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  Director's Orders 2007  
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  After a hearing before the Office of Administrative Law has been held, and an initial decision has been rendered by an Administrative Law Judge, it is reviewed by the Director. The Director may adopt the initial decision as rendered or modify the decision prior to issuing a Final Order. The final order may approve a settlement agreed upon by the parties, may dismiss the case with no benefit to the complainant, or may order the award of appropriate damages, assessment of penalties and other relief deemed proper by the Director.  
     
     
 
2007 Compendia (not yet available)
 
  Case summaries are provided for descriptive purposes only and are not part of the Director's decision.  
     
 

12/4/07

TRACY SWINT V. DISTINCTIVE MARKETING, INC. & DIANE SPENCER


OAL DOCKET NO. CRT 7370-05
(OAL DOCKET NO. CRT 7149-03 - (Remanded)
DCR DOCKET NO. EG13CB-45919

Case Summary: Complainant alleged that Respondent unlawfully terminated her employment because she had converted to Islam, in violation of the Law Against Discrimination (LAD). After the Director issued a finding of probable cause, the matter was heard by the Office of Administrative Law (“OAL”) and the assigned administrative law judge (ALJ) issued an initial decision dismissing the complaint. However, the Director concluded that the ALJ failed to consider certain direct and circumstantial evidence of discrimination presented by Complainant, and remanded the matter to OAL for further proceedings.

On remand, the ALJ was directed to consider additional evidence to resolve the following factual disputes: (1) Did Respondent tell Complainant that she could not come to work in Muslim attire; (2) When Complainant did report to work in Muslim attire, did Respondent move Complainant’s workstation to one that was out of public view; (3) Did Respondent make a statement to the effect that she could not tolerate everyone’s religion; and (4) Did Respondent terminate Complainant’s employment before or after Complainant announced her conversion to Islam and her intention to wear Muslim attire to work?

After additional testimony was taken, the ALJ concluded that Complainant had established a prima facie case of discrimination. The ALJ then concluded that Respondent provided legitimate, non-discriminatory reasons for terminating Complainant, specifically Complainant’s poor job performance as well as Respondent’s substantial business downturn, and that Complainant was unable to establish these reasons as pretextual. The ALJ found further that Complainant significantly changed her testimony from the first hearing to the second, as well as from statements made in the verified complaint as they related to the four issues on remand, and was therefore much less credible a witness than Respondent or the witnesses called on Respondent’s behalf.

The Director adopted the ALJ’s dismissal of the complaint, concurring with the ALJ’s finding that Complainant had established a prima facie case of discrimination based on circumstantial evidence. Complainant was able to prove that (1) she was a member of a protected class; (2) she was performing in the position from which she was terminated; (3) she nevertheless was fired; and (4) since this case involved a reduction in force, that other workers were retained. The Director also concurred with the finding that there was credible evidence provided by Respondent concerning Complainant’s performance levels, the business losses suffered by Respondent, as well as the fact that Respondent had employed others of the Muslim faith without incident or discrimination and was thus unlikely to have made the comments or taken the actions attributed to her by Complainant. The Director also found that Complainant had received appreciable notice about the imminent termination of her employment before she announced her conversion to Islam. Based largely on the ALJ’s credibility determinations, the Director upheld the dismissal of the complaint.

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10/18/07

JACKIE NAVARETTE V. MONTCLAIR STATE UNIVERSITY


OAL Docket No. CRT 13180-06DCR
Docket No. EG13SG-50139-E

Case Summary: Complainant alleged that Respondent discharged her from her shuttle bus driver position based on her gender on March 2, 2004, and replaced her with a non-pregnant employee. The ALJ allowed Complainant to amend her verified complaint to include claims of race/ethnicity, gender, disability and harassment claims. Complainant also alleged that she was reprimanded for incorrectly completing time sheets, but African-American male drivers were given additional time to fill out the cards correctly; Respondent docked her two days for leaving work early, whereas African-American drivers were free to leave early and were never docked; Respondent punished her for taking bus keys home, but a male driver was allowed a week to return keys and was not punished; and, finally, Complainant testified that her supervisor, an African-American male, did not have his CDL license when hired, even though it was a requirement for the supervisor position.

