SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-0859- 22 RONDELL HADDOCK, Plaintiff-Appellant,

v. TOWN OF CLINTON, Defendant-Respondent.

____________________ _ ____

Argued January 29, 2024

– Decided July 11, 202 4Before Judges Gilson, DeAlmeida, and BishopThompson. On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County , Docket No. L- 0119

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. Charles Z. Schalk argued the cause for appellant (S avo, Schalk, Corsini, Warner, Gillespie, O'Grodnick & Fisher, PA, attorneys; Charles Z. Schalk, of counse l and on the briefs). Stefani C. Schwartz argued the cause for respondent (Hatfield Schwartz Law Group, LLC, attorneys; Stefa ni C Schwartz, of counsel and on the brief; Andreya DiMarco, on the brief).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 0859

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PER CURIAM In this employment discrimination action, plaintiff Rondell Haddock appeals from a November 9, 2022 order granting summ ary judgment to defendant Town of Clinton (Clinton). We affirm.
I. We summarize the following facts from the record, v iewing the facts in the light most favorable to plaintiff as the non-mo ving party

. Statewide Ins. Fund v. Star Ins. Co., 253 N.J. 119, 125 (2023). I n January 2021, defendant posted a job vacancy for the full-time position of laborer with the Clinton Department of Public Works (DPW). The job posting stated, in relevant part, "[u]nder supervision, the successful applicant will perform public works tasks, including but not limited to facility maintenance . . . and any other duties assigned." The job posting stated "at a minimum " applicants were required to have a high school diploma or equivalent. Service Master, a third-party vendor, terminated ja nitorial services for Clinton in April or May of 2020 because of COVID. Thereafter, DPW employees temporarily assumed the responsibility fo r facility maintenance services in municipal buildings. Beginning in mid-2020 , Clinton posted the job vacancy for a part-time janitorial/cleaning position. That posting described ,3 A- 0859

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among other responsibilities, the duties as "clean[ ing] and maintain[ing] several small municipal buildings." The posting also state d a high school diploma or equivalent was required. On January 8, 2021, plaintiff saw the postings for laborer and janitor positions. Plaintiff

applied for the laborer position and misrepresented that he had a high school diploma. Thereafter, on February 4, 2021, plaintiff participated in a group interview with defendant's Business Administrator Richard Phelan , the Water and Roads D ivision superintendent and Roads
D ivision foreman , and the Sewer Division superintendent and foreman. At the conclusion of the interview, when asked if he had a ny questions, plaintiff responded: "No." Plaintiff claims Phelan did not state facility maintenance was a job responsibility. However, during his depositi on, plaintiff admitted Phelan had explained that the responsibilities of the labo rer position included facility maintenance and the maintenance of municipal buildi ngs. On February 25, 2021, Phelan called plaintiff and offered him the labor position . Phelan also informed plaintiff that the DPW need ed two laborers: a laborer in Water and Roads and a laborer in Sewer. Phelan asked which position plaintiff would be interested in and plaintiff replied Water and Roads. Based on plaintiff's response, Phelan then explained that as a Water and Roads laborer,4 A- 0859

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plaintiff's main responsibilities would be facility cleaning and maintenance. He restated the job responsibilities, included sweepin g, scrubbing, mopping, and vacuuming of municipal buildings. Plaintiff accept ed the position. A series of emails subsequently exchanged when plai ntiff notified Phelan that he could commence employment on March 12, 2021 , and requested a copy of the laborer job description. That day, Phelan r eplied and provided a start date of March 15, and attached an offer letter for the l aborer position. However, in the offer letter , Phelan provided a March 25 start date. The offer l etter restated the "primary responsibilities would be facility cleani ng and maintenance for municipally owned buildings," and that the laborer would be "required to provide assistance with trash collection, road/sign age maintenance and repair, snow removal, as well as water related issues, as n eeded." Phelan requested plaintiff sign and return the offer letter by March 3. On February 25, plaintiff acknowledged receipt of the offer letter and sought clarification, stating that at the interview "there was no mention of janitorial cleaning of municipal buildings," then c onsidered the primary job responsibility for a laborer. He told Phelan that he would be "more interested"
in the laborer position because he did not apply for t he posted part-time janitorial position

