HENRY VIERA VS. NEW JERSEY INSTITUTE OF TECHNOLOGY (L-8382-14, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3453-16T4

HENRY VIERA,

Plaintiff-Appellant,

v.

NEW JERSEY INSTITUTE OF
TECHNOLOGY,

Defendant-Respondent,

and

BORIS SHAPIRO,

Defendant.
_______________________________

Submitted May 7, 2018 – Decided July 18, 2018

Before Judges Accurso and O'Connor.

On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No.
L-8382-14.

David H. Kaplan, attorney for appellant.

Jackson Lewis, PC, attorneys for respondent
(Gregory T. Alvarez, of counsel and on the
brief; Jessica L. Sussman, on the brief).

PER CURIAM
 Plaintiff Henry Viera appeals from the entry of summary

judgment dismissing his complaint against defendant New Jersey

Institute of Technology, alleging national origin

discrimination, a hostile work environment and retaliation, all

in violation of the Law Against Discrimination (LAD), N.J.S.A.

10:5-1 to -49, stemming from the University's failure to promote

him in 2013. We affirm.

We present the facts in the light most favorable to

plaintiff and give him the benefit of all legitimate inferences

in support of his claim. R. 4:46-2(c); Brill v. Guardian Life

Ins. Co. of Am., 142 N.J. 520, 540 (1995). Plaintiff, born and

educated in Peru, was hired by the University in 2001 as an HVAC

mechanic in the Physical Plant department. HVAC mechanics at

the University are represented by AFSCME (American Federation of

State, County and Municipal Employees). Plaintiff's position is

classified as a range 16 position within the bargaining unit.

In April 2013, the University advertised internally for a

control specialist in the Technical Services department, who

would, under the direction of the Director of Technical

Services, be "responsible for the installation, modification,

repair, calibration and overhaul of all control systems

installed at NJIT campus facilities." The position required a

Bachelor of Science in mechanical engineering but allowed that

2 A-3453-16T4
related work experience could be substituted for the degree on a

three to one basis. In other words, twelve years of related

work experience would qualify one for the position in the

absence of a mechanical engineering degree. Control specialists

at the University are represented by PSA (Professional Services

Association), a different union from the HVAC mechanics. A

control specialist is classified as a range 25 position within

that bargaining unit.

Plaintiff completed the online application and submitted

his resume and cover letter in response to the posting. His

application and resume reflected his graduation from high school

in Peru and the absence of a mechanical engineering, or indeed,

any college degree. Although plaintiff's resume reflected he

had been employed by HBC Electric, Inc. for two years prior to

his employment by the University, that position was not listed

in his online application. Moreover, in his cover letter,

plaintiff noted he had "11+ years of experience in the field."

The Director of Technical Services responsible for

reviewing the applications did not recommend plaintiff for an

interview because he "did not meet requirements." Defendant

Boris Shapiro,1 then Assistant Vice President of Technical

1
Plaintiff voluntarily dismissed his claims against Shapiro,
and he is not a party to this appeal.

3 A-3453-16T4
Services and Construction, asked the Director "to give

[plaintiff] a chance," and he was thereafter invited to

interview for the position along with three other candidates,

two other HVAC mechanics at the University, one white and one

Hispanic, and one external candidate, also white. All the

candidates were male. Plaintiff had a "good working

relationship" with all three members of the Technical Services

department who interviewed him and had no concerns going into

the interview.

Afterwards, however, he felt they tried to make him "look

bad" in the interview in order to have an excuse not to hire

him. The interview committee determined plaintiff was not

qualified for the job based on his not having twelve years'

experience and his poor performance at the interview. They

recommended the two white candidates for hire, ranking the

outside candidate their first choice. After Shapiro advised him

the University had extended an offer to the outside candidate,

plaintiff filed a grievance with the assistant vice president in

Human Resources.

The grievance form plaintiff signed, states his grievance

as follows:

Henry feels like he was denied a promotion
even though he has the field experience for
the job. Henry feels that the job selection

4 A-3453-16T4
 process violates AFSCME collective
bargaining agreement Article XVIII(A)2 also
NJIT Promotion Policy and NJIT Affirmative
Action Plan, as well as others.

Although the grievance notes plaintiff's belief the selection

process violated the University's affirmative action plan, it

did not allege plaintiff was discriminated against because of

his national origin. The assistant vice president who took

plaintiff's complaint testified at deposition that plaintiff was

upset that "friends keep getting hired" and mentioned "Binsky &

Snyder," an outside mechanical contracting firm that does

business with the University.

The following day, plaintiff and his union representative

met with Shapiro for an informal "grievance discussion."

Plaintiff's supervisor and a member of the search committee,

both of whom testified at deposition that plaintiff was a good

HVAC mechanic and a capable employee with good potential, were

also in attendance. Shapiro explained to plaintiff the

committee concluded he was not qualified for the position

because he did not have twelve years' experience, had never

designed or been responsible for installation of small HVAC and

controls projects and had never supervised or performed

2
This provision relates to grievance procedures.

5 A-3453-16T4
installations from engineering or architectural drawings.

Shapiro also advised the University's promotion plan was not

applicable as it did not apply to positions above range 23 and

that plaintiff could not invoke the University's affirmative

action policy as he did not meet the qualifications for the

position he was seeking. Plaintiff testified at deposition that

his union refused to pursue his grievance because the promotion

policy in the collective bargaining agreement did not apply to

positions outside his bargaining unit.

