JOE SANCHEZ v. RIZZIERI CONSULTING INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0267-11T1

JOE SANCHEZ,

Plaintiff-Appellant,

v.

RIZZIERI CONSULTING, INC.,

RIZZIERI MANAGEMENT COMPANY,

INC., RIZZIERI CORPORATION,

d/b/a RIZZIERI SALON & DAY

SPA, MARIA CHRISTINZIO, AMY

DIMARCO, NANCY LEUZZI, and

HEATHER GABRIEL,

Defendants-Respondents.

_______________________________

October 23, 2012

 

Argued May 16, 2012 - Decided

 

Before Judges Axelrad, Sapp-Peterson and Ostrer.

 

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-3894-09.

 

William B. Hildebrand argued the cause for appellant.

 

Jeffrey P. Resnick argued the cause for respondents (Sherman, Silverstein, Kohl, Rose & Podolsky, P.A., attorneys; Mr. Resnick, on the brief).

PER CURIAM

Plaintiff, Joe Sanchez, appeals from the August 19, 2011 trial court order confirming a June 3, 2011 award issued pursuant to the New Jersey Alternative Procedure for Dispute Resolution Act (APDRA), N.J.S.A. 2A:23A-1 to -30, in favor of defendants, Rizzieri Consulting, Inc., Rizzieri Management Company, Inc., Rizzieri Corporation, d/b/a Rizzieri Salon & Day Spa, Maria Christinzio, Amy DiMarco, Nancy Leuzzi, and Heather Gabriel (hereinafter referred to as "Rizzieri" or "defendants"), and denying his motion to vacate or modify the award. We affirm.

Sanchez was employed by Rizzieri as a front desk coordinator at its salon and day spa. He was suspected of theft and was terminated. Sanchez filed a complaint in Superior Court alleging violation of the Family Medical Leave Act of 1993 (FMLA), 29 U.S.C.A. 2601 to -2654, and the Law Against Discrimination, N.J.S.A. 10:5-1 to -42.

After the parties completed discovery, they agreed to resolve their dispute, pursuant to the provisions of APDRA, and selected retired Superior Court Judge John A. Sweeney to preside over the hearing. Based upon the procedural background Judge Sweeney set forth in his decision, we discern the parties also agreed that the judge should make some credibility determinations and highlight the material facts supporting his conclusions but need not make detailed findings of fact and conclusions of law:

As I indicated to you prior to and after the hearing, I will not attempt to write a detailed opinion with findings of fact and conclusions of law. It is not necessary to create that much of a record since, in the absence of fraud or a legal conclusion that is obviously unsustainable, an arbitrator's decision is final and binding. I understand that to be your agreement in this case and will proceed accordingly. I will make credibility determinations and comment on critical, material facts which are essential to my final conclusions.

 

Additionally, although there were witnesses who appeared at the hearing and provided testimony, a record of the hearing was not made. There were, however, deposition transcripts that were part of the record before Judge Sweeney.

The evidence before Judge Sweeney revealed that defendants suspected plaintiff of voiding a $300 spa service payment that had been made in cash on June 2. When discrepancies were found in Rizzieri's sales for June 2, plaintiff and another employee were questioned, and both denied stealing the money. Rizzieri scheduled a meeting to discuss the matter with Sanchez on June 5. There was conflicting evidence in the record as to whether the purpose of the meeting was to discuss the incident further or to terminate Sanchez.

In any event, Sanchez was not scheduled to work on that date. Christinzio, his direct supervisor, telephoned him the evening before the meeting and left a voice message asking that he attend a meeting the following day at noon. She also sent him a text message about the meeting.

On the morning of June 5, one and one-half hours before the meeting was scheduled to begin, Sanchez contacted Christinzio and told her that he had just awakened and did not know whether he would make the meeting. Christinzio reiterated that it was important that he attend the meeting.

After waiting for more than one hour for Sanchez to arrive, Rizzieri terminated Sanchez for suspicion of theft, as of June 5. Later that day, while driving home from work, Christinzio received a telephone call from Sanchez's partner, Gil Lopez. He told her Sanchez left the house that morning angry and very upset. He also stated that Sanchez was in the hospital and had attempted to take his own life. Rizzieri denied having any knowledge that Sanchez had psychiatric issues, although Gabriel, the receptionist, when deposed, acknowledged she was aware that Sanchez was taking anti-depressants.

Christinzio also acknowledged she knew that Sanchez took medication, but she was not specifically aware of what medication he was taking. In her deposition testimony, however, she stated: "[H]alf the salon is treated for anxiety and depression. They're all on antidepressants. Everyone is on them but me. I mean, it's a common thing in the industry." When asked if Sanchez was "in the half that was on antidepressants[,]" she responded, "I understand he was on medication. I don't know what medication he was taking."

