IN THE MATTER OF J.L KEAN UNIVERSITY

NOT FOR PUBLICATION WITHOUT THE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 J.L.,

KEAN UNIVERSITY

_____________________________

February 10, 2016

Submitted January 13, 2016 Decided

Before Judges Kennedy and Gilson.

On appeal from the New Jersey Civil Service Commission, Docket No. 2013-2796.

Caruso Smith Picini, P.C., attorneys for appellant J.L. (Steven J. Kaflowitz, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent Kean University (Melissa H. Raksa, Assistant Attorney General, of counsel; Angela L. Velez, Deputy Attorney General, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Appellant J.L. appeals from the December 19, 2013 decision of the Civil Service Commission (Commission), which upheld the determination of Kean University (Kean) finding J.L. in violation of the New Jersey State Policy Prohibiting Discrimination in the Workplace (State Policy), N.J.A.C. 4A:7-3.1. Because the record reveals "material and controlling dispute[s] of fact . . . that can only be resolved by a hearing," N.J.A.C. 4A:2-1.1(d), and no such hearing was conducted, we reverse and remand for further proceedings.

I.

J.L. is employed by Kean as a grounds worker.1 Two of J.L.'s co-workers complained to Kean officials that J.L. had made derogatory comments about their national origin. Kean's Office of Affirmative Action Programs (OAAP) initiated an investigation using an independent consultant to conduct the investigation. The investigation concluded that it was "more likely than not" that J.L. had made "comments/remarks and engaged in behavior in violation of the [State Policy]."

J.L. was informed of the "findings" in a March 28, 2013 letter from the President of Kean. That letter did not inform J.L. of what comments or action he was alleged to have made or taken. Instead, the letter stated

Conduct reported during the investigation that was attributed to you included comments to Hispanic employees about their English speaking skills. . . . During the investigation it was also reported that you engaged in conduct towards employees that demonstrated a lack of professionalism and questionable judgment.

As a result of these "findings," the matter was referred to Kean's Office of Human Resources for appropriate action. Thereafter, J.L. was required to undergo remedial training on the State Policy.

J.L. appealed to the Commission, asserting that the allegations against him were "completely baseless and unfounded." In response, Kean did not provide a copy of the OAAP investigation report to the Commission. Instead, the "findings" of the report were summarized in a letter from Kean's attorney.2 Kean's attorney reported that the investigator had interviewed the complainants, J.L., and several unidentified witnesses. Kean's attorney went on to report that based on the witnesses' statements, the investigation concluded that not all of J.L.'s conduct implicated the State Policy, but that there was support that he demeaned the complainants based on their ethnicity and/or national origin. The specific comments J.L. stated to co-workers were identified as: "speak better English," "go back to [specific Latin country]," and "the Mexicans are taking all of the landscaping jobs." Further, the investigation determined that J.L. had used a riding lawnmower in a threatening manner by revving the machine and driving it back and forth towards a colleague as if to hit that person with the machine. In reply, J.L. denied all of the allegations made against him.

The Commission reviewed the written record and denied J.L.'s appeal. The Commission reasoned that Kean's OAAP had substantiated that J.L. made the comments and engaged in behavior that violated the State Policy. The Commission rejected J.L.'s position that he never made any comments or engaged in any improper conduct by reasoning that his arguments were "not persuasive as the [OAAP] has indicated that, based on its investigation, there was sufficient evidence to indicate a violation of the State Policy." The Commission also determined that a hearing was unnecessary because "no material issue of disputed fact has been presented which required a hearing." J.L. now appeals the Commission's final determination.

II.

On this appeal, J.L. makes one argument: this matter should be remanded for a hearing before the Commission to establish the facts. We agree.

Our scope of review of a final administrative agency decision is limited. In re V.L., 441 N.J. Super. 434, 443 (App. Div. 2015) (citing In re Carter, 191 N.J. 474, 482 (2007)). "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." In re Herrmann, 192 N.J. 19, 27-28 (2007). Nevertheless, this standard requires a "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 central issue here is whether a hearing was required on the alleged violation of the State Policy. By statute, the Commission is to 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 Commission's regulation governing the procedure for discrimination complaints provides that "[t]he [Commission] 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, or where the [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." Consequently, "the [Commission's] own rules provide for an evidentiary hearing, even where not required 'by law or these rules,' if the [Commission] '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) (quoting N.J.A.C. 4A:2-1.1(d)).

Here, the Commission found no material issue of disputed fact had been presented that required a hearing. We cannot agree with that conclusion because it is not supported by the record. Kean never held a hearing; instead, an outside consultant conducted an investigation, which reasoned that "it was more likely than not" that J.L. made derogatory comments and engaged in an unprofessional action. If there was actual proof J.L. made such comments and engaged in an unprofessional action that evidence would support a finding of a violation of the State Policy. J.L., however, denied making such comments and engaging in said action. Critically, no fact findings were made. While J.L. was interviewed as part of the investigation, nothing in the record establishes that he was told what comments or action he was alleged to have made or taken. Moreover, it was not clear whether the witnesses were interviewed under oath. Thus, the Commission did not know if J.L. even had a chance to respond to the allegations during the investigation or if the witnesses' statements were reliable. Furthermore, the Commission had not been provided with the written record of the witnesses' interviews and did not have any way to determine what they actually said. The Commission only received a letter from Kean's counsel summarizing the OAAP investigation report. J.L., however, disputed the reported findings of the investigation report.

Consequently, there are plainly disputed material facts: Kean contends J.L. made inappropriate comments to co-workers and acted unprofessionally, but J.L. denies making the comments or engaging in the alleged action. The plain language of N.J.A.C. 4A:2-1.1(d) requires a hearing in such circumstances. The resolution of the material disputes between J.L. and the witnesses largely turns on their credibility. Such credibility determinations, in turn, can only be assessed by a fact-finder making first-hand observations and evaluations of the witnesses.

"The determination whether [a material and controlling dispute of fact] exists is one committed to the discretion of the [Commission], and its decision will be affirmed unless it goes beyond the range of sound judgment." Wiggins, supra, 242 N.J. Super. at 345. Here, the Commission's reliance on the written record was a mistaken exercise of discretion. The Commission was not presented with definitive findings; it only had a secondhand report. Moreover, this was not a situation where J.L. was merely denying evidence so undeniable that the Commission "would have had to ignore reality" to credit J.L.'s denial. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 450 (2007). Instead, this was a situation that required a hearing and the denial of J.L.'s request for a hearing was an abuse of discretion. See Wiggins, supra, 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 should be referred to the Office of Administrative Law (OAL), N.J.A.C. 1:1-3.2(a). See Cunningham v. Dep't of Civil Serv., 69 N.J. 13, 25 (1975).

Reversed and remanded for a hearing before the OAL. We do not retain jurisdiction.

1 We use initials to identify the individuals involved to protect confidentiality in accordance with N.J.A.C. 4A:7-3.1(j), which provides "[a]ll complaints and investigations shall be handled, to the extent possible, in a manner that will protect the privacy interest of those involved."

2 Kean is represented by the Office of the New Jersey Attorney General and a Deputy Attorney General submitted the letter.