DONNA ACQUAVIVA v. ELGEN MANUFACTURING INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DONNA ACQUAVIVA,

Appellant,

v.

ELGEN MANUFACTURING, INC.,

Respondent.

_____________________________

October 25, 2013

Before Judges Fasciale and Haas.

On appeal from the Department of Law & Public Safety, Division on Civil Rights, Docket No. EBO7WB-61695.

Donna Acquaviva, appellant pro se.

Giordano, Halleran & Ciesla, attorneys for respondent Elgen Manufacturing, Inc. (Joseph C. DeBlasio, of counsel and on the brief; Ryan S. Carlson, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent Division on Civil Rights (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Megan J. Harris, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Donna Acquaviva appeals from a July 21, 2011 final agency determination by the Acting Director of the New Jersey Division of Civil Rights (hereinafter "Division") finding no probable cause to substantiate her allegations that Elgen Manufacturing, Inc. (hereinafter "Elgen") engaged in gender and creed harassment, hostile work environment, and retaliation in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. We affirm.

Elgen, a sheet metal manufacturer, employed Acquaviva at-will as a probationary salesperson from March 1, 2010 to April 30, 2010. In August 2010, Acquaviva filed a verified complaint against Elgen. Acquaviva alleged that her supervisor harassed her because she was non-Jewish, designated her salesperson number as "sixty-nine" and displayed partially nude women calendars, and then terminated Acquaviva because she complained to management about this alleged harassment. Elgen disputed these allegations, argued that Acquaviva did not bring any harassment complaints to its attention, and contended that it terminated Acquaviva because she lacked product knowledge and computer proficiency. The Division then undertook its investigation.

The Division's investigator reviewed paper discovery,1 interviewed seven witnesses, and conducted a fact-finding conference. Counsel for Acquaviva, counsel for Elgen, Acquaviva, her former supervisor, and Elgen's Human Resource Director appeared at the conference. The investigator provided to Acquaviva the information that the investigator learned during the investigation and offered Acquaviva an opportunity to rebut that information; however, Acquaviva did not do so. Thereafter, the investigator issued a written report, recommending that Acquaviva's case be closed and stating that

[t]he investigation did not reveal sufficient evidence to support [Acquaviva's] allegations of discrimination based on sex or creed, or allegations of unlawful reprisal. The investigation was unable to establish that [Acquaviva] was exposed to a hostile work environment based upon sex or creed. Neither [the supervisor's] alleged inquiries and remarks regarding [Acquaviva's] creed[,2] nor the assignment of the number [sixty-nine] to [Acquaviva] as her sales number[,] rose to a level that was sufficiently severe or pervasive that [Acquaviva's] work environment became hostile or offensive. The investigation also [did] not establish that the subject calendars were displayed in the work area. Further, the investigation did not establish that [Acquaviva] engaged in any protected activity. [Acquaviva] acknowledged that she did not object or complain about [her former supervisor's] alleged inquires or remarks, the assignment of [sixty-nine] as her sales number, or the boxes of calendars kept in [the supervisor's] work area. The investigation established that [Acquaviva's] complaints to [Elgen] about [the supervisor's] management style did not constitute protected activity under the [LAD]. Finally, the investigation established that [Acquaviva] was discharged because of her inability to work harmoniously with her supervisor and because her performance after [sixty] days did not meet [Elgen's] expectations. There was insufficient evidence that [Elgen's] decision to discharge [Acquaviva] was motivated by [Acquaviva's] sex or creed, or by unlawful reprisal.

[(Emphasis added).]

The Division then determined "that there is no probable cause to credit [Acquaviva's] allegations," and closed Acquaviva's case. This appeal followed.

On appeal, Acquaviva argues primarily that the fact-finding conference is flawed because (1) the investigator failed to interview an Elgen witness telephonically at the conference, chose not to interview Elgen customers, and conducted settlement discussions untimely; and (2) a tape recorder malfunctioned. As a result, Acquaviva contends that her due process rights have been violated.

The Legislature created the Division to administer and enforce the New Jersey's civil rights laws. See N.J.S.A. 10:5-6. The Division has recognized expertise in investigating and determining the presence or absence of violations of the LAD. See, e.g., Hermann v. Fairleigh Dickinson Univ., 183 N.J. Super. 500, 503-05 (App. Div.), certif. denied, 91 N.J. 573 (1982); Sprague v. Glassboro State Coll., 161 N.J. Super. 218, 225 (App. Div. 1978). By filing her complaint with the Division rather than with the Superior Court, Acquaviva elected the forum in which her claims would be examined, taking advantage of the more expeditious administrative process. Hermann, supra, 183 N.J. Super. at 504-05. The agency's delegated functions include determining if there is probable cause "strong enough . . . to warrant a cautious person in the belief that the [LAD] has been violated." N.J.A.C. 13:4-10.2(b). Here, the Division exercised these functions properly and afforded Acquaviva all the process to which she was due.

