LANCE BROWN v. RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY

NOT FOR PUBLICATION WITHOUT THE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-1518-18T1

LANCE BROWN,

          Complainant-Appellant,

v.

RUTGERS, THE STATE
UNIVERSITY OF NEW JERSEY,1

          Respondent-Respondent.


                   Submitted September 16, 2020 – Decided October 2, 2020

                   Before Judges Rose and Firko.

                   On appeal from the New Jersey Division on Civil
                   Rights, Docket No. EM14RE-65825.

                   Lance Brown, appellant pro se.

                   Backes & Hill, LLP, attorneys for respondent Rutgers,
                   The State University of New Jersey (Christine M.
                   Pickel, on the brief).



1
  Improperly pled as New Jersey Rutgers University, University Correctional
Health Care.
            Gurbir S. Grewal, Attorney General, attorney for
            respondent New Jersey Division on Civil Rights
            (Farng-Yi D. Foo, Deputy Attorney General, on the
            statement in lieu of brief).

PER CURIAM

      Lance Brown appeals a final agency determination of the New Jersey

Division on Civil Rights (Division) finding no probable cause supporting his

claim that Rutgers, The State University of New Jersey, engaged in racial

discrimination in violation of the New Jersey Law Against Discrimination

(LAD),  N.J.S.A. 10:5-1 to -49. We affirm.

      Brown is a licensed psychologist with master's degrees in two disciplines

of psychology and a Ph.D. in counseling psychology. In 2009, Brown was hired

as a forensic mental health clinician by the University of Medicine and Dentistry

of New Jersey, which operated the University of Behavioral Health Care

(UBHC). Brown was assigned to the Bayside State Prison as a part of UBHC's

University Correctional Health Care (UCHC) unit. UCHC professionals are

responsible for providing mental health, physical health, and sex offender

specific treatment services for residents, inmates, and parolees of the New Jersey

Department of Corrections, Juvenile Justice Commission, and the State Parole

Board. In 2011, Brown was promoted to mental health clinician supervisor of

the UCHC unit.

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      In 2013, Rutgers assumed operations of the UBHC. Brown took an

approved medical leave of absence from April 26, 2015 to November 23, 2015.

When he returned to work, Brown requested and received a disability

accommodation, which included a temporary transfer to a position in a prison

located closer to his home. Brown informed Dr. Jeffrey Dickert, UCHC's Chief

Operating Officer, that he was interested in pursuing non-corrections positions

with UBHC. Because he was only responsible for UCHC positions, Dr. Dickert

informed Brown he would share Brown's resume with Dr. Rose Marie Rosati,

Dr. Dickert's counterpart at UBHC. Dr. Dickert also suggested that Brown apply

for any open UCHC positions via the online application system.

      Vacant positions are typically posted on Rutgers's website for a minimum

of five business days; applications must be made online. Accordingly, the

reviewing staff is not provided with information about an applicant's

demographics, including race. 2 Thereafter, a list of qualified candidates is

forwarded to the Office of Employment Equity, which "ensures equal

opportunity and affirmative action in employment."



2
  Because Brown's resume included his affiliation with the National Association
of Black Psychologists, the Division expressly declined to "conclude that hiring
managers were unaware of [Brown]'s race in selecting applicants for
interviews."
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      Between November 2015 and January 12, 2016, Brown unsuccessfully

applied for seven positions within Rutgers:

            (1) Program Manager, UBHC Supportive Housing;

            (2) Program Director, Robert Wood Johnson Medical
            School – Office of Student and Multicultural Affairs;

            (3) Program Coordinator, UBHC Club in Cherry Hill;

            (4) Clinical Supervisor, UBHC – Brief Treatment;

            (5) Clinical Care Coordinator, New Jersey Medical
            School, Department of Pediatrics;

            (6) Assistant Dean II Supervisor Transfer Services –
            School of Engineering – Academic Affairs; and

            (7) Clinician Supervisor, UBHC – Integrated Case
            Management Services.

