FRANK I. FIAMINGO, SR v. HOOPER HOLMES, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

FRANK I. FIAMINGO, SR.,

Complainant-Appellant,

v.

HOOPER HOLMES, INC.,

Respondent.

________________________________________________________________

July 15, 2015

Submitted February 2, 2015 Decided

Before Judges Espinosa and Rothstadt.

On appeal from the New Jersey Division on Civil Rights.

Frank I. Fiamingo, Sr., appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division on Civil Rights (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Farng-Yi D. Foo, Deputy Attorney General, on the brief).

PER CURIAM

Frank I. Fiamingo, Sr. filed dual complaints with the United States Equal Employment Opportunity Commission (EEOC) and the New Jersey Division on Civil Rights (DCR), alleging his former employer, Hooper Holmes, Inc. (Hooper), discriminated against him based upon his age and disability. The EEOC determined that further investigation would not establish a claim of discrimination under the applicable federal statutes. DCR adopted the EEOC's findings. Fiamingo appeals from the decision set forth in DCR's letter of April 10, 2012, denying his request that the Division review the findings of the EEOC to determine whether further investigation was required to ensure the EEOC's decision comports with the legal standards governing the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. For the reasons that follow, we affirm.

Fiamingo was fifty-one years old when he began working for Hooper as the Director of Financial Reporting and Compliance in October 2005. In November 2006, Fiamingo began to take time off from work to attend to the health problems of his wife and son and his own medical condition. On November 16, 2006, Hooper's human resource department requested that Fiamingo complete the forms necessary for his leave to be considered under the Family Medical Leave Act ("FMLA"), 29 U.S.C.A. 2601 to -54. By letter dated December 29, 2006, Hooper notified Fiamingo he was eligible for twelve weeks of FMLA leave within a twelve-month period, starting November 17, 2006.

Thereafter, the time Fiamingo took off from work exceeded the allowable amount of FMLA leave and he did not return to work after September 19, 2007. By letter dated September 27, 2007, Hooper informed Fiamingo that his position was being eliminated "due to business necessity," and, as a result, his employment would be terminated on September 28, 2007.

On October 11, 2007, Fiamingo filed a charge of discrimination against Hooper with the EEOC, alleging Hooper terminated his employment based on his disability and age in violation of the Americans with Disabilities Act of 1990 and the Age Discrimination in Employment Act of 1967.1 In his EEOC intake questionnaire, Fiamingo stated

I feel the termination was both retaliatory and disability/age discriminatory. My employer quickly determined that my job could be called a work force reduction if they executed the termination on September 28, 2007, along with other work force reductions. I was never notified that my job could be part of a workforce reduction; I believe the employer felt this was their opportunity to get a disabled person off the payroll.

Fiamingo further alleged his employer terminated him to replace him with a younger employee. He contended his discrimination claim was supported by the fact he received an award for his performance, yet was denied an annual pay increase. He claimed his employer wanted to terminate him before November 2007, because it assumed he would take additional FMLA leave. He stated further that he was approaching his second anniversary at Hooper, which would have entitled him to long-term disability benefits.

Fiamingo elected to "dual-file" his charge with the DCR to preserve his rights under the LAD, N.J.S.A. 10:5-1 to -49. He signed the "Charging Party Determination as to Charge Processing by NJDCR" ("Determination") and the "Addendum to Charge of Discrimination" ("Addendum"). In executing the Determination form, Fiamingo acknowledged the following

I understand that NJDCR will not begin any active processing of my charge until the closure of my charge by EEOC. At that time, NJDCR will review the EEOC findings to determine whether NJDCR investigation is necessary. In either event, I will maintain my rights to file a legal action in NJ Superior Court under the New Jersey Law Against Discrimination. Such private lawsuits must be filed within two years of the date of alleged violation.

Fiamingo submitted various documents to the EEOC to support his allegations, including: copies of job advertisements which, he contended, were for positions at Hooper that were either similar to his former job or required experience similar to his; a document described as a "[r]ecognition of family health issues" from Hooper's Chief Executive Officer; copies of an award he received in April 2007; his September 27, 2008 termination letter, and various handwritten notes.

