IN THE MATTER OF NAOMI RIVERA

NOT FOR PUBLICATION WITHOUT THE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 NAOMI RIVERA,

HUDSON COUNTY,

DEPARTMENT OF CORRECTIONS

_____________________________________

December 14, 2015

 

Submitted November 17, 2015 Decided

Before Judges Guadagno and Vernoia.

On appeal from the Civil Service Commission, Docket No. 2013-2374.

Naomi Rivera, appellant pro se.

Chasan Leyner & Lamparello, attorneys for respondent County of Hudson (Cindy Nan Vogelman, of counsel and on the brief; Reka Bala, 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

Naomi Rivera (Rivera) appeals from a final determination of the Civil Service Commission (Commission) upholding Rivera's removal from her employment with the Hudson County Department of Corrections (County). We affirm.

I.

We derive the following facts and procedural history from the record. Rivera was employed as a data entry operator at the Hudson County Correctional Center (HCCC). On January 3, 2013, the County issued a Preliminary Notice of Disciplinary Action suspending Rivera and charging her with conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6); insubordination, N.J.A.C. 4A:2-2.3(a)(2); neglect of duty, N.J.A.C. 4A:2-2.3(a)(7); and other sufficient cause, N.J.A.C. 4A:2-2.3(a)(12). Rivera was suspended effective January 3, 2013.

After a departmental hearing, the County issued a Final Notice of Disciplinary Action on January 10, 2013, removing Rivera from her employment. Rivera appealed the County's action to the Commission, which referred the matter to the Office of Administrative Law (OAL) for a hearing before an administrative law judge (ALJ).

During the evidentiary hearing, the County presented evidence that on December 19, 2012, Rivera was a civilian employee1 assigned to the Support Services Unit (SSU) within the HCCC. She staffed the SSU's receptionist desk in the office's lounge, answered phones, and relayed messages to the correction officers assigned to the unit.

On December 19, 2013, D.V., a correction officer assigned to the SSU, was present when Rivera and another civilian employee, C.R., entered the SSU office's lounge. Rivera and C.R. made comments about the correction officers wanting to have sex and then Rivera said, "[n]ot my D.V."

Rivera then hugged D.V. and, in "one motion," kissed and bit him on the neck. D.V. immediately exited the lounge and, within minutes, saw C.G., another correction officer, who asked D.V. what was "wrong with [his] neck." D.V. replied, "nothing." C.G. took a photo of D.V.'s neck with his cellphone and showed the photo to D.V. After seeing it, D.V. said, "Ms. Rivera bit me. Kissed me and bit me." D.V. felt embarrassed. The photo, which was admitted into evidence, depicted a red and swollen welt on D.V.'s neck.

C.G. told D.V. to report the incident, but D.V. resisted, stating that he did not wish to "hurt" Rivera because it was the holiday season and "everybody needs a job." D.V. was unable to report the incident because his immediate supervisor, Sergeant J.N., was not working that day.

On December 21, 2012, C.G. informed J.N. about what had occurred and J.N. directed C.G. and D.V. to submit incident reports. J.N. reported the incident to the HCCC administration and was advised that the administration would address the matter. D.V. and C.G. subsequently submitted reports detailing the events. D.V. noted that he asked C.G. to inspect his "burning and painful neck area" and C.G. advised him "there were impression[s] of teeth on [his] neck in a welt[ed] man[n]er."

D.V. testified that he was working in a hostile environment and that he felt threatened by Rivera because he did not know what her next act of violence towards him might be. D.V. refused to enter any room in which Rivera was located and requested that she be assigned to a different group. D.V. also testified that the incident caused difficulty for him at home because his wife was upset by what had occurred.

During her testimony, Rivera denied hugging, kissing and biting D.V. She said D.V. approached her, hugged and kissed her, and that she was surprised and pushed him away. She testified she did not report D.V.'s actions because he apologized to her the next day. She acknowledged she did not mention D.V.'s actions during her testimony at the HCCC departmental hearing.

Rivera testified that prior to December 19, 2012, D.V. asked her personal questions, such as if she was married and if she dated. She said the questions made her uncomfortable, but she never made any report regarding them.

Rivera also testified that on May 4, 2012, she submitted a written report to the HCCC alleging that D.V. joked about her use of the English language in phone messages she wrote for the officers. She said the joking offended her.

In an August 5, 2013, Initial Decision, the ALJ found the testimony of D.V., C.G., and J.N. was credible and the testimony of Rivera was not. The ALJ noted that Rivera never reported D.V. for allegedly asking her personal questions; she never reported that D.V. hugged and kissed her on December 19, 2012; and during the HCCC departmental hearing she did not allege that D.V. hugged and kissed her on December 19, 2012.

