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In the Matter of Nicolas


July 23, 2012


On appeal from the Civil Service Commission, Docket No. 2011-753.

Per curiam.


Argued May 16, 2012

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 Barbolini, Phyllis Stanley and appellant.

Martin and Orgen were internal affairs officers at the time of the incident, and testified about the internal investigation conducted by the Department. Freidhoff, Miller's co-worker, described Miller's reactions to the notes. She was not present when Miller received the first note but testified Miller relayed to her that she was not "disturbed" by the first note, but thought it was juvenile and discarded it. As to the second note, which Miller received and read in Freidhoff's presence, Miller was "shaken" and did not know what to do.

Barbolini also testified regarding Miller's reaction to the notes. With respect to the first note, Miller read the note to her on the telephone the day she received it. She recalled that "[w]e laughed about it . . . we brushed it off and that was the last I heard of it for that weekend." As for the second note, Barbolini testified that Miller and Friedhoff came into her office together after reading the note: "[Miller] was nervous, Sandra was nervous about it. She explained that "[Miller] didn't know what to do . . . [Friedhoff] and I were saying, you know, 'You can't let it go,' and she was hesitant to report and said, 'I'm going to go out and have a cigarette,' and she left the room."

Stanley, who encountered Miller after she left Barbolini's office, testified that she told Miller that appellant had sought Miller out the day before giving her the second note. Stanley described Miller's reaction as looking as "like somebody hit her with something and she just paled right up and she started getting nervous and I had no clue why." Stanley also testified Miller told her "[appellant] creeps [her] out."

Appellant testified that his intent throughout was to seek a romantic relationship. He conceded his effort was a "poor effort at flirtation" but did not believe he exercised poor judgment.

On May 31, 2011, the ALJ issued an initial decision affirming the County's removal decision. The ALJ found that because Miller had not testified, the County's case fell short of proving her state of mind. Additionally, the ALJ noted the surveillance film that recorded Miller's reaction to the note did not depict an expression of distaste or offense on the part of Miller after reading the second note. Nonetheless, the ALJ concluded a reasonable woman would view the note as sexual harassment. The ALJ further found the conveyance of the April 27 note was "egregious, descending to the level of sexual harassment, a violation which carries it beyond the pale of progressive discipline . . . [bringing appellant] within the reach of a stringent standard governing application of discipline because a law enforcement officer is different from a public employee."

Appellant filed exceptions to the initial decision contending the ALJ erred in denying his application to conduct discovery to support his claim of race-based disparate treatment. Appellant also urged that since the ALJ determined the County failed to establish that Miller found the second note to be unwelcome, the ALJ erred in concluding that his conduct constituted sexual harassment. Additionally, appellant contended that given the absence of any prior disciplinary issues in his record, the ALJ's initial decision violated the principle of progressive discipline. Further, appellant maintained that his constitutional right to cross-examine his accuser was violated by Miller's failure to appear at the hearing. Finally, appellant urged that the ALJ's initial decision recommending his removal was arbitrary because no county or state policy was violated when he passed a private note to an adult who willingly accepted it.

The Commission, in its de novo review, rejected appellant's arguments. It noted that appellant's conduct was not disputed and that because his conduct must be assessed based upon the reasonable woman standard, neither his state of mind nor Miller's state of mind "were relevant or necessary to establish the admitted conduct of the appellant," as it concluded "a reasonable woman would clearly regard the note as sexual harassment."

The Commission acknowledged that in determining the proper penalty its review was de novo. It approached its de novo review by first recognizing that it was obliged to consider the seriousness of the offense committed and to then determine whether the concept of progressive discipline was appropriate. Utilizing this approach, the Commission found that "appellant's actions were outside the bounds of acceptable workplace behavior, especially for a law enforcement employee." Additionally the Commission found:

[T]he appellant's seemingly cavalier attitude toward using, while on duty as a law enforcement officer, such sexually explicit language with a relatively unknown woman particularly troubling. Moreover, the Commission rejects the appellant's contention regarding alleged disparate or discriminatory treatment. Initially, it is clear that the appellant's conduct was abhorrent and worthy of severe sanction.

Further, the Commission, independent of the appointing authority, determines the ultimate penalty in these matters. The fact that the appointing authority may have imposed a different penalty for a similar matter not presented to the Commission does not persuade it that the appellant's conduct is not worthy of removal.

The present appeal followed. On appeal, appellant raises the following points for our consideration:









We begin by noting our limited role in reviewing the decision of an administrative agency. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Ordinarily, we will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole. Ibid. If the appellate court concludes that a decision of the Commission is arbitrary, we may either resolve the matter by fixing the appropriate penalty or remand it to the Commission for redetermination. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

As the Commission stated, irrespective of the penalty imposed by the County, its review is de novo. Nonetheless, in fashioning the appropriate penalty, the Commission must be guided by what our Court has articulated is the need for "fairness and generally proportionate discipline imposed for similar offenses by public employers." In re Stallworth, 208 N.J. 182, 192 (2011). The responsibility to assure such fairness and proportionality is reposed in one agency, the Commission, through its de novo review. Ibid. In other words, the Commission serves as the gatekeeper of fairness and proportionality in the discipline of career service employees. N.J.S.A. 11A:2-6(a)(1) expressly provides that the Commission, in addition to other powers with which it is vested, shall, following a hearing, "render the final administrative decision on appeals concerning permanent career service employees" removed from public employment.

