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 i ndividually, MONICA FLOREZ, in her official capacity and i ndividually, Defendants-Respondents.

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Argued January 24, 2024

– Decided February 29, 2024 Before Judges Currier and Vanek. On appeal from the Superior Court of New Jersey, Law Divisi on, Passaic County, Docket No. L-0 820

- 20. Juan Carlos Fernandez argued the cause for appellan t (Fernandez Garcia, LLC, attorneys; Michael Garcia a nd 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. 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 br ief; Kyle J. Trent, on the brief).
PER CURIAM Plaintiff Alexander Cardillo appeals the April 8, 2 022 order granting summary judgment in favor of defendants, the Paters on Board of Education (the Board) and the State Operated School District for t he City of Paterson (the District), as well as Monica Florez and Eileen Shaf er, both in their official capacities and individually , and dismissing his disability discrimination , unlawful retaliation and wrongful termination claim s 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 i n force (RIF) were pretext, we affirm. In reviewing whether summary judgment was improvide ntly granted, w e 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 and3 A- 3397

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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 Lut her 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 Flo rez reported. During Florez's December 18, 2018 to March 1, 2019 leave o f absence , vice principal Ramona Serrano was the acting principal and plainti ff's supervisor. During the 2018-19 school year, plaintiff began men toring Student E, 1 a thirteen-year-old seventh-grade special education s tudent at the MLK School who had an individualized education program (IEP) a s 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

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While Florez was on leave, Serrano received several reports concerning plaintiff's interaction with Student E, including t eachers 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 plaintif f to stop taking Student E out of his assigned class es . 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 inapp ropriate conduct relating to Student E during her absence. In early March 2019, a member of the MLK School sta ff also reported directly to Florez that they had seen inappropriate inte ractions 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, Fl orez took steps to ensure plaintiff was not alone with Student E and advised other MLK School administrators of the same instruction during the p endency of the DCP&P5 A- 3397

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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 S tudent E continued, and Florez learned that while the DCP&P investigation w as continuing, plaintiff purchased a McDonald's lunch for Student E, gave th e lunch to him in front of other students, and continued to allow Student E in to the library alone with him in the mornings before school started. Plaintiff a lso allow ed students in his book club, includ ing Student E, to go into the library during their sche duled lunch time. Another teacher also complained that plainti ff enter ed and interrupt ed their classroom to speak with Student E during class time. Florez agai n advised plaintiff these situations were inappropriate and i n violation of school policies. Plaintiff alleges that around March 2019, Florez be gan 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 f ollowed him around the school and he was uncomfortable when Florez spoke to him a bout being alone with Student E. Plaintiff said Florez intensified her h arassment and attacks on him each time he reported student mistreatment.6 A- 3397

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During the same time period, the MLK School administ rators learned that new classes of

Pre-K students were being added to the MLK School student population. Some staff members' schedules had to b e changed to accommodate the additional classes, the teachers' preparation p eriods and lunch. Since plaintiff's classification as a LMS qualified him t o cover the Pre-K classes, plaintiff was assigned to assist another staff memb er in some of those classes. Plaintiff contends this scheduling change was accom plished whi le the DCP&P investigation was pending and that he was assigned to t ake on classes with noncommunicative students with auti sm as punishment for reporting the harassment that Florez was subjecting him to. During this tim e, plaintiff informed his union representative that some Pre- K students had removed their diapers and were running around the classroom. Plaintiff told Flore z 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 an d anxiety, for which he received treatment from medical professionals befor e, during, and after his employment at the MLK School. Although plaintiff c ontends he was "forthcoming" by advising both Florez and the schoo l nurse of his "well-known" anxiety diagnosis, plaintiff only recounted two spe cific occasions during spring7 A- 3397

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2019 when he informed staff members at the MLK School of his mental health conditions. Plaintiff contends Florez learned of plaintiff's an xiety 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 2 019 when Florez scolded plaintiff for allowing students in the library duri ng 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 o n March 15, 2019

. Plaintiff contends that Florez would not allow plai ntiff to meet privately with Shafer on March 18, 2019. On the same date, Florez i nstructed plaintiff to remove two students from the library, one of whom w as Student E, which plaintiff felt was inappropriate. At a meeting that same day, plaintiff told Florez t hat she was "the person making [him] sick," he was anxious, and he felt tar geted by her. Plaintiff informed Shafer that Florez was following him aroun d the school. Shafer replied: "I don't want you to worry about what's go ing 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 attempt ed to give Florez a "doctor's note" making it clear "he was under dures s." However, Florez would8 A- 3397