      On March 3, 2016, Brown filed a verified complaint with the Division

alleging Rutgers discriminated against him by denying "several" promotions and

transfers based on his race. The Division investigated Brown's allegations. As

part of that investigation, the Division served a document and information

request on Rutgers, whose responses included a detailed written statement of

position, answers to the Division's information requests, and production of

defendant's personnel file. The Division also reviewed the records, including

letters and email exchanges between the parties.


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      In sum, Rutgers denied the allegations, claiming Brown "was not selected

for the seven positions to which he formally applied for legitimate, non -

discriminatory reasons." Those reasons included: cancellation of the position;

submission of an application "too late in the hiring process"; the selection of

"more qualified" individuals; and Brown's failure to apply "for positions in

which he may have expressed interest."

      In a detailed report, addressing each of the seven positions Brown

challenged, the Division found

            of seven positions [Brown] applied for during the
            relevant period, two were awarded to African-
            American applicants. One position was never filled.
            And for two positions, interviews had already been
            conducted or a candidate had already been selected
            when [Brown] applied. For the remaining positions,
            [Rutgers] provided reasons unrelated to race for its
            personnel decision. In some cases, the position was a
            direct promotion from a position that the successful
            candidate had performed for a significant amount of
            time, giving that applicant experience that would be
            particularly relevant to the position. In one case, the
            selected candidate had been performing the position in
            an acting capacity.

                  [Brown] argued that his Ph.D. and master's
            degrees meant that he was a superior candidate over
            those who held only master's degrees. [Brown]'s
            education is impressive. Under the circumstances,
            however, a higher level of education, without more,
            was insufficient to support the conclusion that
            [Rutgers]'s articulated reasons for selecting other

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            candidates was a pretext for race discrimination. The
            job postings made it clear that experience with the
            particular subject area was required or preferred, and
            the resumes showed that the successful candidates had
            relevant experience. In this context, the investigation
            could not conclude that valuing experience more highly
            than a Ph.D. was evidence of race discrimination.

                   Ultimately, the Director [of the Division] takes
            no position on the soundness of [Rutgers]'s hiring
            criteria or selection process, but finds that race was not
            a factor in the manner in which they were applied in
            this case. A factfinder's role in an employment
            discrimination case is not to "analyze the subjective
            business decisions of an employer, nor to set its own
            employment standards for the employer, unless there is
            evidence of discrimination." . . . Here, the Director
            finds that the [Division's] investigation uncovered no
            persuasive evidence – and none was produced by
            [Brown] – to show that the explanations proffered by
            [Rutgers] for its personnel decisions were merely
            pretexts and designed to mask unlawful motives.

                  Based on the investigation, and in the absence of
            persuasive evidence of a discriminatory animus, this
            case will be closed [based on a finding of no probable
            cause].

      Accordingly, on September 28, 2018, the Director "determined pursuant

to  N.J.S.A. 10:5-14 and N.J.A.C. 13:4-10.2 that there [wa]s no probable cause

to credit the allegations of [Brown's] complaint" and closed the Division's file.

This appeal followed.

      On appeal, Brown raises the following points for our consideration:


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I. AFTER INVESTIGATION FROM [MARCH 30,
2 016 TO SEPTEMBER 28, 2018], THE [DIVISION]
CONCLUDED WITH A REVIEW OF SEVEN HAND-
SELECTED POSITIONS (THERE WERE MORE FOR
WHICH DR. LANCE BROWN HAD APPLIED) AND
GIVES NO RATIONALE AS TO WHY THE
SELECTED CANDIDATES WERE JUDGED TO BE
SUPERIOR, WHY DR. BROWN DID NOT MEET
MINIMAL QUALIFICATIONS FOR INTERVIEW
AND THE FACTORS THAT SUGGEST THAT DR.
BROWN WAS TREATED FAIRLY WITHOUT
REGARD TO HIS RACE.
(Not Raised Below).

