On appeal from a Final Administrative Decision of the Merit System Board, Docket No. 2005-1472.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Simonelli.
Sandra Williams appeals from the final administrative action issued by the Merit System Board (MSB) on October 5, 2006, approving her removal from employment with the Department of Corrections (DOC). The MSB rejected the recommendation of the Administrative Law Judge (ALJ) to dismiss the charges filed by the DOC. On appeal, Williams argues that the MSB erred in rejecting the credibility determinations made by the ALJ and acted in an arbitrary and capricious manner in removing her from her position. We disagree and affirm.
Williams graduated from the DOC basic corrections officer training course held at the State Corrections Academy (Academy) and commenced employment as a Corrections Officer Recruit (COR) assigned to Northern State Prison. The DOC served Williams with a Preliminary Notice of Disciplinary Action that charged her with engaging in conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)6, or other sufficient cause, N.J.A.C. 4A:2-2.3(a)11, that is, violating the DOC policy prohibiting harassment, discrimination, or hostile environments in the workplace.
The notice stated that while a trainee at the academy, between March 30, 2004 and June 17, 2004, Williams engaged in "sexually explicit conduct" when she removed [her] towel to expose [her] nude body to COR Peterson and commented that "it" was for her and licked [her] finger in a sexual manner. [Williams] invited COR Peterson to move her bed next to [hers] and inquired whether she "liked" women. [Williams] discussed [her] sexual exploits with other female trainees.
The DOC sought Williams' removal.
The charges were sustained following a disciplinary hearing held on September 13, 2004, and Williams was removed from her employment on October 6, 2004. Williams timely appealed to the MSB, and the matter was transferred to the Office of Administrative Law as a contested case. N.J.S.A. 52:14F-6(a).
On July 20, 2006, the ALJ issued an Initial Decision recommending the order of removal be reversed and the charges dismissed. In reviewing the testimony, the ALJ made findings of fact, including credibility determinations regarding each witness. More specifically, the ALJ (1) discounted testimony regarding events other than those charged as it was "valueless"; (2) found Officer Peterson witnessed one of the events charged and provided credible testimony; (3) decided the recruits laughed at Williams' actions and Peterson herself thought it was a joke; (4) determined Williams' testimony that she did not intend to harass the other recruits was "credible and truthful"; and (5) established there was a degree of hostility between Williams and the other recruits.
The ALJ determined the events were "best described as locker room humor in extremely poor taste" and Williams' conduct did not constitute a genuine request for sexual favors or an improper use of authority to make a sexual advance. The ALJ further reasoned Williams' actions occurred in the dormitory during "down time" implying the conduct did not occur in the work environment and, thus, did not violate the DOC's "zero tolerance" policy proscribing harassment, hostile work environment, and discrimination, N.J.A.C. 4A:7-3.1(a)1. The ALJ concluded the charges were not validated and Williams' actions did not warrant removal. He recommended all charges should be dismissed and Williams should be reinstated.
Following its de novo review of the record, the MSB issued its Final Administrative Decision on October 25, 2006. The MSB adopted the findings of fact contained in the ALJ's Initial Decision, however declined to adopt the recommendation to reverse Williams' removal from employment. N.J.S.A. 52:14F-7(a). The MSB determined Williams' behavior warranted discipline and found the ALJ's characterization of the conduct as "locker room humor" was "disturbing." The MSB further noted Williams' stated intent or the witnesses' subjective perceptions of the conduct was not determinative of whether Williams' actions evinced harassment or created a hostile work environment. The MSB concluded "the [Williams'] actions in exposing herself to fellow recruits while utilizing graphic language depicting sexual experiences constitutes third party sexual harassment, which absolutely cannot be tolerated in the workplace." The MSB upheld Williams' removal.
Our scope of review of administrative decisions is narrow. Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 15 (2006). We will not overturn an agency decision unless convinced "'that it was arbitrary, capricious, or unreasonable, or that it lacked fair support in the evidence, or that it violated legislative policies expressed or implicit in the [enabling legislation].'" Id. at 16 (quoting Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). We are not free to substitute our judgment for that of the agency if substantial credible evidence supports the agency's conclusion. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988).
We have carefully reviewed Williams' claims in light of the record and applicable law. Our review persuades us that the MSB's decision "is supported by sufficient credible evidence on the record as a whole." R. 2:11-3(e)(1)(D). Williams did not deny that while in the barracks as an Academy recruit, she dropped her towel and made sexually explicit comments to Officer Peterson. Further, we conclude the MSB's determination that Williams' conduct violated N.J.A.C. 4A:7-3.1(a)1 and 2, which expresses the State's zero tolerance policy proscribing "harassment or discrimination by anyone in the workplace" or "any location which can be reasonably regarded as an extension of the workplace," ...