NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0942-23
DAVID WYCHE,
Complainant-Appellant,
v.
FIVE STAR BARBER SHOP,
Respondents-Respondents. ___________________________
Submitted December 16, 2024 - Decided January 30, 2025
Before Judges Berdote Byrne and Jacobs.
On appeal from the New Jersey Division on Civil Rights, Department of Law and Public Safety, Docket No. P2021-001362.
David Wyche, appellant pro se.
Matthew J. Platkin, Attorney General, attorney for respondent New Jersey Division on Civil Rights (Sookie Bae-Park, Assistant Attorney General, of counsel; Surinder K. Aggarwal, Deputy Attorney General, on the brief).
PER CURIAM Complainant David Wyche appeals the March 17, 2022 final
administrative decision by the New Jersey Division on Civil Rights
("Division"), dismissing his claim that Five Star Barber Shop ("Five Star")
discriminated against him on the basis of his race in violation of the New Jersey
Law Against Discrimination, N.J.S.A. 10:5-1 to -50 ("LAD"). The issue before
us does not involve assessing Five Star's potential liability. Instead, the limited
issue before us is whether the Division's decision to administratively dismiss his
LAD complaint was arbitrary, capricious, unreasonable, or not supported by
credible evidence in the record.
Because Five Star failed to answer Wyche's complaint, the Division
entered default against Five Star. Despite N.J.A.C. 13:4-5.2 requiring the
Division to transmit Wyche's case to the Office of Administrative Law ("OAL")
twenty days after notifying Five Star of its default, this never occurred. Instead,
the Division notified Wyche it would not represent him in the litigation of his
claim because it would not serve the public interest, and would administratively
dismiss his complaint unless he requested to have his case transferred to the
OAL or filed his complaint in the Superior Court. Wyche failed to act upon
either of these options, and the Division administratively dismissed his
complaint in a final administrative decision on March 17, 2022.
A-0942-23 2 Although the Division is correct that it was free to decline Wyche
representation and administratively dismiss his complaint if "the public interest
is [not] best served by the continuation of the proceedings," N.J.A.C. 13:4 -
6.1(a)(9), once default had been entered against the respondent, the Division
was obligated to transmit Wyche's case to the OAL. It was not permitted to
dismiss Wyche's complaint without this hearing occurring and without an
administrative law judge rendering an initial decision pursuant to N.J.A.C. 13:4 -
5.4(b). Because this administrative procedure was not followed by the Division,
it acted unreasonably—regardless of the actual merits of Wyche's claim or
whether the Division's decision that the public interest would not be served was
sound. We reverse the Division's final administrative dismissal and remand with
instructions to the Division to transmit Wyche's case to the OAL for a default
proof hearing pursuant to N.J.A.C. 13:4-5.2 and N.J.A.C. 13:4-5.4.
I.
Wyche made an appointment for a haircut at Five Star for October 24,
2020. He alleges that when he arrived for his scheduled appointment, the barber
he had reserved was already beginning to give a white Hispanic customer a
haircut. Wyche, an African-American man, was upset, and explained to Five
Star staff he had an appointment and insisted on being seen immediately. The
A-0942-23 3 staff told Wyche he would either have to wait for the other customer to finish or
leave. Wyche engaged in a verbal argument with staff, which included
expletives not alleged to have been racial in nature, and then left.
Wyche left Five Star a negative review on Booksy, the app he used to
schedule his haircut. Five Star responded on Booksy, stating the following:
my apologies to this man, we are here to serve him, we do what we can but we are not his slaves. you arrived like our time is worth shit and a lot of arrogance more than you arrived late but if you want to hurt our public you know of our quality of service but anyway thank you very much, if another day you give us another opportunity be punctual and not be so arrogant we are human.
On February 8, 2021, Wyche filed a verified complaint with the Division
against Five Star, alleging it had discriminated against him on the basis of his
race in violation of the LAD. Specifically, Wyche's only allegation of a LAD
violation against Five Star was in its response to his review, where it stated its
employees are "not his slaves." Wyche claimed that response was racially
motivated.