Hooper responded to Fiamingo's charge by letter dated March 31, 2008, in which it stated Fiamingo's termination was a result of a company-wide reduction in force; that Fiamingo was not replaced with a younger employee; and Fiamingo's job responsibilities were allocated to the then current employees of the finance department. The letter also asserted Hooper had the right to terminate Fiamingo due to the fact he took leave in excess of the time allowed under the FMLA. According to Hooper's records, Fiamingo took 14.5 days of leave between November 17, 2006, and April 13, 2007, which was not formally designated as FMLA leave. Fiamingo then took continuous leave from April 20, 2007, through August 30, 2007, which was designated as FMLA leave. During this time, Fiamingo missed approximately ninety-seven days of work which, Hooper noted, exceeded the sixty days allowed under the FMLA.

By letter dated August 11, 2008, Fiamingo responded, stating Hooper failed to identify the outside contractor who assumed his duties during his leave and failed to address the job postings he had submitted. He further maintained that Hooper's statement that Fiamingo's job responsibilities were delegated to existing employees was not possible as none of the employees possessed the necessary expertise to perform those functions. Fiamingo's letter states he has attached new documents showing the communications and actions of certain Hooper personnel covering a period in October to November 2006, when he was first advised to take FMLA leave and "suspected" Hooper was planning to terminate his employment "solely due to [his] absence due to family leave." His summary includes descriptions of hours he worked and the duties he performed to complete a SEC filing, his complaints that he did not receive office furniture he requested, and his dissatisfaction with a "mediocre" increase in compensation.

On November 6, 2008, the EEOC mailed Fiamingo a Dismissal and Notice of Rights. The notice advised him the EEOC was closing its file on Fiamingo's charge for the following reason: "Based upon its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes."

The notice informed Fiamingo he had ninety days from receipt of the notice to file a lawsuit "under federal law based on this charge in federal or state court." It also stated, "[t]he time limit for filing a suit based on a state claim may be different."

Fiamingo sent a letter dated November 18, 2008, to DCR,2 in which he stated,

I am requesting / authorizing the NJ Division of Civil Rights to investigate this case on my behalf. I am not satisfied with the investigation that was performed by the EEOC, for the reasons stated below

1. I requested a meeting with the

Investigator on a number of occasions and was told I would only be brought in for a meeting if they felt it was needed.

2. I provided evidence showing the

Employer was trying to fill my position, even though this position was eliminated due to business necessity.

3. The only evidence provided by

Hooper Holmes, Inc. was a schedule I prepared to track my time while on Family Leave.

According to the letter, Fiamingo provided DCR "all of [his] evidence, including all correspondence with the EEOC Investigator."

On May 5, 2010, Fiamingo wrote a letter addressed to both the EEOC and DCR, requesting reconsideration of the EEOC's decision and reiterating his earlier arguments. The EEOC denied this request by letter dated May 27, 2010, stating

The basis for your request has been thoroughly reviewed. As you have not provided substantial new and material evidence that was not previously considered and which may have affected the outcome of the Commission's investigation, nor have you established that there was misconduct on the part of the Commission or an error in the interpretation of the applicable law, your request for reconsideration is denied.

On September 27, 2010, DCR responded to correspondence Assemblyman Wayne P. DeAngelo sent to the Attorney General on behalf of Fiamingo. In this letter, DCR stated it had requested the EEOC file in response to a previous reconsideration request from Fiamingo and the file had only recently been received. DCR advised that the file would be thoroughly reviewed and Fiamingo would receive a determination as to whether the DCR would reopen the case for additional investigation.

On October 6, 2010, Fiamingo sent a letter to DCR outlining the "legal precedents" supporting his complaint. He again reiterated his evidence as to Hooper's discriminatory conduct.

