MARC LIEBESKIND v. RUTGERS UNIVERSITY, THE STATE UNIVERSITY OF NEW JERSEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MARC LIEBESKIND,

Plaintiff-Appellant,

v.

RUTGERS UNIVERSITY, THE STATE

UNIVERSITY OF NEW JERSEY; AND

EDWARD C. FABULA, CESAR O.

MASFORROLL, GERALD THOMAS,

AND CAROL TREXLER, individually

and as employees of Rutgers

University,

Defendants-Respondents,

and

JAYNE GRANDES, JEFF MASCHI,

HARRY AGNOSTAK, LISA WHALER,

AND MONICA BARRETT,

individually and as employees

of Rutgers University,

Defendants.

____________________________________________________________

January 22, 2015

Argued September 30, 2014 Decided

Before Judges Hayden and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2083-10.

Marc Liebeskind, appellant pro se.

Aron M. Schwartz and Maja M. Obradovic argued the cause for respondents (Greenbaum, Rowe, Smith & Davis LLP, attorneys; Mr. Schwartz and Ms. Obradovic, on the brief).

PER CURIAM

Plaintiff Marc Liebeskind appeals from the Law Division orders granting summary judgment and dismissing his complaint against defendants Rutgers University and four individual employees. We affirm.

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), the record reveals the following facts. In 2008, plaintiff had ten years of experience in computer sales, installation, service, and network administration, and he had also taught courses in computer use and repair. He began work at the Rutgers Facilities Business Administration department (FBA) on March 10, 2008 after signing an offer letter, which stated in part

This position is in the Administrative/Professional/Supervisory (A/P/S) category.1 Your employment is subject to and governed by all University regulations, policies and procedures generally applicable to A/P/S employees, as they may be amended from time to time. Nothing in this letter supersedes applicable University regulations, policies and procedures. (emphasis added.)

Rutgers employment policies are published online in the University Policy Library. Plaintiff's new job was an MPSC position, which was subject to Rutgers's policies 60.4.3, 60.4.4, and 60.4.8.

Policy 60.4.3 provided

A. Policy Statement: It is the policy of the university that regularly appointed personnel should have reasonable employment protection. While job security cannot be guaranteed, for most employees the university provides for adequate notice and placement assistance for employees who are laid off and a grievance procedure for employees who are separated for disciplinary reasons. (emphasis added).

Policy 60.4.4, sets forth a "'due process' procedure for the resolution of an alleged violation of university policy or administrative regulation with respect to conditions of employment, or for grieving disciplinary actions." This policy specified that it "does not apply to probationary . . . employees . . . ." Policy 60.4.8, entitled "Probationary Period Managerial, Professional, Supervisory, and Confidential Staff," provides that "Managerial, Professional, Supervisory, and Confidential personnel are probationary employees for the first 90 calendar days of their initial employment."
The individual defendants worked for Rutgers in the FBA, which provided a variety of support services to facilities, including the operation and maintenance of information technology (IT) systems and end-user IT support. Cesar O. Masforroll, a Unit Computing Manager, reported to Edward C. Fabula, the Associate Director for IT. Fabula reported to Gerald Thomas, Director of the FBA. Carol Trexler was the FBA's Associate Director of Human Resources.

Plaintiff worked as a unit computing specialist in the FBA from March 10 to March 28, 2008. He was responsible for providing IT support to end-users, troubleshooting software and hardware problems, and setting up and installing software and hardware. Plaintiff worked directly under Masforroll, who was responsible for plaintiff's day-to-day supervision.

By the end of plaintiff's first day of work, Masforroll began to have concerns about plaintiff's attitude. During the first day of training, plaintiff frequently yawned and seemed to constantly check his cell phone. On March 14, 2008, Masforroll met with plaintiff to review plaintiff's first week on the job and asked him about his commitment to the job and his apparent lack of interest during training. Plaintiff responded that he was unhappy about a comment Fabula had made that plaintiff was a "seasoned veteran." Masforroll told plaintiff that the comment was a compliment and that plaintiff's age was an asset. Plaintiff also complained about Fabula calling him an "old timer".

