July 5, 2011
TALAAT JOYCE LANZ, PLAINTIFF-APPELLANT,
BOARDWALK REGENCY CORPORATION D/B/A CAESARS ATLANTIC CITY AND GERALD PATCHIK,*FN1 DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-4154-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 15, 2011 Before Judges Carchman, Graves, and Waugh.
Plaintiff Talaat Joyce Lanz appeals the Law Division's order, following a bench trial, dismissing her claims against defendants Boardwalk Regency Corp. (Caesars)*fn2 and Gerald Tkachyk for violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and defamation. We affirm.
We discern the following factual and procedural history from the record on appeal.
In December 2007, Lanz, acting through an attorney, filed a complaint in which she alleged that she was the victim of a hostile work environment (Count I); harassment based upon perceived affectional or sexual orientation (Count II); discrimination in failure to promote (Count III); and, as to Tkachyk only, defamation (Count IV). The complaint demanded a jury trial. The defendants filed an answer in April 2008.
Following the completion of discovery, Lanz's attorney filed a motion to be relieved as counsel for reasons set forth in a certification that is not part of the record. The motion was granted in September 2009. Withdrawing counsel asked that the trial, then scheduled for December 7, 2009, be adjourned to allow Lanz time to retain new counsel. That request was granted.
According to the certification of a court employee, Lanz asked to waive a jury trial in the hope that the trial would be reached and completed sooner. Counsel for defendants consented to the waiver. Consequently, the trial began on May 17, 2010, as a bench trial. The waiver of the jury, however, was not reflected in writing or on the record as required by Rule 4:35-1(d).
Lanz testified at trial that she was subjected to a hostile work environment at Caesars, largely through the conduct of an employee named Frank Leone. His conduct allegedly included following her around, stating that she would be his "wife," repeatedly touching his genitals in her presence, and generally engaging in what Lanz described as a "relentless campaign of [him] verbally harassing [her]" which "continued for six months."
Lanz further testified that she eventually reported what was happening to Gerald Tkachyk, the Director of Casino Credit for Caesars. Tkachyk responded that she did the right thing, and he would report the incident to Leone's boss. As a result, Leone stopped coming to her work area, but his verbal harassment continued in other areas of the casino. She testified that after Leone left the casino, other employees, including Tkachyk, harassed her. She further testified that she was called a lesbian, "a bitch," "Arab," and "black snake."
According to Lanz, Tkachyk made sexual advances to her and engaged in some conduct similar to Leone's. She testified that she wrote a letter of complaint to the Human Resources Director at Caesars. Although Lanz did not produce a copy of the letter during discovery, she produced one at trial. Caesars claimed that no such letter was ever received.
Lanz testified that Tkachyk denied her several promotions for which she was qualified, and produced positive evaluations in support of her claim. She further testified that one supervisor told a co-worker that Lanz would be receiving a promotion the co-worker hoped to receive, which led to the co-worker assaulting her with a chair. According to Lanz, the injury resulted in a lengthy period of disability and her eventual termination.
During her direct and cross-examinations, Lanz testified that she had made nearly identical claims against two prior employers and that this was her third complaint alleging discrimination against an employer.
Lanz called no witnesses to support her claims. At the conclusion of the first day of trial, the trial judge dismissed Count III, discrimination in failure to promote.
Caesars presented the testimony of Leone and Tkachyk, both of whom denied Lanz's allegations of sexual harassment. Seven other Caesars' employees also testified for Caesars. Each denied having observed or overheard any of the harassment described by Lanz.
The trial judge then delivered an oral decision.
Plaintiff, on her own prior to being cross examined about it, made reference to a prior sexual harassment claim in the state of Oregon filed in 1999. Now we don't have those pleadings. . . . [A]nd what's strikingly similar is that in that particular workplace matter some ten or eleven years ago . . . the plaintiff complained that one Mr. Lucas, who was superior to her in the chain of command at the place of work, that he had made inappropriate comments to her . . . and one of those inappropriate comments that he made which apparently, according to this D-1 document which the plaintiff testified to as well, he made the repeated statement, "She will be my wife." That phrase is a phrase that seems difficult to have repeated in two completely different workplaces by two very different people, and those facts stretch the bounds of coincidence beyond any rational breaking point. I don't see how two different gentlemen, two different persons in two different places of employment -- one in Oregon and one in New Jersey -- would make the same statement to the same individual . . . .
