On appeal from the New Jersey Civil Service Commission, Docket No. 2010-961.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 29, 2012
Before Judges Cuff, Waugh and St. John.
Scott Laban appeals the final administrative action of the Civil Service Commission (the Commission), terminating his employment with the County of Bergen (the County). The Commission adopted the findings of fact of the Office of Administrative Law (OAL), as presented in the recommendation of the Administrative Law Judge (ALJ). However, the Commission rejected the ALJ's recommendation to modify the removal of Laban to a forty-five-day suspension. Instead, it imposed removal from office, the penalty sought by the County. In light of the record and applicable law, and following our review of the arguments on appeal, we affirm.
The record discloses the following facts and procedural history leading to the administrative determination under review.
Laban was employed by the County as a heavy equipment operator in July 2003. In 2008, pursuant to a settlement agreement, he was disciplined for conduct unbecoming an employee in the public service for spitting on a co-worker, and served an unpaid twenty-day suspension.
In 2009, the County asserted that Laban directed discriminatory comments towards fellow employees; failed to report and/or acknowledge an accident and/or damage to a County vehicle; and refused to sign an accident report.*fn1 On July 14, 2009, Laban was served with a preliminary notice of disciplinary action, and a departmental hearing was held. By final notice of disciplinary action, the County sustained all the charges and removed Laban from his position.
Laban requested a hearing before the Commission, which transmitted the matter to the AOL as a contested case. Hearings were held before the ALJ over a four-day period, following which the parties submitted post-hearing submissions. The ALJ determined "[t]he facts that gave rise to the charge that Laban engaged in discriminatory conduct are uncontroverted. Laban admitted the derogatory statements attributed to him . . . and did not testify at the hearing before me." The ALJ noted the County's policy prohibiting workplace discrimination and harassment. Laban's acknowledged receipt of a copy of the County's policy and his attendance on four separate occasions of anti-harassment training was also noted by the ALJ. The ALJ reviewed the County's "Remedial Action" policy, which "may be progressive in nature" and ranged "from direction to cease the offensive behavior to termination."
The ALJ determined Laban made derogatory comments to Luana Jennings,*fn2 a Native American seasonal County park employee. During the County's investigation, Luana complained that Laban referred to her family as "those people," called her "chief," and would make comments such as "how many more to your tribe." She also reported that during her first week of employment Laban advised her, "you'll fit in because you look like a spic." Luana had family and friends who also worked as seasonal employees. Luana's son and daughter, Paul and Heather, filed formal complaints against Laban, as did Heather's boyfriend, William Dennison. They testified that Laban referred to them as "you people," and that they belonged to a "tribe."
At the hearing before the ALJ, Luana described Laban's comments, and stated that she did not confront Laban because she was intimidated by him. She recounted Laban had boasted that he had spit at a fellow employee in anger. Paul also confirmed Laban's comments and his feelings that they were offensive. However, the ALJ determined, "it is noteworthy that there was no evidence of ill will between the parties, nor evidence that Laban's remarks were intended to offend."
After reviewing the evidence with regard to the vehicle accident, which stemmed from an incident when defendant dented the bulkhead of a County maintenance truck and failed to comply with the County's "accident procedure" policy, the ALJ found "Laban was aware of the damage sustained to the County vehicle but nonetheless failed to report it." Also, the ALJ found "that he refused to comply with the County requirement that he file a formal accident report."
In her Initial Decision, the ALJ found that the charges had been sustained, but reduced the penalty to a forty-five day suspension. The County and Laban filed exceptions. The Commission, based on its de novo review on the OAL record, agreed that the charges should be upheld, but disagreed with ...