CRUZ v. SETON HALL UNIVERSITY et al

Filing 20

OPINION. Signed by Judge Susan D. Wigenton on 7/10/2012. (nr, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
JESSE CRUZ,
:
Plaintiff,
:
:
:
:
v.
:
SETON HALL UNIVERSITY, ABC :
CORPS. 1-5, ALEXANDRA BAN DYK, :
YOSAYRA EUSEBIO, TARA HEART, :
JANE DOES 1-5, JOHN DOES 1-5,
:
:
Defendants.
:
:

Civil Action No. 11-1429 (SDW) (MCA)

OPINION

July 10, 2012

WIGENTON, District Judge.
Before the Court is Defendants Seton Hall University (“SHU”), Alexandra Bandyk 1
(“Bandyk”), Yosayra Eusebio (“Eusebio”) and Tara Hart’s (“Hart”) (collectively “Defendants”)
Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56(a) (“Motion”).
This Court has jurisdiction pursuant to 28 U.S.C. § 1331. Venue is proper in this District
pursuant to 28 U.S.C. § 1391. For the reasons stated below, this Court grants Defendants’
Motion.

FACTUAL AND PROCEDURAL HISTORY
At the time of the events leading up to this cause of action, Jesse Cruz (“Plaintiff” or
“Cruz”), an openly homosexual male, was a student at SHU. (Nicholas Decl. Ex. A, Cruz
Certification (“Certif.”) ¶ 3.) On August 25, 2010, 2 Plaintiff applied for on-campus housing for
the 2010-2011 school term. (Compl. ¶ 12.) SHU’s housing application and residence life form
1

Bandyk is incorrectly pled as Ban Dyk. Hart is also incorrectly pled as Heart. (Defs.’ Notice of Mot. 1.)
Cruz’s subsequent certification, however, states that he applied for housing on August 27, 2010. (Nicholas Decl.
Ex. A, Cruz Certif. ¶ 4.)
2

did not inquire about Plaintiff’s sexual orientation or sexual preference. (Sponzilli Decl. Ex. A,
Cruz Dep. 21:19-21.) On August 30, 2010, SHU assigned Cruz to room 346 in Xavier Hall.
(Nicholas Decl. Ex. A, Cruz Certif. ¶¶ 5-6; Compl. ¶ 14.) On that same date, Cruz met his
roommate Anthony Crisci (“Crisci”), who was already residing in the room. (Nicholas Decl. Ex.
A, Cruz Certif. ¶ 7.) Within twenty minutes of meeting, Crisci informed Cruz that “he wanted to
room with someone else.” (Sponzilli Decl. Ex. A, Cruz Dep. 47:2-10.) Thereafter, Crisci
emailed Eusebio, Xavier Hall’s Residence Director, stating that he wanted to room with someone
else. (Hart Decl. Ex. B at SHU00005-6.) Following that email, Cheryl Janus, SHU’s Assistant
Director of Housing Services, informed Crisci that he had to follow normal protocol and wait
until September 15 for “room change day.” (Hart Decl. Ex. D at SHU00010.)
The next day, Cruz moved into room 346. (Sponzilli Decl. Ex. A, Cruz Dep. 55:13-25,
64:24-65:10.)

That same day, Crisci discovered, through Plaintiff’s Facebook profile, that

Plaintiff was homosexual. (Hart Decl. Ex. E at SHU00008.) Subsequently, Crisci’s mother
informed SHU that her son “wanted a room change because his roommate identified himself as
gay on Facebook [and that] ma[de] [him] uncomfortable.” (Id.) SHU denied the request. (Id.)
On September 15, 2010, Cruz and Crisci exchanged several text messages.

Crisci

expressed that he wanted Cruz to move out of the room so that one of Crisci’s friends could
move in. (Sponzilli Decl. Ex. B at JC-1.) Cruz responded that he had no desire to move out, but
Crisci could move out if he wanted to. (Id. at JC-1, JC-2.) Crisci then offered to give money and
assistance to Cruz if he moved out of the room. (Id. at JC-2-JC-3; Sponzilli Decl. Ex. A, Cruz
Dep. 106:10-17.) Subsequently, Cruz contacted Dawn Ohanessian (“Ohanessian”), Assistant
Director of Housing and Residence Life, about the text messages.

