On appeal from the New Jersey Civil Service Commission, Docket No. 2008-3580.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Argued October 13, 2010 - Decided Before Judges Wefing, Baxter and Koblitz.
Pedro Delgado appeals the Civil Service Commission's (Commission) determination that his repeated offensive remarks to a subordinate Middlesex County (County) corrections officer, based on her sexual orientation, merited a demotion from lieutenant to sergeant at the County's adult correction facility. The Commission accepted the administrative law judge's findings of fact and recommendation to uphold the appointing authority's decision to demote Delgado. After reviewing the record in light of the contentions advanced on appeal, we affirm.
The administrative law judge conducted a three-day trial where fourteen witnesses testified. The evidence developed showed that Delgado had worked as a corrections officer since 1987. Delgado received copies of the County's sexual harassment policy over the years. More recently he received specific training and a copy of the County's personnel policy manual (manual), which included a section on sexual harassment, on September 14, 2007.
W.P., a lesbian corrections officer, began her career in the Middlesex County Corrections System in 2001, as a civilian employee. She became friendly with Delgado, who was then a corrections officer. W.P. became a corrections officer in 2004, and has worked in the jail ever since.
W.P. began having problems with Delgado in 2007, after he was promoted to lieutenant and became the shift commander on the second shift. In May 2007, Delgado said to W.P. in the jail, with an unknown civilian man present: "Tell him I'm the only guy you ever f_ _ked.*fn1 " In the fall of the same year, Delgado, while laughing and smiling, repeated this remark in front of other lieutenants. W.P. walked away, upset and embarrassed. Delgado repeated the comment on other occasions, although W.P. told him to stop.
On another occasion, Delgado told W.P.: "You are my favorite boy." Although W.P. asked him not to say that anymore, he said it about ten times between May 2007 and January 2008.
When another lesbian corrections officer was having surgery, Delgado asked W.P.: "Is she having surgery to put a dick on?" W.P. walked away in response to his question.
On several occasions in W.P.'s presence and in reference to her, Delgado remarked jokingly to other officers: "She's more man than you'll ever be." W.P. was offended by this remark.
On Christmas Eve, December 24, 2007, W.P. was taking pills for a headache in the presence of other corrections officers when Delgado said: "What are they, your testosterone pills?" As W.P. walked away, she heard Delgado say: "Tell him I'm the only guy you ever f_ _k." Shortly thereafter, W.P. submitted an informal written complaint to her superior officers in the jail.
On January 4, 2008, Delgado responded to W.P.'s request for a day off by saying in front of another officer: "I am sick of you females." On January 7, 2008, W.P. began the process of registering a formal complaint, which was investigated by the County's affirmative action officer.
Initially, when questioned by the affirmative action officer, Delgado denied making all of the comments. At trial, however, he admitted to saying that W.P. was "more of a man" than the other male officers, which he claimed he intended as a compliment.
Other witnesses confirmed that Delgado made all of these comments. Another lieutenant testified that after hearing some of these comments he explained to Delgado: "You're a lieutenant now, you got to knock it off. You're held to a higher standard." The lieutenant's comments reflected the fact of Delgado's increased responsibilities. As shift commander, Delgado ran the entire operation of the jail if both the warden and captain were not present.
On the basis of these facts, the Commission determined that Delgado's statements were inappropriate and constituted conduct unbecoming of a public employee, discrimination and sexual harassment. The Commission noted that as a county corrections lieutenant, Delgado should be aware of ...