Sanchez remained hospitalized until June 16, when he was discharged. He contacted Christinzio the same day to request additional time off. According to plaintiff, Christinzio told him that was fine, but the very next day left a message informing him he had been terminated and would shortly receive a formal letter of termination.

Christinzio confirmed that Sanchez called on June 16, and testified during her deposition that Sanchez indicated he would not be coming into work and that she responded by asking him whether he had received her letter, to which Sanchez responded, "No." She agreed that at that point, inasmuch as she did not tell him he had been fired, he would have thought he was still employed, and she also admitted she did not say or do anything to disabuse him of that notion.

The termination letter, dated June 17, advised Sanchez that he had been terminated, effective June 5, and requested that he repay the balance owed on a $2000 loan. According to Leuzzi, who headed Human Resources for Rizzieri, she did not prepare the termination letter sooner because although the decision to fire Sanchez had been made as early as June 5, she believed there was no way to reach Sanchez while he was hospitalized. His benefits were also terminated, retroactive to June 5.

Judge Sweeney, in his decision, noted that "[a]t the very core of [Sanchez]'s [c]omplaint is the alleged unlawful termination of [Sanchez] based upon his actual or perceived disability as defined in the several applicable Acts and that his termination for stealing money and missing a mandatory meeting was merely pretextual." Based upon his review of the evidence presented, the judge found that Sanchez "failed to prove most, if not all, of the components for a case of discrimination." He highlighted Sanchez's acknowledgement that "he was terminated for stealing money, or, at the very least, for being suspected of doing so." As such, Judge Sweeney concluded whether Sanchez actually stole the money was irrelevant to disposing of his claims, and agreed with Rizzieri that it had the legal "'right to be wrong'" about the theft.

The judge additionally found that Sanchez was aware he had been terminated on June 5, or shortly thereafter, failed to present any competent evidence to establish a legally cognizable disability, and also failed to establish that Rizzieri was aware of his mental condition: "Not only was plaintiff's testimony sorely lacking on the claimed 'disability,' there was no expert produced, in person, by deposition, or by report to support such a claim. Furthermore, a mere allegation that his employer was aware of his condition, whatever it might have been, does not constitute proof."

Judge Sweeney viewed the $2000 loan that Rizzieri gave Sanchez as "bel[ying] a discriminatory motive for the termination" because "[n]o rational human being would lend money to someone who he suspected would steal from him days later and certainly would not lend money to someone who he intended to fire for discriminatory reasons." Finally, the judge dismissed the remaining defamation and conspiracy claims.

On July 7, 2011, Sanchez filed a summary application before the Law Division seeking an order vacating or modifying the award, in accordance with N.J.S.A. 2A:23A-13. On that same date, Rizzieri filed a motion, pursuant to a different statute, N.J.S.A. 2A:24-7, seeking confirmation of Judge Sweeney's award.

On July 25, the court issued an order to show cause (OTSC) directing the parties to appear and show cause why the award should not be vacated or modified. On August 8, the parties agreed to consolidate their respective applications. On August 19, the parties appeared before Judge John E. Harrington, who conducted oral argument on the consolidated matters.

In seeking to vacate or modify the award, Sanchez maintained that his depression and bipolar disorder were disabilities, but conceded that "defendants had [a] viable deniability with respect to their knowledge of [his] disability[.]" Notwithstanding this concession, Sanchez insisted that because Rizzieri was aware of his hospitalization, they violated FMLA when they fired him on June 17, 2009, and when they retroactively terminated his health benefits to June 5, 2009.

Rizzieri responded that Sanchez never established he had a disability, and disagreed that his firing or termination of benefits had been "retroactive to prior to that Friday." To the contrary, defendants maintained they fired Sanchez on June 5, 2009, before he was hospitalized, but "didn't give him the paperwork till afterwards."

Judge Harrington initially observed that two different statutes, N.J.S.A. 2A:23A-13 and N.J.S.A. 2A:24-7, were being proffered as governing the disposition of the proceedings, but concluded N.J.S.A. 2A:23A-13c applied. The parties have not challenged that ruling on appeal.1 In considering the claim under APDRA, he noted that the court's role was limited and that Judge Sweeney's findings of fact were binding upon it:

I mean, acting as the reviewing agency[,] so to speak[,] my role is very narrow and limited. If all the facts were put before the arbitrator and even if I had wanted to decide it differently[, i]t stays[. I]f, on the other hand, there was some [evidence of] fraud at section one, partiality, section two, [that the arbitrator] exceeded [his] power, and that's not the case, failed to [follow] proceedings, not the case, or was there some prejudicial error by erroneously applying the law to the issues and facts. So that the question is to facts.

