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  Director's Findings 2003  
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  Cause findings are issued by the Director at the conclusion of an investigation. There are three types of findings.    
  A Finding of Probable Cause is issued when an investigation reasonably concludes that probable cause exists to credit the allegations of the Verified Complaint.  
  A Finding of No Probable Cause is issued when an investigation reasonably concludes that no probable cause exists to credit the allegations of the Verified Complaint.  
  An Agency Determination is issued when an investigation reasonably concludes that probable cause exists to credit some allegations of the Verified Complaint and no probable cause exists with respect to other allegations of the Verified Complaint. Agency Determinations are considered findings of probable cause with respect to the credited allegations.  
     
     
 
2003 Compendia - 51k pdf
 
  Case summaries are provided for descriptive purposes only and are not part of the Director's decision.  
     
 

2/19/03

VALSSELIN DITTRICH v. 931 PARK AVENUE CONDOMINIUM ASSOCIATION


DDCR Docket No.: HJ5NW-05341
OAL Docket No.: CRT 11089-99

Case Summary: The Complainant filed a verified complaint with the Division alleging that Respondent discriminated against him on the basis of his national origin (Bulgarian). Complainant alleged that the President of the 931Park Avenue Condominium Association (Michael P. McManus) denied him access to certain Association records that Complainant was entitled to examine, and that McManus made disparaging remarks about Complainant’s national origin.

Following an administrative hearing, the Administrative Law Judge (ALJ) issued an initial decision concluding that Complainant established by a preponderance of the evidence that Respondent subjected him to unlawful discrimination. In his order, the Director adopted the ALJ’s conclusion. The Director first determined that any statute of limitations defense available to Respondent was waived because it failed to assert the defense at any stage of the proceedings. Next, relying on the ALJ’s credibility determinations regarding the testimony of the parties and their witnesses. The Director concurred with the ALJ that the evidence established by a preponderance of the evidence that Respondent discriminated against him because of his national origin in violation of the LAD.

Finally, although recent amendments to the LAD permit a penalty of $10,000.00, the Director concurred with the ALJ’s determination that a penalty of $2,000.00 is appropriate in this matter, and the Director also awarded Complainant $500.00 as compensation for his emotional distress.

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2/21/03

VITO ALBANESE, SR. , GUARDIAN AD LITEM FOR VITO ALBANESE, JR. v. MORNINGSIDE GROUP HOME

DCR Docket No.: PD12WB-02672
OAL Docket No.: CRT 6676-02

Case Summary: This matter arose from a complaint filed on July 30, 2000 alleging that Respondent unlawfully discriminated against Complainant’s son by refusing to reasonably accommodate his son’s disabilities in the group home in which he resided. The son was orthopedically and mentally impaired. The son’s last date of residence in Respondent’s facility was April 1997.

On August 28, 2002, Complainant requested that this matter be transmitted to the Office of Administrative Law for an administrative hearing. On October 8, 2002, Respondent filed a motion to dismiss the complaint and on January 13, 2003, the Honorable Solomon A. Metzger, ALJ, issued an initial decision granting Respondent’s motion to dismiss on the grounds that the claim was filed beyond the statute of limitations.

On February 21, 2003, the Director issued an order modifying and adopting the initial decision dismissing the complaint. He concurred with the ALJ that the complaint was filed well beyond the statute of limitations for filing an LAD complaint with the Division. The Director, however, clarified the legal standards applicable in this case by noting that the ALJ erroneously applied the two year statute of limitations that governs complaints filed in the Superior Court of New Jersey, instead of the the180-day statute of limitations for filing complaints with the Division.

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3/31/03

JOSEPH BUTTIGLIERI v. NEW JERSEY HIGHWAY AUTHORITY

DCR Docket No.: EM25HL-42220-E
OAL Docket No.: CRT 8537-01

Case Summary: The complainant filed a verified complaint with the Division alleging that Respondent discriminated against him on the basis of his physical handicap (post-surgical removal of a herniated disc). Specifically, Complainant alleged that Respondent refused to hire him to a permanent Toll Collector, Class I position because of his physical handicap.

On February 20, 2003, the ALJ issued an initial decision dismissing the complaint because the record established Complainant’s continued willful and deliberate disregard of discovery demands and a subsequent order issued by the ALJ compelling discovery. The Director agreed that Complainant demonstrated a pattern of non-compliance with Respondent’s discovery requests and the ALJ’s order. Accordingly, dismissal of the verified complaint under these circumstances was appropriate and the Director adopted the ALJ’s decision.

