N.W. VS. GREATER EGG HARBOR REGIONAL HIGH SCHOOL DISTRICT (L-2302-15, ATLANTIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2018 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5079-16T4
N.W., by his Parent and Guardian
J.W.,
Plaintiff-Appellant,
v.
GREATER EGG HARBOR
REGIONAL HIGH SCHOOL
DISTRICT,
Defendant-Respondent.
___________________________
Argued October 30, 2018 – Decided December 5, 2018
Before Judges Hoffman, Geiger and Firko.
On appeal from Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. L-2302-15.
Deborah L. Mains argued the cause for appellant
(Costello & Mains, LLC, attorneys; Deborah L. Mains,
on the brief).
Timothy R. Bieg argued the cause for respondent
(Madden & Madden, PA, attorneys; Timothy R. Bieg,
on the brief).
PER CURIAM
Plaintiff N.W., by his parent and guardian, J.W., 1 appeals from a June 16,
2017 order granting defendant Greater Egg Harbor Regional High School
District summary judgment dismissing the complaint and denying plaintiff's oral
motion to amend the complaint. We affirm.
We derive the following facts from evidence submitted by the parties in
support of, and in opposition to, the summary judgment motion, viewed in the
light most favorable to the opposing party. Angland v. Mountain Creek Resort,
Inc., 213 N.J. 573, 577 (2013) (citing Brill v. Guardian Life Ins. Co., 142 N.J.
520, 523 (1995)).
On April 28, 2015, plaintiff, an African-American student at Absegami
High School during the 2014-2015 school year, stayed after school and went to
the cafeteria. An unnamed security guard and Vice Principal Brian Aron entered
the cafeteria and told the students they had to leave. As a result, plaintiff and
his friends left the cafeteria and walked to the school's main entrance. Some of
the group had exited, while plaintiff and several other students were still inside.
Security guard Joseph Blazo, Aron, and Vice Principal Leslie Madison were
escorting the remaining students out of the building. The students were told
1
We use initials to protect plaintiff's identity.
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they needed to leave the building. Several students mocked the Vice Principals,
did not listen, and were otherwise misbehaving. At this point, Blazo raised his
voice and told the students it was time to leave the building. This occurred after
school had ended for the day.
Blazo pushed plaintiff on his book bag, "causing him to stumble out the
door." Plaintiff then told Blazo "not to put his f–ing hands on me, don't touch
me," and "to take his big A into school." Plaintiff repeated his statements three
times. Blazo "grabbed" plaintiff's right wrist and held it for about two seconds.
In response, plaintiff smacked Blazo's hand and once again stated, "don't fucking
touch me." Blazo responded, "Oh yeah? Oh yeah? You fucking nigger!"
Plaintiff claims Blazo's racist remark caused him pain and suffering, and
embarrassed him, which he asserts is the same emotional response "any
reasonable African-American exposed to the same racially hostile language"
would experience. He alleges the discrimination "discouraged [him] from
returning to and enjoying the school, a place of public accommodation."
Plaintiff did not see a doctor or therapist as a result of Blazo's conduct; however,
he claims the incident affected him to the extent that he did not want to go to
school, and if he did, he would arrive late to avoid Blazo.
A-5079-16T4
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Following the incident on April 28, 2015, plaintiff had no further contact
with Blazo and continued to attend Absegami High School. No employee ever
directly prevented plaintiff from attending the school.
Defendant investigated plaintiff's allegations by viewing a video that
captured part of the incident and taking statements from the witnesses, plaintiff,
and Blazo. Defendant concluded the allegation Blazo pushed plaintiff out the
door was not corroborated by the other students or the video. Based on a
discrepancy between the witnesses' accounts and the video, the nature of Blazo's
contact with plaintiff was undetermined. Defendant found that after being
contacted by Blazo, plaintiff pulled away, swung his arm down and back, and
made contact with Blazo. The investigation concluded it was "plausible" that
Blazo said "f*cking n*gger" during the incident. Blazo received a five-day
suspension without pay and was required to undergo Harassment, Intimidation,
and Bullying Awareness training and Crisis and Intervention training.
