MARY HUNT v. CHARLES CALLAHAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2780-11T3

MARY HUNT,

Plaintiff-Appellant,

v.

CHARLES CALLAHAN, and VETERANS

OF FOREIGN WARS POST 2189,

Defendants-Respondents.

_______________________________________

November 5, 2012

Argued October 2, 2012 Decided

Before Judges Reisner and Yannotti.

Onappeal fromSuperior Courtof NewJersey, LawDivision, AtlanticCounty, DocketNo.

L-1493-09.

Mary Hunt, appellant, argued the cause pro se.

L. Patrick Dacey argued the cause for respondent Charles Callahan (Bolan Jahnsen Dacey, attorneys; Mr. Dacey, of counsel; Elizabeth A. Wilson, on the brief).

Walter J. LaCon argued the cause for respondent Veterans of Foreign Wars Post 2189 (Cooper Levenson April Niedelman & Wagenheim, P.A., attorneys; Mr. LaCon, on the brief).

PER CURIAM

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 verbal exchange, . . . that he might ask her if she was a member of the AFSC, and she might be deeply insulted by the exchange."

In addition, the court determined that Hunt had not presented sufficient evidence to support a claim against the VFW for negligent hiring. The court stated that Hunt did not present any evidence indicating the VFW had any reason to believe Callahan "was unfit, dangerous, or incompetent." Moreover, Hunt did not present any evidence showing the VFW's hiring of Callahan "contributed to or caused her alleged injury."

The trial court also filed a Memorandum of Decision dated November 8, 2011, in which it concluded that Callahan was entitled to summary judgment. The court wrote that Hunt did not present any evidence indicating that, by asking her if she was a member of the AFSC, Callahan's purpose was to intimidate her on the basis of race, religion, gender or ethnicity. The court also wrote that that the evidence did not support Hunt's claim that Callahan intimidated her on the basis of her Quaker religion. In addition, the court stated that Callahan's conduct did not constitute harassment pursuant to N.J.S.A. 2C:33-4.

The court further concluded that Callahan's alleged statements that Hunt was a traitor, could not be trusted, was like Jane Fonda, and "supported" Ho Chi Minh, were not slander per se. The court determined that Callahan's statements were "pure expressions of opinion" based on his belief that Hunt had protested war. The court also determined that Callahan's statement that Hunt was a member of or affiliated with the AFSC, was false, but not defamatory.

The court entered orders dated November 18, 2011, granting summary judgment to the VFW and Callahan. Thereafter, Hunt filed a motion for reconsideration, which the court addressed in a Memorandum of Decision filed on January 6, 2012. The court determined that Hunt failed to establish any basis for reconsideration of its previous decisions. The court entered an order dated January 6, 2012, denying the motion. This appeal followed.

II.

Hunt argues that the trial court erred by granting summary judgment in favor of Callahan. When reviewing an order granting summary judgment, we apply the same standard that governs the trial court's disposition of a summary judgment motion. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We must determine whether the evidential materials before the trial court show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

A. Harassment Claim.

Here, Hunt asserted a claim against Callahan under N.J.S.A. 2A:53A-21(a). She alleged that Callahan engaged in certain acts that constituted harassment, and acted with a purpose to intimidate her on the basis of her national origin, race, religion, and gender. She contends that Callahan was not entitled to summary judgment on this claim. We do not agree.

N.J.S.A. 2A:53A-21(a) provides that a person "acting with purpose to intimidate an individual . . . because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity, who engages in conduct that is an offense under the . . . 'New Jersey Criminal Code of Justice,' . . . commits a civil offense." Furthermore, the Criminal Code provides in pertinent part that a person is guilty of harassment if he

(a) Makes, or causes to be made, a communication of communications anonymously or at extremely inconvenient hours, or in offensively course language, or any other manner likely to cause annoyance or alarm;

. . . .

(c) Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

[N.J.S.A. 2C:33-4.]

The trial court correctly determined that Hunt had not presented sufficient evidence to support her claim. The court noted that there was no evidence that Callahan intended to intimidate Hunt on the basis of her race, religion, gender or ethnicity. The court additionally determined that Callahan's conduct did not amount to harassment in violation of N.J.S.A. 2C:33-4.

