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Director v. Slumber Inc.

Decided: February 14, 1979.


On appeal from the Director of the Division on Civil Rights.

Conford, Pressler and King. The opinion of the court was delivered by Pressler, J.A.D. Conford, P.J.A.D., Retired (temporarily assigned), concurring and dissenting in part.


This is an appeal from an order entered by the Director of the Division on Civil Rights (Division) finding the respondents to have been guilty of acts of proscribed discrimination and directing specific relief against them.

The corporate respondent is the owner and operator, under franchise, of a Holiday Inn Hotel located on Route 4 in Fort Lee, New Jersey. Respondent William J. Mitchell is its general manager and respondent Lillian Chain is its front desk supervisor. The gravamen of the complaint against them is that they practiced, in violation of N.J.S.A. 10:5-4 and 10:5-12(f), the discriminatory policy of generally assigning all black patrons to second-floor rooms,

withholding from them, on the basis of race only, room accommodations on the other three floors of the hotel. That this conduct, if proved, would constitute a violation of N.J.S.A. 10:5-12(f) is self-evident.*fn1 The hearing examiner, whose recommended findings of fact and conclusions of law were accepted by the Director, made detailed findings supporting his conclusion that this basic allegation was proved. We are satisfied that those findings were adequately supported by sufficient credible evidence in the record as a whole and hence not subject to appellate interference. See, e.g., Jackson v. Concord Company , 54 N.J. 113, 117 (1969). We, therefore, reject respondents' contention on this appeal that the decision was against the weight of the evidence.

Respondents' remaining grounds of appeal are addressed both to procedural and remedial issues whose resolution requires a brief statement of factual background.

The discriminatory policy of consigning blacks to second-floor rooms came to the attention of the Division in February 1976 when one Paul Thurber, a desk clerk employed by respondent, filed with it an affidavit describing respondents' practices in this regard. The Director of the Division filed a complaint in his own name*fn2 against the corporate respondent in April 1976, charging both the act of discrimination and requesting "whatever relief is provided for by law, including but not limited to a remedy for the discrimination aforementioned." A finding of probable

cause was made by the Director in May 1976 following further investigation by him which included "testing" by four Division field representatives. Respondents' answer was duly filed denying all material allegations and conciliation proceedings ensued as required by N.J.S.A. 10:5-14. Not satisfied with the remedial scope of respondents' offered "consent order," the Director, on July 1, 1976, advised respondents in writing that conciliation had failed and that the matter would proceed to public hearing.

The public hearing was held over the course of two days, the first in December 1976 and the second in the following month. Among the complainant's witnesses were two black couples, Barry Johnson and his wife Margaret, and Robert Guy and his wife Louise. Mr. Johnson is a personnel supervisor employed by the Celanese Corporation and his wife is a registered nurse employed by Englewood Hospital. In early 1976 Mr. Johnson was transferred from North Carolina to corporate headquarters in New York City, and he and his wife, later joined by their two children, stayed at the Holiday Inn in Fort Lee continuously from February 1, 1976 to March 24, 1976 while seeking permanent living arrangements. Mr. Guy is an art director employed by the House of Ronnie in New York City. He and his wife stayed at the Holiday Inn on six or seven separate occasions between July and November 1975. Each of the couples had seen newspaper articles in the late spring of 1976 regarding the Holiday Inn's alleged discrimination and had written to the Director advising him of their own experiences, which supported those allegations. The Director never advised respondents of these communications or of his intention to call these four as witnesses. The respondents never, however, sought any discovery available to them pursuant to N.J.A.C. 13:4-8.2(a), which discovery would undoubtedly have revealed that information.*fn3

At the conclusion of the complainant's case the deputy attorney general presenting it moved the hearing examiner for leave to amend the complaint to include the four witnesses as individual complainants. The motion was granted over respondents' objection. Ultimately the hearing examiner filed his recommended findings of fact and conclusions of law, sustaining not only the charge of discrimination but also, as part of the remedial order, proposing an award of so-called humiliation damages to each couple in the amount of $1,500. The Director in his final order accepted these recommendations.

Respondents now contend that the proceedings below were fatally defective in these respects: (1) the Director was obliged to consider the matter successfully conciliated by reason of respondents' proffered consent order, (2) the hearing was held beyond the time permitted by the Division's rules of practice, (3) the amendment of the complaint to add the four individual complainants was sought and permitted too late in the proceedings, and (4) the award of humiliation damages was improper.

We address each of these contentions not only within the framework of the applicable statutory and regulative provisions but also in the context of the broad social policy they seek to advance. At this late date in this State's history of undeviating commitment to the elimination from our society of racial discrimination in all its forms, extended discussion of that policy is hardly necessary. Suffice it to say that ...

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