In response to plaintiff's grievance, the University

undertook a review of the selection process, assigning the

assistant vice president for Human Resources and the Ethics

Liaison Officer to the task. In the course of their

investigation, they learned that members of the interview

committee had previously worked at Binsky, the firm plaintiff

mentioned, and that one of the applicants also currently worked

for the company. Although finding no actual conflict, the

investigators acknowledged the situation could certainly present

an appearance of bias and recommended a new search. They

further recommended the new search committee be independent,

meaning there should be no past or present relationships between

members and applicants or vendors, that interviews be conducted

using consistent questions and a uniform evaluation process,

6 A-3453-16T4
that the position be posted internally and externally to expand

the applicant pool and that a member of Human Resources be

included on the committee to ensure compliance with acceptable

recruitment standards. Shapiro accepted the recommendations,

the offer to the outside candidate was rescinded and the search

begun again.

When Shapiro's assistant attempted to schedule an interview

for plaintiff with the new committee, however, he declined to be

interviewed. Instead, he sent the following email to Shapiro:

Dear Mr. Boris Shapiro:

I received a call from [your assistant]
today 07/18/2013 to setup an interview with
you relating to the control specialist
position that I applied for. I will only be
willing to attend a congratulatory interview
and not a job interview for the following
reasons:

1. I have done two (2) interviews
before for this position in which you
came to a conclusion that I was not
qualified for this position.

2. I would prefer to have an interview
for this position whenever a promotion
policy that applies to me and this
position is available, since you stated
the existing promotional policy doesn't
apply to this job position.

3. You also mentioned in the grievance
informal discussion to look for a job
in the position in question elsewhere
outside of the university.

7 A-3453-16T4
 Please be informed that a grievance on this
matter is already filed with NJIT human
resources whom I will inform of your request
by a copy of this letter.

After plaintiff declined to participate further in the

process, the second search committee re-interviewed the other

candidates the first committee interviewed, as well as an

additional external candidate who applied in response to the new

posting. The new committee recommended the same top two

candidates from the first selection process. The new process,

however, narrowed the differences between the two candidates,

whom the committee awarded "virtually the same" scores. Human

Resources recommended that preference should be given to the

internal candidate. Shapiro accepted that recommendation and

offered the job to the internal candidate in July 2013.

That promotion created an open HVAC mechanic position. As

one other HVAC mechanic position was also open, Shapiro

requested and obtained approval to eliminate both and create

another control specialist position, and to hire from the list

of the recruitment just completed. Based on the results of that

recruitment, Shapiro offered the second position to the top-

ranking external candidate, who accepted in August 2013.

Following discovery, the University moved for summary

judgment based on those undisputed facts. Plaintiff opposed,

8 A-3453-16T4
arguing he was equally or better qualified than the two white

men hired, that he never withdrew his candidacy, that the

University never informed him a second search committee was

formed in response to his grievance, that the University

retaliated against him by cutting his overtime and created a

hostile environment by forcing him to work for a department head

who had repeatedly discriminated against him. He claimed

disputes of fact as to the University's motivation for the hires

precluded summary judgment.

The trial judge disagreed, finding plaintiff, by refusing

to re-interview, could not establish a prima facie case of

employment discrimination. The judge also concluded plaintiff

required expert testimony, which he did not present, to

establish he was qualified for the position. Finally, the judge

concluded plaintiff could not establish a retaliation claim

because he could not establish his grievance was based on

protected activity, and he presented no proof of a hostile

environment. Plaintiff appeals, reprising the arguments he made

to the trial court and adding that the court failed to accord

him all favorable inferences from the facts.

We review summary judgment using the same standard that

governs the trial court. Murray v. Plainfield Rescue Squad, 210

N.J. 581, 584 (2012). Thus, we consider "whether the evidence

9 A-3453-16T4
presents a sufficient disagreement to require submission to a

jury or whether it is so one-sided that one party must prevail

as a matter of law." Liberty Surplus Ins. Corp., Inc. v. Nowell

Amoroso, PA, 189 N.J. 436, 445-46 (2007) (quoting Brill, supra,

142 N.J. at 536). In considering application of the LAD to the

facts adduced on the motion, our review is de novo without

deference to any interpretive conclusions we believe mistaken.

Nicholas v. Mynster, 213 N.J. 463, 478 (2013); Manalapan Realty,

LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Our courts review claims of discrimination under the LAD

using the familiar burden-shifting analysis of McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973). In a suit alleging

unlawful discrimination for failure to promote under the LAD, a

plaintiff's prima facie case consists of demonstrating that: (1)

he "is a member of a class protected by the anti-discrimination

law"; (2) he "was qualified for the position or rank sought";

(3) he "was denied promotion"; and (4) others "with similar or

lesser qualifications achieved the rank or position." Dixon v.

