LORI GERALD v. HOPEWELL VALLEY REGIONAL SCHOOL DISTRICT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5783-08T15783-08T1

LORI GERALD,

Plaintiff-Appellant,

v.

HOPEWELL VALLEY REGIONAL

SCHOOL DISTRICT, RICHARD LANG,

CHRISTINE LAQUIDARA,

Defendants-Respondents,

and

DOMENIC LORENZETTI,

Defendant.

 

Argued April 26, 2010 - Decided

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1430-06.

George W. Fisher argued the cause for appellant (Zuckerman & Fisher, attorneys; Mr. Fisher, of counsel and on the brief).

Suzanne M. Marasco argued the cause for respondents (Hill Wallack, attorneys; Ms. Marasco and Marilyn Silvia, on the brief).

PER CURIAM

Plaintiff Lori Gerald appeals the June 12, 2009 grant of summary judgment dismissing her complaint against defendants Hopewell Valley Regional School District (the District), Domenic Lorenzetti, the District Superintendent, Richard Lang, the District Director of Human Services, and Christine Laquidara, the Hopewell Elementary School Principal. For the reasons that follow, we affirm.

Plaintiff's five-count complaint alleged violations of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, because of the District's failure to hire plaintiff to fill a vacancy as a combination Vice Principal/Math Supervisor at the Hopewell Elementary School. The case was removed to federal court in August 2006. Ultimately, the case was remanded back to the state court and defendants filed a motion for summary judgment regarding the remaining LAD causes of action on February 26, 2009. Judge Innes issued a cogent and thorough oral opinion granting defendants' summary judgment motion on June 12, 2009. This appeal followed.

Plaintiff, a full-time elementary school teacher in the District since 1997, enrolled in the College of New Jersey's Master in Educational Leadership Program in 2001. She obtained her degree in 2003 and immediately commenced applying for administrative positions outside of the Hopewell District. Along with some of her applications, she submitted letters of recommendation from Lorenzetti and Laquidara.

When a Vice Principal/Math Supervisor position became available at Hopewell Elementary School in the beginning of 2004, Lang, Lorenzetti and Laquidara screened approximately 100 candidates. A search committee was formed consisting of nine members, including four teachers, two parents, and a school administrator from another elementary school. The committee met for the first time on June 3, 2004 and developed the relevant criteria for determining who would be best suited for the position. Lang also gave them the applications that had, as he put it, "survived the paper screen." The committee agreed upon questions and a ranking system for the candidate interviews. Each candidate would be asked only the specific questions on the list so that they would be judged, to the extent possible, by the same criteria. By using numerical rankings, it was hoped that more objective conclusions would be reached by committee members.

On February 11, 2004, plaintiff formally applied for the Vice Principal/Math Supervisor position and submitted a letter, her teaching and principal/supervisor certificates, as well as transcripts from her Master's Degree program. The committee was required to interview her because she was an internal candidate who "met the basic qualifications" for the job. Eight candidates, including plaintiff, were interviewed on June 10, 2004. The committee recommended two candidates from that group, neither of which was plaintiff.

Two months later plaintiff's husband sent an email to the president of the Hopewell Valley Regional Board of Education, asserting that the hiring process had been "discriminatory, prejudicial, and fatally flawed." As a result, a formal investigation was ordered by the Board, conducted by an independent consulting firm hired for that purpose. The written report, completed on December 15, 2004, concluded that there was "no evidence of discrimination in the selection process." The opinion was reached after interviews with six District employees who served on the search committee, three additional investigatory interviews, and the review of documents. Plaintiff was also interviewed.

The candidate ultimately chosen for the position of Vice Principal/Math Supervisor was a Caucasian male. The December 15, 2004 report noted, however, that another internal candidate, a Caucasian female, was not given serious consideration either based on her interview.

