On appeal from a Final Administrative Decision of the New Jersey Civil Service Commission, No. 2007-3113.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and LeWinn.
Stephanie M. Carter-Green appeals from a Final Decision of the Civil Service Commission upholding three disciplinary charges which had been filed against her as well as a ten-day suspension which had been imposed. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Appellant is a corrections officer with the rank of sergeant and is assigned to Albert C. Wagner Youth Correctional Facility. On the evening of July 20, 2006, she became involved in a verbal dispute with another officer when she attempted to borrow a pen. Others became involved in the exchange; language deteriorated and insults were hurled. During the course of this incident, appellant referred to another officer as a "fag" and a "bitch" and made comments to him with sexual overtones. As a result of her language, she was charged with violating N.J.A.C. 4A:2.2.3(a)11, prohibiting discrimination, harassment or a hostile work environment; N.J.A.C. 4A:2-2.3(a)6, conduct unbecoming; and N.J.A.C. 4A:2-2.3(a)11, verbal abuse. The preliminary notice advised her that she faced a possible suspension from duty of ten days.
A hearing was held on these charges before an administrative law judge. Five witnesses testified at this hearing: appellant; the officer to whom she made her remarks which gave rise to the disciplinary action in question; the officer from whom she had initially attempted to borrow a pen and with whom the initial dispute arose; the officer who replaced that individual; and a lieutenant who overheard a portion of the conversation and thought the two were joking with one another. The testimony of these five individuals was conflicting in many regards, and the administrative law judge determined that the most credible testimony was given by the lieutenant. The administrative law judge considered the testimony of the other witnesses to be self-serving.
Based upon the lieutenant's testimony, the administrative law judge found that appellant did refer to the other officer as a "fag." As a result, the administrative law judge found appellant guilty of conduct unbecoming and verbal abuse. He found, however, that appellant had not violated the Department's policy prohibiting discrimination, harassment or a hostile work environment and found appellant not guilty of the first charge. The administrative law judge based his findings and conclusion with respect to that charge on the principles of a hostile work environment enunciated in Lehmann v. Toys R Us, Inc., 132 N.J. 587 (1993).
In that case, the Supreme Court explained that to prevail upon a claim of a hostile work environment, an employee must establish four elements: that "the complained-of conduct (1) would not have occurred but for the [complaining] employee's gender; and it was (2) severe or pervasive enough to make a (3) reasonable [person] believe that (4) the conditions of employment [had been] altered and the working environment [made] hostile or abusive." 132 N.J. at 603-04.
The administrative law judge then turned to the question of discipline. Because he had found appellant not guilty of one charge, and because he considered that she had a very good disciplinary history, he reduced the time of suspension from ten working days to five working days.
Both the Department and appellant filed exceptions to the decision of the administrative law judge. The Department objected to the finding that appellant was not guilty of the first charge and to the reduction in penalty. Appellant excepted to the finding that she was guilty of the remaining charges and maintained that if any discipline were to be imposed, it should be no more than a written reprimand.
The Civil Service Commission rejected the conclusion of the administrative law judge that appellant was not guilty of the first charge and also rejected his recommendation as to discipline. It found that appellant was guilty of all three charges and that a ten-day suspension was the appropriate penalty.*fn1
This appeal followed. On appeal, appellant raises the ...