The Division notified Wyche on February 8, 2021, it was in receipt of
Wyche's complaint and had served it upon Five Star. That same day, the
Division informed Five Star it was the respondent in Wyche's complaint and
apprised Five Star of its obligations, including its obligation to file an answer.
A-0942-23 4 On June 8, 2021, the Division notified Five Star it had not received an
answer to Wyche's complaint. The Division entered default against Five Star on
June 29, 2021, for failure to file an answer. The same day, the Division sent
Five Star a notice of this entry of default and explained the matter would be
transmitted to the OAL for a default hearing twenty days after the notice was
sent, or July 19, 2021. The Division states in its appellate brief it was thereafter
contacted by Michael Andalaft, Esq. on behalf of Five Star on July 19, 2021—
the day the default hearing was scheduled—who requested a copy of Wyche's
complaint.1 The record does not provide any documentation or proof the matter
was transmitted to the OAL or the July 19, 2021 hearing was held.
Without indication as to what occurred after the June 29, 2021 entry of
default, the Division entered default again on August 16, 2021, and sent a notice
to Andalaft, stating the case would be transmitted to the OAL twenty days after
the date of service of the letter. 2 Similar to the previous entry of default and
1 Andalaft filed a letter with this court on February 26, 2024, indicating he has never represented Five Star and has never filed a Notice of Appearance in this matter on behalf of Five Star. 2 Unlike the June 29, 2021 notice of default, which specifically listed July 19, 2021, as twenty days after notice and the date the hearing was to be held, the August 16, 2021 notice of default stated only that the hearing would be held twenty days after the notice without listing a specific date. A-0942-23 5 notice sent on June 29, 2021, the record does not provide any indication or proof
this case was actually transmitted to the OAL.
On February 10, 2022, the Division informed Wyche of its intent to not
litigate his claim because it did not serve the public interest and of its plan to
administratively dismiss his complaint. In this notice, the Division informed
Wyche of his opportunity to either transfer his claim to the OAL or file the claim
in the Superior Court himself within thirty days. When it received no response
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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-0942-23
DAVID WYCHE,
Complainant-Appellant,
v.
FIVE STAR BARBER SHOP,
Respondents-Respondents. ___________________________
Submitted December 16, 2024 - Decided January 30, 2025
Before Judges Berdote Byrne and Jacobs.
On appeal from the New Jersey Division on Civil Rights, Department of Law and Public Safety, Docket No. P2021-001362.
David Wyche, appellant pro se.
Matthew J. Platkin, Attorney General, attorney for respondent New Jersey Division on Civil Rights (Sookie Bae-Park, Assistant Attorney General, of counsel; Surinder K. Aggarwal, Deputy Attorney General, on the brief).
PER CURIAM Complainant David Wyche appeals the March 17, 2022 final
administrative decision by the New Jersey Division on Civil Rights
("Division"), dismissing his claim that Five Star Barber Shop ("Five Star")
discriminated against him on the basis of his race in violation of the New Jersey
Law Against Discrimination, N.J.S.A. 10:5-1 to -50 ("LAD"). The issue before
us does not involve assessing Five Star's potential liability. Instead, the limited
issue before us is whether the Division's decision to administratively dismiss his
LAD complaint was arbitrary, capricious, unreasonable, or not supported by
credible evidence in the record.
Because Five Star failed to answer Wyche's complaint, the Division
entered default against Five Star. Despite N.J.A.C. 13:4-5.2 requiring the
Division to transmit Wyche's case to the Office of Administrative Law ("OAL")
twenty days after notifying Five Star of its default, this never occurred. Instead,
the Division notified Wyche it would not represent him in the litigation of his
claim because it would not serve the public interest, and would administratively
dismiss his complaint unless he requested to have his case transferred to the
OAL or filed his complaint in the Superior Court. Wyche failed to act upon
either of these options, and the Division administratively dismissed his
complaint in a final administrative decision on March 17, 2022.