The Commission's charge to assure fairness and proportionality is best accomplished when it has a complete record before it. In denying appellant's discovery request because, among other reasons, appellant failed to present "a prima facie case of disparate treatment based on race in the County's calculation of penalty," the ALJ imposed upon appellant the standard for surviving a summary judgment motion or a motion for a directed verdict. However, even in the context of such motions, a plaintiff's burden to survive summary judgment or a directed verdict in establishing a prima facie case of discrimination under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49 is "rather modest: it is to demonstrate to the court that [a] plaintiff's factual scenario is compatible with discriminatory intent--i.e., that discrimination could be a reason for the employer's action." Zive v. Stanley Roberts, 182 N.J. 436, 447-48 (2005) (internal quotation and citation omitted) (reaffirming a plaintiff's slight evidentiary burden at the prima facie stage).

New Jersey's liberal discovery policy is well-established and with the exception of a claim of privilege, "[p]arties may obtain discovery regarding any matter . . . which is relevant to the subject matter involved in the pending action." R. 4:10-2; see also N.J.A.C. 1:1-10.1. Generally, our courts afford "'every litigant who has a bona fide cause of action or defense the opportunity for full exposure of his or her case.'" Velantzas v. Colgate-Palmolive Co., Inc., 109 N.J. 189, 193 (1988) (quoting United Rental Equip. Co. v. Aetna Life and Cas. Ins. Co., 74 N.J. 92, 99 (1977)). Discovery is designed to facilitate the disposition of cases by "giving litigants access to facts which tend to support or undermine their position or that of their adversary." See N.J.A.C. 1:1-10.1. In light of the ALJ's ruling that appellant could seek leave to renew his discovery motion based upon his claim of race-based removal, it is evident the ALJ recognized the relevancy of such evidence, if as was claimed in Tuohy's certification, the circumstances of the misconduct were similar.

Moreover, the fact that the Commission undertakes a de novo review of the penalty imposed should not minimize the importance of determining whether the employer's disciplinary action has been undertaken fairly and proportionately. Stallworth, supra, 208 N.J. at 192. Nor does the availability of an additional forum to pursue a claim of discriminatory discharge mean the Commission should defer resolution of that issue to the other forum. Cf. Hinfey v. Matawan Reg'l Bd. of Educ., 77 N.J. 514, 525 (1978) (holding that both the Division of Civil Rights and the Commissioner of Education have jurisdiction and are competent to deal with controversies under the school law which entail discriminatory practices). Ultimately, even if presented with evidence of race-based disparate treatment towards appellant, the Commission may conclude that the removal penalty as to appellant is appropriate. Such a decision, however, should only be reached after consideration of all relevant facts.

Finally, we reject appellant's remaining points as a basis to set aside the Commission's decision. We add the following brief comments.

We note "an administrative tribunal may mold its own proceedings so long as they operate fairly and conform with due process principles." In re Gastman, 147 N.J. Super. 101, 112 (App. Div. 1977) (citing Laba v. Bd. of Educ., 23 N.J. 364, 382 (1957)). See also N.J.A.C. 1:1-15.8(e) (permitting a witness to testify by telephone). Thus, we conclude the ALJ mistakenly exercised his discretion in denying the County's application to have Miller appear via video conferencing. We find, however, the error was not one capable of producing an unjust result. R. 2:10-2. There was no dispute that appellant authored the notes and that he gave the notes to Miller, a person he barely knew. One of the notes contained sexually explicit language. The Commission reasoned that such conduct was "outside the bounds of acceptable workplace behavior, especially for a law enforcement employee." This conclusion could be reached without the necessity of Miller's testimony and supported the finding that appellant engaged in conduct unbecoming a public employee under N.J.A.C. 4A:2-2.3(a)(6), separate and distinct from a finding that appellant committed sexual harassment.

"The determination of what constitutes conduct unbecoming a public employee is primarily a question of law." Karins v. City of Atlantic City, 152 N.J. 532, 553 (1998). It has been characterized as an "elastic" term, and has been defined as "any conduct which adversely affects the morale or efficiency of the [workplace] . . . [or] which has a tendency to destroy public respect for [public] employees and confidence in the operation of [public] services." Id. at 554 (quoting In re Emmons, 63 N.J. Super. 136, 140 (App. Div. 1960)). See also Hartmann v. Police Dep't of Ridgewood, 258 N.J. Super. 32, 40 (App. Div. 1992). As we observed in Hartmann:

[A] finding of misconduct [need not] be predicated upon the violation of any particular rule or regulation, but may be based merely upon the violation of the implicit standard of good behavior which devolves upon one who stands in the public eye as an upholder of that which is morally and legally correct. [Ibid. (citation omitted).]

Thus, Miller's presence was not required to uphold the charges of conduct unbecoming a public employee or the violation of the County's rules and regulations.

We remand to the Commission for reconsideration of the penalty after appellant is afforded an opportunity to conduct discovery related to his Caucasian co-worker, who Tuohy claimed engaged in similar misconduct but was given only an eight-day suspension. Any claim of privilege in connection with this individual's case may be appropriately addressed in accordance with the discovery procedures outlined in Rule 4:10-2(e) and N.J.A.C. 1:1-10.1.

In view of our remand for reconsideration of the penalty, we decline to address whether the Commission violated principles of progressive discipline other than to observe that the absence of any prior disciplinary infractions committed by appellant is not dispositive since one egregious act of misconduct may justify the imposition of removal as a sanction. See Stallworth, supra, 208 N.J. at 196 (noting that "progressive discipline is not a fixed and immutable rule to be followed without question because some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record") (internal citations and quotations omitted). This is especially true when the employee's position involves public safety. Ibid.

Remanded to the Commission for further proceedings consistent with this opinion. We do not retain jurisdiction.

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