April 23, 2003

The 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.

February 2, 2005

Respondent appealed the Director’s decision to the Appellate Division of the Superior Court of New Jersey. On September 24, 2004, the Appellate Division ruled that the Director’s factual findings and legal conclusions were amply supported by the credible evidence, but remanded the case for the Director to address the defense of legislative immunity, which Respondent raised for the first time on appeal. The Director concluded that the doctrine of legislative immunity could not protect Respondent from liability for its race-based employment decision, because its race-based decision to replace Complainant with an African American was an administrative or managerial function rather than a legislative function. Respondent has filed an appeal of the Director’s decision on the legislative immunity issue.

Complainant filed a verified complaint with the Division alleging that her employer discriminated against her and terminated her employment based on her creed (Muslim) in violation of the LAD. Specifically, the complaint alleged that the owner of the company, Diane Spencer, informed Complainant that she would be terminated if she wore Muslim attire to work, and that before discharging Complainant, Ms. Spencer stated that she could not deal with everyone’s religion. Following an administrative hearing, the administrative law judge (ALJ) issued a recommended decision dismissing the complaint. The ALJ concluded that Complainant failed to prove that the employer’s articulated reasons for discharging her - - poor performance and a decline in business - - were pretext for religious discrimination.

After reviewing the ALJ’s recommended decision, the Director concluded that the ALJ failed to make factual findings on certain material issues in dispute, including some evidence which, if found to be credible, would constitute direct evidence of religious discrimination and require application of different legal standards. The Director found that, because the record included conflicting testimony on material issues, it was necessary for the ALJ, who heard the testimony and had the opportunity to observe the demeanor of the witnesses, to assess witness credibility and make factual findings based on those assessments. For this reason, the Director remanded this matter to the ALJ to make credibility determinations and factual findings on specific disputed issues, and to apply the appropriate legal standards based on those factual findings.

Complainant filed a verified complaint with the Division alleging that Respondent discriminated against her by paying her less than similarly situated male employees in violation of the Law Against Discrimination. Complainant contended that she was more highly educated than her male counterparts, yet Respondent offered them a higher starting salary. Respondent asserted that no violation of the LAD occurred because each employee was offered starting salaries commensurate to his or her municipal background, or, unique experience which brought different skills to the Department of Treasury which were highly relevant to its mandate, and therefore Complainant’s gender was not a factor in determining her starting salary. Following a hearing at the Office of Administrative Law, the ALJ dismissed Complainant’s claim finding that the reasons proffered by Respondents were credible, legitimate, non-discriminatory, and sufficient to rebut Complainant’s prima facie case of gender discrimination.

The Director found that the ALJ’s findings and conclusions were well supported, and the objective documentary evidence corroborated Respondent’s legitimate non-discriminatory reasons for offering Complainant a lower starting salary than her male counterparts. The ALJ also found that Respondent offered evidence that both male and female applicants who did not possess the unique municipal experience were offered a lower starting salary than other male and female applicants who did in fact possess the skills that Respondent deemed worthy of a higher starting salary. The Director adopted the ALJ’s initial decision and dismissed Complainant’s claim.

This order addressed the issue of attorney’s fees to be awarded to a prevailing complainant. Complainant had alleged that Respondent unlawfully demoted him based on his disability in violation of the Law Against Discrimination and the Director issued an order concluding that Respondent did discriminate against Complainant, and a partial initial decision was entered in which damages and penalties were awarded to the Complainant. This decision did not address the issue of attorneys fees.

• Costs for expert witnesses were awarded;
• Rates for travel time were reduced by fifty percent;
• Historic rates plus accrued interest instead of current rates were awarded for per diem attorneys utilized by a supervising attorney;
• An enhancement of ten percent was added to the lodestar amount awarded;
• Fee application work was excluded from the lodestar, and remunerated at a rate of two-thirds the rate awarded for the case in chief;
• In certain circumstances, fees will not be awarded for work performed on unsuccessful motions;
• While a claim for attorneys fees which significantly exceeds the amount awarded in damages will not automatically be rejected, those fees requested will be subject to a higher level of scrutiny.

Complainant Margie Hall filed a verified complaint with the Division alleging that The Reeves Foundation terminated her employment based on her age, in violation of the New Jersey Law Against Discrimination. Following an administrative hearing, the administrative law judge (ALJ) issued an initial decision dismissing the complaint. The ALJ found that Complainant quit her job, and thus failed to prove an essential element of a prima facie case of discriminatory discharge. The ALJ further concluded that even if Complainant had presented a prima facie case, she presented insufficient evidence that her employer’s articulated reasons were pretext for age discrimination.

The Director adopted the ALJ’s recommended dismissal of the complaint. After adopting the ALJ’s conclusion that Respondent did not actually terminate Complainant’s employment, the Director also evaluated the evidence to determine whether the events constituted a constructive discharge. Based on the ALJ’s factual findings, the Director concluded that Complainant failed to prove that she was subjected to employment conditions so intolerable that a reasonable person would feel compelled to resign, and thus concluded that Complainant was not constructively discharged. Finally, the Director concluded that even if Complainant had established a prima facie case, she failed to prove that her employer was motivated by age discrimination in making plans to replace Complainant after she spoke of her intent to retire.