On appeal from the Civil Service Commission, Docket No. 2011-753.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Ostrer.
Appellant, Nicolas Castillo, a Hispanic male, appeals from the July 27, 2011 final decision of the Civil Service Commission (Commission) upholding his removal from his position as a sheriff's officer with the Monmouth County Sheriff's Department (County). We remand to the Commission for reconsideration of the penalty after appellant is afforded the opportunity to conduct discovery into the County's discipline of a fellow sheriff's officer, a Caucasian male, who appellant claims committed similar misconduct but was only given an eight-day suspension. We conclude appellant made a sufficient proffer of disparate treatment to warrant discovery.
On two separate occasions in April 2010, appellant gave notes to Sandra Miller, who at the time was an employee of the Monmouth County Prosecutor's Office. The first note, which Miller discarded after reading, expressed appellant's interest in her, told her that appellant thought she was hot and expressed the hope that she could be discreet. Miller viewed the note as somewhat juvenile and laughed about it with a friend. The second note was given to her a few days later. This note stated:
So I'm almost positive you were wondering
ALL weekend why I have
the hots for you . . . Well, It's really simple. I LOVE LONG THIGHS.
you have that. I guess it boils down to when I'm eating*fn1
in between your legs, having your thighs wrapped around
my neck, just drives me INSANE! You have those Awesome thighs. So
yeah, if your wet after reading that, I appologize [sic]. ☺
P.S. I hope (once again), I didn't offend you. It was a bit graphic
but . . . thought I'd let you know.
After conferring with co-workers, Miller reported the incident, and an internal affairs investigation commenced. Appellant was eventually charged with conduct unbecoming a public employee, discrimination, and violation of the rules and regulations of the County. The charges were upheld at the departmental level, and appellant was removed from his position.
Appellant appealed his removal to the Commission. The Commission transferred the matter to the Office of Administrative Law (OAL) as a contested case, and it was assigned to an Administrative Law Judge (ALJ) for a hearing.
Prior to the hearing, the County applied for permission to take Miller's testimony through video-conferencing, as Miller had resigned from her position in October 2011. Although she was interviewed and provided a formal statement as part of the internal affairs investigation, she did not appear at the departmental hearing and was not expected to appear at the hearing before the ALJ because she had relocated from New Jersey to the west coast. The ALJ denied the request.
On December 8, 2010, appellant requested discovery of the disciplinary file of a Caucasian sheriff's officer, who appellant alleged received more favorable disciplinary treatment for identical conduct. The County denied this request, and the matter was brought before the ALJ, who denied the application but granted appellant leave to renew his application because appellant raised a "newly advanced" theory of race-based disparate treatment in the discipline extended to him.
In support of his renewed application to conduct discovery, appellant submitted the affidavit of Joseph Tuohy, his Police Benevolent Association (PBA) president. Tuohy attested that after appellant was terminated, another sheriff's officer, who is Caucasian, was disciplined for "passing a several page romantic note to another employee." According to Tuohy, the employee was not terminated but instead given an eight-day suspension. Tuohy also stated that after learning of the "drastic difference" in the penalties, he met with the Monmouth County Sheriff, who acknowledged the differences in punishments, but would not explain the reasons or modify appellant's discipline.
The ALJ once again denied appellant's discovery application, concluding appellant was not entitled to the requested discovery because (a) he had not submitted a prima facie case of disparate treatment based on race in the County's calculation of the penalty, and (b) he had not shown that pursuit of this discovery would be anything more than a futile gesture since the penalty imposed is decided de novo on appeal. The ALJ reasoned that no evidence or record existed providing any perspective on what occurred on the path to settlement of the Caucasian officer's case, and the sole support for appellant's assertion was the affidavit from Tuohy, which the ALJ deemed "hearsay unsupported by a residuum of competent evidence." The ALJ doubted the credibility of appellant's claim because "the motion [came] in mid-case without any prior indication from appellant that discrimination was seen as a motive." The ALJ also noted that even if the other officer's case was reachable, the penalty in that case was arrived at through settlement and it was unclear whether the allegedly comparable note was of the same egregious nature. The ALJ further concluded that understanding the circumstances of that case would "require a complete trial of the case, a proposal of questionable legal authority." Finally, the ALJ determined that to the extent appellant was subject to race-based disparate treatment in his removal, he was not precluded from pursuing this claim through another forum, such as the Division of Civil Rights.
The ALJ conducted a hearing on March 28, 2011, during which he heard testimony from George Martin, Derek Orgen, Toni Friedhoff, Barbara ...