JOSE HERNAIZ v. ACADEMY BUS COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JOSE HERNAIZ,

Appellant,

v.

ACADEMY BUS COMPANY,

Respondent.

__________________________________________________

February 24, 2014

Submitted December 17, 2013 Decided

Before Judges Messano and Hayden.

On appeal from the Division on Civil Rights, EN31WB-54003.

Jose Hernaiz, appellant pro se.

Ferrara and Associates, attorneys for respondent Academy Bus Company (Joseph J. Ferrara, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent Division on Human Rights (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Farng-Yi D. Foo, Deputy Attorney General, on the brief).

PER CURIAM

Jose Hernaiz appeals from the final agency decision of the New Jersey Division on Civil Rights (Division) finding "no probable cause" that his former employer, Academy Lines LLC, improperly designated as Academy Bus Company (Academy), discriminated against him in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. The agency record reveals several undisputed facts.

Academy operates a commuter and charter bus service and hired Hernaiz, who is Puerto Rican and African-American, as a bus driver in June 2001. In November 2007, Hernaiz applied for Academy's Long Branch, New Jersey to New York City Port Authority Bus Terminal route after it became available due to a co-worker's retirement. Academy awarded the route to appellant based on his seniority. An initial dispute arose when Hernaiz was suspended without pay for five days and reassigned to an allegedly "lower paying" bus route.

On January 9, 2008, Hernaiz's supervisor, Robert Keller, received a complaint from a passenger alleging that Hernaiz called him a communist. Hernaiz denied the allegation. Two days later, while completing the morning run, Hernaiz parked his bus on the highway, exited with passengers still aboard, left the engine running, closed the bus door from the outside, and walked across the highway to the Academy bus terminal. Hernaiz stated to Keller that there was a suspicious passenger on the bus taking pictures of him. Keller temporarily removed Hernaiz from the route, but he was reinstated by Academy's Chief Operating Manager, Thomas Scullin, on January 15, 2008.

Hernaiz encountered the same passenger on January 16, 2008, but took no action. On January 17, the same person boarded the bus and was the only passenger. Hernaiz again exited the bus, closed the doors with the passenger inside, left the bus running and waved down a police car. Police removed the passenger and questioned him. He identified himself as an employee of Academy, assigned to covertly observe a bus driver's overall performance and to ensure that fare transactions were handled properly without theft.

As a result of these incidents, Academy held a meeting with Hernaiz on January 25, 2008. Academy claimed that Hernaiz's answers regarding the incidents were inconsistent and evasive. They also discovered that, on January 12, 2008, Hernaiz had filed a police report regarding the incident of the day before without giving Academy notice. Keller informed Hernaiz that he would be suspended for five days for conduct that placed passengers' safety at risk, placed the company's equipment at risk and exposed Academy to liability. Academy issued a report on January 25, 2008, detailing this meeting. The report included a "final warning" advising Hernaiz that he would be discharged if at any time in the future he placed passengers or equipment at risk, or failed to exercise good judgment when handling similar matters.

On February 27, 2008, through his attorney, Hernaiz disputed Academy's conclusions. He denied putting passengers and equipment at risk, sought reimbursement for his suspended time and requested return to the route. Notably, Hernaiz did not allege that his suspension was based on race or national origin.

In the interim, Hernaiz had returned to work on January 31, 2008, and was assigned alternative routes between New Jersey and New York. His prior route was awarded to another driver. Hernaiz filed his first complaint with the Division alleging a violation of the LAD on June 11, 2008.

Hernaiz asked Keller to place him on additional afternoon runs to compensate for wages he lost as a result of re-assignment, and Keller denied this request. Keller informed Hernaiz that he would not be considered for additional assignments until he operated his current assignments in a satisfactory manner. Keller also noted numerous customer complaints about Hernaiz s conduct on his current route.

On July 2, 2008, a passenger requested that the route be assigned to another driver who was more accommodating to commuters because Hernaiz was routinely ten to fifteen minutes late to her bus stop, resulting in her late arrival at work. The same passenger filed another complaint about Hernaiz's late arrivals some weeks later. On July 21, 2008, a different passenger complained about Hernaiz's lateness and requested that he be removed from the route. On September 30, 2008, Keller issued another report and warning to appellant.

