On appeal from New Jersey Department of Law and Public Safety, Division on Civil Rights.
Fritz, Bischoff and Morgan. The opinion of the court was delivered by Fritz, P.J.A.D.
[169 NJSuper Page 537] In this sex discrimination matter respondents appeal from an order of the Director of the Division on Civil Rights (Director) adopting the hearing examiner's recommended findings of fact and conclusions of law determining that respondents unlawfully discriminated against complainant in employment at respondent college on account of sex, in violation of the Law Against Discrimination, N.J.S.A. 10:5-4 and 10:5-12(a). The order awarded complainant compensatory damages including pain and humiliation damages, directed respondent college to cease and desist from discrimination and imposed certain sanctions and directions in connection therewith. Respondents contend that (1) the Director of the Division erred in his consideration and use of statistics; (2) the evidence was insufficient to support the findings of discrimination; (3) the award of damages was improper, and (4) the affirmative action aspect of the order was improper.
We are wholly satisfied that the finding of illegal discrimination might reasonably have been reached from sufficient credible evidence in the whole record, and as to that we affirm. Mayflower Securities v. Bureau of Securities , 64 N.J. 85 (1973); Flanders v. William Paterson College of N.J. , 163 N.J. Super. 225, 230-231 (App. Div. 1976).
We are also satisfied that the award of damages for pain and humiliation was proper, Zahorian v. Russell Fitt Real Estate Agency , 62 N.J. 399 (1973), and that the amount awarded was entirely reasonable. Castellano v. Linden Bd. of Ed. , 79 N.J. 407 (1979), is entirely distinguishable on the facts.
There are two areas in which we believe the order must be modified.
First, we are of the opinion that the compensatory damages are overstated. We are aware that public policy arguments exists reducing the burden of mitigation of damages in the civil rights context, but New Jersey has not gone that far, nor do we here. Harvard v. Bushberg Bros. , 137 N.J. Super. 537, 542 (App. Div. 1975), petition and cross-petition for certif. granted, 71 N.J. 493 (1976).*fn1 We do not doubt, as suggested by the hearing officer below, that in ordinary contract actions defendant has an evidential burden with respect to the obligation of plaintiff to mitigate damages. Sandler v. Lawn-A-Mat Chem. & Equip. Corp. , 141 N.J. Super. 437, 455 (App. Div. 1976), certif. den. 71 N.J. 503 (1976). But the civil rights action is not an ordinary contract action. The contract "product" is not a fungible, like others available to be bought and sold on the open market. Rather it concerns a person, with his or her abilities and inclinations, his or her strengths and frailties, all in the sensitive context of alleged discrimination and the frustration, acrimony and bilaterally retributive pressures generally implicated therein. In such a situation
we think sound application of a mitigation doctrine requires a fine balancing by the trier of the facts: a reasonable and responsible effort on the part of the one wronged to replace that of which that person has been deprived, against proof in the whole record from whatever source respecting the availability of replacement. We believe both parties should share this burden, but neither should be overwhelmed with it. Justice will be best served in these cases by a determination soundly grounded in the "feel" of the proofs.
We have canvassed the record with these guidelines in mind. Two things appear. First, there is some evidence of a dearth in available teaching positions. Secondly, respondent did essentially nothing to seek out any that were there. Remembering that the complaint was filed in February 1974 and that the hearing officer reasonably found (and was supported in the finding by the Director) that the discrimination, for our purposes, dated from "the beginning of the 1973 Fall semester (September 1973)," we listen to respondent telling what she did:
Q. Ms. Talman, could you describe to Mr. Wildstein your reaction to the problems you had encountered at Burlington County College?
A. * * * I was completely discouraged, I felt once again I've missed an academic year, and I did talk to the husband of a friend of him who was teaching at Gloucester County, just very informally, and he said, "No, that ...