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 Bandyk1

(“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.)

2 Cruz’s subsequent certification, however, states that he applied for housing on August 27, 2010. (Nicholas Decl. 

Ex. A, Cruz Certif. ¶ 4.)

Case 2:11-cv-01429-SDW-MCA Document 20 Filed 07/10/12 Page 1 of 17 PageID: 429
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 

Case 2:11-cv-01429-SDW-MCA Document 20 Filed 07/10/12 Page 2 of 17 PageID: 430
3

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 

Case 2:11-cv-01429-SDW-MCA Document 20 Filed 07/10/12 Page 3 of 17 PageID: 431
4

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).

Case 2:11-cv-01429-SDW-MCA Document 20 Filed 07/10/12 Page 4 of 17 PageID: 432
5

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 

Case 2:11-cv-01429-SDW-MCA Document 20 Filed 07/10/12 Page 5 of 17 PageID: 433
6

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 

Case 2:11-cv-01429-SDW-MCA Document 20 Filed 07/10/12 Page 6 of 17 PageID: 434
7

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

Case 2:11-cv-01429-SDW-MCA Document 20 Filed 07/10/12 Page 7 of 17 PageID: 435
8

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 Defendants3 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 111:18-

120:25, 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 113:6-

115:4.) 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. 228:9-

14.) Therefore, Plaintiff has no claim against those defendants.

Case 2:11-cv-01429-SDW-MCA Document 20 Filed 07/10/12 Page 8 of 17 PageID: 436
9

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.

Case 2:11-cv-01429-SDW-MCA Document 20 Filed 07/10/12 Page 9 of 17 PageID: 437
10

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 

Case 2:11-cv-01429-SDW-MCA Document 20 Filed 07/10/12 Page 10 of 17 PageID: 438
11

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

Case 2:11-cv-01429-SDW-MCA Document 20 Filed 07/10/12 Page 11 of 17 PageID: 439
12

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. 

Case 2:11-cv-01429-SDW-MCA Document 20 Filed 07/10/12 Page 12 of 17 PageID: 440
13

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

Case 2:11-cv-01429-SDW-MCA Document 20 Filed 07/10/12 Page 13 of 17 PageID: 441
14

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. 

Case 2:11-cv-01429-SDW-MCA Document 20 Filed 07/10/12 Page 14 of 17 PageID: 442
15

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.)

Case 2:11-cv-01429-SDW-MCA Document 20 Filed 07/10/12 Page 15 of 17 PageID: 443
16

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 

Case 2:11-cv-01429-SDW-MCA Document 20 Filed 07/10/12 Page 16 of 17 PageID: 444
17

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.

Case 2:11-cv-01429-SDW-MCA Document 20 Filed 07/10/12 Page 17 of 17 PageID: 445