After a hearing, the ALJ determined that Complainant failed to establish a prima facie case of discrimination, and that even if she established a prima facie case, she failed to show the reasons Respondent proffered for her termination were a pretext for unlawful discrimination. In arriving at this conclusion, the ALJ relied on evidence regarding her unsatisfactory job performance, co-worker complaints and inappropriate conduct with students.

The Director first determined that Complainant failed to establish a prima facie case of differential treatment with respect to her claims about discipline or work rules. In order to establish a prima facie case, Complainant must show that similarly situated employees were either given the benefit of a lenient company practice or were not held to compliance with a strict company policy, and that Respondent disciplined her either without application of a lenient policy, or in conformity with the strict one. Complainant failed to satisfy this burden with regard to any claim of differential treatment.

Complainant also alleged that she had stressful incontinence and asked Respondent to accommodate her by transferring her to the morning shift to accommodate her disability. She claimed that the earlier shift was less stressful because students got wild at night. The Director determined that there was no evidence that Respondent was aware, or should have been aware,
that Complainant had a disability covered by the LAD. Accordingly, the Director adopted the ALJ’s conclusion that Complainant failed to prove that Respondent refused to accommodate her disability in violation of the LAD.

Complainant also alleged that she was harassed by her supervisor Mr. Little and a co-worker, Roland Jean. She testified that one day she saw Mr. Jean urinating on the mud flap at the back of her bus. She filed a police report on September 25, 2003 based on the incident, but declined to press charges. The Director concluded that Complainant failed to prove an actionable hostile work environment violative of the LAD. Complainant failed to show that she was subjected to comments or actions, which would not have occurred but for her race, national origin, sex, or disability, and that were severe or pervasive enough to make a reasonable person who shared her protected characteristics conclude that the work environment had been altered and had become hostile or abusive.

Finally, Complainant testified that on February 27, 2004, she told Mr. Little that she was pregnant, and that on March 2, 2004, Respondent discharged her. From this she deduced that she was terminated because of her pregnancy. The Director determined that she failed to prove that Respondent terminated because of her pregnancy. The Director found ample basis in the record to adopt the ALJ’s finding that she failed to establish that her pregnancy was a motivating factor in Respondent’s decision. Respondent articulated several legitimate, non-discriminatory reasons for terminating her, and she failed to prove they were a pretext for discrimination. Witness testimony established that Respondent terminated her because she engaged in inappropriate and dangerous conduct when she nearly struck Mr. Jean with her bus; she failed to follow proper rules and procedures with respect to completing paperwork and returning keys; and she engaged in inappropriate conduct by drinking with students and having intimate relations with at least one student.

Given these determinations and the evidence proffered in the record as a whole, the Director adopted the ALJ’s conclusion that Respondent terminated Complainant’s employment because of her unsatisfactory job performance, and inappropriate and dangerous conduct.

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9/25/07

ZENAIDA JACKSON V. A&M SPECIALISTS, INC.


OAL DOCKET NO. CRT 11214-06
DCR DOCKET NO. EJ09WB52051E

Case Summary: Complainant filed a verified complaint with the Division on Civil Rights (Division) alleging that she was discharged from her job as a driver because she is Black and Lesbian, and that she was subjected to harassing comments on the job about her sexual orientation and race. After an administrative hearing, Administrative Law Judge Leslie Z. Celentano (ALJ) dismissed the complaint, concluding that Complainant was discharged because of performance issues and was not discriminated against in any manner.

