ADEL MANSOUR VS. BROOKLAKE CLUB CORPORATION, INC., ETC. (L-4008-15, UNION COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 10, 2019
• Docket: A-2472-17T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2472-17T1

ADEL MANSOUR,

Plaintiff-Appellant,

v.

BROOKLAKE CLUB CORPORATION, INC. (d/b/a Brooklake Country Club),

Defendant-Respondent. ___________________________

Argued December 13, 2018 – Decided July 10, 2019

Before Judges Simonelli, O'Connor and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-4008-15.

Edward W. Schroll argued the cause for appellant (Castronovo & McKinney, LLC, attorneys; Paul Castronovo and Edward W. Schroll, of counsel and on the briefs).

Domenick Carmagnola argued the cause for respondent (Carmagnola & Ritardi, LLC, attorneys; Domenick Carmagnola, of counsel and on the brief; Anthony Vinhal, on the brief). PER CURIAM

In this employment matter, plaintiff Adel Mansour appeals from the

December 1, 2017 Law Division order granting summary judgment to defendant

Brooklake Club Corporation, Inc. and dismissing plaintiff's claim of hostile

work environment under the New Jersey Law Against Discrimination (LAD),

N.J.S.A. 10:5-1 to -49. The trial court found plaintiff's claims were barred by

the two-year statute of limitations, N.J.S.A. 2A:14-2(a), and did not fall within

the continuing violation doctrine. We reverse and remand.

I.

We derive the following facts from the evidence submitted by the parties

in support of, and in opposition to, the summary judgment motion, viewed in the

light most favorable to plaintiff. Elazar v. Macrietta Cleaners, Inc., 230 N.J.

123, 135 (2017).

Defendant employed plaintiff as a cook from 2003 to December 31, 2016.

Plaintiff filed a complaint on November 18, 2015, alleging he was harassed

throughout his employment because he is Egyptian and Muslim. He asserted

that on June 10, 2012, his supervisor printed an article about former Egyptian

President Hosni Mubarak entitled "Former Egypt President Mubarak in Critical

Condition," which included a photograph of Mubarak in a jail cell. The

A-2472-17T1 2 supervisor posted the photograph and asked plaintiff to "call the Muslim

Brotherhood and ask them, 'What are they going to do with Mubarak? Hang

him or cut his head off?'" The supervisor frequently asked plaintiff about the

Muslim Brotherhood, which plaintiff considered a terrorist group, and asked

whether plaintiff knew anybody in that group. The supervisor admitted asking

plaintiff about the Muslim Brotherhood and stated that he and plaintiff "would

have conversations all the time about stuff like that."

Defendant's general manager saw the photograph of Mubarak on the

refrigerator, but did not remove it. The article hung on the refrigerator next to

the supervisor's office for about one week before plaintiff took it down. Plaintiff

admitted the article did not say anything offensive about Egyptians, but he was

nevertheless offended by it being hung and by "somebody making [a] comment

every day about it." He was also offended by his supervisor asking him about

the Muslim Brotherhood "many times" because it insinuated he knew people

related to a terrorist group. Plaintiff told his supervisor to stop because it was

offensive. Plaintiff's wife testified at her deposition that plaintiff was very upset

about the picture of Mubarak being posted in the workplace because he felt the

supervisor's actions were "targeted at him" and "he [was] singled out."

A-2472-17T1 3 In March 2014, when Malaysia Airlines flight 370 disappeared, plaintiff's

supervisor and another employee joked in plaintiff's presence about the pilot

being Egyptian. The supervisor admitted "we all kind of chuckled and [plaintiff]

walked out of the office." Following the exchange, the employee hung a large

world map in the kitchen and wrote on it, "Adel, where is it?" referring to the

lost plane. While plaintiff was prepping food, he was called to the kitchen where

the staff was eating dinner and the supervisor and employee asked him, "Where's

the plane? Where is the plane, Adel? Anybody told you where is the plane?"

The supervisor heard "joking about it afterwards" and defendant's general

manager heard about the incident.

Plaintiff asserted several more incidents of harassment without specifying

exactly when they occurred. For example, before his supervisor left for a

ballgame in New York City, he said to plaintiff, "Hey Adel, do you know if

anyone is going to get bombed today?" and "Adel, can you call somebody, see

if there is any bombing in the train, in the subway, and it's safe or not? Could

you call somebody?" Plaintiff understood this comment to be making fun of

him by relating him to terrorists. Plaintiff said his supervisor made this

comment before the article about Mubarak was hung in June 2012.

