On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-3894-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Ostrer.
Plaintiff, Joe Sanchez, appeals from the August 19, 2011 trial court order confirming a June 3, 2011 award issued pursuant to the New Jersey Alternative Procedure for Dispute Resolution Act (APDRA), N.J.S.A. 2A:23A-1 to -30, in favor of defendants, Rizzieri Consulting, Inc., Rizzieri Management Company, Inc., Rizzieri Corporation, d/b/a Rizzieri Salon & Day Spa, Maria Christinzio, Amy DiMarco, Nancy Leuzzi, and Heather Gabriel (hereinafter referred to as "Rizzieri" or "defendants"), and denying his motion to vacate or modify the award. We affirm.
Sanchez was employed by Rizzieri as a front desk coordinator at its salon and day spa. He was suspected of theft and was terminated. Sanchez filed a complaint in Superior Court alleging violation of the Family Medical Leave Act of 1993 (FMLA), 29 U.S.C.A. §§ 2601 to -2654, and the Law Against Discrimination, N.J.S.A. 10:5-1 to -42.
After the parties completed discovery, they agreed to resolve their dispute, pursuant to the provisions of APDRA, and selected retired Superior Court Judge John A. Sweeney to preside over the hearing. Based upon the procedural background Judge Sweeney set forth in his decision, we discern the parties also agreed that the judge should make some credibility determinations and highlight the material facts supporting his conclusions but need not make detailed findings of fact and conclusions of law:
As I indicated to you prior to and after the hearing, I will not attempt to write a detailed opinion with findings of fact and conclusions of law. It is not necessary to create that much of a record since, in the absence of fraud or a legal conclusion that is obviously unsustainable, an arbitrator's decision is final and binding. I understand that to be your agreement in this case and will proceed accordingly. I will make credibility determinations and comment on critical, material facts which are essential to my final conclusions.
Additionally, although there were witnesses who appeared at the hearing and provided testimony, a record of the hearing was not made. There were, however, deposition transcripts that were part of the record before Judge Sweeney.
The evidence before Judge Sweeney revealed that defendants suspected plaintiff of voiding a $300 spa service payment that had been made in cash on June 2. When discrepancies were found in Rizzieri's sales for June 2, plaintiff and another employee were questioned, and both denied stealing the money. Rizzieri scheduled a meeting to discuss the matter with Sanchez on June 5. There was conflicting evidence in the record as to whether the purpose of the meeting was to discuss the incident further or to terminate Sanchez.
In any event, Sanchez was not scheduled to work on that date. Christinzio, his direct supervisor, telephoned him the evening before the meeting and left a voice message asking that he attend a meeting the following day at noon. She also sent him a text message about the meeting.
On the morning of June 5, one and one-half hours before the meeting was scheduled to begin, Sanchez contacted Christinzio and told her that he had just awakened and did not know whether he would make the meeting. Christinzio reiterated that it was important that he attend the meeting.
After waiting for more than one hour for Sanchez to arrive, Rizzieri terminated Sanchez for suspicion of theft, as of June 5. Later that day, while driving home from work, Christinzio received a telephone call from Sanchez's partner, Gil Lopez. He told her Sanchez left the house that morning angry and very upset. He also stated that Sanchez was in the hospital and had attempted to take his own life. Rizzieri denied having any knowledge that Sanchez had psychiatric issues, although Gabriel, the receptionist, when deposed, acknowledged she was aware that Sanchez was taking anti-depressants.
Christinzio also acknowledged she knew that Sanchez took medication, but she was not specifically aware of what medication he was taking. In her deposition testimony, however, she stated: "[H]alf the salon is treated for anxiety and depression. They're all on antidepressants. Everyone is on them but me. I mean, it's a common thing in the industry." When asked if Sanchez was "in the half that was on antidepressants[,]" she responded, "I understand he was on medication. I don't know what medication he was taking."
Sanchez remained hospitalized until June 16, when he was discharged. He contacted Christinzio the same day to request additional time off. According to plaintiff, Christinzio told him that was fine, but the very next day left a message informing him he had been terminated and would shortly receive a formal letter of termination.
Christinzio confirmed that Sanchez called on June 16, and testified during her deposition that Sanchez indicated he would not be coming into work and that she responded by asking him whether he had received her letter, to which Sanchez responded, "No." She agreed that at that point, inasmuch as she did not tell him he had been fired, he would have thought he was still employed, and she also admitted she did not say or do anything to disabuse him of that notion.
The termination letter, dated June 17, advised Sanchez that he had been terminated, effective June 5, and requested that he repay the balance owed on a $2000 loan. According to Leuzzi, who headed Human Resources for Rizzieri, she did not prepare the termination letter sooner because although the decision to fire Sanchez had been made as early as June 5, she believed there was no way to reach Sanchez while he was hospitalized. His benefits were also terminated, retroactive to June 5.
Judge Sweeney, in his decision, noted that "[a]t the very core of [Sanchez]'s [c]omplaint is the alleged unlawful termination of [Sanchez] based upon his actual or perceived disability as defined in the several applicable Acts and that his termination for stealing money and missing a mandatory meeting was merely pretextual." Based upon his review of the evidence presented, the judge found that Sanchez "failed to prove most, if not all, of the components for a case of discrimination." He highlighted Sanchez's acknowledgement that "he was terminated for stealing money, or, at the very least, for being suspected of doing so." As such, Judge Sweeney concluded whether Sanchez actually stole the money was irrelevant to disposing of his claims, and agreed with Rizzieri that it had the legal "'right to be wrong'" about the theft.
The judge additionally found that Sanchez was aware he had been terminated on June 5, or shortly thereafter, failed to present any competent evidence to establish a legally cognizable disability, and also failed to establish that Rizzieri was aware of his mental condition: "Not only was plaintiff's testimony sorely lacking on the claimed 'disability,' there was no expert produced, in person, by deposition, or by report to support such a claim. Furthermore, a ...