JASON MOSTAFA ALI, Aрpellant 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
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.
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 19-2217
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
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
Before: JORDAN, GREENAWAY, JR., and KRAUSE, Circuit Judges.
(Opinion Filed: April 22, 2020)
Alyssa Chabak, Esq.
Nicholas F. Pompelio, Esq.
DiFrancesco Bateman Coley Yospin Kunzman Davis & Lehrer
15
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 certаin historic events have occurred. There are no nuances to be discerned regarding the Holocaust. It is a historic fact. That tragic event in human history along with the 9/11 terrorist attacks lie at the center of this matter.
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.
I. BACKGROUND
Plaintiff-Appellant Jason Mostafa Ali was employed 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 werе 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 cаmps 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 Researсh 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-Yahya: The Jews are Like a Cancer, Woe to the World if they Become Strong.” Id.
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
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 approved 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 stаted 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 made similar remarks abоut his ethnicity during the meetings that occurred on September 28 and 29, 2016, resulting in Ali‘s termination.
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 samе 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 employеe 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
Defendants proffered three non-discriminatory reasons for Ali‘s termination: (1) Ali disseminated links to anti-Semitic online articles through the school‘s official channels; (2) Ali expressed no remorse for this conduct; and (3) Ali‘s history of teaching Holocaust denial theories to his students. Ali testified in his deposition that on September 9, 2016, Connelly had seen copies of the MEMRI articles containing anti-Semitic references included in his lesson plan and nevertheless approved the lesson plan. He argues that Connelly‘s approval casts doubt on the legitimacy of Defendants’ first rationale for terminating Ali.
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 terminate 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 presented sources containing the conspiracy-theorist and Hitler-apologist views that appeared in his students’ work product.
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 Cоurt‘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 аre 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 naturе 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 unreasonably interfering with an employee‘s job performance. Seе Mandel v. UBS/PaineWebber, Inc., 860 A.2d 945, 955 (N.J. Super. Ct. App. Div. 2004). Moreover, it is “a rare and extreme case in which a single incident will be so severe that it would, from the perspective of a reasonable [person situated as the claimant], make the working environment hostile.” Lehmann v. Toys ‘R’ Us, Inc., 626 A.2d 445, 455 (N.J. 1993).
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
However, the closer questiоn 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 Lion King. App. 11. Although these remarks are offensive, none of them rise to the level of severity that would alter wоrking conditions. There is no evidence that Lottman made these comments in the presence of other employees with “an attitude of prejudice that injects hostility and abuse into the working environment” or that any of them were as severe as the use of an unambiguous racial epithet. See Castleberry v. STI Grp., 863 F.3d 259, 265 (3d Cir. 2017) (holding that the use of an unambiguous racial epithet by a supervisor, immediately followed by a threаt of termination, created a hostile work environment); Taylor, 706 A.2d at 693 (finding sufficiently severe a defendant‘s racist slur about and to a plaintiff-employee that was made in the presence of another supervisor and meant to humiliate the plaintiff).
Moreover, these were isolated incidents; Ali cannot show that Lottman‘s remarks were so pervasive that they altered the working environment. See Woods-Pirozzi v. Nabisco Foods, 675 A.2d 684, 693 (N.J. Super. Ct. App. Div. 1996) (conсluding 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
C. Defamation, Libel, False Light/Invasion of Privacy Claims
A statement is dеfamatory 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
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 opiniоn 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 light before the public.” Romaine v. Kallinger, 537 A.2d 284, 289 (N.J. 1988). Like defamation, “a fundamental requirement of the false light tort is that the disputed publicity be in fact false, or еlse ‘at least have the capacity to give rise to a false public impression as to the plaintiff.‘” Id. at 294 (citation omitted).
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 thаt 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 contained 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 lеsson 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.
Finally, Zega‘s affirmation that Defendants took “swift action” to remove the links and that “the teacher [would] be disciplined severely,” if warranted following an investigation, App. 207–08, is also not defamatory nor does it constitute fаlse light/invasion of privacy because it is not false. Indeed, Defendants acted quickly in disciplining the teacher at fault; the same day that the reporter approached Zega, Lottman ordered Ali to remove the MEMRI links from the school‘s website and, following two meetings within two days, Defendants terminated Ali.
For these reasons, we will affirm the District Court.
D. 42 U.S.C. § 1983 —Defamation Claim
A defamation suit under
E. 42 U.S.C. § 1983 —First Amendment Claims
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 policy or diсtates.“).
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 grаnt 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 Defendants on all of Ali‘s claims under NJLAD,