A-0942-23 2 Although the Division is correct that it was free to decline Wyche
representation and administratively dismiss his complaint if "the public interest
is [not] best served by the continuation of the proceedings," N.J.A.C. 13:4 -
6.1(a)(9), once default had been entered against the respondent, the Division
was obligated to transmit Wyche's case to the OAL. It was not permitted to
dismiss Wyche's complaint without this hearing occurring and without an
administrative law judge rendering an initial decision pursuant to N.J.A.C. 13:4 -
5.4(b). Because this administrative procedure was not followed by the Division,
it acted unreasonably—regardless of the actual merits of Wyche's claim or
whether the Division's decision that the public interest would not be served was
sound. We reverse the Division's final administrative dismissal and remand with
instructions to the Division to transmit Wyche's case to the OAL for a default
proof hearing pursuant to N.J.A.C. 13:4-5.2 and N.J.A.C. 13:4-5.4.
I.
Wyche made an appointment for a haircut at Five Star for October 24,
2020. He alleges that when he arrived for his scheduled appointment, the barber
he had reserved was already beginning to give a white Hispanic customer a
haircut. Wyche, an African-American man, was upset, and explained to Five
Star staff he had an appointment and insisted on being seen immediately. The
A-0942-23 3 staff told Wyche he would either have to wait for the other customer to finish or
leave. Wyche engaged in a verbal argument with staff, which included
expletives not alleged to have been racial in nature, and then left.
Wyche left Five Star a negative review on Booksy, the app he used to
schedule his haircut. Five Star responded on Booksy, stating the following:
my apologies to this man, we are here to serve him, we do what we can but we are not his slaves. you arrived like our time is worth shit and a lot of arrogance more than you arrived late but if you want to hurt our public you know of our quality of service but anyway thank you very much, if another day you give us another opportunity be punctual and not be so arrogant we are human.
On February 8, 2021, Wyche filed a verified complaint with the Division
against Five Star, alleging it had discriminated against him on the basis of his
race in violation of the LAD. Specifically, Wyche's only allegation of a LAD
violation against Five Star was in its response to his review, where it stated its
employees are "not his slaves." Wyche claimed that response was racially
motivated.
The Division notified Wyche on February 8, 2021, it was in receipt of
Wyche's complaint and had served it upon Five Star. That same day, the
Division informed Five Star it was the respondent in Wyche's complaint and
apprised Five Star of its obligations, including its obligation to file an answer.
A-0942-23 4 On June 8, 2021, the Division notified Five Star it had not received an
answer to Wyche's complaint. The Division entered default against Five Star on
June 29, 2021, for failure to file an answer. The same day, the Division sent
Five Star a notice of this entry of default and explained the matter would be
transmitted to the OAL for a default hearing twenty days after the notice was
sent, or July 19, 2021. The Division states in its appellate brief it was thereafter
contacted by Michael Andalaft, Esq. on behalf of Five Star on July 19, 2021—
the day the default hearing was scheduled—who requested a copy of Wyche's
complaint.1 The record does not provide any documentation or proof the matter
was transmitted to the OAL or the July 19, 2021 hearing was held.
Without indication as to what occurred after the June 29, 2021 entry of
default, the Division entered default again on August 16, 2021, and sent a notice
to Andalaft, stating the case would be transmitted to the OAL twenty days after
the date of service of the letter. 2 Similar to the previous entry of default and
1 Andalaft filed a letter with this court on February 26, 2024, indicating he has never represented Five Star and has never filed a Notice of Appearance in this matter on behalf of Five Star. 2 Unlike the June 29, 2021 notice of default, which specifically listed July 19, 2021, as twenty days after notice and the date the hearing was to be held, the August 16, 2021 notice of default stated only that the hearing would be held twenty days after the notice without listing a specific date. A-0942-23 5 notice sent on June 29, 2021, the record does not provide any indication or proof
this case was actually transmitted to the OAL.
On February 10, 2022, the Division informed Wyche of its intent to not
litigate his claim because it did not serve the public interest and of its plan to
administratively dismiss his complaint. In this notice, the Division informed
Wyche of his opportunity to either transfer his claim to the OAL or file the claim
in the Superior Court himself within thirty days. When it received no response
from Wyche, the Division issued a final administrative decision dismissing his
complaint on March 17, 2022, because "[t]he complainant is unavailable or
unwilling to participate in conciliation or investigation, or to attend a hearing."3
The Division denied Wyche's motion for reconsideration on October 24, 2023,
reiterating its finding the public interest would not be served if it were to litigate
his claim. This appeal followed.