After considering exceptions filed by Complainant and reviewing a tape recording of the hearing, the Division Director adopted the ALJ’s dismissal of the complaint. The Director concluded that Complainant presented no competent evidence to support the conclusion that she was subjected to hostile comments, actions or other harassment based on her race. Regarding Complainant’s claim that she was harassed based on her sexual orientation, the Director concluded that the evidence of questions and comments from co-workers about her relationships and sexual orientation did not constitute an actionable hostile work environment, and that there was insufficient evidence that, prior to her discharge, the employer knew or should have known of any comments Complainant considered inappropriate. The Director also concluded that the employer did not consider Complainant’s race or sexual orientation in its decision to discharge Complainant.

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8/17/07

BARBARA LAMPLEY V. ASTRAL AIR PARTS

DCR Dkt No. EB11HB-49622

Case Summary: Barbara Lampley filed a complaint with the Division on Civil Rights alleging that her employer refused to provide reasonable accommodations for her disabilities and discharged her because she needed time off to recuperate from a cardiac procedure, in violation of the disability discrimination provisions of the New Jersey Law Against Discrimination (LAD). Ms. Lampley (Complainant) had a number of medical conditions including congestive heart failure and bronchitis, and because of those conditions her physician directed that she should work in a smoke-free environment. The events surrounding Ms. Lampley’s complaint took place prior to the enactment of the current Smoke-Free Air Act, and employees routinely smoked in the office area to which she was assigned. Her employer refused to move her workspace, refused to instruct employees not to smoke in her work area and failed to otherwise accommodate her need for a smoke-free workspace. Complainant continued to work despite the smoke, at times wearing a surgical mask as a last ditch effort to lessen the effects of the smoke. She subsequently took time off for a cardiac surgical procedure, and her employer discharged her when she needed an extension of her leave to recuperate.

The Administrative Law Judge (ALJ) issued an initial decision concluding that the employer failed to provide reasonable accommodations for Complainant’s disabilities in violation of the LAD, both by failing to accommodate her need for a smoke-free work environment and by terminating her employment. The ALJ awarded Complainant back pay, reimbursement for health insurance premiums and hearing-related expenses, $30,000 in emotional distress damages, and counsel fees in an amount to be determined. The ALJ also assessed a $10,000 statutory penalty.

After reviewing the hearing record and the exceptions and replies of the parties, the Division Director adopted the ALJ’s conclusion that the employer violated the disability discrimination provisions of the LAD. The Director agreed with the ALJ that the employer failed to meet its obligations to reasonably accommodate Complainant’s disabilities, both her need for a smoke-free work environment and her need for time off to recuperate from her cardiac procedures. The Director also concluded that the employer decided to discharge Complainant based on his subjective belief that, because she was well enough to engage in certain other activities, she was well enough to return to work. The Director concluded that, given the employer’s refusal to accept or consider medical information regarding her need for additional recuperation time before returning to work, this constituted disability discrimination.

The Director adopted the ALJ’s statutory penalty, back pay award and reimbursement for hearing-related expenses, but reduced the ALJ’s reimbursement of health insurance premiums, limiting it the period before Complainant would have ceased working due to her disabilities. The Director also increased the ALJ’s emotional distress damage award, concluding that a $50,000 award is appropriate based on the testimony about the emotional and physical symptoms Complainant endured because of her employer’s refusal to reasonably accommodate her disabilities.

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8/10/07

BARBARA BORNSTEIN V. SPENCER SAVINGS BANK


DCR Dkt No. EB21WB-49983
OAL Dkt No. CRT 5648-05

Case Summary: Complainant filed a verified complaint with the Division alleging that Respondent unlawfully terminated her employment in violation of the Law Against Discrimination, based specifically on disability and age discrimination. Complainant had Crohn’s disease, chronic migraines, and needed a hip replacement. Respondent filed an answer denying any violation of the LAD. The matter was transferred to the Office of Administrative Law by the Director of the Division as a contested matter, prior to the issuance of a finding of probable cause. Following an administrative hearing, the administrative law judge (ALJ) issued an initial decision dismissing the complaint. The ALJ concluded that Complainant had established a prima facie case of disability discrimination, in that Complainant was able to prove that (1) she was disabled; (2) she was performing her job at a level that met Respondent’s legitimate expectations; (3) she nevertheless was fired; and (4) the employer sought someone else to do the work. The ALJ then concluded that Respondent provided legitimate, non-discriminatory reasons for terminating Complainant, in that her performance appraisals contained numerous warnings and a long history of negative evaluations, and that Complainant was unable to establish these reasons as pretextual. The ALJ found further that Complainant failed to establish a prima facie case of age discrimination since Respondent was able to establish that Complainant did not objectively meet her employer’s job expectations.

