IN THE MATTER OF F.P. 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NOT FOR PUBLICATION WITHOUT THE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 F.P.,

DEPARTMENT OF CORRECTIONS.

___________________________________

ArguedMarch 11, 2015 Decided June 10, 2015

Before Judges Alvarez, Waugh, and Maven.

On appeal from the New Jersey Civil Service Commission.

David J. DeFillippo argued the cause for appellant F.P. (Detzky, Hunter & DeFillippo, LLC, attorneys; Mr. DeFillippo, of counsel and on the briefs).

Pamela N. Ullman, Deputy Attorney General, argued the cause for respondents New Jersey Civil Service Commission and Department of Corrections (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Ullman, on the brief).

PER CURIAM

Petitioner F.P. (Fred)1appeals the October 3, 2013 final administrative agency decision of the New Jersey Civil Service Commission (Commission) upholding his suspension and demotion by the New Jersey Department of Corrections (Department). We reverse and remand for a hearing.

I.

We discern the following facts and procedural history from the record on appeal.

According to Cook's statements during a Division interview, Fred had been obnoxious to her at a meeting in February. Approximately a week later, Fred came to her office and wanted to settle their differences. Cook alleged that Fred asked her out and told her "you are a beautiful person, look at you, you have a beautiful body, I just want to be intimate with you." Cook told him to leave her office. When asked to respond to that allegation, Fred replied: "I have no idea what she is talking about."

Cook also alleged that, on several occasions, Fred asked her out, told her that she was "beautiful inside and outside," that he was her "friend," and that he wanted to "be with her intimately." Fred denied those allegations, except for acknowledging that he and Cook had gone out for a drink one day after work in 2011.

Cook further alleged that Fred was unprofessional toward female employees, specifically by shouting at them, raising his voice around other staff, and pointing his finger in their faces. She asserted that he did not subject male employees to this behavior. Fred denied the allegations stating, "I have no idea what she is speaking about. I totally deny it. I don't talk to anyone that way."

When shown post-it notes submitted by Cook,2Fred acknowledged that he wrote them and left them on her desk. He also acknowledged that he left Cook little gifts on her desk, such as an Easter Bunny and a Mickey Mouse. Fred explained, however, that he also gave souvenirs to other colleagues, both female and male.

According to Cook, she had complained about the notes the prior year and had the locks to her office changed, but the notes continued. Fred acknowledged that he "had left something" in Cook's office, explaining that "[a]s an Administrator, I have a key to everyone's [o]ffice." He also asserted that she did not "own that [o]ffice" and that "[a]s an Administrator, [he had] the right to enter any [o]ffice at any time."

Fred also denied Cook's allegation that he referred to her as "crazy" in the presence of other staff members on two occasions. He told the interviewer that Cook

suffers from a serious medical illness. She often came to work in pain but was able to do her work. I often sympathized with her because I saw the pain she was in[,] and she's a hard worker. I often felt sorry for her. It is my understanding from her, that her illness was not curable and progressively would get worse. I felt sorry for her. She is a nice person. I thought it was nice to leave her notes to make her feel good. As I indicated, I travel often and always bring back souvenirs to many employees. [Cook] on one occasion saw that[,] by me using soap in the men's room[,] caused my face to blush; therefore she brought me[,] with her own money, special soap, body lotion and something else. We have always been good friends and nothing more. I firmly believe this is coming about only at this time because [Cook] is mad at me for changing her meeting on May 17, 2012 from 11:00 a.m. to 11:30 a.m. This meeting was changed by me under the direction of Mr. Lagana[,] our Administrator[,] due to the graduation and the busy schedule on that day. I have in my possession, three statements from Medical staff that witnessed the verbal interaction between me and [Cook].

3 On October 2, 2012, the Division substantiated two violations of the Department's policy prohibiting discrimination in the workplace: (1) N.J.A.C.4A:2-2.3(a)(12) (violating the policy) and (2) N.J.A.C.4A:2-2.3(a)(6) (conduct unbecoming an employee). The decision was based on the record of the investigation, without a hearing. As a result, Fred was suspended without pay for forty working days, demoted and reassigned to another facility, and required to attend training.3

Fred appealed to the Commission. He submitted a copy of an email exchange with Cook, dated May 16, to support his position that Cook was unhappy about his changing the time of a meeting earlier on that day. It read, in part, as follows

[12:19 p.m.]

