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In re Fuentes

June 15, 2007

IN THE MATTER OF HECTOR FUENTES.


On appeal from a Final Decision of the Merit System Board, 2004-2857.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 23, 2007

Before Judges Lefelt and Parrillo.

Appellant Hector Fuentes appeals from the final decision of the Merit System Board (Board) upholding the appointing authority's imposition of a thirty-day suspension sanction on him. We affirm.

Fuentes was a Senior Correction Officer (SCO) with the Juvenile Justice Commission (JJC) in the Department of Law and Public Safety, assigned to the Jamesburg Training School for Boys. On March 28, 2003, he was charged with a violation of N.J.A.C. 4A:2-2.3(a)6, conduct unbecoming a public employee, and N.J.A.C. 4A:2-2.3(a)11, other sufficient cause defined as a violation of Human Resource Bulletin 84-17 C.4 -- verbal abuse of a resident inmate. The charges stemmed from an incident that occurred on March 27, 2003 between Fuentes and a juvenile inmate. At the conclusion of the departmental hearing, the JJC found Fuentes guilty of the charges and imposed a thirty-day suspension.

Fuentes appealed and the matter was transmitted to the Office of Administrative Law (OAL) where a hearing was held at which conflicting versions of the incident were presented.

Grace Ribaudo, a New Jersey licensed school psychologist at Jamesburg, testified that she heard loud voices outside of her window on the second floor of Jamesburg's Wilson Building. She opened the window and saw Fuentes pointing at residents inside a State van. Ribaudo heard the officer say, "I'll track you down", "I'm going to fuck you", "your mother sucks dick", and "take it up the ass." Ribaudo listened to the conversation for about ten minutes and characterized it as "very threatening." Fuentes' superior, Lieutenant James Mercer, also witnessed the incident, but related a different version. Mercer heard Fuentes call one of the inmates "a fucking piece of shit", after the inmates bombarded him with insults and threats to him and his family. Mercer intervened and told Fuentes to "knock it off" and "not to feed into the nonsense." One of the inmates quieted after Mercer intervened. The other continued with language that Mercer described as "disgusting." Fuentes supposedly said no more after Mercer counseled him. Mercer left the scene when the van was about to drive away and later filed an incident report after receiving Ribaudo's report.

At the close of respondent's case, Fuentes moved for a judgment of involuntary dismissal, which the administrative law judge (ALJ) granted on the basis that he did not find Ribaudo credible and that the language Fuentes used in front of the inmate, as related by Mercer, did not constitute verbal abuse.

Specifically, as to the latter, the ALJ concluded that "[u]sed by a correction officer when speaking to any employee, official or visitor at Jamesburg the words would be offensive, and unbecoming of a public employee. When used to remind an inmate who is [the] correction officer and who is the inmate[,] [the] abusiveness fades into the necessities of reasserting authority."

The Board remanded the matter to the ALJ to develop a more complete hearing record and present a complete explanation of the testimony and basis for his credibility determinations. On remand, the ALJ reiterated his finding that the testimony of Ribaudo was incredible, while the testimony of Mercer was credible, and once again concluded that Fuentes' retort was not verbal abuse per se "since the inmates were using the very same language." Accordingly, the ALJ dismissed the charges against Fuentes.

The Board reversed and reinstated the JJC's imposition of a thirty-day suspension. While accepting the ALJ's credibility determination, the Board disagreed with his conclusion that Fuentes' language did not constitute verbal abuse. The Board reasoned:

Furthermore, even though Mercer testified that he did not consider the appellant's retort (calling the inmate "a fucking piece of shit") to be verbal abuse, Mercer counseled the appellant for his use of language and told him to "knock it off" and "not to feed into the nonsense." The ALJ himself characterized the appellant's language toward the inmates as a "harangue." Regardless of the provocations directed towards the appellant by the inmates, the appellant had a professional duty as a Senior Correction Officer to remain in control of his behavior and speech.

Finally, the Board finds especially noteworthy the fact that, in his report of the incident, Mercer stated that he intervened in the incident and talked with the two inmates, calming down at least one of ...


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