On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-5088-99.
The opinion of the court was delivered by: Lisa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Skillman, Lisa and Grall.
Plaintiff, Jason Cutler, a Jewish police officer in the Borough of Haddonfield, brought this action under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, against Haddonfield, its former Director of Public Safety, Theodore Dorn, and plaintiff's fellow police officer, Robert Shreve. Plaintiff claimed defendants created, perpetuated and failed to remediate a hostile work environment based upon plaintiff's religion or ancestry. Further, although not alleged in his complaint, plaintiff was permitted to present an additional claim that his promotion to corporal was delayed in retaliation for bringing this action or because of his religion or ancestry.
The claims against Shreve and Dorn were dismissed on motion, respectively, at the commencement of and during trial. The jury found that plaintiff proved he was subjected to a hostile work environment based upon his religion or ancestry and that Haddonfield was liable for that environment. However, the jury awarded zero damages and found that the delay in promotion to corporal did not occur as a result of plaintiff's religion or ancestry or in retaliation for his complaint. The jury also declined to assess punitive damages against Haddonfield.
Plaintiff appeals on various grounds, which we will set forth with particularity in Part IV of this opinion. Haddonfield cross-appeals from the portion of the judgment reflecting the jury's finding that plaintiff was subjected to a hostile work environment, within the meaning of the LAD. We agree with Haddonfield's argument and reverse on the cross-appeal. As a result, many of plaintiff's arguments are moot, and we reject plaintiff's remaining arguments. Accordingly, we affirm on plaintiff's appeal.
Plaintiff became a member of the Haddonfield Police Department in 1995. He and Shreve attended the police academy together. Shreve's father was an instructor at the academy and a close friend of Dorn, who was one of three elected commissioners constituting Haddonfield's governing body. Dorn knew Shreve since birth, and Shreve referred to Dorn as Uncle Ted.
Plaintiff and Shreve were not particularly friendly with each other. They each primarily associated with a different group of colleagues within the Department. The incident that precipitated this litigation occurred on April 18, 1999. At that time, Dorn was serving as Haddonfield's Public Safety Director, a part-time assignment held by one of the commissioners, a position which was also part-time in this small community. While on duty and in the stationhouse, plaintiff, Shreve and then Corporal Mark Knoedler were about to view a diplomatic immunity video. Shreve questioned why they would watch such a tape. Knoedler responded it was probably because the Macabee games were then being held in the neighboring community of Cherry Hill. Plaintiff explained that the Macabee games were the Jewish Olympics. Plaintiff thought he heard Shreve blurt out, "Those dirty Jews." Plaintiff looked at Shreve disapprovingly. Shreve attempted to amend his statement to those "sturdy Jews."
After the video ended, plaintiff said nothing to Shreve, but informed Knoedler of his displeasure with Shreve's comment. Knoedler went to Shreve, told him his remark was very insensitive and that he should apologize to plaintiff. Within one-half hour, Shreve contacted plaintiff and requested that they meet. They did so, and during a five or six minute discussion, Shreve apologized. Plaintiff told Shreve the comment was inappropriate and he did not consider it a joke.
The same day, Knoedler went to the home of Lieutenant Richard Tsonis and reported the incident. Tsonis directed Knoedler to prepare a report of the incident, which he promptly did.
On April 21, 1999, Knoedler asked plaintiff whether he wished to file a complaint. Plaintiff was somewhat reluctant to do so because he knew of the close friendship between Shreve and Dorn, which he thought could jeopardize his career. Nevertheless, plaintiff prepared a complaint and submitted it that evening. The complaint described Shreve's comment as "Those dirty Jews!" and noted Shreve's attempt to correct the statement to "sturdy Jews." In his complaint, plaintiff stated that Shreve told him "he thought we were friendly enough to joke around about these things," and that plaintiff "believe[d] that Ptlm. Shreve felt these comments were harmless humor." Nevertheless, plaintiff "expressed [his] distaste for [Shreve's] sense of humor," and, for the first time, reported that others in the Department had been insulting towards his heritage and he related several specific examples.
The Department immediately initiated an Internal Affairs investigation. The Department also notified the county prosecutor's office of the incident. The prosecutor's office eventually advised the Department that it found no basis for criminal charges and the matter should be handled administratively. On May 19, 1999, the Internal Affairs investigation resulted in a recommendation that Shreve be issued a letter of counseling explaining the inappropriateness of his action and advising him that such behavior would not be tolerated in the future. It was also recommended that Shreve receive sensitivity training. The Captain and Chief of Police issued their concurrences with the recommendation. It then went to Dorn, who accepted the recommendation.
At no time after April 18, 1999 did Shreve ever make any derogatory or inappropriate comment to plaintiff or about him or about members of the Jewish faith.