The report revealed that plaintiff had misconstrued some of the comments made to her after the interview, which led her to mistakenly believe that she was a leading candidate when in fact she was not favorably received by the committee. The report further stated that plaintiff acknowledged giving the responses to some questions during the interview which were pivotal to the committee's decision not to recommend her for the position. When asked if she thought it would be difficult to supervise staff who were currently her peers, plaintiff indicated that she did not believe moving from a teacher's position to an administrative position would be problematic for her. Additionally, plaintiff cried twice during the interview once when she described her feelings upon walking into the Hopewell School as a teacher on the very first day, and once when she described an incident in which a student's parent insisted that some slave owners were good, just as some dog owners can be good. When plaintiff cried on these occasions, the tears flowed freely down her face.

As described in the report, the committee's decision not to recommend plaintiff resulted from concern that she was not realistic about the difficulties inherent in supervising former peers. The committee was also troubled by plaintiff's tears because of the high level of interaction with the public the position required.

The report included statements taken from Lang, who was present during the interviews even though not a voting member of the committee. He had assured plaintiff that her interview was "awesome" in order to be polite, not because he actually believed it. Similarly, when plaintiff asked him why she was not hired, he assured her that it was her lack of administrative experience. This was actually not a significant factor in the committee's decision-making, but he used this excuse because he did not want to appear rude or disrespectful. He reiterated these statements in depositions.

After the position was filled, another Vice Principal position became available in plaintiff's school district. She did not ask to be interviewed. Plaintiff later asserted that Lang told her that her resume would be kept on file for a year and that she would automatically be contacted should any vacancies similar to the one at Hopewell Elementary arise. She claims that defendant's failure to notify her of this opening was also motivated by racial bias and was therefore a LAD violation. To the contrary, defendants claim that plaintiff was not interviewed because she did not express interest in the position, they would never have automatically contacted her, nor would anyone have told her she would be automatically contacted.

The trial court found that plaintiff was not recommended for the Vice Principal/Math Supervisor position because of her poor interview. He did not agree that the seemingly inconsistent responses made by committee members regarding the reasons plaintiff was not chosen cast doubt on defendants' credibility. Instead, he determined that defendants had clearly established nondiscriminatory motives for not selecting plaintiff; that the search committee simply found other candidates to be more qualified and that plaintiff's failure to be recommended for the job was due to her lack of qualifications, and not her race.

We review the award of summary judgment using the same standard as did the trial court in its issuance. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment will be granted when the moving party can prove 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). We decide whether there exists a genuine issue of material fact based on the record provided and whether the trial court applied the law correctly when granting summary judgment. Prudential, supra, 307 N.J. Super. at 167.

When determining whether there is a genuine issue of material fact, we view the evidential materials in the light most favorable to the nonmoving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). A plaintiff cannot defeat a meritorious motion for summary judgment merely by asserting bare allegations lacking "factual support in tendered affidavits." Triffin v. Somerset Valley Bank, 343 N.J. Super. 73, 87 (App. Div. 2001) (citations omitted).

Under LAD, a plaintiff must prove that an employer's motive for adverse action was "'determinative[ly] influence[d]'" by a discriminatory motive. Greenberg v. Camden County Vocational and Technical Schs., 310 N.J. Super. 189, 198 (App. Div. 1998) (quoting Maiorino v. Schering-Plough Corp., 302 N.J. Super. 323, 344 (App. Div.), certif. denied, 152 N.J. 189 (1997)). This involves three discrete steps. Ibid. The plaintiff must first prove a prima facie case of discrimination "by a preponderance of the evidence." Ibid. (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668, 677 (1973)). This requires a showing "'(1) that [the plaintiff] 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, reappointment, or tenure; and (4) that others . . . with similar or lesser qualifications achieved the rank or position.'" Id. at 198-199 (quoting Dixon v. Rutgers, the State Univ. of N.J., 110 N.J. 432, 443 (1988)).

"The burden [of production] then shifts to the employer to" offer a valid, "nondiscriminatory reason for the [adverse] employment action" or to provide an explanation as to "the reasonableness of the otherwise discriminatory act." Id. at 199 (citing Maiorino, supra, 302 N.J. Super. at 345-47). This is satisfied if the employer's "'evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.'" Ibid. (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089, 1094, 67 L. Ed. 2d 207, 216 (1981)).

