ANTHONY CARTER v. NEW JERSEY DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0050-06T50050-06T5

ANTHONY CARTER,

Plaintiff-Appellant,

v.

NEW JERSEY DEPARTMENT OF CORRECTIONS,

Defendant-Respondent.

_____________________________________________

 

Argued September 19, 2007 - Decided November 2, 2007-

Before Judges Cuff and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-208-01.

Shirley A. Naylor argued the cause for appellant (Chance & McCann, attorneys; Ms. Naylor, on the brief).

Mary Beth Wood, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Ms. Wood, on the brief).

PER CURIAM

Appellant, Anthony Carter, appeals from the order granting summary judgment dismissing his complaint with prejudice. We affirm.

Carter is an African-American. Beginning February 15, 1997, he was employed as a corrections officer by respondent, New Jersey Department of Corrections (DOC), and worked at South Woods State Prison. The DOC terminated his employment on April 14, 2000, when it discovered that he had intentionally falsified his employment application.

Prior to his employment with the DOC, Carter was employed by the Montgomery County Detention Center (MCDC) in Rockville, Maryland from May 1994 to May 1995. Another officer reported that Carter allegedly engaged in inappropriate behavior with a female inmate. Charges were filed against Carter, he was suspended and found guilty of gross misconduct and terminated effective May 5, 1995. His appeal of the termination was unsuccessful.

On or about August 15, 1996, Carter submitted an application to the DOC for a position as a corrections officer. On his employment application, Carter falsely stated that he was unemployed during the time he worked for the MCDC. In signing the application, Carter certified as follows:

I CERTIFY that the information of this application is complete and accurate, to the best of my knowledge, understand that any misleading or incorrect information may render this application void and be just cause for immediate dismissal if employed.

The DOC eventually learned that Carter had been terminated from his employment with the MCDC and falsified his DOC employment application. Carter admitted falsifying his DOC employment application and stated that he did so because he did not think the DOC would find out about his employment by the MCDC and feared that the DOC would not have hired him if he revealed the termination.

On December 20, 1999, the DOC served Carter with a Preliminary Notice of Disciplinary Action, charging him with "falsification: intentional misstatement of material fact in connection with work, employment, application, attendance, or in any record, report, investigation or other proclamation." The DOC sought Carter's removal. A hearing was held on March 20, 2000, after which the Hearing Officer sustained the charge. On April 14, 2000, the DOC issued a Final Notice of Disciplinary Action, removing Carter from his employment, effective April 5, 2000, for falsifying his employment application. On May 29, 2000, Carter filed an appeal with the Merit System Board (Board).

On February 22, 2001, Carter filed a one-count complaint in the Superior Court, Law Division wherein he alleged that the DOC violated the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, by "applying harsher discipline to minority officers than Caucasian officers found guilty of similar disciplinary infractions." He claimed that the DOC did not treat a Caucasian officer, James Bennet, as harshly as it treated him for the same falsification offense. On May 6, 2003, the trial court stayed the Law Division matter pending resolution of Carter's administrative appeal.

The Board transferred the administrative appeal to the Office of Administrative Law for a hearing as a contested case. During the administrative appeal, Carter raised the issue of disparate treatment. On September 11, 2003, the Administrative Law Judge (ALJ) issued an Initial Decision finding that Carter intentionally misrepresented and falsified his employment application and concluding that the DOC had sustained the charge. The ALJ, however, recommended a six-month suspension, not removal.

The Board considered the ALJ's Initial Decision and made an independent evaluation of the record. In a Final Administrative Decision, issued November 24, 2003, the Board agreed with the ALJ that the DOC had sustained the charges, but disagreed with the ALJ's recommendation to modify the removal to a six-month suspension. The Board concluded that Carter intentionally attempted to deceive the DOC to gain employment and "blatant dishonesty" of this type "cannot be justified." The Board concluded that, because of the seriousness of the offense, the penalty of removal was "neither unduly harsh nor disproportionate to the offense and should be upheld."

