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TRENTON
– A New Jersey Appellate panel has
upheld a Final Agency Determination by the
Division on Civil Rights that found a Subway
restaurant franchise committed race-based
discrimination against two teen-age employees
and that, as a result, the restaurant’s
owner and manager must pay each victim $62,000
in damages and lost wages.
In February 2007, Division on Civil Rights
Director J. Frank Vespa-Papaleo upheld an
Administrative Law Judge’s earlier
decision and found that two African-American
teen-agers who formerly worked at a Subway
restaurant in Lawrenceville, Mercer County,
were victims of race-based discrimination
by restaurant manager Dipen Patel, as well
as the Subway franchise itself.
Specifically, Vespa-Papaleo upheld the ALJ’s
finding that the two young men – the
two are identified in their original Complaint
as R.W. and B.W. -- were subjected to a
hostile work environment in 2005 by virtue
of Patel’s regular use of the “n-word”
in addressing them, and such comments directed
at them such as “I own you.”
Vespa-Papaleo
also upheld the ALJ’s conclusion that
the conduct of the Subway manager left R.W.
and D.W. no choice but to quit their jobs,
a situation tantamount to the 16-year-olds
having been subjected to unlawful “constructive
discharge” by Subway. The Director
agreed with the ALJ that both Patel and
Subway (franchise owner Rupesh Trivedi)
were liable for damages and statutory penalties.
Vespa-Papaleo ordered the Respondents to
pay R.W. and D.W. $60,000 each in pain and
humiliation damages, and another $2,349.72
each in lost wages.
Vespa-Papaleo
also ordered that Patel and Subway pay the
State $10,000 each in statutory penalties
and another $27, 142 to cover attorneys’
fees and costs.
On April 30, 2008, a two-judge Appellate
panel issued a decision upholding DCR’s
Final Agency Determination. In doing so,
the Appellate judges rejected legal arguments
by Subway that Vespa-Papaleo abused his
discretion in denying a Motion for Reconsideration
filed by attorneys for Patel. The Appellate
ruling also took note of the fact that Patel
“did not deny that he made the racist
remarks.”
B.W.
began working at the Subway restaurant in
March 2005, while R.W. began his employment
in June 2005. They earned $6.50 an hour
and worked Monday through Friday 4 p.m.
to 11 p.m., as well as on weekends. At an
Administrative Law hearing on the original
Complaint, both B.W. and R.W. testified
that, during the time they worked under
his supervision, Patel referred to them
by the “n word” almost daily,
often within earshot of others, and that
they eventually quit rather than be subjected
to his slurs.
Neither
Patel nor Subway responded to numerous State
subpoenas and attempts by the Division on
Civil Rights to contact them in late 2005.
They also failed to respond to Verified
Complaints filed against them by the Division
in 2006.
As a result, the Division declared them
to be in default, and the Administrative
Law Judge subsequently ruled at trial that
there were no facts of the case in dispute.
Deputy
Attorney General Brian O. Lipman handled
the Subway matter on behalf of the State.
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