He further explained:
Now in the final analysis what I have to do to decide is with respect to count one has the plaintiff met her burden of proof under New Jersey law to support a claim for sexual harassment in the workplace. I find as fact that the plaintiff has not met her burden of proof by a preponderance of the evidence, again because of serious questions of credibility that have been raised. . . .
[W]hen I look at the quality of the evidence, particularly a coincidental lawsuit in Oregon some ten years ago, with a New Jersey lawsuit with strikingly similar facts, and when I also combine this document purportedly given to [Human Resources] . . . which was also given to your lawyer but never appeared anywhere until here in this courtroom for the first time, that has a serious impact upon the plaintiff's credibility.
So count one for sexual harassment under LAD is dismissed. Count two, harassment based upon perceived or affectional sexual orientation with respect to the comments made concerning the plaintiff purportedly claiming that she was referred to as a lesbian, that count is dismissed. Count three has been previously dismissed. Count four, the defamation claim against Mr. Tkachyk, again, I don't find the testimony for any of these matters to be credible. I have no hesitancy dismissing the plaintiff's complaint for failure to meet her burden of proof. The plaintiff's complaint is dismissed.
The order of dismissal was entered on May 19, 2010, and this appeal followed.
After Lanz filed her notice of appeal, the trial judge supplemented his findings pursuant to Rule 2:5-1(b). He observed that Lanz is "someone who may suffer from an emotional disorder." He also explained that [t]he fervency with which she made her unfounded complaints caused concern that she may be delusional. Disregarding the content of her presentation, her comportment through both speech affection and body language, evoked concerns on the part of everyone present in my Courtroom that she may be suffering from some type of an emotional disorder.
The judge attached a certification from Atlantic County Civil Division Team Leader Robert Helsabeck, who related that Lanz contacted him many times seeking reassurance and information regarding her upcoming trial date. In each call, he told her that he was unable to give her advice, but could tell her that a bench trial typically takes fewer days than a jury trial when a pro se litigant is involved. According to Helsabeck, Lanz stated that she would opt for the bench trial.
Lanz was given leave to file her own certification in response. She agreed that she spoke to Helsabeck several times and that they did discuss the issue of a bench trial. However, she specifically denied that she requested a bench trial in lieu of a jury trial. In response to Lanz's certification, Amy Rudley, one of the defense attorneys, was granted leave to submit a certification. She related that, prior to the date scheduled for trial, Helsabeck informed her that Lanz requested a waiver of the jury and that Caesars' consent was required.
After consulting with the designated trial counsel, Rudley notified Helsabeck that Caesars agreed to waive the jury.
Because there was a dispute with respect to whether Lanz had agreed to waive her jury demand, we made a partial remand to the trial judge with instructions that he hold a hearing to determine that issue on April 8, 2011. The trial judge held the hearing on May 5, 2011, at which time he heard testimony from Lanz and Helsabeck. In a supplemental decision dated May 9, 2011, the trial judge determined that Lanz had waived her jury demand. At Lanz's request, we permitted the filing of supplemental briefs.
On appeal, Lanz raises two issues. First, she argues that she is entitled to a new trial because the trial judge failed to comply with Rule 4:35-1, in that her purported waiver of a jury trial was neither in writing nor on the record. Second, she argues that the trial judge erred in allowing Caesars to engage in prejudicial cross-examination.
As previously noted, Lanz demanded a jury trial in her complaint. Her right to a jury trial is of constitutional dimension. "'The right of trial by jury shall remain inviolate . . . . '" LaManna v. Proformance Ins. Co., 184 N.J. 214, 222 (2005) (quoting N.J. Const. art. I, ¶ 9). Furthermore, the LAD,N.J.S.A. 10:5-13, states that "[a]ny person claiming to be aggrieved by an unlawful employment practice" has the "right to file a complaint in the Superior Court to be heard before a jury."
A jury trial can be waived. Once it is demanded, however, all parties must agree to the waiver. Rule 4:35-1 provides in relevant part:
(a) Demand; Time; Manner. Except as otherwise provided by R. 4:67-4 (summary actions), any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing not later than 10 days after the service of the last pleading directed to such issue. Such demand may be appended to the party's pleading. (d) Withdrawal of Demand; Consent.
