NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 9, 2013
On appeal from the Department of Law & Public Safety, Division on Civil Rights, Docket No. EBO7WB-61695.
Donna Acquaviva, appellant pro se.
Giordano, Halleran & Ciesla, attorneys for respondent Elgen Manufacturing, Inc. (Joseph C. DeBlasio, of counsel and on the brief; Ryan S. Carlson, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent Division on Civil Rights (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Megan J. Harris, Deputy Attorney General, on the statement in lieu of brief).
Before Judges Fasciale and Haas.
Donna Acquaviva appeals from a July 21, 2011 final agency determination by the Acting Director of the New Jersey Division of Civil Rights (hereinafter "Division") finding no probable cause to substantiate her allegations that Elgen Manufacturing, Inc. (hereinafter "Elgen") engaged in gender and creed harassment, hostile work environment, and retaliation in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. We affirm.
Elgen, a sheet metal manufacturer, employed Acquaviva at-will as a probationary salesperson from March 1, 2010 to April 30, 2010. In August 2010, Acquaviva filed a verified complaint against Elgen. Acquaviva alleged that her supervisor harassed her because she was non-Jewish, designated her salesperson number as "sixty-nine" and displayed partially nude women calendars, and then terminated Acquaviva because she complained to management about this alleged harassment. Elgen disputed these allegations, argued that Acquaviva did not bring any harassment complaints to its attention, and contended that it terminated Acquaviva because she lacked product knowledge and computer proficiency. The Division then undertook its investigation.
The Division's investigator reviewed paper discovery,  interviewed seven witnesses, and conducted a fact-finding conference. Counsel for Acquaviva, counsel for Elgen, Acquaviva, her former supervisor, and Elgen's Human Resource Director appeared at the conference. The investigator provided to Acquaviva the information that the investigator learned during the investigation and offered Acquaviva an opportunity to rebut that information; however, Acquaviva did not do so. Thereafter, the investigator issued a written report, recommending that Acquaviva's case be closed and stating that
[t]he investigation did not reveal sufficient evidence to support [Acquaviva's] allegations of discrimination based on sex or creed, or allegations of unlawful reprisal. The investigation was unable to establish that [Acquaviva] was exposed to a hostile work environment based upon sex or creed. Neither [the supervisor's] alleged inquiries and remarks regarding [Acquaviva's] creed[,  nor the assignment of the number [sixty-nine] to [Acquaviva] as her sales number[, ] rose to a level that was sufficiently severe or pervasive that [Acquaviva's] work environment became hostile or offensive. The investigation also [did] not establish that the subject calendars were displayed in the work area. Further, the investigation did not establish that [Acquaviva] engaged in any protected activity. [Acquaviva] acknowledged that she did not object or complain about [her former supervisor's] alleged inquires or remarks, the assignment of [sixty-nine] as her sales number, or the boxes of calendars kept in [the supervisor's] work area. The investigation established that [Acquaviva's] complaints to [Elgen] about [the supervisor's] management style did not constitute protected activity under the [LAD]. Finally, the investigation established that [Acquaviva] was discharged because of her inability to work harmoniously with her supervisor and because her performance after [sixty] days did not meet [Elgen's] expectations. There was insufficient evidence that [Elgen's] decision to discharge [Acquaviva] was motivated by [Acquaviva's] sex or creed, or by unlawful reprisal.
The Division then determined "that there is no probable cause to credit [Acquaviva's] allegations, " and closed Acquaviva's ...