SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-3397-21 

ALEXANDER CARDILLO, 

 Plaintiff-Appellant, 

v.

STATE OPERATED SCHOOL 

DISTRICT FOR THE 

CITY OF PATERSON, 

PATERSON BOARD OF 

EDUCATION, EILEEN SHAFER, 

M.ED, in her official capacity and 

individually, MONICA FLOREZ, 

in her official capacity and 

individually,

 Defendants-Respondents. 

_____________________________

Argued January 24, 2024 – Decided February 29, 2024 

Before Judges Currier and Vanek. 

On appeal from the Superior Court of New Jersey, Law 

Division, Passaic County, Docket No. L-0820-20.

Juan Carlos Fernandez argued the cause for appellant 

(Fernandez Garcia, LLC, attorneys; Michael Garcia and 

Juan Carlos Fernandez, of counsel and on the briefs). 

NOT FOR PUBLICATION WITHOUT THE 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.
2 A-3397-21

Kyle J. Trent argued the cause for respondents 

(Apruzzese, McDermott, Mastro & Murphy, PC, 

attorneys; Mark J. Blunda, of counsel and on the brief; 

Kyle J. Trent, on the brief). 

PER CURIAM 

Plaintiff Alexander Cardillo appeals the April 8, 2022 order granting 

summary judgment in favor of defendants, the Paterson Board of Education (the 

Board) and the State Operated School District for the City of Paterson (the 

District), as well as Monica Florez and Eileen Shafer, both in their official 

capacities and individually, and dismissing his disability discrimination, 

unlawful retaliation and wrongful termination claims under the New Jersey Law 

Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50, as well as the May 27, 

2022 order denying his motion for reconsideration. Because the trial court did 

not err in finding plaintiff failed to establish a prima facie case or that the 

District's reasons for terminating his employment by eliminating his position as 

part of a reduction in force (RIF) were pretext, we affirm. 

In reviewing whether summary judgment was improvidently granted, we 

view the facts set forth in the record in the light most favorable to plaintiff, the 

non-moving party. Harz v. Borough of Spring Lake, 234 N.J. 317, 329 (2018). 

In doing so, we give plaintiff "the benefit of the most favorable evidence and 
3 A-3397-21

most favorable inferences drawn from that evidence." Gormley v. Wood-El, 

218 N.J. 72, 86 (2014); see also R. 4:46-2(c). 

Plaintiff worked for the District from 2015 until June 2019, when his 

contract to work as a library media specialist (LMS) at the Martin Luther King, 

Jr. School (the MLK School) was not renewed as part of a RIF. The MLK 

School is one of more than fifty schools in the District. While plaintiff worked 

at the MLK School, principal Monica Florez was his direct supervisor and Eileen 

Shafer was the District superintendent, to whom Florez reported. During 

Florez's December 18, 2018 to March 1, 2019 leave of absence, vice principal 

Ramona Serrano was the acting principal and plaintiff's supervisor. 

During the 2018-19 school year, plaintiff began mentoring Student E,1a 

thirteen-year-old seventh-grade special education student at the MLK School 

who had an individualized education program (IEP) as part of his curriculum. 

Plaintiff asserts that at several points before and during Florez's leave of absence 

he met with the MLK School's special education team and reported he did not 

feel Student E's IEP was being adequately followed. 

1

 We identify Student E only by his initial in accordance with the motion record

and to preserve the confidentiality of the non-party minor. 
4 A-3397-21

While Florez was on leave, Serrano received several reports concerning 

plaintiff's interaction with Student E, including teachers observing plaintiff 

alone in the library with Student E in violation of school policy. Serrano 

addressed these issues with plaintiff, as well as the concern plaintiff was taking 

Student E away from assigned in-class instruction time on a "constant" basis. In 

February or March 2019, Serrano instructed plaintiff to stop taking Student E 

out of his assigned classes. However, MLK School teachers and administrators 

continued to observe plaintiff disregarding Serrano's instructions and spending 

time alone with Student E. When Florez returned to work in March 2019, she 

spoke with plaintiff about the reports of his inappropriate conduct relating to 

Student E during her absence. 

In early March 2019, a member of the MLK School staff also reported 

directly to Florez that they had seen inappropriate interactions between plaintiff 

and Student E. While in Florez's office, the staff member called the New Jersey 

Division of Child Protection and Permanency (DCP&P) to report the incident. 

