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  Director's Orders 2009  
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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.  
     
     
 
2009 Compendia (not yet available)
 
  Case summaries are provided for descriptive purposes only and are not part of the Director's decision.  
     
 

10/2/2009

Azra Campbell v. Quest Diagnostics

DCR Docket No. EG14NB-48882
OAL Docket No. CRT 05381-2008N

In this case, the Director adopted the administrative law judge’s dismissal of the complainant’s claim because she failed to comply with repeated deadlines to produce discovery. Azra D. Campbell (Complainant) filed a verified complaint with the Division alleging that Quest Diagnostics (Respondent) unlawfully discriminated against her based on disability (chronic epicondylitis of her right elbow) by failing to provide her with reasonable accommodations and subsequently terminating her employment as a packer/specimen entry lab aide on or about February 21, 2007. Prior to the completion of the Division’s investigation, Complainant, through counsel, requested that this matter be transmitted to the OAL as a contested case pursuant to N.J.A.C. 13:4-11.1 (c) and N.J.S.A. 10:5-13.

Respondent served on Complainant its first set of interrogatories, request for the production of documents, and request for admissions on May 22, 2008. Complainant did not submit the information timely. A Pre-Hearing Order (PHO) was issued by The Honorable Irene Jones, Administrative Law Judge (ALJ) on August 14, 2008 outlining discovery deadlines and scheduling a settlement conference for December 17, 2008. The hearing on the merits was scheduled for January 27, 2009 and January 28, 2009.

Complainant did not answer Respondent’s initial discovery but did secure two extensions from Respondent. On October 24, 2008, ten days past the second extension deadline, Complainant’s counsel forwarded a letter to ALJ Jones in which he stated that he was contending with significant health issues and that these were the reasons why the discovery deadlines were not met. Subsequently, Complainant and counsel failed to participate in the status conference.

Respondent moved to dismiss the claim on July 22, 2009 as Complainant had still not responded to discovery requests more than one year after the request was initially served. Complainant did not reply to the motion despite being granted extensions, and the ALJ issued her initial decision on August 20, 2009 dismissing the case with prejudice for Complainant’s failure to prosecute this matter. The ALJ found that Complainant failed to demonstrate any good cause for repeatedly failing to answer discovery "or otherwise move this matter beyond the filing of the complaint with the [Division] and EEOC." After reviewing the record, the Director adopted the ALJ's dismissal, concluding that the ALJ properly sanctioned Complainant for unreasonably failing to comply with the orders of the ALJ. Notwithstanding Complainant’s counsel’s asserted health problems, the Director concluded that there is nothing in the record that would excuse counsel’s failure to provide discovery for over one year, his failure respect judge-ordered deadlines, or his unwillingness to make the necessary arrangements to ensure this case was properly handled. Accordingly, the Director found that given the unique circumstances of this matter, and the myriad of extensions and adjournments afforded, Complainant has had sufficient opportunity to comply with the ALJ’s order and avoid the ultimate sanction of dismissal with prejudice.

6/25/2009

Luzardo v. Liberty Optical

OAL DOCKET NO. CRT 03924-08
DCR DOCKET NO. EG14NB-48882

Dinorah Luzardo (Complainant) alleged that Liberty Optical (Respondent) discriminated against her based on her Cuban national origin, when she was transferred/demoted and then discharged. The Division on Civil Rights investigated Complainant’s allegations and issued a Finding of Probable Cause to support her claims of national origin discrimination. After an administrative hearing, the Administrative Law Judge (ALJ) issued an initial decision concluding that Respondent’s articulated reasons for transferring and discharging Complainant–performance deficiencies--were unworthy of credence, and were a pretext for national origin discrimination. The ALJ awarded Complainant $5,000 in emotional distress damages and assessed a statutory penalty of $2,500. The ALJ also noted that reasonable attorneys fees should be awarded to Complainant, in an amount to be determined.

