JASON MOSTAFA ALI, Appellant v. WOODBRIDGE TOWNSHIP SCHOOL DISTRICT; WOODBRIDGE BOARD OF EDUCATION; GLENN LOTTMAN, individually and in his official capacity as Principal; ROBERT ZEGA, individually and in his official capacity as Superintendent of Schools, JOHN DOES 1-10, fictitious designations
No. 19-2217
United States Court of Appeals for the Third Circuit
April 22, 2020
2020 Decisions 399
Before: JORDAN, GREENAWAY, JR., and KRAUSE, Circuit Judges.
PRECEDENTIAL. Appeal from the United States District Court for the District of New Jersey (D.C. Civ. Action No. 2-17-cv-02210). District Judge: Hon. Madeline C. Arleo. Submitted Under Third Circuit L.A.R. 34.1(a) January 14, 2020.
Nicholas F. Pompelio, Esq.
DiFrancesco Bateman Coley Yospin Kunzman Davis & Lehrer
15 Mountain View Boulevard
Warren, NJ 07059
Counsel for Appellant
Eric L. Harrison, Esq.
Leslie A. Koch, Esq.
Methfessel & Werbel
2025 Lincoln Highway
Suite 200
Edison, NJ 08818
Counsel for Appellees
OPINION
GREENAWAY, JR., Circuit Judge.
At times, there are nuances that arise from history that create equivocation in analyzing how, why, and when cеrtain historic events have occurred. There are no nuances to be discerned regarding the Holocaust. It is a historic fact. That
Plaintiff-Appellant Jason Mostafa Ali is of Egyptian descent and identifies as a non-practicing Muslim. He alleges he was wrongfully terminated from his high school teaching position on the basis of his race, ethnicity, and religion. Although Ali‘s deposition testimony states that his supervisor made some disparaging remarks about Ali‘s race, Ali is not able to show that his teaching anti-Semitic views to his students was a pretext for discrimination that led to his termination. We will therefore affirm the District Court‘s grant of summary judgment in favor of Defendants-Appellees.
Plaintiff-Appellant Jason Mostafa Ali was employеd as a non-tenured history teacher at Woodbridge High School from September 2015 to September 2016. In May 2016, History Department Supervisor Matthew Connelly received internal complaints about Ali‘s instruction on the Holocaust. One English teacher reported to Connelly that “her students were questioning historical accounts of the Holocaust, opining that ‘Hitler didn‘t hate the Jews,’ that statistics on the death counts were ‘exaggerated’ and that [the students] ‘got the information from their world history teacher, Mr. Ali.‘” App. 109. Students’ written assignments confirmed the English teacher‘s accounts. One student wrote in a paper submitted to Ali‘s class that “Adolf Hitler . . . is looked at as a bad guy but in reality brought Germany out of its great depression.” App. 110. Another of Ali‘s students expressed a belief that “what they claim happened in the concentration camps did not really happen” and that “Jews . . . had a much easier and more enjoyable life in the camps.” App. 6.
Around the same time, Ali had prepared and presented a lesson on the terrorist attacks that occurred on September 11, 2001. The lesson plan, which Connelly had approved, required students to read certain online articles translated by the Middle Eastern Media Research Institute (“MEMRI“). Ali posted links to these articles on a school-sponsored website so students could access them. The linked articles were entitled, “Article in Saudi Daily: U.S. Planned, Carried Out 9/11 Attacks—But Blames Others for Them” and “Egyptian Daily: U.S. Planning 9/11 Style Attack Using ISIS in Early 2015—Like it Did Using Al-Qaeda in 2001.” App. 9. The MEMRI articles also contained links to other articles and video clips, including a link to an article titled “Saudi Scholar Abdailah Al-
On September 28, 2016, a television reporter questioned Woodbridge High School Principal Glenn Lottman about the links Ali had posted on the school‘s website. The same news station also questioned Superintendent of Woodbridge Schools Robert Zega about the articles. Zega responded, among оther things, that the School District would investigate the matter and “if warranted . . . the teacher [would] be disciplined severely.” Id.
That same day, Lottman directed Ali to remove the MEMRI links from the school‘s website and sent Ali home. The following morning, Ali met with Zega, Lottman, and Connelly. At the conclusion of the meeting, Ali was given a letter advising him that his employment was terminated effective that day. The Board of Education aрproved Ali‘s termination at its next meeting.
