October 19, 2010
IN THE MATTER OF J.M. AND DEPARTMENT OF TRANSPORTATION.
On appeal from a Final Administration Action of the Civil Service Commission, Docket No. 2008-2847.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 7, 2010
Before Judges Payne and Messano.
J.M. appeals from the final administrative action of the Civil Service Commission (the Commission)*fn1 denying her appeal from an earlier decision of the Department of Transportation (DOT). DOT concluded that J.M.'s hostile work environment, sexual harassment and gender discrimination complaints could not be substantiated. Before us, J.M. raises the following arguments:
THE DEPARTMENT OF TRANSPORTATION DETERMINATION WAS INCORRECTLY DECIDED AGAINST THE WEIGHT OF EVIDENCE IN FAVOR OF APPELLANT.
THE CIVIL SERVICE COMMISSION APPLIED THE INCORRECT STANDARD OF REVIEW OR ABUSED ITS DISCRETION IN DENYING APPELLANT'S APPEAL OF THE DEPARTMENT OF TRANSPORTATION DETERMINATION BELOW.
APPELLANT HAS PRESENTED SUFFICIENT EVIDENCE TO SUPPORT A CLAIM OF DISCRIMINATION DURING HER EMPLOYMENT WITH THE DEPARTMENT OF TRANSPORTATION, OR ALTERNATIVELY, TO WARRANT A NEW HEARING REGARDING SAME.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
J.M. began working for DOT in November 2002 and ultimately obtained a position in the Netcong Yard in October 2003. In July 2006, she filed a complaint with DOT in which she alleged:
1) a hostile work environment because her co-workers blamed her for causing an inspection of the Netcong Yard by DOT's Inspector General (IG); 2) gender discrimination because she did not receive the same amount of overtime as her male co-workers, was frequently overworked, and made to work alone; 3) a hostile work environment because her co-workers cursed and yelled at her; and 4) sexual harassment in that her co-workers inappropriately touched and kissed her.*fn2
On November 28, 2007, DOT's Division of Civil Rights and Affirmative Action responded after "conduct[ing] an investigation during which several . . . employees were interviewed." Those interviews revealed that "[n]one of the staff . . . thought . . . or had any reason to hold [J.M.] accountable for the IG inspection." None of the witnesses "observed sexually harassing behavior in the yard," and there were "[n]o reports of inappropriate touching . . . ." DOT also concluded J.M.'s allegation of gender discrimination regarding her assignments "was not substantiated" because "[w]itnesses confirmed that [she] usually did not work alone, and [her] duties were commensurate with . . . [her] male co-workers." Although a review of DOT's payroll records revealed J.M. "received less emergency and planned overtime than [her] male co-workers, there was no information to suggest [that] was based on gender." In conclusion, DOT could not substantiate any violation of the State's anti-discrimination policy. See N.J.A.C. 4A:7-3.1.
In December 2007, through counsel, J.M. appealed DOT's decision to the Merit System Board (the Board), which acknowledged receipt of the appeal in a letter dated January 31, 2008. The Board also requested that DOT respond to the appeal, that J.M. supply any additional information within 20 days and that she "include a statement specifying the remedy sought." In April, DOT responded with a detailed letter that recounted J.M.'s allegations and synopsized the agency's interviews with nine "current and former DOT employees . . . ."
In January 2009, the Board notified J.M.'s counsel that it had yet to receive "the reason for the appeal and the specific relief requested as required by N.J.A.C. 4A:7-3.2(m)." It further noted that J.M. had not forwarded "any argument to dispute [DOT's] response" to the appeal. Noting "the burden of proof [wa]s on the appellant in all discrimination appeals," the Board advised that it would "consider the matter closed" unless it received from J.M. "a substantive basis to continue with the appeal process."