The plaintiff may then attempt to show that the reason proffered by the employer "'was merely a pretext to mask the discrimination' or was not the true motivating reason for the employment decision." Ibid. (quoting Kelly v. Bally's Grand, Inc., 285 N.J. Super. 422, 430 (App. Div. 1995)). In order to satisfy this burden, the plaintiff must show "'that a discriminatory reason more likely motivated the employer or . . . that'" the legitimate reason proffered by the employer is merely pretext for discrimination. Id. at 199-200 (quoting Burdine, supra, 450 U.S. at 256, 101 S. Ct. at 1095, 67 L. Ed. 2d at 217). Thus, a "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.'" Zive v. Stanley Roberts, Inc., 182 N.J. 436, 455-56 (2005) (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d. Cir. 1994)).

Here, defendants acknowledge that plaintiff has successfully made out a prima facie case of discrimination as defined in McDonnell Douglas. But plaintiff concedes that defendants have satisfied their burden of production with respect to establishing a legitimate, nondiscriminatory reason for their failure to hire her as the Vice Principal/Math Supervisor. Hence the sole remaining issue is whether the record raises a genuine issue of material fact as to the legitimacy of defendant's stated reasons not to hire plaintiff. In other words, the trial court's order granting defendants summary judgment should be affirmed unless there is a basis upon which a factfinder could reasonably conclude defendants' proffered reasons for not hiring plaintiff are merely pretext for discrimination.

In support of her contention that the reasons are pretextual, plaintiff contends that the responses of the committee's individual members are contradictory and therefore suspect. In our view, however, they reflect the natural human instinct not to offend or injure another person. While Lang acknowledged telling plaintiff that the interview went very well, for example, he did so because he would not presume to speak for the entire committee and he felt it would be very damaging to an internal candidate to be told that he or she had interviewed poorly. When plaintiff approached Lang a second time and asked to be given the reason she was not hired, he told her what he thought would calm her down because "it's much easier to hear you didn't get the job because, you know, somebody else had administrative experience but in this case they were . . . far better candidates." Furthermore, Lang was uncomfortable about a more specific disclosure regarding the decision-making process, as it was supposed to be confidential. The committee's stated reasons for not recommending plaintiff her mistaken belief that there would be no difficulties inherent in supervising former peers, as well as her tears when recalling important events seem legitimate and not pretextual in any respect.

Plaintiff also makes much about the second position that became available and the purported failure of the school administrator to notify her about the vacancy. Plaintiff claims Lang told her that her application would be kept on file and considered for any similar vacancy occurring within a year. Lang testified to the contrary, that he would not reach out to any candidate, particularly a candidate he did not feel would obtain the job, unless they expressed interest in it. He also added that had plaintiff expressed interest in the position, he would have no doubt suggested that she submit an application. Although the factual versions conflict on this point, the conflict is not material to the question of whether the failure to schedule plaintiff for an interview was racially motivated. The record is lacking any proof to that effect.

Plaintiff has simply not presented any "evidence, direct or circumstantial," that the reasons proffered by defendants for not hiring her were pretextual. See Zive, supra, 182 N.J. at 455-56 (quoting Fuentes, supra, 32 F. 3d at 764). Within the committee, there was strong consensus that she would not be suitable for the job. Similarly, it seems unexceptional that a prospective applicant would not be automatically contacted for an interview for a job as positions became available. Even if defendants did mistakenly fail to notify plaintiff of the opening, the record is devoid of any circumstance that makes the failure to contact plaintiff appear to have been racially motivated. Plaintiff has made the kind of bare allegations that are insufficient to defeat an application for summary judgment. See Triffin, supra, 343 N.J. Super. at 87.

Plaintiff has not established that a factfinder could reasonably "'disbelieve the employer's articulated legitimate reasons'" or "'believe that an invidious discriminatory reason . . . more likely than not'" motivated defendants' decision. Zive, supra, 182 N.J. at 455-56. As Judge Innes commented, "[p]laintiff fails to connect any lack of opportunity for plaintiff to her race." Accordingly, we find no error in the court's grant of summary judgment.

 
Affirmed.

The claim against Lorenzetti was dismissed pursuant to stipulation on November 28, 2006.

(continued)

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A-5783-08T1

June 30, 2010