March 29, 2012
DOVER DAVIS, JR., PLAINTIFF-APPELLANT,
GERALDO TORRES, DEFENDANT, AND RITE AID OF NEW JERSEY, INC., DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5972-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 9, 2011
Before Judges Payne, Simonelli and Hayden.
Plaintiff, Dover Davis, Jr., an African-American, appeals from the court's October 15, 2010 order granting summary judgment to defendant Rite Aid of New Jersey, Inc. on plaintiff's claim of racial discrimination in a place of public accommodation in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and from the court's order of December 3, 2010 denying reconsideration. After reviewing the competent evidence presented in connection with Rite Aid's motion in a light most favorable to plaintiff and finding no genuine issues of material fact to exist, we conclude, as did the trial court, that Rite Aid must prevail as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). As a consequence, we affirm.
At a deposition given by plaintiff, he testified that on February 3, 2007, at around closing time, he went to the Rite Aid store on Shipyard Lane in Hoboken to purchase ice cream or cookies. After picking up his purchases, he walked to the check-out counter behind which Geraldo Torres was standing with a white male employee. The employee pointed at Torres, who gave plaintiff a hand sign to come forward. Plaintiff complied, but Torres just looked at him. Plaintiff then said, "Aren't you gonna greet me? Say hello or something?" Torres allegedly responded "What?" Whereupon plaintiff said: "Aren't you gonna, you know, say hello?" Torres then said something like "I don't have to do that." Plaintiff then asked to speak to the manager and walked away.
According to plaintiff, Torres then ran from behind the counter, started yelling and screaming at me, asking me to go outside and fight, bang it up. And then he called me a nigga. Then he ran outside the door. It was bizarre.
A supervisor came over to plaintiff, and he requested that she call the police. At the time, plaintiff's arm was in a sling as the result of rotator cuff surgery performed on January 12, 2007. As a consequence of his condition, plaintiff claimed that he was afraid to exit the store without protection. Although the supervisor declined to call the police, she apologized for Torres's behavior, and she completed the sale of the items plaintiff had selected. Plaintiff alleges that, after ten or fifteen minutes, Torres returned to the store. The supervisor then walked over to get him, and Torres apologized. Following the apology, plaintiff left the store. No further discriminatory acts took place.
The incident was recorded by the store's video cameras. However, the recording does not corroborate plaintiff's claim that Torres left the store. Rather, it shows Torres leaving the counter and walking away from plaintiff toward the back of the store. Similarly, the video recording shows the supervisor, after completing the sale, walking toward the back of the store and returning with Torres. The video is not accompanied by a sound recording. Plaintiff claims without proof that Rite Aid tampered with the video.
Plaintiff returned to the store on February 4, 2007, at which time he spoke to a District Manager, Camila Icasas, who gave him her card and requested that he make a complaint in writing. Plaintiff did so on the following day. Additionally, he returned to the store after two weeks to follow up on his complaint, and at that time he was told by the store manager that Rite Aid was doing an investigation. At the time, Torres was still employed. However, his employment was terminated on March 1, 2007 as the result of the incident.
Plaintiff testified additionally that some time after the incident, he observed Torres and "two of his buddies" waiting for him in the cold outside his residence at the Hoboken YWCA. "They stood in front of my residence and stared at the front door. They stood outside in the cold for maybe - for hours just standing on the corner." As a consequence, plaintiff filed a criminal complaint against Torres, and Torres filed a cross-complaint against plaintiff. Because plaintiff's complaint was served on Torres at Rite Aid, plaintiff claims that Rite Aid had notice of Torres's stalking, but did nothing about it. However, the criminal complaint, which plaintiff has included in the record on appeal although it did not form a part of the record in the trial court, alleges "Harassment" occurring on "2-3-07 9:30 p.m." It thus appears to refer to the February 3 incident, and provides no notice of plaintiff's stalking allegation. Both complaints were ultimately dismissed voluntarily.
Plaintiff testified that, prior to February 3, 2007, he had observed a store employee named Raul, an unnamed Latino female, and another woman treat African-American customers less well than white customers, declining to greet or smile at them. Plaintiff testified specifically that Raul had greeted him by saying "What's up, boss," whereas he greeted whites with "Hello, sir, how are you today?" Plaintiff voiced his objections to the differential treatment directly to Raul. Additionally, he claims to have reported the conduct to store personnel, and his complaints appear in the letter that he wrote to Icasas. In that letter, he admitted that, after speaking to Raul, he "displayed professionalism by greeting me properly and with a smile." It is unclear from the record whether plaintiff voiced his objections to the other clerks, and whether their conduct changed as a consequence of plaintiff's direct complaints or store action.
