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

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

NOT FOR PUBLICATION WITHOUT THE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.

July 18, 2018
2 A-3453-16T4

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 
3 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.
4 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 
5 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. 
6 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, 
7 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.
8 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 topranking external candidate, who accepted in August 2013.

Following discovery, the University moved for summary 

judgment based on those undisputed facts. Plaintiff opposed, 
9 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 
10 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 
11 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 
12 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
13 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 
14 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 
15 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.