MARY MELVIN v. DIVISION OF CHILD PROTECTION AND PERMANENCY

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0222-16T1

MARY MELVIN,

        Complainant-Appellant,

v.

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

     Respondent-Respondent.
_____________________________

              Submitted December 19, 2017 – Decided January 24, 2018

              Before Judges Hoffman and Gilson.

              On appeal from the Division on Civil Rights,
              Docket No. EL11WG-63457-A.

              Mary Melvin, appellant pro se.

              Christopher S. Porrino, Attorney General,
              attorney for respondent New Jersey Division
              of Child Protection and Permanency (Christian
              A. Arnold, Assistant Attorney General, of
              counsel and on the brief).

              Christopher S. Porrino, Attorney General,
              attorney for respondent Division on Civil
              Rights, joins in the brief of respondent New
              Jersey Division of Child Protection and
              Permanency.

PER CURIAM
      Mary Melvin, a former employee of the Division of Child

Protection and Permanency (DCPP), appeals from an August 3, 2016

final agency determination by the Director of the Division on

Civil Rights (Division).         Following an investigation, the Division

found that there was no probable cause that Melvin was suspended

or terminated by DCPP because of her race or age in violation of

the Law Against Discrimination (LAD), 
N.J.S.A. 10:5-1 to -42.

Instead,   the    Division    found    that    Melvin     was   suspended    and

terminated for her failure to correct her recurring poor work

performance.       We   affirm    because    the   Division's    findings    are

supported by substantial credible evidence.

                                       I.

      DCPP hired Melvin as a trainee in 2003.               In 2004, she was

promoted to the position of Family Service Specialist II, where

her   duties     included    screening      allegations    of   child    abuse,

assessing the level of safety and well-being of her assigned

children, performing the placements of her assigned children in

foster homes, and managing various aspects of her cases that were

involved in court proceedings.

      Between 2006 and 2010, DCPP disciplined Melvin three separate

times for multiple actions and inactions.           Melvin was charged with

neglect of duty, failure to carry out an order that could result

in danger to a child, insubordination, conduct unbecoming a public

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employee, and violations of DCPP's policies.   After participating

in disciplinary proceedings, Melvin was reprimanded and suspended

for ninety days for those charges.

     In April 2012, DCPP issued a fourth disciplinary notice to

Melvin charging her with incompetency, insubordination, conduct

unbecoming a public employee, and "other sufficient cause."     Those

charges were based on three incidents that involved Melvin's (1)

failure to complete a foster home placement of a child in October

2011, (2) failure to carry out a court order in November 2011, and

(3) unprofessional and disruptive behavior affecting a child in

March 2012.

     Melvin appealed the April 2012 notice of discipline, and a

disciplinary hearing was conducted in June 2012.       The hearing

officer determined that DCPP had proven the charges against Melvin

and Melvin had "consistently failed to perform her essential

duties[.]"    After reviewing Melvin's prior history of discipline,

the hearing officer found that removal was warranted.           DCPP,

thereafter, terminated Melvin's employment on August 8, 2012.

     In October 2012, Melvin elected to pursue an administrative

process and, thus, filed a verified complaint with the Division

charging DCPP with violating the LAD.    In her complaint, Melvin,

who is African-American and was fifty-seven years old when she was

fired, alleged that she was suspended and fired in 2012 because

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of her race and age.         In support of her claim of discrimination,

Melvin contended that a younger, non-African-American DCPP worker,

A.S., was equally responsible for one of the incidents that led

to Melvin's suspension and discharge, but A.S. was not suspended

or discharged.        That incident involved the failure to complete a

foster home placement of a child in October 2011.

      DCPP    filed    an   answer    to   Melvin's       complaint,   denied      the

allegations, and contended that Melvin was fired because of her

extensive         disciplinary       history      and      the     findings        and

recommendations of the hearing officer.

      The Division then conducted an investigation of Melvin's LAD

claims. Specifically, the Division reviewed Melvin's disciplinary

history prior to 2011. The Division then reviewed the three

incidents cited in the April 2012 notice of discipline.                          That

review included interviewing Melvin, A.S., and a DCPP supervisor.

The Division also reviewed DCPP records regarding the disciplinary

charges against Melvin, including the 2012 disciplinary hearing.

      The     Division      noted     that      Melvin      reported    that       she

administratively appealed her 2012 suspension and termination to

the Civil Service Commission (Commission).                The Division confirmed

with the Commission, however, that the Commission had no record

of   such    an   appeal.     Moreover,        Melvin's    union   engaged    in    an

unsuccessful mediation regarding her termination.                      Unsatisfied

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with the result, Melvin filed an unfair practices complaint against

her union.        She later withdrew that complaint, however.               She also

had the option of pursuing arbitration in connection with her

termination, but elected not to do so.

