On appeal from Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-867-08.
The opinion of the court was delivered by: Payne, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Reisner and Simonelli.
The opinion of the court was delivered by PAYNE, P.J.A.D.
Plaintiff, Myron Cowher, appeals an order of summary judgment entered against him and in favor of his employer, Carson & Roberts Site Construction & Engineering, Inc., and his supervisors, Gary Merkle, Jay Unangst and Nick Gingerelli, dismissing his claim for damages pursuant to the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. Plaintiff claims that defendants, wrongly perceiving him to be Jewish, directed anti-Semitic comments at him on a daily basis from January or February 2007 to May 2008, when plaintiff left his employment for unrelated reasons, thereby creating a hostile work environment in violation of N.J.S.A. 10:5-12a. In granting summary judgment, the trial court held that admitted antiSemitic slurs uttered by Unangst and Gingerelli were not actionable because New Jersey did not recognize a cause of action premised upon perceived membership in a protected group other than disabled persons and because plaintiff had offered no evidence that defendants perceived him to be Jewish. We reverse as to all defendants with the exception of Gary Merkle, as to whom we find summary judgment was properly entered.
Plaintiff was employed as a truck driver by Carson & Roberts from April 2006 until May 28, 2008. During the period relevant to his complaint of anti-Semitic harassment, plaintiff was directly supervised by Unangst, the company's Logistics Manager, and, when Unangst was unavailable, by Gingerelli, the company's Service Equipment Manager. Unangst and Gingerelli, whom Unangst described as "bookends, partners," shared an office in a building on the premises that was operated as a shop. Merkle was the company's Facility Manager. As Merkle described it, "Jay [Unangst] handled the dispatching, Nick [Gingerelli] handled the service work, I handled the administrative functions."
In his complaint, filed on December 18, 2008, plaintiff alleged the continual utterance of explicit slurs about Jews directed toward him from January 2007 up to May 28, 2008. But in a response to plaintiff's demand for admissions, dated December 16, 2009, defendants denied that: "One or more of the defendants on one or more occasions made jokes or derogatory comments about Jews while the plaintiff was employed by the defendants." However, on March 15, 2010, in response to defendants' demand for production of documents, plaintiff produced DVDs that contained video-recordings*fn2 of the use by Unangst and Gingerelli of the following comments in plaintiff's presence: "Jew Bag," "Fuck you Hebrew," "Jew Bastard," "Where are [you] going, Jew," "I have friends in high places, not in fucking temple," "Jew Shuffle," "If you were a German, we would burn you in the oven," "We have Jews and Niggers that work here," and "Only a Jew would argue over his hours." Plaintiff claimed in his deposition that such remarks occurred on a daily basis and were made in front of people coming to service the company's equipment and delivery persons. Plaintiff testified that both Unangst and Gingerelli believed that he was Jewish, and because of their comments, several other employees did, as well.
In his deposition, given after the DVDs had been produced, Unangst admitted that they contained an accurate depiction of what occurred. He also testified that "perhaps" he had commented to plaintiff about "Jew money," and he admitted that he used the Hebrew folk song Hava Nagila as the ring tone for calls on his cell phone from plaintiff. When the deposition of Gingerelli was taken, he admitted that he had called plaintiff "Jew bag," testifying that he "couldn't put a number" on the times he had done so, stating further, "20 times, I don't know to be exact." Gingerelli additionally admitted that he probably called plaintiff a "bagel meister," a "Jew burger" and a "fucking Hebrew." Plaintiff testified that he told both men to stop the comments, but that they had not done so.
Plaintiff testified that Merkle had never made any antiSemitic comments to him. However, plaintiff stated that Merkle had been present on a half-dozen occasions when Unangst or Gingerelli made offensive comments, and on a couple of those occasions, Merkle told them that was not the right thing to do. Plaintiff testified additionally that, commencing early in 2007, he had complained directly to Merkle. Plaintiff testified:
I told him at the time, I said I'm not sure why they're doing what they're doing, but they're referring to me as every Jewish slur there is that they could think of. And he said [the first time], well, just laugh it off and they'll forget about it.
When, after a few weeks, the comments had not abated, plaintiff told Merkle that the same thing was still going on, and this time Merkle responded, "ignore it this time and it'll go away." Plaintiff testified that he spoke to Merkle "multiple times after that," and that Merkle counseled him to ignore the harassment or told him it would stop. Although Merkle agreed to speak to Unangst and Gingerelli, plaintiff "assume[d] he didn't," because "it progressively got worse, especially around May."
In May 2008, when delivering trailers to the farm of the company President, Dan Carson, plaintiff told Carson that he "needed to speak to him regarding issues in their back office and the attacks that Jay and Nick were throwing at me, verbal attacks." However, plaintiff did not specify the nature of the attacks. Carson instructed him to make an appointment through Merkle. However, before he could do so, plaintiff left the company as the result of a disability.
While now admitting to the comments that plaintiff has alleged,
Unangst and Gingerelli have claimed they merely formed parts of a
locker-room type exchange of racial, ethnic, religious, and
appearance-based comments in which plaintiff willingly participated,
along with them and other co-employees. Additionally, they have denied
that they perceived plaintiff to be Jewish, and they have traced the
origin of their comments to the fact that plaintiff and his wife took
a cut on the proceeds of a Super Bowl pool that they were running,
thereby conforming to the stereotype of Jews as avaricious.*fn3
Merkle claimed that he received no complaints from plaintiff,
and he characterized the "banter" that he had overheard between
Gingerelli and plaintiff as coming from "two grown men engaging each
other in light heartedness."
A Jewish plaintiff alleging an anti-Semitic hostile work environment in violation of the LAD "must demonstrate that the defendant's 'conduct (1) would not have occurred but for the employee's [Judaism]; and [the conduct] was (2) severe or pervasive enough to make a (3) reasonable [Jew] believe that (4) the conditions of employment are altered and the working environment is hostile or abusive.'" Taylor v. Metzger, 152 N.J. 490, 498 (1998) (quoting Lehmann v. Toys 'R' Us, 132 N.J. 587, 603-04 (1993)). In determining whether the conduct is "severe or pervasive," the Court has held that "it is the harassing conduct" that must be severe or ...