[Fred],

There were not [sic] allegations and my description of your work ethics are FACTS as documented furthermore, I CAN AND WILL produce valid documentation to substantiate and solidify that you are indeed un- professional.

You continue to disrespect me and disregard my position in NJDOC while exalting your position and power.

. . . .

[12:00 p.m.]

[Cook],

I would appreciate, in the future, before you make false, baseless allegations regarding my professionalism, my work ethics and myself to other NJDOC employees that include my immediate supervisors, that you inquiry [sic] as to the FACTS as they relate to your allegations.

. . . .

[11:20 a.m.]

Mr Lagana,

This is the first time I have brought this to your attention but it is certainly not the first time [Fred] has over stepped his boundaries.

[Fred] met with the Medical Management Team some time ago and proceeded to change the time of tomorrow"s [sic] Bi-monthly State from 11: 00 Am to 11:30 Am. He was kind enough to inform me of such a change a few minutes ago.

I would hate to see this pattern continue. I will not continue to be the subject of such gross disrespect in the work place provided to me while being employed by NJDOC.

Fred submitted written statements from three other employees who witnessed the verbal exchange between Cook and Fred at that meeting. They reported that Cook expressed her "dissatisfaction" or "unhappiness" about the change in the meeting schedule.

Fred also submitted statements attesting to his character and workplace conduct from three coworkers: Marvin Blevins, Diane Doran, and Tanya Everette. Blevins stated that he was "certain that the allegations of [s]exual [h]arassment . . . are completely falsified," because he had known Fred for twenty-five years and Cook had accepted Fred's invitation for a drink. He also noted that Fred "always gave gifts to many co-workers." Doran stated that Fred had given her gifts, and had also left notes on her desk after she had left for the day. She also noted that she found the sexual harassment allegations "impossible to believe due to the fact that [Cook] and [Fred] went out for a drink." Everette, who worked in the Human Resources Department, reported that "[a]s a female employee, these alleged behaviors have never been directed at me. More significantly, these alleged behaviors have NEVER been report[ed] to ANY Human Resources [personnel]." She also noted that she and other coworkers have received gifts from Fred.

3 On October 3, 2013, the Commission sustained the disciplinary actions taken by the Department, stating

[T]he Commission has conducted a review of the record and finds that the [Division] conducted a thorough investigation. Specifically, it interviewed the relevant parties in this matter in investigating the complaint filed by [Cook]. The [Division] substantiated the allegations based on interviews with witnesses, that [Fred] entered [Cook]'s office on a regular basis and made comments about her appearance; [Fred] once entered [Cook]'s office and commented on how nice her legs looked; [Cook] received unsigned notes in her office; [Cook] often complained about [Fred] asking her out, making comments about her appearance, and asking her to be intimate with him; and the secretary for the Administrator confirmed that [Fred] would ask for the keys to [Cook]'s locked office, even after the locks had been changed, and he often asked her the whereabouts of [Cook], who did not report to him. The [Division] noted that although there were a number of witnesses who were not eyewitnesses, their recollections of the statements reported by [Cook] were all consistent.

On appeal, [Fred] merely contends that the allegations against him were false and uncorroborated, as well as filed in retaliation for an incident that happened at a meeting on May 17, 2012. [Fred] also attempts to explain other behaviors, such as leaving a gift, leaving notes in [Cook]'s office, and referring to [Cook] as crazy as saying it does not constitute sexual harassment under the laws of the State. However, [Fred's] allegation of retaliation based on a meeting [is] not persuasive as the [Division] has indicated that, based on its investigation, there was sufficient evidence to indicate a violation of the State [p]olicy. . . .

. . . Indeed, sexual comments and gestures can and do constitute a violation of the State [p]olicy and it is emphasized that such conduct need not rise to the level of "severe and pervasive" in order to constitute such a violation. See In the Matter of Iraida Afanador, (MSB, decided January 31, 2007).