As the court pointed out in its decision, Callahan's conduct did not take place during inconvenient hours. His statements were made during the day or evening, while Callahan and Hunt were attending the Moving Wall event. Callahan did not use offensive language. In addition, Callahan was merely voicing his opinion regarding acts he believed Hunt had engaged in and a political philosophy to which he believed she subscribed.

We are satisfied that trial court correctly determined that Hunt did not present sufficient evidence to support her claim against Callahan under N.J.S.A. 2A:53A-21(a).

B. Defamation Claim.

Hunt also alleged that Callahan defamed her by stating: (1) she was a traitor to veterans; (2) she gave money to Ho Chi Minh; (3) she was a Vietnam War protester; (4) she was a member of the AFSC; (5) she posted comments made by veterans on the AFSC website; and (6) she is "like" Jane Fonda. She argues that the trial court erred by granting summary judgment to Callahan on the claim. Again, we disagree.

To establish a defamation claim against a person who is not a public figure, a plaintiff must prove the following: "(1) the assertion of a false and defamatory statement concerning another; (2) the unprivileged publication of the statement to a third party; and (3) fault amounting to at least negligence by the publisher." DeAngelis v. Hill, 180 N.J. 1, 13 (2004) (citing Restatement (Second) of Torts 558 (1977)). A defamatory statement is one that "tends to harm the reputation of another as to lower him [or her] in the estimation of the community or to deter third persons from associating or dealing with him [or her].'" Ward v. Zelikovsky, 136 N.J. 516, 529 (1994) (quoting Restatement (Second) of Torts 559 (1977)).

Whether a statement is "'susceptible of defamatory meaning is a question of law for the court.'" DeAngelis, supra, 180 N.J. at 14 (quoting Ward, supra, 136 N.J. at 529). The court must consider three factors in making this determination: "'(1) the content; (2) the verifiability; and (3) the context of the challenged statement.'" Ibid. (quoting Ward, supra, 136 N.J. at 529).

In evaluating an alleged defamatory statement, the court must take into account "the fair and natural meaning that will be given to the statement by reasonable persons of ordinary intelligence." Ibid. The court must also consider "the listener's reasonable interpretation, which will be based in part on the context in which the statement appears." Id. at 15. In addition, statements of opinion are entitled to constitutional protection and enjoy absolute immunity." Id. at 14 (citing Dairy Stores, Inc. v. Sentinel Publ'g Co., 104 N.J. 125, 157 (1986)).

Here, the trial court correctly determined that Callahan's statements that Hunt was a traitor, a person who "supported" Ho Chi Minh, could not be trusted, and was "like Jane Fonda," were merely expressions of his opinions. As the trial court noted in its decision, Callahan made these statements based on his belief that Hunt protested the Vietnam War. Moreover, Callahan's statements were made to a social worker in a private counseling session. As the trial court pointed out, the counselor who heard these remarks would have considered them to be "the unfiltered statements of a veteran" who viewed all war protesters as traitors.1

The trial court additionally determined that Callahan's statement that Hunt was a member of the AFSC was not an opinion but it was not defamatory. The court pointed out that Callahan allegedly made this statement when discussing Hunt's activities as a war protester. A statement that Hunt was a member of the AFSC is not defamatory because it is not a statement that would tend to lower Hunt in the estimation of the community or deter persons from associating with her.

Moreover, Callahan's alleged statements about Hunt to veterans and their family members are covered by the special-interest privilege, which shields a party from liability for defamatory statements made to others when the statements pertain to matters in which the party and others share a common interest. Govito v. W. Jersey Health Syst., 332 N.J. Super. 293, 309 (App. Div. 2000) (citing Bainhauer v. Manoukian, 215 N.J. Super. 9, 36 (App. Div. 1987)). The special-interest privilege is not absolute and may be overcome by proof that the defendant abused it. Id. at 312 (citing Kass v. Great Coastal Express, Inc., 291 N.J. Super. 19 (App. Div. 1996), aff'd in part, rev'd in part, 152 N.J. 353 (1998)).

