                   NOT FOR PUBLICATION WITHOUT THE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).

                                        2                              A-1634-15T3
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

                                              3                                   A-1634-15T3
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-

                                      5                            A-1634-15T3
           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


                                       6                                    A-1634-15T3
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


                                       7                                  A-1634-15T3
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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