SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Jason Cutler v. Theodore Dorn (A-51-07)
Argued April 7, 2008 -- Decided July 31, 2008
LaVECCHIA, J., writing for a unanimous Court.
In this appeal, the Court assesses the sufficiency of a plaintiff’s proofs in a religion-based hostile work environment claim brought under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.
Because of the procedural posture of this case, which arises out of a motion by defendant, Borough of Haddonfield, for judgment notwithstanding the verdict (nov), the Court accepts as true all the evidence supporting plaintiff. Jason Cutler had been employed as a police officer by the Haddonfield Police Department since 1995. Cutler is Jewish, and his faith and background were known by his coworkers and supervisors. The then-Chief of Police, Bill Ostrander, commented on Cutler’s Jewish ancestry “a couple times a month” and often referred to Cutler as “the Jew.” Once, Ostrander asked Cutler “where [his] big Jew . . . nose was.” Lieutenant Lawrence Corson also made comments, such as “Jews are good with numbers,” “why didn’t you go into your family business,” and “Jews make all the money.” Cutler did not complain, fearing retaliation in the small police department. Although Cutler believed Ostrander’s and Corson’s comments may have been intended as an ill-attempt at “humor,” he considered them offensive and felt there was a departmental culture that was “ripe with anti-Semitism.”
The effect of those comments was amplified by several incidents that caused Cutler to feel he was subjected to discriminatory or harassing treatment because of his religion. A superior officer had told Cutler not to wear his yarmulke during Passover because it would be noncompliant with Haddonfield’s uniform requirements; yet, another member of the department was allowed to wear a “Jesus First” pin on his uniform. In another incident, Cutler found a sticker of an Israeli flag on his locker. A few weeks later, a German flag sticker was placed above it. Cutler believed that the stickers were a reference to the Holocaust, and that “somebody was trying to send [him] a message.” He did not file a complaint because he “didn’t want to give the person who put it there the satisfaction of letting them know that it got to me.”
Another incident occurred on April 18, 1999, when Cutler, fellow patrolmen Robert Shreve, Jr., and then-corporal Mark A. Knoedler were preparing to watch a training video about diplomatic immunity. Shreve asked if the others knew why they had to watch the video. Knoedler said that the Maccabi games were to be held in Cherry Hill. Cutler explained that the Maccabi games were “the Jewish [O]lympics” and an important event in the Jewish community. At that moment, Shreve blurted out “Those dirty Jews”! The comment “stunned” Cutler. After the video ended, Cutler told Knoedler that the comment had offended him. Knoedler told Shreve to apologize to Cutler for his inappropriate comment. Shreve told Cutler that he meant it as a joke and he was sorry. Cutler replied that the comment was insensitive and not “harmless humor.”
A few days later, Knoedler asked Cutler if he wanted to file a Bias Incident Complaint. Cutler hesitated, believing it could jeopardize his career because Shreve was close with the Director of Public Safety, Theodore Dorn. Nonetheless, Cutler submitted a letter complaint reporting Shreve’s comment. Cutler also complained that others in the department had engaged in hostile conduct directed at him because of his Jewish ancestry. He explained at trial that he had waited a few days to file a complaint because “I thought I had thicker skin. . . . I didn’t think . . . comments like that would bother me or I was almost disappointed in myself for being so upset. . . . [T]his was the straw that broke the camel’s back. . . . So it was just a culmination of events that just . . . built up and built up, and finally I opened my mouth.” Haddonfield’s Internal Affairs Department investigated the matter and recommended that Shreve receive a “letter of counseling” and sensitivity training.
Less than three months later, Cutler attended an unrelated disciplinary hearing involving another officer. Shreve was a witness, and he was asked about the incident with Cutler. Shreve described his April 1999 comment as “let’s get rid of all those dirty Jews.” Cutler interpreted Shreve’s account of his earlier comment as reflecting an advocacy of genocide. Cutler considered the comment to be threatening. Thereafter, Cutler began to experience frequent insomnia, headaches and anxiety.