holding no "special deference" is accorded the trial judge's "interpretation of the law and the legal consequences that flow from established facts"
How later courts described this case
- holding no "special deference" is accorded the trial judge's "interpretation of the law and the legal consequences that flow from established facts"
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0073-23
MORTGAGE ACCESS
CORP., d/b/a WEICHERT
FINANCIAL SERVICES,
Plaintiff-Appellant,
v.
RICHARD MEYER,
Defendant-Respondent.
Submitted December 4, 2024 – Decided February 14, 2025
Before Judges Currier and Paganelli.
On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Docket No. L-0705-23.
Laddey, Clark & Ryan, LLP, attorneys for appellant
(Thomas N. Ryan and Thomas J. White, on the briefs).
Jonathan E. Hill, attorney for respondent.
PER CURIAM
Plaintiff Mortgage Access Corp., d/b/a Weichert Financial Services
(Weichert), appeals from a July 11, 2023 judgment in favor of defendant Richard
Meyer (Meyer) upholding an arbitration award of $1,224,485 in a Law Against
Discrimination (LAD) action, N.J.S.A 10:5-1 to -40, as well as an award
providing additional post-judgment interest and attorney's fees. After
conducting a careful review of the trial court's decision and the arbitration award
in light of the applicable principles of law, we affirm.
I.
In 2016, Weichert hired Meyer as a mortgage loan advisor in its Consumer
Direct department. Meyer signed an arbitration agreement which required all
disputes to be submitted to binding arbitration with the American Arbitration
Association (AAA).
At the time of his hiring, Meyer was sixty-nine years old, the oldest
individual employed by Weichert as a mortgage advisor. By 2020, Meyer was
the only remaining Consumer Direct mortgage advisor as the other mortgage
advisers had either left or moved to other positions within the company. Meyer's
work primarily consisted of the refinancing of loans for Weichert's clients.
Meyer was one of the company's top performers in 2019 and continued to
perform well in 2020, in part due to the favorable refinance market, resulting
A-0073-23
2
from lower interest rates. In the first four months of 2020 Meyer earned
$110,481, primarily in commission income.
The low interest rates continued during the COVID-19 pandemic,
resulting in consumers' continued desire for refinancing of mortgages and Meyer
was very busy. However, the pandemic adversely affected another of Weichert's
departments, the Workforce Mobility Division, which experienced a 40% drop
in its workload due to the lack of relocation business.
In response, company President Eric Declercq made the decision to
discontinue Consumer Direct and reassign that work to the Workforce Mobility
Division. Meyer's position was terminated on May 8, 2020. Meyer was seventy-
two years old at the time.
During the arbitration hearing, Declercq testified that, in making this
decision, he reasoned that Consumer Direct was a "rate-sensitive division" and
since he believed "rates were going to be going up," he decided to "close that
division strategically." Declercq further testified there were "no openings in
[Weichert's retail division] . . . , and [the] . . . [Workforce] Mobility business
was going . . . downward because of COVID[-19] . . . and [Meyer] was not
qualified for" the Workforce Mobility work. Declercq conceded he did not
A-0073-23
3
review Meyer's past professional experience or performance to determine if he
had the necessary qualifications for other positions.
Around the same time of Meyer's firing, Weichert hired a new employee
who was approximately fifty-five years old to work in the Mobility Division. In
October 2020, Weichert hired another employee, who was thirty-six years old,
with no prior mortgage experience. She was transferred to Consumer Direct
approximately six months later when the division re-opened.
Meyer began looking for work in June 2020. Within several weeks of his
termination, Meyer found an online job advertisement for a position with
Weichert and applied for it. Weichert declined to hire Meyer, informing him
that he was not qualified for the position. Meyer obtained new employment in
July 2020.
II.
In December 2020, Meyer filed a complaint with the AAA, alleging
Weichert violated the LAD in discriminating against him because of his age and
not reassigning him to another position within the company. He sought
compensatory and punitive damages. The parties then engaged in extensive
discovery.
