Morris v. Rutgers-Newark Univ.

Decision Date02 June 2022
Docket NumberDOCKET NO. A-0582-21, A-0583-21
Citation472 N.J.Super. 335,277 A.3d 13
Parties Kevin MORRIS, Jasmine Daniels, Sharee Gordon, Jade Howard, Adayshia McKinnon, Sarah Schwartz, and Arianna Williams, Plaintiffs-Appellants/ Cross Respondents, v. RUTGERS-NEWARK UNIVERSITY, Gerald Massenburg, Mark Griffin, and William Zasowski, Defendants-Respondents/ Cross-Appellants.
CourtNew Jersey Superior Court — Appellate Division

Kevin E. Barber, Morristown, argued the cause for appellants/cross-respondents (Niedweske Barber LLC, attorneys; Kevin E. Barber, Peter J. Heck, Morristown, and Patrick Lucignani, on the briefs).

Jane A. Rigby, Newark, argued the cause for respondents/cross-appellants Rutgers-Newark University, Gerald Massenburg and Mark Griffin (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Jane A. Rigby, of counsel and on the briefs; Seth Spiegal, Morristown, on the briefs).

James J. O'Hara, Roseland, argued the cause for respondent/cross-appellant William Zasowski (Tompkins, McGuire, Wachenfeld & Barry LLP, attorneys; James J. O'Hara, of counsel and on the briefs; Richard A. Ulsamer, Roseland, and James P. Kearns, on the briefs).

Before Judges Fisher, DeAlmeida and Smith.

The opinion of the court was delivered by

FISHER, P.J.A.D.

Plaintiffs Sharee Gordon, Adayshia McKinnon, Jade Howard, Arianna Williams, and Sarah Schwartz were students at Rutgers-Newark University1 and on the roster of the school's 2014-15 women's basketball team. Plaintiff Jasmine Daniels was a student and former player on the team who acted as the team's manager that season. And plaintiff Kevin Morris was the head coach but out on a medical leave for the season in question.2 Plaintiffs commenced this action for damages under the Law Against Discrimination, N.J.S.A. 10:5-1 to -50, because of various alleged acts or omissions of defendants Rutgers-Newark University, William Zasowski, who was the team's interim head coach that season, Mark Griffin, the Athletic Director, and Gerald Massenburg, the Associate Provost at Rutgers-Newark in charge of student life and activities, including athletics.

Defendants' summary judgment motion produced mixed results, causing both sides to seek leave to appeal. In permitting these interlocutory cross-appeals, we have undertaken to examine plaintiffs' argument that the trial judge erred by granting summary judgment for defendants on the retaliation claims asserted by four plaintiffs,3 claiming the judge's interpretation of N.J.S.A. 10:5-12(d) was impermissibly narrow. On the other hand, we also consider defendants' argument that the judge erred by not dismissing more of the complaint. Defendants specifically argue plaintiffs' claims of a hostile educational environment should have been dismissed, that the judge failed to conduct an individualized analysis for each plaintiff's claim, and that plaintiffs cannot satisfy the severe or pervasive prong of the test adopted by our courts in such matters.

After careful consideration, we reverse those parts of the order under review that granted summary judgment on portions of the complaint.

I

Plaintiffs' complaint as amended includes plaintiffs' LAD claims of a hostile educational environment, disparate treatment, and retaliation. After years of discovery, defendants moved for summary judgment on all counts, and the motion judge rendered a decision that dismissed parts of the complaint. The judge also denied cross-motions for reconsideration.

To put the issues and factual contentions in proper perspective, we first consider how plaintiffs identify themselves. Gordon, who was twenty-one years old at the start of the 2014-15 season, refers to herself as an "African-American ... lesbian"; she was a two-year starter and team captain. McKinnon, who was nineteen years old at the start of the season, identifies as a "Black ... bi[sexual]";4 she played on the team during her freshman and sophomore years but did not continue to play after the 2014-15 season ended. Howard and Williams were both twenty-one years old at the start of the 2014-15 season and identified themselves as "African-American ... lesbian[s]." Howard was a four-year starter and team captain. Williams played for four years and was a team captain. Schwartz was twenty years old at the start of the season and identifies as a "Hispanic ... heterosexual." Daniels, the team manager that year, identifies as a "gay, Black female."

