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

NOT FOR PUBLICATION WITHOUT THE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.
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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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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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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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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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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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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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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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[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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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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The balance of plaintiff's arguments lack sufficient merit to warrant 

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

Affirmed.