Okituamah v. O'Meara
| Docket Number | A-2001-21 |
| Decision Date | 30 August 2023 |
| Parties | KINGSLEY OKITUAMAH, Plaintiff-Appellant, v. RICHARD O'MEARA and RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY, [1] Defendants-Respondents. |
| Court | New Jersey Superior Court — 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.
Submitted May 23, 2023.
On appeal from the Superior Court of New Jersey, Law Division Essex County, Docket No. L-2286-19.
Lawrence &Gerges, LLC, attorneys for appellant (Silvia G. Gerges, of counsel and on the briefs).
Saiber LLC, attorneys for respondents (Sean R. Kelly, on the brief).
Before Rose and Gummer Judges.
Plaintiff Kingsley Okituamah appeals from a May 18, 2021 Law Division order dismissing two counts of his complaint against defendant Rutgers, The State University of New Jersey (RU) on summary judgment. A Black male of African descent, plaintiff earned a Master of Science degree in global affairs from RU in January 2018. In his complaint, plaintiff alleged between April 2017 and June 2017, while enrolled in defendant Richard O'Meara's international law course, he was repeatedly intimidated and harassed by O'Meara because of his race and mental illness and, as such, RU violated the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50, by creating a hostile educational environment based on plaintiff's race (count one) and mental illness disability or perceived disability (count two). Among other remedies, plaintiff sought damages for costs incurred for mental health treatment.
Plaintiff also contingently appeals from the motion court's Rule 4:6-2(e) dismissal of his aiding and abetting claim against O'Meara (count four). Plaintiff does not challenge the court's reasoning and seeks reversal of the court's January 27, 2022 order dismissing count four only if we reverse the May 18, 2021 order.[2]
Because we conclude plaintiff failed to satisfy the elements of a hostile educational environment under the LAD, we affirm. But we do so for different reasons than those articulated by the motion judge. See T.B. v. Novia, 472 N.J.Super. 80, 93 (App. Div. 2022) (). In view of our decision, we need not address plaintiff's contingent argument regarding the court's dismissal of count four.
We summarize the material facts from the summary judgment record, viewing them in the light most favorable to the non-moving plaintiff. See Richter v. Oakland Bd. of Educ., 246 N.J. 507, 515 (2021). Among other requirements, RU's global affairs master's program mandated the completion of "six core courses with grades of B (3.0) or higher." During the spring 2017 semester, O'Meara assigned plaintiff a final grade of "F" based on the "entirety of his record," including a plagiarized paper. O'Meara testified at deposition that RU's policy afforded professors discretion in determining the imposition of sanctions for plagiarizing an assignment. During the same semester, Professor Jun Xiang assigned plaintiff a grade of "C," for plagiarizing a paper in her class.
When deposed, plaintiff acknowledged he had committed plagiarism. He also testified about his interactions with O'Meara during that semester. For example, on March 23, 2017, plaintiff identified an email, notifying O'Meara he felt sick and a "bit depressed." Plaintiff acknowledged that O'Meara responded, But plaintiff claimed despite O'Meara's well wishes "face-to-face, he was mean." Plaintiff elaborated: Plaintiff also described an occasion in class during which he felt O'Meara "mock[e]d" him.
Plaintiff also acknowledged an April 13, 2017 email to O'Meara, explaining that plaintiff was attempting to secure legal assistance because he had been fired from his job and, as such, would miss an upcoming class. O'Meara responded:
Plaintiff claimed that during their ensuing meeting, O'Meara "charg[ed] towards [him]; repeatedly yelling, throwing the back of his hand on [plaintiff's] face." Plaintiff explained that O'Meara did not strike plaintiff but was "throwing his hand in the air." Plaintiff cried during the meeting, prompting O'Meara to call his assistant who, in turn, referred plaintiff to RU's "care office."
O'Meara testified that on a date he could not recall, he suggested plaintiff contact the appropriate RU department for an accommodation based on his mental health issues. O'Meara told plaintiff: "[T]hat accommodation will tell me that indeed you need more time to do this course properly, and if you give me that accommodation, then I can accommodate you and we can work out this grade, but you need to do that." Plaintiff did not do so.
