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Holmes v. Jersey City Police Department

Superior Court of New Jersey, Appellate Division

April 27, 2017

SHAKEEM MALIK HOLMES, Plaintiff-Appellant,

          Submitted April 4, 2017

         On 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).

          Jeremy Farrell, Corporation Counsel, Jersey City Law Department, attorney for respondent (Stevie D. Chambers, Assistant Corporation Counsel, on the brief).

          Before Judges Reisner, Koblitz and Sumners.


          REISNER, P.J.A.D.

         Plaintiff 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.[1] 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.

         We 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 LAD.[2] 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.

         On this 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] LAD violations."

         We 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).

         In this 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).

         The 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 ...

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