IN THE MATTER OF DWAYNE SMITH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0698-11T2

IN THE MATTER OF

DWAYNE SMITH.

___________________________

October 2, 2012

Argued September 12, 2012 - Decided

Before Judges Accurso and Lisa.

On appeal from the New Jersey Civil Service Commission, Docket No. 2011-2478.

Francine Foner argued the cause for appellant Dwayne Smith (Hyderally & Associates, attorneys; Ty Hyderally and Ms. Foner, on the briefs).

Brandon Hawkins, Deputy Attorney General, argued the cause for respondent New Jersey Civil Service Commission (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Hawkins, on the brief).

PER CURIAM

Dwayne Smith appeals from an August 17, 2011 final agency decision of the Civil Service Commission (Commission). The Commission approved the recommendation of the Department of Corrections (DOC) that appellant be terminated from his position as a senior corrections officer at Northern State Prison after he failed to investigate or report statements made to him by a nurse at the prison that she was being harassed by another corrections officer. We reject appellant's claims that the Commission's decision was arbitrary and capricious and lacked support in the record, that termination of his employment was disproportionate to his offense, and that the charges were merely a pretext for retaliation. After reviewing the record and these arguments in light of applicable law, we affirm.

The record developed before the Administrative Law Judge (ALJ) established that Smith was assigned with another senior corrections officer, Devere Hatchett (Hatchett), to the infirmary at the prison. Also assigned to the infirmary was a nurse employed by the University of Medicine and Dentistry (UMDNJ). The nurse described both Smith and Hatchett as friends from work. The nurse testified, however, that she had problems with Hatchett who would touch her and squeeze her buttocks. The nurse stated that she had mentioned to Smith that Hatchett was "bothering" her, but did not provide details of Hatchett's conduct. Smith never asked how Hatchett was bothering her, and was generally reluctant to talk with her about "the job." She testified that she told Smith that she did not "want any prison scandal, I just want Officer Hatchett to stop." She further testified that Smith had advised her to speak to Sergeant Cunya, who he said was very nice, and to tell him what Hatchett was doing to her and that Sergeant Cunya would talk to Hatchett.

Against this backdrop, the nurse testified that on the evening of August 7, 2010, she, Smith, and Hatchett were working the overnight shift in the infirmary. At about midnight, after the nursing assistant had left the infirmary, the nurse testified that Hatchett came into the nursing station, grabbed her from behind, and pushed his hand down her pants and squeezed her buttocks. The nurse went to Smith and told him that "Hatchett is starting up again." She testified that Smith replied, "Okay. This is what we can do. Okay. Ask the nurse here to switch with you - ask the nurse to switch with you, you stay in the back and she goes to the front and when you see Sergeant Cunya tell him exactly what Hatchett is doing."

The nurse testified that she could not get her colleague to switch places with her. At 4:00 a.m., Hatchett caught the nurse alone, pushed his hand down the back of her pants, groped her buttocks, exposed himself to her, and forced her to touch him as he masturbated. Afterwards, when she angrily showed Smith the tissues she had used to wipe her hands, asking "do you see what Hatchett did?" Smith responded, "What are you showing me?" He asked no other questions, and the nurse testified that she walked away from him without further comment.

The prison also presented the testimony of Samuel Wise, a senior investigator at the prison at the time of these events. Wise testified that he, along with investigators from the Essex County Prosecutor's Office, had investigated the nurse's allegations that Hatchett had sexually assaulted her. Wise testified that in the course of the investigation, the nurse reported telling Smith, before the assault, that Hatchett had been bothering her, and that Smith had responded by telling her to report it to a supervisor. Wise then interviewed Smith. Wise testified that Smith admitted that the nurse had told him that Hatchett had been harassing her, and that Smith had advised her to report it to a supervisor. While Smith denied that the nurse had reported the sexual assault to him, he admitted that the nurse had tried to show him something that night. Wise testified that Smith had said, "he was tired, confused and I believe didn't really want to hear it, in some sense of the words."

Smith testified that he had been employed by DOC since 1997, and had served as a senior corrections officer for twelve years. Before being employed as a prison guard, Smith had been a police officer in Hillside for two years. At the time of these events, he testified that he was responsible for "the security of the [infirmary] unit and to maintain the safety of the employees and the care of the inmates." He acknowledged that only two officers were assigned to the infirmary on the overnight shift, and that Hatchett controlled the only door into the unit. Smith noted, however, that prison policy requires the area sergeant and lieutenant to make at least two rounds of their area each night.