When trial by jury has been demanded as provided by this rule the trial of all issues so demanded shall be by jury, unless all parties or their attorneys, by written and filed stipulation or oral stipulation made in open court and entered on the record, consent to trial by the court without a jury, or unless the court on a party's or its own motion finds that a right of trial by jury of some or all of those issues does not exist.
The trial judge was remiss in failing to ensure that Lanz's waiver was reflected in a writing or on the record. Although the record reflects some discussion about the procedure being different than it would have been for a jury trial, the waiver is not specifically reflected in the trial transcript.
Nevertheless, the right to a trial by jury may be waived by subsequent conduct. Guber v. Peters, 149 N.J. Super. 138, 140 (App. Div. 1977) ("By proceeding to a hearing before the Chancery Division judge without continuing to press the demand for a jury trial asserted in their answer and amended answer, defendants waived their right to trial by jury."); Van Note-Harvey Assocs., P.C. v. Twp. of East Hanover, 175 N.J. 535, 541 (2003) ("[T]he parties' conduct constitute[d] a waiver of the previous demand for a jury trial . . . .").
A review of the trial transcript reveals that Lanz never objected to having a bench trial or questioned the absence of a jury, even though the judge made several references to the differences in procedure in the absence of a jury. Lanz only raised the issue after the trial judge had ruled against her. On temporary remand, the trial judge determined that Lanz had waived her jury demand. Although the applicable court rule was not followed, it would not be just or equitable to allow a litigant who has agreed to waive a jury trial to retract the waiver after there has been an adverse ruling following a bench trial.
We turn briefly to the issue of the allegedly prejudical questioning during Lanz's cross-examination. Because this issue is raised for the first time on appeal, we apply the plain error standard. Plain error is error that is "clearly capable of producing an unjust result." R. 2:10-2. See Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 128 (2008); Das v. Thani, 171 N.J. 518, 525 (2002). Plain error occurs when the error prejudicially affects the substantial rights of a party, and is sufficiently grievous to convince us that the error possessed a clear capacity to bring about an unjust result. Caldwell v. Haynes, 136 N.J. 422, 432 (1994) (citing R. 2:10-1).
In addition, in reviewing a trial judge's evidentiary ruling, this court is generally limited to examining the decision for abuse of discretion. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008) (citing Brenman v. Demello, 191 N.J. 18, 31 (2007)). "Evidentiary decisions are reviewed under the abuse of discretion standard because . . . the decision to admit or exclude evidence is one firmly entrusted to the trial court's discretion." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010) (citing Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)). "[T]he latitude initially afforded to the trial court in making a decision on the admissibility of evidence--one that is entrusted to the exercise of sound discretion--requires that appellate review, in equal measures, generously sustain that decision, provided it is supported by credible evidence in the record." Id. at 384.
Lanz asserts that Caesars "injected subjects at trial that carried with them great potential to unfairly prejudice [Lanz] in the fact finder's eyes." Specifically, she points to defense counsel's questions to her about whether she lost her children because she hit them with a broomstick and asking whether other people have told Lanz she was "nuts." The former was inappropriate under N.J.R.E. 404(b), and both were irrelevant and inappropriate.
The trial judge acknowledged that, in the absence of a jury, his policy was to admit evidence more liberally and then decide the appropriate weight to assign to it. The judge explained that he only makes decisions based upon facts presented, and it's really important to me that everyone here understand I don't judge people. I judge facts. That's all I judge.
And so all I have to work with in making evaluation of any person's claim or any person's defense is the facts and the evidence that they present. I don't judge people. I don't know who's good, who's bad.
While such a policy must be kept within limits, we see no prejudice here.
Having reviewed the record, we conclude that the questions at issue, although objectionable, did not actually bias the trial judge, as finder of fact, in making his decision. The judge's supplemental opinion did make reference to his observations that the manner in which Lanz delivered some of her testimony might be indicative of an "emotional disorder." It is clear, however, that he was relying on his own observations and not defense counsel's reference to others considering Lanz to be "nuts."
The judge delivered a thorough and well-reasoned explanation of his decision. We see no indication that he was improperly influenced by defense counsel's questions. Consequently, we affirm the dismissal of Lanz's complaint based upon the trial judge's findings of fact and conclusions of law.