After reviewing the hearing record and considering the exceptions filed by Respondent, the Division Director adopted the ALJ's conclusion that the employer violated the employment discrimination provisions of the New Jersey Law Against Discrimination (LAD). The Director acknowledged the evidence that Complainant’s transfer and termination were part of a larger reduction in force, and noted that the question to be addressed was whether national origin played a role in the decisions Respondent made in selecting employees for transfer or discharge as part of that downsizing. In response to the employer’s contention that there could be no unlawful discrimination without evidence of some comment, behavior or practice that suggests an anti-Cuban animus, the Director noted that the LAD does not require such direct evidence of discrimination in every case, and circumstantial evidence may suffice to show that an employer acted with a discriminatory motive.

The Director noted that the ALJ relied on lay witness testimony to reject Respondent’s claim that Complainant was transferred and discharged because of performance deficiencies, and to find it was not credible. Thus, pursuant to the Rules of Administrative Procedure, the Director was bound by that credibility determination unless it was arbitrary, capricious or unreasonable, or not supported by sufficient, competent and credible evidence. N.J.A.C. 1:1-18.6(c). The Director found no basis in the record for rejecting the ALJ’s credibility determination, and concluded that the ALJ’s determination provided compelling support for Complainant’s assertion that performance deficiencies were not the true reason for her demotion and discharge. In addition, the Director’s own review of the evidence demonstrated that Respondent’s articulated reasons changed during the pendency of the complaint, and were also inconsistent with its actions during Complainant’s employment. The Director concluded that Respondent’s articulated reason for transferring and discharging Complainant were a pretext for discrimination based on her national origin.

The Director adopted the ALJ’s $5000 emotional distress damage award, ordered backpay in the amount of $ 9,903 plus pre-judgment interest, and assessed a $5000 statutory penalty. The Director also held that Complainant would be awarded reasonable attorney fees, and directed the parties to submit certifications and supporting documentation to address the fee award.

8/12/09

Linda Callahan v. Irving J. Proud

OAL DOCKET NO.: CRT 02331-09S
DCR DOCKET NO.: HN35ST-06005

Complainant alleged that Respondent unlawfully denied her housing based on her sex, in violation of the Law Against Discrimination, in that approximately two weeks after she moved in to a three-family apartment building owned and occupied by Respondent, Respondent advised her that he could no longer rent to women and served her with a notice of eviction. Respondent, despite having been personally served with copies of both complaints, did not file an answer to the complaint and did not reply to the Division’s document and information request. The Division initiated default proceedings, and the Director entered an Order for Entry of Default against Respondent. The matter was transferred to the Office of Administrative Law (“OAL”) for a proof hearing. Respondent was served with notice of the hearing, contacted the administrative law judge’s (ALJ’s) legal assistant to confirm the scheduling of the hearing, but did not appear. Subsequent to the hearing, the ALJ issued an initial decision wherein he found this to be a “pure” example of discrimination in the rental of housing solely based on the sex of the renter, and concluded that Respondent had violated the LAD. The ALJ then concluded that Respondent was liable to Complainant for economic damages, and non-economic losses such as mental anguish, pain and humiliation. The ALJ awarded Complainant the amount of $4,086, representing a balance due on a returned security deposit, the difference between Complainant’s actual rent at another location and what she would have paid had she been permitted to remain as a tenant of Respondent for a period of one year, plus prorated rent and other miscellaneous charges incurred. The ALJ also awarded Complainant the amount of $7,500 for humiliation and anguish, and also assessed a statutory penalty of $5,000.

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 case of housing discrimination, in that Respondent demanded that she leave the apartment he had rented to her solely because of her sex. The Director also concurred with the finding that Respondent was liable for the economic damages suffered by Complainant, but added prejudgment interest to the economic damages portion of the award. Finally, the Director found that a prevailing party in an action under the LAD may be awarded reasonable attorney’s fees, and provided Complainant the opportunity to present a certification of services to be submitted within 20 days from the date of the order. Accordingly, the Director upheld the finding in favor of Complainant.

 
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