KATHY DIXON v. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6325-08T2

A-6326-08T2

MICHELLE RICKETTS,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, POLICE AND

FIREMEN'S RETIREMENT SYSTEM,

Respondent-Respondent.

___________________________________

KATHY DIXON,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, POLICE AND

FIREMEN'S RETIREMENT SYSTEM,

Respondent-Respondent.

___________________________________

May 6, 2011

 

Argued: April 6, 2011 - Decided:

 

Before Judges Axelrad, R. B. Coleman and

J. N. Harris.

 

On appeal from the Board of Trustees of the Police and Firemen's Retirement System, Department of Treasury, PFRS #3-10-032068 and #3-10-031242.

 

Jeffrey A. Bronster argued the cause for appellants.

 

Danielle P. Schimmel, Deputy Attorney General, argued the cause for respondents (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Schimmel, on the brief).

PER CURIAM

In these back-to-back appeals, Kathy Dixon and Michelle Ricketts, former corrections officers, appeal from the final decision of the Board of Trustees, Police and Firemen's Retirement System (Board) concluding each appellant was permanently psychologically disabled from performing her regular and assigned duties as a result of ongoing sexual harassment by a fellow corrections officer, but neither qualified for enhanced benefits for accidental disability. We affirm.

The facts of both cases are undisputed and based entirely on the testimony of Dixon and Ricketts, the only two people to testify at the administrative hearing. Dixon and Ricketts were both general assignment officers with the Department of Corrections (DOC) at the time their respective alleged traumatic events took place. Most of their assignments were at the DOC's South Kearny facility, a satellite unit of the Adult Diagnostic Treatment Center (ADTC) in Avenel. The ADTC houses sexual predators convicted of rape, child molestation and related offenses. Many of the inmates in this facility carry AIDS, herpes, hepatitis and other sexually-transmitted diseases. The inmates are generally allowed to move around the facility and associate with each other, confined to their cells only for sleeping and for head counts. As part of their duties, Dixon and Ricketts were required to be alone with the inmates in a cell block or pod and were to radio for help or blow a whistle if a problem arose.

Sergeants Collins and Russo were the immediate supervisors of both appellants during the relevant time periods. Both appellants worked with fellow corrections officer Andrew Booker, the individual accused of sexually harassing both women.

Dixon and Ricketts filed applications for accidental disability retirement benefits on January 20, 2004, and July 12, 2004, respectively. On November 8, 2004 (Dixon), and June l5, 2005 (Ricketts), the Board granted appellants ordinary disability benefits. However, the Board denied each appellant accidental disability benefits, finding each respective appellant had not demonstrated the incident described as occurring on September 24, 2003 (Dixon) or on November 6, 2003, (Ricketts) constituted a "traumatic event" pursuant to N.J.S.A. 43:16A-7 and relevant case law.1 Appellants requested administrative hearings and the matters were transferred to the Office of Administrative Law as contested cases. During their pendency, the Board reconsidered appellants' applications in light of recent New Jersey Supreme Court decisions,2 and again denied accidental disability benefits to Dixon on December 8, 2008, and to Ricketts on June 11, 2008.

The administrative appeals were consolidated and a hearing was conducted on one day in April 2009. The record closed on May 13, 2009. Administrative Law Judge (ALJ) Jesse H. Strauss issued an initial decision on June 15, 2009, finding both appellants "testified sincerely, candidly, and credibly" and accepting their testimony as factual, but recommending the denial of accidental disability benefits be affirmed in both instances. The Board adopted the ALJ's initial decision as the final agency decision on July 13, 2009. Both women appealed. On appeal, they challenge as error the ALJ's application of the definition of a "traumatic event."

I.

Dixon's problems began in spring 2003, when Booker began to make rude and sexually explicit statements to her, many times in the presence of her immediate supervisors. The first incident involved Booker making an inappropriate comment to Dixon about her nipples in front of Sergeant Russo. Dixon walked away and declined to complain to her superiors because Sergeant Russo had heard the comment and did not do anything. Booker was not disciplined for this incident.