Plaintiff filed this action on October 8, 2015, claiming defendant
discriminated against him "in the course of a public accommodation," in
violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-
1 to -49. Although Blazo was employed by defendant, plaintiff did not name
him as a defendant.
A-5079-16T4
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The parties engaged in extensive discovery, which concluded on April 25,
2017. Defendant then moved for summary judgment, contending this was a
single incident of unauthorized conduct by a low-level employee who is not part
of the school's administration, and has no policy-making authority. Defendant
argued there was no evidence it was aware of, supported, or sanctioned any prior
discriminatory conduct by Blazo. Defendant did not bar plaintiff from attending
the school and contends it took prompt remedial action in response,
demonstrating it did not condone, acquiesce in, or support the alleged conduct .
Defendant further argued there was no evidence it acted with an actual or
apparent design to discourage plaintiff from attending the school. Relying in
part on an unpublished opinion, defendant argued it was not strictly liable for
the unauthorized acts of its employee in a denial of public accommodation case
under N.J.S.A. 10:5-12(f)(1).
Plaintiff contends the school is a place of public accommodation within
the meaning of the LAD. Plaintiff argued his testimony regarding his treatment
by Blazo is sufficient to defeat summary judgment, and defendant's response to
the incident is not an affirmative defense to a claim of public accommod ation
discrimination. Plaintiff relied on the language of the LAD, which provides it
shall be unlawful discrimination "[f]or any owner . . . or employee of any place
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of public accommodation directly or indirectly to refuse, withhold from or deny
to any person any of the accommodations, advantages, facilities or privileges
thereof, or to discriminate against any person in the furnishing thereof . . . ."
N.J.S.A. 10:5-12(f)(1). Because Blazo was defendant's employee, plaintiff
argued defendant is vicariously liable for his discriminatory conduct.
During oral argument before the motion judge, plaintiff acknowledged
this is a single incident case. The court granted summary judgment to defendant,
dismissing the complaint with prejudice. The judge held Blazo's racially
disparaging remark was clearly outside the scope of his employment. The judge
noted plaintiff did not suggest the school board's response to the incident "was
anything other than appropriate remedial action." The judge concluded this was
"an isolated remark made by one security officer. There's no evidence of any
hostile or pervasive environment of discrimination." The judge determined
N.J.S.A. 10:5-12(f)(1) does not impose "strict liability on the part of the school
board for the actions of the employee." The judge further determined that while
an employee can be held responsible for discriminatory conduct, the statute
"does not go [so] far as to create vicarious liability on the part of the employer
for actions of an employee that are outside the scope of [the] employment
relationship."
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After the judge announced his decision, plaintiff orally moved to amend
the complaint, but did not present a proposed amended pleading. The court
denied the oral motion. This appeal followed. Plaintiff makes the same
arguments on appeal that it made before the trial court. 2
We review an order granting summary judgment by employing the same
standards governing the trial court. Lee v. Brown, 232 N.J. 114, 126 (2018)
(citing Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 349-50 (2016);
Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016)). Summary judgment is
appropriate when, after reviewing the competent evidential materials submitted
by the parties in the light most favorable to the non-moving party, there are no
genuine issues of material fact and the moving party is entitled to a judgment as
a matter of law. Grande v. St. Clare's Health Sys., 230 N.J. 1, 23-24 (2017)
(citations omitted); Steinberg, 226 N.J. at 366 (citing R. 4:46-2(c)). Because the
dispute in this matter involves the application of the LAD to the facts of this
case, we review the trial court's ruling de novo. Lee, 232 N.J. at 126. "That is,
we give 'deference to the supported factual findings of the trial court, but' not to
2
Plaintiff has not argued the trial court erred by denying his oral motion to
amend the complaint. "An issue not briefed on appeal is deemed waived."
Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) (citations
omitted); Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2
(2019). We deem that issue waived.
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its 'application of legal principles to such factual findings.'" Id. at 126-27
(quoting State v. Nantambu, 221 N.J. 390, 404 (2015)). We "owe no deference
to the interpretative conclusions reached by the trial court . . . ." Aronberg v.
