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Mary Hunt v. Charles Callahan

November 5, 2012

MARY HUNT, PLAINTIFF-APPELLANT,
v.
CHARLES CALLAHAN, AND VETERANS OF FOREIGN WARS POST 2189, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1493-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 2, 2012

Before Judges Reisner and Yannotti.

Plaintiff Mary Hunt (Hunt) appeals from orders entered by the Law Division on November 18, 2011, granting summary judgment in favor of defendants Charles Callahan (Callahan) and the Veterans of Foreign Wars, Post 2189 (VFW). Hunt also appeals from an order entered on January 6, 2012, denying her motion for reconsideration. For the reasons that follow, we affirm.

I.

We briefly summarize the relevant facts. Hunt is of Korean and Puerto Rican ancestry, and she is a member of the Religious Society of Friends, which is also known as the Quakers. Hunt was employed by the United States Department of Veterans Affairs (DVA) as a social worker. Hunt was one of four workers at the DVA's "Vet Center" who provided counseling for veterans suffering from post-traumatic stress disorder. The other workers were Hunt's immediate supervisor, George Gumpper (Gumpper), Susan McPherson (McPherson), and Terry Brennan. Callahan is a veteran of the Vietnam War. He also is a member of the VFW, and acted at times as a volunteer bartender for the VFW.

In 2007, Callahan told a counselor at the Vet Center that Hunt was a member of the American Friends Service Committee (AFSC), was a traitor, could not be trusted and should not be working there. Callahan's statements were based on conversations he had with his wife, who had worked with Hunt at the Vet Center. In October 2007, McPherson told Hunt what Callahan said to him in the counseling session. Hunt thereupon telephoned Callahan and told him she was not a traitor "like Jane Fonda," was not a member of the AFSC, and had never "supported" Ho Chi Minh. Hunt told Callahan his statements were slanderous and he should stop making them.

After Hunt's call, Callahan's wife told him that Hunt was too young to have demonstrated against the Vietnam War or have "supported" Ho Chi Minh. Callahan's wife also called Gumpper and told him that Hunt had acted inappropriately by calling her husband at home and discussing statements made in confidence to a DVA counselor. She threatened to sue. Callahan also wrote to persons in charge of the Vet Center and to the Attorney General of New Jersey complaining about Hunt's call.

From June 5, 2008 to June 9, 2008, the VFW and other organizations hosted the Vietnam Moving Wall, an event featuring a replica of the Vietnam War Memorial in Washington, D.C. Hunt testified that on June 6, 2008, Gumpper told her that Callahan had been complaining about her and that the DVA counselors should remain in the tents outside the VFW building to avoid Callahan.

Hunt claimed that, on June 7, 2008, she went into the VFW building to drop off some materials. She asserted that, upon entering the VFW building, she heard several people at the bar and around the room making comments, such as "what is she doing here?" and "kick her out." It was dark in the room and Hunt could not identify the persons who allegedly made these remarks. She left the building.

On June 8, 2008, Hunt arrived at the Moving Wall event at around 2:45 p.m. When she arrived, McPherson told her that Callahan was complaining about her. According to Hunt, Callahan was telling people she was a traitor, belonged to the AFSC, could not be trusted, and should not be at the event.

Hunt called her husband, Bernard Graebner (Graebner), and asked him to speak with Callahan. Graebner arrived at the VFW around 5:00 p.m. He went to the bar and was told that Callahan was not expected there until 7:00 p.m. Graebner went outside to a tent and remained there with Hunt.

Hunt testified that, while she and her husband were in the tent, she heard Callahan state "Jane Fonda, Ho Chi Minh, American Friends Service Committee, she is a traitor, she shouldn't be here, and get her out of here." Hunt approached Callahan and asked him who he was. Callahan identified himself. According to Hunt, Callahan asked her several times whether she was a member of the AFSC.

At some point, someone asked Hunt and Callahan to take their discussion outside of the tent. They left, and Graebner left with them. Callahan and Graebner walked to the parking lot and Graebner asked Callahan if he knew that Hunt had been raised on an army post and that her father was a Lieutenant Colonel. Callahan told Graebner, "[s]o was Jane Fonda's father."

Callahan also told someone at the event that Hunt was affiliated with the AFSC. He denied, however, that he ever called Hunt a traitor, although he believed that she was a traitor to veterans because she had protested war. He was not aware that Quakers generally protest war, and he did not believe that protesting was a "basic practice" of Quakers.

McPherson stated that she spoke to Robert Frolow (Frolow), a Veterans Service Officer and member of the VFW, about the situation involving Hunt and Callahan. According to McPherson, Frolow said that it would be a good idea if Hunt did not go into the VFW building while Callahan was there. McPherson relayed this statement to Hunt. Hunt claimed that the following day, she observed Callahan photographing her and pointing her out to other persons. She said that she told VFW Commander Fred Vinyard about this conduct.

Hunt subsequently filed a complaint in the Law Division against Callahan and the VFW. She alleged that, while employed by the VFW, Callahan had engaged in harassment with the purpose of intimidating her on the basis of race, national origin and/or religious affiliation, contrary to N.J.S.A. 2A:53A-21. She further alleged that Callahan and the VFW violated the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -49, by engaging in unlawful discrimination on the basis of her religion and/or race and by denying her access to a public accommodation.

Hunt also claimed that Callahan slandered her by making false statements of fact, including but not limited to, statements that she is a traitor and unfit for her work. Hunt additionally asserted claims against the VFW for respondeat superior liability, negligent supervision and negligent hiring.

After the completion of discovery, the VFW and Callahan filed motions for summary judgment. The trial court entered a Memorandum of Decision on November 18, 2011, concluding that the VFW was entitled to summary judgment. The court determined that Hunts' NJLAD claims failed as a matter of law because she did not present a prima facie case of unlawful discrimination or denial of access to a place of public accommodation on any prohibited basis.

The court also determined that Hunt had not presented sufficient evidence to support her claim against the VFW for negligent supervision. The court pointed out that the VFW had no duty to prevent the verbal exchanges between Hunt and Callahan, nor was there any evidence to suggest that the VFW had any reason to believe it had to control Callahan's actions. The court wrote, "The VFW could not be expected to know that, [at] the event [Hunt] approached Callahan, the two might engage in unpleasant ...


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