On another occasion, Booker made a comment about how large Dixon's backside was in front of Sergeant Collins and the sergeant simply chuckled. Dixon became upset but ignored the comment and walked away. Weeks later, Dixon rebuffed Booker when he placed his hands on her shoulders and asked her out on a date. Sergeants Russo and Collins were both present for this exchange and simply laughed. In May 2003, in the presence of Sergeants Russo, Collins and other coworkers, Booker put his arms around Dixon and stated, "I want to take you. I want to get with you." Dixon explained she was particularly disgusted by this incident because it was witnessed by several of her coworkers. Dixon took Booker aside and told him she was tired of his behavior and threatened to have a friend come and "kick his ass" if he did not stop. Booker walked away and stopped speaking to her from that point forward.

Dixon also overheard and witnessed Booker's inappropriate comments and behavior toward other female employees. Booker would talk about women's body parts, refer to women as "thick" and talk about how he was going to "hit that," in reference to sex. Other corrections employees, including Sergeants Collins and Russo, were present for many of these comments. On another occasion, in front of Sergeant Russo, Booker waved a condom in the air and stated to Dixon, "[t]his is like American Express. I never leave home without it." Sergeant Russo merely shook his head and walked away. On another occasion in May 2003, Dixon witnessed Booker walk up behind Ricketts and stroke her back until Ricketts pushed him away. Sergeant Russo also witnessed the incident and did nothing.

Dixon testified that she viewed her employment at the DOC as a career, not just a job. Even before the alleged traumatic event took place, she began waiting in her car until just before her shift started to avoid contact with Booker. Dixon explained that she declined to file a complaint for any of the above-described incidents because her supervisors "were in the midst of it. They were right there with them laughing about it. They heard it." To Dixon's knowledge, Booker was never disciplined for his inappropriate behavior.

The incident that led most directly to Dixon's disability occurred on September 24, 2003. She learned from a kitchen supervisor, Andrew Dorfman, that Booker told him to spread a rumor that Dorfman had caught Dixon having sex with an inmate in the kitchen. Dorfman was also instructed to say that the inmate threatened to harm him if he reported the incident. Dorfman acknowledged this was a lie.

Dixon attempted to go about her day but was extremely upset. She learned from Dorfman that Internal Affairs was investigating whether the sexual encounter took place. Dixon testified that aside from the fact rumors spread quickly within the facility, there is an unofficial website for corrections officers where people post gossip about occurrences in the facilities. Corrections officers from all over the state commonly view the website. The false rumor was detailed on this website, using Dixon's real name as well as the name of the facility.

Dixon was called into the Internal Affairs office, accompanied by a fellow corrections officer. She left the office without answering any questions when her request for union representative presence was denied. Dixon testified that throughout that day, she noticed inmates looking at her, some calling her a "whore," which had never happened before. Dixon explained she was beside herself at this point, fearing the rumor might encourage inmates to be aggressive toward her. The fact that many of the inmates carried sexually-transmitted diseases exacerbated her fear of being raped. Dixon stated that she "believe[d] in my heart that I would have been attacked." She conceded on cross-examination, however, that no inmate had actually threatened her.

Dixon submitted an incident report and left work early, unable to finish her shift. She never returned to the facility. Dixon explained that she could not return to work because she was confused, fearful and angry. She felt the other corrections officers and her superiors believed the false rumor and would be slow to come to her aid in the event she was attacked by an inmate. Dixon stated, "[t]hey would believe I did it, . . . I was having sex with them and now I'm crying rape, because of the rumors from before." Dixon conceded that no other corrections officer had said anything that led her to this conclusion but noted that her supervisors' failure to respond to Booker's earlier sexist comments affected her thinking in this regard.

Dixon elaborated that she suffered from depression as a result of this experience and was unable to return to work because of her fear of being raped. At the time of the hearing, Dixon still felt depressed, useless, confused and hurt, and continued to take sleeping medication nightly.

