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Mesa v. Hudson County Sheriff's Dep't

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 18, 2007

EDWARD M. MESA, COMPLAINANT-APPELLANT,
v.
HUDSON COUNTY SHERIFF'S DEPARTMENT, RESPONDENT-RESPONDENT.

On appeal from the Division on Civil Rights, Docket No. EJ06JK-49036-E.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 13, 2007

Before Judges Wefing and Weissbard.

Appellant, Edward M. Mesa, appeals from a final agency determination of the Director of the Division on Civil Rights (the Division), rejecting his claim that he had been subjected to unlawful reprisal under the Law Against Discrimination (LAD), N.J.S.A. 10:5-12(d), by defendant Hudson County Sheriff's Department.*fn1 Specifically, the alleged act of reprisal was the failure of the current Sheriff of Hudson County to issue to Mesa a Retired Officers' Identification Card to replace one previously issued to Mesa that had been lost or stolen. Mesa had retired from the Sheriff's Office on disability in 1993, and at the time of his retirement had been issued a badge and card identifying him as a retired Sheriff's Officer. Mesa's contention was that the refusal to issue him a replacement card was a reprisal for a discrimination complaint against the Sheriff's Office that had resulted in a 1973 Consent Order.

Our standard of review is limited. A final agency decision should be upheld unless it is shown to be arbitrary, capricious or unreasonable, or is unsupported by sufficient credible evidence in the record as a whole. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988); Rosen by Rosen v. N.J. Div. of Dev. Disabilities, 256 N.J. Super. 629, 642 (App. Div. 1992), certif. denied, 133 N.J. 440 (1993). It is not our function to substitute our independent judgment for that of the administrative agency. We will not, therefore, review the evidence, determine the credibility of witnesses, draw inferences and conclusions from the evidence or resolve conflicts in the evidence, those being functions that are left to the agency. S.D. v. Div. of Med. Assistance and Health Servs., 349 N.J. Super. 480, 484 (App. Div. 2002). And where, as here, the agency is interpreting a statute that it administers, the agency's decision is entitled to "considerable weight." Mistirck v. Div. of Med. Assistance and Health Servs., 299 N.J. Super. 76, 79 (App. Div. 1997), rev'd on other grounds, 154 N.J. 158 (1998). However, we do have the duty to determine "whether pertinent principles of law were properly interpreted and applied to the facts as found by the trier thereof." In re Grossman, 127 N.J. Super. 13, 23 (App. Div.) certif. denied, 65 N.J. 292 (1974).

Appellant filed his verified complaint with the Division on February 24, 2003. On July 29, 2004, the Division issued a finding of probable cause, as a result of which the matter was referred to the Office of Administrative Law (OAL) for hearings.

On July 19 and 20, 2005, the matter was heard by Administrative Law Judge Gerson (ALJ) who, on February 10, 2006, issued an initial decision dismissing appellant's verified complaint, finding that he had failed to establish a prima facie case of unlawful retaliation.

On July 13, 2006, the Director issued a Final Decision affirming that appellant had failed to establish a prima facie case of unlawful retaliation. The Director's decision was embodied in a seventeen-page written opinion in which he adopted the factual findings of the ALJ. Appellant has appealed. In support of his appeal, he has filed a letter in which he sets out a number of factual findings but makes no legal argument, in clear violation of our rules of procedure. R. 2:6-2(a)(5). At the conclusion of his letter, appellant states that he is relying on briefs submitted on March 21, 2006, by an attorney on his behalf. The appendix to his letter, however, does not contain a copy of the brief in question. However, the appendix to defendant's brief does contain a copy of the letter in question, in which appellant's counsel, who had represented him before the OAL, set forth exceptions to the ALJ's Initial Decision. Notwithstanding appellant's failure to follow the rules, out of an abundance of caution, and in an effort to assure him a fair review, we have reviewed that letter brief.

Having thus considered appellant's arguments in light of the record and applicable law, and pursuant to the standards of review set forth above, we affirm for the reasons set forth by the Director in his decision of July 13, 2006.

Affirmed.


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