(Hart Decl. Ex. H.)

Ohanessian emailed Eusebio to set up a meeting with Crisci and to contact Cruz “to see how he’s

2

doing.” (Id.) Plaintiff testified that he did not stay in his room for the next few days because he
“felt awkward . . . [t]hat [Crisci] wanted [him] to leave. [He also] felt that [it] was awkward to
be in the room with him at that point.” (Sponzilli Decl. Ex. A, Cruz Dep. 92:23-93:5.)
On September 16, 2010, Eusebio met separately with both Cruz and Crisci and gave them
three options: (1) “[t]hey both move to a vacancy in the Complex;” (2) switch with two
international students from China who want to live with American roommates; or (3) “[o]ne of
them chooses to move to a vacancy in the Complex.” (Hart Decl. Ex. K at SHU00035-36.)
According to a memo recording the meeting between Eusebio and Cruz, Cruz was amenable to
moving out of the room as long as Crisci moved out as well. (Hart Decl. Ex. I.) However, Cruz
denies ever agreeing to move out. (Sponzilli Decl. Ex. A, Cruz Dep. 116:7-17.)
Subsequently, Crisci attempted to contact Cruz to inform him that he changed his mind
about getting a new roommate and that he wanted to make amends. (Hart Decl. Ex. L at
SHU00042.) Cruz concedes that he received Crisci’s messages but did not reply to them.
(Sponzilli Decl. Ex. A, Cruz Dep. 97:21-98:5.)

In addition, Crisci emailed Eusebio the

following: “I have thought it over and I am not willing to move out of Xavier. I am willing to
make this work with [Cruz] for the rest of the year. I have tried to contact him this morning and
he has yet to respond.” (Hart Decl. Ex. L at SHU00042.)
Cruz, on the other hand, did not tell Eusebio or Hart which option he would pursue.
Consequently, Eusebio emailed Cruz and informed him that pursuant to SHU’s Housing Terms
and Conditions of License Agreement, both he and Crisci would be assigned to separate rooms
and that he “ha[d] until Sunday, September 19, 2010 at 10:00pm to complete the move.” (Hart
Decl. Ex. M at SHU00050.) Four minutes after that email, Cruz responded: “I am not moving, I
don’t think that’s in my best interest. I am seeking legal representation on this matter.” (Hart

3

Decl. Ex. M at SHU00049.) On September 17, 2010, Cruz’s attorney sent a letter to Eusebio
asserting that she represented Cruz and that “[a]ny attempt to remove [him] from his current
room assignment will be met with an immediate LAD lawsuit.” (Hart Decl. Ex. N.) On
September 21, 2010, Cruz returned to the room after Crisci vacated it. He never moved out of
the room. (Sponzilli Decl. Ex. A, Cruz Dep. 141:22-25.)
On March 14, 2011, Plaintiff commenced this action asserting that Defendants violated
the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (“LAD”), Title IX, 20
U.S.C. § 1681, et seq., the New Jersey Fair Housing Act (“NJFHA”), N.J.S.A. 52:27D-301, et
seq., and the United States Fair Housing Act (“FHA”), 42 U.S.C. § 3601, et seq. Cruz also
asserts claims for breach of housing contract, negligent hiring, training, supervision and
retention, and negligent and intentional infliction of emotional distress.

SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The “mere existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
A fact is only “material” for purposes of a summary judgment motion if a dispute over that fact
“might affect the outcome of the suit under the governing law.” Id. at 248. A dispute about a
material fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Id. The dispute is not genuine if it merely involves “some metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986).
4

The moving party must show that if the evidentiary material of record were reduced to
admissible evidence in court, it would be insufficient to permit the nonmoving party to carry its
burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Once the moving party
meets its initial burden, the burden then shifts to the nonmovant who must set forth specific facts
showing a genuine issue for trial and may not rest upon the mere allegations, speculations,
unsupported assertions or denials of its pleadings. Shields v. Zuccarini, 254 F.3d 476, 481 (3d
Cir. 2001). “In considering a motion for summary judgment, a district court may not make
credibility determinations or engage in any weighing of the evidence; instead, the non-moving
party’s evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.’”
Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at
255).
The nonmoving party “must present more than just ‘bare assertions, conclusory
allegations or suspicions’ to show the existence of a genuine issue.” Podobnik v. U.S. Postal
Serv., 409 F.3d 584, 594 (3d Cir. 2005) (quoting Celotex Corp., 477 U.S. at 325). Further, the
nonmoving party is required to “point to concrete evidence in the record which supports each
essential element of its case.” Black Car Assistance Corp. v. New Jersey, 351 F. Supp. 2d 284,
286 (D.N.J. 2004). If the nonmoving party “fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which . . . [it has] the burden of
proof,” then the moving party is entitled to judgment as a matter of law. Celotex Corp., 477 U.S.
at 322-23.
DISCUSSION
1. Discrimination Based on Sexual Orientation under LAD
The LAD provides in relevant part: “All persons shall have the opportunity to . . . obtain
all the accommodations, advantages, facilities, and privileges of any place of public
5

accommodation . . . without discrimination because of race, creed, color, national origin,
ancestry, age, marital status, affectional or sexual orientation . . . .

This opportunity is

recognized as and declared to be a civil right.” N.J. Stat. Ann. § 10:5-4. New Jersey courts have
adopted the Supreme Court’s analysis in anti-discrimination statutes when analyzing claims
under LAD. Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 97 (1990). Consequently, New
Jersey applies the burden-shifting test espoused in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). The McDonnell Douglas framework is a three-step process where:
(1) the plaintiff must come forward with sufficient evidence to
constitute
a
prima
facie
case
of
discrimination;
(2) the defendant then must show a legitimate non-discriminatory
reason
for
its
decision;
and
(3) the plaintiff must then be given the opportunity to show that
defendant's stated reason was merely a pretext or discriminatory in
its application.
Lolagne v. Sears, Roebuck & Co., Civ. A. No. 04-3768, 2006 U.S. Dist. LEXIS 3468, *9 (D.N.J.
2006) (internal citation omitted). While discrimination must be intentional, the plaintiff may
prove the defendant’s intent to discriminate by either direct or indirect circumstantial evidence.
Greenberg v. Camden Cnty. Vocational & Technical Sch., 310 N.J. Super. 189, 198 (App. Div.
1998); see also Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981) (stating that a
plaintiff may prove discrimination “either directly by persuading the court that a discriminatory
reason more likely motivated the employer or indirectly by showing that the employer’s
proffered explanation is unworthy of credence”).
Plaintiff’s claim fails for two reasons. First, SHU is exempt from the LAD’s provisions
under N.J. Stat. Ann. § 10:5-5(l), which provides: “nor shall anything herein contained apply to
any educational facility operated or maintained by a bona fide religious or sectarian institution.”
In Romeo v. Seton Hall University, the New Jersey Appellate Division observed that “[i]t is not