.5 A- 0859

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Phelan responded the next day and acknowledged pl aintiff had applied for the laborer and not the part-time janitorial positi on. Phelan restated that during the interview the "clear" expectations for facility cleaning and maintenance duties were presented to all applicants. He also confirmed that plaintiff did not have any questions regarding the roles and responsi bilities of the laborer position. Consequently, Phelan withdrew the employment offer for laborer

. Phelan sent a letter later that day confirming the withdrawal of the employment in response to plaintiff's notification that the jo b responsibilities were not to his "liking." In a reply email to Phelan, which was copied to the mayor and several council members, plaintiff expressed his disappoint ment with the offer letter and

restat ed the job responsibilities were n ot included in the job posting or discussed during the interview. He further alleged that he believe d "racism" was "a major deciding factor" after being offered a "janitor pos ition" because "[Phelan ] [d id ] not consider [him] worthy of the [l]aborer [p]ositi on in the [Water and Roads] Division of

the [D PW ]. " Plaintiff also included both the job postings he alleges he responded to, iterating that facility maintenanc e was not a listed job responsibility for either laborer or part-time jani torial/cleaning position s.6 A- 0859

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Following these emails, plaintiff was notified tha t outside counsel had been hired to conduct an investigation. Plaintiff, however, declined to participate. Instead, in March 2021, plaintiff fil ed a single count complaint alleging unlawful employment practices, harassment, and unlawful discrimination in violation of the New Jersey Law A gainst Discrimination (LAD), N.J.S.A. 10:5-1 to - 50. In July 2022, defendant moved for summary judgment. In support of its motion, defendant argued (1) plaintiff applied for the laborer position, (2) plaintiff was offered the position, and (3) plainti ff would have been required to perform the same duties as the existing DPW laborer s. In opposition, plaintiff asserted that defendant's refusal to hire him was b ased on his race and the color of his skin. In opposition to the motion, plaintif f relied on his certification and offer letters addressed to other DPW laborers betwe en 2013 and 2021 , with at least two containing the same language regarding th e primary responsibilities of facility maintenance and cleaning. The motion judge heard oral argument. O n November 9, 2022, the motion judge court granted defendant's motion and dismissed pla intiff's claim with prejudice

. The judge explained the reasons for his decision on the record. The7 A- 0859

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judge concluded plaintiff had not met his burden of proo f in establishing discrimination under the LAD

. The motion judge stated:

I can't find any weaknesses, implausibilities, inconsistencies, incoherencies[,] or contradictions in this record. Nothing . . . that was available . . . and that the plaintiff can point to during the interview pro cess, or after the interview process, or in the way the j ob was presented to him. And certainly nothing in the rec ord after the lawsuit was filed could support it. All that does is establish, corroborate that other union wor kers, other [l]aborers were doing this type of work on a regular basis before [plaintiff] was offered the po sition and obviously after he declined the position . . . . I just don 't think that there is, as I said earlier, a fact i ssue that could be presented to a jury here. That same day, the motion judge issued a supplement al statement of

rea sons . The judge found Service Master's termination of the janitorial cleaning services provided defendant with a "legitimate busi ness reason for [its] decision to routinely assign union laborer's facility mainte nance responsibilities" and other duties. The judge stated: "Those facts coul d well explain why both the oral and written offer provided to plaintiff unders cored that, at the outset of his employment, plaintiff's primary responsibility woul d be facility maintenance." Citing to the relevant case law, the motion judge restate d plaintiff had not met his burden of establishing discrimination. The judge further reasoned8 A- 0859

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plaintiff had failed to establish an adverse employ ment action. This appeal ensued.
II. Plaintiff challenges the motion judge's granting of defendant's summary judgment motion. Plaintiff argues racial discrimin ation can be established by the assignment of menial tasks that "invoke outdate d stereotypes" to the African American application offered employment by Clinton. He further argues summary judgment was inappropriate because there ar e material facts in dispute and defendant's state of mind or intent requires de termination by a jury.
We review a grant of

summary judgment de novo, applying the same standard as the trial court. Samolyk v. Berthe, 251 N.J. 73, 78 (2022). That standard requires us to "determine whether 'the pleadings, depositions, an swers
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.'" Branch

v. Cream-O-Land Dairy, 244 N.J. 567, 582 (202 1) (quoting R. 4:46 -2(c)). "Summary judgment should be granted . . . 'against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'"9 A- 0859

