IN THE MATTER OF PEDRO DELGADO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0702-09T2

IN THE MATTER OF

PEDRO DELGADO.

________________________________________________________________

December 9, 2010

Argued October 13, 2010 - Decided

Before Judges Wefing, Baxter and Koblitz.

On appeal from the New Jersey Civil Service Commission, Docket No. 2008-3580.

Jacqueline B. Bittner argued the cause for appellant Pedro Delgado (Billy E. Delgado, attorney; Ms. Bittner, on the briefs).

Benjamin D. Leibowitz, Deputy County Counsel, argued the cause for respondent County of Middlesex (Thomas F. Kelso, Middlesex County Counsel, attorneys; Mr. Leibowitz, on the brief).

Paula T. Dow, Attorney General, attorney for respondent New Jersey Civil Service Commission (Andrea R. Grundfest, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Pedro Delgado appeals the Civil Service Commission's (Commission) determination that his repeated offensive remarks to a subordinate Middlesex County (County) corrections officer, based on her sexual orientation, merited a demotion from lieutenant to sergeant at the County's adult correction facility. The Commission accepted the administrative law judge's findings of fact and recommendation to uphold the appointing authority's decision to demote Delgado. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The administrative law judge conducted a three-day trial where fourteen witnesses testified. The evidence developed showed that Delgado had worked as a corrections officer since 1987. Delgado received copies of the County's sexual harassment policy over the years. More recently he received specific training and a copy of the County's personnel policy manual (manual), which included a section on sexual harassment, on September 14, 2007.

W.P., a lesbian corrections officer, began her career in the Middlesex County Corrections System in 2001, as a civilian employee. She became friendly with Delgado, who was then a corrections officer. W.P. became a corrections officer in 2004, and has worked in the jail ever since.

W.P. began having problems with Delgado in 2007, after he was promoted to lieutenant and became the shift commander on the second shift. In May 2007, Delgado said to W.P. in the jail, with an unknown civilian man present: "Tell him I'm the only guy you ever f_ _ked.1" In the fall of the same year, Delgado, while laughing and smiling, repeated this remark in front of other lieutenants. W.P. walked away, upset and embarrassed. Delgado repeated the comment on other occasions, although W.P. told him to stop.

On another occasion, Delgado told W.P.: "You are my favorite boy." Although W.P. asked him not to say that anymore, he said it about ten times between May 2007 and January 2008.

When another lesbian corrections officer was having surgery, Delgado asked W.P.: "Is she having surgery to put a dick on?" W.P. walked away in response to his question.

On several occasions in W.P.'s presence and in reference to her, Delgado remarked jokingly to other officers: "She's more man than you'll ever be." W.P. was offended by this remark.

On Christmas Eve, December 24, 2007, W.P. was taking pills for a headache in the presence of other corrections officers when Delgado said: "What are they, your testosterone pills?" As W.P. walked away, she heard Delgado say: "Tell him I'm the only guy you ever f_ _k." Shortly thereafter, W.P. submitted an informal written complaint to her superior officers in the jail.

On January 4, 2008, Delgado responded to W.P.'s request for a day off by saying in front of another officer: "I am sick of you females." On January 7, 2008, W.P. began the process of registering a formal complaint, which was investigated by the County's affirmative action officer.

Initially, when questioned by the affirmative action officer, Delgado denied making all of the comments. At trial, however, he admitted to saying that W.P. was "more of a man" than the other male officers, which he claimed he intended as a compliment.

Other witnesses confirmed that Delgado made all of these comments. Another lieutenant testified that after hearing some of these comments he explained to Delgado: "You're a lieutenant now, you got to knock it off. You're held to a higher standard." The lieutenant's comments reflected the fact of Delgado's increased responsibilities. As shift commander, Delgado ran the entire operation of the jail if both the warden and captain were not present.

On the basis of these facts, the Commission determined that Delgado's statements were inappropriate and constituted conduct unbecoming of a public employee, discrimination and sexual harassment. The Commission noted that as a county corrections lieutenant, Delgado should be aware of the chain of command and maintain an "image of utmost confidence and trust."

Delgado had no record of major disciplinary actions since beginning his employment in 1987. The Commission reviewed the penalty independently, finding that Delgado's demotion did not violate the principles of progressive discipline because the conduct was egregious considering "his utterly offensive and derogatory comments based on the subordinate's sexual orientation."