6

disputed that Seton Hall qualifies as an education facility operated by a bona fide religious
institution.” 378 N.J. Super. 384, 389 (App. Div. 2005), certif. denied, 185 N.J. 295 (2005).
Consequently, the court concluded that “by its very terms[,] the provisions of LAD, including the
prohibition of discrimination based on sexual orientation, do not apply to such religiously
affiliated institutions.” Id.
Plaintiff’s claim that SHU waived the statutory exemption because its License Agreement
provides that “students are assigned to roommates without regard to . . . sexual orientation,”
(Pl.’s Opp’n Br. 10), lacks merit. The New Jersey Supreme Court looks to Title VII case law
“for guidance in developing standards to govern the resolution of LAD claims.” Craig v.
Suburban Cablevision, Inc., 140 N.J. 623, 631 (1995). The Third Circuit discussed the waiver of
the religious exemption in the Title VII context in Little v. Wuerl, 929 F.2d 944 (3d Cir. 1991).
There the court observed:
We recognize that Congress intended Title VII to free individual
workers from religious prejudice. But we are also persuaded that
Congress intended the explicit exemptions to Title VII to enable
religious organizations to create and maintain communities
composed solely of individuals faithful to their doctrinal practices .
. . . Against this background and with sensitivity to the
constitutional concerns that would be raised by a contrary
interpretation, we read the exemption broadly.
Id. at 951. The Third Circuit then concluded that “[o]nce Congress stated that ‘[t]his title shall
not apply’ to religiously-motivated employment decisions by religious organizations, no act by
[the plaintiff] could expand the statute’s scope.” Id. (internal citations omitted); see also Hall v.
Baptist Memorial Health Care Corp., 215 F.3d 618, 625 (6th Cir. 2000) (“[T]he statutory
exemptions from religious discrimination claims under Title VII cannot be waived by either
party.”). Following the Third Circuit’s reasoning, the Romeo Court held that “[c]ases such as

7

Little persuade us to conclude that the exemption . . . of the LAD cannot be waived.” Romeo,
378 N.J. Super. at 391.
Second, Plaintiff has failed to establish a prima facie case of discrimination. Plaintiff
asserts that Defendants 3 reassigned him to another room because he is a homosexual. (Pl.’s
Opp’n Br. 9.) Cruz does not dispute that SHU “[r]eserve[d] the right[, under its License
Agreement] to move a Resident from one room to another when . . . [it] determines, in its sole
and absolute discretion that the move is in the Resident’s best interest or those of his/her fellow
students and/or the University’s.” (Hart Decl. Ex. A ¶ 6.) In fact, Cruz acknowledges that the
memo recording his September 16 meeting with Eusebio noted that both he and his roommate
would be moved if they were unable to resolve the conflict. (Sponzilli Decl. Ex. A, Cruz Dep.
115:15-116:6.) Therefore, SHU had the right to move Cruz and his roommate out of the room.
Additionally, Plaintiff’s assertion that Eusebio discriminated against him because she told
his cousin Zoimara that he cannot “play the gay card,” (Sponzilli Decl. Ex. A, Cruz Dep.
227:24-228:5), also lacks merit. Asserting that an individual cannot “play the gay card” alone is
not evidence of discriminatory conduct. The record indicates that Eusebio attempted to resolve
the conflict, had several discussions with both Plaintiff and Crisci and took steps to ensure
Plaintiff’s safety and welfare. For instance, Eusebio offered Plaintiff an escort to his room when
he indicated that he felt uncomfortable going there with Crisci in the room. (Id. at 111:18120:25, 134:24-136:5.)

Moreover, Plaintiff asserts that Eusebio informed him during his

September 16 meeting with her that “Crisci should not win and get his way.” (Id. at 113:6115:4.) Cruz also admits that the memo recording his meeting with Eusebio notes that his
roommate could not force him out of the room. (Id. at 103:1-8.) Most importantly, although

3

Cruz concedes that Bandyk and Hart did not discriminate against him. (Sponzilli Decl. Ex. A, Cruz Dep. 228:914.) Therefore, Plaintiff has no claim against those defendants.