A-2472-17T1 4 Plaintiff's supervisor also connected him to terrorists by telling him he

was "one of the sleep[er] cells," and warned other staff members about talking

to plaintiff because there had been a recent news story about terrorist sleeper

cells. Plaintiff could not recall when his supervisor made this comment, but

claimed "[i]t [was] something going and going all the time. Something every

couple days, couple days something comes up."

Plaintiff's supervisor texted him the phrases "Inshallah" and "Allah

Akbar," which are commonly known to be chanted by terrorists. Plaintiff

explained it was offensive for a non-Muslim to use those words towards him

because it insinuated he was a terrorist. Plaintiff confronted his supervisor about

the texts and asked him to stop. The supervisor admitted to texting these phrases

to plaintiff "once in a while[,]" but said he did not associate them with terrorism

and did not believe they were terrorist chants.

Plaintiff's supervisor referred to him as "that mother fucker Egyptian," in

response to a waitress's question regarding who had prepared a salad that

plaintiff made. Plaintiff told his supervisor, "I don't like you call me these

names."

Lastly, during the course of his employment, plaintiff's supervisor

criticized him for not eating pork and made reference to the fact that Muslims

A-2472-17T1 5 do not eat pork. Every time plaintiff cooked pork or when pork was on the

menu, his supervisor would say to him in the presence of others, "So delicious

. . . you Muslims don’t know what you're missing." On many occasions, the

supervisor came to plaintiff with a piece of pork and said, "would you like a

piece of devil's meat?" Plaintiff found these comments offensive, believed his

supervisor intended to offend him by making them, and asked him to stop. The

supervisor admitted he asked plaintiff if he wanted "devil meat" and said to

plaintiff, "it was really good," "you don't know what you're missing." Although

plaintiff could not recall the last time his supervisor made these comments, he

testified at his deposition they were made "many times," and "it's something

keep going. It's all the time." The supervisor ceased making the pork comments

after plaintiff filed his complaint on November 18, 2015.

The court found plaintiff's hostile work environment claim was untimely

because the majority of the alleged discriminatory acts occurred outside the

statute of limitations and count not be deemed timely under the continuing

violation doctrine. The court explained:

In order for the plaintiff . . . to defeat the [SOL] as being tolled it must be continuous cumulative pattern of tortious conduct. . . . . In this particular case the -- the majority of the alleged inappropriate statements and events occurred between 2003 and 2012. Then there was a break for a whole year. And then there was one

A-2472-17T1 6 isolated incident that occurred in 2014. And after that, nothing was alleged to have occurred between March of 2014 and November of 2015, almost a year and a half later. The acts have to be continuous and cumulative and show a pattern of tortious conduct to defeat the statute of limitation.

And in this particular case, the [c]ourt finds that the alleged incident[s] which constitute the bulk of the plaintiff's claims occurred between 2003 and 2012. The [court] finds that those particular incidents are time . . . barred.

The court also found the world map incident in March 2014 was "not

severe or pervasive enough which would lead a reasonable person to believe that

[plaintiff's] conditions of employment [were] altered which created a hostile or

abusive work environment." The judge did not address the pork comments or

any other acts of harassment plaintiff had alleged.

II.

Plaintiff argues the court erred in finding his LAD claim was time-barred,

misapplied the continuing violation doctrine, and failed to recognize the

cumulative pattern of ongoing harassment he suffered directly related to his

religion and nationality. We agree.

We review [a] motion for summary judgment using the same standard applied by the trial court–– whether, after reviewing "the competent evidential materials submitted by the parties" in the light most favorable to [the non-moving party], "there are genuine

A-2472-17T1 7 issues of material fact and, if not, whether the moving party is entitled to summary judgment as a matter of law."

[Grande v. Saint Clare's Health Sys., 230 N.J. 1, 23-24 (2017) (quoting Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)).]

"An issue of material fact is 'genuine only if, considering the burden of

persuasion at trial, the evidence submitted by the parties on the motion, together

with all legitimate inferences therefrom favoring the non-moving party, would

require submission of the issue to the trier of fact.'" Ibid. (quoting Bhagat, 217

N.J. at 38). Applying this standard, we are compelled to reverse.

The statute of limitations for LAD claims is two years. Alexander v. Seton

Hall Univ., 204 N.J. 219, 228 (2010). "Determining when the limitation period

begins to run depends on when the cause of action accrued, which in turn is

affected by the type of conduct a plaintiff alleges to have violated the LAD."

Ibid. Here, plaintiff alleges harassment and hostile work environment.