Around this time, Masforroll told Fabula that plaintiff's first week did not go well and he was thinking about letting plaintiff go. Masforroll also spoke to Trexler and told her his concerns; Trexler told him to give plaintiff some more time. During plaintiff's second week, Masforroll observed that plaintiff was spending an inordinate amount of time on his assigned work computer for non-work-related activities. During plaintiff's second week, both Masforroll and Fabula had significant concerns about plaintiff's technical competence.

Masforroll and Fabula discussed plaintiff's job performance with Trexler again on March 25, 2008. Masforroll thought that plaintiff failed to complete a significant number of tasks that required basic troubleshooting skills, which led Masforroll to conclude that plaintiff lacked the skill set for the job. After Masforroll and Fabula described their numerous concerns to Trexler, she decided that it was appropriate to proceed with the termination process.

A major concern reported by Masforroll was his perception that plaintiff spent an inordinate amount of time on non-work-related matters. Masforroll and Fabula decided to check the internet browsing history on plaintiff's work computer to see if it was consistent with his observations. Masforroll used an application called IEHistoryView to extract internet browsing history from his computer based on data maintained on Internet Explorer, the web browser on FBA computers. The application did not look for, access, or see any personal communications of plaintiff on his work computer, and did not attempt to discover any user identification for any of plaintiff's personal accounts or websites. The application created a lengthy report of plaintiff's browsing history, which identified numerous non-work-related internet sites visited by plaintiff. The next day, Masforroll mentioned his general impression of the report to Fabula, and nothing further was done with the report.

On March 26, 2008, plaintiff responded to emails from a training coordinator about a mandatory campus tour for new employees to be held in April. He sought an accommodation to avoid possible exposure to smokers or people wearing perfume. On March 27, 2008, Masforroll delivered a pre-termination letter to plaintiff, which stated that he was considering terminating plaintiff's employment and scheduled a conference that day to review the reasons for the possible termination. The attached draft termination letter stated

It is with sincere regret that I must inform you that your employment at Rutgers University as Unit Computing Specialist is being terminated due to the lack of skill set needed to perform the required duties. Over the past few weeks I have observed your work and find it to be inadequate to effectively perform your duties. Your constant reliance for help to perform basic troubleshooting tasks and poor attitude does not meet our expectations and basic position requirements.

In accordance with University regulations and procedures, your termination is effective Firday [sic], March 28, 2008.

During the pre-termination meeting, attended by Fabula, Masforroll and Thomas, his supervisors explained to plaintiff why they thought he was unable to perform his duties.2 They brought up his technical shortcomings, his poor attitude, and his lack of commitment to his position. Plaintiff discussed his experience and perceptions of the past three weeks. After the meeting, plaintiff was terminated, effective the next day. Plaintiff requested a post-termination hearing but was not provided one as he was a probationary employee.

During his brief employment, plaintiff expressed his concerns about what he perceived as Rutgers's lax enforcement of its no-smoking policy. On plaintiff's first day on the job, he noticed an ashtray outside the main entrance, and told Masforroll that he had asthma and was sensitive to tobacco smoke. On Sunday, March 23, 2008, plaintiff sent an email to the Human Resources Department complaining about smoking in the workplace and submitting a form identifying himself as a person with a disability. The next day, plaintiff returned to the same work area where he had encountered smoke and complained to Masforroll about it.

On March 25, plaintiff sent an email to Masforroll and Fabula to follow up with the verbal complaint about smoking. Fabula forwarded the email to Trexler, and responded to plaintiff that it would be handled. Fabula then spoke to a supervisor at the identified location, who stated that he would take care of the matter.

That same day, Tricia Nolfi, the Associate Director of Human Resources, responded in an email to plaintiff's March 23 email about enforcement of Rutgers's no smoking policy. She asked for more specific information and told him to direct his concerns to his immediate supervisor and Trexler. On March 27, plaintiff emailed a detailed response to Nolfi's email, with a copy to Trexler, documenting complaints about Rutgers's violation of the No Smoking Law and its own policies, stating that he has asthma and allergies and asking for help. Trexler did not respond because the decision to fire plaintiff had previously been made.