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4/23/03

JOANNE L. SERVAIS v. TOWNSHIP OF FAIRFIELD


DCR Docket. No.: EF05RM-40805-E
OAL Docket. No.: CRT 2483-01

Case Summary: Complainant filed a verified complaint with the Division alleging that Respondent denied her reappointment to her prior position as municipal housing/zoning officer based on her race (Caucasian). Following an administrative hearing, the Administrative Law Judge (ALJ) issued an initial decision in favor of Complainant, awarding her backpay with interest, damages for pain and humiliation, and assessing a statutory penalty. Specifically, the ALJ determined that Complainant presented sufficient direct and circumstantial evidence to establish that Respondent was motivated by race in appointing a Black male to the position instead of reappointing Complainant. In evaluating the circumstantial evidence, the ALJ noted that more rigorous prima facie standards must be applied to reverse discrimination cases, but found that Complainant presented sufficient evidence to meet that heightened burden.

The Director agreed with the ALJ’s determination that Complainant established both by direct and circumstantial evidence that Respondent unlawfully discriminated against her based on her race. The Director adopted the ALJ’s backpay award, but concluded that the evidence presented, including the testimony that Complainant suffered physical manifestations of her emotional distress which required medical treatment and prescription medication, warranted increasing the emotional distress damages to $7,500. The Director also concluded that the evidence presented warranted a statutory penalty of $7,500 in this case.

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5/27/03

ARTHUR G. MATTEI v. NJ ADMINISTRATIVE OFFICE OF THE COURTS


DCR Docket. No.: EL11AG-45749E
OAL Docket. No.: CRT 04375-00S

Case Summary: Complainant filed a verified complaint with the Division on Civil Rights (DCR) alleging that the New Jersey Administrative Office of the Courts (Respondent) subjected him to unlawful age discrimination in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Specifically, Complainant alleged that Respondent unlawfully rejected his candidacy for the position of Trial Court Administrator (TCA) for the Mercer Vicinage because of his age. Complainant was 57 years old at the time of his application.

Complainant requested the Director to transmit his LAD complaint to the Office of Administrative Law (OAL) as a contested case pursuant to N.J.S.A. 10:5-13. Hearings were held and, on February 20, 2003, the Honorable Jeff S. Masin, Administrative Law Judge (ALJ), issued an initial decision dismissing the complaint. On May 27, 2003, Director Frank Vespa-Papaleo, Esq., issued a final order adopting the ALJ’s conclusion that Complainant failed to demonstrate by a preponderance of the evidence that Respondent denied Complainant the TCA position because of his age.

Among the arguments addressed by the Director in his decision was Complainant’s assertion that the ALJ improperly refused to permit Complainant’s attorney to cross- examine two Judges who were members of Respondent’s selection panel regarding communications they may have had with Deputy Attorneys General and an Assistant Attorney General in preparation for the hearing. For the reasons set forth in his order, the Director adopted the ALJ’s conclusion that these discussions were protected by the attorney-client privilege. The Director also addressed Complainant’s contention that he was entitled to a spoliation inference because Respondent intentionally or inadvertently destroyed interview notes and notes of committee meetings. Again, the Director concurred with the ALJ’s determination that no spoliation inference was warranted under the facts of this case and, even if such an adverse inference were supported here, granting such an inference would not be sufficient to outweigh the persuasive, credible evidence in this record that Respondent declined to hire Complainant for legitimate, non-discriminatory reasons.

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9/18/03

CATHERINE GREFFE v. HACKETTSTOWN AUTO PARTS, HACKETTSTOWN TRUE VALUE CETNER, PRO AUTOMOTIVE WAREHOUSE & ROBERT POYER


DCR Docket No.: EW-8WB-44055-E
OAL Docket No.: CRT 1429-02

Case Summary: The Complainant filed a verified complaint with the Division alleging that her employers subjected her to hostile work environment sexual harassment and discharged her based on her sex in violation of the LAD. After completing its investigation, the Division issued an agency determination finding probable cause to support Complainant’s allegations of a sexually hostile work environment, but finding no probable cause to support Complainant’s allegations that she was terminated from her employment based on her sex. Following an administrative hearing, the administrative law judge (ALJ) issued an initial decision in favor of the Complainant. Specifically, the ALJ concluded that Respondent Robert Poyer, who was owner of Hackettstown Auto Parts, Hackettstown True Value Center, and Pro Automotive Warehouse, as well as Complainant’s supervisor, subjected Complainant to comments, gestures and conduct that a reasonable woman would have found sufficiently severe and pervasive to render her workplace hostile and abusive. Based on Complainant’s hearing testimony regarding the emotional distress caused by the hostile work environment, the ALJ awarded Complainant $20,000 in damages. The ALJ also imposed statutory penalties of $10,000 against each of the Respondents.