On December 5, 2006, plaintiff, represented by counsel, filed a complaint seeking damages from Torres*fn1 and Rite Aid and alleging various causes of action that were dismissed as the result of a prior order of partial summary judgment from which no appeal has been taken, and violation of the LAD. Following completion of plaintiff's deposition and his service of answers to interrogatories, Rite Aid successfully moved for summary judgment on the LAD claim, and plaintiff's motion for reconsideration was denied. This appeal followed.
N.J.S.A. 10:5-4 recognizes as a civil right the opportunity "to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation . . . without discrimination because of race[.]" To protect that right, N.J.S.A. 10:5-12f declares it to be unlawful discrimination for any owner, lessee, proprietor, manager, superintendent, agent, or employee of any place of public accommodation directly or indirectly to refuse, withhold from or deny to any person any of the accommodations, advantages, facilities or privileges thereof, or to discriminate against any person in the furnishing thereof . . . on account of the race . . . of such person[.]
A "place of public accommodation" is defined in N.J.S.A. 10:5-5l to include a "retail shop, store, establishment, or concession dealing with goods or services of any kind." Thus Rite Aid is clearly a place of public accommodation to which the LAD applies.
In this case, plaintiff's ability to shop at Rite Aid was not ultimately impaired, although, if his recitation of events is to be credited, as it must be at this stage, he certainly was made to feel unwelcome as the result of his race. We have held, in a somewhat analogous case in which plaintiff alleged an unretracted statement by a resort owner that handicapped persons were not welcome at the location, although the affected person was in fact permitted to picnic there:
It is unquestionably a violation of the LAD for the owner or operator of a public accommodation to tell a person, either directly or indirectly, that his or her patronage is not welcome because of a trait or condition which the LAD protects from discriminatory action, even though use of the facility on the particular occasion is not denied. Evans v. Ross, 57 N.J. Super. 223, 231 (App. Div.) (noting that once "a proprietor extends his invitation to the public he must treat all members of the public alike"), certif. denied, 31 N.J. 292 (1959). See generally Uston v. Resorts Int'l Hotel, Inc., 89 N.J. 163, 173 (1982) (stating that "when property owners open their premises to the general public in the pursuit of their own property interests, . . . they have a duty not to act in an arbitrary or discriminatory manner towards persons who come on their premises"). [Franek v. Tomahawk Lake Resort, 333 N.J. Super. 206, 216 (App. Div.), certif. denied, 166 N.J. 606 (2000).]
As a consequence, in Franek, we reversed an order of summary judgment in favor of the resort and remanded the matter to permit the plaintiff to offer plenary proofs in support of her claim. Id. at 218-19.
We reached a similar conclusion in Turner v. Wong, 363 N.J. Super. 186 (App. Div. 2003), when we reversed an order of summary judgment in favor of a donut shop owner who refused to provide an African-American customer with a requested replacement donut after she had bitten into the first one and declared it stale, accompanying the refusal with repeated racial epithets. In doing so, we relied on Franek, and we held that it was "for a jury to determine whether the racial insults were in fact uttered by defendant and, if so, whether they were designed to discourage plaintiff's use of a public accommodation on that day or in the future because of her race." Id. at 213.
However, in both Franek and Turner, the discriminatory comments were uttered by the entity's owner, the party that the plaintiff sought to hold responsible, and the comments were unretracted. In the present matter, plaintiff seeks to hold Rite Aid responsible for comments by an employee as to which remedial action was taken. Thus, the legal analysis is more complex, but nonetheless settled.
We derive the standard applicable to this case from the Supreme Court's analysis of discrimination in places of public accommodation in an action against a school district by a student who alleged discrimination by fellow-students on the basis of perceived sexual orientation. L.W. v. Toms River Reg'l Schs. Bd. of Educ., 189 N.J. 381 (2007). There, the Court held that the appropriate standard was similar to the hostile work environment sexual harassment standard of liability set forth in Lehman v. Toys 'R' Us, 132 N.J. 587, 622 (1993). In Lehmann, the Court held that an employee states a claim for hostile work environment when the employee alleges "severe or pervasive" discriminatory conduct that "create[s] an intimidating, hostile, or offensive working environment." Id. at 592. In later cases, it has been established that a single offensive comment can be enough to meet the Lehmann standard. Taylor v. Metzger, 152 N.J. 490, 501-03 (1998) (holding that use of the racial slur "jungle bunny" could create a hostile work environment).
