July 20, 2010
DOROTA FISH, PLAINTIFF-APPELLANT,
POMPTON RESTAURANT ASSOCIATES, INC. T/A IL TULIPANO, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5121-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 7, 2010
Before Judges Alvarez and Coburn.
Plaintiff Dorota Fish was employed as a catering manager by defendant Pompton Restaurant Associates, Inc. t/a Il Tulipano, from July 7, 2008, through January 9, 2009, at a weekly salary of $945. She filed a wage claim against defendant with the New Jersey Department of Labor and Workforce Development, Division of Wage and Hour Compliance, to compel payment of overtime pay, calculated at one and one-half of her hourly wage for all weeks she was employed more than forty hours. See N.J.S.A. 34:11-56.4. A wage collection referee conducted a summary proceeding, concluding that Fish was not an administrative employee as defined in N.J.A.C. 12:56-7.2, as asserted by the employer, which would have exempted the employer from paying overtime. Accordingly, the referee ordered defendant to pay Fish $1586.30 in unpaid overtime wages, and to also pay an administrative fee of $158.63, and summons costs to the Commissioner of Labor and Workforce Development. That decision was appealed by the employer to the Superior Court, Law Division, pursuant to N.J.S.A. 34:11-63. The August 18, 2009 Law Division order issued after a hearing on August 6, 2009, reversed the wage collection referee decision. The trial court determined that Fish did meet the administrative employee criteria set forth in the statute and was therefore not due overtime pay. We now affirm.
As authorized by N.J.S.A. 34:11-63 and N.J.S.A. 34:11-65, the appeal to the Superior Court was conducted as a trial de novo. Both Fish and Gregorio Polimeni, the vice president and an owner of defendant, testified. The judge was also supplied a copy of the transcript of the earlier administrative hearing.
We therefore review the court's findings applying the same standard as in any other instance where the court acts as a factfinder. We affirm so long as its findings are "supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citation omitted). Findings of fact will only be disturbed if "we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Ibid. citation omitted). We accord particular deference to credibility findings, even where a trial judge did not articulate reasons in detail. State v. Locurto, 157 N.J. 463, 470, 474 (1999). We assume such findings are influenced by matters such as "observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." Ibid. (citations omitted).
Fish asserts the following as her grounds for appeal:
THE AUGUST 18, 2009 ORDER OF THE TRIAL JUDGE, WHICH REVERSED THE DECISION AND AWARD ENTERED IN FAVOR OF PLAINTIFF BY A WAGE COLLECTION REFEREE WITHIN THE DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT, DIVISION OF WAGE AND HOUR COMPLIANCE, SHOULD BE REVERSED IN ITS ENTIRETY BECAUSE DEFENDANT FAILED BOTH BEFORE THE DIVISION OF WAGE AND HOUR COM[P]LIANCE AND BEFORE THE TRIAL COURT TO MEET ITS SUBSTANTIAL BURDEN OF AFFIRMATIVELY SHOWING THAT EACH OF THE ESSENTIAL CON[DI]TIONS TO THE "ADMINISTRATIVE" EMPLOYEE EXEMPTION TO THE OVERTIME PAY REQUIREMENT UNDER N.J.A.C. 12:56-7.2 HAVE BEEN MET.
A. Defendant failed to establish that plaintiff's primary duty consisted of the performance of work directly related to management policies or general internal business operations.
B. Defendant failed to establish that plaintiff's work required the exercise of discretion and independent judgment.
C. Defendant erroneously asserted that his use of the "Catering Manager" title relative to plaintiff should allow him under the law and regulations to avoid overtime obligations toward plaintiff and the trial judge relied on defendant's erroneous reasoning in his ruling from the bench.
THE TRIAL JUDGE FAILED IN EVERY RESPECT TO PROPERLY DISCHARGE HIS DUTIES IN THIS MATTER, BASING HIS DECISION ON PURPORTED FACTS NOT IN THE RECORD BEFORE HIM, GROSSLY MISAPPLYING THE LAW, AND VIOLATING CANON 3 OF THE CODE OF JUDICIAL CONDUCT, WHICH STATES THAT A JUDGE SHOULD DISQUALIFY HIMSELF OR HERSELF IN A PROCEEDING IN WHICH THE JUDGE'S IMPARTIALITY MIGHT REASONABLY BE QUESTIONED AND WHICH PROHIBITS A JUDGE FROM AVOIDING DISQUALIFICATION BY DISCLOSING ON THE RECORD THE DISQUALIFYING INTEREST AND SECURING THE CONSENT OF THE PARTIES.
A. The trial judge erred when he based his decision on purported facts not in the record before him.
B. The trial judge erred when he misapplied the law regarding the issue of the "administrative" exemption from the overtime pay requirement.
C. The trial judge violated Canon 3 of the Code of Judicial Conduct.
D. The trial judge acted inappropriately and in a manner evincing an absence of impartiality throughout the hearing, asking leading questions of Mr. Polimeni and cross-examining plaintiff, in a transparent attempt to assist defendant in proving his case.
