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Dover Davis, Jr v. Geraldo Torres

March 29, 2012

DOVER DAVIS, JR., PLAINTIFF-APPELLANT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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 ...


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