Ricketts was subjected to similar treatment at the hands of Booker, beginning in May 2003. The first incident occurred during a shift change when Booker ran his hand down Ricketts' hair and towards her backside. Ricketts pulled away and made it very clear the contact was unwelcome. This was the same incident Dixon witnessed and described in her own testimony. The next incident occurred in the presence of many other corrections employees, including Sergeants Collins and Russo, when Booker tried to hug Ricketts. She cursed at him and he removed his arms and walked away laughing. The sergeants witnessed the encounter and did nothing. Ricketts also testified that Booker would often ask her out in a number of inappropriate ways, using offensive language and referring to her female body parts. These types of statements were made in the presence of supervisors, including Sergeants Collins and Russo.

Ricketts also witnessed Booker treat other female corrections employees poorly. He referred to certain women as "black bitches," talked about females' backsides, commented on Dixon's breasts, and made many other sexually inappropriate statements. Many of these comments were made in the presence of supervisors, who did nothing, and sometimes even laughed. Ricketts related that she learned another female corrections officer, Tracy Ann Frank, had filed a discrimination report against Booker in 2002 for making insensitive comments to her. Ricketts also acknowledged she knew of Booker's penchant for inappropriate comments as early as 1989, when they attended training academy together.

Like Dixon, Ricketts never complained to her superiors because they witnessed much of the inappropriate behavior and did nothing. Ricketts came to feel she had no one to turn to and she "basically had to handle it [herself]." Similar to Dixon, Ricketts testified she loved her job and considered it a career. Once her problems with Booker began, however, she began to feel confused and depressed. She did not understand why Booker targeted her. She also felt she had no support from her supervisors.

Ricketts' alleged traumatic event was similar to Dixon's, also involving a false rumor begun by Booker that Ricketts had had sex with an inmate. On November 6, 2003, a fellow corrections officer named Alan Dennis told Ricketts that Booker was "out of control" and had been spreading rumors about her for months. According to Ricketts, she felt sick to her stomach after hearing the rumors. She was also aware of the earlier rumors Booker had spread about Dixon and the effect it had on her. In fact, Sergeant Collins told Ricketts that he had lost a good officer in Dixon because of the rumors Booker had spread. Ricketts acknowledged on cross-examination that she learned the previous April that Booker had been spreading rumors about her but she did not take action because he had not yet begun to harass her and the rumors did not refer to any particular inmate.

After learning of the more specific rumors in November 2003, Ricketts became hysterical and confronted Booker about the lewd comments and the rumors. Booker screamed at her, asking what she was talking about, and had to be pulled away by Officer Dennis. Booker never expressly denied starting the rumors, only demanding to know what she was talking about.

Later that day, during a shift change, Ricketts requested a meeting with Booker, Officer Dennis, and Sergeants Collins and Russo. Ricketts again confronted Booker and he questioned why she believed what everyone else told her. Ricketts chose one of the options suggested by Sergeant Russo - speak with Superintendent Goodwin, who instructed her to fill out a report.

Ricketts prepared a report at work the following day. She never returned to work after November 7, 2003. She did cooperate with an Internal Affairs investigation after she left by detailing the incidents and providing a witness list.

As a result of the experiences described above, Ricketts testified she suffered from low self-esteem, sleeplessness and nightmares. Similar to Dixon, Ricketts began to worry that the false rumors would encourage the inmates to attack her. She also felt as though she could not rely on her coworkers in the event something happened with an inmate. Ricketts conceded on cross-examination that she never heard an inmate refer to any of the false rumors while she was there.

II.

After summarizing the applicable legal principles, the ALJ concluded appellants did not suffer a "traumatic event" as enunciated by the Patterson Court for a mental-mental accidental disability. The ALJ explained:

There is no dispute that both Dixon and Ricketts had overwhelming reactions to the hostile environment that Booker created over a period in 2003, as well as fears, following the dissemination of the sexual liaison rumors, that they would no longer receive the support of their fellow correction officers in times of peril or the requisite respect from the inmates they supervised. However, in applying the objective reasonableness standard, where the focus is on the nature of the conduct rather than on either Dixon's or Ricketts' reaction to it, neither the hostile work environment nor the rumors constituted terrifying or horror-inducing events in line with the examples given by the Patterson Court.