At DCP&P's request and with Serrano's knowledge, Florez took steps to ensure 

plaintiff was not alone with Student E and advised other MLK School 

administrators of the same instruction during the pendency of the DCP&P 
5 A-3397-21

investigation. A school administrator was directed to be present whenever 

Student E was in the library with plaintiff. 

Despite these efforts, plaintiff's conduct toward Student E continued, and 

Florez learned that while the DCP&P investigation was continuing, plaintiff 

purchased a McDonald's lunch for Student E, gave the lunch to him in front of 

other students, and continued to allow Student E into the library alone with him 

in the mornings before school started. Plaintiff also allowed students in his book 

club, including Student E, to go into the library during their scheduled lunch 

time. Another teacher also complained that plaintiff entered and interrupted

their classroom to speak with Student E during class time. Florez again advised 

plaintiff these situations were inappropriate and in violation of school policies. 

Plaintiff alleges that around March 2019, Florez began harassing him. 

According to plaintiff, he believed the harassment was retaliation because he 

informed school administrators he believed Student E's IEP was not being 

followed. Specifically, plaintiff alleges Florez followed him around the school 

and he was uncomfortable when Florez spoke to him about being alone with 

Student E. Plaintiff said Florez intensified her harassment and attacks on him 

each time he reported student mistreatment. 
6 A-3397-21

During the same time period, the MLK School administrators learned that 

new classes of Pre-K students were being added to the MLK School student 

population. Some staff members' schedules had to be changed to accommodate 

the additional classes, the teachers' preparation periods and lunch. Since 

plaintiff's classification as a LMS qualified him to cover the Pre-K classes, 

plaintiff was assigned to assist another staff member in some of those classes. 

Plaintiff contends this scheduling change was accomplished while the DCP&P 

investigation was pending and that he was assigned to take on classes with noncommunicative students with autism as punishment for reporting the harassment 

that Florez was subjecting him to. During this time, plaintiff informed his union 

representative that some Pre-K students had removed their diapers and were 

running around the classroom. Plaintiff told Florez the new assignment was 

causing him anxiety and discomfort. Florez told him "[a]ll you need to do is go 

in and read a book to the children." 

Plaintiff asserts he has a history of depression and anxiety, for which he 

received treatment from medical professionals before, during, and after his 

employment at the MLK School. Although plaintiff contends he was 

"forthcoming" by advising both Florez and the school nurse of his "well-known" 

anxiety diagnosis, plaintiff only recounted two specific occasions during spring 
7 A-3397-21

2019 when he informed staff members at the MLK School of his mental health 

conditions. 

Plaintiff contends Florez learned of plaintiff's anxiety after he experienced 

an incident and went to see the school nurse. The only incident in the record 

correlating to this description occurred in March 2019 when Florez scolded 

plaintiff for allowing students in the library during lunch. Plaintiff says he 

suffered a panic attack as a result of the scolding and had to be escorted to the 

school nurse's office. Plaintiff took a sick day on March 15, 2019. 

Plaintiff contends that Florez would not allow plaintiff to meet privately 

with Shafer on March 18, 2019. On the same date, Florez instructed plaintiff to 

remove two students from the library, one of whom was Student E, which 

plaintiff felt was inappropriate. 

At a meeting that same day, plaintiff told Florez that she was "the person 

making [him] sick," he was anxious, and he felt targeted by her. Plaintiff 

informed Shafer that Florez was following him around the school. Shafer 

replied: "I don't want you to worry about what's going on over there, [Florez] is 

retiring very soon and, you know, don't worry about what's happening." 

Plaintiff claims that on March 19, 2019, he attempted to give Florez a 

"doctor's note" making it clear "he was under duress." However, Florez would 
8 A-3397-21

not accept the note. Plaintiff then provided the note to the school nurse and told 

the nurse he had an anxiety disorder and the note was to go in his file at the 

District's main office. Plaintiff asserts the nurse then gave the note to Florez. 

Florez denies ever seeing a note and testified that if she had received a note 

asserting an anxiety disorder, she would have given it to the District and a 

determination would be made if she could meet the accommodation. Plaintiff's 

District personnel file does not contain a document mentioning an anxiety 

disorder. 