Carter filed an appeal on or about August 28, 2006. In his Amended Brief, he raised the issue of disparate treatment. We affirmed, concluding that Carter's arguments were meritless and did not warrant discussion in a written opinion. See In re Carter, No. A-2599-03T2 (App. Div. March 2, 2005) (slip op. at 4). The Supreme Court denied certification. In re Carter, 184 N.J. 211 (2005).

After conclusion of the administrative proceeding, the Law Division vacated the stay. The DOC then filed a summary judgment motion. Carter opposed the motion, claiming that the DOC treated white officers more leniently than black officers for the same falsification offense. He argued that Bennett was charged with falsification but was not discharged. In rebuttal, the DOC produced affidavits from the Administrator of South Woods certifying that it was the DOC's policy that all personnel charged with falsification of their employment application are removed/terminated from their position and that this policy was uniformly enforced. The Administrator also certified that falsification of an employment application was treated differently than other falsification charges due to public policy considerations.

The DOC also submitted evidence that prior to any disciplinary action against Carter, it sought to remove a white male officer who had falsified his employment application. That officer had also concealed the fact that he had been terminated from his employment as a corrections officer at another correctional facility for improper contact with a family member of an inmate and inattention to duties. The officer subsequently entered into a settlement agreement and resigned. The DOC also submitted evidence that Bennett was charged with falsifying an overtime slip, not his employment application.

Judge Bowen granted the summary judgment motion, finding that it had been established in the administrative proceeding, and the appeal of that proceeding, that Carter admittedly falsified his DOC employment application by concealing his termination from his employment by the MCDC. Judge Bowen also found that the DOC had shown a non-discriminatory reason for Carter's removal and that Carter failed to submit any evidence that any non-minority employees similarly situated to him had not been removed for falsifying their employment application. The judge held that no fact-finder could conclude the DOC violated the LAD and that the DOC had a justifiable, non-discriminatory reason for terminating Carter. Carter appeals from the trial court's decision.

In assessing a trial court's decision on a summary judgment motion, we apply the same standard as the trial court, reviewing the record to determine if there are genuine issues of material fact. Liberty Surplus Ins. Co. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). We must determine "whether the competent evidential material 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." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). However, if there is no such genuine issue of fact, we then must determine if the trial court properly applied the law. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We will affirm only if the record indicates the moving party is entitled to judgment as a matter of law. R. 4:46-2(c); Brill, supra, 142 N.J. at 540. With these standards in mind, we address Carter's contentions.

Carter admitted that he falsified his employment application and does not dispute that he should be disciplined. Instead, he argues that he should not be removed because white officers, who allegedly committed the same offense as he committed, were not removed. We disagree. In the first instance, we cannot ignore that Carter certified in his employment application that any incorrect information would "render [his] application void and be just cause for immediate dismissal if employed." Thus, Carter was well aware that his intentional falsification of his employment application would result in his removal.

More importantly, the record establishes that the DOC did not engage in disparate treatment of Carter. It treated him the same way it treated all officers who falsified their employment applications, regardless of their race. The record also establishes that the DOC sought to terminate a Caucasian officer who falsified his employment application. Carter did not produce any evidence to dispute this or support his disparate treatment claim. Based upon the record, therefore, the trial court property granted summary judgment.

Affirmed.

 

Carter had also falsified an application he submitted to the federal government for a position as a corrections officer at the Federal Correctional Institution.

Subsequent to his termination, Carter applied for a position as a residential supervisor with the Kintock Group. In his Kintock employment application, he falsely stated that he resigned from the MCDC and was eligible for rehire by the DOC.

Carter made this same allegation in complaints he filed with Equal Employment Opportunity Commission (EEOC) and New Jersey Division on Civil Rights. The EEOC investigated the complaints and closed its file after concluding that Carter did not establish discriminatory action by the DOC.

The State provided to the motion judge and this court a copy of an unreported decision concerning the DOC's termination of a corrections officer who falsified his employment application. See Dillard v. S. Woods State Prison and Juvenile Justice Sys., Docket No. A-4369-01T2 (App. Div. May 19, 2003).

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A-0050-06T5

November 2, 2007