Shakeem Malik Holmes v. Jersey City Police Department

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1634-15T3

SHAKEEM MALIK HOLMES,

Plaintiff-Appellant, APPROVED FOR PUBLICATION

v. April 27, 2017

JERSEY CITY POLICE DEPARTMENT, APPELLATE DIVISION

Defendant-Respondent.
_________________________________

Submitted April 4, 2017 – Decided April 27, 2017

Before Judges Reisner, Koblitz and Sumners.

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).

The opinion of the court was delivered by

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

1 According to plaintiff's attorney, the shoplifting charges were
later dismissed.

2 Ptaszynski has been cited with approval by the Supreme Court for
its language concerning the broad construction to be given the
LAD, but the Court has not addressed the substantive issue
concerning the LAD status of a police station. See Nini v. Mercer
Cty. Cmty. Coll., 202 N.J. 98, 115 (2010); L.W. v. Toms River
Reg'l Sch. Bd. of Educ., 189 N.J. 381, 400 (2007).

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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

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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. Dorn, 196 N.J. 419

(2008), where the Court unequivocally rejected the higher proof

standard. Id. at 440. "If the holding in Heitzman is perceived,

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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. 206,

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-

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 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 the terms
seem to convey with insulting or humiliating
words or conduct designed to discourage a
potential patron's use of a public
accommodation.

[Ibid.]

In Franek, proof of one discriminatory comment by the owner

of a recreation facility, that he did not want "those [disabled]

people" to use the premises, was sufficient to allow the plaintiff

to survive a summary judgment motion. Id. at 211. Likewise, in

Turner v. Wong, proof that on one occasion, the proprietor of a

donut shop directed racist remarks to a customer was sufficient

to establish a prima facie case of public accommodation

discrimination. Turner, supra, 363 N.J. Super. at 197-98.

Defendant's reliance on L.W., supra, is misplaced. In L.W.,

the harassment was directed at the plaintiff, a public school

student, by his classmates, rather than by teachers or other

authority figures. In that context, the Court recognized "a cause

of action against school districts for failing to reasonably

address peer-based, affectional orientation harassment[.]" L.W.,

supra, 189 N.J. at 402. However, the Court also recognized that

school children will inevitably engage in teasing and other

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inappropriate behavior, due to their immaturity, and not every

instance of wrongful conduct will support a LAD cause of action.

Id. at 408-09.

We do not suggest, however, that isolated
schoolyard insults or classroom taunts are
actionable. Rather, in the educational
context, to state a claim under the LAD, an
aggrieved student must allege discriminatory
conduct that would not have occurred "but for"
the student's protected characteristic, that
a reasonable student of the same age, maturity
level, and protected characteristic would
consider sufficiently severe or pervasive
enough to create an intimidating, hostile, or
offensive school environment, and that the
school district failed to reasonably address
such conduct. See Lehmann, supra, 132 N.J.
at 603-04 (enumerating standard for actionable
hostile work environment sexual harassment).

[Id. at 402-03.]

This case presents an entirely different context from L.W.

Here, the comments were not made by school children, or by

plaintiff's peers. They were made by police officers, in a

position of authority over plaintiff, who was their prisoner. In

those circumstances, the impact of threatening and harassing

conduct may be magnified, even if it only occurs on one day.

Moreover, while a certain amount of strong language may be expected

in the confines of a police department, defendant has not suggested

that its personnel have any operational need to threaten, demean

or humiliate prisoners on the basis of their gender affiliation

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or membership in any other protected class. In fact, such conduct

may encourage other prisoners to attack the harassment victim,

thus undermining the orderly operation of the police lock-up as

well as the safety of the transgender prisoner.3

Under the factual circumstances of this case, we conclude

that summary judgment should not have been granted on the one

claim plaintiff has pursued on this appeal. Accordingly, we

reverse and remand for trial on that claim.

Reversed and remanded. We do not retain jurisdiction.

3 During his deposition, plaintiff testified that he was afraid
for his physical safety from other prisoners; hence, he sought to
avoid discussing his transgender status in front of the other
prisoners in the male-only cell where he was first confined.
Plaintiff's female companion, who was arrested at the same time,
testified that based on the officers' hostile reaction to
plaintiff's transgender status, she was also afraid for his
physical safety.

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