On January 30, J.M. filed a statement of reasons for the appeal, specifically arguing that DOT's decision was "against the weight of the evidence." Her attorney noted that J.M. had documented her claims in "journals, notes and calendars," and that the other witnesses interviewed by DOT "lied during the course of [the] investigation"; he sought a hearing on the contested facts. Regarding the "[specific relief] requested," J.M. sought an "order prohibiting discrimination on the part of all individuals and entities involved" in the discriminatory acts, "the assessment of civil penalties and criminal sanctions . . . pursuant to N.J.A.C. 4A:10-2.4, an award of . . . attorney's fees, compensatory damages, [and] punitive damages . . . ."*fn3
The Commission issued its decision on March 13. Addressing J.M.'s request for a hearing, it concluded that a review of the "written record" revealed that "no material issue of disputed fact ha[d] been presented which would require a hearing." On the merits of J.M.'s appeal, the Commission concluded [S]he ha[d] not presented a scintilla of evidence in support of her allegations. She ha[d] not provided any witness statements or documentary evidence to contest the investigation's findings. In the absence of any evidence contrary to the findings of the DOT, no basis ha[d] been presented to support the appellant's request for a hearing or to support a finding that she was subjected to violations of the State Policy. Accordingly, the appointing authority's investigation of the . . . complaint was thorough and impartial, and . . . no basis exist[ed] to find a violation of the New Jersey State Policy Prohibiting Discrimination in the Workplace.
The Commission denied J.M.'s appeal, and this appeal followed.
In September, the Deputy Attorney General representing the Commission filed the Statement of Items Comprising the Record on Appeal. See R. 2:5-4(b). J.M. obtained a thirty-day extension to file her brief because her attorney was "not in possession of discoverable materials that comprise the record below and/or serve as the underlying source documents for the subject matter of the . . . appeal," and because "it [wa]s reasonably possible that the Attorney General's Office [might] also not presently be in possession of many of these materials." We granted a similar thirty-day extension to the Commission to file its respondent's brief.
In her brief, J.M. claims that "underlying source documents pertaining to investigations and decisions below, including . . . [her] initial complaint letters . . ., full investigative reports . . . including witness statements and investigative notes" were omitted from the record submitted for purposes of our review. She further alleges these documents are "germane to the subject matter of th[e] appeal." In both her brief and reply brief, J.M. indicates her intention to file a motion to compel production of these documents and supplement the record. However, no such motions were ever filed; thus, we conduct our review on the record as it currently exists.
We begin by noting that "[t]he scope of [our] review is limited." In re Herrmann, 192 N.J. 19, 27 (2007). "An 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." Id. at 27-28. We "afford substantial deference to an agency's interpretation of a statute that [it] is charged with enforcing[,]" Richardson v. Bd. of Trs., 192 N.J. 189, 196 (2007) (citations and quotations omitted), as well as its "interpretation of . . . regulations within its implementing and enforcing responsibility . . . ." Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (quotation omitted). "Deference controls even if the court would have reached a different result in the first instance." In re Herrmann, supra, 192 N.J. at 28.
We first consider J.M.'s claim that she was entitled to a plenary hearing on her claims of discrimination. "The State of New Jersey is committed to providing every State employee and prospective State employee with a work environment free from prohibited discrimination or harassment." N.J.A.C. 4A:7-3.1(a).
To achieve that goal, "[e]ach State department, . . . agency and authority . . . is responsible for implementing th[e] model procedure" set forth in N.J.A.C. 4A:7-3.2. Upon an employee's filing of a complaint alleging a violation of the State's non-discrimination policy, the department's EEO/AA officer shall initiate, in her discretion, "a prompt, thorough, and impartial investigation into the alleged harassment or discrimination . . .," N.J.A.C. 4A:7-3.2(i), and "issue a final letter of determination . . . ." N.J.A.C. 4A:7-3.2(l).
The complainant may then "submit a written appeal . . . . The appeal shall be in writing and include all materials presented by the complainant at the State agency level, the final letter of determination, the reason for the appeal and the specific relief requested." N.J.A.C. 4A:7-3.2(m). "The appellant shall have the burden of proof in all discrimination appeals . . . ." N.J.A.C. 4A:7-3.2(m)(3).
Except for appeals from various forms of disciplinary action where a hearing is required, see N.J.S.A. 11A:2-6(a), the Commission is authorized, "[o]n a review of the written record, to "render the final administrative decision on other appeals." N.J.S.A. 11A:2-6(b) (emphasis added); see In re Juvenile Detention Officer Union County, 364 N.J. Super. 608, 614 (App. Div. 2003) (noting the statute authorizes de novo review "on the written record" of all appeals except those "specifically set forth in N.J.S.A. 11A:2-6(a) or N.J.S.A. 11A:2-11"). N.J.A.C. 4A:7-3.2(m)(2) implements this legislative decision by providing that a complainant's appeal "shall [be] decide[d] . . . on a review of the written record or such other proceeding as . . . deem[ed] appropriate." (citing N.J.A.C. 4A:2-1.1(d)). N.J.A.C. 4A:2-1.1(d), in turn, provides that "[e]xcept where a hearing is required by law or these rules, or where the Commissioner or Board finds that a material and controlling dispute of fact exists that can only be resolved by a hearing, an appeal will be reviewed on a written record." (Emphasis added).