The Director adopted the ALJ’s determination that Complainant was subjected to a sexually hostile work environment, and that the evidence presented supported an award of $20,000 in emotional distress damages. The Director modified the ALJ’s statutory penalty award, concluding that the specific facts of this case warranted imposing a single $10,000 penalty, for which all four Respondents are jointly and severally liable.

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10/16/03

BRANISLAVKA LUKIC v. KRIVAJA BEECHBROOK CORP.


DCR Docket No.: EB62NB-36301-E
OAL Docket. No.: 10369-99

Case Summary: Complainant filed a verified complaint with the Division alleging that her employer, a U.S. corporation which was a subsidiary of a corporation based in the former Yugoslavia, discriminated against her and terminated her employment based on her national origin (Serbian) in violation of the LAD. Complainant contended that after internecine war broke out in the former Yugoslavia, her employer systematically terminated almost all employees of Serbian origin. The employer denied that national origin played any role in its decision to discharge Complainant, and asserted that the war caused a decline in its business, there was no longer enough work to justify employing Complainant on a full time basis, and she refused to accept a part-time schedule. Following an administrative hearing, the administrative law judge (ALJ) dismissed the complaint, concluding that Complainant failed to establish by competent, credible evidence that her employer terminated her because of her Serbian origin, or that her employer systematically terminated Serbian employees, replaced them with non-Serbians or treated similarly situated non-Serbian employees more favorably based on their national origins.

The Director found the ALJ’s conclusions to be supported by the evidence in the record, and adopted the ALJ’s recommended dismissal of the complaint.

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10/20/03

ROBERT WARE v. COUNTY OF MERCER


DCR Docket No.: EL311HK-40837-E
OAL Docket No.: CRT 6754-01

Case Summary: Complainant filed a verified complaint with the Division alleging that Respondent, the Mercer County Department of Corrections, discriminated against him on the basis of his physical disability (loss of an eye) when it refused to hire him as a County Corrections Officer. Complainant had suffered an accident to his right eye when he was fifteen. Respondent asserted that it removed Complainant from the eligibility list for Corrections Officers because he lacked the visual acuity in both eyes required of recruits attending the State Police Training Academy.

After a hearing, the Director affirmed the ALJ’s conclusion that Respondent unlawfully discriminated against Complainant. The record revealed that, subsequent to his rejection, the Merit System Board’s Medical Examiner’s Panel conducted an individualized assessment of Complainant’s condition and determined that, because he had normal vision in his left eye, Complainant’s disability would not pose a direct threat to himself or others in the job of Corrections Officer Recruit. The panel recommended that Complainant be considered physically capable of undergoing training and performing the essential functions of the position. Based on this report and other undisputed facts in the record, the Director concluded that respondent acted unreasonably in determining that Complainant could not perform the Corrections Officer position because of his disability. Regarding damages, the Director adopted the ALJ determinations finding that the record supported an award of back pay with interest, pain and humiliation, and a statutory penalty.

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11/13/03

CLARA SHOCKLEY v. R&R TRAA COMPANY AND B&R TRAA ENTERPRISES

DCR Docket No.: EE06WB-41629-E
OAL Docket. No.: CRT 2759-99

Case Summary: Complainant filed a verified complaint with the Division alleging that her former employers, doing business as a McDonald’s franchise, violated the LAD when she was subjected to hostile environment sexual harassment by two co-workers. Complainant contended that the two co-employees subjected her to sexually offensive comments and gestures, and impermissibly touched her during her four year employment term, creating a hostile work environment. The employer asserted that on both occasions that management was made aware of the harassing conduct, they were appropriately disciplined consistent with the company’s sexual harassment policy. Following an administrative hearing, the administrative law judge (ALJ) found that, although Complainant was subjected to a sexually hostile work environment by the two employees, the respondents were not liable under the LAD because they took prompt remedial action on both occasions that they were made aware of the harassing conduct.

The Director found that the ALJ’s conclusions were amply supported by the evidence submitted, and adopted the ALJ’s recommended dismissal of the complaint. However, the Director declined to adopt the ALJ’s conclusion that the so-called Ellerth/Farragher defense was available to the respondents in this sexual harassment case. Instead, the Director relied on standards enunciated by the New Jersey Supreme Court and concluded that the respondents were not liable based on a negligence theory of liability because the respondents had implemented an effective procedure for preventing and eliminating harassment in the workplace, and because they took prompt, effective action to correct the harassing conduct on the two occasions they were made aware of it. Accordingly, the Director adopted the ALJ’s decision to dismiss the

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