Before Judges Pressler and Conley.
The opinion of the court was delivered by: Pressler, P.j.a.d.
On appeal from the Merit System Board.
Appellant Frank Costantino appeals from the final administrative determination of the Merit System Board (Board) upholding his termination from the position of Administrative Analyst I with the Division of Motor Vehicles (DMV) based on an adjudication of conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6), N.J.A.C. 4A:2-2.3(a)(9), by reason of a continuing course of sexual harassment of an employee under his supervision, Cynthia Scorsolini, over a period of fourteen months, namely, from September 1992 to November 1994. We reverse and remand for a new hearing.
This appeal was first before us in June 1997 under Docket Number A-6719-95T1, and by our opinion filed on July 14, 1997, we remanded to the Board for its further consideration. The basis for our action at that time was the Board's blanket acceptance, without any expressed analysis, of the factual and procedural findings by the administrative law Judge despite the extensive and detailed exceptions filed by appellant. As we explained in that opinion, "we are simply at a loss to determine, regardless of how much of the record was actually reviewed, whether the Board rejected appellant's detailed and substantial exceptions as a result of the required `personal understanding of the evidence,' or simply as a result of a blind `signing on the dotted line.' Matter of Fichner, 144 N.J. 459, 472 (1996) (quoting Lone Star Greyhound Park v. Texas Racing Commission, 863 S.W.2d 742, 749 (Tex. Ct. App. 1993))." (Slip opinion at 6). Our concern for the adequacy of the Board's review was evidently generated by what we then described as the ALJ's "selective Discussion of the evidence."
Pursuant to our remand, the Board issued a new final decision on October 7, 1997. Since we did not retain jurisdiction, appellant filed this second appeal, raising all of the procedural and factual challenges he raised on the first appeal. We reject the procedural challenges for the reasons explained by the Board in its final decision, with which we agree and which we find to be well founded in the applicable law. Our grave concern remains, however, with the Board's factual findings.
Trial of the charges of sexual harassment brought by the complaining employee involved, in the final analysis, the necessity for a critical finding as to credibility. That is to say, Scorsolini's claims both as to specific events and appellant's general conduct were largely uncorroborated and, to a significant extent, were contradicted by the witnesses produced both by DMV and appellant. We do not suggest that it was beyond the discretion of the ALJ to credit Scorsolini's testimony, despite the lack of corroboration and the contradiction. The problem here is somewhat different. As we will further explicate hereafter, the credibility finding in favor of complainant made by the ALJ is, in our view, irremediably tainted by a skewed analysis of the evidence adduced at the contested-case hearing. The ALJ confused testimony given under oath by several of the key witnesses with their paraphrased, unsigned and unsworn interviews given to a State investigator. Other testimony was mischaracterized. Exculpatory evidence was ignored. Unjustified innuendoes, either unsupported or contradicted by the record, were indulged in. Office gossip took precedence over sworn testimony. While the review of the testimony by the Board on remand was somewhat more balanced, that testimony was not analyzed but merely summarized in its more inculpatory aspects, and no findings of fact were made thereon. In the end, after reciting the testimony, all that the Board did, in effect, was to accept the ALJ's credibility finding in favor of Scorsolini. But since we have concluded that that credibility finding was tainted because of the inadequacies of and inaccuracies in the ALJ's evaluation of the evidence, it simply was not eligible for acceptance by the Board. In this posture we see no reasonable alternative available to protect the rights of the appellant, the public and Scorsolini short of a new contested-case hearing before a different ALJ.
In order to place the matter in a proper factual context, we address first what appear to be the undisputed facts of the employment relationship. As we understand the record, sometime prior to the fall of 1992, DMV decided to expand its system of Regional Service Centers. There were to be four such centers, one in Wayne, one in Eatontown, one in Deptford, and one in Trenton. The centers were to be serviced by a technical support unit, which was originally housed in DMV facilities in Quakerbridge. By early fall of 1992, the technical support unit had been set up with Denise Mattei as the manager and under her, appellant, a long-time DMV employee. There were three supervisors under appellant, Ira Kupersmit, Maria Jacobi, and Scorsolini. Kupersmit, a long-time technical support person, was primarily responsible for personnel training and setting up procedures in what DMV refers to as driver conferencing. Jacobi, also experienced in technical support, worked with Kupersmit. Scorsolini was new to technical support, having been assigned to that unit from a position involving direct customer service. It was anticipated that she would be in charge of the fee audit unit, which, we gather from the record, was to be responsible for prescribing uniform procedures for fee collection by the Regional Service Centers and training their personnel.