After his termination, plaintiff filed a civil complaint against Rutgers, and four individual defendants, Fabula, Masforroll, Thomas, and Trexler. As amended, the complaint alleged: (1) violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and the Constitution; (2) violation of due process; (3) breach of contract and breach of the implied covenant of good faith and fair dealing; (4) invasion of privacy, violation of the New Jersey Wiretapping & Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 to -37, and violation of the Computer Related Offenses Act, N.J.S.A. 2A:38A-1 to -6; (5) defamation; (6) civil conspiracy; (7) negligent supervision and training; and (8) employment termination in violation of public policy.3 On March 2, 2012, the judge signed an order dismissing the defamation and the negligent supervision counts. On May 25, 2012, the judge granted defendants' motion for partial summary judgment dismissing plaintiff's constitutional due process claim and his breach of contract claim. On August 24, 2012, the trial judge granted defendants' motion for summary judgment, dismissing all remaining claims with prejudice and with costs. This appeal followed.

II.

On appeal, plaintiff argues that the trial judge erred for the following reasons: 1) by construing the facts in a light most favorable to defendants and ignoring evidence that should have compelled a finding for plaintiff; 2) in dismissing plaintiff's due process claim as plaintiff had a protected property interest in continued employment subject to due process; 3) dismissing plaintiff's breach of contract claim as plaintiff had a written employment contract and Rutgers had policies that defendants breached; 4) in dismissing plaintiff's claim for breach of the covenant of good faith and fair dealing; 5) in dismissing plaintiff's invasion of privacy claim as plaintiff had a reasonable expectation of privacy guaranteed by Rutgers's policies and defendants had no authorization to search his computer; 6) by ignoring evidence that Rutgers violated computer-related laws; 7) in dismissing plaintiff's discrimination claims based upon disability and retaliation; 8) in dismissing plaintiff's civil conspiracy claim; 9) in finding that plaintiff's claims were not actionable under the First Amendment or Pierce4 as they were of public importance and his termination violated public policy; and 10) in dismissing plaintiff's defamation claim based upon an incorrect application of the statute of limitations. Having reviewed these contentions in light of the record and the applicable legal principles, we affirm.

We review a grant of summary judgment de novo, using the same standard that applied in the trial court. Tarabokia v. Structure Tone, 429 N.J. Super. 103, 106 (App. Div. 2012), certif. denied, 213 N.J. 534 (2013). We first determine whether the moving party demonstrated whether there was no genuine disputes as to material facts. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). "[W]hen the evidence 'is so onesided 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)).

We then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co., supra, 387 N.J. Super. at 231. When summary judgment involves only a question of law, we review the law de novo owing no deference to the motion judge. In re Estate of Ehrlich, 427 N.J. Super. 64, 70 (App. Div. 2012) (citing Manalapan Realty, L.P. v. Twp. Comm. of the Twp. of Manalapan, 140 N.J. 366, 378 (1995)), certif. denied, 213 N.J. 46 (2013), and appeal dismissed, 213 N.J. 496 (2013).

Plaintiff first asserts that the trial judge erred in dismissing his due process claim. Plaintiff claims he had a "protected property interest in continued employment subject to due process" and that he was denied due process when he was fired. He avers that he was entitled to a pre-termination hearing with proper notice of the charges as well as a full post-termination hearing. We disagree.

"[T]he Due Process Clause provides that certain substantive rights life, liberty, and property cannot be deprived except pursuant to constitutionally adequate procedures." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S. Ct. 1487, 1493, 84 L. Ed. 2d 494, 503 (1985). In order to trigger due process rights, a property interest must take the form of a "legitimate claim of entitlement." Nicoletta v. N. Jersey Dist. Water Supply Comm'n, 77 N.J. 145, 155 (1978) (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548, 561 (1972)).

It is well-settled that "an employee hired at will has no protected interest in his [or her] employment and may not prevail on a claim that his or her discharge constituted a violation of property rights." Morgan v. Union Cnty. Bd. of Chosen Freeholders, 268 N.J. Super. 337, 355 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994). To have a property interest in public employment, an employee "must have a legitimate entitlement to . . . continued employment." Elmore v. Cleary, 399 F.3d 279, 282 (3d Cir. 2005). State law determines whether a public employee has a property interest in public employment. Bishop v. Wood, 426 U.S. 341, 344, 96 S. Ct. 2074, 2077, 48 L. Ed. 2d 684, 690 (1976).

