DAVID J. LEE v. CITY OF CAMDEN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0900-05T10900-05T1

DAVID J. LEE,

Plaintiff-Appellant,

v.

CITY OF CAMDEN,

Defendant-Respondent.

 

Submitted November 29, 2006 - Decided December 22, 2006

Before Judges Cuff, Winkelstein and Fuentes.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-5136-02.

Attorneys Hartman, attorneys for appellant (Katherine D. Hartman, on the brief).

Lewis Wilson, City Attorney, attorney for respondent (Frank A. Salvati, Assistant City Attorney, on the brief).

PER CURIAM

Plaintiff, a Korean-American, is employed as a police officer by the City of Camden. He filed suit against the City, claiming that as a result of his Korean-American heritage, he was subject to a hostile work environment and disparate treatment in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. Following an eight-day trial, the jury entered a verdict for defendant. Judge Colalillo, the trial judge, denied plaintiff's motion for a new trial.

On appeal, plaintiff claims that the court's denial of his motion for a new trial was a miscarriage of justice as the evidence supported his allegations that the City violated the LAD. We find plaintiff's arguments on appeal to be without merit. Consequently, we affirm.

The following is a summary of the trial evidence. Plaintiff began working for the City in 1994, when the City actively recruited Korean-speaking officers to help interact with the city's Korean merchants, many of whom had been victims of or witnesses to crime. Of the 450 officers on the police force, plaintiff is one of two officers of Korean descent.

On December 11, 2000, plaintiff made a drug arrest. He brought the suspect to police headquarters, where he was met by Camden Police Sergeant Barry McCarthy. According to plaintiff, when McCarthy greeted him, he placed his hands together and bowed, saying "Hi U. Sagami." The sergeant continued to repeat, "Hi U. Yo Asshole. Yo, Sagami," while the prisoner laughed. This was not the first time that McCarthy taunted plaintiff; previously, he had made gestures to plaintiff and said "Hi U," and called him "asshole." Plaintiff asked him to stop, but he told plaintiff to file a report if he had a problem.

McCarthy denied the allegations. He testified that plaintiff brought in a prisoner who was handcuffed in front of his body, as opposed to behind his back. McCarthy stated that handcuffing suspects in front is unacceptable and dangerous. Thus, he would not allow plaintiff to bring the prisoner through a barred door into Central Booking until plaintiff re-handcuffed the prisoner. Plaintiff believed the sergeant was "messing with him because he was Asian." The sergeant informed plaintiff that if he felt that way, he could write a report, which he did.

Thus, on December 18, 2000, plaintiff filed a report regarding the sergeant's conduct with his supervisor, Sgt. Kelly, who cautioned him that the report might hurt McCarthy. After speaking with Kelly, plaintiff met with Captain Tompkins, who told him that he would like to resolve the incident internally and wanted to "squash [it] at this level." When plaintiff replied that he wanted to pursue the matter, the captain told him that it would be referred to Internal Affairs. Accordingly, in July 2001, plaintiff was contacted about the incident by Phyllis Krichev, a private investigator who had been employed by the City Attorney to investigate plaintiff's complaint. She submitted a report on December 24, 2001, recommending that McCarthy receive sensitivity training. Nonetheless, Internal Affairs found plaintiff's claim to be "unfounded" and took no action against McCarthy.

Plaintiff testified that "[t]hings got worse" after he filed the report against McCarthy; plaintiff became the focus of workplace gossip as a "Korean joke." After the incident, plaintiff found, posted on a sergeant's door, a photocopy of a photograph from the Philadelphia Inquirer, featuring a young woman exposing her breasts to a Philadelphia police officer; language had been added to the photocopy, stating, "Officer Lee working side job on South Street." Plaintiff removed the picture, but did not show it to his supervisors, believing his superiors had already seen it.