The Director adopted the ALJ’s dismissal of the complaint, with some modifications. The Director concurred with the ALJ’s finding that Complainant had established a prima facie case of disability discrimination, and concurred that Respondent articulated a legitimate, non-discriminatory reason for terminating Complainant’s employment. The Director also agreed that Complainant failed to demonstrate that this reason was a pretext for discrimination in that there was extensive documentation of Complainant’s poor performance. However, the Director disagreed with the ALJ’s finding that Complainant failed to establish a prima facie case of age discrimination, as the second element should not address the quality of Complainant’s work. Complainant’s sole burden was to demonstrate that she had been employed by Respondent, which she satisfied. However, as with the disability discrimination allegation, Respondent was able to establish a legitimate reason for the termination which was not rebutted as pretext. Further, Complainant did not present any proof that her termination was due to her age. Accordingly, the Director upheld the dismissal of the complaint.

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7/23/07

LEONARD BANKS V. MARIA SIDLOV

DCR Dkt No. HR14WT-06004-H

Case Summary: Complainant alleged that Maria Sidlov refused to rent him a room in her rooming house because of his physical disability (End Stage Renal Disease) and his source of lawful income used for rental payments (Social Security Insurance (SSI) and Social Security Disability (SSD) payments). The matter was transmitted to the Office of Administrative Law (OAL) for a hearing and on June 8, 2007, the Honorable Walter M. Braswell, Administrative Law Judge (ALJ), issued an initial decision concluding that Respondent violated the LAD, assessed Respondent a penalty of $500.00, and awarded the State attorney’s fees and costs. The Director adopted and modified the ALJ’s initial decision by finding liability, awarding damages to Complainant, and increasing the penalty.

In support of his claim, Complainant alleged that he contacted Respondent by telephone to inquire about a room for rent, and advised Respondent about his disability and source of income. Complainant alleged that Respondent informed him she would not rent the room to him because he was disabled and did not have a job. Respondent maintained that she did not know Complainant had a disability at the time he inquired about the availability of a room, and denied that she told him he could not have a room because of his disability or because he did not have a job since there were no rooms available at the time Complainant contacted her.

In ruling in Complainant’s favor, the ALJ rejected Respondent’s contention that she had no rooms available for rent and found “that there was in fact a room available when the complainant inquired.” Based on the record, the ALJ concluded that Complainant “has demonstrated that Respondent denied the rental of the apartment to the complainant based on the complainant’s source of income and disability.” Turning to the issue of remedies, the ALJ concluded that there was no evidence that Complainant suffered damages from an out-of-pocket loss as a result of the discrimination and, therefore, awarded no economic damages. The ALJ similarly awarded no damages to Complainant for emotional distress, despite acknowledging that Complainant testified he was depressed and humiliated by Respondent’s refusal to rent to him.

After his careful review of the record, the Director adopted the ALJ’s findings of fact and, further, adopted the ALJ’s conclusion that Complainant established a prima facie case of unlawful housing discrimination based on direct evidence presented at the hearing. Because Respondent failed to show that she would have made the same decision even if she had not considered discriminatory factors, the Director concluded that Complainant sustained his burden to prove intentional discrimination in violation of the LAD. Accordingly, the Director awarded Complainant $2,500.00 in emotional distress damages. Because the record established that Respondent’s discriminatory acts were intentional and based on the very preconceptions about people with disabilities who rely on government assistance that the LAD is meant to eliminate, the Director concluded that a penalty in the amount of $2,500.00 was appropriate.

