October 12, 2010
MAZOUZ MIDDLETON SHANA, PLAINTIFF-APPELLANT,
RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY; RICHARD MCCORMICK, INDIVIDUALLY AND IN HIS CAPACITY AS PRESIDENT OF RUTGERS, THE STATE UNIVERSITY; THE BOARD OF GOVERNORS OF RUTGERS UNIVERSITY; DOUGLAS EVELEIGH, MAX HAGGBLOM, JULIE FAGAN, ALAN ANTOINE, THEODORE CHASE, LENA BRATTSTEN, JAMES LASHOMB, BARBARA ZILINSKAS, TIMOTHY CASEY, BRIAN ROSE, PATRICK O'CONNOR, AND JOHN KRENOS, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4362-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2010
Before Judges R. B. Coleman, Lihotz and J. N. Harris.
Plaintiff Mazouz Middleton Shana appeals from the May 28, 2009 summary judgment dismissal of his complaint filed against defendants Rutgers University, Richard McCormick, individually and in his capacity as President of Rutgers University, the University's Board of Governors, and twelve current or former faculty members (collectively "defendants"). Plaintiff's complaint alleged conduct that constituted ethnicity, national origin and disability discrimination and harassment, and the creation of a hostile education environment, as prohibited by New Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.
On appeal, plaintiff primarily focuses his challenges on what he argues were abusive discretionary determinations of several motion judges who provided "preferential treatment" toward defendants "over pro se plaintiff" that ultimately resulted in entry of judgment without allowing him "a fair and reasonable opportunity to complete and file  op[p]osition," especially in light of his cognitive and physical disabilities. Plaintiff specifically cites the court's determinations that (1) adjourned "the trial date to accommodate defendants' desire for additional discovery" and ordered "plaintiff to appear for two additional days of depositions after [he] had already appeared for three days of depositions"; (2) denied his requests to adjourn the summary judgment motion and trial; and (3) considered defendants' summary judgment motion unopposed, in the face of his request for more time to file opposition. Also plaintiff argues he discovered two motion judges were Rutgers alumni and for the first time on appeal, argues they should have recused themselves from considering a matter involving their alma mater. Finally, plaintiff argues his LAD claims are not time barred.
We have reviewed and considered each of these arguments presented in light of the record and the applicable law. We affirm.
The following facts are taken from the summary judgment record. Plaintiff, an Arab-American, immigrated from Palestine to the United States in 1993. He studied English at Fairleigh Dickinson University and attended Bergen County Community College. In the fall of 1999, he transferred to Rutgers University's main New Brunswick campus (Rutgers). After a short leave of absence, plaintiff resumed his undergraduate studies at Rutgers in the fall 2000. He completed degree requirements for a Bachelors of Science in Biotechnology and Biochemistry on May 18, 2005.
It is not disputed that prior to his undergraduate matriculation, plaintiff suffered from both a cognitive impairment caused by a 1994 automobile accident and Crohn's disease, a chronic inflammation of the gastrointestinal system. In the fall of 2000, plaintiff informed Rutgers's Office of Student Disability Services of these conditions and requested reasonable testing accommodations. Specifically, he sought time-and-a-half for examinations and the opportunity to complete any work missed due to an intestinal "flare-up." Rutgers granted his requests and identified plaintiff as a student with a disability.
Plaintiff's LAD complaint was filed on May 9, 2007. It named as defendants Rutgers, its president and trustees, along with individual administrators and faculty members whom plaintiff alleged had individually and in concert, engaged in systematic discrimination based on his ethnicity and disability. Plaintiff asserts the defendants conducted a "campaign of retaliation," which including verbal abuse and humiliation, discrimination in awarding him grades, refusal to accommodate his cognitive impairments and physically disabilities, and created a "very hostile and toxic educational environment." A review of whether plaintiff's claims were untimely, warranting dismissal, requires recital of the allegations set forth in the complaint attributed to the individual defendants.
At the time plaintiff attended Rutgers, Dr. Richard McCormick was the President of Rutgers University. He was named as a defendant, along with the Board of Governors, based upon his overall supervisory authority for the Rutgers faculty and administration, as well as the responsibility to implement and enforce nondiscriminatory practices.
Rutgers has a written antidiscrimination and harassment policy along with an internal grievance and complaint procedure for students to grieve improper denials of disability accommodations. The Office of Compliance, Student Policy, Research and Assessment investigates complaints and monitors compliance. Rutgers also has a written procedure to challenge grades received for coursework. The procedure directs students to first attempt to resolve the dispute with the instructor. If unsuccessful, a written request must be submitted to the departmental chairperson within two weeks of receipt of any individual examination grade or four weeks after receipt of a final course grade. Appeals are then submitted in writing to the office of the dean overseeing the faculty member.
In the 2000 fall semester, plaintiff registered for General Microbiology with Dr. Douglas Eveleigh, a tenured professor in the Department of Biochemistry and Microbiology in the School of Environmental and Biological Sciences (SEBS). In December, plaintiff requested the opportunity to improve his course grade because an intestinal flare-up had adversely affected his test performance. Eveleigh agreed to record a temporary grade pending the submission of a short written assignment as a supplement to plaintiff's exam grades. During this conversation, Eveleigh asked the origin of plaintiff's "interesting accent" and the conversation turned to his Palestinian heritage. Also, Eveleigh suggested plaintiff might write a paper on "Palestinian food," as fermentation of food was a major topic in the course, and he often suggested papers that "focus on fermented foods with which the student might be familiar" when making supplemental assignments. Towards the end of this conversation, the topic returned to the possible microbial causes of plaintiff's Crohn's disease and at some point Eveleigh quipped, "So you dwell in the bathroom."