One of the major initial projects of the technical support unit was the preparation of a fee unit manual for use by the service training centers. Appellant had originally assigned Jacobi to that task, to be performed under his supervision. Although she apparently had begun it, she soon advised appellant that because of all her other responsibilities, she was unable to give it sufficient time for completion by the target date, which, we gather, was the scheduled opening of the Eatontown Regional Service Center. Kupersmit also had too many other responsibilities. Appellant therefore assigned the project to Scorsolini taking into consideration that she was or would be the supervisor of the fee audit unit charged with implementing the manual's procedures. Because of her lack of experience with fee collection and audit, she needed a substantial amount of supervision and training in order to do that job, and it was appellant's job to provide it. In any event, she undertook that responsibility under appellant's direction. We must also here point out that because of the anticipated relationship between the technical support unit and the Regional Service Centers, it was also part of appellant's job to make field visits to the Centers for purposes of training, inspection, and general assistance. It was his undisputed testimony that he rarely made those trips alone. When the subject of his visit was driver conferencing, he took Kupersmit or Jacobi with him. When it was audit, he took Scorsolini. If both areas of technical support unit responsibility were involved in the field trip, he took the supervisors from both units. In any event, the technical support unit began to grow, and within several months of its inception in Quakerbridge, it relocated to a Trenton DMV facility, a different facility than the one housing the Trenton Regional Service Center. At about that time, there were fourteen women in the unit and two men, appellant and Kupersmit.
Scorsolini made her complaint of sexual harassment against appellant in November 1993, shortly after Kupersmit and Jacobi had received promotions and she had not. The gravamen of her complaint involved one specific incident as well as general charges of a regular course of conduct. The specific allegation was that in late October or early November 1992, while she and appellant were returning to Trenton by car from a field visit they had made together to the Wayne Regional Service Center, appellant placed his hand on her leg and told her he was attracted to her and believed she felt the same way about him. According to her testimony, she then told him that she was happily married and "would never do anything like this." That was the end of the matter at that time. The asserted general course of conduct was appellant's alleged constant physical proximity to her, his invitations to lunch and coffee breaks, his standing over her and seeking her out, and her sense of being crowded and surrounded that he constantly generated in her. As illustrative of that conduct, Scorsolini related her experience at a driver conferencing training course. She claimed that appellant was constantly behind her as she sat at her computer terminal, making her so uncomfortable that she stopped going to the course long before its completion.
In sustaining the ALJ's Conclusion that appellant had subjected Scorsolini to a hostile environment by reason of his continuing course of conduct towards her, the Board on remand, pointed to these elements of her findings:
1) the October/November 1992 incident described above [the Wayne trip referred to above], 2) asking complainant to accompany him on personal errands during work hours, 3) asking complainant to accompany him alone on trips to regional offices, 4) asking complainant to have lunch alone together, 5) sitting next to complainant in the coffee break room and rubbing his leg against hers, 6) continually hovering over complainant and physically crowding her during work hours, 7) standing behind and leaning over complainant in a driver history training class to such a degree that complainant was forced to withdraw from the class, 8) asking complainant to accompany him on an overnight trip to Atlantic City to attend a conference so that complainant could give a training course in Driver History, despite the fact that complainant was the least qualified of appellant's three subordinates to provide that training, 9) rejecting complainant's request to spend a week at the Eatontown Regional Center, instead, allowing her to go to the Trenton Regional Center, within walking distance from appellant's office. The ALJ found that the above instances, including that which occurred in October/November 1992 on route from Wayne to Trenton, taken in the aggregate, constituted sexual harassment by appellant towards Ms. Scorsolini. The ALJ recommended that the charges against appellant be sustained and the penalty of removal be affirmed.
These findings are troublesome to us. Some of them, and particularly their innuendoes, are completely unsupported by the record. Others are based on a total disregard of what the facts of the operation of DMV were all about. And others were made despite the overwhelming weight of contradictory testimony. It is, of course, true that some of the findings were supported by the record, but those findings were based exclusively on Scorsolini's credibility. But, as we have explained, the finding of Scorsolini's credibility was rendered unreliable by the skewing of the record by the ALJ.
We address these findings with particularity. We have already referred to the Wayne trip and agree that Scorsolini's version and appellant's denial posed a simple matter of credibility.
As to the second finding, appellant conceded that he had asked Scorsolini on at least one occasion that he could remember to accompany him on a personal errand, a visit to his lawyer. He asserted that he had done so because he was in the middle of explaining some significant matter to Scorsolini that she had to know about for the manual, and thought they could continue discussing it on the trip without losing time. Scorsolini never denied that office business was discussed on that occasion and never suggested that anything untoward happened during that trip. Yet appellant's apparently reasonable explanation was totally disregarded.
As to the third finding, asking Scorsolini to accompany him alone on trips to regional offices, we see no basis for disregarding the apparently credible testimony of appellant, Jacobi, and Kupersmit as to what these trips were all about, why they were necessary, and why the unit supervisors, of whom Scorsolini was one of three, were appropriately asked to make such a trip. Indeed, Scorsolini conceded that after the Wayne trip, she made at least two more unaccompanied trips with appellant to a regional center, that she did so because it was her job, and that nothing untoward happened.
As to the fourth finding, the invitations to have lunch, there was disregarded and undisputed testimony that on at least one occasion Scorsolini initiated the invitation. Apparently members of the technical support ...