[(Footnote omitted).]

In addition, the Commission expressed "serious concern" regarding Fred's solicitation of witness statements as part of his appeal, contending that it violated the confidentiality provision of N.J.A.C.4A:7-3.1(j). The Commission noted that, instead of approaching the witnesses during the appeal,

[t]he proper course of action would have been for [Fred] to provide potential witness names during the investigation. In this case, the Commission has significant concerns that the witness statements that [Fred] provides were equivalent to an impermissible interrogation of potential witnesses in violation of the State [p]olicy. . . . [T]he statements that [Fred] obtained contained specific information about his relationship with [Cook] and her allegations that clearly could have undermined the confidentiality of the investigation. . . . [T]he Commission finds that [Fred] breached the confidentiality provision of the State [p]olicy. . . .

. . . [A]fter its review of the statements, the Commission does not find that the information contained in the statements provides a basis to reverse the findings of the [Division's] investigations. For example, it is irrelevant that [Fred] never sexually harassed one witness or that she is not aware of any other allegations against him, as one instance of sexual harassment can be a violation of the State [p]olicy. Accordingly, based on the foregoing, the Commission finds that the [Division]'s investigation was thorough and impartial, and a sufficient basis exists to find violations of the State [p]olicy.

This appeal followed.

II.

On appeal, Fred argues that he was deprived of due process because he was not allowed discovery and was denied an evidentiary hearing. He further argues that the Commission's decision was arbitrary, capricious, and not supported by facts in the record.

A.

Before turning to our consideration of the issues raised by Fred, we outline the law governing our decision. Our scope of review of an administrative agency's final determination is limited. In re Carter, 191 N.J. 474, 482 (2007). We accord a "strong presumption of reasonableness" to the agency's exercise of its statutorily delegated responsibilities. City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). The burden of showing that the agency's action was arbitrary, unreasonable, or capricious rests upon the appellant. Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).

The reviewing court "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. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008); see also Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9-10 (2009).

Absent arbitrary, unreasonable, or capricious action, or a lack of support in the record, "[a]n administrative agency's final quasi-judicial decision will be sustained." In re Herrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). The court "may not vacate an agency determination because of doubts as to its wisdom or because the record may support more than one result," but is "obliged to give due deference to the view of those charged with the responsibility of implementing legislative programs." In re N.J. Pinelands Comm'n Resolution PC4-00-89, 356 N.J. Super. 363, 372 (App. Div.) (citing Brady v. Bd. of Review, 152 N.J. 197, 210 (1997)), certif. denied, 176 N.J. 281 (2003).

In reviewing administrative adjudications, an appellate court must undertake a "careful and principled consideration of the agency record and findings." Riverside Gen. Hosp. v. N.J. Hosp. Rate Setting Comm'n, 98 N.J. 458, 468 (1985) (citing Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). "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." Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988). If, however, our review of the record leads us to conclude that the agency's finding is clearly erroneous, the decision is not entitled to judicial deference and must be set aside. L.M. v. Div. of Med. Assistance & Health Servs., 140 N.J. 480, 490 (1995). We may not simply rubber-stamp an agency's decision. In re Taylor, 158 N.J. 644, 657 (1999).

Although an appellate court is "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue," Mayflower, supra, 64 N.J. at 93, if substantial evidence supports the agency's decision, "a court may not substitute its own judgment for the agency's even though the court might have reached a different result," Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992) (citing Clowes, supra, 109 N.J. at 587).

The State's policy concerning discrimination in its workplace was established by the former Merit System Board in 2002 through its adoption of Amendments and Additions to N.J.A.C. 4A:7. 34 N.J.R. 261(a). N.J.A.C. 4A:7-3.1(a) provides that the State "is committed to providing every State employee and prospective State employee with a work environment free from prohibited discrimination or harassment," including discrimination or harassment based on sex or gender. Because it is "a zero tolerance policy," "the State and its agencies reserve the right to take either disciplinary action, if appropriate, or other corrective action, to address any unacceptable conduct" in violation of the policy. Ibid.

