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In the Matter of Dwayne Smith.

October 2, 2012

IN THE MATTER OF DWAYNE SMITH.


On appeal from the New Jersey Civil Service Commission, Docket No. 2011-2478.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 12, 2012

Before Judges Accurso and Lisa.

Dwayne Smith appeals from an August 17, 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 failed to investigate or report statements made to him by a nurse at the prison that she was being harassed by another corrections officer. We reject appellant's claims that the Commission's decision was arbitrary and capricious and lacked support in the record, that termination of his employment was disproportionate to his offense, and that the charges were merely a pretext for retaliation. After reviewing the record and these arguments in light of applicable law, we affirm.

The record developed before the Administrative Law Judge (ALJ) established that Smith was assigned with another senior corrections officer, Devere Hatchett (Hatchett), to the infirmary at the prison. Also assigned to the infirmary was a nurse employed by the University of Medicine and Dentistry (UMDNJ). The nurse described both Smith and Hatchett as friends from work. The nurse testified, however, that she had problems with Hatchett who would touch her and squeeze her buttocks. The nurse stated that she had mentioned to Smith that Hatchett was "bothering" her, but did not provide details of Hatchett's conduct. Smith never asked how Hatchett was bothering her, and was generally reluctant to talk with her about "the job." She testified that she told Smith that she did not "want any prison scandal, I just want Officer Hatchett to stop." She further testified that Smith had advised her to speak to Sergeant Cunya, who he said was very nice, and to tell him what Hatchett was doing to her and that Sergeant Cunya would talk to Hatchett.

Against this backdrop, the nurse testified that on the evening of August 7, 2010, she, Smith, and Hatchett were working the overnight shift in the infirmary. At about midnight, after the nursing assistant had left the infirmary, the nurse testified that Hatchett came into the nursing station, grabbed her from behind, and pushed his hand down her pants and squeezed her buttocks. The nurse went to Smith and told him that "Hatchett is starting up again." She testified that Smith replied, "Okay. This is what we can do. Okay. Ask the nurse here to switch with you - ask the nurse to switch with you, you stay in the back and she goes to the front and when you see Sergeant Cunya tell him exactly what Hatchett is doing."

The nurse testified that she could not get her colleague to switch places with her. At 4:00 a.m., Hatchett caught the nurse alone, pushed his hand down the back of her pants, groped her buttocks, exposed himself to her, and forced her to touch him as he masturbated. Afterwards, when she angrily showed Smith the tissues she had used to wipe her hands, asking "do you see what Hatchett did?" Smith responded, "What are you showing me?" He asked no other questions, and the nurse testified that she walked away from him without further comment.

The prison also presented the testimony of Samuel Wise, a senior investigator at the prison at the time of these events. Wise testified that he, along with investigators from the Essex County Prosecutor's Office, had investigated the nurse's allegations that Hatchett had sexually assaulted her. Wise testified that in the course of the investigation, the nurse reported telling Smith, before the assault, that Hatchett had been bothering her, and that Smith had responded by telling her to report it to a supervisor. Wise then interviewed Smith. Wise testified that Smith admitted that the nurse had told him that Hatchett had been harassing her, and that Smith had advised her to report it to a supervisor. While Smith denied that the nurse had reported the sexual assault to him, he admitted that the nurse had tried to show him something that night. Wise testified that Smith had said, "he was tired, confused and I believe didn't really want to hear it, in some sense of the words."

Smith testified that he had been employed by DOC since 1997, and had served as a senior corrections officer for twelve years. Before being employed as a prison guard, Smith had been a police officer in Hillside for two years. At the time of these events, he testified that he was responsible for "the security of the [infirmary] unit and to maintain the safety of the employees and the care of the inmates." He acknowledged that only two officers were assigned to the infirmary on the overnight shift, and that Hatchett controlled the only door into the unit. Smith noted, however, that prison policy requires the area sergeant and lieutenant to make at least two rounds of their area each night.

Smith testified that he and the nurse were dating in 2010. He admitted that he was aware of "friction" between the nurse and Hatchett and that the nurse would, on occasion, say that "he's starting up." Smith testified that he never saw Hatchett behave inappropriately toward the nurse, and that she never went into any detail about what her problem was with Hatchett, despite Smith having questioned her about it. Smith thought it peculiar that she wouldn't discuss the details, but testified that it did not appear to him to be a particular problem. Smith also testified that the nurse never told him she was afraid of Hatchett, and that he had seen her laughing and joking with him. He testified that he thought the nurse may have been interested in Hatchett, as well as himself. When Smith asked the nurse why she interacted with Hatchett if she had a problem with him, she would simply walk away without answering him. Smith testified that this left him confused. Nevertheless, Smith explained that he tried to help the nurse by suggesting that she switch positions with another nurse so she could avoid contact with Hatchett.

Smith admitted that the nurse had come into his area on August 7, 2010 before midnight and said, "He's starting up." He further admitted that the nurse had come back several hours later and said, "look at what Hatchett did" to which he replied, "What are you showing me?" and that she walked away without replying. He acknowledged having told investigators from the prosecutor's office and the prison investigating Hatchett's alleged sexual assault of the nurse, that he had not at first seen what the nurse was holding in her hand. He testified that the nurse never told him that Hatchett had assaulted her. He explained that it was late, and he was tired and confused and "not up for any conversation." He testified that although he had been annoyed, he had not shown his feelings, but had questioned her appropriately, and that it was the nurse that had concluded their encounter by walking away without any response to his question.

Smith was charged with conduct unbecoming a public employee, in violation of N.J.A.C. 4A:2-2.3(a)6; conduct unbecoming an employee, in violation of DOC Human Resource Bulletin 84-17 as amended (HRB 84-17) C11, and violation of a rule, regulation, policy, procedure, order, or administrative decision, in violation of HRB 84-17 as amended E-1.

In upholding the charges, the ALJ noted in her initial decision that corrections officers serve in "a capacity analogous to police officers" and thus are "held to a high standard of conduct, both on and off the job." In re Phillips, 117 N.J. 567, 576-77 (1990). Specifically, she noted that in discharging their responsibilities, law enforcement officers are required to "exercise tact, restraint and good judgment" in their interactions with the public. Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965), certif. denied, 47 N.J. 80 (1966). She found that Smith's conduct ...


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