This was not the first time fellow officers made postings directed at plaintiff. Additionally, throughout plaintiff's tenure, fellow officers had called him various names referencing his heritage, such as Samurai, Sagami, Asian Bitch, Ching Bitch, Moo Goo, Cum Pow Ding Ding, Wing Ding, Doc Dong, Godzilla, Sum Dung Guy. Officers frequently told plaintiff to "speak English." On one occasion, when plaintiff became excited during a radio transmission, Sgt. Jeff Frett told plaintiff to speak English instead of giving the common police code "10-9," which indicates that an officer should repeat what he is trying to say. On another occasion, Officer Ronald Johnson reported to Frett that Officer Tommy Plotts directed derogatory comments at plaintiff, but Frett took no action and plaintiff never filed a complaint.

Plaintiff's former partner, Steven Hubbs, testified that plaintiff had long been mocked because of his Asian heritage. He remembered plaintiff being called Sagami, Jackie Chan, Samurai, Chink Bitch, and Slant Eyes. He also recalled officers mocking plaintiff by saying "Asshole," accompanied by the same bowing gesture the plaintiff alleged McCarthy used. Hubbs testified that both supervisors and fellow officers made these comments. This testimony differed from Hubbs's deposition testimony, where he stated that no one called plaintiff names or used terms related to his nationality.

Sgt. Michael Camuso testified that during an eight-month period in 1996 and 1997 when he was plaintiff's supervisor, the only ethnic reference to plaintiff that he heard was Samurai, which Camuso testified was a nickname. He noted that many officers in the department had nicknames and he did not believe the term to be insulting because "a Samurai is a warrior." Camuso said he never heard plaintiff curse in response to being called Samurai, but did hear him "joke around . . . and banter back and forth."

Officer John Kim, the other Korean officer in the department, testified that he too was called names, such as Samurai Jack, and Jackie Chan; that fellow officers did not differentiate among Chinese, Koreans and Japanese; and that he frequently heard jokes about Asian restaurants using dog and cat meat. Kim considered this as more than mere joking around, and he was offended by the names and comments. He testified that Kelly, as well as one of the other sergeants, Sgt. Pike, made fun of the way plaintiff spoke.

Plaintiff testified that the job of a Camden police officer is very stressful, and to relieve the stress, officers joke around and give each other nicknames. He also noted that, when joking around with a friend who is a police dispatcher, he referred to himself as a "Yellow Banana, China Man." McCarthy testified that "everybody joked around" and plaintiff had a comedy routine he performed for other officers where he "would do like kung fu stuff." Hubbs testified that plaintiff called him Jelly Balls and Red Man, with the latter a possible reference to Hubbs's Native American heritage.

In addressing plaintiff's new trial motion, Judge Colalillo found that name calling had occurred, but that it was by officers on the same level as plaintiff and the City had no knowledge of this conduct; and that plaintiff never brought the postings he considered offensive to the attention of his supervisors. The judge observed that many officers testified that plaintiff was a jokester who kidded around to lessen the pressure of a stressful job. Commenting on the occasions that officers told plaintiff to "speak English," the judge observed that during the course of the trial, she occasionally had difficulty understanding plaintiff, especially when he became animated. The court found sufficient evidence for the jury to conclude that even if the conduct did occur, it was mere joking that was not racially-motivated and that "a reasonable Korean man would not have found it severe or pervasive."

A party seeking a new trial must meet a high threshold. The trial judge shall only grant the new trial motion if, "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears" that there was a "miscarriage of justice under the law." Dolson v. Anastasia, 55 N.J. 2, 6-7 (1969); R. 4:49-1(a). Jury verdicts should be set aside only with great reluctance, and only in cases of clear injustice. Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). On a motion for a new trial, all evidence supporting the verdict must be accepted as true, and the trial court must draw all reasonable inferences in favor of upholding the verdict. Ibid. On appeal, our review is governed by "essentially the same" standard as the one controlling the trial judge, giving deference to the judge's views on witness credibility and demeanor and the judge's "feel of the case." Dolson, supra, 55 N.J. at 7.

