Nicolas v. Bd. of Educ.

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ALEXANDER NICOLAS, Plaintiff-Appellant, v. TRENTON BOARD OF EDUCATION, FREDERICK H. MCDOWELL, JR., in his individual and official capacity, LISSA JOHNSON, in her individual and official capacity, Defendants-Respondents.

No. A-4039-21

Superior Court of New Jersey, Appellate Division

January 17, 2024

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.

Argued November 28, 2023

On appeal from the Superior Court of New Jersey, Law Division Mercer County, Docket No. L-1718-18.

Alexander Nicolas, appellant, argued the cause pro se.

Cherie Lee Adams argued the cause for respondents (Adams Gutierrez & Lattiboudere, LLC, attorneys; Cherie Lee Adams, of counsel and on the brief; Audra A. Pondish, on the brief).

Before Judges Natali and Puglisi.

PER CURIAM

Plaintiff Alexander Nicolas appeals from an August 5, 2022 Law Division order granting summary judgment to defendants Trenton Board of Education, Frederick H. McDowell, Jr., and Lissa Johnson (collectively, defendants) and dismissing with prejudice his complaint alleging employment discrimination in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A 10:5-1 to -50. We affirm.

I.

We begin by reviewing the facts in the summary judgment record taken in the light most favorable to plaintiff as the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Plaintiff is a Spanish teacher in the Trenton School District with over twenty years of education experience. He is a naturalized American citizen from Panama and holds Bachelor of Science, Master of Education, and Doctor of Philosophy degrees, as well as New Jersey certificates to be a world language teacher, supervisor, principal, and school administrator; Florida certificates to be a world language teacher and principal; and a Pennsylvania certificate to be a principal. Defendant McDowell was the superintendent of schools for the Board between July 2017 and August 2019, and defendant Johnson was the assistant superintendent overseeing the Board's human resources department between June 2015 and June 2018.

The genesis of the parties' dispute arose in 2007 when plaintiff began working as a teacher leader at Daylight/Twilight High School in Trenton. As he testified at his deposition, his responsibilities included "scheduling, meeting with the teachers, conducting staff meetings, [and] all the responsibilities [of] the head administrator." Plaintiff also stated, however, the position was essentially "powerless" because it "could not make administrative decisions to restructure and run the school operation, or . . . on staff placement." He claims to have "repeatedly attempted to contact administration" about problems at Daylight/Twilight such as poor working conditions and lack of necessary resources and staff, but the Board refused to address his complaints.

As a result, plaintiff averred he suffered physical, mental, and psychological problems resulting in his hospitalization and eventually extended sick leave. He filed a complaint with the Equal Employment Opportunity Commission (EEOC) in 2008 which was "closed with a [n]o [c]ause determination." The teacher leader position at Daylight/Twilight was eliminated in the 2008-2009 school year.

In November 2011, plaintiff and his wife, Vashti Nicolas, filed a Law Division complaint against the Board, its then-current superintendent and two assistant superintendents, which included LAD claims substantially similar to those brought here. In that complaint, plaintiff asserted he applied for multiple administrative positions between 2005 and 2007, and in 2010, but the Board hired less qualified applicants outside his protected class.

In February 2016, the Board and plaintiff, while represented by counsel, entered a settlement agreement covering "all claims between the parties arising from [p]laintiff's employment with the Board . . . up to and through the date of th[e] [a]greement, including, but not limited to, all claims arising under any employment-related law . . . [and] all claims for discrimination . . . ." Plaintiff further agreed to release all claims against the Board "resulting from anything which has happened up until and through the date of execution of th[e] [a]greement" and to dismiss the 2011 complaint with prejudice.

The Board denied any liability but agreed to waive its claim for reimbursement of its contribution toward plaintiff's health insurance, provide certain documents to plaintiff, and remove certain items from plaintiff's official personnel file. Both parties also agreed "not to retaliate against each other," but the agreement did not define the term "retaliate."