To demonstrate a property interest requiring "a right to protection by procedural due process" there must be a "legitimate claim of entitlement." Nicoletta, supra, 77 N.J. at 154-55 (citing Roth, supra, 408 U.S. at 577, 92 S. Ct. at 2709, 33 L. Ed. 2d at 561). As an at-will public employee, plaintiff does not have an entitlement to continued employment, and termination need not be predicated on just cause, because no property interest which would trigger the due process shield is implicated. Id. at 154; see also Filgueiras v. Newark Pub. Sch., 426 N.J. Super. 449, 469-70 (App. Div.), certif. denied, 212 N.J. 460 (2012).

A Third Circuit case, Thomas v. Town of Hammonton, 351 F.3d 108 (3d Cir. 2003), is informative on this issue. In Thomas, the plaintiff worked less than ninety days for a municipality as a probationary at-will employee who could be terminated without cause. Id. at 110. The plaintiff argued that under New Jersey law she could be terminated only by the City Council after receiving notice and hearing, which gave her a property right protected by the due process clause. Id. at 113. The Thomas court concluded that even if she possessed a right to notice and a hearing before termination under state law, she did not possess a property right to her job that triggered the protection of federal due process. Ibid. See also Cleveland, supra, 470 U.S. at 541, 105 S. Ct. at 1493, 84 L. Ed. 2d at 503. The Thomas Court reasoned that the fact that state law granted procedural protections to an at-will employee did not transform his or her interest into a property interest protected by the due process clause. Thomas, supra, 351 F.3d at 113.

Here, as an at-will probationary employee, plaintiff had no entitlement to his job and no right to participate in the hearing process set up for non-probationary employees in his position. Plaintiff's assertions that his job was not an at-will position, despite the clear wording of the applicable policies, is unpersuasive. Plaintiff has not identified any University regulation or policy that amended Policy 60.4.4, which prevents MPSC probationary employees from participating in the grievance procedure or that actually limits Rutgers's right to discharge MPSC probationary employees. We reject plaintiff's claim that the job offer letter and the University's policies and procedures created an implied contract guaranteeing employment absent good cause for termination under Woolley v. Hoffmann-La Roche, Inc., 99 N.J. 284 , 297 (1985), modified on other grounds, 101 N.J. 10 (1985). There is simply nothing in the wording of the letter or the policies and regulations incorporated by reference that expressly or impliedly suggest that plaintiff was offered a position that required just cause for dismissal.

Moreover, plaintiff's contention that his supervisor giving him a yearly review form and explaining the yearly review process somehow changed his at-will employment to guaranteed employment is not rational and ultimately is unavailing. Similarly, the human resource guidance documents on Rutgers's website, which contain suggestions for managers in handling discipline and probationary employees, provide no support for plaintiff's claim that he has an implied right to continued employment. So too, the fact that his supervisors gave him a pre-termination hearing does not void the written policy that at-will probationary employees do not have a right to a hearing or have job security absent a finding of good cause.

Consequently, the record supports Rutgers's contention that plaintiff was an at-will probationary employee and did not have a property interest in his employment which entitled him to due process. The trial court appropriately granted summary judgment.

III.

Plaintiff next contends that the trial court erred in dismissing plaintiff's invasion of privacy claims. We again disagree.

Plaintiff alleges a common law invasion of privacy claim based on Masforroll's extraction of the internet browsing history from the Rutgers computer used by plaintiff.5 On summary judgment, plaintiff asserted a Fourth Amendment invasion of privacy claim. Under the circumstances here, we find plaintiff has not demonstrated a sufficient reasonable expectation of privacy to prove either claim.

The "Acceptable Use Policy for Computing and Information Technology Resources" in effect at Rutgers at the time of plaintiff's employment stated that employees' privacy "may be superseded by the University's requirement to protect the integrity of information technology resources, the rights of all users and the property of the University." Rutgers "reserve[d] the right to examine material stored on or transmitted through its facilities" where there was reason to believe that an employee was using workplace computing facilities in an improper way.

In dismissing plaintiff's common law privacy claim, the trial judge relied on Stengart v. Loving Care Agency, Inc., 201 N.J. 300, 324 (2010), which held that employers can monitor and regulate the use of workplace computers because they have a legitimate interest to protect their assets, reputation, and business productivity. In Stengart, which concerned an employee's email sent to her attorney on her employer's computer, the court held that circumstances relevant to a reasonable expectation of privacy inquiry include whether the email was exchanged through the employer's account or a personal one, and whether the employer had any policy regarding computer usage. Id. at 320-21.