On May 1, 2017, O'Meara informed plaintiff that he would not graduate in view of the grades assigned by him and Xiang. The following day, plaintiff met with Vice Chancellor Corlisse Thomas because he was "afraid" and "disturbed"; he "wanted the bullying . . . and the harassment to stop." Thomas walked plaintiff to the counseling center.
On May 3, 2017, plaintiff spoke with Sandy Reyes, the graduate school coordinator, "to discuss [his] academic problems." Plaintiff told Reyes he was "afraid for [his] life." Shortly after he left Reyes's office, plaintiff was called to the student counselor's office. Campus police responded and drove plaintiff to University Hospital. About twelve hours later, plaintiff was released and recommended for mental health treatment.
During the fall 2017 semester, James Berman, a friend and RU classmate, contacted plaintiff, claiming O'Meara "use[d] the 'N-word' in class to describe some Black kids." Berman recorded the instances as part of his notetaking during class on November 9, 2017 and November 16, 2017. Plaintiff was not enrolled in the class and, as such, did not hear the utterances.
O'Meara denied using the N-word "in [his] personal description of other people" but acknowledged he heard the recording and believed he was "attempting to explain the fact that . . . certain groups of individuals in the United States will use that term but may, in fact, not be racist." O'Meara said he "tr[ied] to define from a critical thinking point of view what is a racist; is it only defined by the use of terms, etcetera." When pressed whether it was "acceptable to call a Black person a[n N-word]," O'Meara stated, "[p]robably not." But he added, "It depends on the context."
On November 25, 2021, an anonymous person using the pseudonym, "Robert Rutgers," emailed Thomas asserting O'Meara "is spreading hate and discriminating against students through the grades he assigns, solely based on race and his prejudice mindset. "The sender stated O'Meara "repeatedly used the 'N-word' during his lectures." Audio files from lectures on November 6, 2017 and November 9, 2017 were attached to the email. The sender did not mention plaintiff by name but generally referenced a student who "was ostracized and retaliated against by Dr. O'Meara." Thomas forwarded the email to Lisa Grosskreutz, Director of the Office of Employment Equity (OEE).
Although Grosskreutz responded to the email within two days, the investigation was impeded for several months until the anonymous sender disclosed plaintiff's name. On March 23, 2018, Grosskreutz contacted plaintiff via email. She noted the anonymous sender's allegations against O'Meara on behalf of plaintiff; informed plaintiff of his right to file a complaint with the OEE; and attached RU's Policy Prohibiting Discrimination and Harassment and the complaint form. Claiming he "was afraid "and felt intimidated by O'Meara's status as a retired Army general and an attorney, plaintiff did not file an OEE complaint against his former professor. The following year, on March 26, 2019, plaintiff filed his Law Division complaint.
Following the close of discovery, defendant filed the present motion. During oral argument before the motion judge, RU's attorney claimed plaintiff failed to demonstrate O'Meara's conduct satisfied the governing standard for a race-based hostile educational environment claim. RU's counsel noted plaintiff provided "no evidence whatsoever of any racially-tinged conduct or racially-tinged statement" by O'Meara while plaintiff was enrolled in his class. Further, the audio recordings provided by Berman and the anonymous sender were never authenticated. RU's counsel also argued plaintiff's refusal to participate in RU's complaint process, along with RU's policies in place and response to the complaints, entitled the university to an affirmative defense under the controlling case law. Turning to count two, RU's attorney argued there was no support in the record to demonstrate a "disability-based harassment claim."
Plaintiff's counsel countered that O'Meara spoke to plaintiff in a harassing manner, shouted at him, and pushed him while handing back a course paper. Further, whether the alleged conduct was severe or pervasive was a jury issue. Plaintiff's counsel acknowledged she "c[ould]n't point to specific things that happened" regarding race until November 2017. However, plaintiff's counsel argued, RU's conduct pertaining to the complaints about O'Meara failed to satisfy a defense.
On March 18, 2021, the...
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