A-0073-23
4
While the litigation was ongoing, Declercq expressed concerns in a
podcast about the aging workforce in the real estate, mortgage, and title
industries. He stated: "Many of us . . . are older dinosaurs in the industry and
. . . it's hard for a lot of those folks to change." Declercq testified that his
comment referred to challenges older employees faced with new technology.
During the podcast, Declercq also stated:
I think everyone entered the business when I did so
we're all in our mid 50s in this space and it's been a
criticism of the population of mortgage advisors[,] . . .
we have so many contemporary individuals who have
entered that space. I have one young lady in particular.
She started with us as an assistant. And she just had the
eye of the tiger. And she tried to take her test three
times and failed and finally she made it. She just
wanted to get this done. I watched this young lady and
we finally converted her to a mortgage advisor in the
heart of this pandemic so she didn't know refinance or
any of those other things. And she came out of the gate
in her first two months in the middle of the pack of our
sales organization just because . . . it is about your
underlying talent and skill set, tenacity, eye of the tiger,
you pick the word . . . we can teach anyone this
business. It has effectively been the same forever. It
doesn't matter what we're selling or doing . . . it's all
about the individual.
Following the conclusion of discovery, Weichert moved for summary
judgment. The arbitrator dismissed Meyer's failure to rehire claim but denied
summary judgment on the age discrimination—wrongful termination claim.
A-0073-23
5
The arbitrator found Meyer "presented evidence sufficient for a reasonable
finder of fact to conclude that the stated reasons . . . offered to justify the
elimination of [Meyer]'s job did not actually motivate the employer's actions."
As Meyer established a prima facie case of age discrimination, summary
judgment was denied.
A hearing was conducted on July 13 and 14, 2022, during which the
parties presented witnesses and documentary evidence. In addition to the facts
stated above, Meyer alleged he suffered emotional distress following his
termination from his job, stating he "became very depressed." He testified he
was concerned about his finances and ability to afford his home, which he had
recently purchased. In addition, he said he began arguing with his wife, had
difficulty sleeping given his worries about finding a job, experienced stress, and
began taking anti-depression medication.
Meyer asserted the arbitrator should rely on his income from the first four
months of 2020 to calculate his economic damages. Weichert contended Meyer
was not entitled to any economic damages because he did not present expert
testimony to support his claim.
On October 6, 2022, the arbitrator issued a detailed well-reasoned Interim
Award finding Weichert's "proffered business justifications for its decision to
A-0073-23
6
eliminate the Consumer Direct Division and terminate [Meyer]'s employment
[we]re not believable. Given the above as well as . . . Declercq's age-related
statements, I find that [Weichert]'s proffered business justifications were pretext
for age discrimination." The arbitrator supported her findings, in part, on job
requisitions and hirings around or after the time of termination.
The arbitrator also found the age-related comments "made by . . .
Declercq, the sole person responsible for the decision to eliminate Consumer
Direct and terminate [Meyer]'s position, establish[ed] that he was motivated by
discriminatory animus." In addition to Declercq's comments on the podcast, he
stated in his deposition that the average age of the mortgage industry was "very
high," that the industry was an "aging one" and they were always trying to find
"new talent." The arbitrator found it was "clear" from Declercq's own statements
that he was "very concerned about the aging mortgage advisor workforce and
actively seeking out younger employees as replacements."
The arbitrator awarded Meyer $75,000 in emotional distress damages but
did not award economic damages, stating "[c]alculating economic damages on
th[is] record . . . would result in nothing more than pure speculation . . . without
additional discovery . . . ."
A-0073-23
7
The arbitrator ordered Weichert to produce additional "identified
discovery to [her] and exchange the same with [Meyer]." In response, Weichert
argued that the request constituted post-hearing discovery and exceeded the
arbitrator's authority and power under the AAA rules. Nevertheless, Weichert
complied with the order. After reviewing the submissions, the arbitrator asked
for additional information.
Thereafter, the arbitrator uploaded a document entitled "Economic
Damages Award of Arbitrator" to the AAA's web portal that incorrectly stated
Weichert had not complied with the discovery requests. The award contained
detailed reasoning and calculations and awarded Meyer $183,473.80 in past
economic damages.