The note plaintiff references is a February 13, 2019 letter from social 

worker, Carole M. Pasahow, DSW, LCSW, stating that "Mr. Alexander Cardillo 

has been a patient of mine since January 2014 for treatment of anxiety and 

depression." Plaintiff never provided any proof that he was diagnosed with 

anxiety and depression by a qualified physician. Plaintiff testified he was not 

seeking an accommodation when he gave the note to the nurse. 

On April 15, 2019, plaintiff went to the hospital for an anxiety attack. 

When he returned to work, he contends that Florez was standing at the front door 

and said: "I need your book club list." Plaintiff states that he walked around 

Florez and handed a secretary a doctor's note regarding his absence. 
9 A-3397-21

The DCP&P investigation concluded in April or May 2019. At Florez's 

deposition, she testified DCP&P "called to tell [her] that the case was finalized 

and there were no findings." Plaintiff's union representative learned of the 

DCP&P investigation when DCP&P officials went to Student E's house to 

conduct an interview. Plaintiff testified at his deposition that he learned of the 

then-closed DCP&P investigation on September 27, 2019. 

In May 2019, the Board "eliminated hundreds of positions in the District

through a [RIF] due to ... [a] budgetary shortfall." The 2019 RIF was one of 

several RIFs that occurred in the District almost annually due to financial issues. 

The District's initial 2019 RIF plan called for the elimination of all nontenured 

LMS positions, including plaintiff's. Only three of the fifty-two schools in the 

District were able to keep a non-tenured LMS by substituting other positions, 

increasing class sizes or not filling a vacancy which existed in that school. 

Twelve LMS positions were among the hundreds of positions eliminated by the 

RIF. 

The MLK School was required to eliminate three positions. Plaintiff's 

position was one of those that Florez recommended be eliminated, as were the 

positions of a second-grade teacher and a fourth-grade teacher. The District has 

posited there are State requirements as to how many teachers and nurses must 
10 A-3397-21

be kept on staff based on student population size, but no such requirement exists 

for the LMS position. Additionally, "[p]laintiff's schedule had the most open 

spaces and he covered significantly [fewer] classes than any other non-tenured 

staff member." 

 After Florez submitted a recommended plan for accomplishing the RIF at 

the MLK School, the Board voted to accept the proposal and eliminate the LMS 

position. Plaintiff was notified that his employment contract for the following 

year was not being renewed and his employment officially ended in June 2019. 

Plaintiff argues that Florez unilaterally made the decision as to which 

positions to eliminate and that the Board, in retaining three LMS positions in the 

District with less seniority than him, improperly applied District Policy 3146, 

which states, in part: "When two or more nontenured teaching staff members 

are employed within the category affected by a [RIF], the nontenured teaching 

staff member(s) shall be retained in that category who has demonstrated greater 

competence." 

Neither plaintiff nor his union representative filed a grievance or petition 

regarding his non-renewal and plaintiff did not request a hearing before the 

Board. Plaintiff also did not file a grievance or complaint with the District's 
11 A-3397-21

Affirmative Action Office or human resources department claiming harassment 

or discrimination while employed by the District. 

On March 11, 2020, plaintiff filed an eight-count complaint alleging the 

following: disability discrimination in violation of the LAD (count one); 

negligent supervision and training (count two); respondeat superior (count 

three); hostile work environment in violation of the LAD (count four); aiding 

and abetting as to Florez (count five); retaliation (count six); wrongful 

termination (count seven); and aiding and abetting as to Shafer (count eight). 

After discovery concluded, defendants filed a motion for summary judgment. 

On April 8, 2022, the court granted defendants' motion and dismissed the 

entirety of the complaint with prejudice for the reasons set forth in a written 

decision. 

The trial court found plaintiff had failed to present an opinion from an 

expert that he had a disability recognized under the LAD and, therefore, plaintiff 

had not set forth a prima facie case of disability discrimination. Further, the 

trial court rejected plaintiff's retaliation claims as unsubstantiated, unrelated to 

any adverse employment actions, and without a causal link to any alleged 

protected activities. The trial court also concluded plaintiff did not establish he 

was engaged in LAD-protected activities, he lacked standing to bring a case on 
12 A-3397-21

behalf of a special-needs student, and he improperly failed to exhaust 

administrative remedies as to his wrongful termination claim. 

