On appeal from the Civil Service Commission, CSC Docket No. 2010-3473.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Baxter.
Luther Gregg appeals from a July 13, 2011 final agency decision of the Civil Service Commission (Commission). The Commission approved the recommendation of the Department of Corrections (DOC) that appellant be terminated from his position as a senior corrections officer at Northern State Prison after he sexually harassed a fellow employee on two occasions. We reject appellant's claims that the Commission's decision was arbitrary and capricious and lacked support in the record. We likewise reject appellant's contention that termination of his employment was an excessive and unduly harsh penalty. We affirm.
In late January 2010, Alice Asberry, a senior corrections officer at Northern State Prison, was standing in a hallway at the prison talking to corrections officer Hiram Lowery and clerk/bookkeeper Virginia Street, when appellant approached her. According to Asberry, "as soon as [appellant] got where we were, he reached over and grabbed my breast . . . with his . . . full hand." Although Asberry tried to push his hand away and hit him, appellant ducked and was able to avoid being struck. Asberry warned him not to "do that again" or she would "write him up." Asberry testified that this was not the first time appellant had grabbed her breast, but she had chosen not to report the earlier incidents, hoping that he would discontinue such behavior.
Street corroborated Officer Asberry's account, testifying that she witnessed appellant "swipe" his hand over Asberry's breast. Street acknowledged that she did not know precisely whether appellant pinched or grabbed Officer Asberry's breast, because, as she explained, "it wasn't my breasts." But she was absolutely certain that appellant had touched Asberry's breast, and that she, Street, was "shocked" by appellant's behavior. Street confirmed that Officer Asberry warned appellant to stop touching her and that Asberry threatened to write him up if he continued to grope her.
Officer Lowery testified that although he remembered the conversation with Street and Officer Asberry in the hallway in late January 2010, and remembered that appellant approached the group, he did not see anything inappropriate occur because he walked away as appellant approached. On cross-examination, Lowery confirmed that he was not testifying that appellant did not grope Officer Asberry, but was instead stating that he "didn't see anything."
Rather than file a formal complaint accusing appellant of grabbing her breast in the January 2010 incident, Officer Asberry attempted to informally resolve the situation by asking a mutual friend, Lieutenant William Davis, who worked at the same prison, to contact appellant and direct him to stop touching Asberry. As requested, Lieutenant Davis telephoned appellant the same day he spoke to Asberry, and directed appellant to stop touching her. According to Lieutenant Davis, appellant responded in a "joking" way, by telling Lieutenant Davis, "I'll touch her feet, I'll touch her breasts, I'll touch her legs, I'll touch her head." When Lieutenant Davis persisted in admonishing appellant, he believed that appellant understood that he should refrain from engaging in any further such conduct with Officer Asberry.
Even though Officer Asberry had, in no uncertain terms, warned appellant not to ever grope her again, and even though Lieutenant Davis had admonished him, appellant's conduct persisted. On February 9, 2010, when Officer Asberry encountered appellant in the lobby of the prison while she was walking to the elevator, appellant followed her and slapped her on the buttocks. Officer Asberry reacted by slapping him across the face and telling him that she was going to "write him up."
Officer Asberry immediately went into the break room and began to prepare her report. Street was in the break room at the time and confirmed that Officer Asberry entered looking "frizzled" and upset. Street saw appellant follow Officer Asberry and lean over the table to speak with her. As soon as he approached her, Officer Asberry stood up and moved to another seat. When Street asked Officer Asberry what was wrong, Officer Asberry responded that "[appellant] touched me again."
Once her report was completed, Officer Asberry submitted it to the prison Administrator, and later filed a written sexual harassment complaint with DOC's equal employment officer.
Officer Gregory Battle, who testified on appellant's behalf, was on duty on February 9, 2010 as the lobby officer responsible for checking all visitors entering the prison, confirming their security clearance and processing them through the metal detector. He was vaguely aware of appellant approaching Officer Asberry that morning, but was distracted because there were so many people in the lobby area. He ...