Despite this agreed accommodation, plaintiff maintains Eveleigh assigned him a "C," telling him to "forget about the project, I can't help you." When plaintiff sought to discuss this, Eveleigh became "angry," "yelled" and "slammed" his office door in plaintiff's face. Thereafter, Eveleigh "refused to discuss the matter" and became "hostile" and "unapproachable." Because plaintiff later enrolled in two required courses taught by Eveleigh, he endured this hostility for two years.
One course taken in the 2001 fall semester, Microbial Technology, was taught jointly by Eveleigh and Max Haggblom, who also is a tenured professor in the SEBS Department of Biochemistry and Microbiology. Plaintiff contacted Haggblom inquiring whether he received an e-mail explaining he would be missing an upcoming exam. Haggblom responded by referencing the fact that the Microbiology building had been evacuated the day before due to "a terrorist threat," then stated, "It is unfortunate and frustrating to deal with people like [you] who have a history of getting sick before an exam."
Plaintiff alleges he was subjected to more stringent grading criteria by Eveleigh and Haggblom. Consequently, he received a "D" in the course, which he did not challenge in accordance with Rutgers' published policy. Instead, he reenrolled in the course the following fall. As the class neared conclusion, Eveleigh agreed to send students a description of the material to be covered by the final examination. However, he did not have all of the students' e-mail addresses. He sent the information to Haggblom and nine students whose e-mail addresses he had, and included instructions to circulate the information to those not on the list. Plaintiff alleges he was intentionally omitted and only received the information from a classmate days later.
After being given additional time to complete the exam, plaintiff received a "B" in the course, but believed he was entitled to an "A." In an e-mail to the professors, plaintiff claimed his two grades in their courses were impacted by their personal dislike of him and a failure to accommodate his medical condition. Eveleigh and Haggblom separately responded, each denying plaintiff's allegations of disparate treatment and stating they used the same grading procedure in both 2001 and 2002.
On January 15, 2003, plaintiff filed a formal complaint alleging disparity with Alan Antoine, Chair of the Biochemistry and Microbiology Department. Plaintiff maintained he had been graded more harshly than other students because he had received accommodation during examinations. After review of the grading policies used for the class and as applied to plaintiff's work, Antoine determined no unfairness occurred. Antoine referred his decision to the SEBS Dean, but plaintiff never filed an appeal with that office. In calculating plaintiff's grade point average, the "B" achieved in Fall 2002 replaced the "D" received the prior year.
Plaintiff also related alleged incidents of failure to accommodate by professors in the Department of Chemistry and Chemical Biology in the School of Arts and Sciences. He generally stated the department issued a policy limiting the number of make-up examinations a student could request in a semester. He challenged the policy because it failed to accommodate a student suffering a disability.
Also, plaintiff related instances of discriminatory treatment by several professors. We relate these allegations.
Patrick O'Connor taught Chemistry 307, a course of approximately 1,200 students divided into three lecture sections. Plaintiff enrolled in the course in the fall 2000 semester. O'Connor complied with suggested accommodations by allowing plaintiff extra time to complete exams and to make up the only exam he missed, without penalty. At some point during the semester, plaintiff approached O'Connor and asked if he had received materials regarding his illness. Plaintiff asserts O'Connor loudly told plaintiff to "back off" and stormed away, allegedly mumbling "idiot" under his breath. Plaintiff received a "D" in the course, which he did not challenge.
In the spring 2001 semester, plaintiff enrolled in Chemistry 308, a class of similar size and structure to Chemistry 307, for which O'Connor was one of the course instructors. Plaintiff did not attend any scheduled examinations and, in mid-April, sought advice from Dr. John Krenos, the Executive Officer of the Chemistry Department.
Krenos suggested plaintiff withdraw from the course and retake it at a later date, rather than sit for all of the exams that summer. Plaintiff opted to sit for the missed tests in the summer session rather than delay completion until spring 2002. Based on his exam results, plaintiff received an "F" in Chemistry 308.
Krenos had informed Associate Dean of Academic Programs, Dr. Robert Hills, that plaintiff decided to take the missed examinations for Chemistry 308 during the summer sessions and recommended plaintiff be granted a retroactive withdrawal from Chemistry 307. Also, in accordance with Rutgers's accommodation grievance procedure, plaintiff had filed a complaint with Brian Rose, the Director of Compliance and Student Policy Concerns in the Office of the Vice President for Student Affairs, alleging that despite his disability, he had been denied the opportunity to reschedule missed examinations for Chemistry 307 and 308.
On September 4, 2001, after review by the Scholastic Standing Committee, Hills permitted plaintiff's retroactive withdrawal from Chemistry 307, replacing his "D" grade with a "W." Plaintiff then met with Rose. Plaintiff requested the "W" be removed from his transcript. Despite the delay in its presentation, Rose considered plaintiff's request, and rejected it stating:
it is important to note that [the Chemistry Department and SEBS] did modify their policies and procedures in an attempt to accommodate your disability. In Chemistry 307, you sat for all but one exam and received grades for them. Not until you had received your final grade . . . did you make a cognizable complaint that the policy . . . was somehow discriminatory as applied to you. Despite the fact that the deadline for withdrawal without penalty had passed, you were nonetheless allowed to retroactively withdraw from the course. . . . With regard to Chemistry 308, you were permitted [ ] to make up any exam that you might miss by sitting for the exam(s) during the Summer Session . . . . Indeed, you missed all the exams . . . and did sit for the make-ups in Summer 2001. In that way, you accepted the accommodation offered.
