                                NOT FOR PUBLICATION WITHOUT THE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-1201-17T2

ANDRE COARD,

          Plaintiff-Appellant,

v.

OAKS INTEGRATED CARE, INC.,

     Defendant-Respondent.
______________________________

                    Submitted April 8, 2019 – Decided May 3, 2019

                    Before Judges Messano and Fasciale.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Burlington County, Docket No. L-1329-16.

                    Cohen Fineman, LLC, attorneys for appellant (Samuel
                    B. Fineman, of counsel and on the brief).

                    Capehart & Scatchard, PA, attorneys for respondent
                    (Joseph F. Betley and Sanmathi Dev, of counsel and on
                    the brief).

PER CURIAM
      Plaintiff Andre Coard appeals the Law Division's September 29, 2017

order granting defendant Oaks Integrated Care, Inc. summary judgment and

dismissing plaintiff's claims with prejudice. Plaintiff, a former employee of

defendant, alleges that he was terminated without cause and because of his race,

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

10:5-1 to -49.

                                        I.

      Plaintiff, who is African-American, began working for defendant in 2014

as a residential assistant at defendant's group home, which provides services to

autistic and developmentally challenged youth. Plaintiff's immediate supervisor

reported directly to Colleen Mosco, the program supervisor. Plaintiff premised

the allegation that he was terminated in 2016 because of his race on comments

Mosco allegedly made questioning plaintiff's ability to afford certain "luxuries,"

such as designer jeans, sneakers, rental cars, and vacations. Plaintiff claimed

these comments evidenced Mosco's racial stereotyping and led him to believe

that Mosco had a negative opinion of African-American men. In his deposition,

however, plaintiff said he "d[id] not have facts" demonstrating Mosco

discriminated against him based on his race.




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                                        2
      In December 2015, Mosco received an anonymous text message from

another employee alleging plaintiff was "smoking marijuana outside of the

group[]home" and left work to meet with strangers in the driveway of the group

home. Mosco suspended plaintiff pending an investigation. Lola Heath, an

employee in defendant's Human Resources Department, mailed plaintiff an

unemployment benefits claim form and advised plaintiff over the telephone that

he was eligible to collect unemployment benefits while suspended. However,

the claim form indicated plaintiff's "[s]eparation" was "permanent." Plaintiff

asserted defendant did this purposely, evidencing its intention to permanently

terminate his employment. Plaintiff believed he was "fired" when he received

the unemployment form.

      Plaintiff voluntarily submitted to a drug test, which was negative. In his

deposition, plaintiff acknowledged that he never called defendant after he

received the unemployment form, or after he received the negative drug test

results.

      Mosco conducted and concluded an internal investigation within two

weeks. She determined the allegations against plaintiff were unsubstantiated

and that plaintiff was eligible to return to work. Mosco tried calling him to

schedule his return on more than one occasion, but plaintiff testified in his


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                                       3
deposition that he did not return the calls. Heath also called plaintiff and left a

voicemail, but he did not return her phone call. Instead, plaintiff sent a text

message to Mosco with his attorney's contact information. On February 10,

2016, Heath sent a letter to plaintiff via certified mail terminating his

employment due to his violation of defendant's attendance and conflict

resolution policy.

      Defendant moved for summary judgment. In a concise and thorough

written statement of reasons, the motion judge determined that plaintiff's

"subjective feelings of race-based discrimination" failed to demonstrate a prima

facie violation of the LAD. The judge also decided that assuming arguendo

plaintiff did demonstrate a prima facie case, defendant provided "two legitimate

non-discriminatory reasons for [p]laintiff's dismissal," and plaintiff failed to

provide any evidence to rebut those reasons. She entered the order under review.

      On appeal, plaintiff argues that the judge erred by (1) finding that plaintiff

failed to establish a prima facie case of racial discrimination under the LAD; (2)

finding that defendant provided a legitimate, non-discriminatory reason for

plaintiff's termination; and (3) relying on unpublished decisions for the

proposition that subjective feelings of race-based bias do not establish a

discriminatory inference.


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                                         4
                                          II.

      We review the grant of summary judgment de novo, applying the same

standard used by the trial court, which

            mandates that summary judgment be granted "if the
            pleadings, depositions, answers to interrogatories and
            admissions on file, together with the affidavits, if any,
            show 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."

            [Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins.
            Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (quoting R.
            4:46-2(c)).]

We also determine "whether the competent evidential materials presented, when

viewed in the light most favorable to the non-moving party, are sufficient to

permit a rational factfinder to resolve the alleged disputed issue in favor of the

non-moving party." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406

(2014) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540

(1995)). We owe no deference to the trial court's legal analysis or interpretation

of a statute. Palisades at Fort Lee Condo. Ass'n v. 100 Old Palisade, LLC, 230

N.J. 427, 442 (2017) (citing Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009)).

      The LAD makes it illegal for an employer to discharge or discriminate

against an employee on the basis of race. N.J.S.A. 10:5-12. "If direct evidence

of discrimination is unavailable, a plaintiff may prove [his or] her claim by

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                                          5
circumstantial evidence." Grande v. St. Clare's Health Sys., 230 N.J. 1, 17

(2017). "To address the difficulty of proving discriminatory intent, New Jersey

has adopted the procedural burden-shifting methodology" articulated by the

United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973). Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005). That

burden-shifting paradigm requires:

            (1) the plaintiff must come forward with sufficient
            evidence to constitute a prima facie case of
            discrimination; (2) the defendant then must show a
            legitimate non-discriminatory reason for its decision;
            and (3) the plaintiff must then be given the opportunity
            to show that defendant's stated reason was merely a
            pretext or discriminatory in its application.