Against this standard, we turn to plaintiff's hostile work environment claim. The LAD prohibits discrimination because of race and national origin. N.J.S.A. 10:5-3. For a valid claim of harassment based on race under the LAD, a plaintiff must meet a four-pronged test formulated by the Lehman Court; the plaintiff must show that the defendant's conduct would not have occurred except for the employee's race; and, that the conduct was sufficiently severe or pervasive that a reasonable person of the plaintiff-employee's race believed that the conditions of employment were altered, causing the working environment to become hostile or abusive. Taylor v. Metzger, 152 N.J. 490, 498 (1998); Lehman v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04 (1993).

Under the first Lehman prong, which is "discrete from the others," Lehman, supra, 132 N.J. at 604, a plaintiff must show by a preponderance of the evidence that the impermissible conduct would not have occurred but for the plaintiff's protected status. Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 24 (2002). No LAD violation exists if the same conduct would have occurred regardless of a plaintiff's race. Flizack v. Good News Home For Women, Inc., 346 N.J. Super. 150, 160 (App. Div. 2001). Under this prong, a plaintiff is required to make a minimal, "more likely than not," showing. Id. at 161.

The remaining prongs of the Lehman standard are interrelated. Lehman, supra, 132 N.J. at 604. Discrimination "itself is the harm that the LAD seeks to eradicate." Taylor, supra, 152 N.J. at 505. The harasser's conduct, not the plaintiff's injury or change in working conditions, must be severe or pervasive. Ibid. The "test of severity" does not in all cases require evidence of an actual change in working conditions for there to be a hostile work environment. Ibid. Accordingly, loss of tangible job benefit is not necessary for a successful hostile work environment claim, as "the harassment itself affects the terms or conditions of employment." Id. at 507.

To prevail, a plaintiff need only prove severe or pervasive conduct, not both. Taylor, supra, 152 N.J. at 502. In many instances, repeated racial slurs form the basis for a finding that a hostile work environment has been created. Id. at 500. Nevertheless, a single utterance of an epithet can, under particular circumstances, create a hostile work environment. Id. at 501. The meaning of the epithet is often a critical, if not determinative, factor in establishing a hostile work environment. Id. at 502.

Severity and workplace hostility are measured by the surrounding circumstances. Id. at 506. The comment must be viewed in context, and from the perspective of a reasonable person of the plaintiff's background. Ibid. The reasonable person standard, originally articulated as the reasonable "woman" standard in Lehman, supra, 132 N.J. at 603, applies to other types of hostile work environment claims, such as those involving race or ancestry. Taylor, supra, 152 N.J. at 506 (noting that federal decisions have held that the standard is a reasonable person of a plaintiff's race); Heitzman v. Monmouth County, 321 N.J. Super. 133, 144 (App. Div. 1999); see also Torres v. Pisano, 116 F.3d 625, 632-33 (2d Cir.) ("reasonable Puerto Rican"), cert. denied, 522 U.S. 997, 118 S. Ct. 563, 139 L. Ed. 2d 404 (1997).

The severity of a racist remark may be exacerbated if it is uttered by a supervisor or superior officer. Taylor, supra, 152 N.J. at 503. For instance, the supervisor in Taylor, the County Sheriff, "did more than merely allow racial harassment to occur at the workplace, he perpetrated it" when he called the plaintiff a jungle bunny and "[t]hat circumstance, coupled with the stark racist meaning of the remark, immeasurably increased its severity." Id. at 504. The plaintiff "had nowhere to turn"; because her harasser was also her superior, she could not seek the redress otherwise available to a victim of invidious workplace discrimination, namely, reporting it to her supervisor. Id. at 505; Leonard v. Metro. Life Ins. Co., 318 N.J. Super. 337, 345 (App. Div. 1999).

That said, the LAD does not function as a general civility code, nor does a lack of racial or ethnic sensitivity alone amount to actionable harassment. Heitzman, supra, 321 N.J. Super. at 147. "[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Ibid. (internal quotations omitted). Ultimately, a determination of whether a workplace is hostile or abusive turns on all the circumstances, which may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating; and whether it unreasonably interferes with an employee's work performance. Ibid.

