IN THE MATTER OF M.M.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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 M.M.,

DEPARTMENT OF HUMAN SERVICES.

__________________________________

May 12, 2015

Argued January 5, 2015 Decided

Before Judges Simonelli, Guadagno and Leone.

On appeal from the Civil Service Commission, Department of Human Services, Docket No. 2013-1051.

Nathan M. Edelstein argued the cause for appellant M.M. (Szaferman, Lakind, Blumstein & Blader, P.C., attorneys; Mr. Edelstein, on the briefs).

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

PER CURIAM

Appellant M.M. filed an administrative complaint alleging she had been subjected to violations of the State Policy Prohibiting Discrimination in the Work Place (State Policy). The Assistant Commissioner of the Department of Human Services (DHS) determined her allegations were unsubstantiated. Her appeal of that determination was denied without a hearing by the Civil Service Commission (CSC). She appeals that denial. We vacate and remand for a hearing before the Office of Administrative Law (OAL).

I.

Appellant is a clinical psychologist at Ancora Psychiatric Hospital (Ancora), a State hospital administered by DHS. Her unsigned complaint claimed a male clinical psychiatrist ("John Doe" or "Doe") sexually harassed and discriminated against her in violation of the State Policy. Appellant alleged sixteen such instances occurred from December 2011 to February 2012. She claimed he excluded her from work conversations, denigrated her comments and care of patients, and prevented her from seeing new patients. She said that he told a DHS police officer she put ideas into a patient's head causing the patient to act out, and that her "late night visits" to patients caused their decompensation. She asserted he knocked her out of the way with his body, forcibly grabbed charts from her hand, and rudely ordered her to carry charts. She averred John Doe generally discriminated against the female staff and favored the male staff.

Appellant's attorney later wrote DHS's Office of Equal Employment Opportunity (EEO Office) asserting that in retaliation for her complaint, DHS was ordering appellant's transfer to a new unit at Ancora.

In a supplemental submission, appellant's attorney alleged additional instances of misconduct by Doe from July 2011 to March 2012. The attorney alleged the following. Doe had touched appellant roughly, loomed over her and boxed her in, and rubbed against her like a cat. The attorney named one female colleague Doe had similarly rubbed, and named another female colleague Doe poked near the breast. Doe frequently belittled female staff and failed to respond appropriately to patients' threats to their safety. Finally, Doe committed additional retaliation against appellant, including denial of her request for vacation time, charges she violated time rules, improper entry into her office, and a bad performance review after twenty-seven years of good performance reviews.

In addition to the sixteen incidents alleged in appellant's complaint, the supplemental submission by appellant's attorney claimed thirty-one instances of improper conduct by Doe towards appellant and other female staff. It named at least twenty-seven "witnesses" with pertinent information, in addition to appellant and Doe.

Appellant's attorney also alleged "on information and belief" that, before being transferred to appellant's unit in November 2011, Doe had conflicts with female staff, and had inappropriately touched a female employee. In fact, the CSC previously found that in 2009 Doe violated the State Policy by commenting, "what does she know, she is a woman." Other allegations of bias were not substantiated.

The EEO Office investigated appellant's complaint. The findings of the EEO Office were reviewed by the Assistant Commissioner of DHS. In his September 26, 2012 determination, he generally concluded that appellant's allegations against Doe "were not substantiated. [Doe] denied all the allegations and there were no witnesses who supported them." The Assistant Commissioner stated that "[s]everal current female staff members were interviewed and none of these witnesses substantiated any of the allegations"; rather, they "felt that [Doe] had not treated female staff members differently than male staff members" and "treats members of both genders fairly and equitably." Specifically, he stated that the two named female colleagues denied the alleged physical contact by Doe. The EEO Office later said it interviewed "four female witnesses" in addition to appellant and Doe.

Appellant appealed to CSC, asking the matter be referred to the OAL for an evidentiary hearing. The CSC denied her appeal on June 28, 2013. Appellant appeals to this court.

II.