The Legislative preference for an expedited hearing on the written record in most appeals contrasts with the requirement that a hearing be held when the administrative decision results in disciplinary action against the offending employee. N.J.S.A. 11A:2-6(a). The regulations reflect this distinction.
Under the non-discrimination policy, an appointing authority may discipline an offending employee. See N.J.A.C. 4A:7-3.1(k) (permitting "appropriate administrative and/or disciplinary action" against any employee found to have violated the policy). An employee so disciplined may appeal the agency's decision, and, in such circumstances, is accorded the right to a hearing. N.J.A.C. 4A:7-3.2(n)(3).
In short, the entire regulatory scheme is designed to permit the State and its agencies, as employers, to quickly address and eradicate discriminatory conduct in the workplace. See, e.g., N.J.A.C. 4A:7-3.1(g)(2) (permitting the appointing authority to take "remedial action" if a violation of the non-discrimination policy is found). The regulations do not, however, permit much of the specific relief J.M. sought on appeal, e.g., compensatory and punitive damages, and attorney's fees, as part of the administrative remedy. Instead, the regulations advise complainants that they may seek redress through other "external agencies" wherein the specific remedies J.M. sought may indeed be available. N.J.A.C. 4A:7-3.2(p).
Applying the above principles to this case, a plenary hearing is clearly not required by law or the regulations. In light of the Legislature's expressed policy that where discipline is not imposed, appeals from investigations of alleged violations of the State's non-discrimination policy should be decided on the written record makes good sense.
We acknowledge, however, that there was in this case "a material . . . dispute of fact." Simply stated, J.M. claimed she was subject to a hostile work environment, sexual harassment, and gender discrimination, while the nine witnesses interviewed by DOT claimed she was not. However, the Commission concluded that it was unnecessary to hold a plenary hearing to resolve those factual disputes because J.M.'s claims were not supported by any other witnesses and were essentially uncorroborated by any other evidence. We cannot conclude, therefore, that the Commission erred in deciding J.M.'s appeal without a plenary hearing.
Turning to the merits of the appeal, the Commission referenced J.M.'s specific claims of discriminatory actions committed by fellow employees and supervisors at DOT. It also referenced the investigation DOT conducted with regard to each of those claims. DOT's response to J.M.'s appeal provided some of the details of that investigation.
For example, J.M. was interviewed twice by the IG, first, in July 2006, regarding her initial complaint. At that time, she "did not mention sexual harassment." When she was interviewed in August 2006, it was as a witness in "another retaliation complaint." At that time, she complained of being "'touched, grabbed and kissed by her co-workers and an assistant supervisor.'" She admitted to having a sexual relationship with a co-worker, claiming that "she had to because 'he was [her] boss.'" She also claimed the relationship provided her with "a break from work . . . ."
However, the nine other witnesses interviewed by DOT essentially denied any sexual misconduct or inappropriate touching. The employee with whom J.M. claimed to have been sexually involved specifically denied the allegation, and none of the other employees, who may have certainly noticed J.M.'s liaison with her boss at work, corroborated her account. J.M.'s claims of disparate treatment in work assignments were not corroborated. DOT separately reviewed the various overtime records for all the employees involved, and found that while J.M. "received less emergency and planned overtime than her male co-workers, there was no information to suggest the overtime was based on gender." It recommended "instituting a procedure that documents the availability and response of all yard personnel during overtime scheduling."
In short, the Commission's conclusion that J.M.'s claims were not substantiated was based upon the substantial, credible evidence available in the written record. Applying the appropriate standard of review, we cannot conclude the Commission's decision was arbitrary, capricious, or unreasonable, or "that it lack[ed] fair support in the record." In re Herrmann, supra, 192 N.J. at 27-28.