"Generally stated, discrete acts of discrimination, such as termination or

a punitive retaliatory act, are usually readily known when they occur and thus

easily identified in respect of timing." Ibid. "Hence, their treatment for

timeliness purposes is straightforward: 'A discrete retaliatory or discriminatory

act occurs on the day that it happens.'" Ibid. (quoting Roa v. Roa, 200 N.J. 555,

A-2472-17T1 8 567 (2010)). "Discriminatory termination and other similar abrupt, singular

adverse employment actions that are attributable to invidious discrimination,

prohibited by the LAD, generally are immediately known injuries, whose two -

year statute of limitations period commences on the day they occur." Ibid.

Discrete acts are those "such as termination, failure to promote, denial of

transfer, or refusal to hire" and for purposes of a statute of limitations, occur on

the day they happen. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114

(2002).

Alternatively, a plaintiff may have a viable LAD claim under the

continuing violation doctrine, which is "a judicially created doctrine . . . [that]

has developed as an equitable exception to the statute of limitations" in LAD

cases. Bolinger v. Bell Atl., 330 N.J. Super. 300, 306 (App. Div. 2000). The

continuing violation doctrine provides that "when the complained-of conduct

constitutes 'a series of separate acts that collectively constitute one unlawful

employment practice[,]' the entire claim may be timely if filed within two years

of 'the date on which the last component act occurred.'" Alexander, 204 N.J. at

229 (alteration in original) (quoting Roa, 200 N.J. at 567). "The 'continuing

violation' doctrine, recognized under federal Title VII law as an appropriate

equitable exception to the strict application of a statute of limitations, provided

A-2472-17T1 9 the analytic framework that has been used in the assessment of a LAD hostile

workplace environment claim." Ibid.

Our Supreme Court has "specifically adopted the federal continuing

violation equitable doctrine to determine the accrual date of a cause of action in

a hostile workplace course-of-conduct claim." Ibid. The Court noted that the

doctrine addresses the "factual circumstances of an ongoing workplace

harassment claim that involve[s] alleged incidents of both discrete and non -

discrete acts of discriminatory workplace hostility." Ibid. The Court stated that

"Morgan had clarified the distinction between discrete acts of discrimination

and hostile work environment claims, stating that hostile work environment

claims by '[t]heir very nature involve[] repeated conduct' of varying types and

that '[s]uch claims are based on the cumulative effect of individual acts.'" Ibid.

(alterations in original) (quoting Morgan, 536 U.S. at 115). The Court also

stated that

[r]ecognizing the beneficial effect of adopting Morgan's approach to such difficult hostile work environment scenarios where an employee may be subjected to ongoing indignities, we held in Shepherd . . . that "a victim's knowledge of a claim is insufficient to start the limitations clock so long as the defendant continues the series of non-discrete acts on which the claim as a whole is based."

A-2472-17T1 10 [Id. at 229-30 (quoting Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 22 (2002)).]

The Court continued, "[s]tated differently, knowledge of hostility and of

ongoing acts consistent with that hostility in such a setting is insufficient to

trigger the limitation timeframe within which a LAD cause of action must be

filed." Id. at 230. The Court warned, however, "that '[w]hat the doctrine does

not permit is the aggregation of discrete discriminatory acts for the purposes of

reviving an untimely act of discrimination that the victim knew or should have

known was actionable.'" Ibid. (alteration in original) (quoting Roa, 200 N.J. at

569).

To establish a continuing violation based on a series of discriminatory

acts, our Supreme Court has stated that two questions must be considered:

First, have plaintiffs alleged one or more discrete acts of discriminatory conduct by defendants? If yes, then their cause of action would have accrued on the day on which those individual acts occurred. Second, have plaintiffs alleged a pattern or series of acts, any one of which may not be actionable as a discrete act, but when viewed cumulatively constitute a hostile work environment? If yes, then their cause of action would have accrued on the date on which the last act occurred, notwithstanding "that some of the component acts of the hostile work environment [have fallen] outside the statutory time period."

[Shepherd, 174 N.J. at 21 (alteration in original) (emphasis added) (quoting Morgan, 536 U.S. at 117).]

