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In the Matter of Luther

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 12, 2012

IN THE MATTER OF LUTHER GREGG, ADULT DIAGNOSTIC AND TREATMENT CENTER, NEW JERSEY DEPARTMENT OF CORRECTIONS.

On appeal from the Civil Service Commission, CSC Docket No. 2010-3473.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 5, 2012

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.

I.

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 stated that he did not see appellant touch Officer Asberry's buttocks or Officer Asberry slap appellant.

Appellant testified, and provided an entirely different version of the events of February 9, 2010. He claimed that he approached Officer Asberry in the lobby and threatened to report her to the Chief for a uniform violation because she was wearing earrings. According to appellant, Officer Asberry became loud and upset and accused him of also being "out of uniform." He denied approaching Officer Asberry in the break room or speaking to her at all after their encounter in the lobby. Although he admitted speaking by telephone to Lieutenant Davis later that day, he explained that he called Davis to tell him that "his girl was bugging" over his comments about the earrings.

In his initial decision, the administrative law judge (ALJ) noted that "the factual basis of this case is resolved by findings of credibility." He expressly credited Officer Asberry's account of the two incidents, finding that her testimony was "coherent, convincing and delivered in a manner connoting credibility." The ALJ described her testimony as "compelling," because she was "clearly frustrated by [appellant's] continuing harassment of her and despite several attempts to avoid writing him up, his conduct overcame her patience[.]"

In contrast, the ALJ found appellant's testimony unworthy of belief, describing it as "unsupportable, incredible and ultimately conveniently concocted." In particular, the ALJ found appellant's explanation for his phone call to Lieutenant Davis to be completely unpersuasive:

Having no reasonable [explanation] for cell phone calls from Davis to him and him to Davis, [appellant] quite miraculously conjured up a version of the incident which resulted in him being a reporter, simply reporting back to Davis that "his girl was bugging." The time of these calls and the indication that he attempted to prevent Officer Asberry from filing her complaint, renders the balance of his testimony incredible.

The ALJ made other credibility findings, concluding that Street and Lieutenant Davis corroborated Officer Asberry's account, in that Davis reported appellant's vow to "touch [Asberry's] breasts" in the future; and Street testified that she witnessed appellant "swipe" his hand over Officer Asberry's breast. The ALJ also found that appellant's witnesses neither confirmed nor corroborated appellant's version of events and "did little more than establish a negative rather than assert a positive" in that they "could not indicate that the incidents did not occur but only that they did not see them." The ALJ concluded that appellant sexually harassed Officer Asberry on at least two occasions and that "her version[s] of both incidents are both factually accurate and credible."

In fashioning the appropriate penalty, the ALJ observed that "[a]n employee may be removed for egregious conduct without regard to progressive discipline." He noted that despite being forewarned, appellant continued to harass and grope Officer Asberry. The ALJ observed that although appellant had never been disciplined for incidents of harassment or sexual harassment, he had been disciplined "on several occasions prior to these two incidents."

Ultimately, the ALJ concluded that "the gravity of these charges" warrants termination and that appellant's obvious "lack of respect" for a fellow officer was an aggravating factor that further justified the termination of appellant's employment as a corrections officer because, according to the ALJ, appellant "is not worthy of the title of correction[s] officer[.]"

On July 13, 2011, the Commission affirmed the ALJ's decision. On appeal, appellant raises the following claims: 1) the Commission's final decision upholding the disciplinary charge was arbitrary and capricious; 2) the Commission's acceptance of the ALJ's credibility determinations was error, as Officer Asberry's testimony was unworthy of belief, Street's testimony failed to adequately corroborate Officer Asberry's account of the breast incident and is "pure hearsay" with regard to the "buttocks" incident, whereas appellant's testimony was "credible and reliable"; and 3) if the charges are sustained, progressive discipline should be implemented and the termination of employment should be rescinded.

II.