Tolbert, 207 N.J. 587, 597 (2011) (citing Zabilowicz v. Kelsey, 200 N.J. 507,
512-13 (2009)).
N.J.S.A. 10:5-4 recognizes as a civil right the opportunity "to obtain all
the accommodations, advantages, facilities, and privileges of any place of public
accommodation . . . without discrimination because of race . . . ." To protect
that right, N.J.S.A. 10:5-12(f)(1) declares it to be unlawful discrimination for
any owner, lessee, proprietor, manager, superintendent,
agent, or employee of any place of public
accommodation directly or indirectly to refuse,
withhold from or deny to any person any of the
accommodations, advantages, facilities or privileges
thereof, or to discriminate against any person in the
furnishing thereof . . . on account of the race . . . of such
person[.]
A "place of public accommodation" is defined in N.J.S.A. 10:5-5(l) to
include any "high school." Thus, Absegami High School is a place of public
accommodation to which the LAD applies.
In this case, plaintiff's ability to attend Absegami High School was not
ultimately impaired, although, according to his version of the events, the
discrimination "discouraged [him] from returning to and enjoying the school"
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and he successfully sought to avoid further contact with Blazo. Notably, Blazo
did not tell plaintiff he was not welcome at the school, much less that he was
not welcome because he was African-American. Indeed, he was escorted from
the school because school hours had ended, not because of his race.
In Franek v. Tomahawk Lake Resort, 333 N.J. Super. 206 (App. Div.
2000), a resort owner made an unretracted statement that handicapped persons
were not welcome at the resort, although the affected person was permitted to
picnic there. The resort's owner was also alleged to have said, "I don't want
those kind of people here," and, "You shouldn't bring those kind of people here."
Id. at 218. We held it was
a violation of the LAD for the owner or operator of a
public accommodation to tell a person, either directly
or indirectly, that his or her patronage is not welcome
because of a trait or condition which the LAD protects
from discriminatory action, even though use of the
facility on the particular occasion is not denied.
[Id. at 216 (citations omitted).]
We reversed the award of summary judgement in favor of the resort owner and
remanded the matter to permit plaintiff to proceed to trial. Id. at 218-19.
We reached a similar conclusion in Turner v. Wong, 363 N.J. Super. 186(App. Div. 2003), in which we reversed an order of summary judgment in favor
of a donut shop owner who refused to provide an African-American customer
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with a requested replacement donut after she had bitten into the first one and
declared it stale, accompanying the refusal with repeated racial epithets.
Relying on Franek, we held that it was "for a jury to determine whether the racial
insults were in fact uttered by defendant and, if so, whether they were designed
to discourage plaintiff's use of a public accommodation on that day or in the
future because of her race." Id. at 213.
In both Franek and Turner, the discriminatory statements were uttered by
the entity's owner, the party that the plaintiffs sought to hold liable, and the
comments were unretracted. Here, plaintiff seeks to hold the school district
liable for a single incident of an unauthorized comment by a low-level employee
in violation of the district's anti-harassment policy, as to which prompt remedial
action was taken. Thus, the legal analysis differs from that undertaken in Franek
and Turner.
Here, there is no competent evidence Blazo had previously uttered racially
disparaging comments or exhibited racially discriminatory conduct. Defendant
had no actual or constructive notice Blazo would engage in such behavior, which
was outside the scope of his employment. Nor is there any evidence defendant
supported or ignored any prior discriminatory conduct by Blazo. Also absent is
any evidence defendant acted with an actual or apparent design to discourage
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plaintiff from attending the school. Instead, defendant investigated the incident,
meted out significant disciplinary action, and required Blazo to undergo
training.
We find no basis for liability on defendant's part. We decline to read
N.J.S.A. 10:5-12(f)(1) as imposing strict or vicarious liability on an employer
for a single incident of an unauthorized comment by its employee, which
violates the employer's anti-harassment policy, where there is no actual or
constructive notice that the employee has exhibited discriminatory conduct in
the past, and the comment did not relate to the plaintiff's present or future use
of school facilities. Accordingly, summary judgment dismissing the complaint
was appropriate.
Affirmed.
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