8

SHU instructed Cruz to vacate the room, he never actually did. (Sponzilli Decl. Ex. A, Cruz
Dep. 141:7-8.) Additionally, Plaintiff was given three options to choose from and he failed to
inform Defendants which option he would pursue. As a result, SHU could exercise its discretion
under the License Agreement. The record shows that Defendants’ decision to move Cruz and
Crisci to different rooms was based solely on their inability to resolve the conflict.
Nonetheless, Plaintiff claims that he was “constructively evicted.” (Pl.’s Opp’n Br. ¶¶
23-24 at 6.) Cruz contends that although Defendants “did not physically force [him] to sleep
somewhere else, they intentionally made [him] feel so alienated and [made it] uncomfortable for
him to sleep in his originally assigned room.” (Id. at 10.) Plaintiff also asserts that SHU
changed his residence from Xavier Hall to Serra Hall on the school’s website and that change
amounts to an eviction. (Id. at 11.) Cruz’s constructive eviction claim lacks merit. As stated
earlier, Cruz never actually moved out of his originally assigned room. In addition, Plaintiff
concedes that it was his decision not to stay in the room from September 15, 2010 to September
19, 2010. (Id. ¶¶ 9, 10 at 1-2; Sponzilli Decl. Ex. A, Cruz Dep. 124:9-13, 195:1-6.) He also
testified that he did not tell Eusebio that he felt threatened. (Sponzilli Decl. Ex. A, Cruz Dep.
116:24-117:24.) Overall, Plaintiff has not offered any evidence demonstrating that Defendants
actually removed him from his dormitory or that their decision was based on his sexual
orientation. Therefore, Plaintiff fails to establish a prima facie case of discrimination.
2. Discrimination Based on Sexual Orientation under Title IX
Cruz alleges that Defendants’ conduct constitutes discrimination based on sexual
orientation under § 1681. 4 (Compl. ¶¶ 31-33.) Cruz’s claim lacks merit. Section 1681(a)
provides that “[n]o person in the United States shall, on the basis of sex, be excluded from

4

Plaintiff’s brief does not address this claim or his claim alleging that Defendants violated the NJFHA and the FHA.

9

participation in, be denied the benefits of, or be subjected to discrimination under any education
program or activity receiving Federal financial assistance . . .” 20 U.S.C. § 1681(a) (emphasis
added). Although Title IX prohibits discrimination “on the basis of sex” in the school context,
the clear language of the statute indicates that it does not protect sexual orientation. See id.; see
also Tyrrell v. Seaford Union Free Sch. Dist., 792 F. Supp. 2d 601, 622 (E.D.N.Y. 2011)
(“Sexual orientation is not a protected class under . . . Title IX.”).
Additionally, courts often look to Title VII law for guidance when considering
discrimination under Title IX. See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 617 n.1
(1999). In Bibby v. Phila. Coca Cola Bottling Co., the Third Circuit rejected a claim for
discrimination based on sexual orientation under Title VII. 260 F.3d 257 (3d Cir. 2001). The
court concluded that “[i]t is clear . . . that Title VII does not prohibit discrimination based on
sexual orientation.” Id. at 261; see also Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 290 (3d
Cir. 2009) (“Despite acknowledging that harassment based on sexual orientation has no place in
just society, [we recognize] that Congress chose not to include sexual orientation harassment in
Title VII.”).

3. Discrimination Based on Sexual Orientation under NJFHA and the FHA
Cruz asserts that Defendants’ actions were in violation of NJFHA and the FHA. (Compl.
¶¶ 34-37.) These claims lack merit. NJFHA provides in relevant part that “every municipality in
a growth area has a constitutional obligation to provide through its land use regulations a realistic
opportunity for a fair share of its region’s present and prospective needs for housing low and
moderate income families.” N.J. Stat. Ann. § 52:27D-302(a) (emphasis added). NJFHA is
inapplicable to Defendants. The statute addresses a municipality’s responsibility to provide
housing to low and moderate income families. See id. SHU is not a municipality; it is a private
10

institution of higher education. Moreover, Cruz’s claim of discrimination based on sexual
orientation is not within the purview of the statute, the purpose of which is to provide affordable
housing to low and moderate income families. Toll Bros. v. Twp. of W. Windsor, 173 N.J. 502,
511 (2002).
Similarly, Cruz has no claim under the FHA. The FHA provides in relevant part that “it
shall be unlawful--To discriminate against any person in the terms, conditions, or privileges of
sale or rental of a dwelling, or in the provision of services or facilities in connection therewith
because of race, color, religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(b)
(emphasis added). Discrimination based on sexual orientation is not protected under the FHA.
See Smith v. Mission Assocs. L.P., 225 F. Supp. 2d 1293, 1299 (D. Kan. 2001) (“Sexual
orientation claims are not actionable under the FHA.”); Neithamer v. Brennenman Prop. Servs.,
Inc., 81 F. Supp. 2d 1, 4 (D.D.C. 1999) (observing that the FHA does not prohibit discrimination
based on sexual orientation).