On appeal,2 Delgado raises the following points:

I: STANDARD OF REVIEW

II: THE BOARD'S DECISION TO DISCIPLINE PETITIONER FOR VIOLATION OF THE COUNTY HARASSMENT POLICY ABSENT A SHOWING THAT HE ENGAGED IN UNLAWFUL CONDUCT IS ARBITRARY AND CAPRICIOUS AND SHOULD BE DISMISSED

III: PETITIONER IS ENTITLED TO DISMISSAL OF THE CHARGES BECAUSE THE COUNTY'S BIASED INVESTIGATION IRREMEDIABLY DENIED PETITIONER THE RIGHT TO A FAIR TRIAL

IV: A VIOLATION OF PETITIONER'S DUE PROCESS RIGHTS REQUIRES DISMISSAL OF THE CHARGE FOR UNBECOMING CONDUCT

V: THE ADMINISTRATIVE LAW JUDGE ERRED WITH RESPECT TO CERTAIN KEY EVIDENTIARY RULINGS AT TRIAL

VI: THE ADMINISTRATIVE LAW JUDGE'S DETERMINATION THAT DELGADO HAD VIOLATED COUNTY POLICY 1:28-1 ET SEQ. WAS NOT SUPPORTED BY THE FINDINGS AND WAS AGAINST THE WEIGHT OF THE EVIDENCE

VII: THE PENALTY WAS EXCESSIVE

We have held that a "strong presumption of reasonableness must be accorded [to an] agency's exercise of its statutorily delegated duties." In re Certificate of Need Granted to the Harborage, 300 N.J. Super. 363, 380 (App. Div. 1997).

"An administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).

As the Supreme Court noted in Herrmann, supra, 192 N.J. at 28, "[t]hree channels of inquiry inform the appellate review function." They are:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Ibid. (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

"When an agency's decision meets [these] criteria, then a court owes substantial deference to the agency's expertise and superior knowledge of a particular field." Ibid.

I.

Delgado argues that the Commission and the administrative law judge did not make the required finding of unlawful conduct in deciding that he violated the County's anti-harassment policy. The administrative law judge found that Delgado violated the County's sexual harassment policy because his "comments were insulting and demeaning and were based on a subordinate's sexual orientation." Delgado argues that the administrative law judge should have determined whether or not the comments were unwelcome and thus unlawful, because in one section of the manual entitled, "What Constitutes Unlawful Sexual Harassment" on page 101, after advising that the County will look to existing laws, regulations and court decisions, the County indicates that:

To provide some guidance, Sexual Harassment is currently defined in the Equal Employment Opportunity Commission's Guidelines, 29 C.F.R. 1604.1 et. seq. as:

Unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of [a] sexual nature when: . . . (3)Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment.

Earlier, in its "Statement of Purpose" on page 100, however, the manual states:

Unlawful discrimination and harassment undermine the integrity of the employment relationship. It is a violation of the County's personnel policies and State and Federal laws. It debilitates morale, is offensive, interferes with work productivity, and creates a hostile and intimidating work environment.

A single inappropriate remark or conduct can give rise to a charge of discrimination or harassment, even if the intent behind it was entirely innocent. Consequently, at all times employees should be mindful of what they say and do. Past practice and apparent tolerance for any improper remark or conduct is no excuse to continue such conduct or remarks. Employees should be respectful of each other at all times.

Delgado focuses on the word "unwelcome in the manual on page 101, arguing that the administrative law judge did not specifically find that Delgado's comments were not welcomed by W.P. The focus at trial was on whether or not Delgado made the comments in question, which he denied. The administrative law judge found that Delgado was evasive and that W.P. was credible. W.P. testified that she was embarrassed and stressed by Delgado's comments. She did not complain earlier because she was "scared, nervous and afraid of retaliation." If indeed the manual can be read to require proof that the comments were unwelcome, such proof was found implicitly by the administrative law judge.

The idea that such comments could be welcomed by W.P. was rejected by the Commission as well. The Commission remarked that Delgado's "contention that the policy only covers 'unwelcome conduct' is unconvincing as the comments, whether welcome or not, were offensive and inappropriate on their face."

II.

Delgado also argues that the investigation by the County's affirmative action office was biased and violated state regulation, thereby depriving Delgado of a fair trial. Although the affirmative action officer who conducted the investigation was trained and experienced, she did not conduct an exhaustive investigation into the context of the comments or the overall relationship between W.P. and Delgado. Delgado, however, had a full trial before the administrative law judge where he had the opportunity to explore all of the issues not fully fleshed out by the initial investigation. Delgado exercised his right to call witnesses, cross-examine and testify. He was provided a full and complete hearing. Any defects in the initial investigation did not affect his trial.