Analogizing appellants' cases to one of the appeals at issue in Patterson3 involving harassment based on race, the ALJ found the "prolonged exposure of Dixon and Ricketts to repeated sexually harassing remarks and gestures by Booker and the lack of intervention by supervisors, although insensitive, distasteful and inappropriate, similarly do not sustain characterization as a traumatic event."

Turning to the false rumors and appellants' resulting fear of rape or attack by inmates, the ALJ again relied on one of the cases at issue in Patterson,4 in which the Supreme Court held the traumatic event requirement could be satisfied based on a "credible threat of rape and murder against [a corrections officer's] wife and daughter by a presumed gang member who knew where [he] lived and worked." Supra, 194 N.J. at 53. The ALJ distinguished appellants' cases, finding "[t]he rumors and any subsequent references to them are not themselves acts or expressions of violence or threats of violence." The ALJ also noted that

[n]o colleague ever threatened to leave either Dixon or Ricketts unsupported in the event of a dangerous situation. No inmate ever threatened to rape or otherwise harm either of them. There is no inference or veiled threat of violence from any statement coming to the attention of either Dixon or Ricketts. Instead the fears and concerns of the potential consequences of the events on those two days constituted the internal reactions of Dixon and Ricketts.

 

Reiterating that the focus of the inquiry is on "the character of the event rather than on the reaction of the individual member," see Patterson, supra, 194 N.J. at 50, the ALJ concluded:

Notwithstanding the reactions of Dixon and Ricketts, the character of neither the events of September 24 nor those of November 6 were terrifying or horror-inducting events that involved an actual serious threat to the physical integrity of either member or another person. Id. at 34. Simply, the stressors of sexual remarks and rumors were not objectively capable of causing a permanent mental injury to a reasonable person under similar circumstances. The responses were instead idiosyncratic.

After considering the ALJ's initial decision, the exhibits, exceptions and reply to exceptions, the Board adopted the ALJ's initial decision on June 13, 2009. This final agency determination is the subject of these appeals.

III.

Judicial review of an administrative agency's determination is limited. See Caminiti v. Bd. of Trs., Police & Firemen's Ret. Sys., 394 N.J. Super. 478, 480 (App. Div. 2007). An "appellate court ordinarily should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Virtua-West Jersey Hosp., 194 N.J. 413, 422 (2008). The burden of demonstrating the agency's action was arbitrary, capricious, or unreasonable rests upon the person challenging the administrative action. Bueno v. Bd. of Trs., Teachers Pension & Annuity Fund, 404 N.J. Super. 119, 125 (App. Div. 2008) (citing McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002)), certif. denied, 199 N.J. 540 (2009). Moreover, "[w]here there is substantial evidence in the record to support more than one regulatory conclusion, 'it is the agency's choice which governs.'" In re Vineland Chem. Co., 243 N.J. Super. 285, 307 (App. Div.) (quoting De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 49l (App. Div.), certif. denied, l 02 N.J. 337 (l985)), certif. denied, 127 N.J. 323 (1990). In such a situation, we "cannot substitute our judgment for that of the agency, even if we would have decided the case differently had we heard the evidence." Murray v. State Health Benefits Comm'n, 337 N.J. Super. 435, 443 (App. Div. 2001).

Appellants contend the ALJ applied an "overly-restrictive" interpretation of the term "traumatic event," resulting in the improper denial of accidental disability benefits. Though it cannot be denied appellants endured shockingly poor treatment through no fault of their own, we are satisfied the record amply supports the ALJ's conclusion that appellants' work-related experiences do not vault the high threshold of "traumatic event" as defined in Patterson for enhanced accidental disability retirement benefits. Thus we cannot conclude the agency's interpretation was arbitrary, capricious or unreasonable.

To qualify for accidental disability retirement benefits, a PFRS member must establish he or she is:

permanently and totally disabled as a direct result of a traumatic event occurring during and as a result of the performance of his regular or assigned duties and that such disability was not the result of the member's willful negligence and that such member is mentally or physically incapacitated for the performance of his usual duty and of any other available duty in the department which his employer is willing to assign to him.