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not accept the note. Plaintiff then provided the no te to the school nurse and told the nurse he had an anxiety disorder and the note w as to go in his file at the District's main office. Plaintiff asserts the nurs e 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 a ccommodation. Plaintiff's District personnel file does not contain a document mention ing an anxiety disorder. The note plaintiff references is a February 13, 201 9 letter from social worker, Carole M. Pasahow, DSW, LCSW, stating that "Mr. Alexander Cardillo has been a patient of mine since January 2014 for t reatment of anxiety and depression." Plaintiff never provided any proof th at he was diagnosed with anxiety and depression by a qualified physician. P laintiff testified he was not seeking an accommodation when he gave the n ote to the nurse. On April 15, 2019, plaintiff went to the hospital f or an anxiety attack. When he returned to work, he contends that Florez w as 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 regar ding his absence.9 A- 3397

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The DCP&P investigation concluded in April or May 2 019. At Florez's deposition, she testified DCP&P "called to tell [he r] that the case was finalized and there were no findings." Plaintiff's union rep resentative learned of the DCP&P investigation when DC P&P officials went to Student E's house to conduct an interview. Plaintiff testified at his d eposition that he learned of the then-closed DCP&P investigation on September 27, 20 19. 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 a nnually due to financial issues. The District's initial 2019 RIF plan called for the elimination of all nontenured
LMS position s, including plaintiff's. Only three of the fifty- two schools in the District were able to keep a non-tenured LMS by sub stituting other positions, increasing class sizes or not filling a vacancy whi ch existed in that school. Twelve LMS positions were among the hundreds of pos itions eliminated by the
RIF. The MLK School was required to eliminate three posi tions. 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 must10 A- 3397

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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 acco mplishing the RIF at the MLK School, the Board voted to accept the proposal and e liminate the LMS
po sition. Plaintiff was notified that his employment contract for the following year was not being renewed and his employment offic ially 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 a pplied District Policy 3146, which states, in part: "When two or more nontenure d 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 file d a grievance or petition regarding his non-renewal and plaintiff did not req uest a hearing before the Board. Plaintiff also did not file a grievance or complain t with the District's11 A- 3397

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Affirmative Action Office or human resources depart ment claiming harassment

or discrimination while employed by the District. On March 11, 2020, plaintiff filed an eight-count c omplaint alleging the following: disability discrimination in violation of the LAD (count one); negligent supervision and training (count two); res pondeat superior (count three); hostile work environment in violation of th e 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 motio n for summary judgment. On April 8, 2022, the court granted defendants' mot ion and dismissed the entirety of the complaint with prejudice for the re asons set forth in a written decision. The trial court found plaintiff had failed to prese nt an opinion from an expert that he had a disability recognized under th e 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 causa l link to any alleged protected activities. The trial court also conclud ed plaintiff did not establish he was engaged in LAD-protected activities, he lacked standing to bring a case on12 A- 3397

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behalf of a special-needs student, and he improperly failed to exhaust administrative remedies as to his wrongful terminat ion claim. On May 27, 2022, the court denied plaintiff's motio n 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 plai ntiff did not set forth a prima facie claim for discriminatory discharge since he d id 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 t he 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 reconsider ation 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 ac tion against him for his relationship with Student E, not as the result of d isability discrimination. The trial court found plaintiff only mentioned an alleg ation that he was retaliated against for complaining that Pre-K students with au tism were being treated improperly in a conclusory fashion by way of counse l's argument in opposition13 A- 3397

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to summary judgment without making the allegation any where in his complaint. Finally, the trial court found on reconsideration t hat plaintiff did not establish any evidence of pretext under the McDonnell Douglas 2 burden-shifting framework. This appeal followed. On appeal, plaintiff argues the trial court erred i n finding he had not established he had a disability nor that he was adv ocating 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 eig ht-count complaint. Plaintiff additionally asserts that the trial court incorrect ly found the elimination of his position resulting from a District-wide RIF was not pretext ual. We review a trial court's grant or denial of a moti on 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 ar e tasked with determining

