On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-208-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 19, 2007
Before Judges Cuff and Simonelli.
Appellant, Anthony Carter, appeals from the order granting summary judgment dismissing his complaint with prejudice. We affirm.
Carter is an African-American. Beginning February 15, 1997, he was employed as a corrections officer by respondent, New Jersey Department of Corrections (DOC), and worked at South Woods State Prison. The DOC terminated his employment on April 14, 2000, when it discovered that he had intentionally falsified his employment application.
Prior to his employment with the DOC, Carter was employed by the Montgomery County Detention Center (MCDC) in Rockville, Maryland from May 1994 to May 1995. Another officer reported that Carter allegedly engaged in inappropriate behavior with a female inmate. Charges were filed against Carter, he was suspended and found guilty of gross misconduct and terminated effective May 5, 1995. His appeal of the termination was unsuccessful.
On or about August 15, 1996, Carter submitted an application to the DOC for a position as a corrections officer. On his employment application, Carter falsely stated that he was unemployed during the time he worked for the MCDC.*fn1 In signing the application, Carter certified as follows:
I CERTIFY that the information of this application is complete and accurate, to the best of my knowledge, understand that any misleading or incorrect information may render this application void and be just cause for immediate dismissal if employed.
The DOC eventually learned that Carter had been terminated from his employment with the MCDC and falsified his DOC employment application. Carter admitted falsifying his DOC employment application and stated that he did so because he did not think the DOC would find out about his employment by the MCDC and feared that the DOC would not have hired him if he revealed the termination.
On December 20, 1999, the DOC served Carter with a Preliminary Notice of Disciplinary Action, charging him with "falsification: intentional misstatement of material fact in connection with work, employment, application, attendance, or in any record, report, investigation or other proclamation." The DOC sought Carter's removal. A hearing was held on March 20, 2000, after which the Hearing Officer sustained the charge. On April 14, 2000, the DOC issued a Final Notice of Disciplinary Action, removing Carter from his employment, effective April 5, 2000, for falsifying his employment application.*fn2 On May 29, 2000, Carter filed an appeal with the Merit System Board (Board).
On February 22, 2001, Carter filed a one-count complaint in the Superior Court, Law Division wherein he alleged that the DOC violated the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, by "applying harsher discipline to minority officers than Caucasian officers found guilty of similar disciplinary infractions." He claimed that the DOC did not treat a Caucasian officer, James Bennet, as harshly as it treated him for the same falsification offense.*fn3 On May 6, 2003, the trial court stayed the Law Division matter pending resolution of Carter's administrative appeal.
The Board transferred the administrative appeal to the Office of Administrative Law for a hearing as a contested case. During the administrative appeal, Carter raised the issue of disparate treatment. On September 11, 2003, the Administrative Law Judge (ALJ) issued an Initial Decision finding that Carter intentionally misrepresented and falsified his employment application and concluding that the DOC had sustained the charge. The ALJ, however, recommended a six-month suspension, not removal.
The Board considered the ALJ's Initial Decision and made an independent evaluation of the record. In a Final Administrative Decision, issued November 24, 2003, the Board agreed with the ALJ that the DOC had sustained the charges, but disagreed with the ALJ's recommendation to modify the removal to a six-month suspension. The Board concluded that Carter intentionally attempted to deceive the DOC to gain employment and "blatant dishonesty" of this type "cannot be justified." The Board concluded that, because of the ...