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Bostanci v. New Jersey City University

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 13, 2009

MUSTAFA BOSTANCI, APPELLANT,
v.
NEW JERSEY CITY UNIVERSITY, RESPONDENT.

On appeal from the Division on Civil Rights, Docket No. EJ06WB-53199.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 16, 2009

Before Judges Sabatino and Simonelli.

Mustafa Bostanci, pro se, appeals a final agency decision of the Division on Civil Rights ("the Division") issued on March 10, 2008, following its investigation of claims by Bostanci that he had been discriminated against by his former employer, New Jersey City University ("the University") because of his age.

In its final decision, the Division concluded that no probable cause existed to establish that the University or its officials had engaged in age-based discriminatory or retaliatory conduct concerning Bostanci that violated Sections 12(a) or 12(d) of the Law Against Discrimination ("LAD"), N.J.S.A. 10:5-12(a) and (d).

We summarize the circumstances as follows. Bostanci was born on October 31, 1965, and is presently age forty-three. The University hired him in July 2001, as a computer specialist. Over the course of time, Bostanci's immediate supervisor, Ritu Shastri, perceived several problems with his work and his interactions with customers and fellow workers. Consequently, Bostanci received unsatisfactory performance evaluations from 2002 through 2006. He was disciplined on several occasions, including suspensions in March 2006 and September 2006.

Bostanci contends that on three occasions between December 2006 and March 2007, Shastri told him that he was "too old." However, the Division's investigators were unable to substantiate those alleged improper remarks, and Bostanci did not identify any witnesses who heard them. Fellow workers did advise the Division, however, that Bostanci had disagreements with management and that he tended to speak loudly when those disagreements occurred.

Bostanci further contends that Shastri circulated an e-mail within the office on March 28, 2007, which criticized his handling of an informational query. Bostanci complained about the e-mail to another supervisor, Phyllis Szani. Szani convened a meeting in her office to discuss the matter with Bostanci, Shastri and a fourth employee. According to the findings of the Division investigators, Bostanci continued to be upset, and he declined to leave Szani's office until after Szani called campus security for assistance. Two days later, Bostanci transmitted an e-mail contending that Shastri had been sending out false e-mails about him and had created a "hostile and offensive atmosphere." His message did not, however, accuse Shastri of age-based discrimination.

The University suspended Bostanci for his conduct in Szani's office. The suspension prompted him to complain to the University's director of affirmative action. However, Bostanci's internal complaint did not allege age discrimination and, in fact, alluded to Shastri having "personal problems" with him. Following a disciplinary hearing, the University dismissed Bostanci on May 8, 2007.

After his discharge, Bostanci lodged a complaint of age discrimination with the Division. The Division then undertook an investigation, which included the review of the pertinent e- mails and workplace records and interviews with various individuals. The interviews included three fellow workers identified by Bostanci as similarly situated, all of whom were older than him. The fellow employees did not state to the Division that they had observed Shastri engage in age discrimination, although one of them noted the friction between Shastri and Bostanci. The investigators also interviewed Bostanci's two former union representatives, who both denied knowledge of any age-based mistreatment but acknowledged the history of clashes between Bostanci and University management.

Based upon its review, the Division concluded that "[t]he investigation did not support [Bostanci's] claim that he was discriminated against because of age and [the victim of] reprisal." The Division accordingly closed its file for lack of probable cause.

Bostanci now appeals. He argues in his brief that:

[THE] ERRONEOUS EXCLUSION OF EVIDENCE AND TESTIMONIES CAUSED DISMISSAL OF CHARGES WRONGFULLY. EVIDENCE AND WITNESS TESTIMONIES WERE RELEVANT AND NECESSARY TO A FAIR DETERMINATION OF THE ISSUES. EVIDENCE AND TESTIMONIES MAY NOT CONSTITUTIONALLY BE EXCLUDED.

Having considered these arguments in light of the administrative record and the applicable law, we affirm the Division's findings, substantially for the reasons espoused in its final agency decision. We do so, mindful of our limited role in reviewing final determinations of state administrative agencies. As the Supreme Court has noted, "[a]n administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).

As the Court further observed in Herrmann, "[t]hree channels of inquiry inform the appellate review function." Id. at 28. These are:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Ibid. (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

"When an agency's decision meets [these] criteria, then a court owes substantial deference to the agency's expertise and superior knowledge of a particular field." Ibid.

Viewing the record in light of these well-settled standards, the Division's final decision must be sustained. The Legislature created the Division by statute to administer and enforce the State's civil rights laws. See N.J.S.A. 10:5-6. The Division has recognized expertise in investigating and determining the presence or absence of violations of the LAD. See, e.g., Hermann v. Fairleigh Dickinson Univ., 183 N.J. Super. 500, 503-05 (App. Div. 1982); Sprague v. Glassboro State College, 161 N.J. Super. 218, 225 (App. Div. 1978). The agency's delegated functions include determining if there is probable cause "strong enough to warrant a cautious person in the belief that the LAD has been violated." N.J.A.C. 13:4-10.2(b).

By filing his complaint with the Division rather than with the Superior Court, Bostanci elected the forum in which his claims would be examined, taking advantage of the more expeditious administrative process. Hermann, supra, 183 N.J. Super. at 504.

Despite Bostanci's criticisms about the Division's investigation, we are not persuaded that the Division undertook its review here in an unfair or unreasonable manner. Nor has it been shown that the Division's finding of "no probable cause" is contrary to the administrative record, particularly given the lack of corroboration of Bostanci's claims of mistreatment because of his age. The record instead supports the Division's conclusion that the University disciplined Bostanci for reasons having nothing to do with his age.

Although Bostanci presents in his brief on appeal various pejorative accusations about the University's human resource director and other matters that are not specifically discussed in the Division's final decision, we are unpersuaded that the Division's investigation, on the whole, was arbitrary or capricious. Bostanci's claims of unconstitutionality and his other remaining arguments lack sufficient merit to require discussion. R. 2:11-3(e)(1)(D) and (E).

Affirmed.

20090413

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