IN THE MATTER OF J.E., JR., DEPARTMENT OF TRANSPORTATION
Annotate this CaseNOT 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-4016-17T2
IN THE MATTER OF J.E., JR.,1
DEPARTMENT OF
TRANSPORTATION.
Submitted October 8, 2019 – Decided October 31, 2019
Before Judges Gilson and Rose.
On appeal from the New Jersey Civil Service
Commission, Docket Nos. 2018-766, 2018-863 and
2018-866.
J.E., Jr., appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent Civil Service Commission (Donna Arons,
Assistant Attorney General, of counsel; Pamela N.
Ullman, Deputy Attorney General, on the statement in
lieu of brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent Department of Transportation (Donna
Arons, Assistant Attorney General, of counsel; Ryne
Anthony Spengler, Deputy Attorney General, on the
brief).
1
We use initials to protect the confidentiality of the parties.
PER CURIAM
Petitioner J.E. appeals a final decision of the Civil Service Commissi on
(Commission), upholding a determination by the Department of Transportation's
(DOT) Division of Civil Rights and Affirmative Action (Division) that
petitioner violated the State Policy Prohibiting Discrimination in the Workplace
(State Policy or policy), N.J.A.C. 4A:7-3.1. We affirm.
I.
This appeal has its genesis in discrimination and retaliation allegations
made by Y.N., an African American DOT employee, against petitioner and three
other DOT employees. Petitioner, who is Caucasian, was Y.N.'s supervisor in
the DOT's Bureau of Structural Evaluation and Bridge Management. Relevant
here, after conducting nearly twenty interviews and reviewing numerous
documents, the Division substantiated Y.N.'s allegations against petitioner for
race discrimination and retaliation. Ultimately, petitioner was issued a written
warning.
We incorporate by reference the facts and procedural history set forth in
the Commission's decision, summarizing the Division's investigation. The
events that gave rise to both findings occurred in summer 2016 during meetings
between Y.N. and petitioner.
A-4016-17T2
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In early July 2016, Y.N. attempted to notify petitioner of an alleged
discriminatory practice against his co-worker, S.O. Y.N. claimed, as a union
representative and DOT's Equal Employment Opportunity (EEO) Advisory
Committee member, he was authorized to speak on behalf of S.O., although S.O.
was not present at the meeting. Petitioner challenged Y.N.'s authority to act on
S.O.'s behalf; Y.N. conceded he lacked such authority. And, following a
meeting with the Division's executive director in mid-July, Y.N. further
acknowledged he would refrain from misrepresenting his position with the EEO.
Two weeks later, petitioner and his manager, G.R., met with Y.N. and
"conduct[ed] a formal counseling session as a disciplinary measure" to address
Y.N.'s prior "insubordination and misrepresentation of his authority." At G.R.'s
direction, petitioner drafted a memorandum memorializing the meeting.
According to the memorandum, the "primary" issue that prompted the
counseling meeting was Y.N.'s misrepresentation of his roles as a union
representative and EEO Advisory Committee member. The memorandum
vaguely referenced discussions about "several other examples of action that
could [have] be[en] perceived as insubordinate." Those examples were not
specifically identified in the memorandum.
A-4016-17T2
3
Y.N. refused to acknowledge receipt of the memorandum. Instead, Y.N.
stated "he was going to go to the [Division]." Petitioner claimed he was
confused by Y.N.'s response, prompting petitioner to ask Y.N. several questions
to clarify the meaning of the statement during their hour-long conversation.
Ultimately, petitioner "blurted out, 'Are you going to [the Division] because you
are black?'"
During the course of the Division's investigation, petitioner acknowledged
he posed that question to Y.N., but "denied subjecting [Y.N.] to race
discrimination." Petitioner said
he believed [Y.N.] was misinformed regarding the role
of [the Division] and often says he is going to [the
Division] even when the situation does not warrant it.
[Petitioner] stated that many people in the unit think
[Y.N.] uses [the Division] as intimidation. [Petitioner]
explained his statement was intended to stress to [Y.N.]
the only reason he should be complaining to [the
Division] is if he believes he is being discriminated
against based on his race or other [protected] category.
In essence, petitioner claimed he intended "to help [Y.N.] understand that [his]
reason for going to [the Division] was not valid."
The Division substantiated Y.N.'s allegations of race discrimination,
finding "[t]he manner and context of the question was demeaning, especially
from a supervisor." The Division also determined petitioner retaliated against
A-4016-17T2
4
Y.N. by conducting a disciplinary counseling session after Y.N. reported alleged
discrimination against S.O. The Commission denied petitioner's ensuing appeal,
finding the Division conducted an adequate investigation.
With regard to Y.N.'s claim of discrimination based on race, the
Commission recognized
it was inappropriate for [petitioner] to question Y.N.'s
motives in going to [the Division] based on any
protected category of which Y.N. is a member. Once
Y.N. expressed his intention to file a complaint with
[the Division], [petitioner] should not have asked any
questions concerning Y.N.'s intent or thought process.
Rather, [petitioner] was required to refer the matter to
[the Division] for its investigation. Attempting to
question Y.N. as to why he was going to file a
complaint could have improperly given the impression
that [petitioner] was attempting to convince Y.N. not to
file a complaint. Such an impression would be at odds
with the State Policy, which encourages the reporting
of alleged workplace discrimination and commits the
State to providing a work environment free from
prohibited discrimination or harassment. See N.J.A.C.
4A:7-3.1. As such, [the Division] appropriately found
[petitioner]'s question to be a State Policy violation.