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Friedman v. Martinez, 242 N.J. 449, 472 (2020) (quo ting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). We do not defer to the trial court's legal analysis or statutory interpretation. RSI Bank v. Providence Mut. Fire Ins. Co. , 234 N.J. 459, 472 (2018); Perez v. Zagami, LLC, 218 N.J. 202, 209 (2014).
To establish a prima facie case for a failure to hire under the LAD, a plaintiff must show, by a preponderance of the evidence, that he "(1) belongs to a protected class, (2) applied and was qualified fo r a position for which the employer was seeking applicants, (3) was rejected d espite adequate qualifications, and (4) after rejection the position remained open, and the employer continued to seek applications for persons of plaintiff's qualifications." Bergen Commercial Bank v. Sisler, 157 N.J. 188, 210 (1999) (internal quotations removed) (citing Erickson v. Marsh & McLennan Co., 117 N.J. 539, 550 (1990)). Once plaintiff has established a prima f acie case, a presumption of

discrimination arises, and the burden then shifts to the defendant

to show a "legitimate, non -discriminatory reason" for its employment action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see also Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005). A plaintiff must then show that this reason is merely a pretext for discrimination. McDonnell Do uglas, 411 U.S.

at 804.10 A- 0859

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Before us, plaintiff renews the arguments presented before the motion judg e. Th ere is no dispute that plaintiff satisfied the firs t prong, race, to establish a prima facie case of discrimination. Pl aintiff, however, has failed to satisfy the remaining prongs. In sum, plaintiff wa s qualified for the laborer position but he "perceived" it as a janitorial position and as "demeaning, menial work without any upside potential." After plaintif f rejected the employment , defendant ultimately filled the janitorial position . Here, the undisputed facts establish that plaintiff had not and could not prove the three remaining elements to establish discrimination under LAD. Plaintiff was offered the position as labor er . He was not rejected; rather the offer was withdra wn after plaintiff stated that he did not want to do some of the required job functions. Moreover, the laborers were doing those job functions. The record also establishes that defendant's decisi on to withdraw the offer was based on legitimate, non-discriminatory reasons . In that regard, defendant explained that after Service Master's stopped provi ding janitorial services it added those responsibilities to the responsibilities of a laborer. It is undisputable that defendant then explained those duties to plain tiff in both the oral and written employment offers. In response, plaintiff offered "no proof of pretext" by11 A- 0859

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defendant and he did not, therefore, support his al legation of a discriminatory motive or intent. Plaintiff also failed to present facts overcoming t he presumption of non discrimination

. See Williams v. Pemberton Twp. Pub. Schs., 323 N.J. Super. 490 , 503 (App. Div. 1999). The record shows plaintiff proffered a self-serving certification claiming race was a "major factor" in defendant offering a "perceived" janitorial position. That "'conclusory and self-serving assertion by [plaintiff was] insufficient to overcome' [a motion for] summary judgment." Dickson v. Cnty. Bus Lines, Inc., 458 N.J. Super. 5 22, 533 (App. Div. 2019) (quoting Puder v. Buechel, 183 N.J. 428, 440-41 (20 05)). Plaintiff also advanced a disparate impact claim, asserting that defendant has no black employees in the Water and Roads Division

. Yet, plaintiff did not retain a statistical expert to support h is disparate impact claims with scientific analysis; rather, he relied upon the U.S. Census Bureau. "Population Estimates , July 1, 2021

– Hunterdon County. Quick Facts." Th us, the record lacks any evidentiary support because those data points in is olation were insufficient to establish a prima facie case of disparate impact. See Wards Cove Packing Co. v. Atonio, 490 U.S. 642 , 657

- 58 (1989).12 A- 0859

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We conclude n o genuine issue of material fact exists, and those fa cts which are material do not constitute support for pl aintiff's causes of action. Accordingly, plaintiff failed to establish a prima facie case of racial discrimination and summary judgment was correctly g ranted to defendant. Affirmed.