You argue the accommodations are insufficient. With respect to Chemistry 307 . . . [y]ou state that you should have been permitted to schedule the examinations offered in the course when you felt healthy enough to sit for them . . . . With respect to Chemistry 308, you suggest that the opportunity to sit for make-up exams during the Summer Session . . . was insufficient because it still did not give you sufficient control over the examination dates to insure that you would be feeling well on the days of the exams.
[I] believe [ ] the accommodations provided were above and beyond what is legally required under applicable disability laws . . . . By your own accounting, you missed all exams in Chemistry 308 during the Spring 2001 term and would have additionally rescheduled all of the summer make-up dates if that did not mean waiting until Spring 2002 to do so. Further, you report you would have rescheduled all the exams in Chemistry 307 had that option been available. Accordingly, to provide you with the accommodations that you seek would amount to giving you full control over when you sit for any examination in any course . . . . because it presupposes that your faculty members will (a) constantly compose new examinations for you so as to protect against possible academic integrity concerns; (b) hold off on reviewing test questions with the balance of the class until you have made yourself available for your exam; and (c) somehow manage to teach you sequential material despite your inability to have your comprehension tested at appropriate intervals . . . . Disability law[s] simply do not require that [Rutgers] simply cede to you full control of your examination schedule. To the extent that your condition truly does prevent you from sitting for so many examinations, I would conclude that you are not a "qualified person with a disability[.]"
Plaintiff had no further contact with Rose.
Plaintiff continued to seek modification of the reported grades for Chemistry 307 and 308. He argued he had re-taken Chemistry 307 in the fall of 2001 and received a "C." In a January 29, 2002 e-mail, Krenos informed Hills of this fact. He recommended plaintiff's grade for Chemistry 307 be modified and that he be granted a retroactive withdrawal from Chemistry 308. He also mentioned that because of plaintiff's "worsening health problems," plaintiff might benefit from completing "his organic chemistry courses elsewhere," referring to a smaller institution.
On May 2, 2002, Hills informed plaintiff his petition to delete the "W" grade for Chemistry 307 had been approved. In the Spring 2004 semester, plaintiff retook Chemistry 308 and received a grade of "C." That grade was not challenged.
In the fall 2002 semester, plaintiff took Methods of Recombinant DNA with Barbara Zilinskas, a tenured professor in the Department of Plant Biology and Pathology. Around the first anniversary of the September 11, 2001 attacks, Zilinskas held a moment of silence and allowed a student, who had been an emergency medical technician in New York City, to offer brief remarks. Plaintiff's complaint states Zilinskas "knew" his background and understood her actions "caused [him] a lot of shame." Also, he alleges these observances were inappropriate as Zilinskas "knew about [his] medical condition" and should have appreciated the effect stress would have on his intestinal system.
In that semester, plaintiff also registered for the G.H. Cook Honors Program, a six credit-hour independent research project under the guidance of a faculty advisor. He approached Animal Sciences Department professor Julie Fagan to serve as his advisor and she agreed. Plaintiff alleges that when Fagan learned he was Palestinian, she changed from being "very friendly and cooperative" to "increasingly uncooperative and unfriendly." Illustrative of this point, plaintiff relates a comment made when Fagan granted him after-hours lab access. She said: "You will get a set of keys to the lab, if you promise not to blow up the building."
Plaintiff also contends Fagan provided testing samples for his research, which were supposed to be a basal cell carcinoma sample, but turned out to be growth media. As a result, plaintiff's two years of research were meaningless. Without specificity, plaintiff alleges Fagan attempted to force him to drop his research project and leave the university.
Despite this perceived ill-treatment, plaintiff enrolled in another course taught by Fagan in the 2003 fall semester. The six credit course required eighteen hours of laboratory work each week. By semester's end, plaintiff had not completed the coursework and was given a "TC" (Temporary C) grade pending completion. In an April 26, 2004 letter, Fagan informed plaintiff of the steps necessary to replace the "TC" with a permanent "A." In a July 2, 2004 e-mail, plaintiff confirmed he had completed the requested tasks; however, Fagan "[wa]s on an academic year appointment[,] off during the summers" and "having significant problems with her [Rutgers] e-mail" and did not contact him.
On September 1, 2004, plaintiff presented Fagan with his written work and "informed her that the results of the laboratory procedures . . . were in a refrigerator in [her] laboratory." Fagan felt she could not change the grade until she had met with plaintiff to confirm his understanding and use of the proper laboratory procedures. She made no effort to contact plaintiff and failed to respond to his September 28 e-mail. On January 21, 2005, plaintiff again e-mailed Fagan regarding his grade in the course. She arranged a meeting, which never occurred. Nevertheless, Fagan contacted Dean Timothy Casey and plaintiff's transcript was changed to record an "A" in the course.
Biochemistry Professor Theodore Chase gave plaintiff "special permission" to register for Honors in Biochemistry, an independent research course, conducted during the 2003 fall semester. Plaintiff listed Fagan as his faculty supervisor.
Defendants maintain that all Biochemistry Honors students were required to develop and seek approval for a project proposal before proceeding to the actual laboratory work, but plaintiff had neither met this deadline nor received a grade for the course. By spring 2004, Chase discovered these omissions and concluded plaintiff had "erroneously been permitted" to register for the honors class stating:
a. Students matriculated in SEBS . . ., including biochemistry majors, who wished to do an honors research project typically did so through the college-wide honors program - G.H. Cook Honors - as opposed to an honors program in a particular discipline or field.
b. Plaintiff . . . had already registered for G.H. Cook Honors for the fall 2002 and spring 2003 semesters. Accordingly, it made little sense for him to have registered for Honors in Biochemistry. . . .
c. [H]onors in Biochemistry had been limited to students who were biochemistry majors so that students who were matriculated in other colleges at Rutgers and not eligible for G.H. Cook Honors could still do an honors program in biochemistry. For such students, a GPA of at least 3.48 was required[.] Plaintiff was not a biochemistry major and did not have the required GPA.
d. The six credits for which plaintiff had registered in Research in Animal Science and six credits in Honors in Biochemistry for which he had also registered translated into 36 hours per week in the laboratory for the fall 2003 semester [ ], an extraordinary amount of time for an undergraduate[,] especially since plaintiff was registered for 12 other credits[.] The average credit hour load in a semester is 15 and plaintiff had registered for [ ] 24[.]
