IN THE MATTER OF STEPHANIE M. CARTER-GREEN DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1201-08T31201-08T3

IN THE MATTER OF

STEPHANIE M. CARTER-GREEN

DEPARTMENT OF CORRECTIONS.

________________________________

 

Argued October 6, 2009 - Decided

Before Judges Wefing and LeWinn.

On appeal from a Final Administrative

Decision of the New Jersey Civil Service

Commission, No. 2007-3113.

Frank M. Crivelli argued the cause for

appellant Stephanie M. Carter-Green (Pellettieri,

Rabstein & Altman, attorneys; Mr. Crivelli and

Donald C. Barbati, on the brief).

Todd A. Wigder, Deputy Attorney General,

argued the cause for respondent Civil Service

Commission (Anne Milgram, Attorney General,

attorney; Lewis A. Scheindlin, Assistant

Attorney General, of counsel; Mr. Wigder,

on the brief).

PER CURIAM

Stephanie M. Carter-Green appeals from a Final Decision of the Civil Service Commission upholding three disciplinary charges which had been filed against her as well as a ten-day suspension which had been imposed. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Appellant is a corrections officer with the rank of sergeant and is assigned to Albert C. Wagner Youth Correctional Facility. On the evening of July 20, 2006, she became involved in a verbal dispute with another officer when she attempted to borrow a pen. Others became involved in the exchange; language deteriorated and insults were hurled. During the course of this incident, appellant referred to another officer as a "fag" and a "bitch" and made comments to him with sexual overtones. As a result of her language, she was charged with violating N.J.A.C. 4A:2.2.3(a)11, prohibiting discrimination, harassment or a hostile work environment; N.J.A.C. 4A:2-2.3(a)6, conduct unbecoming; and N.J.A.C. 4A:2-2.3(a)11, verbal abuse. The preliminary notice advised her that she faced a possible suspension from duty of ten days.

A hearing was held on these charges before an administrative law judge. Five witnesses testified at this hearing: appellant; the officer to whom she made her remarks which gave rise to the disciplinary action in question; the officer from whom she had initially attempted to borrow a pen and with whom the initial dispute arose; the officer who replaced that individual; and a lieutenant who overheard a portion of the conversation and thought the two were joking with one another. The testimony of these five individuals was conflicting in many regards, and the administrative law judge determined that the most credible testimony was given by the lieutenant. The administrative law judge considered the testimony of the other witnesses to be self-serving.

Based upon the lieutenant's testimony, the administrative law judge found that appellant did refer to the other officer as a "fag." As a result, the administrative law judge found appellant guilty of conduct unbecoming and verbal abuse. He found, however, that appellant had not violated the Department's policy prohibiting discrimination, harassment or a hostile work environment and found appellant not guilty of the first charge. The administrative law judge based his findings and conclusion with respect to that charge on the principles of a hostile work environment enunciated in Lehmann v. Toys R Us, Inc., 132 N.J. 587 (1993).

In that case, the Supreme Court explained that to prevail upon a claim of a hostile work environment, an employee must establish four elements: that "the complained-of conduct (1) would not have occurred but for the [complaining] employee's gender; and it was (2) severe or pervasive enough to make a (3) reasonable [person] believe that (4) the conditions of employment [had been] altered and the working environment [made] hostile or abusive." 132 N.J. at 603-04.

The administrative law judge then turned to the question of discipline. Because he had found appellant not guilty of one charge, and because he considered that she had a very good disciplinary history, he reduced the time of suspension from ten working days to five working days.

Both the Department and appellant filed exceptions to the decision of the administrative law judge. The Department objected to the finding that appellant was not guilty of the first charge and to the reduction in penalty. Appellant excepted to the finding that she was guilty of the remaining charges and maintained that if any discipline were to be imposed, it should be no more than a written reprimand.

The Civil Service Commission rejected the conclusion of the administrative law judge that appellant was not guilty of the first charge and also rejected his recommendation as to discipline. It found that appellant was guilty of all three charges and that a ten-day suspension was the appropriate penalty.

This appeal followed. On appeal, appellant raises the following contentions:

POINT I THE CIVIL SERVICE COMMISSION IMPROPERLY REJECTED THE ALJ'S RECOMMENDATIONS TO DISMISS ONE OF THE DISCIPLINARY CHARGES AND MODIFY THE PENALTY TO A FIVE WORKING DAY SUSPENSION.

POINT II ALJ REBA'S RECOMMENDATION TO DISMISS CHARGE 1 WAS SUPPORTED BY SUFFICIENT, COMPETENT EVIDENCE IN THE RECORD AND WAS IMPROPERLY REJECTED BY THE CIVIL SERVICE COMMISSION.

POINT III IN REJECTING ALJ REBA'S RECOMMENDATION TO MODIFY SERGEANT CARTER-GREEN'S SUSPENSION TO FIVE (5) WORKING DAYS, THE CIVIL SERVICE COMMISSION VIOLATED THE CORE PRINCIPLES OF PROGRESSIVE DISCIPLINE

We note the limited scope of our review in a matter such as this.