II.
Our review of a final administrative decision is limited and deferential.
In re Herrmann, 192 N.J. 19, 27 (2007); In re Taylor, 158 N.J. 644, 656 (1999).
3 The Division stated in its brief this reasoning was listed in error, and the true reason it had dismissed Wyche's complaint was because the public interest would not be served by litigating his claim. That reason is consistent with the Division's February 10, 2022 notice of intent to dismiss and its October 24, 2023 denial of Wyche's motion for reconsideration. A-0942-23 6 An agency's final administrative decision will be affirmed unless it is arbitrary,
capricious, unreasonable, or not supported by credible evidence in the record.
See Zimmerman v. Sussex Cnty. Educ. Servs. Comm'n, 237 N.J. 465, 475 (2019)
(citing In re Stallworth, 208 N.J. 182, 194 (2011)). Accordingly, we consider
the following: "(l) whether . . . the agency follow[ed] the law; (2) whether the
record contains substantial evidence to support the findings on which the agency
based its action; and (3) whether . . . the agency clearly erred in reaching a
conclusion that could not reasonably have been" met. Bd. of Educ. of Twp. of
Sparta v. M.N., 258 N.J. 333, 342 (2024) (alteration and first omission in
original) (quoting Allstars Auto Grp., Inc. v. N.J. Motor Vehicle Comm'n, 234
N.J. 150, 157 (2018)).
Wyche raises numerous issues on appeal, including, in pertinent part, the
following: he was not properly informed of his rights, including the right to file
a verified complaint in the Superior Court; he did not receive a copy of his
verified complaint and did not receive confirmation his complaint was served
on Five Star, in violation of N.J.A.C. 13:4-2.8; the Division improperly failed
to transfer his case to the OAL upon entering default against Five Star; the
Division's decision violated his procedural due-process rights; and the Division
erred in concluding his case did not serve the public interest and in
A-0942-23 7 administratively dismissing his case. In response, the Division argues its
decision to administratively dismiss Wyche's case should be affirmed because
litigating his claims would not serve the public interest and because he was
adequately notified of all rights and available options.
The Division is charged by the Legislature with enforcing the LAD. See
N.J.S.A. 10:5-6. A party seeking relief pursuant to the LAD may do so by either
filing a civil complaint in the Superior Court or filing an administrative
complaint with the Division. See N.J.S.A. 10:5-13(a)(1) (requiring the Division,
upon receiving a complaint alleging a LAD violation, to notify the complainant
of their right to file their complaint in the Superior Court). If an aggrieved party
files a complaint with the Division, the Division undertakes an investigation into
the LAD allegations. See N.J.S.A. 10:5-8(c); N.J.S.A. 10:5-8.2(a); N.J.S.A.
10:5-14. Importantly, however, "the [Division's] role is not simply to stand in
the shoes of the aggrieved party and bring the claim on his or her behalf."
Rodriguez v. Raymours Furniture Co., 225 N.J. 343, 360 (2016). This is because
the Division "has a completely separate law enforcement interest in prosecuting
the alleged discrimination," ibid. (quoting Dixon v. Rutgers, 110 N.J. 432, 459
(1988)), and "represents the aggrieved public, which has been injured by the
perpetuation of discrimination that our society deems intolerable." Ibid.
A-0942-23 8 (emphasis omitted). Accordingly, the Division maintains the discretion to
administratively dismiss any complaint if it does not find "the public interest is
best served by the continuation of the proceedings." N.J.A.C. 13:4-6.1(a)(9).
Although the option of filing with the Division "is designed to provide
more timely resolution than an action in Superior Court, that aspirational goal
may not always be met." Rodriguez, 225 N.J. at 359. When the Division
informs the complainant of its decision to not represent the complainant and of
its intent to administratively dismiss the complaint, the complainant is "entirely
free to proceed to Superior Court . . . . and [the] pending complaint before the
[Division] may be withdrawn at any time provided that the [Division] has not
made a final determination." Id. at 360 (omission and first alteration in original)
(quoting Wilson v. Wal-Mart Stores, 158 N.J. 263, 270 (1999)).