A-2472-17T1 11 Plaintiff relies on the continuing violation doctrine to sweep in as timely

all of the harassment and hostile work environment acts that allegedly occurred

during a thirteen-year period. Plaintiff's evidence suggests that from 2003 to the

time he filed his complaint in November 2015, he was subjected to a pattern or

series of non-discrete acts which, when viewed cumulatively, could constitute a

hostile work environment. According to plaintiff, the pork comments, which

the court ignored, occurred throughout the course of his employment every time

he cooked pork or pork was on the menu and continued until he filed his

complaint. In addition, plaintiff's supervisor's comments about plaintiff being

one of the sleeper cells "was something going on all the time. Something every

couple of days, couple of days something comes up." When a plaintiff alleges

a pattern or series of acts, any one of which may not be actionable as a discrete

act, but when viewed cumulatively constitute a hostile work environment, the

cause of action accrues on the date of the last act, even if some of the component

acts of the hostile work environment claim fell outside the two-year period. Roa,

200 N.J. at 568 (quoting Shepherd, 174 N.J. at 21).

Further, it was undisputed that the world map incident occurred in March

2014, within the statute of limitations period. In finding this was an isolated

incident, the court failed to recognize that "[s]o long . . . as one 'act contributing

A-2472-17T1 12 to the claim occurs within the filing period, the entire time period of the hostile

environment may be considered by a court for the purposes of determining

liability.'" All. for Disabled in Action, Inc. v. Renaissance Enters., Inc., 371

N.J. Super. 409, 419 (App. Div. 2004) (quoting Morgan, 536 U.S. at 117).

Accordingly, plaintiff's hostile work environment claim was timely as a

continuing violation.

III.

Plaintiff next contends the court erred in finding plaintiff failed to show

the world map incident was severe or pervasive enough to make a reasonable

person believe the conditions of employment were altered and the working

environment was hostile or abusive.

The burden of proving discrimination "remains with the employee at all

times." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 450 (2005). To establish a

cause of action under the LAD based on hostile work environment, the plaintiff

must satisfy four elements:

Specifically, [plaintiff] must show that the complained- of conduct (1) would not have occurred but for the employee's protected status, and was (2) severe or pervasive enough to make a (3) reasonable person believe that (4) the conditions of employment have been altered and that the working environment is hostile or abusive. Within that framework, a court cannot determine what is "severe or pervasive" conduct

A-2472-17T1 13 without considering whether a reasonable person would believe that the conditions of employment have been altered and that the working environment is hostile. Thus, the second, third, and fourth prongs are, to some degree, interdependent.

[Shepherd, 174 N.J. at 24 (citations omitted).]

A supervisor's rude and uncivil behavior does not qualify as a hostile

environment, Shepherd, 174 N.J. at 25, and generally offensive comments are

insufficient to establish a hostile work environment. El-Sioufi v. St. Peter's

Univ. Hosp., 382 N.J. Super. 145, 179 (App. Div. 2005). However, a single

comment, if sufficiently severe, "can, under particular circumstances, create a

hostile work environment." Taylor v. Metzger, 152 N.J. 490, 501 (1998).

In determining whether conduct was severe or pervasive, the harassing

conduct as a whole must be evaluated, not its effect on the plaintiff or the work

environment. Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 196-

97 (2008). "[N]either a 'plaintiff's subjective response' to the harassment, nor a

defendant's subjective intent," controls whether a hostile work environment

exists. Cutler v. Dorn, 196 N.J. 419, 431 (2008) (citations omitted) (quoting

Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 613 (1993)). When determining

whether the conduct would cause a reasonable person to believe the work

environment is hostile, the courts must consider the cumulative effect of th e

A-2472-17T1 14 conduct, not just the isolated instances of conduct. Godfrey, 196 N.J. at 196-

97. This requires an assessment of the totality of the circumstances, in which

the court should consider "the frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an employee's work

performance." Cutler, 196 N.J. at 432 (quoting Green v. Jersey City Bd. of

Educ., 177 N.J. 434, 447 (2003)).

Here, the court did not consider the totality of the circumstances but

focused solely on the world map incident. Viewing all of the evidence presented

in the light most favorable to plaintiff, we are satisfied a rational factfinder could

reasonably determine the complained-of conduct was sufficiently severe or

pervasive, and that a reasonable person of Egyptian ethnicity and who is a

Muslim would believe the conditions of employment had been altered and the

working environment was hostile or abusive. Accordingly, we reverse the grant

of summary judgment and remand to the trial court for further proceedings.

We decline to address defendant's contention that it was entitled to

summary judgment because it would have succeeded in asserting an affirmative

defense under Aguas v. State, 220 N.J. 494 (2015). Defendant is not precluded

A-2472-17T1 15 from filing a motion on this issue. We express no view as to the merits of such

a motion.

Reversed and remanded.

A-2472-17T1 16