II. THE [DIVISION] FAILS TO IDENTIFY[] HOW
AND WHY A LICENSED PSYCHOLOGIST WITH
SENIORITY AND A GOOD EMPLOYMENT
HISTORY (NO INFRACTIONS IN [SEVEN] YEARS)
IS UNABLE TO GARNER AN INTERVIEW FOR
ANY POSTED POSITION AND THE ROLE RACE
PLAYED IN DRS. CEVASCO AND GREEN
SUBMITTING          BOGUS     PERFORMANCE
EVALUATIONS FOR DR. BROWN TO CREATE A
NEGATIVE JOB HISTORY THAT DID NOT EXIST.
(Not Raised Below).

III. THE [DIVISION] RELIED SOLELY UPON
SUBJECTIVE AND "WORD OF MOUTH" DATA
WHEN WHOLLY OBJECTIVE INFORMATION
WAS READILY AVAILABLE THROUGH THE
ROCS ONBOARDING SYSTEM USED BY
RUTGERS UNIVERSITY IN ITS[] HIRING
PROCESS.
(Not Raised Below).

IV. [THE DIVISION] ACKNOWLEDGES THE
INACCURACIES CONTAINED IN THE FINDING


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            OF NO PROBABLE CAUSE REPORT DATED
            SEPTEMBER 28, 2018.
            (Not Raised Below).

            V. PERCEIVED FAILURE OF THE [DIVISION] TO
            EMPLOY ADEQUATE RESOURCES AND TIME
            INTO     INVESTIGATING   THE   POTENTIAL
            VIOLATIONS TO DR. BROWN'S CIVIL RIGHT BY
            NOT      EMPLOYING     REASONABLE    AND
            EXPECTED EFFORTS.
            (Not Raised Below).

      Our limited review of an administrative agency's action is well settled.

Russo v. Bd. of Trs., Police & Firemen's Retirement Sys.,  206 N.J. 14, 27

(2011); Clowes v. Terminix Int'l, Inc.,  109 N.J. 575, 587 (1988) (recognizing

the appellate court's review of the Division's decision is circumscribed) . "The

Legislature established the Division to administer and enforce the LAD."

Wojtkowiak v. N.J. Motor Vehicle Comm'n,  439 N.J. Super. 1, 12 (App. Div.

2015) (citing  N.J.S.A. 10:5-6). "The Division 'has expertise in recognizing acts

of unlawful discrimination, no matter how subtle they may be.'" Ibid. (quoting

Clowes,  109 N.J. at 588).      Given that expertise, we "afford[] a 'strong

presumption of reasonableness' to [the Division]'s exercise of its statutorily

delegated responsibilities." Lavezzi v. State,  219 N.J. 163, 171 (2014) (quoting

Newark v. Nat. Res. Council, Dep't of Env't. Prot.,  82 N.J. 530, 539 (1980)).




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      "We may reverse the Director's decision only if 'the Director's finding is

clearly a mistaken one and so plainly unwarranted that the interests of justice

demand intervention and correction.'"      Wojtkowiak,  439 N.J. Super. at 13

(quoting Clowes,  109 N.J. at 588). We "will not upset an agency's ultimate

determination unless the agency's decision is shown to have been 'arbitrary,

capricious, or unreasonable, or [] not supported by substantial credible evidence

in the record as a whole.'" Ibid. (quoting Barrick v. State,  218 N.J. 247, 259

(2014)). Nonetheless, we "must survey the record to determine whether there is

sufficient credible competent evidence in the record to support the agency head's

conclusions." Ibid. (quoting Clowes,  109 N.J. at 587).

      Brown fails to direct us to any authority supporting his contentions, which

essentially challenge the sufficiency of the evidence upon which the Division

based its finding of no probable cause. See generally R. 2:6-2 (requiring a table

of citations of statutes, rules, caselaw and other authority). Further, most of

Brown's assertions were not raised before the Division, and as such we need not

review them on appeal. See Nieder v. Royal Indem. Ins. Co.,  62 N.J. 229, 234

(1973).

      We have nonetheless considered all of Brown's contentions in light of the

record and applicable legal principles and conclude they are without sufficient


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merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm

substantially for the reasons expressed in the Division's thorough written

decision, which "is supported by sufficient credible evidence on the record as a

whole." R. 2:11-3(e)(1)(D).

      Affirmed.




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