 

Judge Harrington then concluded:

I am very familiar with the case based upon the reading of the papers which I have done. [Sanchez's counsel] articula[te]ly sets forth [Sanchez's] position both in writing and orally here that [the arbitrator]'s . . . application of the law of disability to the . . . FMLA counts in the complaint was erroneous . . . . [Rizzieri's counsel] suggests to the [c]ourt that . . . there were factual findings made and hotly disputed as to whether or not there was a serious health condition at the time he entered the hospital, and that this was all brought before [the arbitrator], and that, therefore, even though it's not articulated per se in the written judgment in that way, it was set forth in the memoranda submitted and the evidence and testimony and opening and closing arguments.

That being the case, the [c]ourt is satisfied that it is not going to vacate the judgment . . . under N.J.S.A. 2A:23A-13[(c)], which I do believe applies . . . . I will not modify the award because both parties had ample opportunity to present their factual case and arguments before [the arbitrator].

 

The present appeal followed. Sanchez raises the following points for our consideration:

POINT I

RIZZIERI'S RETROACTIVE TERMINATION OF SANCHEZ'S HEALTH INSURANCE COVERAGE VIOLATES THE FMLA.

 

POINT II

THE TERMINATION OF SANCHEZ'S EMPLOYMENT WHILE HE WAS ABSENT ON FMLA LEAVE VIOLATES THE JOB-PROTECTION PROVISIONS OF THE FMLA.

 

POINT III

THE ARBITRATOR IMPROPERLY CONFUSED THE ELEMENTS REQUIRED FOR ESTABLISHING AN FMLA CLAIM WITH THE ELEMENTS REQUIRED FOR A CLAIM OF UNLAWFUL DISABILITY DISCRIMINATION UNDER NEW JERSEY'S LAW AGAINST DISCRIMINATION.

 

POINT IV

THE ARBITRATOR ERRED BY FAILING TO RECOGNIZE THAT RIZZIERI'S RETROACTIVE CANCELLATION OF SANCHEZ'S MEDICAL COVERAGE VIOLATED HIS RIGHTS UNDER THE FMLA.

 

POINT V

THE ARBITRATOR ERRED BY ONLY REVIEWING THE "HIGHLIGHTED" PORTIONS OF THE DEPOSITION TESTIMONY. [NOT RAISED BELOW].

 

POINT VI

THE ARBITRATOR ERRED WHEN HE CONCLUDED THAT SANCHEZ REALIZED HE HAD BEEN TERMINATED ON "JUNE 5 OR WITHIN A DAY OR TWO AFTER." [NOT RAISED BELOW].

POINT VII

THE TRIAL COURT ERRED IN FAILING TO FOLLOW THE PROCEDURES SET FORTH IN N.J.S.A. 2A:23A-13 [AND] 2A:23A-19 FOR CONFIRMING, MODIFYING OR CORRECTING THE ARBITRATION AWARD.

 

POINT VIII

THE TRIAL COURT ERRED IN FAILING TO VACATE THE ARBITRATION AWARD.

 

POINT IX

THE TRIAL COURT ERRED IN GRANTING RIZZIERI'S MOTION TO CONFIRM THE ARBITRATION AWARD.

 

As a threshold matter, defendants urge that the APDRA bars appellate review of this matter. In support of this contention, they cite N.J.S.A. 2A:23A-18b, which provides: "Upon the granting of an order confirming . . . an award, a judgment or decree shall be entered by the court in conformity therewith and be enforced as any other judgment or decree. There shall be no further appeal or review of the judgment or decree." (Emphasis added).

We recognize that limited judicial review is a central component of APDRA. Mt. Hope Dev. Assocs. v. Mt. Hope Waterpower Project, L.P., 154 N.J. 141, 149 (1998). Nonetheless, there are exceptions. Morel v. State Farm Ins. Co., 396 N.J. Super. 472, 475 (App. Div. 2007). N.J.S.A. 2A:23A-13 permits vacation of an award where there has been

(1) Corruption, fraud or misconduct in procuring the award;

 

(2) Partiality of an umpire appointed as a neutral;

 

(3) In making the award, the umpire's exceeding their power or so imperfectly executing that power that a final and definite award was not made;

 

(4) Failure to follow the procedures set forth in this act, unless the party applying to vacate the award continued with the proceeding with notice of the defect and without objection; or

 

(5) The umpire's committing prejudicial error by erroneously applying law to the issues and facts presented for alternative resolution.

