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Merchant's racial slurs violated customer's civil rights, N.J. court says.

A store owner's use of racial epithets constitutes a denial of public accommodation, a New Jersey appeals court ruled in October. (Turner v. Wong, 832 A.2d 340 (N.J. Super. Ct. App. Div. 2003).) In a case of first impression, the court affirmed the dismissal of two claims arising out of a racially charged verbal exchange, but it reinstated a plaintiff's discrimination claims that she brought under state and federal antidiscrimination statutes.

The plaintiff, a 57-year-old African-American woman, alleged that a store-owner's racial slurs after a disagreement created a hostile atmosphere, which amounted to a verbal denial of service in direct violation of New Jersey's Law Against Discrimination (LAD) and 42 U.S.C.A. [section] 1981. The appellate court reviewed the case after a trial court dismissed all the woman's claims on summary judgment.

"There are a fair number of cases in which there is simply a denial of service" based on race, said Frank Corrado of Wildwood, New Jersey, who represented the plaintiff. "But cases in which the terms and conditions of the service are altered on a racially discriminatory basis like this one--where you get your service but you get it with such an egregious dose of racial insult or disparagement that it actually diminishes the quality of the service--are rare."

The case arose from a March 2000 incident at a doughnut shop in Cape May Court House, New Jersey. Plaintiff Delois Turner ordered a doughnut and a cup of coffee. After she insisted that the doughnut was stale, shop owner Nancy Wong--who had waited on her--allegedly began hurling racial epithets. Wong's son eventually intervened, voiding the cost of the doughnut and charging Turner only for the coffee.

Turner immediately filed a complaint with the police, who charged Wong with a bias crime. While Wong was being processed at the police station, she filed charges against Turner for theft of a doughnut. The theft charge was eventually dismissed, the bias charge was later downgraded to harassment, and Wong was fined $250, after which Turner sued.

In reversing the dismissal of the discrimination claim, the appeals court concluded that the trial court had incorrectly applied the standards outlined in the state and federal statutes.

"[The trial court's] dismissal of these causes of action was based on a finding that plaintiff was not denied any of the advantages of a public accommodation, let alone on the ground of her race," Judge Anthony Parrillo wrote for the majority. "We find that the trial court's treatment of plaintiff's public accommodation claims evinces an erroneous understanding of the policies underlying the provisions of the LAD and 42 U.S.C.A [section] 1981, and a mistaken application of those statutory standards."

Parrillo noted that state law not only guarantees every person access to all the "advantages, facilities, and privileges of any place of public accommodation," but also prohibits discriminatory acts by owners or operators of those public accommodations.

"Although the statute specifically mentions only written communications announcing the unavailability of the facility, on prohibited grounds, oral communications to the same effect are in no way immune," he wrote.

Characterizing offensive speech as a denial of service is a sophisticated point to make to a jury, Corrado said. "The damage that my client suffered is inchoate," he said. "I can't put a blanch of medical bills or pictures of a broken arm or a missing finger in front of a jury; the hurt that she suffered is intangible, yet nonetheless real. But, once it is properly explained, I don't think the jury is going to have much trouble with this case."

The appellate court did have trouble, however, with Turner's allegations of malicious prosecution--arising from the theft charge--and intentional and negligent infliction of emotional distress. The court found no evidence of a "special grievance" or severe emotional distress, and affirmed the dismissal of both claims.

Corrado was particularly disappointed about the dismissal of the malicious-prosecution claim.

"This case was quite similar to others in New Jersey involving prosecution that chilled one's free speech rights," he said. "This prosecution chilled [my client's] assertion of protection under the Equal Protection Clause, and I thought that was the element of special harm that would have gotten us to a jury on malicious prosecution as well."

But Corrado noted the advantages of a streamlined case. "When you have a lot of causes of action, you deflect attention from your best one," he said. "You're better off thinking hard about what your best causes are, pleading them and them only, and working them hard."

An important element of the case is the testimony of several other customers who were in the doughnut shop at the time of the incident. One additional witness who may lend valuable--and unexpected--credibility to Turner's claim is Wong's son.

"We have his deposition," said Corrado. "He doesn't come right out as a plaintiff's witness, but his testimony actually supports our version of what happened in there."

The next steps in the case are discovery and a management conference with the judge, said Corrado. "I would hope to be in trial in this case by February, maybe March."
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Author:Moen, Christian Harlan
Date:Jan 1, 2004
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