"' "whether the competent evidential materials present ed, when viewed in the light most favorable to the non-moving party, are s ufficient 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

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(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 th e 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 o ur 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, 50 8 (3d Cir. 1996)). It is sufficient that the plaintiff is able "to demonstra te 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 interpret ed broadly and the standard for summary judgment requires facts to be viewed in the light most15 A- 3397

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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 "al legations, 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 consi dering each incident in isolation, courts must consider the cumulative effe ct of the various incidents, bearing in mind 'that each successive episode has i ts predecessors, that the impact of the separate incidents may accumulate, an d that the work environment created may exceed the sum of the individual episod es. '" 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 w as improperly discharged because of his disability, he must estab lish the four factors set forth
in Viscik v. Fowler Equipment Co., 173 N.J. 1, 14 (200 2):

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 emp loyer sought to, or did fill the position with a similarl yqualified person. We turn first to the trial court's determination t hat plaintiff failed to establish that he was disabled pursuant to the stan dards set forth by our LAD decisional law. The trial court found plaintiff mu st establish a prima facie16 A- 3397

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showing of a disability by way of expert opinion as a prerequi site to the viability of counts one (disability discrimination in violati on 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 es tablishing a disability is also dispositive as to count eight (aiding and abetting as to Shafer). Plaintiff argues that the trial court's determinat ion that he failed to establish a disability was predicated on the errone ous conclusion that he failed to produce expert medical testimony. Plaintiff cla ims he did provide expert testimony, but the court discredited it after impro perly making credibility and validity determinations in place of the trier of fa ct. 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 spec ific categories of handicap: physical and non-physical. The physical and nonphysical clauses of the statute are distinct from e ach 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 disfiguremen t (2) which is caused by bodily injury, birth defect or illness including ep ilepsy." 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 menta l 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 a pparent, expert medical evidence is required. Accordingly, courts place a high premium on the use and strength of objective medical testimony in proving t he specific elements of each test contained in the statute." I bid. (internal citations omitted). The trial court found that plaintiff alleged in res ponse to the summary judgment motion he had two disabilities: high bloo d pressure 3 and anxiety

. Under the standards set forth in Viscik, 173 N.J. a t 15-16, the court determined that high blood pressure and anxiety are not disabi lities that are readily apparent and, therefore, expert testimony was required. On appeal, plaintiff asserts there is "ample, compe tent evidence" of his disability in the record based on the note, which l acks a diagnosis from a qualified physician, and contains a conclusory sent ence stating plaintiff "has

3 Plaintiff does not argue on appeal that high bloo d pressure is a disability.18 A- 3397

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been a patient of [hers] since 2014 for treatment o f anxiety and depression." In deciding the summary judgment motion, the trial cou rt recognized the note was the only "unverified" evidence in the record proffe red on this issue

. We conclude the trial court did not err in concludi ng the n ote was not expert testimony sufficient to establish a disabili ty under the LAD. Since "psychiatric diagnoses are generally outside the co mpetence 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, p ursuant to Viscik, 173 N.J. at 16, the n ote fell short of establishing plaintiff's anxiety "either (a) preven ts the normal exercise of any bodily or mental functions or (b) is demonstrable, m edically or psychologically, by accepted clinical or laboratory diagnostic techn iques." The single substantive sentence in the n ote fails to meet these standards and does not address any function that plaintiff's anxiety preve nts him from undertaking or the demonstrability of plaintiff's anxiety. The n ote does not contain an actual di agnosis from a qualified expert predicated on facts but rather merely sets forth in generic terms th at 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 dis ability under the LAD. This19 A- 3397

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is sufficient basis alone to affirm the trial court 's order dismiss ing 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 tria l court improperly dismissed all claims for retaliation against plaint iff 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 LA D." 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. D iv. 1990).