By letter dated April 10, 2012, the Deputy Director of DCR denied Fiamingo's request that it review the findings of the EEOC to determine whether further investigation of Fiamingo's discrimination charge was "warranted to ensure the EEOC's decision comports with legal standards governing [LAD]." The letter set forth detailed reasons for the denial of Fiamingo's request. The letter described DCR's practice when charges are dual filed. As Fiamingo acknowledged in executing the initial DCR Determination form, DCR "defer[s] to the EEOC's investigation, and will review a no cause finding issued by the EEOC for good cause shown to ensure the decision comports with legal standards set forth in the LAD."

After citing the grounds for reconsideration set forth in N.J.A.C. 13:4-7.4(a), the Deputy Director advised that none of the standards had been satisfied. The Deputy Director reviewed the documents in the file, which included the approval of Fiamingo's request for FMLA leave, the history of his absences and notes from physicians, and the last prognosis, which advised Hooper that Fiamingo would be unable to return to work until December 28, 2007. The Deputy Director observed that Hooper's time records show Fiamingo was on leave for approximately 119.4 days from November 17, 2006, through September 28, 2007 and missed approximately 97 days of work between April 20 and August 30, 2007.

The Deputy Director reviewed legal principles applicable when an employee requires more leave than that afforded by the FMLA and found Fiamingo's "absences far exceeded the level required as a reasonable accommodation, and [Hooper] satisfied its burden to show that the extension of additional leave to [Fiamingo] would have represented an undue hardship." The Deputy Director stated, "Simply put, [Fiamingo] does not give enough information herein to show that any of the standards set forth [in N.J.A.C. 13:4-7.4(a)] have been satisfied to warrant reopening the case for additional investigation pursuant to LAD criteria." The Deputy Director added that Fiamingo also failed to submit any information other than what the EEOC already considered upon his request for reconsideration.

On May 29, 2012, Fiamingo filed a complaint against Hooper in Somerset County Superior Court, which included the discrimination allegations in his EEOC and DCR complaints. The complaint was dismissed on August 24, 2012.

After additional correspondence with the DCR, which included a lengthy memo to the Director of the DCR, reiterating his case and alleging errors, improprieties, and illegal activities committed by the EECO and DCR, Fiamingo filed this appeal.

The point headings in Fiamingo's brief consist of factual assertions,3 which can be distilled into two legal arguments: (1) DCR erred in finding he did not establish good cause to reopen his case, and (2) DCR's delay in reviewing the EEOC's decision precluded his suit in Superior Court. After reviewing these arguments in light of the record and applicable legal principles, we conclude that neither has merit.

I.

N.J.A.C. 13:4-7.4, which governs motions for reconsideration of decisions rendered by DCR, states in pertinent part

(a) Any party may, within 30 days after the service of a finding of probable cause or no probable cause or other final order of the Director, file a motion for reconsideration seeking review of the agency's decision and/or the reopening of the record for further investigation. The motion shall be in writing and state the grounds upon which relief is sought. . . . The Director may grant such motion and vacate or modify the order, and/or reopen the record upon showing of the following

1. Mistake, inadvertence, surprise, or excusable neglect;

2. Fraud, misrepresentation or other misconduct of an adverse party;

3. Newly discovered evidence, which the moving party can demonstrate is reasonably likely to change the final decision of the Director and which by due diligence could not have been discovered in time to be presented at the hearing or during the investigation of the matter; or

4. Any other reason consistent with the public policy of the Law Against Discrimination or Family Leave Act and in the interest of justice.

[N.J.A.C. 13:4-7.4(a).]

Fiamingo claims he met all four standards for reopening his case, N.J.A.C. 13:4-7.4(a)(1) to (4), by submitting proof that the EEOC failed to conduct a proper investigation, the DCR failed to review his case on a timely basis, and both agencies ignored new evidence. We disagree.

Our review of an administrative agency decision is limited in scope. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not disturb an agency's decision absent a finding that it was "arbitrary, capricious, or unreasonable." Ibid. Although limited, our review is not "'perfunctory . . . it calls for careful and principled consideration of the agency record and findings.'" Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988) (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). Thus, an agency's finding must be articulated "in a manner that will facilitate judicial review." In re Vey, 124 N.J. 534, 543-44 (1991).