In March 2017, Ali filed a fifteen-count complaint in the Superior Court of New Jersey against Woodbridge Township Board of Education, Woodbridge Township School District, Zega, and Lottman (collectively, “Defendants“). He alleged that during his employment, Lottman referred to him as “Mufasa” or “Mufasa Ali” based on Ali‘s middle name, Mostafa, and in reference to a character from the Lion King. App. 11. Ali also stated that Lottman once asked Ali if “they had computers in Egypt” and had greeted Ali on two occasions with “Hey Arabia Nights” and “Hey, Big Egypt.” Id. Ali further alleged that other teachers’ characterizations of him as “anti-Semitic,” “unpatriotic,” and a “conspiracy theorist” were related to these disparaging comments regarding Ali‘s ethnicity. Id. He also stated that Zega, Lottman, and Connelly
Based on these allegations, Ali claims that Defendants violated the New Jersey Law Against Discrimination (“NJLAD“) and
Defendants removed the case to federal court and the District Court granted summary judgment in favor of Defendants on each of these claims. This timely appeal followed.
II. JURISDICTION & STANDARD OF REVIEW
The District Court had jurisdiction over this matter pursuant to
Our review is plenary, and we apply the same standard as the District Court. Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014). Under that standard, summary judgment is appropriate only if, construed in the light most favorable to the non-moving party, the record shows that there is no genuine dispute of material fact and that the moving party is entitled to judgment as a matter of law. See Wharton v. Danberg, 854 F.3d 234, 241 (3d Cir. 2017);
III. ANALYSIS
Ali appeals the District Court‘s grant of summary judgment in favor of Defendants on his NJLAD and
A. NJLAD Discrimination Claims and 42 U.S.C. § 1981 Claim
NJLAD makes it unlawful for an employer to discharge an employee on the basis of race, national origin, religion, and creed.
Discrimination claims brought under both NJLAD and
The District Court held that Ali‘s NJLAD and
Importantly, Ali has not presented any evidence to challenge the notion that Defendants’ second or third rationale was pretext, or that racial or religious discrimination more likely than not played a role in Defendants’ decision to terminatе Ali‘s employment. Ali does not deny that he never expressly apologized for his conduct during the meeting with Lottman and Connelly. Moreover, evidence such as the students’ assignments and emails to Ali and Ali‘s deposition testimony show that Ali permitted conspiracy-theorist and Hitler-apologist presentations in his class and encouraged students to develop these opinions. Indeed, Ali did not dispute that he рresented sources containing the conspiracy-theorist
Defendants presented at least two legitimate reasons for Ali‘s termination. Since Ali has not presented a genuine dispute of material fact that two of Defendants’ rationales were a pretext for discrimination, we will affirm the District Court‘s grant of summary judgment on both the NJLAD and
B. NJLAD Hostile Work Environment Claim
Under NJLAD, a plaintiff alleging a hostile work environment on the basis of race and national origin must show that the alleged conduct would not have occurred but for the employee‘s race or national origin, and that the conduct is so “severe or pervasive” that a reasonable person in that situation would believe that the “conditions of employment are altered and the working environment is hostile or abusive.” Taylor v. Metzger, 706 A.2d 685, 688–89 (N.J. 1998) (citation omitted). This test “conforms to the standard for establishing workplace racial or gender harassment under federal Title VII law.” Id. at 689.
Determining whether a work environment is hostile from the perspective of a reasonable person in that situation requires looking at the totality of the circumstances, including the frequency, severity, and nature of the subject conduct. See Shepherd v. Hunterdon Developmental Ctr., 803 A.2d 611, 622 (N.J. 2002); see also Taylor, 706 A.2d at 692 (noting the alleged discriminatory conduct must be viewed in context from the perspective of a reasonable person from the particular racial or ethnic background who is similarly situated to the plaintiff). Utterances that are merely offensive do not rise to the level of
At the outset, we find Ali‘s claims that Zega, Lottman, and other teachers had called Ali anti-Semitic, unpatriotic, and a conspiracy theorist bear a tenuous relationship to Ali‘s raсe. Since Ali has not shown that the other teachers would have made these remarks but for his race or national origin, this evidence fails the first prong of the NJLAD hostile work environment test. See Shepherd, 803 A.2d at 625 (noting the plaintiff must show “by a preponderance of the evidence that the impermissible conduct would not have occurred but for plaintiff‘s protected status“) (citing Lehmann, 626 A.2d at 454).
However, the closer question is whether the alleged remarks that Lottman made prior to Ali‘s termination meeting are sufficiently “severe or pervasive” that a reasonable person who is Muslim and of Egyptian descent would find the conditions of employment altered. Viewing the facts in a light most favorable to the plaintiff, we nevertheless conclude that Ali has not presented evidence minimally necessary to form a hostile work environment claim.