The Stengart Court concluded that the employee "could reasonably expect that emails she exchanged with her attorney on her personal, password-protected, web-based e-mail account, accessed on a company laptop, would remain private[]" and, consequently, that the attorney-client privilege protected those email messages. Id. at 322-23. However, the Court stressed that its ruling "does not mean that employers cannot monitor or regulate the use of workplace computers. Companies can adopt lawful policies relating to computer use to protect the assets, reputation, and productivity of a business and to ensure compliance with legitimate corporate policies." Id. at 324.

Here, as acknowledged in Stengart, defendants had a legitimate interest in monitoring and regulating plaintiff's workplace computer and had a policy informing employees that it "reserve[d] the right to examine material stored on or transmitted through its facilities" to determine improper use. Importantly, there is no competent evidence that defendants tried to access the content of personal, password-protected emails or personal accounts. The browsing history on plaintiff's workplace computer does not hold the same expectations of privacy that emails to an attorney hold. As under the circumstances, plaintiff did not have a reasonable expectation of privacy, summary judgment was appropriately granted on this claim.

Plaintiff also contends that the judge erred in dismissing his privacy claim because the Fourth Amendment protects against governmental search and seizures in the workplace. The question of whether the Fourth Amendment applies to a particular workplace search depends on whether an employee has a reasonable expectation of privacy, which must be assessed on a case-by-case basis. O'Connor v. Ortega, 480 U.S. 709, 717, 725-26, 107 S. Ct. 1492, 1497-98, 1501-02, 94 L. Ed. 2d 714, 723, 728 (1987). Public employees' expectation of privacy in their offices, desks, and file cabinets may be reduced by virtue of actual office practices and procedures, or by legitimate regulation. Id. at 717, 107 S. Ct. at 1497, 94 L. Ed. 2d at 723. Concurring in O'Conner, Justice Scalia formulated the issue differently, but observed that he "would hold that government searches to retrieve work-related materials or to investigate violations of workplace rules searches of the sort that are regarded as reasonable and normal in the private-employer context do not violate the Fourth Amendment." Id. at 732, 107 S. Ct. at 1505, 94 L. Ed. 2d at 732-33.

Under both views, employers are given "wide latitude" to enter their employees' offices for work-related, non-investigatory reasons as well as for purposes of investigating work-related misconduct. Id. at 723-24, 732, 107 S. Ct. at 1501, 1505, 94 L. Ed. 2d at 727, 732-33 (Scalia J., concurring); see also City of Ontario v. Quon, 560 U.S. 746, 760-61, 130 S. Ct. 2619, 2630-31, 177 L. Ed. 2d 216, 227-28 (2010) (holding that the routine retrieval and examination of pager text messages did not constitute an unreasonable search and seizure under the Fourth Amendment). When a search of an employer's property is conducted "for the investigatio[n] of work-related misconduct, a government employer's warrantless search is reasonable if it is justified at its inception and if the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the circumstances giving rise to the search." Id. at 761, 130 S. Ct. at 2630, 177 L. Ed. 2d at 228. (citations and quotation marks omitted); see also State v. M.A., 402 N.J. Super. 353 (App. Div. 2008).

Under the guiding principles articulated in both O'Conner and City of Ontario, Masforroll's use of the application to obtain the internet browsing history was reasonable at its inception and in terms of its scope. The Acceptable Use Policy alerted plaintiff that Rutgers had the right to examine materials stored on workplace computers for improprieties; thus plaintiff had no reasonable expectation of complete privacy. The report listed the internet sites visited, but contained no other personal information and it did not list or contain any emails or other communications to or from plaintiff. The search of personal text messages in City of Ontario, which the Court found reasonable and permissible, was far more intrusive than the search here. Because the search was motivated by a legitimate work-related purpose and was not excessive in scope, the search was reasonable and defendants did not violate plaintiff's Fourth Amendment rights.

IV.

Plaintiff argues that the judge erred in dismissing two types of LAD discrimination claims: "retaliation for complaining about age related remarks[,]" and "retaliation and discrimination based on disability, including failure to accommodate." We are not persuaded.

