On certification to the Superior Court, Appellate Division.
For modification and affirmance -- Chief Justice Wilentz and Justices Sullivan, Pashman, Clifford, Schreiber, Handler and Pollock. For reversal -- None. The opinion of the Court was delivered by Schreiber, J.
Complainant, Bonnie Goodman, filed a complaint against London Metals Exchange, Inc. (London Metals), its owner, Dr. Merrill Gellis, and its office manager, Irene Schoen, with the Division on Civil Rights alleging denial of a job as field representative because of her sex. See N.J.S.A. 10:5-1 et seq. At the conclusion of a hearing, the hearing examiner found that discrimination had been proven and recommended that she be offered the next available field representative position and awarded back pay at the rate of $150 per week plus $750 for humiliation, pain and mental anguish. The director of the Division increased the back pay to $175 per week with interest at the rate of 8% per annum and otherwise adopted the hearing examiner's recommendations.
On respondents' appeal the Appellate Division affirmed with the exception of the provision awarding back pay. Finding that the complainant had been unwilling to accept jobs which were available and paid less than $135 per week, the Appellate Division concluded that back pay damages should be reduced by $135 per week which complainant could have earned had she
accepted one of the available jobs. In addition, the court ordered the back pay award reduced by the actual earnings during the period in question. The Division on Civil Rights and complainant petitioned for certification and respondents cross-petitioned. We granted both petitions. 84 N.J. 446, 447 (1980).
The respondents' contentions have centered on the appropriate burden of proof in a discrimination case and complainants' failure to meet that burden. The complainants' concern is the propriety of mitigation in the computation of lost wages. We turn first to the facts.
Dr. Merrill Gellis, a dentist, formed London Metals in October 1973 to purchase gold alloys and silver amalgam accumulated by dentists in the course of their business. After soliciting dentists by telephone, the company would send field representatives to those dentists who had indicated a willingness to sell the scrap metal. The business commenced on a small scale. Dr. Gellis's wife and son traveled in the field and Irene Schoen did the phoning. Dr. Gellis supervised the operation while continuing to carry on his dentistry practice, both being conducted at his dental office in Ridgewood. The business grew. In a short time there were several telephone solicitors and field representatives. Irene Schoen became the office manager. In the early days field representatives primarily visited dentists in New Jersey. Visits to dentists were infrequent because of the substantial amount of time required to accumulate a sufficient amount of material for sale. Thus it became necessary to extend the scope of operations into wider geographical areas. Field representatives would travel substantial distances and return after one or two weeks on the road.
The turnover rate was high among field representatives and the company frequently advertised for help. In line with this policy it placed an advertisement in the Bergen Record of Sunday, July 27, 1975, seeking field representatives. The advertisement did not reveal the company name or address, but suggested that applicants telephone a certain number. On
Monday, July 28, complainant, Bonnie Goodman, who was then living in an apartment in Hackensack with her mother, Marie, telephoned London Metals' office in response to the advertisement. Although there was a sharp conflict in the testimony with respect to what occurred thereafter, the hearing examiner and director accepted the complainant's version which follows.
Bonnie Goodman said that, after identifying herself to the woman answering the phone, she was told that the position involved extensive travel. Miss Goodman replied that she was accustomed to traveling in her previous occupations in real estate sales, district supervision and personnel work. The woman twice more emphasized the need to travel and then told her that the position required a knowledge of precious metals. When Miss Goodman asked how much knowledge was required, the woman responded that a person would have to know all about metals, and that the experience Miss Goodman had related was not sufficient. The conversation ended.
Miss Goodman suggested to her mother, who had a knowledge of precious metals, that she apply for the position. Mrs. Goodman telephoned and a woman who answered responded that the position involved extensive travel. Mrs. Goodman replied that her previous jobs had involved travel, and that she was a widow with no young dependents. She was then told that a knowledge of precious metals was required. When Mrs. Goodman told her of her experience with precious metals, the woman responded that her knowledge was insufficient, and hung up the phone.
Miss Goodman, believing that she had been discriminated against because she was a female, phoned the Division on Civil Rights and arranged for an appointment on Wednesday. Her mother and she visited the Division's office and lodged a complaint. A male enforcement chief in the Division telephoned London Metals for an interview. He related that, after a discussion of the travel requirements, an interview was scheduled despite his assertions that he had no sales experience. No mention was made of metals.
Further investigation by the Division revealed that a field representative position was filled by a male on August 4, 1975. Moreover, although three females had been hired as field representatives between August and November 1973, all had left by December 1973. From January 1, 1974 until the hearings on May 31, 1978, London Metals had hired 51 males as field representatives and no females. Peggy Bracco who had worked as a field representative in 1973 testified that Dr. Gellis had initially believed females were preferable as field representatives because "women would have an easier time getting in the door of a dentist," most of whom were men. However, he changed his opinion primarily because women were reluctant to be away from home for four or five days and decided he would not hire any more females as field representatives.
London Metals' version of its hiring practices and relations with the Goodmans differs substantially from that described in the complainant's case. The respondents' evidence consisted of the testimony of Dr. Gellis, Irene Schoen, Celeste Dahlin who accepted incoming calls for interviews, a field representative, and two telephone solicitors. Their testimony accounts for only one conversation on July 28, 1975, presumably with Bonnie Goodman, in which she became nasty and abusive and, upon being denied an interview, threatened that "you have not heard the last of it." This was the only occasion upon which an interview had ever been refused. The more important job qualifications were a pleasant personality, good appearance, articulateness, and a willingness to travel. No technical knowledge of precious metals was required. Moreover, although the company had always been willing to engage females as field representatives, very few sought job interviews and, after the interview, those few refused the job.
The hearing examiner's recommended findings of facts and conclusions of law included an extensive review of all the evidence. Having found that Bonnie Goodman's version of the episode was credible, the examiner concluded that respondents had discriminated against her because of her sex. The suggested
remedy included back pay in the amount of $12,353. This was computed at the rate of $150 per week for the period from July 28, 1975 to December 31, 1977, less actual earnings. He also recommended she be awarded $750 for humiliation, pain and mental anguish and be offered the next field representative position.
The director of the Division on Civil Rights concurred in the findings of fact and conclusions of law and ordered the recommended remedy with two modifications. Since the rate of pay for field representatives had changed in June 1975 from $150 per week to straight commissions, the Director averaged the salaries of field representatives between July 28, 1975 and December 31, 1977, and applied that figure, $175 per week, in determining the amount of back pay. He also added interest at the rate of 8% per annum to be computed until the date complainant was offered a position as a field representative.
The Appellate Division modified the back pay award by reducing the weekly rate of $175 to $40. It reached that conclusion because Miss Goodman refused to consider other available employment opportunities that did not pay at least $135 a week. Moreover, the Appellate Division held that the award should cover the period from the date of discrimination until the date of her employment in an equivalently paying position. It ordered the amount due further reduced by sums actually earned.
Judicial appellate review of an administrative agency's factual determinations is circumscribed. If there is sufficient credible competent evidence to support those conclusions, the appellate tribunal must uphold those findings. Jackson v. Concord Co., 54 N.J. 113, 117-118 (1969); Clover Hill Swimming Club, Inc. v. Goldsboro, 47 N.J. 25, 36 (1966). Though an independent de novo ...