The thrust of Fiamingo's argument is that he is dissatisfied with the way the investigation was conducted and the way the evidence was weighed. For example, he contends that Hooper's claim his employment was terminated due to a reduction in force was refuted by the evidence he presented regarding job postings and, further, that his claim was not refuted by the evidence Hooper submitted regarding the amount of leave he took. These contentions do not meet any of the standards in N.J.A.C. 13:4-7.4(a) and are ultimately unavailing.

In his statement of reasons, the Deputy Director set forth the applicable legal principles and cited evidence in the record that supported a finding that Fiamingo's employment was terminated because an accommodation of his request for additional leave would have represented an undue hardship for Hooper. The Deputy Director found Fiamingo failed to present "enough information to warrant reopening the case for additional investigation pursuant to LAD criteria" and also stated he failed to present new information beyond that already reviewed by the EEOC.4

II.

Fiamingo also argues that, as a result of the DCR's delay in reviewing the EEOC decision, his right to file a suit in Superior Court expired. This argument lacks sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), beyond the following brief comments.

Fiamingo had a choice of forums for his discrimination claim, Wilson v. Wal-Mart Stores, 158 N.J. 263, 269 (1999), and elected to pursue an administrative remedy rather than file suit. N.J.S.A. 10:5-27 provides that, while that remedy is pending it is "exclusive; and the final determination therein shall exclude any other action, civil or criminal, based on the same grievance of the individual concerned." Fiamingo could have withdrawn his complaint "at any time provided that the DCR has not made a final determination," Wilson, supra, 158 N.J. at 270, to pursue a judicial remedy, subject to the two-year statute of limitations. See Montells v. Haynes, 133 N.J. 282, 292 (1993). Instead of pursuing this option, he waited and filed his suit in Superior Court on May 29, 2012, over two years after the statute of limitations barred his claim.

The EEOC dismissal and notice of rights explicitly advised Fiamingo of his right to bring suit based on his federal claim within ninety days and that the time limit on a state claim might be different. Further, it bears repeating that when Fiamingo dual filed his discrimination charge, he acknowledged that DCR would not process his charge until EEOC had concluded its review and that he maintained the right to file an action under the LAD in Superior Court that "must be filed within two years of the date of alleged violation."

In sum, we conclude the Deputy Director's determination that Fiamingo failed to present good cause for reconsideration of his request to reopen the investigation was supported by adequate evidence in the record and was not arbitrary, capricious or unreasonable.

Affirmed.

1 Fiamingo also claimed he was terminated in retaliation for complaints he made to his supervisor regarding second-hand smoke in a company stairwell.

2 The parties disagree as to when DCR received Fiamingo's request for a review of the EEOC's decision. Fiamingo states he sent his first request on November 18, 2008 and a second request in March of 2009. DCR did not process his request until September 2010.

3 Agency's Delayed Review And Decision (3.5 Years) (Point I); Agency's Failure To Address Direct Evidence Of Employer Placing Job Ads On Careerbuilder Website (Point II); Agency's Failure To Review/Address The Only Termination Reason Provided To Appellant[,] Reduction-In-Force (Point III); Agency's Negligent Omission[,] To Require The Respondent To Provide Evidence Of The Company-Wide Reduction In Force (Point IV); Respondent's Fraudulent Submission Of Two Versions Of Statement Of Positions (Redacted And Completed Versions) (Point V); Agency's Failed Attempt To Support The Undisclosed Termination Reason Of 37 Excess Days Off (Point VI); Agency's Failure To Review/Address "Prima Facie Evidence" (Point VII); Agency's Failure To Identify/Address Obvious "Harmful Errors" In EEOC Documents, I.E. (Recommendation For Closure) (Point VIII); Agency's Decision Letter Of April 10, 2012[,] Includes Numerous Major Flaws (Point IX); Agency's Tampering Of The Evidence (Point X).

4 The only "newly discovered evidence" Fiamingo identifies in his brief consists of documents pertaining to Hooper's reduction in force, which were not submitted to the DCR until months after it denied his request for review. The remainder of the evidence Fiamingo discusses in his brief was submitted to the EEOC and DCR on multiple occasions.