On May 27, 2022, the court denied plaintiff's motion for reconsideration 

finding that plaintiff had not met the standard set forth in D'Atria v. D'Atria, 242 

N.J. Super. 392, 401 (Ch. Div. 1990), to warrant reconsideration of a final order. 

On reconsideration, the trial court found that plaintiff did not set forth a prima 

facie claim for discriminatory discharge since he did not establish that his LMS 

position was filled by someone else after the RIF. Although in reply to 

opposition to his motion for reconsideration, plaintiff did supply the court with 

copies of an advertisement for a District job fair in which the LMS position was 

listed as one of the positions being hired for, the court stated it did not consider 

any additional evidence submitted on the reconsideration motion that could have 

been provided in opposition to defendants' summary judgment motion. 

The trial court also found that plaintiff failed to establish causation since 

plaintiff admitted it was his belief Florez took action against him for his 

relationship with Student E, not as the result of disability discrimination. The 

trial court found plaintiff only mentioned an allegation that he was retaliated 

against for complaining that Pre-K students with autism were being treated 

improperly in a conclusory fashion by way of counsel's argument in opposition 
13 A-3397-21

to summary judgment without making the allegation anywhere in his complaint. 

Finally, the trial court found on reconsideration that plaintiff did not establish 

any evidence of pretext under the McDonnell Douglas2 burden-shifting 

framework. This appeal followed. 

On appeal, plaintiff argues the trial court erred in finding he had not 

established he had a disability nor that he was advocating on behalf of those 

with disabilities. Further, plaintiff alleges the trial court improperly relied on 

evidence not established in the record to grant summary judgment and that he 

has standing to bring each of the claims in his eight-count complaint. Plaintiff 

additionally asserts that the trial court incorrectly found the elimination of his 

position resulting from a District-wide RIF was not pretextual. 

We review a trial court's grant or denial of a motion for summary judgment 

de novo, applying the same standard applied by the trial court. Samolyk v. 

Berthe, 251 N.J. 73, 78 (2022). As a result, we are tasked with determining 

"'"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."'" C.V. v. Waterford Twp. Bd. of Educ., 255 N.J. 289, 305 (2023) 

2

 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). 
14 A-3397-21

(quoting Samolyk, 251 N.J. at 78) (quoting Brill v. Guardian Life Ins Co. of 

Am., 142 N.J. 520, 540 (1995)). 

We broadly construe and apply the protections of the LAD to allow for 

the greatest available antidiscrimination impact. Richter v. Oakland Bd. of 

Educ., 246 N.J. 507, 537 (2021). "The LAD's worthy purpose is no less than 

eradication of '"the cancer of discrimination" in our society.'" Ibid. (quoting 

Smith v. Millville Rescue Squad, 225 N.J. 373, 390 (2016) (quoting Nini v. 

Mercer Cnty. Cmty. Coll., 202 N.J. 98, 115 (2010))). 

In a discrimination claim under the LAD, it is the plaintiff who bears the 

burden to establish a prima facie case. Victor v. State, 203 N.J. 383, 408 

(2010). To succeed in proving a prima facie case, the evidentiary burden is 

"'rather modest.'" Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005) 

(quoting Marzano v. Comput. Sci. Corp., 91 F.3d 497, 508 (3d Cir. 1996)). It is 

sufficient that the plaintiff is able "to demonstrate to the court that plaintiff's 

factual scenario is compatible with discriminatory intent – i.e., that 

discrimination could be a reason for the employer's action." Ibid. (emphasis 

omitted) (quoting Marzano, 91 F.3d at 508). 

Given that claims under the LAD are to be interpreted broadly and the 

standard for summary judgment requires facts to be viewed in the light most 
15 A-3397-21

favorable to the non-moving party, the trial court's task is not to determine the 

strength of the case, but rather if plaintiff's "allegations, if true, can establish 

that defendant[] violated the LAD."  Beneduci v. Graham Curtin, P.A., 476 N.J. 