 

[N.J.S.A. 43:16A-7(1).]

In Richardson, supra, the Supreme Court outlined the elements of a meritorious claim for accidental disability retirement benefits pursuant to N.J.S.A. 43:16A-7(1), stating that a successful claimant must prove:

1. that he [or she] is permanently and totally disabled;

 

2. as a direct result of a traumatic event that is

 

a. identifiable as to time and place,

 

b. undesigned and unexpected, and

 

c. caused by a circumstance external to the member (not the result of preexisting disease that is aggravated or accelerated by the work);

 

3. that the traumatic event occurred during and as a result of the member's regular or assigned duties;

 

4. that the disability was not the result of the member's willful negligence; and

 

5. that the member is mentally or physically incapacitated from performing his usual or any other duty.

 

[192 N.J. at 212-13.]

 

A claimant who suffers a mental injury as a result of purely psychological rather than physical trauma - a so-called "mental-mental" injury - must also establish the disability "result[ed] from direct personal experience of a terrifying or horror-inducing event that involves actual or threatened death or serious injury, or a similarly serious threat to the physical integrity of the member or another person." Patterson, supra, 194 N.J. at 34. The traumatic event also must be "objectively capable of causing a permanent, disabling mental injury." Id. at 49-50. In adopting an objective standard, the Court sought to "limit accidental disability recovery to stressors sufficient to inflict a disabling injury when experienced by a reasonable person in similar circumstances." Id. at 50. The Court emphasized that "the focus of a particular analysis is on the character of an event rather than its results." Ibid.

The Board does not dispute that appellants met the Richardson standard. The dispositive issue, however, is whether either or both women met the mental-mental "traumatic event" objective requirement articulated in Patterson. In support of their position, appellants repeatedly emphasize that many of the inmates housed in the South Kearny facility carried sexually transmitted diseases and were dangerous sexual predators who were particularly likely to engage in repeated violent sexual behavior. Nevertheless, appellants both concede they were never approached or threatened by any inmates, nor was there even an inference or veiled threat of violence from any statement coming to the attention of either appellant. At most, an unidentified inmate or inmates made the general comment that Dixon was a "whore" within her earshot in the housing unit. Ricketts did not even know whether any of the inmates had heard the false rumors about her and did not observe any conduct by the inmates of a changed attitude towards her.

Appellants also concede that no corrections officers ever stated or implied they would not come to either of appellants' aid in the event of an inmate attack. Rather, appellants based this fear on the lack of response by the supervisors to Booker's inappropriate behavior and appellants' feeling that some of their colleagues might have actually believed the false rumors. As despicable as it was for DOC supervisors to sit idly by while Booker continually harassed these women, appellants provide no testimony or evidence of an objective belief that their fellow corrections officers would simply allow an inmate to rape or attack them and do nothing to help. Thus, there was ample basis for the ALJ's assessment that "the fears and concerns of the potential consequences of the events on [September 24, 2003 and November 6, 2003] [merely] constituted the internal reactions of Dixon and Ricketts."

To provide guidance on the type of "terrifying or horror-inducing" events that would qualify as "traumatic," the Court in Patterson found "instructive" N.J.S.A. 40A:14-195, a statute that creates county law enforcement crisis intervention centers to help officers cope with psychological disorders stemming from traumatic incidents. Patterson, supra, 194 N.J. at 45. The statute lists a number of "critical incident[s]" that may result in a need for debriefing and counseling before the officer can return to active duty:

[T]he firing of a weapon or an exchange of gun fire; serious bodily injury to or the death of a juvenile; a terrorist act; a hostage situation; serious bodily injury to or the death of another law enforcement officer employed in the same agency, when that serious bodily injury or death occurred in the performance of that officer's official duties; a personal injury or wound; serious bodily injury received in the performance of the officer's official duties . . . .

 

[Ibid. (quoting N.J.S.A. 40A:14-196).]