The appropriate standard is "'whether the findings made [by the agency] could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Our inquiry focuses only upon four aspects of the agency determination: (1) whether the agency's decision comports with Federal and State Constitutional requirements; (2) "whether the agency's action violates express or implied legislative policies;" (3) whether the factual findings that provide a foundation for the agency's decision are based on substantial evidence; and (4) "whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors." In re Taylor, 158 N.J. 644, 656 (1999) (citing Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997) (quoting George Harms Constr. Co. v. New Jersey Turnpike Auth., 137 N.J. 8, 27 (1994)).

We do not "engage in an independent assessment of the evidence as if [we] were the court of first instance." In re Taylor, supra, 158 N.J. at 656 (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). If the agency's findings of fact are supported by "adequate, substantial and credible evidence" those findings of fact are binding on appeal. In re Taylor, supra, 158 N.J. at 656 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Although appellate review of a final agency determination is limited, we, nonetheless, do not merely "rubber stamp" findings but, rather, conduct a conscientious review of the record. In re Taylor, supra, 158 N.J. at 657.

We turn now to the substance of this appeal. The Commission and the administrative law judge reached different conclusions with respect to whether appellant was guilty of the first charge because they utilized different standards to assess her conduct. The administrative law judge relied, as we have noted, on the four-prong test set forth in Lehmann, supra, while the Commission relied upon the Policy Prohibiting Discrimination in the Workplace, N.J.A.C. 4A:7-3.1. That document states that "[i]t is a violation of this policy to use derogatory or demeaning references regarding a person's race, gender, age, religion, disability, affectional or sexual orientation, ethnic background or any other protected category." N.J.A.C. 4A:7-3.1(b). The Policy provides substantially greater protection to those in the workplace than does the Lehmann test. The State's Policy is one of "zero tolerance . . . mean[ing] that the State and its agencies reserve the right to take either disciplinary action, if appropriate, or other corrective action, to address any unacceptable conduct that violates this policy, regardless of whether the conduct satisfies the legal definition of discrimination or harassment." N.J.A.C. 4A:7-3.1(a).

It is immaterial under the Policy that an individual may have made a comment intending it to be in jest. N.J.A.C. 4A:7-3.1(b) provides that "[a] violation of this policy can occur even if there was no intent on the part of an individual to harass or demean another." N.J.A.C. 4A:7-3.2(b)(1) gives two examples of conduct which may violate the Policy: "(iv) Calling an individual by an unwanted nickname that refers to one or more of the above protected categories, or telling jokes pertaining to one or more protected categories; and (v) Using derogatory references with regard to any of the protected categories in any communication." Appellant's use of the word "fag" falls squarely within these two examples.

We can perceive no reason in logic or in policy why the State could not adopt a policy affording broader protection to its employees than would be afforded in the private sphere under Lehmann. The Commission's determination that the first charge against appellant should be sustained is fully supported by the record.

We turn now to the question of the appropriate discipline. The same limited scope of review applies here as well.

A reviewing court should alter a sanction imposed by an administrative agency only "when necessary to bring the agency's action into conformity with its delegated authority. The Court has no power to act independently as an administrative tribunal or to substitute its judgment for that of the agency."

[In re Herrmann, 192 N.J. 19, 28 (2007) (quoting In re Polk, 90 N.J. 550, 578 (1982)).]

When a reviewing court is considering a challenge to an administratively imposed sanction, it considers only "whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness." Div. of Alcoholic Beverage Control v. Maynards, 192 N.J. 158, 184 (2007) (quoting In re Polk, 90 N.J. at 578).

Appellant contends that a ten-day suspension is not in accord with the principle of progressive discipline. West New York v. Bock, 38 N.J. 500 (1962). We are not persuaded.

[J]udicial decisions have recognized that progressive discipline is not a necessary consideration when reviewing an agency head's choice of penalty when the misconduct is severe, when it is unbecoming to the employee's position or renders the employee unsuitable for continuation in the position, or when application of the principle would be contrary to the public interest.

Thus, progressive discipline has been bypassed when an employee engages in severe misconduct, especially when the employee's position involves public safety and the misconduct causes risk of harm to persons or property.

[In re Herrmann, supra, 192 N.J. at 33.]

We are unable to conclude that the Commission so overstepped the appropriate bounds that judicial interference with the sanction imposed is warranted. We note in this regard that the officer who was charged for his language toward appellant also received a ten-day suspension.

The Final Decision of the Commission is affirmed.

 

At oral argument we raised the issue whether the Commission's decision was timely under the 45-day rule. N.J.S.A. 52:14B-10(c). We have since been provided with a copy of an Order of Extension which was entered, resolving that question.

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A-1201-08T3

November 4, 2009