Two days later, after considering all documentation and information
provided by both parties, the arbitrator entered a "Second Interim Award"
including a revised economic damages award totaling $243,849.86—
$199,849.86 in back pay and $44,000 of lost base salary. The arbitrator
provided detailed reasons supporting the back pay award, advising it was
calculated only up to March 2022 when Meyer began working less hours due to
health reasons.
A-0073-23
8
The arbitrator used the submitted data to calculate the amount of
commissions Meyer would have earned on mortgage refinances had he remained
employed with Weichert. The arbitrator's analysis also considered the number
of leads and closed refinances attributed to Meyer compared to other company
employees, finding that "[w]hen calculating the actual quarterly and monthly
average total volume of closed refinances for each of the Mortgage
Advisors/Destination Managers, it is clear that [Meyer]'s total volume was the
second highest." Her analysis also accounted for the fact that the Mobility
Division's work was down 40%, and as a result the employees were spending
only 40% of their working time on refinance work. The arbitrator also deducted
Meyer's mitigation earnings.
After hearing argument from the parties, the arbitrator permitted Meyer to
present proofs regarding his punitive damages claim. The arbitrator found there
was evidence that Weichert acted with "a wanton and willful disregard of
[Meyer']s rights."
After a hearing on punitive damages, the arbitrator entered the Final
Award on April 1, 2023. In considering the request for punitive damages, the
arbitrator carefully considered the evidence and applicable case law. The
arbitrator found Declercq's testimony "deceitful" regarding the decision to
A-0073-23
9
eliminate the Consumer Direct Division and eliminate Meyer's position. We
recite from her decision at length as necessary to understand the punitive
damages award:
Declercq's testimony that he made a strategic decision
to close the Consumer Direct Division because of the
resources needed to run that business and the state of
the business is undercut by the testimony that within
five months of [Meyer]'s termination, [a new
employee], who is in her [thirties], had already been
hired for the Consumer Direct Division, which was not
yet reconstituted but already slated to be reconstituted.
. . . Such close timing to when the Division was
eliminated and slated to be reconstituted also certainly
belies the claim that a strategic decision was made to
eliminate the Division. Given that . . . Declercq is an
experienced executive, the only reasonable logical
conclusion to draw from close proximity of his
decisions to eliminate the Division and, in turn,
[Meyer's] position, and then reconstitute the Division is
that the Division's elimination was simply an untruthful
way to justify terminating [Meyer's] position so that he
could be replaced by a far younger employee.
Additionally, . . . Declercq testified that [Meyer] was
not considered for another position within Weichert
because, in part, there were no opportunities available
for which Weichert was hiring. . . . In fact, when
questioned further about how he reached the conclusion
that no positions were available for [Meyer] in either
Mobility or Retail, . . . Declercq testified, at one point,
"we were not hiring in Mobility, period" and, at another
point, "we had plenty of capacity in there, we didn't
need the additional head count at that time[."] . . . Yet,
[a new employee] was hired for the Mobility Division
right around the time of [Meyer]'s termination. . . .
Also, . . . Declercq testified that [Meyer] was not
A-0073-23
10
considered for the Retail Division because he lacked
the qualifications to work in the sales office; yet,
approximately five months later, [a new employee] was
hired to work in Retail despite [having] similar
experience to that of [Meyer]. . . . Also, . . . Declercq's
assertions that [Meyer] was not qualified for any other
positions and that he lacked the experience to be a
mortgage advisor are contradicted by [Meyer]'s
experience and . . . Declercq' s hearty assurances on the
podcast that "we can teach anyone this business. It has
effectively been the same forever. It doesn't matter
what we're selling or doing . . . its all about the
individual. . . . "
Also, while . . . Declercq testified that job
elimination decisions are some of the most difficult
decisions he has to make so he thinks "deeply" about
those decisions, he did nothing to ascertain what
experience [Meyer] had or what his professional
background was. . . . Moreover, there was no
believable reason why he even had to eliminate
[Meyer]'s job given the facts of this case coupled with
. . . Declercq's own testimony that he did not eliminate
the Division as a cost-saving measure, [or] because he
was told that he needed to eliminate jobs at W[eichert],
as a result of C[OVID-19] or even because of the
amount of work the Division was generating. . . . It is
also rather curious that, in making a "strategic decision"
to eliminate a position/division, . . . Declercq, when
faced with [Meyer], who was incredibly busy and
performing well albeit seventy years old, and the
Mobility Division, which was comprised by
considerably younger workers whose work had
decreased by forty percent, . . . Declercq chose to
eliminate [Meyer]/Consumer Direct. When these facts
are juxtaposed against . . . Declercq's statements on the
podcast, made after this arbitration asserting a claim of
age discrimination was instituted, it is sufficient
A-0073-23
11
evidence that [Weichert] was willfully indifferent to the
discriminatory conduct at issue and that conduct was
especially egregious.