[T]he prima facie elements of a retaliation claim u nder the LAD requires plaintiff to demonstrate that: (1) plaintiff was in a protected class; (2) plaintiff e ngaged 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 ne eds students" constitutes a protected activity under the LAD, and, therefore, any retaliation for those20 A- 3397

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actions is unlawful. Even if plaintiff's conduct w as a protected activity, we nonetheless affirm the trial court's dismissal of c ounts two, three, and six since plaintiff has failed to produce prima facie evidenc e of a causal nexus. As part of establishing a prima facie case, a LAD claimant must demonstrate "there is a causal link between the pro tected activity and the adverse employment consequence." Ibid. "[C]ausal connection may be demonstrated by evidence of circumstances that justify an infere nce of retaliatory motive." Romano v. Brown & Williamson Tobacco Corp., 284 N.J . Super. 543, 550 (App. Div. 1995). Th ere is "no case that stands for the proposition tha t proximity is the only circumstance that justifies an inference o f 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 reconsideratio n, the trial court found that "pretext cannot exist without causation" and t here was "was no showing in the [original] motion how the RIF's financial consi derations were retaliatory." We agree that plaintiff failed to establish prima f acie evidence of a causal relationship between a ny disability or LAD -protected activity and the elimination of the LMS position.21 A- 3397

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The only evidence in the record as to the reason fo r the elimination of the LMS position that plaintiff held was the RIF. No i ntention to discriminate against plaintiff through adverse employment action was proffered or demonstrated. The undisputed evidence in the motio n record established that plaintiff's position was eliminated under the RIF , along with hundreds of other District employee contracts that were not renewed a s the result of budgetary constraints. We agree that plaintiff failed to pro ffer prima facie evidence of causation. While we conclude the trial court properly found th at plaintiff did not establish a prima facie LAD case and the analysis could end the re, we also agree with the trial court's determination that plaintiff fail ed to present evidence defendants' proffered reasons for the employment ac tion were pretext to obscure true discriminatory intentions towards plaintiff. Under McDonnell Douglas , after the defendant has shown "a legitimate nondisc riminatory reason for its decision," "the plaintiff must then be given the op portunity to show that defendant's stated reason was merely a pretext or d iscriminatory in its application ." Dixon v. Rutgers, The State Univ. of N.J., 110 N.J. 432, 442 (1988).22 A- 3397

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To guide the liberal application of the LAD, New Je rsey has adopted the "procedural burden-shifting methodology" set forth i n 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 decisio n; and (3) the plaintiff must then be given the opport unity 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 ca usation, we find the record lacking in evidence of pretext. The only ev idence in the record as to the elimination of the LMS position at the MLK School w as that it was accomplished under a mandatory RIF. The LMS positi on was one of three jobs at the MLK School eliminated by the RIF, which incl uded two elementary school teachers. Plaintiff also does not refute de fendants' submission that , although the state requires a certain number of tea chers and nurses at each school, no such requirement exists for the LMS posi tion. Also undisputed is that the elimination of plaintiff's LMS position had the least disruptive impact on the student population because he led fewer indi vidual classes than other nontenured positions.23 A- 3397

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Plaintiff's assertion that there were non-tenured e mployees holding LMS positions in the District whose contracts were renewed despit e having less experience than him is not supported by any evidenc e in the record. Conversely, defendants point to evidence in the record that twe lve LMS positions in the District were eliminated as part of the RIF, in add ition to hundreds of other staff positions. Plaintiff's assertion at oral argument before us th at 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 reassignmen t of plaintiff to newly added Pre-K classrooms is not disputed by any competent evidence in both motion records. We also reject plaintiff's argumen t that the non-party DCP&P investigation was a fiction created by defend ants 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 th e unsupported argument that Florez fabricated the existence of any investi gation in order to generate a pretextual reason for his termination. This unsupp orted be lated assertion does24 A- 3397

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not create a genuine question of material fact as t o pretext. DCP&P investigations are confidential and plaintiff had n o 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 em ployer's reason was false; he or she must also demonstrate that the employer w as 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, w e see no error in the trial court's conclusions that plaintiff has failed to produce evidence to ra ise 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 s ubstantially agree with the trial court's determination that in order for Shafe r 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 (2 008 ). Since the District is not liable under the LAD, w e25 A- 3397

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shall not disturb dismissal of the aiding and abett ing 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. Adam ar, Inc. , 155 N.J. 245, 261 (1998). Pl aintiff clarified on appeal that this litigation on ly seeks relief for LAD-based claims that are not cogn izable in a wrongful termination action filed with the Commissioner. Th us, we affirm the dismissal of plaintiff's wrongful termination claim pursuant to our LAD -based analysis. Affirmed.