IN THE MATTER OF MICHAEL OXHORN

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4684-07T34684-07T3

IN THE MATTER OF MICHAEL OXHORN,

JUDICIARY - HUDSON VICINAGE.

_________________________________

 

Argued March 25, 2009 - Decided

Before Judges Parrillo and Lihotz.

On appeal from a Final Administrative Decision of the Merit System Board, Docket No. 2006-2482.

Melanie Oxhorn of the Commonwealth of Massachusetts, New York and District of Columbia bars, admitted pro hac vice, argued the cause for appellant (Kaps & Barto, and Ms. Oxhorn, attorneys; Raymond Barto, on the brief).

Alyson R. Jones, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Melissa Raksa, Assistant Attorney General, of counsel; Ms. Jones, of counsel and on the brief).

PER CURIAM

Appellant Michael Oxhorn was employed as a Judiciary Clerk II and worked for the State Judiciary in the Hudson Vicinage. Oxhorn was charged with two counts of violating the Judiciary's sexual harassment policy and one count of conduct unbecoming a public employee. The vicinage Trial Court Administrator, Joe Davis, reviewed the investigation report of the alleged sexual harassment and concluded Oxhorn's conduct supported the claims, warranting disciplinary action. Oxhorn appealed and a two-day hearing on the disciplinary charges was presented before a hearing officer. A final recommendation for disciplinary action was made and Oxhorn filed for a de novo review by the Administrative Director of the Courts, who confirmed the vicinage's conclusions. On December 21, 2005, the vicinage Assignment Judge concluded Oxhorn's conduct warranted Oxhorn's removal from employment and issued a termination of his employment.

Oxhorn filed a timely appeal to the New Jersey Department of Personnel Merit Systems Practices and Labor Relations Board (the Board), which assigned the matter to the Office of Administrative Law (OAL) as a contested case, resulting in a hearing before Administrative Law Judge (ALJ) Jeffrey A. Gerson. Oxhorn appeals from the Board's final decision, which accepted and adopted the findings and conclusions of the ALJ that Oxhorn's removal was justified. Oxhorn argues the credibility findings of the ALJ, adopted by the Board, were unsupported by the record. We disagree and affirm.

The charges against Oxhorn stemmed from two incidents involving employee J.B., a Judiciary Clerk III, who worked in the Family Division. Oxhorn was the permanent file room clerk responsible for maintaining the main file room in the courthouse, known as the Cottage Street file room. The following facts are taken from the testimony of witnesses appearing before the ALJ.

On June 7, 2005, J.B., along with Antonio Arana and Kevin Homier, was assigned to work in the Cottage Street file room. Supervisors Andrea Bolden and Michelle Fields gave the clerks instructions and then left J.B., Arana and Homier to begin filing. When the three took a break, J.B. testified Oxhorn approached her to ask if she and her co-workers needed help. Oxhorn then told J.B. he liked her necklace and asked her what it said. She replied it stated her name and Oxhorn told J.B. he wanted to see it. The necklace fell just above J.B.'s breasts and Oxhorn reached toward J.B. to grab the necklace. J.B. pushed his hand away and Oxhorn made a second attempt, this time standing above J.B. and placing his hand between her shoulder and breast. When Oxhorn touched her, J.B. flung his hand away, and stated, "You know you shouldn't do that." J.B. turned to Arana and Homier and said, "That's it. I'm going back to work." J.B. stated she felt "very uncomfortable." Later that day, J.B. walked toward the radio located in the file room to turn it on. Oxhorn stood approximately one foot from J.B. and told her she was not to turn on "his radio." When J.B. ignored him and attempted to walk down a different aisle to reach the radio, Oxhorn moved to that aisle and used both arms to impede J.B. from passing, then relented.

The second incident occurred two days later. J.B. was assigned to work in the Cottage Street file room. She was in the room alone with Oxhorn and recalled:

He asked me if I needed help, if I needed to pull any of the boxes down, that he would help me, and I told him that I didn't need his help, and he told me -- he kind of started smelling me, and he told me that I had nice hair and that I smelled nice. He ran his fingers from the top of my head down the back of my hair.

J.B. ducked away and told Oxhorn not to touch her hair. After this encounter, J.B. began picking scotch tape off the metal file cabinets because she "didn't know what else to do." Oxhorn scolded her and then left the room. J.B. felt "extremely uncomfortable," but continued working. Oxhorn returned, walked down the specific isle where J.B. was working, despite numerous available alternatives. As he passed her, J.B. was pressed against the files, so the front of Oxhorn's body brushed up against the back of J.B.'s. Oxhorn again left. J.B. resumed working but then called her supervisor, Karen Michane, and told her Oxhorn was making her uncomfortable. Michane told J.B. to leave the room immediately and returned to her office.