We must hew to our "limited" scope of review of a final administrative decision of the CSC. In re Herrmann, 192 N.J. 19, 27 (2007). "An appellate court affords a 'strong presumption of reasonableness' to an administrative agency's exercise of its statutorily delegated responsibilities." Lavezzi v. State, 219 N.J. 163, 171 (2014). "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." Herrmann, supra, 192 N.J. at 27-28. "The burden of proving unlawful, arbitrary, or capricious action is on the appellant." In re Foglio, 207 N.J. 38, 47 (2011) (citing N.J.A.C. 4A:2-1.4(c)); see also N.J.A.C. 4A:7-3.2(m)(4). Nonetheless, "'[t]his standard requires far more than a perfunctory review; it calls for careful and principled consideration of the agency record and findings[.]'" Wojtkowiak v. N.J. Motor Vehicle Comm'n, 439 N.J. Super. 1, 13 (App. Div. 2015) (quoting Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988)).

The State Policy forbids discrimination or harassment based on specified characteristics, including sex or gender. N.J.A.C. 4A:7-3.1(a). "It is a violation of this policy to engage in any employment practice or procedure that treats an individual less favorably based upon" sex or gender, N.J.A.C. 4A:7-3.1(a)(3), "to use derogatory or demeaning references regarding a person's" sex or gender, N.J.A.C. 4A:7-3.1(b), or to engage "in threatening, intimidating, or hostile acts toward another individual in the workplace" because of his or her gender, N.J.A.C. 4A:7-3.1(b)(1)(vi). "It is a violation of this policy to engage in sexual (or gender-based) harassment of any kind[.]" N.J.A.C. 4A:7-3.1(c). "[B]ehaviors that may constitute sexual harassment" include "[g]eneralized gender-based remarks and comments," and "[u]nwanted physical contact such as intentional touching, grabbing, pinching, brushing against another's body, or impeding or blocking movement." N.J.A.C. 4A:7-3.1(c)(2)(i)-(ii). Appellant's complaint and supplemental submission alleged such violations of the State Policy.1

Moreover, the State Policy forbids "[r]etaliation against any employee who alleges that she or he was the victim of discrimination/harassment, provides information in the course of an investigation into claims of discrimination/harassment in the workplace, or opposes a discriminatory practice." N.J.A.C. 4A:7-3.1(h). Such retaliation includes "[a]ltering an employee's work assignment for reasons other than legitimate business reasons," "[i]mposing or threatening to impose disciplinary action on an employee for reasons other than legitimate business reasons," or "[o]stracizing an employee (for example, excluding an employee from an activity or privilege offered or provided to all other employees)." N.J.A.C. 4A:7-3.1(h)(3)-(5). The letter and supplemental submission by appellant's attorney alleged such retaliation.2

Thus, the primary issue here is whether a hearing was required on the alleged violations of the State Policy. By statute, the CSC shall render its final administrative decision on specified employee disciplinary appeals "[a]fter a hearing," and on other appeals "[o]n a review of the written record[.]" N.J.S.A. 11A:2-6(a), (b). The CSC's regulation governing the procedure for discrimination complaints provide that "[t]he [CSC] shall decide 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) in turn provides that "[e]xcept where a hearing is required by law, this chapter or N.J.A.C. 4A:8 [governing layoffs], or where the [CSC] 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." Thus, "the [CSC's] own rules provide for an evidentiary hearing, even where not required 'by law or these rules,' if the [CSC] 'finds that a material and controlling dispute of fact exists that can only be resolved by a hearing[.]'" In re Wiggins, 242 N.J. Super. 342, 345 (App. Div. 1990) (citing N.J.A.C. 4A:2-1.1(d)).

Here, the CSC found no material issue of disputed fact had been presented that would require a hearing.3 We cannot agree. As set forth above, appellant alleged Doe committed several violations of the State Policy, including touching two named female colleagues and treating female staff members worse than male staff members. Doe "denied all the allegations," the two named female colleagues "denied" Doe had touched them, and several current female staff members "felt that [Doe] had not treated female staff members differently than male staff members." These are plainly "dispute[s] of fact." N.J.A.C. 4A:2-1.1(d).

