October 28, 2010
AZRA D. CAMPBELL, APPELLANT,
QUEST DIAGNOSTICS, INC., RESPONDENT.
On appeal from the Division on Civil Rights, Department of Law and Public Safety, Docket No. EG14NB-48882.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 12, 2010
Before Judges Lisa and Reisner.
Appellant, Azra D. Campbell, filed a complaint on August 17, 2007 with the Division on Civil Rights (Division) against her employer, Quest Diagnostics, Inc. (Quest). She alleged that Quest discriminated against her based upon a physical disability (chronic epicondylitis of her right elbow) by failing to provide a reasonable accommodation and by wrongfully terminating her. The matter was transferred to the Office of Administrative Law (OAL) as a contested case on April 24, 2008.
On May 22, 2008, Quest served on appellant's counsel interrogatories, requests for production of documents, and requests for admissions. Appellant's counsel failed to respond within the time required by the applicable rules. Indeed, appellant's counsel never furnished the requested discovery.
Over the ensuing months, notwithstanding extensions of time and court orders, appellant's counsel remained non-responsive to the outstanding discovery requests. Further, in violation of a directive by the administrative law judge (ALJ) that the parties enter into settlement negotiations, appellant's counsel failed to do so and stated that appellant would not provide a settlement demand.
At some point during the proceedings, appellant's counsel advised the ALJ and counsel for Quest that health issues were interfering with his ability to attend to his responsibilities in handling this case. Nevertheless, the record reveals that during this time frame, appellant's counsel, a sole practitioner, handled many other legal matters in various courts for various clients. Appellant's counsel also suggested that his inability to handle the matter appropriately was hindered by his client's unavailability and lack of cooperation. Appellant's counsel further stated that his client had furnished him with hundreds of pages of documents pertaining to this case, but he was unable to review them and respond to the outstanding discovery requests.
Finally, on July 22, 2009, Quest moved for dismissal of the complaint. After being granted an extension of time to respond, appellant's counsel failed to respond to the motion. On August 20, 2009, the ALJ issued her initial decision granting Quest's motion and dismissing the complaint with prejudice. After reciting in detail the chronology of events over the preceding sixteen months since the matter was transmitted to the OAL, the ALJ found "that the Complainant ha[d] failed to prosecute this matter." She continued that appellant had "repeatedly failed to answer discovery or otherwise move this matter beyond the filing of the complaint." Finally, she found "that the Complainant ha[d] failed to show any good cause for [her] dereliction."
After receiving two extensions of time to do so, appellant filed exceptions to the initial decision with the Division. Appellant's counsel explained the other matters with which he had been busy working for other clients, and reiterated his ongoing health issues that also impeded his ability to prosecute this matter in a timely fashion. Counsel also adverted to his client's unavailability due to other matters to which she gave priority.
After considering the entire record and appellant's exceptions, the Director of the Division issued his final decision and order on October 2, 2009. The Director adopted the ALJ's initial decision dismissing the complaint with prejudice. The Director set forth in detail the procedural history of the case, outlining the chronology of events throughout the OAL proceedings. The Director rejected the arguments of appellant's counsel that his health issues provided good cause for the repeated derelictions in responding to discovery requests. The Director also rejected the argument that the ALJ erred by not following the two-tiered procedure prescribed in the New Jersey Rules of Court, by which a dismissal for discovery violations is initially without prejudice, and, if the deficiency is not cured, dismissal can then be sought with prejudice. See R. 4:23-5. The Director noted that the administrative rules apply in OAL proceedings, and the ALJ properly applied the controlling rules here. The Director concluded that appellant had countless opportunities to provide the required responses to discovery. As of the date of this Order, Complainant has failed to produce responses to Respondent's discovery requests that were served well over a year ago. Counsel's argument would have been more compelling had his exceptions been accompanied by documents responsive to the discovery request. Accordingly, the Director finds that given the unique circumstances of this matter, and the myriad of extensions and adjournments outlined herein, Complainant has had sufficient opportunity to comply with the ALJ's order and avoid the ultimate sanction of dismissal with prejudice.
In light of the foregoing, and after conducting an independent review of the record, the Director adopts ALJ Jones' initial decision dismissing the verified complaint with prejudice.
On appeal, appellant argues that the decision of the Director should be reversed because it was arbitrary and capricious and contained erroneous factfinding.
Our scope of review of a final agency decision or action is extremely limited. We will not upset the ultimate determination of an agency unless shown that it was arbitrary, capricious or unreasonable, or that it violated legislative policies expressed or implied in the act governing the agency, or that the decision was based on findings that are not supported by the record. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006) (internal citations omitted).
We are mindful of our Supreme Court's admonition that the ultimate sanction of dismissal for failure to respond to discovery should be invoked "only sparingly." Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 514 (1995). Nevertheless, a party who persists in failing to respond to discovery "invites this extreme sanction by deliberately pursuing a course that thwarts persistent efforts to obtain the necessary facts." Id. at 515. We are satisfied from our review of the record that the Director did not act arbitrarily or capriciously in determining that the ultimate sanction of dismissal with prejudice was warranted in this case. We are further satisfied that the facts found by the Director are supported by substantial credible evidence in the record as a whole.
Accordingly, we have no occasion to set aside the order under review. We affirm substantially for the reasons set forth in the Director's "Findings, Determination and Order" of October 2, 2009.
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