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SAMI HELMI and EKBAL HELMI v. NEW JERSEY TRANSIT RAIL CORPORATION and NEW JERSEY TRANSIT RAIL

December 1, 2010

SAMI HELMI AND EKBAL HELMI, PLAINTIFFS-APPELLANTS,
v.
NEW JERSEY TRANSIT RAIL CORPORATION AND NEW JERSEY TRANSIT RAIL OPERATIONS, DEFENDANTS-RESPONDENTS, AND JOSEPH OPPICI AND EVERT LOPES, DEFENDANTS.



Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 3, 2010 -- Decided December 1, 2010

Before Judges Skillman and Parrillo.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2398-06. Richard S. Mazawey, attorney for appellant.

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Gregory A. Spellmeyer, Deputy Attorney General, on the brief).

Plaintiff Sami Helmi*fn1 appeals from the summary judgment dismissal of his complaint alleging that defendant New Jersey Transit Corporation (NJT) created a hostile work environment based on his national origin in violation of New Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. We affirm.

Viewed in the light most favorable to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the facts are as follows. Plaintiff is of Egyptian descent, having immigrated to the United States in 1981. He commenced working for New Jersey Transit as an electrical engineer in March 1987. He was promoted to lead electrician in 1995 and, two years later, took a position on the night shift, which resulted in a reduction in rank. In 2005, plaintiff was promoted back to lead electrician. He continues to work as an electrician for NJT to date.

Evert Lopes became plaintiff's supervisor in 1991. According to plaintiff, Lopes harassed him and other employees under Lopes's supervision from 1994 until 2003, when Lopes took a leave of absence. The harassment consisted of cursing, striking an employee with a baseball bat and threatening to kill another employee on separate occasions. Plaintiff complained to Lopes's supervisor about the latter incident and believed that Lopes harbored resentment against him because of that report. Plaintiff also complained to the NJT manager at Newark Pennsylvania (Penn) Station about an incident in 2000, wherein Lopes threatened plaintiff's family after plaintiff refused an order to open a window at the station for lack of the necessary tools. Despite these oral complaints, plaintiff never filed a formal complaint with NJT or the Equal Employment Opportunity Commission. As noted, Lopes took a leave of absence from work in 2003, but upon his return, never again directly supervised plaintiff.

Another incident that formed the basis for plaintiff's hostile work environment claim occurred on March 18, 2003. According to plaintiff, while observing a co-worker, Joseph Oppici, setting up barricades around Newark Penn Station, plaintiff questioned whether they were spaced too far apart to prevent vehicles from driving through. Oppici replied that he was instructed to place the barricades in that manner. The next day, Oppici filed a complaint with the New Jersey Transit Police, accusing plaintiff of making terroristic threats and claiming that plaintiff said to position the barricades in a manner that would allow his cousins to drive a truck load of explosives under Newark Penn Station.

Plaintiff was arrested on March 25, 2003 and charged with making terroristic threats and causing alarm. As a result, NJT placed plaintiff on suspension pending an internal investigation. NJT eventually charged plaintiff administratively with violating its employment manual. The administrative action was concluded on November 11, 2003, when plaintiff executed a waiver in which he admitted to violating the rule prohibiting "[c]onduct unbecoming an employee of NJ Transit's" and agreed to forfeit back pay for time lost, as well as not work at Newark Penn Station for one year. The outstanding criminal charges were dismissed on December 8, 2003.*fn2

Upon his return to work from suspension in December 2003, plaintiff was stationed at the Meadowlands Maintenance Complex (MMC) in Kearny, where he remained without incident for about two years as a regular electrician. In late 2005, after a four-week leave of absence following an unrelated incident wherein he refused to operate a bucket lift with which he was unfamiliar, plaintiff was transferred back to Newark Penn Station in February 2006.*fn3 According to plaintiff, he did not experience any hostile work incidents upon returning to Newark Penn Station until April 13, 2006, when he noticed a pamphlet on the lunch table in the station's electrical shop that dealt with Bin Laden and Al Qaeda. Plaintiff speculates that Lopes who, upon his return to work, was the station manager at the time but did not directly supervise plaintiff, placed the pamphlet on the table. When plaintiff read the contents, he "freaked out."

Claiming severe emotional distress, on March 22, 2006, plaintiff sued NJT, Lopes and Oppici, alleging, among other things, a hostile work environment in violation of the LAD.*fn4

Upon completion of discovery, NJT moved for summary judgment. Following argument, the Law Division granted the relief, dismissing plaintiff's complaint in its entirety.*fn5 Specifically, as to plaintiff's hostile work environment claim, the motion judge found that any event or incident complained of that preceded March 2004 was barred by the two-year statute of limitations and that any such incident occurring thereafter did not constitute harassment because it was not based on plaintiff's national origin, was neither pervasive nor severe, and was not attributable to either Oppici or Lopes or chargeable to NJT. We agree.

In a LAD-based hostile environment claim, a plaintiff must demonstrate that: (1) the conduct complained of was unwelcome; (2) that it occurred because of the plaintiff's inclusion in a protected class under the LAD; and (3) that a reasonable person in the same protected class would consider it sufficiently severe or pervasive to alter the ...


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