 

The Court also stated that the following incidents could allow a claimant to "vault the traumatic event threshold": a policeman who sees his partner shot; a teacher who is held hostage by a student; and a government lawyer used as a shield by a defendant. Patterson, supra, 194 N.J. at 50. Noting the "legitimate concerns [of pension boards'] about becoming bogged down in litigation over idiosyncratic responses by members to inconsequential mental stressors," the Court explained that these examples were provided in recognition of the fact that "in the context of psychological injuries, the proofs related to the traumatic nature of an event and the causal relationship between event and injury may be more problematic than in the case of a physical event." Id. at 48-49. The Court also stated that it would "rely upon the expertise of the boards to separate legitimate from illegitimate claims and to resolve the difficult causation problems inherent in accidental mental disability claims." Id. at 51.

Contrary to appellants' contention, the ALJ was not "misled" by the specific examples of traumatic events listed in Patterson. The ALJ expressly acknowledged that "there is not, and cannot be, a definitive list of events that can be categorized as terrifying or horror-inducing." Appellants nonetheless argue the ALJ erred in concluding their experiences were not analogous to that of the corrections officer in Guadagno.

Guadagno had been threatened numerous times during his five years of employment as a corrections officer. Id. at 38-39. A week before the incident that gave rise to Guadagno's accidental disability retirement claim, while escorting an inmate back to his cell, the inmate threatened that he could "turn [him] into a paraplegic . . . ." Id. at 39. On the day in question, the inmate told Guadagno, "I know you now. I know who you are. You're from Hamilton, you got that pizza place. You worked at that bar. I know you, I'm going to kill you." Ibid. Guadagno also testified the inmate knew he had a daughter and threatened his wife and daughter with rape and murder. Ibid. According to the corrections officer, the inmate further said that, even if he were unable to carry out the threat personally, "his boys" would, a threat which Guadagno understood to be gang related. Ibid. Guadagno related that the inmate's threat to him and his family demonstrating knowledge of the corrections officer's personal life was "more than the routine, idle threats he normally experienced" and "caus[ed] him great fear." Id. at 38-39. The Supreme Court reversed the Board's denial of accidental disability benefits and remanded for reconsideration in light of its opinion, stating that "the credible threat of rape and murder against Guadagno's wife and daughter by a presumed gang member who knew where Guadagno lived and worked could satisfy the traumatic event element of the statute." Id. at 53.

The degree and lack of definiteness of proof by appellants, as compared to the proofs presented by Guadagno, distinguishes the present appeal from Guadagno. As noted by the ALJ, "[t]he rumors and any subsequent references to them are not themselves acts or expressions of violence or threats of violence as were the statements made to Guadagno." Both appellants conceded they were never implicitly or expressly threatened by an inmate, and Ricketts did not even know if the inmates ever became aware of the rumor. Appellants also acknowledged that no other corrections officers stated or even implied they would not protect or come to appellants' aid in the event of an inmate attack. Under the circumstances of the cases presented by either appellant, a reasonable person would not believe she was in danger of imminent attack by one or more inmates and, if such attack occurred, she could not depend on her fellow corrections officers for protection. Moreover, appellants do not allege they feared an attack outside the facility by persons connected to a specific inmate or they believed members of their immediate family were in danger as a result of false rumors spread at Booker's behest.

Under the standards promulgated by the Supreme Court, Dixon and Ricketts are unable to vault the traumatic event threshold to qualify for accidental disability benefits. The events of September 24 or November 6 did not involve "actual or threatened . . . serious injury to [either Dixon's or Ricketts'] physical integrity." Id. at 5l. Rather, as found by the ALJ, appellants' responses to the sexual remarks and rumors were "idiosyncratic"; such "stressors . . . were not objectively capable of causing a permanent mental injury to a reasonable person under similar circumstances."

Affirmed.

 

1 The Board made this determination as to Dixon on November 8, 2004, and as to Ricketts on August 9, 2005.

2 Patterson v. Bd. of Trs., State Police Ret. Sys., 194 N.J. 29 (2008); Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189 (2007).

3 Moore v. Bd. of Trs., State Police Ret. Sys. (one of the administrative appeals contained in Patterson).

4 Guadagno v. Bd. of Trs., Police and Firemen's Ret. Sys.