Plaintiff alleged in his complaint the settlement agreement was entered "under the preten[s]e that the new administration of the [Board] w[ould] consider [p]laintiff for upcoming administrative positions." The language of the agreement, however, includes no such provision and, in fact, expressly states it "sets forth the complete understanding and entire [a]greement between the [p]arties" and "[b]y executing this [a]greement, [p]laintiff represents and acknowledges that he does not rely, and has not relied upon, any representation or statement not set forth in this [a]greement . . . ."

Between 2011 and 2017, plaintiff claims he applied for numerous open administrative positions with the Board, each of which he was qualified for, but was not interviewed or hired due to his national origin and the past and current litigation between the parties. Instead, plaintiff averred, the Board again hired less qualified individuals outside his protected class. As a result, plaintiff filed a second EEOC complaint in September 2017, again alleging the Board discriminated against him. The EEOC found it was "unable to conclude that the information [provided] established a violation of law" and informed plaintiff he "had the right to initiate a private cause of action."

On August 3, 2018, plaintiff and his wife, acting pro se, filed the complaint at issue here, asserting LAD claims based on racial/national origin discrimination, retaliation by failure to promote or hire, aiding and abetting discrimination based on retaliation by failure to promote and refusal to interview. Plaintiff sought compensatory and punitive damages, front-pay, back-pay, and attorneys' fees and costs. Plaintiff later amended his complaint to remove his wife as a plaintiff and add claims for breach of contract and guaranty, based on defendants' alleged breach of the non-retaliation provision of the settlement agreement, contrary to the LAD and Title VII of the Civil Rights Act of 1964.

Before us, plaintiff argues he submitted "300 applications . . . for administrative positions with the [Board]" and his claims are "not just based on a few positions." In support, he submitted his application submission history for Board positions and job descriptions for certain positions sought. His complaint, however, provided specific details for only six positions.

Specifically, plaintiff stated he applied for two "[d]istrict [w]ide" principal positions, one of which related to focus and priority schools,^[1] on July 7, 2017. Next, plaintiff asserted he applied for the principal positions at Grant and Robbins Elementary Schools on July 15, 2017. Finally, he stated he applied to be a special education supervisor on November 4, 2017, and a "S[TEM]^[2]Elementary" supervisor on an unspecified date.

Following the amendment of the complaint, defendants removed the action to federal court, asserting plaintiff's invocation of Title VII implicated a federal question. Plaintiff moved to remand which the court granted after finding plaintiff's claims sounded in state law and cited Title VII only as "one of multiple sources for a standard of retaliation to support his state law claim."

On remand, defendants jointly moved to dismiss under Rule 4:6-2(e). In support, they argued: (1) all claims accruing prior to February 22, 2016 were barred by the release in the settlement agreement, (2) all claims accruing prior to August 3, 2016 were time-barred by the LAD's two-year statute of limitations, and (3) plaintiff failed to establish the necessary elements for any of his claims.

After hearing oral arguments, the court issued a written order on March 13, 2020 granting in part and denying in part defendants' motion. The court agreed with defendants that the portions of plaintiff's claims accruing prior to February 22, 2016 were barred by the settlement agreement and those accruing prior to August 3, 2016 were barred by the statute of limitations. It also dismissed the breach of guaranty claim without prejudice.^[3]

Defendants thereafter jointly moved for summary judgment, reprising many of the arguments presented in their Rule 4:6-2(e) dismissal motion. Defendants asserted plaintiff was unqualified for the positions he sought and therefore could not establish discrimination under a failure to hire or promote theory. On this point, they noted plaintiff did not possess an educational services or special education certificate, "five years of successful administrative or supervisory experience in special education," or "an educational services certificate as a child study team member," as required to be a special education supervisor, or the mathematics or science certificate required to be a STEM supervisor.

Defendants also maintained plaintiff lacked sufficient administrative or supervisory experience, three years of which was required for any principal position, and five years of which was required for principal at a focus and...