Plaintiff disputes this account. He maintains Chase only reacted once he learned of his ethnicity. Without specificity, plaintiff alleges Chase began making inquiries into plaintiff's friends and interfered with his independent study project supervised by Fagan, and issued "an ultimatum . . . to either leave the program or receive a failing grade." Chase also questioned Zilinskas, who served as the Biotechnology majors' faculty advisor, as to why plaintiff, a Biotechnology major, was permitted to enroll in the Honors Biochemistry program.
Thereafter, in the spring 2004 semester, plaintiff registered for Protein and Enzyme Chemistry taught by Chase. He received a "B" in the course, but contends he achieved close to a 90% and, therefore, deserved an "A," based upon Chase's announcement to the class that any grade over a 70% would be counted as a "B," while any grade over an 80% would be considered an "A." Plaintiff concluded Chase used a "capricious and discriminatory" system of evaluation when assigning his grade.
In the spring 2005 semester, plaintiff enrolled in Toxicology of Pesticides, a graduate-level course taught by Lena Brattsten, a tenured professor in the Department of Etymology. Brattsten announced students could receive a "B" by achieving an 80% average on ten computerized quizzes. Higher grades could be earned based on participation in optional assignments, including the presentation of a research proposal completed with another student.
The quizzes were computerized and their timing could not be modified. In an effort to accommodate plaintiff's disability, Brattsten agreed he would need to achieve only a 70% quiz average for a "B." Plaintiff alleged Brattsten humiliated him when she "discussed" his handicap and the resulting grading arrangement "in front of the class" on two separate occasions, drawing unwanted attention to - and possible animus towards - his disability from his peers.
Plaintiff earned a 74% average on the quizzes, guaranteeing him at least a "B" grade. Brattsten e-mailed plaintiff, encouraging him to increase his grade with a strong performance on his research proposal presentation. However, following his presentation, Brattsten informed him he would be receiving a "B," which she agreed to increase to a "B" after further review. In assessing his presentation, Brattsten stated plaintiff seemed ill prepared, had no handouts or other audio-visual aids, and seemed overly casual. His presentation was too short and . . . was a meager, bare bones presentation.
I was left with the impression that he was just trying to get the presentation over with, that he was presenting in haste. I remember feeling very disappointed with his presentation. In addition, based on the materials plaintiff provided to me to demonstrate that he contributed to the joint research proposal, my assessment was that his contribution was adequate, but nothing more.
Plaintiff e-mailed Brattsten on May 10 and demanded an "A." The professor responded his "B" grade was "very generous" and he should not push as she "may still change her mind and give [him] just a B."
Plaintiff also alleged Brattsten harassed and discriminated against him in a conversation held during the May 18, 2005 graduation ceremony. When he told her he had become a naturalized citizen, she responded, "now you are kosher." Finally, when plaintiff mentioned his grade, she stated: "You should have found yourself a sucker of a school to accommodate you[r] medical disabilities because you look just fine to me."
Plaintiff asserts his written grievance challenging this grade and Brattsten's disparaging comments was ignored. Rutgers has no record of this grievance, prompting plaintiff to state the file was "intentionally destroyed."
As noted, plaintiff filed his LAD complaint on May 9, 2007, almost two years following graduation. A detailed description of the procedural history of the litigation prior to judgment is needed to aid our review of the arguments presented on appeal.
The discovery end date was initially set for October 30, 2008. In order to allow plaintiff to respond to defendants' written discovery, the parties stipulated to extend this to December 28, 2008. Defendants moved to compel discovery and further extend the discovery end date. The motion was granted by Judge Currier. The order compelled plaintiff to answer written discovery and set February 27, 2009 as the amended discovery end date noting no further extensions were to be granted in the absence of "exceptional and heretofore unforeseen circumstances."
Coincident with these events, the Civil Assignment Office noticed the matter for trial on March 30, 2009. In view of the ordered extension of discovery, defendants believed the notice had been issued in error and requested adjournment of the trial date. A notice denying the request prompted a request for reconsideration to the Civil Presiding Judge. The Civil Case Management notice in response instructed the parties to "report to the trial call and answer with a problem so you may conference with the judge."
On February 27, defendants moved to dismiss the complaint or, in the alternative, compel discovery and extend the discovery end date. Plaintiff cross-moved for a protective order, R. 4:10-3, barring further depositions. Judge Stroumtsos ordered plaintiff's deposition to continue on March 24 and 26, 2009, and extended discovery until March 27, 2009. Plaintiff's request was denied.
When plaintiff appeared for his court-ordered depositions, defendants were unable to proceed stating they had not received the court's order. Plaintiff's deposition was continued on March 26, 2009, but was not completed.
On the day of the trial call, a case management conference was held. Following the conference, Judge Hurley entered a case management order rescheduling trial to June 1, "with no further adjournments without a showing of exceptional circumstances." The order also required plaintiff to again appear for depositions on two additional days. Finally, the order modified the "58 day rule" for the filing of dispositive motions, reducing it to twenty-eight days.*fn1
Plaintiff's deposition was concluded on April 6, 2009. Thereafter, defendants moved for summary judgment, returnable May 15, 2009. Plaintiff requested a two-week extension of time to file his response because "work commitments" limited his ability to complete his pleadings. The motion judge who reviewed that request denied it, relying on Rule 4:46-1, which requires summary judgment motions to be scheduled thirty days before trial.