       Based on its investigation, the Division found that Melvin

had a history of poor performance that resulted in multiple and

progressive       disciplines.           With   regard   to    Melvin's     claim    of

disparate treatment compared to A.S., the Division found no support

for that claim. Instead, the Division found that A.S. was assigned

as a "buddy" to accompany Melvin on a foster home placement in

October 2011.        The Division also found that as a buddy, A.S. rode

along with Melvin, but was not responsible for the handling of the

placement.        The Division was also provided with a certification

stating that a review of A.S.'s personnel file showed that, in

contrast to Melvin, A.S. had no prior history of discipline.

       At   the    conclusion       of   its    investigation,     the    Division's

Director    found     no   probable       cause   existed     to   credit   Melvin's

allegation that she was suspended and fired in 2012 based on her

race and age.       To the contrary, the Division found DCPP had shown

a "legitimate non-discriminatory explanation for suspending [] and

terminating [Melvin], i.e., failure to correct her reoccurring

work    performance        issues    despite      [DCPP]      having   consistently

provided her guidance and multiple opportunities to correct [her

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performance]."        The Division also "found no persuasive evidence –

and none was produced by [Melvin] – that the explanation [by DCPP]

was merely a pretext designed to mask an illegal motive."

                                              II.

       Melvin   appeals       from      the    Division's      decision        finding    no

probable cause.        She is representing herself, and she argues that

she    was    subject       to      discrimination,         was        given    too     many

responsibilities        with       insufficient       supervision,        and    that    her

termination was "largely based on a web-of-lies."

       Initially, we clarify what is before us on this appeal.                            We

are not addressing Melvin's suspension or termination.                          Melvin has

not appealed from her 2012 suspension or termination.                            To bring

such   an    appeal    to    us,     Melvin        would   have    had    to    pursue    an

administrative appeal to the Commission.                    R. 2:2-3(a)(2).           Melvin

has    not   appealed       from    a   final       decision      by    the    Commission.

Moreover, the record before us reflects that Melvin did not pursue

such an appeal.        Instead, Melvin is appealing from the August 3,

2016 final agency decision of the Division finding no probable

cause to support her allegation that DCPP suspended and terminated

her in violation of the LAD.

       A person claiming unlawful discrimination under the LAD has

the choice to either initiate a lawsuit in the Superior Court or

file a complaint with the Division.                        
N.J.S.A. 10:5-13, -18;

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Rodriguez v. Raymours Furniture Co., Inc., 
225 N.J. 343, 358

(2016).   If a claimant files a claim with the Division, that

administrative proceeding becomes the exclusive proceeding while

it is pending, and a final determination by the Division excludes

any other action based on the same grievance.             
N.J.S.A. 10:5-27.

      After a complaint is filed with the Division, the Division

undertakes    an   investigation    of   the    alleged     discrimination.


N.J.S.A. 10:5-14.       At the conclusion of the investigation, the

Director of the Division "shall determine whether or not probable

cause exists to credit the allegations of the verified complaint."

N.J.A.C. 13:4-10.2(a).         Probable cause exists if there is a

"reasonable    ground     of    suspicion     supported     by   facts    and

circumstances strong enough in themselves to warrant a cautious

person in the belief that the [LAD] . . . has been violated[.]"

N.J.A.C. 13:4-10.2(b).         The Director's finding of no probable

cause is a final order subject to judicial review by this court.


N.J.S.A. 10:5-21; N.J.A.C. 13:4-10.2(c), (e); Wojtkowiak v. N.J.

Motor Vehicle Comm'n, 
439 N.J. Super. 1, 12 (App. Div. 2015).

      In evaluating claims under the LAD, "New Jersey has adopted

the   procedural    burden-shifting         methodology     articulated     in

McDonnell Douglas Corp. v. Green, 
411 U.S. 792 (1973)."             Zive v.

Stanley Roberts, Inc., 
182 N.J. 436, 447 (2005).                 Under that

procedure, the plaintiff must first demonstrate a prima facie case

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of employment discrimination. The employer can rebut the inference

of discrimination by articulating a "legitimate, nondiscriminatory

reason for the employer's action."        Id. at 449.       The burden then

shifts back to the employee to prove the reason provided by the

employer is "merely a pretext for discrimination and not the true

reason for the employment decision."        Ibid.

     We accord "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).

Accordingly, our review of the Director's decision is limited.              We

review   the   record   to   determine   whether    there   is   substantial

credible evidence to support the agency head's conclusions. Clowes

v. Terminex Int'l, Inc., 
109 N.J. 575, 587 (1988).

     Having reviewed the record in this case in light of our

standard and the law, we discern no basis to disturb the Division's

finding of no probable cause.       The Division conducted a thorough

investigation and made findings that are supported by substantial

credible evidence in the record.         The Division also applied the

correct burden-shifting analysis, thus, the Division found that

Melvin had shown a prima facie case of discrimination, but also

found that DCPP had articulated a legitimate, non-discriminatory

reason for suspending and terminating Melvin's employment.                The

Division gave Melvin the opportunity to prove pretext, but found

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that Melvin had no "persuasive evidence" of a pretext.     Those

findings are also supported by substantial credible evidence in

the record.

    Affirmed.




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