To establish a prima facie case of retaliation under the LAD, a plaintiff must show that (1) he or she was engaged in a protected activity known to the employer; (2) he or she was thereafter subjected to an adverse employment decision by the employer; and (3) plaintiff's participation in the protected activity caused the retaliation. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 332 (2010) (citing Tartaglia v. UBS Painewebber Inc., 197 N.J. 81, 125 (2008)). In order to establish that plaintiff engaged in protected activity, the plaintiff must show that he or she opposed a practice "rendered unlawful under the LAD." N.J.S.A. 10:5-12d; see also Young v. Hobart W. Grp., 385 N.J. Super. 448, 466 (App. Div. 2005). Once a plaintiff establishes the prima facie elements of retaliation, the defendant must articulate a legitimate, non-retaliatory reason for the decision. Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 549 (App. Div. 1995) (citing Jamison v. Rockaway Twp. Bd. of Educ., 242 N.J. Super. 436, 445-47 (App. Div. 1990)). "Thereafter, the plaintiff must come forward with evidence of a discriminatory motive of the employer, and demonstrate that the legitimate reason was merely a pretext for the underlying discriminatory motive." Ibid.

To qualify as protected activity, plaintiff must demonstrate that his underlying discrimination complaint was reasonable and made in good faith. Carmona v. Resorts Int'l Hotel,Inc., 189 N.J. 354,373 (2007). The reasonablenessof plaintiff'sbelief thatthe underlying employment practice was unlawful must be assessed in light of the totality of the circumstances. Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp.,136 F.3d 276, 292(2d Cir.1998) (citing Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996)).

Plaintiff asserts that during a meeting with Masforroll, he complained about Fabula's comment that it was nice to have a seasoned veteran on board and that he complained about Fabula greeting him one time in passing by saying, "[h]ey, old timer." Further, plaintiff claims that Fabula and Masforroll expressed disappointment that plaintiff's predecessor left after two days because he was young and they had hoped he would have been a long-term employee.6 Plaintiff concedes, however, that Masforroll responded to him that his age was an asset, and he suggested that Rutgers would be a nice place to work until plaintiff retired. Giving plaintiff all reasonable inferences under the summary judgment standard, plaintiff has not established that he was engaged in protected activity known to defendants.

The trial judge found that being called a seasoned veteran is not an offensive remark, although the term "old timer" may be offensive to plaintiff or somebody else. Nevertheless, plaintiff was told that age was an asset. The judge also concluded that the comment regarding plaintiff's predecessor's longevity in light of the fact that plaintiff replaced a younger employee was not a negative comment. He found that these comments did not support any kind of claim of age discrimination.

As a prerequisite for a retaliation claim, the plaintiff "bear[s] the burden of proving he or she had a good faith, reasonable basis for complaining about the workplace behavior." Tartaglia, supra, 197 N.J. at 125. No rational person could reasonably believe that the casual off-hand remarks plaintiff complained about somehow violated the LAD. These remarks were a far cry from the significant incident the plaintiff in Tartaglia complained about, coming after a series of similar treatment, which led the court to find support for the plaintiff's good faith reasonable belief that she was being ill-treated because of her sex. Id. at 92-94, 126-27. Thus, complaining about these few off-hand remarks to his immediate supervisor did not prove the first prong of the LAD retaliation test because he did not complain about activity prohibited by the LAD. Carmona, supra, 189 N.J. at 373.

Plaintiff's contention that the close proximity to his complaint to Masforroll and his termination established a temporal proximity that proves the third element of pretext, misses the point. As he has not demonstrated the first factor, the timing is not relevant. Clark v. Pennsylvania, 885 F. Supp. 694, 710 (E.D. Pa. 1995). As we agree that plaintiff has not demonstrated the necessary elements to prove retaliation under the LAD based upon age, summary judgment was appropriate.

We turn to plaintiff's claims of retaliation and disability based on asthma and allergies to smoke or other odors. The judge concluded that plaintiff failed to establish a prima facie case on his failure to accommodate and disability discrimination claim because he failed to establish that he has a disability.