Plaintiff sought reconsideration of this ruling from the presiding judge. In his correspondence, plaintiff referenced Judge Hurley's prior order waiving the imposed "58 day rule" and adjourning trial. He then detailed the adverse effects his medical condition had on his ability to timely respond and requested more time to complete opposition. He additionally requested the trial be adjourned.
The matter was returned to the motion judge to reconsider the decision. Upon reflection, plaintiff's request for a two-week extension to file his pleadings was granted.
The pending motion was reassigned to Judge Happas, who had not previously reviewed this matter. By the May 28, 2009 return date, plaintiff had not filed a response to defendants' request for judgment. Instead he faxed a request for more time and a general statement of opposition to summary judgment.
Although Judge Happas considered defendant's summary judgment motion unopposed, she made clear she would entertain "a timely filed motion for reconsideration, which shall include the opposition [plaintiff] wishes the [c]court to consider." Her bench decision then reviewed each of plaintiff's claims as framed in the LAD complaint.
Judge Happas first viewed the behavior complained of as separate and distinct acts. She found the last act occurred on May 9, 2009, and concluded all discrete claims, except possibly those alleged against Brattsten, were barred by the LAD's two-year statute of limitations. In considering conduct attributed to Brattsten, Judge Happas found no evidence of discrimination or harassment in assigning plaintiff a "B" and determined the professor's comments were possibly insensitive, but insufficient to sustain a claim for actionable harassment or discrimination.
The court next considered whether the whole of plaintiff's allegations evinced a "severe or pervasive" course of conduct creating a hostile educational environment. In her oral opinion, she stated:
[T]he totality of the circumstances, including the frequency of all the discriminatory conduct, its severity, whether it is physically threatening, humiliating or a mere offensive utterance, and whether it reasonably inter[fere]s with the employee's work performance. . . .
General rudeness and a lack of racial or ethnic sensitivity does not alone amount to actionable harassment. . . .
New Jersey has a value which is a reasonable person standard and this [c]court finds that the statements allegedly made to plaintiff involving his disability during his time at Rutgers did not rise to the level of severe per[v]asiveness required under our [ ] law. The statements were made by a few individual professors in a couple of classes out of the many classes the plaintiff took. He thinks these remarks were insensitive. Insensitivity alone does not create a hostile environment. . . .
Plaintiff's perception of dislike by some of his professors does not establish a hostile environment. Additionally, any comments made by Dr. Brattsten in 2005 occurred well after plaintiff's other allegations and shall not be linked with earlier comments made by other professors[.]
Defendant[s] also argued, and the [c]court finds, that plaintiff cannot establish a prima facie case due to any harassment based on his national origin and ethnicity . . . . At worst the remarks are insensitive and [ ] that's not enough to create a hostile environment.
Plaintiff filed this appeal.
We first address plaintiff's challenges to the various discretionary determinations by the judges who reviewed the motions. First, plaintiff challenges as an abuse of discretion the court's refusal to extend the time provided to respond to defendants' summary judgment motion and, when he could not timely respond, characterization of the motion as "unopposed."
The grant or denial of an adjournment request rests within the discretion of the trial court. Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 513 (1995) (citing Allegro v. Afton Village Corp., 9 N.J. 156, 161 (1952)). "Postponement requests must be considered, in part, in the light of preparation efforts. If they are not, parties will have no incentive to prepare." In re Segal, 130 N.J. 468, 482 (1992) (quoting State v. Perkins, 219 N.J. Super. 121, 127 (1987)). We do "not interfere unless it appears an injustice has been done." Allegro, supra, 9 N.J. at 161.
Plaintiff states he was "unfortunate enough to have been severely ill" when the motion was pending and he had "informed the court of his [medical] situation numerous times." As we have noted, plaintiff's initial letter seeking a continuation made no reference to his illness impeding his efforts. His correspondence assured the court he could file his pleadings by May 18, 2009. The court apparently did not find good cause, R. 4:46-1, and denied the request.*fn2 When plaintiff detailed the complications posed by his illness, the court granted his request as framed, adjourning the motion return date to May 28, 2009 and allowing him two additional weeks to file opposition. We discern no bias in the manner in which the court's ultimate determination unfolded and plaintiff's request was granted.
Related to this issue, plaintiff challenges the characterization of the motion as unopposed. He does not explain why his response was limited to generalized objections to the entry of summary judgment rather than expressing what he believed to be factual disputes. In his letter seeking an extension, he emphasized the numerous hours he had expended and anticipated expending in preparation of his opposition. Yet, he filed only a general letter objecting to summary judgment.
Judge Happas observed that plaintiff's submission asserted "there are [in]numerable issues [of] material fact; however, plaintiff doesn't set forth what they are." We are at a loss to understand why plaintiff did not file opposition or avail himself of the available remedy of reconsideration. Throughout these proceedings, he has demonstrated an adroit understanding of the legal process by submitting comprehensive pleadings and appearing prepared for each court event.
"When, as here, a motion for summary judgment is made, the party opposing that motion bears the affirmative burden of responding. That burden is not optional and it cannot be satisfied by the presentation of incompetent or incomplete proofs." Polzo v. County of Essex, 196 N.J. 569, 586 (2008). Guided by that standard, we conclude the summary judgment judge exercised reasoned discretion when determining defendants' motion should be considered as unopposed.
Considering all of these facts and circumstances, the court's assessment of the status of the motion as "unopposed" was not a result of preferential treatment towards defendants, but the consequence of plaintiff not filing substantive opposition. We discern no abuse of discretion warranting our intervention.