When J.B. arrived at her office, Michane was waiting and accompanied her to be interviewed by Carl Biscaldi and Sylvia Gonzalez, Assistant Family Division Managers. Biscaldi and Gonzalez explained J.B. had to file a complaint, as required by the Judiciary Equal Employment Opportunity Complaint Procedures. Approximately one week later, Oxhorn telephoned J.B. He accused her of trying to get him fired and she hung up.

Biscaldi and Gonzalez interviewed Arana and Homier. Although there were some factual discrepancies in their respective version of events, the two corroborated J.B.'s account of Oxhorn's unwanted inappropriate touching on June 7. Arana testified J.B. was "surprised" when Oxhorn touched her and her facial expression suggested "she didn't like it. She was not expecting that." Biscaldi and Gonzalez also interviewed Oxhorn, who generally denied the incidents and subsequent phone call to J.B. Gonzalez described his demeanor during the interview as "nervous," "stuttering a little bit, sweating," "not making any eye contact," and "burying his hands on his legs or run[ning] them together."

The matter was referred to Pauline Daniels, the vicinage Equal Employment Opportunity Affirmative Action Officer, who commenced an investigation. She knew Oxhorn had been involved in a prior sexual harassment incident in 2004, after he made inappropriate comments to two female employees about their body parts, including a statement to one that "he wanted to take a picture of her 'ass.'" After that incident, Oxhorn was required to attend supplemental harassment training. Also, in 2004, Oxhorn was suspended for three days following a workplace violence incident involving a male employee. Daniels concluded Oxhorn's conduct violated the Judiciary's policy and recommended disciplinary action be taken to stop the harassment.

The vicinage Trial Court Administrator, Joe Davis, testified regarding his review of the investigation report of J.B.'s allegations compiled by Daniels. Davis also reviewed Oxhorn's past disciplinary actions.

Oxhorn called Amelia DeFilippis. She did not initially come forward during the vicinage investigation. She recalled J.B. calmly stating she did not like going to the file room and would make sure she never had to go again. DeFilippis could not pinpoint the date J.B. made this statement. She also acknowledged she did not have a good relationship with J.B.

Oxhorn also testified in his own behalf. He related innocuous exchanges he had with J.B. and Arana about their noise level and the radio on June 7. He refuted the suggestion that he impeded J.B.'s access to the radio and that he touched her. He could not recall whether she wore a necklace and denied seeing her on June 9. Oxhorn was reticent when questioned about his two prior disciplinary incidents while employed by the Judiciary.

The ALJ found Oxhorn's testimony was "completely incredible while J.B. and Arana corroborated by Homier were credible." He found "Oxhorn sexually harassed J.B. by making physical contact with her body in a manner that was certainly unwelcome[]" on June 7, 2005. Further, the ALJ found "[J.B.]'s version of the incidents on both June 7 and June 9[] [were] factually accurate and corroborated by the immediacy of her complaint and the visual observations of her supervisor who confirmed that J.B. was extremely upset by the unwelcome sexual advances." The ALJ concluded the "[m]ore egregious conduct as exemplified by Oxhorn's sexual harassment of [] [J.B.] bypasses the principles of progressive discipline" and "requires termination."

The Board independently evaluated the record and accepted and adopted the Findings of Fact and Conclusions contained in the ALJ's decision. Oxhorn's appeal ensued.

An appellate court is limited in reviewing a final decision reached by an administrative agency. In re Taylor, 158 N.J. 644, 656 (1999). The court must give deference to a final agency decision, such as the Board's, "unless it is arbitrary, capricious, unsupported by substantial credible evidence contained in the record, or in violation of express or implicit legislative policies." In re Juvenile Det. Officer Union County, 364 N.J. Super. 608, 614 (App. Div. 2003); Taylor, supra, 158 N.J. at 656-57; Karins v. City of Atl. City, 152 N.J. 532, 540 (1998); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Moreover, a "deferential standard applies to the review of disciplinary sanctions[,]" as the Board remains "the entity charged with keeping State-government-wide standards of employee performance relatively consistent in disciplinary matters."

