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December 1, 2010


Per curiam.


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 conditions of employment and create an intimidating, hostile, or offensive work environment.

[El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 178 (App. Div. 2005) (citing Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603--04 (1993)).]

The inquiry is "whether a reasonable person of plaintiff's [protected class] would consider the alleged . . . comments made by or in the presence of plaintiff's supervisors to be sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile or offensive working environment." Heitzman v. Monmouth County, 321 N.J. Super. 133, 147 (App. Div. 1999). "[A] plaintiff must also show that the 'complained-of conduct . . . would not have occurred but for [his or her] [status as a member of a protected class].'" El-Siouffi, supra, 382 N.J. Super. at 178 (quoting Lehmann, supra, 132 N.J. at 587).

"An actionable claim under LAD based upon a hostile work environment frequently arises out of repeated incidents that take place over time and[,] by their cumulative effect[,] make it unreasonable and unhealthy for the plaintiff to remain in that work environment." Caggiano v. Fontoura, 354 N.J. Super. 111, 126 (App. Div. 2002). To be sure, a single instance of conduct can be so patently offensive that it may constitute severe conduct for purposes of the Lehmann test. Lehmann, supra, 132 N.J. at 606--07. However, it is a "rare and extreme case in which a single incident will be so severe that it would, from the perspective of a reasonable [person], make the working environment hostile . . . ." Ibid. As stated by the United States Supreme Court, "discourtesy or rudeness should not be confused with racial [or ethnic] harassment . . . ." Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S. Ct. 2275, 2283, 141 L. Ed. 2d 662, 676 (1998). Ultimately, when determining whether conduct is severe or pervasive, a court must consider all of the circumstances. Taylor v. Metzger, 152 N.J. 490, 502 (1998).

Moreover, in holding an employer liable for creating a hostile work environment, a plaintiff must also "show that the harassment was done by a 'supervisor' who was acting [as the employer's] agent under traditional agency principles." Entrot v. BASF Corp., 359 N.J. Super. 162, 171 (App. Div. 2003). "The reason for demanding that the harassing employee be a supervisor, as opposed to a non-supervisory co-worker, is that employers normally do not invest the latter class of employee with any authority that might be used to harass another employee." Id. at 172. In this regard, the Court has adopted a four-pronged test to determine when an employer aids an employee in violating the LAD. Lehmann, supra, 132 N.J. at 620. A court must decide whether:

1) the employer delegated to the supervisor the authority to control the situation leading to the plaintiff's complaint; 2) the supervisor exercised that authority; 3) a LAD violation resulted; and 4) the authority delegated by the employer to the supervisor aided the supervisor in injuring the plaintiff.

[Ibid.] The essential inquiry is whether the employer has delegated to a supervisor the ability "to control the day-to-day working environment" which facilitates the harassing conduct. Ibid.; see also Davis v. Devereux Found., 414 N.J. Super. 1, 16 (App. Div. 2010).

The plaintiff in Entrot sued her employer on the basis of a hostile work environment created by the sexual assault of her project leader. Entrot, supra, 359 N.J. Super. at 166, 184. We reversed the trial court's grant of summary judgment, finding that the plaintiff had raised a genuine issue of fact as to whether the project leader was a supervisor for the purposes of the LAD and whether the employer was liable for his actions because of the authority the company placed with him. Id. at 184-85. Specifically, we found that the trial court must look at "whether the power the offending employee possessed was reasonably perceived by the victim, accurately or not, as giving that employee the power to adversely affect the victim's working life." Id. at 181. This determination includes an analysis of whether the employee had "the power to fire and demote, to influence compensation, and to direct all job functions . . . ." Ibid. We found that the project leader had considerable power over the plaintiff, including the power to affect her future employment and the ability to direct job functions. Id. at 184.

Hostile work environment claims under the LAD are subject to a two-year statute of limitations period. Montells v. Haynes, 133 N.J. 282, 292 (1993). However, New Jersey courts have adopted the continuing violation doctrine to permit recovery for the entire pattern of conduct that cumulates in a hostile environment, despite the fact that some of that conduct occurred outside the otherwise applicable limitations period. See Wilson v. Wal-Mart Stores, 158 N.J. 263, 266 (1999). Under the continuing violation theory, a court will allow a claim to proceed "so long as at least one of a series of acts, which together created the hostile environment, fell within the statutory period . . . ." Caggiano, supra, 354 N.J. Super. at 132. In evaluating whether alleged incidents of discrimination constitute a continuing violation, a court should look to "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." [Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 19--20 (2002) (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114--18, 122 S. Ct. 2061, 2073--79, 153 L. Ed. 2d 106, 123--25 (2002)).]

Governed by these principles, plaintiff has not established a prima facie claim of a hostile work environment sufficient to withstand summary judgment. There is absolutely no proof that the April 13, 2006 lunchroom incident was instigated by plaintiff's supervisor or, for that matter, anyone with the apparent or actual authority to act on behalf of NJT, or that the employer knew or should have known of the alleged harassment, much less aided in its accomplishment. In fact, plaintiff offers nothing but rank speculation that Lopes, who had no direct working relationship with plaintiff at the time, let alone day-to-day control over his working environment, was the person who placed the offensive pamphlet in the employee lunchroom. Nor has plaintiff demonstrated a genuine issue of material fact as to whether the complained-of conduct, as perceived by a reasonable person in plaintiff's protected class, was either severe or pervasive, or occurred because of his national origin.

The same reasoning essentially applies to Lopes's conduct prior to the March 18, 2003 incident involving Oppici. Although Lopes was plaintiff's supervisor at the time, plaintiff has not shown that Lopes's allegedly harassing conduct "would not have occurred but for [plaintiff's national origin]." El-Sioufi, supra, 382 N.J. Super. at 178. On the contrary, plaintiff admitted that Lopes mistreated all his subordinate employees alike, regardless of their race or national origin. In other words, there is no proof that plaintiff was singularly targeted from this group for harassment, much less because of his ethnicity.

Equally lacking is any evidence from which to infer that the March 18, 2003 incident created a hostile environment in violation of the LAD. Most significant, Oppici was not plaintiff's supervisor and, in fact, worked in an entirely separate division. Nor is there competent proof that Oppici acted other than individually and independent of management in filing a criminal complaint against plaintiff. Indeed, according to plaintiff himself, Oppici's action was motivated by retaliation for plaintiff's complaints about Lopes threatening his family and not by any ethnic animus.

Not only was there no demonstrated causal connection between the alleged workplace harassment and plaintiff's ethnicity, but the conduct occurring before March 2004 that formed part of the basis of plaintiff's hostile work environment claim is not actionable as time-barred. In this regard, we reject plaintiff's argument that the applicable two-year statute of limitations was tolled under the "continuing violation theory" because the hostile work environment created by the March 18, 2003 incident continued through to the April 18, 2006 incident, which is within the limitations period. Plaintiff has failed to show any relationship between these incidents or that the alleged harassment was consistent, persistent or unrelenting throughout this time. The occurrences of March 18, 2003 and April 13, 2006 were discrete and separated by a three-year time span, during which plaintiff had little or no contact with either Lopes or Oppici and voiced no complaints concerning any harassing conduct due to his national origin. Simply put, the complained-of events were isolated and infrequent and, even if attributable to NJT, cannot reasonably be considered part of a continuing hostile environment sufficient to trigger the continuing violation theory. As such, incidents predating March 2004 are time-barred and those occurring subsequently, for reasons already stated, do not suffice to support a hostile work environment claim.

We have considered plaintiff's remaining argument that the trial court should have denied the summary judgment motion for non-compliance with Rule 4:46-2 and deem it without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).


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