We start by acknowledging the longstanding and well-accepted principles of judicial review of administrative agency actions. "The scope of that review is limited." In re Herrmann, 192 N.J. 19, 27 (2007). As the Court observed in Herrmann, "[a]n 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. On appeal, our role is limited to the evaluation of three factors:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [Id. at 28 (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

When the agency's decision satisfies those criteria, we are obliged to afford substantial deference to the agency's expertise and superior knowledge of a particular field. Ibid. We are obliged to afford such deference even if we would have reached a different result from that reached by the agency. In re Taylor, 158 N.J. 644, 657 (1999).

The same deferential standard applies to our review of the particular disciplinary sanction the agency chose to impose. In re Stallworth, 208 N.J. 182, 195 (2011). This is particularly true in light of the agency's "special 'expertise and superior knowledge of a particular field.'" Ibid. (quoting Herrmann, supra, 192 N.J. at 28). Our scope of review of administrative sanctions is to determine only whether the "'punishment is so disproportionate to the offense, in the light of all of the circumstances, as to be shocking to one's sense of fairness.'" Ibid. (quoting In re Carter, 191 N.J. 474, 484 (2007)). Although progressive discipline, which involves the imposition of greater penalties for each successive infraction, is the general rule, West New York v. Bock, 38 N.J. 500, 523 (1962), where the employee's conduct is especially egregious, progressive discipline will be disregarded and termination will be imposed, ibid.

Thus, courts have recognized that "some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record." Carter, supra, 191 N.J. at 484.

Because DOC is a law enforcement organization, DOC is entitled to expect from its officers self-restraint, dependability and good judgment. Appellant, as a sworn law enforcement officer, is held to a higher standard of fidelity, honesty, integrity and good faith than civilian employees. Twp. of Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965), certif. denied, 47 N.J. 80 (1966). The need for "proper relationships" between corrections officers is especially important in the prison setting, because "such facilities, if not properly operated, have a capacity to become 'tinderboxes.'" Bowden v. Bayside State Prison, 268 N.J. Super. 301, 305-06 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994).

Moreover, we owe considerable deference to the ALJ's credibility findings. As the ALJ saw and heard the witnesses, and had an opportunity to evaluate whether their testimony was worthy of belief, we will not disturb the ALJ's credibility findings unless they "were arbitrary or not based upon sufficient credible evidence." Cavalieri v. Bd. of Trs. PERS, 368 N.J. Super. 527, 537 (App. Div. 2004). Indeed, when the record "can support more than one factual finding, it is the ALJ's credibility findings that control, unless they are arbitrary or not based on sufficient credible evidence in the record as a whole." Ibid.

Here, the ALJ had the opportunity to hear the testimony of the witnesses presented by the two sides, and to evaluate their credibility. Having done so, the ALJ expressly credited the testimony offered by DOC's witnesses, Asberry, Street and Davis, and rejected the testimony offered by appellant as utterly unworthy of belief. As for appellant's two witnesses, Lowery and Battle, as the ALJ correctly noted, neither one testified that the incidents did not occur, but merely that he did not see them.

We have been provided with no meritorious basis upon which to overturn either the findings of fact issued by the ALJ, or the Commission's acceptance of those findings, as the ALJ's findings are well-supported by substantial and credible evidence in the record. We affirm the Commission's determination that appellant engaged in two incidents of sexually-harassing conduct.

As for appellant's contention that the penalty of termination was excessive and unwarranted, we disagree. Appellant committed not one, but two, acts of sexual harassment in the workplace, conduct that is grossly at odds with the standard of behavior expected of a law enforcement officer such as appellant. Moorestown, supra, 89 N.J. Super. at 566. Such conduct is sufficiently egregious to warrant the extreme penalty of termination.

Appellant maintains that Commission has, in the past, approved a sanction less than termination where the employee has been charged with misconduct similar to the misconduct at issue here. We agree with the Commission that termination is warranted, as appellant does not have an unblemished disciplinary record, and he committed not one, but two, offending acts.

Affirmed.

20120612

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