Additionally, . . . [Meyer] was financially
vulnerable having been terminated in the midst of a
global pandemic when hiring had essentially stalled.
Further, . . . the harm suffered by [Meyer] was not
solely economic in nature. Indeed, his emotional
distress, which resulted in his taking anti-depression
medication first prescribed to him after the death of his
son, was seemingly significant. . . . By referring to
mortgage advisors in their fifties as dinosaurs, . . .
Declercq sent [Meyer] the message, loudly and clearly,
that [Meyer] was too old to even be considered a
dinosaur. Also, by generalizing that it is "hard for a lot
of those folks" (i.e., older mortgage advisors) "to
change," . . . Declercq mocked and minimized the skills
of [Meyer] and did it in a very in-your-face way—on a
publicly broadcast podcast while already in the throes
of this arbitration. His behavior was only made more
boorish by the public platitudes bestowed upon [the
new younger employee], who when hired had no
mortgage experience and failed the exam multiple
times, simply because she came out in the middle of the
pack of the sales organization when [Meyer] was
performing far better at the time of the termination of
his employment. Indeed, the podcast was . . .
Declercq's defiant, dismissive, and very public
mocking of [Meyer] and his claims.
In determining the amount of the punitive
damages award, thoughtful consideration was also
given to both aggravating and mitigating factors.
Aggravating factors included that, even as recently as
January of 2023, [Weichert] refused to take
responsibility for the discriminatory conduct in which
it engaged and continued to insist that it did nothing
A-0073-23
12
wrong despite the existence of clear evidence and a
finding to the contrary. Another aggravating factor
taken into consideration was that no discipline was
taken against . . . Declercq because, certainly, if any
such discipline had been taken, [Weichert] would have
presented evidence of it during the punitive damages
phase as a mitigating factor. Instead, . . . Declercq
continues to be the President of W[eichert] and, thus,
maintains responsibility for making decisions involving
the hiring, firing, and promotions of applicants and
employees. That said, careful consideration was given
to [Weichert]'s downturn in business and concerns that
a more significant punitive damages award, which
would have been warranted in this case, had to be
balanced against the possibility that it would trigger
further lay-offs. Performing that balancing was
particularly difficult to do given that W[eichert] is a
fairly large, successful company with significant assets
and available cash reserves and yet needs to be
punished for its discriminatory termination of [Meyer]
and deterred from engaging in such egregious conduct
in the future. It is obvious that, . . . "[a] one-to-one
ratio[]" would have been insufficient to deter future
discriminatory conduct given [Weichert]'s "knowingly
unlawful conduct." . . .
In light of the foregoing, awarding [Meyer]
punitive damages in a ratio of punitives-to-
compensatory damages of two to one is reasonable. As
such, [Meyer] is entitled to an award of punitive
damages of $680,617 when calculated after pre-
judgment interest.
The arbitrator also awarded $199,761.25 in attorney's fees and $4,797.79
in costs. The total award was $1,224,485.
A-0073-23
13
III.
Weichert moved before the Superior Court to vacate both the Second
Interim Award and the Final Award, contending Meyer did not present evidence
to support a reasonable calculation of economic damages and the arbitrator
overstepped her authority in requesting additional discovery and in issuing the
Second Interim and Final Awards. Following oral arguments, the court entered
an order on July 10, 2023, confirming the Final Award and granting post-
judgment interest and reasonable attorney's fees and costs.