The ALJ found that on December 19, 2012, Rivera "hugged, kissed, and bit [D.V.] on the neck[]" while they were in the SSU office's lounge and that D.V. did not consent to Rivera's "unprovoked acts." The ALJ found that Rivera's actions affected the morale and efficiency at the HCCC because D.V. was teased after the incident and he did not want to be in Rivera's presence again, "as he did not know what she would do next."

The ALJ concluded that the charges of neglect of duty, conduct unbecoming a public employee, and other sufficient cause had been sustained and "merge[d]." The ALJ found the charge of insubordination was not sustained. The ALJ determined that progressive discipline was not warranted, upheld Rivera's removal, and concluded that "Rivera's conduct included not only hugging and kissing [D.V.] without his consent, but [also] assaulting him by biting him on the neck, which left a bite mark on his neck." The ALJ found Rivera's actions constituted "egregious conduct" which "cannot be tolerated in the workplace."

Rivera filed exceptions to the ALJ's decision. The Department filed cross-exceptions. In its Final Decision dated September 18, 2013, the Commission accepted and adopted the ALJ's findings of fact and determination upholding Rivera's removal. This appeal followed.

II.

It is well established that "[i]n light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." Matturri v. Bd. Of Trs. of the Judicial Ret. Sys., 173 N.J. 368, 381 (2002) (quoting In re Musick, 143 N.J. 206, 216 (1996)). We will "'intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy.'" Williams v. N.J. Dep't of Corr., 423 N.J. Super. 176, 182 (App. Div. 2011) (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)). This court will only reverse an agency's final decision if there is a "'clear showing' that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record[.]" In re Pontoriero, 439 N.J. Super. 24, 34 (App. Div. 2015) (alteration in original) (quoting Circus Liquors, Inc. v. Middletown Twp., 199 N.J. 1, 9 (2009)).

Our review of a final decision of an administrative agency is limited to three inquiries: (1) whether the agency's action is consistent with the applicable law; (2) whether there is substantial credible evidence in the record to support the factual findings upon which the agency acted; and (3) whether, in applying the law 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." Musick,supra, 143 N.J.at 216 (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). The findings of fact made by an administrative agency are binding on appeal if they are supported by substantial, credible evidence. In re Taylor, 158 N.J. 644, 656-57 (1999) (citing Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).

Applying these principles here, we are satisfied there is sufficient credible evidence in the record to support the Commission's finding that while Rivera and D.V. were working at the HCCC, Rivera hugged, kissed, and bit D.V.'s neck, causing a bite mark; that D.V. did not consent to Rivera's actions; and that Rivera's conduct affected the morale and efficiency of the HCCC. The Commission properly deferred to the ALJ's factual findings because they were substantially influenced by the ALJ's opportunity to hear the testimony and observe the witnesses testify. Taylor, supra, 158 N.J. at 660 (citing State v.Locurto, 157 N.J. 463, 474 (1999).

Our conclusion that the Commission's factual findings are supported by the credible evidence does not end the inquiry. Taylor, supra, 158 N.J. at 660. We must alsoconsider whether the evidence supports the ALJ's finding, as adopted by the Commission, that Rivera's actions constituted neglect of duty, conduct unbecoming a public employee, and other sufficient cause for her removal. Ibid.

We are convinced the evidentiary record supports the Commission's conclusion that Rivera's actions constituted conduct unbecoming a public employee and other sufficient cause under N.J.A.C. 4A:2-2.3(a)(6), (12). "Conduct unbecoming a public employee" is an "elastic" phrase encompassing actions that "'adversely affect[] the morale or efficiency'" of a governmental unit or that have a "'tendency to destroy public respect'" for government employees and confidence in the operation of governmental services. Karins v. City of Atl. City, 152 N.J. 532, 554 (1998) (quoting In re Emmons, 63 N.J. Super. 136, 140 (App. Div. 1960)). It is sufficient that the conduct "'be such as to offend publicly accepted standards of decency.'" Karins, supra, 152 N.J. at 555 (quoting In re Zeber, 156 A.2d 821, 825 (Pa. 1959)).

We conclude that Rivera's unprovoked aggression toward D.V. offends publicly accepted standards of decency in any workplace. We are also convinced that while "other sufficient cause" is not expressly defined in N.J.A.C. 4A:2-2.3, the commission of an unprovoked act of aggression upon a co-employee which causes physical injury falls within this catchall category of offenses for which discipline may be imposed.

We are not, however, convinced there is sufficient credible evidence to support the Commission's conclusion that Rivera's actions constituted neglect of duty. N.J.A.C. 4A:2-2.3(a)(7). While the evidence supports the finding that Rivera hugged, kissed and bit D.V., there was no evidence that in doing so she neglected the performance of any of her assigned job duties. See e.g., In re Carter, 191 N.J. 474 (2007) (neglect of duty found where a police officer fell asleep while on duty). Based upon the evidence presented, and the lack of evidence, the Commission erred when it found Rivera's actions constituted neglect of duty. N.J.A.C. 4A:2-2.3(a)(7).