            [Henry v. N.J. Dep't of Human Servs., 204 N.J. 320,
            331 (2010) (quoting Dixon v. Rutgers, The State Univ.
            of N.J., 110 N.J. 432, 442 (1988)).]

      In an alleged discriminatory discharge case, "a plaintiff must prove that:

(1) he was in the protected group; (2) he was performing his job at a level that

met his employer's legitimate expectations; (3) he nevertheless was fired; and

(4) the employer sought someone to perform the same work after he left." Zive,

182 N.J. at 450 (citing Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 597 (1988)).

As to the fourth element, in Williams v. Pemberton Township Public Schools, —

also a race-based LAD case — we noted the federal courts' struggle in


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                                        6
determining the proper formulation of the fourth element and the varying results

across the courts. 323 N.J. Super. 490, 501 (App. Div. 1999). We concluded

that "[t]he appropriate fourth element of a plaintiff's prima facie case requires a

showing that the challenged employment decision (i.e., failure to hire, failure to

promote, wrongful discharge) took place under circumstances that give rise to

an inference of unlawful discrimination." Id. at 502 (citing Texas Dep't of Cmty.

Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

      Here, as the motion judge noted, the first three elements of plaintiff's

prima facie case are undisputed. However, we agree that plaintiff failed to

adduce any evidence that circumstantially raises an inference of unlawful

discrimination. Plaintiff argues that he demonstrated a prima facie case of

discrimination because he believed Mosco's comments about his lifestyle

equated to "a heinous racial stereotype," which in turn led to his suspension and

termination.   However, "[t]o defeat a motion for summary judgment, the

opponent must '"come forward with evidence" that creates a genuine issue of

material fact.'" Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014)

(quoting Horizon Blue Cross Blue Shield of N.J. v. State, 425 N.J. Super. 1, 32

(App. Div. 2012)). "Bare conclusory assertions, without factual support in the

record, 'will not defeat a meritorious application for summary judgment.'"


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                                        7
Horizon Blue Cross Blue Shield, 425 N.J. Super. at 32 (quoting Brae Asset Fund,

LP v. Newman, 327 N.J. Super. 129, 134 (App. Div. 1999)); accord Puder v.

Buechel, 183 N.J. 428, 440-41 (2005) ("[C]onclusory and self-serving assertions

by one of the parties are insufficient to overcome the [summary judgment]

motion.").

      At his deposition, plaintiff stated that Mosco did not reference his race

when she allegedly made these comments. Importantly, plaintiff also stated that

he did not have "any facts" to support his allegations that Mosco had racial

animus against him or African-American males in general.           In Oakley v.

Wianecki, an LAD case alleging sexual harassment in the workplace, we said

"unsubstantiated inferences and feelings" are insufficient to defeat a motion for

summary judgment. 345 N.J. Super. 194, 201 (App. Div. 2001).

      In Williams, we addressed a racial discrimination claim made by the

plaintiff, a guidance counselor, against the defendant, the employer/school's

principal. 323 N.J. Super. at 492-93. The plaintiff and the defendant did not

have an amicable relationship, and after a meeting between the two, the

defendant gave the plaintiff a list of areas that needed improvement. Id. at 493-

94. The defendant told the plaintiff that she needed to "become more teachable."

Id. at 494. We stated,


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                                       8
            [t]hroughout her argument, [the] plaintiff refers to [the
            defendant]'s use of the word "teachable" and
            characterizes it as "overtly racial." We do not agree.
            [The defendant] employed that word to describe a
            perceived characteristic of [the] plaintiff's personality.
            Although more appropriate words may have been
            available (irrespective of the racial or ethnic
            background of the person to whom [the defendant] was
            speaking), the word "teachable" does not connote racial
            animus. To accept [the] plaintiff's characterization is
            to find a racial overtone in every conversation between
            a supervisor and an employee of different ethnic or
            racial backgrounds. It would also permit an individual
            listener's subjective perception and reaction determine
            the objective question of the speaker's liability. The
            law should not find divisions where none exist.

            [Id. at 503 (emphasis added).]

      Here, the undisputed record belies any inference of racial animus, much

less termination based on invidious discrimination. Plaintiff admits that after

his negative drug test and the completion of Mosco's internal investigation,

Mosco contacted plaintiff to return to work. Plaintiff admits he never responded

and simply never returned to work.

      As a result, even were we to assume plaintiff met his burden of

demonstrating a prima facie case of discrimination under the LAD, the judge

properly determined that defendant provided legitimate, non-discriminatory

reasons for plaintiff's termination and plaintiff failed to rebut those reasons.

Under the McDonnell Douglas framework, plaintiff was required to come

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                                        9
forward with proof that defendant's reasons for termination were pretextual. "To

prove pretext, . . . a plaintiff must do more than simply show that the employer's

reason was false; [the plaintiff] must also demonstrate that the employer was

motivated by discriminatory intent." Viscik v. Fowler Equip. Co., 173 N.J. 1,

14 (2002) (citing Erickson v. Marsh & McLennan Co., 117 N.J. 539, 561 (1990))

(An "employee can be fired for false cause or no cause at all. That firing may

be unfair but it is not illegal."). "[T]he burden of proving that the employer

intentionally discriminated remains at all times with the employee." Grande,

230 N.J. at 19 (citing Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363,

383 (1988)).

      In this regard, plaintiff points to the unemployment claim form and notes

that defendant's representatives first claimed it was erroneously completed only

shortly before being deposed in this litigation.      Any significance to this,

however, is belied by plaintiff's own admission that he refused to answer

defendant's calls for his return to work. Given this admission, no rational

factfinder could conclude the unemployment benefit form raises a genuine

material factual dispute that plaintiff's termination was a pretext for

discrimination.




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                                       10
      The balance of plaintiff's arguments lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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                                      11