These disputes of fact are also "material and controlling." Ibid. As stated in the summary judgment context, "[a]n issue of material fact exists where 'the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the non-moving party.'" L.A. v. N.J. Div. of Youth & Family Servs., 217 N.J. 311, 323 (2014) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). Counsel for the CSC conceded at oral argument that some of Doe's alleged conduct, such as touching the breast of a female staff member, and disparaging female staff members based on their gender, would violate the State Policy if true.

Appellant's complaint and the supplemental submission made numerous detailed allegations with specified dates, names or titles. They were not "bald allegations or naked conclusions" that would be "insufficient to require an agency head to transmit the matter to OAL as a contested case." J.D. ex rel. D.D.H. v. N.J. Div. of Developmental Disabilities, 329 N.J. Super. 516, 525 (App. Div. 2000). As the resolution of the dispute between appellant and Doe largely turns on their credibility, we cannot conclude that "there exists a single, unavoidable resolution of the alleged disputed issue of fact," or that "the evidence 'is so one-sided that one party must prevail as a matter of law.'" Brill, supra, 142 N.J. at 540. This is not a situation where appellant "merely denied" evidence so undeniable that the CSC "would have had to ignore reality" to credit her testimony. Cf. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 449-50 (2007).

"The determination whether [a material and controlling dispute of fact] exists is one committed to the discretion of the Board, and its decision will be affirmed unless it goes beyond the range of sound judgment." Wiggins, 242 N.J. Super. at 345. Here, as in Wiggins, supra, we find the allegations and the denials raise "an intensely factual determination which controlled the outcome." Ibid. "Such a determination could be made only by [the CSC] evaluating the untested truth or falsity of the charges made by [appellant] and denied by [Doe]" and the four other interviewed persons. Id. at 345. "That [credibility] evaluation was not possible on the documentary record before the [CSC]." Ibid. at 345-46.

Furthermore, it appears the documentary record provided by DHS to the CSC was thin indeed. The EEO Office did not submit an investigation report to the CSC, see N.J.A.C. 4A:7-3.2(j), and the CSC declined to compel its production despite appellant's request, see N.J.A.C. 4A:2-1.1(d)(1). The only documents appellant found in the CSC's file were the Assistant Commissioner's three-page determination, see N.J.A.C. 4A:7-3.2(l), and DHS's four-page response to appellant's appeal to CSC.4 These documents simply state that witnesses denied or failed to corroborate appellant's allegations. The CSC did not have any written record of the witnesses' interviews, and thus could not itself evaluate them.

The CSC argues appellant's factual allegations could be rejected without a hearing because they were not corroborated. We rejected a similar argument in Wiggins, supra, 242 N.J. Super. at 345. N.J.A.C. 4A:2-1.1(d) calls for a hearing if factual allegations raise material and controlling disputes of fact; it does not require that they also be corroborated. If corroboration were a precondition for a hearing, a person whose violation of the State Policy was witnessed only by the complainant could escape a hearing and liability by simply denying the complainant's allegations. Corroboration or the lack thereof is relevant to determine credibility, but credibility should be determined at a hearing.5

Moreover, as a matter of fundamental fairness and administrative due process, "[a]n agency must grant a plenary hearing [] if material disputed adjudicative facts exist." Frank v. Ivy Club, 120 N.J. 73, 98 (1990), cert. denied, 498 U.S. 1073, 111 S. Ct. 799, 112 L. Ed. 2d 860 (1991); see also Cunningham v. Dep't of Civil Serv., 69 N.J. 13, 19-26 (1975); Wiggins, supra, 242 N.J. Super. at 345. "To rule otherwise would subject to the caprice of the agency the rights of individuals who make a prima facie showing of facts which, if established, would [entitle them to relief], . . . if the agency simply rejects those facts." B & J Realty, L.L.C. v. N.J. Dep't of Envtl. Prot., 381 N.J. Super. 52, 62 (App. Div. 2005).