In a written statement of reasons, the court reviewed the applicable
provisions under N.J.S.A. 2A:23B-23(a) and found the arbitrator did not exceed
her authority and operated within the applicable AAA rules, and did not
demonstrate any evident basis. The court stated:
Here, the AAA [r]ules plainly permitted the
arbitrator to order further discovery on the issue of
compensatory damages after issuing the First Interim
Award. . . .The AAA [r]ules grant the arbitrator broad
power to "set the rules for the conduct of the
proceedings," and require the arbitrator to "exercise
that authority to afford a full and equal opportunity to
all parties to present any evidence that the arbitrator
deems material and relevant to the resolution of the
dispute." . . . Moreover, the AAA [r]ules instruct that
the arbitrator "shall conduct the proceedings with a
view toward expediting the resolution of the dispute,
may direct the order of proof, [and] bifurcate
proceedings." . . . Most notably, however, the AAA
A-0073-23
14
[r]ules expressly provide that, "[i]f the parties agree or
the arbitrator directs that documents or other evidence
may be submitted to the arbitrator after the hearing[]
. . . [a]ll parties shall be afforded an opportunity to
examine such documents or other evidence and to lodge
appropriate objections, if any.
Thus, included among the arbitrator's broad
discretion are the abilities to, as the arbitrator did here,
bifurcate the issues of establishing age discrimination
under the [LAD] and the amount of back pay owed as
compensatory damages, and order the submission of
"documents or other evidence" after the first hearing
and First Interim Award. . . . Therefore, the [c]ourt
cannot find, pursuant to N.J.S.A. 2A:23B-23(a)(4), that
the arbitrator exceeded her powers in reopening
discovery as to the issue of [Meyer]'s back pay
damages.
The court continued:
As to [Weichert]'s argument that the [a]rbitrator's
actions in ordering [Weichert] to produce additional
discovery relating to [Meyer]'s back pay damages
demonstrated partiality, this measure was well within
the arbitrator's powers under the AAA [r]ules, as
discussed above, and otherwise legally proper under the
LAD. . . . In the First Interim Award, the arbitrator's
thorough, twenty-page decision analyzed the pertinent
statute, caselaw, and each of [Weichert]'s proffered
reasons for [Meyer]'s termination, concluding that
those reasons were a pretext for unlawful age
discrimination. . . . [Weichert] has not contested the
arbitrator's conclusion that [its] conduct violated the
LAD. . . . Having found that [Weichert]'s conduct
violated the LAD, the arbitrator did not demonstrate
partiality in finding that, "the difficulty in calculating
A-0073-23
15
damages should [not] inure to the discriminating
employer's benefit," and ordering further discovery.
IV.
On appeal, Weichert renews its assertions that the trial court erred in
confirming the Final Award because the arbitrator harbored animus towards
Weichert and exhibited "evident partiality" when making her decision,
particularly regarding the punitive damages award. Weichert further contends
the Final Award should be vacated because the arbitrator improperly calculated
damages by relying on materials requested after the conclusion of the hearing,
and Meyer did not prove his net income and probable loss of future earnings by
a preponderance of the evidence.
The scope of "our review of an arbitration award is very limited." Bound
Brook Bd. of Educ. v. Ciripompa, 228 N.J. 4, 11 (2017) (quoting Linden Bd. of
Educ. v. Linden Educ. Ass'n ex rel. Mizichko, 202 N.J. 268, 276 (2010)). "To
foster finality and 'secure arbitration's speedy and inexpensive nature,' reviewing
courts must give arbitration awards 'considerable deference.'" Borough of
Carteret v. Firefighters Mut. Benevolent Ass'n, Loc. 67, 247 N.J. 202, 211
(2021) (quoting Borough of E. Rutherford v. E. Rutherford PBA Loc. 275, 213
N.J. 190, 201 (2013)). "An arbitrator's award is not to be cast aside lightly. It
is subject to being vacated only when it has been shown that a statutory basis
A-0073-23
16
justifies that action." Ciripompa, 228 N.J. at 11 (quoting Kearny PBA Loc. 21
v. Town of Kearny, 81 N.J. 208, 221 (1979)).