1. At the conclusion of defendant's case the trial judge interjected himself into the proceedings as questioner, asking Mr. Polimeni leading questions.
2. The trial judge cross-examined plaintiff, arguably badgering her, in an apparent attempt to assist defendant in proving his case.
We address Fish's first contentions as grouped together under Point I. N.J.A.C. 12:56-7.2 provides:
(a) "Administrative" means any employee:
1. Whose primary duty consists of the performance of office or non-manual work directly related to management policies or general internal business operations; and
2. Who customarily and regularly exercises discretion and independent judgment; and
3. Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity; or who performs under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or who executes under only general supervision special assignments and tasks; and
4. Who devotes less than 20 percent of his or her work to nonexempt work or less than 40 percent if employed by a retail or service establishment; and
5. Who is compensated for his or her services on a salary or fee basis, exclusive of gratuities . . . at a rate of not less than . . . $400.00 per week effective April 1, 1992.
Administrative employees are, as we have said, exempt from the overtime rules and regulations. N.J.S.A. 34:11-56a4. The trial judge found that Fish met the criteria for an administrative employee in every respect and that, as a result, no overtime wages were due.
Essentially, Fish disputes the judge's factual determination that her job performance was indeed "related to management policies or general internal business operations." N.J.A.C. 12:56-7.2(a)1. She also asserts that she did not "exercise discretion" or use "independent judgment" within the meaning of the Administrative Code. N.J.S.A. 12:56-7.2(a)2.
This was a relatively small business; Polimeni operates a banquet hall. The judge found that Fish not only booked events in the hall, as did the sales staff employed at the facility, but that she planned menus with individual customers, ensured that the chefs at the hall could comply with any special requests, had the discretion within $5 to negotiate prices with potential customers, did not have to punch in, in contrast to the salesperson, cooks and maitre d's, and directed waitstaff to alter arrangements where necessary. Although these job responsibilities were subject to the ultimate approval of either the owners or the Director of Operations, the trial court considered them to meet the description of a catering manager rather than an event salesperson or a maitre d' at the banquet hall. Hence, we find that the trial judge's conclusions regarding Fish's responsibilities were based on "'substantial credible evidence in the record.'" See Abbott ex rel. Abbott v. Burke, 199 N.J. 140, 146 n.2 (2009) (citation omitted).
Fish's second group of objections about the trial proceedings under Point II is that the judge abused his discretion, among other things, by "violating Canon 3 of the Code of Judicial Conduct. . . ." This characterization is unfair. Prior to the commencement of the proceedings, the judge told the parties that he once hired defendant to cater his swearing-in ceremony as a judge and that he had presided over another matter in which defendant was a litigant. When he asked before starting the hearing if the parties had any objection to him presiding given those circumstances, Fish only expressed a concern about losing additional time from work, thereby effectively waiving any objection to the judge's participation. See Knorr v. Smeal, 178 N.J. 169, 177 (2003) ("An effective waiver requires a party to have full knowledge of his legal rights and intent to surrender those rights. . . . The party waiving a known right must do so clearly, unequivocally, and decisively.") (citations omitted). Fish wanted to continue with that judge, as did defense counsel. Having decided that resolving the matter that day was of greater concern to her than any other issue, Fish cannot now be heard at this late date to complain that the judge should have recused himself.
Fish also complains that the judge's decision was based on facts not contained in the record. We do not agree with this characterization either. The judge did take judicial notice of facts such as that initially all employees have a "break-in period," but those facts were not pivotal to the analysis resulting in the determination that plaintiff was not entitled to overtime pay. If error, it was harmless error. See R. 2:10-2.
Fish contends that the judge's application of the law to the facts was erroneous and relies on Martin v. Cooper Electric Supply Co., 940 F.2d 896 (3rd Cir. 1991), in support of that argument. Martin involved an enterprise employing 120 "inside" salespeople who sold electrical products wholesale, a substantially different business from a banquet hall, and substantially different employment from a catering manager. Fish entered into custom retail contracts with the public, which required the exercise of independent judgment, and which also required her oversight before and during implementation. The inside salespeople in Martin were selling merchandise. Id. at 899, 904. We therefore concur with the trial judge's determination that Martin was inapposite.
Fish asserts that the judge inappropriately cross-examined both her and Polimeni, with the intent of assisting defendant in proving its case. The fact that judge asked questions of both parties merely illustrates that he wanted to clarify the facts before rendering a decision.
In our view, defendant established that Fish's employment met the definition of "administrative" within the meaning of the applicable section by "substantial credible evidence in the record." See Abbott, supra, 199 N.J. at 146 n.2. Plaintiff's employment was indeed "the performance of . . . non-manual work directly related to management policies or general internal business operations." See N.J.S.A. 12:56-7.2(a)1. Whether or not she believed she was granted sufficient discretion, Fish was expected to exercise discretion when entering into the contractual obligations on behalf of defendant. She performed administrative functions, subject only to review by the owner and Director of Operations of this small business. None of the work she performed was related to nonexempt work. She was compensated for her services in excess of $400 weekly. Accordingly, we affirm.
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