"In considering an application for vacation, modification or correction, a decision of the umpire on the facts shall be final if there is substantial evidence to support that decision." N.J.S.A. 2A:23A-13(b). The statute further indicates that a court may only review the facts de novo when the application to vacate is premised on the four limited circumstances set forth in N.J.S.A. 2A:23-13(c)(1) through (4). Ibid.

The trial court, in exercising its supervisory function, found that Sanchez failed to demonstrate that vacation of the award was warranted under either subsection c(3) or c(5) because "Judge Sweeney made the factual decision that [Sanchez] was fired before he went into the hospital." The argument before the trial court was premised upon Sanchez's contention that he was not terminated on June 5. Sanchez's appellate brief continues to advance this contention:

In June, 2009, Rizzieri terminated his employment. His supervisor, Maria Christinzio, reported that he was fired for failing to attend a mandatory meeting on June 5, 2009, his scheduled day off. However, at the time of the meeting, Mr. Sanchez was unconscious, as a result of an overdose of anti-depressant medication. He was rushed to the hospital where he remained for the next ten (10) days.

 

Judge Sweeney did not credit Sanchez's testimony in this regard and specifically noted that his testimony and that of his partner, Lopez, "conflicted on a critical issue - Mr. Sanchez's alleged disability. Lopez said that Sanchez attempted suicide on June 5, 2009. Sanchez was adamant in his denial." Moreover, based upon the testimony of at least one of the Rizzieri witnesses and an exhibit presented, Judge Sweeney also found Sanchez was aware that he had been terminated as early as June 5, "or within a day or two thereafter."

Judge Harrington agreed, as defense counsel argued, there were "hotly" disputed factual issues as to whether or not plaintiff suffered from a serious health condition at the time he entered the hospital and that these factual disputes were all brought before Judge Sweeney and resolved by the judge. "In considering an application for vacation . . . a decision of [Judge Sweeney] on the facts shall be final if there is substantial evidence to support that decision." N.J.S.A. 2A:23A-13b; see also Ukrainian Nat'l Urban Renewal Corp. v. Joseph L. Muscarelle, Inc., 151 N.J. Super. 386, 396 (App. Div.) ("An arbitrator's factual determinations concerning the merits of the dispute submitted to him are not reviewable by the court as such."), certif. denied, 75 N.J. 529 (1977). Moreover, during oral argument, Sanchez's counsel conceded defendants had a "viable deniability" regarding his claimed psychiatric conditions on June 5, 2009. Judge Sweeney found that Sanchez was terminated on June 5.

From these findings, Judge Harrington found there was no basis for the court to exercise its supervisory role to vacate Judge Sweeney's award. The Legislature's "denial of a right to appeal to this court is based on the assumption that the trial judge will decide the case by applying the principles dictated by the Legislature." Morel, supra, 396 N.J. Super. at 476. We are satisfied Judge Harrington appropriately applied the legislative principles in confirming the award and therefore dismissal of this appeal is warranted.

To the extent we have not addressed Sanchez's remaining arguments, it is because we have concluded they are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). We do, however, add the following brief comments.

Sanchez claims Judge Sweeney erred by reviewing certain materials and overlooking other evidence. He also challenges Judge Sweeney's finding that plaintiff "realized that he had been terminated on June 5 or within a day or two thereafter." Neither of these arguments were raised before Judge Harrington. We "decline to consider questions or issues not properly presented to the trial court when opportunity for such presentation is available." Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Moreover, these challenges are essentially directed to the weight Judge Sweeney accorded the evidence before him and therefore implicate the judge's credibility assessments, which only he was in the best position to assess. Unkranian Nat'l Urban Renewal Corp., supra, 151 N.J. Super. at 396 (deferring to arbitrator's factual determinations).

In Point VII, Sanchez claims reversal is required because Judge Harrington failed to adhere to the terms of the OTSC issued on July 25, 2011, which required defendants to file a response by the date provided in the OTSC. We disagree.

On August 8, however, the parties agreed to consolidate Sanchez's OTSC with defendants' summary application to confirm the award. Therefore, any claim that defendants failed to file an appropriate response to the OTSC exalts form over substance concerning proceedings which Sanchez, by stipulation, agreed could be consolidated.

A

ppeal dismissed.

1 N.J.S.A. 2:24-1 to -11 has, since 2003, applied only to collective bargaining agreements or a collectively negotiated agreement. N.J.S.A. 2A:24-1.1.