A reviewing court should alter a sanction imposed by an administrative agency only "when necessary to bring the agency's action into conformity with its delegated authority. The Court has no power to act independently as an administrative tribunal or to substitute its judgment for that of the agency." In re Polk, 90 N.J. 550, 578 (1982). . . . In light of the deference owed to such determinations, when reviewing administrative sanctions, "the test . . . is 'whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness.'" Polk, supra, 90 N.J. 578 (citing Pell v. Bd. of Educ., 34 N.Y.2d 222, 233 (1974)). The threshold of "shocking" the court's sense of fairness is a difficult one, not met whenever the court would have reached a different result.

[In re Herrmann, 192 N.J. 19, 28-29 (2007).]

Therefore, an appellate court must determine whether the agency's findings could reasonably have been reached on sufficient credible evidence in the record, "considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge [] their credibility." Taylor, supra, 158 N.J. at 656 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). However, an agency decision that is manifestly erroneous is not entitled to judicial deference and must be set aside. L.M. v. State, Div. of Med. Assistance & Health Servs., 140 N.J. 480, 490 (1995).

Oxhorn's numerous arguments presented on appeal are distilled to a single issue that is, whether the ALJ's credibility findings are supported by the record. Relying on Constantino v. N.J. Merit Sys. Bd., 313 N.J. Super. 212, 225 (App. Div.), certif. denied, 157 N.J. 544 (1998), Oxhorn maintains the ALJ's opinion was the product of a "skewed assessment" of both parties' credibility. Oxhorn argues the Board should not have accepted the ALJ's findings, which he maintains, cannot be supported by the record.

When a contested case is referred to the OAL, the Board is not free to reject at will findings of fact as to issues of credibility. N.J.S.A. 52:14B-10(c) states, in pertinent part,

[an] agency head may not reject or modify any findings of fact as to issues of credibility of lay witness testimony unless it is first determined from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record.

See also, N.J.A.C. 1:1-18.6(c); Cavalieri v. Bd. of Trs. Pub. Employees Ret. Sys., 368 N.J. Super. 527, 533-34 (App. Div. 2004).

Like Oxhorn, the employee in Constantino appealed from a final determination of the Board that upheld his termination from employment based upon a charge of conduct unbecoming a public employee by reason of a continuing course of sexual harassment. Id. at 213. We rejected the Board's acceptance of the ALJ's findings of credibility, which we determined were unreliable because the ALJ "skew[ed] the record." Id. at 218. Not only did we find the witness testimony did not corroborate the victim's version of events, id. at 219-23, but also determined

[t]he ALJ confused testimony given under oath by several of the key witnesses with their paraphrased, unsigned and unsworn interviews given to a State investigator. Other testimony was mischaracterized. Exculpatory evidence was ignored. Unjustified innuendoes, either unsupported or contradicted by the record, were indulged in. Office gossip took precedence over sworn testimony.

[Id. at 214-215.]

We do not find similar flaws in the findings of fact and credibility determinations made by ALJ Gerson in this matter. A specific recitation of each witness's credibility was made, and the significant factual variations were noted, as well as those inconsistencies determined not to be meaningful. The documentary evidence, which included Oxhorn's disciplinary records and Homier's statement, was weighed along with the testimony of vicinage employees Arana, Michane, Gonzalez, Biscaldi, Daniels, and Davis. The evidence corroborated J.B.'s description of the June 7 and 9, 2005 incidents, thereby enhancing her credibility.

As to Oxhorn, the ALJ stated:

His testimony was replete with denials and an inability to recall any aspects of the allegations against him. He denied any touching of [J.B.]. He denied any conversation with [J.B.] and denied knowing why he was suspended for 3 days and denied knowing why he was sent for further [sexual harassment] training.

[Oxhorn's] defense to all of the allegations in this matter is complete denial . . . .

. . . .

[Oxhorn's] lack of credibility is underscored by not only his complete denial of the J.B. incidents but also his unbelievable contentions that he had very little contact with his [male] co-employee against whom he filed a Superior Court complaint alleging harassment. H[is] failure to recall the reason for his additional sexual harassment training is no more and no less than a highlight of [Oxhorn's] utter failure to comprehend the seriousness of his actions.

In our view, the record amply contains sufficient evidence to support the ALJ's findings of fact and credibility determinations. We discern no arbitrariness or caprice in the result reached or the reasons given. We are, therefore, required to respect the Board's expertise and defer to the Board's considered determination to accept and adopt the findings and conclusions made. See N.J.S.A. 52:14B-10(c). See also Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587-88 (2001); Karins, supra, 152 N.J. at 540.

 
Affirmed.

(continued)

(continued)

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A-4684-07T3

 

June 15, 2009