Super. 73, 82 (App. Div. 2023). "Rather than considering each incident in 

isolation, courts must consider the cumulative effect of the various incidents, 

bearing in mind 'that each successive episode has its predecessors, that the 

impact of the separate incidents may accumulate, and that the work environment 

created may exceed the sum of the individual episodes.'" Lehmann v. Toys 'R' 

Us, Inc., 132 N.J. 587, 607 (1993) (quoting Burns v. McGregor Elec. Indus. Inc., 

955 F.2d 559, 564 (8th Cir. 1992)). 

For plaintiff to succeed in demonstrating that he was improperly 

discharged because of his disability, he must establish the four factors set forth 

in Viscik v. Fowler Equipment Co., 173 N.J. 1, 14 (2002): 

that he or she (1) belongs to a protected class; (2) 

applied for or held a position for which he or she was 

objectively qualified; (3) was not hired or was 

terminated from that position; and that (4) the employer 

sought to, or did fill the position with a similarlyqualified person. 

 We turn first to the trial court's determination that plaintiff failed to 

establish that he was disabled pursuant to the standards set forth by our LAD

decisional law. The trial court found plaintiff must establish a prima facie 
16 A-3397-21

showing of a disability by way of expert opinion as a prerequisite to the viability 

of counts one (disability discrimination in violation of the LAD), four (hostile 

work environment in violation of the LAD), and five (aiding and abetting as to 

Florez). We affirm the trial court and add that establishing a disability is also 

dispositive as to count eight (aiding and abetting as to Shafer). 

 Plaintiff argues that the trial court's determination that he failed to 

establish a disability was predicated on the erroneous conclusion that he failed 

to produce expert medical testimony. Plaintiff claims he did provide expert 

testimony, but the court discredited it after improperly making credibility and 

validity determinations in place of the trier of fact. 

Under the LAD, an employee who has a disability is a member of a 

protected class. N.J.S.A. 10:5-12. Disability is defined in the LAD under 

N.J.S.A. 10:5-5(q). "Pursuant to N.J.S.A. 10:5-5(q), there are two specific 

categories of handicap: physical and non-physical. The physical and nonphysical clauses of the statute are distinct from each other and provide separate 

ways of proving handicap." Viscik, 173 N.J. at 15. "To meet the physical 

standard, a plaintiff must prove that he or she is (1) suffering from physical 

disability, infirmity, malformation or disfigurement (2) which is caused by 

bodily injury, birth defect or illness including epilepsy." Ibid. 
17 A-3397-21

To meet the non-physical standard, a plaintiff 

must prove that he or she is suffering (1) from any

mental, psychological or developmental disability (2) 

resulting from an anatomical, psychological, 

physiological or neurological condition that either (a) 

prevents the normal exercise of any bodily or mental 

functions or (b) is demonstrable, medically or 

psychologically, by accepted clinical or laboratory

diagnostic techniques. 

[Id. at 16.] 

"Where the existence of a handicap is not readily apparent, expert medical 

evidence is required. Accordingly, courts place a high premium on the use and 

strength of objective medical testimony in proving the specific elements of each 

test contained in the statute." Ibid. (internal citations omitted). 

The trial court found that plaintiff alleged in response to the summary 

judgment motion he had two disabilities: high blood pressure3 and anxiety. 

Under the standards set forth in Viscik, 173 N.J. at 15-16, the court determined 

that high blood pressure and anxiety are not disabilities that are readily apparent 

and, therefore, expert testimony was required. 

On appeal, plaintiff asserts there is "ample, competent evidence" of his 

disability in the record based on the note, which lacks a diagnosis from a 

qualified physician, and contains a conclusory sentence stating plaintiff "has 

3

 Plaintiff does not argue on appeal that high blood pressure is a disability. 
18 A-3397-21

been a patient of [hers] since 2014 for treatment of anxiety and depression." In 

deciding the summary judgment motion, the trial court recognized the note was 

the only "unverified" evidence in the record proffered on this issue. 