Smith testified that he and the nurse were dating in 2010. He admitted that he was aware of "friction" between the nurse and Hatchett and that the nurse would, on occasion, say that "he's starting up." Smith testified that he never saw Hatchett behave inappropriately toward the nurse, and that she never went into any detail about what her problem was with Hatchett, despite Smith having questioned her about it. Smith thought it peculiar that she wouldn't discuss the details, but testified that it did not appear to him to be a particular problem. Smith also testified that the nurse never told him she was afraid of Hatchett, and that he had seen her laughing and joking with him. He testified that he thought the nurse may have been interested in Hatchett, as well as himself. When Smith asked the nurse why she interacted with Hatchett if she had a problem with him, she would simply walk away without answering him. Smith testified that this left him confused. Nevertheless, Smith explained that he tried to help the nurse by suggesting that she switch positions with another nurse so she could avoid contact with Hatchett.

Smith admitted that the nurse had come into his area on August 7, 2010 before midnight and said, "He's starting up." He further admitted that the nurse had come back several hours later and said, "look at what Hatchett did" to which he replied, "What are you showing me?" and that she walked away without replying. He acknowledged having told investigators from the prosecutor's office and the prison investigating Hatchett's alleged sexual assault of the nurse, that he had not at first seen what the nurse was holding in her hand. He testified that the nurse never told him that Hatchett had assaulted her. He explained that it was late, and he was tired and confused and "not up for any conversation." He testified that although he had been annoyed, he had not shown his feelings, but had questioned her appropriately, and that it was the nurse that had concluded their encounter by walking away without any response to his question.

Smith was charged with conduct unbecoming a public employee, in violation of N.J.A.C. 4A:2-2.3(a)6; conduct unbecoming an employee, in violation of DOC Human Resource Bulletin 84-17 as amended (HRB 84-17) C11, and violation of a rule, regulation, policy, procedure, order, or administrative decision, in violation of HRB 84-17 as amended E-1.

In upholding the charges, the ALJ noted in her initial decision that corrections officers serve in "a capacity analogous to police officers" and thus are "held to a high standard of conduct, both on and off the job." In re Phillips, 117 N.J. 567, 576-77 (1990). Specifically, she noted that in discharging their responsibilities, law enforcement officers are required to "exercise tact, restraint and good judgment" in their interactions with the public. Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965), certif. denied, 47 N.J. 80 (1966). She found that Smith's conduct fell below that standard when he responded to the nurse's several complaints of Hatchett bothering her by advising "that she should tell the sergeant."

The ALJ found the prison's witnesses believable and persuasive and more credible than Smith, whom she described as evasive and unresponsive in his testimony. She found that the nurse had often told Smith that Hatchett was bothering her and that:

[i]t was appellant's responsibility to ask her the details as he is the first line of protection. He was told something had happened and did nothing in response, and as a result [the nurse's] safety and security were compromised. It was appellant's job to act on the information and he did not do so. [The nurse] was a female nurse in a male prison, a highly controlled environment having a problem with an officer who controls access to the unit in which she works and yet appellant responded by telling her to "tell a sergeant." Appellant is an experienced former police officer and correction officer and his responsibilities are to maintain the safety and security of the area and the people there - it was his responsibility to tell the sergeant - not [the nurse's].

The ALJ also found that the nurse informed Smith that Hatchett had sexually assaulted her and that Smith had told her to report it to a supervisor. She determined that a review of Smith's disciplinary record was unnecessary, as the egregiousness of the offense rendered removal the proper penalty.

Smith filed exceptions to the ALJ's decision in which he argued that the ALJ misconstrued the nurse's testimony to mean that she had complained about Hatchett bothering her before the night he sexually assaulted her. He also contended that the nurse having shown him a napkin and making a vague comment that Hatchett was "starting up again" did not give rise to a duty to report. Finally, Smith argued that the charges were a pretext for retaliation on the part of DOC because of Smith's failure to assist it in defending the nurse's civil suit.

The Commission affirmed the ALJ's decision, although disagreeing with the ALJ's finding that the nurse informed Smith that she was actually sexually assaulted on August 8, 2010. Upon its de novo review of the record, the Commission found that both the nurse and Smith testified that the nurse had shown something to Smith while complaining about Hatchett, but that the nurse had walked away without providing Smith with any details. Nevertheless, the Commission found that it was clear from the record that the nurse had informed Smith on prior occasions about a problem with Hatchett and had done so on the night of the assault. Thus, although Smith was aware of a problem, he failed to take any proactive measures to address the situation before the assault and failed to investigate the nurse's complaint afterwards. The Commission also agreed that removal was the appropriate penalty in light of the egregious nature of the offense. Smith renews his arguments to the Commission on this appeal.

Our review of administrative agency actions is limited. In re Herrmann, 192 N.J.19, 27 (2007). We will not upset an agency's final quasi-judicial decision absent a "clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Id. at 27-28. The scope of our review is limited to three inquires:

(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.