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4/3/07

VIOLA PRESSLEY V. NEW JERSEY PSYCHIATRIC HOSPITAL, NEW JERSEY DEPARTMENT OF HUMAN SERVICES

DCR Dkt No. EL11JG-46328-E
OAL Dkt No. CRT 2268-04 (On Remand CRT 4869-01)

Case Summary: Complainant, a word processing specialist employed by the Trenton Psychiatric Hospital, filed a verified complaint with the Division alleging that Respondent unlawfully subjected her to racial discrimination (Black) and reprisal in serving her with a notice of official reprimand, in violation of the Law Against Discrimination. Respondent denied any violation of the LAD. The Complainant also filed an appeal with the Department of Personnel (DOP). Both complaints alleged reprisal, in that Complainant had earlier filed grievances and complaints against her employer and was subsequently served with the reprimand for abuse of sick time. Complainant’s race claim under the LAD alleged that Respondent had also served a Caucasian employee with a reprimand for abuse of sick time, but that reprimand was withdrawn. Prior to the determination of Complainant’s Division complaint, the Merit System Review Board issued a final determination in which Complainant’s reprimand was upheld. When Complainant’s Division complaint was heard at the Office of Administrative Law (OAL), the Administrative Law Judge (ALJ) granted Respondent’s motion for summary decision based on the doctrines of res judicata, collateral estoppel and entire controversy, finding that the matter had already been adjudicated by the DOP. The Director rejected the initial decision, however, and concluded that Complainant’s LAD claim was improperly dismissed because the nature of the DOP proceeding, which did not include a full hearing, was inadequate to apply the doctrines of res judicata and collateral estoppel. The LAD matter was remanded to the OAL for a hearing on the merits.

After a hearing, the ALJ found that Complainant demonstrated a prima facie case of unlawful racial discrimination and reprisal against Respondent, in that a similarly situated Caucasian employee received disparate treatment. However, the ALJ also found that Respondent’s proffered reasons for the official reprimand issued to Complainant were persuasive, and the reasons for rescinding the reprimand against the other employee were not pretexts for discrimination or reprisal. The ALJ also found that Complainant failed to dispute the testimony of Respondent and accordingly concluded that there was no evidence of any discriminatory animus against Complainant.

The Director adopted the ALJ’s findings, with some modifications. The Director concluded that the ALJ correctly recognized a prima facie case of race discrimination and reprisal. The Director also concluded that Respondent met its burden of disputing that discrimination had occurred, as the sole requirement was for Respondent to present a legitimate business reason for its decision. The Director then found that Complainant failed to meet her subsequent burden of establishing that the proffered reason was pretextual, and that she also failed to establish that she and the other employee were similarly situated. For these reasons, the Director adopted the ALJ’s initial decision.

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2/2/07

THOMAS RUIZ V. WASHINGTON TOWNSHIP PUBLIC WORKS

DCR Dkt No. EH18WM-48969-E
OAL Dkt No. CRT 02698-2005S

Case Summary: Complainant, a laborer with the public works department, filed a verified complaint with the Division alleging that Respondent unlawfully subjected him to age and national origin discrimination in denying him a promotion for which he was qualified, in violation of the Law Against Discrimination. Respondent filed an answer denying any violation of the LAD. Complainant subsequently filed an amended verified complaint alleging unlawful reprisal, in that he was assigned to a job that did not exist and was subject to unreasonable and unwarranted monitoring and criticism of his work in reprisal for having filed his original complaint. Respondent filed an answer again denying discriminating against Complainant, claiming that Complainant was not promoted due to his refusal to work overtime. During the course of the investigation the Director transmitted this matter to the Office of Administrative Law as a contested case at the request of Complainant. Following an administrative hearing, the administrative law judge (ALJ) issued an initial decision recognizing the complaint in finding that Respondent demonstrated a prima facie case of age discrimination and reprisal against Complainant. The ALJ found that Respondent’s proffered reason of Complainant’s refusal to work overtime did not satisfy the burden of articulating a legitimate, non-discriminatory reason for its actions. The ALJ found Complainant to be more credible than Respondent, and concluded that the testimony provided at the hearings indicated a discriminatory animus against Complainant.