Our review of the denial of a motion to vacate an arbitration award is de
novo. Manger v. Manger, 417 N.J. Super. 370, 376 (App. Div. 2010). See also
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)
(holding no "special deference" is accorded the trial judge's "interpretation of
the law and the legal consequences that flow from established facts").
V.
The Uniform Arbitration Act (the Act), N.J.S.A. 2A:23B-1 to -32, permits
a court to vacate an arbitration award for the following limited reasons:
(1) the award was procured by corruption, fraud, or
other undue means;
(2) the court finds evident partiality by an arbitrator;
corruption by an arbitrator; or misconduct by an
arbitrator prejudicing the rights of a party to the
arbitration proceeding;
(3) an arbitrator refused to postpone the hearing upon
showing of sufficient cause for postponement, refused
to consider evidence material to the controversy, or
otherwise conducted the hearing contrary to section 15
of this act, so as to substantially prejudice the rights of
a party to the arbitration proceeding;
(4) an arbitrator exceeded the arbitrator's powers;
A-0073-23
17
(5) there was no agreement to arbitrate, unless the
person participated in the arbitration proceeding
without raising the objection pursuant to subsection c.
of section 15 of this act not later than the beginning of
the arbitration hearing; or
(6) the arbitration was conducted without proper notice
of the initiation of an arbitration as required in section
9 of this act so as to substantially prejudice the rights
of a party to the arbitration proceeding.
[N.J.S.A. 2A:23B-23(a).]
Against this backdrop, we first address Weichert's contention that the
arbitrator exceeded her authority under the AAA rules to request additional
discovery after the hearing for the purpose of calculating damages. Weichert
asserts that the arbitrator advocated for Meyer in considering discovery after the
hearing, revealing bias and partiality.
AAA Rule 30 provides: "The arbitrator shall be the judge of the relevance
and materiality of the evidence offered, and conformity to legal rules of evidence
shall not be necessary." Am. Arb. Ass'n, Employment Arbitration Rules and
Mediation Procedures r. 30 (rev. 2017). Further, in the event of a dispute, the
parties "should notify the AAA of the dispute so that it may be presented to the
arbitrator for a determination." AAA Rule 9." Am. Arb. Ass'n, r. 9.
Therefore, the AAA explicitly imbues an arbitrator with broad discretion
in conducting discovery, including post-hearing discovery. See Minkowitz v.
A-0073-23
18
Israeli, 433 N.J. Super. 111, 144 (App. Div. 2013). In addition, as the
Legislature requires, in the interest of making the hearing "fair, expeditious, and
cost effective," the arbitrator may permit "such discovery as the arbitrator
decides is appropriate [under] the circumstances." N.J.S.A. 2A:23B-17(c).
Moreover, the arbitrator can direct a party to comply with any discovery-related
orders. N.J.S.A. 2A:23B-17(d). Therefore, the trial court did not err in finding
the arbitrator acted properly when conducting post-hearing discovery and did
not exceed her powers under the AAA rules or the Act.
We next address Weichert's assertion that the first uploaded "Economic
Damages Award of Arbitrator" supports a finding of undue means or partiality
sufficient to vacate the award under N.J.S.A. 2A:23B-23(a). We note
preliminarily that Weichert did not seek to remove the arbitrator under the AAA
rules when it suspected improper behavior.
AAA Rule 16(b), "Disqualification of Arbitrator," states "[u]pon
objection of a party to the continued service of an arbitrator, or on its own
initiative, the AAA shall determine whether the arbitrator should be disqualified
under the grounds set out above, and shall inform the parties of its decision,
which decision shall be conclusive." Am. Arb. Ass'n, r. 16(b). Further, AAA
Rule 36, "Waiver of Objection/lack of Compliance with These Rules," affirms
A-0073-23
19
that "[a]ny party who proceeds with the arbitration after knowledge that any
provision or requirement of these rules has not been complied with, and who
fails to state objections thereto in writing or in a transcribed record, shall be
deemed to have waived the right to object." Am. Arb. Ass'n, r. 36.
