Submitted April 4, 2017
appeal from the Superior Court of New Jersey, Law Division,
Hudson County, Docket No. L-696-14.
Costello & Mains, attorneys for appellant (Deborah L.
Mains, on the brief).
Farrell, Corporation Counsel, Jersey City Law Department,
attorney for respondent (Stevie D. Chambers, Assistant
Corporation Counsel, on the brief).
Judges Reisner, Koblitz and Sumners.
Shakeem Malik Holmes appeals from a November 16, 2015 order
granting summary judgment, dismissing his complaint of public
accommodation discrimination in violation of the Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Plaintiff
alleged that, after arresting him for shoplifting and
transporting him to the police station, several police
officers subjected him to hostile treatment because of his
transgender status. See N.J.S.A. 10:5-4, -12(f)(1)
(prohibiting discrimination in places of public
accommodation, based on gender identity or expression);
N.J.S.A. 10:5-5(rr) (defining gender identity or expression).
For the reasons that follow, we reverse the order on appeal,
and remand this matter for trial.
begin by defining the issues that are and are not presented
on this appeal. In Ptaszynski v. Uwaneme, 371
N.J.Super. 333, 348 (App. Div.), certif. denied, 182
N.J. 147 (2004), this court held that a police station is a
place of public accommodation under the LAD, and on this
appeal, both sides accept that interpretation of the
Hence, we are not called upon to address that issue. On this
appeal, plaintiff has waived any claims concerning his
placement in a female-only jail cell or his having been
categorized as female for security purposes within the jail
facilities. As a result, those issues are not before us, and
they may not be reasserted on remand.
appeal, plaintiff solely pursues a "hostile
environment" claim based on his assertion that police
officers made demeaning, insulting and threatening comments
about his transgender status. Specifically, he alleges that
several officers referred to plaintiff as "it, "
referred to plaintiff's situation as "bullshit,
" and stated "so that's a fucking girl?"
He also asserts that one of the officers threatened to put
his fist down plaintiff's throat "like a fucking
man." Primarily relying on Heitzman v. Monmouth
County, 321 N.J.Super. 133 (App. Div. 1999), the trial
judge concluded that rude and insensitive comments
"[did] not rise to the level of severe or [pervasive]
review the trial court's grant of summary judgment de
novo, employing the same legal standard as the trial court.
Townsend v. Pierre, 221 N.J. 36, 59 (2015) (citing
Davis v. Brickman Landscaping, Ltd., 219 N.J. 395,
405 (2014)); Turner v. Wong, 363 N.J.Super. 186,
198-99 (App. Div. 2003). Like the trial court, we consider
whether "the competent evidential materials presented,
when viewed in the light most favorable to the non-moving
party, are sufficient to permit a rational factfinder to
resolve the alleged disputed issue in favor of the non-moving
party." Brill v. Guardian Life Ins. Co., 142
N.J. 520, 540 (1995).
case, the inquiry is whether plaintiff's allegations, if
true, could support a hostile environment claim under the
LAD. We find that they could, and that plaintiff is therefore
entitled to present his claim to a jury. In reaching that
conclusion, we consider that plaintiff, as an arrestee
temporarily incarcerated in the police station, was in a
uniquely vulnerable position; that the individuals making the
hostile comments were police officers, who wield tremendous
power over arrestees; and that the comments included a
physical threat. Under all the circumstances, a jury could
find that the conduct was sufficiently severe that a
reasonable transgender person in plaintiff's position
would find the environment to be hostile, threatening and
demeaning. See Lehmann v. Toys 'R' US, 132
N.J. 587, 453-54 (1993).
motion judge's reliance on Heitzman, which
defendant repeats on this appeal, was misplaced.
Heitzman applied a higher proof standard to LAD
cases that involved religious, as opposed to racial,
harassment, and the motion judge appears to have applied that
higher standard to transgender harassment. However,
Heitzman was overruled, in pertinent part, by
Cutler v. Porn, 196 N.J. 419 (2008), where the Court
unequivocally rejected the higher proof standard.
Id. at 440. "If the holding in
Heitzman is perceived, in application, to suggest a
different, and higher, threshold for demonstrating a hostile
work environment when religion-based harassment is claimed,
then that misapprehension must end." Ibid.
Moreover, even Heitzman recognized that
"physically threatening or humiliating" remarks
directed at a victim could create a hostile environment.
Heitzman, supra, 321 N.J. Super, at 147
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17,
23, 114 S.Ct. 367, 371, 126 L.Ed.2d 295, 302-03 (1993)).
Further, as we have recognized, "[t]he prohibition of
discrimination in relation to public accommodation is
functionally distinct from the ban on employment
discrimination." Thomas v. Cty. of
Camden, 386 N.J.Super. 582, 590 (App. Div. 2006)
(quoting Peper v. Princeton Univ. Bd. of Trs., 77
N.J. 55, 67 (1978)). We have also recognized that, in the
context of public accommodation discrimination, hostile
comments that might not suffice to create a hostile
environment in a work context may nonetheless violate the
LAD. See Franek v. Tomahawk Lake Resort, 333
N.J.Super. 2 06, 215 (App Div.), certif. denied, 166
N.J. 606 (2000).
We regard it to have been error for the trial court, in a
public accommodations case, to make overgeneralized use of
specific principles and approaches developed to determine
liability in employment discrimination cases. Public
accommodations cases do not involve ongoing organizational
connections or the need to make allowances for other special
features of the employer- employee relationship, such as its
hierarchical qualities. By the very nature of the day-to-day
personal involvements which characterize the employment
situation, a hostile working environment is a very special
problem; it has less in common than ...