Ali alleged that Lottman had greeted Ali on two occasions with “Hey Arabia Nights” and “Hey, Big Egypt,” made a comment to Ali regarding computers in Egypt, and referred to him as “Mufasa” or “Mufasa Ali” based on Ali‘s middle name, Mostafa, and in reference to a character from the
Moreover, these were isolated incidents; Ali cannot show that Lottman‘s remarks were so pervasive that they altered the working environment. Seе Woods-Pirozzi v. Nabisco Foods, 675 A.2d 684, 693 (N.J. Super. Ct. App. Div. 1996) (concluding that sexist comments made “once or twice a week” over the course of one year was “pervasive enough to make a reasonable woman . . . believe that her work environment was hostile, abusive, intimidating, or offensive“). We will therefore affirm the District Court‘s grant of summary judgment to Defendants on the NJLAD hostile work environment claim.2
A statement is defamatory when the statement harms the reputation of the plaintiff by hurting his image within his community and deterring others from associating with him. See Ward v. Zelikovsky, 643 A.2d 972, 978–89 (N.J. 1994); see also Restatement (Second) of Torts § 559. To bring a defamation claim under New Jersey law, a plaintiff must show: “(1) that defendants made a false and defamatory statement concerning [plaintiff]; (2) that the statement was communicated to another person (and not privileged); and (3) that defendants acted negligently or with actual malice.” G.D. v. Kenny, 15 A.3d 300, 310 (N.J. 2011). Truth is therefore a defense in a defamation action. Id. In New Jersey, a defamatory statement can be expressed in both written and oral form. See W.J.A. v. D.A., 43 A.3d 1148, 1153 (N.J. 2012).
Opinion statements are generally not defamatory because they reflect a person‘s state of mind. See Ward, 643 A.2d at 979. Determining if a statement is one of fact or opinion rests on the concept of verifiability, because if a statement cannot be proven true or false, it cannot be subject to liability. See Lynch v. N.J. Educ. Ass‘n, 735 A.2d 1129, 1137 (N.J. 1999).
Similarly, New Jersey recognizes “invasions of privacy involving publicity that unreasonably places the other in a false
Ali asserts that several statements that Zega made during Zega‘s interview with the reporter were defamatory. Here, we agree with the District Court that at least two of Zega‘s comments that Ali refers to—that “[i]t‘s upsetting . . . that somebody would . . . distribute [the conspiracy theory messages in the MEMRI articles]” and that there was “no [excuse]” for posting the MEMRI articles—are statements of opinion, which are not actionable as defamation or false light/invasion of privacy. App. 207–08; see Lynch, 735 A.2d at 1137 (noting that “[l]oose, figurative or hyperbolic language is not likely to imply specific facts, and thus is not likely to be deemed actionable“).
Similarly, Zega‘s comment that the posting of the MEMRI articles and the anti-Semitic statements and 9/11 conspiracy theories сontained in those articles were “not something that the district agrees with in any way” is not subject to liability for the same reasons. App. 207–08.
To the extent that Ali argues that Connelly‘s approval of the 9/11 lesson plan contradicts Zega‘s statement, Ali has not presented evidence that Connelly represented the position of the District in approving Ali‘s lesson plan. In fact, Defendants’ decision to terminate Ali for posting the MEMRI articles is further evidence that the School District did not support the views presented in those articles.
For these reasons, we will affirm the District Court.
D. 42 U.S.C. § 1983—Defamation Claim
A defamation suit under
To establish a First Amendment retaliation claim, a public employee must show “(1) that the activity in question is protected by the First Amendment, and (2) that the protected activity was a substantial factor in the alleged retaliatory action.” See Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006). Teachers do not have a protected First Amendment right to decide the content of their lessons or how the material should be presented to their students. See Edwards v. Cal. Univ. of Pa., 156 F.3d 488, 491 (3d Cir. 1998) (holding that “a public university professor does not have a First Amendment right to decide what will be taught in the classroom“); Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172, 1176 (3d Cir. 1990) (“[N]o court has found that teachers’ First Amendment rights extend to choosing their own curriculum or classroom management techniques in contravention of school poliсy or dictates.“).
Ali alleges that posting links to MEMRI articles containing “alternative views” on the 9/11 attacks is protected by the First Amendment. But, based on our case law, Ali did not have a right to decide what would be taught in the classroom. See Edwards, 156 F.3d at 491 (noting that decisions of how and what may be taught in the classroom belong to the public school and not the professor). Hence, Ali posits insufficient evidence to withstand the grant of summary judgment on his First Amendment claims.
IV. CONCLUSION
For the foregoing reasons, we will affirm the District Court‘s decision to grant summary judgment in favor of