Additionally, the L.W. Court noted, in Lehmann, the Court established that, under the LAD an employer will be liable for compensatory damages for a hostile work environment in three circumstances: (1) when the employer grants a supervisor authority to control the workplace and the supervisor abuses that authority to create a hostile environment, id. at 620; (2) when the employer negligently manages the workplace by failing to enact anti-harassment policies and mechanisms, id. at 621-22; or (3) when the employer has actual or constructive knowledge of the harassment and fails to take effective measures to end the discrimination.
[L.W., supra, 189 N.J. at 403.]
In L.W. and in the present case, it is the last circumstance that is relevant to the appeal.
As the L.W. Court noted: "The Lehmann Court stated that liability may be appropriate 'if the employer had actual knowledge of the harassment and did not promptly and effectively act to stop it.'" Id. at 403-04 (quoting Lehmann, supra, 132 N.J. at 622).
"When an employer knows or should know of the harassment and fails to take effective measures to stop it, the employer has joined with the harasser in making the working environment hostile. The employer, by failing to take action, sends the harassed employee the message that the harassment is acceptable and that the management supports the harasser. 'Effective' remedial measures are those reasonably calculated to end the harassment. The 'reasonableness of an employer's remedy will depend on its ability to stop harassment by the person who engaged in harassment.'"
[L.W., supra, 189 N.J. at 404 (quoting Lehmann, supra, 132 N.J. at 623 (quoting Ellison v. Brady, 924 F.2d 872, 882 (9th Cir. 1991))) (internal citations omitted and emphasis added by L.W. Court).]
Turning to the case before it, the L.W. Court applied the LAD standard governing hostile work environment sexual harassment to the plaintiff's claims against a school district of schoolboy harassment based on perceived sexual orientation, modifying the standard only to take into account, in a consideration of the totality of the circumstances, the unique characteristics of a school environment and the level of maturity of its pupils. Id. at 406-10.
We find the standard adopted by the Court in L.W. to be equally applicable in the present context of employer liability for the discriminatory statements of an employee in a store environment, giving rise to the impression that a customer was not welcome in the store as the result of his race. Applying that standard to the facts of the matter, we find no basis for liability on Rite Aid's part. Nothing in the record suggests that Torres had previously uttered a discriminatory comment, or that an intent by him to discriminate was known to Rite Aid. When the comments became known to Rite Aid's management shortly after they were uttered, a prompt apology by management was given, followed by a further apology from Torres. When plaintiff complained the next day to the District Manager, he was requested to file a written complaint, and he was offered the information necessary to do so. Thereafter, an investigation occurred, and Torres was fired within three weeks of the incident. No further acts of alleged discrimination took place upon plaintiff's subsequent trips to the store.
Although plaintiff has alleged that Rite Aid knew that Torres stalked him at some point after the incident and that Rite Aid declined to act, plaintiff has failed to set forth any competent evidence that would suggest such knowledge on Rite Aid's part. Further, plaintiff has failed to allege any basis for a finding by a jury that Rite Aid's investigation into Torres's conduct was negligently conducted, or that it constituted a pretext for Torres's continued employment. Thus, the proofs fail to establish grounds upon which a jury could find Rite Aid to be liable to plaintiff for racial discrimination in violation of the LAD in this case. Summary judgment was therefore properly granted.
Plaintiff claims additionally that the trial court erred in finding that plaintiff lacked standing to seek reconsideration and in ignoring the negligence of plaintiff's counsel "pursuant to Rule 4:50-1." We find those arguments to be of insufficient merit to warrant an extended discussion in a written opinion.
R. 2:11-3(e)(1)(E). In this regard, we note that the trial court stated in its decision on the reconsideration motion that it had considered all of the evidence presented, including the entire transcript of plaintiff's deposition, in granting summary judgment, and that in seeking reconsideration, plaintiff had failed to demonstrate, as required by Rule 4:49-2, that the court had "expressed its decision based upon a palpably incorrect, or irrational basis, or it [was] obvious that the court either did not consider, or failed to appreciate the significance of probative, competent evidence." We find no grounds to disturb that ruling.