The Commission's decision upholding Rivera's removal was based upon the egregiousness of her conduct, and not that it provided a basis for discipline under three separate provisions of N.J.S.A. 4A:2-2.3(a). The Commission merged the three separate causes for discipline it found under the statute for purposes of its removal decision. Under the circumstances presented here, our determination that there was insufficient evidentiary support for the Commission's finding of neglect of duty does not require a reversal of the Commission's removal decision, as there was "fair support in the record" for the Commission's finding Rivera's actions were egregious and constituted conduct unbecoming a public employee and other sufficient cause for discipline under N.J.A.C. 4A:2-2.3(a). See Pontoriero, supra, 439 N.J. Super. at 34.

We will not reverse a public employee's disciplinary sanction unless it is "'so utterly disproportionate to the offense' as to amount to a clear abuse of discretion." Newark v. Massey, 93 N.J. Super. 317, 324-25 (App. Div. 1967) (quoting City of Newark v. Civil Serv. Comm'n, 115 N.J.L. 26, 30-31 (Sup. Ct. 1935). "[W]hen reviewing administrative sanctions, appellate courts should consider whether the 'punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness.'" In re Stallworth, 208 N.J. 192, 195 (2011) (quoting In re Carter, supra, 191 N.J. at 484).

Where, as here, an appointing authority has met its burden of establishing a disciplinary infraction, penalties may include suspension or fine for more than five working days at any time, disciplinary demotion, or removal from public employment. N.J.S.A. 4A:2-2.2(a). Factors determining the degree of discipline include the employee's prior disciplinary record and the gravity of the instant misconduct. West New York v. Bock, 38 N.J. 500, 522-24 (1962). Regardless of the employee's disciplinary history, where misconduct is sufficiently egregious, removal may be appropriate. Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980). Notwithstanding an unblemished record, egregious misconduct may result in removal from public employment. In re Carter, supra, 191 N.J. at 484.

We are convinced the record supports the Commission's determination that Rivera's unprovoked actions resulting in physical injury to a co-employee were egregious and cannot be tolerated in the workplace. We are also satisfied the Commission's decision to remove Rivera was not arbitrary, capricious, or unreasonable and based upon the circumstances presented, the removal decision does not shock our sense of fairness. In re Stallworth, supra, 208 N.J. at 195 (quoting In re Carter, supra, 191 N.J. at 484).

III.

We have considered Rivera's other contentions and conclude that they are without sufficient merit to warrant discussion, other than to note the following. R. 2:11-3(e)(1)(E).

Rivera contends that the ALJ should have recused herself in this matter. At the outset of the hearing, the ALJ disclosed that she "recognized [D.V.] from the time [she] was a Public Defender in Hudson County and [D.V.] was an officer directing attorney's visits with their clients." The ALJ indicated that she had made "counsel aware" of those facts. In response, Rivera's counsel stated that he "had no objection with [the ALJ] continuing . . . ."

Rule1:12-1(g) provides that a judge shall be disqualified if "there is any [] reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so." "In the absence of specific evidence of bias, prejudice or impropriety on the part of the ALJ, recusal [is] not necessary." Ferren v. City of Sea Isle City, 243 N.J. Super.522, 527 (App. Div. 1990).

Rivera has failed to demonstrate any evidence of bias, prejudice or impropriety on the part of the ALJ. The ALJ's mere recognition of D.V. from her appearances in a courthouse where D.V. had worked did not preclude the ALJ from conducting a fair and unbiased hearing and rendering an impartial judgment, and thus, was not grounds for recusal. R.1:12-1(g). SeeFerren, supra, 243 N.J. Super.at 527 (holding that a judge may hear cases in which his former law partner is representing a party, so long as the matters are "unrelated to services performed personally or by the firm."); seealsoSheeran v. Progressive Life Ins. Co., 182 N.J. Super. 237, 243 (App. Div. 1981) (holding that an ALJ was not disqualified from hearing a case involving the Department of Insurance, when the ALJ was formerly a hearing officer in the Department of Insurance.).

There is no evidence the ALJ had any prior relationship or interactions with D.V. which would logically or "reasonably lead counsel or the parties to believe" there was a "reason which might preclude [the ALJ from conducting] a fair and unbiased hearing and judgment[]." R.1:12-1(g). Rivera's counsel did not object to the ALJ hearing the matter. We are convinced there is nothing in the record which supports Rivera's contention that the ALJ should have recused herself.

Reversed as to the Commission's finding on the charge of neglect of duty, N.J.A.C. 4A:2-2.3(a)(7). Affirmed in all other respects.

1 The term "civilian employee" refers to an individual employed by the Department who is not a correction officer.