Therefore, the CSC had to offer an "opportunity for a hearing," and the denial of appellant's request for a hearing was an abuse of discretion. Wiggins, 242 N.J. Super. at 346. As this is a "'[c]ontested case'" where "there exist disputed questions of [material] fact," N.J.A.C. 1:1-2.1, it must be referred to the OAL, N.J.A.C. 1:1-3.2(a). See Cunningham, supra, 69 N.J. at 25.

The CSC argues that several of appellant's allegations did not "implicate" the State Policy because they may have been motivated by Doe's personal animosity to her rather than her gender. However, appellant averred that all of the alleged incidents were sexual harassment or a hostile work environment by Doe based on her gender. Appellant's averment and her allegations created a material factual dispute, whose veracity must be determined at the evidentiary hearing.

Appellant's allegations of retaliation also must be considered in the evidentiary hearing. Despite being raised in the supplemental submission by appellant's counsel, they were not addressed in the Assistant Commissioner's determination. The CSC rejected her retaliation allegations based on the contrary factual allegations made in DHS's response to her appeal. DHS's response disputed her allegations concerning the timing and method of her denied request for vacation, and the motive for ordering her transfer. Those factual disputes are material and controlling and require a hearing. The CSC notes appellant took the vacation anyway and that her ordered transfer has not happened yet, but threatened retaliation may still be retaliation. E.g., N.J.A.C. 4A:2-5.1, 4A:7-3.1(h)(4).

We briefly address appellant's remaining claims. Because there are material factual disputes, we reject appellant's demand that we uphold her complaint as valid. Because we remand for an evidentiary hearing, we need not address appellant's contention that the EEO Office failed to conduct "a prompt, thorough, and impartial investigation." N.J.A.C. 4A:7-3.2(i). We need not rule whether the EEO Office should have interviewed the many witnesses named by appellant, whom she may attempt to call at the OAL hearing if appropriate. The OAL may address whether the EEO Office's investigation report should be produced or considered.

Our remand should in no way be read as a finding that appellant's allegations are credible. That is a subject for the OAL hearing. Nor does our opinion foreclose administrative or disciplinary action if appellant, Doe, or any other employee is found to have in bad faith and "knowingly ma[de] a false accusation of prohibited discrimination/harassment or knowingly provide[d] false information in the course of an investigation of a complaint." N.J.A.C. 4A:7-3.1(i).

We reverse the CSC's order, and remand for a hearing before the OAL. We do not retain jurisdiction.

1 Appellant also references the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. However, appellant has not identified any provision of the LAD that provides her with greater protections than the State Policy and its implementing regulations. See N.J.A.C. 4A:7-3.1(a) (conduct may violate the "zero tolerance" State Policy "regardless of whether the conduct satisfies the legal definition of discrimination or harassment"). Thus, there is no reason for us to address the LAD. Cf. Balsley v. N. Hunterdon Reg'l Sch. Dist. Bd. of Educ., 117 N.J. 434, 440, 446-47 (1990); see also Kiss v. Dep't of Cmty. Affairs, 171 N.J. Super. 193, 198 (App. Div. 1979).

2 Because no one has argued the attorney's submissions, or appellant's complaint, were improper because they were not signed or attested by appellant, we do not address that issue.

3 The CSC cited Belleville v. Dep't of Civil Serv., 155 N.J. Super. 517 (App. Div. 1978), but that case involved the issue of "the qualifications of a candidate for a Civil Service position," and determined "[t]hat the statute [governing that issue, N.J.S.A. 11:23-2] has been amended to allow only submission of facts indicates the Legislature's clear intent to not require hearings" on that issue. Id. at 519-20. That issue, statute, and case are not pertinent here. Moreover, even under that statute, we have found there can be factual disputes which need to be resolved in "a trial-type hearing" because "findings of credibility . . . must be made." In re Critchlow, 201 N.J. Super. 371, 376-77 (App. Div. 1985).

4 The CSC's reference to "the voluminous and detailed submissions received from the parties" thus appears to refer largely to appellant's submissions.

5 Corroboration or the lack thereof is relevant to an agency's determination whether an allegation of violation of the State Policy has been "substantiated." N.J.A.C. 4A:7-3.1(g)(1), -3.2(k).