Another challenge objects to what plaintiff considers disparate treatment in the review of his and defendants' adjournment requests. We have combined consideration of related arguments.
Plaintiff argues the court's grant of an adjournment on the date of the initial trial call violated Rule 4:36-3(b), which provides that, absent "exceptional circumstances," such requests shall not be made "later than the close of business on the Wednesday preceding the Monday of the trial week. No adjournments shall be granted to accommodate dispositive motions returnable on or after the scheduled trial date."
In his brief, plaintiff argues that when viewing defendants' requests, the court failed to enforce the requirements of the Rules and otherwise suggests defendants' motions were granted and his were denied. We decline to take such a simplistic view of these events. Instead we examine the circumstances surrounding each request impacting the discretionary considerations of the court.
"The purpose of discovery procedures is to help parties learn of facts relevant to the issues in the case. It would defeat that purpose to require a [party] to prove [its case] before propounding interrogatories and taking depositions." Snyder v. Mekhjian, 125 N.J. 328, 346 (1991). As is often said, "a trial is a search for truth and our rules and procedures should be sufficiently flexible to accommodate that search." State v. R.D., 345 N.J. Super. 400, 406 (App. Div. 2001).
Defendants' first motion sought to dismiss the complaint or alternatively compel discovery. Plaintiff's claims against Rutgers, its Board and thirteen individual defendants were extensive. The five-count complaint included eighty-five paragraphs of factual contentions against over a dozen defendants. Plaintiff not only alleged individual acts of discrimination but also maintained defendants' efforts were in concert to create a hostile educational environment. When the motion was filed, plaintiff's responses to written discovery had recently been received and he appeared for one day of depositions. For a number of reasons, agreement on continuation of the examination could not be reached.
Judge Stroumtsos understood the impetus for defendants' requests was the incomplete status of discovery. Certainly, absent full discovery, trial preparation and settlement negotiation are thwarted. He properly ordered plaintiff to continue his deposition examination for two days. We find no indicia of impropriety in this order.
Next, plaintiff cites that defendants' adjournment of the trial application was granted on the day of the trial call, yet his similar request made in response to summary judgment was denied. We reject plaintiff's suggestion that the court was partisan and conclude the Law Division judges who examined the independent requests properly exercised reasoned discretion.
The defendants' adjournment request was made on the heels of the trial notice believed to be in error in light of Judge Currier's order extending discovery to February 27, 2009. The second notice denying adjournment also made clear trial would commence on March 30, 2009. Following the case management conference, once apprised of the discovery impasse and the confusion resulting from defendants' delayed receipt of Judge Stroumtsos' order, Judge Hurley determined it was necessary to allow the parties' time to exchange information, assess the adversary's position and weigh settlement possibilities. In their pleadings, defendants described the additional time accommodations afforded plaintiff during discovery and itemized the remaining outstanding information sought. Based on the myriad of claims against them, it was understandable defendants' examination of plaintiff would exceed the two days he had appeared. Judge Hurley assessed the status of completed discovery and the amount of additional time sought. In fairness to all parties, he concluded plaintiff's examination should continue.
We also do not agree that the order's inclusion of a waiver of the "58-day Rule" was a sign of defendants' favorable treatment. Although summary judgment motions are to be returnable no less than thirty days before trial, the Rule authorizes the court to condense the time period, upon a finding of "good cause shown." "Good cause" is an amorphous term, and "is difficult [in] precise delineation. Its application requires the exercise of sound discretion in light of the facts and circumstances of the particular case considered in the context of the purposes of the Court Rule being applied." Delaware Valley Wholesale Florist, Inc. v. Addalia, 349 N.J. Super. 228, 232 (App. Div. 2002).
Here, the judge balanced the need for an extension of discovery, which necessitated a concomitant adjournment of the trial date, against the need to conclude the litigation. As a compromise, pre-trial motions would be considered upon twenty-eight days notice, without consideration of the newly assigned trial date. The notice period is the timeframe assigned for notice of summary judgment. R. 4:46-1. Defendants, in agreeing to this schedule, accepted the possibility the motion would be denied and they would be required to be trial-ready immediately thereafter. Thus, possible prejudice likely ran against defendants.
We determine no basis to alter the case management order. Judge Hurley's exercised discretion, allowing a two-month trial adjournment and permitting dispositive motions to be filed within thirty days of trial, was guided by a fair and balanced review of the litigation needs of the parties.
For the first time on appeal, plaintiff argues two motion judges abused their discretion when considering this matter because of their past affiliation with Rutgers. Plaintiff maintains the judges should have recused themselves sua sponte.
Disqualification is a matter within the sound discretion of the court. Panitch v. Panitch, 339 N.J. Super. 63, 71 (App. Div. 2001); Jadlowski v. Owens-Corning, 283 N.J. Super. 199, 221 (App. Div. 1995), certif. denied, 143 N.J. 326 (1996). Rule 1:12-1 outlines those situations when a judge "shall be disqualified on the court's own motion." Subsection (f) of the Rule provides for recusal "when there is any other reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so." R. 1:12-1(f). Often this provision is applied in situations involving the judge's prior employment or legal relationships. See, e.g., DeNike v. Cupo, 196 N.J. 502 (2008) (reviewing the propriety of a trial judge who negotiated post-retirement employment with firm appearing before him, after all substantive decisions in case were made but prior to entry of judgment); Chandok v. Chandok, 406 N.J. Super. 595, 606 (App. Div.) (ordering recusal where counsel was former law partner of trial judge in a partnership which ended in acrimonious litigation), certif. denied, 200 N.J. 207 (2009); Ferren v. City of Sea Isle City, 243 N.J. Super. 522 (App. Div. 1990) (holding recusal was not necessary where a municipality, formerly represented by trial judge's law partner, was a party). The Rule is inapplicable when based solely on the judge's general "life experiences." Johnson v. Salem Corp., 189 N.J. Super. 50, 60 (App. Div. 1983), aff'd as mod. on other grounds, 97 N.J. 78 (1984).