Notwithstanding Weichert's waiver of its right to attempt to disqualify the
arbitrator, we analyze Weichert's assertions within the statutory framework. Our
inquiry for "undue means" must reveal more than the occurrence of a mere
mistake. Tretina Printing, Inc. v. Fitzpatrick & Assocs., Inc., 135 N.J. 349, 356-
57 (1994). Rather, it
requires that the arbitrator[] must have clearly intended
to decide according to law, must have clearly mistaken
the legal rule, and that mistake must appear on the face
of the award. In addition, [for] the error[] to be fatal,
[it] must result in a failure of intent or be so gross as to
suggest fraud or misconduct.
[Id. at 357 (quoting Perini Corp. v. Greate Bay Hotel &
Casino, Inc., 129 N.J. 479, 494 (1992)).]
A finding of partiality requires a showing of "evident partiality" rather
than simply an appearance of partiality. Barcon Assocs., Inc. v. Tri-Cnty.
Asphalt Corp., 86 N.J. 179, 191 (1981).
In Barcon, our Supreme Court affirmed a trial court order that vacated an
arbitration award rendered by a tri-partite panel because a panel member's
A-0073-23
20
business dealings with a party to the arbitration constituted "evident partiality"
under N.J.S.A. 2A:24-8(b), the predecessor to N.J.S.A. 2A:23B-23(a)(2). 86
N.J. at 182-83. The Court explained arbitrators are required to "avoid . . . actual
partiality" and "the appearance of partiality." Id. at 189 (citation omitted). The
Court found evident partiality was established because the panel member "was
engaged in business dealings with and was owed substantial sums by" a party to
the arbitration, and the Court concluded the "relationship create[d] too great an
appearance of partiality to be permitted." Id. at 191 (emphasis omitted).
Here, the arbitrator was mutually selected by both parties. Weichert does
not allege the arbitrator had any relationship or transaction with Meyer or his
counsel. The evidence reveals that the arbitrator issued the Economic Damages
Award (1) after the hearing on the merits; (2) after the parties complied with her
first post-hearing discovery request and she had reviewed the submitted
documents, and (3) under the mistaken belief that Weichert had not complied
with her second discovery request. However, as Weichert concedes, once the
arbitrator was informed of the error, she cured the mistake by advising the
parties "to disregard" the award, reviewed the additional documents, and issued
a Second Interim Award.
A-0073-23
21
These actions did not constitute an "egregious mistake[] of law" as
contemplated by N.J.S.A. 2A:23B-23(a)(1). Tretina, 135 N.J. at 356-57. Nor
did the error display evident partiality. As the trial court found, all of the awards
provided a "thorough . . . [analysis of] the pertinent statute, caselaw, and each
of [Weichert]'s proffered reasons for [Meyer]'s termination." The awards also
included extensive well-reasoned mathematical calculations of damages based
on the submitted documents. Weichert has not demonstrated the "award was
procured by . . . undue means" or the arbitrator acted with "evident partiality."
N.J.S.A. 2A:23B-23(a)(1) to (2).
We turn to Weichert's contentions regarding the punitive damages award.
Weichert asserts the arbitrator erroneously grounded her decision to award
punitive damages primarily due to the podcast in which "De[c]lercq discussed
[Weichert's] on-going desire to recruit new talent." Additionally, Weichert
reiterates that the punitive damages award must be vacated due to the arbitrator's
evident partiality and it being obtained through undue means.
Punitive damages awards in a LAD action are governed by both the LAD
and the Punitive Damages Act, N.J.S.A. 2A:15-5.9 to -5.17, and should only be
awarded in exceptional cases where the defendant exhibited "wanton or reckless
conduct," Saffos v. Avaya Inc., 419 N.J. Super. 244, 262-63 (App. Div. 2011)
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(quoting Catalane v. Gilian Instrument Corp., 271 N.J. Super. 476, 501 (App.