The general procedures to be followed by a State agency in the event of a complaint are outlined in N.J.A.C. 4A:7-3.2, including the following

(i) At the EEO/AA[4] Officer's discretion, a prompt, thorough, and impartial investigation into the alleged harassment or discrimination will take place.

 
(j) An investigatory report will be prepared by the EEO/AA Officer or his or her designee when the investigation is completed. The report will include, at a minimum

 
1. A summary of the complaint;

 
2. A summary of the parties' positions;
 
3. A summary of the facts developed [through] the investiga-tion; and

 
4. An analysis of the allegations and the facts. The investigatory report will be submitted to (State agency head) who will issue a final letter of determination to the parties.

 
(k) The (State agency head or designee) will review the investigatory report issued by the EEO/AA Officer or authorized designee, and make a determination as to whether the allegation of a violation of the State's Policy Prohibiting Discrimination in the Workplace has been substantiated. If a violation has occurred, the (State agency head or designee) will determine the appropriate corrective measures necessary to immediately remedy the violation.

 
(l) The (State agency head or designee) will issue a final letter of determination to both the complainant(s) and the person(s) against whom the complaint was filed, setting forth the results of the investigation and the right of appeal to the Merit System Board as set forth in subsection (m) and (n) below. To the extent possible, the privacy of all parties involved in the process shall be maintained in the final letter of determination. The Division of EEO/AA, Civil Service Commission, shall be furnished with a copy of the final letter of determination.

 
1. The letter shall include, at a minimum:
 
i. A brief summary of the parties' positions;
 
ii. A brief summary of the facts developed during the investiga-tion; and

 
iii. An explanation of the determination, which shall include whether:
 
(1) The allegations were either substantiated or not substantiated; and

 
(2) A violation of the Policy Prohibiting Discrimination in the Workplace did or did not occur.

 
2. The investigation of a complaint shall be completed and a final letter of determination shall be issued no later than 120 days after the initial intake of the complaint referred to in (h) above is completed.

 
3. The time for completion of the investigation and issuance of the final letter of determination may be extended by the State agency head for up to 60 additional days in cases involving exceptional circumstances. The State agency head shall provide the Division of EEO/AA and all parties with written notice of any extension and shall include in the notice an explanation of the exceptional circumstances supporting the extension.

(m) A complainant who is in the career, unclassified or senior executive service, or who is an applicant for employment, who disagrees with the determination of the (State agency head or designee), may submit a written appeal, within twenty days of the receipt of the final letter of determination from the (State agency head or designee), to the Civil Service Commission . . . .

If an appeal is made from the agency head to the Commission, the appellant bears the burden of proof on appeal. N.J.A.C. 4A:7-3.2(m)(4). The Commission decides the appeal on "a review of the written record, or such other proceeding as it deems appropriate. See N.J.A.C. 4A:2-1.1(d)." N.J.A.C. 4A:7-3.2(m)(3). N.J.A.C. 4A:2-1.1(d) provides that, "[e]xcept where a hearing is required by law, this chapter or [regulations concerning layoffs], or where the Civil Service Commission finds that a material and controlling dispute of fact exists that can only be resolved by a hearing, an appeal will be reviewed on a written record."

The Fourteenth Amendment of the United States Constitution provides that no state shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, 1. In broader language, our State Constitution declares that "[a]ll persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness." N.J. Const. art. I, 1. Although this provision of our State Constitution does not actually include the phrase "due process," it is well understood that, like the Fourteenth Amendment, it "protects against injustice and, to that extent, protects 'values like those encompassed by the principle[] of due process.'" Doe v. Poritz, 142 N.J. 1, 99 (1995) (alteration in original) (quoting Greenberg v. Kimmelman, 99 N.J. 552, 568 (1985)).

Notice and the opportunity to be heard are "[t]he minimum requirements of due process." U.S. v. Raffoul, 826 F.2d 218, 222 (3d Cir. 1987) (citing Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975)). In Sabia v. Elizabeth, 132 N.J. Super. 6, 14 (App. Div. 1974), certif. denied, 67 N.J. 97 (1975), we held that a disciplinary proceeding for a public employee is

in no way a criminal or quasi-criminal proceeding and, consequently, respondents in such a proceeding do not come within the shield of the various constitutional guarantees accorded persons accused of a crime. Departmental disciplinary proceedings are civil in nature; requirements of due process are satisfied so long as proceedings are conducted with fundamental fairness, including adequate procedural safeguards.

