On appeal from the a Final Determination of the Director of the Division on Civil Rights.
Baime, Conley and Villanueva. The opinion of the court was delivered by Conley, J.A.D.
[271 NJSuper Page 441] Defendant Gilford Park Yacht Club was found by the Director of the Division on Civil Rights to have violated the Law Against Discrimination by denying Susan Maczik membership in its club on the basis of her sex.*fn1 It does not challenge that finding. Additionally, the Director found that she was as well subjected to a boycott against her business by "officers and members of the Yacht Club." Defendant does not challenge that factual finding either. Rather, the Club claims that any participation in such
discriminatory activities was by individual members and/or officers or trustees, not the Club per se and, accordingly, contends that such activities cannot be imputed to the Club. Additionally it claims awards for losses in lottery sales, catering business, and pain and humiliation, are not supported by the record. Finally the Club challenges on various grounds an award of punitive damages. We affirm all but the award of punitive damages and hold that the Director lacks statutory authority to award such damages.
We need not recite in detail the substantial evidence that supports the findings of both the Administrative Law Judge and the Director. As we have indicated, the Club concedes that in violation of N.J.S.A. 10:5-12(f) and (d) it denied plaintiff membership because she was a woman and based upon a 1886 amendment to the Club's bylaws restricting membership to males. And, suffice it to say the record amply supports the ALJ's findings, and the Director's separate findings, that after plaintiff filed a complaint with the Division on Civil Rights, she and her husband were subjected to a series of retaliatory actions, including the boycotting of her delicatessen business and several instances of "verbal threats and other abuse." We see no basis for not deferring to both the ALJ and the Director in their numerous, amply supported, findings. E.g. Clowes v. Terminix Intern. Inc., 109 N.J. 575, 588, 538 A.2d 794 (1988); Gimello v. Agency Rent-A-Car Systems, 250 N.J. Super. 338, 355, 594 A.2d 264 (App.Div.1991). Our own review of the entire record simply does not leave us "with the feeling that the Director's finding[s] [are] clearly . . . mistaken one[s] and so plainly unwarranted that the interests of Justice demand intervention and correction . . . ." Clowes, 109 N.J. at 588, 538 A.2d 794 (quoting State v. Johnson, 42 N.J. 146, 162, 199 A.2d 809 (1964)). Moreover there exists ample statutory authority for the compensatory damages. N.J.S.A. 10:5-17; and see Anderson v. Exxon Co., 89 N.J. 483, 502-503, 446 A.2d 486 (1982); Zahorian v. Russell Fitt Real Estate Agency, 62 N.J. 399, 413, 301 A.2d 754 (1973); Jackson v. Concord Co., 54 N.J. 113, 126-27, 253 A.2d 793 (1969); Gimello v. Agency Rent-A-Car Systems, 250 N.J. Super.
Substantially for the reasons set forth by the Director in his December 27, 1991, 46-page written decision, supplemented by his March 9, 1992, 15-page written decision, and for the reasons set forth by Administrative Law Judge Futey in his May 13, 1991, 46-page written initial decision, we affirm the award of $4,070 in economic compensatory damages, the award of $10,000 pain and humiliation damages, the statutory treble damages of $12,516 relating to the economic losses, and the statutory penalty of $2,000 imposed pursuant to N.J.S.A. 10:5-14.1a. As to the economic damages, we note that the Director's Conclusion, contrary to that of the ALJ, that plaintiff demonstrated not only loss of sales and loss of lottery ticket profits, but loss of catering business as well, was not premised upon any rejection of the ALJ's credibility determinations. It, rather, reflects a view that the six catering jobs she had performed for the club or its members in 1987, which ceased after January 1988 and in response to her complaint, provided sufficient "pattern or regularity" to support an award for loss of profits from that boycotted catering business. Plainly this Conclusion is supported by the record and within the Director's expertise.
As to these damages, however, we briefly comment on the Club's belated claim that the evidence is insufficient to impose vicarious liability upon it. The Club did not raise this issue at any point during the proceedings before the ALJ nor prior to the Director's final decision. The issue was not raised until after that decision and within the context of a motion for reconsideration. Thus, it was well within the Director's discretion to reject the issue as "untimely" and to further reject the Club's attempt to raise the issue because it had failed to provide those portions of the transcript which related to that issue. See Matter of Morrison, 216 N.J. Super. 143, 158, 523 A.2d 238 (App.Div.1987).
In any event, the Director did consider the issue substantively and said:
there has been established sufficient evidence on the record to hold the Yacht Club liable for the economic damages resulting from the boycott against Maczik's delicatessen in view of the fact that the club's officers and key members personally organized and promoted such boycott. The ALJ found, and the Director adopted his findings that, Joseph Piotrowski, an officer of the club, "was the major instigator in attempting to destroy Maczik" and used "whatever power he had at his command" to "exhort others to carry out "similar sex discrimination actions" against her. Susan Maczik v. Gilford Park Yacht Club, supra, slip op. at 12-19, 37 [1991 WL 415520]. He was part of a "hard-core of antagonists who were 'hell-bent on humiliating and destroying' her 'by whatever means' and who 'conducted a malicious and deliberate campaign' against her." Id. Based on the Director's prior findings that the club, through its officers and members, instituted and engaged in the boycott against her, the Director concludes that the club is liable to Maczik for her damages resulting from such boycott.
There was ample evidence to support these findings. Moreover, we note that there was evidence that the actions and involvement of the Club's trustees and officers was not simply limited just to Joseph Piotrowski or one or two other trustees or officers acting in their individual capacities. In admitted response to Susan Maczik's complaint, the Board of Trustees ordered her husband to appear before it and answer charges, including that he allowed his wife to act contrary to the best interest of the Club. The Board found him guilty of the charges and fined him $50 and, when he failed to pay the fine, removed his boatslip and membership privileges. Further, as to one of the more egregious acts of abuse, i.e. the Monetti bachelor party incident, Monetti testified that the Club had conducted a special meeting of its officers to consider whether to permit the party when it was discovered complainant would be catering. After the special meeting, he was told to get his food someplace else. When he refused, he was warned to get a police escort. Additionally, Joseph Simpson, whose family had been members for 40 years, and who had questioned "the Club leadership" about the status of the civil rights complaint at the monthly general membership meetings and voiced concern about the treatment of the Macziks, was "finally told that he was an 'asshole' and to sit down." When Simpson wrote a letter to the Club's attorney in February 1990 expressing
concern over the Club's handling of the complaint, he was charged with "conduct unbecoming a member," found guilty, fined $50, assessed a $4500 lawyers' fee for the Club's attorney and barred from entry to the dock area.
There was, thus, ample evidence to establish sufficient involvement on the part of the Club to justify the award of compensatory damages against it. Although within the context of vicarious liability of an employer in a hostile workplace sexual harassment claim, we ...