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APPELLATE DIVISION AFFIRMS TRIAL COURT’S DISMISSAL OF LAD CLAIM

December 10, 2018

ROBERT B. SPAWN reports on a recent unpublished decision from the Superior Court of New Jersey, Appellate Division.

A recent New Jersey case involved an incident in which an African-American high school student (“Plaintiff”) was escorted off school premises by a security guard after classes had ended on April 28, 2015.  According to Plaintiff, as the two parties approached the exit to the building, Plaintiff and the security guard got into a physical altercation, and the security guard then made a racially abusive remark directed at Plaintiff, which, in turn, caused Plaintiff a great deal of pain and suffering.  Plaintiff further alleged that this episode discouraged him from returning to school in the future.  The school (“Defendant”) investigated Plaintiff’s allegations by viewing a video that captured part of the incident and by taking statements from several eyewitnesses, Plaintiff, and the security guard.  Though its investigation did not result in any definitive conclusions based on the available evidence, Defendant asserted that it was “plausible” that the security guard had made the racially abusive remark.  Consequently, Defendant suspended the security guard for five days without pay and forced him to undergo harassment, intimidation, and bullying awareness training.

 

On October 8, 2015, Plaintiff filed an action under the New Jersey Law Against Discrimination (“LAD”), claiming that Defendant discriminated against him “in the course of a public accommodation” (i.e., at school).  Although the security guard was employed by Defendant at the time of the incident, Plaintiff did not sue the security guard.  After discovery, Defendant moved for summary judgment, contending that the April 28, 2015 incident was merely a single instance of unauthorized conduct by an employee who was not part of the school’s administration.  Defendant further argued that there was no evidence that it discouraged Plaintiff from attending school, and that it took prompt remedial action by investigating the incident.  In opposition, Plaintiff contended that Defendant was vicariously liable for the security guard’s conduct because the security guard was Defendant’s employee.

 

The trial judge agreed with Defendant and granted summary judgment.  The judge reasoned that the security guard’s racially disparaging remark clearly fell outside the scope of his employment, and, as such, Defendant could not be held vicariously liable for the security guard’s action.  Indeed, there was nothing to suggest that Defendant endorsed the security guard’s remark, nor was there any evidence of a “pervasive environment of discrimination” at the school.  The judge also noted that Plaintiff did not suggest that Defendant’s response to the incident was anything other than appropriate remedial action. 

 

On appeal, the Court similarly reasoned that there was nothing in the record indicating that the security guard had previously uttered racially abusive language, and, accordingly, Defendant could not be charged with actual or constructive notice that the security guard would engage in such behavior outside the scope of his employment on this occasion.  The Appellate Division added that Defendant did nothing to discourage Plaintiff from attending school after the incident occurred, and instead investigated the incident, suspended the security guard without pay, and required him to undergo training.  For these reasons, the Appellate Division held that Defendant could not be held liable for a single incident of an unauthorized comment by its employee and that summary judgment was appropriate.

 

Please contact Robert B. Spawn if you have any questions or need assistance in connection with this subject.