We conclude the trial court did not err in concluding the note was not 

expert testimony sufficient to establish a disability under the LAD. Since 

"psychiatric diagnoses are generally outside the competence of psychiatric 

social workers, appellate courts have sustained the discretion of trial courts that 

excluded such testimony." State v. Zola, 112 N.J. 384, 422 (1988) (emphasis 

omitted). Additionally, pursuant to Viscik, 173 N.J. at 16, the note fell short of 

establishing plaintiff's anxiety "either (a) prevents the normal exercise of any 

bodily or mental functions or (b) is demonstrable, medically or psychologically, 

by accepted clinical or laboratory diagnostic techniques." The single 

substantive sentence in the note fails to meet these standards and does not 

address any function that plaintiff's anxiety prevents him from undertaking or 

the demonstrability of plaintiff's anxiety. The note does not contain an actual 

diagnosis from a qualified expert predicated on facts but rather merely sets forth 

in generic terms that there was treatment. 

We find no error in the trial court's conclusion that plaintiff has not 

established a prima facie showing that he has a disability under the LAD. This 
19 A-3397-21

is sufficient basis alone to affirm the trial court's order dismissing all claims 

contingent on plaintiff establishing membership in a protected class under the 

LAD – counts one, four, five, and eight. 

Next, we turn to plaintiff's argument that the trial court improperly 

dismissed all claims for retaliation against plaintiff for LAD-protected activities 

contained in counts two (negligent supervision and training), three (respondeat 

superior), and six (retaliation). 

"[A] person engages in protected activity under the LAD when that person 

opposes any practice rendered unlawful under the LAD." Young v. Hobart W. 

Grp., 385 N.J. Super. 448, 466 (App. Div. 2005); see also Jamison v. Rockaway 

Twp. Bd. of Educ., 242 N.J. Super. 436, 445 (App. Div. 1990). 

[T]he prima facie elements of a retaliation claim under 

the LAD requires plaintiff to demonstrate that: (1)

plaintiff was in a protected class; (2) plaintiff engaged 

in protected activity known to the employer; (3) 

plaintiff was thereafter subjected to an adverse 

employment consequence; and (4) that there is a causal 

link between the protected activity and the adverse

employment consequence. 

[Victor, 203 N.J. at 409.] 

Plaintiff asserts that his "advocacy for special needs students" constitutes 

a protected activity under the LAD, and, therefore, any retaliation for those 
20 A-3397-21

actions is unlawful. Even if plaintiff's conduct was a protected activity, we 

nonetheless affirm the trial court's dismissal of counts two, three, and six since 

plaintiff has failed to produce prima facie evidence of a causal nexus. 

As part of establishing a prima facie case, a LAD claimant must 

demonstrate "there is a causal link between the protected activity and the adverse 

employment consequence." Ibid. "[C]ausal connection may be demonstrated 

by evidence of circumstances that justify an inference of retaliatory motive." 

Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 550 (App. 

Div. 1995). There is "no case that stands for the proposition that proximity is 

the only circumstance that justifies an inference of causal connection." Ibid. 

The only proffered adverse employment action in the record is the 

elimination of the LMS position that plaintiff held as a non-tenured District 

employee through the mandatory RIF. On reconsideration, the trial court found 

that "pretext cannot exist without causation" and there was "was no showing in 

the [original] motion how the RIF's financial considerations were retaliatory." 

We agree that plaintiff failed to establish prima facie evidence of a causal 

relationship between any disability or LAD-protected activity and the 

elimination of the LMS position. 
21 A-3397-21

The only evidence in the record as to the reason for the elimination of the 

LMS position that plaintiff held was the RIF. No intention to discriminate 

against plaintiff through adverse employment action was proffered or 

demonstrated. The undisputed evidence in the motion record established that 

plaintiff's position was eliminated under the RIF, along with hundreds of other 

District employee contracts that were not renewed as the result of budgetary 

constraints. We agree that plaintiff failed to proffer prima facie evidence of 

causation. 

While we conclude the trial court properly found that plaintiff did not 

establish a prima facie LAD case and the analysis could end there, we also agree 

with the trial court's determination that plaintiff failed to present evidence 

defendants' proffered reasons for the employment action were pretext to obscure 

true discriminatory intentions towards plaintiff. Under McDonnell Douglas, 

after the defendant has shown "a legitimate nondiscriminatory reason for its 

decision," "the plaintiff must then be given the opportunity to show that 

defendant's stated reason was merely a pretext or discriminatory in its 

application." Dixon v. Rutgers, The State Univ. of N.J., 110 N.J. 432, 442 

(1988). 
22 A-3397-21

To guide the liberal application of the LAD, New Jersey has adopted the 

"procedural burden-shifting methodology" set forth in McDonnell Douglas, 411 

U.S. at 802-04. Under this burden-shifting analysis, 

(1) the plaintiff must come forward with sufficient

evidence to constitute a prima facie case of 

discrimination; (2) the defendant must then show a 

legitimate nondiscriminatory 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 Hum. Servs., 204 N.J. 320, 331 

(2010) (quoting Dixon, 110 N.J. at 442).] 