We reject Acquaviva's contention that the investigator abused her discretion by failing to interview an additional witness telephonically during the fact-finding conference. The Division is under no obligation to convene a fact-finding conference. See N.J.A.C. 13:4-4.7(a)1 (stating that such a proceeding may be performed at the discretion of the Division). Nevertheless, if such a conference is conducted, the investigator has discretion over "which witnesses shall be heard." N.J.A.C. 13:4-4.7(b)2. Here, instead of interviewing the witness telephonically, the investigator questioned the Elgen witness after the fact-finding conference occurred and took copious notes of that interview. Thus, the investigator did not abuse her discretion by not interviewing the witness telephonically at the conference. Nor did she abuse her discretion by refusing to interview Elgen customers as witnesses after the Division determined that there was no issue related to customer complaints.

Acquaviva also argues that the investigator abused her discretion by not conducting settlement discussions at the end of the fact-finding hearing. Settlement discussions are not mandated during fact-finding conferences. See N.J.A.C. 13:4-4.7(b)8 (indicating that an investigator may allow a recess to permit settlement negotiations). The record reflects, however, that the parties had ample opportunity to discuss settlement.

We also reject Acquaviva's assertion that the malfunctioning of a tape recorder resulted in a flawed fact-finding conference. There is no obligation to record a fact-finding conference. See N.J.A.C. 13:4-4.7(b)7 (stating that the tape recording of a fact-finding conference is discretionary). Furthermore, there is no credible evidence that Acquaviva was prejudiced by the malfunctioning equipment. The investigator took detailed notes of the interviews which served as a basis for her recommendation that the case be closed.

Finally, we conclude that there exists sufficient, credible evidence in the record to support the Division's conclusions. Our review of an administrative agency decision is limited. Clowes v. Terminex Int'l, Inc., 109 N.J. 575, 587 (1988). We must defer to a final agency decision unless it is arbitrary, capricious, unsupported by substantial, credible evidence in the record, or in violation of express or implicit legislative policy. In re Taylor, 158 N.J. 644, 656-57 (1999). If we find sufficient, credible evidence in the record to support the agency's conclusions, then we must affirm even if we would have reached a different result. Clowes, supra, 109 N.J. at 588.

Acquaviva failed to demonstrate a prima facie case of a hostile work environment under the LAD, which requires her to show: (1) that the harassing conduct would not have occurred "but for" Acquaviva's gender or religion, and that (2) the conduct was so severe or pervasive that (3) a reasonable person of this gender or religion would believe that (4) "the conditions of employment are altered and the working environment is hostile or abusive." Cutler v. Dorn, 196 N.J. 419, 430 (2008) (quoting Lehmann v. Toys 'R' Us, 132 N.J. 587, 603-04 (1993)). The record shows that there was no harassing conduct. Acquaviva was questioned if she was Jewish regarding staff coverage for Good Friday. Moreover, Elgen assigned Acquaviva the number sixty-nine in the normal course of business. Five employees corroborated that any calendars were kept out of view and used for potential gifts to customers.

Regarding Acquaviva's retaliation claim, pursuant to the LAD, it is unlawful:

For any person to take reprisals against any person because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act.

[N.J.S.A. 10:5-12(d) (emphasis added).]

To establish a prima facie case of unlawful retaliation, Acquaviva must demonstrate that (1) she engaged in a protected activity with Elgen's knowledge; (2) she was subsequently terminated or suffered adverse employment actions; and (3) there is a causal link between (1) and (2). Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 548-49 (App. Div. 1995); accord Kluczyk v. Tropicana Prods., Inc., 368 N.J. Super. 479, 493 (App. Div. 2004). Acquaviva made no complaints to Elgen about sexual or religion-based harassment that is, she did not engage in a protected LAD activity that might have triggered retaliatory action. Even if Acquaviva were able to establish a prima facie case of retaliation, which she has not done, Elgen demonstrated that it had a legitimate, non-retaliatory explanation for terminating Acquaviva, and Acquaviva presented no credible evidence that Elgen's explanation was pre-textual.

We have carefully reviewed Acquaviva's arguments and the controlling law and conclude that the record amply supports the Division's determination that there is no probable cause to substantiate the allegations in Acquaviva's verified complaint. R. 2:11-3(e)(1)(D) & (E).

1 "Paper discovery" consisted of Elgen's response to Acquaviva's demand for documents, information, and answers to a harassment questionnaire.

2 Acquaviva alleged in her complaint that her supervisor questioned her if she was Jewish.