[Id. at 28 (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

When an agency's decision satisfies those criteria, we owe "substantial deference to the agency's expertise and superior knowledge of a particular field." Ibid. We pay such deference even when we would have decided the case differently had we heard the proofs, Murray v. State Health Benefits Comm'n, 337 N.J. Super. 435, 443 (App. Div. 2001), because we do not independently assess the evidence as if we were the court hearing it in the first instance. In re Taylor, 158 N.J. 644, 656 (1999).

This same deferential standard applies to our review of the agency's choice of a disciplinary sanction. In re Stallworth, 208 N.J. 182, 195 (2011). We review discipline only to determine whether the "'punishment is so disproportionate to the offense, in the light of all of the circumstances, as to be shocking to one's sense of fairness.'" Ibid. (quoting In re Carter, 191 N.J. 474, 484 (2007)). Although the concept of progressive discipline, which promotes uniformity and proportionality in the discipline of public employees, has long been a recognized and accepted principle, West New York v. Bock, 38 N.J. 500, 523 (1962), our courts have also long acknowledged that "some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record." Carter, supra, 191 N.J. at 484.

In cases involving the discipline "of police and corrections officers, public safety concerns may also bear upon the propriety of the dismissal sanction." Id. at 485. Smith, as the ALJ correctly noted, is "a special kind of public employee," held to a higher standard of personal integrity and dependability than civilian employees because he is a sworn law enforcement officer. Moorestown, supra, 89 N.J. Super. at 566.

Finally, we give "due regard to the opportunity of the one who heard the witnesses to judge their credibility." Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997). We will not disturb the ALJ's credibility findings unless they were "arbitrary or not based upon sufficient credible evidence in the record as a whole." Cavalieri v. Bd. of Trs. PERS, 368 N.J. Super. 527, 537 (App. Div. 2004).

Here, the ALJ had the opportunity to hear the testimony of the witnesses and to evaluate their credibility. She made an express finding that the nurse and Investigator Wise, who testified for the prison, were believable and persuasive, and more credible than Smith, whom she found evasive and unresponsive.

The Commission accepted the ALJ's credibility findings and conclusions, albeit rejecting her specific factual finding that the nurse informed Smith that she was actually sexually assaulted on August 8, 2010. The Commission thoroughly explained its disagreement with the ALJ on that specific finding based on the testimony in the record in accordance with our holding in Cavalieri. Ibid. The nurse and Smith both testified that the nurse did not tell Smith that Hatchett had assaulted her when she tried to show Smith the tissues she had used to wipe Hatchett's semen from her hands.

The Commission also clearly set forth its basis for accepting the remainder of the ALJ's factual findings and her conclusion that the charges should be upheld. The Commission found that the nurse had informed Smith on prior occasions about a problem with Hatchett, and had done so on the night of the assault. Smith's own testimony supports these findings. Thus, although Smith was aware of a problem, he failed to take any proactive measures to address the situation before the assault and failed to investigate the nurse's complaint afterwards. The Commission's findings are fully supported by the record. We have been provided with no meritorious basis to overturn the Commission's decision accepting, in part, and rejecting, in part, the ALJ's findings.

We further reject Smith's argument that the penalty of removal was excessive and unwarranted. Smith was a law enforcement officer charged with the safety of staff in the prison. He was well aware that the nurse was not at liberty to leave the infirmary and go about the prison at will, and that Hatchett controlled the only door into the unit, in any event. He further knew that Hatchett had "bothered" the nurse on prior occasions and that "he was starting up" on the night of the assault. Smith was the only other officer in the unit on the overnight shift, the only one to whom the nurse could have turned for assistance. His response, that the nurse should try and switch spots with another nurse and report Hatchett to a sergeant, fell far below what is expected of a law enforcement officer. Moorestown, supra, 89 N.J. Super. at 566. Such conduct, contributing as it did to the safety and security of the nurse being compromised, is sufficiently egregious to warrant the extreme penalty of removal. Herrmann, supra, 192 N.J. at 33 (Progressive discipline may be bypassed "when an employee engages in severe misconduct, especially when the employee's position involves public safety and the misconduct causes risk of harm to persons or property.").

Smith contends that by upholding this sanction we create a new reporting standard that will chill open discourse among employees. We create no new standard. We merely affirm the Commission's application of the standard enunciated in Article II, Section 6, of DOC's Rules and Regulations for Law Enforcement Personnel, under which Smith was charged, that requires reporting of all "crimes, misconduct or unusual incidents" which come to the officer's attention in the course of his or her duties.

We reject Smith's further argument that the charges were retaliatory as there is no evidence to support such claims in the record. Finally, we note our agreement with the Commission's conclusion that Smith's argument that another officer who also failed to act on the nurse's complaints was not disciplined, does not bear on whether Smith's misconduct was inappropriate or egregious.

Affirmed.