III.

Delgado raises for the first time on appeal that he was not provided sufficient notice of the basis for the charge of conduct unbecoming an officer. The preliminary notice of disciplinary action charged Delgado with violating four sections of the Administrative Code including conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6). The specifications section related the particular "offensive, disparaging sexual remarks" he was alleged to have made to W.P.

Delgado was found to have committed unbecoming conduct on the basis of these comments. Corrections officers, like police officers, are held to a higher standard of conduct than ordinary citizens or other public employees because of the sensitive nature of the position they occupy. See Moore v. Youth Corr. Inst., 230 N.J. Super. 374, 386 (App. Div. 1989),aff'd, 119 N.J. 256 (1990).

This is not a criminal proceeding where the concepts of merger apply. N.J.S.A. 2C:1-8. In criminal cases where a defendant's conduct is alleged to constitute more than one offense, the defendant may only be charged and punished for the greater offense. See Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:1-8 (2010). In the context of these facts, where the offensive comments sustained charges of harassment as well as conduct unbecoming, we find this argument to be without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

IV.

Delgado argues that the administrative law judge made several incorrect evidentiary rulings and allowed into evidence the comment, "I'm so sick of you females" although this was not one of the comments delineated in the original charges. We find that any error in considering this comment was harmless, in light of the allegations of more offensive comments Delgado knew he was facing and were proven at trial. See State v. Macon, 57 N.J. 325, 337-38 (1971) (finding that although improper, a prosecutor's comment during summation that defendant called his attorney the morning after the alleged crime was not reversible error). Delgado also argues that the findings were not supported by the evidence. He claims that the evidence supported the finding that W.P. welcomed the comments by Delgado and complained only in retaliation because he did not give her preferential treatment. The administrative law judge had an opportunity to assess the credibility of the witnesses. His findings are well supported by the record, and we therefore have no occasion to disturb them.

V.

Finally, Delgado argues that considering the principles of progressive discipline, the Commission should have imposed a lesser penalty in light of his excellent work record. The decision of the Commission will not be overturned unless it is arbitrary, unreasonable, or "shocking to one's sense of fairness." Div. of Alcoholic Bev. Control v. Maynards, 192 N.J. 158, 184 (2007) (finding a 370-day suspension of defendant's alcohol license imposed by the Director of the Division of Alcoholic Beverage Control due to criminal acts of defendant's employee was excessive).

The Commission considered several factors when determining Delgado's punishment, including the seriousness of the incidents, his prior record and the concept of progressive discipline. The Commission found that demotion to sergeant was appropriate due to the seriousness of the remarks, the fact that Delgado was a superior officer and W.P.'s supervisor, and the fact that he had no major disciplinary infractions on his record.

Delgado was warned by a fellow lieutenant that he should modify his language in light of his rank. This warning, similar to a minor disciplinary action, should have resulted in Delgado refraining from further offensive comments. The penalty of reduction in rank was significant. Certainly the Commission had discretion to impose a lesser penalty such as a period of suspension. However, Delgado also could have received a more severe, two-step demotion, or even been terminated. In light of the seriousness of Delgado's transgressions, we do not find the penalty imposed by the Commission to be unwarranted.

Affirmed.

1 The record contains the actual term.

2 Although the County did not previously file a motion to dismiss, the County asks that we dismiss this appeal because it was not filed timely. Twp. of S. Orange Vill. v. Hunt, 210 N.J. Super. 407, 415 n.3 (App. Div. 1986) (noting if "an appeal has been improvidently filed, respondent has the responsibility to file a timely motion to dismiss"). The Commission issued its final action on June 26, 2009. Delgado filed his notice of appeal on October 9, 2009. Appeals from administrative agencies must be filed within forty-five days of service of the decision. R. 2:4-1(b). We may grant no more than a thirty-day extension based on good cause. R. 2:4-4(a). Delgado submitted a transmittal sheet dated August 26, 2009, from the Commission providing the decision and acknowledging that Delgado's trial counsel had not previously received it. The Commission does not deny the validity of this transmission. We will not dismiss the appeal on the grounds of timeliness as it appears Delgado filed the appeal within forty-five days of receipt of the decision.