In Johnson, supra, defense counsel argued the trial judge failed to disclose facts that prejudiced his client. 189 N.J. Super. at 60. Defense counsel related that thirty years prior to trial, he and the trial judge worked together when the judge had severely injured some of his fingers while working in a machine shop. The injury was similar to the one that was the subject the plaintiff's suit. Ibid. Writing for this court, Judge Pressler discounted defendant's theory in support of recusal, stating A judge ordinarily is not disqualifiable because of his own life experiences. Obviously a judge is not disqualified from presiding at an automobile accident trial merely because he was once himself in an automobile accident. Nor is a judge disqualified from trying a divorce case either because he is himself married or divorced, or from trying a contested adoption case because he has either natural children or adopted children. The point, of course, is that each of us is a product of the aggregate of our experiences, and our understanding is enhanced by the totality of our experiences. [Id. at 60-61.]
Plaintiff identifies no other connection between the judges and any individual defendant. He presents no factual basis to support disqualification other than identifying the judges as Rutgers graduates. As guided by Johnson, that fact alone is insufficient to mandate recusal.
Turning to plaintiff's substantive challenges to the order of summary judgment, we first relate our standard of review. Since the grant of summary judgment calls for a review of the "trial court's interpretation of the law and the legal consequences that flow from established facts," the trial court's decision is "not entitled to any special deference," and is subject to de novo review. Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995). In making that assessment, we apply the same standard as the trial court, reviewing the record to determine if there are genuine issues of material fact. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We must determine "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact-finder to resolve the alleged disputed issue in favor of the non-moving party." Ibid. However, if there is no such genuine issue of fact, we then must determine if the trial court properly applied the law. Prudential Prop. Ins. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We will affirm the decision below only if the record indicates the moving party is entitled to judgment as a matter of law. R. 4:46-2(c); Brill, supra, 142 N.J. at 540.
Plaintiff's complaint is based on the LAD, which applies to Rutgers as a place of public accommodation. N.J.S.A. 10:5-5(l) (defining "[a] place of public accommodation" to include "any . . . college or university"). Management and employees of such places or institutions are prohibited from withholding or denying the "accommodations, advantages, facilities or privileges thereof," or from discriminating in granting the same, based upon "race, creed, color, national origin, marital status, civil union status, domestic partnership status, sex, gender identity or expression, affectional or sexual orientation, disability or nationality[.]" N.J.S.A. 10:5-4.
This matter also implicates the applicable statute of limitations imposed on LAD claims. Although the LAD contains no specific provision, it is clear "[t]he statute of limitations for claims arising under the LAD is two years." Shepherd v. Hunterdon Dev'l. Ctr., 174 N.J. 1, 17 (2002) (citing Montells v. Haynes, 133 N.J. 282, 292 (1993)). Where only discrete acts of discrimination are alleged, the statute of limitations is easily calculated as two years from the date of the event.
We concur with Judge Happas's conclusion that plaintiff's complaint alleging individual acts of discrimination by defendants is time-barred. Based on the May 9, 2007 complaint filing date, the statute of limitations bars any individual conduct occurring prior to May 9, 2005. Consequently, all events occurring beyond the two year limitations period are barred. Plaintiff's only allegations after this date, are attributed to Brattsten, whose last class was held on May 9, 2005 and who spoke to plaintiff subsequently during graduation.
Brattsten's conduct includes an allegation that she discriminated against plaintiff by awarding him a "B" rather than an "A" and discriminatory comments during a graduation conversation. The e-mail initiated by plaintiff to increase the grade to an "A" and Brattsten's response took place on May 10 and 11, 2005. The final graduation day comment attributed to Brattsten was on May 18, 2005. After examining the above events, we conclude there is no support for the allegations of national origin or disability discrimination.
The dialogue regarding plaintiff's grade is one that may well occur daily on college campuses, as students, eager to achieve only at a high level, challenge a professor's objective and subjective evaluation of his or her performance. There is no hint that Brattsten's conclusion plaintiff earned a "B" resulted from anything more than his course accomplishments. She extended and complied with necessary accommodations, encouraged plaintiff to succeed, and reconsidered his achievements when requested to do so.
Brattsten's graduation comments may be characterized as blunt, insensitive or even rude, but they do not support an LAD claim. "Generally, 'mere utterance of an . . . epithet which engenders offensive feelings'" is insufficient to support a LAD action. Taylor v. Metzger, 152 N.J. 490, 501 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L.Ed. 2d 295, 302 (1993)).
However, the examination of the timeliness of the discrete acts does not conclude our inquiry because plaintiff asserts that throughout his six years at Rutgers these individual acts of discrimination by administrators and faculty were in concert to create a hostile education environment. Examining whether the totality of events described by plaintiff sufficiently alleges conduct constituting an actionable hostile environment claim, we agree with Judge Happas that the conduct is not part of a series of discriminatory or harassing events sufficient to bind the other prior, time-barred acts as a continuing violative. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117, 122 S.Ct. 2061, 2074, 153 L.Ed. 2d 106, 124 (2002) (providing that if an act contributing to the claim occurs within the filing period, the conduct occurring throughout the entire time period of the hostile environment may be considered by a court for the purposes of determining liability).
