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L.W. v. Subway Restaurant

April 30, 2008

L.W. GUARDIAN AD LITEM FOR R.W. AND D.W., GUARDIAN AD LITEM FOR B.W., COMPLAINANTS,
v.
SUBWAY RESTAURANT, RUPESH TRIVEDI, OWNER, RESPONDENT, AND DIPEN PATEL*FN1 , MANAGER AND INDIVIDUALLY, RESPONDENT-APPELLANT.



On appeal from the Division on Civil Rights, Docket Nos. EL07RB-51653-E and EL07RB-51654E OAL No. CRT 6505-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 14, 2008

Before Judges S.L. Reisner and Gilroy.

Dipen Patel appeals from a final determination and order issued by the Director of the State Division on Civil Rights (Division or agency) on February 23, 2007. We affirm.

I.

Before addressing the factual background and the merits of this appeal, we consider the scope of the appeal. The Director issued a final determination on February 23, 2007, finding that Patel had committed employment discrimination in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and ordering a variety of monetary remedies. Patel filed a notice of appeal from the Director's final order on April 5, 2007. On April 9, 2007, he filed a motion before the Director for reconsideration.

Pursuant to Rule 2:9-1(a), the agency did not have jurisdiction to entertain the motion, because the underlying order was on appeal to this court. Mistakenly reasoning that "it seems expedient for the Director to rule on the motion rather than petitioning the Appellate Division to formally remand to the Division," the agency adjudicated the motion despite its lack of jurisdiction to do so. While we understand the agency's desire to act expeditiously, it was not the agency's burden to extricate appellant from his self-created procedural dilemma; rather, appellant should have filed a motion with this court for a temporary remand to permit the agency to decide his reconsideration motion.

Moreover, once the agency denied his reconsideration motion on May 18, 2007, appellant should have filed an amended notice of appeal if he sought to challenge that determination as well. Consequently, the only order properly on appeal before us is the agency's February 27, 2007 final order. However, in the interests of justice as well as completeness of the record, we have also considered the May 18 decision.

II.

We next address the procedural history and the factual record. In that connection, we cannot consider the procedural history and fact sections of appellant's brief, because they do not contain citations to the record, in violation of Rule 2:6-2(a)(3) and (4). Moreover, our review of the record itself reveals that some of appellant's factual contentions have no support in the record. We rely on the evidence in the record, and not on unsupported assertions.

On July 26, 2005, L.W., as Guardian ad litem for R.W., and D.W., as Guardian ad litem for B.W. (complainants)*fn2 , filed verified complaints with the New Jersey Division on Civil Rights. The complaints against respondents Rupesh Trivedi, the owner of a Subway Restaurant in Lawrenceville, New Jersey (Subway), and defendant Dipen Patel, the Subway's manager, alleged unlawful employment discrimination because of race in violation of the LAD. B.W. and R.W., who were minors at the time, were employed at Subway between April, 9, 2005, and July 15, 2005, and June 5, 2005, and July 15, 2005, respectively. Complainants, who are African-American, alleged that Patel had frequently referred to them as "nigger[s]" and had made other egregiously racist comments to them in the workplace, thus creating a hostile work environment and leading to their constructive discharge.

On August 29, 2005, the Division mailed copies of the complaints, and document and information requests, to respondent Patel. The letters transmitting the complaints explained that the Division required that "each of the respondents serve upon the Division on Civil Rights a written answer to the complaint within twenty (20) days after receipt of the Verified Complaint."

By October 20, 2005, Patel had not responded to the Division, prompting the Division to send Patel a second letter, which requested a response to both the complaint and the document and information request within ten days. The one page letter stated that "should [Patel] fail to submit the required information within ten days of [his] receipt of this letter, the Division on Civil Rights will take any necessary action, including issuing a subpoena, to ensure compliance."

On that same day, the Division's Trenton Regional Co-Manager Juanita Jenkins spoke to Patel, and learned that Arthur E. Swidler, Esq., was representing him. Thereafter, Jenkins left a message at Swidler's office, to which Swidler did not respond.

By November 14, 2005, the Division had not received any response from Patel or Swidler. On the same day, the Division issued a subpoena to Patel seeking the information requested by the Division's document and information request. The Division hand delivered the subpoena, serving an individual claiming to be Patel's niece, at Patel's place of business, Subway. Subsequently, on January 27, 2006, the Division mailed the subpoena by overnight mail to Patel, at Subway.

On January 31, 2006, the Division's counsel had a telephone conversation with Swidler. After Swidler stated that he represented Patel, the agency's counsel advised him that the Division required him to file an answer to the complaint and a response to the agency's document and information request. Swidler was further advised that a response to the Document and Information Request would satisfy the January 27th subpoena.

The Division's counsel confirmed this conversation in a February 3, 2006, letter, advising Swidler that the subpoena was returnable February 8, 2006, and that he should provide a response by that date. In pertinent part, the letter provided that if Swidler was unable to respond by February 8th, he should: contact Juanita Jenkins, Regional ...


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