To establish a prima facie case of failure to accommodate a disability, a plaintiff must show that he or she (1) had a disability; (2) was otherwise qualified to participate in the activity or program at issue; and (3) was denied the benefits of the program or otherwise discriminated against because of his or her disability. Victor v. State, 203 N.J. 383, 410-11 (2010). If the plaintiff can meet this burden, the question then becomes whether the accommodation was reasonable. Lasky v. Moorestown Twp., 425 N.J. Super. 530, 539, 542-44 (App. Div.), certif. denied, 212 N.J. 198 (2012).

Where the claimed disability is not obvious or evident, expert medical testimony is required. Viscik v. Fowler Equip. Co., Inc., 173 N.J. 1, 16 (2002). Here, plaintiff's claimed disability of allergies and asthma is not readily apparent. Plaintiff failed to provide an expert witness report or identify an expert he intended to call at trial to establish that he had a disability at the time of the alleged discrimination.

To support his claim that he has a disability, plaintiff submitted some medical records in response to defendants' summary judgment motion. One report was prepared eighteen years before plaintiff worked at Rutgers and the other fifteen years before. Both reports indicated that plaintiff suffered from hyper-reactive airways syndrome/asthma, based on his subjective complaints. Neither report was based on clinical findings. Plaintiff never identified either doctor as an expert at trial.

Whether or not asthma can be found to be a disability, here plaintiff did not even present an expert report that he was suffering from asthma or any other disability at the time he worked at Rutgers. There must be objective medical evidence to support plaintiff's claim of disability. "Objective" means that the evidence must be verified by physical examination and observation and cannot be based solely on the plaintiff's subjective complaints. See Perez v. Pantasote, Inc., 95 N.J. 105, 116 (1984) (demonstrable objective medical evidence means "evidence exceeding the subjective statement of the petitioner."). Plaintiff's claim here is similar to the plaintiff in Heitzman v. Monmouth Cnty., where the plaintiff's claims of discrimination based on a disability of hypersensitivity to secondhand smoke was rejected because the plaintiff's medical expert did not state the plaintiff suffered from a disability. Heitzman, 321 N.J. Super. 133, 138-41 (App. Div. 1999), overruled on other grounds by Cutler v. Dorn, 196 N.J. 419, 440 (2008). The trial judge properly granted summary judgment based on the fact that plaintiff's reports do not address whether plaintiff suffered from a disability at the time of his employment at Rutgers. As plaintiff has not demonstrated that he had a disability, we need not consider his claim that defendants failed to accommodate the disability. Id. at 139.

We also reject plaintiff's claim that defendants violated the LAD by retaliating against him for complaining about second-hand smoke and Rutgers's failure to enforce its no-smoking policy and the New Jersey Smoke Free Air Act, N.J.S.A. 26:3D-55 to -64. Enforcement of these anti-smoking measures is not part of the LAD and does not implicate the forms of discriminations prohibited by the LAD. See N.J.S.A. 10:5-12. Accordingly, despite the undisputed evidence that plaintiff made these complaints, plaintiff is unable to prove the first prong of a LAD retaliation claim. Therefore, the trial judge appropriately dismissed this discrimination claim.

We have carefully considered plaintiff's remaining contentions and find them without sufficient merit for discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 This category was changed to Managerial, Professional, Supervisory, and Confidential (MPSC).

2 In discovery defendants listed eight instances where plaintiff lacked technical skills and listed nine instances where plaintiff demonstrated a poor attitude.

3 Plaintiff also added Jayne Grandes, Jeff Maschi, Harry Agnostak, Lisa Whaler, and Monica Barrett as defendants; they were later dismissed. Plaintiff is not appealing this decision.

4 Pierce v. Ortho Pharm. Corp., 84 N.J. 58 (1980).

5 Plaintiff also alleges, based on the dates in one field of the browsing history report that Masforroll actually hacked into plaintiff's personal email and other personal accounts and put over 1500 false entries into the report. Plaintiff declined to get an expert to prove this claim concerning the specifics of a computer software application. The trial judge appropriately dismissed this claim as an expert is required where, as here, the subject matter is so esoteric that jurors of common knowledge and experience cannot form a valid opinion without it. State v. Doriguzzi, 334 N.J. Super. 530, 538 (App. Div. 2000); see also N.J.R.E. 702.

6 The record does not reflect that plaintiff complained to his supervisors about this comment.