On July 28, 2014, on behalf of the team, Gordon wrote to Massenburg requesting a "question and answer meeting" with him, Griffin, and Nancy Cantor,5 to discuss the team's concerns about the potential hiring of Zasowski as interim head coach. That letter was prompted by several comments team members heard Zasowski make while he was an assistant coach of the men's basketball team. Zasowski was alleged, among other things, to have referred to members of the men's team as "pussies," "bitches," and "retard[s]," and to have asked members of the men's team whether they were on their "period." That same day, Williams, on behalf of the team, emailed Massenburg requesting a meeting with players and administration to discuss Zasowski's hiring. The next day, Massenburg responded that he "welcome[d] the opportunity to meet with [Williams] and [her] teammates."

In furtherance of these communications, Cantor requested that Lisa Grosskreutz, Director of the Office of Employment Equity (the OEE) at Rutgers-Newark, schedule a meeting with some of the players to discuss their concerns. Grosskreutz could not recall whether she ever scheduled a meeting or reached out to the team to discuss their options for such a meeting. Around the same time, Bimpe Fegeyinbo, an African-American graduate assistant of the team, emailed Massenburg to express her concerns over Zasowski's hiring; Massenburg forwarded Fegeyinbo's email to both Griffin and Peter Englot, Chief of Staff for Cantor. That same day, Fegeyinbo met with Massenburg and Griffin and expressed her concerns about the hiring of Zasowski; she also informed Griffin she received phone calls from several players expressing their concerns about Zasowski.

Despite these complaints and an alleged desire to hear out the players, Rutgers-Newark officially named Zasowski interim head coach on July 30, 2014. On August 1, 2014, Howard emailed Massenburg stating, in part, that the team "will not meet with the interim coach or start any type of preseason activities until we meet with [Massenburg], Mark Griffin, Chancellor Nancy Cantor, [the team] and the Women's Tennis team." That same day, Massenburg responded to Howard's email stating that he and Englot would meet with the team the following Tuesday, August 5, 2014, but that Cantor could not attend as she was out of town. Englot then emailed Howard, asking about the nature of the concerns to be discussed at the August 5 meeting. Howard responded, in part, that what they:

would like to address would be the profanity our athletic director, Mark Griffin uses. Anyone can confirm his constant inappropriate use of profanity. We would also like to address his use of ethnic and homophobic slurs, highly inappropriate comments made towards female athletes, and gender equity issues.

On the evening of August 1, 2014, Grosskreutz emailed Massenburg and Englot stating her opinion that Rutgers-Newark should consider opening an investigation into Howard's claims regarding Griffin. On August 4, 2014, Grosskreutz emailed Howard, briefly explaining Rutgers-Newark's policies prohibiting harassment and discrimination and sending Howard a complaint form, telling her to fill it out if she wished to formally file a complaint. Also on that day, Howard confirmed, by email to Englot, a rescheduled meeting of the team, the women's Tennis team, Fegeyinbo, Massenburg, and Englot set for August 11, 2014.

On August 5, 2014, Grosskreutz served Griffin with a formal complaint and emailed Howard to notify her of the OEE's investigation into Griffin.6 As a result, Englot cancelled the previously scheduled meetings. Grosskreutz selected Emily Springer as the investigator of the complaints regarding Griffin.

Springer issued an investigative report, which memorialized that she found no violation of the school's Policy Prohibiting Discrimination and Harassment, though Springer did note:

[Griffin] may not have always behaved in a "gentlemanly" manner in that his language is self-admittedly "colorful," and it was noted that he makes "off color" comments. Given [Griffin's] high profile position ... it is recommended that Mr. Griffin be cautioned to henceforth exhibit a greater degree of mindfulness with regard to appropriate and professional workplace speech.

Notably, the report did not reference any of the concerns raised about the hiring of Zasowski as interim head coach, even though both Howard and Williams attempted to discuss these concerns with Springer during her investigation.

On September 18, 2014, Grosskreutz informed Griffin that the investigation had been completed and that the complaint was dismissed because no violation of the school's policies by Griffin had been found. On October 2, 2014, Grosskreutz informed Howard that the investigation into Griffin had been completed and "any appropriate action has been taken." Grosskreutz gave a copy of the investigator's report to Griffin but not to Howard or anyone else on the team.7

With Zasowski as their head coach for the 2014-15 season, plaintiffs began noting several issues right from the outset, in particular his use of certain language and profanities. Prior to the start of the season, Zasowski had a one-on-one meeting with Williams. During that meeting, he asked Williams to identify the players who were gay. Williams refused. Zasowski then asked whether a former player was gay as well as "who on the men's team [ ] she [was] sleeping with." Again, Williams refused to answer. Williams later told Howard about the meeting.

Plaintiffs also allege that during one practice Zasowski referred to...

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    ... ... of a hostile educational environment claim under the LAD ... See Morris v. Rutgers-Newark University , 472 ... N.J.Super. 335, 339-40, 348 (App. Div. 2022) (applying ... ...

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