Here, Callahan, the other veterans, and the veterans' family members shared a common interest in information pertaining to Hunt because she was a veterans' counselor and had allegedly been involved in anti-war protests and the AFSC. There was no evidence that Callahan ever abused the privilege. Thus, Callahan is immune from liability for the statements he made about Hunt to veterans and their family members.

III.

Hunt further argues that the trial court erred by granting summary judgment to the VFW. Again, we must determine whether there was any genuine issue of material fact pertaining to the claims against the VFW, and whether the VFW was entitled to judgment as a matter of law on these claims. R. 4:46-2(c); Brill, supra, 142 N.J. at 540.

A. Claims under the NJLAD.

Hunt alleges the VFW violated the NJLAD by subjecting her to a hostile work environment and unlawfully denying her access to a place of public accommodation on the basis of her race, national origin, or religion. Hunt argues that the trial court erred by granting summary judgment to the VFW on these claims. We do not agree.

A claim for hostile work environment under the NJLAD generally requires proof that an individual has been subjected to unlawful discrimination that is "sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile, or offensive working environment." Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603 (1993). Hunt was employed by the DVA, not the VFW. Moreover, Hunt only worked at the VFW event a few days.

Therefore, Hunt could not pursue a NJLAD hostile work environment claim against the VFW in this factual context. In addition, as we previously explained, Hunt did not present proof that Callahan's statements to or about her were based on her membership in any class protected by the NJLAD.

Furthermore, Hunt failed to establish that she was unlawfully denied access to a place of public accommodation on the basis of her race, national origin or religion. The NJLAD provides in pertinent part that

All persons shall have the opportunity to obtain employment, and to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation, . . . without discrimination because of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, familial status, [or] sex . . . .

[N.J.S.A. 10:5-4.]

In addition, N.J.S.A. 10:5-12(f) prohibits any "agent or employee of a place of public accommodation [from] directly or indirectly . . . [denying] any of the accommodations, advantages, facilities or privileges thereof." It should be noted, however, that an institution, bona fide club, or place of accommodation that "is by its nature distinctly private" is not a "place of public accommodation" under the NJLAD. See N.J.S.A. 10:5-12(f)(2).

We will assume for purposes of our decision that the VFW is a place of public accommodation under the NJLAD. Nevertheless, there is no evidence that Hunt was denied access to the VFW on the basis of her race, national origin or religion. Hunt claimed that, when she entered the VFW building, she heard voices stating "what is she doing here" and "kick her out." However, as the trial court pointed out in its decision, Hunt could not identify the person or persons who made those remarks, and there is no evidence attributing the comments to an agent or employee of the VFW.

Hunt also claimed that Frolow told McPherson that she should remain outside the VFW building during the Moving Wall event. However, Hunt has not established that this alleged exclusion from the premises was based on her race, national origin or religion. We note that Frolow testified he did not know that Hunt was a Quaker. Furthermore, Hunt has not alleged that Frolow ever mentioned her religion when he said she should remain outside the VFW building.

As the trial court noted, Hunt equates membership in the AFSC with being a Quaker and therefore assumes that she was excluded from the VFW because of her religion. The court correctly determined, however, that Hunt's assumption was insufficient to create a genuine issue of material fact as to the reason Frolow suggested she should remain outside the VFW building.

B. Respondeat Superior.

Hunt asserted a claim against the VFW based on the doctrine of respondeat superior. She claims that the VFW is liable for the injuries she allegedly sustained as a result of Callahan's wrongful conduct, and argues that the trial court erred by granting summary judgment to the VFW on this claim. We disagree.

An employer may be liable for injuries resulting from an employee's negligence under the doctrine of respondeat superior if the employee was acting within the scope of his or her employment at the time the injury was sustained. Carter v. Reynolds, 175 N.J. 402, 408-09 (2003). To establish liability on this basis, "a plaintiff must prove (1) that the master-servant relationship existed and (2) that the tortious act of the servant occurred within the scope of employment." Id. at 409.

