IN THE MATTER OF EDWINA WASHINGTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3488-13T3

IN THE MATTER OF EDWINA

WASHINGTON, EAST JERSEY STATE

PRISON, DEPARTMENT OF CORRECTIONS.

December 9, 2015

Argued November 12, 2015 Decided

Before Judges Fuentes, Koblitz and Gilson.

On appeal from the New Jersey Civil Service

Commission, Docket No. 2014-34.

David J. Heintjes argued the cause for appellant Edwina Washington.

Robert M. Strang, Deputy Attorney General, argued the cause for respondent Department of Corrections East Jersey State Prison (John J.Hoffman, Acting Attorney General,attorney; Melissa H.Raksa, AssistantAttorney General, of counsel; Mr. Strang, on the brief).

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

PER CURIAM

Edwina Washington appeals from the Civil Service Commission (Commission) February 26, 2014 final administrative decision, terminating her employment with the Department of Corrections (DOC) for "conduct unbecoming a public employee." The Commission s decision adopted without modification the findings of facts and conclusions of law reflected in the Initial Decision of Administrative Law Judge (ALJ) Jesse H. Strauss. We affirm substantially for the reasons expressed in ALJ Strauss's thorough and well-reasoned November 18, 2013 decision.

In 2005 Washington was a DOC senior corrections officer with approximately eight years of experience. She had one prior disciplinary incident resulting from an unscheduled absence and had received "exceptional" performance evaluations. Two less-experienced officers who worked with her at East Jersey State Prison testified that Washington behaved inappropriately with an inmate. They testified that Washington spent hours each day talking to the inmate and also directed him to adjust the Velcro straps of the protective vest located under her shirt. The inmate confirmed that he adjusted the vest.1 The officers also reported that Washington threw ice at this inmate while he was in the shower, and made him mop the floor with a clown drawing around his neck. These incidents were not reported in writing.

One of the less-experienced officers also testified that Washington threatened her with inmate reprisals after the officer enforced a prison rule against an inmate. A sergeant corroborated that this officer was extremely fearful when she informed him of the threat.

Although Washington denied that any of these incidents occurred, the ALJ found her to be less credible than the array of witnesses who testified against her. He gave reasons for his credibility findings, including the fact that the newer officers were hesitant to report a senior officer who was acting in a mentoring role. We defer to the credibility findings of the ALJ. Burlington County Bd. of Soc. Servs. v. G.W., 425 N.J. Super. 42, 47 (App. Div. 2012). ("We defer to the ALJ'S adverse credibility determination as to appellant's testimony, as we are obliged to 'give due regard to the opportunity of the one who heard the witnesses to judge their credibility.'") (Internal citations omitted).

"Our scope of review of an administrative agency's final determination is limited." In re Reallocation of the Prob. Officer, 441 N.J. Super. 434, 443 (App. Div. 2015). We are bound to affirm the agency's factual findings as long as they are supported by substantial evidence in the record, even if we would "have reached a different result." In re Stallworth, 208 N.J. 182, 194-95 (2011). We also afford the administrative agency's decision "a 'strong presumption of reasonableness'" when it is discharging a particular statutorily-delegated responsibility. Lavezzi v. State, 219 N.J. 163, 171 (2014) (quoting City of Newark v. Nat. Res. Council, Dep't of Envtl. Prot., 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980)). Ultimately, we will uphold the agency's final decision unless an appellant has shown it is "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Ibid. (quoting Prado v. State, 186 N.J. 413, 427 (2006)). Having reviewed the record, we discern nothing arbitrary, capricious or unreasonable in the Commission's decision and conclude that the fact findings were supported by substantial credible evidence.

Although Washington first raised the issue of progressive discipline in her reply brief, and therefore the issue was not properly presented, State v. Lenihan, 219 N.J. 251, 265 (2014), we nevertheless briefly discuss it. ALJ Strauss discussed at length the safety reasons for imposing the ultimate discipline of removal rather than pursuing progressive discipline. He noted Washington gave the inmate "access to parts of her body unprotected by the vest; access to wing keys, batons, mace or any items that may have been on her belt; and access to items in the secured area." ALJ Strauss also commented on her threatening behavior, "Washington's angry threat that inmates would handle [the less-experienced female officer] and put her in her place and show her who is boss was most egregious because of the environment in which it was made."

Progressive discipline is not appropriate in all circumstances. If the behavior is particularly grievous, as it was here, removal of an employee without a history of disciplinary infractions does not shock our sense of fairness. See In re Carter, 191 N.J. 474, 484-85 (2007) (quoting In re Polk License Revocation, 90 N.J. 550, 578 (1982)) (noting that a court will not disturb the Commission's penalty unless "such punishment is 'so disproportionate to the offense . . . as to be shocking to one's sense of fairness'").

Affirmed.

1 The ALJ appropriately applied the residuum hearsay rule, pursuant to N.J.A.C. 1:1-15.5, to admit the inmate's statements to the investigating officer.