"[A] judicially created doctrine known as the continuing violation theory has developed as an equitable exception to the statute of limitations." Bolinger v. Bell Atl., 330 N.J. Super. 300, 306 (App. Div.), certif. denied, 165 N.J. 491 (2000). Notably, the "unlawful . . . practice" is a continuing violation claim because it "'cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.'" Shepherd, supra, 174 N.J. at 19 (quoting Morgan, supra, 536 U.S. at 115, 122 S.Ct. at 2073, 153 L.Ed. 2d at 123). Therefore, "[w]hen an individual is subject to a continual, cumulative pattern of tortious conduct, the statute of limitations does not begin to run until the wrongful action ceases . . . . [T]he cumulative effect of a series of discriminatory or harassing events represents a single cause of action[.]" Wilson v. Wal-Mart Stores, 158 N.J. 263, 272-73 (1999).
To establish a continuing violation based on a series of discriminatory acts, a plaintiff must demonstrate:
"(1) at least one allegedly discriminatory act occurred within the filing period; and
(2) the discrimination is 'more than the occurrence of isolated or sporadic acts of intentional discrimination' and is instead a continuing pattern of discrimination." [Bolinger, supra, 330 N.J. Super. at 307 (quoting Harel v. Rutgers, The State Univ., 5 F. Supp. 2d 246, 261 (D.N.J. 1998), aff'd, 191 F. 3d 444 (3d Cir. 1999), cert. denied, sub nom., Harel v. Lawrence, 528 U.S. 1117, 120 S.Ct. 936, 145 L.Ed. 2d 814 (2000)) (quoting Rush v. Scott Specialty Gases, Inc., 113 F. 3d 476, 481 (3d Cir. 1997))].
To determine whether alleged incidents of discrimination constitute a continuing violation, a court must consider the following:
(i) subject matter -- whether the violations constitute the same type of discrimination;
(ii) frequency; and (iii) permanence -- whether the nature of the violations should trigger an employee's awareness of the need to assert her rights and whether the consequences of the act would continue even in the absence of a continuing intent to discriminate. [Ibid. (quoting Bullington v. United Air Lines, Inc., 186 F. 3d 1301, 1310 (10th Cir. 1999).]
See also, Morgan, supra, 536 U.S. at 116, 122 S.Ct. at 2074, 153 L.Ed. 2d at 124 (holding a court "is to consider all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance" (internal quotations and citations omitted)).
We have located no published opinion discussing the "continuing violation" doctrine in the context of discrimination in places of public accommodation as vast as Rutgers. See Thomas v. County of Camden, 386 N.J. Super. 582, 590 (App. Div. 2006) (stating "'[t]he prohibition of discrimination in relation to public accommodation is functionally distinct from the ban on employment discrimination'") (quoting Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 67 (1978)). Some authorities have addressed whether a discriminatory education environment exists, when reviewing student treatment in more confined settings than is present here. See, e.g., D.G. v. Somerset Hills Sch. Dist., 559 F. Supp. 2d 484 (D. N.J. 2008) (reviewed the issue in the context of allegations that high school administrators ignored requests for individualized services based upon a student's established depression); L.W. ex rel. L.G. v. Toms River Reg'l Sch. Bd. of Educ., 381 N.J. Super. 465 (App. Div. 2005) (recognizing unchecked high school peer harassment on the grounds of affectional or sexual orientation may lead to denial of the "advantages, facilities or privileges" of a public school), aff'd as modified, 189 N.J. 381 (2007).*fn3
Although there are differences, we analogize the standards set forth in employment discrimination cases to the matter at hand. As adapted to the educational, rather than the workplace, setting, a plaintiff alleging ethnic or racial discrimination under the LAD must prove that a defendant's conduct "'(1) would not have occurred but for the [students'] [race or ethnicity]; and the conduct was (2) severe or pervasive enough to make a (3) reasonable [person of that race or ethnicity] believe that (4) the conditions of [education] are altered and the working environment is hostile or abusive.'" Taylor, supra, 152 N.J. at 498 (quoting Lehmann v. Toys'R'Us, Inc., 132 N.J. 587, 603-04 (1993)).
While a single "incident of invidious harassment" may be sufficient to establish the fact of discrimination under the "severe or pervasive" test, id. at 499, "[g]enerally, 'mere utterance of an . . . epithet which engenders offensive feelings in an employee'" is insufficient. Id. at 501 (quoting Harris, supra, 510 U.S. at 21, 114 S.Ct. at 370, 126 L.Ed. 2d at 302 (1993)). The particular context of the incident is crucial: "'[w]hether the conduct is so severe as to cause the environment to become hostile or abusive can be determined only by considering all the circumstances, and this determination is left to the trier of fact.'" Id. at 502 (quoting Nadeau v. Rainbow Rugs, Inc., 675 A. 2d 973, 976 (Me. 1996)). Using these standards, we reject plaintiff's assertions of error.
Judge Happas found the alleged discrimination by Brattsten consisted of separate and distinct acts, which in and of themselves were not discriminatory, and not part of a continuation of the discrimination. No facts link Brattsten's grade award or graduation comments to any other defendant. The actions plaintiff complains of are not related in subject matter, except that they involved his grades. More important, there is nothing to evince she spoke to any other defendant about plaintiff or that they communicated information about him to her. Brattsten taught in the SEBS's Entomology Department and had no connection to the other Biochemistry Department professors named in the complaint.
Accordingly, Brattsten's conduct, were it discriminatory, did not constitute part of an ongoing and continuous pattern of discrimination. See Bolinger, supra, 330 N.J. Super. at 306. This break in the alleged chain of severe and pervasive harassment or discrimination disconnects the acts falling outside the limitations period. Moreover, the record, viewed in a light most favorable to plaintiff, does not provide evidence of an ongoing and continuous pattern of discrimination. Summary judgment was appropriately entered.