IN THE MATTER OF RUBEN MORALES DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF RUBEN MORALES,

DEPARTMENT OF CORRECTIONS

_________________________________

November 19, 2014

Argued October 21, 2014 Decided

Before Judges Koblitz and Higbee.

On appeal from the Civil Service Commission, Docket Nos. 2012-2844 and 2012-3159.

Luretha M. Stribling argued the cause for appellant Ruben Morales.

Christopher C. Josephson, Deputy Attorney General, argued the cause for the Department of Corrections (John J. Hoffman, Acting Attorney General, attorney; Randy Miller, Deputy Attorney General, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent Civil Service Commission (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Todd Wigder, Deputy Attorney General, on the statement in lieu brief).

PER CURIAM

Appellant, Ruben Morales, a Corrections Officer for the New Jersey Department of Corrections (DOC), appeals from a final determination by the Civil Service Commission (CSC) removing his name from the eligible list for the position of Sergeant. Mr. Morales also appeals from a finding that he was not discriminated against on the basis of his race or national origin. We affirm.

The operative facts are outlined below. Morales, a Hispanic American, sat for the Sergeant's exam, received a passing score, and interviewed for the position. When the DOC reviewed his employment history they discovered a recent "major disciplinary action" on his record1. Consequently, his name was removed from the promotion list pursuant to a policy limiting eligibility to officers free from major disciplinary action for three years. Months later, Officer Tisdale, a lower ranking and African American corrections officer was promoted to Sergeant. Tisdale was promoted despite having more than one "major disciplinary action" on his record within the past three years.

On the above facts, Morales (1) challenged his removal from the eligibility list on the basis that he did not have a poor work history, and (2) alleged that he was treated less favorably than Tisdale on the basis of race and national origin2. In response, the Equal Employment Division of the DOC (EED) completed an investigation. They did not substantiate either claim. Rejecting appellant's allegations, the EED noted

[T]here was no evidence, witnesses or otherwise, to support the allegation. The evidence confirmed the allegation regarding the work histories. However, the investigation did not confirm that Sgt. Tisdale was promoted because of his race. Rather, the investigation revealed that at the time the work history queries were run, a clerical error on the work history of Sgt. Tisdale resulted in the omission of his [infractions].

[emphasis added.]

Morales then appealed the EED's decision to the CSC. He argued that if Tisdale's promotion was a clerical error, he should have been demoted when the administration discovered his work history. Alternatively, Morales argued that he should have been promoted to correct the inconsistent application of the eligibility rule. In response, the EED again asserted that Morales was removed from the promotion list because of his disciplinary record. The EED also discredited Morales' discrimination contentions, indicating that there was no support for a claim that the clerical error was used as a "cover-up."

On August 15, 2012, the CSC issued a final administrative decision on the matter, upholding the EED's determination that Morales was properly removed from the list and was not discriminated against. Regarding the former, the CSC noted Morales had a 120 day suspension on his record within the past three years, which was sufficient to remove his name from the subject eligibility list.

The CSC also affirmed the EED's determination that no discrimination took place. The CSC reasoned

The EED conducted an adequate investigation. It interviewed the relevant parties in this matter and appropriately analyzed the available documents in investigating the appellant's complaint. Specifically, the appointing authority concluded that the witnesses could not corroborate the appellant's various allegations, and the record does not reflect any substance evidence of discrimination on the bases of race or national origin.

. . . .

Other than his allegations, the appellant did not provide any information to show that he was discriminated against on the bases of race or national origin. Further, the appellant has failed to point to specific deficiencies in the investigation which would change the outcome of the case.

On appeal here, Morales raises essentially the same issues regarding removal from the promotion list and discrimination. Judicial review of an administrative agency is limited. Hemsey v. Bd. of Trs., Police and Firemen's Ret. Sys., 198 N.J. 215, 223 (2009). "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." Russo v. Bd. of Trs., Police and Firemen's Ret. Sys., 206 N.J. 14, 27 (2011) (quoting In re Herrmann, 192 N.J. 19, 27 (2007)). We recognize that state agencies possess expertise and knowledge in their particular fields. Hemsey, supra, 198 N.J. 223. However, when reviewing an agency action, an appellate court is "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue." Ibid. (quoting In re Carter, 191 N.J. 474, 483 (2007)).

A "strong presumption of reasonableness attaches" to the Commission's decision. In re Carroll, 399 N.J. Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001). Appellants have the burden to demonstrate grounds for reversal. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002). Under the arbitrary, capricious, and unreasonable standard, our scope of review is guided by the following: (1) whether the agency's decision conforms with relevant law; (2) whether the decision is supported by substantial credible evidence in the record; and (3) whether in applying the law to the facts, the administrative agency clearly erred in reaching its conclusion. In re Stallworth, 208 N.J. 182, 194 (2011).

N.J.A.C. 4A:4-4.7(a)(1) allows for a name to be removed from an eligibility list for a variety of reasons. Relevant here, N.J.A.C. 4A:4-6.1 permits a candidate to be removed if he or she "has a prior employment history which relates adversely to the title." Accordingly, as petitioner acknowledges, the DOC rules state that when one receives disciplinary action, then there can be no promotion for three years from that date. Here, Morales does not dispute the applicability of this rule, nor that his 120 day suspension fell within the three year period. Thus, we find no reason to disturb the finding that he was appropriately removed from the eligibility list.

Regarding the discrimination and inconsistent application of the eligibility rules allegation, we are satisfied with the administrative adjudication of this matter. N.J.A.C. 4A:7-3.1 prohibits employment discrimination on the bases of "race, creed, color, national origin, nationality, ancestry, age, sex/gender, etc." As an enforcement matter, "the State and its agencies reserve the right to take either disciplinary action, if appropriate, or other corrective action." Ibid. On appeal from an administrative agency's finding, "the appellant shall have the burden of proof." Ibid.

Morales has not met that burden. As the CSC and EED both indicate, there is no substantive evidence to show that Morales was discriminated against. The EED conducted an investigation, interviewed witnesses, and analyzed documents. They found no discrimination. Further, the EED and CSC found it credible that Tisdale's record was overlooked as a clerical error, and not as pretext for discriminatory practices. Morales points to no deficiencies in the investigation or substantive evidence to prove his case. The determination was not arbitrary, capricious, or unreasonable. The agency decision was based upon the competent and credible evidence in the record. We find Morales' arguments without merit and affirm the decision of the Civil Service Commission.

Affirm.

1 Morales' file indicates that he "allowed [an] inmate to pass by officers; resulting in assault." He received forty-five days suspension and seventy-five days for record keeping purposes.

2 We recognize that Morales advanced a retaliation claim. We are satisfied that such a claim is not viable because Morales had not previously complained about alleged discrimination. Morales points to no factual basis for this claim and we find that it lacks sufficient merit to warrant discussion. R. 2:11-3(E)(1)(D) & (E).