On July 9, 1999, plaintiff was in attendance as an observer at an unrelated disciplinary hearing involving another officer in the Department. Shreve was a witness and, in the course of his testimony described his April 18, 1999 comment in plaintiff's presence as follows: "Let's get rid of all those dirty Jews." At the trial of this case, Shreve said his testimony at the disciplinary hearing was mistaken, and that his remark on April 18, 1999 was indeed, "Those dirty Jews" which he admittedly attempted to correct to "sturdy Jews." Shreve categorized his remark as "stupid locker room humor" which "was incredibly insensitive and foolish."
When plaintiff heard Shreve's testimony at the disciplinary hearing on July 9, 1999, his displeasure with Shreve's comment deepened. In plaintiff's view, the expanded version of the comment was significantly more egregious, suggesting the advocation of genocide. Plaintiff has lost many relatives in the Holocaust. On July 9, 1999, after hearing Shreve's testimony, plaintiff consulted counsel, who filed a tort claim notice that day and filed this suit several days later.
In his complaint, in addition to Shreve's comment, plaintiff alleged several other incidents, previously unreported, that he contended contributed to the hostile work environment based upon his religion or ancestry. In 1996, someone placed a sticker of an Israeli flag on his locker, and about two weeks later, someone placed a sticker of a German flag above it. It became clear at trial that the sticker depicted the flag of the German Republic, not the Nazi regime. The complaint also alleged that since 1996, plaintiff was exposed to "anti-semitic comments, primarily by his superiors, such as making general slurs about Jewish people, referring to the alleged superior skills and abilities Jews possessed to make money, and other comparable derogatory comments." Plaintiff also alleged that during Passover in 1999, a co-worker wished him happy Passover, and there was some suggestion that plaintiff would or should wear a yarmulke. A superior officer advised plaintiff he would not be permitted to do so, because it would be a departure from the Department's uniform requirements.*fn1
Plaintiff further alleged that the investigation and disposition of the April 18, 1999 incident was inadequate and that, rather than being punished, Shreve was promoted to corporal soon after the incident, further indicating that Haddonfield did not take the incident seriously.
At trial, plaintiff presented evidence about the incidents described in the complaint and other incidents in an effort to prove the existence of a hostile work environment based upon his religion or ancestry. Before discussing the other incidents, we describe evidence presented by Haddonfield regarding the environment in which Shreve's comment of April 18, 1999 and the other incidents occurred. The environment provides context, which is legally significant, because the totality of the circumstances must be evaluated in any hostile work environment analysis.
During shift changes, officers engaged in considerable joking, laughing, and "breaking chops," as a tension breaker. Officers maintained in the Department a "humor file." The contents of this file were kept in two separate locked filing cabinets. Plaintiff had the key to one of them. Materials from the humor file were taken out and exchanged between officers or posted around the Department from time to time. Some of the materials in the humor file were of a racial or ethnic nature, directed at various groups.*fn2 Plaintiff participated in sharing these items and deriving humor from them. The use of these materials by all, including plaintiff, was good natured. Plaintiff acknowledged that he created some of the items in the humor file. Plaintiff acknowledged that "everyone took [the humor file] to be funny and no one took offense because it was not intended to be malicious and aimed at any one group." Some items in the humor file were directed at Jewish people. Plaintiff was aware of that, and never objected.
In addition to the humor file, evidence was presented showing that plaintiff participated in ribbing directed at other Department members based upon their religion. For example, Knoedler was a born-again Christian. On one occasion, several officers wore yarmulkes in Knoedler's presence to get back at him for playing Christian music and preaching to other officers. Plaintiff acknowledged that he "probably" supplied the yarmulkes. Plaintiff also was present when officers asked Knoedler if he had attended church that day. Plaintiff did not find this conduct directed at Knoedler offensive.
As we have stated, until the April 18, 1999 comment by Shreve, plaintiff never objected to or complained about any comments pertaining to his Jewish religion or ancestry or about Jewish people generally.
Plaintiff presented the following additional evidence at trial in support of his hostile work environment claim. From May 1995 through January 1999, superior officers made comments about Jews in plaintiff's presence. The former chief, several times a month, asked plaintiff where his big "Jew nose was." On a few occasions, other officers commented that Jews are good with numbers and asked plaintiff why he was there rather than going into the family business, saying that "Jews make all the money." With respect to the Passover comment by a superior officer that plaintiff would not be permitted to wear a yarmulke because he would not properly be in uniform, plaintiff pointed out that, for a time, Knoedler wore a "Jesus First" pin on his uniform. However, at some point, Knoedler was ordered by his superiors to cease wearing the pin.
In the several months following April 18, 1999, three patrolman, including Shreve and plaintiff, were promoted to corporal. Shreve's promotion became effective on May 3, 1999, the other individual's on June 1, 1999, and plaintiff's on July 1, 1999. Plaintiff contended that his promotion was delayed fifty-seven days, and that Shreve and the other individual were placed ahead of him, because ...