In Heitzman, for example, we concluded that the comments made to the plaintiff, who was Jewish, did not support a hostile work environment claim. Comments made by the plaintiff's supervisor including inquiries into what the plaintiff would be doing on a Friday night; whether he ate pork, bacon or ham; and a reference to the plaintiff's vacation destination as the "Jewish Alps" were at worst "teasing" remarks insufficiently extreme to create a hostile or abusive environment. Id. at 143, 148. The comments were sporadic and "casual," and did not involve any physical threat or humiliation, or any direct interference with the plaintiff's work performance. Id. at 148. Consequently, they did not rise to the level required to demonstrate a hostile work environment. Ibid.

Conversely, in Flizack, supra, we found that the plaintiff had been harassed on the basis of both sex and race, where there was overt sexual contact and the defendant uttered one remark that referenced the plaintiff's race. 346 N.J. Super. at 159-60. There, following an acrimonious staff meeting, the defendant, who was the plaintiff's supervisor, approached the plaintiff, touched the plaintiff with the front of her body, and said, "Are you still pissed at me . . . [b]ecause if you are I am going to have to stare in them big blue eyes and pat those white titties," while simultaneously stroking the plaintiff's breast in a sexual manner. Id. at 156 (alteration in original). When the plaintiff attempted to flee, the defendant again embraced her in a sexual manner. Ibid. The plaintiff fled again and the defendant followed her into the parking lot, placing her arm around the plaintiff's neck and "cuddl[ing]" her. Ibid. (alteration in original).

In reversing the trial court's grant of summary judgment and dismissal of the plaintiff's LAD claims for sexual and racial harassment, we noted that "[w]hile the phrase uttered by [the defendant] . . . is by no means as racially charged as that uttered in Taylor, it was accompanied by sexual misconduct and behavior that gave it a stark racist and sexual meaning immeasurably increasing its severity." Id. at 159-60. This single incident, when combined with the defendant's status as one of the highest ranking employees in the company, was sufficient to support a hostile work environment claim. Id. at 160. Thus, like the Court in Taylor, supra, 152 N.J. 490, the Flizack court took into account the status of the harasser and the conditions surrounding the harassment in reaching its determination that a single incident could support a hostile work environment claim.

We turn then to the test formulated by Lehman as applied to the facts here. The first prong inquires into whether the conduct occurred on the basis of race. Lehman, supra, 132 N.J. at 604. Here, it is clear that repeated references to an Asian officer as Samurai, Sagami, Asian Bitch, and so forth were made on the basis of plaintiff's race. Thus, the first Lehman prong was met.

The remaining prongs of the Lehman test are inextricably linked. A plaintiff must show that the conduct was severe or pervasive enough to make a reasonable person of a plaintiff's race believe that the conditions of employment were altered and the work environment became hostile or abusive. 132 N.J. at 603-04. Here, although the record contains evidence regarding the names plaintiff was called, other evidence supports the verdict.

The jury could have concluded that though racially-based comments were uttered, they did not constitute severe and pervasive conduct such that a reasonable Korean police officer would have found the work environment to be hostile under the circumstances. Plaintiff was described as frequently joking around with other officers, teasing them and deprecating his own Korean ancestry. Testimony showed the high-stress nature of the job of a police officer in Camden. Many officers engaged in joking to relieve some of this pressure. The record contained sufficient evidence for the jury to find that though the comments were made on the basis of race, the conduct was not harassment, but part of a process of back-and-forth joking with plaintiff. Said another way, the jury could have concluded that while plaintiff was subjected to various race-based comments and jokes, the remarks were not so severe or pervasive that the working environment had been altered and had become hostile and abusive.

Further, a significant amount of testimony contradicted plaintiff's account of what occurred. The jury could have found that testimony to be more credible than plaintiff's. McCarthy categorically denied that he made any remarks to plaintiff referencing his race. The jury could have chosen to believe McCarthy and the other witnesses who denied that racially charged comments were uttered.

In sum, giving the City all reasonable inferences to which it is entitled in light of the jury verdict, we agree with the trial judge that plaintiff has not demonstrated that the verdict was a miscarriage of justice.

 
Affirmed.

Plaintiff voluntarily dismissed the disparate treatment claim on the first day of trial.

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A-0900-05T1

December 22, 2006