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Fish v. Pompton Restaurant Associates

July 20, 2010

DOROTA FISH, PLAINTIFF-APPELLANT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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:

POINT I.

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 ...


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