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Christopher Bastos v. State of New Jersey; Attorney General of the State of New Jersey

May 25, 2011

CHRISTOPHER BASTOS, PLAINTIFF-APPELLANT,
v.
STATE OF NEW JERSEY; ATTORNEY GENERAL OF THE STATE OF NEW JERSEY; STATE OF NEW JERSEY -DIVISION OF STATE POLICE; SUPERINTENDENT OF THE DIVISION OF STATE POLICE; JEFFREY CRAPSER; SALVATOR DIPAOLA, JONNY HANNIGAN, DEFENDANTS-RESPONDENTS, AND DEFENDANT.



On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2460-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 1, 2010

Before Judges Gilroy and Ashrafi.

Plaintiff Christopher Bastos appeals from orders for summary judgment dismissing his discrimination claims against the New Jersey State Police (NJSP) and individual supervisors under whom he worked as a State Trooper for less than six months. We affirm.

As the trial judge found, plaintiff was subjected to crude and offensive conduct that created a hostile work environment, but the conduct was not because plaintiff is Hispanic. The supervisors' misconduct was directed at plaintiff because he was a new, inexperienced recruit, and they were generally abusive supervisors. The Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, prohibits discrimination because of a person's identification with certain protected classes of people. It does not provide a legal remedy against generally offensive or hostile conduct of an employer.

I.

In October 2003, plaintiff filed a complaint against the State of New Jersey, the State Attorney General, the NJSP, the Superintendent of the Division of State Police, and plaintiff's immediate State Police supervisors, Jeffrey Crapser, Salvator DiPaola, and Jonny Hannigan. Among other claims, plaintiff asserted causes of action for retaliation in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, disparate treatment in violation of the LAD and the New Jersey State Constitution, and retaliation, hostile work environment, and disparate impact in violation of the LAD.

After lengthy pretrial litigation, the trial court granted summary judgment dismissing all of plaintiff's claims except the CEPA claim against the institutional State defendants. On the date scheduled for trial in April 2009, plaintiff voluntarily dismissed the CEPA claim with prejudice so that he could pursue this appeal as from a final judgment. Plaintiff seeks only reinstatement of his LAD and State constitutional claims of hostile work environment and retaliation against the NJSP, Crapser, and DiPaola.

Viewed most favorably to plaintiff, see R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the evidence established by the summary judgment record included the following claims of hostile work environment and retaliation.

Before being recruited to join the NJSP, plaintiff was a police officer in New York City. During his training at the NJSP Academy, another recruit said in the presence of other classmates that plaintiff was a "token" who was recruited because he was Hispanic. Plaintiff graduated from the NJSP academy in June 2002 and was assigned to the Red Lion barracks. At Red Lion, plaintiff's immediate supervisors were defendant Crapser, a staff sergeant, and defendant DiPaola, who was performing the tasks of a patrol sergeant although he did not have that rank. Defendant Hannigan, a lieutenant, was Red Lion's station commander.

In July 2002, DiPaola ordered plaintiff to keep his head shaved. Plaintiff did not believe DiPaola's order concerned his ethnic heritage. Also in July 2002, DiPaola asked plaintiff to chew tobacco with him. When plaintiff declined, DiPaola commented, "If you want to be a man, you have to chew tobacco. Don't be a pussy. I'll bet you smoke a lot of weed." Plaintiff believed that DiPaola's reference to marijuana was related to a discussion during the same time of plaintiff's Hispanic heritage, but DiPaola did not mention Hispanics when he made the reference to marijuana.

In his deposition, plaintiff testified that Crapser and DiPaola called him and other Troopers derogatory names. For example, Crapser often called him "NYPD," a reference to his prior employment. On one occasion, DiPaola referred to plaintiff as "fuzz nuts." Plaintiff also claimed that DiPaola "constantly screamed at" him, calling him "a dumb f***, a nitwit." In August 2002, DiPaola called plaintiff a "bastard" on one occasion and "bastido" on another. Plaintiff confronted DiPaola after the first incident, and DiPaola responded, "[g]et the f*** out of . . . [my] face." Plaintiff felt threatened. Other Troopers also told plaintiff DiPaola had used the word "bastido" in reference to him.

Former Trooper Lisa Bortz submitted a certification in support of plaintiff's opposition to summary judgment stating that she heard DiPaola refer to plaintiff by the word "bastido" several times when plaintiff was not present. She understood the word to be a combination of plaintiff's Hispanic last name (Bastos) and the word "bastard," and she believed DiPaola's adding the letter "o" was "meant to mimic the sound of the Spanish language." She considered the term a "racial slur." Bortz also stated that DiPaola and Crapser used derogatory nicknames in referring to other Troopers, some of which were racial slurs. For example, they referred to certain African- American Troopers as "Busta Rhymes," "Shaft," "Snoop Dog," and "Magilla Gorilla."

Another Trooper, Douglas Kaczor, provided a statement to the NJSP that he had heard DiPaola and Crapser refer to plaintiff as "bastido" on several occasions. Plaintiff complained to him that DiPaola had called him "Chris Bastard." Kaczor stated that DiPaola had also distorted Kaczor's name, calling him "cocksore." However, Kaczor was not offended; others had done the same before he joined the NJSP. According to Kaczor, DiPaola called many male Troopers "cocksucker," but Kaczor did not attribute discriminatory purpose to that vulgarity.

During plaintiff's initial days at Red Lion, Trooper Ronald Walter was assigned as his "Trooper coach" and helped him "learn the ropes." Plaintiff complained to Walter about DiPaola calling him "bastido," indicating his frustration that DiPaola did not know the correct pronunciation of his name despite his two months at Red Lion. Plaintiff did not recall whether he told Walter he considered the reference an ethnic slur. At the conclusion of the training period, Crapser and DiPaola disclosed to ...


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