In February 2009, Hernaiz requested a reassignment to a route that would be completed by 6:00 p.m. Keller denied the request. In a March 23, 2009 memo, he summarized all the complaints regarding Hernaiz's tardiness. Keller noted that seniority was not the only factor used in assigning bus routes, and he stated that Hernaiz's current routes were selected to limit the consequences of his performance issues.

In June 2009, Academy received a complaint letter signed by twenty-seven passengers. The letter stated that ever since appellant had been assigned to their route, he often arrived ten to fifteen minutes late, refused to use the high-occupancy-vehicle (HOV) lane and would further delay their commute by refusing to drop them off on the upper level of the Port Authority Bus Terminal in Manhattan, despite being told to do so by the dispatcher. The passengers asked that Hernaiz be removed and placed on a non-rush hour route.

On August 13, 2009, Academy terminated Hernaiz based on the June 2009 customer complaints, which led Keller to conclude that Hernaiz's conduct remained unacceptable despite prior warnings. Hernaiz amended his complaint to the Division to include an allegation of retaliation in violation of the LAD.

The Division conducted an investigation and obtained documentation regarding the above incidents. It also interviewed Hernaiz, who denied claims of being intentionally late and asserted that two other drivers, who were not African-American or Puerto Rican, were often behind schedule, yet were not warned or disciplined. In response, Keller stated that Academy had not received any customer complaints regarding those two drivers, and that neither of them was intentionally delaying his route. Further investigation revealed that Keller had discharged two non-minority bus drivers for similarly poor performance in 2007 and 2008.

The Division issued written findings and determined the investigation "did not support a reasonable suspicion that [Academy] removed [Hernaiz] from his permanent bus assignment or suspended him because of his race or national origin[,]" and that "the investigation did not support the allegation that [Hernaiz] was discharged in retaliation for filing discrimination charges against [Academy]." The Division found no probable cause to sustain Hernaiz's complaints that Academy violated the LAD.

Before us, Hernaiz argues the Division's finding of no probable cause was not supported by the record, and that his suspension was based on his race and national origin, and his termination was in retaliation for his initial complaint. Among other things, Hernaiz contends Academy failed to train him properly so he could handle situations involving "suspicious passengers" on his bus. He also claims that Academy created a hostile work environment by placing a covert observer on his bus.

Pursuant to N.J.S.A. 10:5-14, the Director of the Division is charged with investigating claims of discrimination made under the LAD and determining whether probable cause exists that a violation occurred. "Although not defined in the [LAD], in the analogous field of civil rights probable cause has been defined as a reasonable ground of suspicion supported by facts and circumstances strong enough in themselves to warrant a cautious man in the belief that the law is being violated." Sprague v. Glassboro State College, 161 N.J. Super. 218, 224-25 (App. Div. 1978) (quotations and citations omitted); see N.J.A.C. 13:4-10.2(b). The Director's investigation and decision as to probable cause is not an adjudication on the merits, but rather, it operates as an initial "culling-out process" whereby the Division makes a preliminary decision as to whether a complaint should proceed. Frank v. Ivy Club, 228 N.J. Super. 40, 56 (App. Div. 1988), rev'd on other grounds, 120 N.J. 73 (1990), cert. denied, 498 U.S. 1073, 111 S. Ct. 799, 112 L. Ed. 2d 860 (1991).

If the Director determines there is probable cause, the complaint will proceed to a hearing on the merits. N.J.A.C. 13:4-11.1(b). However, if the Director finds there is no probable cause, that finding is a final agency order, subject to review by the Appellate Division. N.J.A.C. 13:4-10.2(e); R. 2:2-3(a)(2).

Our review of the Director's decision, like the final decision of other agencies, is limited. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988). We do "not substitute [our] judgment of the facts for that of an administrative agency." Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001) (citing Clowes, supra, 109 N.J. at 588). "'If the Appellate Division is satisfied after its review that the evidence and the inferences to be drawn therefrom support the agency head's decision, then it must affirm even if the court feels that it would have reached a different result itself.'" In re Young, 202 N.J. 50, 70 (2010) (quoting Clowes, supra, 109 N.J. at 588).

Having reviewed the record, we are firmly convinced the Division's decision was "supported by sufficient credible evidence on the record as a whole[.]" R. 2:11-3(e)(1)(D).

Affirmed.