The Director adopted the ALJ’s findings, with some modifications. The Director concluded that the ALJ correctly dismissed the national origin discrimination claim. The Director also concluded that the ALJ erred in finding that Respondent failed to meet its burden, as the sole requirement was for Respondent to present a legitimate business reason for its decision. However, the Director also found that Complainant met his subsequent burden of establishing that the proffered reason was pretextual, based on Respondent’s lack of credibility.

The ALJ also found an adverse inference from Respondent’s failure to call the Mayor of the township as a witness, as the Mayor had direct knowledge of the hiring/promotion process. However, as either party could have compelled the Mayor’s testimony, and as Complainant demonstrated greater credibility than Respondent, the Director found that any such adverse inference was moot and did not determine the ultimate holding in this case. For these reasons, the Director adopted the ALJ’s initial decision.

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2/23/07

L.W., GUARDIAN AD LITEM FOR R.W. & D.W., GUARDIAN AD LITEM FOR B.W., V. SUBWAY RESTAURANT ET. AL.

DCR Dkt Nos. EL07RB-51653-E AND EL07RB-51654-E
OAL Dkt Nos. CRT 6505-06

Case Summary: On July 26, 2005, Complainants L.W. and D.W. (Complainants) (legal guardians for their minor sons) filed Verified Complaints with the Division alleging that their sons’ former employer, Subway Restaurant located in Lawrenceville, Mercer County, and Manager Dipen Patel, (Respondents), unlawfully discriminated against their sons because of their race (Black) by referring them as “nigger.” On July 19, 2006, the Division issued a default order with regard to both verified complaints. The matter was subsequently transmitted to the Office of Administrative Law (OAL) for a default hearing pursuant to N.J.S.A. 52:14B-1 to -12.

The Director found that the Division properly served Respondents with all the notices and procedures required that made the entry of default appropriate. N.J.A.C. 13:4-5.2. The Director noted that Respondents filed no exceptions to the ALJ’s initial decision, and made no other objections to the ALJ’s rulings. As provided by N.J.A.C. 13:4-5.3(d), the ALJ had jurisdiction to hear Respondents’ motion to vacate the default previously entered by the Director. The ALJ denied Respondents’ motion, and the Director found no good cause to disturb that ruling.

In addition, the Director found that the actions of Dipen Patel were sufficiently severe or pervasive to meet the standard to establish a race-based hostile environment. The ALJ found as fact that Patel called B.W. and R.W. “nigger” repeatedly, and almost every day, and that B.W. also recalled Patel saying “I own you,” a transparent reference to slavery. The ALJ also found that Patel made the racist comments in situations where others could hear them. The repeated, everyday nature of Patel’s comments makes the racial hostility pervasive as well as severe. The Director concluded that these words were overtly racial, and for that reason the harassment would not have occurred “but for” Complainants’ sons’ race. The Director noted that Patel’s supervisory position at Respondent Subway Restaurant rendered his racially biased words particularly egregious. Accordingly, the Director determined that Complainants established that Respondents subjected their sons to a racially hostile work environment, in violation of the LAD.

The Director awarded Complainants back pay and prejudgment interest in the amount of $2,433.41. In addition, as result of the repeated harassment the Director found that the ALJ’s award of $60,000.00 in emotional distress damages to each Complainant was appropriate. The Director found Respondents jointly and severally liable for these damages. The Director agreed that the maximum penalty payable for a first violation of the LAD of $10,000.00 against each Respondent was appropriate. Their failure to respond to the verified complaints demonstrated contempt for the Division’s authority and complete inability to comprehend the severity of their action. Finally, the Director found that the ALJ’s assessment of attorneys’ fees in the amount of $27,142.25 was appropriate.

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