Hunt claims that the VFW is liable for the injuries resulting from Callahan's alleged wrongful conduct, specifically the defamatory statements that Callahan allegedly made about her. For purposes of its motion for summary judgment, the VFW conceded that Callahan was its employee. The trial court found that Callahan was not acting within the scope of his employment when he made the statements.

We note initially that because Callahan can not be liable for the alleged defamation statements, there is no basis to impose respondeat superior liability upon the VFW on the basis of those statements. Even if Hunt could pursue her defamation claim against Callahan, she failed to establish any basis for imposing liability upon the VFW for the alleged defamation. The trial court correctly determined that, when Callahan made the alleged statements, he was not acting in the scope of his employment with the VFW.

The court stated that Callahan's "unpleasant exchange" with Hunt did not occur within the time and at the place of his employment with the VFW. The court also stated that Callahan was voicing his personal opinion about Hunt and his "personal disdain for anti-war activity." The trial court said that Callahan's conduct was not actuated by a purpose to serve the VFW. Thus, the court correctly determined that the VFW could not be liable for Callahan's alleged wrongful conduct on the basis of respondeat superior.

C. Claims for Negligent Supervision/Negligent Hiring.

Hunt additionally asserted claims against the VFW for negligent supervision and hiring of Callahan. She contends the trial court should not have granted summary judgment to the VFW on these claims. Again, we do not agree.

New Jersey courts have "imposed upon employers with in loco parentis responsibilities a duty to exercise reasonable care in the supervision of employees." Davis v. Devereux Foundation, 209 N.J. 269, 292 (2012). Therefore, liability for negligent supervision may arise if an employee engages in conduct committed outside the scope of the employee's employment. Hoag v. Brown, 397 N.J. Super. 34, 54 (App. Div. 2007).

To establish such a claim, the plaintiff must show, among other things, that the employer knew or had reason to know of the need and opportunity to control the employee. Doe v. KYC Corp., 382 N.J. Super. 122, 132 (App. Div. 2005) (citing Restatement (Second) of Torts 328B (1965)). Here, Hunt alleges that the VFW negligently failed to supervise Callahan and protect her from Callahan's alleged violations of the NJLAD and N.J.S.A. 2A:53A-21. As we have determined, Hunt presented insufficient evidence to establish that Callahan violated N.J.S.A. 2A:53A-21 or the NJLAD.

Moreover, as the trial court explained in its decision, the VFW had no duty to prevent the "unpleasant verbal exchange" between Hunt and Callahan. There was no evidence that the VFW had any reason to believe it had to control Callahan's actions. Thus, Hunt did not present sufficient evidence to support her claim against the VFW for negligent supervision.

Hunt's claim against the VFW for negligent hiring also lacked evidential support. An employer may be liable for the tortious conduct of an employee who acts beyond the scope of his or her employment if the employer knew or had reason to know of the employee's unfitness, incompetence, or dangerous attributes and could reasonably have foreseen that such characteristics would create a risk of harm to others. Davis, supra, 209 N.J. at 292 (citing DiCosala v. Kay, 91 N.J. 159, 173 (1982)).

In this case, the trial court correctly determined that Hunt did not present any evidence showing that the VFW had reason to know that Callahan was unfit, dangerous, or incompetent. Hunt also failed to establish that the VFW's hiring of Callahan contributed or caused her any injury.

We note that the trial court additionally determined that Hunt's claims against the VFW for negligent supervision and hiring were barred by the Charitable Immunity Doctrine, N.J.S.A. 2A:53A-7. Since we have concluded that Hunt's claims against the VFW failed as a matter of law, we need not address this issue.

Affirmed.

1 The trial court also determined that the statement that Hunt was a traitor was not slander per se, as Hunt had claimed. A statement constitutes slander per se if it (1) charges commission of a crime; (2) alleges infection with some loathsome disease; (3) affects a person in his business, trade, profession or office; or (4) imputes a lack of chastity to a person. Grapinsky v. Golden, 23 N.J. 243, 250 (1957). Callahan allegedly said that Hunt was a traitor but he never specifically asserted that she committed the crime of treason. Thus, Callahan's statement was not slander per se.