Div. 1994)), which "[wa]s especially egregious." Rendine v. Pantzer, 141 N.J.
292, 313 (1995) (quoting Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 624
(1993)).
"The [first] key to the right to punitive damages is the wrongfulness of the
intentional act." Saffos, 419 N.J. Super. at 263 (quoting Nappe v. Anschelewitz,
Barr, Ansell & Bonello, 97 N.J. 37, 49 (1984)). Actions by an employer
"involving 'trickery and deceit'" satisfy that requirement and justify an award of
punitive damages. Baker v. Nat'l State Bank, 353 N.J. Super. 145, 155 (App.
Div. 2002) (quoting BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 576-77
(1996)). Such actions include a defendant's fabrication of legitimate reasons to
terminate a plaintiff to justify a discrimination-based firing. Id. at 156.
Second, an award of punitive damages is justified where there is proof of
"actual participation in or willful indifference to the wrongful conduct on the
part of upper management," which includes both executive officers and "second
tier" managers who have broad supervisory powers, including those to hire, fire
and discipline employees. Cavuoti v. N.J. Transit Corp., 161 N.J. 107, 113, 129
(1999) (citations omitted).
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The aggrieved employee must provide proof of actions supporting a
punitive damage award by clear and convincing evidence, meaning the evidence
"should produce in the mind of the trier of fact a firm belief or conviction as to
the truth of the allegations sought to be established." State v. Hernandez, 334
N.J. Super. 264, 271 (App. Div. 2000) (quoting In re Purrazzella, 134 N.J. 228,
240 (1993)). In other words, "it is evidence that is 'so clear, direct and weighty
and convincing as to enable . . . [the factfinder] to come to a clear conviction,
without hesitancy, of the precise facts in issue.'" Ibid. (alteration in original)
(quoting In re Seaman, 133 N.J. 67, 74 (1993)). Direct testimony can qualify as
clear and convincing evidence. Ibid.
Further, a punitive damages award is required to be reasonable and
"justified" by the wrongful conduct. Baker v. Nat'l State Bank, 161 N.J. 220,
229 (1999). As such, an award must be proportionate to the amount of harm
suffered by and damages awarded to the aggrieved party. Pritchett v. State, 248
N.J. 85, 112 (2021).
In the Second Interim Award, the arbitrator found, and the trial judge
agreed, that the "case was one of those exceptional cases where punitive
damages [we]re warranted," because the facts, including the statements made by
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Declercq during the podcast, "unequivocally demonstrated bias against older
workers as well as a wanton and willful disregard of [Meyer]'s rights."
The trial court found the punitive damages award was supported by the
arbitrator's thorough factual and legal analysis. The arbitrator considered the
facts under the factors outlined in Model Jury Charge (Civil), 8.61, "Punitive
Damages—Law Against Discrimination (LAD) Claims" (rev. Nov. 2022),
finding, among other things, that: the intent behind Weichert's decision to
terminate Meyer's employment was evidently discriminatory due to Weichert's
statements showing bias against older workers; Weichert's actions caused Meyer
serious harm; Weichert was aware of that harm; despite this awareness Weichert
refused to re-assign Meyer to another position; and Weichert's wrongful conduct
continued through the arbitration proceedings in specific comments
demonstrating bias against older workers.
Further, after the arbitrator discussed the relevant case law, she considered
the aggravating and mitigating factors. She found Weichert's refusal to take
responsibility for the discriminatory conduct in which it engaged and the lack
of any disciplinary action taken against Declercq were aggravating factors.
As stated, Weichert bears a heavy burden in seeking to vacate the
arbitration award as there is a "strong judicial presumption in favor of [its]
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validity." Del Piano v. Merrill Lynch, Pierce, Fenner & Smith Inc., 372 N.J.
Super. 503, 510 (App. Div. 2004). After our careful review, for the reasons
articulated above, we conclude Weichert has not met its burden and has not
demonstrated any reason to vacate the award under N.J.S.A. 2A:23B-23(a).
Affirmed.
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