4. Breach of Contract
Plaintiff asserts that SHU breached its own policies regarding housing and room changes
because it asked him to move solely because of his sexual orientation. Cruz’s breach of contract
claim has no merit. In Romeo, the court was confronted with a similar issue. The plaintiff
alleged that SHU’s “antidiscrimination policy . . . create[d] a unilateral contract.” 378 N.J.
Super. at 392. The Appellate Division concluded that Mittra v. Univ. of Med. & Dentistry of
N.J., 316 N.J. Super. 83 (App. Div. 1998), is the appropriate standard to apply in determining
whether a university’s antidiscrimination policy constitutes a contract. Romeo, 378 N.J. Super.
at 393. In Mittra, the court observed that “the relationship between the university and its
students should not be analyzed in purely contractual terms. As long as the student is afforded
11

reasonable notice and a fair hearing in general conformity with the institution’s rules and
regulations, we defer to the university’s broad discretion.” 316 N.J. Super at 85. Following
Mittra, the court held that “[a] contractual relationship cannot be based on isolated provisions in
a student manual.” Romeo, 378 N.J. Super. at 395. Therefore, the License Agreement is not a
contract and Defendants’ alleged failure to follow some of its provisions does not amount to a
breach of contract.
Furthermore, although Cruz bases his breach of contract claim on a provision in the
Licensing Agreement, he ignores the fact that there is another provision in that Licensing
Agreement which provides that SHU “[r]eserves the right to move a Resident from one room to
another when the University determines, in its sole and absolute discretion that the move is in the
Resident’s best interest or those of his/her fellow students and/or the University’s.” (Hart Decl.
Ex. A ¶ 6.) Hence, pursuant to the License Agreement, SHU was well within its rights to
relocate Cruz or any other student.
Finally, this Court has already determined that SHU’s decision to move Cruz and his
roommate into different rooms was not based on Cruz’s sexual orientation. In fact, Plaintiff
never moved from his room. Consequently, he has no basis for a breach of contract claim.

5. Negligent Hiring, Training, Supervision and Retention
SHU maintains that it is immune from negligent liability under the New Jersey Charitable
Immunity Act (“NJCIA”), N.J. Stat. Ann. § 2A:53A-7(a). The NJCIA “provides immunity from
tort liability where the entity being sued: (1) is a non-profit corporation; (2) is organized
exclusively for religious, charitable or educational purposes; and (3) was advancing those
purposes ‘at the time of the injury to plaintiff who was then a beneficiary of the charitable
works.’” Nazarro v. U.S., 304 F. Supp. 2d 605, 610 (D.N.J. 2004) (quoting Bieker v. Cmty.
12

House of Moorestown, 169 N.J. 167, 175 (2001)). The New Jersey Appellate Division has
established that SHU is a nonprofit, religiously-affiliated university that is entitled to charitable
immunity, thus satisfying both prongs one and two. Bloom v. Seton Hall University, 307 N.J.
Super. 487, 492-93 (App. Div. 1998), certif. denied, 153 N.J. 405 (1998); see also Orzech v.
Fairleigh Dickinson University, 411 N.J Super. 198, 205 (App. Div. 2009) (noting that the first
two prongs of NJCIA were clearly satisfied because the university was formed for nonprofit
purposes and organized exclusively for educational purposes). Prong three is satisfied since a
student of a college fits within the framework of a beneficiary of the college. O’Connell v. State,
171 N.J. 484, 490 (2002).
Cruz, relying on Presbyterian Homes of Synod of N.J. v. Div. of Tax Appeals, 55 N.J.
275 (1970), maintains that SHU is not entitled to immunity because it does not satisfy all three
prongs. (Pl.’s Opp’n Br. 13-14.) Plaintiff’s reliance on Presbyterian Homes is misplaced. Cruz
asserts that SHU and Presbyterian Homes are similar because both institutions are not obligated
“to provide services to people who are not financially equipped to pay its tuition” and are thus
not operating for “charitable purposes.” (Id.) As Defendants correctly point out, Plaintiff’s
reliance on the phrase “charitable purposes” is misguided because SHU is a nonprofit religious
institution organized for educational purposes. (Defs.’ Br. 19-20.) As stated earlier, the Bloom
Court established that SHU is an organization that is covered under the NJCIA. 307 N.J. Super.
at 492.

