On appeal from the Board of Trustees of the Police and Firemen's Retirement System, Department of Treasury, PFRS #3-10-032068 and #3-10-031242.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, R. B. Coleman and J. N. Harris.
In these back-to-back appeals, Kathy Dixon and Michelle Ricketts, former corrections officers, appeal from the final decision of the Board of Trustees, Police and Firemen's Retirement System (Board) concluding each appellant was permanently psychologically disabled from performing her regular and assigned duties as a result of ongoing sexual harassment by a fellow corrections officer, but neither qualified for enhanced benefits for accidental disability. We affirm.
The facts of both cases are undisputed and based entirely on the testimony of Dixon and Ricketts, the only two people to testify at the administrative hearing. Dixon and Ricketts were both general assignment officers with the Department of Corrections (DOC) at the time their respective alleged traumatic events took place. Most of their assignments were at the DOC's South Kearny facility, a satellite unit of the Adult Diagnostic Treatment Center (ADTC) in Avenel. The ADTC houses sexual predators convicted of rape, child molestation and related offenses. Many of the inmates in this facility carry AIDS, herpes, hepatitis and other sexually-transmitted diseases. The inmates are generally allowed to move around the facility and associate with each other, confined to their cells only for sleeping and for head counts. As part of their duties, Dixon and Ricketts were required to be alone with the inmates in a cell block or pod and were to radio for help or blow a whistle if a problem arose.
Sergeants Collins and Russo were the immediate supervisors of both appellants during the relevant time periods. Both appellants worked with fellow corrections officer Andrew Booker, the individual accused of sexually harassing both women.
Dixon and Ricketts filed applications for accidental disability retirement benefits on January 20, 2004, and July 12, 2004, respectively. On November 8, 2004 (Dixon), and June l5, 2005 (Ricketts), the Board granted appellants ordinary disability benefits. However, the Board denied each appellant accidental disability benefits, finding each respective appellant had not demonstrated the incident described as occurring on September 24, 2003 (Dixon) or on November 6, 2003, (Ricketts) constituted a "traumatic event" pursuant to N.J.S.A. 43:16A-7 and relevant case law.*fn1 Appellants requested administrative hearings and the matters were transferred to the Office of Administrative Law as contested cases. During their pendency, the Board reconsidered appellants' applications in light of recent New Jersey Supreme Court decisions,*fn2 and again denied accidental disability benefits to Dixon on December 8, 2008, and to Ricketts on June 11, 2008.
The administrative appeals were consolidated and a hearing was conducted on one day in April 2009. The record closed on May 13, 2009. Administrative Law Judge (ALJ) Jesse H. Strauss issued an initial decision on June 15, 2009, finding both appellants "testified sincerely, candidly, and credibly" and accepting their testimony as factual, but recommending the denial of accidental disability benefits be affirmed in both instances. The Board adopted the ALJ's initial decision as the final agency decision on July 13, 2009. Both women appealed. On appeal, they challenge as error the ALJ's application of the definition of a "traumatic event."
Dixon's problems began in spring 2003, when Booker began to make rude and sexually explicit statements to her, many times in the presence of her immediate supervisors. The first incident involved Booker making an inappropriate comment to Dixon about her nipples in front of Sergeant Russo. Dixon walked away and declined to complain to her superiors because Sergeant Russo had heard the comment and did not do anything. Booker was not disciplined for this incident.
On another occasion, Booker made a comment about how large Dixon's backside was in front of Sergeant Collins and the sergeant simply chuckled. Dixon became upset but ignored the comment and walked away. Weeks later, Dixon rebuffed Booker when he placed his hands on her shoulders and asked her out on a date. Sergeants Russo and Collins were both present for this exchange and simply laughed. In May 2003, in the presence of Sergeants Russo, Collins and other co-workers, Booker put his arms around Dixon and stated, "I want to take you. I want to get with you." Dixon explained she was particularly disgusted by this incident because it was witnessed by several of her co-workers. Dixon took Booker aside and told him she was tired of his behavior and threatened to have a friend come and "kick his ass" if he did not stop. Booker walked away and stopped speaking to her from that point forward.
Dixon also overheard and witnessed Booker's inappropriate comments and behavior toward other female employees. Booker would talk about women's body parts, refer to women as "thick" and talk about how he was going to "hit that," in reference to sex. Other corrections employees, including Sergeants Collins and Russo, were present for many of these comments. On another occasion, in front of Sergeant Russo, Booker waved a condom in the air and stated to Dixon, "[t]his is like American Express. I never leave home without it." Sergeant Russo merely shook his head and walked away. On another occasion in May 2003, Dixon witnessed Booker walk up behind Ricketts and stroke her back until Ricketts pushed him away. Sergeant Russo also witnessed the incident and did nothing.
Dixon testified that she viewed her employment at the DOC as a career, not just a job. Even before the alleged traumatic event took place, she began waiting in her car until just before her shift started to avoid contact with Booker. Dixon explained that she declined to file a complaint for any of the above-described incidents because her supervisors "were in the midst of it. They were right there with them laughing about it. They heard it." To Dixon's knowledge, Booker was never disciplined for his inappropriate behavior.
The incident that led most directly to Dixon's disability occurred on September 24, 2003. She learned from a kitchen supervisor, Andrew Dorfman, that Booker told him to spread a rumor that Dorfman had caught Dixon having sex with an inmate in the kitchen. Dorfman was also instructed to say that the inmate threatened to harm him if he reported the incident. Dorfman acknowledged this was a lie.
Dixon attempted to go about her day but was extremely upset. She learned from Dorfman that Internal Affairs was investigating whether the sexual encounter took place. Dixon testified that aside from the fact rumors spread quickly within the facility, there is an unofficial website for corrections officers where people post gossip about occurrences in the facilities. Corrections officers from all over the state commonly view the website. The false rumor was detailed on this website, using Dixon's real name as well as the name of the facility.
Dixon was called into the Internal Affairs office, accompanied by a fellow corrections officer. She left the office without answering any questions when her request for union representative presence was denied. Dixon testified that throughout that day, she noticed inmates looking at her, some calling her a "whore," which had never happened before. Dixon explained she was beside herself at this point, fearing the rumor might encourage inmates to be aggressive toward her. The fact that many of the inmates carried ...