Turning to Y.N.'s allegations of retaliation, the Commissioner found:
Y.N. engaged in protective activity when he met with
G.R. and [petitioner] to report alleged discrimination
against S.O., regardless of whether Y.N. had S.O.'s
consent to do so. See N.J.A.C. 4A:7-3.2(a) ("All
employees . . . have the right and are encouraged to
immediately report suspected violations of the State
Policy . . . .") . . . . It was only after Y.N. engaged in
A-4016-17T2
5
this protected activity that G.R. and [petitioner] issued
the . . . counseling memo . . . [which was] incorporated
into their . . . request for discipline.
As further support for its decision, the Commission referenced the
disparity in the memorandum regarding the reasons for the counseling meeting:
The memo stated that the "primary" situation that
prompted the counseling was Y.N.'s misrepresentation
on more than one occasion of his role as union
representative or EEO Advisory Committee member.
However, the investigation revealed that G.R. and
[petitioner] failed to provide any other instances of
Y.N.'s alleged misrepresentation and only identified the
one incident involving S.O. wherein Y.N. engaged in
protected activity.
This appeal followed. On appeal, petitioner raises the following points
for our consideration:
I. The Commission erred in finding [petitioner]
violated N.J.A.C. 4A:7-7-3.1 . . . as it confused its
interpretation of an inappropriate inquiry with a
demeaning reference.
II. The Commission's finding that [Y.N.]'s allegations
that discipline was retaliation for protected activity
were substantiated is a clear material error.
III. The Commission was arbitrary and capricious
when it failed to address [Y.N.]'s false discrimination
complaint.
A-4016-17T2
6
II.
Our limited review of an administrative agency's action is well settled.
Russo v. Bd. of Trs., Police & Firemen's Retirement Sys., 206 N.J. 14, 27 (2011).
Reviewing courts "afford[] 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) (quoting Newark v. Nat. Res.
Council, Dep't of Envtl. Prot., 82 N.J. 530, 539 (1980)). That presumption is
particularly strong when an agency is dealing with specialized matters within its
area of expertise. Nat. Res. Council, 82 N.J. at 539-41. We therefore defer to
"[a]n administrative agency's interpretation of statutes and regulations within its
implementing and enforcing responsibility . . . ." Wnuck v. N.J. Div. of Motor
Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (internal quotation marks
omitted). We do not substitute our judgment for that of the agency and, if there
is any argument supporting the agency action, it must be affirmed. Clowes v.
Terminix Int'l, Inc., 109 N.J. 575, 587 (1988).
For those reasons, "an appellate court ordinarily should not disturb an
administrative agency's determinations or findings unless there is a clear
showing that (1) the agency did not follow the law; (2) the decision was
arbitrary, capricious, or unreasonable; or (3) the decision was not supported by
A-4016-17T2
7
substantial evidence." In re Virtua-West Jersey Hosp. Voorhees for a Certificate
of Need, 194 N.J. 413, 422 (2008). "The burden of demonstrating that the
agency's action was arbitrary, capricious or unreasonable rests upon the [party]
challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-
44 (App. Div. 2006).
The Commission adopted the State Policy pursuant to its authority to
"[a]dopt and enforce rules . . . to effectively implement a comprehensive
personnel management system" for all state employees. N.J.S.A. 11A:2-6(d).
Relevant here, "[i]t is a violation of [the] policy to use derogatory or demeaning
references regarding a person's race . . . [which is a] protected category . . . ."
N.J.A.C. 4A:7-3.1(b). An example of prohibited activity includes "[e]ngaging
in threatening, intimidating, or hostile acts toward another individual in the
workplace because that individual belongs to, or is associated with, any of the
protected categories . . . ." N.J.A.C. 4A:7-3.1(b)(1)(vi).
Retaliation also is expressly prohibited under the policy. N.J.A.C. 4A:7 -
3.1(h) (prohibiting "[r]etaliation against any employee who . . . provides
information in the course of an investigation into claims of discrimination . . .
in the workplace"). Accordingly, no employee "shall be subjected to adverse
employment consequences" for bringing a discrimination complaint or
A-4016-17T2
8
providing information about alleged discrimination. Ibid. Prohibited activities
include "[i]mposing or threatening to impose disciplinary action on an employee
for reasons other than legitimate business reasons . . . ." N.J.A.C. 4A:7-
3.1(h)(4).
The State Policy "is a zero tolerance policy." N.J.A.C. 4A:7-3.1(a).
Accordingly, disciplinary or corrective action can be taken "regardless of
whether the conduct satisfies the legal definition of discrimination . . . ."
N.J.A.C. 4A:7-3.1(a). "A violation of [the] 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:7-3.1(b).
Having considered petitioner's contentions in view of the record and these
applicable legal principles, we conclude they are without sufficient merit t o
warrant further discussion in our written opinion. R. 2:11-3(e)(1)(E). We affirm
substantially for the reasons expressed in the Commission's well-reasoned final
decision, which "is supported by sufficient credible evidence on the record as a
whole." R. 2:11-3(e)(1)(D). We add only the following brief remarks.
Petitioner contends his use of the term "black" was taken out of context,
and not made with the intent to threaten, demean, or attempt to convince Y.N.
to refrain from filing a complaint with the Division. Although the State Policy
A-4016-17T2
9
could have been violated notwithstanding his intent, N.J.A.C. 4A:7-3.1(b), the
Commission also considered the context and timing of petitioner's remark, i.e.,
it was made after "Y.N. expressed his intention to file a complaint with [the
Division] . . . ." Indeed, the Division initially determined, "[g]iven the [DOT's]
zero tolerance of prohibited behaviors, and that [petitioner was] a supervisor,
[he was] held to a higher standard . . . ." See also N.J.A.C. 4A:7-3.1(e)
(requiring supervisors to "make every effort to maintain a work environment
that is free from any form of prohibited discrimination").
Affirmed.
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