Therefore, the exemption applies to SHU and it is immune from claims alleging

negligence.

6. Negligent and Intentional Infliction of Emotional Distress
13

a. Negligent Infliction of Emotional Distress
In New Jersey, a plaintiff may maintain an action for negligent infliction of emotional
distress under two scenarios. First, “[a] plaintiff can demonstrate that the defendant’s negligent
conduct placed the plaintiff in reasonable fear of immediate personal injury, which gave rise to
emotional distress that resulted in a substantial bodily injury or sickness.” Jablonowska v.
Suther, 195 N.J. 91, 104 (2008). Alternatively, a plaintiff can maintain an action for negligent
infliction of emotional distress by satisfying the four elements set forth in Portee v. Jafee, 84 N.J.
88, 101 (1980). These elements are:
(1) the defendant’s negligence caused the death of, or serious
physical injury, to another; (2) the plaintiff shared a marital or
intimate, familial relationship with the injured person; (3) the
plaintiff had a sensory and contemporaneous observation of the
death or injury at the scene of the accident; and (4) the plaintiff
suffered severe emotional distress.
Jablonowska, 195 N.J. at 103 (citing Portee, 84 N.J. at 97, 101).
Here, Plaintiff has not provided any evidence demonstrating that Defendants were
negligent. As stated earlier, the record indicates that Eusebio attempted to resolve the conflict
between Cruz and Crisci. Furthermore, Plaintiff has not alleged any facts or presented any
evidence that would satisfy the elements set forth in Portee. Moreover, Defendants are immune
from liability under NJCIA. Consequently, Cruz’s claim for negligent infliction of emotional
distress fails.
b. Intentional Infliction of Emotional Distress
To succeed on a claim of intentional infliction of emotional distress under New Jersey
law, “a plaintiff must claim that (1) the defendant intended to cause emotional distress; (2) the
conduct was extreme and outrageous; (3) the actions proximately caused emotional distress; and
(4) the emotional distress was severe.” Acevedo v. Monsignor Donovan High Sch., 420 F. Supp.
14

2d 337, 348 (D.N.J. 2006). “Mere allegations of aggravation, embarrassment, an unspecified
number of headaches, and loss of sleep are insufficient as a matter of law to support a finding of
severe mental distress that no reasonable person could be expected to endure.” Turner v. Wong,
363 N.J. Super. 186, 200 (App. Div. 2003) (internal citation and quotation marks omitted).
Plaintiff, relying on Seiderman v. American Institute for Mental Studies, 667 F. Supp.
154 (1987), contends that charitable immunity does not extend to negligent and intentional
infliction of emotional distress involving “gross negligence or wanton or willful conduct.” (Pl.’s
Opp’n Br. 14) (internal quotation marks omitted). Cruz concedes that Defendants “did not
physically force [him] to sleep somewhere else[; however, he maintains that] they intentionally
made [him] feel . . . alienated and uncomfortable . . . to sleep in his originally assigned room.”
(Id. at 10.) Plaintiff asserts that he experiences “crying spells, constant stomach aches, nausea,
and heart palpitations” as a result of the alleged discrimination. (Nicholas Decl. Ex. A, Cruz
Certif. ¶ 31).
Plaintiff also supports his claim of emotional trauma with a report by Joanie Arnold, 5
(“Arnold”), a social worker. Arnold’s report, which is based on a single session with Cruz,
concludes that Cruz’s “inability to cope with the stress of the incident with [SHU] is manifesting
as depression, excessive anxiety, disrupted sleep pattern, nightmares, heart palpitations,
flashbacks, avoidant behavior, anger, irritability, lack of concentration and hopelessness and
helplessness.” (Pl.’s Opp’n Br. 16.) Arnold contends that Cruz’s emotional state is a direct
result of Defendants’ actions. (Nicholas Decl. Ex. L.) Additionally, though Plaintiff claims he
suffers from these psychological and physical symptoms, he concedes that he has not consulted