Consequently, "a hearing on a record consisting only of written documents is appropriate where there is no genuine issue as to any material fact." Fraternal Order of Police Lodge # 1 Camden v. City of Camden Police Dep't., 368 N.J. Super. 56, 62 (Law Div. 2003) (emphasis added).

B.

Based upon the legal principles outlined above, we have determined that a remand is required. Our reading of the record convinces us that there are crucial, disputed issues of material fact that cannot be determined on the papers, making a hearing necessary as a matter of due process, ibid., and the Commission's own regulations, N.J.A.C. 4A:2-1.1(d). To the extent the Commission determined that a hearing was unnecessary, we find that decision arbitrary, capricious, and unsupported by the record on appeal.

It is clear from the limited record before us that most, if not all, of Cook's most damaging factual assertions were directly disputed by Fred. For example, he denied that he expressed a desire for intimacy with her. We fail to see how the truth of those very crucial, competing factual assertions can, consistent with basic due process, be decided on the papers.

In addition, there were undisputed facts whose import was disputed. By way of example, Cook alleged that Fred left post-it notes and presents on her desk, an assertion Fred did not deny. However, he explained that he had left presents for other employees, both male and female, and had left post-it notes for other female employees, assertions for which there is some support in the record. If true, Fred's explanation could be found to undercut the force of Cook's implicit allegation that she was the subject of disparate treatment based on gender and Fred's interest in dating her.

We also have concerns about the record on which the Department and Commission made their determinations. Although we have the summary of the Division's interview with Fred, which also reflects assertions made by Cook, it appears that the Department's decision was based on a larger record. We find it troubling that the record on which the Department's decision was based is not before us, and was apparently not before the Commission. And, if the decision was based only on a summary of the investigation, we find that troubling in itself.

While we understand the need for confidentiality, the requirements of basic procedural fairness require that appellate review be based on the same record as the initial decision, with appropriate safeguards to preserve required confidentiality. Indeed, the Commission's regulations themselves recognize that confidentiality is not absolute. N.J.A.C. 4A:7-3.1(j) ("All complaints and investigations shall be handled, to the extent possible, in a manner that will protect the privacy interests of those involved." (Emphasis added)).

In addition, it is difficult to defend against allegations of discrimination in the workplace, which are serious and understandably taken seriously by the State, without knowing the facts and evidence on which the allegations and any ultimate findings are based. In that regard, we note that Fred was suspended without pay for forty days and demoted as a result of the Department's decision, which is considered "major discipline," under N.J.A.C. 4A:2-2.2(a). While a State employee subject to major discipline is not entitled to all the rights accorded a criminal defendant, he or she is entitled to proceedings "conducted with fundamental fairness, including adequate procedural safeguards." Sabia, supra, 132 N.J. Super. at 14. If the provision of due process requires a hearing under some circumstances, any cost or inconvenience "must be borne by the public in a constitutionally governed society." In re Allegations of Sexual Abuse at E. Park High Sch., 314 N.J. Super. 149, 165-66 (App. Div. 1998).

We also note that, while the Department based its disciplinary action on the results of the investigation, N.J.A.C. 4A:7-3.1(g)(3) provides only that the investigation results should be the basis for remedial action in the workplace and the initiation of disciplinary action. Consequently, the Commission must also consider whether the Department ignored the requirements of N.J.A.C. 4A:7-3.1(g)(3) by basing its disciplinary action solely on the investigation report.

For these reasons, we vacate the Commission's decision and remand for further consideration of Fred's request for discovery and a hearing, consistent with the due process principles outlined above.

Reversed and remanded.

1 We use pseudonyms for the sake of confidentiality.

2 The post-it notes are not part of the record, and were not specifically listed on the Commission's statement of the record on appeal.

3 Fred subsequently retired.

4 The EEO/AA is the Division of Equal Employment Opportunity and Affirmative Action. N.J.A.C. 4A:7-2.1.