For the same reasons plaintiff did not establish causation, we find the 

record lacking in evidence of pretext. The only evidence in the record as to the 

elimination of the LMS position at the MLK School was that it was 

accomplished under a mandatory RIF. The LMS position was one of three jobs

at the MLK School eliminated by the RIF, which included two elementary 

school teachers. Plaintiff also does not refute defendants' submission that, 

although the state requires a certain number of teachers and nurses at each 

school, no such requirement exists for the LMS position. Also undisputed is 

that the elimination of plaintiff's LMS position had the least disruptive impact 

on the student population because he led fewer individual classes than other nontenured positions. 
23 A-3397-21

Plaintiff's assertion that there were non-tenured employees holding LMS 

positions in the District whose contracts were renewed despite having less 

experience than him is not supported by any evidence in the record. Conversely, 

defendants point to evidence in the record that twelve LMS positions in the 

District were eliminated as part of the RIF, in addition to hundreds of other staff 

positions. Plaintiff's assertion at oral argument before us that the District has 

since rehired for his position is not substantiated by any proofs in the record 

before the trial court. See Scott v. Salerno, 297 N.J. Super. 437, 447 (App. Div. 

1997). 

We conclude the legitimate reason for the reassignment of plaintiff to 

newly added Pre-K classrooms is not disputed by any competent evidence in 

both motion records. We also reject plaintiff's argument that the non-party 

DCP&P investigation was a fiction created by defendants to justify separating 

plaintiff from Student E and changing his classroom assignment. 

Despite acknowledging that he learned of the DCP&P investigation in 

September 2019 and his union representative learned of the investigation when 

DCP&P visited Student E at home, plaintiff makes the unsupported argument 

that Florez fabricated the existence of any investigation in order to generate a 

pretextual reason for his termination. This unsupported belated assertion does 
24 A-3397-21

not create a genuine question of material fact as to pretext. DCP&P 

investigations are confidential and plaintiff had no right to notification from 

defendants and, in fact, advising plaintiff would be contrary to statute. N.J.S.A. 

9:6-8.10a(a). 

Even under the liberal application of the LAD, "[t]o prove pretext . . . a 

plaintiff must do more than simply show that the employer's reason was false; 

he or she must also demonstrate that the employer was motivated by 

discriminatory intent." Viscik, 173 N.J. at 14. Plaintiff did not present any facts 

in the record evidencing a discriminatory intent by defendants or their 

representatives. Accordingly, we see no error in the trial court's conclusions 

that plaintiff has failed to produce evidence to raise a genuine issue of pretext. 

We affirm the trial court in dismissing counts two, three, and six. 

Although we find plaintiff's remaining arguments lack merit, we will 

nonetheless briefly address each one in turn. We substantially agree with the 

trial court's determination that in order for Shafer or Florez to be liable 

individually and in the official capacities, as alleged in counts five and eight the 

District must first be found liable. See Cicchetti v. Morris Cnty. Sheriff's Off., 

194 N.J. 563, 594 (2008). Since the District is not liable under the LAD, we 
25 A-3397-21

shall not disturb dismissal of the aiding and abetting claims against the 

individual defendants. 

As to count seven, the trial court found plaintiff's claim for wrongful 

termination pursuant to New Jersey's Education Law (NJEL), N.J.S.A. 18A:1-1 

to 76-4, was not within the jurisdiction of the Law Division and could only be 

adjudicated by the Commissioner of Education. See Campione v. Adamar, Inc., 

155 N.J. 245, 261 (1998). Plaintiff clarified on appeal that this litigation only 

seeks relief for LAD-based claims that are not cognizable in a wrongful 

termination action filed with the Commissioner. Thus, we affirm the dismissal 

of plaintiff's wrongful termination claim pursuant to our LAD-based analysis. 

Affirmed.