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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...