney General,

attorney for respondent New Jersey Division

on Civil Rights (Andrea M. Silkowitz, Assistant

Attorney General, of counsel; Brian O. Lipman,

Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff has appealed from orders entered by the trial court, the first dismissing plaintiff's complaint against defendant Division on Civil Rights ("Division"), the second granting summary judgment to defendant Tiffany and Company ("Tiffany"). After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiff was one of sixty-one seasonal workers hired by defendant Tiffany to assist with the 2004 holiday season. Plaintiff was hired to work as an inline packer at Tiffany's distribution center located in Whippany, New Jersey. At the end of the holiday season, Tiffany hired five of those sixty-one temporary workers as permanent employees. Plaintiff was not one of those five. Plaintiff alleged the decision not to offer him permanent employment was the result of discrimination based upon his national origin, and he filed a complaint with the Division and with the Equal Employment Opportunity Commission.

The Division commenced an investigation into plaintiff's allegations but plaintiff was dissatisfied with the speed of that investigation, and in January 2007, he withdrew his administrative complaint and filed a complaint in Superior Court. He named the Division as a defendant in this action as well as Tiffany. The trial court granted the Division's motion to dismiss this complaint in September 2007 and summary judgment to Tiffany in August 2008. This appeal followed.

Before proceeding to an analysis of the issues raised on appeal, we are compelled to note that the trial court did not comply with the requirements of Rule 1:7-4, which mandates a trial court to make findings of fact and conclusions of law in deciding such motions. We have considered whether to remand this matter to the trial court with directions, but have rejected that course for two reasons: first, the judge to which these motions were assigned has, in the interim, retired and second, it is apparent from our review of the record that defendants were ultimately entitled to the relief they received.

Tiffany produced to the Division during its investigation, and has produced to us, records relating to the employment decisions made with respect to the 2004 holiday season. Nothing within those records would support an inference of discrimination. Of the five seasonal employees who were offered permanent employment, two were of the same national origin as plaintiff, Indian; two were Hispanic and one was African-American.

Plaintiff had alleged that, in addition to discrimination based upon national origin, he was not selected for permanent employment in retaliation for the fact that during his time at Tiffany's he had lodged a complaint that work was distributed in a manner which favored Hispanic employees and placed him at a disadvantage. Records revealed both that plaintiff's supervisor lacked the ability to direct the work in the manner that plaintiff alleged (the process being essentially controlled by computer) and that his supervisor not only was unaware of plaintiff's complaint but had recommended him for permanent employment.

Plaintiff produced nothing to rebut the clear inference that the decision not to hire plaintiff on a permanent basis was not the result of discrimination or a retaliatory animus. Faced with Tiffany's motion for summary judgment, plaintiff was required to produce specific facts to support his allegations; he could not merely rest upon conclusory assertions. R. 4:46- 2(b).

We turn now to plaintiff's claims against the Division. Plaintiff's complaint against the Division alleged the following:

But since I filed Complaint [with the Division] I was pressurized [sic] by my investigator to go to the Court instead of filing a complaint with them. When I was trying to contact my investigator in reference to my complaint I was not given proper reply and provided false information about my case. After sending them so many letters about investigation in writing I was not at all given any fruitful reply concerned to my case and everytime [sic] I was forced to go to the court and the Division of Civil Right dept. [sic]) was trying to protect the Defendant in my case. And now when no investigation, i.e., proper & satisfactory investigation is done and also my case is not handled properly and above all my case is going to expire & run out of time on 30th December, 2006, unnecessarily I have to go to the Court and file a civil suit at the extreme last moment against the defendants.

The Division filed a motion to dismiss this complaint and noted on the motion caption that it was filed pursuant to Rule 4:5-2. We infer that this was a typographical error, since Rule 4:5-2 refers to claims for relief, while Rule 4:6-2 deals with motions to dismiss. With all due respect to plaintiff, it is impossible to discern from the language we have set forth "whether the fundament of a cause of action may be gleaned." Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989) (quoting Di Cristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957)).

Further, in light of the fact that we have concluded that defendant Tiffany was properly granted summary judgment on plaintiff's claim of discrimination, it must follow that plaintiff does not have a claim against the Division for not properly investigating that claim.

 
The orders under review are affirmed.

(continued)

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A-0926-08T3

April 23, 2010