If a complainant chooses to bring his claim with the Division and the
respondent in that matter defaults, "the Director shall serve notice of the entry
of default and supporting affidavit upon the respondent." N.J.A.C. 13:4 -5.2(d).
"[This] notice shall inform the respondent that the case will be transmitted to
the OAL for a hearing on a default basis and the transmittal will occur [twenty]
calendar days after service on the respondent of the notice of entry of default."
Ibid. "Twenty calendar days after the respondent is served with notice of the
A-0942-23 9 entry of default, the Director shall transmit the case to the OAL for the purpose
of a hearing on the complainant's proofs of the allegation of discrimination on a
default basis in accordance with N.J.A.C. 13:4-5.4." N.J.A.C. 13:4-5.2(e)
(emphasis supplied).
At an OAL default hearing, "the proofs shall consist of the order of entry
of default, supporting affidavits, and any other evidence proffered by the
complainant. . . ." N.J.A.C. 13:4-5.4(a). "[T]he only cognizable issues shall be
whether the facts alleged in the complaint or arising out of the investigation
constitute a violation of the [LAD] . . . and if so, the amount of damages and
other relief to be provided." Ibid. No evidence may be proffered by the
respondent with respect to its liability because allegations in the verified
complaint shall be deemed admitted. Ibid. Pursuant to N.J.A.C. 13:4-5.4, the
Director may enter a final order only after "receiving the initial decision of the
administrative law judge" upon a default hearing in the OAL. N.J.A.C. 13:4 -
5.4(b).
Although the Division enjoys broad discretion to choose to
administratively dismiss and not litigate a claim it finds is not in the public
interest, N.J.A.C. 13:4-6.1(a)(9), it cannot make dismiss the complaint after
A-0942-23 10 default has been entered until an OAL proof hearing has occurred. See N.J.A.C.
13:4-5.4.
Specific to the timing of the facts of this case, the Division failed to fulfill
this obligation prior to administratively dismissing Wyche's claim, warranting
reversal. The Division first entered default against Five Star on June 29, 2021,
and served Five Star with notice of the default on the same day. Without
reference to this entry of default, the Division again entered default—
presumably in response to Andalaft's alleged contact with the Division on July
19, 2021—on August 16, 2021. The record before us does not contain any
evidence this hearing actually happened and instead suggests it did not occur as
the Division does not assert it transferred Wyche's case to the OAL, but rather
contends "Five Star's default afforded Wyche a chance for a proof hearing to
determine whether the facts alleged in his complaint constituted a LAD
violation." The Division is misguided, as default by Five Star afforded Wyche
more than a mere "chance for a proof hearing"; it obligated the Division to
"transmit the case to the OAL" for a hearing. N.J.A.C. 13:4-5.2(e).
It is of no moment that the Division offered Wyche the opportunity to
request his case be transmitted to the OAL thirty days before dismissing his
claim because the use of the word "shall" in N.J.A.C. 13:4-5.2(e) demonstrates
A-0942-23 11 the Division was required to transmit the claim to the OAL. Instead, it
unreasonably dismissed Wyche's case prior to a proof hearing taking place. See
N.J.A.C. 13:4-5.4(b) (stating the Division may render a final order dismissing a
LAD complaint brought against a respondent in default only "[a]fter receiving
the initial decision of the administrative law judge" in a proof hearing with the
OAL); N.J.S.A. 10:5-17 (stating that the Division may choose to dismiss a
complaint only after considering all evidence presented at the hearing, and must
state all findings of fact and conclusions of law supporting dismissal in a formal
report served on the complainant).
The Division's dismissal is reversed, and it is instructed to transmit
Wyche's complaint to the OAL for a proof hearing pursuant to N.J.A.C. 13:4-
5.2 and N.J.A.C. 13:4-5.4.
Reversed. We do not retain jurisdiction.
A-0942-23 12