Jason Ali v. Woodbridge Township School Dis ( 2020 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 19-2217
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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
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Submitted Under Third Circuit L.A.R. 34.1(a)
January 14, 2020
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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 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
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OPINION
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GREENAWAY, JR., Circuit Judge.
At times, there are nuances that arise from history that
create equivocation in analyzing how, why, and when certain
historic events have occurred. There are no nuances to be
discerned regarding the Holocaust. It is a historic fact. That
2
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.
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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
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-
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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 Superintendent of Woodbridge Schools
Robert Zega about the articles. Zega responded, among other
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 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 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
5
made similar remarks about 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 42 U.S.C. § 1981 by terminating his
employment on the basis of race, religion, or perceived
religion, and contends that Defendants violated the NJLAD by
subjecting him to a hostile work environment. Ali also
maintains that Defendants violated his rights to free speech and
academic freedom under the First Amendment and that
Defendants made statements to the press that defamed him. 1
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 28 U.S.C. § 1331 and supplemental jurisdiction
was proper pursuant to 28 U.S.C. § 1367. “We have
1
The District Court also granted summary judgment in
Defendants’ favor on Ali’s Consolidated Omnibus Budget
Reconciliation Act (“COBRA”) claim. The District Court
denied summary judgment to Defendants on Ali’s New Jersey
Open Public Meeting Act (“OPMA”) claim, but declined to
exercise supplemental jurisdiction and remanded the claim to
New Jersey Superior Court for further proceedings. Ali does
not raise the COBRA claim or the OPMA claim on appeal.
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jurisdiction under 28 U.S.C. § 1291 to review the District
Court’s grant of summary judgment.” Busch v. Marple
Newtown Sch. Dist., 567 F.3d 89, 95 n.7 (3d Cir. 2009).
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); Fed. R. Civ. P. 56(a). A fact is
only material if it might affect the outcome of the suit under
the governing law. Scheidemantle v. Slippery Rock Univ. State
Sys. of Higher Educ., 470 F.3d 535, 538 (3d Cir. 2006).
III. ANALYSIS
Ali appeals the District Court’s grant of summary
judgment in favor of Defendants on his NJLAD and § 1981
discrimination claims, NJLAD hostile work environment
claim, NJLAD aiding and abetting claim, state and federal
defamation claims, and his First Amendment claims. Because
Ali is unable to show that there is a genuine dispute of material
fact to be resolved at trial, we will affirm the District Court.
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. N.J. Stat. Ann. § 10:5-12(a). Section 1981 of Title 42
of the United States Code also prohibits employment
discrimination on the basis of race and national origin. See St.
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Francis Coll. v. Al-Khazraji, 481 U.S. 604, 609 (1987). Claims
brought under NJLAD and § 1981 are analyzed under the same
framework. See Grigoletti v. Ortho Pharm. Corp., 570 A.2d
903, 906–07 (N.J. 1990).
Discrimination claims brought under both NJLAD and
42 U.S.C. § 1981 are subject to the McDonnell Douglas burden
shifting framework. See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973); see also Makky v. Chertoff, 541 F.3d
205, 214 (3d Cir. 2008) (finding that the plaintiff must
establish “(1) that s/he is a member of a protected class; (2)
s/he was qualified for the position s/he sought to . . . retain; (3)
s/he suffered an adverse employment action; and (4) the action
occurred under circumstances that could give rise to an
inference of intentional discrimination”). Once a plaintiff
meets the initial burden of production of making out a prima
facie case of discrimination, the burden shifts to the defendant-
employer to articulate legitimate, non-discriminatory reasons
for the employment decision. See Burton v. Teleflex Inc., 707
F.3d 417, 426 (3d Cir. 2013). Finally, the burden of production
shifts back to the plaintiff, who must show through direct or
circumstantial evidence that the legitimate, non-discriminatory
reason given is merely pretext and the protected status of the
plaintiff was the determinative factor of the adverse
employment action. See Makky, 541 F.3d at 214–20.
The District Court held that Ali’s NJLAD and § 1981
claims for discrimination on the basis of race, religion, or
perceived religion could not survive summary judgment
because Ali had not presented evidence raising a genuine
dispute of material fact that Defendants’ reasons for Ali’s
termination were pretext for discrimination. We agree.
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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. But even if Connelly had permitted the
inclusion of the MEMRI articles in the lesson plan, Connelly’s
approval neither precluded Defendants from terminating Ali
for posting links to anti-Semitic material nor does it raise an
inference that Defendants’ rationale for termination is a pretext
for discrimination. Moreover, Zega’s statement to the reporter
on September 28, 2016, the day before Ali’s termination, that
“the teacher [would] be disciplined severely” shows that
Defendants anticipated disciplining Ali based on Ali’s posting
of the MEMRI links, not for purported discriminatory reasons.
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
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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 Court’s
grant of summary judgment on both the NJLAD and § 1981
discrimination claims.
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
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unreasonably interfering with an employee’s job performance.
See 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 to Ali’s race.
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
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Lion King. App. 11. Although these remarks are offensive,
none of them rise to the level of severity that would alter
working 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 threat 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) (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
2
Under NJLAD, it is unlawful for “any person, whether
an employer or an employee . . . to aid, abet, [or] incite . . . the
doing of any [unlawful discriminatory acts] or to attempt to do
so.” N.J. Stat. Ann. § 10:5-12(e). Having found that Ali has
not presented sufficient evidence to create a genuine dispute of
fact as to his NJLAD discrimination or hostile work
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C. Defamation, Libel, False Light/Invasion of Privacy
Claims
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
environment claims, Ali has no basis for his NJLAD aiding and
abetting claim. So, we will affirm the District Court on the
aiding and abetting claim.
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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 else ‘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 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 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 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.
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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 false
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 42 U.S.C. § 1983 may proceed
“only if [the defamatory act] occurs in the course of or is
accompanied by a change or extinguishment of a right or status
guaranteed by state law or the Constitution.” See Clark v.
Township of Falls, 890 F.2d 611, 619 (3d Cir. 1989) (citing
Paul v. Davis, 424 U.S. 693, 711–12 (1976)). However, Ali
alleges only damage to his reputation without any concurrent
violation of his constitutional rights. Since simple defamation
alone is not a protected interest under the Due Process Clause,
Ali cannot recover under § 1983. See Boyanowski v. Capital
Area Intermediate Unit, 215 F.3d 396, 402–04 (3d Cir. 2000)
(holding that harms to a plaintiff’s future employment that flow
from statements made by a former employer do not infringe
upon a liberty interest protected by the Due Process Clause);
see also Clark, 890 F.2d at 619.
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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 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
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Defendants on all of Ali’s claims under NJLAD, § 1981,
§ 1983, and defamation under state law.
17