5

Cruz’s attorney, who is related to Arnold, recommended her services to Cruz. (Sponzilli Decl. Ex. A, Cruz Dep.
170:12-13, 168:21-170-3.)

15

any doctor, psychologist, psychiatrist or counselor other than Arnold and his family physician.
(Sponzilli Decl. Ex. A, Cruz Dep. 182:11-189:12.)
This Court is not persuaded by Cruz’s arguments. First, Cruz’s reliance on Seiderman is
misplaced. In Monaghan v. Holy Trinity Church, the New Jersey Appellate Division stated that
Seiderman “is not binding upon our state courts.” 275 N.J. Super. 594, 599 (App. Div. 1994).
Additionally, the Appellate Division criticized and rejected the decision and noted that
[t]he Seiderman [C]ourt failed to consider the history of actions
taken by the New Jersey Legislature and drew incorrect
conclusions by relying upon decisions of New Jersey courts
interpreting judicially-granted immunities. Since New Jersey’s
law on charitable immunity is mandated by statute, the Seiderman
analysis is faulty and we disapprove the decision.
Id. at 600.
Second, this Court has already determined that Defendants did not discriminate against
Cruz on the basis of his sexual orientation.

Therefore, Plaintiff’s allegations that he was

discriminated against cannot be a basis for finding intentional infliction of emotional distress.
Third, Cruz has not established that Defendants’ conduct was outrageous or “so extreme
in degree, as to go beyond all possible bounds of decency, and . . . be regarded as atrocious, and
utterly intolerable in a civilized community.” Buckley v. Trenton Sav. Fund Soc’y, 111 N.J.
355, 366 (1988). The record shows that Defendants attempted to resolve the dispute and offered
support to Plaintiff.
Fourth, Plaintiff has failed to demonstrate that his distress was severe. In Lascurain v.
City of Newark, the plaintiff claimed her distress was severe because she was nauseous, upset,
depressed, and no longer able to enjoy every day activities. 349 N.J. Super 251, 280-81 (App.
Div. 2002). However, at her deposition, she admitted that her alleged emotional distress did not
affect her daily routine. The court found that her distress was not severe because there was no

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dramatic impact on her daily routine and she did not seek regular therapeutic counseling. Id.; see
also Buckley, 111 N.J. at 369 (holding that the plaintiff could not recover for his emotional
distress because he did not claim any interference with his daily routine).
Similar to the plaintiffs in Lascurain and Buckley, Cruz testified that during and after the
incident he continued to engage in his daily activities such as going to classes, working, and
“hanging out” with his friends. (Sponzilli Decl. Ex. A, Cruz Dep. 61:17-62:2.) He also testified
that he was still involved in extracurricular activities at school and he joined other student
organizations in his junior year. (Id. at 62:3-9.) In fact, his grades improved after the incident.
Furthermore, although Plaintiff asserts that he gets upset every time he walks by Xavier Hall, (id.
at 191:20-192:11, 194:1-5), he continued to live in room 346 at Xavier Hall after the incident and
for the duration of the 2010-2011 school term. Moreover, other than the one visit with Arnold
and a visit to his family doctor, Cruz did not seek additional medical consultation. Accordingly,
Plaintiff has failed to establish that he has suffered severe distress and Defendants are entitled to
summary judgment.

CONCLUSION
For the reasons stated above, Defendants’ Motion is GRANTED.

s/Susan D. Wigenton, U.S.D.J.
cc: Madeline Cox Arleo, U.S.M.J.

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