Rutgers, 110 N.J. 432, 443 (1988).

Once the plaintiff establishes his prima facie case, the

burden of production shifts to the employer to articulate a

legitimate, non-discriminatory reason for the plaintiff's

rejection. Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 83

10 A-3453-16T4
(1978). If the employer does so, thus overcoming the

presumption of an unlawful motivation, the burden shifts back to

the plaintiff to prove the employer's proffered reason for the

termination was merely a pretext for discrimination. See Bergen

Commercial Bank v. Sisler, 157 N.J. 188, 211 (1999). "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." Ibid.

We agree with the trial court that plaintiff's prima facie

case foundered on the second prong, i.e. that he was qualified

for a promotion he sought. Although we are not inclined to

concur that plaintiff needed an expert to establish he was

qualified for the position, see Zive v. Stanley Roberts, Inc.,

182 N.J. 436, 448 (2005) (explaining the "slight evidentiary

burden" borne by the plaintiff in establishing a prima facie

case "evaluated solely on the basis of the evidence presented by

the plaintiff, irrespective of defendants' efforts to dispute

that evidence"), that disagreement is of no moment because no

reasonable jury could find plaintiff continued to seek the

control specialist position after he declined to participate in

the new search. Plaintiff's email to Shapiro that he would

"only be willing to attend a congratulatory interview and not a

11 A-3453-16T4
job interview" established that fact beyond any doubt. Because

plaintiff cannot establish he continued to seek the promotion

when the University reconstituted the search committee and began

the search anew, he cannot establish a prima facie case of

discrimination.

But even were it possible to find that plaintiff remained

willing to compete for the position, and thus that he

established a prima facie case, we could not find the trial

court erred in entering summary judgment on this record. In

addition to arguing that plaintiff withdrew his application for

the control specialist job, the University claimed he lacked the

requisite twelve years' experience and the two applicants

selected were better qualified, satisfying its burden to

articulate a legitimate, non-discriminatory reason for not

promoting plaintiff. Although plaintiff certainly disputed

that, he failed to produce any evidence on the motion that those

reasons were a pretext for invidious discrimination based on his

nationality.

In order to prove pretext in a promotional context, it is

not enough for a plaintiff to simply show he was as good or

better than the employees chosen in his stead, the focus of

plaintiff's proofs on the motion. He "must also demonstrate that

the employer was motivated by discriminatory intent." Zive, 182

12 A-3453-16T4
N.J. at 449. Plaintiff's failure to evince even a shred of

evidence that the University acted out of discriminatory animus

doomed his case on summary judgment. See Clowes v. Terminix

Int'l, Inc., 109 N.J. 575, 600 (1988).

Plaintiff's claims of retaliation and hostile work

environment suffered from similar insufficiencies of proof. A

plaintiff's prima facie case for retaliation is similar but not

identical to one for discriminatory failure to promote. A

plaintiff alleging he was subject to retaliation in the

workplace must demonstrate: (1) that he "engaged in protected

activity"; (2) the activity was "known to the employer"; (3) he

suffered "an adverse employment decision"; and (4) there existed

"a causal link between the protected activity and the adverse

employment action." Battaglia v. United Parcel Serv., Inc., 214

N.J. 518, 547 (2013) (quoting Woods-Pirozzi v. Nabisco Foods,

290 N.J. Super. 252, 274 (App. Div. 1996)).

Plaintiff claimed that after he filed his grievance he was

denied overtime in retaliation for his complaint of

discrimination. We agree with the trial court that plaintiff

failed to establish a prima facie case of retaliation because

his grievance did not allege discrimination on the basis of

nationality. Accordingly, he could not establish that he was

13 A-3453-16T4
engaged in protected activity known to the employer. See

Battaglia, 214 N.J. at 547.

Even assuming for sake of argument that plaintiff's

grievance alleged discrimination based on national origin,

thereby establishing the first two prongs of his necessary

proofs, he produced absolutely no evidence on the motion from

which a fact-finder could infer a causal link between his

grievance and the curtailment of his overtime hours.

Plaintiff conceded he actually made more money in overtime in

the two years after he filed the grievance than before. He also

admitted the University did not single him out but instead cut

overtime for the entire Physical Plant department.

Because plaintiff failed to establish the University did

not promote him on the basis of his nationality or that it

retaliated against him after he complained, he likewise could

not establish that his continued supervision by individuals who

had discriminated against him constituted a hostile environment.

See Cutler v. Dorn, 196 N.J. 419, 431 (2008) (quoting Lehmann v.

Toys 'R' Us, Inc., 132 N.J. 587, 606 (1993)) ("When evaluating

whether conduct is sufficiently severe or pervasive to create a

hostile work environment, we focus on the "harassing conduct

. . ., not its effect on the plaintiff or the work

environment."). We accordingly agree with the trial judge that

14 A-3453-16T4
plaintiff's remaining claim for punitive damages, likewise

premised on his unsupported belief that the University failed to

promote him based on his national origin, was properly

dismissed. Plaintiff's arguments to the contrary are without

sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(1)(E).

Affirmed.

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