On appeal from the Civil Service Commission, Docket No. 2010-1677.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 19, 2011 -
Before Judges Cuff, Lihotz and Waugh.
In this matter we examine whether a terminated government employee, who withdrew his Civil Service Commission (Commission) administrative appeal challenging the validity of his firing in order to file a Superior Court complaint alleging a discriminatory termination as prohibited by the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, may reopen the administrative disciplinary action following the summary dismissal of the LAD action. The Commission denied petitioner Michael Stoecker's request to reopen the agency matter. Stoecker appeals from that determination, claiming the denial was arbitrary and capricious. We disagree and affirm.
A review of Stoecker's challenges requires a recital of the facts surrounding his employment as a firefighter with North Hudson Regional Fire and Rescue (the Department), his termination, and the allegations underpinning his claims of discrimination based on sexual harassment and a hostile work environment. We take these facts from our unreported opinion Stoecker v. North Hudson Regional Fire & Rescue, No. A-0337-08T1 (App. Div. Nov. 6, 2009), filed in the related matter reviewing the dismissal of the LAD action. In that factual recital, Stoecker is designated as plaintiff and the Department is designated as defendant. Any additional facts related to the administrative proceeding are taken from the pleadings before the Office of Administrative Law (OAL).
Plaintiff was . . . assigned to Engine 12, Battalion 3, under the command of Captain James Stelman and directly supervised by Battalion Chief Charles Severino. On May 9, 2001, plaintiff's first day of active service, Severino allegedly said, "How would you like to be my driver and when I ask you to blow me, you do it[?]" "Moments later" plaintiff saw Severino touch Firefighter Dean Manion's "groin and then rub his genitals against [Manion's] buttocks . . . ." Afterwards, Manion approached plaintiff and stated Severino "like[d plaintiff] because he likes big guys." Plaintiff "very loudly" said to Manion that "if anyone touched [him, he] would break that old man - nobody touches me." Plaintiff claims that "Stelman was present throughout [the events] and witnessed everything, and [he] could not have missed hearing" plaintiff's statements.
On May 29, 2001, while at work, plaintiff suffered a calf injury. Plaintiff was examined by a doctor, who cleared him to return to duty. Plaintiff objected and the doctor stated: "You are not getting a free day off[,] you're going back to work." Plaintiff believes he was forced to return to work, although injured, because the physician and a safety officer "discussed [him and his] condition . . . outside of [his] presence" prior to his examination. Plaintiff supports his assertion by pointing to a June 2001 progress report authored by Severino, which said: "[a]t no time did [plaintiff] appear to be injured while at the incident."
Plaintiff returned to work and Stelman ordered him to engage in training, which "no other member of the company was required to perform," aggravating his "excruciating pain." The injury worsened, and plaintiff was diagnosed with a torn calf muscle, necessitating a one-month disability leave.
When plaintiff returned from disability leave, he avers he "was repeatedly and relentlessly harassed by Stelman in the form of a hostile work environment" and "continued to witness Severino making homosexual references and overt contact with subordinates." These statements stand unaccompanied by specific examples.
On July 15, 2002, plaintiff became involved in a verbal altercation with Company Officer Thomas Teta, Jr., who found plaintiff sitting at the Captain's desk. Teta told plaintiff to move and commence his firehouse chores. Plaintiff reacted by cursing and screaming. Teta reported plaintiff was "insubordinate, disrespectful," and refused to follow "a direct order." Plaintiff's version of the incident differed. Plaintiff stated Teta, without provocation, verbally abused him, called him a liar, and lied in his statement of the incident . . . . Plaintiff also claims he reported his version of the events "complain[ing] about retaliatory treatment," but the report was not in his employee file.
Curtis reported the incident . . . [and a]s a result, plaintiff was moved to Engine 13. Following [its] review, [defendant] "determined that there was reasonable individualized suspicion that [plaintiff] was using controlled dangerous substances" and "ordered [him] to undergo a medical evaluation and drug testing." Plaintiff declined the request for a blood sample. As a result of his refusal to obey an order, he was suspended. . . . On July 25, 2002, plaintiff was issued a [PNDA], pursuant to N.J.A.C. 4A:2-2.5(a)(1).
Plaintiff sought review by the New Jersey Department of Personnel (NJDOP). The matter was settled prior to a hearing: plaintiff agreed to submit to a drug test, and defendant agreed to reinstate him if the test was negative. Plaintiff was reinstated on August 15, 2002, nevertheless, he demanded a hearing before the NJDOP because the settlement "in no way resolved the violation of [his] rights." The NJDOP concluded [the suspension was proper, but awarded back pay because of defendant's violation of notice procedures.] . . .
Thereafter, plaintiff requested a transfer. McEldowney counseled him and initially denied his request but later reassigned plaintiff to Battalion 3, Engine 12, under the command of Severino and Stelman. Stelman's January 31, 2003 progress report again noted, "although [plaintiff] has improved a little in the last year and a half, not much has changed.
Plaintiff requested a transfer "off the 4th platoon and out of engine 12" due to "personality differences" with Stelman that were "causing tension in the [fire]house." On that same day, McEldowney forwarded plaintiff's transfer request to Chief Flood, noting it was plaintiff's "second request for a transfer, again citing personality problems." Plaintiff was subsequently transferred to Engine 6, 2nd Battalion, under Battalion Chief Michael Cranwell and Captain Raymond Leahy.
On June 24, 2003, plaintiff slipped and fell during an assignment and injured his knee. Plaintiff, suggesting he was unaware that department rules designated the hospital for treatment, directed the ambulance to take him to a different hospital. While plaintiff was on medical leave, Cranwell telephoned his residence. When plaintiff did not answer, Cranwell left a message. Additional calls to plaintiff's residence went unanswered and plaintiff "failed to report for a scheduled physician's appointment" on July 3, 2003. Plaintiff never returned the ...