PER CURIAM.
Plaintiff Talaat Joyce Lanz appeals the Law Division's order, following a bench trial, dismissing her claims against defendants Boardwalk Regency Corp. (Caesars)
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
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 alleging discrimination against an employer.
Lanz called no witnesses to support her claims. At the conclusion of the first day of trial, the trial judge dismissed Count III, discrimination in failure to promote.
Caesars presented the testimony of Leone and Tkachyk, both of whom denied Lanz's allegations of sexual harassment. Seven other Caesars' employees also testified for Caesars. Each denied having observed or overheard any of the harassment described by Lanz.
The trial judge then delivered an oral decision.
He further explained:
The order of dismissal was entered on May 19, 2010, and this appeal followed.
After Lanz filed her notice of appeal, the trial judge supplemented his findings pursuant to
The judge attached a certification from Atlantic County Civil Division Team Leader Robert Helsabeck, who related that Lanz contacted him many times seeking reassurance and information regarding her upcoming trial date. In each call, he told her that he was unable to give her advice, but could tell her that a bench trial typically takes fewer days than a jury trial when a pro se litigant is involved. According to Helsabeck, Lanz stated that she would opt for the bench trial.
Lanz was given leave to file her own certification in response. She agreed that she spoke to Helsabeck several times and that they did discuss the issue of a bench trial. However, she specifically denied that she requested a bench trial in lieu of a jury trial. In response to Lanz's certification, Amy Rudley, one of the defense attorneys, was granted leave to submit a certification. She related that, prior to the date scheduled for trial, Helsabeck informed her that Lanz requested a waiver of the jury and that Caesars' consent was required. After consulting with the designated trial counsel, Rudley notified Helsabeck that Caesars agreed to waive the jury.
Because there was a dispute with respect to whether Lanz had agreed to waive her jury demand, we made a partial remand to the trial judge with instructions that he hold a hearing to determine that issue on April 8, 2011. The trial judge held the hearing on May 5, 2011, at which time he heard testimony from Lanz and Helsabeck. In a supplemental decision dated May 9, 2011, the trial judge determined that Lanz had waived her jury demand. At Lanz's request, we permitted the filing of supplemental briefs.
On appeal, Lanz raises two issues. First, she argues that she is entitled to a new trial because the trial judge failed to comply with
As previously noted, Lanz demanded a jury trial in her complaint. Her right to a jury trial is of constitutional dimension. "`The right of trial by jury shall remain inviolate. . . .'"
A jury trial can be waived. Once it is demanded, however, all parties must agree to the waiver.
The trial judge was remiss in failing to ensure that Lanz's waiver was reflected in a writing or on the record. Although the record reflects some discussion about the procedure being different than it would have been for a jury trial, the waiver is not specifically reflected in the trial transcript.
Nevertheless, the right to a trial by jury may be waived by subsequent conduct.
A review of the trial transcript reveals that Lanz never objected to having a bench trial or questioned the absence of a jury, even though the judge made several references to the differences in procedure in the absence of a jury. Lanz only raised the issue after the trial judge had ruled against her. On temporary remand, the trial judge determined that Lanz had waived her jury demand. Although the applicable court rule was not followed, it would not be just or equitable to allow a litigant who has agreed to waive a jury trial to retract the waiver after there has been an adverse ruling following a bench trial.
We turn briefly to the issue of the allegedly prejudical questioning during Lanz's cross-examination. Because this issue is raised for the first time on appeal, we apply the plain error standard. Plain error is error that is "clearly capable of producing an unjust result."
In addition, in reviewing a trial judge's evidentiary ruling, this court is generally limited to examining the decision for abuse of discretion.
Lanz asserts that Caesars "injected subjects at trial that carried with them great potential to unfairly prejudice [Lanz] in the fact finder's eyes." Specifically, she points to defense counsel's questions to her about whether she lost her children because she hit them with a broomstick and asking whether other people have told Lanz she was "nuts." The former was inappropriate under
The trial judge acknowledged that, in the absence of a jury, his policy was to admit evidence more liberally and then decide the appropriate weight to assign to it. The judge explained that he
While such a policy must be kept within limits, we see no prejudice here.
Having reviewed the record, we conclude that the questions at issue, although objectionable, did not actually bias the trial judge, as finder of fact, in making his decision. The judge's supplemental opinion did make reference to his observations that the manner in which Lanz delivered some of her testimony might be indicative of an "emotional disorder." It is clear, however, that he was relying on his own observations and not defense counsel's reference to others considering Lanz to be "nuts."
The judge delivered a thorough and well-reasoned explanation of his decision. We see no indication that he was improperly influenced by defense counsel's questions. Consequently, we affirm the dismissal of Lanz's complaint based upon the trial judge's findings of fact and conclusions of law.
Affirmed.
